by Meg Mott

Rights are surprisingly fragile things. Declared “unalienable” in the Declaration and billed as constitutional in state and the federal constitutions, their power is largely dependent on the character of the people. When the people are virtuous, our rights are secure. But if we are bull-headed, then we tend to smash them in some fit of pique.

James Madison famously called the Bill of Rights nothing more than “parchment barriers,” something that partisans would careen through at their will. Imagine a bull fenced in by paper and you’ll get a sense of our predicament. So long as the bull wants to stay in the pasture, everything is fine. Everybody loves the idea of keeping the bull contained, especially when the beast is owned by an annoying neighbor; few are eager to constrain the beast within. 

One way to resolve this problem is to separate power in so many ways that, in Madison’s words, “ambition [would] counteract ambition.” But the system of checks and balances, which includes the power-sharing structure of federalism, can only go so far. The People must be vigilant of their individual desires for power and domination. If we only focus on the outer world of politics and never reckon with our own bullishness then we’ll quickly surrender rights to our respective ambitions. If we only know the words in the First Amendment and don’t examine our own intolerance to some types of speech or some ways of worship, then rights lose their capacity to restrain.

Luckily, state constitutions understand the importance of moral character in preserving basic rights. Article 18 of Vermont’s Bill of Rights lists five civic virtues. Without a “firm adherence” to “Justice, Moderation, Temperance, Industry and Frugality,” we shall not “preserve the blessings of liberty, and keep government free.” The work of freedom requires each one of us to superglue these virtues to our soul. 

Temperance sits smack in the middle. A Connecticut delegate to the Constitutional Convention described temperance as “the right government of all my powers, appetites and passions.” The habit of temperance helps a nervous person to be confident, an angry person to be calm, and a vengeful person to be merciful. 

Nowadays there are few willing to stick out their heads for temperance. In the heat of our political battles, temperance can seem weak, ineffective, or even naïve. Partisan leaders are lauded for being intemperate, for crushing their enemies, regardless of any sense of rights. Who cares about the arguments on the other side, or the erosion of due process! What we want is for the bulls on the other side to be barricaded by something stronger than parchment!

But that is not the way to strengthen our rights. 

Luckily the judiciary is keeping temperance alive, despite enormous pressure from both sides to be intemperate. Consider this recent ruling of federal judge Katherine Menendez.

The State of Minnesota had filed for a preliminary injunction to stop the ICE operation known as “Metro Surge.” The plaintiffs claimed that the Department of Homeland Security had violated their constitutional right of state sovereignty under the 10^th Amendment. The judge was sympathetic to the plight of Minnesota, noting that the operation had “profound and even heartbreaking consequences.” But those facts did not give her the authority to overrule an executive branch’s decision. “The Court can readily imagine scenarios where the federal executive must legitimately vary its use of law enforcement resources from one state to the next,” wrote Judge Menendez. “There is no precedent for a court to micromanage such decisions.”

Many partisans on the left were angry that the judge did not shut down ICE. Why didn’t this Biden-appointed judge do the right thing? But that sort of thinking adds to the distortion of this moment – in which only might makes right. 

Instead, Menendez laid out the arguments on both sides, considered the precedent and found that she did not have the authority to enjoin the operation. “Federal courts do not exercise general oversight over the Executive Branch,” she wrote citing an 8^th Circuit opinion.

It’s worth reading Menendez’s 30-page decision. She itemizes how this operation has hurt Minnesota’s ability to provide education, safety, and a secure business environment. She also describes how protestors have violently attacked and curtailed the work of federal agents. The judge brought reason to the foreground and determined that she could not intervene. This is what temperance looks like.

For those of you disappointed in the ruling, it’s worth considering the political consequences had she ruled in favor of the plaintiffs. Once that decision was issued, the Trump Administration would have filed an appeal. Eventually that appeal might have gotten in line at the Supreme Court where many of Trump’s policies immigration policies are already under scrutiny. That process would have its own merits, giving each a side a chance to firm up their arguments and for the situation on the ground to resolve itself or not. 

However, by holding on to temperance, the judge passed the hot mess of a political potato to the President and his political strategists. Now the President has to face a new political reality: the head of the Minneapolis Police Department has joined the protestors’ message: ICE is making it impossible for the Twin Cities to be safe. Talk about a political realignment! If anarchists and rookie officers can find ways to talk with each other, that will be far more robust than any parchment barrier offered by a single judge. 

Temperance allows the passions of the moment to evolve into a long-term strategy. A temperate approach to immigration policy allows for immigrant activists and state officials to imagine a reasonable path forward. Were we to become a more temperate people, imagine the sort of broad coalitions we might co-create. It is those broad alliances that temper animosity and make possible the type of policies that are good for all of us.

Originally published in the Brattleboro Reformer.

Meg Mott teaches civic virtue at Keene State College and is the Town Moderator in Putney, Vermont. She will be giving a free talk on-line on the five virtues in Vermont’s Constitution the Ethan Allen Homestead Museum on February 15^that 2pm. To register go to: https://us02web.zoom.us/meeting/register/qXdZRZidRNWsDu-Z89Q5DA#/registration