Submitted to a Candid World
Archive for June 2010
Taking Rights Seriously Means Taking Guns Seriously
As noted by other commentators, the Supreme Court’s decision this past Monday, in McDonald v. Chicago, No. 08-1521 (June 28, 2010) (pdf), suffers from no lack of irony. Here we have two of the Supreme Court’s staunchest opponents of positive rights — Alito, who has previously tried to gut Roe, and Thomas, who speaks of “a proliferation of rights” as if it’s some ominous thing — penning ringing defenses of the principle of “incorporation”: the idea that states, too, should be bound by the Bill of Rights. And, arrayed opposite, the four reliably liberal jurists arguing for a limited view of the Amendments. This split ought to be discomforting, for both sides of the debate, and we on the left should endeavor to bring consistency at least to our position.
The McDonalds appeal posed three questions: (1) whether the Privileges & Immunities Clause, neutered by the Reconstruction Court, ought to make the full Bill of Rights applicable to the states; (2) whether, if not, the Due Process Clause picks up the slack, and; (3) whether the Second Amendment retains its vitality despite the passage of centuries. Both wings of the Court passed on #1, refought #3 to the same result, and split over #2.
Truly there’s room for principled debate over the second question. The Supreme Court’s hitherto disjointed treatment of incorporation doctrine leaves adequate cause to argue that the Second Amendment is not “an indispensable attribute of any ‘civilized’ legal system,” and therefore ought not to be incorporated against the states. But that doesn’t mean this is a battle worth fighting. The terrain is too slippery, the inconsistency resulting from victory too troubling, and the argument too pointedly at odds with a tenet otherwise central to our political philosophy: that while states can and should experiment with methods of governance, and ought to be free to protect rights at some level above a federally mandated, constitutional floor, that floor ought to be one that takes serious rights seriously.
If there’s to be a liberal case against incorporating the Second Amendment, then, it has to be based on the idea that the Second Amendment isn’t serious; that it doesn’t mean what it says, and that the history isn’t what it is. We lost this uphill battle years ago. 2008′s Heller binds us to an expansive view of the Amendment, and it’s probably right, constitutionally. Of course, that doesn’t make it good policy. In fact, the Second Amendment is best viewed as a dangerous relic, the kind that puts lives in danger by virtue of its very existence. Like the Maltese Falcon. But it’s there, and we need to live with it.
This means giving up on gun regulation as a question to be resolved legally, taking the Second Amendment seriously alongside the rest, and accepting the rather serious silver lining that, on Monday, the Supreme Court made conservatives cheer the Fourteenth Amendment. It doesn’t mean giving up on controlling gun violence, an issue we should now strive to address culturally. That’s a longer battle, but it’s one we can fight and win while remaining faithful to our larger ideology.
They Supported The Troops, Before They Didn’t
In another one of those little moments that shows just how far from orthodoxy the minority GOP has fallen, the Republican House caucus threatens, plausibly, to vote against a bill funding America’s continued presence in Afghanistan, unless the administration excises non-defense spending (“socialism”).
Lest we forget, Democrats, too, have used defense bills as battlegrounds for larger economic issues: Senate Democrats nearly canned a Bush administration-backed $87 billion war spending bill in favor of an identical bill, to be funded by reversing Bush’s most irresponsible upper-class redistributive tax cuts, but fell just short.
And we payed for it. The distinction between voting against a funding mechanism and voting against the funding itself is tough to draw for a bored public, and eminently spinnable. One such fight functionally ended Senator Kerry (D-MA)’s run in 2004. It’s the stuff Republican dreams are made of: a chance to oversimplify a debate, excise nuance, gloss over irresponsible tax cuts, and make Democrats look weak, all at once!
We could do the same if Obama’s bill comes to a vote, and Republicans stonewall it. The difference between our parties? We won’t. But we probably should.
Empathy & the Rule of Law
Not to duplicate what’s surely been the subject of thousands of high school papers, and probably at least one Harold Bloom essay, but Shakespeare’s protagonists in The Merchant of Venice, performing now at the Public Theater’s Shakespeare in the Park program, get the Act IV, Scene 1 resolution of the Shylock/Antonio conflict precisely wrong. By way of background, Antonio, the eponymous merchant, secures a loan from Shylock, a Jewish moneychanger, by pledging as security a pound of his own flesh, due only in the event of default. Naturally, against all odds, Antonio defaults, and Shylock sues to gain his flesh.
This all culminates in a dramatic courtroom scene, where the Duke of Venice, and his assembled judges, beg Shylock not to pursue what is, by the strictest letter of the law, his: Antonio’s life. Shylock refuses, but Antonio is saved when a mysterious jurist asserts a technicality to defeat his claim, and, in what comes to resemble the legal equivalent of mob violence, strip Shylock of his property and forcibly convert him. Hmm.
As a matter of jurisprudence, this result ought to disappoint — and not just for the truly epic, anti-Semitic overkill. Shylock shouldn’t lose because defense counsel is more clever and splits finer hairs; he should lose because he’s wrong, and supervening notions of justice ought to defeat a technically lawful but morally deficient claim.
Although that statement will strike most as naïve, the law regularly provides for just such “outs.” A contract may be voidable where obtained by duress, where it results from an unconscionable process or creates an unconscionable result, or if it violates “public policy.” A foreign act or judgment may be denied comity where its enforcement would similarly violate public policy (this is the theory behind the Defense of Marriage Act; why “public policy” defeats the constitutional text, though, is another question entirely). And the state may by general (but not specific) law proscribe certain bargains, and therefore limit the right to contract. Some of these doctrines prove incredibly difficult to implement; accordingly, they see little application, not because we don’t trust their motivating theories, but because we can’t trust ourselves to implement them well. Nevertheless, they’re worthwhile tools, not just because they help jurists reach the right result in tough cases, but because by their use, they affirm the vital understanding that laws reflect but are not themselves morality (cf. Piso’s Justice).
Contra Republican talking points, appreciating this point is a vital part of the task of judging, and underlies some of the more important legal victories of the modern era. For example, it’s a politely kept secret that the Commerce Clause probably doesn’t, of its own force, support modern anti-segregation laws — but woe betide the judge who holds as much. Somehow, still, the importance of empathy, and the notion that justices ought to care about Justice writ large, remain controversial. Knowing this, it’s hard not to see Merchant of Venice as a missed opportunity. It’s a much better story, and says better things about us as a culture, if Antonio survives because of something more than a technicality. Of course, that would make good law, but it probably wouldn’t make good theater.
The Case for the War
By replacing General McChrystal with Petraeus, President Obama did more than change Our Man in Kabul — in the face of a somewhat major threat, he ratified the military chain of command, with himself at the top, and preserved civilian control of the military for another day. There was never a danger that McChrystal would “march on Washington,” but such a cavalier attitude (RS original) towards civilian leadership, as one friend put it to me, “threatens to threaten” civilian control, and left uncured erodes the respect upon which the commander-in-chief’s power stands. Institutions like these never fall with a bang, but the process always begins with a nudge. Caesar felled the Roman Republic, sure, but he did it swinging Marius’ sword. Yesterday, Obama broke that sword.
Perhaps surprisingly, even the Republican Party agrees. Indeed, the only group upset with Obama’s handling of McChrystal’s ouster seems to be the far-left, with Andrew Sullivan at its head. In Petraeus’ new command, and despite Obama’s promise otherwise, Sullivan sees the seeds of a permanent war:
Those of us who hoped for some kind of winding down of the longest war in US history will almost certainly be disappointed now. David Petraeus is the real Pope of counter-insurgency and if he decides that he needs more troops and more time and more resources in Afghanistan next year, who is going to be able to gainsay him? That’s Thomas P. Barnett’s shrewd assessment. Obama’s pledge to start withdrawing troops in 2011 is now kaput. It won’t happen. I doubt it will happen in a second term either. Once Washington has decided to occupy a country, it will occupy it for ever. We are still, remember, in Germany! But Afghanistan? [. . . .]
It really is Vietnam – along with the crazier and crazier rationales for continuing it. But it is now re-starting in earnest ten years in, dwarfing Vietnam in scope and longevity. [. . . .]
This much we also know: Obama will run for re-election with far more troops in Afghanistan than Bush ever had – and a war and occupation stretching for ever into the future, with no realistic chance of success. Make no mistake: this is an imperialism of self-defense, a commitment to civilize even the least tractable culture on earth because Americans are too afraid of the consequences of withdrawal. And its deepest irony is that continuing this struggle will actually increase and multiply the terror threats we face – as it becomes once again a recruitment tool for Jihadists the world over.
There’s a lot wrong here — or, at least, we should hope there is. I don’t presume to know our chances for actually stabilizing Afghanistan, and I don’t think Sullivan can, either. But our mission’s difficulty doesn’t make Afghanistan like Vietnam. Afghanistan is not a proxy war against a nation-state and its puppetmaster, begun only to wound the latter. Whatever it has become, the conflict in Afghanistan began with a nobility of purpose (self-defense), and with the widespread support of the American people, both of which we lacked in Vietnam, and both of which improve our likelihood of success. Perhaps more importantly, nationbuilding in Afghanistan isn’t nationbuilding for its own sake, but in furtherance of the initial goal: displacement of state-sponsored terror in the region. This, again, conveys a clarity of purpose that we’ve lacked in other modern conflicts.
Nor is our continuing presence in Germany evidence that “once Washington has decided to occupy a country, it will occupy it for ever.” Our German bases, opened in worldwide war, and continued first at the request of a beleaguered ally, and then to cement a permanent alliance (NATO), present a fact pattern not likely to recur, and depend upon rationales that can’t be applied to Afghanistan. Obama may be continuing Bush’s war, but he’s discarded Bush’s Crusader-state mentality, and with it any philosophy capable of justifying permanent occupation.
All of this is to say that the war in Afghanistan remains conceptually defensible. Practically, it may be another story. But that kind of evaluation is above my pay grade, and above Sullivan’s, too. Deprived of conceptual objections, we, both as Americans and as progressives, should be wishing Petraeus well, especially because if he pulls this off, it’s one for the history books.
Tea Parties: Popular, But Not Populist
Matthew Continetti, whom, until recently, I held in almost unfathomably low esteem, deserves praise, and is getting it, for parsing the tea party movement for us, and substantially dispensing with its most undesirable elements. But let’s look deeper.
In one long article, largely bereft of the flim-flam that’s characterized his other popular columns, Continetti manages to isolate two distinct strains of tea party “thought,” and utterly demolish Glenn Beck’s, which he properly identifies as the lesser of the two. Samples:
[Beck's equivalence between liberals and fascists] is nonsense. Whatever you think of Theodore Roosevelt, he was not Lenin. Woodrow Wilson was not Stalin. [. . . .]
For Beck, conspiracy theories are not aberrations. They are central to his worldview. They are the natural consequence of assuming that the world hangs by a thread, and that everyone is out to get you.
In substantiating these allegations, Continetti takes the liberal, Salon-level critique of Glenn Beck’s philosophy — that its indebtedness to obscure Mormon ideologue Cleon Skousen proves its identity with the John Birch Society and other whackjobs — and mainstreams it. Good. In the process, Continetti even gets away with a few zingers.
But he still makes the critical error of equating the tea party sentiment, whatever it is, with some form of conservative populism, powered by an abiding respect for America’s founding mythology. It’s neither, and these are errors we shouldn’t overlook just because the latter half of the article scores some overdue points against bigotry. For Continetti, the tea party movement:
[D]raws its strength from the American founding. It celebrates the Founders and their ideas. Tea Party members devour books about George Washington, Thomas Jefferson, and Samuel Adams. They carry pocket copies of the Constitution and the Declaration of Independence. They believe strongly in the Bill of Rights, especially in the Tenth Amendment’s admonition that all powers not delegated to the federal government are reserved for the states and the people. Their rhetoric invokes the constitutional vision of a limited government with enumerated powers.
Well, kind of. Tea party rhetoric invokes a “constitutional vision,” but not the one that carried the day at the Convention, as the focus on the Tenth Amendment evidences. By setting that amendment over the rest of the document, and especially critical passages like the Necessary & Proper Clause, tea party members effectively disregard all of the history that followed after the Constitutional Convention, even some that followed within a matter of decades, thus recasting rather than honoring the delicate balance set by the Founders. As surely as Theoderic the Goth’s famous exhortation that the conquered Romans “clothe themselves with the morals of the toga” facilitated the usurpation rather than the reinstatement of Roman rule, so tea partiers’ usage of the vocabulary of the Founding indicates an awareness of, but not necessarily a respect for, its ideas. Those are not the same things. One is subversive, the other reverent; one can coast on the endless repetition of a few phrases (“We the People!”), while the other requires actual study, maybe even an “elitist” degree here or there.
Further, there’s nothing “populist” about Rick Santelli, whom Continetti hopes to pass off as the moderate, even-tempered foil to Beck’s dangerously unbalanced side of the movement. But Santelli’s famous anti-bailout harangue rebuts any claim to moderation, and despite Contenetti’s best efforts, doesn’t really fit into a populist mold. God bless him, though, he tries!
The topic may have been economic policy, but Santelli really was making a moral argument. For him, the housing plan rewarded bad behavior. It changed the rules so people could remain in homes that they shouldn’t have been able to purchase in the first place. The responsible taxpayer’s earned wealth was being diverted to bail out the irresponsible. Government modification of interest rates was a band-aid that didn’t address the underlying problem. “You can go down to minus 2 percent [interest],” Santelli said. “They can’t afford the house.” This, in Santelli’s view, was the textbook definition of moral hazard.
In Santelli’s opinion, American elites had neglected the people surrounding him, the commodities traders who made up “a pretty good statistical cross-section of America, the silent majority.” The silent majority felt separated from the democratic process. It was tired of seeing the government redistribute income to individuals who did not deserve it. If the people had the power to shape policy, Santelli implied, things would be different. “How about this, president and new administration,” Santelli said: “Why don’t you put up a website to have people vote on the Internet as a referendum, to see if we really want to subsidize the losers’ mortgages…”
This is popul-ar, in that it channels a rough, angry, mob-like anger, but it’s not popul-ist, and the passing reference to “elites” doesn’t somehow work the necessary transformation. Santelli and the tea partiers look at the financial crisis and see irresponsibility, not by corporate America, not by Goldman Sachs and Magnetar, but by you and me. We lived beyond our means, and now we deserve to reap the whirlwind, but instead, good, salt-of-the-earth television anchors (?) like Santelli foot the bill for our recovery, thanks to Obama’s “socialist” policies. This a very Calvinist way of looking at things. It also makes good storytelling, and may even be right (that’s quite collateral to the matter at hand), but it’s the antithesis of populism. The very minute you look for enemies below rather than above you, the populist mantle, at least as worn by Jackson and Bryant, slips from your shoulders.
It seems to me that the tea party movement hopes to use populism as an excuse to rely only on “common sense” and pocket Constitutions in policymaking. This was Santinelli’s point, and it’s routinely Beck’s and Palin’s too. But that’s feel-good demagoguery, not populism, and showy pretension, not a genuine interest in the Founders’ legacy. Until the tea parties outgrow both instincts, they won’t deserve our respect. But if they do outgrow both, will there be anything left of them?
Tea Parties, Recall, and the Fracturing of the Union
Last week, we noted a curious new goal of the tea party movement: the end of direct election of Senators, and its replacement with the original constitutional scheme, which sought to place a desirable distance between the people and their representatives. This is the sort of thing tea partiers normally oppose, but would work a political victory in several states, thus making it worth Glenn Beck’s while to fabricate an argument for the Seventeenth Amendments’ repeal. Charming.
This goal comes into direct tension with another of their quests: the institution of formal recall procedures throughout the states, allowing voters to, at presumably any time, claw back and replace a federal Senator. New Jersey provides the first battleground, where a challenge to recall Senator Menendez proceeded, bizarrely, in March of this year, when Jersey’s intermediate appellate court opined on the probable-but-questionable constitutionality of Jersey’s recall statute, but stayed its order pending Menendez’s to the New Jersey Supreme Court.
Crucial to the Court’s logic (pdf) was the instantiation of the Seventeenth Amendment. Under the pre-XVII federal structure, the Founders considered and appeared to explicitly reject a provision allowing state legislatures to “recall” Senators. Thankfully for the tea partiers, the Court went on to find that the Seventeenth Amendment rendered this compelling historical fact at least partially off point. Because the Amendment put Senate elections more clearly in the people’s hands, it effectively created a new balance of democratic interests between the states and the federal government, one to which the Founders’ 1789 debate on recalls does not directly speak.
Consequentially, the tea party movement can win one, but not both of its Senate reform proposals. Either the state legislatures select their Senators but can never recall them, or the people continue to directly elect Senators, and might be able to recall them, if conservative lawyers of dubious quality win a severely uphill battle. Choose your antidemocratic adventure!
For such both “reforms” are. Despite their contradictory natures, both of the tea party’s quests to “reform” the Senate would render the Senate more fractured, and more corrupt. We’ve previously covered the problems with indirect election; with regularly used recall provisions, every major piece of legislation would devolve into a question of whether individual Senators can be recalled in time to stop the bill. More delay, more vitriol, and more litigation are, collectively, the exact opposite of what the Senate needs. This isn’t “conservative” or “populist”; it’s anti-government quackery/narrow-minded single-issue politics masquerading as such, in the hopes of scoring one or two quick political points before the whole thing implodes.
As ever, let’s not kid ourselves that this fight, or these people, are about principle.
I’m SO That Guy!
In honor of the closing week of the Public Theater’s Bloody Bloody Andrew Jackson, I’m renaming the “Populism” tag to “Populism yeah yeah!” Adjust your bookmarks accordingly!
New Yorkers, go see this show while you still can! I’m definitely going a second time. I will make them all BLEED.
A sample, from the less polished world premiere. The current lead is great, and already has a movie deal!
My God, They’re Standing By the “Shakedown” Line
It’s… beautiful.
Although the Republican Party has been quick to officially run away from Joe Barton (R-TX)’s “apology” to Beyond Petroleum (loving the rebrand right about now), some at Politico note that the sentiment, in all likelihood, runs pretty deep, as a few anecdotes from the Party’s more radical (and therefore popular) politicians indicate. Amid such tight message control, the big pushback to the Obama administration’s plan to require BP to pay in to a $20 billion, independently managed compensation fund is coming from surrogates, like Michelle Malkin’s only-slightly-more-classy front, Hot Air. Starting from the premise that the fund approximates a “shakedown,” the site goes on to compare the fund to “Chicago” politics (whatever that stereotype implies), “SEIU/UAW tactics writ large,” “government-by-agency,” and alleges actual corruption on the administration’s part in the process:
Congress chose to do this for reasons that are no doubt corrupt, because they are self-serving and short-sighted; but money probably didn’t change hands in a way that’s literally unlawful.
It’s far too kind to note that this kind of rhetoric isn’t supported by the evidence. It’s just insane.
Better yet is the “conservative response” to a natural disaster like the Deepwater Horizon spill: remove the damage cap, then let the market solve it!!
Suppose Congress had not set such a cap? Oil companies would have needed to pay a lot more for insurance. They would have been less likely to drill in deep water near America’s coasts. Drilling elsewhere, in waters governed differently by other nations, would have been more appealing at a given price point for the product.
They would have been more eager to drill in shallower water, where the risks aren’t nearly as great; but of course, we don’t let them do that now. Our gas would have cost us a bit more, reflecting the risk premium that would be represented more accurately in the cost of insurance than by the arbitrary cap set by Congress. BP would have been more anxious to avoid a drilling accident, and would probably have routinely paid more to execute the whole process because doing so was a way of keeping insurance costs down. When an accident did occur, the insurer would have to hemorrhage money in settlements, and premiums would go up for everyone they insured, not just BP. But BP and the private insurer wouldn’t be liable for the consequences of unnecessary actions taken by the government.
It’s curious to see conservatives turn the oil spill damage cap ($75 million total for private claims, plus cleanup costs) into an enemy. The cap originates from the Oil Pollution Act of 1990 (specifically 33 U.S.C. § 2704(a)(3)), which is the product of a Republican Congressman and a Republican presidency, and is otherwise the kind of bill that conservatives normally love, premised on the economic value of protecting industries from crushing, anti-competitive liability, even (and especially?) where the little guy stands to suffer. Cf. the Private Securities Litigation Reform Act of 1995, which the Contract-with-America Congress passed over Clinton’s Kagan-inspired veto, and which profoundly limited the conditions under which a private citizen can recover damages for securities fraud.
Now we’re told that we ought to rely exclusively on a damage cap repeal, and the chance that it would, alone, alter market incentives enough to produce valuable, socially responsible behavior. This is naïve, inefficient, and laughable.
First, let’s put to bed the theory that BP will compensate victims on its own. Even ignoring the odd abuses that have already cropped up, by BP’s own admission, since the spill, they’ve only handed out 31,000 checks, totaling $104 million. They brag about this, but do the math. That’s an average of $3,354.84 per claimant — a pittance that doesn’t come close to approximating the damage suffered by any given Gulf inhabitant.
Second, simple market pressures don’t apply to economic supergiants like BP, especially where wrongdoing can be covered up, or its compensation delayed. For companies like BP, the decision of whether to risk catastrophes involves a calculus that balances those variables, and excludes moral points. The potential for delay, especially, mitigates the impact of incentive structures like the one our author here proposes. To demonstrate what I mean by that, let’s move on to the third point.
As every law school professor drills into you from day one, litigation is costly, messy, and inefficient. Letting individual claimants litigate their claims, even absent damage caps, would mean tying up both the Fifth and Eleventh Circuits for the foreseeable future, and would subject such claims to the incredibly drawn-out process that is federal litigation. Claimants might start seeing uncontested verdicts in a few years. Maybe. The government has created massive trust funds with no-fault claim systems (asbestos) before; why not do the same here, and start making the Gulf’s citizens’ whole again, today? Because speedy redress isn’t the GOP’s goal. This isn’t about principles. It’s about wounding Obama however possible, and if the attack-of-the-moment provides an avenue to run to the defense of corporations, hey, all the better.
I’ll leave you with Hot Air‘s pathos-laced coda:
On such a thread hang our civil rights in Obama’s America.
Ah, I weep! Telling, isn’t it, under what conditions the GOP chooses to care about civil rights and due process?
We’ll Raise Up Our Glasses Against Evil Forces, Singin’ —
There’s an old Toby Keith song that numbers among my guiltiest pleasures. It begins:
Granpappy told my pappy, “Back in my day, suh-uhn,
A man had to answer for the wicked that he done.
They call a rope in Texas, find a tall old tree,
Round up all of them bad boys, hang ‘em high in the street.”
For all the people to see.
That Justice is the one thing you should always find,
You gotta saddle up your boys, you gotta draw a hard line…
Has a sort of late Roman Republic ring to it, doesn’t it? Crucify ‘em all, and line the Via Appia with their remains?
Catchy song, though — and it stands as an anthem to the conservative notion that Justice should be swift, brutal, and unburdened by a surfeit of procedural protections, pre- or post-conviction. Let’s see how that stacks up against the modern GOP’s anti-populist, neo-Lochner respect for corporate “liberty” above all:
Let’s be honest. The White House meeting with British Petroleum was a shakedown.
The White House threatened criminal prosecution of BP, the President gave a miserably received speech, then he hauled BP into the White House and put the Attorney General in the room with the CEO to stare at him, then the President demanded $20 billion.
It was a shakedown.
Poorly. RedState’s Erick Erickson continues:
Had British Petroleum affiliated with Al Qaeda and tried to blow up an airplane, it would have gotten due process rights, a court appointed lawyer, and miranda warning while avoiding Henry Waxman.
Obviously, this is an unfair characterization. The criminal presumption of innocence is a much stronger shield than the civil fact of, “I saw your company flout safety regulations, flood our shores with oil, and not do a damn thing about it.” And there’s nothing improper about threatening a company with prosecution for crimes and civil wrongs it did in fact commit. In fact, it’s the very definition of fairness: compensate our citizens and our country for what you did to us, or we will gut your company to the fullest extent of the law. The last caveat is key, but Erickson never even attempts to argue that BP hasn’t committed a wrong that would justify prosecution, to the tune of $20 billion or more (including legal fees).
Has the GOP so far abandoned populism, and a decent respect for the dignity of this nation and its people, that we’ll shed tears over the plight of a megacorporation, and not the citizens of the Gulf, whose lives will never be the same? Well, when John Boehner has to remind his ranks — unsuccessfully — not to appear “sympathetic” to the oil industry, yes. So much for “draw[ing] a hard line.”
How is this, too, not a homeland security issue?
For your, ah, enjoyment, Toby Keith & Willie Nelson’s music video, below the line: Continue reading
