Of Men And Mice

In the 4th century B.C., the Greek philosopher Aristotle created two bodies of work, Nicomachean Ethics and Politics. Both deal with the question of what it means to be good on a practical level. Whereas the former work explores the connections and conflicts between personal happiness and virtue and what it means to live a “good” life, the latter raises the discussion to how these concepts apply to those charged with helping the community live a “good” life—in other words, politicians.

In Politics, Aristotle states that there are three general types of government, based on the number of people wielding power:

1) Monarchy – governance by one person

2) Aristocracy – governance by a few people, relative to the size of the community 

3) Constitutional Government – governance by many, a representative government 

He further argues that no type of government is inherently bad. For example, if a monarch is thoughtful and a true leader, and he unfailingly governs with the well-being of all his subjects in mind, he is the proverbial benevolent dictator. It is simply a matter of what laws are implemented, the motivation behind them, and whether or not those laws help those governed in their quest to live a “good” life. The idea is that, through ethical governance, people can go from merely surviving to striving for excellence, from being mice to being men.

All this depends on man being able to suppress his baser instincts. This is known in Judaism as the yetzer hara, the congenital evil instinct that drives him to put his wants and needs ahead of anyone and everything else. It is this instinct we see when a child refuses to share his toys, when he points to someone else after getting caught doing something wrong, and when he leads a group of hangers-on in bullying someone who is different. Most of us learn to tame this instinct, and to channel its energy in more productive endeavors; the desire to have becomes the desire to succeed.

In politics, however, there is an intrinsic danger, and that danger is power. Lord John Acton, a 19th century British historian, wrote “Power tends to corrupt, and absolute power corrupts absolutely.” According to Aristotle, each type of government has the potential to degenerate into its “evil twin”: a monarchy metastasizes into a tyranny, an aristocracy transforms into an oligarchy, and a constitutional government turns into a democracy. The corrupted form of each exists when those with power horde and abuse that power, then rely on fear, mindless obedience, or oppression to control the community. The common characteristic of these regimes is that their goal is to rule in favor of the governing body. The king is only concerned with his well-being. Those in the oligarchy are only interested in protecting their financial empires. And democracy is when a constitutional government becomes mob rule, when the hue and cry of the day is, “What’s in it for me?”

Trump rode to power because our constitutional government, one created by men who struggled with designing something that would give voice and representation to the disparate interests and concerns of a nascent nation, has devolved into a democracy. Governance has become all or nothing; for one interest to win, the other side must lose. Compromise is a dirty word. Trump promised his supporters that he was their champion, that he would take care of those who voted for him. He promised to subjugate those who were not like them, who, simply by virtue of being different, posed an existential threat. Once in office, he nominated for Cabinet positions the most rich white men in decades, with an average net worth of over 8 billion dollars. After he signed an ill-conceived and even more badly implemented travel ban, a federal appeals court affirmed the stay on the executive order despite his lawyers’ argument that a president has ultimate and unreviewable authority to issue orders. When questioned about his refusal to divest or his tweet against Nordstrom after they dropped his daughter’s line of products, he hid behind the claim that, as president, he is not subject to federal ethics laws.

In short, the constitutional government created by our Founding Fathers, men who fought for liberty from a tyrannical monarch, is now in the hands of a man who would be king, aided by an oligarchy of the very businessmen he railed against during his campaign, and supported by a minority of the country’s population who willingly run roughshod over anyone who is not like them. A thick vein of self-interest ties them together, but it remains to be seen whether this cord will bind them closer or end up strangling them. Their self-interests will inevitably clash; such is the parochial nature of self-interests. The saddest part is how we as a country were lifted from being mice to men over two hundred years ago, only to teeter on the verge of becoming mice once more.

Who Is Protected By The Constitution?

Lawyers from the Justice Department have filed an appeal to lift the stop order on the executive order banning entry into the United States from those holding passports from seven Muslim-majority countries for three months, refugees in general for four months, and refugees from Syria indefinitely. The main argument is that “an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application.” There are three questions:

1) Do legal residents who are citizens of the seven countries named in the ban have constitutional rights?

2) Do illegal aliens have constitutional rights?

3) Do refugees have constitutional rights?

The 14th Amendment states that “no 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 law; nor deny to any person within its jurisdiction the equal protection of the laws.” For legal residents, the amendment means that being denied re-entry if they were abroad when the executive order was signed is unconstitutional because the travel ban would deprive them of their property without due process of law. These are people who have created a life in the United States; it is where their homes and their livelihoods are. To prevent them from returning would render them homeless and possibly penniless. For illegal aliens, the amendment affords them, by virtue of their residence within the borders of the country, equal protection of the law, including constitutional rights. This is because the amendment states “any person within its jurisdiction”, not “citizens of the United States.”

For refugees, however, they are not citizens, legal residents, nor illegal aliens who are already living in the United States. So does the 14th Amendment, or any amendment in the Constitution for that matter, protect refugees from the executive order enacting the travel ban? Until a refugee has gotten past immigration at an airport or border crossing, they are not within the jurisdiction of the United States. It is actually the 1st Amendment that gives the refugees constitutional rights. The executive order suspended admission of all refugees but ordered the Secretary of Homeland Security “to prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality.” While the order does not explicitly ban Muslims, by naming Muslim-majority counties in the ban, then carving out preferential treatment for refugees who are a minority religion from those countries, the executive order established a preference of one or more religions over another. The 1st Amendment states, in part, that “Congress shall make no law respecting an establishment of religion.” While the the executive order was not created by the Congress, nor does it establish a religion per se, the amendment has been interpreted to mean that it is unlawful to discriminate against any religion, which is what the travel ban did. Furthermore, immigration law states that “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence”.

In summary, a broad range of people are protected by the Constitution, including those who are not citizens or may not even be in the United States yet. That is the beauty and wisdom that was established as fundamental law during the development of our country. For a single man to try to wipe that away with a stroke of his pen is deeply disturbing.