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OpEdNews Op Eds    H3'ed 2/8/17

The State of Massachusetts Should Protest the Warren Gag Rule

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Message Rob Hager

When the Republican majority leader, Senator Mitch McConnell of Kentucky, used Senate Rule XIX to silence Massachusetts Senator Elizabeth Warren because of her reading a letter from Coretta Scott King opposing Jeff Sessions from Alabama to be a federal judge, the Senate evoked a strategy first used in Congress when the slave power was at its peak of control over the federal government.

King's 1986 letter alleged: "Mr. Sessions has used the awesome powers of his office in a shabby attempt to intimidate and frighten elderly black voters." No information could be more relevant to the credentials required by an attorney general in 2017. We live in an era when the Supreme Court revived the slave-power doctrine of equal sovereignty in violation of the 15th amendment in Chief Justice Roberts' infamous Shelby County decision gutting the 1965 Voting Rights Act. The country desperately needs a Department of Justice capable of standing up to such rulings and fighting in the courts to preserve the Constitution and laws that protect equal voting rights as the foundation of democracy. King is a reliable source of information that Sessions flagrantly fails that test for leading the DoJ.

Wishing to ignore the evidence that their preferred choice for such leadership is a southern racist with a record of violating equal voting rights, Republicans ruled that Warren's reading of King's letter would "impute to another Senator ... conduct ... unbecoming a Senator" in violation of the Senate's rules. But the three-decades-old letter was written about Sessions' conduct long before Sessions became a Senator. His offensive and racist conduct prior to becoming a Senator could not be "unbecoming a Senator." The point of reading the letter was to evidence past conduct contrary to that expected of an attorney general who will equally enforce the laws. After all, most Republican Senators do not care whether Sessions committed racist acts against black Alabama voters just as they have refused to overturn John Roberts' shabby decision discriminating against many more black voters in Shelby County.

King's allegation of racial discrimination, far from being unusual or unbecoming, in the dictionary sense of "unsuitable," is rather typical of the average member of the current Senate majority's views toward equal voting rights. Their vote approving Sessions shows his brand of racism suits the Senate just fine. Warrens' point was obviously not to object to Sessions' conduct as unsuitable for a Republican Senator, which in the Trump era would present a very low bar indeed on matters of white privilege.

The contemporary southern party has overreached by censoring Warrens' further debate of an apparent white supremacist's suitability to be attorney general on grounds that she violated Rule XIX. That rule does not seem to apply to Warren's rejection of Session's qualifications for an altogether different post which makes a greater demand on character than does that of a Senator.

By stimulating this debate over equal voting rights, Senator Warren steps into the shoes of a former great politician from Massachusetts. President John Quincy Adams, after his subsequent election to Congress, led the newly organizing abolitionist forces in Congress by introducing various anti-slavery petitions. In 1836 Congress responded with a "gag rule" to prevent any discussion of slavery in Congress. This gag rule became the first target of abolitionist forces in the national government, as one of the brilliant abolitionist strategies created by Adams and his remarkable legislative assistant Theodore Weld (husband of pathbreaking anti-slavery orator Angelina Grimke, "first woman in American history to appear before a legislative body," Miller 316).

William Lee Miller, Arguing about slavery: the great battle in the United States Congress (1996) 48, tells this story "about the first tiny steps toward ... extending democracy to black persons" by Adams' resistance to the gag rule.

Miller writes, 260, that "the right of slaves to petition -- was, according to Adams, 'the most important question that ever came before the House since its first origin'" because it would determine the question whether slaves were persons having constitutional rights. To slaveowners, the idea that slaves might have the constitutional right to petition could lead to their constitutional right to sue in court (like Dred Scott did), or even to vote. That slippery slope leads to the end of chattel slavery.

When the Supreme Court's Dred Scott (1857) decision attempted to settle the question that Adams thought most important by ruling that slaves were property not persons, thereby misrepresenting the express language of the Constitution, Lincoln made this ruling the leading issue in his sustained campaign for the presidency. James Madison had found it "wrong to admit in the Constitution the idea that there could be property in men." So it did not. The Supreme Courts' lie in Dred Scott that it did, "in effect, assured the Election of 1860 to Lincoln" and led to secession, since "a Republican President would mean no more proslavery appointments to the Court. It would mean a veto of any legislation likely to add a slave territory or a slave state to the Union." Harry V. Jaffa, Dred Scott Revisited, 31 Harvard J. of Law & Pub. Pol. 197, 211, 217 (2008).

A generation earlier Adams gathered support for the abolitionist cause by first fighting the gag rule. His fight against the rule eventually resulted in a censure motion comparable to the one that the Senate approved to silence Warren. Adams' extended defense of his censure resulted in a vote of 97-25 against the slaveowners' objection to Adams speaking about slavery. This was, according to Miller, 444 "the first clear-cut victory in the American House of Representatives against the forces of the slaveholding South."

That vote led to the formal repeal of the gag rule in 1844, the same year abolitionists formed a precursor to the Republican Party to run a presidential campaign. But 12 years later one of Massachusetts' greatest Senators, Charles Sumner, a protege of Adams, was beaten nearly to death in an attempted assassination committed on the floor of the Senate for giving his anti-slavery speech "Crime Against Kansas" there. This violent version of the gag rule led to civil war. See S. Puleo, The Caning: The Assault That Drove America to Civil War (2012).

Adams fought against the gag rule on first amendment grounds. The King letter was in the tradition of the abolitionist petitions Adams claimed were protected by the First Amendment. Warren's reading of King's letter about voting rights on the floor of Congress was similar to JQ Adams' efforts to read petitions against slavery to Congress. And her censure by a partisan vote was comparable to the censure of Adams by the Slave Power, resistance to which led to repeal of the gag rule.

Slavery was replaced, after its formal abolition and a brief Reconstruction Era, by the slavery by another name of Jim Crow terrorism that depended upon the denial of equal voting rights. A. Blackmon, Slavery by Another Name: The Re-Enslavement of Black Americans from the Civil War to World War II (2009).

After the great migration, the right to vote empowered a brief civil-rights era that ended the old Jim Crow. A New Jim Crow now appears in an era when the value of the right to vote has been vastly depreciated by systemic political corruption imposed by Supreme Court rulings equally illegitimate as Dred Scott. Those who gag Warren are the same politicians who advocate a nominee to the Supreme Court who will reliably perpetuate that disfranchisement by political corruption and further suppression of voting rights for all but plutocrats who pay. The gag rule to prevent honest discussion of equal voting rights draws a line where it is necessary for patriots to take a stand against oppression, in the tradition of JQ Adams and the abolitionists.

A proper response to the censorship of Senator Warren should come from the state of Massachusetts. So long as Warren remained censored, the citizens of the state of Massachusetts were denied their equal representation in the Senate, contrary to what the Supreme Court held to be constitutional law in Shelby County. If the 15th Amendment cannot stand in the way of sovereign equality then surely a vague rule about decorum in debate cannot.

The Massachusetts legislature and its Governor Charles D. Baker should lodge a formal protest against the Senate's gag rule of its U.S. Senator. Censorship of honest and relevant debate and the right of a state's citizens to be represented in that debate should not be a partisan issue. The Constitution denies a partisan faction in Congress "authority to exclude any person, duly elected by his constituents, who meets all the requirements for membership expressly prescribed in the Constitution" on such flimsy grounds. Powell v. McCormack, 395 U.S. 486, 522 (1969).

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Rob Hager is a public-interest litigator who filed a Supreme Court amicus brief n the 2012 Montana sequel to the Citizens United case, American Tradition Partnership, Inc. v. Bullock, and has worked as an international consultant on legal (more...)
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