Why Mr. Burris Won’t Go to Washington
by Mark Wilson, Editor
January 2, 2009
Roland Burris appears to be the one to fill Barack Obama’s sexy, well-toned shoes. Maybe. With Illinois Gov. Rod Blagojevich daring the Senate to do anything about it, what is the Senate to do?
The authors of Slate’s “Jurisprudence” column, Akhil Reed Amar and Josh Chafetz, believe that the Senate can stop Burris from taking office. For those of you following along at home, your relevant citations are Article I, § 5 and Amend. XVII. Oh, and don’t forget Powell v. McCormack, 395 U.S. 486 (1969). You’ll need that one later.
Prior to 1913, U.S. senators were chosen by state legislatures. Constitutionally, senators were seen as a liaison between the state government and the federal government; their election was too important to be left up to the people, who had their own representation in the House of Representatives, anyway. As might be expected, there was a lot of party wheeling and dealing that went on as potential senators exchanged favors in order to get the job. To sidestep the sleaze, many states enacted laws requiring their legislatures to appoint to the U.S. Senate the winner of a popular vote, effectively permitting direct election of senators.
The 17th Amendment finally permitted direct election of senators but with a twist: the “executive authority” of a state must call for a special election to fill a senator’s vacancy, but in the meantime, the state legislature must give that executive the power to name a temporary senator to the office in the meantime.
Amar and Chafetz argue that the use of the word “returns” in Art. I, § 5 is the key to this issue: “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members,” meaning each house of Congress can decide not to seat someone for one of those reasons. “Returns” in the 18th-century sense “involved a report of an appointment made by a sheriff or other official.” So, argue Amar and Chafetz, the Senate can just as readily exclude a member based on a corrupt appointment as it would based on a corrupt election.
Our friend Adam Clayton Powell, who had been duly elected to the House of Representatives in 1966, had been charged with misappropriating public funds. The House voted to deny him his seat based on these charges. Powell sued, alleging that the House couldn’t stop him from taking office, since he met all the “Qualifications” required of a House member (at least 25 years old, a U.S. citizen for seven years, and an inhabitant of the state he’s representing). The case is a little convoluted, since Powell was never seated in the 90th Congress to which he was elected. That Congress ended, but Powell was elected to the 91st Congress. The U.S. Supreme Court devoted about 90% of its ink to the question of whether or not it even had jurisdiction to adjudicate the issue. Lower courts concluded that they themselves did not have such jurisdiction, for a variety of reasons.
On the issue of whether or not the House had the power to exclude a duly-elected member, the court said it did not. It would be extremely dangerous, the Court said, to allow Congress to use the “Qualifications” clause to mean something other than merely raw qualifications, in this case a red herring to seat someone whom they felt was unseemly due to corruption charges. That would allow Congress to refuse to seat members who were chosen by the people. Appropriate relief, wrote Chief Justice Warren, would be for the House to initiate expulsion proceedings against Powell once the Congress convened.
The opinion, say Amar and Chafetz, emphasizes upholding the people’s choice, which doesn’t apply in the current Burris situation. But it does! Constitutionally, the governor acts in the people’s stead, for good or evil. What really should have happened is that the Illinois state legislature should have passed a bill stripping the governor of the authority to make the interim appointment. The legislature did not do that, however, partially due to Harry Reid and other Senate Democrats not wanting to risk losing the seat to a Republican in a special election. The U.S. Senate cannot make up for the lack of will of the Illinois legislature.
Certainly Senate Democrats are within their rights to refuse to let Burris caucus with them (although, Roland Burris can’t caucus with the Democrats because the person who appointed him initially demanded a bribe for the seat; Joe Lieberman can caucus with the Democrats, even though he actively campaigned against the Democratic presidential candidate to the point where he was stripped of his status as a Democratic superdelegate?). But I cannot see how excluding him from the Senate is possible. Sorry, Dems, you’ll just have to vote to expel him. You missed your opportunity.
Wilson makes a convincing case. I’d put the point somewhat differently, suggesting that the Senate Democratic leadership put their macho away and allow the Not-So-Honorable Rod Blagojevich to win this round. Blagojevich will almost undoubtedly be impeached and probably convicted and quite possibly join the line of jailed Illinois governors (less of a disgrace than it might be: Otto Kerner was a fine governor and excellent public servant, except for the corruption). Burris can note his age and promise to consider retiring in 2010, at which time he can remember that 73 is hardly old by Senate standards and he can run in what will be one hell of a primary and general election. And Illinois can have for now two senators, and the Senate can get to more important business.
I grew up in the warm, corrupt heart of the Chicago Democratic organization and am perhaps less “Shocked! I tell you shocked!” by Blagojevich’s scheming as such than by the crudity of it all. He seems to be following the logic of commodification to its logical end, which also often reduces to absurdity and the grotesque. Still, it’s clear so far only that he dreamed and schemed, not that he did anything illegal—and the dreams and schemes didn’t involve Burris. Other evidence will show up, and I hope Blagojevich is impeached, convicted, removed, and then tried and sent to jail. For now, though, amen to Wilson’s point: seat Burris—but expel him only if he did something really wrong, not just have the bad taste to accept Blagojevich’s appointment.
RDE
If I didn’t know better, this title would make me think this article was about a wayward high school football player or a kid stuck down a well. Calling full-grown black men “boy” is a hold over from the days of slavery and the Jim Crow South. Though hopefully unintentional, this title is racist, offensive and needs to be changed.
Yes, shortly after I wrote this title, I thought, “Hmm, maybe using the word ‘boy’ along with Roland Burris, a black person, could be considered offensive. Maybe I should change it.”
I thought about changing the title. It could be considered offensive. But I didn’t change the title.
But I did not mean it in a racial way. “Boy” in this instance is part of the title, not a word by itself. “What’s to be done with the [whomever] boy” is, I feel, a phrase used by people in authority standing around, stroking their chins with their hands, and wondering how they will use their power to fix a situation in which “the [whomever] boy” finds himself. In this case, we have Senate Democrats, standing around, keenly aware of their power as political elites, thinking what they believe to be very important thoughts about how they will resolve this problem. But, unfortunately, for all their power, there is nothing they can do. And yes, it is intentionally infantilizing, because Burris himself is also at the mercy of forces more powerful than he (but perhaps those forces aren’t as powerful as they think they themselves are). Even he doesn’t know if he will be seated.
I have never considered the Roland Burris issue to be about race. Ever. Not even once. Not even a little bit. I have not considered it to be about race any more than selecting Hillary Clinton for Secretary of State was about gender, or (initially) selecting Bill Richardson or Dr. Sanjay Gupta for their respective positions was is about ethnicity. In my evaluation of the Roland Burris issue, Burris was selected for his bullet-proof qualifications (former Illinois Attorney General? Ran for Governor twice? That’s dynamite); no one could ever dismiss him as a political hack or beneficiary of patronage. The controversy stemmed from Burris’ being named by Blagojevich, whose legitimacy to do anything is in question. Did Burris pay for his seat? We don’t know; everyone who has interacted with Blagojevich now has scandal contaminating them like a cheap cologne. Rahm Emmanuel had one conversation with the guy and then we spent the next week fretting about whether or not Emmanuel was in on the scheme. Has anyone ever suggested that Senate Republicans don’t want to seat Burris because he’s black? That a person is of a particular race does not mean that every subsequent decision that person makes is a consequence of his or her race.
To say “this title is racist, offensive, and needs to be changed” is not accurate. Perhaps the title could be considered “racist [and] offensive,” but is it a fact that this is the case? Not at all. Must a word, like “boy,” be unilaterally forbidden from use in certain contexts? At what point can we start using it in those contexts again, if ever? And who is to decide what words may or may not be used in those contexts?
All introductory classes in literary theory begin with a discussion of the intentional fallacy and the affective fallacy. It is wrong to attempt to divine the author’s intent when reading and critiquing a work. It is equally wrong to attempt to impose your own feelings about the work — how that work affects you — when reading and critiquing a work. The only thing that can be known for sure is what the text says. What does the text of my article say? Does it indicate racism? Except for a single word that could possibly be interpreted as racist, is there any other indication in the article above that I believe Roland Burris to be unqualified due to his skin color, or that I believe he is less of a human being than I am due to his skin color? And now, armed with this “extra-textual” information, do those conclusions seem likely?
To be honest, I thought the title was a little weird too. However, then I read the article and judged it to be innocuous when viewed in context and not in a vacuum. However, I’m not a dictator and am willing to let the final decision on whether to change the title to be based on the merits of each person’s argument. Therefore, James, if you still feel this should be deleted, then feel free to make a counter argument on this thread in response to Mark’s response.
I do encourage others to weigh in as well if you have any opinion on the matter.
I don’t want to offend people, but at the same time I don’t want to limit the ability of an author to express him or herself. The question is how to weigh each one while considering the context. (I refuse to view anything in a vacuum.)
Perhaps we may all come to a consensus that the title is completely fine. Or maybe the consensus will be that the the title not offensive in context, but yet we should still choose to alter it anyway because someone suggests a better title. Or perhaps another argument will prevail. I’ll let the arguments speak for themselves.
By the way, although I wish it wasn’t over a title of an article per say, I am happy that we’re having back and forth dialogue on this thread. We hope to see more dialogue between writers and readers (or some combination thereof) in the comments of articles as the site continues to grow.
Mark, I agree with a number of your points. One, the controversy surrounding Burris does not seem racial in nature. He is certainly no “affirmative action” candidate and he seems very well qualified. Blagojevich is his problem. Two, I didn’t find your article racist and generally agree with what you wrote.
However, I still believe the title shows poor judgement. Part of being a writer is being aware of the multiple ways in which words may be interpreted and taking them into consideration. In my mind, the harm or offense that a statement like this could cause must be weighed against how important it is to use the phrase. If it is indespensible even though it may offend readers, use it. But you haven’t made a compelling case for why the concievably racist title is so much better than any alternative. Why ‘What’s to Be Done with the Burris Boy?’ is so much better than ‘What’s to be Done with Roland Burris?’ (for example) is unclear to me. And in the end, I think that a needlessly provocative title steers readers away from the article and the website.
My opinion so far:
Good argument against title:
I find the cost-benefit argument compelling (maybe because I have an economic background eh’). This is a sound argument.
Bad argument against title:
However, I don’t buy into any arguments about the article title necessarily being racial in general or really all that controversial once you’ve read the article. In my opinion, these arguments buy into an older generation’s view of race. I think younger generations tend to see race differently, and I refuse to carry the baggage of older generations and be bound by their sins. (By the way, everyone debating this so far is in what I would call my generation. Therefore, this isn’t an indictment on anyone in specific. It’s not meant to be an indictment on any specific generation either.)
When I first saw this headline a few days ago, my immediate thought was “hmm…that article can’t be as racist as it seems”. So I clicked on it and, as it turned out, there was nothing racist or offensive about it, but the point is that I clicked it, in large part because of the potentially controversial title. So I don’t really buy the argument that the title will steer potential readers away.
That said, the title should still be changed not by another editor, but by the author himself. After reading Mark’s comment about the title I do understand what he was going for, but that is not made clear anywhere in the actual piece. So what the average reader (who does not read the comments) is left with is a bit of confusion. What’s this guy’s deal? He’s clearly not making a racist or even controversial point, but is he completely unaware of the meaning of his title? Like the author, I belong to a younger generation that would never use language like this is a racist sense, but older generations have.
What it comes down to is that while no one who has read the piece is accusing the author of being racist, but the title speaks to the author’s credibility as it seems to display a lack of understanding of how his it will be interpreted.
If I were Mark in this case I would do one of two things, I would either change the title or add a paragraph at the beginning of the piece that paints a mental picture of Harry Reid and other Senate Democrats who think highly of themselves standing around in some Senate chamber stroking their beards and adjusting their monocles while discussing what is to be done with that boy from Illinois. If I understand Mark correctly, that is what he was going for with the title, however, there is zero evidence of this beyond the title. Even if race was not an issue at all the title would still be a confusing one without that further explanation.
Glad to be a part of the debate, and by the way Mark, title aside, great piece. I enjoyed reading it and look forward to reading more.
I agree with the argument that the possible offense that the title could cause (and has caused) outweighs the title’s necessity. The title is not important — or necessarily relevant to — the story. For this reason, I have changed the title.
[...] most legislation will be a foregone conclusion. Of course, the Senate with its arcane rules and blue-blood past has always been the voice of idiocy and reason at the same time. This is not a new phenomenon. [...]