Sunday, December 28, 2014

Movies and the US Constitution: Comparisons with the Roman / Spanish Empire: The Borgias

This is part of a series of posts following this summary of movies that provide a chronological history of the U.S. Constitution.  Here's the summary.

Depictions that Compare and Contrast the British-US constitutionalization with Roman
Empire-legacy Political Economies

21. The Borgias: the Original Crime Family (Showtime series, 2011) set in 1492 to 1503

Relevance to the US Constitution

A. Rule of Law

There are several ways in which this show illustrates a contrast and comparison between the British and US constitutionalization, and the Roman and Spanish Empire versions.

The Pope is elected, as was the Holy Roman Emperor, which would seem to give a lawful democratic or republican basis to the leadership, particularly more so than the methods of inheritance and warfare used in Britain up to the 1688 Glorious Revolution, however, the basis of this election only in men, such as the College of Cardinals, who have been ordained with "divine rights" from a male deity (i.e. "God") and then giving the Pope authoritarian power means there is effectively no legal boundary on the leaders.

The movie shows that when Spaniard Rodrigo Borgia was elected Pope, he was considered to have bought the Papacy.  The efforts to deal with this, even thought there are canon laws to the contrary, including laws that a Pope may be charged with simony and with "public lechery" (a Pope's private sexual relationships are not against canon law, while his public ones are) are ineffective, because of the authoritarian power he then holds.  (The Cardinals are depicted as not really caring about the sexual relationships, but do look to see if there is law regarding them they can use to oust the Pope.)

This is a contrast to the Magna Carta forming more effective boundaries on abuse of power in England in the reigns of John and Henry VIII and his children.   While Henry VIII did kill his wives on false claims, not something addressed in the Magna Carta (a single woman could be a "freeman" under its language but not a married woman when combined with laws of coverture imported in the Norman Conquest), efforts to disinherit any of his children by him or others as established by law, were not circumvented.

What ends up happening is the Pope uses the law entirely for his own ends in application to others, but it is not applied to him.  The frustration among the Cardinals about Borgia (Pope Alexander) mounts and he is abandoned by his Cardinals when Cardinal Della Rovare convinces King Charles of France to invade the Vatican.

The Pope thus appears not to have absolute authority over any of the Cardinals or King Charles, but in the end he does have such absolute authority as King Charles later submits to him in exchange for forgiveness and absolution for his crimes.  The Cardinals, including Cardinal Della Rovare, then return to Rome and Pope Alexander, although Della Rovare continues to challenge Pope Alexander’s authority, albeit not the institution of the Papacy itself and its lack of legal boundaries that led to Pope Alexander's abuses.   Pope Alexander then calls upon Cardinal Burkhardt, who  is shown being the custodian of and advisor on canon law.  He is asked by Pope Alexander to locate a precedent for his requiring the Cardinals who abandoned Alexander to show penitence by appearing in sackcloth and ashes.  Again, the Pope is able to use the law for his purposes but not to be subject to it himself.

Pope Alexander would later endorse the Spanish Empire's importation of slaves and the institution of slavery.   By 1625, the Spanish Empire involuntarily transported approximately 475,000 enslaved Africans to the Spanish Americas and Brazil—more than the number of Africans who disembarked in British North America and the United States during the course of the entire transatlantic slave trade.

Over the course of the Catholic Church's history, some Popes condemned slavery, while a number of others have endorsed it in keeping with Thomas Aquinas' teaching, including Pope Pius in 1866, just as the US constitutionalized clear prohibitions on slavery after the Civil War, almost 80 years after some US states (PA, NJ, CT, MA, NH, NY) outlawed it in 1787-88 (and others shortly thereafter, VT in 1791 and OH in 1903, with a number of other states also outlawing it prior to the Civil War) and decades after the British outlawed it in 1833 .

This is another illustration where a "good Pope" is still a very different thing than a constitution that sets a boundary on the leaders.  If you give a "good Pope" authoritarian power, you also give a "bad Pope", such as Alexander, such power.   Alexander was considered a "good Pope" by several of his successors (Sixtux V and Urban VIII considered him one of the most outstanding Popes since Saint Peter).

B.       Use of the term “person”

The view of "rights of man" and "responsibilities of woman" that is still set forth in constitutions in Roman Empire (and Spanish Empire) legacy countries, such as those in Italy, Ireland, Mexico, Central America, South America today is very visible in Borgias.  As noted, the the British constitution and the US Constitution do not use these words after 1688, when only the word "person" is used.

These rules originated with Octavian, the successor to Julius Caesar in the conversion of the Roman Republic to a Roman Empire, who imposed the rules of single women no longer holding public status, prohibiting contraception, in an effort to get Rome's ruling classes to have more children.  It didn't work to get the ruling classes to have more children, but it did cause the poor to have many, many children and many generations of such, relegating them and future generations to poverty.  Eventually in succeeding centuries, Rome would be sacked and all that would be left was the Catholic Church.

These rules are still in place in the late 1400s of The Borgias as well as they are today in the Vatican and its canon law.  Women in The Borgias are shown as being allowed only to be married or to enter a convent.  The women who do not do this are "courtesans", such as the mothers of Borgia's children.  A woman on her own, even a widow, is not otherwise depicted, in contrast with the widows of Britain recognized in the Magna Carta, or the single women that Elizabeth I would represent when she holds the throne a few decades later.  Under the laws of coverture in England imported in the Norman Conquest, a married woman lost her rights but a single woman could still hold them, functioning as a freeman, as outlined in the Magna Carta.

Women also required dowries in Rome in contrast with the Norse model in Vikings where the parents of both the bride and groom contribute to the wedding and the wife retains her agency and ability to earn, own land, and provide, following the wedding, as we saw with Lagertha and Ragnald.

Pope Alexander had a number of children, some of which he acknowledged while others he did not.   He begins to include his four children with Vannozza (Giovanna) dei Cattani in many of his dealings. One of these is his daughter Lucrezia.  To raise her dowry, one of her brothers kills an Ottoman Prince who has a bounty on his head by another Ottoman ruler.

At the wedding of Lucrezia, her mother Giovanna dei Cattani is not allowed to attend on Pope Alexander's determination that she is a courtesan, and he brings another mistress, Giulia Farnese.

Then there is an illustration of how the sexism becomes reversed when Pope Alexander is seeking to get Lucrezia out of the marriage to Lord Giovanni Sforza, who had also not been willing to defend the Pope when the army of King Charles of France was marching on him.  She is depicted as being visibly pregnant with another man's child, however, this view that Lucrezia gave birth to a "secret child" at this time is not certain historically.   In the depiction, Pope Alexander calls upon Cardinal Burkhardt, the custodian of and advisor on canon law.  Cardinal Burkhardt uses canon law authority to find an annulment of the marriage of Lucrezia and Sforza on grounds of nonconsummation (in several previous scenes of Sforza and Lucrezia are shown having sex).  Lucrezia, shielded behind a screen so no one can see her visible pregnancy, lies and says Sforza is impotent.  Burkhardt says Sforza could demonstrate potency with Lucrezia in front of canon lawyers.  Or Sforza could demonstrate potency with courtesans in front of canon lawyers and public of Rome.  Pope Alexander says a demonstration in front of the Cardinals would be acceptable as well. The courtesans come in and Sforza says he wants a divorce (i.e. he is unwilling to have public sex with the courtesans), that he could not and did not consummate the marriage and that he has always been impotent.  Pope Alexander then declares the marriage annulled.

Previous:  Comparisons with the Roman / Spanish Empire: Rome Miniseries [to be completed]

Next:  Comparisons with the Roman / Spanish Empire: The DaVinci Code [to be completed]


Saturday, December 27, 2014

Movies and the U.S. Constitution: The Tudors and the Age of Elizabeth: Elizabeth I, the Virgin Queen

This is part of a series of posts following this summary of movies that provide a chronological history of the U.S. Constitution.

The Tudors and the Age of Elizabeth:

8.  Elizabeth I, the Virgin Queen (BBC/PBS miniseries, 2005) set in 1558-1603 

Relevance to the U.S. Constitution:

A. Rule of Law.   

It's hard to overestimate the significance of Elizabeth I's rule for the recognition that the constitution  is above the leader.  Simply by being a female ruler on her own under British law she represented a view that the law of England superseded Papal authoritarianism.

Elizabeth ascends to the throne through an order of succession that starts with her half-brother Edward IV. Edward IV attempts to override Parliament's 1543 Law of Succession by giving the throne to Lady Jane Grey, a cognatic descendant of Henry VII and an ardent Protestant.  The 1543 Law of Succession made Mary, the ardent Catholic first daughter (and first child) of Henry VIII, the first in line, and Elizabeth, the ardent Protestant second daughter (and second child) of Henry VIII, the second in line.

Despite the widespread elite and popular base of protest against the Catholic Church, the Privy Council interpreted the law to be above Edward IV's override, and put Mary on the throne, surely knowing that she would try to restore Catholicism but seeing the law as more important.  She did, in fact, reestablish Catholicism and executed many Protestants in the Marian Persecutions.  She generally did this by getting Parliament's consent, such as through the Heresy Acts, not by authoritarian power derived from the Pope, and the Parliamentary laws did not fully submit to Rome, keeping lands from being given to the Catholic Church in connection with the reestablishment, among other issues.  She does show authoritarianism in the Marian Persecutions, however.  In these executions of non-recanting Protestants, she was violating her own rule that she would not require subjects to follow her own religion, but she was following Parliament's Heresy Acts, enacted during her reign in cooperation with her reestablishment of Catholicism.  She is authoritarian in her executions of persecuted Protestants who convert to Catholicism.  The law required their lives to be spared, which she did not do.  Elizabeth is imprisoned during this time.

As a general matter of British constitutionalism, however, the movie depicts that the law overrode the authoritarianism and Mary was allowed to rule.   When she died at age 42, after 5 years on the throne, from an illness that was probably cancer, Elizabeth was enthroned, as the law required, despite Mary's restoration of Catholicism.    In the movie, one of Elizabeth's first acts as Queen is to recognize the Protestant Church, but she also says she will not persecute Catholics.

The movie does not show Elizabeth speaking much of any requirement that she submit to the law, however.  In fact, Parliament met only a few times during her reign. She created by royal prerogative a number of monopolies, which would cause problems late in her reign and in subsequent years.  These were not prohibited by the Magna Carta or other law, however.

Elizabeth does act out a submission to law, however.  The laws that she does have to contend with are common law of coverture, imported to England in the Norman Conquest, and jure uxorious, the law that a king who marries a queen regnant would hold her power and title and she would have to submit to his authority.   In Mary's rule, when she married the Catholic Philip of Spain after taking the throne, Parliament passed laws to counteract the laws of coverture and jure uxorious but this Act for the 1554 Act for the Marriage of Queen Mary to Philip of Spain applied specifically to their marriage not to all Queens of England.   Under Papal authoritarianism, Mary would have had to submit to Philip as well.

Had Elizabeth decided to marry, presumably Parliament would have passed a similar law to prevent operation of coverture and jure uxorious, however, she chose not to marry and ended up corporally acting out a powerful debunking of the Catholic "virgin birth" myth that would presage England's later constitutional documents based in "rights of person", addressed below.

B.  Use of the Term "Person".

It's also hard to overestimate the significance of Elizabeth I's rule for the concept that the English and later U.S. Constitutions are based in rights of person, not rights of man or responsibilities of woman (as neighboring countries Ireland, France, and countries in Latin America still base their constitutions today and which is the ideology of the Catholic Church).

This movie depicts Elizabeth's vow of virginity she took.  She had numerous suitors, both in Britain and outside it, but she elected not to marry.  She did this is a very public vow of virginity, which gave her enormous symbolic meaning to a burgeoning Northern and Western Europe protest movement against the Catholic Church, with its basis in a "virgin birth".  In the Counter-Reformation, the Pope, and particularly the Jesuits, sought to pull people back in by elevating the status of Mary in what is sometimes called "Marianism".  In Latin America, this became "Marianismo".  This elevation of the Virgin Mary began during the Council of Trent, during 1545-1563, just as Elizabeth was throned.

She was a virgin in service to "God" but yet produced no child so she thus acted out a debunking of this Catholic myth.

The movie shows her contending with all manner of gender stereotypes, some of which she internalizes, but also her eventually functioning very capably as a woman leader in her own right.  She makes many mistakes, but also has substantial success, resulting her rule being called "The Golden Age of Elizabeth."  Because she had no husband, her success could be attributed to nothing but her own self and agency, thus debunking these stereotypes very successfully over her 44 year reign, often simply through her own capable behavior.

After her death in 1603, it would take fewer than a hundred years before England established the Bill of Rights, when in 1689 and William and Mary were jointly given the throne subject to Parliamentary consent.   The English Bill of Rights would be based in "rights and responsibilities of person" and from this point forward, neither the English or U.S. Constitution, nor and of their amendments, would have operative language based in "rights of man".  Some colonies and states in the US would seek to establish "rights of man" in their state constitutions, particularly those founded before the English Bill of Rights in 1689, and many of them still have this today. 

Despite a recognition of basis in "rights and responsibilities of person" not "rights of man", paternity is not yet provable, however, and this will cause problems, as we shall see.

Previous:  The Tudors and the Age of Elizabeth: The Tudors Miniseries [to be completed]

Next: Cromwell: Not a Monarchist, Not a Constitutionalist: The Devil's Whore [to be completed]

Thursday, December 25, 2014

Movies and the U.S. Constitution: The War of the Roses; Lancaster and York and Cognatic Descent: The White Queen

This is part of a series of posts following this summary of movies that provide a chronological history of the U.S. Constitution.  Here's the summary.

The War of the Roses; Lancaster and York and Cognatic Descent

5.    The White Queen (BBC Miniseries, 2013): 1464 and subsequent years
 A.            Rule of Law.  This is not addressed much in this movie, which was about the struggle for the throne.  The struggle is really a military one.  The issue of agnatic, or male-line, descent (the York position) or cognatic, or male and female line, descent (the Lancaster position) being dispositive is not a topic the Magna Carta or any legal authority had established.   On the continent, a "Salic Law" had been defined requiring agnatic descent.  The Salic Law would disinherit many daughters on the European continent.  In Britain, a different history ensued, however, as well shall see.
B.            Use of the Term "Person".  The main significance of this movie for the illustration of this issue is the focus on three women, Margaret Beaufort, Elizabeth Woodville and Anne Neville, and lies in the illustration of women holding power as mothers, but not in their own right, and in the illustration of all the children of a king becoming recognized as heirs, not just the sons and not just the children of his marriage.  Margaret Beaufort, of the House of Lancaster, was the descendant of an "illegitimate parenting" by John of Gaunt and Katherine Swynford, which gave her a direct line of inheritance via their son.  

Unlike Mathilda in the depiction in Pillars of the Earth, Margaret Beaufort did not try to rule in her own name, but sought to have her son recognized as the heir.  Margaret of Anjou (who is depicted in only a few scenes in the miniseries) also plays a role, leading the House of Lancaster into battle, standing in for her infirm husband, King Henry VI, and seeking to have her son Edward throned (he died in battle with the Yorks).  

Both Margaret of Anjou and Margaret Beaufort were known for their indomitably and their success at finding their agency when involved with powerful men.   Margaret Beaufort's father had been known for recognizing public roles for the women in the family, including his wife.  Margaret of Anjou led the House of Lancaster into battle and her son was killed at age 14 in battle.  In their actions, however, both women asserted themselves this under the view of protecting their sons' rights and sought status as mothers of sons who held status, rather than in their own name, with the son's status deriving therefrom.

Nonetheless, what was really going on was an effort to maintain cognatic descent again as had happened with Mathilda in the depiction in Pillars of the Earth.  This lineage of cognatic descent (or descent through both male and female parents) is in contrast with agnatic descent (descent through only male parents).  The Lancasters were arguing cognatic descent, the York's were arguing agnatic descent (even though they also had a claim of cognatic descent, but inferior to that of the Lancasters). 

The claim of cognatic descent was not "pure", i.e. it did not derive from the first cognatic descendant of the line in question, the children of John of Gaunt. This first cognatic descendant of John of Gaunt, Phillipa, had a number of descendants living during this time who could have asserted claims as well.

Elizabeth Woodville was the wife of Edward IV of the agnatic-descent-advocating York faction and the mother of his first children (he later had a number of children with other women); her son would later hold the throne as a child under regency as Edward V, as one of the "Princes in the Tower", but disappeared (presumably at the hands of his regent and York uncle, who then became Richard III).  Woodville is depicted embracing witchcraft, again as a reactive type of power women held in regimes where they were oppressed, as they would be more so under the agnatic descent of the York cause than the cognatic Lancaster cause. 

Margaret Beaufort's son, Henry Tudor (becoming Henry VII) would defeat Richard III in the decisive battle where the Lancasters defeated the Yorks, with Henry Tudor becoming King  Henry VII through the female line.  Henry VII married Woodville's daughter, Elizabeth, though, producing a cemented line of descent for the Tudor Kings through right to rule passing through daughters (a much later furtherance of Mathilda's son Henry II also inheriting through the female line).  Cognatic descent via the House of Lancaster also played a role in monarchies in Spain, and Catharine of Aragon, who would later marry Henry VIII, also held this cognatic Lancastrian descent through her mother, Queen Isabella of Castile (who married King Ferdinand of Aragon).

The irony that the paternity of a child could not be proven and that descent through the mother was the only line that could be proven is not highlighted in the miniseries, however, Richard III's body was recently located, buried under a parking lot, and the DNA of Richard III of the agnatic descent-advocating House of York has proven to be disconnected from the male line from which he supposedly inherited (the "false paternity" could be before or after Richard III).  

Marriage created a presumption of paternity, but was of course not definitive.

Today, paternity is 99% provable via DNA evidence, which has implications for the US Constitution, as we shall see.

Previous: Scottish Independence, William Wallace edition: Braveheart

Next up: The Tudors and The Age of Elizabeth: The Tudors [to be completed]

Movies and the U.S. Constitution: Scottish Independence, William Wallace edition: Braveheart

This is part of a series of posts following this summary of movies that provide a chronological history of the U.S. Constitution.  Here's the summary.

Scottish Independence, William Wallace edition

4.    Braveheart (US film, 1995): set in 1280 and subsequent years
Relevance to the US Constitution
A.            Rule of Law.   Braveheart, directed by and starring Mel Gibson, is considered one of the most historically inaccurate movies made inrecent years.  Interestingly, The Patriot, also a Gibson vehicle, is also on this list of historic inaccuracies.
Gibson has been an intense political advocate of the establishment of Catholic ideology in the US.

While there is a strong connection between the Scottish Highlanders and the Catholic Scottish Jacobites, who fled in large numbers to Appalachia and the South of the British American colonies after the Glorious Revolution, Gibson's histories curiously exclude the Covenanter Protestant (later Presbyterian) and Enlightenment lines of Scottish heritage.

What this movie does depict accurately with regard to the rule of the law is that the Scots were not much in the way of lawmakers or constitutionalists themselves.  Their reputation tends to focus on their penchant for challenging bad "rule of law" via violence.  

By the time of the British American colonization, many Scots-ancestry colonists were ardent advocates of independence from Britain, but they did not participate in drafting the Constitution. They became famous for their intelligence, loyalty and warrior skill, but coupled with a reactivity, lawlessness and violence that leads to problems.
Much is made in the movie of the prima nocte, ostensibly established by the English King, Edward I, after Scotland's king died without an heir and England overtook it in 1280.  The prima nocte is a law that a lord has the right to have sex with female subjects on their wedding nights.  There is not any evidence that Edward I created such a law, although he was known for his establishment of laws in England, which he did through establishment of Parliament, for which he is highly regarded, but which he also sometimes did arbitrarily and caused much conflict between him and the Barons and others in England, much less the ones in Scotland, and which resulted in England in another round of establishment of law or constitution over King in the style of the Magna Carta.  Scotland, more under the leadership of Robert the Bruce than William Wallace, also ended up regaining its independence under Edward I's reign.

Several centuries later, Scots would become involved in the 1688 Glorious Revolution, in which James II, the last Catholic King, was deposed.   Many Scots Jacobites (the supporters of James II) moved to Appalachia in the US following this event.  After the Glorious Revolution, the English Bill of Rights was adopted and William & Mary were asked to rule jointly at the consent of, or in contract with, Parliament.  Then in 1707, because of these developments and because of a financial scandal that harmed Scotland economically, Scotland gave up its independence and it and Britain united in the form they hold today via the Act of Union.

The movie also depicts the importance of actual paternity to Scots, although it notably does not discuss how this relates to objection to Catholicism.  The "virgin birth", a Catholic concept, would come to be a consistent "trigger concept" to Scots, as it did to all Protestants in the Reformation and Enlightenment (which had some of its roots in Scotland and which was in part a reaction to the Pope's elevation of the "Virgin Mary" in the Counter Reformation). 

Even today, regions of the US that were established by Jacobite and Covenanter Scots, in particular, such as Kentucky and Louisiana, are some of the most ardent opponents of the Affordable Care Act, which troublingly does establish a "health care law of the land" that women are the only biological parents of children in its preventive care and reproductive health provisions. 

This type of reactivity and lack of interest in rule of law by Scots, and their descendants in the US, led also to their creating the tradition of the "shotgun marriage", where the marriage and paternal responsibility is established first by violence and only later by law.

The Scots' reputation for challenging bad laws shows up in their role in the defeat of slavery in the US.  Their warrior ways and their objections to laws in the South establishing slavery were instrumental to the US abolishing slavery laws through violence in the Civil War. 

B.            Use of the Term “Person”:  The movie does not show any women as warriors, although this existed in Britonic and broader Celtic history.   Women in this political economy often were not constrained by gender-stereotype taboos on being warriors or on engaging in feats of physical labor often associated with men, such as slaying animals.  This was particularly true of women who were widowed or single. They could therefore be "men", in the roles men played in this culture, and did not face the stigmas, such as being called "witches", that many widowed or single women did.  Consistent with the value placed on actual paternity, men also showed affection to their children particularly at their birth, albeit without the type of daily follow-through meeting their needs and developmental stages that children actually need other political economies of the time recognized.

The movie is very much focused on a "rights of man" concept, including the right of the groom to be the first to have sex with his wife.  It is not about the rights of the woman.   This is consistent with the Declaration of Independence, which the Scottish-ancestry colonists ardently pushed for, which is framed in "rights of man", unlike the "rights and responsibilities of person of citizen of the later British constitutions and the US Constitution.

Even today, constitutions settled by lots of Scottish ancestry people have this "rights of man" language.  Examples are the constitutions of Virginia, Kentucky, Tennessee, and Kansas.

The "rights of man" language and ideology conflicts with the "rights and responsibilities of person and citizen" US Constitution.   The Scots-ancestry colonists did not participate in drafting the US Constitution to the degree they had functioned as ardent advocates of the Revolution.

In Medieval England, however, women, particularly from the House of Lancaster, continued to assert themselves against both the "rights of man" ideology and the institutionalized oppression of women by the Catholic Church ideology, as we shall see in the next movie.