Legal Fiction

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Fred Barnes, "for the editors" in the Weekly Standard:

The media tolerate or even encourage Democratic rage. But the White House can't afford to. Senate Democrats have enough votes to block major Bush initiatives like Social Security reform and to reject Bush appointees, including Supreme Court nominees. They may be suicidal, but they could undermine the president's entire second term agenda. At his news conference last week, Bush reacted calmly to their vitriolic attacks, suggesting only a few Democrats are involved. Stronger countermeasures will be needed, including an unequivocal White House response to obstructionism, curbs on filibusters, and a clear delineation of what's permissible and what's out of bounds in dissent on Iraq. Too much is at stake to wait for another Democratic defeat in 2006.

Hell, why stop there? Let's not risk such a catastrophe! Let's suspend Congress until the war is over just to make sure. We could even burn the Reichstag Capitol and blame it on Michael Moore! Too much is at stake to let him remain running around free speeching. And just to make sure no one messes anything up - given the high stakes - we could make people take a loyalty oath. And then we can break windows! Eine schoene Kristallnacht! And then we could CHEER! And then we'll BURN THOSE DIRTY DEMOCR...

Or, ummm, I suppose we could just ban filibusters. That's all I meant.

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Via the NYT (if that link doesn't work - try this one):

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Before I get to the substance of this post, I want to offer two words of advice – one to anti-war Democrats, and one to pro-war Republicans. To the anti-war Dems first (I’m considering abandoning the terms “left” and “right”), I would caution them to avoid knee-jerk rejection of all potentially good news just because of the justified animosity toward people like Bush or Glenn Reynolds. The elections yesterday were important and are worthy of praise – as is the courage of the Iraqis who faced death to vote. As much as I reject Bush, I’m not going to root for failure just to spite him, and neither should you. If we fail, and if this government fails, then the result will be an all-out slaughter, complete with genocide and ethnic cleansing right in the heart of an already unstable region. That is the reality of failure. And if you’re silently rooting for that reality, you need to take a step back and put things in perspective.

I also have some advice for the gloating pro-war Republicans. Obviously, it would be nice if the pro-war camp would use this opportunity to extend an olive branch and a humble hand to the opposition in the hopes of increasing the probability of success by promoting national unity. But we all know that ain’t gonna happen. Since the beginning, the war has been used a partisan hammer to destroy Democrats (see, e.g., 2002 and 2004), and so we can fully expect that any and all successes would be used the same way. People like Glenn Reynolds care more about humiliating Democrats than winning the war. Their polarization and politicization of what should have been a national effort has made it Bush’s war rather than America’s war, and America’s war rather than a global effort.

But anyway, despite the fact that no courtesy will be shown to me, I still have some advice for the pro-war camp – watch what you say, because it may come back to haunt you. Most of you have been wrong (cosmically wrong) about every prediction, assumption, and milestone throughout the entire Iraq campaign. You would think people who have been so wrong so often on such a large scale would be humbled, or at least hesitant to gloat or declare success and vindication. But no, the lessons of history won’t stop Cornerites like Michael Novak (“These are the days that try men's souls, if they are men and women of the left. When their own sense of what has been going on is shattered. When the vision of the hated conservatives comes to life in reality, and its birth seems to send joy through conservative ranks.”).

But it’s not just a failure to learn from the past, it’s a failure to accept present reality. Democracy assumes stability – it cannot exist without it. And I hate to break it to Novak, but every empirical trend is pointing toward failure. Prominent pro-war advocates have concluded that liberal democracy is now impossible. Our ability to transition to a true democracy probably depends upon the health of a 74-year old cleric who could be killed any day. Given the enormous challenges ahead, and the fact that the mission stands on a razor’s edge, you’d think people would be a bit more humble and a bit more willing to try to use the successful elections to persuade rather than punish. But no - they’ll gloat and ridicule. That’s to be expected. But I would warn them to be careful – their words may one day be juxtaposed with photos from an Iraqi civil war that currently seems more probable than a national liberal democracy of Kurds, Sunnis, and Shiites.

OK - with that aside, I can get to the point. I don’t know about you, but one of the most frustrating aspects of criticizing Bush’s recent embrace of dreamy idealism is that it almost forces you to attack things that you don’t want to attack – idealistic appeals to freedom, democracy, and an end to tyranny. Quite suavely, Bush and pals are attempting to define the terms of the debate. If the debate is about being for or against freedom, they can’t lose. But I think I’ve figured out how to respond. You simply can’t get mired in the terms that they choose. You have to see the total reality of what they’re doing - and not let them reduce it to a simple dichotomy of either for or against freedom. Essentially, they have adopted a two-step process to distract people from the reality they have created: (1) focus on – and isolate – one tiny piece of the overall picture; and (2) create a fairy tale out of that tiny sliver of reality.

As for the first part, let’s use an analogy. Imagine that there’s an old fugitive hiding out in some person’s basement who did some really bad stuff a long time ago (let’s say mass murder). The FBI has the house circled, and the old fugitive is completely trapped and powerless. Then, let’s say that the local sheriff suddenly comes storming in and burns down the house to kill the fugitive without the consent of the FBI. Let’s say that in doing so, the sheriff burned down half a city block, killed a thousand people, and burned down a wall of a nearby prison that allowed hundreds of criminals to escape.

When you judge the wisdom of that sheriff’s actions, you have to judge the totality of his actions. The sheriff couldn’t defend himself by attacking his accusers with lines like, “So you’re saying you’d rather have the old murdering fugitive going free,” or “I took a stand against murder - do you support murder”? If you isolate that part and ignore the rest, the sheriff would be right. Murder is bad and should be opposed. But in the reality-based community, such head-in-the-sand views are not allowed. The sheriff killed innocent people and destabilized the neighborhood, even though it had some benefit (a benefit that must inevitably be weigh against the costs).

In a nutshell, that’s what Rationalization 4.0 (human freedom) is trying to do – isolate the Saddam variable (or the election variable) from the larger equation. Under this view, the justification for war turns merely on whether you supported Saddam being in power, or whether you were for or against elections. Viewed in the abstract, no one supports Saddam and everyone supports elections. That's easy. But it’s not the whole picture. The whole picture is that this administration has made a string of horrendous decisions (against all advice) that has led directly to a lack of security, civilian death, and has made it quite likely that Iraq will become a failed state. From the lack of troops, to the disbanding of the Iraqi army, to alienating allies, to alienating half (48%) of the country, to relying on Chalabi, to misreading the insurgency, to encouraging torture, to failing to have any plan for the postwar, the administration has done all it can to ensure the failure of this mission. And all of that is true even if you agree with the war in the first place.

Elections are great – yesterday was a historic achievement that none can deny. It's a notch in Bush's legacy belt to be sure. But it should not distract us from the reality that success will be difficult because of a series of wrong choices based on wrong assumptions by this administration and its cheerleaders. In the immortal words of the Wolf in Pulp Fiction (Harvey Keitel), “Well, let's not start suckin' each other's dicks quite yet.”

So that’s the first step in the process – isolate tiny parts of the picture from the whole. But the second part is arguably more important, and certainly more interesting. After isolating some small slice of the overall war, the administration (and the noise-machine) wants to construct a fairy tale out of it. And unfortunately, Americans too often view world events and their own history as if they were fairy tales.

As a piece of literature, fairy tales have certain characteristics and themes. They are simplified morality plays, in which an unambiguously good person confronts an unambiguously evil person (or monster, etc.). Magic pervades, and the good guys always triumph in the end.

This is what Iraq has become to too many people – a simplified morality play. An unambiguously good country removes an unambiguously bad dictator. Unambiguously good elections conquer unambiguously bad insurgents. Magic fills the air as liberty spreads – on pixie dust – from Baghdad to the rest of the Middle East. The good guys win, and the war is vindicated. Iraq becomes a simplified morality play straight out of Grimm's Fairy Tales. Americans can sleep soundly having been reassured that the policies they have supported have been a force for good in the imaginary world they see.

And they have, so long as you’re only looking at the fairy tales that have been excised from the reality of Iraq. If the question of whether Saddam should still be in power existed in a vacuum, who could possibly answer “yes”? If the question is purely whether elections are awesome, who could possibly answer “no”? But when you step out of the fairy-tale vacuum, you are forced to view events within the broader mosaic that is reality-in-Iraq. Bush’s policies and choices have not been completely vindicated because there were elections yesterday, even though the elections should be celebrated as a success. And for the record, if you’re willing to exploit the elections to proclaim vindication of Bush’s entire policy, then I think you care less about the war than you do about supporting Bush politically. Anyone who is serious about this war should be happy about the elections, but not yet willing to declare George W. Bush the George Washington of Iraq. Recent history should be an antidote to hubris.

But don’t get me wrong – we should celebrate these elections. I think those pictures of ink-stained voters (women voters, mind you) are nothing less than completely inspiring. I wish them well. In fact, I sincerely hope that there is some pixie dust that will spread freedom across the region. But I also hope that we would all be humble and realistic. To the Bush critics, the elections show that not all news is bad, and that there may be hope yet. To his supporters, they do NOT show that every bad decision Bush ever made should be forgotten, or even justified.

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As of now, the elections look like a success. Turnout was generally high, and crucially, the Sunni areas appear to have enjoyed a higher turnout than expected.

Of course, this election does not absolve the administration from past errors, and it shouldn't distract us from reality (a critical point that I'll be discussing tonight). But for today, we can be happy. A successful election, if it does nothing else, at least ensures some slightly higher probability of success (even if that probability is low). If things went badly today, I think it would have been game, set, match. But for now, I'm happy and relieved. And I'm too much of a silly romantic not be moved by the blue fingers.

If you aren't moved by the courage of people to come out in the Sunni hotbeds to risk their lives by voting, I'm not sure you can claim to have progressive values.

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I'm outta here for the day, but I would strongly recommend Robert Wright's (author of Nonzero) NYT column yesterday. I couldn't agree more strongly with his argument that one of the best way to spread freedom is through economic trade and globalization:

Oddly, the underlying problem is that this Republican president doesn't appreciate free markets. Mr. Bush doesn't see how capitalism helps drive history toward freedom via an algorithm that for all we know is divinely designed and is in any event awesomely elegant. Namely: Capitalism's pre-eminence as a wealth generator means that every tyrant has to either embrace free markets or fall slowly into economic oblivion. . . . [A]nyone who talks as if Chinese freedom hasn't grown since China went capitalist is evincing a hazy historical memory

. . .

Given that involvement in the larger capitalist world is time-release poison for tyranny, impeding this involvement is an odd way to aid history's march toward freedom. Four decades of economic isolation have transformed Fidel Castro from a young, fiery dictator into an old, fiery dictator.

Economic exclusion is especially perverse in cases where inclusion could work as a carrot. Suppose, for example, that a malignant authoritarian regime was developing nuclear weapons and you might stop it by offering membership in the W.T.O. It's a twofer - you draw tyrants into a web of commerce that will ultimately spell their doom, and they pay for the privilege by disarming.

Not to toot my own horn, but this is exactly the rationale I offered in arguing that the best way to defeat the Iranian clerics to offer full recognition to Iran and initiate trade (in exchange for an intrusive inspections process). Here's what I wrote:

[E]ngaging Iran would make them more "connected" to the world and its markets. Stop terrorists with iPods, I say. Unlike Iraq, Iran actually has the underlying infrastructure to support a viable democracy. . . . Engaging Iran economically would help both nation's economies and it would provide crucial leverage with which to seek reform, and/or to create the conditions in which reform could occur more organically (see China). Diplomatically, a more friendly Iran could be a huge help in fighting al Qaeda, influencing Middle East policy, and securing oil resources.

It would also secure the loyalties of the Iranian youth, who could be strong allies in the quest of political reform in the Middle East over the long-term. I really can't think of anything more stupid and wrong than bombing Iran, or the idea that an attack would do anything but rally the people to the clerics. But because that idea is so wrong, the Pentagon loves it - enamored as they are with wrong ideas and fantasy assumptions.

So if President Bush is reading Legal Fiction, I say recognize Iran (and Cuba). It is your Nixon-in-China opportunity. Remember that Nixon's decision to embrace a formerly hated enemy has made the world safer and more free.

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Ok - I'm changing my mind again. I'd be happy with Dean, but I think Rosenberg is the guy for reasons expressed by Josh Marshall. Here was his most persuasive line for me:

Simon's the only candidate in the race who has credibility and strong associations in both camps. . . . All of this is very important because the Democratic party will be a cracked vessel without both camps coming together, not to agree on everything or make nice, but to build a powerful coalition. We can't afford to let either feel like they wholly lost out in this contest or that the other group is in the saddle to their exclusion.

Yep.

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First, a big thank-you to Julie for filling in yesterday. And thanks to Julie, I see that we almost have a full-blown dialogue going on about how to justify Roe. She links to Scott Lemieux of Lawyers, Guns, and Money, who has written an excellent three-part on series on why Roe was right. Part II responds directly to my earlier post. And in Part III, he tries to justify Roe using “political process” theory, which I think is one of the coolest concepts in all of constitutional law. As much as I love process theory, I’m afraid the argument won’t work.

First, for those whose eyes are glazing over, I’ve discussed process theory before here. The basic idea is that the judiciary should be most active (and “activist”) when it is necessary to fix or reinforce the political process (thus the name). An example will help you understand what I’m talking about. Here’s what I wrote back in July:

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

That’s what I mean by “process theory.” Courts should be more activist in areas where they’re acting either to restore the voting process or in the interests of those excluded from the process – [even if they have to stray from text, or construe it liberally.]

It's not really activism at all, to the extent that word means "thwarting democratic majorities." In reality, it’s vital to democracy. Process theory is about fixing flaws in order to allow the democratic process to work. The political process didn’t work in the South, and judicial activism was necessary to make things work again.

The devil, of course, is in the details. Exactly what constitutes a “flaw” that justifies judicial intervention? That all depends on what “camp” you’re in. There are two sorts of process theory – and I’ll take the liberty to call them “weak” and “strong.” I’m a “weak” process theory person. Here’s the difference.

“Strong” process theorists are those who favor judicial intervention to protect, not just the disenfranchised, but also enfranchised minorities who could be victimized by the majority. For example, these people would advocate increased judicial protection for, say, gays and lesbians or the poor because they are numerical minorities whose rights cannot be protected through the majoritarian legislative process.

“Weak” process theorists are those who favor strong intervention to protect the disenfranchised, but no one else. For example, a “weak” process theorist would favor intervention to protect, say, permanent resident immigrants who can’t vote, but not enfranchised gays and lesbians. [I should add that when I say “favor intervention,” what I really mean is “favor intervention when there doesn’t appear to be other textual protections.” If the government were punishing pro-gay speech, I would obviously favor judicial action. But on First Amendment grounds, not process theory grounds.]

The problem with “strong” process theory is that it’s impossible to draw a coherent line around the minority that should be protected. If you protect gays who can vote, why not protect near-sighted people as well? And what about schizophrenics, or child molesters? All of these are numerical minorities subject to the whims of an unsympathetic majority, no? It’s just not possible to draw a line around one numerical minority and distinguish it meaningfully from any other. That’s why I draw the line at the disenfranchised. Under “weak” process theory, fewer people would be protected, but the court could save its capital to intervene more aggressively on behalf of groups that cannot vote – immigrants, Gitmo detainees, minors, and disenfranchised ex-felons. Extra protections for men, women (with one important exception which I’ll explain), ethnic minorities, and homosexuals would be rejected. So with that in mind, let’s turn to Lemieux’s argument about how to use process theory to justify Roe. He presents three arguments (though I’m simplifying some of what he said – you should go read his well-written post).

First, even after acknowledging that women are not a disenfranchised minority, he still rejects the idea that pro-choice (anti-criminalization) women should rely on the political process to protect their rights:

Needless to say, this is quite clearly mistaken. Most abortion laws were enacted in a period when women were entirely disenfranchised. Even leaving that aside, even after the passage of the 19th Amendment women faced significant legal and social discrimination, and have been underrepresented in legislatures and face barriers of entry to other aspects of the political process as well.

Now, all that is true. And I would apply process theory activism to any law that had a disproportionately burdensome effect on women that was passed prior to the enfranchisement of women. Lemieux is absolutely right here. And that was a good reason to strike down the laws in the first place – probably the single best reason.

But it doesn’t explain why Roe is still needed today. If Roe were overturned (and I’m being devil’s advocate here), it would go to the legislatures where there would no longer be enfranchisement issues. But that said, there might be an argument for keeping abortion legal for those under 18 who cannot yet vote. I would fully support that, as it is a bit disgusting that adults so quickly forget how easily accidents can happen in youth. We’ve all played Russian Roulette – and it would be nice if people remembered that being lucky is not the same as being good.

Lemieux’s second argument is that poor people (with the least political power) would be harmed the most, as local enforcement officials would look the other way when wealthier daddies called their doctor friends to perform abortions for their daughters. That’s true, and it’s a tragedy. But I’m not sure it’s unconstitutional just because it hurts poor people the most. This is an area where the conflict between “weak” versus “strong” process theory is clear. Poor people get royally screwed in a number of ways, but how do you justify drawing a line around this minority and not others?

Lemieux’s third argument is that Roe isn’t really thwarting democratic majorities, because substantial majorities of Americans favor anti-criminalization. But if that’s true, then why do we need the court to intervene at all? He adds other reasons about why courts need not defer to the legislature in this area - for instance, he argues that legislatures often delegated the decision to medical boards who had complete discretion. But here too, even if process theory might justify overturning the then-existing law (because women were disenfranchised), how can it justify not allowing the legislature another bite at the apple now that women can vote and be legislators?

As much as I love process theory, I still think that a better way to go about it is to find a way to secure the right of privacy, or to use stare decisis. I think process theory can, however, justify keeping choice legal for those under the age of 18 who cannot yet vote.

But if I could step out of the abstract world of legal reason, the best reason to keep Roe is essentially political. The day Roe gets overturned, I have no doubt that Congress would introduce a national ban on abortion (just like the partial-birth abortion ban), and that the conservative judiciary would suddenly lose its lust for Lopez. Even if majorities favored choice, one reason it might pass is because of the “single-issue voter” dynamic (which I explained here).

If I could be 100% sure that things would be decided on a state (or even better, a county or city) level, I would be less concerned with losing Roe. But I’m not sure of that all. A national ban would be the first thing introduced, regardless of how unconstitutional it might be. And if we’re forced to choose between two unconstitutional regimes, I’ll opt for the one that doesn’t force 15-year olds to have children, and doesn’t leave poor teenagers to risk their lives in back alleys for mistakes that every single one of us have made at some point in our youth (though some were, in the words of Sheryl Crow, "favorite mistakes").

I spend a lot of time justifying my anti-Roe position legally, but far too little time justifying my pro-choice position politically. I’ll start doing this more, but it really does come down to choice. I guess my question to my pro-life friends is this – why is it so necessary to rely on government intrusion? Why not preserve the option of choice while persuading your fellow citizen with appeals to your religious values? Isn’t that better given the alternative? And it’s important to remember what that alternative would look like. Doctors would be thrown in prison. Young women would be thrown in prison. In some states (especially poor Southern states), victims of rape and incest would be forced by law to carry the baby to term. Fourteen-year old girls would be forced by law to carry the baby to term. And while all this is going on, abortion would continue on as it always has - though now it would be unregulated and unsafe. Is that really what we want?

I’m sorry, but I just don’t think a two-month old, non-viable, barely-developed fetus is entitled to the same legal rights that a human or even an eight-month old fetus is. But you know, maybe I’m wrong. I’m sure my conservative friends think I am. But given that it’s obviously not a question with an objective moral answer (unlike, say, the murder of already-born people), why not persuade against a background of choice? Why insert big government into the equation at all given how difficult the question is? If you’re so sure about it, persuade people not to exercise the right. But don’t remove the right.

On my blog, I link to an article about a suit that was filed Tuesday by the Attorney General and state school Superintendent of California against the Bush administration over the constitutionality of the amendment to the appropriations bill on abortion.

The abortion language would bar federal, state and local agencies from withholding taxpayer money from health care providers that refuse to provide or pay for abortions or refuse to offer abortion counseling or referrals. Current federal law, aimed at protecting Roman Catholic doctors, provides such "conscience protection'' to doctors who do not want to undergo abortion training. The new language would expand that protection to all health care providers, including hospitals, doctors, clinics and insurers.

This case raises some intriguing questions about Congress's spending power and illustrates a shift in federalist rhetoric in US politics.

Just to catch everyone up to speed, I'm going to give a little background on the spending power. Any lawyers in the room can feel free to take issue with or laugh at my intro-to-con-law understanding of a pretty complex area of the law. The definitive recent (1987) case on the spending power is South Dakota v. Dole, which upheld a Congressional spending provision that directs the Secretary of Transportation to withhold 5% of a state's funding if it permits the purchase or public possession of alcohol by a person under 21. South Dakota, whose legislature had passed a law allowing people over 19 to buy 3.2% alcohol beer, essentially argued that this provision was an unconstitutional use of the congressional spending power to get regulate in the states' sphere and that it violates the 21st Amendment.

Rehnquist, who writes for the majority, reads the spending provision quite broadly. He concedes that Congress's spending power is subject to constitutional limitations, specifically that it must be exercised in the pursuit of "the general welfare," it must condition federal funds "unambiguously...enabl[ing] the States to exercise their choice knowingly, cognizant of the consequences of their participation," and the condition must be related to the "federal interest in particular national projects or programs." There may also be an independent constitutional bar to a conditional grant of federal funds. Yet, Rehnquist argues that the federal interest in ensuring "safe interstate travel" satisfies the above requirements, and that "the constitutional limitations on Congress when exercising its spending power are less exacting than those on its authority to regulate directly."

Yes, this is in fact the same Rehnquist who delivered the majority opinion in Lopez and Morrison. No, I am not making this up. (For an excellent background lesson on Lopez and Morrison trawl through Publius's archives. I want to get this post up ASAP and I'll update it if I find the post I'm thinking of.) As Lynn Baker argues in Conditional Federal Spending After Lopez, 95 Colum. L. Rev. 1911, 1920 (1995),

"[I]f the Spending Clause is simultaneously interpreted to permit Congress to seek otherwise forbidden regulatory aims indirectly through a conditional offer of federal funds to the states, the notion of a 'federal government of enumerated powers' will have no meaning."

Conservatives pay a lot of lip-service to federalism, and they often argue that Roe should be overturned and abortion laws left up to the political processes in the states. But you can see that when the states pass laws to make sure the life and health of pregnant women in emergency situations are protected, Republicans don't hesitate to wield the power of the purse against legitimate, democratically enacted state legislation. If Congress tried this under the Commerce Clause, it wouldn't stand, but with the spending power interpreted as it is, this provision could actually be upheld. California's argument that the $49 billion of state funding that goes to education and health insurance as well as hospitals is a big enough stick to be coercive seems convincing, and there's a stronger independent constitutional bar to this provision than to the one in Dole. On the other hand, Congress can argue that it has an interest in protecting the life of fetuses and that this provision is related to that interest. Since we can't expect a consistent, principled stance on federalism by the majority, the latter argument could very well be what the Court focuses on.

Reproductive rights are not the only ones that are better protected at the state level (in some cases), and that have sparked regulatory legislation from Congress. As Publius noted last week, Congress passed the Defense of Marriage Act, and a federal court upheld it, despite the fact that family law is traditionally reserved to the states and regulation of such matters is nowhere enumerated in Article I.

My point is, Conservatives are trying to have it both ways when it comes to federalism. Democrats, on the other hand, haven't exploited this line of rhetoric enough. Democrats, on the other hand, might want to assume the states' rights posture, since they'll be the only party left who sticks up for state autonomy. Keep the goddamned federal government out of the hospitals, out of marriage (which is church business) and out of life and death decisions that are between a family, their consciences and (for some) their Creator. (To paraphrase Juan Cole from a while back.) This isn't a new argument, but I think it bears repeating, especially if Congress is going to start resorting to the spending power on civil rights issues.

Just want to add...Thanks to Publius for giving me the opportunity to stand in his gargantuan shoes for a day and thanks to all of the readers and commenters who stopped by.

Scott Lemieux responds to Publius's post earlier this week laying the groundwork for a justification of Roe. He goes on to discuss questions of democratic legitmacy and alternatives to substantive due process analysis.

To me, the key is the Carolene Products standard the Supreme Court has used to evaluate civil liberties claims for several decades: namely, the idea that the Supreme Court should be especially willing to protect groups excluded from the political process and correct cases where the democratic process malfunctions. From this perspective, the case for Roe becomes highly compelling.

UPDATE...Publius notes in comments that he's got a response in the works. I'll weigh in (back on my blog) after he's had a chance to respond if I feel like I have something useful to add.

This is getting ridiculous. Josh Marshall points out that the New York Times has now switched from "privatization" to "private accounts" to "personal accounts" to the newest in this long line of meaningless Orwellian descriptors "individual investment accounts."

First line of David Rosenbaum's piece on the Bush phase-out plan from Thursday's paper: "If individual investment accounts become an integral part of Social Security, as President Bush is proposing, what will happen to workers who become disabled before they retire?"

At this point I guess you can't blame the individual reporters, some of whose reporting is superb. It's just that the editors seem to have given the stylebook to Rove and Luntz for a scrub, or done it themselves on R&L's behalf.

It's really a bad sign when every focus-group-tested frame you come up with for your program ends up developing a negative connotation.

What really strikes me, though, is the progression from "privatization" which is fairly honest at least, to the neutered terms used today. The GOP denounced Clinton's healthcare plan as "socialized medicine" and successfully played on people's distrust of the government's ability to run healthcare efficiently. Now, it looks as though people don't put much stock in the market either. So, who would Americans trust to run a social program efficiently and fairly?

Perhaps more importantly, any takers on Matthew Yglesias's challenge? He makes the excellent point that if the Democrats come up with a really pejorative term for the social security accounts, the media will probably pick the neutral term that neither party wants--privatization. So, Dear Readers, any ideas?

UPDATE...My favorites so far: Broker Enrichment Accounts, Social Security Piratization, Rags or Riches Accounts, Social Security Corporatization, Reverse Robin Hood Accounts (RRHAs), Leave No Stockbroker Behind Accounts, and there are lots more good ones.

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Just a quick reminder that I'll be posting at the American Street tomorrow (and on Thursdays generally). But I'm very excited that Julie Saltman has agreed to guest post in my place. You can check out her excellent blog here.

I'll be back on Friday. She's all yours Julie.

[UPDATE: When I post in the morning, I'll update this post with a link - for RSS/XML purposes. NEW UPDATE - Link here.]

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I'm ashamed to say that I didn't know the history of Judge Bootle, who recently passed away. The Post reports that he was the "first district court judge to enforce the Civil Rights Act of 1957, the first federal civil rights law since Reconstruction." He also ordered the University of Georgia to desegregate.

I've long thought that lower federal court judges are some of the unsung heroes of the civil rights movement (most of them were Republican Eisenhower appointees - and not Kennedy appointees). In the name of equal rights, these men sacrificed life-long friendships and even personal safety, in their local towns. Supreme Court Justices never faced these pressures. It's sad that we're losing so many of the giants from that era. They will be missed.

Feddie over at Southern Appeal has numerous links to various tributes to the brave judge. Check 'em out.

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The case for Toomeying Lieberman grows stronger:

A few Democrats spoke in favor of Rice, including Joseph I. Lieberman (Conn.) . . . Lieberman, speaking on the Senate floor, said one of Rice's main strengths is that "the world knows that she has the president's trust and confidence." He urged the Senate to "resoundingly endorse this nomination and send the message to friend and foe alike that while we have our disagreements, ultimately what unites us around this very qualified nominee in this hour of war is much greater than what divides us."

Sounds good Joe, but I'm not sure why voting against someone who has had repeated problems telling the truth should be seen as a failure to unite during wartime. It seems that in wartime, we would demand more. After all, people have lost their life at least in part because of things Rice has said that were not true (and which seem to be far more than honest mistakes).

[UPDATE: Andy's comment made me realize that I should have been more clear. First, the issue is not so much whether the Dems should or should not vote for Rice. I agree that the Senate should have a strong presumption toward approving cabinet appointments. In Gonzales's case, that presumption has been rebutted by torture. But back to Rice, it's not that I'm bothered that Lieberman will vote for Rice. What bothers me is that Lieberman seems to go out of his way to heap praise on people who don't deserve it, or to otherwise give bipartisan cover where it doesn't belong (post-Abu Ghraib remarks in particular). Given Rice's history, even if she deserves a "Yes" vote under the cabinet appointee presumption, she is most certainly not entitled to such sweeping praise given her pants-on-fire problem. I'm all for allowing Red state Dems to do this with impunity, but not Senators from Connecticut. The Dems should at least present the threat of Toomeying to get him to stop going out of his way to defend this administration.]

__________

Let’s pretend for a moment that George W. Bush actually meant what he said in his idealistic Inaugural Address. This is not a wind-up to some snarky comment, I’m serious. For today at least, let’s take him at his word. Let’s also pretend that Iraq really is about what the neocons say it is – spreading freedom and democracy in the hopes of strangling angry, violent ideologies and thus creating a better world. What I’m wondering is whether the justifications offered for these efforts represent a vindication of the principles of “liberalism." In other words, I’m wondering whether Bush's speech vindicated the “Left" - or more precisely, the theoretical underpinnings of the Left.

To understand what I’m talking about, we need to go back to the historical sources that gave rise to what we now call liberalism and conservatism. Although this is a gross simplification of what is actually a spectrum, I think that the division between the “Right” and the “Left” traces back to Edmund Burke and Jean-Jacques Rousseau. Burke is the father of the modern Right, while Rousseau is the father of the modern Left.

Rousseau began with the assumption that humans are inherently good but that they are corrupted by society. The implication is that many of society’s ills – crime, jealousy, etc. – are caused by defects in the structure of society. You can begin to see Rousseau’s influence upon people like Marx. Under his assumption, crime (not every instance of it, we're speaking statistically) is the result of things like excessive inequality. Fix the inequality, and fix you the societal ill.

While his ideas can certain be abused (communism), they can also be put to good use. For example, Rousseau’s influence can clearly be seen in the great progressive programs of the 20th century – the New Deal and the Great Society. Although the programs are far from pure Rousseauianism (and that’s a good thing), the remnants of Rousseau are clear. The theoretical justification of these programs is that life can be made better by measured government intervention. Chipping in to eliminate poverty of the elderly makes life better by freeing them from their most basic material fears and concerns. A starving grandparent has no time for grandchildren. That's why it's called Social Security. So to an extent, things like Social Security make people better, if for no other reason than it frees them from certain conditions in which they have rational incentives to act badly (i.e, steal and murder).

And when it comes down to it, that’s why I’m a progressive. And that's why I support Social Security. I believe that government can make life better. Even though Reagan “small governmentism” has been in vogue for quite some time, maybe we're beginning to see the inevitable reaction against it. Maybe it will become cool once again to believe in the power of government to improve lives - and to stop pretending government is a destructive, oppressive force. For Democrats to finally move beyond the Reagan paradigm, they must rehabilitate the image of government. [What’s funny, though, is that the same people you hear bash government in the abstract oppose ending things like Social Security, Medicare, Medicaid and federal education spending.]

But getting back to my point (before raj attacks me for wandering), Burke is different. Burke believes that man is inherently bad. He adopts the notion of original sin. Under Burke’s view (and George Will is probably the most Burkean GOPer these days), man cannot be improved. Government should simply establish a sphere of freedoms (i.e., traditional liberalism) such as protection of property and get out of the way. To Burke, what makes society work is not the improvements of social planners, but custom and religion. The underlying structures of family, community, tribe, state, law, and nation are what really matter. Even if these customs had their problems, Burke thought a gradual organic change was much better than a quick revolution. That’s why something like the French Revolution was so abhorrent to Burke. It destroyed custom in the name of an abstract ideal. And Burke was vindicated – the French Revolution degenerated into a tyranny, much like the Bolshevik Revolution.

You can see traces of Burke’s influence in modern conservative thought (prior to its “neo” days). The theoretical justification against social programs is that they cannot make life better. Man cannot be improved through government programs. Burke also provides a theoretical justification for opposition to certain social movements – or at least to the speed of those social movements.

These, then, are the two great poles of the spectrum of American political thought. [As I explained here, though, it may be a mistake to think of American political thought as being linear.] But for now, let’s assume that the abstraction is correct – Burke is father of Right, Rousseau the Left. And everyone falls somewhere along the line.

So I ask you – where does Iraq fit? On one level, it’s as purely anti-Burke as you can possibly get. It is an attempt to overthrow custom (flawed custom, but custom nonetheless) in a mere second, and replace it with the abstract Western (indeed, French) idea of liberty, freedom, and democracy.

But getting away from the actual invasion, Bush’s policy of nation-building and democracy-spreading through the use of federal government action strikes me as more consistent with the New Deal than with Grover Norquist. Or more precisely, more Rousseau than Burke. Just go read Bush’s speech. He is basically saying what Rousseau was saying – society causes men to be bad. Fix the society, and life can be improved. Remove the societal, man-made obstacles to man’s inner goodness, and the incentives for hatred will vanish away.

For as long as whole regions of the world simmer in resentment and tyranny, prone to ideologies that feed hatred and excuse murder, violence will gather, and multiply in destructive power, and cross the most defended borders, and raise a mortal threat. There is only one force of history that can break the reign of hatred and resentment, and expose the pretensions of tyrants, and reward the hopes of the decent and tolerant, and that is the force of human freedom.

Sounds like a Lefty to me.

But on another level, I wonder if the neocons ever see the contradiction. The theoretical justifications needed for nation-building and democracy-spreading seem more consistent with the great Democratic economic programs of the 20th century than with obsessive tax-cutting. Isn’t there an inherent contradiction in opposing programs at home that depend upon the very same assumptions used to justify efforts abroad?

And I suppose the same question could be asked of progressives. Don’t our values require us to support what’s going in Iraq? On some level, the answer is yes. But that doesn’t mean that such things should be supported if they can only be imposed by war. If this were only an issue of adopting a new foreign policy of spreading democracy and strengthening foreign aid outside the context of war, I would be first in line to support reform in the Middle East. But war is different.

And besides, the war was marketed as an act of national defense. I’m not going to pretend otherwise now. But that said, I do hope Iraq goes well, even if it helps Bush’s legacy. I’m not going to hope for a horrible civil war to spite my face.

__________

This is amusing. The RNC has the NYT on-message:

[T]he AARP released a poll showing little public support for personal accounts . . . Moderate Republicans like Senator Olympia J. Snowe of Maine have suggested they are unconvinced about the need to create personal accounts.

But the Washington Times, by contrast, is off-message:

Mr. Thomas shot these arrows even though he supports private accounts. . . . The good news is that George Bush has not wavered in his commitment to making private investment accounts the centerpiece of any reform plan.

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To quote the Dandy Warhols, Matthew Yglesias thinks that the “counterintuitive liberal case against Roe” is so passé:

[T]his is the most common, obvious, banal, and widely circulated counterintuitive argument on the face of the planet. Writers and editors who think they're being bold, daring, or even minimally interesting by giving voice to it are living in a spider hole of denial of some sort. What would be really counterintuitive would be an article arguing [that] Roe v. Wade was a correct decision as a matter of law.

As some very long-time readers might remember, this banal position is one I have taken – pro-choice, but anti-Roe. Or as I prefer to say, anti-criminalization as opposed to pro-criminalization. While nothing would make me happier than to find a way to justify Roe, I’m not sure I can. But what I can do is point would-be Roe defenders into the right neighborhood and wish them the best. So today, I’m going to try to lay the intellectual groundwork necessary for those who feel up to Matt’s challenge. I can’t finish the job, but I can get you close.

But first things first. I know that abortion is highly emotional issue. Some see it as a fundamental liberty, others see it as murder. Whatever your view may be, that view is logically irrelevant to the legal correctness of Roe. In assessing the constitutional validity of Roe, you must divorce emotion from logic. With that disclaimer, we can begin.

First, you should know that the constitutional basis for Roe is the “due process” clause. Historically, the right of “due process” simply meant that you could not be imprisoned or have property taken from you without certain procedures (i.e., trial by jury) in place. For most of its existence, it was a right to certain procedures – thus the name “due process.” Over the course of American legal history, however, the concept expanded beyond mere procedure and began incorporating broader liberties. For instance, the old Lochner line of cases was based on the idea of economic liberty. According to the logic of Lochner, a legally mandated forty-hour work week infringed upon your liberty and thus violated your due process rights, or so the argument went. [On an aside, "economic liberty" was a way to attack labor unions and work regulations.] This sort of due process became to be known as “substantive due process,” which is quite different from procedural due process. Like Lochner, Roe was a substantive due process case.

Over time, and because FDR was president for four terms, the reign of “economic liberty” (the 1920s’ version of the ownership society) was dead by the end of World War II. But substantive due process lived on in the form of certain personal, non-economic liberties. This, then, brings us to the first important step in justifying Roe:

(1) Roe is merely one small subset of the larger right to privacy that our Constitution currently protects in a number of ways.

This is a critical point. The constitutional argument against Roe is not so much that Roe itself was wrong, but that the very idea of a constitutional right to privacy in the realm of family, child-rearing, and intimate relations is wrong. Roe was not the first case to find a privacy right in the Constitution. In fact, it is the earlier cases upon which Roe is based that are more critical. If they are correct, then Roe is good law, as a matter of logic. I suspect I’m losing some people, so let me back up. For almost a century, the Supreme Court has recognized a number of rights based on the idea of substantive due process. See if you can detect a pattern (I relied upon this site for the case names):

(1923) Meyer v. Nebraska: Supreme Court strikes down law requiring English-only education in private schools. This violated the right of parents to control their children’s education. (The law was a product of anti-German sentiment in World War I.)

(1925) Pierce v. Society of Sisters: Following Meyer, the Supreme Court strikes down a law requiring all children to attend public schools (this was an anti-Catholic law).

(1942) Skinner v. Oklahoma: Oklahoma cannot involuntarily sterilize criminals. The Court declares that “[r]eproduction is one of the basic rights of man.”

(1965) Griswold v. Connecticut: Connecticut cannot ban married couples from obtaining contraceptives. The Court relied on Meyer and Pierce, and said “We deal with a right of privacy older than the Bill of Rights.”

(1972) Eisenstadt v. Baird: Same as Griswold, except for unmarried couples this time.

(1973) Roe v. Wade

(1977) Moore v. City of East Cleveland: Supreme Court strikes down zoning law that required all members of a single unit to be members of the same family (a grandmother was raising her grandchildren, who were cousins).

(2003) Lawrence v. Texas: State cannot punish sex between consenting adult homosexuals.

The pattern here is that all these cases involve protecting a constellation of rights surrounding family, marriage, child-rearing, and intimate relations. Viewed in context, Roe is hardly an outlier or the act of wild unprincipled activism it’s often made out to be. It’s part and parcel of the larger and logically coherent pattern of cases protecting family liberties and family privacy. So, the real issue is not Roe. The real question is whether you want to throw out this entire line of logically related cases. And that brings me to point #2:

(2) Roe cannot be separated from the more general line of “right-to-privacy” cases.

If there is no right to privacy in the family/child-rearing context, there is no right to privacy. You either take it all or leave it all. And that’s the problem for many conservatives (traditional “liberals” that is – not the Robespierre neocons). They want to get rid of Roe, but they don’t want to abandon some of these other protected liberties such as the right to attend private school. Originalists solve this problem by declaring that the rights they like existed in 1791 (that’s a bit snarky, but I would argue that it’s not far from what is actually going on). But for those of us who consider ourselves textualists (non-originalist textualists), I don’t see how there can be an unenumerated right to attend private school, or obtain contraception while married, but no unenumerated right to have the freedom to decide one of the most fundamental issues anyone can face – whether to have a child. I suppose you could argue that a case like Lawrence doesn’t fit within in this family/child-rearing sphere, but not Roe. If there is a sphere of family privacy, Roe fits. If it doesn’t fit, it means that you’re tossing the entire sphere out of the Constitution. And that brings me to point #3:

(3) To justify Roe, you must justify the line of cases protecting privacy in the familial realm.

If you can find a way to justify the line of cases listed above, you can justify Roe as a matter of law. It’s that simple. But this is where I must leave you, for I cannot. There is simply no right to privacy listed in the Constitution. As a textualist, my jurisprudence inclines me to throw the whole thing out. Textually speaking, the only possibilities are the Ninth Amendment and perhaps the First Amendment (some mutation of the right to expression). The sorely-missed Curmudgeonly Clerk best captured my views on the Ninth Amendment, and why it won’t work (and he includes links to the larger Ninth Amendment debate hosted by Feddie last winter).

So that's the road to the promised land people. If you can justify that line of cases, you will have brought us all out of our wandering through the jurisprudential wilderness.

(4) If text can’t justify Roe, there is one other possible way – stare decisis (or the binding-ness of precedent).

This is one of the hottest topics for originalists right now, or those believe the Constitution should mean what it was understood to mean in the 1790s. One problem facing originalists is how to get around precedent that has existed for a long time, but is not consistent with original understanding. People like Justice Thomas (still no apology, by the way) would toss out all precedent in constitutional cases. Others, like Scalia, think that precedent (even erroneous precedent) has at least some binding power.

This, then, may be the answer. To justify Roe, progressives should adopt the pro-stare decisis arguments adopted by the people arguing against Justice Thomas’s position. In short, use their own words to justify their most hated line of cases. Just listen to Professor Solum defending precedent:

[T]he stronger the doctrine of stare decisis, the lower the risk of politicization. Precisely because the Constitution has abstract and ambiguous clauses, there will be a great temptation for the poltical branches of government to affect constitutional interpretation. A strong doctrine of stare decisis limits this opportunity to those issues which are left open by prior decisions. A weak doctrine of stare decisis inherently increases the incentives for and hence the likelihood of politicization.

That argument works pretty well for the right-to-privacy cases, no? From at least 1923 on, the Supreme Court has consistently interpreted the due process to include protections for certain actions taken within the limited sphere of family relations – which includes reproduction, child-rearing, and intimate relations. For the same reasons that stare decisis should be respected, this line of cases should also be respected, regardless of your view of the text or original understanding (assuming you’re not in the Thomas camp). Remember too that Roe is merely a subset of these cases and cannot be extricated from them without abandoning logical consistency to political preference (that's an important assumption - though I think it's justified - and I might address it separately in a different post).

Again, I fear I’m too much of a textualist to go this far, but this line of argument seems the most promising. So that’s it. Roe revivalists have two options – (1) textually justify the right to privacy; or (2) use stare decisis. Good luck.

__________

Well, I was afraid this might happen. I feared it was only a matter of time before Bush started getting compared to Lincoln. And right on cue, NRO’s Michael Novak comes through (and notice how Social Security gets subtly compared to slavery and tyranny):

In his day, Abraham Lincoln called forth a “new birth of freedom,” meaning the end of slavery in the Southern states and a new beginning. Bush calls forth a “new birth of freedom" too, meaning in the whole world as an alternative to tyranny, and in America’s internal life in an end to a culture of dependency upon the state.

I’m sorry, but this man is not allowed to present himself as some kind of moral voice for human liberty. Not after the actions he has taken. No frickin’ way. He is disqualified.

To explain why, I want to return briefly to the Kaus v. Sullivan debate that I promised I would get back to. The reason that Kaus’s attack on Sullivan is justified is not because Sullivan wrote some very nasty things about those who opposed the invasion of Iraq a year ago. Kaus’s attack is justified because of what Sullivan is saying today. For instance, Kaus writes that Sullivan is “dismayed at the ‘bizarre [notion] gaining traction in the blogosphere ... that there can only be two positions on the Iraq war.’” This from the man who wrote:

I think what we're seeing now is the hard-core base of the Democratic Party showing its true colors, and those colors, having flirted with irrelevance and then insouciance are now perilously close to treason.

I’m sorry, but Sullivan is disqualified from moaning about the polarization of the blogosphere surrounding the Iraq war – not after what he wrote. He too exploited 9/11, and because he did, he is disqualified from being a moral authority for non-partisanship and non-polarization - at least until he offers a mea culpa.

The point is that the past matters. Obviously, people can be wrong. And one’s views can change and evolve. But you simply can’t claim moral superiority for a new position until you have taken some responsibility for certain past actions that contradicted your current position. The past matters.

And that’s why I’m troubled by the whole Bush-as-the-world-historical-hero-of-freedom theme that is sweeping through the neocon-friendly blogosphere. I’m sorry, but he’s not speaking on a blank slate. The Bush administration has taken certain actions, and those actions must be accounted for before Bush should be crowned as the moral hero for our generation.

This is an administration that authorized torture. You can’t be the moral authority for freedom and authorize torture. You are disqualified.

This is an administration that suspended the Geneva Convention. You can’t be the moral authority for freedom and suspend international humanitarian protections. You are disqualified.

This is an administration that lied about nuclear weapons capabilities and terrorist connections before taking a nation to war. Think about that. We sent our kids to war based on the statements about aluminum tubes, yellowcake, and mushroom clouds – all of which were known lies by March of 2003. When you lie about the justifications for war, you can’t be the moral authority for freedom. You are disqualified.

This is an administration that wilfully ignored all expert advice before going into Iraq. The lack of planning has resulted in thousands of unnecessary American casualties. It has also led to the killing of many times more Iraqi civilians than the number that died on 9/11. It is most likely going to result in a destabilizing, terrorist-producing civil war. That is the reality of our actions. Those who play dice with death so casually lack the moral authority to preach to anyone about freedom. They are disqualified.

If you want to know why I juxtaposed Bush’s quotes with those disturbing pictures this weekend, it’s because I want to stress that actions matter. Americans like to hear that they are promoting liberty and freedom because it helps them sleep at night. They don’t want to see the reality of razed cities and bloody orphaned girls. They don’t want to think of the strained military families or the veterans with lost limbs. They don’t want to see the horrors of “war” – an abstract word that itself masks the horrors of combat. The pictures make it more clear exactly what happens when nations go to war. The pictures show reality.

Wars are terrible things. They aren't video games, or sports contests. They bring unspeakable horrors to all involved. That’s why they are to be avoided at all costs – and undertaken only when absolutely necessary. Even if you agree with the war, it's undeniable that the Bush administration seemed to take every step possible both to ensure defeat and to produce something worse than it found. You can't hide this reality my repackaging a war to disarm Saddam into some more abstract quest for liberty. And you for damn sure can't use the greatest strategic military blunder in modern American history to cement your place in history as a great liberator. You are disqualified.

To send young men and women into this hell through lies and half-truths – to send them in under rosy assumptions that gleefully ignore all history and expert advice – to risk utter destabilization of the Middle East and the humanitarian disaster that would follow – is nothing short of criminal.

And then to turn around and try to paint these policies as some sort of Lincolnesque strike for human freedom is obscene.

__________

Jonah Goldberg, 1/20/05:

In his stirring second inaugural the president declared, “Today, America speaks anew to the peoples of the world: All who live in tyranny and hopelessness can know the United States will not ignore your oppression, or excuse your oppressors. When you stand for your liberty, we will stand with you.”

That really is the stuff of an American revolutionary.

. . .

What conservatives understood then and what President Bush understands now is that America itself is a radical nation, founded on the revolutionary principle that self-government is simultaneously the best form of government and the most moral. And that lovers of liberty in all parties should seek to conserve that legacy. The circumstances we face today are new, but the principles are eternal. So yes, George W. Bush is a revolutionary, but he is merely the latest in a long line of American revolutionaries.

Jonah Goldberg, 1/21/01:

First of all, what do we know about Edmund Burke? Well, we know he was a hoss. We know that he was the founder of modern conservatism. . . . In other words, he was a man who lived in the real world. He despised abstractions, especially of the French variety. French bleating about "fraternity" was so much "cant and gibberish," he said. He argued that he himself loved "a manly, moral, regulated liberty as well as any gentleman in France," but he wouldn't "stand forward and give praise" to a concept "stripped of all concrete relations" and standing "in all the solitude of a metaphysical idea."

. . .

Burke recognized the need for reform (the lack of it, he believed, forced the American colonists to revolt) and he did not fear change. "A state without the means of some change," he wrote, "is without the means of its conservation." But he thought haste in the realm of reform led to even greater injustice than deliberate inaction. "Preserving my principles unshaken," he said, "I reserve my activity for rational endeavors," rather than the excesses of revolutionaries and other social planners. "I must bear with infirmities until they fester into crimes," he once said. It's not that Burke was blind to injustice. In fact his record on spotting problems is better than just about everybody's. No, Burke simply didn't trust the problem-solvers. No single individual is smart enough to impose changes on society willy-nilly.

Jean-Jacques W. Bush - the face of modern conservatism.

__________

Bush:

From the day of our Founding, we have proclaimed that every man and woman on this earth has rights, and dignity, and matchless value, because they bear the image of the Maker of Heaven and earth. . . . We will persistently clarify the choice before every ruler and every nation: The moral choice between oppression, which is always wrong, and freedom, which is eternally right.

T.S. Eliot, Burnt Norton:

Words strain,
Crack and sometimes break, under the burden,
Under the tension, slip, slide, perish,
Decay with imprecision, will not stay in place,
Will not stay still. Shrieking voices
Scoling, mocking, or merely chattering,
Always assail them.

(Via Billmon) January 2005: A terrified Iraqi girl screams after her parents were killed when American soldiers fired on their car after it failed to stop, despite warning shots, in Tal Afar, Iraq.


William Faulkner, As I Lay Dying:

That was when I learned words are not good; that words dont ever fit even what they are trying to say at. . . . I would think how words go straight up in a thin line, quick and harmless, and how terribly doing goes along the earth, clinging to it, so that after a while the two lines are too far apart for the same person to straddle from one to the other; and that sin and love and fear [and freedom] are just sounds that people who never sinned nor loved nor feared [nor helped human freedom] have for what they never had and cannot have until they forgot the words.

Ernest Hemingway, A Farewell to Arms:

Abstract words such as glory, honor, courage, [freedom] or hallow were obscene beside the concrete names of villages, the numbers of roads, the names of rivers, the numbers of regiments and the dates.

__________

I strongly recommend participating in Josh Marshall's contest to find "privatization" quotes. This is exactly that sort of collective effort that the blogosphere is uniquely suited to provide.

I know many of you are law students with free access to Lexis. In case you don't know, you can search for transcripts of radio and TV interviews - which I suspect will be where the best quotes come from. Just go to the "News" tab and search under the "transcripts" database. This is important. If Josh can assemble a ton of quotes, it will impossible for the RNC/noise machine to cry foul when journalists call the proposal what it is - privatization.

__________

Via Kevin Drum, I see that Jonah Goldberg is curious about the relative silence regarding Bush’s inauguration around the liberal blogosphere. Like Kevin, I had exactly zero desire to say anything about it. And I’m proud to say that I didn’t watch one minute of coverage today – though I did read the text of the speech. I just had an overwhelming desire to avoid the whole thing. But it’s not just the inauguration that I want to avoid – something new is coming over me. I think I have Bush fatigue. It’s not so much anger as it is a desire to avoid any situation where I have to acknowledge his existence. I don’t want to see him, I don’t want to hear him, I don’t want to read about him, and I don’t want to write about him.

It’s a strange feeling. It’s not really anger, it’s more like exhaustion - or maybe exasperation. For instance, I spent a long time trying to think up an interesting angle on the inauguration for my post at TAS, but I couldn’t bring myself to do it (I ended up doing a post on Bush and Shakespeare plays). I mean, what more can I say that hasn’t been said? Should I rail against the lying? Or fear-mongering? Or gay-baiting? Or torture? Or the whoring of 9/11? Or fiscal insanity? Or Ayatollah Dobson? Or Rumsfeld? Or deficits? Or our looming failure in Iraq? Or the tax shift to labor and wages? Or stem cells? Or the environment? Or the hopeless disconnect between rhetoric and reality? I’ve already said it – repeatedly. So what’s the point? The American people have endorsed it all – every bit of it. This wasn’t the bait-and-switch of 2000. We knew exactly what had happened over the past four years. And the American people endorsed it - all of it. His failures are now our own.

It’s like Bush said:

We had an accountability moment, and that's called the 2004 elections.

That’s exactly right. What possible incentive does Bush have to do anything differently? None. The people have spoken. Our side lost.

Tom Friedman talked to some Europeans who share my sentiments exactly:

"Europeans were convinced that Kerry had won on election night and were telling themselves that they knew all along that Americans were not all that bad - and then suddenly, as the truth emerged, there was a feeling of slow resignation: 'Oh well, we've been dreaming,' " said Dominique Moisi, one of France's top foreign policy analysts. "In fact, real America is moving away from us. We don't share the same values. . . . It is not that we are so much against America, it is that we cannot understand the evolution of that country. ... This election has weakened the concept of 'the West.'”

I don’t understand it either Dominique. I really don’t. I wish I did, but I don’t.

I suppose this is irresponsible and that inaugurations are supposed to be about new beginnings and opportunities and all that. If I were a good citizen, I suppose I would reach out like David Broder and try to find something nice to say (even if it is utterly insincere and borderline idiotic):

Supporters and critics can agree that the nation is fortunate that its leader is a man prepared to cope with radically changed circumstances, a person of fixed principles but not one wedded to policies of the past.

Well, I’m sorry David, but I don’t agree. In fact, I disagree with you about as strongly as one person can disagree with another. To take but one example, the entire Iraq war was the product of nation-state-centric thinking that indicated a lack of preparation to cope with radically changed circumstances. But I digress. . .

If you’re happy that Bush won, congratulations. Enjoy it. Rub it in if you want. But please do me just one favor – spare me any shit about how I need to rally behind this administration in the name of national unity and the challenges ahead. I won’t do it. We did that once already and you see where it got us. We gave Bush the benefit of the doubt after 9/11 – we rallied behind him – only to see the national tragedy used to hammer us in the lead-up to war, at the Republican Convention, and throughout the election. Democrats who try to lend a bipartisan hand in the name of national unity are treated the same as those who don’t are. So no thank you. He may do things that I agree with, but I will never support him. I will be ecstatic if Iraq succeeds, and I would hope that everyone shares the same goal, but I will never support him. My rejection of this man and this administration is so complete that there is quite literally nothing he can ever do to gain my trust or my support.

This is not my president.

[UPDATE: I will concede one point and agree with Yglesias - it was a damn fine speech on paper. Totally divorced from reality, but very good - both linguistically and philosophically. It's the best Gerson has written.

Hell, I guess I will have do a post on it after all. But not tonight.]

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Sorry to butt in, but I do hope everyone is keeping an eye on the Kaus v. Sullivan debate. I'll have more to say tomorrow, but there are two quick points I want to make. First, for all recent thoughtfulness, Sullivan has yet to come to terms with how poisonous his vitriol was - vitriol he consistently spouted for nearly a year about a subject he was almost 100% wrong about, and about which his demonized targets were right. Second, because he is unwilling to go back and accept the reality of his words, Sullivan's view on the war is becoming, well, Kerry-like. Today, he tells us that he still opposed Hans Blix, even though Blix was right, and that Bush "was right to do what he did" even though it was wrong for reasons Blix told him. Oh yeah, and apparently the oil-for-food program now justifies the war.

Total Legal Fiction aims to satisfy all of our constituents, so we offer something shorter and bloggier with a healthy dose of snark for those not looking for a freakin' treatise. And while I'm squeezing every ounce out of my Thursday dalliance with the Legal Fiction crowd, I thought I would introduce you all to my favorite Australian blogger, Tim Dunlop from The Road To Surfdom (I notice that the rabble rousing Doc Biobrain has infiltrated the comments section on that site as well. I will deal with him separately.). Today Tim has a rather remarkable quote from outgoing Deputy Secretary of State Richard Armitage:

"I'm disappointed that Iraq hasn't turned out better. And that we weren't able to move forward more meaningfully in the Middle East peace process."

Then, after a minute's pause, he adds a third regret: "The biggest regret is that we didn't stop 9/11. And then in the wake of 9/11, instead of redoubling what is our traditional export of hope and optimism we exported our fear and our anger. And presented a very intense and angry face to the world. I regret that a lot."

Cue right-wing punditry talking points for takedown of yet another lifelong Republican straying from the pack. Please choose from the following menu (limit three items per pundit):

-Armitage hates America (alternatively, Armitage hates freedom)

-He's from the "blame America first" crowd

-He is a disgruntled former employee with an axe to grind

-His anti-Semitism is barely concealed

-Despite his military service, and Pentagon credentials, Armitage is really a product of the traitorous Clintonite State Department

-Armitage is a fuzzy-headed internationalist who doesn't understand the war on terror

-He's getting wobbly on us (for Norm P - he's a traitor)

-He is deserving of the (insert name of leftist thinker or other infamous historical figure) award


Try not to deviate from the list of acceptable memes. Repeat ad nauseum in response to any and all inquiries on the subject.

In the first part of this series, I attempted to provide a little history and context as background to the discussion of the preferred course going forward. We must recognize that the situation in Iraq is not exactly ideal before we can appreciate the need to make trade-offs between rocks and hard places. There are no easy fixes or magic bullets, and no paths without their own dangers - just a series of choices between lesser evils. Still, it is important to take care that we don't make "the good" the casualty of "the perfect" because there are still decisions to be made that could better the outcome.

Et Tu Stratfor?

Analysts from well respected, non-partisan think-tanks and policy shops like the International Crisis Group, the Chatham House, and the Center for Strategic and International Studies have been describing the deteriorating situation in Iraq since at least as far back as the Summer of 2004. But what really caught my eye was this recent assessment from the hawkish, pro-Iraq war organization known as Stratfor (via Andrew Sullivan):

The issue facing the Bush administration is simple. It can continue to fight the war as it has, hoping that a miracle will bring successes in 2005 that didn't happen in 2004. Alternatively, it can accept the reality that the guerrilla force is now self-sustaining and sufficiently large not to flicker out and face the fact that a U.S. conventional force of less than 150,000 is not likely to suppress the guerrillas. More to the point, it can recognize these facts: 1. The United States cannot re-engineer Iraq because the guerrillas will infiltrate every institution it creates. 2. That the United States by itself lacks the intelligence capabilities to fight an effective counterinsurgency. 3. That exposing U.S. forces to security responsibilities in this environment generates casualties without bringing the United States closer to the goal. 4. That the strain on the U.S. force is undermining its ability to react to opportunities and threats in the rest of the region. And that, therefore, this phase of the Iraq campaign must be halted as soon as possible.

Certainly, it would have been nice for the United States if it had been able to dominate Iraq thoroughly. Somewhere between "the U.S. blew it" and "there was never a chance" that possibility is gone. It would have been nice if the United States had never tried to control the situation, because now the United States is going to have to accept a defeat, which will destabilize the region psychologically for a while. But what is is, and the facts speak for themselves. [emphasis added]

For my money, that appraisal is worth a hundred feel-good stories from the likes of Arthur Chrenkoff. Remember, this is a policy group that was very much in the pro-invasion camp, offering numerous optimistic pre-war predictions, so the incentive is for them not to admit error and risk their reputation for accuracy. Lurking like the proverbial 300lb gorilla in the corner of the Stratfor report is the concept of disengagement. The first time I picked up on this talk from a Bush administration ally was when Robert Novak floated a pre-election trial balloon in late September which claimed, citing anonymous sources (which is something of a bad habit for him I suppose), that the Bush administration was planning on pulling out of Iraq in 2005.

Since then, there has been a perceptible, though initially subterranean, movement toward preparing the American public for the possibility that U.S. forces may need to begin drawing down in Iraq in the near future. In fact, the seismic rumblings have been growing so loud that Norman Podhoretz felt compelled to fire off a call to arms to defend the World War IV strategy in Iraq, and the series of subsequent invasions he recommends as part of that doctrine.

Although the Vietnam analogies are somewhat overused, Podhoretz feels perfectly comfortable rehashing an old favorite: the enemy within meme. According to Podhoretz, Bush is resolutely committed to waging World War IV (perhaps some wishful thinking, but in light of recent rhetoric surrounding Iran, maybe not). But if Bush were to waver, it would only be because of the pressure from the near-treasonous "Left" with their allies found amongst the ranks of the "wobbly Right." If the Iraq endeavor collapses, that failure, like Vietnam, will not be the result of a flaw in the policy or its execution, but rather because of the objections of certain truculent Americans. I recently called this instantaneous attempt to recast present history "revisionism in real time." I'm beginning to think it is more aptly described as "pre-emptive revisionism."

Despite the inevitable attempts by Podhoretz and his ilk to recast any eventual withdrawal as the fault of the Left regardless of who holds the power, I am somewhat thankful that Kerry lost the election at least in this context. Paraphrasing an earlier post: If the US must pull out of Iraq in defeat and ignominy, let it be the Bush administration's legacy alone, because they are the rightful owners. In some bizarre sense I am relieved by the fact that there will not be a liberal scapegoat in the White House to be held accountable for this failure in policy, if that is what the Iraq invasion turns out to be. I'm not sure how long it would take the Democrats to live down the stigma attached to the "party of retreat" if a hypothetical President Kerry had to make such a decision. Maybe he would realize the strategic blow this would deal his compatriots and thus be inclined to remain in Iraq past the point of no return, in turn causing more harm. This is part of what I meant when I said back in August that if Bush wins, he loses. Let's hope it never comes to that.

The Logic Of Disengagement

My initial gut reaction when I heard Novak and others begin to lay the groundwork for disengagement was to reject the notion outright. I believe that the U.S. presence is keeping the lid on the civil war that is bubbling under the surface which could erupt if we were to withdraw from the arena. I think we owe the Iraqi people to try to hold their country together. So when I picked up the latest issue of Foreign Affairs and saw on the cover the lede which read Iraq: Get Out Now or Later? and two authors listed underneath it, James Dobbins and Edward Luttwak, I was expecting to see this issue approached from two divergent angles. While Luttwak and Dobbins differ in some regards, I was struck by the fact that both suggest that not only is disengagement an imminent event, but that it may actually benefit Iraq and our mission there. The Zen of foreign policy: if you want to attain your goals, let them go.

Dobbins captures the current predicament succinctly:

Keeping U.S. troops in Iraq will only provoke fiercer and more widespread resistance, but withdrawing them too soon could spark a civil war. The second administration of George W. Bush seems to be left with the choice between making things worse slowly or quickly.

An important caveat: as you can tell from that quote, both writers are cognizant of the perils of disengagement, and neither is suggesting a hasty retreat or one that pays no regard to the situation on the ground. Yet both maintain that it in some ways the very nature of our presence is hindering the development of cooperation from the Iraqis, the formation of democratic institutions, and the creation of stability. This is partly the result of the pre-existing animosity and cynicism regarding the United States that I discussed in Part I. Recall the potency of these sentiments in the examples of Spain and Italy that Luttwak cited. Of course any military campaign with its attendant collateral damage and brutality, even noble in spirit, is also likely engender anger and resentment among the target population - let alone a population already propagandized. Luttwak weighs in:

If Iraq could indeed be transformed into a successful democracy by a more prolonged occupation, as Germany and Japan were after 1945, then of course any disengagement would be a great mistake. In both of those countries, however, by the time U.S. occupation forces arrived the local populations were already thoroughly disenthralled from violent ideologies, and so they eagerly collaborated with their occupiers to construct democratic institutions. Unfortunately, because of the hostile sentiments of the Iraqi population, the relevant precedents for Iraq are far different.

The theory is that by beginning preparations to withdraw, several goals can be accomplished at once. First, the propaganda built up around the charge that the U.S. is a permanent imperial interloper exploiting Iraqis for their natural resources would lose its force. In addition, by removing our polarizing presence from the equation, the dynamic within the counterinsurgency operations themselves could be altered to the favor of Iraq. Dobbins again:

American forces have lost the support of the Iraqi population and probably cannot regain it. The insurgency can be defeated only by Iraqi forces under Iraqi leadership, and only to the degree that those forces can dramatically reduce their dependence on the United States. Military operations should be governed by a counterinsurgency strategy emphasizing pacification--that is to say, priority should be given to securing the civilian population, not hunting down insurgents. In the end, insurgencies are defeated not by killing insurgents, but by winning the support of the population and thus denying the insurgents both refuge and recruits.

Such caution is all the more warranted because, in one important respect, the Iraqi insurgency is very different from the communist and nationalist insurgencies of the Cold War: it lacks unity of command and an overarching ideology. The only factor that unites Muslim fundamentalist mujahideen, secular Baathist holdouts, and Shiite extremists is their desire to expel American forces--a goal that a majority of the Iraqi people seems to share, too. If that rallying cause can be weakened by diminishing Washington's involvement, the Iraqi government should be able to play on divisions among the rebels, steering some of them away from violence and toward the political mainstream, while marginalizing or dividing the rest.

Dobbins is correct to note that our presence has created a unifying force for several presumptively antagonistic factions. Many Shiites are taking advantage of the luxury of the security provided by our presence to forge bonds with ex-Baathists who would turn their belligerence back on them should we actually withdraw. Maybe this eventuality will inspire a reality check and some increased cooperation on the part of the Shiites.

Luttwak extends this theory to the nearby environs. Iraq's neighbors like Turkey, Iran, Syria, Saudi Arabia, etc., have been guilty of either apathetic complacency or the active undermining of our efforts. But if our departure were incipient, Luttwak argues, there is a good chance that these erstwhile trouble makers would have to come to grips with the fact that if they do not contribute to Iraq's stability, or at least stop undermining it, they would have the prospect of a failed state as a neighbor - a less than savory notion. There is even the prospect - albeit remote - that our withdrawal from the region could inspire some multilateral organizations like the UN or NATO to step into the void. In that sense, Luttwak suggests that we should let necessity be the mother of intervention.

What I find intriguing in the theories put forth by Dobbins and Luttwak is, regardless of the success of joining other nations to the cause, they unlock the mechanism by which the U.S. can regain a bit of much needed leverage and initiative. This is especially important in terms of crafting the parameters of the election and the characteristics of the subsequent governing body. In a recent post on TIA, I discussed the underlying tensions between the various competing ethnic groups in Iraq, and how they each view the upcoming elections. I offered a series of suggestions that we could incorporate into our policy in order to navigate between the Scylla and Charybdis of the new Iraq. Here is a brief summary:

First, we must come to grips with the fact that the elections might result in a representative government that suits the tastes of a majority of Iraqis, but which runs counter to our democratic sensibilities and at least some of our stated goals and purposes in the region. As I mentioned in Part I, the democratic credentials of many influential Iraqis are dubious at best. However, the new government must appear legitimate in the eyes of the Iraqi people, so we must not attempt to manipulate the outcome or interfere with too heavy a hand. The perception of subservience to the U.S. is the kiss of death for Iraqi politicians as is, and we certainly would not want to undermine our allies going forward.

Thus, while we should try to influence the process through our counsel, we must be ultimately willing to accept some form of religiosity in the government, a certain level of hostility to Israel, and even the prospect that the Shiite regime that assumes power will ask us to leave (but perhaps therein lies our trump card pace Luttwak and Dobbins). More importantly, we should stress to the Shiite leadership that they should take an enlightened approach to dealing with the Sunnis, the Kurds, religious freedoms, and other basic rights in general.

In addition we must urge the new regime to adopt some measure for guaranteeing a certain level of Sunni representation in the legislature and, of greater long term impact, in the assembly that will draft the permanent constitution. I discussed two options for achieving this in that post: 1) A one-time guaranteed set aside for Sunni candidates in the legislature based on overall population not turn out (ie 20% of the seats regardless of election day results); 2) A guaranteed level of representation in the constitutional assembly regardless of the actual make-up of the legislature in order to insure a Sunni voice in that process. Without such concessions, civil war and/or fragmentation are almost inevitable.

The problem with all of these goals and recommendations is that there is nothing overly persuasive backing them up. If Sistani and the Shiite leadership refuse to compromise, and they have many reasons to choose such intransigence, there is little we can do to confront them that would not spark an entire nation of insurgents. Yet Sistani's cooperation on the matters of inclusion is needed to forge a stable Iraq. Maybe, then, the prospect of our withdrawal from the arena, and the manner in which we intend to go about that, can provide incentive for Sistani to take our suggestions seriously. The gambit is, that at the moment we appear most willing to let go, Sistani will realize how much he needs us.

Conclusion

It is with some trepidation that I venture out on to the thin ice of disengagement. Maybe the shrill cries of "cut and run" are still ringing in my ears from the election. Of course, back then we were warned that such was the duplicitous plan of John Kerry should he be elected. Now we are learning that it might be the new version of "stay the course." But the dangers from disengagement persist. So let me say this, I am willing to support our involvement in Iraq for as long as it takes to help Iraq emerge as a peaceful democratic nation. But there is a point at which our presence becomes more hindrance than facilitator, and we may be fast approaching that time. The sands are shifting under our feet, and new assessments must be made regularly.

If we heed the advice of Stratfor, Luttwak, and Dobbins, disengagement would be a deliberate and measured operation - not a clamoring for the helicopters lifting off of the embassy grounds in Saigon. A reckless retreat would open another dozen Pandora's boxes.

Yet Iraq cannot simply be evacuated, its fledgling government abandoned to face emboldened Baath loyalists and Sunni-Arab revanchists with their many armed groups, local and foreign Islamists with their terrorist skills, and whatever Shiite militias are left out of the government. In such a contest, the government, with its newly raised security forces of doubtful loyalty, is unlikely to prevail. Nor are the victors likely to divide the country peacefully among themselves; civil war of one kind or another would almost certainly follow. An anarchical Iraq would both threaten the stability of neighboring countries and offer opportunities for their interference--which might even escalate to the point of outright invasions by Iran, or Turkey, or both, initiating new cycles of resistance, repression, and violence.

Instead, the process would be one of careful statecraft and planning in order to bring the relevant parties into the process and insure that the pace of withdrawal tracked with actual events and exigencies. Something along the lines of this description by Luttwak:

Given all that has happened in Iraq to date, the best strategy for the United States is disengagement. This would call for the careful planning and scheduling of the withdrawal of U.S. forces from much of the country--while making due provisions for sharp punitive strikes against any attempt to harass the withdrawing forces. But it would primarily require an intense diplomatic effort, to prepare and conduct parallel negotiations with several parties inside Iraq and out. All have much to lose or gain depending on exactly how the U.S. withdrawal is carried out, and this would give Washington a great deal of leverage that could be used to advance U.S. interests.

Podhoretz would probably call me a traitor for even suggesting this route, but at a time when the status quo is becoming ever more indefensible, we must be willing to look at all the options. Staying the course is just not going to cut it.