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Congressional Freedom of Speech

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As the U.S. House of Representatives voted recently to strip Marjorie Taylor Greene of all her committee assignments, I was reminded of two sections of the Constitution. The first is Article 1, Section 5, which reads, “Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a Member.” Clearly the Constitution gives the House the power to punish its own members for wrongdoing. Yet, at the same time, I also cannot help thinking of the First Amendment, which states, “Congress shall make no law…abridging the freedom of speech.”

Coming to terms with these two sections can be difficult. If members of one party say something that members of the opposite party find extremely offensive, should the opposite party be able to censure someone from the first party? What rights to freedom of speech are given to members of Congress and what have we seen historically?

Anyone who has ever taken a class from me has at least once heard me rant against the misunderstanding of freedom of speech. That clause of the First Amendment does one thing and one think only; it protects you from government censorship and perhaps prosecution.  It does not protect you from the consequences of your words. For politicians it could cost you an election, but not your freedom. You can say that Trump is a dictator or that Biden is senile, and government officials will not come kick down your door and take you away.

However, if you are in your workplace and rant about how your bosses are tyrants or senile, you may be fired. The First Amendment does not protect that speech. Not even all political speech is protected. If you wear a shirt that says “Make America Great Again” or “Black Lives Matter” at a workplace that has a policy against wearing political slogans, you can be fired. This is not a First Amendment Issue.

This is the most confused amendment in the Bill of Rights. The Founders did not intend to remove people’s responsibility for their actions or speech. They wanted to protect the people’s right to say what they thought, even peacefully protest the actions of their government. When passed, the Bill of Rights only applied to federal cases, not state ones, so, before the 1920s, the Bill of Rights actually had little effect on most people’s lives. Yet today, “freedom of speech” is thrown around like some sort of weapon every time anyone is criticized for their words.

Where I am torn is that it seems like the one place where there truly should be freedom of speech is in the Congress. The amendment literally says, “Congress shall make no law…abridging the freedom of speech,” yet is that not what is happening? Please understand that I am no way supporting the comments made by Rep. Green. What I am saying is the Constitution does not give freedom of speech only to statements we agree with or only for intelligent comments. No, it’s there for the exact opposite, for the outlandish and controversial things. I said I was torn. It does seem like there should be a line that our elected representatives do not cross. But the Constitution does not say that either.  The courts have weighed in on this and have deemed some speech is not protected, such as incitement to lawless action or child pornography, but conspiracy theories are not on the list. Maybe, especially with the House, it should be up to the voters if they think she has gone too far in the next election.

Having said that, there is precedence. In 2019 Republicans removed one of their own, Rep. Steve King of Iowa, from committees after he questioned why “white supremacy” was offensive. Even bigger was the 1954 censure of the junior Senator from Wisconsin Joseph McCarthy. There is no room for many details here, but McCarthy took advantage of American’s fear of communism to make himself powerful. He claimed to have a list of communists who had infiltrated high levels of government and the entertainment industry. He set up a committee to hold hearings to expose anyone supporting the communist cause. During the hearings he accused people of being communists without evidence to the point that it ruined their careers and lives. After four years he finally fell when he questioned the U.S. Army after they refused to defer one of his staff from the draft. With no evidence, he made several accusations on TV that finally showed him as the bully he was. With his fall from grace, the Senate voted 67-22 to condemn his actions and strip him of key committee membership.

There is one key difference between Steve King, Joe McCarthy, and Marjorie Taylor Greene. In the cases of King and McCarthy, Republicans punished their own as is tradition. With the Greene case, the Republicans condemned her comments, yet the Democrats (now the majority party), along with only 11 Republicans, did not feel the punishment was strong enough and stripped her of committee assignments. It is highly irregular to interfere with committee assignments made by each party. Though her comments were inappropriate and have been disproven in the courts, it might just be a slippery slope for the opposing party to start the practice of punishing their opponents for comments made, especially ones they made earlier in their lives. Some Republicans have even talked about retribution if they take over in 2022.  They point to racist and violent comments made by Democratic legislators. Is this really how we want Congress to spend their time?

Free democratic governments are hard. There is a reason historically there have not been that many successful ones. Freedom of speech is one of the things necessary for a free government. Yet freedom of speech means people will say things you despise. Rep. Green was elected by her state because of who she is. If her constituents deem her unfit, they are not bound by the First Amendment and have the opportunity to make changes next year.


Dr. James Finck is an Associate Professor of History at the University of Science and Arts of Oklahoma in Chickasha. He is Chair of the Oklahoma Civil War Symposium. Follow Historically Speaking at www.Historicallyspeaking.blog.

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Opinion

Executive Orders-Part III

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All Americans should be concerned about President Biden’s recent executive order on gun control. Try to forget for a moment, if you can, whether you agree with Biden or not and try instead to focus on the procedure. Biden is falling back on the two justifications that other presidents have used to skirt the Constitution, that Congress is not doing its job and that he is only following the will of the American people. However, is that statement true?  In some ways, yes. But, historically speaking, presidents were never supposed to represent the people’s will and sometimes non-action is action.

First, let’s look at the idea of representation.  Does the president represent the will of the people?  The answer is no.  That was never the Founders’ intention when creating the Constitution. Biden did win the presidency, but he only won the popular vote by 51.3%.  In other words, he really only represents about half of the ideas of Americans.  Even if the percentage was much higher, he represents the nation as a whole, not the people individually.  That is the job of Congress.  Congress is made up of both parties proportional to the political ideologies of the people.  Congress represents the will of the people.  Even if your representative is from a different party, congressmen represent all Americans virtually, so your ideas are represented – unlike the president who only represents his party.

This is exactly how the Founders envisioned it, but without the parties. The Constitution was written so that the president did not represent the will of the people.  If the Founders had wanted a popular vote to choose the president, they could have done so.  Instead electors are chosen to vote for the president. Although the people elect the electors today, that was not the case when the nation first started.  The point of the Electoral College is to actually separate the people from the president.  Congress is where there is a direct vote, at first only in the House, but today in both houses of Congress.  When a president makes an executive order, that goes against Congress. In fact, he is actually fighting the will of the people, not representing it.

Secondly, should the president act if Congress refuses to do so?  The answer is no.  The Constitution says, “All legislative Powers herein granted shall be vested in a Congress of the United States.”  No second clause stipulates, “or with the president in times of inaction or if things do not go the president’s way.”  This is American Government 101. Only Congress can make laws.

Thirdly, sometimes inaction is action. The president assumes that Congress is not doing its job if Congress does not pass the laws that he desires. All presidents who make this claim assume action is agreeing with them. In today’s particular case about gun control, however, Congress is not acting because it can’t.  Though most Democrats support gun reforms, not all Democrats do.  In other words, Congress is not making new gun restrictions because it does not have the votes in the Senate to pass any legislation.  The Democrats would need every vote, plus the vice-president to pass with a simple majority, let alone ten Republicans votes to pass the filibuster. The Democrats have neither.  There are some moderate Democratic senators who oppose the current gun control laws. In this case, the action is the Senate saying that it does not support current gun law proposals, which is different from the Senate doing nothing.

If the Congress, which represents the will of the people, decided against new laws and the president used an executive order to circumvent Congress to pass laws anyway, that makes the president a tyrant. The Founders were scared of a tyrannical president when they wrote our founding document, hence they put in checks and balances. Bypassing Congress goes against the very fabric of the Constitution.

Now that we have addressed procedure, let’s quickly address the content.  We need some common-sense gun laws. The mass shootings need to stop. However, the fact that one man and his pen can make such an important decision by himself, and against the wishes of Congress, is the reason we have the Second Amendment to begin with.  It was an armed citizenry that revolted against a tyrant in 1776. The Founders wanted Americans to have that right if needed again.


Dr. James Finck is an Associate Professor of History at the University of Science and Arts of Oklahoma in Chickasha. He is Chair of the Oklahoma Civil War Symposium. Follow Historically Speaking at www.Historicallyspeaking.blog.

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Opinion

The Last Shall Be First

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When I last wrote and referenced Black Lives Matter, I left out something crucial.

In the post-Vatican II Catholic Church there arose a concept termed “a preferential option for the poor.”  It means that God’s favor rests preferentially on the most injured people in any society. When I first heard the term, I asked what about me?  Doesn’t God love me?  I am not poor.

I have a brother and a sister and if one of them had a terminal illness I would pray for the one who is sick.  My preference would be the sick one.  Any parent would do the same. That does not mean that I do not love both of them equally.  It means the situation is not equal, not God’s love.

It is the same with Black Lives Matter.  White people hearing this phase rather naturally asked, “Don’t all lives matter? – Are you saying that my life does not matter?

All lives do matter, but history, especially recent history, tells us that some lives matter significantly more than others in many societies.  That is the essence of Black Lives Matter – the demand that white people recognize the profound cultural difference between the inherent value put on their lives, versus that of racial or other ethnic minorities.  Racism is a sickness, a disease and a crime, and its victims are black people and other minorities.  To continue to ignore racism’s consequences and its victims is to favor those who commit the crime of racism over the victims of that crime.

God’s favor rests with the victims of the crime of stripping the dignity from human beings, always has and always will.

Tom Howarth
Warren County, Virginia

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Lexington and Concord Battle: When the American Revolution began – A day to be commemorated by the American Patriot

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Two hundred and forty-six years ago on 19 April 1775, the “shot heard round the world” was fired at the battle of Lexington and Concord. A handful of American farmers, shopkeepers, clergymen, men, and boys engaged the British Army, whose objective was to take and destroy patriot property, powder and weapons.

Depiction of the Battle of Lexington by William Barnes Wollen, 1910, Public domain, via Wikimedia Commons

Eight of our men, American Patriots, were killed right away defending their rights. Fed-up with the status quo they were determined that they would no longer be molested, abused, brutalized, restricted to their homes, weapons taken, not allowed to speak freely, not allowed to elect their own government leaders… have no representation to determine their taxes, barred from earning a living… nor would they continue to have a standing foreign Army rule their communities and live in their homes, taken by force! They resisted and confronted their oppressors.

There were more than 1,500 British soldiers that they faced that day. A handful of Americans faced the British at dawn. By the end of the battle, nearly 4,000 civilian patriots had joined the fight. Hearing the gunfire they ran toward it. Not away from it. The enemy retreated. Forty-nine Patriots were killed 39 wounded, and 73 British Redcoats killed, 174 wounded. Among our leaders was a young doctor, Dr. Joseph Warren, the man for whom this county, Warren County, Virginia, is named. He arrived at the Lexington Green after hearing gunfire bringing his medical bag to minister to the dying and wounded.

Here in Warren County, Dr. Warren’s picture and history now hang in every school and government building. (I am honored to have had a small part in having him remembered in our county.) Two months after the Battle of Lexington and Concord, on June 17, Joseph Warren, age 34, would die a martyr’s death fighting at Bunker Hill, so that you and I could live free under a Constitution… a free people… not ruled by a tyrant King! We live free because our forefathers shed their blood for US! Let us never forget them.

The Rev. Larry W. Johnson
A.k.a. Liberty Man-Teacher and Living Historian of the American Revolution History
Front Royal, Virginia

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Clarifying the historical record on voting rights and modern politics

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James Finck’s article has some valid and helpful insights, but he is wrong on his overall argument regarding Voting Rights.  In sum, we need to be reminded that we are not living in 1789 or 1963.  Society and technology have made some advances since then.

Mr. Finck observes that Democrats for many years in the “Solid South” kept blacks from voting.  Let’s be clear.  Senator Richard Russell told President Lyndon Johnson that when the Voting Rights Act of 1965, forwarded after “Bloody Sunday” in Selma, Alabama, was enacted, the Democrats would lose the South forever.  Russell was right. Even currently, 56 years later with the exceptions of Virginia and Georgia, all the Senate seats in the states of the old Confederacy are now Republican held.

The Voting Rights Act of 1965 prevented changes in voting laws from being imposed with pre-clearance by the Justice Department.  The Act had its intended effect.  Blacks voted and many black citizens were elected to public office throughout the South.

Voting Rights became the Democratic Party’s issue while voter suppression has of late emerged as a Republican strategy.  As late as the administration of George W. Bush, Congress passed extensions of the Voting Rights Act. Ronald Reagan approved an extension. Rep. Bob Goodlatte was a moderate on voting rights in the Congress but toward the end of his career, as Chairman of the House Judiciary Committee, he would not even hold a hearing on the subject.

Did Bob Goodlatte change?  Perhaps, but what clearly changed was the Republican Party.  When the Supreme Court approved the Shelby decision striking down the pre-clearance provisions of the 1965 law, states primarily, but not exclusively, in the South rushed to impose voter suppression laws.

Donald Trump had it right when he said if everyone voted, Republicans would have a hard time winning elections.  Trump didn’t want people to vote in Atlanta, Detroit and Philadelphia because they had a high number of black voters.  Black voters heavily favor the Democratic Party.  How to beat them?  Prevent them from voting.

Some states have long used mail-in voting.  Military personnel deployed in foreign lands use mail-in voting.  Tom Paine never imagined that the U.S. military would be based in Iraq or anywhere else.  Yes, the Founders wanted it to be hard to vote.  Voting rights for women or blacks, unthinkable.  Mail-in ballots were never an issue until Donald Trump and the Trump Party made it an issue.  Voter fraud was rare, but it became the thin reed on which to base voter suppression.

Has Jim Crow left the building?  Most certainly not and that is why we need a new voting rights law that makes it easier, not harder to vote.  It is alarming that so many of our fellow citizens do not bother to vote.  Voting is the foundation of our democracy.  Those who undermine voting rights undermine democracy itself.

Tom Howarth
Warren County, Virginia

(Note: Tom Howarth holds a Masters’ Degree in Public Affairs from the Lyndon B. Johnson School of Public Affairs at the University of Texas at Austin; he taught constitutional government at Northern Virginia Community College; and is a former aide to the late Senator Frank R. Lautenberg, D-NJ.)

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Jim Crow Voting?

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Possibly one of the most important fights of this new century is being waged right now in the halls of Congress, in state houses across the nation, and with lesser significance on social media. The question is about voter accessibility and who has the right to determine it.

With COVID-19, voter accessibility was expanded and quite possibility responsible for Biden’s victory. The Democrats who benefited from COVID rules want to make those changes permanent on the federal level, while Republicans who suffered want to return to traditional rules through state governments.  President Biden weighed in last week, calling Republican attempts a return to Jim Crow.

It is worth taking a look at Jim Crow voting practices, but historically speaking, what seems ironic is during Jim Crow Democrats tried to keep Black Americans from voting booths while today Republicans are trying to force them to have to use them.

First things first. What does the Constitution say about voting practices? According to Article I, Section Four, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators.” In other words, voting laws are made state by state. The Federal government has passed amendments dealing with who can vote, but not how. Even then, as discussed in an earlier column, the Constitution does not say voting is a right, only that you cannot deny voting based on race, sex, or age. The Constitution does not prohibit states from blocking voters for different reasons.

Gender a good example of this. Before the passage of the 19th Amendment, states could choose for themselves if they wanted to allow women to vote. In fact, starting with Colorado, thirteen states, mostly in the west, gave women the right to vote before the Federal Government forced the rest to catch up.

Because states can decide who votes, they can also decide who does not, as long as the reason is not illegal. So, for Jim Crow, the 14th Amendment stated you could not deny anyone the right to vote based on their race, skin color, or condition of previous servitude (used to be a slave). What southern states did was establish poll taxes or education tests as requirements for voting. Since most Black Americans at the time were poor and uneducated, this legally stopped the vast majority of Blacks from casting a ballot. To be legal, states that wanted to stop Blacks from voting also had to stop poor and uneducated White Americans from voting as well. There is some suggestion that some poor whites were willing to give up some political power to retain white supremacy.

With this in mind, are new proposed voting laws in Republican states the same as Jim Crow laws? Biden clearly thinks so. It seems like at the heart of all the laws are two things: mail-in voting and voter IDs. On the surface, these new state laws are saying that in-person voting with an ID is the only way to stop voter fraud. Below the surface, however, they are saying that mail-in voting is allowing Democrats to go door-to-door to collect ballots from those who traditionally do not vote. Democrats are arguing that Republicans are trying to restrict voters, especially Black voters, by making them show up in person. This assertion is that it is harder for the poor to make it to voting stations and afford IDs, while Republicans claim voting is the only official activity allowed without an ID.

Is it like Jim Crow? Yes and no. Republicans are not trying to pass new laws per se. They are trying to retain the laws from before COVID. It is actually Democrats trying to change or keep new election laws. But yes, it is true, Republican laws will limit participation. However, the laws are really just a screen for the real issue that needs to be addressed. Should all people be allowed to vote? This is a difficult question because our instinct in a democracy is to say yes, but we also get the question confused with should all people have the opportunity to vote? Those are different questions.

The Founding Fathers did not find the question difficult. They believed that all people should have the opportunity to vote but that did not mean that all people should be able to. The Founders limited voting only to men who had a stake in society. This was shown by owning property or controlling their own means of survival. If you worked for someone else, then you were not truly free and so did not have voting rights. Property requirements did not deny citizens the opportunity to vote. It was seen and even hoped that all Americans could become property holders and hence vote, but it took some effort on the part of the person.

One other requirement we see across all thirteen states was that the men had to show up. They had to. Most early voting was done by voice. Early in the 19th Century, voters would turn in a piece of paper with their vote, but even then, the votes were published.  At the time, it was believed voters should openly support who they voted for. Even though transportation was more difficult in early America than today and they had a functioning postal service, part of a stake in society was the expectation of showing up.

No person who wants to vote should be denied the privilege to do so. Extending voting days to up to a week should guarantee access, yet the process, at least according to the Founders, should be done in person as intended. Thomas Paine once said, “What we obtain too cheap, we esteem too lightly.” Voting should not be easy. It should be important. As a bare minimum, voters should at least show up. As for Jim Crow, there are some similarities, but there are those who risked their lives in the 1950s and 1960s for the opportunity to vote in person. Let’s be careful not to compare them to those who want to be able to sit at home and mail in their ballot instead of having wait in line.


Dr. James Finck is an Associate Professor of History at the University of Science and Arts of Oklahoma in Chickasha. He is Chair of the Oklahoma Civil War Symposium. Follow Historically Speaking at Historicallyspeaking.blog.

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Opinion

Where are you this Easter season?

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Jesus said the greatest commandment is that; “Thou shalt love the Lord thy God with all thy heart, and with all thy soul, and with all thy mind” (Matthew 22:37). Jesus also said; “…Except ye be converted, and become as little children, ya shall not enter into the Kingdom of Heaven” (Matthew 18:3). In my letter (Jesus In Valentine’s Day), I suggest that in showing His great love for us by going on the cross, He is saying “Be Mine”; “Love me, too”! So, seeing Him there, where do you stand? God is asking where you/we are. He actually does know; so what He is REALLY asking is if you/we know!

In this regard, imagine a very young child sitting on a couch beside “Mama” while watching intently as a manly figure enters the room. A big smile appears and its little heart “jumps” with sheer joy; for this man is known as “Daddy”! Sitting down across from the couch, Daddy lovingly and adoringly observes his wife and child. And then it happens; His eyes meet with those of his “little one” and instantly, the child turns over on its stomach and slides down off the couch! He then begins to quickly crawl towards Daddy. The father, while watching his little darling, is wondering what the child is up to. Upon reaching Daddy, a hand grabs his pants leg and pulls to stand up. Daddy’s heart is then “captured” as he sees his child struggling mightily with both hands and feet to climb his leg! Still wondering what the child will do, Daddy helps his little darling onto his lap. And so, onto Daddy’s tummy, and the pulling at a shirt pocket to stand up. The child’s intent is now apparent, and there is a “swelling” in Daddy’s heart as two little arms reach around his neck and pulls him close. Tears of love and joy follow, for he hears his “little one’s” small, soft voice; although imperfectly and yet, unmistakably say, “I Love You Daddy!”

Seeing and feeling such a display of love, this father surely would willing LAY DOWN HIS OWN LIFE FOR HIS CHILD!

Folks, the way to get the attention of our Lord Jesus Christ is to love him! He first loved us, and besides commanding us to love Him; He loves to be loved!

Why love Him? There is a song that speaks of broken vows and the saddest words of parting; so nothing will ever be the same except in memory. This is the “picture” of what happened in the Garden of Eden, but because of His great love for us, He could not be satisfied with only memories of what used to be. Therefore, His desire to bring us back home took Him to the cross to die for us!

Can you see, hear, and perhaps feel, the anguish and pain from the cruel whipping and the nails driven into His hands and feet; His body covered by blood; and perhaps groaning as His arms are yanked from their shoulder sockets? His desire and intent is now evident; for we hear Him say; “Father Forgive Them…”!

So have you, will you, go to Him and tell Him that you love Him? And believe and trust Him as your Lord and Saviour? God is indeed asking, “Where are you this Easter season?”

Rev. Jess Shifflett
Front Royal, Virginia

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