Tyranny Begins at Home: Promises of Liberty and Realities of Majoritarian Rule in the Secondary Civics Curriculum
“The most
dangerous foe to truth and freedom in our midst is the majority…the confounded,
solid, […] majority,”
H. Ibsen, An Enemy of the People, 1882.
John
Adams went to great lengths to justify having a government in the Massachusetts
Constitution. In Article VII, he wrote, “Government is instituted for the
common good; for the protection, safety, prosperity and happiness of the people;
and not for the profit, honor, or private interest of any one man, family, or
class of men” (MA Const. art VII). The 1780 missive was meant to justify a
clause enabling the people to alter their government when “their protection,
safety, prosperity and happiness require it” (MA Const. art. VII). For much of Massachusetts
history under Adams’ Constitution liberty and prosperity have remained elusive,
particularly for those outside of a gradually expanding majority. Beyond outlining
how the liberal language of equality clashed with the legislated will of the majority
in Massachusetts, the following post argues that exploring such tensions are
integral to creating an engaging, authentic civics education at the secondary
level.
One
of the essential questions around which I have constructed a senior level comparative
government course is whether the greater good should dominate individual rights.
At the international level, students engage with comparing the impact of “life,
liberty, and the pursuit of happiness” enshrined in the United States’ Declaration
of Independence with “peace, order, and good government” written into the
Canadian Constitution Act of 1867. In the first, individual attainment
dominates, while north of the 49th the emphasis is placed upon
collective relationships. For Canadians, such collectivist thinking has
resulted in universal health care, parental leave, broad support for public
education, and significant subsidies for post-secondary studies. The United
States, emphasizing the individual, has one of the worlds largest collections
of billionaires with Forbes
counting 724 in 2021 or 1.85 per million people compared to Canada’s 64 and
1.147 per million people respectively (K. A. Dolan, J. Wang, and C.
Peterson-Withorn, 2021).
The
United States, though, is a polyglot collection of political constructs where
subtle differences in the language of rights matter. At the Federal level, individual
rights are enshrined in the Bill of Rights and various Amendments. Through the
Bill of Rights individual Americans are guaranteed the free exercise of religion,
speech, the press, assembly, and petition. Similarly, individuals are permitted
to keep and bear arms, while the individual homes are protected from government
use or searches without a warrant. The individual has a right to a trial by a
jury of other individuals and, if found guilty, subjected to reasonable fines
and punishments. Finally, wherever legal doubt might exist, power rests with
the individual peoples. Expanding who should count as an individual has led to
several Amendments to the Constitution, perhaps most notably the XIV in which “not
state shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State deprive any
person of life, liberty, or property, without due process of the law; nor deny
any person within its jurisdiction the equal protection of the laws” (U.S.
Const. art. XIV, § 1). Of course, as G. Gerstle (2015) has argued, the paradox
of American government has been and continues to be the coercive powers of the states
over those not deemed individuals entitled to rights, particularly people of
color, Native Americans, women, children, and those with a host of disabilities
and impairments. Rights, in the United States, have been far from natural.
At
the state level, the rights of individuals are often enshrined in similar
language to Federal documents, subtle differences have had profound impacts,
perhaps indicating that Constitutions are more artfully subjective than their
defenders might acknowledge. For example, Article I of the Massachusetts
Constitution declares:
All
men are born free and equal, and have certain natural, essential, and
unalienable rights; among which may be reckoned the right of enjoying and
defending their lives and liberties; that of acquiring, possessing, and
protecting property; in fine, that of seeking and obtaining their safety and
happiness. (MA Const. art. I).
According to H. Silverglate (E. B. Herwick, 2016),
attributes liberty being “treated more broadly and more seriously” in
Massachusetts to the differences in language crafted by John Adams into the
1780 state constitution. The result according to Silverglate (Herwick, 2016) was
the abolishment of slavery in 1783 and the legalization of same sex marriages
in 2004 (interestingly, after Ontario, British Columbia, and Quebec).
G. Gerstle, though, cautions against
attributing too much to the words in state constitutions. Citing Massachusetts’
Blasphemy Laws, Gerstle concludes, “Police power allowed state governments to
engage in extensive regulation of the economy, society, and morality, in both progressive
and regressive fashions. It underwrote an American theory of governance that
was collectivist and majoritarian rather than liberal. In this theory, liberal
notions of individual rights played only a secondary role” (2015, p. 61). The
law in question condemns those “whoever willfully blasphemes the holy name of
God by denying, cursing or contumeliously reproaching God, his creation, government
or final judging of the world […] shall be punished by imprisonment in jail for
not more than one year or by a fine of not more than three hundred dollars, and
may also be bound to good behavior.” (MA General Laws, IV.I.272.36:
Blasphemy). In 1838, Abner Kneeland was jailed in Massachusetts under the law (Commonwealth
v. Kneeland, 1838) and in 1928 the state attempted to incarcerate Horace
Kallan, a political activist, for a speech entitled “Fear and Freedom: With Special
Reference to the Madness of Massachusetts” (Gerstle, 2015, p. 353, n. 1). Not
until Gitlow v. New York in 1925 was the Federal Bill of Rights,
including the freedom of speech, forcibly applied to the states, including
Massachusetts.
More insidious impositions upon individual rights
have been adopted and enforced under Massachusetts’ Constitution than
blasphemy, including eugenics and various sexual “deviancies.” When the United
States Supreme Court decided in 1927 that states could subject the “feeble-minded”
to forced sterilization, the majority decision cited Massachusetts’ precedents
that had allowed the incarceration of anyone deemed “feeble-minded,” including
women who gave birth out of wedlock and the indigently poor, to be indefinitely
imprisoned by the state. The result, in Massachusetts, was perhaps best
demonstrated by the Belchertown State School for the Feeble-Minded, which in
the 1970s became synonymous with brutality and barbarity (K. Anderson and R. N.
Hornick, 2020; A. Cohen, 2016; P. Lombardo, 2008). Two years after
Massachusetts abolished slavery, the legislature renewed a colonial law banning
sodomy. The law was the basis of the Commonwealth v. Snow (1873)
and was expanded in 1879 to include masturbation and sex toys. These and other
laws were gradually contested and overthrown by the Massachusetts Supreme Court
in the 1970s and the 1980s, but not until 1997 in Doe v. Attorney
General did the state cease to publish on sexual offense registries those convicted
of misdemeanor same-sex sexual offences (D. R. Pinello, 2003; M. C. Nussbaum,
2010; W. N. Eskridge, 2008; G. Painter, 2002). So, while judges, legislators,
and activists have re-interpreted in recent decades the state’s constitution,
they have done so because majoritarian rule has embraced inclusivity. The Massachusetts
Constitution only protected the rights that the majority would sustain.
The Secretary of State
for Massachusetts provides educators with a number of resources for how to
teach local and state governance to students. Included in this trove is a digital
children’s book titled, The Ladybug Story (W. F. Galvin, 1997),
which tells the story of Palma Johnson’s second grade class petitioning their
legislators to have the lady bug adopted as the state insect. In describing the
book, then Secretary of State Galvin quipped, “It shows how anyone with a good
idea can change the world a little bit” (Galvin, 1997). Perhaps, at the
secondary level, governance in the Commonwealth of Massachusetts should be approached
through the inherent tensions of John Adams’ promises of equality and
opportunity with the realities of majoritarian rule and—for some—tyranny. More
than an opportunity for a discussion of oddities—the state bird, the legal way
to fight a dual, the punishment for taking a lion to the movies, or the
legislative tussle for an official dinosaur—students studying governance should
understand what has been done in the name of their state and, more importantly,
what they can do to create a more perfect union.
References
Anderson, K., &
Hornick, R. N. (2020). Belchertown State School. Charleston, SC: Arcadia
Publishing.
Cohen, A. (2016). Imbeciles:
The Supreme Court, American eugenics, and the sterilization of Carrie Buck.
New York, NY: Penguin Books.
Constitution of the
Commonwealth of Massachusetts. (1780). Retrieved May 09, 2021, from https://malegislature.gov/Laws/Constitution#preamble
Dolan, K. A., Wang, J.,
& Peterson-Withorn, C. (2021). Forbes billionaires 2021: The richest people
in the world. Retrieved May 09, 2021, from https://www.forbes.com/billionaires/
Eskridge, W. N. (2008). Dishonorable passions: Sodomy
laws in America, 1861-2003. New York, NY: Viking.
Galvin, W. F. (1997). The Lady Bug Story. Retrieved May 09,
2021, from https://www.sec.state.ma.us/cis/ciskid/kidlbs/lbsidx.htm
Gerstle, G. (2015). Liberty
and coercion: The paradox of American government from the founding to the present.
Princeton, NJ: Princeton University Press.
Herwick, E. B., III. (2016,
June 21). 4 things worth knowing about The Massachusetts Constitution, which is
236 years old. Retrieved May 09, 2021, from https://www.wgbh.org/news/2016/06/21/local-news/4-things-worth-knowing-about-massachusetts-constitution-which-236-years-old
Lombardo, P. A. (2010). Three generations, no imbeciles:
Eugenics, the Supreme Court, and Buck v. Bell. Baltimore, MD: Johns Hopkins
University Press.
Massachusetts General Laws, IV.I.272.36:
Blasphemy. Retrieved May 09, 2021, from https://malegislature.gov/Laws/GeneralLaws/PartIV/TitleI/Chapter272/Section36
Nussbaum, M. C. (2010). From disgust to humanity: Sexual
orientation and constitutional law. New York, NY: Oxford University Press.
Painter, G. (2002). The Sensibilities of Our Forefathers:
The History of Sodomy Laws in the United States. Retrieved May 09, 2021, from https://www.glapn.org/sodomylaws/sensibilities/massachusetts.htm
Pinello, D. R. (2003). Gay rights and American law.
Cambridge, MA: Cambridge University Press.
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