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.]

__________

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.

Much of the blogosphere, and related foreign policy circles, are abuzz with talk about Iraqi elections scheduled to be held in just under two weeks - and to what degree those elections might impact the future of Iraq. The opinions range from utter cynicism and cries of an American imperialistic charade on one side, to a belief that elections are the equivalent of democracy and themselves a panacea for Iraq's woes on the other. As usual, the truth probably lies in the middle.

Many Iraqis may not end up going to the polls on the 30th out of security concerns and/or disenchantment with the process, and still others may overcome their misgivings to take part in elections that they perceive as somewhat tainted and illegitimate - not an altogether outlandish claim considering there is an occupying army in their midst. Further, it is unclear if the regime that emerges from this electoral exercise will enjoy the endorsement of enough of the Iraqi people to begin moving that country toward unity, stability, and sovereignty. Nevertheless, channeling our lexically enigmatic Secretary of Defense: these are the elections we have, if not the ones we wish we had, so it is in all of our best interest to insure that they are designed and carried out in a way that is most conducive to the formation of a stable, peaceful, and democratic Iraq.

As such, I thought it would be an ideal time to follow up on some themes I have been covering on TIA, and to consider some of the lessons we have learned up until this point. An unvarnished appraisal of certain aspects of the past two years, and the relevant history, should help to inform some of the choices we can make vis a vis the elections, the resulting governing body, and the role of the U.S. military in the future Iraq. The alternative to stability, a failed state in the heart of the Middle East, is so dire a scenario that prudence demands that all of us, even those among us who were opposed to this endeavor from the outset, should put our energies behind working for solutions. If it helps, imagine you are counseling President Kerry on what he might do had he inherited this labyrinth of Catch-22's from the Bush administration (one reason Kerry's loss had a silver lining of sorts).

Such a thought exercise has a way of demanding a certain level of intellectual discipline and seriousness, the lack of which publius lamented yesterday. It is far easier to criticize than it is to propose alternatives, and sometimes the incentive is not there when you accurately predicted before the fact many of the problems currently plaguing our mission. But now is not the time for smugness or spite, no matter how tempting those thoughts are (and trust me, I am often tempted).

Democracy Now?

In order to try to formulate a winning strategy in this phase of the Iraq conflict, it is important to look at some of the historical precedents involved, and how these might impact our decisions. Before I begin, I want to preemptively strike down the claim that any discussion of the difficulties of democracy promotion through military invasion is tantamount to claiming that Muslims and/or Arabs are incapable of democracy. That is nonsense, but at the same time, there are very real cultural, historical, and political factors that could and should influence the manner in which we seek to help the Muslim world to attain democratic reform.

As an aside, I find it mildly amusing that the pro-war camp accuses the Left of racism in this manner when the pro-war camp itself so often takes such a hostile position regarding the Muslim world that they are allegedly trying to help. There are those that advocate genocide (Glenn Reynolds), the indiscriminate "nuking" of a Muslim city (Savage), the flattening of Fallujah, the demonization of an entire religion, and many downplay the torture and abuse of detainees at Abu Ghraib (a prison population that Army Intelligence and the Red Cross have found to be 70-90% innocent of all transgressions). And of course, there is the prevalent meme that Muslims only understand force, not other forms of entreaty, or paraphrasing Charles Krauthammer, if you want to win their hearts and minds, you have grab their balls and squeeze hard. Liberal hawk Fareed Zakaria made the following observation:

The Republican convention had two alternating approaches toward foreigners. On the one hand, it repeatedly ridiculed them. The cheapest applause lines in New York last week were ones that ended in "the French," "Paris" or, worst of all, "the United Nations," which was probably meant to conjure up images of envious Third Worlders plotting against America. On the other hand, Republicans constantly declared they were going to deliver the blessings of liberty to the far corners of the world. This is the party's dilemma -- it wishes to spread liberty to people whom it doesn't really like. [emphasis added]

The truth is, there is a lot of space along the spectrum of democracy promotion between apathy and military invasion, and advocating a position along this continuum is not the equivalent of an ethnic critique. First a perspective on nation building via military involvement from conservative historian Francis Fukuyama:

America has been involved in approximately 18 nation-building projects between its conquest of the Philippines in 1899 and the current occupations of Afghanistan and Iraq, and the overall record is not a pretty one. The cases of unambiguous success-Germany, Japan, and South Korea-were all ones in which U.S. forces came and then stayed indefinitely. In the first two cases, we were not nation-building at all, but only re-legitimizing societies that had very powerful states. In all of the other cases, the U.S. either left nothing behind in terms of self-sustaining institutions, or else made things worse by creating, as in the case of Nicaragua, a modern army and police but no lasting rule of law.

From Fukuyama, and others in his discipline, we see that America's record at nation building is not overly impressive. On top of that, Iraq itself presented many unique challenges and complications that made this particular campaign more problematic than others. Again, Fukuyama:

Though I, more than most people, am associated with the idea that history's arrow points to democracy, I have never believed that democracies can be created anywhere and everywhere through sheer political will. Prior to the Iraq War, there were many reasons for thinking that building a democratic Iraq was a task of a complexity that would be nearly unmanageable. Some reasons had to do with the nature of Iraqi society: the fact that it would be decompressing rapidly from totalitarianism, its ethnic divisions, the role of politicized religion, the society's propensity for violence, its tribal structure and the dominance of extended kin and patronage networks, and its susceptibility to influence from other parts of the Middle East that were passionately anti-American.

There is a good reason why many conservatives and liberals are somewhat averse to projects that seek to implant a democracy de novo in a given nation or region. Almost every democratic transition that has taken place in the world in the past two centuries has had nothing to do with foreign military intervention, military pressure, or an outside regime directing the process. While I believe, to some degree, in the inevitability of democratic change, I also appreciate that such changes require a certain foundation on which to build - from financial conditions to a robust civic society. Writing in the latest issue of Foreign Affairs, Edward Luttwak regrets the dearth of democrats in Iraq and how this has affected the prospects for democratization.

Of course, many Iraqis... [view] democracy as a simple affair that any child can understand. That is certainly the opinion of the spokesmen of Grand Ayatollah Ali Sistani, for example. They have insistently advocated early elections in Iraq, brushing aside the need for procedural and substantive preparations as basic as the compilation of voter rolls, and seeing no need to allow time for the gathering of consensus by structured political parties. However moderate he may be, the pronouncements attributed to Sistani reveal a confusion between democracy and the dictatorial rule of the majority, for they imply that whoever wins 50.01 percent of the vote should have all of the governing power. That much became clear when Sistani's spokesmen vehemently rejected Kurdish demands for constitutional guarantees of minority rights. Shiite majority rule could thus end up being as undemocratic as the traditional Sunni-Arab ascendancy was.

The plain fact is that there are not enough aspiring democrats in Iraq to sustain democratic institutions.

Credibility Gap Gulch

I want to focus on the last item Fukuyama listed in his assessment of the challenges of nation building that are distinctly "Iraqi" in nature, because it is still bedeviling us today: anti-Americanism. It is no secret that the Muslim world has been a hotbed of virulent anti-Americanism for the better part of the past half-century. Understanding this phenomenon requires a nuanced approach (forgive the phrase). At least a portion of this anti-Americanism is logically connected to American foreign policy initiatives in the region during the period in question. For much of the Cold War and beyond, for better and for worse, America has pursued a rugged form of realpolitik in the Muslim world - charting a course that is designed to maintain a stable supply of affordable oil while countering incursions by the former U.S.S.R. and other regional foes. In the process, U.S. priorities have not always been consistent with democracy promotion, leading us to endorse, support, arm, and fund numerous brutal despots and fanatics (including Saddam, Osama, and the House of Saud to name but a few).

Probably our most egregious example of myopia came in 1953 when the CIA instigated and orchestrated a coup that toppled Iran's democratically elected Prime Minister, Mohammed Mossadegh, and replaced the nascent democracy with a dictatorship - headed by the oppressive Mohammed Reza Shah Pahlavi (the Shah). The Islamic Revolution, spearheaded by the Ayatollah Khomeini, was strengthened and enlivened by anger at the heavy-handed tactics of the Shah. Many of our problems with Iran can be traced back to these events.

And of course no discussion of anti-Americanism in the Middle East would be complete without mentioning Israel. Since the Nixon administration, and before that time to a lesser extent, U.S. foreign policy has championed the Israeli government, no matter the ruling faction, with an almost unprecedented level of support. I am a firm believer in the alliance with Israel, but there are dimensions of the relationship that may be counterproductive. We have adopted a position by which the Israeli regime is above reproach, no matter their transgression, which in turn has led to a lack of concern for the plight of the Palestinian people. This double standard has not been lost on the Muslim population.

But there is also another dimension to the anti-Americanism that runs rampant in the region, one that is wholly divorced from logic and reality. America has become the favored scapegoat for all manner of malady that plagues the denizens of this part of the globe - the foil of politician, theologian and businessman alike. Rumors and conspiracies abound, some contradictory in nature and others so bizarre they go beyond science fiction. This is not accidental though. The regimes in the area, even putative allies such as Saudi Arabia and Egypt, deflect their citizens' ire on to America in order to distract their respective populations from the inequities and injustices they propagate.

Regardless of the source of these hostilities and suspicions, they have greatly impacted our ability to promote the message and ideals of America in this part of the world. In many ways, this noxious blend of conspiratorial propaganda, scapegoating, and legitimate grievance have likely doomed our mission in Iraq from the outset, even if you assume that our intentions were noble and that democracy promotion was, and is, a central tenet of the operation. For example, today when ex-Baathist insurgents target Shiite moderates and those cooperating with the interim government, it is not uncommon to hear the local Shiites mischaracterize the car bombs used as really being missile attacks from the US (the two are hard to distinguish from a bystander's perceptive) - despite the lack of a cogent rationale for the US to attack those elements of Iraqi society most amenable to its presence. Edward Luttwak provides some intriguing historical reference points.

The very word "guerrilla" acquired its present meaning from the ferocious insurgency of the illiterate Spanish poor against their would-be liberators under the leadership of their traditional oppressors. On July 6, 1808, King Joseph of Spain presented a draft constitution that for the first time in Spain's history offered an independent judiciary, freedom of the press, and the abolition of the remaining feudal privileges of the aristocracy and the church. Ecclesiastical overlords still owned 3,148 towns and villages, which were inhabited by some of Europe's most wretched tenants. Yet the Spanish peasantry did not rise to demand the immediate implementation of the new constitution. Instead, they obeyed the priests, who summoned them to fight against the ungodly innovations of the foreign invader--for Joseph was the brother of Napoleon Bonaparte and had been placed on the Spanish throne by French troops a month earlier. That was all that mattered for most Spaniards--not what was proposed, but who proposed it.

By then the French should have known better. In 1799 the same thing had happened in Naples, whose liberals, supported by the French, were massacred by the very peasants and plebeians they wanted to emancipate, mustered into a militia of the "Holy Faith" by Cardinal Fabrizio Ruffo (the scion, coincidentally, of Calabria's most powerful landowning family). Ruffo easily persuaded his followers that all promises of merely material betterment were irrelevant, because the real aim of the French and the liberals was to destroy the Catholic religion in the service of Satan. Spain's clergy repeated Ruffo's ploy, and their illiterate followers could not know that the very first clause of Joseph's draft constitution had declared the Roman Apostolic Catholic church the only one allowed in Spain.

The same dynamic is playing itself out in Iraq now, down to the ineffectual enshrinement of Islam in the draft constitution and the emergence of truculent clerical warlords. Since the U.S. invasion in 2003, both Shiite and Sunni clerics have been repeating over and over again that the Americans and their mostly "Christian" allies are in Iraq to destroy Islam in its cultural heartland, as well as to steal the country's oil. The clerics dismiss all talk of democracy and human rights by the invaders as mere hypocrisy--except for women's rights, which are promoted in earnest, the clerics say, to induce Iraqi daughters and wives to dishonor their families by aping the shameless disobedience of Western women.

Carts, Horses and Windows

Luttwak offers a valuable insight: sometimes our intentions are not the determining factor in the outcome of our endeavors because perception of our motive can trump reality (perhaps an understatement). Some analysts and historians, like Fukuyama, noted that with this backdrop of anti-Americanism it was impossible to maintain the support of the people long enough, and to the degree needed to succeed. Others incorrectly argued that our invasion of Iraq would meet with the instant approval of the populace, and actually turn the tide of public opinion in our favor throughout the entire region - laying the groundwork for such far reaching and grandiose notions as peace between the Israelis and Palestinians. According to this camp, the road to Jerusalem ran through Baghdad.
This marked a singular strategic error: We needed to first address some of the causes of anti-American vitriol before we attempted to insert ourselves so prominently in the region. In putting the cart before the horse, we have greatly undermined our efforts. According to James Dobbins also writing in this month's Foreign Affairs:

In the eyes of the Iraqi people and of all the neighboring populations, the U.S. mission in Iraq lacks legitimacy and credibility. Only by dramatically recasting the American role in the region can such perceptions begin to be changed. Until then, U.S. military operations in Iraq will continue to inspire local resistance, radicalize neighboring populations, and discourage international cooperation....

What efforts the Bush administration has made to forge regional and international cooperation have centered on democratization and counterterrorism. Both campaigns have considerable merit and potentially broad appeal; regimes in the region fear terrorism, and their people desire more democracy. Unfortunately, both projects have been irredeemably compromised in the eyes of Arab constituencies because the United States has chosen occupied Arab lands on which to test them. Whatever the logic of trying to sow democracy in Palestine and Iraq first, the United States' attempts to do so have largely undermined its broader efforts. Until Washington's democratization campaign can be purged of its association with pre-emption and occupation, it will have little resonance in the region....

Peace in Iraq and peace in the broader Middle East should be pursued on their own merits, but they cannot be entirely divorced. To the Arab people, the United States' resort to pre-emption, occupation, and aggressive counterterrorism, with its high collateral damage and numerous civilian casualties, is barely distinguishable from Israeli practices. Israel may have given up on winning over the Palestinian people long ago, but the United States cannot afford to do the same in Iraq or elsewhere in the region. One crucial way the United States can demonstrate its sincerity toward the Arab world is to reengage in the Israeli-Palestinian conflict: the United States will have little success in enlisting the Iraqi population, neighboring governments, and the international community to bring peace to Iraq if it cannot reposition itself as an honest broker in the Israeli-Palestinian peace process. However dim the prospects for quick progress in settling the issues of Gaza, the West Bank, and the Golan Heights, Washington must be seen as giving them its highest attention.

At the very least, the Bush administration needed to seize on the very narrow window of opportunity that existed immediately after the fall of Saddam in order to win over the support of the Iraqi population through the provision of security and other diplomatic efforts. Unfortunately, security was not established and, consequently, the CPA failed to actively engage an Iraqi population already predisposed to mistrust. As a result of this, and also stemming from unrealistic expectations on the part of Iraqis regarding America's ability to rebuild their country, the U.S. has assumed the familiar role of conspiratorial target and object of blame for all afflictions.

Of course, it didn't help matters that the CPA seemed more interested in recruiting loyalists than in enlisting the aid of experts, and in pursuing doctrinaire right-wing economic theories at the expense of other civic minded endeavors. The failure to win over the Iraqi people during this most sensitive of intervals will greatly limit the choices we have going forward.

The war's supporters are quick to point to the examples of Germany and Japan as an indicator of the time required and commitment needed to muddle through as a response to these critiques. Perhaps a lesson can be drawn from the German and Japanese experiences to counter these arguments. According to Luttwak:

The mass instruction of Germans and Japanese about the norms and modes of democratic governance, already much facilitated by pre-existing if imperfect democratic institutions, was advanced by mass media of all kinds as well as by countless educational efforts. The work was done by local teachers, preachers, journalists, and publicists who adopted as their own the democratic values proclaimed by the occupiers. But the locals were recruited, instructed, motivated, and guided by occupation political officers, whose own cultural understanding was enhanced by much communing with ordinary Germans and Japanese. In Iraq, by contrast, none of this has occurred. An already difficult task has been made altogether impossible by the refusal of Iraqi teachers, journalists, and publicists--let alone preachers--to be instructed and to instruct others in democratic ways. In any case, unlike Germany or Japan after 1945, Iraq after 2003 never became secure enough for occupation personnel to operate effectively, let alone to carry out mass political education in every city and town, as was done in Germany and Japan.

So we find ourselves at the present juncture: with an insurgency raging through large swathes of the country, and an election that threatens to exclude entire demographic groups from the process. The Sunni regions of the country are in near open revolt, moderate Shiites, under the guidance of Sistani, seem to be just barely tolerating our presence and biding their time until the elections are over (although radicals like al-Sadr have been more confrontational), and the Kurds are nervous spectators trying to restrain their urge to divorce themselves from this less than attractive union.

With the future of Iraq teetering on a precipice, the United States can ill afford to abandon this nation to the whims of its more extreme elements. We must look for a way to pry open the window again, and get Iraq back on track toward some fruitful resolution. In some ways, the secret to saving Iraq may lie in a bit of pop-Buddhist thought: we must let it go. I will attempt to explain how in Part II.

So publius decided to toss me the keys to the Corvette. Now I have to try not to wrap the Legal Fiction hot-rod around the rhetorical lamp post. My guess is, he finally got fed up with my incessant rambling in the comments section, so he threw the dog a bone. Little does he know what I am capable of when given a bigger stage. And I haven't even begun to tinker with the interior design functions. That will be my surprise for him.

Naturally, his skill with the written word and his ability to conjure a near daily epiphany will cast a long shadow, but I will do my best to entertain you, inform you, and hopefully provide a spark for some conversation (which, preferably, does not end in some open-ended discussion of gun rights and the Second Amendment as they almost all seem to do around these parts). And look on the bright side, if I end up boring you publius will be back come Friday and the eminently talented Julie Saltman will be here next week.

-Eric Martin
Your Interim Narrator

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(Via Oxblog) A federal judge upheld the Defense of Marriage Act today. From what I can gather, the plaintiffs challenged it only on the grounds of sex discrimination and equal protection. If those were the only arguments raised, I think the judge was probably right, legally speaking (not morally speaking). But what I'm more curious to hear is what enumerated power Congress relied on in passing DOMA. Commerce? Anyone? I got nuthin'. If their attorney didn't raise an enumerated powers argument, he was a bad attorney.

On an aside, it's going to be really interesting to see what happens if DOMA gets challenged in front of a conservative judge or panel of judges who are big believers in Lopez. There's also the possibility that an anti-gay judge could act strategically (it happens) and find it unconstitutional in order to trigger a backlash that would get the FMA passed. You gotta love game theory.

And with that, I'm heading to The American Street for tomorrow. She's all yours Eric.

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As of tomorrow, I will be posting over at The American Street on Thursdays. I want to thank Kevin Hayden for the opportunity to join a group of bloggers that include some of my favorite (e.g., the General, Digby, the Fafblog Trinity). I'll remind everyone when I go, at least for the first few Thursdays.

In my place, Eric Martin (Total Information Awareness - long-time commenter here) and Julie Saltman have graciously agreed to guest-blog here on Thursdays. They'll be alternating weeks, so you'll get Eric tomorrow and Julie the next week. I've been reading both of their most-excellent blogs for quite some time, and I'm sure everyone will enjoy their posts.

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One of my favorite verses in the Bible is the following from 1st Corinthians 13:11:

When I was a child, I spake as a child, I understood as a child, I thought as a child: but when I became a man, I put away childish things.

This is a great verse, and I think it speaks to an annoyingly universal trait of the human cognitive process, which is to seek the simplest, most kindergarten-like explanation possible for any given question. Humans – for as long as there have been humans – have sought the simplest possible cause for events that they are unable, or unwilling, to understand. Ancient tribes saw lightning and, unable to explain it, invented lightning gods. Children, unable to grasp the science of reproduction, believe that storks bring babies.

Unfortunately, as our minds mature, we often fail to “put away childish things.” More specifically, we continue to adopt child-like conceptions of “cause.” Take history for example. As I’ve discussed before, people often view historical events through a personality-centric lens, and ignore (or undervalue) more complex socioeconomic causes. Under the personality-centric view, the Holocaust was caused by Hitler’s evilness. The end of segregation was caused by the courage of nine Justices. And 9/11 was caused by bin Laden’s evilness. But these explanations are not really historical causes, they are myths. I don’t mean that they are false. I mean that they are myths in the more literal sense of the word. They are stories used to help the human mind make sense out of complex natural phenomena, just as the lightning gods helped people make sense out of lightning. Of course, all of these individual actors did play some role in the events I described. But focusing on the individual usually makes us lose sight of the deeper social, economic, and political forces that are the source of most historical change.

Though I’ve tried to resist thinking about the inauguration, it’s impossible during these times not to take a step back and think about the political scene from a more long-term perspective. One of the things I’m seeing is that the American political dialogue speaks, thinks, and understands through child-like myth. I’m not talking about uninformed ninnies, I’m also talking about hyper-informed writers, pundits, bloggers, and blog-readers. Too many of us (myself included) across the spectrum have yet to put away childish things (i.e., simplistic concepts for interpreting the world around us). I certainly don’t mean that bloggers are too angry or too partisan or anything like that. I like anger and partisanship – that’s why I blog. But what I’m seeing – and what is simply exhausting me – is that an intellectual laziness seems to be descending upon much of the blogosphere – a willingness to believe in lightning gods rather than to set out to investigate the true causes of lightning.

Let’s start on the Left. Salon just did an interesting piece about “34 Republican scandals worthy of further attention.” It’s a good article. Some of the “scandals” were probably a stretch, but others (such as the WMD propaganda, the Niger forgeries, the Medicare Rx bill lies) are clearly outrages. That said, there are two very different ways to respond. Or more precisely, there are two ways to think about what caused these events to happen. One way is to simply conclude that the Republican leadership is evil or whatever other adjective you care to insert.

But just like in the examples above, the causes are more complex than that. I mean, you tell me which of these sounds like a more plausible explanation for the lack of much-needed investigations (and more critically, subpoenas). Is it that every single GOP House member is corrupt? Or could it be that the rise of national centralized parties frustrate the structural design of our Constitution by allowing the President and others to exert leverage over House members who would otherwise be independent? In other words, is the corruption merely a function of the centralized party leadership? As the House leadership has shown, if you defect, you could lose money, committee positions, highway projects, and campaign visits from President Bush. That’s exactly NOT how the Framers wanted the government to work. Political parties have long undermined the structural freedoms that the Constitution intended to create, but the rise of GOP Inc. has exacerbated the problem. I mean, I bet there are dozens of Republican House members that hate Tom Delay, but they also fear him.

But the larger point is that too much of the progressive blogosphere has become too willing to accept the easiest possible explanation – one that is personality-centric. Just like any myth, it’s easier to attribute everything to Bush’s or the wingnuts’ evilness (or whatever) than it is to dig down and explore the more systemic causes. Don’t misunderstand me. Sometimes that's the right answer. The House leadership is corrupt. Bush has acted immorally. There’s nothing wrong with saying so, and saying so loudly. But if you say it everyday, and you attribute every event to that single explanation, then the explanation is no longer explanation but a myth. Finding – and exposing – the more systemic causes of Bush’s success will do more to defeat his agenda than preaching the myth will.

I don’t know - I guess I’m just tired of all the bitching and moaning. Reading Daily Kos is so depressing that it makes me want to shoot myself these days. Cheer up dude (and guest posters). I know we’re all bitter. I’m bitter too. But I want to rally for something, rather than against it. This Social Security battle is a true gift in that sense. There’s no better issue upon which to articulate what progressives stand for. You’ve got an audience that most of us would kill for – make the case.

But all that said, I would argue that child-like thinking has a much larger stranglehold on modern conservative thought – especially within the noise machine. The biggest myth of all (again, in the literal sense of the word) is the concept of the “liberal.” I touched on this in my post about “helpful beasts” this weekend. Whatever meaning the concept once had, it has been lost. It is no longer a meaningful explanation of external phenomena. What it is, rather, is a myth that allows conservatives to avoid engaging or even thinking about people or ideas that challenge conservative thought.

It’s not much different the idea of the devil. The utility of the “devil” is that it’s a universal explanation. Rather than deal with one’s own failings or temptations, an invisible “devil” is created that is the true source of all our dark tendencies. It’s also comforting to know there’s a devil out there. It’s easier to make sense of worldly evil if there is some devil we can blame it on. The truth is more complex - and more challenging.

“Liberal” is just a political variation of the same myth. It’s a universal explanation that makes one’s views resistant to any and all challenge. Why don’t you support Policy X? Because it’s liberal. Why do you support this leader? Because I don’t like liberals. Aren’t you troubled by what you read in the papers today about Bush? The papers are liberal - you can’t believe them. Don’t you read Glenn Reynolds. It’s all child-like myth. Even rational conservative pundits let themselves fall victim to the all-too-easy "liberal" myth that explains all and justifies all.

Conservatives are also far too tolerant of other child-like conceptions of the world that influence policy. For example, I think we can all agree that tax cuts are not always wise policy. In some instances, they’re justified. In others, they’re not. At heart, it’s an empirical question. But to people like Grover Norquist, the belief in the virtues of tax-cutting has taken on a mythical quality. They’re always right. It doesn’t matter if poor families are losing their health care, or our troops lack armor. Tax cuts always. Again, it’s merely a simple myth used to interpret a complex world.

Another example is the support and tolerance of creationism and its fancy-pants cousin, Intelligent Design. The story of Genesis is a myth – it’s not real. Just like the lightning gods, it was a story used to explain something – the origin of man – that people didn’t understand. The idea that this text is superior to centuries of scientific observation and experiment is insane. God and science are perfectly compatible so long as you’re willing to think about God in adult ways, and not child-like ways.

Before I finish up, let me make one thing clear – I’m not implying in the least that the Left needs to back down, or moderate, or follow any advice from Peggy Noonan. Outrage can be good. Calling something immoral or unjust in the harshest terms is often absolutely necessary. But my point is simply that you can’t say this about anything and everything and expect the charge to continue to have any power to persuade.

[UDPATE: It looks like Andrew Sullivan is sharing some of my frustrations. Now, I agree with a lot what he is saying. But it's too little and too late for him. I've really enjoyed his blog over the past six months, but I will never forget his year-long lapse into insanity when he was guilty of everything he accusing the blogosphere of, and in spades. I'm sorry, but it's hard to forget when you were called a traitor for nine months over something that you were RIGHT about. This line is especially ironic:

But - again - it's perfectly legit to criticize the methods of the war, while supporting its goals.

That's precisely what a lot of us thought in the lead-up to Iraq. We agree with the goals of the war on terror, but disagree with its methods. I'm glad Andrew has calmed down - and he's been writing some great stuff lately. But given his pre-Iraq treatment of those who disagreed with him, I'm not sure he has much credibility on this front - at least until he apologizes for his rhetoric to those of us who opposed the war in good faith.

And speaking of Von Hoffman Awards, this one has to be the all-time winner. Andrew Sullivan (10/4/02):

USEFUL IDIOT WATCH: Nick Kristof goes to Baghdad and finds people ready to attack the U.S. Quelle surprise! In a police state where the tiniest dissent on the tiniest matter can have you disappeared and tortured, Kristof deduces no support for a U.S. invasion. Let's check in and see what happens if we do invade, shall we? We have long memories in the blogosphere, Nick. And little pity.

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Even though the whole "oath" controversy is now cleared up, there are still some questions I have for Justice Thomas. Specifically, why did he choose to swear in newly elected Alabama Supreme Court Justice Tom Parker? Frankly, he's got some explaining to do.

First, Tom Parker is a Roy Moore protege who ran explicitly (and won) on the Ten Commandments monument controversy (which is a rule of law issue, but was demagogued as a religious one). That alone was too much for rule-of-law-devotee Feddie, who I turn to for all Moore-related news. But as crazy as Moore is, the fact that Thomas administered the oath to his sidekick isn't what troubles me. I mean, it troubles me, but I want to use my "outrage capital" as efficiently as possible.

No, the real question I have is what Justice Thomas thinks about Parker's neo-Confederate views, and his associations with racist organizations. In short, Justice Thomas, what exactly did you know and when you did you know it?

First, it only took a little bit of digging to learn that Parker campaigned by handing out miniature Confederate flags. And this story wasn't confined to the local Alabama papers. It was in the Post (11/28):

They were joined by former Moore aide Tom Parker, who handed out miniature Confederate flags this fall during his successful campaign for a seat on the Alabama Supreme Court.

The NYT (11/12) (no original link):

Vocal opponents of the amendment included Roy S. Moore, who in 2003 lost his seat as the state's chief justice for refusing to remove a Ten Commandments monument from the state judicial building, and his former legal adviser Tom Parker. Mr. Parker, who won election to the Supreme Court last week, was supported by the pro-secession Alabama League of the South and at one point handed out small Confederate flags.

The Guardian (11/30):

This year Mr Moore's former aide, Tom Parker, was elected to the Alabama supreme court even after it became clear that he had been handing out Confederate flags while campaigning and had attended a function honouring the first grand wizard of the Ku Klux Klan.

Earlier, I had withheld criticism because I hoped that Thomas simply didn't know Parker's history. However, given what has been reported, it's going to be very tough to plead ignorance. But there's more. Here's a report on Parker from the Southern Poverty Law Center (via Southern Appeal):

But Tom Parker has some other friends, too. It's just that he doesn't spend much time bragging publicly about this batch of colleagues and supporters.

In July, Parker made his way to the Selma home of Pat and Butch Godwin, who were holding a birthday party to honor Confederate Gen. Nathan Bedford Forrest, a wealthy slave trader who became the first grand wizard of the Ku Klux Klan. (Forrest also presided over the massacre of some 250 black prisoners of war at Ft. Pillow, Tenn.) The Godwins run Friends of Forrest Inc., which owns a Forrest statue the Godwins spent two years unsuccessfully trying to place on public property.

. . .

The Godwins are tried and true neo-Confederates. Pat Godwin's latest crusade is to block any acknowledgement on the Capitol grounds of the 1965 Selma-to-Montgomery civil rights march — a goal of the Alabama Historical Commission. In a July E-mail, Godwin railed at "the trash that came here in 1965," complaining that those who honor the civil rights movement "are aiding and abetting the ultimate goal of the ONE WORLD ORDER — to BROWN AmeriKa and annihilate Anglo-Celtic-European culture!"

. . .

And, in a photo widely circulated in the neo-Confederate world, he is seen with what were apparently two friends of his: Mike Whorton, Alabama state leader of the League of the South hate group, and Leonard Wilson, a longtime segregationist who is on the national board of the Council of Conservative Citizens (see also Communing with the Council), a hate group that has described black people as "a retrograde species of humanity."

Let me make a couple of points. First, as hard as it is for non-Southerners to believe, there are people who can divorce support for the Confederate flag from race. You'll have to take my word for it, but I can assure you that, for some people, it's about family and heritage and what not. Tom Parker is not one of those people. I know just exactly what Tom Parker is supporting when he hands out flags. Given that he likes to pose with Ku Klux Klan CCC board members, he makes no secret of it either. It's people like him that give every one of us who talk with some twang a bad name.

What I cannot understand - indeed, what I cannot even fathom - is why Justice Thomas would take the time to administer an oath to him. I'd be the first to tell you that Thomas gets a lot of unfair shit thrown his way. Being black should not mean that one must express allegiance to the Democratic Party or be ridiculed. Thomas is conservative. That's fine. If you want to attack his views, attack them with reason and not with racist "Uncle Tom" vitriol.

But. . . this Parker thing is something altogether different. This isn't about supporting the conservative party line. This isn't about supporting religion. This is about giving support to a man who is a racist, who associates himself with racists, and who ran as a racist. I'm sorry, but this is one issue where I think black people should be of one mind. I mean, it's bad enough that anyone would administer an oath to this bastard (not to mention vote for him), but it's especially troubling that Justice Thomas would do so.

But again, maybe I'm missing something. Maybe he honestly didn't know. Maybe the Justices drew straws and Thomas lost. I don't know. But I do know one thing - Thomas needs to explain himself.

So Justice Thomas, what did you know and when did you know it?

Here's a picture of Parker Justice Parker from the SPLC link above(I've quoted the caption as well):

Tom Parker (center) poses with Leonard Wilson (left), a board member of the white supremacist Council of Conservative Citizens, and Mike Whorton (right), Alabama state leader of the neo-secessionist League of the South.

Sweet Home.

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Let's review some of the 2004 highlights from the nation's worst state - Alabama. First, the state elected Roy-Moore-clone Tom Parker to the Alabama Supreme Court. He ran explicitly on the Ten Commandments and defeated an incumbent who had voted to remove the Ten Commandments monument after federal courts demanded that it be removed. Justice Thomas administered the oath to Parker, who is a neo-Confederate with some "interesting" views on race. We're still waiting to hear what Thomas knew.

Another interesting story is that Alabama voters narrowly defeated Amendment 2, which would have deleted segregation-era language from the state constitution mandating segregated schools, poll taxes, along with language saying there was no right to a public education (which was a response to Brown v. Board). The original vote had been close enough to trigger a recount, but the recount is now complete. And the language lives on (though it's been unconstitutional for quite some time). I explained Amendment 2 in more detail back in November. I'd like to add that it was opposed by alleged Christians Roy Moore and the Alabama Christian Coalition. Back in 2000, revoking the ban on interracial marriage only got 60%, but it was at least a majority. The state seems to be regressing. [For the record, Alabama was the last state to have such a law on the books.]

But it's not just race. Alabama has the most regressive tax system in America. It taxes families of four after they make $4,600 a year (Mississippi starts at $19,000). The education system is horrible. The budget is in shambles. Services have been slashed. (I spelled this out in more detail here.) It's a wreck - and the condition of its "Black Belt" is nothing less than Third World. It's a disgrace that such conditions exist in 21st century America.

I don't think it's an exaggeration to say that Alabama is both a laughingstock and an embarrassment to our country. I don't like to use this rhetoric, but I'm sorry - electing racists and defeating proposals like "Amendment 2" deserve scorn, not understanding.

And Roy Moore will soon be governor.

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There can be no doubt that King’s “I Have a Dream Speech” ranks among the best American speeches of all time. Like Lincoln’s Second Inaugural, King’s speech is a masterpiece of rhetoric. I would encourage everyone to take a moment and read it today. It’s not that long. Today’s hapless Democrats could also learn a thing or two about how to invoke religious language and ideals to support progressive goals.

But idealism is a funny thing. Once invoked, it’s hard to control. The rigid logical consistency that idealism both requires and demands often leads to unintended consequences - consequences that the original invoker would not support. For example, “liberty” was the catchphrase of the American Revolution. The colonists railed against slavery at the hands of the King. Samuel Johnson, the legendary British writer, famously wrote, “How is it that we hear the loudest yelps for liberty among the drivers of Negroes?” It was a question that lacked a good answer. The contradiction was all too obvious. Eventually, the logic of revolutionary idealism (among other things) caused the colonists to view domestic slavery differently. The northern colonies ended slavery soon after the Revolution (though their economies were less dependent upon it).

Something similar happened during World War II and the beginning of the Cold War. The pro-democracy forces (which included anti-Communist hard-liners who weren't sympathetic to civil rights) used the language of idealism to defend their views and to attack those of the Nazis and the Communists. But like Samuel Johnson, both the Nazis and the Communists ridiculed America for its treatment of blacks. Civil rights activists, rightly, used the Nazis and the Cold War to prick the American conscience and urge it to action. Here too, the logic of idealistic democracy rhetoric helped pave the way for the civil rights movement. Denying equal rights was simply too glaring a contradiction with our Cold War rhetoric of freedom. The two could not be reconciled as a matter of logic.

In King’s “I Have a Dream” speech, he also uttered the following idealistic sentence, which might well be the most famous line of the speech:

I have a dream that my four children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.

It’s a beautiful line. It’s simple, clear, and idealistic. Yet, it has also had unintended consequences. Those who oppose affirmative action have cited both the language – and more importantly, the logic – of King’s line to support their position. Defenders of affirmative action have denounced this “exploitation” of King’s line. But is it “exploitation”? Or is opposition to affirmative action a logical implication of the ideal of the colorblind society? It’s a tough question.

As for King himself, there is little doubt about his views. In his famous 1964 book, Why We Can’t Wait, he wrote:

Whenever this issue of compensatory or preferential treatment for the Negro is raised, some of our friends recoil in horror. The Negro should be granted equality, they agree; but he should ask for nothing more. On the surface, this appears reasonable, but it is not realistic. For it is obvious that if a man is entering the starting line in a race 300 years after another man, the first would have to perform some impossible feat in order to catch up with his fellow runner.

To me, that’s exactly right, and that’s why I still support the idea behind race-based affirmative action (though I question aspects of its administration). I don’t believe that pure liberalism (i.e., classic liberalism) can possibly rectify 300 years of collective state-sponsored discrimination. To suddenly say that everyone is “free” ignores the baseline from which everyone is starting – especially when the baseline is the result of slavery and Jim Crow. So, I still believe that society must take certain anti-liberal actions to rectify the situation.

But getting back to the “what-would-King-think-of-affirmative-action” debate, the real issue isn’t really what Dr. King himself believed. To some extent, his personal views are irrelevant. It’s the logic of his statement that is more important. And that’s the real question – is affirmative action consistent with a colorblind society? Many conservatives say no, and their argument is not ridiculous. If you accept the colorblind society as your premise, it’s hard to justify affirmative action. To accept affirmative action, you must reject the premise, or so the argument goes. And I must reluctantly concede that the argument is a good one. It’s simple and logically consistent with the idealism from Dr. King’s speech, even though Dr. King almost certainly didn’t intend for his statement to be used in that way. But as I said, idealism is a funny thing. It can take on a life of its own.

The logic of the colorblind society makes it very difficult to defend affirmative action from these sorts of conservative critiques, though I’ll try. First, I think that everyone can all agree that a colorblind society should be the goal. That’s what classical liberalism is all about. But, given America’s sordid racial history, I think that we can only achieve a colorblind society (with some semblance of justice) by first taking color into account. In this sense, affirmative action is only a temporary means to an end, and not an end unto itself. King’s “starting line” metaphor is a good one – and a good lesson on the differences between negative and positive freedom (as is the current Social Security debate). It is simply unfair to expect that the consequences of 300 years of systematic state and private discrimination can be remedied by market forces alone. But I admit that my pro-affirmative action arguments take a lot longer to articulate than those who can just say, “I support a colorblind society.” And in politics, when you’re explainin’, you’re losin’.

I’m going to do a longer post on affirmative action one day – both to work out my own views on the subject and to hear those of others. The point today is merely to show that invoking idealism can be a double-edged sword. For another example of what I mean, look at Bush’s idealistic invocation of democracy and democracy-promotion. One of the most appealing aspects of Bush’s foreign policy (in theory, as opposed to reality) is his appeal to the importance of freedom. However, Bush’s abstract rhetoric may soon take on a life of its own (like Goethe’s brooms in the Sorcerer’s Apprentice – his poem was the basis for the scene in the Disney movie Fantasia). For one, the rhetoric of democracy contradicts our embrace of profoundly anti-democratic regimes across the Middle East. For another, we may not like what democracy has to offer if and when it comes. If the people of the Middle East could vote, and if the politicians were accountable to the public, the regimes could become even more anti-American and anti-Israel than they are now. They might also become more theocratic. It will be interesting to see what sort of government the victorious Shiite parties will call for (especially if Sistani dies or gets killed).

Let me be clear – I’m not saying that people shouldn’t invoke idealism to support their principles. My point is merely that ideas matter, and that idealism, once unleashed, can often be difficult to control.

[UPDATE: One last point - one goal the Democrats should have is to use the logic of Republican idealism against Republicans. For example, they could use the logic of "values" to gather support for their own big-hearted policies such as addressing poverty, health care, urban revitalization, and the environment. The "culture of life" rhetoric could also be used to argue against capital punishment and unnecessary wars. Just a thought.]

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Color me unimpressed with Michael Kinsley's column today about why Thomas should be opposed for Chief Justice. Kinsley is one of my favorite columnists, and I wholeheartedly agree that Thomas should not ever be Chief Justice. But I didn't really buy the reasons offered by Kinsley. His basic argument was that Thomas lied during his judicial nominations, specifically on the question of whether he had thoughts about Roe v. Wade (or had debated the question). For what it's worth, Kinsley was probably right. The problem, though, is that every judicial nomination involves lying and evading. There are simply no incentives to tell the truth about one's given judicial philosophy. This is true for almost all nomination hearings. Telling the truth will cost you the job. Evasion ensures that you will get the job. If Thomas had told the truth about Roe, or if Gonzales had told the truth about his views on torture, they wouldn't get the job.

My point is that until more detail evidence is presented, Thomas's evasions don't seem that different from any other judicial nominee. All of them must avoid saying anything that could be demagogued.

A far better reason to oppose Thomas is simply to read his opinions. They're nothing less than radical. I laid out the case against Thomas here, based entirely upon his written opinions. If Bush nominates Thomas, I hope that these opinions get more play than Thomas's movie preferences.

[UPDATE: Feddie at Southern Appeal has some, well, strange news about Thomas. Apparently, Justice Thomas agreed to administer the oath of office to an Alabama Supreme Court justice named Tom Parker, who is not exactly a fan of black people. Feddie has the details, along with principled criticism of Thomas's decision. I'm really really hoping Justice Thomas didn't know anything about Parker's history, so I'll wait until we know more. But it doesn't look good.]

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Near the end of the Lord of the Flies, the boys-turned-savages killed their classmate Simon thinking he was “the beast.” Rather than admit the error, and to avoid any mutinies, Jack (the new Chief) convinced the boys that Simon was the beast, and that the beast was not yet defeated. In fact, the beast could appear anywhere and at anytime – and in disguise:

"-and then, the beast might try to come in. You remember how he crawled-" The semicircle shuddered and muttered in agreement. "He came-disguised. He may come again even though we gave him the head of our kill to eat. So watch; and be careful."

Stanley lifted his forearm off the rock and held up an interrogative finger.

"Well?"

"But didn't we, didn't we-?"

He squirmed and looked down.

"No!"

In the silence that followed, each savage flinched away from his individual memory.

"No! How could we-kill-it?". . .

Stanley flicked his finger again. "I expect the beast disguised itself."

"Perhaps," said the chief. A theological speculation presented itself. "We'd better keep on the right side of him, anyhow. You can't tell what he might do."

There are many ways to interpret this passage (e.g., external projection of internal depravity), but I like to view it as an example of the political benefits that flow from having an external enemy that both distracts people from considering their leader’s flaws and justifies whatever actions a leader might take in the name of fighting “the beast.” Here, Jack’s leadership led them to murder Simon. But by invoking “the beast,” Jack justified his actions and prevented internal dissent.

I thought about this passage when I saw that Ariel Sharon had already cut off relations with the new democratically elected Palestinian leader in response to a terrorist attack in Gaza:

Prime Minister Ariel Sharon ordered Friday that all government officials cut ties with the Palestinian Authority and that the Gaza Strip be sealed until Palestinian leaders moved to curb terrorism.

One reason that the peace process always fails is that nearly every major player involved has a vested interest in keeping the conflict going. For years, Arafat was “the beast” that was invoked to avoid negotiations and to justify unilateral actions. Now that he’s gone, it was only a matter of time before a new beast arose that could serve the same political purpose. In a case of very strange bedfellows, Likud and Hamas have developed a symbiotic relationship. Likud needs Hamas to maintain power and justify ignoring international law. Similarly, Hamas needs Likud. Sharon and Israel are the “beast” that prevents Palestinians from engaging in reform and rejecting the tactics of Hamas.

But it’s not just Israel that enjoys the status quo (nuisance bombings that are no longer an existential threat). Corrupt Arab regimes also benefit. The governments in places like Saudi Arabia and Egypt and Iran are horrible, and are not popular among the people. Yet, by invoking the “beast” of Israel, they can divert that anger and frustration towards an external target that has little to do with the people’s current plight.

Invoking “the beast,” however, is not limited to exploitation of the struggles in the Middle East. “Beasts” can take many different forms here at home within the political arena. For example, I believe that Bush and bin Laden have a similar symbiotic relationship that serves both of their interests. That’s why the Bush team was ecstatic when bin Laden released a tape a few days before the election. Bin Laden was the "helpful beast" that justified everything both good (Afghanistan, parts of the Patriot Act) and bad (Iraq, torture, parts of the Patriot Act). Similarly, Bush’s foreign policy has been a boon to bin Laden. As the 9/11 Commission reported, he wanted America to attack Afghanistan, and was certainly thrilled by our invasion of Iraq.

On a different level, “liberals” have become a helpful “beast” to the modern GOP. The GOP leadership has betrayed conservative principles in a number of ways. Indeed, given the deficits and the new entitlement programs and the authorization of torture and the congressional ethics lapses, it’s hard to say that the current leadership practices anything resembling conservative principles (for which I have respect). If don’t believe me, just ask George Will.

The leadership’s actions over the past few years should give any American pause. I mean, it’s crazy that Americans have forgotten both the number and the content of the WMD/terrorist-related references from 9/2002 to 3/2003 (some of which were quoted in the Billmon post). But one reason people forget about these things is that they fear the “beast” - the straw-men liberals invoked by the noise machine. These crazy libruls want to ban the Bible, subject America to a global test, and destroy marriage.

Like the “beast” in Lord of the Flies, these people simply don’t exist. They are imaginary projections that are invoked to maintain power and to distract people from the leadership’s own failings. "Vote for us or those libruls will take over." What’s interesting is that even though many pundits denounce and demagogue liberals, they actually love having them around. Nothing makes Rush Limbaugh happier than hearing about some librul suing to take God out of the Pledge. As opposed to traditional conservative philosophy, modern “pop” conservatism exists only as a negation of the librul straw man. The common catch phrases – “small government”; “activist judges”; “strong values” – are all meaningless without a librul straw man as the baseline for comparison. In other words, “pop” conservatism of the Limbaugh and Hannity variety defines itself in opposition to the librul beast.

Without the beast, there would be very little positive content, and very little reason to listen to Rush Limbaugh.

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Sorry folks. I'm beat, so I'm taking the night off. I do need your help though. Every day I drive by the inauguration preparations and proceed to hiss and convulse uncontrollably, as if I were a Gremlin in sunlight.

So, I have firmly resolved to watch exactly NONE of the inauguration - for health reasons. I'm not watching the commentary. I'm not watching the speech. Nuthin'. I probably won't even read the paper the next day. But because I get the day off, I need to find something else to do. That's where you come in. I need an activity that can keep me occupied, or else I will not be able to resist the temptation.

My current plan is to rent the extended versions of all three Lord of the Rings and watch the whole damn thing, eating only Domino's and moving as little as humanly possible. If anyone can come up with anything better, I will recognize your insight on Inauguration Day. I'm leaning strongly toward watching movies all day. So feel free to propose an alternate set of movies that you like. In fact, we've had an open thread for people's book and album recommendations. How about movies? Anyone rented anything good lately?

[UPDATE: From an email:



[UPDATE 2: Thanks some helpful tips, I won't be eating Domino's. I couldn't find any pizza listings at Buy Blue, so I'll go with a local place.]

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Now that the hunt for WMDs is officially over, I would encourage everyone to go visit an old Billmon post from late May 2003. I think this won the Koufax Award for best post last year.

I forget why I was so mad in early 2003 and then I see the old quotes again and remember. It really is a great post. Of all the quotes, I think Ari had the best one (4/10/03):

But make no mistake -- as I said earlier -- we have high confidence that they have weapons of mass destruction. That is what this war was about and it is about. And we have high confidence it will be found.

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My schizophrenic love/hate relationship with Scalia tilted toward love yesterday as he explained the practical effect of yesterday’s terrible decision (Booker) that eviscerated the Federal Sentencing Guidelines:

In Blakely v. Washington, 542 U.S. ___ (2004), the four dissenting Justices accused the Court of ignoring “the havoc it is about to wreak on trial courts across the country.” And that harsh assessment, of course, referred to just a temporary and unavoidable uncertainty, until the Court could get before it a case properly presenting the constitutionality of the mandatory Guidelines. Today, the same Justices wreak havoc on federal district and appellate courts quite needlessly, and for the indefinite future.

You got that right Nino. Shit – meet fan. I pity the poor clerks, judges, and U.S. Attorneys’ offices that have to deal with this trainwreck. This case has overturned the entire federal criminal justice system – and despite what you may hear, the decision undermines progressive values.

Unfortunately, this is difficult stuff and it’s going to be hard for non-lawyers to follow. The most important point is that yesterday’s decision should be divided into two parts (or "halves"). In the first half, the Court had to decide whether an application of the Guidelines violated the defendant’s constitutional right to a jury (i.e., the “right”). In the second half, it had to decide what to do about the Guidelines themselves (i.e., the “remedy”).

The Court’s decision about the “right” part of Booker was widely predicted, though I still think it’s wrong. I laid out why I think the Court’s conclusion was wrong here and here, back when Booker was being argued. If you haven’t read them, I would encourage you to go do so and then come back. The first post will help non-lawyers who don’t know a thing about the Federal Sentencing Guidelines. The second post is more technical and lays out why I think the first half of Booker is wrong. Essentially, I think that the Guidelines can and should be treated differently than statutes so long as the Guidelines-imposed sentence rests within the statutory range. But anyway, I’ve explained all that before. The more troubling part of the opinion was the second half – the “remedy” stage.

Yesterday’s decision essentially threw out the Guidelines. Yes, yes, I know. The Court didn’t actually throw them out. It merely found that they were advisory rather than mandatory. I’m sorry, but you have to either take ‘em or leave ‘em. The whole rationale of the Guidelines was to ensure fairness and uniformity. If a few judges can ignore them, the rationale underlying the entire system is undermined. And that’s a bad thing. Although there is a tendency for liberals to have a knee-jerk hostility to the Guidelines, they actually serve the important progressive goal of ensuring that race and class are not factors in determining the length of a criminal’s prison time. Here’s how I explained it before:

I think that these people are mixing up two different critiques. When progressives complain about the guidelines, what they’re really complaining about is that they’re too harsh, or that the mandatory minimums are too long (for drug crimes especially). Now I share that concern, but that has nothing to do with whether the guidelines should be constitutional. That has to do with the nature of the enacted guidelines.

We should all remember that the guidelines promote a lot of progressive values. Before the guidelines were passed (and they passed with broad bipartisan support), criminal sentencing was left up to the discretion of the judge. And as you would expect, sentences varied widely depending upon certain irrelevant factors such as race, and especially class. So yes, the guidelines have problems. But I’m not sure that throwing them out entirely would help the people that progressive critics want to help.

Throwing out the Guidelines means that sentencing discretion returns to the judge. The problem, though, is that with respect to criminal sentencing, I don’t trust judges. This issue of trust is really at the heart of the controversy so let me back up and explain.

One of the recurring debates in law is about “bright lines” versus “standards” (or discretion). Your tendency to adopt one over the other is a function of the level of your trust (or distrust) of the official who will be making decisions. For example, the Warren Court distrusted state governments and especially local police in the context of protecting civil liberties (and you cannot divorce their jurisprudence from the civil rights struggle around them). They believed, rightly, that Alabama sheriffs would never protect the constitutional rights of black people. So, they adopted bright-line rules such as the exclusionary rule or Miranda warnings. If you cross these lines (e.g., if you don’t give Miranda warnings), the defendant goes free. There is no discretion.

Interestingly, this same distrust can be seen in the formalist jurisprudence of Scalia and Thomas. Scalia, like Bork, thinks the federal judiciary is full of pot-smoking atheist hippies who want to free criminals and impose their long-haired hippy views on the rest of us. So, Scalia has become a big advocate of formalistic bright lines. He doesn’t like balancing tests or multi-factored analyses, or anything that gives excessive discretion to the lower court judges. Just like Earl Warren wanted to rein in Southern sheriffs, Scalia wants to rein in the judiciary. The common thread is distrust.

Fast forward to yesterday’s decision. The real question you must answer before deciding whether to support the Guidelines is how much you trust judges in the context of sentencing. A lot of people, quite reasonably, believe that it’s impossible to devise a just sentencing regime ex ante. Given the great diversity of factual situations, it’s best to give judges a wide statutory range and leave the actual sentencing decision to their discretion. If John Kerry had appointed the entire federal judiciary, then maybe I would be a bit more likely to trust them. But progressives need to remember that the federal judiciary is overwhelmingly Republican and very anti-criminal (strangely, their originalist textualism often ignores the fact that protections for criminals dominate the Bill of Rights - I guess the Founders were creating the law, not interpreting it).

It’s more than a partisan concern. When the Guidelines were adopted, there was overwhelming evidence that criminal sentences varied along racial and class lines. The length of the sentences imposed by the Guidelines (especially gun and drug crimes) may be unjust, but they’re not unfair. Everyone gets screwed equally. Yes, tossing the Guidelines will, at times, allow progressive judges to remedy some of the insanely long sentences that get issued for small amounts of drugs or gun possession (any Second Amendment-ers out there with me on this one? Brett?) But Booker will unfetter the Federalist Society too. And the Federalist Society, which fancies itself the guardian of classical liberalism, doesn’t much care for criminals and really doesn’t much care for the Fourth Amendment. It’s just as possible that a lot of people will get increased sentences now that the Guidelines are gone.

One thing is for sure though. It's going to be a long month for federal clerks.

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William Faulkner is my favorite American author. Along with Huck Finn and The Sun Also Rises, Faulkner's As I Lay Dying is one of my favorite American novels. It's the most accessible and the most linear - it's the place to start if you've never read him. It's hard to articulate why I like him so much. He is certainly unnecessarily difficult at times. But Faulkner speaks to the collective emotions of those who grew up in the South (and left it) in ways that no one else can. It's hard to explain - it's a strange and simultaneous mix of irrational passionate loyalty mixed with guilt and alienation. Anyway, when I read about the new murder charges against the old man (Edgar Ray Killen) from Philadelphia, Mississippi, I was reminded of one of Faulkner's far more difficult books, Absalom, Absalom!. It's great, but I would recommend reading some cliffnotes or a secondary source first (I've never read Ulysses, but I assume the same is true for it).

Anyway, Absalom, Absalom! begins in 1909 when an old angry widow tells a young Mississippian (Quentin Compson, who was on his way to Harvard) the story of Colonel Thomas Sutpen. Most of the book takes place before and during the Civil War. The Colonel had a son named Henry Sutpen who fought in the war and had long since been forgotten (he had disappeared after murdering his half-brother). Anyway, at the end, the old woman takes Quentin out to Sutpen's old land because she believes someone is living out at Sutpen's now decaying plantation house who shouldn't be. Quentin goes into the house (in 1909) and finds himself face to face with Henry Sutpen - the Civil War veteran who had long since been presumed dead. The old ghost had re-emerged:

And you are---?

Henry Sutpen.

And you have been here---?

Four years.

And you came home---?

To die. Yes.

To die?

Yes. To die.

And you have been here---?

Four years.

And you are---?

Henry Sutpen.

The message - at least one of them - is that the Civil War lived on, haunting the memories of a South that would prefer to forget. Edgar Ray Killen reminds me of Henry Sutpen. In a sense, we've gone back into the old plantation house and found a ghost still rattling his chains. His recent arrest reminded me of this haunting passage from the same book:

[Quentin was in t]he South, the deep South dead since 1865 and peopled with garrulous outraged baffled ghosts, listening, having to listen, to one of the ghosts which had refused to lie still even longer than most had, telling him about old ghost-times.

Here we have a living ghost living in the attic.

I don't really have any overarching lesson to drive home. It's more of an observation. America's original sin - slavery - lives on. Everytime we think we've overcome it, we come face to face with Henry Sutpen hiding out in the attic.

It's a damn tough problem. How do you convince modern generations to make amends for past immoral actions that have resulted in consequences that live on (and continue to rattle their chains). I don't know. But as Edgar Ray Killen illustrated this week, the issue isn't about to go away anytime soon.

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I really hate it when Kevin Drum beats me to a post (it happens with annoying frequency). Anyway, let me just piggyback on his post and offer my endorsement of Howard Dean for DNC Chair (which will surely put him over the top). Howard Dean you say? The same Howard Dean that you said in November would be a "terrible choice." Yep. That very same Howard Dean. I'm flip-flopping. Here's why.

First, I agree with everything Kevin said. Dean is perceived as having a spine, which makes him something like an oasis in the desert these days. Despite his ideological wandering during the primary, his tenure as governor was fiscally responsible, socially progressive, gun-friendly, and intelligently hawkish. That's what I am, and I think that's the "swing coalition" that will eventually break for one party or the other. [After 9/11, Bush had a real chance for a permanent majority, but his polarizing policies - and his embrace of the theoconservative wing - will keep him at 50%.] Growing up as a blue blood, he is fluent in the language of Wall Street and will be able to raise money (just like Bush).

But more than anything else, Dean is the only prominent Democratic official that has given the slightest indication that he understands the long-term challenges facing the party. Even if by some miracle of God the Democrats take back a house of Congress in 2006, the party still must have its eye to the long-term. It's a two-front battle, and Dean seems to recognize that.

First, I'm confident he will put a heavy emphasis on recruiting and supporting local and state officials, which is the training ground for future Congressional and gubernatorial candidates. Second, he will aggressively court the grass-roots Net movement, and they will reciprocate - enthusiastically. Third, he is at least open to some of the ideas of policy and narrative reform that are so commonly discussed on the blogosphere. For example, he's been quoting Lakoff lately. Now you might think Lakoff's insights are overrated (like Kilgore does), but even if you do, it's still refreshing to see that Dean is actually seeking out new ideas and thinking about them. You want someone like that with a position of power within the party.

I also love the fact that he's at least thinking about co-opting "values" (I discussed this strategy in my post "Values 2.0"). This speech had me literally jumping up and down:

The pundits have said that this election was decided on the issue of moral values. I don't believe that. It is a moral value to provide health care. It is a moral value to educate our young people. The sense of community that comes from full participation in our Democracy is a moral value. Honesty is a moral value.

If this election had been decided on moral values, Democrats would have won.

And this (which I urged the party do just a few days ago):

We have to set the agenda.

We should not hesitate to call for reform -- reform in elections, reform in health care and education, reforms that promote ethical business practices. And, yes, we need to talk about some internal reform in the Democratic Party as well, and I'll be discussing that more specifically in the days ahead.

Reform is the hallmark of a strong Democratic Party.

Amen buddy.

I guess too that I have a soft spot for Dean from early 2003. When I was so thoroughly demoralized about Iraq, it was Dean who spoke out and articulated the, well, rage I was feeling at the time. And even though Dean lost, he didn't come across as wishy-washy or unprincipled or cowardly. He emerged with some dignity. That's because he had the spine to say things that were controversial, such as capturing Saddam did not make us safer (which was right by the way - though I'm not sure it was a battle worth fighting at the time). But still, people respect a spine more than you think. Yes, the risk of Dean is that he can be demagogued as a liberal, but good Lord, who can't? It's just a template that is going to be applied to everyone - even Arlen Specter for God's sake. Unless they're loons (Coburn), people respect principled leaders. I would guess that conservatives have a lot more respect for people like Wellstone and Feingold than more centrist leaders such as Daschle, who even strike me as wishy-washy.

Above all else, Dean seems like a breath of fresh air. I'm on board Howard. Good luck.

[UPDATE: But Trippi disagrees. I have no problem with Rosenberg, but I hear he's boring. But he apparently is about to get some big-time endorsements. I suspect people are too scared of the public's perception of Dean as a crazy liberal (which to be fair was one reason I opposed him at first). I still prefer Dean, but I would be very happy with Rosenberg too.]

[UPDATE 2: Ezra Klein is struggling with this issue as well:

Dean has baggage. Lots of it. And while I'm confident in his ability to quickly silence the final sniggers at his scream, I'm more concerned about his potential to feed negative storylines. . . . Rosenberg, for his part, gets everything that Dean does (maybe more), but his media inexperience and decided lack of star power leave him less likely to be the party's savior. Technically proficient and a boon to the party, sure, but not a likely general for the revolution. So less upside, but no downside. And for that reason, I'm taking down the Dean button.

Tough call. I may yet flip-flop again. But for now, I think the Dems need a general rather than a technocrat.]

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Well, the death squads drew Billmon out of hiding temporarily. Since we're talking about collective efforts and the power of the Internet, I'd like to see a mass email movement to try persuade Billmon to come back.

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My favorite moment in Kubrick’s 2001: A Space Odyssey is when the ape picks up the bone and uses it as a tool for the very first time. As the powerful (and now familiar) percussions in the background indicate, the viewer is witnessing one of the most important milestones in the evolution of the human race. As I’ve watched the coverage of the tsunami, I’ve been thinking about that scene. More precisely, I thought about it as I witnessed the unprecedented worldwide flow of money from the Internet to relief agencies. Just like in Space Odyssey, I think we are quite literally witnessing a phenomenon that has never happened in human history. In a span of days, hundreds of millions of dollars instantly appeared to help the devastated region. Nothing like this has ever happened - not this much, this fast, over the Internet.

In roughly ten years, the human race has constructed a global infrastructure connecting it to each other as never before. I am more convinced than ever that the invention of the Internet is destined to take its place alongside tools, the wheel, agriculture, and the printing press as one of the greatest milestones in the history of the human race. Like all of the prior inventions, however, it is a tool. And like all tools, it can be used equally well for good or bad. And that’s what I want to explore today – the good and the bad over the very long-term. I’m even going to get a little science fictiony by the end – so if that stuff bothers you, you should go read Instapundit’s tortured ambivalence about death squads (“I can see arguments both ways”) and come back tomorrow.

If the idea of universal ideals is something that should be taken seriously (personally, I’m ambivalent), then the ultimate universal ideal has to be a collective global community. Marxism, the political manifestation of this ideal, didn’t work because it ignored human realities. But in terms of sheer aesthetic beauty in the abstract, it is unmatched among world history’s various political philosophies. The idea of collective efforts to ensure that all humankind enjoys basic standards of living is, well, as Christian as it gets.

At times, it seems like mankind may be progressing toward this ideal, even if it can only approach it. For example, the rise of institutions like the UN, WTO, and EU over the past sixty years is an equally impressive novelty in human history. Robert Wright has argued in Non-Zero that it is the logic of game theory that leads people to become increasingly interconnected in these and other ways. For example, a game of poker is a zero-sum game. What helps one person necessarily hurts another. Wright argued, however, that human cooperation results in non-zero sum (or positive) gain. Here’s how Brad DeLong explained it, reviewing Wright’s book in 2000:

At its most basic level Wright's point is that interactions are positive-sum: there are gains from cooperation. Thus human cultural evolution has an arrow and a direction: toward greater complexity, toward higher civilization.

The direction arises at two levels. First, individual humans seek out things that increase their own powers and capabilities. Cooperation tends to do this, so people find ways to cooperate. But the most important form of cooperation is one that is almost impossible to stop: the simple sharing of knowledge. Two heads are better than one. The denser the population (and the better the means of communication) the more ideas will be generated, the larger the number of ideas that turn out to be useful, and the faster will be progress.

With the Internet, the cooperation is increasing exponentially. And it can bring people, ideas, and money together at dizzying speeds. For example, I think that Howard Dean was merely the tremor of the larger quake about to hit American politics. With the rise of an alternate fundraising base, third parties can arise almost instantly. It's sad to say, but the ability to raise money is the key to everything in American politics. If the Christian right really wanted its own party, it could do so almost immediately (and reap a bunch of money). The same is true for Dean. His candidacy was for all intensive purposes a third-party insurgency. And I think that’s a good thing. The rise of small instant donations from millions of people is one of the most exciting developments in American democracy in quite a long time. Blogs are merely one small subset of this larger Internet phenomenon, which itself is essentially a high-speed, low-cost infrastructure for communication and money.

But looking beyond American politics, this infrastructure also the potential to bring the world together – to connect it within a larger global market and information infrastructure. Railroads, telegraphs, radios, and television all helped transform the United States from a collection of bickering states into a nation. Today, even though we root for our home states in sports events, we would never dream of fighting a war for them.

The ultimate goal of humankind should be to replicate this evolution on a global scale. The great promise of the Internet and global markets is to draw the world together and make it interdependent. Though I will never live to see it, I would hope that the world will one day treat the idea of nations and nationalism as antiquated relics from a distant past. I want nationalism to become limited to soccer games. The end of nations – that is both the dream, and the logical implication, of globalization over the very long-term.

But, the happy Wright narrative of the inevitable emerging world community has its dark sides as well. Ironically, the same forces that are slowly drawing the world together are the same that make it more vulnerable to destruction (kicking the bottom box, if you will). True Leftists – the ones who are serious about toppling the status quo (and quite unlike anything that passes as “leftist” in America) – see this growing interconnectedness as oppressive. Back before 9/11, some of these ideas were discussed in a controversial book called Empire by Hardt and Negri. I tried to read the damn thing, but it’s impenetrable.

I’m not exactly a fan of either the book or its ideas (neither is Drezner). But that’s because I’m not a true Leftist. These guys want to overthrow capitalism, and they’re serious about it – and what they say is scary in the post-9/11 world. From what I can gather (it's a tough read), they were essentially arguing that the global capitalist market is the new force of domination that must be overcome. They claimed that it had outgrown the nation-state (the traditional force of domination), and was now beyond its control. This global market (or “Empire”) was slowly consuming and assimilating everything in the name of its own values (Hardt and Negri would probably say that Bush’s democracy promotion was merely an attempt to facilitate Empire’s growth).

Anyway, the most frightening aspect of their argument was that as “Empire” grows, it becomes more vulnerable. Because it is for all practical purposes a growing organism that has no true center (like the Internet), a collapse at any one point could bring the whole thing down. For example, when the world is truly interconnected within “Empire,” a financial crisis in Thailand or Argentina could bring down the whole thing – as could a terrorist attack that caused the world’s markets or cyber-infrastructure to collapse. What was most disgusting about Empire was its barely concealed embrace of Islamic fundamentalism as the last "hope" of anti-modernity. [On as aside, I wish people would get some perspective when they throw the word “Left” around. These guys are Leftists, not us.]

As much as I reject their values, I fear they may be prophetic. In an interdependent world, we are just that – interdependent. A collapse in any one place could cause a massive chain reaction that sucked us all down into the abyss. If we're all tied together, any one who falls in the water could drown everyone. We’re probably not there yet. After all, the world survived the collapse of the World Trade Center with relative ease. But it’s not hard to see how things could be different in the not-so-distant future as the world becomes more and more interconnected and interdependent. With improvements in technology and communication, a loose nuke in a failed states (or even a loose nuke recipe on Dr. Khan’s blog) could quite literally bring the world to its knees.

So I don’t know. I hope for the ideal, though I fear the worst. If there’s a lesson to be drawn, it’s that we should do all we can to embrace the world and give the billions who suffer an incentive to remain within the system (a global ownership society, if you will). Alienating a billion Arabs is not exactly the recipe for future long-term success.

Before I finish, I want to make one last point about the rise of the Internet and its potential implications. And here’s where I’m going to get science-fictiony, so indulge me. I suspect the day is coming when computers will able to interface with the human brain. Maybe it will be one hundred years, maybe it will be a thousand. I don’t know. But I think the day is coming. If and when that happens, I’m not sure that we’ll actually be humans in the same sense that we are today. If you and I can connect in a similar way that two computers can, would it be coherent to say that we are still different entities? If you and I can download each other’s mind into our own, would we still be different?

My point is that I can imagine a day where human existence evolves into something more collective and more like a computer network. For the sake of argument, let’s say that the great interfacing happens in the year 2500. If it does, it would be wrong to think that it happened overnight. In reality, the evolution would have occurred gradually and along a spectrum through time. Thus, the rise of human communities on the Internet may eventually come to be seen as a link between earlier human life and future human life in the same way that certain primate species link us to our ancestors. In other words, maybe we are witnessing the rise of something post-human in something as unlikely as tsunami aid. Emailing, instant messaging, blogging – perhaps these will be seen as points along the road toward something truly different.

Ok - I’ll lay off the acid. Back to normal subjects tomorrow.

[I should add that some of these ideas come from the same friend who thought up "box theory" - they are not all mine (for good or bad).]

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Say what you will about Bill O'Reilly, the man is brilliant as a rhetorician. More specifically, he is masterful at overcoming logos with pathos. For those unfamiliar with those terms, you can see a fuller explanation from me back in February. Briefly, logos and pathos are two of the three forms of rhetoric (the art of persuasion) outlined by Aristotle. Logos persuades by appealing to logic. Pathos persuades by appealing to emotion (and can be completely illogical).

For example, let's say that there are two candidates trying to persuade a crowd to vote for their tax proposal rather than their opponent's. A candidate using logos would offer some empirical justification for his preferred level of taxation. A candidate using pathos would say, "My opponent supports gay marriage!", or "This guy is a racist!" Even though the latter's statements have no logical relation to tax policy, they would probably be more persuasive to the crowd, given that we humans are still slaves to our emotion-driven monkey brains that are wired for life in the forest.

Few institutions understand the power of pathos better than Fox News. Before I get into that, let me make one brief but important point about the role of Fox News and the GOP noise machine (Drudge/Reynolds/Wash. Times/talk radio) more generally. The great contribution of the noise machine is that it lowers information costs. In other words, it provides people a simple way to think about (or respond to) each and every issue that may come up in the news on any given day. For example, let's take Richard Clarke. Here's an extremely hawkish guy - an expert in anti-terrorism who had worked for several administrations. The fact that he criticized the Bush administration so strongly would (in a purely rational world) be quite damaging. But fortunately for Bush, the noise machine cut Clarke down and prevented (or at least limited) any cognitive dissonance from forming in the minds of those who are strongly anti-terrorist and strongly pro-Bush. Those who listened to Limbaugh or Hannity "learned" that Clarke was a liberal who was "not in the loop," and who favored Gore or whatever.

The entire operation exists to give every listener a little weapon each morning that he or she can take out to their community. If someone challenges them at the local diner, they can respond with Limbaugh's response, or Hannity's response. Obviously, Democrats can also think as uncritically about issues, but the Left has nothing remotely close to the nationally coordinated talking points that can be unleashed by the GOP noise machine across a wide range of media (TV, radio, newspaper, blogosphere, Drudge).

Now, if the noise machine used logos, I would have absolutely no problem with it. This is a democracy after all. If the Left doesn't like it, it can and should organize and build its own noise machine. But the GOP noise machine does not use logos to persuade its audience. What's troubling about the noise machine is how often it completely ignores logos and tries to frame every issue using pathos. In short, it's an emotionally deceptive enterprise. Too often, important issues are framed emotionally - rather than logically - by talented commentators. And few are better at this pathos game than Bill O'Reilly.

Below, I've provided an excerpt of his "Talking Points Memo" that aired last Friday (LEXIS only). The "Memo" excerpt on the website is not the same as what he said on TV last Friday (which is what you'll see below). Although the excerpts below are broken up, I'm not omitting any words between the first word I quote and the last. What I mean is that if you put all the blockquotes below together, there would be no ellipses. Here we go:

Hi, I'm Bill O'Reilly. Thank you for watching tonight. Character assassination, part two, that's the subject of this evening's "Talking Points Memo."

This Alberto Gonzales situation is really bothering me. It's flat out wrong for the left wing media to slime the guy. First, the definition. Media character assassination is when a journalist or a talk show host levels charges designed to hurt a person's career, family or character.

It used to be this kind of malice was mainly done on talk radio, but now it has spread to the so-called elite media. Alberto Gonzales has been accused of aiding the Abu Ghraib crimes, of human rights violations, of promoting the torture of innocent people. And that is false.

The Abu Ghraib thing may be a stretch, but Gonzales clearly aided human rights violations and certainly promoted the torture of innocent people. Saying it is false does not make it so. But ideally, even if you agree with O'Reilly and disagree with me, and even if you think Gonzales should not be sharply criticized (or "slimed") for these actions, you should appeal to logic. Tell me why I'm wrong. But that's not what O'Reilly does. Watch how he responds:

While the issue of terrorist interrogation is certainly a legitimate debate subject, demonizing Gonzales is wrong. Here's how grossly unfair it is.

Gonzales is one of eight children born to a poor family in Texas. His parents came here from Mexico and worked hard to make a decent life. Gonzales also worked hard, excelling in school, joining the Air Force and finally graduating from Harvard Law School. After succeeding as a private attorney, the man entered public service 10 years ago and has served ever since. Alberto Gonzales is a patriot and a role model for minority children. He is not a sadistic torture-monger. He is not a villain.

Now, none of that has absolutely anything to do with anything. It's a touching story and all, but his personal history has no logical relation to his interpretation of the Geneva Convention or federal torture statutes. Nothing O'Reilly says supports his conclusion that Gonzales is not a "torture-monger." But that's not his point. His point is to make you like Gonzales. O'Reilly is using pathos to persuade, and he's using it well. And if that doesn't work, there's more:

The left-wing press should be ashamed but it's not. It's angry, angry that President Bush won re-election. So it's lashing out and assassinating characters all over the place.

Again, this is not logically related to the claim. It's a clever use of pathos. When the facts are bad, you smear the messenger - especially if that messenger is someone the audience doesn't like anyway. The press should be ashamed, he says. But why? He gives no answers. He adds:

Now the right does this, too, primarily on the radio as we said. But in print, the defamation falls squarely on the progressives. The nation's most influential conservative newspaper, "The Wall Street Journal" rarely attacks people personally. [Ed. note - except when accusing Clinton of murder] "The New York Times" does it almost daily. Many of its columnists have turned into revolting smear merchants.

So what can be done? Unfortunately, not much. Personal attacks are designed to hurt people, not enlighten or persuade. They are also designed to intimidate. Believe me when I tell you very few Americans want to take on the smear machines in the media on the left or on the right.

This guy is good. He half-heartedly criticizes the group he is nominally aligned with (a classic rhetorical strategy - see e.g., Sister Souljah) to show his moderation. But finally, the coup de grace:

America is slowly losing freedom and core values. We prove this almost every night here on "The Factor." And if you doubt it, just think about Alberto Gonzales and the garbage he is going through. There's something very wrong here. And the media is 100 percent to blame. And that's the Memo.

By the end, O'Reilly has linked criticism of Gonzales with the perception of decline so common among conservative viewers - and one that I discussed here in the context of Christmas. Also, the real problem is not that the nominee made questionable legal judgments (at best), the real problem is the media - it's "100 percent to blame." This is good stuff. I mean, it's terrible, but you have to have a grudging respect for the man's rhetorical abilities. This is how plaintiffs' lawyers get big verdicts (and Edwards was good at it too).

In a logical world, a man who has helped authorize both torture and the suspension of the Geneva Convention should not be Attorney General - for our troops' sake if nothing else. As Biden said, it reflects poor legal judgment. At the very least though, Gonzales's actions surely merit some sharp criticism, and should raise broader questions about the wisdom and effectiveness of the Bush administration's anti-terrorism policies.

But according to O'Reilly, this criticism ("demonization") is unjustified because Gonzales grew up poor and worked hard to get where he did. What the criticism really shows, O'Reilly explains, is just how vile the left-wing press has become and how we're losing our "core values."

What drives people like me absolutely up the wall is that none of this has any logical relation to any of the substantive criticisms. If you think Gonzales's actions were legally justified, make the case. I would love to hear it and think about it. But that's not what Fox News does. Fox News NEVER EVER NEVER does that. It deceives. More specifically, it deceives through a savvy use of pathos - and it does so almost every day.

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I'm out for the weekend. I'll be back tomorrow night. In the meantime, Wampum has the first few of its nominations up. I've found it to be a good way to learn about good blogs that I had never heard of (altruism is of course my only motive for pointing it out). Have a good weekend.

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I suspect that I have a far greater tolerance for the DLC and conservative Democrats than many of the readers. The Democratic Party - like the Republican Party - should and must be a coalition. But that said, I have almost concluded that it's time to kick Joe Lieberman out of the Senate. Surely to God there is a good Democrat in Connecticut to run against him in the primary.

It wasn't just the war or his comments about it (and Dean). A lot of good people on both sides of the aisle supported the war. His post-Abu Ghraib comments, however, really got under my skin, especially for someone who likes to advertise his values. Now, it looks like he might be abandoning Social Security too. Well, if it's true, that's the last straw.

We should probably try to boot him out anyway. But I'm willing to make Social Security the last straw on whether I would support him in a primary. In general, I think the party needs to make it clear that anyone who supports the Bush Social Security phase-out should expect a fierce battle in the primary.

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There's so much to say about Gonzales that it's hard to fit it all into one coherent post. So I won't even try. Instead, I'm going to offer a laundry list of more general observations that try to approach things from a different angle.

Empiricists and Advocates

The torture memo that I analyzed yesterday illustrates perfectly the difference between an advocate and an empiricist. The two could not be more different in the way each approaches a given set of data. An empiricist examines the information before her, tests and scrutinizes it, and then comes up with a conclusion. An advocate, by contrast, flips this process on its head. An advocate begins with a conclusion and then scrutinizes the data to find the best support for that pre-existing conclusion. This is how to make sense of the strikingly different conclusions reached by the CIA and the Pentagon (and Feith's office in particular) about Iraq's WMDs and terrorist ties. The CIA approached the issue more empirically, while the Pentagon approached it more as an advocate.

What's most troubling about the torture memo is that it was not an empirical assessment of the legal universe. It was quite clearly a work of advocacy, for reasons I noted yesterday. When you see long elaborations of how to avoid "specific intent"; when you see Medicare statutes used to define "severe pain" in the torture statute; when "leading legal commentators" is a lone writer from the Israel Law Review; and when you see a single case from 1890 being used to stretch out the doctrine of self-defense in a rather radical way, you should know something is fishy. Do you think these citations were the result of an empirical approach to legal doctrine and precedent? No way. These weak citations were the tell-tale sign that the authors reached a conclusion and were searching desperately to find support - any support - for that conclusion. For example, when I was a clerk and I saw a brief in a federal law case that supported an argument with a single citation to the state family court of Nevada, I knew immediately that there was no real authority for that argument.

But you're probably thinking - that's what lawyers do, right? They're advocates. You don't want empiricists defending you in court. You want advocates. I should be blaming the client, and not Gonzales, right? Not so fast.

Lawyers as Advocates and Empiricists

It's true that lawyers are advocates. But to be a good advocate, you have to be an even better empiricist. Let's say you - the client - get indicted. First, to serve you properly, your lawyer must survey the legal landscape empirically to see what options you realistically have or don't have. This is done privately and confidentially. Second, once the lawyer has a firm grasp on empirical reality, he or she can proceed to advocate more effectively for you.

What's troubling about the torture memo is that it's quite clearly advocacy even though it was at the stage where lawyers are supposed to be assessing things empirically. It would different if the government raised these arguments in a brief or something. In a brief (the advocacy stage), it's more acceptable to stretch and make dumb arguments. But when you're being asked to evaluate such important questions as the applicability of the Geneva Convention and the federal torture statutes for the Commander-in-Chief during wartime - questions that potentially jeopardize our own troops and POWs - you need to tell the truth about what the law says or doesn't say. There was simply no excuse for being an advocate of torture at this stage of the game, especially when you KNOW what the consequences of the legal blessings would be.

Don't be fooled - the people in DOJ and Gonzales's office are VERY talented lawyers. I can assure you that they all knew this was complete horseshit when they wrote it. I mean, it's hard for non-lawyers to understand just how truly wretched the legal reasoning was (I tried yesterday, but it's difficult stuff). People would get fired at a law firm for misrepresenting the law so blatantly - unless of course they were instructed to reach this preordained conclusion, which I'm certain they were. People that smart don't write things that stupid.

Even if Gonzales could be excused for such sloppy legal work (which he can't be), OLC (the arm of DOJ responsible for the August 2002 torture memo) is supposed to objective and empirical - always. OLC is NEVER supposed to be an advocate, just like CIA analysts should NEVER be advocates. To be honest, given the prestigious history of OLC (where I wanted to work if Kerry had won), it's more outrageous that Bybee (then head of OLC) is a federal judge after signing this memo than it is that Gonzales is going to be AG. But getting back to Gonzales. . .

The Procedural Importance of Dissent

I've written many times that my biggest concern with Bush's cult of loyalty is essentially procedural. Surrounding yourself with loyal followers who won't disagree with you jeopardizes your ability to make informed judgments, and thus good policy. Dissent produces information, and helps the arbiter make good decisions. The Constitution sets up an adversarial process to ensure that judges and juries make informed decisions. Scientists bicker endlessly because it's the most efficient way to generate knowledge and test theories. When you limit the sources of your information, and when you don't have that information challenged, the probability of making an uninformed (and thus bad) decision goes way up.

This appears to be what happened to Gonzales. Maybe he secretly hates torture. Maybe he simply didn't have a grasp on an area outside of his expertise. Who knows? What we do know is that he shut out military and State Department experts and listened only to people of one particular mindset in reaching his conclusions (conclusions that eventually became the basis of American military policy):

[Gonzales] raised no objections and, without consulting military and State Department experts in the laws of torture and war, approved an August 2002 memo that gave CIA interrogators the legal blessings they sought.

Gonzales, working closely with a small group of conservative legal officials at the White House, the Justice Department and the Defense Department -- and overseeing deliberations that generally excluded potential dissenters -- helped chart other legal paths in the handling and imprisonment of suspected terrorists and the applicability of international conventions to U.S. military and law enforcement activities.

The result was predictable.

I have some more items to add to the list, which I hope to do tomorrow.

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My favorite blogger - Glenn Reynolds - offers some tortured logic of his own:

But I think the effort to turn this into an anti-Bush political issue is a serious mistake, and the most likely outcome will be, in essence, the ratification of torture (with today's hype becoming tomorrow's reality) . . . I think the threat is real, but I don't think that torture is the way to deal with it. On the other hand, I don't think that turning the question into a partisan political weapon (or an opportunity for posturing) helps either -- and, what's more, I think that the people who are doing that are likely to produce an environment in which torture is more, not less, likely.

So let me see if I have this straight. An administration headed by Bush authorizes torture. However, criticizing the President for his administration's failures in this area is partisan "posturing." Therefore, if torture becomes more accepted and widespread, it wouldn't be the fault of the administration that actually authorized and implemented it. It would actually be the Democrats' fault for criticizing Bush.

That's why I love Glenn Reynolds.

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In honor of our soon-to-be AG, I thought it would be a good day to repost my legal analysis (for non-lawyers and lawyers both) of parts of the DOJ torture memo. I wrote it in June, and I've reposted it below with a few additions (see the "Update").

Looking back on the memo now, it's clear that they added in enough disclaimers and qualifiers to avoid being, well, war criminals. But still, the point of the memo is pretty clear. It's sort of like a manual that clearly lays out the 12 easy steps to building a bomb, but then adds a quick sentence at the very end that says, "but under some circumstances you might get in trouble."

But I want to be very clear - it's a wretched document that will be a permanent stain on our country. And it is a complete joke that the people responsible are currently a federal judge on the 9th Circuit and a nominee for AG.

Without further ado. . . (and I apologize to those who read this back in June):

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I've just gotten around to reading the DOJ Torture Memo - which was distinct from the Pentagon memo that was discussed (superbly) by Phil Carter both on his blog and on Slate. The Torture Memo was supervised by Jay Bybee, who was then head of the DOJ's Office of Legal Counsel - and who is now a federal appellate judge (that should help you sleep well). Michael Froomkin has written quite a bit about the memo (and provides several links), but I want to try to boil this down for the non-legally trained. Sadly, law is often like Latin in the Middle Ages - an esoteric language of control exercised by a small minority who are "in the know." It's unfortunate that the legal language that dominates our lives is so inaccessible to the public. But I digress . . .

The first thing I want to point out is that this memo provides pretty clear evidence that the administration wanted to "expand" its interrogation tactics. The memo was apparently requested by Gonzales, who is Counsel to the President. The very first line states, "You have asked for our Office's views regarding the standards of conduct under [federal and international law]." On page 3, it reads, "You have asked us to address only the elements of specific intent and the infliction of severe pain and suffering." Similarly, on page 23: "Because the purpose of our analysis here is to ascertain acts that would cross the threshold of producing 'severe physical pain or suffering . . . '"

To be fair, this is not necessarily evidence that Bush was requesting ways to torture people. It could simply be that they wanted to make sure that interrogations were legal. That said, it still makes everything smell a little worse. At the very least, it demonstrates a clear interest in pursuing harsher interrogations. You must remember, too, that the memo itself provides a clear guidebook for how to torture people and get away with it (as Carter has concluded with respect to the Pentagon memo). When you combine that with everything else we now know, it just smells funny.

Next, I want to lay out the structure of the memo. I'm not going to focus on the international law obligations (because I just don't know much about them), but rather upon federal law and statutory interpretation (which I do know something about). The real purpose of the memo (to me) is to lay out ways to avoid being charged with violations of the Torture Statutes at 18 U.S.C. 2340-2340A. The memo cites three alternative ways to avoid liability under federal law: (1) Certain types of lesser abuse won't qualify as "torture" under the statute; (2) Even if they did qualify as "torture," the torture statutes are likely unconstitutional "if applied to interrogations undertaken . . . pursuant to the President's Commander-in-Chief powers”; and (3) Even if the acts were torture and the statutes were constitutional, the memo outlines a series of defenses (such as "self-defense") that can help people avoid liability. I won't analyze the whole thing, but I do want to dive in to area # 1 just to show how strained the legal logic was (I wanted to analyze # 1 and # 3, but it was getting too long). In fact, by the end, I'll think you'll agree it's more than strained - it's flatly absurd. [1/5/05 - I have added a brief blurb on #3 below as an "Update."]

The Torture Statutes - What Qualifies as “Torture”?

The federal Torture statute criminalizes "any act committed by a person . . . specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control.” 18 U.S.C. 2340(1). The first troublesome bit of analysis relates to the words “specifically intended.” So-called “specific intent” is a term of art in the legal world. Before you can understand why it matters, I’ll need to do a very quick lesson on the basics of criminal law.

All crimes – every single one of them – require two things: (1) a criminal act; and (2) criminal intent (or “mens rea”). You can’t go to jail unless a prosecutor can prove both. For example, let’s say that I got mad about a University of Kentucky football game at a bar (quite an easy thing to do). After the quarterback got sacked, I threw my hands up over my head and unwittingly hit someone in the head and killed them. I could not be convicted of murder. The criminal act existed, but not the intent. If, on the other hand, I had stabbed someone after screaming, “You no good bastard! - I’m going to kill you,” then a jury could find that both a criminal act and a criminal intent existed.

So far, so good. Traditionally, criminal intent has been divided into what we call “general intent” and “specific intent.” Some crimes require a prosecutor to show general intent, others require a showing of specific intent. Here’s the difference. Let’s say I got into a fight at a bar and I killed someone by punching him in the face. To be convicted of murder (first-degree), the prosecutor would have to show, not merely that I intended to hit him, but that I specifically intended to kill him by hitting them. To be convicted of manslaughter (which is a general intent crime), the prosecutor would only have to show that I intended to hit him. Notice the difference? Specific intent just means that the criminal specifically intended, not just to act, but to act to achieve a specific purpose (to kill, or to commit arson, etc.). Once you understand specific intent, you can better understand the weasel language on pages 2 through 5 of the DOJ memo.

The federal anti-torture statute requires a showing that the defendant specifically intended, not merely to commit the act, but to commit the act with the intention of causing “severe physical pain.” With that in mind, read this money quote from our nation’s leading legal minds:

Thus, even if the defendant knows that severe pain will result from his actions, if causing such harm is not his objective, he lacks the requisite specific intent even though the defendant did not act in good faith. Instead, a defendant is guilty of torture only if he acts with the express purpose of inflicting severe pain or suffering on a person within his custody. . . . Further, a showing that an individual acted with a good faith belief that his conduct would not produce the result that the law prohibits negates specific intent.

Now that everyone understands "specific intent," even non-lawyers can understand why this is complete and utter crap. The heinous nature of the acts themselves will almost always be enough to infer a specific intent to cause "severe pain." Hiding behind specific intent won’t work here at all. Like I said, this isn’t an instance where someone killed someone else in a fight and you’re trying to find out if he specifically intended to kill them. Neither is it a case where the abuse happened accidentally. When you beat someone to the point of death or near-death, I don’t see how you could possibly lack the specific intent to cause severe pain. The same is true for unleashing dogs on prisoners, or shoving things up their asses, or beating their heads against the bed. I mean, go ask Sean Baker, the American who suffered brain damage from being beaten, choked, and having his head slammed against the floor, because they thought he was a prisoner. Ask him whether the prison guards “specifically intended” to cause severe pain. There is simply no good faith belief that slamming someone’s head against the floor won’t cause severe pain. This analysis would be outrageous if it weren’t so damn stupid. But hold tight – there’s a method to their madness.

The second troublesome area is how the memo defines “severe pain.” The memo defines it as follows (p.1):

[Severe pain] amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.

In other words, they’re trying to limit “torture” only to “extreme acts.” Also, (and here is the real point of the specific intent analysis), the person must act with a specific intent to cause all of these things. In other words, one must specifically intend to cause "organ failure" or "death" or "impairment of bodily function." That’s what’s going on – they’re trying to allow people to say, “Hey, I didn’t specifically intend to cause his organs to fail, so I didn’t torture him.” It’s rather ingenious – I’m sure the Ashcroft Youth were quite proud of being so creative. Interrogators are free to abuse so long as they don’t specifically intend to cause organ failure or death.

Here’s the problem with the argument – the statute only says “severe pain.” It doesn’t use the word “extreme”; neither does it mention "organ failure." So how did the DOJ come up with this definition? It borrowed it from the law of emergency medical conditions found in the Social Security Act. I’m not making this up - just go read p. 5-6. Someone should really get removed for what you’re about to read (unless I’m just missing something obvious – please email or comment if I am). On page 6, the memo gets its definition for “severe pain” from 42 U.S.C. 1395w-22(d)(3)(B). That statute is in a section involving the Medicare+Choice program entitled, “Benefits and Beneficiary Protections.” Here’s where the language come from:

The term "emergency medical condition" means a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that a prudent layperson, who possesses an average knowledge of health and medicine, could reasonably expect the absence of immediate medical attention to result in--
(i) placing the health of the individual . . . in serious jeopardy,
(ii) serious impairment to bodily functions, or
(iii) serious dysfunction of any bodily organ or part.

Again, it’s a Medicare statute. Let me say it one more time. It's a Medicare statute. The memo says, “Although these statutes address a substantially different subject . . ., they are nonetheless helpful for understanding what constitutes severe physical pain.” Really? I mean, aside from the fact that we’re talking about a Medicare+Choice statute, the terms above seem to be defining “emergency medical conditions,” or possibly “acute symptoms.” But wait, it actually gets worse.

From the Medicare statute, the memo concludes (p.6): "These statutes suggest that “severe pain,” as used in [the Torture statute], must rise to a similarly high level – the level that would ordinarily be associated with a sufficiently serious physical condition or injury such as death, organ failure, or serious impairment of body functions.” Must. MUST! They used the word “must”! And they used it more than once. In the conclusion on p.46, Circuit Judge Bybee states that “[w]here the pain is physical, it must be of an intensity akin to that which accompanies serious physical injury such as death or organ failure.”

I sure hope I’m missing something, because if I’m not, someone needs to be sent to the Hague.

[Update - 1/5/05: The point of the argument outlined above (Argument #1) is to say, "Here's how you need to go about doing it for it not to be torture." Argument #3, however, essentially says, "Even if it is torture, here are some defenses that can get you out. So sodomize away."

Again, one of the basics of criminal law is self-defense. You don't "murder" someone if you kill them as they're about to stab you. Well, the enterprising young lawyers at the OLC (or perhaps Addington - everything really does trace back to Cheney) found a way to, shall we say, broaden that doctrine by taking advantage of 9/11. I'm going to selectively quote, but you should read it for yourselves and decide if the overall thrust is different from my quotations (p. 43-46). They're basically using 9/11 (and the hypothetical threat of a future al Qaeda attack) as a basis for torture. Remember the logic is (1) it's not torture; (2) even if it is, remember 9/11.

Third, many legal authorities include the requirement that a defender must reasonably believe that the unlawful violence is "imminent" before he can use force in his defense. It would be a mistake, however, to equate imminence unnecessarily with timing - that an attack is immediately about to occur. . . . To be sure, this situation is different from the usual self-defense justification. . . Self-defense as usually discussed involves using force against an individual who is about to conduct the attack. In the current circumstances, however, an enemy combatant in detention does not himself present a threat of harm. He is not actually carrying out the attack; rather, he has participated in the planning and preparation for the attack, or merely has knowledge of the attack through his membership in the terrorist organization. Nonetheless, leading scholarly commentators believe that interrogation of such individuals using methods that might violate Section 2340A [i.e., torture] would be justified under the doctrine of self-defense. . . .

The "commentators" were actually one person - a guy named Michael Moore writing in the Israel Law Review. (p. 44) But there's more:

Further, we believe that a claim by an individual of the defense of another would be further supported by the fact that, in this case, the nation itself is under attack and has the right to self-defense. This fact can bolster and support an individual claim of self-defense in a prosecution [according to a 19th century Supreme Court case, which was the only authority they could dig up apparently]. . . . If the right to defend the national government can be raised as a defense in an individual prosecution, as [the lone 1890 case] suggests, then a government defendant . . . should be able to argue that any conduct that arguably violated Section 2340A [torture] was undertaken pursuant to more than just individual self-defense or defense of another. In addition, the defendant could claim that he was fulfilling the Executive Branch's authority to protect the federal government, and the nation, from attack. . . . Following the example of the [1890 case], we conclude that a government defendant may also argue that his conduct of an interrogation, if properly authorized, is justified on the basis of protecting the nation from attack.

And that, my friends, is how you give the green light to torture. I hope the Federalist Society is proud of its members (ed. - but they're only interpreting the law).

It's also nice that our Secretary of Defense and soon-to-be AG won't be able to leave the country for fear of getting dragged before the Hague.

The really interesting bit from that excerpt is "if properly authorized." As the recently released FBI documents suggested, there may well be a document we haven't seen yet - a presidential order approving this stuff. The CIA isn't stupid. The whole reason we have torture memos is that they wanted assurances they wouldn't get thrown in jail for torturing prisoners. So, given that a presidential authorization apparently gives everyone a blank slate to torture people, it kinda makes you wonder if there's one floating around the halls somewhere. If I had to bet my house on it, I would say there is. Here's an excerpt from the Washington Post story from a few weeks ago, and it suddenly seems a lot fishier when you start connecting the dots:

One FBI agent wrote a memo referring to a presidential order that approved interrogation methods "beyond the bounds of standard FBI practice," although White House and FBI officials said yesterday that such an order does not exist.

I suspect that's why Bush will never fire Rumsfeld, and why Tenet got the Medal of Freedom. They know where Hoffa's buried, so to speak.

Enjoy the hearings. It will a day of great pride for our nation and its values.]

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Matthew Yglesias has a very interesting and important post about terror networks and the "next jihad." I highly recommend it.

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For those who don't spend much time reading conservative publications and blogs, you might not understand why I was so happy to hear that Frist supported a judicial filibuster. Within Federalist Society and conservative evangelical circles, the judicial filibuster has become something of an obsession (see, eg, Dobson's letter to Senate Dems). You simply would not believe how much energy has been devoted to denouncing the filibuster of Bush's nominees over the past few years.

I'm all for good constitutional debates, and the level of legal discourse on several conservative legal blogs can be very high (Volokh, Solum, Buck, Southern Appeal). But I've never really felt compelled to join the battle over judicial filibusters. I guess I could just never take it that seriously. The argument that the filibuster of judges is unconstitutional never passed the laugh test for me (I'll elaborate below). As for the recent uptick in outrage from elected officials, I generally chalked that up to the internal dynamics of the Republican Party. The religious right wing of the GOP coalition has an intense preference for judges with certain political and legal outlooks. So, I figured that politicians were merely going through the Kabuki dance of mock-outrage in order to keep them happy - even though a lot of Senate Republicans couldn't care less in their heart of hearts. That's why I've never taken Frist's repeated warnings about ending the filibuster that seriously.

I'm starting to get a bit more worried though. For one, the Republican caucus is significantly more theoconservative (Sullivan's term) with the addition of people like DeMint, Thune, and - dear Lord - Senator Coburn. There are also several influential Republican Senators harboring presidential ambitions. Frist's speech was, in my opinion, the first campaign speech of the 2008 Republican primary. Because of the dynamics of the GOP primary, even centrist Republicans like McCain will feel the pressure to move right and end the judicial filibuster.

Because I think the ban on the filibuster is gaining some real traction, I suppose I should articulate why I haven't been able to take the argument seriously. If there are any conservatives out there who know of especially persuasive articles, please comment below or email me - 'cause I ain't seen 'em yet.

The first reason for skepticism is that, as a textualist, I've never understood where one might find the textual hook establishing the alleged unconstitutionality of the judicial filibuster. Article II states that the President "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges[.]" That tells you exactly nothing about how the Senate can, as a matter of separation of powers, decide on how to "consent."

Another textual argument you hear is that because the Constitution expressly requires supermajorities in some instances (e.g., overriding vetoes), supermajority requirements in other areas are ipso facto unconstitutional. Huh? Fortunately, Ramesh Ponnuru has provided a good refutation of this line of argument:

I still don't see how anyone can make the argument that filibusters of judicial nominees are unconstitutional with a straight face. It is true that the Constitution sets up supermajority requirements in some instances and does not do so for judges. But it hardly follows from this fact that the Constitution bars a supermajority requirement for ending debate over judges. On its face, the advice and consent clause appears to be silent about the matter. The Constitution is also silent about whether judges should normally have to win the approval of the Senate judiciary committee, but nobody argues that this part of the process is therefore unconstitutional.

He adds some more thoughts here:

Would you really argue that the Senate couldn't establish a rule that makes it harder to raise taxes? Over the last decade and a half, budget rules have created de facto supermajority requirements for tax increases. Do you really want to argue that they're unconstitutional? If we are to infer that all supermajority requirements that are not authorized by the Constitution are therefore prohibited by it, we would have to reach these absurd conclusions.

As on many controversial questions, the Constitution has no clear answer. Political preferences are simply inventing text that doesn't exist (Roe anyone?). The Senate can do what it wants. Filibusters can certainly be eliminated if the Senate so chooses (constitutionally speaking), but that's much different from saying they are ALWAYS unconstitutional. There's simply no text that gets you there.

But getting away from the legal dimensions, another reason I've never taken the outrage that seriously is that it smells suspiciously self-serving, if not downright hypocritical. The Senate Republicans bottled up far far more Clinton nominees, thereby preventing an up-or-down vote. Clinton's nominees either never got reported out of committee, never even got a hearing, or were the subject of "holds." Frankly, I've never heard a good reason why blocking judges through the extra-constitutional filibuster can be logically distinguished from blocking them through the extra-constitutional Judiciary Committee or home-state "holds."

Mark Levin attempts to refute the "committee argument" by pointing out (correctly) that any individual Senator could in theory bypass the committee at any time, and so the two are distinct. But again, Ponnuru does the heavy lifting for me:

Mark [Levin]'s criticism of the "committee argument" makes no sense. I noted that judges don't always have to clear committee. The Senate can bypass them. The Senate can dispense with filibusters, too, if it gets 51 votes to change the rules. If the fact that the way the Senate chooses to operate creates a de facto supermajority is a constitutional problem because the Constitution does not provide for such supermajorities, then the fact that committees can, in practice, sink nominees is also a problem for the same reason.

There is simply no logical distinction between blocking judges through a filibuster and blocking them through committee-stalling tactics.

But still, there's something even more fundamental about why the outrage seems misplaced. The obstructionist Senate has approved 206 Bush nominees and filibustered 10. That's a success rate of 95.4% and it's a hell of a lot better than Clinton's. And some of the ten are truly terrible. Priscella Owen, for instance, was accused of being an activist by Torture Gonzales when they were on the Texas Supreme Court together.

Given Bush's success rate, I guess I just don't understand why people are so upset. I mean, I'm not naive enough to think that this is a battle of constitutional principles. It's a political battle, and Bush is winning by a lot. So why does everyone get so worked up? I have a few theories, but they're just speculation.

First, like the Pledge and the Ten Commandments, judicial nominations have become "proxy battles" in the culture war. Highlighting the miniscule number of blocked judges also feeds into the "oppressed victim" narrative that has worked so well for the GOP in its campaigns and legislative efforts. Second, I think some of the outrage is a function of internal party politics. No one in the GOP wants to be outflanked on the right on judges, or the culture war more generally. So, there are rational incentives to be vocal and move right on this issue.

But getting back to Frist, I'm really going to enjoy watching him explain himself if it turns out he really did support the filibuster. Given all the passionate denunciations of the filibuster, I'm also going to enjoy the response from certain conservative commentators. Though I suspect that the silence will be deafening.

__________

I really hope there's not more to this story, because it really would the best thing EVER, in the literal sense of the word "ever" (via CAP and Atrios):

Documents obtained by American Progress show Frist participated in an effort to block one of Bill Clinton's judicial nominees via filibuster, then lied about it. . . . But American Progress has obtained a document that proves Frist was not, as he suggested, voting to filibuster Paez for scheduling purposes or to get more information. He voted to filibuster Paez for the very reason he said was illegitimate – to block Paez's nomination indefinitely.

Someone at CAP has some savvy timing (and foresight). Here's Frist wooing the evangelical primary vote on the Senate floor today:

These filibusters were unprecedented. Never in the history of the Senate has a minority filibustered a judicial nominee with clear majority support. This was an abrupt and unfortunate break with more than 200 years of Senate tradition. This tradition must be restored. Not merely because we honor our traditions in the Senate, but because this tradition reflects the proper role for the Senate, as designed by the Framers, in the constitutional arrangement. . . . [I]f my Democratic colleagues exercise self-restraint and don’t filibuster judicial nominees, Senate traditions will be restored.

I'll have more to say later. My fear is that this is simply too good to be true.

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For all the soul searching after the election about why the Democrats lost, I never really heard an explanation that I liked. Like Yglesias said, the election was close. Any number of strategies could have potentially shifted the balance a few points. But never fear, dear reader. Lucky for you, I have found the answer. And I found it in an unlikely place – Nightline.

A few weeks ago, I was watching the footage from the “Orange Revolution” in Ukraine on Nightline. Young and old alike poured out onto the streets to fight for reform. It made me jealous. I wanted to be as inspired as they were. I suppose I was feeling the twinge of envy and nostalgia that an old married couple feels when they see a young couple lost in passion. The sad “Kerry for President” sign in my window was a poignant contrast to what I was seeing on the streets of Kiev. Kerry never inspired me. He didn’t inspire anyone. People were merely voting against Bush. And yes, although the people of Kiev were fighting against something as well, they also had a strong vision of what could be. They had an inspiring alternative in mind, and were ready to fight for reform.

Watching the “Orange Revolution,” I realized that the Democrats are losing because they’ve lost their fire. They’ve lost the ability to inspire. They present no alternatives. They do not try to be “reality-creators.” They merely resist (poorly, I might add) the absurd, inspired initiatives of the GOP. The party itself is like an old marriage that exists because of past inspiration. It is the American Right that has the fire in its belly these days, and it makes me jealous.

The Social Security debate is a perfect example of what I’m talking about. The Democrats are (for now) resisting, but they are not seizing the moment to counterpunch and articulate an alternative “ownership” vision for the young and working classes that doesn’t require dismantling (or even touching) Social Security.

But this gets to the essential problem, and one that I am hardly the first to make. The Democrats need an alternative global vision, not a set of policies. When pundits (or even I) say that Democrats need to do this or that, they’re missing the point – a point well understood by the student movement of the late 1950s and early 60s. While there is much to both admire and laugh at in the Port Huron Statement of 1962, it’s clear that the students understood something that today’s Democrats do not – the power and necessity of presenting an inspiring alternative:

Making values explicit -- an initial task in establishing alternatives - is an activity that has been devalued and corrupted. . . . [T]here are few new prophets. It has been said that our liberal and socialist predecessors were plagued by vision without program, while our own generation is plagued by program without vision. All around us there is astute grasp of method, technique -- the committee, the ad hoc group, the lobbyist, that hard and soft sell, the make, the projected image -- but, if pressed critically, such expertise is incompetent to explain its implicit ideals. It is highly fashionable to identify oneself by old categories, or by naming a respected political figure, or by explaining "how we would vote" on various issues.

. . .

The search for truly democratic alternatives to the present, and a commitment to social experimentation with them, is a worthy and fulfilling human enterprise, one which moves us and, we hope, others today.

Inspiring words – even if the students needed to spend a little more time in the real world, and a little less time at the Marx/Freud/Frankfurt School discussion groups. But still, inspiration goes a long way. Bush inspired a lot of Republicans after 9/11 and they never left him. For a brief moment, Howard Dean inspired a lot of people – and they’re not leaving him either.

But that’s all fine and dandy, you say, but how the hell should Democrats go about inspiring people. Well, that’s the rub. And this is where I think the blogosphere comes in. I think we’re at a moment in history where the Democratic Party will listen to just about anyone who could help them win. And for now, at least, I’m still a Democrat. So here’s my advice, which I would be more than happy for some enterprising congressional aide to plagiarize. I would also welcome other big ideas from the commenters or other bloggers about the global strategy they would adopt if they were in charge of the strategy for 2006.

First, I think the national party should follow the lead of the emerging “united front” in Florida and make “reform” the buzzword of the 2006 elections, and the party more generally. As MyDD writes (a blog I don’t link to nearly enough), the prominent Florida candidates are running on electoral reform and hope to run as a unified slate of candidates, Sistani-style.

Second, using “Reform” as the anchor, I think the Democrats need to come up with something analogous to the Contract with America that every Democrat can run on. For the life of me, I can’t think of a good name, but it needs a snappy title like “Contract with America.” Adopting some of sort of “Contract for Reform” is a simple way to express both an inspiring alternative and to subtly paint the GOP as the bloated status quo that needs to be reformed by those outside of DC.

Third, the contract itself needs to articulate or emphasize five or six broad areas of “reform.” Within these broad categories, people could develop literally dozens of reform proposals as they or their district saw fit. But that said, the main categories need to be kept simple, and they need to be inspiring. We’re not looking to trick people – we’re trying to reform what honestly needs reforming. The categories of reform I’m thinking of would be: (1) National Security Reform; (2) A Return to Fiscal Responsibility; (3) Health Care Reform; (4) Election Reform/Democracy Promotion-at-Home; (5) Restoring Opportunity and Ownership. For those not in Ayatollah Dobson-friendly districts, you could add “(6) Protecting Personal Freedom” or “Restoring our Environment.”

Obviously, you can play around with the language or move something in or out. But when people ask, “Why are you a Democrat?”, I’d like to respond with these simple major themes. I’d like to say that I vote Democrat because I support strengthening national security, restoring fiscal responsibility, reforming health care, reforming our voting process, increasing upward mobility, restoring our environment, and protecting personal freedom. Al From says a lot of controversial things, but he was dead right when he said that the Democrats need to relearn the language of upward mobility and opportunity, especially among the non-college working classes where they’re getting killed (I heard him on CSPAN). The Dems need to present their policies as “opportunity-enhancing”; i.e., ways people can help themselves make a better life if they work hard and play by the rules.

But again, the unifying thread that ties it all together is “reform.” There’s a lot of justified anxiety out there. There’s also a lot of frustration with Washington, and a desire for accountability. We need to tap into that. The GOP has relentlessly portrayed itself as outsiders, and it’s worked rather well.

Ideally, the party could develop two to three compelling policy proposals within each branch. After all, we’re good at that. We’re just not good at tying them all together. For example, within “national security reform,” Democrats in 2006 could run on creating two new divisions (one trained for anti-terrorism), banning “stop-loss” orders without congressional consent, and enforcing accountability for failure (I'm lookin' at you Rummy). Under "fiscal responsibility," run on a balanced budget amendment (or law), “patriot taxes” for those above $250,000 to finance the wars, and denounce deficits. For health care, offer a true alternative, especially for working class people (wonks will have to help me out here). For election reform, run on banning gerrymandering in Congressional races, strengthening campaign finance, and banning legislative drafting by lobbyists. Democrats could also run on some sort of Congressional reform that emphasizes streamlining intelligence oversight and respecting the ethics committee.

But perhaps most importantly, the Democrats need to make working-class Americans believe that the party can help them achieve upward mobility. For example, why not co-opt the “ownership society”? After all, we should be encouraging tax-free retirement savings accounts. We should just stress that we want “safe” ownership rather than “risky” ownership. That’s why the Social Security debate provides such an excellent opportunity to unveil a reformist alternative. A stronger tax-savings account that doesn’t affect Social Security could be the opening act of the broader 2006 platform that could get some traction.

But I want to stress that these various proposals aren’t merely campaign gimmicks. They would make our country better. They would make us safer, fulfill our responsibilities to our children, increase access to much-needed health care, restore the ideals of democracy, facilitate upward mobility and the American dream, and further our progressive values. You have to see the alternative clearly in your mind before you can make it a reality.

The beauty of identifying some unifying thread such as “reform” is that it allows the natural creativity of progressive wonks and idealists to fit their policies within a coherent narrative. Furthermore, a party that stands for the values listed above challenges the old dichotomies of “left” and “right” - which is essential for any new political coalition that aspires to be a majority in America.

This is all brainstorming, and should be seen as such. If anyone has other ideas, I would love to hear them.

__________

In a recent post about Christmas and the culture wars, I noted that many Americans - and especially many conservative Americans - believe that society is in decline from some past golden age (originalism, Luther's Protestantism, and Wahhabism are all products of, and responses to, this perception). The "decline-from-the-golden-age" perception is not unique to America. In fact, it's as old as human society itself. In Plato's Philebus, Socrates says "the ancients, who were our betters and nearer the gods than we are, handed down the tradition. . ." But the age of the perception doesn't make it any more valid. To me, it suggests that certain fallacies are hard-wired into the human brain, and will therefore be very difficult to overcome. But still, I'm going to try. And today, I'm going to try to expose the dangers of believing in "golden ages" through a new angle - the history of the Blues and its reputed King, Robert Johnson.

If I were rich, I would probably abandon law and become a historian of American roots music (blues, bluegress, country, etc.). I find it all fascinating. The early Delta Blues era (1910s-1940s) is an especially interesting period. Whenever I thought of the early blues, I usually thought of it as a link to the lost audio of the past. It was a link to the music produced by the poverty and suffering of Southern blacks (especially in Mississippi). It was a link to an authentic folk music, developed organically by uneducated ex-slaves with no music training. The blues, with its deep roots, provided a window into an age of music forever lost to modern recording. Robert Johnson exemplified this link to the past. It was all very haunting and very aestethic. It was a golden age, which itself provided traces of an even more pure golden age of folk music. That was my view. Unfortunately, that view is completely and totally wrong.

I'm in the middle of reading Elijah Wald's "Escaping the Delta: Robert Johnson and the Invention of the Blues." What I am learning is that everything I thought I knew about the early blues was wrong.

First, and most importantly, what we think of as "the blues" never really existed in the rural post-slavery South. The very label "blues" was a catchall - a marketing strategy by the music industry to sell records (sort of like "alternative" in the 90s). What we consider the "blues" was pop music, generally developed and performed by professional musicians incorporating and adapting to urban innovations. The stereotypical image of the blind farmer playing on his porch is simply wrong:

That term [the "blues"] arrived in most areas in the teens, and even then was used not for rural back-porch moans, but for a hot new pop style, performed by professionals in fine gowns and fancy suits. The older black music that survives . . . only came to be marketed as blues later on, because calling it that made it seem more up-to-date.

What was also fascinating was that Robert Johnson - the so-called Father of the Blues - was generally unknown (and unheard) when he died. In fact, his style (guitar alone or guitar-piano) was an extremely small subset within the larger and more complex "blues" scene. As Wald explains, there were literally dozens of major contemporary stars that were far more important than Johnson (who really got big during the "revival" in the 60s, and was covered by Clapton and the Stones).

That's not to say Johnson wasn't a genius - he was. It's just that people overestimate his place within the contemporary blues/jazz/vaudeville music scene and misunderstand how he would have thought of himself and his music. Johnson was not a link to rural slave/farmer music. He was a modern professional musician. He was a talented innovator, whose music was incredibly complex, and incorporated elements of modern jazz, country, pop, and western. In this sense, he was sort of like Beck.

Just look at Johnson's picture taken from the 1930s.



It should not be understood as a link to this:



It should be understood as a precursor of this:



For those interested, I would recommend Wald's book for more detail. The point here, though, is that my aesthetic view of this past golden age of blues had no basis in reality. Like many musicians of the 1960s, I looked back to that era and saw what I wanted to see. My own desires for aesthetic images led me to create images that served my own modern needs. The people I idolized, however, were not much different than Britney Spears. I'm certain that many older people listened to this music and lamented the lost virtues of past ages.

I would argue that the same is true for golden ages in other areas. Many Americans look back at the Framers and see brilliant God-fearing men whose faith and virtue were superior to ours. In reality, our Constitution was designed by a bunch of Enlightenment-era Deists (or atheists) who viewed much of religion as primitive myth. Many were also slave owners. Does that mean the Constitution is any less genius? No. But it does mean we need to understand that the Framers were not perfect or god-like. They were flawed men of a flawed time, just as we are. And their supposed understanding (collectively, mind you) of vague words should not form the basis of constitutional law in the 21st century.

The perceptions that we moderns have of the Framers often tells us more about the interests and desires of the perceiver than about historical reality.

Golden ages are simply fantasies - idealized projections of our own desires upon a past whose complexity resists such easy classification. I can assure you that families were just as screwed up 200 years ago as they are today. Teenagers were just as rebellious. Morals were not any better then than they are now.

The more interesting question, to me, is what is it about human nature that causes so many of us to perceive "decline." I suspect that the main culprit is aging. Aging is hard. We will all live to see the world changing in ways that makes us uncomfortable or in ways we fear or don't understand. And even if the outside world doesn't change that much, we change - and we forget aspects of our youth. The same people who denounce teen drinking (or teen anything) as getting worse often conveniently ignore what they were doing at age 17.

Another culprit might be technological and demographic change, which become interpreted as falls from Eden.

I'm not so much arguing against the idea that society can't change for the worse. It can. I'm just arguing against the notion that this or that particular change is one small part of a more general societal decline from a past golden age. Yes, some changes probably are for the worse. But thinking this way usually requires one to ignore all the ways that society has changed for the better (selective perception). It also requires one to ignore the fact that the "society" they remember was just as radically new to their grandparents as the current society is to them.

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For anyone who doubts why so many of us think the Bush administration is among the most dishonest ever, just read this article in today's NYT. There are so many levels of dishonesty that's it hard to provide excerpts. You really have to read the whole thing. The gist of it is that Bush may reach his goal of halving the deficit in five years if you: (1) measure it against projected deficits that never existed rather than real ones; (2) assume record-level growth in tax revenues; (3) exclude the costs of the wars in Afghanistan and Iraq; (4) exclude the money that must be borrowed to fund the transition to forced savings (which will be up to $2 trillion over a decade); (5) exclude the dramatic costs (trillions) that occur right after 2009 (Medicare Rx and permanent tax cuts). But aside from all that, we just might do it.

Of course, the deficit "calculations" fit perfectly within the broader pattern of the Bush administration's dishonest marketing of its policies. As I explained in greater detail here, one can have good faith disagreements about the substance of the president's policies. The problem, though, is that these policies probably would not have majority support if people were fully informed about their costs and redistributional effects. For example, the administration will not threaten its Social Security proposal by telling the truth about its costs and the long-term status of Social Security. Instead, it will talk about looming catastrophes and then lie about the enormous deficits that will have to be run to finance the program. For example, just look at the article cited above:

One idea to prevent private savings accounts from causing an abrupt rise in annual deficits is to treat deposits into private savings accounts as a "transfer" within the government. Another idea is to include all the borrowing for transition costs in an account that would be separate from the government's operating budget.

White House officials say it is reasonable to treat the expected transition costs separately, because they will eventually be repaid as the government's obligation to pay benefits declines sharply after 30 or 40 years.

"These aren't costs, they are savings," said Scott McClellan, Mr. Bush's spokesman, at a recent news conference.

Given this administration's track record in making one-year predictions, forgive me if I'm a little skeptical of their 40-year predictions.

But again, what's frustrating is that they never allow Americans to have an informed debate. On everything from stem cells, to the distributional effects of the tax cuts, to the costs of the Medicare Rx bill, to Iraq's nuclear capabilities, and to Social Security privatization, they don't present the facts. In fact, in true Orwellian fashion, they often present the opposite of the truth. Trillions in "costs" become "savings." Tax cuts that go to the wealthy are presented as going to the poor ("By far, the vast majority of my tax cuts go to the bottom end of the spectrum."). Aluminum tubes that the administration's experts dismissed were presented by Rice as "only really suited for nuclear weapons."

Again, the point here is not so much to attack the policies themselves. There may be good arguments that support them. The point is that the administration never allows people to have an informed debate about them. Regardless of where you fall along the political spectrum, I honestly don't understand how you could deny the rampant systemic dishonesty used by this administration to support almost every major policy initiative (which is a different question from whether you support the underlying policy in the first place).