People the Barricades! We Need a Pronoun Revolution

Pronouns were once only a pip pesky. She, her, hers went together. These pronouns all referred to a single person. He, him, and his likewise. They, them, theirs referred to more than one person. “You” presented the only problem since it was both singular and plural. The southernism “y’all” makes some sense.

Pronouns after singular nouns of indeterminate gender, however, do present a problem. Grammarians would say that this sentence is correct: “A writer must work his ass off to make a living.” Of course, women are writers, and the sentence does not seem to include them. Even so, when I first learned this element of grammar, I was told to use “his” in such a sentence because “his” was no longer male in this context but encompassed both genders.

That may be what grammarians taught, but that was not always the instinctive response to the sentence. It takes some mental effort to include females in the collection of people who are writers when “his” is used, while the notion of male writers is an instinctive reaction to the sentence. Of course, the sentence could say, “A writer must work his or her ass off to make a living.” This removes the gendered ambiguity, but a price is paid by producing a clunkier sentence. (And why is it that the phrase is almost always “his or her” and seldom “her or his”? Is it because we are used to males taking precedence?)

The solution for this problem is relatively easy. Make the singular nouns of indeterminate gender plural. “Bakers want their bread to be savored.” “Writers must work their asses off to make a living.” Inclusive, clear, and without thuds.

The similar problem with indefinite pronouns is harder to solve. These include anyone, everyone, no one, none, everybody, someone, each. Grammarians maintain that all indefinite pronouns are singular, and both these sentences are grammatically correct: “Everyone should bring his own beach towel,” and, “Everyone should bring his or her beach towel.” However, “his or hers” brings that inelegance to the injunction, and the universal “his” not only is not inclusive, it introduces an ambiguity. Will towels be provided for the females coming to the clambake?

Many good writers are rejecting the fuddy-duddy grammarians and now follow an indefinite pronoun with a plural pronoun. “No one wants their advice ignored.” “Everybody should bring their own beach towel.” I admit that since I was taught under the old grammatical regime this still grates a bit on my sensibilities, but it is a good solution. When a grammatical rule prevents a better, clearer formulation, the grammatical rule should bend, and our language will improve. And as good writers and speakers increasingly use a plural pronoun after an indefinite one, the jarring note that it produces in a few of us will soon disappear.

However, there is another pronoun problem for which I have not found a good solution. Some pronouns—I, me, you, they, and their companions—are not gendered, but others are—he, she, him, her, and their companions. The gendered pronouns, however, are only binary—male and female. What pronouns, then, should be used for the sizeable portion of the population who are neither male nor female, who are nonbinary?

I have a personal stake in this. The person whom I referred to on this blog as “the daughter” is nonbinary. Although this blog is titled “Amelia’s Dad,” that child is now called AJ (and I need to change the blog’s title, but my limited skills have not so far found how to make the change efficiently to “AJ’s Dad.”)

I wrote a recent post about AJ and me. In it I referred to AJ as the nonbinary progeny and abbreviated that in the post as the NBP. I was trying to be cute, but I also like the ring of NBP partly because it sounds much like MVP. In the post, it was all right to use non-binary progeny and NBP because it was clear to whom (yes, I am part of the declining population who still uses “whom”) I was referring. In ordinary discourse, this does not work. Few of my conversational partners would know that NBP referred to AJ.

(concluded July 1)

George and Gay Pride (concluded)

I had a fair number of dinners with his gay friends after George told me that he was gay. They were perfectly nice, but it was all somewhat sad.  George was not part of a chic or sophisticated gay life. The talk was basically about drugs and who was hot (which required being young), but undertones of fear often came through. They lived in the shadows, in compartments. I heard even fifty-year-olds voicing a concern that their parents would find out about their lives.

George, I was convinced, wanted something more than he was getting out of this gay life. In the straight world, he did not acknowledge all of his life. In his gay compartment, however, it was almost all talk of sex and drugs while he also wished to talk about politics or baseball or TV or movies. That, however, was not his group, and George was compartmentalized, too. In a world where few could openly acknowledge they were gay, he seemed to have no way to meet new gay friends that had wider interests.

When I left the job, I did not see George regularly. Ours was the kind of friendship that needed the shared stimulus of work to continue our closeness. We still did have an occasional dinner, but our conversations now were often about a darker world enveloping George and his friends. The AIDS epidemic had hit. As we walked down the Village streets, he would see someone and say, “His lover died last month.” “His lover died six months ago.”  George had been to several dozen funerals in the last year. He told me about the AIDS death of former colleagues of ours, people whose sexuality I had never thought about. Not surprisingly, a depression hung over George and his friends.

And then George got the disease. We had dinners a few times after that. He was quite accepting even though he knew he was dying, and with the hospital bedsides he had attended, he was aware how awful the death from AIDS was. Even so, he did not seem to be sorry for himself. He almost seemed grateful for what awaited him. As death approached, George’s one true concern was that he had had unprotected sex with someone, and he kept trying to convince himself that it had happened before he had been diagnosed.

George accepted that he was gay. He knew that is who he was. He knew it was not something he had chosen, but growing up when he did, he also seemed to accept a certain self-hatred because of who he was. As death approached, he wanted that self-hatred over. Stonewall had happened, but the gay pride movement had barely started, and George was not part of it.

Much has changed in the decades since George told me that he was gay. Some of it has been personal. Other men have come out to me as gay. I have looked back and realized that friends I had were gay. But society has also made changes. As more and more people lived openly as gay or lesbian, more and more of the rest of us realized those we love and respect include non-straight people. Many of us have become more accepting and less fearful of those whose sexualities differ from the majority in the country.

Laws have also changed. Gay sex is no longer a crime. (Those who rail against big government, of course, should applaud this change. What could be more the sign of Big Brother than mandating what you can’t do between consenting adults in private?) Same-sex couples can get married and more often are treated similarly to heterosexual couples. I think back to George’s time when I knew a same-sex couple who had been together for over twenty years, longer than many marriages I knew. One got injured. His partner was not allowed in the hospital room because he was not a “relative.”

Of course, the world has not shed all its prejudices about gays and lesbians. Regular reports reveal attacks on people around the country because of their sexuality. Some “Christian” ministers call for the execution of gays, and more subtle discrimination, from churches to jobs to friendships, still abound. And, of course, many foreign countries have not come even as far as we have.

Even so, I wish that George had lived into a time when he would have seen some of these positive changes. I don’t how, if at all, the possibility of marriage would have affected his long-term relationship that fell apart, but I do know that I would have loved to hear George’s descriptions of his participation in a Gay Pride parade. I would have loved it for George not only to acknowledge his sexuality but to have had the chance to celebrate being gay.

George and Gay Pride

I don’t remember telling any, but I would not be surprised if I had. Surely I heard gay jokes, although back then they might have been homo, or possibly fag or pansy jokes. I do remember being with a group yelling what I am sure many thought were witty remarks at an effeminate boy in our high school. I was mute. If they would have been anti-Semitic or racial comments, I might have objected, but I did not try to stop the not-completely-understood homophobic remarks. This is not one of my proudest childhood memories.

Mostly, however, in my childhood and beyond, as far as I knew, gays did not exist. This changed when I became a public defender and I met gays. Some were gay prostitutes whose clients seemed often to be truckers from New Jersey who drove through the Lincoln Tunnel to Manhattan. As with other prostitutes, I wondered about their lives and could not imagine that theirs was a satisfying existence.

A few times I learned a client not charged with prostitution was gay because his sexuality was integral to his defense. The charge might have been robbery or burglary, and the client would say that he had been in some sort of homosexual relationship with the supposed victim, who often had a respectable status or job. The defendant would claim that he had been promised money or other goodies from the complainant. The pledged largesse was not forthcoming, and the client would say that he taken money or a TV out of the complainant’s home, and he was only taking what he was due.

I remember my jail visit the first time I represented someone in such a case. The client gave me his version of the events telling me he was gay and that the complainant was a closeted, fearful gay. The client seemed eager that I understand better. He was dressed in prison garb. He said, “I want you to see how I really look.” He pulled out a picture of himself in drag with full makeup. “This me. Don’t I look pretty?” I did not know how to respond. I had seen Milton Berle and other TV comedians dressed up in female clothing. I was always amazed at what seemed to be the unrestrained, raucous response of the studio audience upon seeing a man in woman’s clothing. I just thought it was stupid. Now, I was holding a picture of the person sitting across a metal table from me who was dressed in drag. I did not know how to respond. I knew that it was not funny. I knew I was uncomfortable (but why?). I think I mumbled “Yes” in response, and I thought that my 1960s boyhood in a small midwestern town had not really prepared me for this.

The gay men I defended all fit into a prejudice I held without even thinking about it. Homosexuals were outsiders. They stood apart from my “normal” society. George changed that.

George, another public defender, was my office mate in those public-defender days. We got friendly by talking across our desks about cases, defendants, prosecutors, judges, and our colleagues. Comfortable with each other, we became friends outside the office. For several Thanksgivings the spouse and I went to his mother’s house. There was a lot of scotch and new traditions. George was Lebanese-American. We did have turkey, but only after many Middle-Eastern dishes. The most memorable was beautiful raw lamb–which George’s mom would only buy from one particular butcher–drizzled with olive oil.  This took me back to my childhood.  My family had no idea what steak tartare was, but we had as a regular treat what we un-euphemistically called raw hamburger. I loved it on rye bread, topped with uncooked onion and much black pepper. And I found that I loved raw, ground lamb, too.

After a couple years of friendship, George told me that he was gay. Four decades ago, this was a huge deal.  George, who was nearing forty, said that I was the first straight person that he had come out to, and he was the first person I knew, other than those clients, who acknowledged being gay.

The spouse and I joined George again at his mother’s for Thanksgiving a few weeks after his announcement to me. Unbeknownst to me at the time, George picked that holiday to tell his mother and brother about his sexuality. I could tell that something was different. The friendly, bantering family atmosphere to which the spouse and I had been welcomed was now quiet, sullen, and tense.

George later told me his mother was shocked when he first told her that he was gay, and she refused to believe it. However, over time her love for her son won out and she came to some sort of acceptance.  The brother, on the other hand, could never accept who George was and basically disowned George from that day on. I don’t think that the two ever talked again.

George, who had hidden his life from me for the first years that I had known him, now welcomed me into more of his activities. I hung out with him near his apartment at various Greenwich Village gay spots, which early in the evening were like any neighborhood restaurant or bar—guys shooting pool or laughing over a beer. Later at night, however, the places often transformed into identifiable gay places. George would gladly introduce me around almost as if he were happy to show off a straight friend to those who kept hidden their sexuality from those who were not gay. These men were friendly, but I was often a bit uncomfortable. Often sexual images that made me uncomfortable were projected on the walls, drugs were prevalent, and George’s friends were uncomfortable themselves in talking to a straight man. (Once or twice, the spouse went to these spots, too. When a bartender would spot her, he would embarrassedly turn off the projector although the slide shows of good-looking men sucking each other’s dicks made her much less uncomfortable than they did me.)

(concluded June 26)

Born Between 1925 and 1955. Hooray? (concluded)

My guess is that whoever wrote the chain email saying how lucky it was being born between 1925 and 1955 was a straight, white male. That golden period might have been described differently by a black person. We might have heard about Jim Crow, Emmitt Till, lynching, inferior schools, job discrimination, public accommodations discrimination, the Green Book, Rastus jokes, and so on.

Women might also have presented some other facets of these golden generations. I was raised with the notion that I could be and do anything I wanted that my talent and effort allowed. Many girls during that time were raised with the notion that they could do anything as long as it was being a homemaker, a schoolteacher, or a secretary until they, at last, got married. They knew that they had to suffer sexual harassment and senseless restrictions on their dress. In my day, girls could not wear slacks to school. We all walked to school in Wisconsin winters. To avoid frostbite, the girls wore pants under their skirts to get to school and then had to find a modest way to take them off to store them in their lockers until day’s end and the trek home. I wonder if they feel nostalgia for this part of their youth.

And I doubt that the five, ten, or twenty percent of us who are not straight wax nostalgic for that golden period.

I am not trying to suggest that everything is better now, and I recognize that it is natural to think about the good old days. I certainly miss aspects of my childhood, but there has never been a time when everything was wonderful. A friend, a former marine, responds to the slogan “Make America Great Again” by asking, “When was this country ever great?” He believes that the widespread faith in America’s exceptionalism distorts our history. Pick a time when you think our country was great, and I can tell you about the flaws that existed along with the positives. 1776 or 1789. Both north and south then benefited from slave labor. The Civil War. As if any of us would wish to have lived through that period. Was the Gilded Age great with its excesses that led to a now mostly forgotten but long-lasting depression? How about the 1920s with grinding poverty in much of rural America? The 1950s and 1960s with its bombings of churches, homes, and institutions? The 1970s with the hatred and divisions of the Vietnamese War?

Too many Americans have an unjustified and ahistorical faith in this country’s exceptionalism. Too many have the sacrilegious view that we are somehow God’s chosen. H. Richard Niebuhr was right when he said in The Kingdom of God in America, “The old idea of American Christians as a chosen people who had been called to a special task was turned into the notion of a chosen nation especially favored.”

When we see ourselves as chosen, we serve neither God nor man. The true patriot should be seeing the good and bad in this country, trying to preserve the good but also trying to make the bad better. We should be striving to make this country greater, but that can only be done if we recognize what needs to be changed, and that requires honesty about our many flaws.

Of course, there is a flip side to this. Many of the students in the class I recently taught seemed to think nothing was positive about this country. Without recognizing what is right and good about this country, they can’t conserve what needs to be conserved.

Both groups need a proper perspective about this country, and often we seem to fail in that basic task.

And, oh yes, that Jay Leno quote near the end of the email that had him saying, “With hurricanes, tornados, fires out of control, mud slides, flooding, severe thunderstorms tearing up the country from one end of the country to another, and with the threat of bird flu and terrorist attacks, are we sure this is a good time to take God out of the Pledge of Allegiance?” I wondered if he had said that especially since there have been no recent controversies about the Pledge. So, of course, I googled.

I  found that the chain email has been appearing for at least three years and that the Leno quote had closed out a different column that urged Americans not to be so negative about the country. The column was written in 2008. Other sources indicated that Leno gave the quoted question as part of a monolog in 2006 when there was some controversy over the Pledge, but, of course, Leno uttered it as a laugh line. That was the point to his Tonight Show monolog.

Perhaps the comedian would see the irony that his piece of humor was followed by the email’s closing passage: “For those who prefer to think God is not watching over us, go ahead and delete this. For the rest of us please pass this on.” Hurricanes, tornadoes, mud slides, and the like are often referred to as acts of God. Even though He has visited death, destruction, and fear, we should believe that God is looking over us during those acts of His. Now that is truly an act of incredible faith.

Born Between 1925 and 1955. Hooray? (continued)

The chain email claimed that it was great to be born between 1925 and 1955. I was a little surprised at that starting date. Surely for many Americans it was not great to be ten years old during the Great Depression. Life then was hardly a succession of picnics on the grass. Instead, there was a Dust Bowl, widespread malnutrition, no running water and outhouses for many, houses lost to foreclosures, work at an early age, and unsafe working conditions if work could be found. I for one am happy to have been born a generation after 1925.

I also knew that death felled infants in those golden decades more than it does now. CDC statistics report that deaths in the first year of life were 29.2 per 1,000 live births in 1950. In 2015 that rate was 5.9. Similarly, the rate of deaths under the age of nineteen have dropped precipitously since the email’s “golden years.” Some things were certainly better if you were born after 1955.

Childhood diseases have also dropped. Those who just remember a carefree childhood during that lauded period must have forgotten about polio, which struck about 58,000 people in the U.S. in 1952. I remember that public swimming and wading pools were closed because these childhood favorites were thought to spread the disease. Fear of polio only subsided with an effective polio vaccine that became available in 1955. By 1961 only 161 new polio cases were recorded in the U.S., with the disease soon eradicated. And, of course, vaccines have largely eliminated other childhood diseases. The number of measles cases in the 1940s and 1950s averaged above 500,000 per year. After the measles vaccine was introduced in 1963, the number rapidly dropped to the hundreds. Being born in 1965 had some advantages from birth a decade earlier.

Morbidity from other causes has also declined. In 1950, when the U.S. population was 152 million, there were 33,186 deaths in car accidents, for a rate of 21.794 per 100,000. Per 100 million vehicle miles traveled, the rate was 7.24 deaths. In 2017, we had 37,133 vehicle deaths with a population of 326 million for a rate of 11.40 per 100,000, and the rate was 1.16 per 100 million vehicle miles.

Of course, a point to this email was to be amusing and nostalgic, but it was also a vehicle to complain about government and regulations as it did when it referred to those “who had the luck to grow up as kids before the lawyers and the government regulated so much of our lives for our own good.” Perhaps that is why the writer ignored the many ways things are better now than in the distant decades. The writer would not have wanted to acknowledge that the reasons for the good news that the rates of childhood deaths and diseases are lower now than when I was born include government regulation that has brought us safer cars and hospitals and vaccination requirements. Another has been government funding that has aided medical and other safety research.

The government has done much to make life better since I was a kid, but these actions seldom produce warm memories even among those of us who do realize that the government has had a hand in making lives better. I remember standing in a long line to get polio inoculations. I am not nostalgic about those shots, but I also remember the pleased look on my mother’s face that her children would no longer face polio. (I am also not nostalgic for the part of a family trip that took us past paper mills. The Fox River where the plants dumped their waste was covered with unbroken mounds of yellowish, scummy foam that emitted a nauseous smell for miles. That stream is now cleaner. I wonder why that is? Do you really think that unfettered capitalism has given us a better environment?)

I certainly don’t believe that all that government does is good, but apparently even the composer of the email may, perhaps inadvertently, sometimes think good of government. The email thanks God “for all . . . the wars won,” but surely government has a hand in the winning, and losing, of wars.

On the other hand, I don’t know what victories the Almighty (and the government) was being thanked for. If you were born in 1945, the United States has been in a war for more than a third of your life—Korea, Vietnam, Afghanistan, Kuwait, Iraq—with many lesser military actions such as in Cuba, the Dominican Republic, Grenada, Panama, Nicaragua, and elsewhere. The writer can’t be referring to any of these for we “won” none of those wars. On the other hand, many who were born in that golden time died in those military actions. Of course, the email was only addressed to those who survived the golden era.

(concluded June 21)

Born Between 1925 and 1955. Hooray?

A friend, who is not a conservative, told me that he had been placed by an acquaintance on the distribution list for conservative chain emails. After he described a few of the emails, I said that I was curious and asked him to forward them to me. Many are overtly political, frequently with factual mistakes that a reasonably educated ninth grader would notice. Some are humorous, but even with these the urge to politicize often can’t be resisted, and a conservative slant is appended.

The friend recently forwarded this chain email:

Subject:  BORN between 1925-1955


The best years to be born in the history of Earth & we got to experience it all.  Thank God for all the times, the adventures, wars won, technology developed.  Generations after future generations will never experience what we did.  What generations we turned out to be.




Our Lives are LIVING PROOF !!!    

To Those of Us Born 
1925 – 1955:     
At the end of this email is a quote of the month by Jay Leno.

If you don’t read anything else, Please read what he said.       
1930s, 40s, and50s !!   
First, we survived being born to mothers who may have smoked and/or drank
 While they were pregnant.   

They took aspirin, ate blue cheese dressing, tuna from a can, and didn’t get tested for diabetes.  

Then, after that trauma, we were put to sleep on our tummies in baby cribs covered  with bright colored lead-based paints.   
We had no childproof lids on medicine bottles, locks on doors or cabinets, and, when we rode our bikes, we had baseball caps, not helmets, on our heads.  

As infants and children, we would ride in cars with no car seats, no booster seats, no seat belts, no air bags, bald tires and sometimes no brakes.. 

Riding in the back of a pick- up truck on a warm day was always a special treat.
We drank water from the garden hose and not from a bottle. 

We shared one soft drink with four friends, from one bottle, and no one actually died from this.  

We ate cupcakes, white bread, real butter, and bacon. We drank Kool-Aid made with real white sugar. 
And we weren’t overweight.  
Because we were always outside playing…that’s why!  
We would leave home in the morning and play all day, as long as we were back when the streetlights came on.   
No one was able to reach us all day
And, we were OKAY.

We would spend hours building   
Our go-carts out of scraps and 
then ride them down the hill,

Only to find out that we forgot about brakes. After running into the bushes a few times, we learned to Solve the problem. 

We did not 
Have Play Stations, Nintendo   
and X-boxes. There were   
No video games, 
No 150 channels on cable,    
No video movies 
Or DVDs,    
No surround-sound or CDs,     
No cell phones,
No personal computers,   
No Internet and 
No chat rooms.       
And we went 
Outside and found them!   
We fell out of 
trees, got cut,    
Broke bones and 
Lost teeth,    
And there were 
No lawsuits    
From those accidents. 

     We would get 
Spankings with wooden spoons, switches, ping-pong paddles, or just a bare hand,
And no one would call child services to report abuse.

     We ate worms, 
And mud pies    
Made from dirt, 
The worms did 
Not live in us forever.   
We were given
BB guns for our 10th birthdays, 
22 rifles for our 12th, rode horses,
made up games with sticks and
tennis balls, and
    -although we were 
Told it would happen- we did not put out very many eyes.
We rode bikes 
Or walked to a friend’s house and knocked on the door or rang the bell,  
or just Walked in and talked to them.


Little League had 
And not everyone 
Made the team.    
Those who didn’t 
Had to learn    
To deal with 
Imagine that!! 

The idea of a parent  
Bailing us out
If we broke the law
was unheard of ..
They actually sided with the law! 

These generations have 
Produced some of the best risk-takers,    
Problem solvers, and 
Inventors ever.   
The past 60 to 85 years  
Have seen an explosion
of innovation and new ideas.
We had freedom,
Failure, success and responsibility, 
and we learned

How to deal with it all.   

   If YOU are One of those born    
Between 1925-1955,CONGRATULATIONS!  

  You might want 

to share this with others who have had the luck to grow up as kids

before the lawyers and the government regulated so much of our lives for our own good.  
While you are at it, 
forward it to your kids, 
so they will know 
how brave and lucky 
their parents were.  
Kind of makes 
you want to run through the house
with scissors, doesn’t it ?
The quote of the month  
by  Jay Leno:  

     “With hurricanes,  tornadoes,

fires out of control, mud slides, flooding, severe thunderstorms

tearing up the country

from one end to another, and with

the threat of bird flu and terrorist

attacks, are we sure this is a good time to take God out of the Pledge of Allegiance?”



For those who 
prefer to think that God is not 
watching over us…
go ahead and delete this.
For the rest
 of us…..  
please pass this


I read a lot of this with a smile, for I was born in that lauded time. I rode my bike without a helmet and didn’t have to show up at home until the evening meal. But I also knew that a lot was left out of the halcyon description. I read the email again and noticed it said: “To all the kids who survived the 1930s, 40s, and 50s!!” Of course, it could not address those who were dead, but that salutation got me thinking about the childhood deaths and diseases of those born between 1925 and 1955.

(continued June 19)


On yet another Bloomsday, I remind myself that I am in the tiny minority who have read James Joyce’s Ulysses twice. And that I also am in the huge majority who don’t have a bar of lemon soap’s understanding of the novel.


Joyce’s Ulysses was banned for a long time in the United States and elsewhere for being obscene. Did that mean there were people who were turned on by the modernist novel?


The NCAA (National Collegiate Athletic Association) holds the WCWS (Women’s College World Series.) Doesn’t seem right.


My old corner mailbox was swapped for a newer version. I found this notice on the still-pristine receptacle: “For security of your mail, avoid putting mail in the box after last posted pick-up time.” No matter when I put the envelope in the slot, I am simultaneously inserting it both before and after that last listed time. What, then, should I do? And is this notice implying that there are pick-up times that are not posted?


The sign said, “One Stop Truck and Boom Repair.” I looked for, but did not find, any place that was a two-stop truck and boom repair shop.


I jokingly told my thrice-married friend that I would teach him all about women. He responded, “I know a lot about women. . . . I just don’t believe it.”


Have you ever wondered what Kellyanne Conway does all day?


When I said that the beachgoers were formicating, she thought that I said something dirty.


“He’s a prince.” Doesn’t sound derogatory. But compare: “She’s a princess.”


Johann Wolfgang von Goethe said: “If I blunder, everyone can notice it; not so, if I lie.” Hasn’t Donald Trump definitively disproved that?


In a newspaper column, the writer speculated about why the recent anti-abortion laws passed in many states have wiped out the longstanding exceptions for rape and incest. I had assumed it was because the male legislators passing the laws wanted to father more children.


Double dactyl for the day (courtesy of the spouse):

Jumpin’ Jehoshaphat,

Executive privilege.

A meaningful subject for all to explore.

The subject can be somewhat


With Trump, it’s a practice to strongly abhor.

A Civics Examination (concluded)

Whether Congress can cede its legislative power to other branches of government leads to the constitutional issue of the nondelegation doctrine. (Although I do not remember what was on my high school Elks constitution exam, I am confident that this rather arcane topic of nondelegation was not tested.) This doctrine says that since the Constitution vests all legislative power in Congress, Congress cannot surrender this authority to another branch of government. As with many other absolutes in our fundamental charter, however, this seeming absolute is not absolute, and it illustrates why those who think it should be easy to read and easy to apply our Constitution don’t know stuff from Shinola. The absolute principle was undercut in the Constitution itself when it gave the President a role in legislation through the veto provision. Furthermore, it was soon clear that the government could not function if Congress had to fill in every picayune detail of actions it legally authorized. Some discretion had to be employed by those executing a law.

Ninety years ago, the Supreme Court held that Congress could delegate legislative authority to the executive branch as long as it supplied an “intelligible principle” to guide the executive in its use of the delegated legislative authority. The Supreme Court found a legislative delegation unconstitutional a couple of times during FDR’s New Deal, which helped to precipitate a constitutional crisis, but not since.

The nondelegation doctrine, however, continues to be discussed, mostly by conservatives. Their targets are regulatory agencies, those bodies who have given us safer drugs and cleaner air and so on. The statutes authorizing many agencies often do give them broad authority with few principles to guide their discretion. Powerful corporations suggest that the nondelegation doctrine should be enforced to prevent many regulatory actions, thus allowing the companies to make bigger profits. My prediction has been that the doctrine would regain traction with at least some of the conservatives on the Supreme Court. It would fit in with the trends of increasing corporate power and less protection for the public generally.

Conservatives, however, also seek to uphold presidential power. This presents a dilemma for conservative jurists. If “national security” and “national emergency” are constitutionally valid, intelligible principles that allow the president to exercise his actions on tariffs and arms sales and border wall spending without violating the separation of powers doctrine, then it should be almost impossible to strike down regulatory actions with the nondelegation doctrine. This assumes, of course, that the ever more conservative Supreme Court justices apply principles consistently.

But let me return to where I started. Most Americans know little about the Constitution or even the basic structure of government. A recent email from the New-York Historical Society said that “only 23% of American eighth graders are able to demonstrate proficiency n civics, and only 18% are able to demonstrate proficiency in U.S. history.” Haven’t you ever wondered, with good cause, whether those who represent you know as much as an eighth grader? We all should be able to cite examples casting doubt on any such assumption, much less that they understand the more complex constitutional issues. For example, did Congress think about the nondelegation doctrine when it enacted the laws granting the president broad legislative authority? Does the president think about separation of powers when he legislates?

I think back to the constitutional test I once took. Perhaps we ought to ask candidates for office to take a test on the Constitution as well as one on United States history so we can factor those results in when we vote. Perhaps the $400 that I feel that the Elks Club still owes me could help fund this exercise in civic responsibility.

A Civics Examination (continued)

nThe first words of the first article of the Constitution state: “All legislative Powers herein granted shall be vested in a Congress of the United States. . . .” Congress, however, was not granted untrammeled authority to legislate. The Constitution’s drafters, hypersensitive to unchecked powers, gave the President a role in the passage of laws. A bill does not take effect merely because the legislature passes it. A bill passed by both Houses of Congress “shall, before it becomes a Law, be presented to the President of the United States; If he approves he shall sign it but if not he shall return it, with his Objections. . . .” If the President does not approve—if he vetoes it—the bill then becomes law only if each House of Congress passes it again by a two-thirds vote. Thus, the Constitution gives the President an authority in the legislative process to check the passage of legislation through the veto provision. It does not, however, give him the authority to pass or initiate laws. Besides this veto over bills passed by Congress, the Constitution imposes a single duty on the President when it comes to legislation: The President “shall take Care that the Laws be faithfully executed. . . .”

The Constitution seems clear. The President can force a reconsideration of a bill before it becomes law and if he does so, he requires Congress to pass it with two-thirds majorities. But the President can’t make laws. Only Congress can do that.

I thought that I understood this division of legislative power under our Constitution, but our current president has been exercising many legislative powers. For example, a recent news story said that the president was going to bypass Congress and sell billions of dollars of arms to Saudi Arabia and United Arab Emirates; the president has restricted purchase of products made by Huawei, a Chinese telecommunications company; the president has taken money allocated for the military and shifted it to be spent on a border wall even though Congress rejected money for the wall; and the president every day seems to impose or remove some tariff.

These actions seem to be exercising authority expressly given in the Constitution to Congress. Thus only Congress was granted the authority “To regulate Commerce with foreign Nations. . . ”, and approval of arms sales to Mideast countries and the prohibitions on the purchase of Chinese products are regulations of foreign commerce. The Constitution enjoins that “No money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law,” which require congressional passage. When the president shifts spending from the military to a border wall, he is drawing money from the Treasury even though Congress has not specifically authorized that appropriation. Only the legislative branch is given the authority to impose tariffs: “The Congress shall have Power To lay and collect, Taxes, Duties, Imposts and Excises. . . .” So, what’s going on here?

I am not suggesting the president is just ignoring the Constitution. Instead, he can cite constitutionally passed laws to claim legitimacy for his actions. For example, legislation grants Congress a review period during which the legislators can modify or prohibit a prospective arms sale. A provision of the Arms Export Control Act, however, allows the president to bypass Congress if he deems an “emergency exists which requires the proposed sale in the national security interest of the United States.” Similarly, a law grants the president tariff-setting power when he deems it necessary for “national security.” And the National Emergencies Act allows the president, after finding that a “national emergency” exists, to take money already allocated by Congress for another purpose and spend it to meet the national emergency. Thus, our president says that because of national security he can allocate funds from the treasury for a border wall even though Congress has not appropriated money for such a purpose.

People can argue that our president is not correctly using the powers he was given in these statutes, but I don’t want to get into such arguments here. Instead, I am pointing out that in the laws the president relies on for his actions, Congress has surrendered some of its legislative powers and given it to the president, who, under our Constitution, does not have these legislative powers. It might seem that these laws have recast our fundamental charter.

(concluded June 12)

A Civics Examination (continued)

If you had been the third person with us in the car as I was driven to the Wisconsin-wide Elks Constitution test, you probably would have found it to be an uncomfortable ride. The man drove a Karmann Ghia made by Volkswagen. This car was produced for a dozen or so years as VW’s version of a sports car. The newspaper auto columns I read had taught me disdain for this vehicle. It did have a beautiful body, but the auto writers told me that it was built on a VW Beetle chassis with a VW Beetle engine and steering. In other words, it was really a VW Beetle with a nicer look but no more acceleration or better handling. It was the car for people who wanted to look like they owned a sports car but did not really want or could not afford to own an MG or Triumph. And my companion looked like he fell into that category—a more than middle-aged, much overweight man who tried to talk to me often as if we were the same age. Well, he at least did not wear driving gloves. (Carmen Ghia is a character in The Producers. The movie version was made when VW was still producing the Karmann Ghia, but it had been long discontinued when the musical play came out. I wonder how many theatergoers got the reference.)

I can tell you almost nothing about the exam. I don’t remember in what building it was held or how long it was. I have no memory of whether it was multiple choice, fill-in-the-blank, or essay. I don’t know what areas of the Constitution were tested. This was not that far after McCarthyism and school desegregation. Did it stay away from these controversial topics? At the end of the day when I got home, I mostly forgot about it.

But then two or three months later, I was told that I had placed third. This meant money. The winner got a $600 scholarship. My third place was worth $400, and prizes went down to a $100 scholarship for sixth place. By then I had been accepted for college and had received a scholarship from the school, which also included a required job of waiting on tables. I had also received scholarships from other organizations. They would send the money to the university which would administer the funds.

The national Elks organization provided the money for the top three prizes. The state Elks handled the next three winners. The national organization would send the funds to the university. The state, however, sent its checks directly to the student. However, the university, when informed about my $400 prize, told me that I could not accept it. Apparently, they had some formula that indicated that I had maxed out on the amount of scholarship money I could have. When I learned this, I realized that if I had finished in fourth place, I would have had a check sent directly to me without the university’s intervention, but by then I could not figure out a way to finagle a lower finish. (I never got the money, but I would have thought that I would have received some sort of plaque. If so, I don’t remember that honor, and I know that I would have rather had the money.)

(Yes, I know what many of you are thinking. He is just writing these stories to brag about his illustrious high school career. Your mind moves to Springsteen’s Glory Days; if he brags about those long-ago days, he must have nothing to brag about since. How sad, you may be thinking, but perk up. Life has been good since then. For example, at my small tennis club, I once won the Men’s B doubles.)

Graduating from high school, I was already confident, with good reason you can see, that I understood the Constitution, but even so I deepened my knowledge. I took Constitutional Law courses in law school, and I studied various constitutional provisions in my academic career. Not only have I read the Constitution may times, I have read the Federalist Papers and what are called the Anti-Federalist papers. I have read histories about the background to our Constitution, and its drafting and adoption. I have read commentaries on the Constitution. And I have studied many Supreme Court decisions interpreting the Constitution. Even so, I now find myself often confused about governmental powers. The basic structure of our federal government, I had learned, is that Congress makes the laws; the President enforces the laws; and the Judiciary interprets the laws. However, the Constitution is more complicated than that.

(continued June 10)