Legal Fiction

I think it's fair to say that "electability" is the buzzword of the Democratic primary. Kerry's success, according to the pundits, stems from the perception among primary voters that he is the most electable candidate. So here's my question - how did Kerry suddenly assume the title of "most electable candidate." Just one month ago, everyone was discussing what a horrible candidate he had been. Mickey Kaus even had a contest inviting readers to draft his concession speech. What gives? How do you go from being an object of ridicule to the "most electable candidate" in one month? My fear is that it has less to do with Kerry and more to do with what game theorists call "information cascades."

An "information cascade" (as defined in a study by some Virginia economists) refers to "situations where people with private incomplete information make public decisions in sequence. Hence, the first few decision makers reveal their information, and subsequent decision makers may follow an established pattern even when their private information suggests they should deviate."

This is sort of a fancy way of saying that people often succumb to herd mentality. For example, imagine that there's a trendy bar in your town. You've heard that the bar really isn't that great. One night, however, a few people decide to go there and they form a line outside the bar. Others walk by and assume it must be a good place, so they get in line too. Eventually, you walk by. You have "private information" that the bar isn't that good, but you notice there's a huge line waiting to get in. You assume these people know something you don't, so you get in line too. This phenomenon is an example of an "information cascade."

There are many other examples of this general concept. In finance, for instance, information cascades can be very important. For example, assume that people start selling a particular stock, even though it's a good stock (and properly valued and all that). Others notice the sale and decide that they should sell the stock too. And the trend continues. These collective actions result in a massive sell-off, despite the fact that people have their own private information indicating that the stock is a good buy. A similar principle can be observed in biology. If a few members of a herd suddenly run away, their actions "cascade" through the herd, causing ALL the herd members to run away - even if most of the individual herd members have no information indicating that they should run. Finally, I'm sure everyone reading this blog has experienced their own information cascade. For example, if you are eating at a fancy restaurant and don't know which fork to use, you naturally look to see which fork the first person used, and you use the same one. Then, the third person notices which fork you and the first person used, and he does the same. And so on.

You get the point. The cascade results from the belief that others have some sort of information that you don't. I think the Democratic primary election is experiencing its own information cascade. Prior to Iowa, Kerry had been down over thirty points in New Hampshire and had pulled out of the February 3 states altogether. After Iowa, however, New Hampshire voters (presumably valuing electability above all else) seemed to rely on the public decisions of the Iowa voters, even though they had their own reasons (or "private information") for not favoring Kerry.

And now, the collective decisions of a plurality of New Hampshire and Iowa voters that Kerry is the most electable candidate is cascading through the February 3 states. According to Zogby this morning, Kerry has pulled even with Edwards in South Carolina despite Kerry's lack of organization in the state and despite his comment that Democrats have always "made the mistake" of looking South. The problem with information cascades, however, is that they only work well if the very first public decisions were made wisely. In other words, the first person (or group of people) needs to have been right. In order for the cascade to be "good" or "efficient," the first link of the cascade must not have been made on the basis of improper information.

If I'm right in speculating that Kerry's rise has resulted from an information cascade rather than from the strengths of his own campaign, then it's very important for all voters to assess whether the Iowa voters' "electability" decision was correct. And for reasons I explained yesterday, I'm not sure that they were.

Perhaps I've been too hard on Kerry in my posts. But I can't shake this bad feeling. Kerry has, in the span of a mere month, gone from an object of ridicule to the presumptive nominee. Whenever this many people come to a decision this quickly, am I correct to be suspicious? Kerry's rise has all the characteristics of a fad, or a popular song that rises quickly only to fall quickly (because of information cascades). Given the speed of his ascent, I can't imagine that his support runs that deep (or else people would have supported him earlier). Hopefully, I'll be proved wrong. Hopefully, the Iowa voters knew what they were doing when they crowned John Kerry as "most electable." My fear is that the whole country thinks they were right, regardless of whether they were.

Throughout modern history, Democratic primary voters have proved their utter inability to nominate electable candidates. And they may be on the verge of yet another mistake. Don't get me wrong - I like Kerry, I think he's a hero, and has all the right positions. And I think he'll get creamed in November. Just because a candidate is more electable than Dean doesn't make that candidate electable. War hero or not, people in the swing states will not abandon Bush for a blue-blood from Massachusetts.

As I explained in more detail earlier, the current Electoral College dynamics must be considered in picking the Democratic nominee. Contrary to popular belief, the key is NOT necessarily to select the best national candidate. The key is to select the candidate that runs better in the swing states like Ohio, Penn., West Virginia, Arkansas, Nevada, Oregon, etc. For reasons I explained yesterday, the Electoral College is bullshit, but until it changes, we have to be aware of it. Again, I urge everyone to read my earlier post on Kerry's electability, which lays out the case in more detail.

Kerry can't win. At the most, Bush can cost himself the election if he continues to deceive the American public (see the Medicare bill deception for the latest example). But that will mean that Bush lost the election, not that Kerry won.

In the two prior election process-related posts, I argued that America's political polarization is not a reflection of divisions within the American people, but instead results from the following flaws in the political process - 1) primary elections and centralized political parties; and 2) gerrymandering. Today, I'm focusing on the consequences of malapportionment in both the Senate and the Electoral College to show that we may well be living in an era of Democratic majorities. More specifically, I want to refute the notion that we live in a time of Republican dominance, or even Republican majorities. Quite simply, Republicans are in the majority because of flaws in our Constitution - flaws that are undemocratic and inconsistent with our notions of popular sovereignty and even legitimacy.

First, the Senate. As everyone knows, each state gets 2 Senators regardless of its population. Fewer people know just how malapportioned this arrangement is. For example, California, New York, and Texas have roughly 73.7 million people. These states collectively have 6 senators. Wyoming, North Dakota, and Vermont have 1.7 million people. These states collectively have 6 senators. You might think it's not a big deal. You might think that because Texas is Republican and California is Democratic, the effects cancel out. They don't. California and Texas don't always have opposing interests. If a bill was up for a vote regarding urban renewal funds, it seems clear that California and Texas (states with high urbanization) would be in favor of it, while the smaller states would not. In cases where a congressional vote pits urban interests against rural interests, the rural interests will win because of the undemocratic structure of the Senate.

Let's look at the data another way - Texas, NY, and California have 74 million people and six Senators. The following states have about 35 million people collectively (less than half the amount of the former three): Alabama, Alaska, Idaho, Kansas, Mississippi, New Hampshire, Utah, Wyoming, Arkansas, North Dakota, Oklahoma, South Dakota, Vermont, West Virginia, Iowa, Montana, Nebraska, Nevada, and New Mexico. These predominantly rural states also have 38 Senators. THIRTY EIGHT. The implications are obvious for any issue that pits urban and rural interests against each other in the Senate.

You might respond that the Framers knew this would happen and that Senate malapportionment was part of the deal. And perhaps you're right. But, at the time of the Framing (1790), Virginia was the largest state with roughly 750,000 people. Delaware was the smallest with around 60,000 people. So, the biggest state was about 12 times larger than the smallest state. Today - California is the largest state (34 million) and Wyoming is the smallest (500,000). So, California is 68 TIMES more populated than Wyoming. Would the Framers have agreed to that? Who knows?

So this brings us to the Republican "majority" in the Senate. Here's how I made the calculations. When states had either two Democrats or two Republicans, I counted 100% of the state's population for one party. When the state had one Republican and one Democrat, I split the population. Here's the result - there are 51 Republican Senators representing roughly 125.3 million people. There are 49 Democratic Senators representing 162.2 million people. Thus, each Republican Senator represents roughly 2.5 million people. Each Democratic Senator represents 3.3 million people. So again i ask - what Republican majority?

This has enormous implications for the Electoral College. (On as aside, the Electoral College was a compromise with slave-holding interests who feared direct elections because their slaves couldn't vote. The Electoral College allowed the slaves to be counted (3/5), thus giving southern states power without forcing slaves to vote). As you should know, each state's "points" are calculated by the total number of Representatives and Senators. But because the Senate is so malapportioned, this malapportionment is incorporated into the Electoral College.

For example, California has 55 points - 53 for its House members, and 2 more for its Senators. Wyoming has 3 points - 1 for its lone House member, and 2 for its Senators. The result - California gets an elector point for every 614,000 people. Wyoming gets an elector point for every 167,000 people. You saw the result in Bush v. Gore. As everyone knows, Gore won the popular vote (by half a million - no small sum), but lost in the Electoral College. Now you can understand why. It's the 2-Senator rule. If the Electoral College were based only on the number of House members (and thus did not include the two points for each Senator), Gore would have won. The actual result was 271 to 266 in favor of Bush. Bush won 30 states (60 Senate points) and Gore won twenty (40 Senate points). If you exclude the Senate points, Gore wins 226 to 211. So, Bush won not because of any popular Republican majority, but because of the malapportioned Electoral College. And the Electoral College is malapportioned because it includes the Senate in its calculations (and in the Senate as well, the Republicans hold a majority only because of malapportionment).

So there you have it - no Republican majority. I'm not sure what can be done about it. The Senate isn't about to be changed anytime soon - indeed, it can't unless we adopt a new Constitution (the Senate provision was unamendable). At the very least, we should not include the Senate points within the Electoral College calculations, or we should have direct elections and scrap the Electoral College altogether.

There are at least two objections that I hear from people defending the Electoral College. First, they say that mathematicians have shown that big states actually have more voting power when you calculate it in terms of "probability that a single vote will have an effect." That may be true, but it's beside the point. The question is not what states have more power - the question is "do small states have more power than they should or otherwise would?" Second, people say the Electoral College ensures that presidential elections aren't confined to urban areas. Without it, politicians would neglect the rural states. I have two responses. First, why is this point relevant? We live in a democracy that values "one person-one vote" and majority rule. If more people are in the urban areas, then they have the right (under a democracy) to have the most power. Second, I don't think that states would be neglected. Small states have more than their share of protection in the Senate (as we have seen). So, I think that small states should be happy with the malapportionment in the Senate, which provides excessive protection and gives them disproportionate power.

So again I ask - what Republican majority?

"President Bush, if you had discovered in January 2003 that Iraq had no WMDs, would you still have authorized the war?"

What does he say? He can't say no - not after losing over 500 soldiers. But, if he says yes, that response would trigger another type of debate. I thought Al Sharpton captured it pretty well last night:

I preached the funeral of a young man, Darius Jennings, who died shot down in a helicopter in Iraq. I preached it right here in Orangeburg, South Carolina. His mother was told he went to war to protect us from weapons of mass destruction. She was not told he went to war because we have a bad guy over there, because there's any number of bad guys. We should find a way to get rid of bad guys, but lying to the American people is not the way you run a country, and George Bush ought to be removed for that.

As I stated earlier (and as Sharpton made clear), there's a big problem with retroactive justifications -- it's not clear the same action would have been allowed under the new rationale.

Someone please ask Bush the million dollar question.

Faulkner once wrote that in the South, "the past is not dead. In fact, it's not even past." So true.

The issue of Democrats and the South has been a hot topic lately -- and will continue to be one as Democrats (and Kerry) debate whether or not to even compete in the South in 2004. There's a great article in Slate urging Democrats to give up on the South. The Slate piece cites a recent Washington Post article from a political scientist, who also urged the Democrats to develop a non-Southern strategy much in the tradition of the Republican Party in the early 20th century. I can't add to those persuasive articles (though I disagree slightly - as I'll explain). I want to make a slightly different point - the Democrats are being punished for doing the right thing.

Obviously, that's not a new point. People have long noted that the South started going Republican when the Democratic Party embraced the civil rights movement (for example, many states replaced their flags with the old Confederate design after Brown v. Board of Education in 1954). But many will respond that all that is in the past. They say that Republicans win today in the South because of values and national security. Not true. To paraphrase Faulkner, the past is not past. As much as I hate to admit it, Republicans TODAY are winning because of race. And the Democrats are losing because they have embraced positions that, while being 100% just, are opposed by a numerical majority. To clarify, I'm not saying that all Republicans are racist (far from it). But unlike press pundits who speak of the South as an alien planet, I know how its political coalitions work. You have three groups - good Democrats, good Republicans, and a sizeable minority of flat-out racists who vote Republican (they used to vote Democrat). Many today would deny the existence of the latter group, or would deny that racial politics play any role in the New South. They say that things have changed. My post will show why that is not true.

First, let's go to Mississippi. In 2001, then Governor Musgrove (Democrat) supported changing the Mississippi state flag, which prominently displays the Confederate "Stars and Bars." The legislators wanted the issue to go to a referendum, and it did. The voters favored the old Confederate flag by a margin of 64 to 36%. Mississippi's population is 61% white and 36% black. (Most info is from Barone's Almanac of American Politics, 2002).

In 2003, Republican Haley Barbour defeated Musgrove. According to exit polls, Barbour won 77% of the white vote, but lost 94% of the black vote. Was this racial divide attributable to economics or values? No. Barbour used Musgrove's support for the new flag to get votes. Obviously, the flag was a controversial issue in Mississippi. Yet, throughout the campaign, Barbour wore a pin of the (current) state flag prominently upon his lapel. Just to make sure everyone knew where he stood, he also ran ads reminding the voters of Musgrove's desire to get rid of the old flag. Just for kicks - you should also know that in 2000, whites favored Bush 82-17, while blacks favored Gore 96 to 3.

Next, Georgia. In 2002, Republican Sonny Perdue defeated Roy Barnes. Two years earlier, Barnes convinced state legislators to replace the old flag, which also displayed the Stars and Bars. Perdue ran explicitly on this theme, promising to let people vote on the issue of the flag. You should know that Georgia is 65% white and 29% black - so it's obvious what the result would be. The campaign also distributed brochures in rural areas that told voters to "remember who changed your flag." Perdue ended up winning 95 of the 96 counties that were more than 65% white. Barnes had won 55 of those counties four years earlier. If all that wasnt enough, Perdue quoted Martin Luther King in his victory speech, saying "Free at last! Free at last!" while supporters behind him waved Confederate flags.

Next, Kentucky. In 2003, Republican Ernie Fletcher defeated Democrat Ben Chandler (ushering in the first Rep. administration in 30 years). On election day, the Republicans invoked a seldom-used voter fraud law that allows each party to place "challengers" at every precinct in the state. The Republican challengers were only sent to West Louisville, a predominantly black area.

Finally, South Carolina. In 2000, whites voted for Bush 70 to 27%, and blacks supported Gore 91 to 7%. In 2002, Republican Mark Sanford defeated Jim Hodges. Earlier, Hodges had been part of the controversial effort to move the Confederate flag from atop the state's capitol. Hodges initally waffled on it, but finally supported it. So, the whites were mad that he moved the flag and the blacks were mad that he waffled about it. To his credit, Sanford has taken some steps to reach out to blacks since his election -but it's undeniable that he benefited from the controversy.

I've cited only the most obvious examples - who knows how much race-baiting goes on at the micro-level of the campaigns. I don't know for sure, but it's safe to say that it happens a lot. So, it's not just that racism in the 60s caused the South to go Republican - it continues even today. If you don't know about the earlier history, here's a quick summary. The South never voted for a non-Democratic president from the end of Reconstruction (end of 1870s) up through 1948. (1932 was an exception - but people thought the Democrat would make America Catholic - and people hated Catholics then). [Update: Thanks to Frederick for pointing out that the exception was 1928, and not 1932. You can check out his blog here.] The first real, permanent move away from the Democratic Party came in 1948 when four states voted for Strom Thurmond's segregation party. Not coincidentally, the Democrats had included a plank in their 1948 platform supporting civil rights, which caused Strom to bolt. The South stayed strongly Democratic up through the 1960s. Eisenhower picked off a few southern states, but Kennedy won many of them back. Fast forward to 1968 - In the previous four years, Democrats (under LBJ) had passed the Civil Rights Act and the Voting Rights Act. The result - only ONE state voted Democratic (Texas). Half went to the Republican Nixon. And half went to George ("Segregation now! Segregation tomorrow! Segegration forever!") Wallace. In 1968, the once solid Democratic South was solidly anti-Democratic. Reagan also carried in the South in 1980 (along with the whole country). But, he kicked off his campaign in the rural town (pop. 7,700) of Philadelphia, Mississippi in 1980. Have you ever seen Mississippi Burning? You know, the movie depicting the true story of the 3 civil rights workers who were murdered in the 60s. That happened in Philadelphia - true story. Google it if you think I'm distorting the truth.

Like Faulkner and every other white person in the South, I'm haunted by our past. I've been guilty of having a chip on my shoulder about it, and when I was younger, I chose to ignore the obvious. But the truth is undeniable - race is still a primary reason that Democrats lose. The Confederate flag controversies make it all too clear. And what's truly tragic about it is that Democrats lose for having made decisions in the past that were required by anyone's definition of justice and morality.

So, I hope the Dems don't give up on the South. For one, a few southern states are becoming more progressive and urban, and will likely go "Blue" in the years to come (I'm thinking of North Carolina, and yes, Texas). So, it's worth it to keeping building the grass roots in those states. There are also several states in which many old New Deal Democrats remain loyal (Louisiana, Arkansas, and Florida). Finally, I think the effort should be made even if it's futile. Do it for history. I have no doubt that the Democrats will one day be rewarded at the polls for having done what's right. Though it won't be this November.

I'm not exactly a techie, but I should be adding an RSS Feed within the next couple of days (if I did everything right!).

After winning New Hampshire, I heard Kerry say the following in his post-victory speech:


So I have a message, I have a message for the influence peddlers, for the polluters, the H.M.O.'s, the big drug companies that get in the way, the big oil and the special interests who now call the White House their home: We're coming. You're going. And don't let the door hit you on the way out.

It sounded so familiar. Where had I heard that before. O right - Gore's 2000 acceptance speech:

And that's the difference in this election. They're for the powerful, and we're for the people. Big tobacco, big oil, the big polluters, the pharmaceutical companies, the HMO's. Sometimes you have to be willing to stand up and say no - so families can have a better life.

This message cannot win. Edwards could possibly get away with this kind of message, but not Kerry - you just don't buy it from him. This "people versus the powerful" theme failed in 2000 and it will fail in 2004. And there's a simple reason: the working classes in America don't realize that they're working class. David Brooks first made this observation in a 2001 Atlantic Monthly piece, which I would classify as nothing short of brilliant. Just read what he says:


Stanley Greenberg tailored Al Gore's presidential campaign to appeal to such voters. Gore's most significant slogan was "The People Versus the Powerful," which was meant to rally members of the middle class who felt threatened by "powerful forces" beyond their control, such as HMOs, tobacco companies, big corporations, and globalization, and to channel their resentment against the upper class. Gore dressed down throughout his campaign in the hope that these middle-class workers would identify with him.
. . .

[Brooks went to rural towns to see if Gore's message was correct.] When the locals are asked about their economy, they tell a story very similar to the one that Greenberg, Teixeira, Rogers, and the rest of the wage-stagnation liberals recount. There used to be plenty of good factory jobs in Franklin County, and people could work at those factories for life. But some of the businesses, including the textile company J. Schoeneman, once Franklin County's largest manufacturer, have closed. Others have moved offshore. The remaining manufacturers, such as Grove Worldwide and JLG Industries, which both make cranes and aerial platforms, have laid off workers. The local Army depot, Letterkenny, has radically shrunk its work force. The new jobs are in distribution centers or nursing homes. People tend to repeat the same phrase: "We've taken some hits."

And yet when they are asked about the broader theory, whether there is class conflict between the educated affluents and the stagnant middles, they stare blankly as if suddenly the interview were being conducted in Aramaic. I kept asking, Do you feel that the highly educated people around, say, New York and Washington are getting all the goodies? Do you think there is resentment toward all the latte sippers who shop at Nieman Marcus? Do you see a gulf between high-income people in the big cities and middle-income people here? I got only polite, fumbling answers as people tried to figure out what the hell I was talking about.

When I rephrased the question in more-general terms, as Do you believe the country is divided between the haves and the have-nots?, everyone responded decisively: yes. But as the conversation continued, it became clear that the people saying yes did not consider themselves to be among the have-nots. Even people with incomes well below the median thought of themselves as haves.

What I found was entirely consistent with the election returns from November of last year. Gore's pitch failed miserably among the voters it was intended to target: nationally he lost among non-college-educated white voters by 17 points and among non-college-educated white men by 29 points. But it worked beautifully on the affluent, educated class: for example, Gore won among women with graduate degrees by 22 points. The lesson seems to be that if you run a campaign under the slogan "The People Versus the Powerful," you will not do well in the places where "the people" live, but you will do fantastically well in the places where "the powerful" live.
. . .

In sum, I found absolutely no evidence that a Stanley Greenberg-prompted Democratic Party (or a Pat Buchanan-led Republican Party) could mobilize white middle-class Americans on the basis of class consciousness. I found no evidence that economic differences explain much of anything about the divide between Red and Blue America.

Could someone please forward Brooks's article to the Kerry campaign?

In an earlier post, I made the argument that the American people aren't really that polarized, despite everything you hear on TV. Rather, I believe that our political process has several flaws that cause this polarization. In this sense, the polarization we see is less of a reflection of the people, than it is a reflection of structural flaws in our political process itself. If you haven't read the earlier post, you should really go read that one first. You can't understand why gerrymandering is so terrible without knowing the dynamics of (1) primary elections; and (2) the increasing centralization of national political parties. On to gerrymandering . . .

As you may know, the Supreme Court is going to decide a case later this year involving a challenge to a blatantly partisan gerrymandering in Pennsylvania. There are a number of great briefs, but if you really want some good political science statistics, check out the Ornstein/Ortiz brief.

The stats from 2002 House election are depressing:

- Only 4 incumbents lost to challengers (a new record).
- Only 43 Representatives won "narrowly," which was defined "generously" as less than 60%.
- 338 Reps. won by over 20%.
- Not a single challenger in California won more than 40% of the vote.
- 78 seats were unopposed by a major party challenger
- In Florida, Penn., Ohio, and Mich. (in which Gore won 50.7% in 2000) Republicans hold 51 of the 77 House seats.
- In Georgia, Reps got 55% of the vote, but Dems won 55% of the House seats.
- (All info comes from 3 Supreme Court briefs for Vieth v. Jubelirir - Ornstein, ACLU, and Jenner & Block)

There are so many obvious problems - the lack of accountability, the decline of democracy, etc. I, however, want to focus on a less obvious problem. Though I agree that excessive gerrymandering causes all these problems, my point is that neither the political process nor the Constitution is capable of fixing it. What we have here is an old-fashioned Marxist internal contradiction - a problem that cannot be solved by (or contradicts) the internal structure of our governing process. But let's back up.

In my earlier post about why our political process is polarized, I made two points: (1) primary elections systematically produce more extreme candidates; and (2) these candidates depend on (and are responsive to) the leadership of the national political parties (rather than their own districts). The former creates polarizing candidates, and the second ensures that individuals follow (or more closely follow) the party line. Gerrymandering exacerbates this situation in two ways. First, it essentially eliminates general elections from the process. Even if primaries produce extreme candidates, the prospect of a general election would (in theory) have a moderating effect in the absence of gerrymandering. But now, the primary winner becomes the Congressperson. And the Congressperson must only satisfy the median voter within his or her party, rather than the median voter of the district. If you read the briefs, you'll learn that one important gerrymandering strategy is to place your party's candidates in districts with a safe margin of victory (roughly 60%), while putting your opponent in a district "packed" with super-super-majority support (75%). So, in both kinds of districts, there is no need to respond to the minority party. In these districts, representatives need only satisfy the median voter of their own majority bloc.

So what's the big deal - just vote them out, right? Well, no. That's the second problem with gerrymandering. It freezes this arrangement in place. It eliminates the possibility of real electoral change, because it's only possible for representatives to be replaced by other representatives within their own majority bloc. So, gerrymandering doesn't necessarily ensure that particular individuals will win (though that's generally what happens), it ensures that a particular polarized faction will remain in control of the seat. It's a vicious cycle - with roots in the primary election. Centrist coalitions do not exist today because centrist candidates cannot win the primary (Arnold was the exception because there was no primary in the California recall). And gerrymandering ensures that these centrist candidates will never win - it freezes the advantage in place. The Ornstein/Ortiz brief (p. 6) captures the point nicely:

If the only meaningful electoral challenge that can take place is in a party primary, a representative may be acutely responsive to the faction of ideological activists who regularly populate party primaries and largely unresponsive to the views of the average voter in the district. Centrist voters of both parties are thus artificially silenced and the House as a whole becomes even more polarized than before, which, in turn, encourages further partisan gerrymandering. The result is a vicious cycle leading to ever more frequent and more severe gerrymandering and worsening polarization in the House.

And that's what we have in the House today - a bunch of polarized, extreme representatives with no incentive to cooperate (for fear of losing the median voter within their own party).

OK - that's all been said before. Here's my point. We can't fix this problem. It is a contradiction to our political process. Let me explain. The first option is the legislative process - the source of all things good in conservative jurisprudence. The appellants in Vieth (the gerrymandering case) make a powerful argument that the Constitution only allows Congress to address this issue. And they seem to be right - the Constitution says that Congress may alter "Regulations" regarding the "time" or "manner" of congressional elections. The argument is that this explicit language makes this issue into a so-called "political question" - which must be addressed by a branch other than courts. If the Court agrees, we're screwed. Change would never come. We would be depending upon Representatives who owe their very existence to partisan gerrymandering to eliminate excessive gerrymandering. Opposition to this reform would be the one issue that would unite all Representatives from all gerrymandered districts. Even the supermajority minority representatives won't vote for something that substantially increases the chances that they might be defeated.

No legislative change can come under the two party system. The district itself will not punish its representative - because it won't risk being governed by a candidate from the other party. And what's worse, even if representatives considered it, the national party leadership would use their leverage to convince them otherwise because both parties benefit. As long as the parties are relatively equal, gerrymandering makes their political monopoly complete. Real calls for reforms will only come when one party really starts to become a national minority. But this will fall on the deaf ears of the gerrymandered majority. The only possible legislative option (that I can imagine) would be a huge mobilization of single-issue voters that forced all elections into a referendum on reforming gerrymandering. And because I would bet that a majority of Americans don't even know what the word "gerrymander" means, I don't see that happening. Basically, we're fucked.

Our next option is to go the courts. This is the only body that is capable of helping the current situation. It's a classic "political process" problem. For example, when southern states denied blacks the right to vote, you couldn't really say, "leave it to the legislature." That presupposed that the legislature was acting properly and could fix it. But in the south, it wasn't. Blacks couldn't vote and, therefore, the political process would never correct it. The same is true here - we can't "leave it to the legislature" because the legislative process is flawed. What we need are activist judges to step in and fix the process so that legislatures can go back to their business. To me, this is a case where judicial activism is not only wise, but is required. Everything conservatives treasure - textualism, the legislative process - it all presupposes that the legislative process is not flawed (and thus produces legitimate "text").

But there are a number of obstacles - big Willie Rehnquist for one. After all, the Rehnquist Court may not find any constitutional authority for addressing the problem. Second, it may agree there's a problem, but decide that there is no workable remedy or rule that can be applied. If either of those results occur (which I think are very likely), the Constitution will provide us no help. In that case, we are truly fucked. We would have no choice but to return to the legislative process or amend the Constitution (which itself depends on the legislative process). And that's a dead end. That's why the Court must act here - no one else can.

So here we are - trapped in a contradiction. We have a problem that the very rules of our constitutional order cannot address. So, we can either live with it or do everything we can to destroy the primary election and the two-party system in America. In short, we need a revolution. But last I checked, those aren't chic these days.

Compare the two following statements and tell me why the first one should not be considered a flat-out lie.

Statement 1 - [W]e can cut the deficit in half over the next five years. - Bush SOTU Speech. Jan. 20.

Statement 2 - (today) Washington Post article - reporting that the CBO projects a 2 trillion deficit if Bush tax cuts become permanent - the same tax cuts he was advocating in the SOTU (you know, the speech where he said the deficit could be cut in half).

One of the Southern Appeal bloggers has a long post that, after excoriating "activist" judges, proposes a new, more federalism-friendly constitutional amendment regarding gay marriage. I was tempted to refute his argument point-by-point, but I don't think this debate needs anymore angry exchanges, which serve no purpose other than to solidify the positions of the opposing camps. And besides, he makes a very sound argument and offers a well-reasoned proposal. So instead, I'd like to pose a question - why is it "conservative" to oppose gay marriage?

Before I explain, I want to distinguish arguments about gay marriage itself from arguments as to what courts should or shouldn't do about it. In other words, I'm not making legal arguments here, though there are many good ones to be made. For now, I'm just curious why so many conservatives think opposing gay marriage is consistent with their philosophy or their religion. After all, that's what's really driving the debate, isn't it? As much as I like to debate about legal procedure and the proper role of judges, I have to admit that this argument is about something more. Let's be honest, the legal debate is being driven by people's views about the morality of gay marriage. Period.

So, why is it conservative to oppose gay marriage? One common characteristic of conservative thought (beginning with Burke) is a respect for the traditional. But there are two very different ways of conceptualizing this respect. On the one hand, you could simply say "the past was better" or "the ways of the past are more pure." In other words, some respect the traditional just because it's traditional. The second, and more intellectually compelling, way of respecting the past is to look at history as a guide and teacher. Under this school of thought, conservatives respect the past because it provides important answers to the questions of our day. History becomes an epistemological guide that allows us to capitalize on the collective wisdom of the human experience. That's how I read Burke. He's not saying "the past was better." He was saying, "the past has shown us that quick, revolutionary change usually makes things worse." He was saying, "the past has shown us that a planned society leads to tyranny." This is conservativism at its most compelling.

So, bringing that insight to gay marriage, history has shown that every attempt of majority populations to limit the civil rights of numerical (non-criminal) minorities has failed. More than that, history eventually ridicules these majorities. We condemn the Romans for persecuting Christians, and the Christians for persecuting the Jews. In America, we condemn those who fought against granting civil rights to blacks, and to women. You might respond that homosexuality is qualitatively different than these other minority groups. Perhaps. But perhaps not. Using history as a guide, we see that the history of the West has witnessed the expansion of civil rights to all sorts of minority groups (with a couple of horrible wars thrown in) and it sure seems like homosexuality is on its way to becoming another notch in the belt of America's civil rights victories. So I ask all the people who oppose it - have you considered the possibility that you might be on the wrong side of history? Doesn't it seem clear that Bush's SOTU speech will one day seem as hopelessly bigoted as the historical anti-black remarks that make modern ears cringe?

Another strand of conservative thought I have always respected is its small-L "liberalism," which traditionally valued the freedom of the autonomous individual. Why not apply that principle here? Isn't that the justification for low taxes and small government - that individuals know best? So why should we be paternal in this area?

The most common response, of course, is that gay marriage violates many people's religious views. "It's wrong because the Bible says so." I'm going to avoid the path of some snobby liberals and not belittle anyone's faith. My question to the religious, however, is why are you so sure that your religion requires you to oppose gay marriage. I grew up Baptist, so I can only speak of Christianity with any knowledge, but it seems that the Christianity I was taught is more consistent with supporting gay marriage than opposing it.

It's not enough to say that there are a few scattered verses (are there six of them?) in the Bible that condemn homosexuality. The Bible says a lot of stuff - it prescribes capital punishment if your ox happens to kill someone; it prescribes death for cursing your father; it requires women not to speak in church (and that's in the New Testament). Not to mention the seven-headed dragons and Babylonian whores. So once we accept the fact that we don't (and shouldn't) follow every literal command in the Bible, why do people think that being Christian means opposing gay marriage? From what I learned in Sunday School, Jesus was a sort of hippy radical. He hung out with the most marginalized segments of the population - lepers; prostitutes; tax collectors - in order to emphasize his message. And his message was love. Isn't that what Christianity is about - love? Love all, tolerate all, judge none? Do unto others? Help the marginalized, because that could just as easily be you? From what I have read, the teachings of Jesus seem utterly incompatible with the outright anger and hostility that many Christians have toward homosexuality. So, if religion is the only reason you oppose gay marriage, I would ask you why you're so sure that you're interpreting your religion properly? What if you're wrong? What if, instead of requiring you to oppose it, your religion required you to support gay marriage? Isn't that position more consistent with the message of love and tolerance that Jesus preached?

Many liberals complain that there are no more great civil rights battles to fight. My friends, this is the civil rights battle of our generation. And hopefully we will (using history as a guide) recognize the vital role that religion once played in inspiring the early civil rights movements, and the anti-slavery movement before it. It could happen again.

to En Banc for the very nice blurb. I will be providing a permanent link to En Banc soon (alas, real work calls). Go check them out.

If you’ve heard it once, you’ve heard it 100 times. “America is polarized.” “America is an evenly divided country.” I’m not sure that’s right. I agree that the current political process is polarized, but I’m not sure that the process reflects the mood of the American people. Instead, I think that the political process is polarized because that process is flawed, and that the flaws within the process (rather that a polarized electorate) are actually responsible for the “Two Americas” we hear so much about. Though there are many flaws, I’m going to focus on two specific ones today: (1) primary elections; and (2) the increasing centralization of national political parties. Later in the week, I'll look at two others: gerrymandering and the implications of the malapportioned Senate (and Electoral College).

Primaries make all elections undemocratic. Whenever we vote in a general election, we are not voting on candidates of our choice, but on candidates who have been chosen by a much smaller segment of the population. Here’s why that’s a problem. Assume I’m running for school class president and there are 100 students voting. The big issue is how much recess we should have. Student 1 wants no recess (he’s pre-law) and Student 100 want recess to last all day, and everyone else is in between (along a spectrum). To win, I have to appeal to enough voters to win 51 votes. The 51st voter is the so-called median voter, so I have to be in favor of whatever the 51st voter favors in order to win.

Here’s how primaries fuck things up. Primaries split the electorate into two groups. To win a primary, you're trying to win the median voter of a much smaller group. Returning to our class president race, let’s say that students 1 to 50 are one “party,” and students 51 to 100 are another party. In order to be the nominee of the first party, you need to capture the median voter, which is the 26th voter in each group. So, in a general election, the students would not be voting for the two most centrist candidates. They would be forced to pick between two candidates who were much closer to the extreme ends of the spectrum.

In short, primaries systematically produce more polarized elections because they require candidates to move toward each extreme in order to proceed to the general election. Arnold and the California recall provide a good example of what I’m talking about. With his socially liberal views, Arnold would not have won the Republican primary election (he couldn’t have captured the median Republican voter in the primary). But because the recall avoided the primary, it ultimately produced a centrist candidate who was fiscally conservative and socially liberal (a position that I think many in the “center” share). And these are the very types of candidates who are systematically excluded from general elections because of the structure of primary elections.

And it gets worse. Flaw #2 is the increasing centralization of national political parties. To understand why this is such a problem, we need a little background on the Constitution. The Constitution, when it was originally designed, did not contemplate national political parties. It was designed to create structured chaos. The Congress was meant to do battle with the President and vice-versa. Parties kind of screwed things up. For example, when the same party controls the White House and both houses of Congress (as they do now), the natural antagonism between these branches becomes much less than it was designed to be. (And we can see how it’s a problem because Bush is signing all this pork barrel shit that no Democrat would ever do - but I digress).

Another brilliant part of the Constitution was the structure of its election process. The framers designed things so that every Representative would be responsive to his or her district's 450,000 people and that’s it. Everyone else could go to hell because they didn’t vote in the Representative’s district. The same is true of the Senate. Senators would be responsive to the needs of the voters in their state and to no one else. In short, the Constitution intended to create a lot of structural freedom for individual members of Congress.

Enter centralized political parties. Today, both the RNC and the DNC have become huge mega-corporations that have monopolized the political process. They give out campaign cash, provide campaign strategy, and arrange for high-level people to help campaign for the individual candidate. So, today’s Representatives and Senators are no longer responsive only to the people of their district. They must also be responsive to the party leadership because candidates depend upon receiving campaign contributions, desirable committee placements (which is huge), and upon high-level visits from Bush or Clinton or whomever. This is not how things were meant to work.

The recent fight over the recent Medicare bill provides a great example of this problem. Rep. Smith from Michigan did not want to vote for this bill, so I’m assuming a majority of his district didn’t support it either. During the (three-hour) vote, the leadership approached Smith and threatened that his son (who will be running to replace him in 2004) would not receive campaign funds and support unless he voted for the bill. Another version is that Smith was promised 100,000 for his son if he went along. Regardless of the dispute, what’s clear is that the leadership brought financial pressure to bear upon Smith for defecting from the party leadership’s preferred position. This runs counter to every structural principle of the Constitution.

Another example of the ways centralized leadership can pressure individual members is through the carrot/stick of committee placement. Because the leadership makes all committee decisions, individuals are well-advised to follow the leadership's instructions if they want on such-and-such committee.

So now combine the two flaws and you get your “polarized America.” First, you have a primary process that systematically produces more extreme candidates. Then, you have centralized party leadership that ensures that individuals stay in line with the decisions made by the leaders (who are themselves the products of primary elections) The leadership achieves this uniformity by exploiting the individual's dependance upon the resources of the national party. This is why America is “polarized.” Its election structure is flawed. I haven’t even mentioned gerrymandering, but it doesn’t take a genius to realize that gerrymandering makes everything even worse. I’ll have a post on gerrymandering - i.e., “The Great Flaw” – later this week. But the big point about gerrymandering is that essentially eliminates general elections. It creates "districts" that are decided by Republican or Democratic primary elections. So, it's an even worst manifestation of the flaws inherent to primary elections - but more on that to come.

Not to be to Orwellian, but the angry battles between the two parties often obscure the monopoly power that each party has over the electorate. Somewhat ironically, both parties depend upon the other being a credible, equal-in-power opponent. The fight between the parties creates the illusion of choice. By focusing narrowly on the ongoing RNC v. DNC battles, we tend to forget about the flaws in the system that allow this fight to continue.

I just watched Kerry on 60 Minutes. He sounded good, but I still think he has electability problems, for reasons I stated earlier.

Dean has launched a new attack on Kerry, which strongly criticizes him for not supporting the use of force in the First Gulf War and, of course, for supporting the use of force in 2002. Dean stated, "Here is a gentleman who is running who votes no in 1991, when there are [Iraqi] troops in Kuwait and the oil wells are on fire, and then votes yes [in 2002] and then there turns out not to be a threat . . . I would be deeply concerned about that kind of judgment in the White House."

To me, Dean has it exactly backwards. Why is it so clear that the 1991 war was just? Say what you will about the 2003 Iraq War, at least there was an argument that it was necessary to prevent a terrorist attack on America. The 1991 war, by contrast, was only about protecting oil. I mean, sure there was all this Wilsonian rhetoric (from a non-Wilsonian administration) about protecting the Kuwaitis. But everyone knew that Americans went to fight for only one reason - to protect the oil supply. Now, I agree that oil is the lifeblood of our economy (or possibly the heroin we're addicted to). And America might have suffered economically had the war not taken place. But, is that really something that you, if you were a soldier, would be willing to give your life for? To protect the oil supply? I wouldn't. But a lot of people would be willing to sacrifice their lives to prevent another 9/11. Who knows -- maybe if we had not entered the first Gulf War, we would have been motivated to adopt alternative energy policies (which would free us forever from supporting such awful regimes like the Saudis').

To me, the 1991 war was less just than the 2003 one. Kerry had it exactly right. Dean has it exactly wrong.

[Update: Howard Bashman had posts entitled "Duck, Duck, Recuse" - I wanted to assure everyone that we both came up with the title independently - you know, sort of like the founding of calculus.]

By now, everyone should have heard that Justice Scalia went duck hunting with Cheney two weeks after the Court agreed to hear the energy task force case (in which Cheney is a named party). Apparently, he was also flown down on an energy company's jet. The big question is whether Scalia is required to recuse himself from hearing the case. The relevant law says "Any justice, judge, or magistrate [magistrate judge] of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." 28 U.S.C. 455.

Non-lawyers should note that the law requires judges to step aside not just when they would be impartial, but when their impartiality may be questioned. In other words, the appropriate standard is if people (reasonably) think you would be impartial. From my admittedly brief scan of the case law, it seems clear that it takes a lot for a judge to be disqualified under this provision. I found very few cases in which a higher court forced a judge to recuse himself (which isn't even possible for Scalia - there are no higher courts). However, you also need to realize that these types of cases aren't usually litigated. In most cases, the judge steps aside and you never hear about it. Or, one of the parties gets pissed off and makes a frivolous claim that the judge was impartial. In short, this law is more of a directive to a judge than it is a law that demands a clear and certain result.

So, Scalia is clearly within the law if hears the case. But - and this is my point - he would also be within the law if he stepped aside. Both options are legally permissible, because who the hell can ever know what "reasonably" means. This is extremely common in law and even more common in constitutional law, which is full of mushy words like "unreasonable" and "due." So here's my point (sorry if i'm boring the lawyers) -- when the law would justify more than one outcome (or in other words, when it is indeterminate), non-legal considerations often affect the ultimate outcome.

One of my law professors stressed this point every day to support his argument that the Supreme Court is very much a political actor. Throughout history, he claimed, the Supreme Court has been faced with indeterminate words such as “commerce” or “equal protection.” Very often, the individual Justices (in the face of indeterminacy) have read their political preferences into the text of the Constitution. Take “equal protection” for example. In the late 1800s (probably the peak of racism in the United States), the Justices read “separate but equal” into the words “equal protection” in the infamous Plessy case. That reading was not a crazy one, as a matter of law. But it was one of many possible readings. The Justices picked that particular reading because it reflected the political mood of the day, which they shared. Similarly, in Brown v. Board in 1954, the Justices read “equal protection” as not including “separate but equal.” Again, nothing compelled this reading as a matter of law, but the mood of the day was much more favorable to minorities. The idealism of World War II made America rethink its racial practices, which ultimately inspired the civil rights movement.

Today (though it’s hard to see without hindsight), one could argue that the current Supreme Court is reading its political preferences into indeterminate text or doctrine (on both sides of the spectrum). For example, it's not an accident that so many high-level Supreme Court cases are decided 5-4, along party or political lines. But the Justices are not evil people seeking to impose their will on the country (except for Bush v. Gore). It's just that, as a matter of epistemology, their political beliefs cannot be separated from how they come to know what they consider the meaning of the law to be. Does this mean we should elect Supreme Court Justices? Perhaps. If you're disturbed that the meaning of the law sometimes depends upon political beliefs, you would probably favor electing the Justices. I don't favor this option -- largely because the vast majority of what the courts do doesn't implicate Republican and Democratic issues. When they do, however, I just wish everyone would be more open about the possibility that many "legal" decisions are political ones. Then we could have a true democratic debate without hiding it in the cloak of archaic, non-publicly accessible language.

Back to Scalia . . . In general, I think Scalia gets a bad rap from the left. In my opinion, he's probably the best writer in the history of the Court (though Hugo Black was the best Justice) and he has a certain intellectual aesthetic. But, as smart as Scalia is, you have to be a complete dumbass to go duck hunting with a named party while an appeal is pending. It's clear that his impartiality will be questioned (even assuming he would be impartial - that's a critical distinction). But, I think he'll choose to hear the case, because his political preferences will drive him (perhaps subconsciously) to interpret “reasonably” in a way that benefits him. Clearly, Scalia should recuse himself after his obvious blunder of going on a private duck hunting trip before oral argument. But, if he hears the case, he won't be acting illegally.

So that's the point - people should know that law doesn't always exist to provide a clear answer. Sometimes it only creates a set of plausible outcomes. I'll try to point this out in the future if it comes up in new Supreme Court opinions.

The NY Times elaborated on Bush's fear strategy for 2004 - which I had discussed prior to the SOTU speech.

It looks like everyone can get ready for the dangerous world that's about to presented to us (over and over and over) by the good folks at the RNC.

January 19 -- Gollum Cheney, on the question of Saddam's WMDs: "I think the jury is still out."

January 20 -- President Bush, SOTU: "Already, the Kay Report identified dozens of weapons of mass destruction- related program activities and significant amounts of equipment that Iraq concealed from the United Nations. Had we failed to act, the dictatator's weapons of mass destruction programs would continue to this day."

January 23 -- David Kay, upon stepping down as head of the WMD inspection team:

Q: What happened to the stockpiles of biological and chemical weapons that everyone expected to be there?

A: "I don't think they existed.

"I think there were stockpiles at the end of the first Gulf War and those were a combination of U.N. inspectors and unilateral Iraqi action got rid of them. I think the best evidence is that they did not resume large-scale production, and that's what we're really talking about, is large stockpiles, not the small. Large stockpiles of chemical and biological weapons in the period after '95.

. . .

Q. What about the nuclear program?

A: "The nuclear program was as we said in the interim report, I think that will be a final conclusion. There had been some restart of activities, but they were rudimentary.

"It really wasn't dormant because there were a few little things going on, but it had not resumed in anything meaningful."
. . .

Q: You came away from the hunt that you have done believing that they did not have any large stockpiles of chemical and biological weapons in the country?

A: "That is correct."

Q. Is that from the interviews and documentation?

A. "Well the interviews, the documentation, and the physical evidence of looking at, as hard as it was because they were dealing with looted sites, but you just could not find any physical evidence that supported a larger program."

Q: Do you think they destroyed it?

A: "No, I don't think they existed."

__________________________________________________

I admit that there was a legitimate question as to whether Saddam had WMDs before the war (when you view it behind the veil). But, the absolute refusal of anyone (and i mean anyone) in the administration to concede the error, or god forbid apologize and promise to improve intelligence, is infuriating. The Bush team has decided to create a new justification and retroactively apply it to the pre-war period. Now, I think it's a perfectly legitimate question to debate whether Saddam needed to be removed for humanitarian purposes. There are good arguments in support of that position. But. . . everyone has to concede that the humanitarian rationale is much more debatable than the WMD rationale. And it's not clear Americans are (or have ever been) that gung-ho about Wilsonian democracy building.

That's the problem with the retroactive justification -- it's not clear that the same action would have been allowed under this rationale. It's sort of like shooting someone that you think had a gun pointed at you. But when you find out that person really didn't have a gun, you respond, "o well, he was an asshole anyway." That won't work in court.

When war is posed as a necessity because Iraq is a WMD-ticking time bomb threatening another 9/11, it is extremely difficult to even debate about whether to act. You can argue about whether the evidence was true or had support, but if it were true, no rational elected leader could oppose action. When, by contrast, the war is posed as a democracy-building, humanitarian mission to transform the world, that's very debatable and it would have been seriously debated if that had been offered as the rationale for action. That was the perverse genius of the Bush team's lead-up to war. They presented everything in the most black-and-white of ways. Rove's brilliance is his ability to frame the question (or the terms of the debate) in such a way that you can either go his way, or you can go the way that's evil, or will hurt jobs, or will hurt seniors, or whatever. See my SOTU comments on this point.

Anyway, I think people would more forgiving than the Bushies think if they demonstrated even the tiniest bit of contrition. Instead, they insult our intelligence. They apply a completely new (more questionable) justification retroactively and pretend like that's always been the reason, OR, they pretend to have already found enough weapons (or program-related activities) to justify the war. People aren't that dumb. They won't keep reading our two top executives saying things that are directly opposite to the reality of the situation and not begin to grow angry. And the longer they keep up the post-war lying (and I don't think that's too strong a word for what bush and cheney did this week, especially in light of David Kay's words), the greater the chances that there will be a reckoning. They're going to be too clever by half. I mean, are there honest conservatives who will admit that it's insulting to everyone's intelligence to use the phrase "program related activities." We're not idiots.

O, and just for kicks, if you doubt my argument, you should compare the phrase "WMD program related activities" (does that include reading a chemistry textbook) with Bush's language two days before the invasion in 2003:


Intelligence gathered by this and other governments leaves no doubt that the Iraq regime continues to possess and conceal some of the most lethal weapons ever devised. This regime has already used weapons of mass destruction against Iraq's neighbors and against Iraq's people.

The regime has a history of reckless aggression in the Middle East. It has a deep hatred of America and our friends. And it has aided, trained and harbored terrorists, including operatives of al Qaeda.

The danger is clear: using chemical, biological or, one day, nuclear weapons, obtained with the help of Iraq, the terrorists could fulfill their stated ambitions and kill thousands or hundreds of thousands of innocent people in our country, or any other.

The United States and other nations did nothing to deserve or invite this threat. But we will do everything to defeat it. Instead of drifting along toward tragedy, we will set a course toward safety. Before the day of horror can come, before it is too late to act, this danger will be removed.

- Bush Speech 3/17/2003 (giving Saddam 48 hours)

Edwards is getting criticized for his alleged misrepresentation of DOMA. But, actually, he was right. The Defense of Marriage Act has a second provision that defines "marriage" for purposes of federal law. He said, "But as I understand the Defense of Marriage Act, it would take away the power of some states to choose whether they would recognize or not recognize gay marriages. "

_____________

§ 7. Definition of "marriage" and "spouse" [1 U.S.C. Sect. 7]

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word "marriage" means only a legal union between one man and one woman as husband and wife, and the word "spouse" refers only to a person of the opposite sex who is a husband or a wife.
____________

As this study shows, the definition implicates a number of tax and retirement provisions, and disqualifies partners for federal benefits under these provisions. So, even if 100% of the electorate favors gay marriage (and my position is federalist - leave it to states), the state's decision to recognize gay marriage (and all the real-world benefits that would accrue) would be denied by DOMA's refusal to recognize it (in that it doesn't honor that decision with a full reward of benefits).

At one point in the debate tonight, the moderator mentioned that his friend (or relative) said that "we [the Dems] don't need another Northeasterner on the ticket." And we all remember the recent anti-Dean commercial where the wholesome Iowa elderly couple told the "latte-drinking, sushi-eating, volvo-driving, New York Times-reading . . . left-wing freak show" to go back to Vermont. To me, the moderator's question and the anti-Dean commercial provided further proof that a new form of political racism is developing. Until I think of a better word, I'll call it Yankophobia - racism against the Northeast, or against those who are perceived to have "northeastern" sensibilities. While many have noticed this, few have noticed the economic dimensions and benefits of Yankophobia. Let me explain.

To me, the sentiments displayed in both the moderator's question and in the anti-Dean commercial are indistinguishable from what I call "political racism." By political racism, I'm referring to the demonization or demagoguing of a particular numerical minority, followed by a subsequent attempt to link a political opponent or movement with that minority. When you view it from this general level, you'll see that "racism" is actually a subset of the broader phenomenon I'm describing. And the phenomenon itself is the act of stirring up animosity and resentment toward a numerical minority whether that minority be differentiated by race, sexual orientation, or even religious belief. But most critically, political racism (or bigotry if you prefer) is most effective and most necessary when it is used to divide a group whose individuals share the same economic self-interest.

Sadly, southern politics provide a very clear example of what I'm talking about. Throughout the history of the South, poor whites and blacks always had more in common with each other (in terms of economic self-interest) than with the aristocratic, white leaders. These leaders maintained their power by dividing the potential coalition through the use of race. And it worked - and it continues to work (See the 2002 races in Georgia and South Carolina, along with the 2003 Mississippi governor's race - all three of which demagogued the Confederate flag issue).

Today (though in a more subtle way), Yankophobia is working in the same way. And the reason why Yankophobia is so necessary, and the reason why some conservatives are so passionate about stirring up resentment toward the northeastern "latte-drinkers," is because the latte-drinkers advocate policies that are in the economic self-interest of America's working classes. If the "latte-drinkers" had their way, there would certainly be more efforts to provide better health care, to offer fully funded educaton mandates, to create more job initiatives, to avoid deficits that threaten future programs (which help the non-rich the most), and most critically, there would be no tax cuts that go primarily to most well-off segments of the country at the expense of programs that help the least well-off (and anyone who can add must concede these taxes went primarily to the wealthy -- we can argue about the economic wisdom of them - but it's not even possible to deny the wealth-favoritism of the tax cuts). The sorts of policies that the latte drinkers favor would be of the most benefit to the working and middle classes of America. Simply put, latte drinkers are more likely to support using government to promote economic well-being - see, e.g., Social Security, Medicare, Medicaid, federal education grants - all Democratic New Deal coalition initiatives.

So, if working class southerners and midwesterners ever realized that the economic policies favored by the latte drinkers would actually help them the most (and would help them even more than they would help latte drinkers themselves, who are voting against their own economic self interest in a sense), the Republican coalition of Wall Street libertarians and rural social conservatives would be split down the middle. So, Republicans have resorted to what other groups have resorted to in the past -- demonizing the numerical minority who threatens their hold on their political coalition.

That's why you hear so many references to "east coast liberal" in politics, and especially southern politics (where white poverty is higher). That's why Bush flies to Kentucky and Mississippi before the governor's race and praises the candidate's values. It's a not-so-subtle indictment of the values of latte drinkers. That's why they need to stress how much latte drinkers love criminals, and tree huggers, and gay people. Demonizing the Northeast (which is just a proxy for latte drinker sensibilities) allows the Republican coalition to continue to exist. In my opinion, Yankophobia has grown stronger in the past 5 years or so just because it's becoming more obvious how little Republican policies help the middle classes economically.

It will be interesting to see if this continues in the general election. If Kerry gets the nomination, you can bet that we'll hear the word "northeast" thrown around over and over again. But remember, the desire to create cultural resentment is driven by economics.

No - it wasn't the rise of Kerry. CIA analysts are warning that Iraq may be on a path to civil war. My bet - Bush and Bremer will agree to have elections, but will move them back until after election day. Can't have chaos during the Convention.

UPDATE: GOLLUM CHENEY ALERT: Gollum is apparently leaving his underground hole to go abroad for the (get ready) SECOND time in the past 3 years. On why I call Cheney "Gollum Cheney" - see my former post. Before he left, he told NPR that "there was overwhelming evidence of a connection with Al Qaeda and the Iraqi government." Uggggh.

The Ohio Senate voted today to ban gay marriages, but did so in a particularly harsh way. Apparently, "protecting the traditional definition of marriage" also required the state to eliminate benefits to the unmarried partners of state employees.

Listen people -- this should be a warning not to underestimate the power of those who want to pass the federal marriage amendment, or FMA, which would ban gay marriage regardless of a state's preferences. The reason? -- the phenomenon of the "single issue voter." Normally, this concept is studied as a part of public choice theory (I have a post coming on that soon), but I won't get into all that now.

"Single issue voting" could be considered as a flaw (or merit) inherent to majoritarian democracies. Here's how it works: Normally, a question is presented to the electorate and if 51% favor it, it passes. Or if 51% oppose it, it does not pass. This ideal model, however, doesn't take intensity of preferences into account. For example, let's say 20% of voters really really want an environmental regulation eliminated. The other 80% would prefer to keep it, if you asked them, but they don't really care that much. Other issues are more important. Now if you're a legislator, you know that if you oppose eliminating the regulation, you'll lose 20% of the electorate immediately and gain nothing. If you favor eliminating it, you gain 20% of the electorate, and lose nothing. Not a tough choice, is it?

This is exactly how Prohibition got passed (which involves remarkably similar dynamics to the current FMA movement). There never was a majority of people who favored it. But, there was a highly motivated, highly organized group of single issue voters committed to enacting Prohibition. Even though majorities opposed it, they didn't care enough to base their entire vote on it. Politicians who opposed it knew they would lose a solid bloc of single issue voters. And that's why there was a conscious decision to pass the 21st Amendment (repealing Prohibition) in state conventions (thus bypassing state legislatures - the only one to have been ratified in this way). The supporters wanted to avoid the single issue voters. This is sort of how interest groups work - they depend on the ignorance and apathy of those who would otherwise oppose their actions (take the current energy bill, for example).

Anyway, the point is that the pro-FMA religious groups are highly organized and highly committed. Within each state, this group would essentially become single issue voters should the vote on the amendment ever come to a head. And as long as people remain apathetic, politicians have rational incentives to vote for the FMA. When the Ohio Senate is allowed to take this action, and when President Bush can use the SOTU address to demean homosexuality, with no public outcry, then politicians will think there are no negative consequences for passing FMA. I know people are being complacent about it. They shouldn't.

[Update: According to Andrew Sullivan, the public opposes the FMA 58 to 38 - but as you now know, that's not necessarily reassuring.]

to Tapped for the shout out. I urge everyone to go check out their blog!!

Everyone knows the rap on Clinton: He told blatant lies. He regularly misled people by relying on the most attenuated connections between his statements and reality. He was polarizing. And most of all, he was always engaging in political calculations. And everyone knows the view of Bush: He's honest. He's straight with people. He doesn't lead by polls. Bullshit. Bush does everything that Clinton allegedly did, in spades. The speech last night reminded me of what provoked the anger that gave rise to the Dean campaign.

But first, as I predicted, one of Bush's tactics was to scare everyone. He said "terror or terrorist" TWENTY times and "war" 12 times.

BLATANT LIES
1) We're seeking all the facts - already the Kay Report identified dozens of weapons of mass destruction-related program activities. I literally screamed at the TV when he said this. Truly amazing.

2) [W]e can cut the deficit in half over the next five years. No one outside the walls of the White House thinks so, and to be frank, no one inside does either. This is a blatant lie.

HALF-TRUTHS
These are the Clintonian statements that have only the most attenuated link with reality - and that require you to ignore a lot of other information.

1) Colonel Qadhafi correctly judged that his country would be better off, and far more secure, without weapons of mass murder. He never had them, wasn't close to having them. He did it for economic reasons, and had been in the process of rejoining the world for years. He did it now because the Bushies realized the political score it would be.

2) From the beginning, America has sought international support for our operations in Afghanistan and Iraq, and we have gained much support. (including the list of the countries) Yeah, the 5 Poles manning the concession stand are really raising a shit load of money to help us with that 150 or so billion price tag.

3) And jobs are on the rise. Yes, unless you subtract the 1,000 new jobs last month from the 2 million lost in the previous 3 years. But again, Bush is a genius at crafting minimally plausible assertions.

POLITICAL CALCULATIONS/POLARIZING LEADER
If I hear one more time that Bush isn't as politically calculating as Clinton, I may be driven to homicide. Nothing - and I mean nothing - is done that doesn't have the smell of Rove's political calculating. First, the State of the Union was ONE DAY after Iowa. Think that's a coincidence? All the cameras were coordinated to look at the cute little minority children at designated times (i started checking different channels). Ughh. Anyway, while any president uses the SOTU speech to prepare for the campaign, few have been as openly polarizing and taunting as this president. Everything is good v. evil. Sadly, I had high hopes that Bush (who seemed like a good guy in 2000) WOULD bring a new tone to Washington. He hasn't - and the speech shows why.

1) [Some people] view terrorism more as a crime - a problem to be solved mainly with law enforcement and indictments. Yeah. That was the Democratic post-9/11 response. This is just polarizing. On an aside, i think that the true source of "Bush hatred" was the perceived betrayal after 9/11. Bush had a national consensus and could have become an Eisenhower above-the-political-fray president. And he would have been revered. But instead, he took the national 9.11 goodwill and the political capital and used to punish the Democrats on Iraq (resolution scheduled one month before 2002 election), Homeland Security (Cleland portrayed as Osama) and to ram through tax cuts that relied on Americans' general ignorance of basic economic principles (the "death tax" - also called the "preventing the super-rich Paris Hilton-types from reaping unearned benefits tax" - also relies on voters' ignorance). Dems felt betrayed and angry by early 2003. Enter Howard Dean. E.J. Dionne had a good column on this point.

2) America will never seek a permission slip to defend the security of our country. Boy, that's controversial, but the implication was clear. This is the art of preempting legitimate criticisms by simplifying things into clear, though illusory, black and white terms. The logic is - People can legitimately criticize us for not exhausting diplomatic options (or for saying "fuck you" to the UN), so let's portray those people as "seeking a permission slip to defend security." So very polarizing.

ART OF THE NON-DISPROVABLE ASSERTION
Bush is a genius at this (or his speechwriters are). This is a statement that sounds good, but cannot be proven or disproven.

1) And because you acted to stimulate our economy with tax relief, this economy is strong, and growing stronger. Obviously, the issue is more complex than this. For example, could we have sustained strong growth with a tax cut that created less deficits? But again, simplicity is the key.

That's the Bush strategy - keep it simple, keep it in black and white, keep 'em a little scared.

With Pickering in the news, I'd thought I see what Republicans used to think about recess appointments.

"[It is] outrageously inappropriate for any president to fill a federal judgeship through a recess appointment in a deliberate effort to bypass the Senate." -- Sen. Inhofe (R-Ok) - Atlanta J and C - Dec. 29, 2000.

After the 93-1 vote confirming Gregory in 2001, a Lott spokesman said that "any appointment of federal judges during a recess should be opposed." NY Times, July 21, 2001

Today - "While temporary recess appointments certainly are not a preferred means of getting quality judges on the bench, in this exceptional case, Judge Pickering's record deems this recess appointment fully appropriate" - Trent Lott 2004

To be fair, no word on Inhofe. Where'd the outrage go?

Everyone agrees that last night was a bad night for Dean, but if he was going to lose, perhaps he lost in a particularly useful way. Personally, I think that Saddam wrecked the Dean train, and the most Democrats would now vote against him in a 1 on 1 competition with either Edwards, Kerry or Clark. But, Iowa resurrected Kerry and Edwards and there are now FOUR viable candidates. Before, it was shaping up to be a Clark v. Dean battle. So, the longer that all three candidates remain viable, the longer it will be before the non-Dean coalition will outnumber him.

In theory, Dean could win the nomination by winning 20 to 30% pluralities of the remaining states. Obviously, he got less than that last night, but I think in regular non-caucus elections, he's got a solid 25% bloc. I chalk up last night's strangeness to a game theory concept called the "domino effect." Caucus-goers saw that people were moving to Edwards and Kerry and they got swept up in it and did the same. It's similar to what happens when a stock starts going down, and investors start selling, which then can cause a domino effect of selling (take the Argentina meltdown, for example). So, ironically, because both Kerry and Edwards finished ahead of Dean, that may save his candidacy (for the nomination).

I had the good fortune of seeing Dean's speech/lapse into insanity live. Being the good citizens that they are, National Review provided a link. Other than putting me in a state of shock, it reminded of the last golf match in Happy Gilmore. You know, where Happy gets mad and keeps swinging over and over at the golf ball, while people in the stands try to tell him to stop, saying "Happy, no! Happy, stop!"

"Oklahoma . . . South Carolina . . Missouri . . "

Howard, stop.

In a word, no. I'm astonished as anyone else about the decline of Dean and the success of Edwards and Kerry and there will many future posts on this. But with Dean's fall, the obvious question among Dems is how Kerry would fare as the nominee. Here's my two bits (which is objective commentary not advocacy).

The Electoral College (the stupidest thing ever, with roots in slavery and racism) and the polarization of America have combined in an interesting way. As Larry Sabato pointed out over at Crystal Ball, most of the states will go Dem or Rep regardless of who the nominee is. No Republican will win California, and no Democrat can win in Alabama. So, the election is not truly national. The presidency will be decided by about 8 or 9 swing states (Iowa, WV, Penn., Wisconsin, Oregon, Nevada, Florida, New Mexico, Ohio, Arkansas). So, the proper question is not who is the best national candidate, but who can win a majority of these particular states. Karl Rove knows this better than anyone. It's no accident that Bush enacted steel tariffs (protecting workers in WV, Ohio and Penn) or is pushing for immigration reform (Florida, Arizona and New Mex), or passed a prescription drug benefit (old folks in Florida). The Bush administration has systematically passed legislation to favor these particular swing states. And they should - there's no need to do anything for Kentucky because it's a safe Bush state. Ah, to be the median voter.

So this is the problem that Kerry faces. A lot of these states are blue collar, socially conservative states with no fondness of the Northeast. Kerry is a great guy and a war hero, but the question is whether that will be enough to get coal miners in WV to vote for someone from Massachusetts. So, I'm not sure Rove is sweating Kerry (and he was salivating for Dean for the same reason - in spades). Rove probably is worried about Edwards and Clark though. Edwards not only picks off North Carolina (net 30 point different - which is HUGE), but he plays well among the working classes in the swing states. Clark is more of an unknown, but he at least picks off Arkansas, which would be enough for the presidency if everything else stays the same as 2000. [Update: An observant reader noted that I was wrong on this point. The South gained more electoral votes because of population increases recorded after the census. So, even if Clark won Arkansas (and everything else stayed the same), Bush would still win. Thanks for the tip!]
Before I go, I should note that the biggest loser tonight was Al Gore - endorsing Dean one week before Saddam was captured (which to me ended his viability). Al Gore - the man Fortune despises.

Taking a break from his paranoid Hobbesian fantasies, Gollum Cheney crawled out of his hole last week to give an interview to the LA Times.

When asked about Saddam's weapons of mass destruction, Cheney said: "The jury's still out." Amazing. Truly amazing. I don't what troubles me more: (1) the blatant and continuing post-war lying; or (2) that he actually believes it. Sorry Gollum, but the jury is in, they came back with the other 400 jurors who were looking around in vain. Now I agree the jury may be out on whether there's a mortar buried on the Iranian border that some hapless general spilled mustard gas on 10 years ago. But on the question of whether Saddam had significant WMDs, the jury is very much in.

Oh - and I've dubbed him Gollum Cheney not because of the physical resemblance (which is strong), but because I picture him deep in a hole, clutching his "WMD Intelligence Reports-of-Power," which were forged deep in the office of Mount Scooter Libby. "My precious . . . O, my precious. . . I knows you're right. Fat liberals will see. I knows it. I knows it."

to Legal Theory, my favorite blog (after my own of course), for the reference. And by the way, i had no idea that he would write on originalism when I was writing the post below.

I'm in the process of reading an interesting book by Karen Armstrong - "The Battle for God: A History of Fundamentalism." She surveys three major religions (Judaism, Islam, and Christianity) and traces the rise and development of each religion's fundamentalist movements. Her central argument is that fundamentalism should be understood as a modern response to, as well as a rejection of, the forces of modernity (and the changes that follow). Applying her insights to constitutional law, I was struck by the similarities between the rise, or recent revival, of originalism in American constitutional interpretation and the rise and revival of religious fundamentalism. In fact, I think the debate over originalism reflects a larger debate in our society between the forces of what I call modernism and anti-modernism. I also think this debate is the source of the extreme political polarization in America today. But let's back up.

According to Armstrong, the history of the three religions can be divided up into broad general categories. Throughout most of their existence, the religions existed in the "premodern" stage, in which the "conservative spirit" dominated. She explains:

Instead of looking forward to the future, like moderns, premodern societies turned for inspiration to the past. Instead of expecting continuous improvement, it was assumed that the next generation could easily regress. Instead of advancing to new heights of achievement, societies were believed to have declined from a primordial perfection. This putative Golden Age was held up as a model for governments and individuals. It was by approximating to this past ideal that a society would fulfill its potential. Civilization was experienced as inherently precarious . . . [and] could easily lapse into barbarism. (p. 34)

Then came Isaac Newton, and things started to get fucked up. With the rise of the Enlightenment and the emphasis on the rational, much of the certainities of the premodern world (i.e., myths about the sun, origin of humans, etc) were suddenly gone. The scientific method and empiricism were changing the world. Slowly, the premodern society (ruled by kings and priests), gave way to "modern" societies (ruled by elected leaders), with the American and French Revolutions as the living embodiment of Enlightenment ideas. The basic distinction between the modern and premodern mindset was the former's insistence on seeing and understanding the world through a rational, or scientific, or skeptical lens. One mindset was rational and one was irrational (in the literal sense of the word - i don't mean it pejoratively). One looked for scientific causes to explain the world, the other looked to traditional religious authority or myth (which are irrational ways of thinking, strictly speaking).

Fundamentalism arose after "modern"ity began to change the world. What's most fascinating is that each religion responded in a very similar way to the perceived threats of modernity. For example, when the first wave of modernity hit Europe (with Copernicus, printing press, and other advances), it was followed by the Reformation. And the great Reformers (Luther, Calvin, Zwingli) wanted to return to the source (ad fontes) of early Christianity. They wanted to shed all the theology and interpretations of the (now called Catholic) medieval theologians -- they wanted to return to early Christianity, to the language of the Gospels itself. The same thing happened in Islam. A reformer named Ibn Taymiyyah rejected medival theology, and wanted to return to "the pure Islam of the Koran." (p.64). These fundamentalist movements have evolved right along side the three major religions. The Haredim and Southern Baptist fundamentalists, for example, are sometimes called postmodern. They are actually "antimodern." (I'm going to do a future post on why the word I hate the word "postmodern" - i know it'll be hard for you to sleep until then). They aren't an extension of modernity, they oppose modernity (to varying degrees, obviously). Or more precisely, their thought includes strong antimodern elements. And again, in a sense, these groups are rejecting some parts of the Enlightenment. Most forms of religious belief are necessarily irrational, because people don't generally worship God for rational reasons. People worship because of non-logical reasons such as faith. As I'll explain below, I'm not saying one is better - I'm just describing the difference for the moment.

Based on what I've read, this seems to be very similar in spirit to originalism. Now, to be fair, there are two types of originalism (that I"m aware of). The first interprets the Constitution according to how the Framers intended the language to be read. The second, more compelling version -- called "original understanding" -- interprets the text of the Constitution according to the meaning those words had at the time of the Founding. To me, either type (though especially the former) has a lot in common with the animating spirit of fundamentalist groups (which are called "fundamentalist" b/c they wanted to return to the "fundamentals"). Like the Protestant Reformers, originalists want to return to the source. The Warren Court was their equivalent to the medieval theologians who had cluttered up the original source with their own, illegitimate interpretations. And not coincidentally, the originalist revival happened at the same time the Religious Right and the Reagan Revolution burst onto the national scene. In my opinion, these movements were responses to the 60s - another period of great change that seemed to threaten the existing way of life. In the face of the changes, America got religious, just as other societies have in the face of change. In times of flux, there is a yearning for something definite, something almost mythical. These sentiments, in my opinion, combined and began exerting political power in the 80s. And this same revival was reflected in the law in the form of originalism. Thus, the spirit of originalism has a strong antimodern element. Interpreting according to either the Framers' intentions or the understanding at the time of the Framers is, strictly speaking, irrational. Originalists have not adopted originalist interpretation because they've completed a scientific test or conducted a policy analysis and concluded it serves modern society best. They use it because that's what the Framers used. Or, because that was the meaning at the time the Framers lived. They were the mythic source and we are in danger of straying from the Golden Age (or slouching toward gomorrah) if we ignore them.

Of course, one could object and argue that originalism is highly rational b/c it ensures we are interpreting the words that were actually ratified by We the People. In this sense, we are pursuing legitimacy, very much a modern ideal. While I don't think everyone (especially laypeople) subscribes to this when they invoke the Framers, there is some logic to it. My response to this objection is linguistic. As any linguist would tell you, words have no meaning outside of a background context. For example, the word "offer" means something very different in the context of a contracts class than it does in the ordinary world. Words such as commerce and "due process" and unreasonable are meaningless outside a given context. For example, commerce definitely encompasses more today than it did in 1789 because the background contexts have changed. So, what the "original understanding" advocates are essentially doing is selecting a single context (assuming for now we can know that context) to supply meaning to the text of the Constitution. Again, on some level this is irrational. We are selecting the Framers' context, as opposed to some other context, not because they work better in our society, or have been empirically tested (in the spirit of the Enlightenment), but because that was the context that the Framers used.

In response, you could say that legitimacy requires us to use the background context ratified in 1789, but why? Couldn't you just as easily argue that the Constitution consists of words - and like all words, these words will change as the background changes. And if that's true (or at least equally possible), then why pick this context out the all the possible contexts that could be applied. Again, I suspect that the source of the devotion to originalism is not merely a passion for the Platonic ideal of legitimacy. On some level, there is a strong antimodern attraction to the Framers and to an authoritative text, which is similar to the way religious fundamentalists feel about early Christians and the authority of the Bible. Even if originalism can be completely justified logically (which I don't think is possible), one still gets the sense that the spirit or ethos animating both originalism and fundamentalism is similar. Go back and read the first quote about the "conservative spirit" and I think you'll agree that there is at least a common sensibility - a shared sense of decline, a sense of the need to return to a pure source.

If you're still reading (few probably are), I think that seeing the constitutional world as a battle between modernist sensibilities and antimodernist sensibilities helps describe a lot of current disputes. Take the sodomy Supreme Court case, for example - According to one side, the Court has not been faithful to the text, but has instead read its own policy preferences into the text. And for what it's worth - that's probably accurate. But, if you imagine the text in a more modernist, empirical sense, this doesn't seem so bad. Instead of seeing all text as determinate, a more modernist interpretation might recognize the need for experimentation. The Court could say, "We're reading it this way, but if it doesn't work, come back and we'll read it a different way." Obviously, there are many many problems with this style, but the point is to show that the dispute itself is actually a battle between modernist and antimodernist thinking (or between thought more heavily influenced by modernism and thought more heavily influenced by antimodernism).

And finally, I would point out that the modernist/antimodernist debate is the source of many of our current political debates. Take gay marriage. One side is strongly against it b/c of religious objections. Another side is for it because it seems consistent with the Enlightenment ideas of tolerance and equality. The problem is that these two sides can never agree or even discuss it because they each have totally different frames of reference. It's an impasse because the values each side uses to dismiss the other presupposes a value system that the other does not accept. For example, an atheist would not be swayed by the argument, "It's what God says." And, a Baptist would not be swayed by the argument, "God may have said it, but it's wrong for reason X,Y, or Z." This is why America is so polarized. We are in a battle over whether to accept all of the Enlightenment. Sometimes I root for the Enlightenment, but I must admit it's done a shitty job in the 20th century. And it can never offer meaning to anyone's life. I'll stop now - you've suffered enough.