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Michele Bachmann Rehashes an Anti-Miscegenation Argument

Republican also-ran Michele Bachmann finally decided to pick on someone her own size, and started a serious policy debate with high schoolers over gay marriage. Discussing her outright opposition to the practice, Bachmann calmly explained that there’s no inequality issue in denying gay couples this basic human right, because gay and straight Americans are both entitled to marry someone of the opposite sex! See? Equality!

We’re sure she doesn’t know it, but this is precisely the argument that was used to support the old ban on miscegenation — mixed-race marrying — before the Supreme Court. Blacks, the argument went, weren’t being discriminated against, because under the law, neither black nor white could marry outside of their own race. Because the law was perfectly symmetrical in its subordination, there was no equal protection violation. Right?

Wrong. The Supreme Court is smarter than that. Their words: “Judicial inquiry under the Equal Protection Clause, therefore, does not end with a showing of equal application among the members of the class defined by the legislation.” McLaughlin v. Florida, 379 U.S. 184, 191 (1964) (cited approvingly in Loving). If Bachmann were anything like the constitutional scholar she claims to me, maybe she’d know this basic point of law, and not fall into the trap of endorsing the legal tools of institutional racism.

Absolute Certainty Is Scientific

But only because it’s necessary when dealing with a public taught to distrust science, and read scholarly uncertainty as a vulnerability to be exploited for political gain, not for further evidence-based research.

For the Wall Street Journal, Dan Botkin argues otherwise, claiming that when climate change activists (or scientists in support of the cause) claim a monopoly on the truth, they conspicuously demonstrate their misunderstanding of a process where no fact, truly, can ever be certain or free from the possibility of later amendment.

I felt nostalgic for those times when even the greatest scientific minds admitted limits to what they knew. And when they recognized well that the key to the scientific method is that it is a way of knowing in which you can never completely prove that something is absolutely true. Instead, the important idea about the method is that any statement, to be scientific, must be open to disproof, and a way of knowing how to disprove it exists.

Therefore, “Period, end of story” is something a scientist can say—but it isn’t science.

Granted. But when scientists speak of “certainty” — which they do, sometimes — they’re not speaking in their role as scientists, but in an ex cathedra sense, in which they’ve conspicuously put down the lab notebook, and picked up the microphone to use their particular expertise to influence policy. This is a necessary function in the modern world, but it’s one that’s jeopardized, not enriched, by acknowledging the limits of the scientific method. Policymakers and the voters who elect them crave certainty, which scientists should offer cautiously, and only when a conclusion is sufficiently certain to merit public attention, and require public action. It’s up to wise policymakers to ask the right questions, and wise citizens to understand that science that’s “certain” is only “certain” to a point.

Perhaps this is less than optimal; maybe it would be a better world, and dispel the ivory tower view of the academy, if scientists laid all their cards on the table even when summarizing evolving findings to the public. But scientists have learned the hard way that anything less than a monolithic, unanimous consensus on every point invites suspicion, not curiosity, and actually undermines trust in the process.

Take, for example, evolution, where the use of the word “theory” lets religious demagogues manipulate the public into disregarding empiricism altogether; or where the debate about how evolution occurs — whether gradually, or in puncuated equilibria — balloons, in the hands of creationists, into a debate about whether evolution happens at all. Or, most obviously, “ClimateGate,” where industry-backed hacks took emails evidencing honest scientific dialogue about how to reconcile data with an old model, and twisted them to make it look like global warming science was all some huge conspiracy foisted on America by… evil British scientists, I guess? Because all conservative tropes have to collapse into foreign- or liberal-backed conspiracies? Who knows.

In a world so dominated by special interests, where well-funded corporations sell distorted science to an unsophisticated audience with ads that sound for all the world like parody (YouTube: one, two), the effect of acknowledging scientific doubt in the public eye is hardly salutary. We either need an efficient capital marketplace of ideas — where the truth wins, rather than the best-funded viewpoint — or an approach to scientific messaging that retains its skepticism internally, and remains capable of introspection, but that consistently presents a unified front when dealing with the public. If that means arguing for unscientific notions of “certainty” in the public eye, so be it.

Stephen Colbert is the Best Revenge

Problem: Republican message-maker Frank Luntz realized that no-one likes Republican ideas (turns out)! Solution: get new ideas? No! Cover your bad ideas with enough misleading language, that no-one actually knows what you stand for! Well I don’t know about you, but when I saw this, I was livid. We expect a certain amount of “spin” in politics, but how dare Republicans use language to trick voters into supporting positions they actually hate. Spin should convince, not manipulate, but here we are. Well, then I remembered this interview. If Frank Luntz is going to spend his life deceiving the American people, we can at least comfort ourselves that he’s endured torture-by-Stephen-Colbert.

The Republican Party as a Shakespearean Anti-Hero

Longtime readers will remember how much I enjoy the theater of politics, and its tendency to produce characters whose fortunes rise and fall in an almost Shakespearean fashion: like Macbeth or Othello, these are likable figures who somehow lose themselves, and everything they’ve built, based on one outsized character flaw. In years past, we’ve had Justice Sandra Day O’Connor, who made the mistake of trusting George W. Bush; and John McCain, undone by his own impetuousness, and for failing to realize that the Republican Party was no longer a place for statesmen. To that, let’s add another one — though it doesn’t have to happen, a chain of events could be about to unfold that places the Republican Party, writ large, at the center of its own Shakespearean tragedy, where the party will see itself undone by no less of a classical failure than hubris.

Naturally, for my story to come true, Mitt Romney has to lose the primary, and Newt Gingrich has to win. That’s looking like an increasingly plausible outcome — remember, “inevitable” nominees aren’t always so inevitable — but it’s also one that leads directly to the Republican Party’s loss next fall. While that could prompt the kind of soul-searching Doug Mataconis desperately hopes for, I’m not so optimistic. The time for introspection was 2008: is this Republican Party actually capable of arresting and revising its descent into radicalism? I think no. Which leaves us with this plot structure:

• ACT ONE: curtain opens on a series of Republican leaders, assembled after John McCain’s devastating loss. As Mitch McConnell states that his #1 goal is to destroy the President, by any means necessary, the leaders settle around a rationale that manages to explain their loss while completely exculpating everyone in the room: McCain just wasn’t conservative enough! Obviously.
• ACT TWO: the group’s plan to swing the party rightward is off to a roaring start: 2010 midterms, Tea Party ascendant, screaming town halls, “socialism,” you get it.
• ACT THREE: shows the debt ceiling debate, but dramatized, as our cast of heroes from Act One score victory after victory against the President, teeing us up for the primary season.
• ACT FOUR: a newly emboldened Republican Party, cheered but unsurprised by President’s Obama’s low poll numbers — they engineered them, after all — enters the primary season, and tosses around talking points that evidence a severe disconnect from reality to anyone who’s paying attention and has half a mind. Moderate, likable statesmen Mitt Romney and Jon Huntsman warn against reading Obama’s perceived weakness as an invitation to excise electability from the nominating calculus, but the base and other candidates are all convinced of their own invincibility. Intoxicated, Republican voters toss aside elitist “liberal” Mitt Romney as the latter day Goldwater, Newt Gingrich himself, cruises to an easy primary win in Iowa, and nets the nomination early. Newt pledges to best Obama in an ever-increasing number of debates, each of his own suggestion. What could go wrong?
• ACT FIVE: the dream starts to collapse as the Supreme Court issues its decision on “ObamaCare” — upholding the individual mandate by a vote of 6 to 3 (opinion by: Kennedy, J.), with a withering concurrence from Justice Scalia, upbraiding the public for politicizing the Court. A now-irrelevant Tea Party disbands. In their first debate, Newt Gingrich, unwilling to shed his haughty exterior, comes off as pompous-but-ignorant next to the cool, collected Obama — just what we saw in that second debate against McCain, four years earlier. Gingrich’s campaign unwinds in a series of embarrassing gaffes, which I leave to your imagination. The closing speech belongs to Rush Limbaugh, who uses Gingrich’s “pro-amnesty” immigration policy to explain that the only reason the Republicans lost was that their nominee just wasn’t conservative enough. Again. Meanwhile, in the background, a Latino man casts his first ballot at a Florida pollsite.

Exeunt, Republican dominance.

The Playbook to Beat Mitt Romney

Ted Kennedy had it, but held his fire, preferring to take the high road. See for yourself, and judge whether we (or Newt Gingrich, for that matter) should do the same. Here’s a YouTube link, if you don’t want to give Politico the clicks.

Has Occupy Wall Street Won?

While the right will happily delegitimize the 99% movement based on the excesses and failures of these particular messengers, the message, it seems, has landed precisely as it was intended.

For one, this week’s New Yorker highlights a discovery Politico made earlier this month: “the use of the phrase ‘income inequality’ in the media has more than quintupled since the beginning of the occupation.” For another, congressional Democrats are poised to finally push Republicans to choose, conspicuously, between preserving job-stimulating cuts to the payroll tax, and preserving the historically low upper-income tax bracket. Republicans, of course, will elect the latter.

It’s a sign of the times that this potential “victory” for us takes the form of, functionally, requiring Republicans to choose the less offensive platform of their hand-crafted arguments. The argument that tax cuts stimulate job growth, after all, derives more than a little from Republican theory, even if the connection between tax relief and hiring is a little less attenuated than Reagan’s discredited “trickle-down” model. Here’s hoping Democrats manage to stick to their guns and, somehow, overcome their basic inability to message to make Republicans pay for the choice. We need to not be afraid of taking a tough rhetorical stand against bad policies. It’s probably time, for one, to embrace some elements of the right’s rhetorical toolbox. The featured picture, for one, demonstrates a damn-fine catchphrase, keyed to make our point while delegitimizing theirs. Let’s see it on some buttons.

This could be the final value of Occupy Wall Street: that they’ve given Democrats some cover to be less extreme than them, and take a stand on issues that should properly be understood to belong to the middle of the political spectrum. At the end of the day, at least we’re talking about it.

Reconciling Gingrich to His Tea Party

Allow me to surprise precisely no-one with the following: though bemused by his faux-intellectualism, something other sites are picking up on, too, we’re not big fans of Newt Gingrich here. In fact, I don’t think many people are. I once knew a director of his district office, who had nothing but bad to say about the disgraced Speaker (which he made clear with a killer impression of him, complete with whiny voice). But somehow Gingrich has run all the way to the front of the Republican pack as a Beltway-insider policy wonk, and even shown some signs of staying power, despite a Republican base that’s largely skeptical of both political experience, and, well, intelligence. How?

We might frame Gingrich’s rise as the result of two competing trends in the Republican Party. On the one hand, the classical conservatism that trusts the knowledge of the “common man” over that of the educated elite, as drawn from William F. Buckley and, well, Stephen Colbert (YouTube — 1:40-2:25). And on the other hand, the new vein of Tea Party thought that fetishizes any knowledge of the founding era, especially dimly understood, disconnected, and self-serving anecdotes. If the latter trend trumps the former, Gingrich’s success makes sense, and explains why moments like his braggy promise to teach a history course from the White House don’t sink him. (As a counterfactual, imagine the Republican reaction if President Obama promised to teach a constitutional law course from the White House: “Egotistical fascist pledges to indoctrinate children,” the National Review headline would read.)

But maybe it’s simpler than that. Gingrich’s “understanding” of history manages to validate each erroneous Tea Party hunch about American history and its relevance to the modern era, marshaling an impressive set of out-of-context quotes to justify each deeply flawed plank of their theoretical platform. As an example, the Supreme Court, Gingrich explains in one “white paper” (pdf), was always meant to be weak! It’s all there in the Federalist Papers:

Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. [. . .] It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”

… So long as you imagine Hamilton was proposing rather than describing, trade the underlined “will” for a “must” or a “should,” and ignore context.

By this reading, all Gingrich has done is invent a new way to pander to the Tea Party demographic, a group already primed to accept shoddy history by pundits like Glenn Beck, and by a field equally ignorant of constitutional history. And so long as he uses his professorial persona to further their cause, he can walk the line between “constitutional scholar” and “elitist” without offending either side of the Republican coalition.

There’s a lesson here, too: if earned knowledge isn’t dangerous or “elitist,” except where it disagrees with Republican dogma, it seems to me that Republican anti-intellectualism isn’t a first principle, a deeply-held article of faith, or derived from any sort of respect for the common man. It’s just a coping mechanism, to ignore, stigmatize, or defeat a Democratic Party that’s, on the whole, better at the science of governing. Knowledge isn’t wrong; liberal knowledge is wrong. Good to know.

Giving Thanks, Now and Each Day

With a still-struggling economy, and a government too paralyzed by partisanship to develop a solution, it’s tempting to say the country has less to be thankful for this year than it did in the last.

This would be a mistake. Whatever our current problems, they’re problems that we, ourselves, may choose to solve. Such a society, where we may stand or fall together based on our own efforts as a people, remains rare in human history, but guarantees that each day entails the promise of a better tomorrow. We have but to act. We should act. Self-determination is a gift, but it’s also one we shouldn’t squander. As a people, we ought to celebrate our ability to work together by doing precisely that. Here’s hoping.

“Obama vs. the Commerce Clause”: an Answer to Richard Epstein

Unlike your average Tea Party “scholar,” who’s managed to convince himself that child labor laws are somehow an ungodly restriction on individual liberty, Professor Richard Epstein is a profoundly intelligent man. Which is why I take his constitutional arguments against ObamaCare deathly seriously. Epstein isn’t one to fantasize about a world where Lochner v. New York remains the law, or to rely on some zombified Tenth Amendment as an independent substantive barrier to federal action. No, unlike the majority of “constitutional conservatives,” Epstein operates in the real world. He’s still wrong.

His argument revolves around a Marshall court case — Gibbons v. Ogden, 22 U.S. 1 (1824) — where the Supreme Court put the Commerce Clause together with the Supremacy Clause to hold that in the realm of interstate commerce, state law yields to federal law. Couldn’t be simpler, or more clearly accurate. Professor Epstein pulls one limitation from the case, and builds out on it:

State inspection laws, health laws, and laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c. are not within the power granted to Congress. [...]

It is not intended to say that these words comprehend that commerce, which is completely internal, which is carried on between man and man in a State, or between different parts of the same State, and which does not extend to or affect other States. Such a power would be inconvenient, and is certainly unnecessary. Comprehensive as the word ‘among’ is, it may very properly be restricted to that commerce which concerns more States than one.

Emphasis mine — the underlined element represents the linchpin of Epstein’s argument. As he reads it, individual “inaction,” as in the failure to purchase insurance, is a decision that takes place inside the boundaries of a state, whose effects fail to “concern[] more States than one.” Consequentially, Congress may not regulate that decision by means of the individual mandate and therefore, “if Gibbons were still law, ObamaCare wouldn’t stand a chance before the Court.”

It’s an interesting construction of Gibbons‘ meaning in the overall constitutional structure, but one that ignores several other constitutional traditions, some of which also trace their histories to the Marshall Court. Specifically, Epstein overlooks the Necessary and Proper Clause, and fails to parse the distinction between constitutional inquiries concerning Congress’ legislative ends, and the means Congress may deploy to those ends. Gibbons speaks to the goals Congress may pursue, not the tools it may use to accomplish those goals. That latter inquiry, and the one that governs the individual mandate’s constitutionality, is comparatively broader.

Once Congress chooses a valid legislative target, its toolkit is circumscribed only by rationality. Under McCulloch v. Maryland, 17 U.S. 316 (1819), if a national problem properly falls within the Commerce Clause, Congress may deploy “appropriate” solutions to that problem. Per Chief Justice Marshall:

Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.

Emphasis mine, again. This is an issue of argument framing. Let’s assume that Epstein properly reads Gibbons. Still, the target of congressional action that must occur “among” rather than “within” the states isn’t the individual decision to opt out of the insurance markets — it’s the interstate insurance system itself. From there, Congress derives its power to mandate individual decisions taking place within state borders based on the Necessary & Proper Clause, provided such regulation is a rational means to the constitutional end. To be sure, it’s a strange thing that Congress may target instrastate activity in support of an interstate commerce issue, but that’s a power even more settled than the admittedly aberrational Wickard v. Filburn — which Epstein also has to wish away for his argument to hold together. Per no lesser a conservative light than Justice Scalia, in his concurrence Gonzales v. Raich, 545 U.S. 1 (2005), which bothers to cite all of Epstein’s favorite cases before concluding:

Our cases show that the regulation of intrastate activities may be necessary to and proper for the regulation of interstate commerce in two general circumstances.

ObamaCare is nothing so controversial as Epstein, or conservative America, would like to think. This is going to be a 6-3 decision at least, provided the government’s advocates frame it in the right way, and avoid Epstein’s trap. Which they will.

Does America Need a Foil?

The late Derrick Bell proposed (pdf) — in a theory that I don’t entirely buy — that America only pursued desegregation, and only ended Jim Crow, because racial equality obliquely benefited elite whites, in that it terminated a major Soviet propaganda point. Russia, the theory goes, gained some traction by arguing that for all of its vaunted equality, capitalist democracy in the American style failed to provide meaningful options to large swaths of its population, and so proved the communist thesis of western oppression. Living up to our own values, by this theory, wasn’t a democratic imperative: it was at least partially a cynical way to score points against our Cold War foe, and it just so happened to be the right thing to do.

Like I said, I don’t entirely buy it: reform doesn’t happen without the cooperation of the top, but it doesn’t even begin without the deeply-felt convictions of men like Martin Luther King, Thurgood Marshall, etc., all of whom acted out of a commitment to equality, not to prove a point on the world stage. But taking Bell’s theory as perhaps partially true, it’s not a bad story to tell, that for all the evils that came out of the Cold War, our mortal enemy forced us to live up to our own hype. As a nation built on high (and often unattainable) principles, it helps to hear hard truths about how poorly we meet our lofty goals, and if the elites won’t hear those truths, except through the mouth of an implacable foe, so be it. Perhaps we need an ideological enemy — preferably not one that drives the world to the brink of nuclear annihilation — to see ourselves clearly, identify our failures, and remedy them.

Arguably, that’s something we lack today. Al-Qaeda, and other global terrorist groups, rarely speak in our language of rights and self-determination, even to point out (say) problems with our implementation of multicultural democracy. And when they do — by criticizing the Bush-era torture policy, for example — we categorically reject the message for its messenger, rather than mining it for opportunities to build common ground. I don’t mean that we should take our cues from Al-Qaeda, but if ending torture both restores us to our moral high ground, and moots an enemy propaganda point, we shouldn’t be afraid to take the opportunity.

Instead, we’re stuck with politicians who view our opponents’ obvious evil as an excuse to lower the bar for our own conduct. Contra candidate Gingrich, for example, we shouldn’t repeal the First Amendment as to Muslims just because Saudis gleefully persecute Christians. That’s playground thinking, not statesmanship. Exceptional nations don’t indulge in the global race-to-the-bottom; they lead by example, even when it’s inconvenient, because doing so helps our citizens, and demonstrates to all of the world the value of living in a free society. We need a challenger, someone to keep us honest — but we also need leaders willing to accept the challenge.

With apologies for my recent, lighter posting schedule.