By Larry Sims
To convince Americans to ratify the Constitution, James Madison offered this contribution: “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. Federalist 51.”
What did Madison mean by “auxiliary precautions?” This is an indisputable truth: We are an imperfect people ruled by an imperfect government with imperfect leaders. Elections are dependent upon the people, but the hearing of government is often impaired. How do “auxiliary precautions” constraint the activities of government and those hired by the people to lead it?
At the federal level we rely on our elected representatives (the President and Senators) to use wisdom in choosing members of the Judiciary, who are appointed for life. Options are available to remove errant Judges, but they are rarely exercised.
Simple guidelines are in place to define honorable behavior. These “auxiliary precautions” are called the Judicial Canons. Those offered by the American Bar Association are worth repeating:
A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.
A judge shall perform the duties of judicial office impartially, competently, and diligently.
A judge shall conduct the judge’s personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office.”
These simple statements of the judicial code of honor will be put to the test in just a few days. The U. S. Supreme Court will be reviewing a case on state law regarding same sex marriage. One apparent ethical problem rests on the shoulders of Justices Ginsberg and Kagan. Both have presided over same sex weddings, one in judge’s chambers in the U. S. Supreme Building. This case will test the definitions of impartially, integrity, competence and conflict of interest. Will Ginsberg and Kagan ignore the Canons and rule on this matter in the face of an obvious bias demonstrated by their actions? We can only hope that “auxiliary precautions” will prevail.
Another example is closer to home. Without quoting chapter and verse of Alabama Ethics laws, the underlying principle mandates this simple commandment: an elected official cannot use public office for personal gain. A dark cloud of doubt hangs over the Alabama Legislature due to the actions of Speaker Mike Hubbard. The case has not gone to trial, but his actions have caused a prosecutor and a grand jury to establish a series of questions based on Hubbard’s actions that warrant a trial.
The allegations have taken their toll. Along with the uncertainty over the Speaker’s future come questions about any action of the legislature. The overriding question is this: Why is Hubbard still Speaker? The dark cloud would have dissipated if the members had chosen a new leader, but they refused to bulk status quo, paving the way for a potential colossal embarrassment for the legislature, state government in general, and the Republican Party.
Hubbard is given credit for “transforming” the legislature into a conservative, pro-business body. This flies in the face of thousands of Republican activists who have worked for decades to make this transition possible. The rallying cry has often been “honesty in government. That is being put to the test with the upcoming trial. Have Republicans rallied around a potentially corrupt leader for the sake of holding on to power? Has the lesson of “auxiliary precautions” been lost on Alabama Republicans?
Finally, one group that needs fewer “auxiliary precautions” is public educators. The vast majority of public teachers and administrator enter the profession because they consider it “a calling”. The pay is acceptable, but the promise of fame or fortune is not in the cards.
In spite of this, the Code of Ethics for public educators is comprehensive and duplicated at the state and local level. Press reports of misconduct or mal practice are common, but confined to the smallest minority of teachers and administrators. When this occurs, it usually involves criminal activity, such as an inappropriate relationship with a student. Society has a low or zero tolerance for such blatant disregard for accepted moral standards.
Alabama law generally defines morality : (School Code 1927, §354; Code 1940, T. 52, §337.) “The State Superintendent of Education shall have authority to revoke any certificate issued under the provisions of this chapter when the holder has been guilty of immoral conduct or unbecoming or indecent behavior.” Since no state employee is above the law, it is assumed that “immoral conduct or indecent behavior” applies to the State Superintendent of Education as well, and it would be the responsibility of the Governor and the State Board of Education to deal with this matter if it occurs.
In modern, politically correct America, it is often a struggle to define right and wrong, good and evil, or “immorality.” In his book Still the Best Hope: Why the World Needs American Values to Triumph , Dennis Prager voices frustration over what he calls moral confusion: “(I regret having to define) terms that should not need definition (good and evil), because a generation of Westerners has been taught that good and evil are totally subjective terms.”
Why should it be necessary to define unwritten moral societal codes based on a general understanding of morality in the minds of the people? “Auxiliary precautions” are necessary, but they can never replace our understanding of Natural Law ingrained in each of us based our membership in the human race.
Larry Sims is a former State Legislator who teaches political science at an Alabama community college. He is a life long Republican.
Alabama hospitals nearing COVID-19 summer surge levels
Wednesday was the 18th straight day with more than 1,000 people in hospitals in Alabama with COVID-19.
Alabama hospitals reported caring for 1,483 people infected with COVID-19 on Wednesday, the highest number of patients since Aug. 11, when the state was enduring its summer surge. Wednesday was also the 18th straight day with more than 1,000 people in hospitals in Alabama with COVID-19.
The seven-day average of hospitalizations was 1,370 on Wednesday, the 36th straight day of that average rising. The Alabama Department of Public Health reported 2,453 new cases Wednesday. The 14-day average of new cases was — for the eighth day in a row — at a record high of 2,192.
Across the country, more than 80,000 people were hospitalized for COVID-19 on Tuesday, a record high and the 15th straight day of record hospitalizations nationwide, according to the COVID Tracking Project, a coronavirus tracking website.
The CDC this week recommended people not travel for Thanksgiving to help prevent the spread of coronavirus.
“The only way for us to successfully get through this pandemic is if we work together,” said Dr. Kierstin Kennedy, UAB’s chief of hospital medicine, in a message Tuesday. “There’s no one subset of the community that’s going to be able to carry the weight of this pandemic and so we all have to take part in wearing our masks, keeping our distance, making sure that we’re washing our hands.”
Kennedy said the best way she can describe the current situation is “Russian Roulette.”
“Not only in the form of, maybe you get it and you don’t get sick or maybe you get it and you end up in the ICU,” Kennedy said, “but if you do end up sick, are you going to get to the hospital at a time when we’ve got capacity, and we’ve got enough people to take care of you? And that is a scary thought.”
The Alabama Department of Public Health on Wednesday reported an increase of 60 confirmed and probable COVID-19 deaths. Deaths take time to confirm and the date a death is reported does not necessarily reflect the date on which the individual died. At least 23 of those deaths occurred in November, and 30 occurred in other months. Seven were undated. Data for the last two to three weeks are incomplete.
As of Wednesday, at least 3,532 Alabamians have died of COVID-19, according to the Department of Public Health. During November, at least 195 people have died in Alabama from COVID-19. But ADPH is sure to add more to the month’s tally in the weeks to come as data becomes more complete.
ADPH on Wednesday announced a change that nearly doubled the department’s estimate of people who have recovered from COVID-19, bringing that figure up to 161,946. That change also alters APR’s estimates of how many cases are considered active.
ADPH’s Infectious Disease and Outbreak team “updated some parameters” in the department’s Alabama NEDSS Base Surveillance System, which resulted in the increase, the department said.
Judge reduces former Alabama Speaker Mike Hubbard’s prison sentence
The trial court judge ordered his 48-month sentence reduced to 28 months.
Lee County Circuit Court Judge Jacob Walker on Wednesday reduced former Alabama House Speaker Mike Hubbard’s prison sentence from four years to just more than two.
Walker in his order filed Wednesday noted that Hubbard was sentenced to fours years on Aug. 9, 2016, after being convicted of 12 felony ethics charges for misusing his office for personal gain, but that on Aug. 27, 2018, the Alabama Court of Criminal Appeals reversed convictions on five of those counts. The Alabama Supreme Court later struck down another count.
Hubbard’s attorneys on Sept. 18 filed a motion to revise his sentence, to which the state objected, according to court records, arguing that “Hubbard’s refusal to admit any guilt or express any remorse makes him wholly unfit to receive any leniency.”
Walker in his order cited state code and wrote that the power of the courts to grant probation “is a matter of grace and lies entirely within the sound discretion of the trial court.”
“Furthermore, the Court must consider the nature of the Defendant’s crimes. Acts of public corruption harm not just those directly involved, but harm society as a whole,” Walker wrote.
Walker ruled that because six of Hubbard’s original felony counts were later reversed, his entrance should be changed to reflect that, and ordered his 48-month sentence reduced to 28 months.
Alabama Attorney General Steve Marshall on Wednesday said Walker’s decision to reduce Hubbard’s sentence was the wrong message to send.
“Mr. Hubbard was convicted of the intentional violation of Alabama’s ethics laws, the same laws he championed in the legislature only later to brazenly disregard for his personal enrichment,” Marshall said in a statement. “Even as he sits in state prison as a six-time felon, Mike Hubbard continues to deny any guilt or offer any remorse for his actions in violation of the law. Reducing his original four-year sentence sends precisely the wrong message to would-be violators of Alabama’s ethics laws.”
Nick Saban tests positive for COVID-19, has “mild symptoms”
It’s unlikely Saban will be able to coach in person during Saturday’s Iron Bowl against Auburn.
University of Alabama head football coach Nick Saban has tested positive for COVID-19 ahead of the Iron Bowl and has mild symptoms, according to a statement from the university on Wednesday.
“This morning we received notification that Coach Saban tested positive for COVID-19,” said Dr. Jimmy Robinson and Jeff Allan, associate athletic director, in the statement. “He has very mild symptoms, so this test will not be categorized as a false positive. He will follow all appropriate guidelines and isolate at home.”
Saban had previously tested positive before Alabama’s game against Georgia but was asymptomatic and subsequently tested negative three times, a sign that the positive test could have been a false positive. He returned to coach that game.
It’s unlikely Saban will be able to coach in person during Saturday’s Iron Bowl against Auburn, given the Centers for Disease Control and Prevention’s guidelines for quarantining after testing positive and with symptoms. Neither Saban nor the university had spoken about that possibility as of Wednesday morning.
Civil rights leader Bruce Boynton dies at 83
The Dallas County Courthouse Annex will be renamed in honor of Boynton and fellow Civil Rights Movement leader J.L. Chestnut.
Selma attorney and Civil Rights Movement leader Bruce Carver Boynton died from cancer in a Montgomery hospital on Monday. He was 83. The Dallas County Courthouse Annex will be renamed in honor of Boynton and fellow Civil Rights Movement leader J.L. Chestnut.
“We’ve lost a giant of the Civil Rights Movement,” said Congresswoman Terri Sewell, D-Alabama. “Son of Amelia Boynton Robinson, Bruce Boynton was a Selma native whose refusal to leave a “whites-only” section of a bus station restaurant led to the landmark SCOTUS decision in Boynton v. Virginia overturning racial segregation in public transportation, sparking the Freedom Rides and end of Jim Crow. Let us be inspired by his commitment to keep striving and working toward a more perfect union.”
Boynton attended Howard University Law School in Washington D.C. He was arrested in Richmond, Virginia, in his senior year of law school for refusing to leave a “whites-only” section of a bus station restaurant. That arrest and conviction would be appealed all the way to the U.S. Supreme Court where Boynton and civil rights advocates prevailed in the landmark case 1060 Boynton vs. Virginia.
Boynton’s case was handled by famed civil rights era attorney Thurgood Marshal, who would go on to serve on the U.S. Supreme Court. The 1960 7-to-2 decision ruled that federal prohibitions barring segregation on interstate buses also applied to bus stations and other interstate travel facilities.
The decision inspired the “Freedom Rides” movement. Some Freedom Riders were attacked when they came to Alabama.
While Boynton received a high score on the Alabama Bar exam, the Alabama Bar prevented him from working in the state for years due to that 1958 trespassing conviction. Undeterred, Boynton worked in Tennessee during the years, bringing school desegregation lawsuits.
Sherrilyn Ifill with the NAACP Legal Defense Fund said on social media: “NAACP LDF represented Bruce Boynton, who was an unplanned Freedom Rider (he simply wanted to buy a sandwich in a Va bus station stop & when denied was willing to sue & his case went to the SCOTUS) and later Bruce’s mother Amelia Boynton (in Selma after Bloody Sunday).”
His mother, Amelia Boynton, was an early organizer of the voting rights movement. During the Selma to Montgomery Voting Rights March in 1965, she was beaten on the Edmund Pettus Bridge. She later co-founded the National Voting Rights Museum and annual Bridge Crossing Jubilee in Selma. His father S.W. Boynton was also active in the Civil Rights Movement.
Bruce Boynton worked for several years at a Washington D.C. law firm but spent most of his long, illustrious legal career in Selma, Alabama, with a focus on civil rights cases. He was the first Black special prosecutor in Alabama history and at one point he represented Stokely Carmichael.
This year has seen the passing of a number of prominent Civil Rights Movement leaders, including Troy native Georgia Congressman John Lewis.