Legal Fiction

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Genesis 3:1 - Now the serpent was more subtil than any beast of the field which the Lord God had made . . .
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To: American Progressives
From: Karl Rove
Re: Stop Being Stupid

Never in the history of the American republic has there been a group of people as smart as you and as politically stupid at the same time. You read your NY Times and hope that the Great Rational Pumpkin will come down and save your rotting party. This blogger Publius is the dumbest of the dumb. Fortunately, I’m taking over for him today and will tell you how to win. But the truth won’t be pretty.

First of all, you just don’t get it – people love Bush. You have to understand that. They wear “W the President” caps and T-shirts without irony. You don’t get it because you don’t listen to people in Red America when they talk. Whenever people talk about Bush and the GOP (or Kerry and the Dems for that matter), they talk about them emotionally and viscerally, and not logically. They perceive the outside world in terms of emotional stories or narratives. When they justify their support of Bush, they invoke emotional “I-just-like-him” arguments. When they justify Iraq, they fall back on the emotions of 9/11. Conversely, when they discuss the Democrats, you can tell that they dislike them viscerally – whether because of their values or their belief that Democrats only believe in taking money from the working man and giving it to someone on welfare.

Stupid progressives. You’re going around offering new ideas and new policies. Don’t you know that emotion trumps logic? As Publius discussed way back in February, appeals to logic constitute only one of the three forms of classical rhetoric (or tools of persuasion). And in my opinion, it’s the least effective. To really persuade people, you have to persuade them emotionally – logic be damned. To win, you have to make people like you. If they dislike you or your argument on an emotional level, you will never persuade them to support you. No one understands this principle better than me. My entire campaign was about making people dislike Kerry on an emotional level – with healthy doses of fear and strategic lies designed to cultivate this emotional dislike (“global test,” Swift Boat Vets – that’s all me).

Stupid progressives – you’ve been approaching the whole question of what the Dems should do in the worst possible way. That’s because you are, at heart, rationalists. That’s your “narrative frame” through which you interpret the world. You think you could win if you come up with more logically powerful arguments. Or if you could make progressive policies more palatable to the religious. Or if Howard Dean were DNC Chair. And on and on. To be blunt, that’s a bunch of crap. It’s pretty simple. To win, you have to make people despise your opponent. We are living in a Karl Rove world, and you need to become a Karl Rove girl.

In short, the Democrats need to learn how to make more people HATE the GOP on a deep emotional level. One of my most effective strategies to achieve this goal is what I like to call “demonizing the margins.” The idea is to take the marginal elements of the other side’s coalition, demonize them, and then tie them around the neck of the more centrist candidate. Or better yet, pound them again and again with the demonized margins in distorted TV ads. Personally, I prefer to demonize gays, fringe leftists like Michael Moore, and caricatures from the 1960s and then link them to Democratic candidates. And I’ve done it with great success. You people should learn from me. You can’t beat me, so join me. Try the apple. Aren't you tired of losing on the high road?

Do you people not see that the GOP has some truly scary freakazoid winguts in its coalition? And unlike the extreme leftists who have absolutely zero political power in the Democratic Party, the wingnuts have a great deal of power within our party. So why not exploit them? Why not demonize them relentlessly and then link them to the national party? You’re getting everything wrong. You think you need to reach out and be nicer and make yourself more palatable. No – you need to do the opposite. You need to get meaner and stop reaching out. Your goal should be to make more people viscerally despise Republicans because they are the party of (1) scary theocrats and racists; and (2) “big corporations.”

Your broad strategy should be to kill the moderates. With the exception of Florida, the Dems should abandon the Mountains/Great Plains and the South (for now), and focus on chasing blue state Republicans out of the party. To do this, you need a more national strategy. You should also try to position yourselves to capitalize on the long-term demographic changes that will eventually make the Southwest and parts of the South (VA, NC, and yes, TX) blue in the years to come (increased education levels; increased secularization in urban areas; and increased levels of minorities).

Essentially, you need to chase people like Christopher Shays out of Congress by linking him with the demonized margins of the GOP. Here are a few suggestions about how to do that.

Wedge Amendments

Conservatives have long played the game of proposing constitutional amendments for the sole purpose of creating a wedge on social issues. Why not do the same thing? For example, someone should introduce a constitutional amendment banning any display (representation, etc.) of the Confederate flag in any modern state flag (see Mississippi’s here). When it fails, run about two zillion campaign ads in Shays’s district showing him shaking hands with some Mississippi Representative who voted against it. Superimpose a Confederate flag in the background. Appeal to people on a gut level. Use the dark side of the force.

While you’re at it, propose an amendment banning abortion just to get everyone’s votes on the table. According to this poll (via Southern Appeal), Americans support a pro-Roe Justice by nearly 2-to-1 (which is why I made Bush speak in code during the debate). The amendment would clearly fail (just like the flag-burning one always does), but it would get everyone on record. Then, Dems could use the vote as a campaign tactic in Blue America and use it mercilessly. Make people in the Blue states afraid and resentful of the GOP. Use fear and resentment of the theocrats. In short, stop worrying and learn to love Goebbels. I did – and I dictate domestic policy for the free world while you read your stupid blogs and whine impotently.

You wouldn’t even have to use amendments. People could propose laws requiring that evolution be removed from the nation’s schools. Laws like these wouldn’t pass, but that wouldn’t be the point. The point would be to expose vulnerable House Republicans on two fronts. On the one hand, voting for choice or against evolution would expose them to a wingnut primary challenger (who would be less likely to win in Purple and Blue states if he or she won). On the other hand, voting the other way would expose the candidate to defeat in the general election. It would also make the party look stupid for having so many people vote to remove evolution and threaten our children's ability to get biological research jobs.

Publicize the Wackos

Wingnuts like Coulter, Limbaugh, Hannity, Dobson, and Falwell say ridiculous things nearly every day. Start using them. Use them the same way that Matt Drudge used Teresa Heinz Kerry. Follow the trail that Media Matters has blazed. Pull some egregious quotes and then challenge moderate Republicans to denounce them. Better yet, just run the ad using the quote and link them with people like Shays even if he does denounce it. Say “the party of Falwell and Shays” every damn day. Find a picture where they’re in the same room – or just create one and release it to the blogs (it will be tougher without Glenn Reynolds on your side, but it will be worth the effort).

To get a sense of how this would work, let’s take the good Rev. Falwell. He was on Meet the Press this weekend trying to explain his statement that gay people helped cause 9/11 by invoking the wrath of God (via the Progress Report):

I do believe, as Ben Franklin said, that God rules in the affairs of men and of nations. I believe that when God blesses a nation, as he's blessed America for a lot of reasons, things happen that don't happen other places. I believe when we defy the Lord, I think we pay a price for it.

I’m sorry, but that guy is screaming to be put on some TV ads. Shine the light in the shadows. If that’s not good enough, check out one of his op-eds entitled “God is Pro-War” (again via the Progress Report).

The same principle could work in the economic sphere in areas less freaked out by Falwell (e.g., Ohio and the Midwest more generally). In places like this, incorporate the suggestions of Thomas Frank – unleash some angry populism. Democrats should demagogue the hell out of privatizing Social Security, outsourcing, flat taxes, drug importation, and national sales taxes. Class warfare baby – again and again – every single day. Make 'em hate the rich. Make stuff up if you have to. For God’s sake, our party just changed the rules to allow a leader who has been indicted to remain in power.

It’s all pretty simple. You need a likeable CEO-like candidate on the top, coupled with a ruthless coordinated campaign of “demonizing the margins” beneath the surface. Say it again and again - “the party of Shays and DeLay.” Make those Connecticut WASPs hate the other side – they’re human too. They’re just as susceptible to base emotional appeals as anyone else. Unfairly exploit the wings to destroy the moderate Republicans, just as Republicans unfairly exploit the wings to destroy Democrats across the South and elsewhere. Make it personal. Dig up dirt. Lie. Distort. It’s how you win. I did it. The apple is shiny. Eat it. It’s good. Ye shall not surely die.

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In the weeks after the election, my biggest fear was that there was no one left to stop the horrible parade of legislation to come. After all, Bush won decisively. The GOP gained seats in the House and Senate. Congressional Democrats, whose backbones were weak to begin with, would be even more cowardly than before. In short, I feared there were no obstacles left. But after reading last week’s column by David Brooks, I realized I had forgotten about one very important obstacle – James Madison. More precisely, I had forgotten about Madison’s theory of the large republic. This theory – and not the pathetic Democratic Party – represents our only hope of stopping horrible legislation from getting enacted over the next two years.

Essentially, Brooks argued that Bush’s greatest challenge will be maintaining unity within the GOP now that the election is over.

Forget the Democrats. Bush's biggest problem over the next few years will be keeping his Republican majority together. . . . Three dynamics are going to erode G.O.P. discipline. First, there is a general sense in Congress that it is time to equalize the power relationship between the branches of government. . . . Second, many Republicans feel they sacrificed so the president could win this year, but the season of sacrifice is over. . . . Third, there are important disagreements within the G.O.P. on every big issue on the horizon. There are disagreements on immigration, education, tax reform and the (vaguely defined) "ownership society."

I hope he’s right. If he is, then Madison’s genius will again be affirmed. Let me explain.

When Madison and others were arguing in favor of the large democratic republic now known as the U.S. of A., the conventional wisdom was not on their side. The prevailing view was that, in order to succeed, a republic had to be small and largely homogenous because “factions” would inevitably develop. The fear was either that diverse factions in a large republic would make it unstable, or that one faction would seize power and oppress the minority (or even the majority). The larger the republic became, the more likely it would be that these problems would arise - or so everyone thought.

In the Federalist Papers (#10), Madison – developing an idea of empiricist David Hume (one of my heroes) – turned that wisdom on its head. He argued that the best way to preserve stability and prevent tyranny of a majority or minority faction was to increase the size of the republic. This is an important contribution to political thought. In fact, our Constitution only makes sense if it is correct. Madison's argument was that by increasing the size of the country, you increase the diversity of interests and factions, which in turn makes it much more difficult for any one faction to seize power or act against the public interest. In other words, the bigger your group gets, the harder it becomes for any one faction to control it – and given the history of mankind, that's a good thing. Here’s Madison in his own words:

The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression. Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other. Besides other impediments, it may be remarked that, where there is a consciousness of unjust or dishonorable purposes, communication is always checked by distrust in proportion to the number whose concurrence is necessary.

What’s really cool is that you can clearly see the influence of Newtonian physics (and Enlightenment rationalism more generally) at play in Federalist #10. The various factions are like vectors that will cancel each other out or push the governmental body towards the common good (or at least away from corruption and tyranny). It’s all very logical. On an aside, whenever you hear people say anything about the Founders and religion, keep in mind that the success of their document depended upon their complete embrace of secular rationalism.

Understanding the logic of Federalist #10 will help you understand why Brooks is bordering on the profound when he says, “[t]he president is going to find himself confronting a paradox: the bigger G.O.P. majorities will make it harder to establish one-party rule.” That has to be true, almost as a matter of logic. The larger the GOP becomes, the more its internal tensions will bubble to the surface given the size and diversity of our country. Just look at the various "factions" within the GOP House Delegation. You’ve got a substantial number of certifiable – though generally principled – religious wackos. You’ve got another set of big-government whores who have no principles (e.g., DeLay). You’ve got another set of principled deficit hawks. You’ve got another set of moderates from the Northeast and West Coast who have a lot to lose if the House moves too far right. With the Democrats becoming less of a threat, these various groups of people have less incentive to cooperate with each other – especially on issues that they don’t believe in. For example, absent the election, Bush would never have gotten that Medicare bill through.

If Madison's "vector theory" is correct, then any move to the left or the right by the House (or the other branches) will cost the GOP votes. People like Shays are not going to go along with the Texas theocrats. And the Texas theocrats aren’t going to be in the mood to cooperate with Shays.

To be sure, there’s zero chance of anything progressive happening over the next two years. The best we can hope for is gridlock. But if Brooks is right, and if the leverage exerted by centralized party leadership hasn’t yet destroyed our constitutional design, then there’s some hope that the next two years won’t be disastrous – at least with respect to what comes out of Congress.

What is more likely to be disastrous is the stuff coming out of the unchecked bowels of the executive branch. Every structural protection that we have with respect to Congress is missing with respect to the executive branch. And that’s even before you factor in Bush’s bold Putinization strategy. Given the absence of "protective vectors," my biggest fears revolve around the potential actions (or non-actions) of the Pentagon, CIA, and the administrative agencies more generally (especially in the environmental arena). And this is just one of the many reasons why the country as a whole needs to return as much power as possible to the legislative branch and rein in an executive branch that has gotten far too big for its britches.

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I think a lot of people are misunderstanding the point of my recent post on racial polarization in the South - probably because I wasn't terribly clear. Let me try to clarify.

First, the lesson that you should NOT take from that post is that every white person (or black person) in Mississippi is a racist. The lesson you should take away is that race continues to play a dominant (and too dominant) role in Southern politics. It's an extremely important distinction.

Part of the confusion comes from my sloppy use of the concept of "post-racism" (or "post-racial") in the last post (as far as I know, no one else has used this word). As I understand it, there are two ways this concept could be applied - one is correct; one is not. The first (and incorrect) way is to deny that race continues to be a causative factor in American politics. To understand what I mean, just look at American Catholicism. One could make a strong argument that Catholicism is no longer a causative factor in American politics. What I mean is that Catholics in America no longer vote self-consciously as Catholics. According to this site (and I've heard this elsewhere), a substantial majority of Catholics support choice and overwhelmingly support stem cell research (just like Americans as a whole). That's probably not true of the clergy, but it is true of everyday Catholics. The point is that knowing someone is a Catholic tells you almost nothing about how that person will vote. It lacks predictive value.

Some people want this to be true of race as well. It's not. I hope I live to see the day where one's race provides no predictive value as to a person's political preferences. Maybe we'll get there one day. As I explained here, the rise of black Republicans like Herman Cain offers some hope (he ran in the GOP Georgia Senate primary). In a sense, Cain is the goal in that as racial progress is made, people will stop voting self-consciously (or at least exclusively) as a member of their own racial bloc.

Think of it like this. When people go to the polls they say, "I am an X, so I will vote for Y." "X" might refer to one's ethnicity, or it might refer to something else. For example, when I vote I don't think, "I am a white person, so I will vote for the candidate that supports white people." Catholics used to say, "I am a Catholic, so I will vote for the Catholic" - but that's not true anymore. Herman Cain now has the economic freedom to go to the polls and say, "I am a rich person, so I will vote for the party that helps rich people" rather than "I am a black person, so I will vote for the party that helps African-Americans." As the economic plight of blacks improves and racism subsides, I predict that blacks will stop voting exclusively for Democrats and will go the way of the "Catholic vote."

So yes, the goal is to become post-racial in terms of political preferences. But we're not there yet - and we're not even close. As the numbers I listed this week showed, people in the South vote self-consciously as "white people" and "black people." And because they do, we have more work to do.

But here's the point where people misunderstood me. To say that race determines one's vote is not necessarily to say that racism determines one's vote - even in the South. This is where my concept of "post-racism" comes in. I defined it in great detail in an earlier post. Essentially, it was a post about what a linguistic failure the term "racism" has become in 2004. The problem is that we lack the vocabulary necessary to calmly and rationally assess issues of race, politics, and culture in America today. Under the current vocabulary, there is either racism or nothing. And invoking the former ends the conversation.

Despite the numbers I listed earlier, I do think America has made great progress. To be racist is a major taboo in a public setting, and a whole generation of Americans have come of age never knowing the hate, shame, and injustice of Jim Crow. Even the 85% of whites in Mississippi who voted for Bush are not dominated by people who prefer segregation and hate black people. The problem is not so much racism, as post-racism. Here's how I defined it this summer:

The problem America faces in dealing with issues of race is no longer racism (or pure racial animus) – the problem is racial ignorance that is itself a product of the tangled history of race, economics, and discrimination in America. Because of this history (which is the source of the modern residential segregation that shields us from other races), whites only think about how certain policies affect whites. Blacks only think about how certain policies affect blacks. Latinos only think about Latinos, and so forth. This limited vision is not based out of animus (in most cases), it’s merely a logical consequence of our segregated society. If you grow up in an ethnically homogenous neighborhood and attend an ethnically homogenous school/church, you will likely seek out ethnically homogenous friends later in life, even when you’re in a multi-ethnic setting such as college or the workplace. That’s not racist, though race plays a factor. I don’t know what to call it, but for now I’ll call it “post-racism.” (Because the innocent, race-influenced views are a byproduct of the old non-innocent racism.).

Although I would encourage everyone to read the examples I offered in that earlier post, the voting patterns in the South are perfect examples of post-racism in action (although a substantial minority are undeniably racist in the old sense of the word). In states like Alabama and Mississippi, the sins of the past have split the universe into two completely different cultures that are each foreign to the other. Thus, each group (because of the past) thinks of itself self-consciously as "white" or "black." There's a team mentality. Our "team" votes for the party that their "team" does not. This may explain the troubling statistic showing an increase of Bush support among whites as the black population went up. The higher the number of blacks, the more whites might perceive of themselves as a distinct ethnic group or "team." In the past, this "team mentality" was the product of pure racial (and murderous) animus. Today, it's as much uncritical historical inertia and ignorance as it as hate.

The problem is that progressives think the entire 85% of white Mississippi is racist rather than post-racist, while conservatives view the entire 85% as completely innocent and deny the numbers of the truly racist that they know exist. The latter also tend to deny the continuing effects that past racism has had on the present. But the broader point is that race is still an extremely important factor in southern politics, even if actual racism is becoming less important.

Another great example to illustrate this point is the continuing support for the Confederate flag. The vote essentially broke down on racial lines. Looking in from the outside, the immediate conclusion is that everyone in Mississippi is a racist. To be sure, there are a lot of them there. I'm not denying that. But you must understand that it's much more complex than that. A lot of it is post-racism as well. As I explained in this summer's post, one problem of our post-racist world is that each ethnic group is completely ignorant of the other. I'm firmly convinced that if more white Mississippians understood (on a more visceral level) just how insulting and demeaning the Confederate flag was to southern blacks, they would not support it. I chalk it up more to ignorance (not dumbness, lack of awareness) than hate. These people don't understand because most of them have had almost zero contact with black people on anything but the most superficial levels throughout their entire life. Because of past racism, today's churches, schools, and neighborhoods are all segregated. This segregation gets reflected in social micro-structures such as peer groups or softball leagues. You've got to understand that when the vote for the flag comes up, a lot of these people think they're voting for Southern pride or for their ancestors - they simply don't understand and cannot empathize with the African-American experience because they're ignorant of it.

This is not to excuse the support for the Confederate symbols in the publicly-financed state flag in the least. It's abhorrent and it's a disgrace. And I'm not excusing it - but I am trying to explain it. We on the Left are often the only ones with the courage to explain the complexities of the Islamic world to militant Americans who think they're all pure evil. We go out of our way to show how economics and lack of education are often at the heart of what many call "evil." We should extend that same intellectual curiosity to other cultures we don't understand - even domestic ones.

I hope that's more clear - I wasn't accusing everyone of being a racist, but the South does need to understand the continuing relevance of race, racism, and post-racism in its politics and in its culture. To pretend race is no longer important, and to pretend there is nothing more needed to be done, is simply unacceptable. The past happened, and it has had a major effect upon modern society. We can ignore it, or we can do what's necessary to try to fix it.

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In case you're wondering, I'm travelling home for Thanksgiving. I probably will be posting some this weekend assuming my mother finally broke down and purchased a new computer. Happy Thanksgiving everyone!

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With the tip from commenter Peatey, I started taking a closer look at these CNN exit polls. They're fascinating, but depressing. Perhaps the most depressing statistic that I found was the continuing racial polarization in the South. You forget about it, but when you see numbers like these, it becomes clear that America has never fully healed from slavery, the Civil War, and the aftermath of Reconstruction. The numbers make it clear.

First, let me give you the baseline. According to the CNN exit polls, white people supported Bush 58-41 (+17), and black people supported Kerry 88-11 (+77). In the southern states though, the level of white support was dramatically higher. Here's a list of the states ranked in order of highest percentage of white people voting for Bush:

Mississippi - 85-14
Alabama - 80-19
South Carolina - 78-22
Georgia - 76-23
Louisiana - 75-24
North Carolina - 73-27
Texas - 72-16
Virginia - 68-32
Tennessee - 65-34
Kentucky - 64-35
Arkansas - 63-36
Florida - 57-42

In every state but one, the percentage of the white vote for Bush was higher than the national average. I didn't list the percentages of the black vote, but four states were slightly higher than the average (AL, AK, LA, MS). The rest were either even or slightly under.

But here's the really troubling statistic. I'm going to show the list again, but this time I'm including the percentage of voters in the state who identified themselves as African-Americans. I think you'll agree that there's a troubling pattern.

Mississippi - 85-14 (34%)
Alabama - 80-19 (25%)
South Carolina - 78-22 (30%)
Georgia - 76-23 (25%)
Louisiana - 75-24 (27%)
North Carolina - 73-27 (26%)
Texas - 72-16 (12%)
Virginia - 68-32 (21%)
Tennessee - 65-34 (12%)
Kentucky - 64-35 (8%)
Arkansas - 63-36 (15%)
Florida - 57-42 (12%)

I'm not great with statistics (maybe someone knows how to crunch the numbers?), but the trend seems clear. As the number of African-Americans goes up, so too does the level of white support for Bush.

But what's fascinating (and troubling) is that white voters in these states were as solidly Democratic just a few decades ago as they are solidly Republican today. That's a huge shift. It's not just that Mississippi isn't Democratic anymore. What's interesting is that it has shifted from one extreme to the other in a relatively short time, historically speaking.

I don't want to descend into demagoguery here, but I will put the question to others. What else but race could explain these numbers? Some will say religion. Certainly that plays some role. But African-Americans are extremely religious, especially in the South. And besides, is that enough to swing states like Mississippi that much in that short of a time period?

Whatever the reason one might offer, any plausible explanation of these numbers must account for why 85% of whites in once-solidly Democratic Mississippi supported Bush, while 90% of blacks supported Kerry. It must also account for why Republican support increases as the African-American population increases. In my opinion, the simplest answer is the probably the correct answer - it has to be race. Now that's not necessarily saying everyone is a racist, but it seems undeniable that the people in the South (especially the lower South) continue to view politics through the lens of race. But what's really depressing is that the polarization seems the highest in states where there seems to be the most interaction between whites and blacks. Nationally, it works the other way. Where people are exposed to people unlike themselves (i.e., cities), they tend to vote Democratic - and thus more like the minorities they encounter. But not in the South.

Americans would like to forget about the modern-day consequences of our nation's racial history. People would like to pretend that the past never happened. But the past is not even past. I mean, these numbers are a slap in the face for those who would prefer to ignore reality and the lingering effects of slavery and the Civil War. To people like Andrew Sullivan who like to toss the word "paleoliberal" around on issues of race, I would ask him to account for these numbers in some enlightened, post-racial way. Yes, even I have flirted with the idea at times that we are living in a post-racial world in which the old black vs. white struggles are increasingly unnecessary and conceptually suspect in a multi-ethnic society. I mean, there is some truth to that - and that's certainly where we're heading over the long-term. But I'm sorry, we're just not there yet. And I know we're not there in the South, where with the exception of Florida and Texas, it is still very much a black vs. white world. The Confederate flag is still way too relevant in modern-day elections for anyone to say that we've put the past behind us.

I really don't have any earth-shattering thoughts - maybe others will. I just wanted to share the numbers with you. To me, they stand as a stubborn contradiction to the idea that we have moved beyond the past. I'm not sure what we should do about it, but we can start by stopping to pretend that the problem doesn't exist.

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Interesting numbers.

2004 Election Results in Mississippi:

Bush 60%
Kerry 40%

2001 Vote on Whether to Keep Confederate Flag in the State Flag (Barone's Almanac of American Politics, 2002):

Pro-flag 64%
Anti-flag 36%

Population of Mississippi (U.S. Census):

White - 61%
Black - 36%

[UPDATE: Commenter Peatey directed me to the CNN exit polls. Sadly, the scars of the Civil War live on:

White Men (32% of population) - 81% Bush, 18% Kerry
White Women (33%) - 89% Bush, 10% Kerry
Non-White Men (15%) - 14% Bush, 85% Kerry
Non-White Women (20%) - 10% Bush, 89% Kerry

The past is never dead. It's not even past. - William Faulkner.

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After getting rejected by the Senate, Judge Bork went home and wrote The Tempting of America – which laid the intellectual foundation for modern conservative jurisprudence and inspired groups like the Federalist Society who now have a stranglehold over our nation’s judicial nominating process. It’s a fairly simple argument. Using the biblically evocative term “tempted,” Bork argued that because many liberal policies were not supported by a democratic majority, liberal judges decided to bypass the political process and read those policies into the Constitution instead. These policies included the right to choice and (I’m not making this up) the prohibition on the poll tax. Essentially, Bork argued that judges are thwarting the legislature and the political process to implement their (minority) political preferences. You hear some variation of this theme all the time, and most any time the term “activist judge” gets thrown around.

But what is less commonly observed is that the Federalist Society and several conservative judges (and Justices) are quietly laying the foundation for courts to thwart democratic majorities in a different sort of way. Whereas liberal judges were more “activist” in the social sphere (choice, school prayer, letting black people vote), conservative judges want to thwart many of the economic and regulatory policies enacted by legislative majorities. With the legislatively approved New Deal administrative state in its sights, conservative jurisprudence is subtly preparing a two-front attack upon it.

To help the non-lawyers, let me explain an important principle of constitutional law. Very often, a question relating to the Constitution is less about finding the correct answer than about deciding which branch of government will have the final say-so on the question. For example, courts and not Congress get the final say on whether school prayer violates the First Amendment. Legislatures do not.

To see another example, let’s recall what we learned yesterday. All congressional actions must be rooted in some grant of authority in Article I. The Constitution is silent, however, on which branch of government gets the final say-so on whether a congressional action is in fact within the enumerated powers of Article I. For instance, let’s take the Article I power to regulate interstate commerce. From the New Deal on, the courts allowed the legislature to have the final say-so on whether a given law was related to interstate commerce. Maybe the legislature was right, maybe it was wrong – but it was the final arbiter. In the 1990s, the Rehnquist Court (for the first time in over half a century) found that a congressionally enacted law did not relate to interstate commerce and was therefore unconstitutional. The Court ruled that the law was outside the Article I enumerated powers in a case called Lopez and later in a case called Morrison (whenever you hear the names Lopez or Morrison thrown around, this is what people are talking about – enumerated powers).

But here’s what was really going on. Lopez and Morrison were less about enumerated powers and more about increasing the power of the judiciary. The laws themselves were inconsequential. What really mattered was that the Court was saying, “We the Court – and not you the Congress and President – are the final arbiters of what is or isn’t within the enumerated powers.” At its essence, this is a battle over the “institutional allocation” of constitutional questions (i.e., which branch or institution gets to decide certain questions – Congress or the courts).

So here’s what’s coming – and this will be the “first front” against the New Deal’s legislatively-enacted regulatory state. If Republicans keep appointing judges, the number of laws found to be outside of the commerce power and Article I will grow. In the beginning, they will be politically appealing decisions such as striking down federal laws banning medicinal marijuana. But with the principle firmly established, the courts will move on to bigger game. Though I doubt any of them will have the guts to declare the Civil Rights Act unconstitutional (it was enacted under the commerce power), they could very well strike down the entire environmental regulatory regime. Jeffrey Rosen (via Kevin Drum) recently wrote an excellent article that outlined just how much the administrative state could be threatened.

In short, the greatest danger from a Bush Court is not the overruling of Roe v. Wade but the overruling of the post-New Deal regulatory state.

That’s 100% correct. Rosen also makes the astute observation that, just like in the political sphere, conservatives scream about social issues like abortion to distract Americans from the economic consequences of approving Republican judges. But Rosen misses an essential point. Things like the EPA and the Endangered Species Act and anti-discrimination laws and workplace protections were all legislatively approved by democratic majorities. Conservatives cannot get a political majority to overturn the Clean Air Act, so they’re systematically stocking the judiciary with judges who will. It’s exactly what Bork was talking about, except that the judges are thwarting the political process in the economic and regulatory arena as opposed to the social arena. You can see how it works – Lopez and Morrison shift the power to the judiciary to be the final arbiters. Once that principle is established, GOP judges will start using that power to strike down the regulatory state.

So that’s the first front of the battle-to-come. The second front is a revival of Lochner. This is less likely, but as I explained earlier this week, Lochner revivals are stirring. For non-lawyers, just remember what I said yesterday. The Constitution is an obstacle course of sorts. If a law gets through the Article I obstacles, it must then not violate any other part of the Constitution. What a new Lochner would do would be to establish a new obstacle in the form of a “right to economic freedom” that could not be unreasonably infringed upon.

Here’s how this would work. Currently, if you argue that a given law violates your economic freedom (or economic due process rights or equal protection rights), it is reviewed under a “rational basis” test. That’s legalese for “anything goes.” The big point here is that, since the New Deal, courts have decided that the legislature (and not judges) should have the final say-so on the wisdom of an economic law or regulation.

A new Lochner (or even a new watered-down version of Lochner) would increase the “scrutiny” applied to economic regulations. More regulations would be struck down on the grounds that they infringe upon people’s economic freedoms. But the big point, once again, is that such a move would shift power from the legislature to the judiciary. Judges, and not legislatures, would be the final arbiter of what economic laws are acceptable.

You can see where I’m going. First, judges will establish the principle that increased scrutiny should be applied to economic regulations. Then, with the principle established, they will strike economic regulations down as they see fit. If this happened, judges would be thwarting the will of the democratic majorities in order to enact their own minority political preferences.

If this is all too confusing, here’s the big point. Much of the conservative judiciary has adopted a judicial philosophy that is strikingly anti-democratic in the economic sphere. This philosophy – if enacted – would shift the power to judge economic regulations from the legislature to the judiciary. The Lopez line of cases lends itself quite well to a frontal assault on the regulatory state. More precisely, an expansion of these cases would allow judges rather than legislators to be the final arbiters of what regulations may be enacted. Another (though less likely) line of attack could come from a renewed or revived version of Lochner, which would also shift power to the judiciary at the expense of the legislature.

In short, the battle over the judiciary is a battle over “institutional allocation.” Conservatives want social issues sent back to the legislature branch, and want economic regulations removed from it. Progressives tend to do the opposite. Of course, when progressives do it, it’s called “The Temptation of America.” When conservatives do it, it’s called “restoring the Constitution to its original understanding.”

Federalist Society, heal thyself.

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I’ve often discussed my skepticism about whether legal principles exist independently of one’s personal preferences. For some, of course, principles matter. For example, I think Justice Scalia is more principled that O’Connor because his principles at least sometimes lead him to adopt views that are in tension with his political preferences. More often than not though, I think legal principles are used by those who know the language (“legalese”) to mask their political preferences (most often unconsciously). Judging is inherently political, and that’s why any assessment of potential federal judges must include an assessment of that judge’s political views. As I promised in the comments this week, I want to help non-lawyers understand this argument by using the Virginia Gay Codes as a case study.

Here’s the statute in question. What’s remarkable is that not only denies civil union rights, but arguably limits gays and lesbians’ freedom to enter into contracts with each other (which hasn’t happened since the Slave Codes were repealed).

A civil union, partnership contract or other arrangement between persons of the same sex purporting to bestow the privileges or obligations of marriage is prohibited. Any such civil union, partnership contract or other arrangement entered into by persons of the same sex in another state or jurisdiction shall be void in all respects in Virginia and any contractual rights created thereby shall be void and unenforceable.

There are several different parts of the Constitution that could potentially invalidate this statute. But before I get into that, let me give the non-lawyers a brief lesson on constitutional law – it’s important to understand how this stuff works. First, it’s important to distinguish between different sections of the Constitution. Perhaps the most important section is “Article I.” This Article deals with the legislative branch (i.e., Congress) and defines what Congress may do, what Congress may not do, and what states may not do. In theory, every single law passed must be traced back to some textual authority (or “enumerated power”) in Article I. Since the New Deal, the power to regulate interstate commerce (a power within Article I) has been the textual foundation for most of Congress’s actions under the theory that almost everything affects the economy (or “commerce”) in some way.

Another part of Article I limits the powers of state governments. There’s a laundry list of things that states cannot do, such as grant titles of nobility and impair the obligation of contracts (more on that in a minute).

So consider Article I as an obstacle course of sorts. For Congress to pass a law, it must first be related to some enumerated power. If it passes that obstacle, then it must not be prohibited by some other part of Article I. If it passes that obstacle, then the Article I requirements are met. The law could still be found unconstitutional, but under some other part of the Constitution. The same obstacle course exists for state legislation. States aren’t limited by the enumerated powers like Congress is, but any state legislation must not be prohibited by Article I.

For now, let’s assume that the state legislation passes the Article I obstacle course. To be constitutional, the state legislation must also not violate a right guaranteed by the various amendments (Bill of Rights, right to equal protection, etc.). Until the Civil War, the Bill of Rights (right to free speech, etc.) only applied to the federal government. States could establish religions or limit political speech if they wanted. After the Civil War, Congress ratified the 14th Amendment, which among other things, guaranteed various rights that state legislation could not infringe upon (right to equal protection, due process, and privileges and immunities). It’s hard to understand just how radical this notion was in 1868. Had the Confederate states not been essentially excluded or forced to ratify it at the barrel of a gun, it wouldn’t have passed.

But anyway, remember the obstacle course. Any state legislation must not be banned by Article I, and must not infringe upon some right protected in the 14th Amendment (or any amendment for that matter). With that in mind, there are at least three different “obstacles” that could derail the Virginia Gay Codes. The first is within Article I - the prohibition on impairing the obligation of contract. The second and third are within the Fourteenth Amendment – the right to equal protection and the right to due process. Here’s my point – striking them down (or upholding them) under any of these provisions is simply a matter of subjective political preferences.

Let’s look at Article I first. The prohibition on impairing the obligation of contracts was a pro-capital measure intended to prevent debtor relief laws from being passed. Although it hasn’t been completely read out of the Constitution, courts have been extremely deferential to the legislature in the realm of contract law. For example, to be unconstitutional, the law must first be found to impair a contract. If it does, a court will still uphold the law if it has a “significant and legitimate public purpose.” This is legalese for “anything goes” – it’s an extremely deferential position. Anyway, here’s the point – the assessment of the law’s constitutionality cannot be separated from one’s subjective view of homosexuality. If you think homosexuality is bad, you might find the Virginia Gay Codes to serve a “legitimate public purpose.” If you don’t, you’ll find that it doesn’t and you’ll strike the law down under Article I. But who the hell knows what a “legitimate” purpose is. Even though any judicial opinion on this issue will be dressed up in legalese, it’s essentially a subjective values judgment.

Let’s move on. The next “obstacle” is the equal protection clause. The immediate reaction is “Hey, it’s treats gay people one way and straight people another way – that’s not equal.” It’s not that easy. Legislation treats people differently all the time. For example, old people are treated differently than young people in terms of Medicare rights. Disabled people are treated differently than non-disabled people. People who make $100,000 a year are treated differently from those who make $50,000. And so on. State governments treat people differently all the time – and that’s a good thing. To violate equal protection, a law has to treat people differently in some particular way that is prohibited. And that’s why the equal protection is such a conceptual mess. It’s damn near impossible to develop a coherent principled way to divide “good” inequality (e.g., Medicare benefits) from “bad” inequality (e.g., segregation). Racial discrimination is the easiest, but after that, it gets really tough.

The point is that once you get beyond race, the decision to deem a particular kind of inequality as “bad” and therefore subject to the equal protection clause is again a subjective values judgment. The decision to declare discrimination against gays and lesbians as “bad” inequality (or “good” inequality for that matter) isn’t really based on anything but one’s subjective views.

That brings us to the third potential obstacle to the Virginia Gay Codes – the due process clause of the Fourteenth Amendment. This is the biggest conceptual mess of them all. In one sense, it’s not. “Due process” can be “procedural” or “substantive.” Procedural is easier – it means that states can’t throw you in jail without using the proper procedures (hearings, right to counsel, etc.). The tricky part is that the due process clause has been deemed to have a “substantive” element as well. This is where Roe v. Wade fits. The Supreme Court found that banning abortions or access to birth control violates a fundamental “substantive” right. The idea is very similar to natural law, or that there are certain rights that are inherent to human nature and cannot be infringed upon.

It sounds great, but the devil of course is in the details. There is simply no principled way to decide which rights are fundamental and which ones aren’t (other than stare decisis which is merely relying on the subjective views of dead judges who made the initial values judgments). Judges may well find that the Virginia Gay Codes violate the fundamental right of marriage, and thus the due process clause. They may also find that it doesn’t. Either way, the choice is an inherently subjective one that depends more upon political preferences than legal logic.

So that’s the con law lesson for today. Keep in mind that this is a “positive” or descriptive analysis, and not a normative one. I’m just saying that, in many instances, what passes for “law” is merely the disguised political preferences of the judge. I’m not condemning that. Personal views are inherent to the human act of judging, and are inextricably bound to what is called “the law.” Say what you will about the “living Constitution” people, at least they’re honest about it. All judging involves interpreting the law in light of contemporary social norms and one’s political views. The living Constitution people at least admit that and suggest that we should be honest about it. If judging is inherently subjective, they say we should have a real democratic debate about it in political terms and stop pretending that law is some exercise in abstract logic. The conservatives, as usual, have a better narrative. They do the same damn thing, but they call it “interpreting the law as it is written.” When they inject their contemporary political views, they are merely “returning to the understanding of the Framers.” Pah-leez.

As Clinton explained, the best approach is the “third way” – something I have called pragmatic textualism. The liberals too often ignore the text, and conservatives too often treat politically favored interpretations as the only possible interpretation of the text. A better way is to follow the jurisprudence of Hugo Black. Treat the text with respect and don’t stray from it. But once you are safely within the text, have a democratic debate about what the best reading would be from a policy perspective rooted in reality as it exists in 2004. It’s just silly to limit ourselves to an interpretation frozen in 1789. And it’s especially silly to limit ourselves to a Federalist Society interpretation masquerading as an interpretation from 1789.

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At time goes on, I find that my admiration for President Clinton grows and grows. Someone with his political skills - the ability to master difficult topics and explain them in simple terms - just doesn't come around that often. Unfortunately, the scope of the tragedy of Monica is also growing as it's becoming more clear just how remarkable his abilities were - and what might have been.

I suppose I feel a deeper respect for him because I identify with him on a more personal level. I too grew up in a tiny rural Southern town and a little Baptist church like he did. I suspect that we experienced many of the same doubts and demons as we tried to reconcile our upbringing with what we were learning in college.

Anyway, I just wanted to draw attention to parts of his speech this week at the new Clinton Library. Once again, he articulates the narrative far better than any national Democrat (or Republican for that matter). Here were my favorite parts (take note especially of Clinton's distinction between "smart" versus "uneducated" - it's an important distinction):

America has two great dominant strands of political thought -- we're represented up here on this stage -- conservatism, which, at its very best, draws lines that should not be crossed; and progressivism, which, at its very best, breaks down barrier that are no longer needed or should never have been erected in the first place.

It seemed to me that in 1992 we needed to do both to prepare America for the 21st century: to be more conservative in things like erasing the deficit and paying down the debt and preventing crime and punishing criminals and protecting and supporting families, and enforcing things like child support laws and reforming the military to meet the new challenges of the 21st century.

And we needed to be more progressive in creating good jobs, reducing poverty, increasing the quality of public education, opening the doors of college to all, increasing access to health care, investing more in science and technology, and building new alliances with our former adversaries, and working for peace across the world and peace in America across all the lines that divide us.

Now, when I proposed to do both, we said that all of them were consistent with the great American values of opportunity, responsibility and community. We labeled the approach "New Democrat." It then became known as the third way, as it was embraced by progressive parties across the world.

But I liked the slogan we had way back in 1992, "Putting People First." Because, in the end, I always kept score by a simple measure: Were ordinary people better off when I stopped than when I started?

I grew up in the pre-television age in a family of uneducated but smart, hardworking caring storytellers. They taught me that everyone has a story. And that made politics intensely personal to me. It was about giving people better stories. That's why I asked those six people to talk here today.

When I think of the family leave law, I think of that good man who brought his dying daughter to see me in the White House on a Sunday morning and who grabbed me as I walked away and said, "The time I got to take off from work was the most important time in my life."

I think of people like that fine woman who worked herself out of welfare and now runs her own business.

I remember the first woman I ever talked to who went from welfare to work. I said, "What's the best thing about it?" She said, "When my boy goes to school and they say, 'What does your momma do for a living?' he can give an answer."

Those are the things that make politics real to me, at home and around the world. The record is all in there, what we did at home, what we did abroad.

. . .

Finally, let me say this. Quite apart from all the details, the thing I want most is for people to come to this library, whether they're Republicans or Democrats, liberals or conservatives, to see that public service is noble and important; that the choices and decisions leaders make affect the lives of millions of Americans and people all across the world.

I want young people to want to see not only what I did with my life, but to see what they could do with their lives. Because this is mostly the story of what we the people can do when we work together.

. . .

I believe our mission in this new century is clear. For good or ill, we live in an interdependent world. We can't escape each other.

And while we have to fight our enemies, we can't possibly kill, jail or occupy all of them.

Therefore, we have to spend our lives trying to build a global community and an American community, of shared responsibilities, shared values, shared benefits.

__________

I doubt I'll be posting anything more today. I'm playing around with some longer posts, and I've got some other work to do. I should be posting this weekend though. In the meantime, I'll leave you with a question. Which of these laws is more progressive?

Black Codes, Mississippi, 1865:

Section 1. All freedmen, free negroes and mulattoes may . . . acquire personal property . . . and may dispose of the same in the same manner and to the same extent that white persons may.

Section 2. All freedmen, free negroes and mulattoes may intermarry with each other, in the same manner and under the same regulations that are provided by law for white persons.

Affirmation of Marriage Act, Virginia 2004:

A civil union, partnership contract or other arrangement between persons of the same sex purporting to bestow the privileges or obligations of marriage is prohibited. Any such civil union, partnership contract or other arrangement entered into by persons of the same sex in another state or jurisdiction shall be void in all respects in Virginia and any contractual rights created thereby shall be void and unenforceable.

It would be one thing if the Virginia legislature had banned civil unions. But they actually went so far as to pass a law that infringes on gay people's right to enter into contracts with each other. This Washington Post article has more:

Many opponents have said the statute has the potential to nullify a variety of contracts used by same-sex couples to create rights and benefits such as custody arrangements and advance medical directives.

You know, if I were someone like David Bernstein who wanted to bring back Lochner, this would be a good (and politically savvy) place to start.

[ed. note - Lochner is the case that stands for the discredited doctrine of "freedom of contract" that was prevalent in the late 19th and early 20th century. During this period, the Court struck down economic regulations and labor protections under the theory that it violated one's "freedom of contract," which was supposedly in the Constitution. The conventional wisdom is that Lochner was the product of pro-capital and fiercely anti-labor judges (though it's a bit more complicated for reasons I'll explain one day). There are stirrings that Lochner is on its way back. If that's true, it could eventually be used by conservative judges to strike down modern labor and economic regulations, along with parts of the administrative state. Lochner is based on the same concept as Roe - substantive due process. For those upset by my skepticism of Roe, this should help explain why it's important to distinguish between my pro-choice views and my jurisprudential skepticism of Roe. If Roe is correct, then Lochner is just as correct. You can't just look at results in the legal world - you have to look at the method used to get there as well. If it's bad, it can come back to haunt you.]

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Today's Washington Post (with helpful edits from me):

The United States has intelligence that Iraqn is working to adapt missiles to deliver a nuclear weapon, further evidence that the Islamic republic is determined to acquire a nuclear bomb, Secretary of State Colin L. Powell said Wednesday.

Separately, an Iraqnian opposition exile group charged in Paris that Iraqn is enriching uranium at a secret military facility unknown to U.N. weapons inspectors. Iraqn has denied seeking to build nuclear weapons. . . . [T]he International Atomic Energy Agency said this week that it had not seen any information that Iraqn had conducted weapons-related work.

. . .

Meanwhile, in Paris, the exile group charged that Iraqn was still enriching uranium and would continue to do so despite the pledge made Sunday to European foreign ministers. . . . The group gave no evidence for its claims, but Mohaddessin said, "Our sources were 100 percent sure about their intelligence."

Ok, Ok. I'll take it from here. I'll say, "Wars are horrible for all involved and should be used only as a last resort in the face of overwhelming evidence." You'll say mustard gas and mushroom clouds. I'll say, "it could destabilize the Middle East and give rise to new unforeseen problems." You'll say mustard gas and mushroom clouds. We'll invade. I'll be right. And then you'll retroactively justify your war by invoking the bold forward strategy of freedom and using the plight of our troops as an emotional blackmail to stifle dissent.

It's going to be a long four years.

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In resigning themselves to the election, I know that many people probably thought to themselves, “Well, it can’t possibly get worse, right?” Wrong. It can get worse. It can get a lot worse. And this week’s purgings are creating the all the necessary conditions for something truly terrible to happen. Josh Marshall gets it right. Bush’s cabinet moves are not about moving in any certain direction politically. They’re about silencing dissent. The hostility to dissent is one of Shrub’s most infuriating – and most baffling – characteristics. And if there’s one thing that anyone with even the slightest grasp on the news learned over the past few years, it’s that we need a lot less loyalty and a lot more dissent.

What little dissent that did exist in Shrub’s first term helped us avoid some pretty large catastrophes (though it wasn’t enough to avoid them all). For example, Juan Cole succeeded in terrifying me by explaining just how many important victories Colin Powell – often the lone dissenter teaming up with Blair – enjoyed.

But insiders in Washington have told me enough stories about Powell victories behind the scenes that I am not sure the marginalization argument is decisive. Powell had an alliance with UK Prime Minister Tony Blair, and the two of them could sometimes derail the wilder plans of the Department of Defense. Blair, and probably Powell, convinced Bush to fight al-Qaeda and the Taliban in Afghanistan before going on to an Iraq war. Imagine how dangerous the situation would be if the US were bogged down in Iraq as it is now, but Bin Laden's 40 training camps were still going full steam!

Likewise, I have it on good authority that Powell and Blair derailed a Department of Defense plan to install Ahmad Chalabi as a soft dictator in Iraq within 6 months of the fall of Saddam. Jay Garner had been given this charge, and Powell was able to get Paul Bremer in, instead, with a charge to keep the country out of Chalabi's corrupt hands.

You don’t need access to insiders to verify that. Just go read Woodward’s book. Powell was also the only one who wanted to take a harder line against Sharon and devote new efforts to the Israeli-Palestinian conflict after 9/11. We did not, and we’ll be living with the opportunity costs for generations. So, while you may have thought it wasn’t possible to improve upon our bold forward strategy of freedom, it could have been a lot worse. That's something to think about.

There’s also a much deeper principle at stake here. Dissent is a vital part of any rational, information-gathering process. It’s what both science and democracy are based upon. One of the most efficient ways to become fully informed is to adopt an adversarial process in which opposing sides have incentives to outargue the other. Our criminal justice system – another system in which finding the correct answer is extremely important – relies heavily upon the adversarial process for just this reason. In fact, as I explained in this post, many of the Constitution’s provisions regarding criminal rights could be seen as “information-producing” in that they install and protect an adversarial process at many different stages that produces information. Here’s how I explained it in my prior post:

The law has also long recognized the importance of creating and protecting procedures (i.e., “processes”) to ensure that courts will arrive at informed and just decisions. The goal of these numerous procedural protections is not so much to ensure a given result, but to ensure that, whenever courts do make a decision, that decision will have been made in an adversarial setting where claims and witnesses are challenged, and where factual or legal support has been presented. Just take a look at the Bill of Rights (especially Amendments V-VII).

. . .

For example, before anyone can be convicted of a crime, the government must follow a number of procedural requirements. The government must inform criminals of the nature of the charge against them. They must then be indicted by a grand jury, which requires the prosecution to present evidence. The case must then go to trial, and the trial must meet the standards of “due process” (in other words, certain procedures must be followed such as allowing witnesses to testify). The case must be decided by a jury. The criminal also has the right to an attorney and a right to confront any witness who might testify against the criminal.

You can think of all of these rights as information-producing.

Dissent is not a weakness. It’s an invaluable tool to pierce the errors or even the unseen bias in another’s argument. It’s the foundation of Enlightenment rationalism, which of course, is why it gets such a frosty reception from Shrub. He views the toleration of dissent as a personal weakness, and the dissent itself as a personal attack.

It would be nice if he could tolerate being told he was wrong every now and then for the good of the country, but that’s silly-talk. Why should he care? This president has been a full-blown disaster in almost every important way (economically, militarily, scientifically, ethically), and he gained Senate seats. So why not appoint hacks? Seriously, what possible incentive is there to change? It’s not like accountability matters. I mean, we’ve got a House of Representatives that is quite literally acting out Animal Farm, but no one cares. Hell, why don’t we just get rid of the Senate altogether. Just tell Americans that it’s a necessary step to fight terrorism, or a vital tool in protecting the sanctity of marriage.

Rant aside, the point is that Bush (even more so than last time) is creating a rigid pyramid-shaped process in which all information is produced at the very top and then enforced loyally without any dissent by the rest of the executive branch. This pyramid, however, is only as good as the handful of people who are actually making these decisions. With Powell, the CIA, and State all out of the picture, we can be quite confident that the decisions made by this handful of people will be terrible. Dick Cheney and certain select Jacobins at the Pentagon and AEI will (literally) be deciding the fate of the world, with nary a dissent. That probably means a confrontation with nuclear North Korea is more likely, nuclear proliferation will spread, invading Iran becomes more likely (it’s only the lack of troops that’s holding us up, I suspect), no progress will be made on Middle East peace, and Sharon will continue dragging us with him into a lifetime of exposure to terrorism (which will eventually become nuclear itself).

Over the past four years, there were big, big decisions that would have been catastrophic had we lacked dissent. There is now no one to stop these decisions from being made – and most critically, no one to make the case to Shrub. In essence, he will be the judge that only accepts briefs from one side. “Mr. Perle, would you care to respond to that argument made by Mr. Perle?” Europe is looking better every day.

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Excerpts from the 1994 Contract With America:

REPUBLICAN CONTRACT WITH AMERICA

As Republican Members of the House of Representatives and as citizens seeking to join that body we propose not just to change its policies, but even more important, to restore the bonds of trust between the people and their elected representatives.

. . .

This year's election offers the chance, after four decades of one-party control, to bring to the House a new majority that will transform the way Congress works. . . . Like Lincoln, our first Republican president, we intend to act "with firmness in the right, as God gives us to see the right." To restore accountability to Congress. To end its cycle of scandal and disgrace. To make us all proud again of the way free people govern themselves.

Today's Washington Post (via Josh):

House Republicans proposed changing their rules last night to allow members indicted by state grand juries to remain in a leadership post, a move that would benefit Majority Leader Tom DeLay (R-Tex.) in case he is charged by a Texas grand jury that has indicted three of his political associates, according to GOP leaders.

Animal Farm, George Orwell:

All animals are equal. But some are more equal than others.

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Hmmm. Porter Goss purging the CIA. Hadley. Gonzales. Rice. This all sounds familiar:

Republican officials said the selection of Rice reflects Bush's determination to take personal control of the government in a second term, especially departments and agencies that he felt had undermined him in the first four years.

. . .

The impact, according to one Republican close to the administration, will be to "control the government, not just the White House" in the second term and to give the president "an enhanced ability to control the broad sweep of policy undertaken in the second term."

Now, where have I heard that before? Ah yes, Russia:

In the years since Boris N. Yeltsin elevated him to the presidency on Dec. 31, 1999, Mr. Putin has steadily consolidated political power in the executive branch, often by the sheer force of his will. He took away from the regions the power to appoint the upper house of Parliament. He imposed a structure of seven federal districts over the vast and unruly country, each led by his appointees. He also used the Kremlin's vast power over television and government resources, as well as his extensive personal popularity, to reward loyal governors and punish or push aside disloyal ones.

I can't wait for Christmas in Tehran. It's going to be merry.

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Kevin Drum apparently ate his Wheaties this weekend. Two very good posts – here and here – that got me thinking about the long-term historical implications of the Bush victory. In the first post, he explains that part of the Democrats’ problem is that they have no more worlds to conquer:

But I'm going to venture an even more fundamental explanation for the problem Carville addresses: in broad terms, Democrats have already accomplished their goals. What's left is mostly improving things at the margins, not fundamental changes. . . . But I suspect that most people, maybe even most liberals, would say we've accomplished 80% of what we set out to do back in the 30s and 60s. Maybe even 90%. In terms of genuinely big programs, the only one left is national healthcare.

It’s a reassuring thought in these dark days of Sauron. The big battles – the administrative state, the New Deal, the Great Society, and civil rights – have all been won, and continue to enjoy wide support. As I explained here, one of the most frustrating – indeed, maddening – aspects of the debate over “big” versus “limited” government is that it takes places over a backdrop of silent assumptions that none of the real “big government” programs will be touched. Americans favor massive spending on Social Security, Medicare, Medicaid, defense, education, and the administrative state (which make up well over 85% of the budget) – but yet, they favor “limited government.” They squeal to high-heaven if programs get cut, while at the same time they’ll tell you that government is not the answer. But despite the rhetoric, Republicans have never had to guts (especially since 1994) to make a sincere attempt to destroy the often-invisible edifice of New Deal values upon which the modern "limited government" debate takes place.

Kevin is exactly right when he says, “Republicans are mostly nibbling around the edges, not taking a chainsaw to liberal programs.” Of course, one way to look at these old programs is that they are simply inefficient bloated bureaucracies. I’ll admit that the programs have some inefficiencies that could use an injection of market principles. But unlike those who worship the god Efficiency at the First Church of the Holy Free Market, I think efficiency should never be a end unto itself. It’s always the first-step of a two-part question – (1) What choice is more efficient?; and (2) and what choice should we adopt? As a commenter once explained to me, efficiency should be viewed in a descriptive (or positive) sense and not a normative one. To say one program is more efficient than another is to say absolutely nothing at all about whether we should adopt that program. Dictatorships are more efficient than a republic with checks and balances, but that tells us absolutely nothing about which one is better from a normative (or ethical) perspective.

And that’s what I admire most about these various government programs – they reflect the values that I believe in. Too many of us see these programs as embarrassing dinosaurs from a past age, or symbols of outdated ideas in our new market-friendly era. To be honest, some are. And some are simply the product of interest-group legislation. But there’s something deeper there too. Look again at the programs Kevin listed under the heading “equal rights” and “economic security.” The former includes the “Civil Rights Act, the Voting Rights Act, affirmative action, gender discrimination laws, and the ADA.” Everyone of these seems to be motivated by something other than pure majoritarian self-interest. With respect to “economic security,” Kevin offers the following - “Social Security, unemployment insurance, Medicare, subsidized public education, welfare, and the minimum wage.” Again, while one could portray these policies as simple interest-group legislation, that doesn’t quite do all the work (e.g., welfare?). These policies seem to have a much deeper, idealistic strain running through them. And it’s that deeper, hard-to-see strain that we need to start focusing on.

As Carville says, Democrats have a “litany” of policies, but no narrative. But when you stack these policies together, an underlying coherence emerges – a narrative, even. And in my opinion, the narrative thread running throughout these policies is a dedication to promoting equality of opportunity, and empathy for one’s fellow man. It is empathy and opportunity that are the animating principles behind progressive thought. Yes, there are elements of self-interest there too – that’s what makes politics go. But that can’t account for everything. The American people at one point committed themselves to ending starvation, and paying what was necessary to do so. That’s not self-interest. That’s empathy.

I would love to see these two themes adopted as the narrative behind the New Progressive wing of the Democratic Party. Stanley Greenberg has been pushing the opportunity theme for quite some time. But I would like to treat it as a “value.” I mean, you can see the value of promoting opportunity so clearly running throughout the programs above – along with the value of empathy for others (which lends itself perfectly to religious rhetoric). Because of the New Deal and Great Society, people don’t starve anymore (especially the elderly who lacked family support). That hadn’t been true before. In addition, things like progressive taxes, investments in education, the ADA, and the Voting Rights Act shouldn’t be seen as big government “fixes.” Instead, they should be seen as noble efforts to promote opportunity - the opportunity that gives rise to individual achievement and the American dream. They should be seen as humane interventions for those who fared poorly in the cosmic lottery of birth so that they too may achieve their potential. Many great minds were wasted in the cotton fields, just as many great minds today are being wasted in the poverty of Appalachia, or the inner-cities, or anywhere else where the Darwinian free market fails to provide what is needed. [Note to Dems - a new Appalachian program is a very good idea.]

Now before we all go off singing proletariat tunes, let me add that I completely support many aspects of Clinton’s “Third Way” centrism that combined market incentives with the goals of old New Deal programs - but only because it too promoted my values of empathy and opportunity. But that said, I will never apologize or feel guilty about these older programs, or the values they exemplify. It’s time to face it – progressives believe in the power of government intervention to make life better and to expand opportunity. It’s time to stop being ashamed of that, and start presenting it as a value in opposition to a flat-tax market state where the wealthy flourish and the unlucky suffer.

Government programs have made the country better. A government health care program would do the same. It would also promote the two foundational values of opportunity and empathy. By freeing American workers from the fear of keeping or losing health care, they would have more choice of occupation (or education), and be less likely to move around for work. These people would also be relieved of the fear of getting sick, or having their children get sick, without insurance to cover it. The market has failed to provide what it should. Where that happens, the government should step in. Opportunity and empathy. Secular values. Religious values. It all fits together. Don't say big government or small government, say "smart government."

Admittedly, this doesn’t seem to address the Democrats’ national security problems - or does it? Empathy and opportunity (or “liberty”) could provide the narrative needed to develop what I called the “Emerging Democratic Foreign Policy” – which is a presumption of working within institutions if possible, and a willingness to use force unilaterally to stop genocide and/or an imminent national security threat. As Orwellian as it sounds, sometimes our military does have to kill people to help people. Strength and empathy are not opposing values.

And this same narrative could work on other social issues as well. As I explained back in June, I think that empathy is the theoretical foundation of being “socially liberal.” Anticipating Carville, I wrote:

As I understand it, being socially liberal usually includes being pro-choice (though one can disagree with Roe), pro-gay/transsexual rights, anti-death penalty, pro-peace, pro-prison reform, pro-sentencing reform (e.g., eliminating harsh jail time for drug offenses), anti-school prayer, pro-immigrant reform, and a reluctance to be hostile toward foreign nations and global entities. Socially progressive people can rattle off this list of policy preferences, but it’s less common to hear any sort of unifying theme that ties them all together into a coherent ideology.
. . .

Think about all the positions outlined above. In each one, the socially progressive position is the one where people reach out and empathize with those who are different than they are. It recognizes a common humanity, as well as a greater ability to say, “Hey, what if that were me? How would I want to be treated?” In reality, the principle behind social progressivism was summed up 2000 years ago by a guy who is often ignored by his most ardent followers when he said, “Do unto others as you would have them do unto you.” He also said that the most important commandment was to “love one another, even as I have loved you.” Conservatives would do well to read over those words from time to time and think about what they mean.

Maybe I’m wrong, but I’m trying. And if this triggers a dialogue, then maybe it will be a success after all. I do think, however, that I’ve found the right methodology. If you want a narrative, stop trying to be a sneaky marketer and just get a pen and paper instead. It’s pretty simple. Go write down all the policies you believe in and see what sort of order emerges from your litany. Whatever emerges is your narrative.

Now go fight for it.

__________

While the loss of Rehnquist would not effect the current 6-3 Roe majority, the loss of two Justices who are not named Thomas or Scalia would. Given the age and health of people like O’Connor and Stevens, Bush could very well appoint three Justices over the next four (dear lord, four) years. As I have explained before, my views on this issue are mixed. I am pro-choice, but oppose Roe on jurisprudential grounds. So, if choice were on the ballot I would vote libertarian and leave these matters up to “market” persuasion and one’s own conscience. But if I were a judge, I wouldn’t find it in the Constitution. You can’t just make stuff up no matter how much you like the result. That said, I’m equally concerned about another possibility. The day after Roe is overturned, someone in Congress will introduce a national abortion ban – and it will pass, largely because of the dynamics of the single-issue voter phenomenon (explained here). And it will be equally unconstitutional. If that happens, then the conservative federal judiciary and other court-watchers will face a fascinating dilemma – whether to uphold the principle of enumerated powers under Lopez and Morrison, or whether to give in to their political preferences.

Although I do consider myself a textualist (a pragmatic textualist), I’m generally skeptical of the power of legal principles. While law sometimes exerts independent force (e.g., Hamdi), more often it merely reflects one’s underlying political preferences. For example, those who prefer unfettered free markets find Lochner in the Constitution. Those who prefer choice find Roe. Those who prefer slavery find Dred Scott. Those who prefer a weaker federal government find state sovereign immunity. Those who despise criminals read the Fourth, Fifth, Sixth, and Eighth Amendments out of the Constitution. Those who oppose the death penalty find it “cruel and unusual.” Whatever Sandra Day O’Connor personally prefers magically appears in the Constitution. And so on.

So here’s the million dollar question. If Congress passed a national ban on abortion (just as it passed a national ban on partial-birth abortion), would conservative judges who believe in enumerated powers, but are fiercely anti-Roe, uphold it? It’s going to be interesting to watch.

Of course, everything depends upon the premise that the abortion ban, just like the partial-birth abortion ban, is in fact outside the enumerated powers. As I see it (with some help from Feddie over steaks), there are two possible sources of authority in Article I - the commerce power and Section V of the Fourteenth Amendment. As for the first one, if you take Morrison seriously (which goes further than Lopez in many respects), I don’t see how you could find it constitutional. I did some digging around on this question, and found this NRO essay from Professor Jonathan Adler from a couple of years ago. He explains it well:

It is commonplace for Congress to prohibit all instances of an activity that "affect" interstate commerce, leaving it to federal prosecutors to furnish facts demonstrating a sufficient nexus between commerce and the crime in question. Congress could, for example, prohibit all abortion-related procedures in which doctors use medical equipment or pharmaceuticals which traveled in interstate commerce. Or, Congress could prohibit economic transactions relates to such procedures, or the purchase of medical equipment to be used for such procedures. In this fashion, Congress could try and escape from its constitutional constraints. Yet engaging in such legislative legerdemain with the sole purpose of evading constitutionally proscribed limits on federal power is itself an abdication of Congress' responsibility to uphold the Constitution. It makes a mockery of the oath all members take upon assuming their offices.

I agree. You either buy Morrison or you don’t. But I don’t see how you can accept Morrison, but then find a national ban on abortion to be constitutional too. To do so, in my opinion, would elevate preference over principle. I suppose one could ban the exchange of money for the procedure, but that wouldn’t stop abortion. For example, what would happen if the doctor did it for free? Or provided his or her own daughter with an abortion? Any statute broad enough to criminalize all abortions would exceed Congress’s Article I powers (assuming you accept Lopez and Morrison – as most conservatives do).

The second possibility (and hat tip to Feddie here) would be Congress’s power under the Fourteenth Amendment to enforce “equal protection.” It’s not a crazy argument for conservatives to make, but only if they are willing to unmoor themselves from the principles they generally apply. For example, most originalists would argue that the Fourteenth Amendment doesn’t do that much outside of the context of race. These amendments passed after the Civil War and were clearly intended to help African-Americans, not fetuses. To decide otherwise would be to adopt the much-dreaded pragmatic “living Constitution” methodology - which, according to people like Professor Solum, will be followed by the Apocalypse and other horrors in the Book of Revelation.

And when he had opened the fourth seal, I heard the voice of the fourth beast say, Come and see. And I looked, and behold a pale horse: and his name that sat on him was Living Constitution, and Hell followed with him.

But I digress. . . [ed. note - Solum didn't say this. The excerpt is a parody of his melodramatic invocation of pragmatism and tyranny.]

I don’t know what would happen, but my guess is that if people like Scalia were evaluating a national abortion ban, they would become much less enthusiastic about the enforcement of enumerated powers under Article I. That will be the ultimate test of principle versus political preference – the test the Court so miserably failed in Bush v. Gore, when the Conservative Three abandoned federalism and welcomed an innovative expansion of the much-reviled equal protection clause (which applied only in that one case, of course).

So that’s why I’m hesitant to overturn Roe despite my jurisprudential qualms. I would be far more comfortable abandoning it if I could be assured that states – or even better, cities and counties – would be allowed to vote on it. But there’s no reason to think that will happen. And I suspect that the increasingly conservative judiciary will be hesitant to overturn it and enrage the very people responsible for getting them on the bench in the first place. But perhaps I’ll be wrong. After all, what’s appealing about the theory of conservative jurisprudence is that it channels issues back into the proper sphere of the political process. But that said, I suspect we’ll trade an unconstitutional Roe for an unconstitutional national abortion ban, and the Framers' federalism will again be ignored.

So if you’re with me up to here, the question becomes which evil we prefer – the unconstitutional Roe or the unconstitutional national ban. Because I have a libertarian streak on social issues, I would prefer the former. I’m not excited about it, and I certainly understand the wrenching moral complexities. But in the end, isn’t it better to use private moral persuasion than government coercion? Do we really want sixteen-year olds to be forced to have a child under the force of law? Are we willing to put doctors in jail? These questions, of course, assume the answer. Those who equate abortion with slavery would ask if I would apply my libertarianism there as well. That’s why debates about abortion are so difficult – the two sides are arguing from two completely different moral and philosophical baselines.

One last thought. It will also be interesting to see if those judges and pundits who disagree with Lopez and Morrison (and think Congress, not courts, should have the final say over its Article I powers) will suddenly find themselves talking about the importance of enumerated powers.

__________

The greatest obstacle to a progressive coalition in this country is the slavish conceptual devotion to a linear political spectrum. Because I suspect that’s the most pretentious sentence I’ve ever opened up a post with, let me explain what I mean. People on all “sides” believe that entire political spectrum is a single line running from the “left” extreme to the “right” extreme - Noam Chomsky to Pat Robertson if you will. Everyone assumes they fall somewhere along that line. Kos wants us to move “left,” and not move “right.” The media love to talk about the “wings” of each party. Dean is on the far “left” of his party even though he's a deficit hawk with a good NRA rating. The evangelicals are the far “right” even though they've devoted a lot of focus to suffering in Africa.

In reality, however, the American political spectrum looks more like a Jackson Pollock painting, with various blurs, intersections, and overlaps that don’t fit neatly into any sort of linear division. If you must envision politics geometrically, imagine a loose circle rather than a line. At one point on the circle, people like Matt Yglesias, Dan Drezner, and Andrew Sullivan blend together as hawkish libertarians. At another point, the Buchanans of the world blend together with people like Nader and Kucinich on issues of trade and skepticism of multi-national corporations. But again, even the circle obscures the fluidity of causes and coalitions that would emerge if we could (a) stop thinking of everything linearly; and (b) abandon the two-party political system (and especially its primaries). There’s been a lot of talk lately of what the Democratic Party should do. Maybe it should die. And take the Republican Party with it.

One of the many problems with our two-party system is that it fosters not only a “team” mentality, but a “team” epistemology (which I first discussed in April). In an ideal world, one would perceive some issue, evaluate it in terms of one’s own interests and values, and then come to a conclusion. If the “red” team supported your policy, you would agree with the red team on this one issue. Tomorrow, you might agree with the “blue” team. But that’s not how things work right now. The two-party system has inserted a tinted lens over our eyes.

Take this week’s Federalist Society convention in which Ashcroft came out strong against federal judges for upholding civil liberties and the rule of law. Now, in theory, these Federalist Society people say that those are their guiding principles. And you can best bet if Clinton had been rounding people up and trying them in secret without constitutional protections they would be screaming their heads off – and rightfully so. But they’re seeing everything through the tinted lens. Affirmation of Bush (one’s team) comes first, and the perception of the world comes second. Whatever our team does must be good. I mean, think about the irony of Ashcroft giving that speech at a convention whose raison d'etre is supposedly liberty and the rule of law.

Here’s what I’m getting at. So long as most Americans conceptualize the political spectrum in terms of a linear “left” versus “right,” or “big government” versus “small government,” or “values” or “no values,” progressives are going to lose. That said, I believe in my heart of hearts that overwhelming majorities of Americans would support progressive positions on national security, health care, education, and the environment if they could just stop conceptualizing everything through a lens that projects a linear “left” versus “right” spectrum onto greater reality.

Similarly, those who wish to work through and strengthen the Democratic Party would be well-served by abandoning these linear concepts themselves. We don’t need to “move” left or right – neither do we need to avoid “moving” left or right. We need to come up with a coherent set of sound policies and let the political labels adjust to the new reality. We need to be reality-makers. Act – and let the labels coalesce around the new underlying reality as they will. "Will a self and thou shalt become a self..."(Nietzsche).

Let me give you a perfect example. David Sirota just wrote an excellent article (via Kevin Drum) on how Brian Schweitzer, the Democrat, became governor in ultra-Red Montana.

But in addition to a winning personality and strong populist convictions, Schweitzer had an innovative, three-part political strategy, one that perfectly fit the current conditions in Montana, but which Democrats across the country could learn from. First, Schweitzer took advantage of public dissatisfaction with two decades of insular one-party rule in the state capital, casting himself as an outsider and a reformer. Second, he rallied small business, usually a solidly GOP constituency, to his side by opposing the deals Republicans had cut in Washington and Helena to favor large or out-of-state corporations over local entrepreneurs. Third, and most interesting of all, Schweitzer figured out how to win over one of the most important, reliably Republican, and symbolically significant groups of voters: hunters and fishermen.

Now at first glance, Schweitzer’s success seems to vindicate Thomas Frank’s argument that the Democrats need to move “left” and become economic populists railing against the corruption of corporate influence on politics and the public sphere. But what Schwietzer did was a bit more complex - and Pollock-like. First, he did strike a very populist tone economically (and I lean toward Frank on this point). But, it’s not clear that he moved “left.” Look at how he attacked the corporations – he rallied small business, not angry unions or the proletariat. He was populist, but he appealed to the American entrepreneurial spirit at the same time. It’s not clearly left or right – it’s just damn good policy. Corporations are way out of control, and currently dominate our national House of Representatives. Small business, by contrast, is the embodiment of everything good about America and the American dream. Schweitzer’s “Third Way” (which I don’t like because it assumes a linear baseline) was a sort of populist capitalism that struck the perfect balance (how’s that for a slogan?). Populism doesn’t have to be “left,” and capitalism doesn’t have to be “right.”

An even more ingenious strategy was the way he approached the “hunter” vote and environmental conservation:

Working with a local outdoorsmen group in Gallatin County, which includes Bozeman, Schweitzer drafted a 9-point plan to protect cherished hunting and fishing access rights on public and private lands. Among other things, Schweitzer called for keeping public lands in the state's hands, for spending more money to maintain them for hunters and anglers, and for using fees from hunting licenses to buy easements from private property owners to give sportsmen easier access to fields and streams.

. . .

The beauty of the access issue was three-fold. First, it helped Schweitzer make inroads with the constituency of outdoorsmen that is normally Democrat-averse. Second, it let us speak to both left-leaning environmentalists, who wanted public lands and wildlife herds maintained, and right-leaning outdoorsmen, who wanted a place to recreate and a steady population of game to hunt.

So I ask again – is that “left” or “right”? As you can see, the concepts themselves (which are supposedly about labeling reality) break down in the face of this new reality. Again, Schweitzer picked a sound policy and then found a way to market it to groups who hadn’t previously recognized their common ground because of the slavish devotion to the concept of the left/right spectrum.

If the Democratic Party wants to win, this is a perfect template of how to approach a wide range of issues. And when I suggest that Democrats should adopt a more religion-friendly narrative, I’m not appeasing anyone or suggesting we move “right” (so stop the angry emails please). What I’m saying is that we need to forget about “moving” one way or another and start thinking about a coherent set of policies. Then, we need to think about selling them in a way that transcends the linear political spectrum and causes people to recognize their common interest in adopting these policies. For example, taking a strong stand against child poverty is a damn good policy that can be sold in secular and religious language. Same deal for action in Sudan. Protecting the environment is a damn good policy that can be sold using environmental or gamesman language. Striking out against corporate one-party corruption in the name of small business is a damn good policy that doesn’t fit neatly into right or left categories.

To sum up, we need stop snapping at each other about the need to move left or right. That sort of thinking is strategizing within the bounds of a conceptual universe that is both artificial and unfavorable to progressives right now. Instead, we need to come with sound policies that we sincerely believe in and sell them in creative ways (without Bob Shrum). We need a vision that transcends the divide. And we need to use that vision to create a new political reality beyond left and right.


Convergence, Jackson Pollock (1952)