Conservatism

Republicans’ Jenga Game with the Modern Constitution Continues Apace

Thanks, Rachel, for the link!

It’s time to put conclusively to bed the myth that conservatives favor a steady-state, precedent-bound legal world, as opposed to them-there “activist” liberals. As proof, take this column from George Will, putatively a movement leader, arguing for the resurrection of a monumentally old and long-since repudiated decision: Lochner v. New York, 198 U.S. 45 (1905), which famously invalidated a New York law imposing health regulations on bakeries, based on some loose notion of the employee’s “economic freedom.”

Lochner — may it rest peacefully and undisturbed — died a violent death, the product of political pressure and one Justice’s changing opinions on the law. In life, it stood as one of the last decisions asserting, as a matter of fundamental rights drawn from basic constitutional law, the legislature’s inability to pass a law that would, in some manner, prevent individuals from freely entering into contracts of their choosing. Relying on the Lochner synthesis, a generation of Supreme Court justices struck down minimum wage laws, child labor laws, workplace safety laws and more, all in the name of “economic freedom,” or the “liberty of contract.” This phrasing, of course, was a smokescreen: it protected an employer’s right to issue abusive employment terms as much as the worker’s right to accept those terms. Who’s the real beneficiary in that relationship?

Most lawyers' take on the case.

Obviously, the worker. We should all be so fortunate as to enjoy the freedom to breathe asbestos!

Lochner also asserted an enormously powerful form of judicial review, giving the Court near-plenary authority to strike down any congressional enactment it viewed as an “unreasonable” or “unnecessary” form of regulation. Per Justice Peckham, it was apparently the Court’s function to determine whether any congressional enactment is:

A fair, reasonable and appropriate exercise of the police power of the State, or [] an unreasonable, unnecessary and arbitrary interference with the right of the individual [] to enter into those contracts in relation to labor which may seem to him appropriate.

This collapses into the Court’s right to criticize the wisdom – not the constitutionality — of state laws. Which the Lochner Court proceeded to do, saying:

We think that there can be no fair doubt that the trade of a baker, in and of itself, is not an unhealthy one to that degree which would authorize the legislature to interfere with the right to labor, and with the right of free contract on the part of the individual, either as employer or employee.

No matter what you may think of the judiciary’s power in other spheres — whether it can propound the true limits and dimensions of “personal liberty” — we can’t reasonably believe that the Court may substitute its pragmatic judgment for the legislature’s. Thanks to the Madisonian Compromise, the Constitution certainly does not create the Court into some super-legislature. Here is judicial activism in its truest form.

Which apparently George Will has no problem with, provided it’s supporting his agenda, instead of letting The Gays put on airs of equality. He comes out in defense of Lochner from a few angles. None of them hold up.

First, he claims the fact pattern I’ve described to you — a tale of corporate interests abusing underpaid workers — is all a fiction. It was really some rent scheme, you see! Maybe so; and maybe someone would’ve cared about that back in 1905. But we’ve come to accept the prevailing narrative about Lochner, and built decades of case law on that principle. That’s the strange thing about common law. We care more about what the case becomes, than what it actually was. Generations of lawyers have built Lochner into a monument to the judicially-sanctioned abuse of the poor. Who is Will to deny them their victory, written into the volumes of the U.S. Reporter for more than sixty years, based on nothing more than a hunch? We overturn decisions; not historical narratives.

Second, apparently Lochner served some valuable function as a defense against racism & sexism. If so — who cares? Both evils are still held at bay by the now-prevailing interpretation of the Fourteenth Amendment. Lochner adds no value to this area that isn’t supplied more responsibly elsewhere.

*     *     *     *     *

When Lochner died, it died for a reason. For several, in fact. First, because we realized that “economic freedom” — true laissez faire – means freedom for the rich, and crippling abuse for the poor. Left to their own devices, the robber barons of the late nineteenth and early twentieth centuries proved themselves singularly capable of becoming true despots in a way that the federal government never has. Without government intervention, these figures could leverage need and a lack of viable alternatives to create and maintain a permanent underclass, doomed to work late and die young. The law should be addressed to removing those barriers, not strengthening them.

But more importantly, Lochner died because the Court cannot guarantee the type of economic freedom it envisioned without becoming a real threat to the American system of separated powers. Lochner‘s vision of judicial review stands in stark contrast to the notion that judges should be disinterested mediators — umpires, in Chief Justice Roberts’ colorful metaphor — and suggests, instead, that extremist anti-regulatory economic policy may be dressed up as constitutionalism, and used to bring the people’s work to a grinding halt.

This is the world to which George Will — and all Republican candidates who speak so boldly about “economic freedom” — yearn to return. A world where children work because they legally can and practically must, and where having a job matters more than not dying from (or at) it. Such ill-informed and naive nostalgia deserves to be relegated once again to the dustbin of history, and its defenders sent packing, so they can laugh, call it fate, and keep on drinking.

Subtlety in Storytelling: Red Dawn?

The National Review goes near apoplectic over a remake of B-movie quasipolitical thriller Red Dawn that excludes China, the remake’s originally included villain, substituting North Korea.

[Red Dawn] was an overwrought action flick/melodrama, to be sure, but it was also a cultural marker: the age of détente was over, and the age of Reagan had arrived in full.

Hahahaha. Really? Anyways, moving along:

By contrast, the long-stalled remake has become a sick joke. To wit: MGM has taken the extraordinary step of digitally scrubbing the film of all references to Red China as the invading villains — substituting dialogue, removing images of Chinese flags and insignia etc. — because “potential distributors are nervous about becoming associated with the finished film, concerned that doing so would harm their ability to do business with the rising Asian superpower.” All without the PRC even uttering a single word of protest.

I’m less concerned with this appalling attempt at right-wing literary criticism than interested in what it says about the use of analogies, parables, and allegories in storytelling. NRO expects that the allegory absolutely must hit you over the head, or fail. This all seems contrary to the legacy of George Orwell, who wrote two of the most blistering anti-Stalin novels without ever using the word “Russia” or the name “Stalin.” 1984 lacks none of its moral force for being set in Orwell’s positively democratic home country of England, nor does Animal Farm suffer for taking place on, uh, a farm.

To the contrary, the more notable purely “conservative” allegories make no real attempt to mask message with story, assuming the reader must feel led to be led. On concluding the first of the Chronicles of Narnia, you’d have to be, well, reading a different book to not realize, “oh, the Lion is Christ.” From the sacrifice scene, the hook is clearly in your mouth, and you can’t help but feel it. Same (but worse) goes for Atlas Shrugged, which actually does devolve into a lecture by the end. Maybe it was never intended to be read as pure fiction… but I wonder if that wouldn’t have been a superior delivery mechanism.

Better the story that lets the reader draw his own conclusions, with the lesson, by allegory or otherwise, lurking in the background. Huck Finn‘s commentary on the American South and race relations generally hits harder for not trying. Roddenberry’s liberal utopia in Star Trek: the Next Generation unfolds seamlessly over the course of the show’s run without Picard, like Galt, setting out the author’s moral theory, point by point. Plutarch, who does state the moral lesson he wants you to draw, manages art by at least hiding the lesson in history.

This is preferable for the reader, per Tolkien:

I cordially dislike allegory in all its manifestations, and always have done so since I grew old and wary enough to detect its presences. I much prefer history, true or feigned. … I think many confuse “applicability” with “allegory”; but the one resides to the freedom of the reader, and the other in the proposed domination of the author.

And more effective, even, if the author’s goal is to teach a lesson. If the reader can draw his own conclusions, they’re all the stronger for it (think Inception).

Similarly, if the new Red Dawn is intended to be a rallying cry against global communism, surely the viewer can be trusted to jump from “North Korea” to its more dangerous neighbor. And if he can’t, is the fictional exercise really worth the effort?

I have to close by disputing the premise. Did anyone actually walk away from Red Dawn with the urgent feeling of, “oh, Jesus, someone’s got to stop Russia”? Am I alone in thinking that was just… not the point? Similarly, one can conclude Fallout 3, an acclaimed roleplaying game set in Washington, D.C. 150 years after its nuclear devastation at the hands of a resurgent Chinese Empire, without feeling any hostility to China as it exists today. On the other hand, you do walk away from it with some strong feelings on mutated scorpions, and on nuclear war (“War? War never changes.”). Clear fiction, when not intended to carry a particular message, rarely does.

Radicalizing on the Right: Collective Bargaining, as an Antitrust Violation?

Elections have consequences, we say. But exactly what consequences? To listen to the right’s increasingly radical agenda, from repealing birthright citizenship to dictating spending cuts based exclusively on hot-button social issues, you’d think no Democrat had ever won elected office, or none ever would again. Can a “historic” midterm election wipe away a decidedly more historic presidential election, even as it becomes increasingly clear that Republicans have failed to win the public’s trust, and that Democrats will retain the White House in 2012?

The Wall Street Journal thinks so, as they take aim unions, not specifically, but generally, characterizing them as a restraint on trade tantamount to a monopoly. This conclusion, while not without some superficial appeal, Congress expressly rejected in the Clayton Antitrust Act of 1914, a gloss on the earlier Sherman Antitrust Act of 1890, not as a concession to the power of the unions — which, remember, had almost no power, after 1890! — but as a recognition of the real goal of the Sherman Act. Antitrust law clearly concerns itself not with the general problem of aggregate action, but aggregate action as it impacts customers and capitalist theory by undermining the proper functioning of the free market. Union activity does not come within that prohibition or that theory, rightly understood.

But let’s step back and appreciate the, for lack of a better word, balls on Murdoch’s Journal (mixed, as always, with hilarious hackery). They’re not hitting back at Wisconsin unions, or the Wisconsin problem, or public employee unions, or even unions generally (I revise my above commentary). They’re striking at the core of collective bargaining theory. Absent the Clayton Act’s exemption, collective bargaining — boycotts, picketing, strikes — becomes illegal. Modern conservatism would consign us again to the abyss of pre-1900 “free markets,” robber barons, Hessian strikebreakers, filled milk, all in the name of some warped conception of liberty. And this continues unless we stop it in 2012.

Grim omens aside, enjoy this Simpsons clip of Burns-brand strikebreakers (hulu).

Divorcing Fiscal Restraint from Social Conservatism

The GOP hasn’t done it. So far, we’ve seen attempts to defund:

• Planned Parenthood,
• National Public Radio, and,
• the National Endowment for the Arts.

Here’s a serious question, to answer an unserious group of legislators: can the Republican Party address budget cuts, without framing it as a culture war issue, and without letting literally insignificant savings on hot-button issues take center stage, and drown out any potentially meaningful debate? We’re quickly gearing up for the healthcare debate, redux, with Republicans offering inflammatory, off-topic counters to stymie actually important reform. Again.

Nuance is Liberal? So Says OK Cupid

I’ll give this to OK Cupid. Given an immense amount of data on the basics of human relationships, they’ve done the one thing I would never expect someone in that position to do: good, interesting work, with their OK Trends workshop. Query how much the results can be generalized from the (necessarily self-selected) sample set to the population at large, but I would imagine it holds up. From the latest set:

[Warning: if you're reading at work, your firewall will probably block the link. OK Cupid subdomains are presumed to be dating sites, like the top domain. That presumption is false. Anyways, a quote, so you don't have to browse:]

If you want to know: do my date and I have the same politics?

Ask him or her: do you prefer the people in your life to be simple or complex?

In each case [of sample issue-based questions], complexity-preferrers are 65-70% likely to give the Liberal answer. And those who prefer simplicity in others are 65-70% likely to give the Conservative one.

Presuming the analysis to be true, I imply no value judgment with this post. Some problems call for simple solutions; others, complicated ones. I tend to think that international problems call for simpler solutions than domestic problems, even if the problems themselves are equally complex, a breakdown that would reflect the general public’s preference for Republicans and Democrats in the two arenas. But that may be unfair. Then again, maybe I’m overthinking it? Typical liberal.

The GOP’s Small Tent

RedState sees The Gays, and libertarians, as entertaining sideshows who might contribute meaningfully, maybe, but are “irritating” and “grating” otherwise. The Big Tent’s now basically a bivy sack.

The Disaster of Laissez Faire Social Services

In one of the more bizzare stories of the year, we may have the beginnings of a conservative overreach: specifically, Obion County, Tennessee, provides firefighting services by paid subscription only ($75 per year). After the county steadfastly refused to help a “free rider” family when their house burned down, the county expanded its subscription-only services, and Glenn Beck mocked the family, and explained that these are the kinds of growing pains we’ll have to endure, as we move to a more “free market” society. The National Review aggressively concurred. This is the height of absurdity, and demonstrates the growing conservative conflation of the welfare state with the basic incidents of a functioning society.

National security, from external and internal enemies, is the most basic definition of a “public good,” the burden for which ought to be carried by all citizens in kind. Accordingly, no-one has ever really questioned the notion, in the modern era at least, that an army and a navy ought to be paid for by the common tax base. And few have questioned that internal security, from defenses against human enemies (espionage/sabotage), disease, and natural disasters, should be paid for in the same way. In a civilized nation, it is rare that a plight fitting any of those definitions will ever affect one citizen and one citizen only. Disease is transmitted; crime spreads; and fire knows no property line. Even divorced from morality, one man’s problem is every man’s.

Assigning this important work to government also avoids the possibility for extortion, graft, and corruption, ever-present in government (but not in this sector), and a basic incentive of life in the for-profit world. Ancient Rome provides the classic example of abusive capitalism: Marcus Licinius Crassus, triumvir, owned the city of Rome’s firefighting company. When a fire broke out, his company would arrive at the scene and negotiate an (ever-decreasing) offer to buy the house, and only put out the fire when the owner sold his property for pennies on the dollar (sestertii on the denarius?). Crassus’ personal gain: considerable. Families impoverished as a result: many. Net gain to society: starkly negative.

When such perils — and any engagement with the “free rider problem” — can be avoided by a tax increase of $0.13 (pdf), query whether refusing a modest expense, and letting a man’s home burn around him, demonstrates any useful principle, or the kind of extremism and ideological purity that has no place in the Real World.

Note, too, that the same result follows, although with slightly less clarity, in the context of health care. Take it as true (because it is) that no hospital can let a patient die, even if they’re dirt poor, and present with an expensive-to-cure, otherwise-immediately-fatal medical problem. Do we let the situation stand as it is, where the poor have an incentive to wait until they’re at death’s door to go to the emergency room, or subsidize and incentivize preventative care to make sure it never gets to that point, to help them, and minimize the drain on public resources? Or do we follow the “conservative solution,” seemingly accepted by Beck and the National Review in the above example, and just let them die?

Who We Are

Mitt Romney is probably right, that this next election will be fought on treacherous ground indeed: the question of who we are, as a people.

I posit two competing narratives: one, from the right, that our lives are best lived apart, in independence not just from a foreign sovereign, but from each other; and another, from the left, that we are truly best when we work together. If we succumb to the tea party dichotomy, these choices seem to comprise the battleground. But the assumption that these values are mutually exclusive, rather than complementary-but-frequently-in-tension, is clearly wrong. Rather, they seem to represent two sides of the same coin, both critical to the American experience: e.g., we banded together to fight a war to keep everyone else the Hell out of our business, and kept the ensuing union as the best vehicle to preserve that peace.

Perhaps the fight’s really about when and how we should band together, and to what end. To fight a war? To alleviate poverty? To preserve a “Christian” culture? To keep the planet safe? Extreme forms of conservatism, after all, postulate just as much of a surrender of individuality as extreme forms of liberalism. Maybe more. Collectivism versus individualism is an ultimately pointless debate, but apparently one that’s politically useful.

The Problem with Conservatism

The highest aspiration isn’t elected office. It’s talk radio.

Diversity: How the Other Half Lives

Ross Douthat — who isn’t a moderate common-sense conservative but plays one in the NYT opinion pages — yesterday penned his latest overwrought defense of his party’s fringe, this time hoping to mainstream the right’s worrying rediscovery of reverse racism.

For those just joining us, one of the right’s dominant narratives in the time since Obama’s accession is that a black man’s success necessarily implies the end of white dominance, with all the horrors that attend such an inversion. The idea that black and white America exist in some sort of zero-sum relationship sometimes finds more toned-down iterations, or spawns spin-off theories — like the idea that a minority Supreme Court justice can’t understand white America — but in all, the theme, that minority victory means white defeat, is the same.

This species of thought isn’t as noxious as classical racism, but we should realize, the difference is one of degree, and learned subtlety. It’s still racism, and it’s still wrong. Per Ta-Nehisi Coates, “the most potent component of racism is frame-flipping–positioning the bigot as the actual victim.” Any narrative that puts race at odds with race is inimical to a happy, just society, no matter how much you dress it up.

Douthat’s column takes this new, old racism — the medium favored by your Becks and Buchanans — and tries to equate it with an affirmative action system gone awry, favoring poor blacks and minorities over poor whites. But they’re not the same. Beck and Buchanan find their force in anger and emotion; Douthat’s assertions about the problems of modern affirmative action, if true, are based on facts. The latter is legitimate. The former is race-baiting, and can’t be so bootstrapped into respectability.

Further, Douthat’s claims about affirmative action are interesting for what they imply: not that affirmative action is wrong (as we used to hear), but that it’s not working equitably. To identify affirmative action’s problem, Douthat has to accept its central conceit: that experiential diversity, using race as a proxy, might be beneficial to academia. The remedy for Douthat’s wrong is not an end to affirmative action, but true evenhandedness in its implementation. That, and that alone, is something we should probably get behind.

So, what we’re left with is a column that makes some interesting points, but strains to leverage them into an ex ante rationalization of pure polemic from the movement’s lesser (but more popular) lights. In other words, classic Douthat. And a metonym for post-2008 conservatism as a whole: a clever, well-intentioned minority chained to a dying movement, struggling to lend its credibility to the frothing majority. And failing.