Archive for 2011

A New Birth of Freedom

I’ve been thinking about this subject for a while (especially while taking a break from writing over the last few weeks), and as an important one, it seems an altogether fitting topic with which to close 2011. In brief, it’s time for us to reclaim one of the most important words in our political vocabulary.

A few years back, Congressman Ron Paul (R-TX) filed his bill proposing a “Liberty Amendment” to the U.S. Constitution. Call it a presumptuous title for a mundane bill, for despite its nod to grander first principles, Paul’s amendment speaks to nothing so noble as what we generally mean when we invoke  “freedom” or “liberty” — such as the more stirring guarantees of self-determination, won at such great cost over the previous 200 years. The amendment neither provides a textual home for the assumed constitutional right of privacy, nor gives shape to its amorphous contours; nor does it propose some necessary limit to the executive’s wartime powers over American citizens, foreign or domestic; it doesn’t even speak to equal protection of the laws, or “rights” in any classical sense. In short, the Amendment skips right over the many, serious affronts to personal “liberty” posed by the problems of twenty-first century life, and fails to consider “freedom” in any recognizable sense.

No, nothing so important. What the “Liberty Amendment” does do is end the income tax.

So in Ron Paul’s hands, the greatest watchword of American democracy reduces to a buzzword for radical, Norquist-style libertarianism, “liberty” of the pocketbook, the “freedom” from filling out forms. If this strange act of legerdemain were blissfully confined to the periphery — to a candidate so thoroughly sidelined by his party that he can’t win a caucus by winning it — it would merit a laugh, and a sad shake of the head, but not a post. Instead, Paul’s gimmick represents the clearest iteration of a growing Republican trope, that the defense of economic liberty — from government interference in personal and corporate finance, or from paying that sum of money necessary for the maintenance of an advanced society — is the highest, and not the lowest, calling of the patriot.

This is not to say that freedom doesn’t contain a monetary component; it does. The ability to dispose of one’s assets as one sees fit, and for one’s own benefit, is an indispensable part of the bundle of rights that together comprise “freedom,” in the American sense. And economic compulsion at the hands of a tyrant is, tautologically, tyranny. As a people, we have always said so. But there is a vital difference between the extraction of wealth from a nation in service of an unelected foreign king, and the extraction of wealth that occurs pursuant to a law, duly enacted by a legislature serving in the peoples’ interest and at the peoples’ pleasure, to sustain a free society. The former is tyranny; the latter simply a fact of life in any civil society, for no civilization has ever defended and enabled the property rights of its citizens and not asked a price for the service. This distinction should be obvious from history: the founding generation didn’t fight taxes. They passed taxes. What they fought was taxation without representation.

The prepositional phrase isn’t an afterthought; it’s the entire issue. Similarly, human society and the American people have always signed off on measures that, while restricting the few, inure to the benefit of the many. To the extent that there has ever been any dispute on the issue, it was resolved long ago in the favor of the people over the oligarchs. No private citizen possesses a “liberty” or “freedom” interest in any  activity that enriches him at the expense of the larger society. To say so is not “socialism,” or a denial of basic American freedoms. It’s a bedrock principle of our constitutional system, tracing (at least) to Justice Holmes’ ultimately triumphant dissent in Lochner v. New York:

The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well known writers, is interfered with by school laws, by the Post Office, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not. The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics.

We may differ as to the amount of regulation, or the amount of taxation, needed to strike a fair balance between the rights of the few and the needs of the many. But the resolution of those debates in the favor of regulation does not implicate the “freedom” of the regulated, or the “liberty” of the taxed. Reasonable economic policy speaks the pocketbook, not the spirit. “Freedom” and “liberty” demand that the people have a say in how we as a society (“we the people,” to deploy a previously stirring phrase whose appeal the Tea Party has all but killed by overuse) regulate each others’ economic activity. They emphatically do not prevent the government from taking up the vital work of compelling all economic players to adhere to basic rules against sophisticated theft, nor do they prevent the peoples’ representatives from asking that we all contribute in kind to the very government that such makes economic activity possible.

This is to say, assuming a society defined by laws, neither freedom nor liberty are about what we possess. They’re about who we are. This is a distinction we must draw in the coming year.

Congratulations Mike!

Please follow our friend and erstwhile political opponent, Mike, at his new home. We’ll link to his introductory post, his first substantive post, and his new home, League of Ordinary Gentlemen. Though we’re sparred on issues of policy — and I think he probably wishes me dead for my wholehearted embrace of one kind of absurd, showy populism (Occupy Wall Street) but not the other (the Tea Party) — he’s an excellent individual whose opinions I’ve always respected. Wish him well in the new year, and be sure to follow. Ah, and apologies for my extended hiatus from writing. That ends…. now!

Remembering Mr. Hitchens

It’s an insecure, easily-threatened worldview which feels the need to frame every tragedy its opponents face within its own narrative. But that’s the outpouring we’ve seen from some on the Christian right over the passing of the prominent, relentlessly thoughtful atheist advocate Christopher Hitchens. Most of the acknowledgments take this simple form — “now he knows” — as if, somewhere, Mr. Hitchens is finally receiving his cosmological come-uppance. The sentiment is as arrogant as it is mean-spirited, even if delivered lovingly (as by Mr. Warren). And it’s also wrong.

Personally, I don’t stake a position on the theism v. atheism debate. It feels like a hard thing to be certain about, and (personally) I would hope there is some cosmic force that watches over mankind, for we sorely need it. Against such doubt, the only thing one can say about Mr. Hitchens is that either he does know, or he doesn’t. And either way, Mr. Hitchens faced the event which would finally resolve the question of divinity for him, personally, with bravery and a confidence that he used his time here well. As all should.

He has passed beyond a barrier where the scoring of the petty points so prized by his opponents no longer matters. I will remember him as someone who made us think, and for that, deserves our gratitude.

Note that if you want an excellent, touchingly human view of Mr. Hitchens, consider his correspondence and relationship with his (very religious) friend Andrew Sullivan.

Let the King Reign

Yesterday’s Times profile on the history of that quintessentially American tradition — the peaceful, loyal succession — ought to raise a question for today’s Democrats. Has the tradition been followed in this administration, in fact as well as in form? And if not, what can we say about it?

Consider Senator McCain’s dignified concession speech that night three years ago, offered in the best tradition of small-r republican magnanimity, in which McCain embraced his opponent and acknowledged the President-Elect’s mandate for change… to a chorus of boos. Since then, it’s fair to say that congressional Republicans, and presidential candidates, have treated Barack Obama’s presence in the White House as an imposition, an aberration to be corrected, rather than anything to which he might be entitled by virtue of 69 million votes (and 9-and-a-half-million-vote margin over his opponent). We’ve been reminded that America is a center-right nation, with the implication that Obama’s win is something to be explained away; heard trumped-up charges of voter fraud aimed at delegitimizing the process that gave him his position; and dealt with a Congress that’s gleefully broken its own rules and ended longtime truces to block the President at every turn.

If President Obama ever had a honeymoon phase to his presidency, we might say — as seems to be the usable thesis of Ron Suskind’s otherwise factually-challenged, narrator-driven tome on Obama’s first few years in office — that he squandered it on an unnecessarily divisive issue, healthcare reform, when he could’ve taken bold, consensus-generating steps to right the economy. But even this evaluation should be tempered by a reminder of how quickly the Republican opposition rushed to Total War on the President.

This is a story we should play up — that for the past three years, America has functionally lacked a loyal opposition, one that works against the President but within expected norms, and votes against his interests, but offers their own affirmative plans for action in response. Rather than accepting the consequences of eight years of mismanagement under Bush, and acceding to the result of a lawful election, the Republican Party offered us that first part of Tennyson’s famous line, glorifying the fight, without the peace that comes thereafter:

Blow trumpet! he will lift us from the dust.
Blow trumpet! live the strength and die the lust!
Clang battleaxe, and clash brand! Let the King reign.

This is a case we can make in 2012, provided it’s mixed in equal parts with a reminder of those positive plans the minority derailed for their own benefit, and at great cost to the country. And we can start with the unemployment extension.

The Non-Recusal Tradition

Conservatives and the New York Times may agree on one thing: it’s time for the Supreme Court to get serious about producing a framework where Justices can, and do, regularly recuse themselves from matters in which they’ve had an interest. For my part, I disagree. Though there’s a better case to be made for Thomas’ recusal than for Kagan’s in the upcoming Obamacare case, I don’t think either is necessary.

As to Kagan, the path from the Solicitor General’s office to the high Court is a common one. The Solicitor General tends to attract the best legal talent, the lawyers most comfortable in front of the Supreme Court and at the bleeding edge of executive law, and those most interested in public service. In qualifications and in character, for those individuals, the Supreme Court is a quite natural next step, which is why the path describes so many justices from Taft to Kagan. Consequentially, the conflict of interest problem is one that we’ve confronted before: Justices are expected to check their prior careers at the door, and historically, they do just that. In the famous case of Youngstown Tube & Sheet Co. v. Sawyer, Justice Jackson’s concurrence survives as a strong limit on executive power, despite the fact that, as FDR’s Attorney General, Mr. Jackson advocated precisely the vision of executive power that he later denied President Truman. It’s an irony that Justice Vinson noted in dissent — he conspicuously and repeatedly cites pro-executive opinions Mr. Jackson authored as Attorney General — but not one that Justice Jackson appears to acknowledge at all. And that’s the way it should be. The Attorney General frames the law as his client would prefer it; a Justice of the Supreme Court frames the law as it is.

We have no reason to expect Justice Kagan would conduct herself otherwise. Even if Ms. Kagan had been involved in discussions on the individual mandate’s constitutionality (which seems unlikely — this whole Tenth Amendment resurgence is utterly new, remember), she will know and should be trusted to follow her predecessor’s example. The alternative — requiring recusal in every case an attorney encountered in her previous life — is untenable.

No such precedent exists to judge the propriety of Justice Thomas’ actions. It is literally a creation of the twenty-first century for a Justice of the Supreme Court to actively take a role in forming the political climate necessary for the creation of a case he will later decide. Imagine if Chief Justice Marshall had taken to talk radio to blast John Adams (“Jefferson should rescind those midnight appointments, just to show those Federalist dogs what’s what!”), and then gone on to write the decision in Marbury v. Madison.

We’d certainly have reason to doubt the legitimacy of the result. But I’m unable to frame a rule that would require Thomas’ recusal, and not set us on a slippery slope towards recusing any Justice with expressed political opinions. Since that outcome is neither tenable nor desirable, we should probably admit that when Obamacare comes before the Supreme Court, the mandate’s fate will be decided by all nine justices.

Horrifying

Don’t miss Rolling Stone‘s long-form piece chronicling the sad saga of the Republican Party’s deliberate descent into economic malpractice. We need a reckoning.

New York Legislators Speak to the Need for Fair Redistricting

Last night, the Association of the Bar of the City of New York held an event to discuss “Reforming Albany: the Road Ahead,” a task that necessarily begins with fair redistricting. Two lines worth remembering, from an excellent all-around event. Mayor Ed Koch: “fair redistricting is an ‘existential threat’ to the Republican [senate] majority.” Senator John Sampson: “voters pick their representatives — not the other way around.”

Your Brief Primer on “Voter Fraud,” and Voter ID Laws

This has turned out to be a pretty good, but pretty packed week, which you might rightly conclude from the lazier posting schedule. But one thing that I’ve seen a lot of this week, and yet forgotten to reduce to a post, is a resurgence of Republican interest in voter ID laws — provisions that require voters to demonstrate absolute proof of their identity to cast a ballot. This probably seems inoffensive enough: we don’t want fake voters, after all, so the system has to make some allowance to permit only actual voters to vote. Right?

Right. The problem is that the task of verification is already done, long before Election Day, making pollsite ID checks superfluous. Voters only receive a ballot if their name appears on the rolls for their pollsite, and those records are very scrupulously maintained, with new registrants receiving extensive vetting.  For instance, regardless of whether you sign a phony registration form, the form never translates to a valid registration unless the information provided to a state board of elections matches a valid, unique, non-registered citizen profile. (This is why the ACORN “scandal” was so ridiculous: it’s impossible to “register” phony voters without an accomplice in the state board.)

Consequentially, pollsite voter ID checks laws fill no real need, meaning their only purpose is to chill participation from those voters wary of “papers-please” investigations (such as new Americans) or to harass that 12% of voters who simply don’t have photo ID. This is the debate I got into with a Republican friend on Facebook. Enjoy. Continue reading »

Erick Erickson’s Childish Rememberance of Pearl Harbor

The RedState founder urges you to “never forget” by boycotting Japanese restaurants, one day only. Thanks, but I’ll make point of going to my favorite sushi place tonight, because I support American small businesses regardless of the owner’s ethnicity, and our international allies regardless of their past mistakes. This Pearl Harbor Day, remember by not forgetting that the values we fought for in World War II include, as critical elements, respect and pluralism. And CNN — when are you going to fire this guy? [Update: Fox joins in the idiocy.]

Gingrich Obsoletes Beck

And so the torch passes from one schlock historian to the next. But the winner, at least in this case, might be the facts. In brief, Newt Gingrich went on that which remains of Beck’s show last night, to pitch his candidacy to Beck’s pre-primed, radicalized base. But Beck led off in typical fashion by accusing Gingrich of being a supporter of modern-day socialism, or at least of being in agreement with historical  “socialists” like (ahem) Teddy Roosevelt. To my chagrin, in reply, Gingrich responded by simply demolishing him. While reading, remember that Beck uses the words “socialism” and “progressivism” interchangeably, based on a sloppy historical equivalence.

GLENN: Let’s start with ‑‑ let’s start with a piece of audio here where you were talking about healthcare and you went down the progressive road with Theodore Roosevelt.

GINGRICH (RECORDING): And for government to not leave guarantees that you don’t have the ability to change, no private corporation has the purchasing power or the ability to reshape the health system, and in this sense I guess I’m a Theodore Roosevelt Republican. In fact, if I were going to characterize my ‑‑ on health where I come from, I’m a Theodore Roosevelt Republican and I believe government can lean in the regulatory leaning is okay.

GLENN: Regulation and the government scares the crap out of me and I think most Tea Party kind of leaning conservatives, and Theodore Roosevelt was the guy who started the Progressive Party. How would you characterize your relationship with the progressive ideals of Theodore Roosevelt?

GINGRICH: Well, that depends on which phase of Roosevelt you’re talking about. The 1912, he’s become a big government, centralized power advocate running an a third party candidate which, for example, Roosevelt advocated the Food and Drug Act after he was eating ‑‑ and this supposedly the story, after he was eating sausage and eggs while reading up to Sinclair’s The Jungle, which has a scene in which a man falls into a vat at the sausage factory and becomes part of the sausage. And if you go back to that era where people had ‑‑ dealing with the Chinese where the people had doctored food, they had put all sorts of junk in food, they ‑‑ you know, I as a child who lived in Europe and I always marveled at the fact that American water is drinkable virtually anywhere.

So there are minimum regulatory standards of public health and safety that are I think really important.

GLENN: Okay. So you’re a minimum regulation guy on making sure the people don’t fall into the vats of sausage?

GINGRICH: Yeah. What I’m against is the government trying to implement things because bureaucracy’s such a bad implementer, and I’m against government trying to pick winners and losers.

It’s not clear what Gingrich views as the proper place of regulation — what exactly is “pick[ing] winners and losers,” and what, aside from abolishing the Republican-initiated practice of federal bailouts, does its avoidance entail? — but here we have the most conservative of the plausible Republican nominees explaining to Glenn Beck that regulation is not a per se evil, and that the “Progressives” weren’t so bad after all. That might contribute to losing Gingrich some of his far-right backers, but this is a guy that should be able to trade on his legacy to avoid any such fears.

If the Republican Party ever decides to walk back from its apocalyptic, hyper-deregulatory mania of the past two years, this is what its start would look like. How odd to hear it from Newt Gingrich, though.

Another thing we should take from the interview is just how bad an interviewer Glenn Beck truly is. He’s fine when pouring his soul, with all of its collected absurdities, into an empty vessel (YouTube), but not with someone willing to challenge his principles on his own turf. I love it.