by David Crisp
Editor's Note: Some divine writing on a theocratic view of the origins of the United States Constitution
I have tried without much success to take an interest in the parboiled debate over Judge Russell Fagg’s so-called shadow campaign for the U.S. Senate. But my dutiful slog through Fagg’s defense of his actions in the Oct. 8 Billings Gazette screeched to a halt when I encountered this sentence: “Our constitution, divinely inspired, gives everyone the right to express their opinions.”
Let’s set aside the question of whether a Constitution that denied full rights to more than half the population, including women and slaves, truly allowed everyone to express opinions. What matters is whether someone who argues for the divine inspiration of the Constitution is fit to hold public office.
The case that the Constitution was divinely inspired is popular in certain corners of reality, especially in the Church of Jesus Christ of Latter-day Saints and among fans of David Barton, the author and evangelical who argues that the founding fathers had a Christian nation in mind.
They point to a selective bag of evidence, including George Washington’s statement in a letter to Lafayette that it was “little short of a miracle” that delegates with such varied interests were able to form a government with so few obvious defects. I believe the strict definition of “little short of a miracle” is “not a miracle.”
They also point to Ben Franklin’s suggestion, during a contentious session of the constitutional convention, that the delegates begin their business each day with a prayer. According to James Madison’s notes, the motion died without a vote.
The Federalist Papers detected “the finger of God” in the passage of the Constitution, but the founders were under no illusions about who wrote the document. That “finger of God” passage is followed by this sentence: “I will not presume to say that a more perfect system might not have been fabricated; but who expects perfection at once?”
It is unrecorded that anyone who believes the Bible was divinely inspired has ever expressed this sentiment: “A more perfect book might have been written, but who expects perfection at once?”
Other founders fully grasped that the Constitution was the work of frail humans. Washington’s letter to Lafayette also contained this sentence: “We are not to expect perfection in this world: but mankind, in modern times, have apparently made some progress in the science of Government.” He pointed out that the Constitution contained provisions that allowed its defects to be mended.
Alexander Hamilton put it this way at the convention: “It is a miracle that we [are] now here exercising our tranquil and free deliberations on the subject. It would be madness to trust to future miracles.”
Hamilton, asked later why the Constitution failed to mention God, gave this (possibly apocryphal) reply: “We forgot.”
The Constitution remains a remarkably farsighted and innovative document, brilliant by human standards but pretty shabby for God’s work. The founders were well aware of some of the defects, such as the failure to settle the slavery question, a shortcoming that led within a century to what remains the nation’s bloodiest war.
God would never have blundered so egregiously. That children’s song could never have said, “Red and yellow, black and white, they are precious in His sight, except that some are only three-fifths as precious as the others.” It doesn’t rhyme. It doesn’t scan. It doesn’t make sense.
But the founders’ views on divine inspiration hardly matter today, right? No, not unless the Constitution is treated as divine writ, as some Americans seem inclined to do.
For example, my column last week calling for an honest discussion of gun control drew multiple comments from Robert Eddleman, including the argument that what other countries do about gun control doesn’t matter because they don’t have a Second Amendment.
Yes, but the Second Amendment wasn’t engraved on stone tablets. It wasn’t even part of the original Constitution; it was a response to the Constitution’s perceived defects. It was as if God, after inspiring the document, had to pencil in a few corrections. Believing that the founders, given what guns can now do, would have written that amendment exactly the same way today is an act of faith, not of jurisprudence.
As late as 2014, seven states still had language in their constitutions prohibiting those who do not believe in God from holding public office. The strain for theocracy runs strong in American governance.
So where does Russell Fagg, now officially a Republican candidate for the U.S. Senate, fit in? Does he sort of vaguely believe that God’s invisible hand somehow encouraged 18th century Americans to cobble together a flawed but estimable governing document? Or does he, as his Gazette column seemed to imply, believe the Constitution is the infallible word of God?
Unfortunately, Fagg has yet to reply to my message to his campaign. He still owes voters an explanation. “The law,” as “O Brother, Where Art Thou?” reminds us, “is a human institution.” We need to know whether Fagg intends for it to stay that way.
By David Crisp
Sometime soon, you may be asked to sign a petition to put the Montana Locker Room Privacy Act on the ballot in November 2018. Caution: Cogitate before signing.
The ballot language never specifies this, but Initiative 183 would require transgender people in publicly owned buildings to use “protected facilities” such as locker rooms and restrooms that correspond to their biological gender, not their gender identity. Attorney General Tim Fox approved ballot language for the petition last week, and supporters have to gather 25,800 signatures from at least 34 legislative districts to bring the issue to a public vote. On Tuesday, the American Civil Liberties Union of Montana asked the Montana Supreme Court to examine the ballot language for legal sufficiency.
Set aside for a moment the question of what restrooms and locker rooms transgender people ought to use. Don’t think about 14-year-old daughters being exposed to male genitalia in public showers. Instead, let’s look at a narrower question: Is this a good law?
First, some background. The Montana Locker Room Privacy Act was pushed during the legislative session by the Montana Family Foundation, the socially conservative Laurel group that hoped to get the Legislature to put the act on the ballot. But the MLRPA died in the House Judiciary Committee, which voted 11-7 against it.
One of the act’s supporters was Rep. Barry Usher, R-Billings, who said, “If we don’t do this, I could actually walk into a bathroom, a girls’ bathroom or shower, and I would find it offensive that I could do that.”
Note to Barry: Please don’t presume that claiming to be transgender amounts to a get-out-of-jail-free card for creeps in restrooms. Even without the MLRPA, Billings police in 2015 arrested a 33-year-old man who wandered into the women’s restroom in Pioneer Park and was caught peering into a stall containing a 4-year-old girl. He was charged with prowling and disorderly conduct, with no reference to gender identity. Courts that have rejected laws similar to the MLRPA have found no evidence that transgender people are more likely to commit these kinds of offenses than anyone else.
Turned down by the Legislature, the Montana Family Foundation is holding banquets in Bozeman on Oct. 3 and Billings on Oct. 24 to raise funds for its ballot initiative effort.
For the record, ballot initiatives are a lousy way to pass laws. Laws that hold judicial water need to be debated, massaged, edited and amended. They require cooperation and collaboration, just like the laws the U.S. Senate passed back when we had a functioning democracy.
Early opponents of this initiative include usual suspects: the Montana Human Rights Network, Montana Women Vote, Forward Montana, Planned Parenthood of Montana, the Montana Coalition Against Domestic and Sexual Violence, the Pride Foundation and the ACLU of Montana, which wrote a letter to Attorney General Tim Fox in July asking him to find the initiative “legally insufficient, and constitutionally defective.”
The ACLU’s 11-page argument should be read with skepticism. For one thing, it was aimed primarily at the ballot language, not at the initiative itself. For another, it reads a little like the scattershot approach of an attorney on the wrong end of the law, tossing a bean bag of arguments at the wall, hoping some of them stick.
For example, the ACLU argues that I-183 violates the requirement that ballot initiatives be limited to only one subject. And the ACLU says the act’s definition of “changing facility” and its failure to define “state of undress” make the statute so vague that it could prevent transgender students from removing winter coats in a classroom. The application of the law, the ACLU says, is “potentially limitless.”
But even ACLU arguments that appear to be a stretch deserve scrutiny. For instance, the ACLU complains that the MLRPA defines sex as “a person’s immutable biological sex as objectively determined by anatomy and genetics existing at the time of birth.”
“Verifying sex via genetics is truly bizarre,” the ACLU says. Really? Well, if you read the links the ACLUprovides, you find yourself in a world where genetic and anatomical anomalies abound, perhaps affecting as many as 4 percent of births, and at least six genetic makeups produce living humans. Moreover, science suggests, the brain has its own ways of determining gender identity not necessarily related to what the body indicates, a complication the MLRPA ignores.
It appears that if God intended for us to boil everything down to just two immutable sexes, then she has an awfully twisted sense of humor.
More to the point, the ACLU argues that the MLRPA provides that people who encounter someone of the opposite sex in a “protected facility” can sue the governmental entity that controls it if the government failed to take “reasonable steps” to keep the sexes separate.
Exactly what those steps might be is unclear. The only specific requirement is that the government post signs designating which sex may use the facility. The ACLU suggests the signs would need to say something along the lines of “Only persons whose immutable biological sex as objectively determined by anatomy and genetics existing at the time of birth may use this locker room.”
But suppose a public college has an openly transgender student. What obligation does the government have to ensure that student obeys those signs? For that matter, what obligation does the government have to determine what the student’s “immutable sex” was at birth?
The ACLU’s case gets a boost from Montana’s constitutionally protected right to privacy. When the Montana Supreme Court in 1997 tossed out the state’s law against sexual contact between people of the same gender, the court held that it was not the “judiciary’s prerogative to condone or condemn a particular lifestyle and the behaviors associated therewith upon the basis of moral belief.” This would appear to limit the state’s ability to require citizens to produce documents or lift their skirts to prove their right to use the restroom of their choice.
Finally, the ACLU argues, the ballot initiative drastically understates the cost of the measure. The ballot language says it would cost the state $545,699 for renovations and signage to comply with the law. The language should note that the act also imposes an unfunded mandate on local governments, the ACLU says, and exposes them to a new source of litigation. In addition, the MLRPA could cost the state $1 billion in federal funds because of Title 9 violations, and it could cost billions more in lost business, the ACLU claims.
A truly accurate ballot statement, the ACLU says, would read something like this: “The Transgender Discrimination Act would bar transgender people from using any public facilities (such as restrooms and locker rooms) that match their gender identity. It would prevent schools and other government entities from allowing transgender people to use these restrooms at all times, regardless of state laws, local non-discrimination ordinances, or individual circumstances. It would further allow individuals to sue the government for emotional distress and attorney fees if they come in contact with a transgender person of the same gender identity in any such facility.”
If you still want to sign the petition after all of that, go right ahead. Just remember that President Trump last week tweeted out a ban on transgender people from serving in the military. Whether his tweets indicated a serious policy change or just early-morning dyspepsia is open to interpretation.
But know this: Anybody who is willing to put on a uniform, give up safety and comfort, and face hostile fire in order to protect my private parts is welcome to use my restroom any time. No questions asked.
by David Crisp
Last Best News
An old newspaper joke says that the job of editorial writers is to go onto the field after the battle is over and shoot the survivors. The election is over; let the shooting begin.
♦ Cheapest shot: Democrats ran ad after ad pointing out that Greg Gianforte comes from New Jersey, as if failure to be born in Montana disqualifies candidates for public office.
I wasn’t born in Montana. Nobody in my family was born in Montana except my grandson, who is too young to vote. Most of my friends weren’t born in Montana. Perhaps a third of my college students weren’t born in Montana. How many of us do Democrats wish to alienate?
♦ Most pointless ad: Ryan Zinke ran ads criticizing Denise Juneau because some school bus drivers have criminal records. Point No. 1: Juneau is the state superintendent of public instruction, but state superintendents don’t hire school bus drivers; school districts do.
Point No. 2: The ad was based on 2013 performance audit by the Legislative Audit Division. In response to the audit’s findings, Juneau responded, “The OPI [Office of Public Instruction] will recommend to the Board of Public Instruction that it amend its administrative rules to require districts to perform criminal history background checks for school bus drivers.”
Oh. So an independent agency checked the performance of an aspect of government, found problems, suggested changes, and the elected official said, “We’ll get right on it.” Sounds like how government is supposed to work.
♦ Most pointless ad, runner-up: Both Gianforte and Gov. Steve Bullock have been featured in ads about a Montana sales tax. Good arguments can be made for and against a sales tax, but nobody was making them. Voters have resoundingly rejected a statewide sales tax, and no sane politician will try to get one passed. It’s a total waste of time.
♦ Most pointless ad, second runner-up: A pro-Juneau ad depicted Ryan Zinke as too big for his britches, with more interest in becoming House speaker or vice president than in representing Montanans. The ad looked good, and it made a more or less legitimate point. But did anybody out there think the election would turn on who is more ambitious?
So it was reasonable to hope that now-Rep. Zinke would prove a more flexible and pragmatic House member than his predecessor. But early returns are not encouraging.
Rep. Zinke issued two news releases last week touting votes on Obamacare. One was a feel-good vote that meant nothing. The other was cynical and potentially harmful.
Rep. Zinke’s first vote would prevent volunteer firefighters from being required to have insurance under Obamacare. Because the Internal Revenue Service counts volunteers as employees for some purposes, there were concerns that departments with 50 or more volunteers might be required to provide insurance.
Rep. Zinke’s vote, he said in a news release, would roll back “potentially life-threatening ObamaCare regulations.” Who could oppose such a sensible proposal? Literally, no one. The House voted 401-0 for the bill, just as it did on a similar bill last year. The only reason last year’s bill didn’t become law was because of congressional incompetence.
After the House unanimously passed the bill, Senate Democrats amended it to include extension of unemployment benefits. House members hate unemployment benefits nearly as much as they hate Obamacare, so the bill never became law.
But the Affordable Care Act never intended to require insurance for volunteers, and the Department of the Treasury has said it did not interpret the law that way. Chances that you will be struck by lightning as you read this column are greater than the chance that Obamacare ever would have required a single fire department to buy insurance for volunteers.
So when Rep. Zinke says he is “rolling back dangerous regulations in ObamaCare that could cause rural Montana fire departments to close down,” he is just blowing smoke. Stand down, firefighters. It’s not a real fire.
Rep. Zinke’s second vote may do real harm. The Save American Workers Act would change the employer mandate in Obamacare to apply only to employees who work at least 40 hours a week, not the 30 hours now required.
“Montana’s hard-working families cannot afford the part-time economy that ObamaCare is causing,” Rep. Zinke said in a statement. “Parents should not be forced to take a second job because the federal government cut their hours and wages, yet that is exactly what is happening.”
Actually, that isn’t happening, at least not in any significant way. According to the U.S. Bureau of Labor Statistics, the number of Americans working part-time for economic reasons has dropped dramatically since the passage of Obamacare. Total part-time hours have remained flat. If full-time hours do fall when the employer mandate kicks in, it is far more likely to happen because of Rep. Zinke’s vote than because of Obama’s bill.
Why? Because very few employees actually work a 30-hour work, but tons work 40-hour weeks. As one House member put it, changing the mandate would allow employers to avoid the mandate by cutting each employee’s hours by just 12 minutes a day. Employees would lose one hour a week of work, and 100 percent of their health insurance.
Republicans realize this. Their goal is not to save American workers. It is to make the mandate meaningless.
Well, so what? Rep. Zinke never would have survived the Republican primary, and possibly not the general election, if he had supported Obamacare. He’s just doing now what he promised he would do if elected.
Here’s why it matters: Someday soon, the Supreme Court will consider whether federal subsidies for health insurance under Obamacare apply only in states that created their own insurance exchanges. If the court strikes down subsidies in states, such as Montana, that refused to set up exchanges, then millions of people will see their insurance premiums skyrocket.
Many would lose insurance altogether. Some would go without healthcare or be forced into bankruptcy when they can’t pay for the care they need.
Congress could solve the problem in about five minutes by passing a bill clarifying that subsidies apply to all exchanges, not just those set up by states. But that would require making a decision based on facts, not just on ideology.
And the facts, by and large, favor Obamacare. Up to 12 million people now have health insurance who didn’t before. Medical costs are rising at the lowest rates in years. Jobs are being created at the fastest rate since the Clinton administration.
Moreover, many horror stories about Obamacare have not materialized. There are no death panels. Government has not taken over healthcare. In fact, more people have broader free-market insurance choices than ever. Three times as many Americans signed up under Obamacare by Dec. 15, 2014, than in a comparable period the year before.
A new survey from the Commonwealth Fund found that for the first time since the survey began in 2001, the number of Americans who said they had trouble paying their medical bills declined in 2014. About 10 million fewer Americans said they had trouble paying medical bills than said so just two years ago, at the beginning of Obamacare.
Rep. Zinke and his colleagues have a chance to make a real difference, not just sign off on meaningless and misleadingly named legislation. Let’s hope he is up to the task.