Legal Fiction

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I'm still a little unclear on what exactly I just saw in Boston. Did it seem strange to anyone else that the party who strongly opposed the war in Iraq just had a week-long salute to the military and military service? Did it seem strange that a party whose national leaders rarely invoke religion stressed faith over and over again? Did it seem strange that a party who runs from "values" debates asserted their own "values" again and again? Make no mistake - this was not your ordinary Democratic convention. Something big happened this week - something potentially very big. Or did it? That's the question I want to explore. To me, there are two possible explanations for this week's themes at the Democratic convention. They were either: (1) a disingenuous co-opting of rhetoric that many Dems generally don't believe in; or (2) the opening phase of a fundamental transformation of the American Democratic Party - and one that might just gain them a permanent majority.

First things first. It's well-known that co-opting an opponent's or critic's rhetoric is a great way to defuse the opposition. Thomas Frank (back in the early days of his magazine, The Baffler) wrote extensively about how corporate America co-opted the revolutionary language of the 1960s and 70s, largely reducing its power as a force for change. Some of the articles are captured in the book, Commodify Your Dissent.

Frank's argument is fairly simple. The 1960s and 70s produced a great deal of anti-authority rhetoric about not "conforming," about being authentic, about being original, and about breaking the rules and questioning authority (especially that of corporate America). By the time the 1990s rolled around, corporate America had co-opted this same language, but used it to advertise its own goods. "Being original" essentially became a commodity that you could purchase by eating the revolutionary taco at Taco Bell. You can see similar themes everywhere. Burger King once had the motto "Sometimes You Gotta Change the Rules." Coors' motto is "Be an Original." Car commercials have Hendrix playing in the background. Nike used the Beatles' "Revolution," and so on.

This phenomenon is especially common in politics. Clinton famously said, "The era of big government is over." Bush criticized those in his party who thought America was "sloughing toward Gomorrah." Co-opting and triangulation can be very effective.

It's clear that co-opting was going on this week. The Democrats borrowed heavily from Republican rhetoric surrounding faith, family, values, and the military. Kerry even repeated or alluded to several of Bush/Cheney's lines from 2000 such as "Help is on the way" and "I will restore trust and credibility to the White House." Ryan Lizza has a post up on TNR on this very point (and how Bob Shrum - one of Kerry's advisors and speech-writers - loves this tactic).

The question, though, is whether the Dems were being disingenuous or whether something much larger was happening. The first explanation could very well be true. I honestly don't know how many Dems were watching but thinking to themselves, "I will put up with this chest-thumping until November 2 and that's it." But, if that's not true, then the Democrats may well have just transformed themselves into a larger, much more powerful party by redefining the terms of the debate.

As I've explained several times before, the Dems have been living in a post-Reagan linguistic world. Since Vietnam, they have been susceptible to attacks on both the military/patriotism front, and the so-called "values" front (i.e., social issues). Let me be more precise. Republicans have been winning these debates because they have defined the terms (or the "linguistic arena" in which the debate takes place). Take "values." Republicans are winning on "values," not because they are objectively more moral, but because they have successfully scalded a limited definition (their limited definition) of the word "values" on to the brains of middle-class (largely white) Americans. Expressed more abstractly, their argument is structured like this: "'Values' equals 'X' and nothing other than 'X.' I support X, you oppose X. I therefore have 'values' and you don't." The standard response has been to dismiss religion in politics or to avoid the entire debate over values. But the better response is simply to say "No. You're wrong. Values equals 'Y.'" In other words, values means something different than what you say it means. (I explained much of this in my post "Values 2.0").

The same is true of "patriotism." The GOP says "Patriotism equals X." Rather than rejecting patriotism, Dems should say, "No, patriotism equals Y."

As far as faith and values go, I've made the argument several times before that Democratic economic policies and social policies are more consistent with Judeo-Christian teachings than Republican ones. But liberals have been afraid of invoking religion, in part because of the abuse of it by Jerry Falwell (the General has more on the good Reverend), and in part because a large chunk of them don't believe in a force or being for which there is no empirical evidence.

That's fair enough, but it misses something. You don't have to believe in God to support a great many policies that are consistent with Christian teachings - helping the poor, rewarding hard work, applying a presumption of peace, helping global poverty, and so forth. The trick is to find policies upon which a broad coalition of secular humanists and progressive Christians can join forces - just as they did in the early 1960s when fighting for civil rights.

In addition, there is simple political reality. Religous people are an overwhelming majority in this country, and if you run away from religion, you will be eventually find yourself out of power politically. It's just a fact of life in America.

That's why I think this convention could potentially mark the beginnings of a whole new post-Reagan Democratic Party. For the first time in a very long time, the Dems voiced strong support for faith, values, the military, unity, and patriotism. Obama's line was particularly powerful - "We worship an awesome God in the Blue states." I know that many Dems, especially secular ones, may have felt a little uneasy about it. But that's only because their conception of religion is too narrow (and too influenced by the Neanderthal wing of the GOP). Religion is only harmful to progressive values when it is used as the GOP has used it (or part of the GOP, I should say). But that's not the only way it can be used. Religious rhetoric was instrumental in the fight over slavery, and for civil rights. It can become instrumental in the fight for gay marriage and better economic policies. Again, it's not "religion" that's the problem - it's the GOP version of religion. Their version merely takes white southern-evangelical social norms and labels them as "religion and values." But as Edwards said, it doesn't have to be that way.

Same is true of "patriotism." There's nothing inherently wrong with it, it's just been badly abused by jingoistic Republicans. But again, if you redefine patriotism, it can be a powerful narrative to use in support of your policies. For example, is it patriotic to pass massive tax cuts while our troops are at war? Is it patriotic to ignore military and diplomatic experts before sending troops to battle? Is it patriotic to allow Americans who work full-time to be in poverty? Again, the trick is showing that the opponent's conception of patriotism is not the only possible one. Or more precisely, the trick is to offer a more compelling and progressive version of patriotism - an "enlightened nationalism" that respects world institutions because it's in our self-interest to do so.

That's why I think this convention promises to be transformative. As I've explained before, the long-term demographics are in the Dems' favor. But, they have a white-person problem, especially a white middle-class person problem. Now some of that is unavoidable. Supporting civil rights chased a lot of whites away, and I say good riddance to them. But that's not true of all, or perhaps even most of middle and working-class whites. If these latter people felt comfortable with the Dems on issues of national security, patriotism, and values, they would leave the GOP - which would then be reduced to a minority in Falwell's Exurbs and corporate board rooms.

And besides, if you are serious about winning the votes of the blue-collar union and non-union families who are getting literally bent over by Republican economic and environmental policies, then you have to show the same cultural respect and tolerance for their views and attitudes as you would for anyone from a different culture. I mean, let's say you volunteered legal services in an Arabic neighborhood in Detroit. If you did that, I'm sure you would be very respectful of the families' religious views and very respectful towards Islam, even though you didn't believe in it. Yet, these same good-hearted progressives often fail to extend this same basic tolerance to the religious views of Ohio union families. But the same thing is needed - tolerance. We only need to tolerate that which we disagree with - otherwise it wouldn't be tolerance.

Of course, nothing needs to change on a policy front. Separation of church and state is important, as is stem cell research. Wars are still to be avoided unless absolutely necessary, and the military must be called to task when they abuse citizens. But I don't think that specific policies are the problem - the problem is the perceived lack of respect for religious views and patriotism in general. I know I have been guilty of that in the past. But so-called "middle America" needs to hear what it heard this week. It needs to hear people express support for Democratic policies at the same time they hear them say, "We worship an awesome God in the Blue states." That will bring them in. They need to hear opposition to unnecessary wars coming from those who truly love America. Most fundamentally, they need to understand that Democratic policies are not an attack on their most fundamental beliefs. They need to be able to say, "Hey, I don't support abortion, but the Democratic position isn't an attack on my religion - it's merely one policy I disagree with them on. I know this because I've heard a lot of prominent Democrats who value faith."

And one more thing, this isn't just political calculations. Most Democrats are religious. Most Democrats are very patriotic. The African-American and Latino communities - two vital constituencies - are profoundly religious. Yet they vote Democratic.

Through sheer luck and the incompetence of the Bush team, the Democratic Party has stumbled into a very strong position right now (potentially). If it could add just a sliver of the white middle-class that is experiencing such economic difficulties and anxieties, then the infamous 1896 majority would reemerge - but in reverse and with Republicans in the permanent minority. And the way to snatch that sliver is to do exactly what was done this week.

Your move, Shrub.

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In the aftermath of the Iowa caucuses, I heard a lot about Kerry being a good "closer." He closed well in Iowa. He closed well in 1996 when it looked like Weld was going to beat him. Joe Klein wrote a column a while back in which he quoted an unnamed Kerry aide who had worked with him in six different campaigns and said: "I've been with him through six campaigns, and he always scares you in the beginning . . . but he's always right there in October." I never quite understood why this was so praiseworthy, and made me wonder why he wasn't getting his act together sooner. But after watching tonight's speech and this week's damn-near flawless convention, I'm beginning to understand Kerry's political talents.

He will never be a Kennedy, or a Clinton for that matter. He doesn't have the natural charm. But he does appear to have an uncanny ability to survive and adapt, almost chameleon-like, to the political environment he finds himself in. That may sound like an insult - it's not. All successful elected politicians are, and must be, chameleons ("peace president" anyone?). It's a structural necessity in a majoritarian democracy - especially on the national level. Those who survive by getting 50.1% of the vote must understand which way the political winds are blowing, or else they will cease to exist (politically speaking). It's very much like Darwinism. The American electorate destroys those who stand up for unpopular causes, and rewards those who can adapt. This does not mean all principles must be abandoned (see, e.g., Nixon - who did win two elections though). But it does mean that the themes you stress will vary according to the circumstances. It also means that certain policies must be expressed or articulated in particular ways. And finally, it means that you must fight some battles on another day.

To me, Kerry seems like a very good poker player. He plays a few hands, but folds a lot in the beginning without gambling too much. During this time, he sort of feels out his competition. As he gets a better sense of who he's up against, he gets stronger and stronger, and leaves with everyone's money by the end of the night.

Prior to this week, he has been dodging bullets and avoiding mistakes. With the help of Abu Ghraib (Gar-eff), he dodged the spring onslaught from the Bush war machine. He has spent the spring and summer talking about national security and raising a boatload of money. But most importantly, the campaign has had no major blunders - which is an accomplishment in and of itself.

But now Kerry is no longer playing defense. And this week's convention was brilliant as a matter of political tactics. If you remember nothing else, remember this - the campaign will be decided in Ohio, Pennsylvania, West Virginia, Missouri, and other states with lots of rural people, lots of union workers, and lots of uber-patriotic religious people. This convention - and much of Kerry's and especially Edwards's speech - was directed squarely at these people. I mean, think about it - I just watched a Democratic Party on the verge of collapse in 2002 stay on message for an entire week pounding home the themes of patriotism, family, faith, and unity. I was shocked at how prominently the military and religious themes were emphasized. If you at home didn't particularly care for the simplistic appeals to nationalism, that's the point - this convention wasn't for you. You're probably already voting for Kerry. The West Virginia coal miner with the flag on his porch is not.

But that's the Kerry talent - sizing up his situation, adapting to it, and then striking back hard. I've gotta think that Rove was unprepared for the nature of this attack. The Democrats came out shooting on the GOP's right flank with respect to the military and values. After this week, the GOP is going to have to play defense on a subject they assumed they would never ever have to defend. Trust me, this convention will create anxiety within the White House.

Kerry's speech was also solid. He sounded strong, and he looked presidential. It wasn't Clinton, but Kerry hammered home his military service, his values, God, and all the other themes that Rove assumed belonged to him alone. To me, the speech showed a keen political awareness of what must be done to win.

However . . . there is a question about whether the convention was disingenuous. In other words, how many Starbucks progressives actually liked all the hyper-patriotism and appeals to religion? I think this is an interesting question - and one that I'll examine tomorrow. Just as a preview, I think there are two possibilities: (1) the Dems were merely co-opting hawkish language to win this election, and don't really buy all the rhetoric; or (2) this convention might actually redefine the American "Left" and the Democratic Party. That's for tomorrow.

[Update: Some quick comments on the reaction so far. Matt Yglesias was unimpressed, but he did explain later on that the speech might have been good politically speaking, even though he personally disagreed with it. Drezner makes a similar complaint - they're both upset about the demagoguing of outsourcing, and the lack of specifics about Iraq, Iran, and North Korea.

I've said it once and I'll say it a million more times before November - this election is about winning swing voters in eight or nine states with a lot of rural, blue-collar religious patriotic white voters. Matt concedes as much in his later post, but it's worth stressing. First, demagoguing outsourcing is (unfortunately) political gold. I heard someone say on TV that it's polling through the roof. One might expect that outsourcing would be better understood and less feared by highly educated people like Drezner, but if you're a factory worker in West Virginia, you fear it every single day. I grew up in a small (real small) Kentucky town on the Tennessee border and there are a number of factories in the area. I can personally attest to the fact that the A-Number-1 fear that people in my little town have is that the factory will go abroad - and if it does, these people don't have a PHD in political science, like Drezner does, to fall back on. So I wonder if there's not a little unconscious class bias (or ignorance of the concerns of the working class) going on here. Again, I do believe in free trade, but largely because it helps world poverty. It seems undeniable that outsourcing hurts blue-collar workers - and they are the ones who vote.

Second, as for the complaint about the lack of specifics regarding foreign policy, all I can say is good lord. This is the American electorate we're talking about. They don't know anything about foreign policy ("they hate us for our freedoms"), and addressing specifics won't do any good and will only be used against him. Nixon played it exactly right in 1968 - keep it vague and let the incompetence and dishonesty win the election for you.

Again, I'm not a big fan of this dumbed-down largely meaningless political rhetoric - but it's the nature of the beast.]

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Immediately after the speech, I turned to CNN. I kid you not - they were talking about the balloons not coming down from the ceiling. One of them said that the same thing happened to Carter in 1980 and it was seen as a bad omen - the balloons! Then the camera shot up to the ballons, and then I turned the channel with Judy and the rest of them still discussing the balloons. I clicked back about one minute later and Ed Gillispie was already on with the words "Extreme Makeover" behind him. Gotta love that oh-so-librul media. More on the speech momentarily . . .

[And if you haven't read Fafblog's interview with Wolf Blitzer, please go read it.]

[Update: Hat tip to commenter Molly. The Columbia Journalism Review has been watching CNN's convention coverage very closely. They really are terrible. Truly terrible.]

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I've got a lot to say about the Convention, but I'm going to wait until after Kerry's speech to start posting on it. One thing I do want to address quickly is whether the Dems should be attacking Republicans more directly. I just heard Chris Matthews say that the Democrats' failure to attack Bush and the GOP directly will hurt them. Matthews said something to the effect of "If someone is shooting directly at you, don't you need to shoot back at them, rather than shooting up in the air?" Amy Sullivan voices a similar concern:

The failure to name names may not hurt the Kerry/Edwards ticket. I can't help thinking, however, that the near-total absence of references to the Republican Congress during the Convention will hurt candidates further down the ticket. Again, we've heard a lot about unjust and irresponsible policies this week -- but while they haven't been portrayed as victimless crimes, they often sound like perpetrator-less crimes.

I disagree - even assuming for now that they are correct about the shortage of attacks (I'm not so sure - and neither is Josh Marshall - I just think the attacks have been subtle). As for Matthew's metaphor, he is assuming that direct attacks are the only way to "shoot back." In my opinion, the Dem strategy of presenting an optimistic message with strong doses of patriotism, faith, and family is roughly equivalent to resting the barrel between the GOP's eyes and pulling the trigger. Direct attacks represent one particular means - they are not an end, and they are not the only means available to reach that end.

Here's why I think the attacks are not necessary, and even counterproductive. People forget that, in early 2003, this convention promised to become 1968 or 1972 all over again. The party was fractured and paralyzed over Iraq and the cowardice of congressional Democrats in 2002 and 2003. I honestly thought Nader would get 10-15% of the national vote back then. Then Dean suddenly emerged, and WMDs failed to emerge, and the whole thing started to unravel for Bush.

Anyway, direct attacks were needed back then to energize and solidify the demoralized base. They are no longer needed. Thanks to Rove-the-Genius's strategy of "positive polarization" (modeled after Nixon), the Left is completely unified. Kerry's left flank is secure - Nader can't even get on a ballot anywhere largely because the Left has so completely unified around the effort to remove Bush.

Here's the point - any voter who would be persuaded by direct attacks on Bush is already voting for Kerry. Direct attacks gain you nothing. Josh Marshall explained it well:

Among Democrats, the rejection of this president is so total, exists on so many different levels, and is so fused into their understanding of all the major issues facing the country, that it doesn't even need to be explicitly evoked.

I think that's right. The problem, though, is that doesn't get you to 50.1%. It gets you close, but not over the top. And further, Kerry doesn't even need 50.1% of the American people, he needs 50.1% of the vote in battleground states like Ohio, Pennsylvania, West Virginia, and Florida. Direct attacks are not the way to get 50.1% in these particular states. As hard as it is for many progressives to understand, a lot of people don't hate Bush, especially in these battleground states. To win in these states, the Dems have to be trusted on the issues of faith and national security. Bush-bashing, while not without cathartic value, is simply the wrong way to get swing voters in Ohio. These voters are broadly dissatisfied with the incompetence and recklessness, but they don't have a visceral hatred for the President. Many are also deeply religious and patriotic. If an alternative came along - especially one they felt comfortable with on the issues of religion and patriotism - they would leave Bush. And again, because the Left is so unified, Kerry can afford to indulge in the sort of flag-waving and chest-thumping that many Dems wouldn't tolerate under different circumstances.

I'll have much more to say on the broad themes of this convention and why I think they have been so shrewd later this week - and maybe tonight, depending on how Kerry's speech turns out.

He must be nervous - existential moments are rare things, and if you screw them up, you don't get them back.

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(religious verse connections first made by Amy Sullivan)

For Brutus is an honourable man;
So are they all, all honourable men
Mark Antony's speech - William Shakespeare, Julius Caesar

[W]e've got to choose for president between two strong men who both love their countries.
Bill Clinton, Speech to the Convention

Also I heard the voice of the Lord, saying, Whom shall I send, and who will go for us? Then said I, Here am I; send me.
Book of Isaiah 6:8

John Kerry came from a privileged background. He could have avoided going too, but instead, he said: Send me. When they sent those swiftboats up the river in Vietnam and they told them their job was to draw hostile fire, to wave the American flag and bate the enemy to come out and fight, John Kerry said: Send me. And then, on my watch, when it was time to heal the wounds of war and normalize relations with Vietnam and to demand an accounting of the POWs and MIAs we lost there, John Kerry said: Send me.
Bill Clinton, Speech to the Convention

Another line is to apply to the other speaker what he has said against yourself.
Aristotle, Rhetoric - Book II, 23:6

During the Vietnam War, many young men, including the current president, the vice president and me, could have gone to Vietnam and didn't.
Bill Clinton, Speech to the Convention

And unto one he gave five talents, to another two, and to another one; to every man according to his several ability; and straightway took his journey. . . . And so he that had received five talents came and brought other five talents, saying, Lord, thou deliveredst unto me five talents: behold, I have gained beside them five talents more. His lord said unto him, Well done, thou good and faithful servant.
Book of Matthew, 25:20-21.

But the important thing [about John Edwards] is not what talents he has, but how he has used them. He chose -- he chose to use his talents to improve the lives of people like him who had to work for everything they've got and to help people too often left out and left behind. And that's what he'll do as our vice president.
Bill Clinton, Speech to the Convention

Another line of proof is got by considering some modification of the key-word, and arguing that what can or cannot be said of the one, can or cannot be said of the other: e.g. "just" does not always mean "beneficial."
Aristotle, Rhetoric - Book II, chpt. 23

Strength and wisdom are not opposing values.
Bill Clinton, Speech to Convention

Another line of argument is to refute our opponent's case by noting any contrasts or contradictions of dates, acts, or words that it anywhere displays. . . . [T]he significance of contrasted ideas is easily felt, especially when they are thus put side by side, and also because it has the effect of a logical argument; it is by putting two opposing conclusions side by side that you prove one of them false.
Aristotle, Rhetoric - Book II, chpt. 23; Book III, chpt. 9.

[W]e've got to choose for president between two strong men who both love their countries, but who have very different world views: our nominee, John Kerry, who favors shared responsibility, shared opportunity and more global cooperation; and their president and their party in Congress who favor concentrated wealth and power, leaving people to fend for themselves and more unilateral action.
Bill Clinton, Speech to Convention

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It's done. Thanks again for all the emails, comments, etc. - I really appreciated all the support. There's a lot to say, and I'll be posting later today some thoughts on the convention after I catch up on the news a bit.

The funniest thing I read this morning comes from Andrew Sullivan:

And it remains true that no president who truly took the responsibility of wartime seriously would be approving semi-legal gerry-mandering in Texas, or brutal campaigning in the mid-terms, or a constituional amendment to marginalize an entire minority. But Bush and Rove made that choice; and now they face the consequences.

Yep, Andy took a strong stand against nasty campaign rhetoric before the mid-terms and in the lead-up to the war. His support for the war was always reasoned, and he was always respectful of the opposition. Get the f*** outta here. The amount of credibility that Andrew Sullivan has to criticize Bush for "brutal campaigning" in 2002 is somewhere close to negative infinity. In case you've forgotten, go back and check out Sullivan's vile Left-bashing from September-to-November 2002. There are some truly great quotes.

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Substitute "in" for the "ap" (above), and that's about how I felt after that speech. Seriously though, that's the best speech I've heard in a long, long time. I'm sorry, but he's awesome.

More specifically, he did two very important things with this speech. First, he redefined the terms of the debate - just as Reagan did successfully. For the past four years, the Dems have been fighting a debate defined by Republicans. Clinton threw that out the window and redefined the debate in a way favorable to Dems. Like Rove, he reduced the world into a clear, easy-to-understand choice between two policies. You can choose to spend money to concentrate wealth at the very tip-top. Or, you can choose to spend that money for fire fighters, veterans' benefits, education, the war, and so on. That's the right way to do it - linguistic supremacy can win you an election. He also put a human face on the deficit, which is paid for by the Social Security payroll tax (a regressive tax that hurts wage-earners) and by borrowing from other countries (which gives them leverage over our policies).

Second, he hammered home on national security, terrorism, and values. They simply can't be emphasized enough.

See everyone on Wednesday night (maybe Thursday).

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I think Michael Kinsley has been reading the Onion. Here's the Onion article:

STUDY: MAJORITY OF AMERICANS OUT OF TOUCH WITH MAINSTREAM

According to a study published by the Popular Culture Research Group Monday, the majority of American citizens are out of touch with mainstream American society.

And here's Michael Kinsley's column (which is - as always - awesome):

The opinion that the Democrats need to foreswear McGovernism and prove their commitment to moderation is one of the very safest in all of punditry. It is sure to be taken out for a spin more than once during this week's Democratic convention. . . . It is an odd notion that the Democratic Party is about to flicker out and, like Tinker Bell, can be saved only if all the delegates chant, "We do believe in moderation. We do. We do." . . . You would not know from the Democrats' three decades of defensiveness about themselves and the label liberal that the Democratic candidate got more votes than the Republican one in each of the past three presidential elections. Another way of putting this is that the candidate the world labeled a liberal, whether he admitted it or not, got more votes than the candidate who proudly labeled himself a conservative.

Amen. I heard some caller on CSPAN say that the Democrats are showing their true "too-left" colors by letting Jimmy Carter, Bill Clinton, and Al Gore speak. Huh? All of these people received more votes for president than their Republican opponents. Although I guess I would fall into the Clinton "New Democrat" camp on policy grounds, I am pretty sick and tired of watching national Democrats apologize for being liberal and being part of a party that has (in my opinion) won the last three presidential elections. In fact, the reason the GOP is in power at all is because of the malapportioned Senate - which has enormous effects on the Electoral College.

If you're interested in that topic, check out my prior post on the subject:

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.

. . .

[B]ecause 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).

[Update: Ok - I'm officially sick of the press coverage. Everytime I go downstairs to take a break from studying, CNN and MSNBC are parroting the same story line that Kinsley illustrated above. Can Democrats tone it down? Can they present a moderate face? Are they too liberal? Is the national media actually stupid - or are they just so intellectually lazy that they apply exactly zero critical thought to the Fox News version of reality. I mean, isn't it time we stop conceptualizing the entire friggin' political world as existing in an either/or state where everyone falls into only one of two boxes ("liberal" and "conservative") on every single issue. Life is complex - and individuals' political positions are exceedingly complex. Our linguistic labels should reflect that. And to the extent those labels no longer reflect reality, we need new labels. What really bothers me is that the "two boxes" conception is the perceived baseline, and individuals are always judged relative to that non-existent baseline. Some are "moderate" or to the right of the perceived "liberal" or "conservative" baseline (and that equals "good"). Some are "extreme" or "far-left" or "far-right" (and that equals "bad"). But the one holy firmament in the political sky is the two-boxes conception. I will personally send a crisp new $1 dollar bill to the first TV "journalist" who I hear say, "You know, I'm not sure that terms "liberal" and "conservative" are the most appropriate labels for politics in the 21st century."

Last thing - let's assume the parties are arguing about whether the earth is round. If one side says it's flat, and one side says it's round, what does that say about the "moderate" position? MODERATE DOES NOT EQUAL "CORRECT." And that's true for both sides. If abortion actually is the murder of God's children (hypothetical here), then the moderate position is wrong. If the war in Iraq was pointless and for nothing - and has made us and the world less safe - then the moderate position is wrong. Again, sometimes the moderate position is correct. But can we please - please please - get away from this two-box conception where all deviations from the baseline to the center are ipso facto correct, and all deviations to the left or right are ipso facto wrong. I think it's called groupthink. Help us Obe Wan-Ke-blogosphere, you're our only hope.

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Before I direct you to my prior links (that's the bar exam posting policy this week), I'm going to have to call bullshit on Kos and Atrios - two of my favorite bloggers, and two of my favorite blogs. Here's what they had to say about covering the convention:

Atrios: [G]iven the fact that there will be 15,000 media people there, I find the presence of 35 odd bloggers to be not all that much of a story, at least before the event. . . . I don't really feel like "bloggers going to convention" is a particularly interesting story.

Kos: And really, it's not that big of a deal. It's great that the party has rolled out the red carpet and sponsored blogger events and all, but the fact that a new medium is covering the event is as exciting a development as discovering that next week, radio will also be covering the convention.

Rrrrright. Let me get this straight. These guys are rolling into Boston having raised nearly $800K between them for Democratic candidates in a revolutionary way. They are also the proprietors of two of the most widely-trafficked, most-awesomest blogs on the Internet. Their presence will probably be recorded in history books for all time if blogs and the Internet become as transformative as I think they will (or more precisely, can be). In short, they're going to be complete bad asses in Boston - very hot shit - but it's not a "big deal." Save it guys - live a little. While I admire your modesty, I'm not really buying it. Brag. I would. If I had raised nearly $300K for John Kerry, I'd be all over the place. If Clinton told a joke, I'd be slapping him on the back laughing with drink in hand. If Judy Woodruff interviewed me, she would have to peel me off the camera to get me to leave (again, with drink in hand). In short, enjoy the fruits of your labor guys (with drink in hand).

Anyway, with all the speeches coming up, one thing to keep an eye on is how well the various speakers use rhetoric (in the classical sense). I did a post back in February outlining the forms of classical rhetoric - and illustrating how Edwards was much better than Kerry at it. And Clinton is phenomenal. If you get a second, check it out:

Thursday, February 19, 2004
KERRY, EDWARDS, AND ARISTOTLE - The Importance of Rhetoric
. . .

Rhetoric is simply the art of speaking or writing effectively and persuasively. Long ago, Aristotle identified three different types of rhetoric - ethos, logos, and pathos. Each of the three types of rhetoric is meant to persuade the audience, though each type goes about it in a different way. . . .

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Having though a little more about this subject, and after reading Southern Appeal's Plainsman's excellent comments in the last post, I thought I should try to lay out the issues a little more clearly. The more I think about it, the more I realize that the House may not have quite understood the magnitude of the measure it just passed. I mean, this is potentially huge huge stuff - constitutional nuclear war if carried to its logical extremes. And it could come back to bite them, just like Dr. Frankenstein's monster came back to bite him. Anyway, this stuff is exceedingly complicated, so I'll lay it out as clearly as I can for the non-lawyers among us.

One basic lesson of constitutional law is that the judiciary (all federal judges) can only do what is allowed by Article III. Article I controls Congress, and Article II controls the Executive (and the relative order is not by coincidence). Basically, Article III contains a laundry list of nine separate kinds of cases that federal courts (or Article III courts) can hear. Imagine nine separate categories, or boxes. Every single case must fit within one of these nine boxes, or else a federal court can't hear it. For cases that fit in two of these nine different boxes, the Supreme Court has what is called "original jurisdiction" - which means the case can begin in the Supreme Court. More importantly, Congress cannot (as a constitutional matter) prevent the Supreme Court from hearing these cases. For cases in the remaining seven boxes (which is almost every case including challenges to DOMA by anyone other than a state), the Supreme Court has what is called "appellate jurisdiction" - meaning that they can only hear the case on appeal (from either state courts or lower federal courts). Here's the critical point - the Constitution clearly states that Congress may make "exceptions" to what the Court can hear when it's exercising appellate jurisdiction. Thus, in theory, Congress could completely bar the Supreme Court from hearing any case that fits within the other seven boxes.

OK. Now try to bracket all of that and put it aside. Congress also had the power to create lower federal courts if it wanted, and of course it did. The Constitution also seems to allow Congress to eliminate all lower federal courts tomorrow if it chose to do so (but not the Supreme Court). So, under that theory, the general rule is that lower courts can only hear cases that Congress allows them to (original or appellate). There must a statute that grants the courts jurisdiction, or else they can't hear it.

So here's the problem - and it's a big big problem and the House may not have realized the depths of the constitutional swamp that it just stuck its big fat foot into. The problem is that, in theory, Congress could pass a law (again assuming it's in one of the seven "appellate jurisdiction" boxes) and then prevent ANY FEDERAL COURT from hearing a challenge to it. For example, it could prevent the lower courts from hearing it at all (by abolishing jurisdiction), and it could also prevent the Supreme Court from hearing it under its appellate jurisdiction.

So, the precise question that faces us is whether Congress can legally prevent some cases (within the seven boxes) from being heard at all by ANY FEDERAL COURT. You can see why this is such a big problem. In theory, Congress could pass a law abolishing free speech and no federal court could hear a challenge to that law. Or, Congress could ban guns (are you listening Tom DeLay?) and no one could challenge it in federal court. Taken to its logical extreme, Congress and the President could do pretty much whatever they wanted if they could get a bare majority to pass a law and then limit jurisdiction to challenge it. Then, everything (the Bill of Rights, the manners of election) would essentially become "suggestions." Rights without remedies aren't really rights. Under this view, the only recourse would be the state courts (but I'm not sure how far their power would extend - anyway. . . )

So here's the question I posed earlier - are there constitutional limits on Congress's ability to strip jurisdiction, and more importantly, abolish jurisdiction in the lower federal courts? The purely textual reading (in the spirit of the non-pragmatic Bork) would say no. [For the really hard-core Federal Courts people, Akhil Amar has offered a textual reading that makes a big deal of "all" in the first three boxes - but I just don't quite buy it].

In my opinion, if there is any limit on Congress's power to do this, it must be implied from the structure of the overall Constitution. Again, my position could be considered pragmatic, or it could be a implication from the structure of the text - take your pick. The point is that I think courts should read the Constitution to prevent Congress from banning jurisdiction for laws that violate the Constitution. In other words, Congress could limit jurisdiction for challenges to an interpretation of a copyright statute or something that doesn't implicate the Constitution. But Congress simply cannot close the federal courts to constitutional challenges (unless it wanted to abolish the entire lower court judiciary). Think about it - what's the point of the Bill or Rights or anything else, if Congress could simply override it with a majority vote that (1) passes a blatantly unconstitutional law; and then (2) strips jurisdiction to challenge that law? Again, Congress's power to usurp is equal opportunity - it could be used to ban abortion, or to ban guns. In theory, it could be used to abolish elections. Throw enumerated powers out the window too if there's no way to enforce the Constitutional text. In short, it seems that allowing Congress plenary power to do this undermines the entire constitutional structure that has served us well since 1865 (not 1789 - that Constitution failed).

Am I being melodramatic? Perhaps. I'd like to think Congress would never get a majority to ban elections. But abuse is not that far-fetched. Just look at 9/11. What if, 4 days after 9/11, someone proposed a law allowing the President to declare (in his discretion) any American citizen an "enemy combatant" and then stripped jurisdiction for courts to hear challenges to that law. Given how carefully the Patriot Act was parsed, I'd say there would be a pretty good chance that the bill would have passed. Law is most needed for emergencies and in times of high emotion - giving Congress this power would allow them to exploit any emergency.

I guess in the end it comes down to a question of institutional trust - how much do you trust Congress? Can you trust them to be the final arbiters of their own power, or would you rather leave that to the courts? Before you decide, remember who's in charge:

_________

Ok - this is the last one (again - too much coffee - can't sleep). Real quick, I wanted to weigh in on whether Congress could legally strip the federal courts of jurisdiction to hear challenges to the Defense of Marriage Act. This is actually a very interesting - and underdeveloped - area of constitutional law. It's underdeveloped largely because it has been the last refuge of nutcases throughout history. The bill passed by the House can be accessed here.

The source of Congress's power to do this comes from Article III's "Exceptions" clause - Kevin Drum posts the constitutional text here. The question is whether the Constitution puts any limits on this power granted to Congress. There are essentially two possible limits - one internal to Article III, and one external to Article III. The argument relating to the internal limit (i.e., something within the text of Article III that limits Congress's power - such as "shall extend to all cases") is a convoluted nightmare and so I'm skipping it. Akhil Amar has written on this if anyone is interested.

The more interesting question is whether there are external limits. In other words, I suspect that Congress couldn't limit a court's jurisdiction to hear challenges to a statute that said, "Free speech is hereby abolished." The First Amendment (which is external to Article III) probably imposes some limit on Congress's jurisdiction-stripping powers under Article III. It's no different than the limits placed on Congress's other powers under Article I. The specific trumps the general. If this is true, then I don't think the courts would recognize the House's bill (assuming it were law) if they actually did decide that DOMA violated gay couples' privacy rights under the Due Process Clause. To decide if the jurisdiction-stripping was proper, it seems like they would necessarily have to decide the merits of the question.

Another interesting possibility is that DOMA may be unconstitutional because Congress didn't have any authority to pass it in the first place (i.e., no enumerated power such as the Commerce Clause). Again, it's an interesting question - can Congress strip courts of jurisdiction to hear challenges to statutes that it didn't have the authority to pass in the first place? I would think not. If I'm remembering McCardle correctly (the post-Civil War case that involved jurisdiction-stripping), it was distinguishable (not to mention that it was in the aftermath of the war).

Also, if there's one thing that courts don't like, it's being told they don't have power to do something. And if that's true generally, it's 100,000 times more true for the Platonic Guardians we sometimes call the Rehnquist Court.

[Update: Here's a thought experiment - what if Congress passed a law (and the President signed it) saying "Elections in America are hereby abolished. No court created by Act of Congress shall have any jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or decide any question pertaining to the interpretation of, or the validity under the Constitution of this law." Maybe I'm missing something, but I don't think the Supreme Court's original jurisdiction would kick in. My point is that it seems one could raise some very strong structural arguments about the ability to Congress to cut off challenges in ALL FEDERAL COURTS to unconstitutional laws. Though I suppose state courts could still find this unconstitutional - but that raises a different set of concerns.

Anyway, this may not be a good hypothetical for reasons I don't know. If anyone does know more about this, please let me know or comment below.]

_________

I'm in the homestretch, so this will probably be my last post until Wednesday night, or Thursday night, depending on the extent of my post-test celebration. Thanks to everyone for the comments and emails wishing me luck. I really appreciate it.

However, because there are so many new readers (thanks to Kevin) who have just tuned in this week, I thought it might be appropriate to provide a couple of links each day to some of my past posts that are either relevant to the day's news, or that I think you might enjoy. So, in the days ahead, I'll just provide links to two or three previously-written posts with some brief commentary. I do hope everyone will stick around until regular posting can resume next week.

Here's the first installment:

# 1 - 7/6 - THE EMERGING PROGRESSIVE FOREIGN POLICY - The Biden Interview

[Ed. note - To avoid confusion - the following commentary is from tonight, and not from the original post.] I haven't read much of the 9/11 Commission articles, but Drudge has a link up tonight to this WP article. It questions whether labeling our counter-terrorism efforts as a "war on terrorism" is accurate and/or helpful. The article states, "The Sept. 11 commission report offers a broad critique of a central tenet of the Bush administration's foreign policy -- that the attacks have required a 'war on terrorism.' The report argues that the notion of fighting an enemy called "terrorism" is too diffuse and vague to be effective." My post above, relying on Josh Marshall's interview with Biden, makes a similar argument - though from a somewhat different angle. My biggest gripe is with the administration's assumption that nation-states are the central actors in the fight against terrorism. Here's an excerpt:

That’s a very important insight. It’s wonderfully ironic that idiots like Andrew Sullivan demagogue people who characterize anti-terrorism as a law enforcement operation, when that’s exactly what it is. When Sullivan spews bile towards the “law enforcement” people, he’s making the same erroneous assumptions about the centrality of states. For instance, if you see the conflict with terrorism as a problem rooted in bad nation-states, then you must see the conflict as a war – and nations must therefore be invaded. But if you see it as a transnational conspiracy with private funding (much like organized crime), then invasions are actually counterproductive, especially if they enrage and radicalize private sources of wealth and individuals who become willing to use that wealth for terrorism. To classify the conflict with terror (linguistically speaking) as a “war” is simply wrong – and it confuses Americans and makes them less likely to understand the conflict.

You can read the whole thing here.
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# 2 - 2/25 - THE LIMITS OF STATES' RIGHTS RHETORIC

Steve Chapman wrote an article in Slate yesterday about states' rights and why conservatives seem to have abandoned the principles of federalism. It's a good article and all, but it misses something - "states' rights" is a barren, meaningless concept. I explained why back in February:

And I think so largely because “states’ rights” is a meaningless concept. There is nothing inherently conservative about supporting states’ rights. There is nothing inherently liberal about it either. And the reason is because “states’ rights” has no conceptual meaning. It is always and necessarily a pretext for some underlying argument. So, every single argument that you will ever hear involving federalism is actually an argument about something else. As a matter of logic, states’ rights adds nothing to the argument - it’s merely window dressing.

You can read the whole thing here.

__________

Today's WP:

The U.S. military has spent most of the $65 billion that Congress approved for fighting the wars in Iraq and Afghanistan and is scrambling to find $12.3 billion more from within the Defense Department to finance the wars through the end of the fiscal year, federal investigators said yesterday.  . . .  Already, the GAO said, the services have deferred the repair of equipment used in Iraq, grounded some Air Force and Navy pilots, canceled training exercises, and delayed facility-restoration projects. The Air Force is straining to cover the cost of body armor for airmen in combat areas, night-vision gear and surveillance equipment, according to the report.  The Army, which is overspending its budget by $10.2 billion for operations and maintenance, is asking the Marines and the Air Force to help cover the escalating costs of its logistics contract with Halliburton Co.

From yesterday's Wall Street Journal (via Billmon - who notes that this is not exactly a communist rag):

Upper-income families, who pay the most in taxes . . . reaped the largest gains from the tax cuts President Bush championed . . .  "To date, the [recovery's] primary beneficiaries have been upper-income households," concludes Dean Maki, a J.P. Morgan Chase (and former Federal Reserve) economist who has studied the ways that changes in wealth affect spending. In research he sent to clients this month, Mr. Maki said, "Two of the main factors supporting spending over the past year, tax cuts and increases in [stock] wealth, have sharply benefited upper income households relative to others."

[Update: I think these verses capture the feelings I had when I read this story:

You fasten the triggers
For the others to fire
Then you set back and watch
When the death count gets higher
You hide in your mansion
As young people's blood
Flows out of their bodies
And is buried in the mud

Bob Dylan, Masters of War]

[Update 2: As a thank you to all my readers, and because I was getting really annoyed with 1000 word limit on the comments, I just upgraded the Haloscan account. Thus, in a few hours, the comments length will go up to 3000 words - I hope. Thanks all.]

_________

It's late and I've had enough coffee to kill a horse, so indulge me.  For all you bar exam takers, here's a practice question on the tort of defamation.

QUESTION:

President George W. Bush said a few weeks ago that Saddam Hussein had a "relationship" with al Qaeda.  He explained, "The reason I keep insisting that there was a relationship between Iraq and Saddam and al Qaeda [is] because there was a relationship between Iraq and al Qaeda."  The 9-11 Commission subsequently concluded that Saddam and al Qaeda had no "operational relationship."  Can Saddam sue President Bush for defamation?  Assume your state applies the common law version of defamation and all jurisdictional requirements have been met.

ANSWER:

Because this statement involves a matter of public concern, the First Amendment is implicated.  Thus, to win, Saddam would have to establish:  (1) a defamatory statement made about him; (2) publication or dissemination of that statement; and (3) injury to his reputation.  In addition, because this is a public concern, Saddam would also have to show that (4) the statement was false; and (5) it was made with "malice."

Clearly, the first three requirements have been met.  Bush stated that Saddam had a relationship with a murdering terrorist organization.  This statement was widely published and injured Saddam's reputation.  Indeed, he was even invaded for it!

The last two requirements are more tricky.  Whether Bush's statement was "false" depends on how one defines "relationship."  If Bush meant "relationship" in the sense of "having relations with," then his statement is clearly false.  Richard Clarke, al Qaeda/Iraqi prisoners, and the 9-11 Commission have all stated that no relationship existed.  However, if Bush meant "relationship" in the sense of "having no relations at all," then Saddam's case would fail as Bush's statement would fall under the "2 + 2 = 5 exception."  But I conclude the statement was false, so I'll proceed to the next and final step.

Saddam must also show that Bush spoke with "malice" - meaning that Bush's statement was either knowingly false or was made with reckless disregard as to its truth of falsity.  Clearly, Bush was at least reckless.  His so-called "best evidence" was Zarqawi - a man who may not even be a member of al Qaeda, but at the very least was operating in a region outside of Saddam's control.  Surely the President of the United States understands the complexities of the Arab world well enough to make these basic distinctions. 

I therefore conclude that Saddam would recover on his action for defamation.

_________

Everyone should read Unlearned Hand's response to the grotesque videos released this week showing the cruel treatment of chickens in a plant in West Virginia (that supplies KFC).  I saw the video on the news last night and it made me cringe.  The hidden video showed workers slamming live chickens into walls, stomping on them, kicking them across the room - it was horrible.

On an aside, it does show just how powerful the visual medium can be.  I mean, I suppose PETA has all sorts of written reports documenting cruelty, but it takes seeing the real thing for it to hit home.  Sort of like Abu Ghraib, or Fahrenheit 9/11's depictions of the bombings and woundings in Iraq.  Americans are visual people, I suppose.

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There’s been a good deal of feuding in the progressive blogosphere lately about “values” and religion. Matt Yglesias and Ayelish McGarvey are currently debating whether Kerry should be more religious. Poor Amy Sullivan was (unfairly) blasted for suggesting that Kerry (and Democrats more generally) should become more comfortable with religion. This is a fascinating question, and I wish I weren’t studying secured interests in mortgages right now and had time to do it justice. But because I don’t have much time, and because “values” will apparently be a big theme next week, I thought I’d just rattle off a couple of thoughts on the subject.

First, with respect to the Yglesias/McGarvey debate, I think they’re both missing something. I think Yglesias is right in that there probably aren’t large groups of voters who will be moved to support Kerry if he starts invoking scripture. But that’s not exactly the point of doing it. From what I can gather, Kerry has completely adopted the strategy laid out in Greenberg’s The Two Americas. Greenberg’s theory is that majorities prefer Democratic policies on a wide range of subjects from economics to the environment. The problem, however, is that voters will not even consider the Democratic candidate’s policies unless they are comfortable with the candidate’s views on national security and “values.” In other words, these are threshold issues. Voters won’t necessarily vote for Kerry because they prefer his religious positions, but if they are sufficiently comfortable that he’s not a raving librul atheist, then they will be open to hearing him out on other issues. And in case you haven’t noticed, Kerry spent much of the summer solidifying his national security credentials, and has now moved on to “values” - which is consistent with the Greenberg playbook.  Again, the goal isn’t to win. The goal is to get your foot in the door. It’s sort of like jurisdiction. A court will only hear your case if certain threshold jurisdictional requirements are met.

Point # 2. Getting away from pure pragmatics, I think advocating “values” is important for another reason. I’ve explained before that the Left’s problem is largely one of narrative. We have good policies, but I believe that we are fighting for those policies within a post-Reagan linguistic world. In other words, Reagan set the terms of the debate under which we are now operating (I explained it all here). If we are serious about building a new progressive majority coalition, we need new words, new linguistic frames, and new narratives. “Values” is a perfect example of how we might go about doing this. More specifically, we must seize the word, redefine it, and use it as a offensive weapon. Let me give you an example of what I mean.  This is from a post in May where I urged the Left to abandon “deconstruction” and start constructing:

In [Madhavi Sunder’s] excellent 2003 Yale Law Journal article entitled “Piercing the Veil,” she challenges Islamic women to battle for rights within the framework of Islam. In other words, she doesn’t argue that women should abandon Islam in Middle Eastern countries. Instead, women should fight to show that the current version of Islam, as interpreted by the ruling men, is not the only possible interpretation of the Koran. Islam, properly understood, does not support discrimination. She is constructing, not deconstructing. Islam, as practiced, is the obstacle, so she’s offering a new, more compelling Islam to take its place. The benefit is that women can use the religious narrative to their advantage, rather than being seen as subversive.

Amen – that’s a roadmap for victory. “ Values” has been used as a means to oppose progressive policies. The Left has responded by demonizing religion or rejecting the rhetoric of values altogether. A better approach is to construct, rather than to deconstruct, a new concept of values. If “values” is the obstacle, redefine it. Offer a new version – Values 2.0, if you will.  Tell the world what your values are, rather than arguing within the definition of "values" created by Reagan (or perhaps Goldwater and Wallace). 

For example, say things like this:   The new values rewards work – it doesn’t repeal the Paris Hilton tax (i.e., the “death” tax). The new values is about freeing people from the excesses of the amoral Darwinian free market. The new values is about helping working people afford health care – and freeing them from the fear of injury or disease. The new values is about funding education when you promise to do so. The new values applies a presumption of peace that can only be overcome by strict necessity. The new values recognizes that fighting terrorism and genocide (even with force) is necessary for the greater good of humanity. The new values is about funding global efforts to prevent AIDS, poverty, and hunger. The new values recognizes that global trade lifts more people from poverty than anything else has in world history. The new values doesn’t gay-bash. The new values protects the environment – call it “God’s creation” if you prefer. The new values is concerned with American poverty, and actually mentions it from time to time. The new values recognizes a new American patriotism and a new national service program.

And whatever else you can think of.

The thing about all the policies listed above is that they can be supported by atheists and religious people. Everyone of these policies is completely consistent with principles of Christianity - and secular humanism. And that should be the goal – to create a platform that will give rise to a secular-religious coalition that can work together to achieve certain goals, regardless of the motives for doing so. Again – construct, stop deconstructing. Transcend the post-Reagan linguistic world. 

[Note:  Because I went to school with some of his immediate family members, I will not be discussing anything about Sandy Berger - assuming it doesn't dramatically escalate.]

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President Bush today:

Nobody wants to be the war president. I want to be the peace president.  . . .  For a while we were marching to war. Now we're marching to peace.  . . . America is a safer place. Four more years and America will be safe and the world will be more peaceful.

Henry Kissinger, October 26, 1972:

We believe that peace is at hand. We believe that an agreement is within sight, based on the May 8 proposals of the President and some adaptations of our January 25 proposal, which is just to all parties.  . . .  We believe, incidentally, what remains to be done can be settled in one more negotiating session with the North Vietnamese negotiators, lasting, I would think, no more than three or four days, so we are not talking of a delay of a very long period of time.

[Update: I thought I would add this too:

"You are a slow learner, Winston," said O'Brien gently.

"How can I help it?" he blubbered. "How can I help seeing what is in front of my eyes? Two and two are four."

"Sometimes, Winston. Sometimes they are five. Sometimes they are three. Sometimes they are all of them at once. You must try harder. It is not easy to become sane."

George Orwell, 1984]

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For good or bad, the world will remember George W. Bush.  He is one of those rare figures who has changed the course of world history through his will - a Hegelian hero of sorts.   In Hegelian lingo, Bush is a "world-historical" individual.  It's kind of amazing when you step back and think about it.  A man whose only real accomplishment was that he was born well has exerted his will upon the world and has forever changed History, especially in the Middle East.  
 
Back in January, in one of my earliest posts, I compared Bush to another world-historical figure - Napoleon Bonaparte.  Back then, things seemed more hopeful.  It wasn't clear then that Afghanistan and Iraq were unraveling.  Constitutions were being written.  The Shiites were clamoring for democracy.  As much as I opposed the war in Iraq, I briefly entertained the now-naive hope that perhaps the Middle East would become more democratic.  Boy, I wish I could take that post back.  But let me explain my thinking.
 
Napoleon was arguably the most influential individual of the 19th Century.  Yes, he was a dictator, but he was incredibly important in spreading Western liberalism and rationalism.  Liberal reform followed his armies, and he laid the foundations for the liberal legal system that exists in Europe today.  As a result of his conquests, nations modernized and embraced more rational forms of government, more in the mold of the new modernist American and French governments.
 
For a brief moment, I wondered if Bush was capable of doing the same.  For a while, it looked like the American military would sweep through the pre-modern Middle East and bring Western ideas along with it.  Democracies would replace dictatorships.  Liberalism would replace theocracies, and so on. 
 
Dear Lord, was I wrong.  Please understand - I never really imagined this would happen.  But I do try to be optimistic, and I was really hoping my pessimism was misplaced.  It wasn't.  The gross incompetence of the past two years will be rippling throughout the Middle East for generations to come.  But that brings me to my point - if Bush can't be Napoleon, perhaps he will be remembered as the anti-Napoleon.  Or the Bizarro Napoleon.  Unlike Napoleon, whose armies left liberal reform behind, Bush's efforts have actually undermined democratic reform in the region.  He may well be creating a more staunchly anti-liberal (in the classical sense of "liberal") Middle East. 
 
Just take a look around.  First, the hard-liners in Iran are more firmly in charge than they have been in quite some time.  And as I noted last month, Iran (you know, the country with nuclear ambitions and al-Qaeda ties) has been the big winner in the region.  Afghanistan is lawless, and is run mostly by warlords.  Who knows what will happen in Iraq?  Right now, it's very possible that we might end up with a Shiite theocracy, a re-Baathified Allawi dictatorship, or de facto partition with the "Kurdish Question" undermining stability in the region.  Pakistan is a bullet away from chaos - with a few nuclear weapons thrown in.  Foreign militants in Iraq are returning to Saudi Arabia, where they will certainly try to take down the House of Saud (that's one of those contests where you wish both sides could lose - sort of like a Duke-North Carolina basketball game).  Matt Yglesias had an excellent article a while back on how the Bush administration has done very little for democracy-promotion even outside the Middle East:  

In fact, Bush has pursued a set of policies that have left the world substantially less free than it was before he took office. Some progress has been made in Iraq and Afghanistan. But much larger countries like Russia, China, and Indonesia have moved backward, while the overall impact of the wars in Iraq and against al-Qaeda has been a wide-ranging set of clampdowns across the Middle East and in the former Soviet Socialist Republics of Central Asia to which the administration has largely turned a blind eye -- except when it actively abetted them.

And here's Juan Cole:  

So, no, Americans are not safer, Mr. Bush. They face the threat of substantial narco-terrorism from Afghanistan. Iraq is a security nightmare that could well blow back on the American homeland. Pakistan remains a military dictatorship with a host of militant jihadi movements that had been fomented by the hardline Pakistani military intelligence. Saudi Arabia is witnessing increased al-Qaeda activity and attacks on Westerners. And the Israeli-Palestine dispute is being left to fester and poison the world.

Let's hope that Matt, Juan, and I are all wrong.  But I fear we're not.  You know, I've never quite understood the argument that "something had to be done to shake up the status quo in the Middle East."  Did it?  I mean, the status quo was clearly terrible, but I'm not sure that shaking it up is a good idea unless shaking it up would make it better.  That argument assumes that things can't get worse.  I fear they can.  Just ask Bizarro Napoleon:

 

__________
 
As I mentioned yesterday, something strange is brewin’ in the Republican primary in Georgia for Zell Miller’s U.S. Senate seat – Herman Cain, a black ultra-conservative Georgia Republican is gaining ground on Johnny Isakson, the favorite. Feddie at Southern Appeal is your man for all things Cain (though I suspect many of you won’t agree with his politics). You can also read this WP article for some background. This race fascinates me for several reasons. Specifically, though, I want to focus on two dimensions of the Cain candidacy – (1) the obvious race-related issues; and (2) the substance of some of his positions. With respect to the latter, Cain’s positions clearly illustrate the contradiction that is all-too-common within the current Republican coalition of Wall Street libertarians and working-class social conservatives. But first things first.

With respect to race, I think the most obvious (and most knee-jerk) response would be to condemn Cain for joining the Republican Party. After all, the post-Goldwater Republican Party has a long history of demagoguing race to win elections in the South. From Goldwater to Nixon to Reagan to Bush I to Gingrich, the party’s leaders have all used race to help cement the coalition of business and white working-class voters. [I would throw in George Wallace too, who in many ways was more influential than Goldwater to the post-1964 Republican Party.] In the absence of race, one would expect that poor and working-class whites would join poor and working-class African-Americans – both of whom share the same economic self-interest. But race has long been used to keep this coalition from forming (just as homosexuality is being used today). And though the South is certainly getting better on this front, race has never really gone away. Just like the old Civil War veteran Henry Sutpen in Faulkner’s Absolom! Absolom! hidden away in the attic, race may be out of sight, but it continues to haunt the region. As I explained here, the Confederate flag played a prominent role in the most recent governor’s races in South Carolina, Mississippi, and Georgia.

But that said, I think it’s wrong (and condescending) to condemn Cain for joining the Republican Party only because he’s black. In fact, in what must qualify as Irony-of-the-Century, Cain’s candidacy could be seen as a shining example of the success of the civil rights movement. The fact that Cain was allowed to become a millionaire and to, oh say, vote is the culmination of a century-long effort for civil rights by brave individuals and direct intervention by the federal government (most notably the Civil Rights Act and Voting Rights Act of 1964 and 1965). But let me back up and provide a little more background.

The struggle for civil rights is changing. Perhaps in no other area is the vocabulary we use less helpful in describing the phenomena around us. We need new words. For example, as I explained here, I think that the word "racism" is becoming counter-productive. For one, once it starts flying around, debate screeches to a halt and emotions flare. For another, I think that the problems confronting the African-American community are no longer best described as "racist." There’s plenty of racism – don’t get me wrong – but there aren’t people seriously advocating for segregation or a denial of voting rights anymore. And that wasn’t true at all forty years ago. The problems the black community face today are what I have called "post-racism." In other words, the racism of the past created a de facto segregated world (education, communities, social groups, etc.) that has made us (in 2004) unaware of the perspectives and experiences of other races. The problem is that white politicians who have lived their lives without any contact with the black community cannot empathize with the needs of that community. For example, they have no idea what cuts to public education will mean to schools in poor black neighborhoods. They have no grasp of the harshness of our drug laws and prison system. They feel no sense of urgency in passing urban revitalization projects. Thus, when they act (or fail to act) in a way that hurts the black community, they’re not acting with racist motives so much as they are ignorant of the effects because they have lived their entire lives in a segregated world.

I’ve said all this before. What’s interesting about Cain, though, is that something similar to "post-racism" (I’m welcome to other words for this phenomenon) may be creeping into the consciousness of upper-class blacks. For example, Atlanta is in many ways experiencing a black Renaissance. The black population has grown significantly over the past decade and Atlanta hosts a thriving upper-class, professional black community. It thus makes complete sense why a candidate like Cain would emerge from Georgia (which is the most well-to-do of all Southern states – at least based on median household income).

So here’s my point. If the modern civil-rights movement is largely directed toward economics or addressing problems rooted in poverty, it makes sense that as well-to-do blacks become further and further removed from poverty, they will feel less of an urgency to do anything about it. In other words, they may become less self-consciously "black," and more self-consciously "upper-class." Take Cain, for example. He is now a millionaire. As such, he probably lives in a fancy neighborhood free from crime. He no longer needs any sort of government benefit. His children are economically free to abandon the public school system. He no longer needs affirmative action because his children will have all the benefits that money can and does buy. And so on. Thus, it’s rational for him to vote Republican – at least economically. The burden of taxes are now more real to him than crime, drugs, poverty, and other factors that afflict many black communities. So, as far as race goes, Cain’s candidacy has some good in that it shows economic progress. But still, I would have a hard time supporting the Georgia Republican Party if I were black. Anyway, on to the substance of his platform . . .

Cain’s challenge will be to get the votes of rural (non-Atlanta) white voters who are, to put it mildly, disinclined to vote for an African-American. To attract these voters, Cain has been running to Isakson’s right on social issues, especially on abortion. Isakson has been blasted for opposing abortion – yes, I’m not making this up – in cases of rape and incest. Cain would prefer that women who are raped be forced to have a child. If that doesn’t tell you where the center of gravity is within the Georgia Republican Party, nothing will.

But even beyond abortion, the other issue that absolutely stuns me is Cain’s position that the income tax should be abolished and replaced with a sales tax. This is insane. What’s even more insane is that working-class Georgians would probably support it. This is the contradiction that I referenced earlier – working-class Republicans continue to support policies that are obviously counter to their economic self-interest. Part of the problem is that basic economics is not taught in schools. If it were, people would know that the sales tax is a regressive tax – meaning that it becomes more expensive the less money you make. The income tax, by contrast, is progressive – meaning that it becomes more expensive the more money you make. For example, a sales tax on a Big Mac is the same whether you make $10,000/year or $10 million/year. Thus, the less money you make, the larger that tax becomes (in terms of percentage of income). The fact that working-class people aren’t pelting politicians with eggs for even proposing this is beyond me. 

Cain's advocacy for a national sales tax provides support for what Thomas Frank has said – the working classes are getting duped. As I explained here, even if these people assign more value to cultural issues, they should still oppose economic measures like these that shift the tax burden from those most able to bear it to those who are least able to bear it. Just as John Edwards said, a sales tax shifts the tax burden from "wealth to work."

This post is getting too long, but I’ll leave you with some fascinating statistics that provide some support for Frank’s thesis. Below are the state rankings by median household income from the Census Bureau for the 10 poorest states. "Median" simply means that 50% of households make more than this, and 50% make less. Using the average income (which Bush used to measure his tax cut) is highly misleading. For example, Paris Hilton and I have an average inheritance of $250 million. Anyway, the Census Bureau ranked the states by median household income. I’ve added how those states voted in the 2000 election. The number #50 means it’s the poorest state, #49 the second-poorest, and so on. [If anyone knows why median household income is an objectionable metric, please let me know.]

West Virginia – $30,000 – #50 – Bush
Mississippi – $31,000 – #49 – Bush
Arkansas – $32,000 – #48 – Bush
Louisiana – $33,000 – # 47 – Bush
Montana – $33,000 – #46 – Bush
Oklahoma – $33,000 – #45 – Bush
Kentucky – $34,000 – #44 – Bush
New Mexico – $34,000 – #43 – Gore
Alabama – $34,000 – #42 – Bush
North Dakota – $35,000 – #41 – Bush
South Dakota – $36,000 – $40 – Bush

Notice too how over-represented the South is (Tennessee is #39).
 
[Update:  Matt Yglesias has a post that challenges the notion that the Dems have a working-class problem (or as bad a problem as everyone thinks).  Instead, he says the Dems have a white-person problem, and especially a white-male problem:
 

If you look at the 2000 exit polls or any general election poll today you'll see that people with low incomes support the Democrats more than do people with middling incomes who, in turn, are more supportive than people with high incomes. . . . Another large class of poor people consists of single working white women who, again, support the Democrats.

He's correct about the white-person problem, but I'm not sure I buy the rest of his argument altogether (partly because of the state rankings above).  I mean, there are still a lot more whites than any other group, so one could argue that a white-person problem is ipso facto a working-class problem.  To me, the relevant question is not so much whether low-income Americans support the Dems, but whether too many of them support the GOP (assuming voting for GOP economics is irrational for them).   It's true that the working classes include a lot of non-whites, but there are far more low-income whites voting for the GOP than economic rationality would dictate.  Also, I'm not sure which numbers he's using, but at least a couple of the sources I've seen slightly contradict his numbers with respect to women and low-income whites more generally. 
 
First, there's Greenberg's The Two Americas, which gathered detailed information from November '01 through May '03.  Here's how he broke it down (some of the groups overlap):

• White working women (including nonmarried/non-college) with family incomes under $30K -- 50(D); 42(R)
• White married women without a college degree -- 53(R); 40(D)
• White women over 50 without a college degree - 47(D); 45(R).

 
Also, there's last summer's "Stop Dean" poll from the DLC.  Here's how it broke down party preferences among whites (through congressional horserace numbers):
 
Less than $20K -- 44(D); 35(R)
$20K-$35K -- 38(D); 44(R)
$35-$50K -- 34(D); 40(R)
$50K-$75K -- 27(D); 43(R)
[and just for fun. . . ]
Over $150K -- 9(D); 75(R)

I'll remain agnostic on Matt's question of whether this means the Democratic Party should move left on economics.  But I definitely believe that the GOP is duping low-income Americans.]

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I was too exhausted from studying to post anything tonight, but I plan on posting something on Herman Cain tomorrow.  Cain is competing in the Georgia Republican primary - the winner of which will likely replace Zell Miller.  Oh yeah - he's black.  As this WP article explains, he's a millionaire and he's running to the right of the current favorite Johnny Isakson.  Feddie of Southern Appeal loves him (though I'm curious - what is Cain's position on the Confederate flag?  I Googled and searched Lexis briefly, but couldn't find anything).
 
Anyway, I've got lots to say about his candidacy - both about his positions and the racial dimensions of his candidacy (and how relevant they should be in 2004, etc.).  It's especially interesting given that the Confederate flag issue played a significant role in the defeat of ex-Governor Roy Barnes (D) in 2002.  But like I said - I don't have the energy tonight.  More tomorrow.
 
Also - a belated thanks to Kevin Drum for the very kind words over at Washington Monthly.  Kevin often goes out of his way to direct attention to lesser-known blogs - and it's much appreciated by us little guys.

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(Via Andrew Sullivan) Jonathan Chait proves once again why he may be my favorite journalist.  You really should read everything the man writes.  Anyway, his latest TNR article lays out a rather damning case against Bush - and one that is largely independent of one's political views (i.e., conservative vs. progressive).  The most fundamental problem with the Bush administration (and the GOP leadership - especially in the House) is the process by which they govern.  I made this point in a post in April arguing that the Iraq War was also a failure of process - or, a failure to set up an adversarial information-producing system that would lead to informed decisions (to illustrate this point, I described several "information-producing" provisions of the Constitution that help judges come to sound decisions).  Anyway, Chait does a much better job explaining this most fundamental of problems:
 

Bush and his allies have been described as partisan or bare-knuckled, but the problem is more fundamental than that. They have routinely violated norms of political conduct, smothered information necessary for informed public debate, and illegitimately exploited government power to perpetuate their rule. These habits are not just mean and nasty. They're undemocratic.  . . .  [Thus, this is] the most frightening lesson of the Bush administration: The institutional restraints on an anti-democratic presidency are weaker than we believed.

A-friggin'-men.  I would have added the assault on science and stem cell research too, but Chait lands plenty of punches.  Anyway, the question I want to pose is why Congress is refusing to do anything about it.  Why are they all silent?  I refuse to believe that the entire GOP congressional delegation is as undemocratic as the Bush team.  In fact, I bet many House Republicans would silently cheer if Tom DeLay finds his way into a Texas prison.  But still, they remain silent. 
 
I think the problem is far more fundamental than a mere unwillingness to stop being a "team player."  The problem is structural - the problem is that national centralized political parties are undermining the structural protections of our Constitution.  More precisely, parties are undermining the structural independence of individual Congresspersons - and few things are more important than that structural independence.  But let's back up.
 
I wrote about this back in January, but it's appropriate to revisit it today.  First, you need to understand some of the fundamental principles of the Constitution.  The true genius of the Constitution was its structural protections - i.e., separation of powers, checks and balances, etc.  For example, House members were intended to be beholden to the interests of their district's constituents and to no one else.  The President - or anyone else - could not bully a House member because it was the House member's constituents who controlled his or her fate.  The same is true of the Senate. Senators were intended to be responsive to the needs of the voters in their state and to no one else.  Or more precisely, the Senators were free to ignore others outside the state because those people had no influence over their re-election.   In short, the Constitution intended to create a lot of structural freedom for individual members of Congress.
 
Political parties undermine these freedoms in an important way.  For example, if the President and a Senator belong to the same party, then the inherent (and intended) tension between them is reduced.  Conversely, if they belong to different parties, there is more tension than there otherwise should be.
 
But it gets worse.  In the age of national centralized parties, the problem is even more troubling.  Given the costs of modern campaigns, individual House members are completely dependent upon campaign cash from the national leadership.  They also depend on high-level campaign visits from people like Bush.  Finally, the national leadership also determines committee placement (and that's an important "stick").  In short, in the modern House, Congresspersons must also be responsive to their party's leadership - even if it forces them to do something (like tolerate the Medicare Rx "vote") they wouldn't otherwise do. 
 
That's why the Republican Congress remains silent in the face of these abuses.  They're literally dependent on the national leadership.  If they denounce Tom DeLay, it will cost them cash, campaign help, and valuable committee placements.
 
That's also why the Republicans most willing to break with the Bush administration are veteran Senators like McCain, Hagel, Warner, and Lugar.  These individuals are structurally free.  They are popular within their state, and don't rely as heavily on the RNC for cash.  They are also more senior, so Frist-the-Hack can't really threaten them by removing them from committees.  In general, the Senate is far more free - again, in a structural sense - than the House.   And it shows.  More on this later.

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I really enjoyed the threads yesterday, and since I haven't had time to read the papers, I thought I would respond to some of the comments yesterday about the propriety of "outing" gay staffers of pro-FMA legislators or Republican legislators who have cheated on their spouses.  Again, I reject it all entirely, but there were some interesting points raised in the comments thread yesterday that should be addressed.
 
As regular readers know, I often draw a distinction between good ideas in the abstract versus the ability of humans to implement those good ideas.  The death penalty is a classic example.  I have no problem with executing murderers in an abstract sense.  But, I am skeptical that humans can ever devise a system that can (1 ) know for sure if they're guilty; and (2) be administered fairly without considering irrelevant factors such as race and income.  And so I oppose the death penalty for essentially administrative reasons. 
 
I think this logic can also be applied to "outing" gay staffers and unfaithful spouses.  On the one hand, surely everyone can agree that "outing" would be justified in some cases.  If outing Jewish staffers of Goebbels would have helped, then that would probably be justified (assuming it didn't land them in a concentration camp - I'm thinking early 1930s).   On the other hand, I think we can all agree that if a legislator cut you off in traffic, it would be inappropriate to retaliate by publishing their sexual infidelities.   The problem is one of line-drawing, and it's a big one.
 
To be blunt, I don't think people can draw the line.  Sexual privacy should be strongly respected and only violated in compelling circumstances - so we should err on the side of privacy.  The problem, of course, is determining what circumstances are "compelling."  My fear is that once this tactic is unleashed, it will be difficult to control it.
 
For example, outing Jewish staffers of Goebbels in 1933 would be acceptable.  Outing gay staffers of Reagan in the AIDS crisis would be a little less so.  Outing gay staffers of pro-FMA legislators would be a little less so.  Outing unfaithful legislators for enacting strict divorce laws would be a little less so.  And on it goes.   I suspect we would get to the point where any legislator who wants to act in the interests of public morality (as he or she sees it) would get assailed with attacks on their sexual privacy.  So where would it stop?  What if, for example, I really really really believe that tax cuts are immoral and will hurt people?  Would I be justified in outing infidelity then? 
 
You hopefully see my point.  The tactic - once unleashed - will only be limited by what people subjectively think are compelling circumstances.  That's why I say draw the bright line and condemn what's going on.  Sexual privacy is too important - and hell, we almost had a President impeached after we allowed some sex-crazed malicious special counsel to go digging into Clinton's private sexual affairs.
 
Don't get me wrong - the FMA is HORRIBLE.  And I know that my gay and lesbian readers feel a special angst and anger about it - and you're completely justified in doing so.  But rest assured, these people will pay.  Time is on the good guys' side, and we won't forget, and we won't let America forget either.  But let's win the right way.
 
That said, Commenter Ted had a interesting point that I had more difficulty addresssing - so I won't.  Perhaps others will.  Here's what he said:

Are we on the left supposed to respond to vicious conservative attacks with smiles and waves? I think we've tried that, and it got us Bush. Yeah, it's immoral, yeah, it's unethical. But goddammit, I'm sick of losing and if it takes calling people on their latent hypocrisy, so be it.

Touche.
 
[Update:  Thomas Frank has an absolutely outstanding column in today's NYT on the FMA.  If I had some time, I'd write an entire post about his argument, because it's right on.  His point is that the FMA strategy was selected because of its inevitable defeat.   For all their bluster, conservatives (post-Reagan) haven't really delivered many successes on the culture war front.  If they did ever succeed in banning abortion and gay marriage, the moderate Republicans would abandon the party.  So, by picking issues they know they'll lose - they get the best of both worlds.  The theocrats will continue to support the conservatives because of their rhetoric, and Wall Street will tolerate them because they never win.  And thus, when proposals for inequitable tax cuts and deregulation come around, Wall Street knows that the culture wars will keep social conservatives on their side even though the proposed measures are against their economic self-interest.  Anyway, go read the column.]

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This post by Daily Kos absolutely crosses the line and should be strongly condemned. Look, I hate the FMA as much as anyone, but I cannot condemn too strongly the efforts by Michael Rogers to "out" gay staffers of pro-FMA Congresspersons. That's their business, and it's a matter for their own private conscience. But even worse, Kos approvingly notes that Rogers is about to start outing Congresspersons who are unfaithful to their spouses:

About the most frustrating aspect of this whole "marriage" debate are the asshole Republicans who supposedly stand in defense of the institution of marriage, when they have two or three marriages under their belts. An outing campaign of FMA supporters who cheat on their wives would be delicious indeed.

Am I the only one who remembers l'affaire Lewinsky? If you want to punish and embarrass people because of the sexual decisions they make in their private lives, go join the Santorum staff. I wish I had time to explain why I find this so objectionable - this bar exam is seriously cramping my style.

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I fear I've become too jaded to get outraged anymore, but if I weren't, I would surely be outraged by this. Billmon has an excellent post on the recent schemings of Jeb Bush's Florida machine. As Billmon explains, Florida refined its list of felons who could not vote (in light of the abuses in 2000), but refused to submit copies of that list to the press. CNN sued and eventually obtained the copies of the list, which lo and behold, had a bunch of African-Americans but almost no Latinos. Here's the article that Billmon links to:

The state had tried to keep the list a secret. It fought a lawsuit aimed at opening the records to the public. A series of errors emerged once a Tallahassee judge rejected the state's arguments and released the records on July 1. The error that proved final - and garnered national attention - was that Hispanics were largely overlooked because of glitches ["glitches" would be more appropriate] in how the state records information about race and ethnicity. The list was created by cross-checking voter registration and criminal records. Of the more than 47,000 voters on the potential felon list, Hispanics made up one tenth of 1 percent - this in a state where nearly 1 in 5 residents is Hispanic. Florida Secretary of State Glenda Hood issued a written statement Saturday saying the exclusion of Hispanics was "unintentional and unforeseen." "We are deeply concerned and disappointed that this has occurred," Hood said. . . . Many Hispanic voters vote Republican.

The Cuban population votes overwhelmingly Republican. And I suspect that's why only 50 - yes, 50 - Latinos were on a list of 47,000 names.

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Dana Milbank has a very interesting article today on Bush's campaign strategy - an issue that I find to be possibly the most intriguing aspect of the 2004 election. For good or bad, Bush's team has opted to follow a new and rather innovative strategy of wooing the base rather than appealing to moderate swing voters.

In the past, the more common strategy for presidential candidates has been to run aggressively toward the middle in the general election. Just look at Bush in 2000, Clinton in 1992, and even Reagan in 1980. The basic assumption was that the presidency would be decided by the voting bloc in the middle. Bush is turning that model on its head. As the FMA endorsement showed, Bush is taking a historic gamble in that he thinks he can gain more votes by energizing the base than by adopting an attract-the-swing-voters strategy. Any losses of swing voters would be offset by a high voter turnout of an energized base, or so the theory goes. Here's the WP:

Although age-old campaign rules dictate that the general-election candidate must emphasize moderate "swing" voters and political independents, Bush strategists are predicting that this election, more than previous ones, will be determined by the turnout of each side's partisans. Although not discounting swing voters, Bush is placing unusual emphasis so far on rallying the faithful.

Interestingly, Kerry's strategy is the exact opposite - he's been running to the middle by stressing security, "values", and even stating his opinion that life begins at conception - a view I find hard to square with support for stem cell research or pro-choice positions more generally. Anyway, I suppose we won't know who is right until after November 2. But, given that such large large majorities on both sides have already made their choice, Bush's strategy might actually work - in the short term.

Whoever wins, I'm confident that Rove's dream of creating a new, 1896-style Republican majority is dead. I've explained many times (see here and here) that the GOP train is heading off a cliff over the long-term. Minorities, post-graduates (especially women), urban voters, secular voters, voters with college degrees - the demographics show that these groups are growing, and becoming increasingly aligned with Democratic policies - especially on social issues. The GOP, by contrast, is hitching its wagon to a stagnant demographic - southern white evangelicals, non-college educated men, and rural voters. The Exurbs (especially in the Sun Belt) are growing, but not at the same rate as the more progressive urban areas.

Both parties are hovering around 50%, but the Dem coalition is growing while the GOP is actively chasing its moderates out of the party (Jeffords, Specter - almost). West Coast and northeast Republicans only tolerate the theocratic wing because they help pass tax cuts. But I suspect they won't put up much longer with stuff like the FMA (or if they do, they'll stop being elected). Left on its current course, the GOP will become a permanent minority confined to the South and Mountain states - which, ironically enough, is how McKinley created the Republican majority in 1896 - by confining the Democrats to the Solid South where they remained a minority until FDR. The GOP must either expand its base, or it will meet a similar fate.

Which brings me back to Bush. Bush's strategy may well be wise over the short-term, but I can't imagine how it helps over the long-term. People are getting more - not less - gay friendly. I dearly love the South, and defend it at times when there is no good defense. But I've traveled enough to know that certain aspects of it freak people out. And northeast libertarians are not going to remain in a party run out of the offices of the Southern Baptist Convention.

But anyway, I've said all that before. The big point is just that it will be interesting to follow Bush v. Kerry, not only as a battle between rival administrations, but as a battle between two contradictory meta-strategies (i.e., energize-the-base vs. run-to-the-middle).

[Update: Here's the electoral map of 1896. McKinley (who won) is represented by the blue states. This Northeast-Midwest-West coalition held up until the Great Depression. The Democrats did take back the White House briefly when Woodrow Wilson (who has some uncanny parallels to Bush) won because of the split in the GOP. If things stay on course, I think a very similar coalition could reemerge in 2004 and beyond.]




Then again, this coalition may have already reemerged. Here's the 2000 map:




As you can see, the current battle between Republicans and Democrats is a battle for the soul of the Midwest. If the Dems lose there, they're out. If the Dems can win there, then the Republicans will be a minority party confined to the South and Mountain States.

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Wow. If you needed any more reasons NOT to watch Fox News, Wonkette has them - in spades. She got her hands on the leaked Fox News memos that direct the anchors/correspondents/etc. about how to present the news each day. Although there are many good candidates, this line was my favorite: Kerry, starting to feel the heat for his flip-flop voting record, is in West Virginia. Remember, these are directives from the Fox News chief John Moody. What he says gets repeated over and over again on the air.

Whatever faults the New York Times might have, I'm pretty sure it doesn't coordinate its message with the DNC, and then direct its reporters to parrot its talking points.

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With the FMA going down to a spectacular defeat (the cowards wouldn't even bring it to an up-or-down vote), I can't help but wonder if the GOP has made a truly colossal blunder - and one that will harm them significantly for years to come. The FMA has certainly alienated young voters, moderates, and urban Republicans - and it's already costing the party some cash. What's almost comical is that the GOP took an issue that would have helped them this year (gay marriage) and completely overplayed their hand to satisfy the Dobson/Falwell/Robertson wing. By doing so, they gave people like Daschle the ability to stake out an acceptable middle ground (i.e., anti-gay marriage but anti-amending the Constitution). Of course, the GOP hoped to use the FMA in Southern Senate races too, but the Dem candidates took it off the table by agreeing with it. So, the GOP has reaped very little from this, but has paid a great deal. And support for gay rights is growing. With every passing year, the FMA will seem more and more discriminatory.

Since I don't have much time, I thought it would be appropriate to repost something I wrote a few months ago. Basically, I see some parallels between the administration's support of the FMA and Iraq. In both cases, I think the administration suffered from a massive intelligence failure and relied too heavily upon interested and biased sources who told them what they wanted to hear. With respect to Iraq (a country they had long wanted to invade), the administration accepted (uncritically) the wild lies from Chalabi and the defectors who wanted Saddam out. They were assured that the Iraqi people would shower with chocolates and flowers, and Chalabi even promised to build an oil pipeline to Israel. With respect to the FMA, something similar occurred. The administration desperately wanted to energize evangelical voters. Rove was on the phone every day to the leaders of Dobson/Falwell/Robertson Inc., all of whom told him that the masses were demanding that something be done. The hapless Bush, who reads no books or newpapers and thus has no way of independently verifying what people around him tell him, signed on thinking it had massive public support. It didn't. Anyway, the point of the prior post was that the leaders of Dobson/Falwell/Robertson Inc. needed the FMA for a separate reason - to raise funds. I spelled it all out earlier:

ANOTHER INTELLIGENCE FAILURE? - Gauging American Evangelicals
Today's NY Times has a great piece explaining that many evangelicals are ambivalent about the FMA. It's not that they are die-hard gay rights activists - it's that they aren't particularly "energized" by Bush's endorsement. If that's true, that could be really bad news for Rove, the genius. After all, the whole point of pissing off half the country was that it would energize the infamous four million evangelicals who stayed home in 2000. The more I think about it, the more I see a much deeper problem for our Boy Genius and his prize student. Here's the million dollar question - what if Rove got bad information? In other words, is it possible that Rove depended too much on the leaders of the evangelical movement who might have given him faulty information about the preferences of the rank-and-file? And it is possible that these leaders might not have been speaking with the interests of their flock in mind, but rather in the interests of their own financial and fund-raising activities? That's a question I'm going to flesh out today. If I'm right, Rove may have just gotten Chalabi-ed by Christ, Inc.

You can read the whole thing here.

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The blogosphere has been buzzing about the potential of postponing the election in the case of a terrorist attack. (See Drezner here; Volokh here and here; Balkin here; and election law professor Rick Hasen here and here). While I'm not quite ready to believe that Tom Ridge wants to establish a military dictatorship, I do think this is a bad idea for this election (and potentially a horrible idea). The threshold question is whether the election should be postponed for any reason at all - or any attack no matter how great. I say no - but only for this election and only until we constitutionalize the contingency measures for national elections. Given that I've been studying a lot of contract law lately (over a warm fire and glass of wine), I think one useful way to think about this issue is in terms of allocation of risk (or perhaps risk-preference or assumption-of-risk would be more accurate).

But before I get into that, let me explain how a bad idea could become a horrible idea. Whatever Congress decides to do, the worst possible decision it could make would be to grant discretion to a presidential appointee (whose president is up for re-election) to make the final decision on whether to postpone the election. Even assuming that Tom Ridge would act in 100% good faith, it's simply not possible for him to make that decision without looking partisan. You can imagine the rancor that would follow if Kerry is up a few points and Ridge postpones the election OR Bush is up a few points and Ridge chooses NOT to postpone. Or, Ridge might postpone an election that Bush is about to win and the Murdoch empire would go ballistic.

So if it's to be done, Congress must do it. But given Congress's recent, ummm, struggles with the rule of law, I'd rather not give them that power either (unless it's a super-supermajority - 75-80% - immune from procedural abuse by the majority party). The Republican House leadership has already demonstrated its commitment to the rule of law twice this term by holding open votes longer than the alotted time (3 hours for the Medicare Rx bill and a half-hour for the renewal of the Patriot Act). That's like finding yourself down at the end of nine innings, but then forcing your opponent to keep playing extra innings until you take the lead - and then promptly calling the game the second you take the lead.

Anyway, the idea of postponing an election because of a terrorist strike is not absolutely crazy in an abstract sense. The problem (and it's a big, insurmountable problem) is procedural - how do you develop proper legitimate procedures in four months; how much discretion do you give; to whom to you give it; etc.

As I see it, both options have an element of risk. First, we could adopt the bright-line rule that nothing will affect the date of the election. Period. On the other hand, we could adopt some procedure that would allow us to postpone the election (disregarding the procedural issues for now). Both options carry their own unique risks. Risk is simply unavoidable. The question, then, is what sorts of risk would we prefer to take?

The risks associated with option #1 (i.e., no postponement for any reason) are rather obvious. Bombings could make voting literally impossible, or they could drastically suppress turnout. Or, if they came a day or two before the election, people might vote overwhelmingly for one party or the other (though it's safe to say which party that would be). The risks associated with option #2 are less clear, but potentially more frightening. I won't list them all, but they're not hard to imagine - accusations of partisanship, inability to agree on some procedure, unforeseen disputes with no legitimate arbiter, constitutional crisis, failure to recognize the election, riots in the streets, dogs and cats living together, mass hysteria. You know, everything that Bush v. Gore might have turned into.

In my opinion, although option #1 has its risks, I prefer to assume those risks than the risks associated with option #2. First, the probability of a horrific nuclear-style attack this November has to be close to zero. If an attack comes (which is still very unlikely), it will more likely be a train bombing, or even a building bombing. These attacks will be scary, but not enough to destroy the basic functioning of society. And not enough to do what even Lincoln chose not to do in 1864 - postpone elections. Second, even though a pre-election terrorist attack would help Bush (and everybody knows it), I prefer four more years of a properly-elected Bush to four years of John Kerry elected on a postponed date or by some ad hoc procedure with no basis in the Constitution. Unlike Tom DeLay, we take the rule of law seriously here at Legal Fiction. Third, post-election chaos and a constitutional crisis surrounding our Commander-in-Chief is about the last thing our troops abroad need right now. Confusion would invite attacks. Fourth, enacting some postponement procedure would surely give terrorists a greater incentive to act than if we stuck with option #1. Fifth, even if a major attack (of any size) came, we always have future elections. If Bush gets a veto-proof majority, then Americans can vote out the entire House in 2006. And they'll get another shot at the presidency in 2008. Probably the most important feature of the entire Constitution is the firm dates it sets for its cyclical elections (House-2 yrs; Sentate-6 yrs; etc.). Start pulling on that thread and the whole tapestry might unravel.

So let's stick with option #1, regardless of what happens.

That said, I think it would very wise to begin drafting a new constitutional amendment that deals with this problem. Obviously, we have far more important amendments to debate this week, but after the election, it would be worthwhile to develop some sort of procedure to handle a catastrophic terrorist attack (which is still years away from even being possible, I hope). Again, the problem isn't with the idea of postponing elections, it's with the administration of the procedures. Such a dramatic measure needs to have the full legitimacy of a constitutional amendment behind it. I'll speculate more on possible amendments later, but I think the final authority for such a potentially controversial decision should rest in the House. The House is (in theory) the most accountable branch. Its members would face the public two years after their actions. As such, the Framers granted it the power to decide or introduce measures that have always sparked enormous controversies (and even rebellions) - taxes, disputed Presidential elections, and articles of impeachment. That was no accident.

Perhaps any future amendment would allow the House to postpone an election with a super-supermajority and without the possibility of any GOP hold-the-vote-open tactics. That's just off the top of my head though. I welcome comments on what such an amendment might look like.

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(Via Eschaton) Today, the Steady Leader had this to say about Iraq in light of the Senate report on intelligence, which basically concluded that we went to war on completely false premises:

Although we have not found stockpiles of weapons of mass destruction, we were right to go into Iraq. We removed a declared enemy of America, who had the capability of producing weapons of mass murder, and could have passed that capability to terrorists bent on acquiring them. In the world after September the 11th, that was a risk we could not afford to take.

Tell me - if this is the relevant standard, wouldn't we be justified in invading any country?

If I get some time, I'm going to explain my main problem with this speech (and Bush's defense of his foreign policy more generally), which is that it assumes a profound ignorance on the part of the audience. In fact, Bush is betting on audience ignorance. It's the only way that this speech makes any sense. I'll explain why later - gotta study Real Property.

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The vote on the gay marriage amendment will take place in the Senate this week. Although it angers me to no end, I do get some satisfaction in knowing that certain Senators are about to take a permanent historical seat at the same table with those who supported segregation, Jim Crow, and the denial of civil rights to women. Rest assured that the speeches we hear this week will be treated with half-amazement and half-riducule by our children and grandchildren. But anyway, today I want to argue that the biblical-based arguments against gay marriage rest on very shaky logic - even assuming we're translating the biblical text correctly.

Many supporters of the FMA (Federal Marriage Amendment) do so because they think they're following the commands of the Bible. These people (some of these people) sincerely believe they are reading the Bible correctly. Unlike Bush, who is supporting the FMA even though he does not seem to believe in it, many do support the FMA in good faith. They think the Bible (and thus, their God) is telling them to.

As I understand it, the logic behind the biblical arguments has two steps: (1) the Bible condemns homosexuality in various places; (2) therefore, gay marriage should be illegal. I want to focus specifically on the jump between step #1 and step #2 - i.e., the "therefore" - because it doesn't seem very sound as a matter of logic.

Let's assume for now that the Bible does classify homosexuality (in the modern sense of the word) as a sin. Where does it say that this particular sin disqualifies you from marriage? For example, here's a couple of verses commonly cited by anti-gay marriage advocates:

1 Corinthians 6: 9-10 - Know ye not that the unrighteous shall not inherit the kingdom of God? Be not deceived: neither fornicators, nor idolaters, nor adulterers, nor effeminate, nor abusers of themselves with mankind, nor thieves, nor covetous, nor drunkards, nor revilers, nor extortioners, shall inherit the kingdom of God.

1 Timothy 1:9-10 - [T]he law is not made for a righteous man, but for the lawless and disobedient, for the ungodly and for sinners, for unholy and profane, for murderers of fathers and murderers of mothers, for manslayers, for whoremongers, for them that defile themselves with mankind, for menstealers, for liars, for perjured persons . . . .

Let's see here. We let fornicators marry. We let idolaters marry. We let adulterers marry. We let the effeminate marry. We let thieves marry. We let those who covet marry. We let drunkards marry (I can attest to this one personally). We let extortioners marry. We let murderers marry. We let whoremongers marry. We let liars marry.

So, I'm not exactly sure how these verses support the gay marriage ban. The Bible defines the sins, but it doesn't speculate about what implications those sins should have on 21st-century civil law. In other words, just because something may be a "sin," that isn't anywhere close to a justification for denying marital rights (and adoption rights, and custodial rights, and visitation rights, and inheritance rights, and hospital visitation rights, and on and on and on).

And let's not forget that I was assuming that we have our translations right - our 2000-5000 year-old translations of Greek and Hebrew. When I was Googling for the relevant Bible verses, I found this page that lists many of the potential linguistic minefields that loom for anyone who wants to equate words used in ancient Judea with words used in 21st century America. I have no idea whether this person is right (or even who he or she is), but there are some interesting parts. For example, the words translated today as "homosexuals" and "sodomites" have also been translated as "sissies" and "child molesters." That's not exactly the same thing - and it calls into question our modern translations (especially when translated by people without historical expertise).

I did a couple of posts on this exact subject in March ("Lost in Translation" and its follow-up). The point was that we should be very hesitant to use biblical text to address 21st policy disputes. Here's an example regarding a verse often cited to oppose abortion and stem cell research. I'll just quote from my previous post:

Psalm 51: 5 "Surely I was sinful at birth, sinful from the time my mother conceived me." This verse suggests that David (the author) existed in some capacity at conception. The problem is that this verse comes from the New International Version, which interpreted the text in a specific way that may or may not be accurate. The King James Version reads "Behold, I was shapen in iniquity; and in sin did my mother conceive me." That's a lot different. This translation suggests that David meant that his mother conceived him "in sin" - which is probably a reference to sex. Thus, that particular translation says nothing about stem cells. And we have no idea whether the original text has different connotations or meanings. That's the point - the text people use in modern policy disputes is not that reliable because its meaning is not clear.

The Bible - like the Constitution - can be very vague. I suspect that many people use this vagueness to project their own social norms upon the text. The gay marriage dispute is a classic example of defending what are essentially arbitrary social norms by invoking vague biblical text that is not logically related to the argument (for reasons expressed above).

Rather than parsing biblical text like we would a statute, I think we should focus on the broad themes and the spirit of the Bible. Yes, the New Testament has a couple of isolated references to something that may or may not be homosexuality as we understand that term. But surely we can all agree that the New Testament is suffused from start to finish with a command to tolerate and, above all, to love. And banning gay marriage is the opposite of love. Banning gay marriage results in parents being separated from their children. These are not abstract questions - for many, they are concrete realities. If you want to know the real, non-abstract effect of banning gay marriage, read my posts here and here.

I'll leave you with a real-life case that I cited in the posts above. Think about this poor parent as you listen to the debates this week. Think about it and then ask "What Would Jesus Really Do?"

Liston v. Plyes (Ohio Ct. of Appeals 1997). This case involved two lesbians who had been partners for sixteen years. They decided that they wanted a child and Pyles agreed to be the biological mother. They both raised the baby for three years and Liston (the partner) had even provided the bulk of support in 1994, the year they broke up. After the separation, Pyles refused to grant Liston visitation rights and so she sued. The court denied visitation rights to someone, who by anyone's definition, was a PARENT. The Ohio court explained, "In sum, appellant has no statutory right to visitation nor a statutory remedy to assert her alleged right to visitation. Should the legislature determine that companionship or visitation rights should be extended to lesbian and/or homosexual partners, such a determination must be left to the legislature: not this court." So, imagine (parents) if you were separated from your baby after raising it for three years and then you were refused visitation. Can you imagine how crushing such an experience would be. It makes me almost cry just thinking about it.

[Update: (Via today's WP) Here's Senator John Cornyn securing his place in history:

"It does not affect your daily life very much if your neighbor marries a box turtle. But that does not mean it is right. . . . Now you must raise your children up in a world where that union of man and box turtle is on the same legal footing as man and wife."

-- Sen. John Cornyn (R-Tex.), advocating a constitutional ban on same-sex marriage in a speech Thursday to the Heritage Foundation.

Someday, that quote will be held in the same regard as this quote:

"I wanna tell you, ladies and gentlemen, that there's not enough troops in the army to force the southern people to break down segregation and admit the nigger race into our theatres into our swimming pools into our homes and into our churches."
-- Strom Thurmond, 1948

You can here the Strom quote live here (need a Real Player, I think).

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Despite my best efforts to ignore it, I have to take the bar exam in two weeks. And it's crunch-time. So, just to warn everyone, posts will be fairly sporadic for the rest of July. Given that I'm free from work for the next couple of weeks, I suspect that I'll continue to post fairly regularly this week, and probably not at all the following week (or perhaps I'll just do shorter posts). If I'm going to be gone for an extended period of time, I'll be sure and let you know.

I hope everyone will stick it out though. I can't tell you how much I value all the readers, emails, and comments. So please bear with me for the next couple of weeks.

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Paul Wolfowitz, 5/9/2003 - Vanity Fair interview:

[T]here have always been three fundamental concerns. One is weapons of mass destruction, the second is support for terrorism, the third is the criminal treatment of the Iraqi people. Actually I guess you could say there's a fourth overriding one which is the connection between the first two. . . . The third one by itself, as I think I said earlier, is a reason to help the Iraqis but it's not a reason to put American kids' lives at risk, certainly not on the scale we did it.

Look - Kevin Drum is right - this Senate report is huge. It completely undermines the rationale used to justify the war ex ante. I'll have more thoughts on this soon.

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(Via Amy Sullivan) Amy (whose blog I really enjoy - and which will soon be added to the link list) links to a 2003 Rutgers University poll that surveyed attitudes and knowledge about government. It's a single poll, and I have no idea how reliable it is, but it was conducted by a university and not a partisan think tank. Anyway, the poll divides Americans into two groups -- the "Dotnets" (aged 15-26) and people above 26. Here's an executive summary of part of its findings - and it's rather disturbing:

WHAT CAN YOU CORRECTLY IDENTIFY? (% correct - Dotnets/Over 26)

Nation's Capital - (95/97)
Simpsons' Hometown (i.e., Springfield) - (82/46)
Winner of American Idol - (64/54)
Party of your state's governor - (48/72)
Party control of Congress - (40/61) *****
Party control of state legislature - (22/33)
Speaker of the US House - (10/22)

Not only are young people grossly ignorant (uninformed), nearly 40% of the "over 26" population doesn't know what party controls Congress. But I'm sure we can trust these people to inform themselves about our economic and Middle East policies.

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(Via Josh Marshall) Today's NYT reports that the back-up records that could confirm that Bush actually completed his National Guard Service were "inadvertently destroyed."

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George Will – whose columns I enjoy – had an interesting one yesterday on Thomas Frank’s new book, “What’s the Matter with Kansas? How Conservatives Won the Heart of America.” Frank is probably left of me on economic issues, but I do agree entirely with his argument that the GOP powers-that-be have successfully exploited the culture wars to help enact an economic agenda that is not in the self-interest of working-class people. Will captures Frank’s argument pretty well:

The cultural backlash has been, [Frank] believes, craftily manufactured by rich people with the only motives the left understands -- money motives. The aim of the rich is to manipulate people of modest means, making them angry about abortion and other social issues so that they will vote for Republicans who will cut taxes on the rich.

Will, however, doesn’t really dispute that Democratic economic policies would be better for the working class (though I'm sure he would, if asked). Instead, Will focuses on the question of whether cultural issues are more important than “materialistic” economic ones.

[Frank] says "the pre-eminent question of our times" is why people misunderstand "their fundamental interests." But Frank ignores this question: Why does the left disparage what everyday people consider their fundamental interests?

In essence, Will is saying that Frank is not measuring peoples’ preferences properly. It’s not an outrageous argument at all. For example, Frank’s most critical assumption is that people in Kansas should value economic policies over cultural ones. But that’s not self-evident, especially if you equate abortion with murder and gay marriage with Satan. It's entirely possible for people to assign more value to cultural issues than economic ones. That said, I still want to challenge Will’s argument in a couple of ways: First, I think he may be wrong in suggesting that cultural issues can outweigh economic ones. But even if Will is right on that point, the argument sort of misses the point because it doesn’t explain why the working classes continue to support economic policies that are against their self-interest.

I’m not that confident in the first argument, but I’ll take a stab at it. The psychologist Abraham Maslow argued that all humans have a hierarchy of needs. The first and most basic needs are physical – water, food, and sleep. If and only if these most basic needs are satisfied, then humans have proceed to satisfy their next level of needs, which include seeking safety and security, and so on. Maslow’s overall hierarchy goes as follows: physical needs, safety and security, love and acceptance, self-esteem needs, and finally, “self-actualization” needs. The latter includes artistic or creative pursuits, and appreciation of the aesthetic. This makes some sense to me. You can’t really study art if you have to hunt food because you’re starving. Satisfaction of the first need is a precondition to studying art. On an aside, this is also the reason why Rousseau and the old school Marxists claimed that the arts were a sign of corruption and/or decadence. Art was traditionally consumed by the leisured classes – whose very existence reflected an inherently unequal economic order that produced the aristocratic leisured class in the first place. [Keep in mind though that their ideas were a reflection of European class structure - America's was always much different.]

Anyway, I wonder if a strong argument could be made that economic needs are more basic in some sense than the cultural ones. In other words, the culture wars seem to be a bit of a luxury because they are higher up Maslow’s hierarchy. For example, I doubt anyone would care about gay marriage if they were starving. Will almost makes this argument himself:

The economic problem, as understood during two centuries of industrialization, has been solved. We can reliably produce economic growth and have moderated business cycles. Hence many people, emancipated from material concerns, can pour political passions into other -- some would say higher -- concerns. These include the condition of the culture, as measured by such indexes as the content of popular culture, the agendas of public education and the prevalence of abortion.

The problem is that Will is implying that Americans' basic economic needs are being met. The real dispute now, according to Will, is “materialistic” – i.e., about having the money to purchase DVDs or an SUV. I think this is a perfect example of unconscious class bias. Will probably doesn't get much exposure to the poor. I suspect that the 40 million Americans who do live in poverty would tell a different story. There are a lot of people (millions) who don’t have money for decent housing, decent health care, and decent education. If Democrats were merely fighting for the right to purchase SUVs, then Will would have a better argument.

However, if the working classes’ (as opposed to the poor’s) basic economic needs are being met, it’s seems perfectly reasonable to agree with Will's claim that these people would (and should) value banning abortion over receiving better health care (especially if they are religious).

So that brings me to point #2, which I think is a better criticism of Will. I’ll concede (for the sake of argument) that Will is right and that cultural issues may be more valued than economic ones. And so, that would explain why Kansas votes Republican. But that's not the end of it. That answer simply does not explain why the working classes continue to support Republican economic policies. In other words, why don’t these people oppose certain specific policies of the Republicans (such as the mammoth tax cut) when those policies favor the wealthy at the expense of government programs that disproportionately benefit them (Medicare, Medicaid, Social Security, federal education loans, public education spending, interstate spending, environmental protections, workplace regulations, minimum wage, securities regulations, and on and on).

That’s why people like Frank think the middle class is being tricked. If Kansas voters were rational, they would be voting for a candidate that supports their cultural views and policies that help them economically. But Kansans don’t just oppose Democrats on cultural issues, they get equally worked up about targeted tax increases and “big government” regulation – even though those funds and that regulation benefits them. That's irrational, even if cultural issues are more highly valued.

That’s what’s misleading about the GOP strategy. They peddle economic myths and fairy tales about how deregulation and drastic tax cuts are actually going to help working class people. It’s just not true. Yes, the old school Democrats went overboard, but that doesn’t mean (ipso facto) that Reaganomics should be embraced as the only alternative. The Clinton/Rubin Third Way is better than both. But the big point here is that the tax cuts and huge deficits are threatening all of the programs that I listed above – and the people getting the bulk of the tax cuts don’t need any of those programs. In fact, each and every one of those programs were bitterly contested by wealthier interests, all of whom claimed that their passage would lead the country into financial ruin.

So yes, Mr. Will, perhaps cultural issues are more important for some people. But that only responds to half of Frank’s argument.

I love Barbara Ehrenreich - let's outsource Friedman. I'll probably have more to say about this column, because I think it raises a critical point about the relationship of poverty and behavior - and one that I raised in an earlier post. The basic conceptual error that Ehrenreich identifies is the inversion of cause and effect. Americans see the behaviors of poor (i.e., bad grammar, etc.) and assume that these behaviors create the poverty that they see around them (and thus, poverty is an individual failing - and that helps us all sleep at night). But the opposite is true. The poverty creates the behavior. Obviously, there are some lazy, sorry individuals, but you have to assess this issue statistically. I mean, good Lord, 40% of black babies are born into poverty. I'm not sure how one reconciles apathy about this widespread poverty with one's religious beliefs.

That's another reason why I think Edwards was a wise choice. He was the only candidate who spoke about poverty - and it was inspiring. It's funny - everyone says that Edwards will help with the rural and working poor. But I saw Dan Balz (a WP reporter) on TV last night explaining that (in the Wisconsin primary) Edwards did much better among higher-income, better-educated Dems. That's interesting - and it naturally raises the question of why. In my opinion, I think this demographic is sort of looking for a new calling - a new civil religion. Of the four candidates, Edwards is the only one who has truly inspired them with a message (Dean didn't really have a message; nor did Kerry). He was also the only one who challenged us to do more for those with the least. And I honestly think that if you grow up in poverty, you will feel an almost religious duty to help the sorts of people you grew up with - who attended your Little League games - who attended your church - who lived from check to check - who suffered when the plant closed. Edwards has seen all that - Bush and Kerry have not. And in my opinion, neither will share the motivation to do everything they can to help those people. I mean, I'm sure they recognize the problem, but they don't understand it or truly empathize with it on a gut level.

Edwards does. And I might add that, of the four, Edwards's message seems the most . . . Christian.

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You know, every time I start to think that the Bush administration can’t get any more outrageous, they always prove me wrong. If this New Republic article is true (and Josh Marshall claims that the journalists have multiple sources), it really is a new low.

The New Republic has learned that Pakistani security officials have been told they must produce HVTs [high-value al Qaeda targets] by the election. According to one source in Pakistan's powerful Inter-Services Intelligence (ISI), “The Pakistani government is really desperate and wants to flush out bin Laden and his associates after the latest pressures from the U.S. administration to deliver before the [upcoming] U.S. elections.”

. . .

What's more, this source claims that Bush administration officials have told their Pakistani counterparts they have a date in mind for announcing this achievement: "The last ten days of July deadline has been given repeatedly by visitors to Islamabad and during [ul-Haq's] meetings in Washington." Says McCormack: "I'm aware of no such comment." But according to this ISI official, a White House aide told ul-Haq last spring that "it would be best if the arrest or killing of [any] HVT were announced on twenty-six, twenty-seven, or twenty-eight July"--the first three days of the Democratic National Convention in Boston.

First, in anticipation of Scott McClellan’s responses, let me make it clear that I am NOT objecting to hunting down Osama or any other “high value” al Qaeda targets. There’s nothing wrong with the Bush administration’s attempts to get them. They should be trying to get them. That’s not the issue. The issue is the requested timing of the arrests. And what’s significant about the timing is that it symbolizes (perfectly) the central, most fundamental flaw with the Bush regime – the willingness to put politics above absolutely EVERYTHING. This really wouldn’t be such a big issue if it weren’t part of a much larger pattern of behavior that has happened again and again. If I am wrong in this critique, I would sincerely welcome comments from my conservative friends. Please tell me why I am either wrong, or that I shouldn’t be concerned, because I’m really struggling to see it as anything other than crass political calculations.

Ron Suskind (the author of the Paul O’Neill book) first identified the triumph of politics over policy in his Jan. 2003 Esquire article on Karl Rove entitled “Why are These Men Laughing?” He managed to get his information from the first big defector from the administration – John DiIulio (who is not exactly a liberal commie). DiIulio, foreshadowing what O’Neill would later reveal to Suskind, had this to say about the White House:

"There is no precedent in any modern White House for what is going on in this one: a complete lack of a policy apparatus," says DiIulio. "What you’ve got is everything—and I mean everything—being run by the political arm. It’s the reign of the Mayberry Machiavellis." . . . "I heard many, many staff discussions but not three meaningful, substantive policy discussions," he writes. “There were no actual policy white papers on domestic issues. There were, truth be told, only a couple of people in the West Wing who worried at all about policy substance and analysis. . . . Every modern presidency moves on the fly, but on social policy and related issues, the lack of even basic policy knowledge, and the only casual interest in knowing more, was somewhat breathtaking: discussions by fairly senior people who meant Medicaid but were talking Medicare; near-instant shifts from discussing any actual policy pros and cons to discussing political communications, media strategy, et cetera.”

And it shows. In terms of domestic policy, the Bush administration doesn’t appear to be doing anything in the national interest. Rather, the only unifying theme seems to be a systematic attempt to buy off key constituencies, regardless of the merits of their actions. For example, take the steel tariffs – bad economics, good for getting votes in Pennsylvania. Farm bill – bad economics, good for votes in Iowa. The Medicare Rx bill was the worst. It’s an enormous new program that includes no cost-control measures, not to mention that the administration flat-out lied about the known costs. But, it was important for winning votes in Florida. The second and third round of tax cuts were passed even though the deficit was exploding and even though we were about to go fight a war. But that didn’t matter – tax cuts were necessary for the political message. The energy bill is a joke. It has no long-term vision, but was merely a payout to interest groups (and the newly indicted Ken Lay of Enron). As DiIulio indicated, there have been no attempts to address the long-term problems, or the fiscal disaster that awaits us when the Baby Boomers retire. I’ve yet to hear any health care proposal whatsoever. There is simply no policy – only politics.

And it’s even worse when you turn to national security. Instead of taking the post-9/11 unity and using it to create a broad national effort to fight terrorism, Bush chose to politicize the war on terror and bitterly divide us. What should have been a national effort against a menacing world threat became a political tool to punish Democrats and create a new Republican majority. After Afghanistan, Rove instructed Republicans to “run on the war.” In the fall of 2002, the Republicans scheduled a war resolution vote right before the midterm elections, while getting on TV everyday warning of nuclear weapons and mushroom clouds. Time and time again, Iraq was used (domestically) as a wedge issue to divide and punish Democrats. What’s unfortunate – especially for those who supported Iraq in good faith – was that Bush jeopardized the war effort by making it so political. Nearly half of the country had no investment in it after being called traitors and treasonous and unconcerned with national security.

And that brings me back to the Pakistan article in TNR. Other than being generally appalling, what’s specifically troublesome about the request to capture Osama during the Democratic Convention is that it clearly shows an intent to – once again – politicize the war on terror to punish Democrats. The reasoning is not, “Hey, let’s try to get Osama so we can rid the world of a mass murderer.” They are, honest-to-God, thinking, “Let’s get Osama so we can really fuck them good.” Everything – even capturing Osama – is subordinate to winning politically. These requests for a July Surprise show an absolute unwillingness to acknowledge that terrorism is a national issue, and one that is so important that it should be above politics. But not for these guys – nothing is above politics. And if they get a high-value target, they won’t consider it a great day for Americans. They’ll consider it a great day for Republicans – and they’ll send out their media army to bash the Dems’ skulls with their victory (just as they would be doing with Iraq had it gone well).

But even getting away from all of that, the timing raises some other troubling issues (especially for hawks). First, if they are suddenly applying intense pressure now, doesn’t that suggest that they could have applied pressure earlier? And if so, that means we either: (1) dropped the ball in 2002, probably because we were distracted by Iraq; or (2) deliberately waited until close to the election. (I want to believe it was #1 - surely to God it's #1). Second, there is also the possibility that we will undermine our intelligence-gathering efforts if we are following an arbitrary schedule rather than the facts on the ground. For all I know, forced July raids might frustrate agents who are gathering intelligence that could lead to greater victories later. Third, as the article explains, it seems that election-year politics (the need to capture a high-value target) have prevented us from taking a stronger stand against nuclear proliferation. Fourth, pushing Musharraf to act now merely to satisfy our election cycle could be the spark that ignites a civil war in western Pakistan – and that’s the last thing we need. Again, I lack the facts to know whether any of this is true. But how confident should I be that the Bush administration will act in the national interest if they could catch a high-value target in July, but only at the cost of undermining our larger efforts over the long-term? In general, I’m just skeptical that these efforts should be forced to follow arbitrary deadlines.

Again, I’m begging conservatives to help me understand. If the TNR article is true, how can this be excused?

[Update: After reading this, I realized I might need to be more skeptical of parts of the story. As best I can tell, the information about the dates in July came from a single source, and it seems awfully convenient. So, I just don't know if they confirmed the July bit through multiple sources. It seems clear though that multiple sources did claim that the Bush administration is pushing hard for an HVT before the election. And there may be additional corroboration for the July dates - it's not clear from the article. But still, even if the bit about July isn't true, many of the larger points I made still apply. But let's hope the worst part of this story - the bit about the Dem Convention - isn't true.]

D'Amato says dump him.

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Today's WP has an article stating that several high-level Republicans are conflicted about whether Cheney should stay on the ticket. The polls give them good reason for concern:

Gallup: Favorability/Unfavorability - Edwards - 54/16; Cheney 43/44.

CBS News: Favorability/Unfavorability - Edwards - 38/9; Cheney 27/47.

It's important, too, to ask what the opportunity costs of keeping Cheney on board are. In other words, you have to compare Bush/Cheney with Bush/Hypothetical Candidate X-from-Ohio/New York/etc. To me, Bush is incurring a huge opportunity cost by keeping Cheney on.

[And I 100% agree with this Kevin Drum post - Why is the GOP convention scheduling a bunch of pro-choice, gay rights supporters during primetime? And why aren't Republicans more upset? It's a very misleading lineup - these people are not at all representative of the party.]

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One of the most interesting aspects of the Supreme Court's most recent term was that the Justices showed an increasing tendency to split into new camps. While the Justices continued to split along conservative/liberal lines, they have also begun splitting along formalist and pragmatist lines.

Stuart Benjamin made this observation last week over at Volokh, and I think it’s an astute one. In recent cases like Blakely (sentencing guidelines) and Hamdi (enemy combatant case), the Justices lined up just as they did in Apprendi – the formalists (Scalia, Stevens, Thomas, Souter, and Ginsberg) versus the pragmatists (Rehnquist, O’Connor, Kennedy, and Breyer). What is equally surprising (to me) is how demoralized several prominent conservatives are about the alleged rise of pragmatism on the Court. I listened to Ken Starr's (Darth Vader's) summary of the term on CSPAN, and you would have thought he was speaking at a funeral. Even Lawrence Solum has been somewhat melodramatic about the terrible consequences of pragmatism. (By they way, I very much enjoy Solum's Legal Theory Blog – but he has a very bad tendency to divide the entire world into either/or extremes or grids) Anyway, just look at the language he uses:

Rule by decree [which is Solum’s synonym for pragmatism/realism], Aristotle believed, was typical of tyranny – the rule of individuals and not of law; a regime that rules by decree does not provide the stability and certainty that is required for human communities to flourish.

He then added:

Realist judging is not hard wired into the furniture of the universe; it is the result of particular forces, beliefs, and attitudes. And yet another way of making the point is this: formalism is a possibility.

So realism is sort of like alcoholism – we can will ourselves free of it once we have our goals in mind. I shouldn’t be so sarcastic – I really really enjoy Solum’s blog – but some perspective (and deep breaths) would do everyone some good. O’Connor may not be a very good Justice, but I don’t think she’s going to cause human communities to stop flourishing – and neither will pragmatism.

Once again, I fear that Solum is dividing the world into black-and-white. At times, he seems to suggest that there is formalism, and there is pragmatism, and never the twain shall meet. In truth, I think there’s a Third Way. I think what Solum really desires – or should desire – is not so much formalism, but "rule of law." The former is merely a means to serve the latter. In other words, Solum's (and others') basic desire is to limit judicial discretion, and formalism is one (of several) ways to achieve that goal.

As I have explained before, I consider myself a non-originalist textualist. Or to be more precise, a pragmatic textualist in the spirit of Hugo Black and Akhil Amar. I too strongly believe in the rule of law, but I believe that a text-respecting pragmatism is quite consistent with the rule of law. As is usually the case, the two extremes in Solum’s universe are better understood as two endpoints along a graduated spectrum.

The problem with formalism as the sole means to enforce the rule of law is that language is often indeterminate – or more precisely, boundedly indeterminate. What I mean is that a given statute, or formal doctrine, can be interpreted in multiple ways – though not in infinite ways. For example, let’s take a statute that says, “The governor must be thirty-five years old.” Even this seemingly determinate statute has some indeterminacy. For example, does this mean the governor must be thirty-five on election night, or on inauguration day? It’s indeterminate – both seem reasonable. However, it would be unreasonable for a twenty-five year old candidate to run – and no court could find otherwise. That’s my point – to me, the text creates a fence of sorts – a boundary that judges cannot cross and that we all must respect (to uphold the rule of law). These judges would, however, be free to choose among various options if those options are within the bounds of indeterminate text. Here’s a diagram that illustrates my point (pretend the outermost box doesn't exist):



In this diagram, outcomes A, B, and C are equally plausible outcomes within the boundaries of the indeterminate text (the inner box), whereas D is not. So here’s my Third Way - in the spirit of my hero, Justice Hugo Black. The rule of law is served by respecting the boundary surrounding the box. We should select judges who will respect that wall. Unfortunately for liberals, Roe and Lawrence are clearly outside that box (they are "D"). There is no plausible reading of any text that could achieve those results.

However, once we are inside the box, I think formalism becomes rather foolish. Once inside, judges should apply pragmatic principles to determine whether A or B or C would be optimal. And it’s quite possible that circumstances could change such that A is optimal today, and B becomes optimal in the future. And yes, choosing between plausible alternatives within indeterminate text will require judges to apply some political or personal preferences (even unconsciously). But that’s a virtue of pragmatism – we can always change our minds in the face of a better argument. It lends itself to a democratic dialogue. Formalism, by contrast, merely picks one of the possible outcomes (let’s say “B”) and erects an entire legal edifice upon it. In this sense, formalism merely solidifies one plausible, but essentially arbitrary, choice instead of giving us the freedom to choose among various plausible options.

That’s the answer to a question that has long riddled me. In an abstract sense, formalism shouldn’t systematically favor conservative or liberal principles. But it has consistently been invoked by more conservative jurists and academics. Why? The answer, I think, is that these people are merely selecting the most politically advantageous outcome and declaring deviations from it to be an assault on the rule of law (though in some cases, they have a point). It’s a powerful narrative, but it's somewhat misleading. Textualism yields many answers, and judges should be free to live in 2004 to decide among them.

So, in areas where the Constitution gives judges a “big box” in which to roam – such as “unreasonable” searches or “cruel and unusual” punishments – let’s be faithful to text and allow some pragmatism in. On the other hand, where judges step out of their textual bounds, they need to be strongly criticized. And judges who have a tendency to stray outside the box (and we need more than a Dick Cheney Saddam/Al Qaeda-style link to get us in the box) should not be appointed or elected.

In short, there is a Third Way. Pragmatic textualism is perfectly consistent with the main principle – which is rule of law. And on that point - the importance of the rule of law - I am in 100% agreement with Solum.

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Matt Yglesias has an interesting post (as usual) on whether some of the so-called liberal elites were mistaken when they argued (during the primary) that Edwards would be a better presidential candidate than Kerry. Matt points out that Republicans could have successfully hammered Edwards on national security:

It would be too easy to paint Edwards as the wrong man for the times, while Kerry can project an atmosphere of seriousness, courage, and guts that will convince at least some of the electorate. In this I think the hoi polloi of the primary electorate showed better judgment than liberal elites inside the Beltway who were overly impressed by the fact that substantively Edwards is good on security.

Perhaps Matt is right, but I'm still skeptical. Whether he's right depends on a different question - which is why voters prefer one presidential candidate over the other, and whether that decision is rational. I certainly don't think Americans are dumb, but I do think they pick candidates for dumb reasons, such as because they think someone is a "good guy" (all of which stems from the original sin of being grossly underinformed). Nixon's campaign managers had their own theories:

As one of Nixon’s media advisers told him even before his nomination: "Voters are basically lazy, basically uninterested in making an effort to understand what we’re talking about. . . . Reason requires a high degree of discipline, of concentration. . . . The emotions are more easily roused, closer to the surface, more malleable. . . . It’s the aura that surrounds the charismatic figure more than it is the figure itself, that draws the followers. Our task is to build that aura.”

Nixon’s chief speechwriter, Raymond Price, was even more explicit. For most voters, he said, the decision to support a candidate was a “gut reaction, unarticulated, non-analytical, a product of the particular chemistry between the voter and the image of the candidate.”

If you buy this theory, then Edwards is hands-down the better candidate. However, Iraq does change things. Regardless of their gut-level connections with Edwards, I would like to think that people wouldn't vote for him unless they had some minimum threshold of confidence that he could run a war. And, I suspect that if Edwards picked an appropriate vice-president and quickly assembled a competent "cabinet," then he would be OK.

Obviously, it would still be a vulnerability. But the precise question (and one I can't answer) is whether the costs of the national-security inexperience would be outweighed by the benefits of the emotional connection. And a similar calculation must be made with respect to Kerry - does the national-security competence outweigh the liabilities from being a less-than-dynamic speaker.

Everything depends upon the rationality and/or preferences of the American voter. And given that, as of April, 57% of Americans believed that Saddam gave "substantial support" to al Qaeda, 45% believed there was "clear evidence" that Iraq worked closely with Osama, and a majority thought that Iraq either had WMDs (38%) or had major programs for developing them (22%) - forgive me if I'm not very confident about how informed the average American voter is.

I suspect that Edwards's biggest weakness would be fundraising and the limits imposed by public financing.

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Kerry's choice of Edwards was wise for several reasons:

(1) Unifying the party. It's a very odd thing indeed when the DLC, labor, African-Americans, and Ralph Nader are all VERY excited about a single individual. But all have expressed strong support for Edwards. Interestingly, none of these groups are all that excited about Kerry.

(2) Senate. Senate. Senate. Southern Democratic Senate candidates are thanking the man upstairs, especially North Carolina's Erskine Bowles. Edwards can campaign and raise money for all these people. And most critically, the Southern candidates will not have to distance themselves from the national ticket.

(3) Ticket balance. Edwards brings more than regional balance (though he brings that as well). Edwards has shown that he has strong appeal among union workers AND non-union white workers (the latter far outnumber the former). He is also rural. Rural voters and non-unionized white wage-earners are absolutely critical this fall.

(4) Excitement. For whatever reason, people like him. The press likes him. Unlike Gephardt, whose selection would have triggered intraparty bickering, Edwards will generate almost unanimous good feelings and the "free media" will reflect that. He also comes across very well on TV, and will represent a stark contrast from Gollum Cheney. Gephardt is a good guy, but there was little evidence that the unionized rank-and-file (as opposed to the leadership) were excited about him. Edwards excites them, and a whole lot of other people as well.

(5) Downside. THERE IS NO DOWNSIDE - at least from a pure campaigning perspective (Edwards's ambition could create governing problems should Kerry win). Undoubtedly, the Republicans will attack him because he lacks foreign policy experience. Pah-leez. I'm sorry, but that's not going to affect any votes. Yes, in a world where voters are rational and weigh policy and experience before they vote, Edwards's inexperience would matter. But voters don't vote on these things - they vote on who they like (emotionally). As Exhibit A, I would direct you to the current occupant of the Oval Office - whose sole qualification for both governor and president was that he was born well and had a little (R) beside his name.

[Update: Drudge has dutifully posted the RNC talking points on Edwards (which will certainly be parroted by CNN and the rest of the SCLM). You gotta love the RNC - here's the title of their description of Edwards: WHO IS JOHN EDWARDS? A Disingenuous, Unaccomplished Liberal And Friend To Personal Injury Trial Lawyers. Hmmm. Disingenuous liberal. Where have I heard that before? Oh yeah, I've heard that said about every Democratic candidate since 1984. Seriously though, I wonder if crying "liberal" for everyone actually undermines the argument. I mean, you can make many arguments against Edwards, but "disingenuous liberal" isn't one of them. I wonder if, after hearing the same knee-jerk claims every single time, the people will begin to grow weary of this tired attack line that is rooted more in emotion rather than empirical assessment of the individual-in-question. (That of course would assume that voters are rational, so who knows.)]

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Reuters is reporting that Edwards got the nod. Much much more to come.

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Even though I really want to return to the question of why people hate the Left, I first want to reward those who did their “homework” on Sunday and read the Biden interview with Josh Marshall. Once again, if you haven’t read it, go read it.

If the neocons accomplished nothing else, their failures may have given rise to a new, more compelling foreign policy narrative for progressives. On that note, one angle I want to pursue today is that the Biden interview provides a very good example of “rule-liberalism” yielding to “spirit-liberalism” in the foreign policy arena. But first things first.

First, Biden points out (as did your humble blogger a few months ago) that the biggest conceptual flaw in the Bush war on terror was its assumption that nation-states were the primary actors. The neocons thought that bad state governments were the source of terrorism. Under that view, if you cut off the roots (bad regimes), then terrorism would wither on the vine. As I explained here, everything the Bush administration did sort of falls into place when you make that critical assumption. That explains why they doggedly pursued missile defense pre-9/11, and that’s why they went after Iraq post-9/11 even though Afghanistan was far from over. I think they sincerely thought invading Iraq would help fight terrorism, but I also think they lied (and continue to lie) about Iraq’s al Qaeda connections. The point of Iraq was to shoot a warning shot across the bow of other regimes. They wanted to make an example out of Saddam, because they assumed that states were the source of terror. Iraq was convenient for many reasons, but it was especially convenient (politically speaking) because they thought the army would find many chemical and biological weapons (not nuclear) that could be used to demagogue anyone who opposed them in the post-9/11 world. It didn’t really work out that way, but that was the plan, I think. Biden sums it up very well:

The fundamental flaw --- forget flaw, the fundamental difference between Joe Biden, John Kerry on the one hand, and the neoconservatives on the other is that they genuinely . . . do not believe it is possible for a sophisticated international criminal network that will rain terror upon a country, that has the potential to kill 3,000 or more people in a country, can exist without the sponsorship of a nation-state. They really truly believe --- and this was the Axis of Evil speech --- if you were able to decapitate the regimes in Iraq, Iran, North Korea, you would in fact dry up the tentacles of terror. I think that is fundamentally flawed reasoning.
. . .

But are [nations], if you eliminate them, the life blood that flows to these organizations? It is much more important for us to be able to go at their sources of funding. It's more like organized crime. They love this thing about, you know, it's not law enforcement. . . . But it is basically gumshoe work. It is intelligence; it is cutting off the source of their supply of money. It is infiltrating their organizations beyond bombing their training bases. That's a good thing. They bomb their training camps --- that’s a good thing. We did a good thing in getting rid of Saddam. That son-of-a-bitch was a butcher. But it had nothing to do with our central problem, terror. And the reason why it's so dangerous what they're doing, their approach --- it's not intentional --- but it takes their eye off the ball.

That’s a very important insight. It’s wonderfully ironic that idiots like Andrew Sullivan demagogue people who characterize anti-terrorism as a law enforcement operation, when that’s exactly what it is. When Sullivan spews bile towards the “law enforcement” people, he’s making the same erroneous assumptions about the centrality of states. For instance, if you see the conflict with terrorism as a problem rooted in bad nation-states, then you must see the conflict as a war – and nations must therefore be invaded. But if you see it as a transnational conspiracy with private funding (much like organized crime), then invasions are actually counterproductive, especially if they enrage and radicalize private sources of wealth and individuals who become willing to use that wealth for terrorism. To classify the conflict with terror (linguistically speaking) as a “war” is simply wrong – and it confuses Americans and makes them less likely to understand the conflict. However, what Sullivan may actually be trying to do is to divide the world into those who are willing to use force, and those who aren’t. And that brings me to my second point.

Biden has an excellent discussion of the civil war within the Democratic foreign policy establishment when Yugoslavia was being debated.

In 1994, when I was pleading with the president to use force in the Balkans, Warren Christopher was adamantly opposed. The bulk of the administration except for the president was adamantly opposed. . . . I was roundly criticized by the foreign policy establishment in my party for that at the time and ironically by the Republicans. . . . So I think one of the things that has happened is that in the debate within my party, my team has won. There is no longer nor should there remain the standard for use of force that pertained from the Vietnam War until the time that we lost the election in 2000.

The bit about Vietnam is EXTREMELY important, so let me back up. I talked before about the rule/spirit dichotomy in both Christianity and liberalism. Because I’ve explained this before, I’ll just quote myself here (“And I’m quoting myself here” – any Kicking and Screaming fans out there?):

I think that, in all religions, conflicts develop between the religion’s formal rules and the animating spirit that gave rise to the rules in the first place. For example, new religions (such as Christianity) are created (or adopted on an individual level) in moments of inspiration or revelation - we feel it to be true. But the feeling (like alcohol, acid trips, and infatuation) always goes away. Religions respond by trying to formalize that initial feeling with rules and rituals. This, in a nutshell, is the history of the rise and decline of the Catholic Church. The Church’s practices were initially inspired by the feelings and emotions of the earliest followers. But over the course of many centuries, the Church added so many rules and rituals that only priests or Latin-readers could understand what the hell was going on. The Protestant movement (much like Jesus was to formal Judaism) was a rejection of the Church’s excessively formalized rules and rituals that were divorced from the spirit of the movement. Over time, these rules no longer served as a way of maintaining a connection with the initial inspiration - they became an impediment to that inspiration.

This thinking led me to distinguish between “rule-Christians” (those who value rules over Christian spiritual values of love, forgiveness and tolerance) from “spirit-Christians” (who value love, forgiveness, and tolerance over strict rules).

So here’s how that applies to foreign policy. After Vietnam, the Left became very skeptical of military force per se – and for good reasons. I’m sorry if I offend people, but Vietnam was a big mistake and we did some very bad things there, and we lost a lot of young people. So, the opposition to Vietnam was initially rooted in the humanistic desire for peace and a respect for human life (the lives of our soldiers and the lives of innocent civilians). Over time, these feelings were formalized into a rule that became “no force ever, short of an invasion.” This rule was intended to help enforce the animating principles of peace and respect for life. The problem though is that this rule, in the age of genocide and terrorism, is actually in tension with the animating principles underlying the initial rule. Sometimes, force IS necessary to stop genocide (Rwanda) and to stop terrorism (Afghanistan). This is where “spirit-liberals” are superior to “rule-liberals.” Spirit-liberals, though not fond of war, accept that force is sometimes necessary to defend the underlying principles that were defended in the 60s – respect for life and peace. Rule-liberals can’t get beyond the rule forged in Vietnam – no force, ever. And so, as Biden shows, the old rule has been discarded by the Democratic powers-that-be, and this is a good thing (in my opinion).

To me, this foreign policy seems far better than the old Democratic policy (no force, ever) and the neocon policy (force is the only thing, ever).

The third point I want to make relates to Biden’s so-called “enlightened nationalism.”

[There’s] kind of a new standard that has emerged, that I think is the combination of what I refer to as this enlightened nationalism, that we operate in our national interests in every circumstance where we can under the umbrella of international rules and the international community. But where the damage and danger is irrefutable, we reserve the right to act in our own interest or in the interest of humanity, if we have the capacity. And that is a different standard than existed for the first 27 years I was a United States senator.

Biden also explained earlier that the world needs a new standard for respecting sovereignty. Basically, a nation forfeits its sovereignty if it is committing genocide or harboring terrorists that are clearly a threat. Under this view, future speculative threats are not enough (i.e., “we’ll have to fight Saddam/Russia/China/etc. some day, so we might as well do it now”). Matt Yglesias just had an important post on the distinction between a preemptive war and a preventive war that fits in nicely with what Biden was talking about. To me, these distinctions are a function of evidence – or the epistemological confidence we have in determining whether the threat is sufficient to justify force. For example, in cases of imminent genocide or where al Qaeda camps are set up, the evidence is solid that a real threat exists. With respect to future inchoate threats, or “preventive” wars, the evidence is simply too shaky. Invading may be a good idea in the abstract, but in the real world, it's impossible to know. Everything said about Iraq could have been applied equally well to Russia in 1955. We simply can’t predict the future. Things change. Leaders die. Threats diminish. New threats emerge.

Iraq pretty much proves the point. The whole argument against going to war to stop a future, inchoate threat is that we lack the evidence to know whether it will actually become a threat. And lo and behold, what happened when we invaded Iraq? We discovered that we acted on false information and assumptions. I mean, that’s the whole friggin’ reason why shouldn’t embark on these sorts of speculative missions in the first place.

There’s a lot more in the interview. If nothing else, I hope I’ve convinced you to go read it.

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One encouraging sign for Kerry is that several right-leaning independents (such as Jacob Levy, Dan Drezner, Andrew Sullivan, and Tyler Cowen) have become openly skeptical of supporting Bush. Levy in particular writes that one of the few remaining reasons he has for supporting Bush is "annoyance at various elements of the left who I'd rather not be aligned with and certainly don't want to listen to crowing." I can't tell you how many conservatives and independents have expressed similar thoughts to me. They all say something like, "I don't like Bush, but I just can't stand the Left." Even among some progressive people (especially young well-educated ones), I have detected an almost visceral hatred for the bogeyman they call the "Left," especially hippies and university professors. I know it's become easy to parrot lines about how the Left sucks, but is this hostility justified? What's so bad about the Left, anyway -- assuming it even exists? What is it about this particular fringe that riles people up? I think this is a rather fascinating question once you dig a little deeper to see what's really going on.

First, let me make it clear that I am most puzzled by the Drezner-Levy demographic (leaving aside anti-Left progressives for now). These people tend to lean right on economic and national security issues, but lean left (or are libertarian) on social issues. Despite their leanings, they have come to the conclusion that the Bush administration (not the GOP - but this particular group of individuals) is hopelessly incompetent and doesn't deserve a second term. But, because Kerry and/or the Dems are nominally aligned with the fringe on the Left, they are having a hard time leaving Bush. In short, they seem to be skeptical of Kerry because of the fringe elements within Kerry's political coalition. I'm sorry, but this seems crazy to me - for a couple of reasons.

First, THERE IS NO LEFT. At least, there's no Left with any significant political power. And even more significantly, Kerry has sent strong signals that his administration would be centrist and more aligned with the interest of the Levy-Drezner crowd. As I explained here, a presidential campaign is not about selecting an individual, but about selecting an administration - a group of individuals. Whatever Kerry's history may be, he won't be crafting economic policy - his TEAM will. Same deal on national security. It's more important to look at the people surrounding Kerry, than to Kerry himself. For example, on economics, Kerry has tapped Gene Sperling - a pro-business, deficit hawk with both feet in the Rubin camp. In the Clinton administration, Rubin and Sperling rejected the old tax-and-spend models, and created a new, but fair, pro-business deficit-reduction policy. Same deal on national security. As the Biden interview makes clear (and I'll have more to say in future posts), the Democratic hawks (Biden, Clark, etc.) have won out over the peace-always crowd (Warren Christopher) within the Democratic Party. Kerry has been surrounding himself with hawks like Holbrooke, Clarke, and Biden. Thus, on two key issues - economics and national security - there is no "Left" to be found. To me, Kerry's selections thus far suggest that he's quite serious about running a centrist administration, and one more consistent with the Levy-Drezner crowd (pro-business, willing to use force, and socially moderate).

But second, let's assume that the Left (or the fringes of the Left) actually did have some political power in a Kerry administration. What exactly is so distasteful about that fringe? Or more precisely, why is the Left's fringe less tolerable than the Right's fringe? That's the million dollar question. I'm sorry, but the Right fringe is fucking crazy, and I'm not sure why people who think like Drezner are willing to tolerate it.

I mean, what exactly does the Left fringe do that makes it soooo intolerable? The Left's extremists fight for animal rights, environmental protection, racial/gender equality, peace, a bigger welfare state, against business, against nationalism, and so on. Of course, some are militant and close-minded, but the underlying merits of their positions don't seem, well, intolerable. My biggest gripe with some of these people is that they sometimes try to enforce things too rigidly, such as offensive campus speech.

But however distateful one might find these positions, they seem to be a world away from the positions of the Right fringe. As opposed to militantly enforcing peace, or equality, or animal rights, the Right fringe is racist, xenophobic, militaristic, homophobic, and theocratic - oh yeah, and they want to do away with the social safety net that helps poor and working class people. I mean, take a quick scan of the 2000 Texas Republican Platform (via Calpundit). If the Texas Republicans took power, we could look forward to the following: the abolition of the Federal Reserve; elimination of the division between church and state; criminalization of sodomy; removal of all custody rights for homosexuals; allowing homosexuals only supervised visits with their children; abolition of Social Security; abolition of the income tax; repealing of the minimum wage law; abandonment of the UN; seizure of the Panama Canal; and abolition of agencies like the EPA, HUD, Dep't of Education, and pretty much the entire administrative branch. This is not some cult in the woods - these are the OFFICIAL positions of the Texas Republican Party.

Andrew Sullivan (though I hate to link to him) provides another example. As you may have heard, Bush recently spoke to the Southern Baptist Convention. Because I grew up Southern Baptist, I can assure you that (1) most Baptists think the convention people are completely crazy (at least my church did - and it wasn't exactly a liberal place); and (2) the point of the Convention is apparently to make Southern Baptists look as stupid and reactionary as possible - and they always succeed. Anyway, the SBC (whom Bush visited) created a commission that helped develop a website dedicated to getting evangelicals to vote. That site is called IVoteValues.com. I would urge everyone to peruse the "FastFacts" - a list of positions from the Center for Reclaiming America that IVoteValues.com approvingly links to. Here are some highlights:

HOMOSEXUALITY: Thomas Jefferson authorized legislation to penalize sodomy by castration. At the time the Constitution was ratified, [several states] implemented the death penalty for those who committed sodomy. [It also has a big caption titled "Homosexuality Costs You Plenty," and then cites the amount the government spends on AIDS research.]

TOLERANCE: Tolerance is the virtue of those who believe in nothing. Rather than stand up for what is right and wrong, the voice of tolerance says we should just let everyone be, that we'll better understand each other if we accept them as they are.

HATE CRIMES: This law decrees that it is worse to beat up a homosexual man than it is to beat up a heterosexual man. in effect, the hate crime concept creates affirmative action for victims. It is a move toward criminalizing certain types of thought and opinion. It could eventually make a federal case out of name calling or, in some cases, public advocacy of politically incorrect opinions. [Ed. note - This section was appallingly ignorant of legal principles. All crimes require proving a mental element. Hate crimes are not "criminalizing thought" anymore than assault with intent to kill is "criminalizing thought." These laws simply create additional punishment if a jury finds that you specifically intended to attack someone on the basis of some protected characteristic. Prosecutors have to establish facts above and beyond the act that show this intent. It's no different than murder. Prosecutors have to prove the act, and that you intended to murder them. This is the most ignorant argument that one can possibly raise against hate crime legislation. Under this view, every single crime is "criminalizing thought."]

And if that's not enough, you really should check out David Brock's Media Matters from time to time. He follows the right-wing press (talk-radio and Fox News especially) and reports some of their more extreme statements. It's worth reading because I would guess most readers rarely hear them. It's truly amazing what these people say. The worst is David Savage. Here's a few select quotes from him:

Because these primitives [i.e., Arabs - he is talking about all Arabs, not just terrorists] can only be treated in one way, and I don't think smallpox and a blanket is good enough incidentally. Just before -- I'm going to give you a little precursor to where I'm going. Smallpox in a blanket, which the U.S. Army gave to the Cherokee Indians on their long march to the West, was nothing compared to what I'd like to see done to these people, just so you understand that I'm not going to be too intellectual about my analysis here in terms of what I would recommend, what Doc Savage recommends as an antidote to this kind of poison coming out of the Middle East from these non-humans.

Savage on George Soros (who is Jewish):

You're a moneychanger in the temple of truths. Not only are you a money changer in the temple of truth, but you are a deceitful, backstabbing, unpatriotic traitorous bastard in my opinion. [Ed. note - "Stab in the back" was used by the Nazis to explain how the Jews caused their defeat in World War I.]

Ann Coulter: "The Democrats want Saddam back." Rush Limbaugh: "[T]he Democrats have found their keynote speaker for their convention: Saddam Hussein." And that's not even mentioning his little Abu Ghraib-fraternity hazing remarks. And while I'm on the subject of Coulter, let's not forget this little jewel-of-a-column about why we shouldn't care that Max Cleland lost three limbs in Vietnam:

[M]aybe Max Cleland should stop allowing Democrats to portray him as a war hero who lost his limbs taking enemy fire on the battlefields of Vietnam. Cleland lost three limbs in an accident during a routine noncombat mission where he was about to drink beer with friends. He saw a grenade on the ground and picked it up. He could have done that at Fort Dix. In fact, Cleland could have dropped a grenade on his foot as a National Guardsman –- or what Cleland sneeringly calls "weekend warriors." Luckily for Cleland's political career and current pomposity about Bush, he happened to do it while in Vietnam. . . . There was no bravery involved in dropping a grenade on himself with no enemy troops in sight. That could have happened in the Texas National Guard -- which Cleland denigrates while demanding his own sanctification.

I'll ask again - why exactly is the fringe of the Left so much more distasteful than the fringe of the Right? And let's not forget one important point - the Left fringe is confined to Greenpeace meetings in Portland. The Right fringe talks to Rove every single day, and has substantial media outlets. Rush Limbaugh is on the taxpayer-funded American Forces Radio for God's sake. In other words, the Right fringe has real power within the Republican Party. They helped push the gay marriage amendment, and they helped prevent stem cell research - which is just outrageous on so many levels.

Help me out. Help me understand why people who would otherwise abandon Bush remain with him because of the fringe on the Left. And again, the question is not why you hate the Left (although I would welcome an answer to that as well). The precise question is why you hate the Left fringe more than the Right fringe. If you're voting primarily against one fringe or the other, why is the Right better than the Left?

Again, I'm not attributing to these characteristics to conservatives or Republicans. And in general, I hate the logically-suspect attempt to discredit someone by appealing to the extremist elements within their coalition. My point is to challenge those (especially right-leaning independents) who claim that the "Left" is awful, even though the Left's fringe is far better than the Right's AND the Right's fringe has real political and media power. In short, I geniunely don't understand the hostility to the Left given the utter insanity on the Right.

I had originally planned on taking a stab at why people so despise the Left at the same time they seem to tolerate or conveniently ignore the extremes on the Right. But, the post is too long already. I'll have more on my guesses as to the "why" later on today.

[Update: It's been brought to my attention that I may have misrepresented Levy's views. First, even if I did, the larger point remains - even if it can't be applied to this particular individual. But second, I don't think I misrepresented him so much as I left some other things out. Again, if the post were primarily about diagnosing Levy and Drezner as individuals, I would have added more detail - but I was making a general point and merely using them as an introduction or heuristic. Anyway, if you go back and read Levy's post, he made it clear that he has no affinity with the social conservatives on the right. He also said at the end that his dislike of Kerry and the Left fringe "aren't sufficient reasons to outweigh the general inability to govern competently or to make good policy judgments." That's a very important point - and one that reasonable conservatives might reflect upon. Anyway, I do apologize if this rises to mispresentation. I remain a big fan of both Levy and Volokh, and sometimes Barnett - in fact, I wish the Volokh Conspiracy could be whittled down to these three.]

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I wanted to direct everyone's attention to Josh Marshall's interview with Joe Biden on foreign policy. It's noteworthy for several reasons, and I'm going to have several things to say about the interview. In the meantime, I would encourage everyone to read it because (1) it's good; (2) my future posts on the subject are going to assume you've read it.

Also, for those who (like me) are disappointed about Billmon's time off from blogging, I have an answer - the archives. Pick any month from Whiskey Bar and just start reading. They're great. In particular, I found this post relating to Dean and fundraising which ties in nicely to my post below on the Daily Kos fundraising. Billmon summarizes a point from Judis and Teixeira's The Emerging Democratic Majority that I wish I had read before writing the post below. Basically, they're arguing that economic classes in America are arranged in a pyramid formation like this (image from Billmon):




Judis and Teixeira explain that the Republicans are strong with the top 1% (which is the primary source of their money) and with the middle layer - which is blue-collar or, as Billmon says, "semi-white collar." Democrats, by contrast, are strong at the bottom and are strong with so-called knowledge workers (the well-educated Starbucks class). David Brooks has written about this divide, which he classifies as a battle between knowledge workers (e.g., teachers, lawyers, journalists, etc.) and managers. According to Judis and Teixeira, the Democratic parts of this pyramid are growing faster than the Republican portions (which is why the culture wars are so vitally important to Republicans).

As Billmon explains, the problem is that the Democrats had not, prior to Dean, been able to tap the financial resources of the knowledge workers. Because of that, Dems have always been at a huge financial disadvantage, which forced them to grovel to Hollywood. The bottom of the pyramid simply doesn't have money, and the knowledge workers were as yet unorganized.

So, Billmon presents a somewhat better articulation of the point I was trying to make below (before I had read his post). The true genius of the Trippi/Dean/Kos efforts is that they are tapping the knowledge workers' wallets in a systematic way. And as Kerry's prodigious fundraising has shown, the Dems are at far less of a disadvantage with the knowledge workers chipping in. Because the knowledge workers are essentially in front of the Internet all day, it makes sense why Republicans are having trouble using the same methods to tap the small business/blue collar types in the middle. These people simply aren't as wired as the knowledge workers.

Yet another reason why the narrow-minded Republicanism espoused by Rove is doomed to fail over the long-term. To be viable, the Republicans have to expand beyond their current base.

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I'm outta here. It's possible, but doubtful, that I'll be posting anything until Sunday night (possibly Monday if I go camping or something - I'll let you know). In the meantime, I hope that everyone will take a moment this weekend and reflect on an American hero . . . the King:

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On the day that the Dean campaign collapsed (the day . . . the muuuuusic died), I wrote a post on what I considered to be his true legacy. I would encourage everyone to go back and read that post, but here are some excerpts:

I think the real legacy of the Dean campaign will be that it provided a roadmap that we can use to free ourselves from the tyranny of the centralized two-party system, which has literally choked public discourse and alienated half of the American voters. In other words, Dean showed us how we could smash the heads of the two beasts - the RNC and DNC, each of whom's existence depends (ironically) on the continued viability of the other one.

. . .

Dean's single greatest accomplishment was that he showed us how to restore structural freedom. Dean raised his money through small donations from hundreds of thousands of people. Because his Internet fund-raising bypassed the DNC's donor lists, the DNC couldn't exert leverage over him. He was structurally free because he didn't need their money or their donor lists. He could get money his own way. And if Dean were elected, and if he had raised 2 million $100 donations from ordinary Americans, he could tell every single lobbyist to [buzz] off. He could tell the DNC to [buzz] off as well. He would be free. That's the Dean legacy.

To create a new progressive coalition, you need more than new ideas. Sadly, you gotta have money too. Politics cannot be changed until the underlying fundraising infrastructures are changed as well. In other words, politicians and candidates will continue to be slavishly devoted to the party leadership and certain special interests as long as they depend on that leadership (or the interests) for assistance in fundraising and high-level campaign visits. The candidates lack the structural freedom (i.e., financial freedom) to take a stand against those forces.

Dean showed us the way out. If it did nothing else, his campaign created a new, grass-roots, fundraising infrastructure via the Internet, and in doing so, his campaign was more like a third party than a true Democratic campaign. What’s fascinating (and what will surely be studied as a historical milestone) is that the progressive blogosphere has picked up the crumpled roadmap from the corpse of the Dean campaign and is starting to follow it. Atrios, for example, has raised nearly a quarter of a million dollars for Kerry. Kos (at last count) has raised roughly $125,000 for eight congressional candidates in a little over a month. While I think that Atrios’s fundraising is impressive, I think Kos’s is nothing short of revolutionary. Let me explain why.

Politicians are generally reflections of two groups of people: (1) the ones who vote for them; and (2) the ones who give them money. The more votes that a given group provides a candidate, the more that candidate will reflect the interests of that group. Similarly, the more money a given group gives a candidate, the more that candidate will reflect the interests of that group. For example, old people vote and young people don’t – that’s why a huge prescription drug benefit got passed along with a massive tax-shift (not a tax cut) to future generations. Similarly, the Republican Party works for legislation favoring evangelicals and corporate interests (a strange duo) because evangelicals vote in huge numbers and corporate interests give a boatload of money to the party – and to Bush. The Democratic Party, by contrast, has been decidedly unprogressive lately (see, e.g., any time in 2002) because progressives don’t vote and don’t give money.

So, if there is such a thing as a Starbucks demographic – well-educated, secular, knowledge-workers who are socially liberal, environmentally-conscious, but business-friendly – I’m not sure it feels comfortable in either party. It certainly doesn’t feel comfortable in the Republican Party. But the national Democratic Party is too conservative on many important social issues, and too protectionist on certain economic ones (Starbucks types like free trade because they are the people who benefit from it - or at least aren't hurt by it). For the first time, though, Dean provided an infrastructure in which these people could “meet up” and contribute funds. In short, Dean organized the Starbucks Party (however briefly), just as evangelical leaders in the 80s and 90s effectively organized and mobilized disillusioned evangelicals. And if he had been elected, so-called “Starbucks values” would have been reflected in his presidency.

But getting back to Kos, I think that his fundraising efforts have been revolutionary because he’s changing the fundraising infrastructure for congressional elections – and of course, changing the financial infrastructure is a precondition to changing politics. In other words, he’s forging a road between the wallets of the disillusioned, though well-to-do, Starbucks professionals and congressional candidates all across the country. Atrios’s fundraising has certainly been impressive, but it’s only $250,000 out of the nearly $175 million that Kerry has raised. When you give $100 to a congressional campaign (especially a House seat), though, that $100 goes a lot further than giving $100 to Kerry would (and exerts more leverage on the candidate). In addition, you’ve got to remember that controlling the legislative branch is far more important than controlling the presidency. I mean, just compare Article I to Article II (of the Constitution). Congress controls the money, the hearings, the committees, and the agenda. Just ask Clinton, or Newt (Newt was also revolutionary, he just overplayed his hand).

Anyway, if Kos succeeds, then his six House candidates will get national party funding, which means they will be competitive. If a few ultimately win, they will remember the early help, which was supplied by the progressive blogosphere. Accordingly, Kos may have taken one of the first small steps in creating a permanent financial infrastructure that will result in a legislature that more strongly reflects progressive values. For example, Kos has had major success raising funds for House candidate Stan Matsunaka, who is running against the sponsor of the federal “marriage” amendment. It’s easy to see how this works. If Matsunaka wins, other candidates will be wary of pushing anti-gay legislation. But even if Matsunaka loses, if Kos helps make it close, then (from an economic perspective) that increases the risk to legislators who push anti-gay legislation. So in this very small way, the legislature would become more reflective of Starbucks values (I really would prefer a different name for this demographic if anyone can think of one). It's no different than what the conservative Club for Growth was trying to do by electing Toomey. They were trying to get congressional Republicans to better reflect their values. Conservatives have been playing this game quite well for years - progressives have not.

From what I can tell, Howard Dean is attempting to do the same thing with his Democracy for America group, except that he’s concentrating on state-level races (where $100 would go even further). This is wise because today's state politicians are tomorrow's national politicians.

Obviously, all of these movements are still in their infancy. But you can see the revolutionary potential. There are literally millions of disillusioned professionals and students who are a part of the new economy, who surf the Internet obsessively, but who are quite liberal on social issues. These people have no significant voice in American government. Now, however, Kos has provided them an infrastructure that can distribute their contributions in a way that will maximize their influence.

I should add that the Kos/Dean roadmap is not limited to empowering the Starbucks Party. It has even greater promise for our democracy as a whole. As more and more people go online, there is a greater possibility that campaign funds could consist entirely of small donations from millions of people. It's conceivable in the Internet age that a candidate could refuse any contribution over $100 and still be viable. That would mean that politicians would no longer be slaves to corporate money, party leaders, special interests, lobbyists, and other influence peddlars. Fund-raising would be far more "little-d" democratic, and thus the legislation would ultimately reflect that. We would have more legislation for the general good (and the middle classes) and less for particular corporate lobbies. And that would be yet another reason why the Internet is the most important democratizing invention since the printing press.

In short, it would be Jacksonianism for the Internet Age. Marx claimed that no political change could come until the workers took control of the means of production. To use that as an analogy, Kos may be seizing the means of producing campaign contributions from those who shouldn’t have it and giving it to the people who should.

The Revolutionary Daily Kos – Andrew Jackson for the 21st century.




[Mobs stormed the White House to celebrate Jackson's inauguration.]

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Amen to this column. Let's hope they keep Ehrenreich on, and get rid of Friedman (and Safire, Herbert, Dowd, Krugman, Brooks - I would only keep Kristof). I read a Harper's article written by Thomas Frank (which was expanded into a book - which Ehrenreich mentions), and it's right on. Ignoring the whole WMD-al Qaeda statements, the most fundamental deception perpetuated by the leaders of GOP Inc. is that they are fighting against a wealthy elite out of touch with the common man. As Ehrenreich explains:

Yes, there are some genuinely rich folks on the left — Barbra Streisand, Arianna Huffington, George Soros — and for all I know, some of them are secret consumers of French chardonnays and loathers of televised wrestling. But the left I encounter on my treks across the nation is heavy on hotel housekeepers, community college students, laid-off steelworkers and underpaid schoolteachers.

Just to make it clear, according to last summer's DLC poll (i.e., the "anybody but Dean" memo), white people who make above $150,000 vote are 75% Republican and 9% Democrat.

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It’s been a good week for rule of law and supreme courts all across the world. Yesterday, Israel’s Supreme Court ruled that part of the security wall must be rerouted because the current route violated the rights of local Palestinians. The Court explained, “Only a separation route based on the path of law will lead the state to the security so yearned for.” Haaretz (a good Israeli newspaper) explains:

The current route, [the court] wrote, will make access to residents' agricultural lands almost impossible, thereby sabotaging farmers' livelihoods; it will also interfere with residents' freedom of movement and access to nearby cities, including access to medical care, schools and universities. It "injures the local inhabitants in a severe and acute way, while violating their rights under humanitarian international law," the justices wrote.

I’m no expert on Israeli law, but I do want to argue that the Court’s decision can be justified by a principle in American law – so-called “process theory” – that I think should be at the cornerstone of any new progressive jurisprudence. Before I explain what I mean by “process theory” (for those who don’t know), let me first explain the problems it addresses.

The great bogeyman of post-Borkian conservative jurisprudence has been judicial activism (it actually goes back a lot further than Bork, but Bork articulated the fear powerfully). I’m sure even non-lawyers have heard the regular rants against “activist judges.” The response to this perceived activism has been a return to formalism and/or textualism. Scalia, for example, is a strong formalist.

To me, formal, bright-line rules are a sign of distrust. The Warren Court, for instance, adopted bright-line rules (Miranda, exclusionary rule) largely because they distrusted local police and state governments (race loomed heavy on their mind). Scalia, by contrast, has adopted his own set of formal, bright-line rules because he distrusts “activist” judges. Thus, the rise of Borkian/Scalia formalism can be seen as a manifestation of conservatives’ distrust of the judiciary. Under their view, if legislative statutes seem stupid, tough luck. The legislature must change them. If the Constitution seems unfair, tough luck. People must amend it. All in all, it’s a pretty coherent theory, regardless of what one may think about it.

Here’s the problem though (at least with respect to statutes). Formalism and textualism assume that the text of the statute was validly enacted. In other words, they assume legislative text was produced by a legitimate process. That’s the foundation upon which their entire edifice rests. But that’s not always true. For example, people like Bork have suggested that there’s nothing unconstitutional about the old Southern literacy tests or poll taxes (as in requirements for voting). The Constitution doesn’t clearly ban them, and so if they are to be changed, it’s the legislature’s job to do so. Here’s the problem with that. Laws like the literacy test were introduced to exclude blacks from voting. So, it’s a bit problematic to say that we should have left this issue to the legislature when blacks couldn’t even vote for legislators in the first place. The point here is that the legislative text was adopted under an inherently flawed process (one that excluded blacks).

That’s what I mean by “process theory.” Courts should be more activist in areas where they’re acting either to restore the voting process or in the interests of those excluded from the process. [Ed. note – For now, I’m avoiding advocating activism for a given group that is a minority because that opens a huge can of worms. Process theory works best when a given group is excluded altogether from the political process - e.g., disenfranchised felons.] Because literacy tests were both the product and creator of a flawed legislature, courts had to step in to restore the democratic process. Legal literacy tests thus shattered the theoretical foundation of textualism – which is, quite simply, valid text.

The Israel Supreme Court’s decision is another example of a situation where judicial activism was most needed. Palestinians in the occupied territories can’t vote – or at least, they can’t vote for the people who make the decisions that control their lives, which is the Israeli government. As such, there is literally no way that their interests will be considered by legislators if those interests run counter to people who can vote. For example, let’s say that a given policy (like a wall) hurts 30,000 Palestinians and helps 1,000 Israeli settlers. Let’s also assume that the 30,000 Palestinians can’t vote, and the 1,000 settlers can. Any rational legislator who depends on votes for his or her political existence has no incentive at all to consider the plight of the Palestinians. Thus, it’s foolish to expect rational legislators to act against their electoral self-interest and protect the Palestinian olive farmers.

The exact same situation existed in the Jim Crow South. I’m not trying to demagogue Israel or anything – it’s really just a matter of economics. Legislators seek re-election. Re-election gives them incentives to pursue the will of the constituents and not abuse power. White legislators in the South had no rational incentive to help black people because black people couldn’t vote. In fact, things didn’t really start getting better for blacks until they started voting – first in the urban North following the Great Migrations, and then in the South after the Voting Rights Act (which was much more important than the 1964 Civil Rights Act, in my opinion).

The same is true in Israel. As long as Palestinians in the occupied territories can’t vote, it’s foolish to think that the Israeli government will be responsive to their interests (when and if those interests run counter to Israelis who can vote).

In short, the problem isn’t activist judges – the problem is that judges pick stupid times to be activist. Process theory has its flaws (though I think it’s time to reconsider and revive it), and I don’t want to get into an extended defense of it today. My point for now was just to show how process theory partially justifies the Israeli Court’s decision. I will, however, soon be presenting a larger post detailing just where I think process theory should be applied in America law.

And finally, in a sign there may yet be hope for civilization, I leave with you this passage:

There was also glee in the adjoining Israel town of Mevasseret Zion, whose Israeli residents had joined the Palestinians in arguing that a fence rising between them would actually increase animosity and thereby reduce the sense of safety. Just last week, children from the two towns joined to fly kites as sign of the friendly relationship between them that would be damaged by the construction of too invasive a fence.