Legal Fiction

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Some free advice for The Corner - keep John O'Sullivan out in the pasture and away from the blog.

His argument yesterday about why the modern GOP shouldn't be defensive about the old Nixon/Atwater/GOP "southern strategy" was rather amazing. You have to read it about 10 times to distill an argument, but I think I finally figured out what he was trying to say. (O'Sullivan was responding to the Hart op-ed that included a subtle jab at the GOP's new Southern base).

O'Sullivan seems to be saying that the "southern strategy" - the conscious appeal to racism and race polarization - should be celebrated because it introduced competition in the Southern "political market":

By bringing the South into the realm of two-party politics, the "southern strategy" ensured that the debate over civil rights would take place between two parties that had both a major stake in the region and national reputations to consider. . . . Ken Mehlman has internalized the Left's view of the southern strategy and now apologises because the GOP did not leave the South in the control of the party of Jim Crow. Conservatives should stop being defensive on this score.

O'Sullivan could be saying a couple of different things here. On the one hand, he could be saying that Nixon's appeal to racism was motivated by a humanitarian desire to free Southern blacks from the Jim Crow Democrats. If that's what he's saying, he really has gone senile.

However, what I think he's saying is that the increased competition caused by the "southern strategy" ultimately helped civil rights. I'm not sure that argument works either, but let's assume for now that he's right.

If that argument is indeed correct, it's the most idiotic defense of the "southern strategy" I've ever heard. He's essentially saying that because the immoral act unintentionally and unconsciously led to a good result, the immoral act is actually good. For example, let's say you shot someone on a bridge and the body fell to the street and landed on a criminal holding a hostage at gunpoint, thus ending the standoff. It would be rather strange to defend your action on the basis of the unintended consequences of what happened when the body landed.

But that's what O'Sullivan is doing. Remember that he's not saying - hey, the southern strategy was bad, but it led to a good result. He's affirmatively defending the southern strategy on that basis and telling conservatives to stop feeling ashamed about this aspect of the party's history.

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One interesting part of the Post’s article on John Yoo was his rise to prominence within the legal institutional infrastructure. Like many an aspiring bow-tied, floppy hair before him, Yoo made the rounds within the conservative “politico-legal complex” by moving from Federalist Society to conservative circuit judge to conservative Justice to Judiciary Committee to DOJ (where you may remember him from such memos as “The King in Wartime” and “Banning Torture is Unconstitutional”). Whether from jealousy or admiration or both, I’ve always found the conservatives’ institutional infrastructure very interesting. And today, I want to make a couple of observations about how individuals’ rise within this institutional web can be explained in part by Darwinian “signaling.”

But first, biology. I won’t get into all the details of Darwinian selection, but you are all probably familiar with the basics – or at least the results – of Darwinian signaling. The idea is that, to attract a mate and pass on one’s genes, an organism must “signal” its genetic fitness to the other sex through some external characteristic or behavior.

When one gender of a given species has markedly different external characteristics than the other, that’s usually the result of sexual selection pressures. For instance, male peacocks show their fitness through their long tail feathers (females don’t have them). And male peacocks with longer tail feathers than the male peacocks who compete with them for mates possess a relative reproductive advantage.

Over time, the pressures of sexual selection lead to increasingly long tail feathers. And that’s why male peacocks have such long tail feathers. Same deal with male deer antlers or a male lion’s mane or a male lawyer’s Lexus. In all of these examples, the organism’s external features attempt to signal the organism's superior fitness to a potential mate.

So hold that thought and let’s turn to the Federalist Society. What many people don’t know about the Federalist Society is that it's far more than a debate club or philosophical society – it’s also a networking organization similar to the old Ivy League fraternities or even Tweed-like party machines. Yes, it’s true that many people join for the intellectual debates. But many join for career advancement as well.

That’s because having “Federalist Society” on your resume is the legal equivalent of having long tail feathers within the politico-legal complex. It signals to conservatives in power that you are “fit” for the job. If the federal judge or Senate Chief of Staff or magazine editor wants to be sure that the job goes to someone who shares their political views, seeing “Federalist Society” on an applicant’s resume helps assure them that they’re making the right pick.

This signaling works because legal conservatives, to their credit, make concerted efforts to provide opportunity for young people. Conservative legal institutions are, for instance, much better than liberal ones about publishing guest columns, providing internships, providing networking opportunities and so on.

Ok – so that provides part of the story of how individuals rise within legal conservative circles, but not the whole thing. In particular, it doesn’t explain why one person with Federalist Society credentials gets “selected” over another FedSoc member. I think Darwinian signaling explains this as well – that is, it explains in part why certain individuals such as John Yoo or Janice Rogers Brown ascend the ladder and others don’t.

For instance, let’s assume that the Federalist Society leadership is trying to determine who to select for the federal bench. Or let's assume that some DOJ official is trying to figure out who she should hire for a prestigious OLC position. In both instances, the officials have hordes of highly intelligent, well-qualified, Federalist Society members to choose from.

In these circumstances, there is a competitive (evolutionary) pressure on the applicant to stand out from the bow-tied masses in some way. Accordingly, there are strong (and rational) incentives to make controversial or even extreme arguments in order to get your tail feathers noticed.

Take Janice Rogers Brown. Her extreme speeches about Social Security and our socialist revolution are probably why she was selected by the FedSoc powers-that-be for the bench. Her speeches were controversial enough to catch someone’s ear and get her noticed – and the ideological content signaled that she could be trusted not to go liberal. In this sense, her anti-liberal invective was a mating call. Same deal with Yoo. As the Post suggests, Yoo’s rise to power can be explained in part by his willingness to make controversial arguments and get noticed. Making these extreme arguments are often how people get selected for promotions within conservative legal circles.

Of course, not just any extreme argument will work – you certainly can’t be controversial by challenging Republicans and expect to ascend the ranks. No, you need to make an extreme conservative argument – or more precisely, an extreme pro-Republican or anti-liberal argument.

These signaling pressures – and their manifestations – are more clear in the legal sphere, but I think you can see them too in the political blogosphere. People like Ann Coulter and Michelle Malkin and John Hinderaker are themselves the products of the same “evolutionary” pressures to distinguish themselves from the pack. They need to be extreme in order to get noticed and pass their words on to the next generation so to speak.

All of this is intricately related to Cass Sunstein’s “group polarization” theories (or to be more precise, whoever Sunstein, um, borrowed them from). Maybe I’ll try to elaborate on this latter point in the future.

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Over at VC, Eugene Volokh and Orin Kerr are having an interesting back-and-forth on whether the government’s domestic (warrantless) monitoring for radiation violates the Fourth Amendment. (Given that this monitoring was apparently limited to Muslim sites, it also raises an equal protection question, but I’ll put that aside for now). I’m not going to add much to the merits of their discussion. Instead, I’m going to use it to critique my old arch-nemesis, originalism.

For those untrained in our black arts, let me briefly explain the Fourth Amendment issue here. As most of you know, the Constitution doesn’t forbid warrantless searches per se. It forbids “unreasonable” searches. Much to the chagrin of law students and bar exam takers everywhere, the case law defining “unreasonable” is a complex morass of rules, balancing tests, and totality-of-the-circumstances analyses. Abandon hope ye who seek coherence here.

Despite these complexities, there are (as Volokh points out) a couple of precedents that would seem to make this sort of monitoring illegal (or “unreasonable”). First, an older case called Mincey is understood to hold that the Fourth Amendment does not make exceptions for serious crimes. Second, a more recent case called Kyllo held that police could not (without a warrant) aim heat sensors at houses to detect heat lamps used to grow marijuana.

In light of these two precedents, it seems that the NSA’s monitoring would violate the Fourth Amendment. On the one hand, it’s similar to using high-tech heat sensors to find out what’s going on within the walls of the house. Second, the government apparently can’t justify this otherwise unreasonable search by citing national security.

Volokh’s argument is essentially that, even if such searches are unconstitutional, they shouldn’t be. His not unreasonable argument is that the doctrine should recognize that searching for radiation (and thus dirty bombs and nuclear weapons) is significantly different from more routine criminal investigations. Kerr adds that there may already be such an exception – the “special needs” exception, which would possibly make the search legal. I won’t pretend to know the ins-and-outs of this exception, but it seems to be in tension with Mincey. There are no exceptions for important cases, unless of course the case is really important.

I agree with Volokh’s argument – searching for nuclear bombs is “different” and this “difference” should alter the “reasonableness” calculus. But the broader point I want to make relates to Volokh’s methodology. Note that it’s pragmatic and empirical. He’s saying, “This conclusion would cause this result and this result is bad for a number of pragmatic reasons including the potential threat to national security.”

He’s essentially inviting judges to be policymakers. And frankly, I think that’s a good thing. So long as judges are deciding among alternative holdings that are textually justified, policy analysis is essential to good judging.

Compare, however, Volokh’s methodology to the originalist one. Instead of getting into the details of the real-life dangers posed by nuclear threats, the originalist would ask whether the term “unreasonable” would have been understood at the time of the framing to ban warrantless searches for radiation. You can already begin to see the inherent absurdity of this analysis. This methodology would force judges and law clerks to mine a surviving subset of letters and pamphlets from the late 1700s to determine if the radiation generated from a dirty bomb or nuclear weapon detected by advanced 21st century technology was understood to have been protected by the term “unreasonable” in 1789. And as if all of that weren’t enough, note that the very term “unreasonable” seems to mandate a fact-based inquiry that necessarily varies across time and circumstance. In other words, an originalist methodology may well violate the original understanding of the Fourth Amendment. It's all absurd.

This is yet another reason why originalism just can’t be right. Consequences cannot be irrelevant to constitutional interpretation. If you take originalism seriously enough, that’s exactly what you must believe – that consequences are irrelevant. That’s not to say history or original understanding should be wholly irrelevant. History has its place in the toolbox along with precedent, text, policy, and other considerations. But pure originalism – if you really take it to its logical conclusion – throws all that out as irrelevant.

Given the dirty bomb example above, it’s clear that originalists don’t care about terrorism and aid and abet our enemies (sorry, it’s just so rare I get to be on the nuclear demagogues’ side).

Seriously though, one objection might be – hey, you can’t throw out the Constitution because of the fear of a nuclear threat. That’s true – and I’m not arguing that we can. What I’m saying is that the judicial interpretation of the term “unreasonable” in the specific context of Fourth Amendment inquiries should vary in light of new circumstances. Like Volokh, I think using technology to detect radiation activity without a warrant is not unreasonable in the post-9/11 world. Originalists are living in the pre-9/11 world! God, that feels good.

The basic question is simply which is a better methodology in the Fourth Amendment context – Volokh’s pragmatic methodology or the originalist methodology. I don’t think it’s even a close call.

[UPDATE: Just a quick clarification - I'm not arguing that there should be a "nuclear exception" to the Fourth Amendment. I'm also not saying that the government can search your home or email by citing a nuclear threat. Remember that we're talking about the specific question of whether monitoring radiation released into the (public) air surrounding a house is "unreasonable" even though it reveals what's going on inside those walls.]

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Work interrupted my Assassin’s Gate reading, but the holidays gave me some time to finish it. It’s a great book, though it had a strange effect on me. It forced me to re-think a couple of opinions that I thought were pretty much settled in my mind. First, it made me somewhat more sympathetic to the idea of the war. To be sure, it didn’t make me pro-war, but it did make me somewhat less anti-war than I was. Second, it made me dislike Rumsfeld and the Pentagon leadership even more than I did – something that I would have thought equally impossible.

Let’s start with the first point. One thing that comes through all too clearly in Packer’s book is the cruelty and, yes, evilness of Saddam’s regime. I always knew that Saddam was not exactly a good dude, but I guess I never understood on a visceral level just how terrible his regime was. It literally makes you nauseous to read the accounts of the Kafka-esque horrors many political opponents (or perceived opponents) endured – e.g., being imprisoned for years in a crowded cell with barely enough room to stand up; having your ear chopped off; being murdered at Uday's whim; etc. Packer’s account of Uday alone is enough to make you rethink allowing this regime to remain in power.

Just so everyone is clear, Saddam was the real deal. It was an Orwellian totalitarian state in the flesh. I never fully comprehended that. I mean, I knew that Saddam had done some very bad – even criminal – things. What I didn’t understand is the extent to which the society as a whole had been beaten down and demoralized by decades of systematic totalitarianism complete with secret police, hidden prisons, and centralized surveillance. It is an outrage and a tragedy under anyone’s definition of morality that millions of people were forced to live under such a regime. And I shudder to imagine what we’ll see when the world finally flips over the rock that is North Korea and reveals the horrors that have been inflicted by the regime currently in power.

For me, Saddam’s cruelty is the only even remotely compelling justification for the war. I never bought the WMD hype, largely because I was skeptical of an administration that went from zero-to-mushroom-clouds in a mere two months right before mid-term elections. I’ve also never believed in the pixie dust theory – i.e., that democracy, once established in Iraq, would spread like pixie dust across the Middle East.

But the evils of Saddam are real – and no human should be forced to live under such a regime. And if the choice were simply an abstract question of removing Saddam or leaving him in power, I would choose to remove him. But, as Packer’s book makes painfully clear, this was not an abstract question. Removing Saddam – especially in the way in which we did – had collateral (and predictable) consequences. It was like pulling out the foundation from a pyramid of cards. Despite Bush’s simplistic dichotomies, the war was never about merely removing or not removing Saddam. Removing him would inevitably have a number of related consequences for the people in Iraq, for terrorism, for the American military, for our international alliances, for our international standing, and on and on. No matter how horrible he was, removing Saddam had to be weighed against these other considerations.

And that leads to my second point – Rumsfeld and his bumbling band of idiots in the Pentagon. Whatever your rationale for supporting the war may have been, it should have been clear that invading Iraq was an immensely ambitious task and one that would have enormous consequences. In short, there was a lot at stake. And any idiot could have seen that there was a lot of stake - including a lot of human lives.

Given the stakes, the negligence and willful ignorance of the Pentagon leadership in planning and executing the war and the occupation (especially the immediate aftermath) is mind-boggling. Absolutely mind-boggling. Criticizing Rumsfeld (and the administration more generally) for a flawed post-war has almost become a cliche. That’s a shame, I think, because it’s vital that our country understands specifically just how unspeakably incompetent this bunch really was.

Packer helps you understand the depths of what can only be classified as criminal negligence and callous disregard for human life. In fact, if you were actively trying to lose the war and get people killed, your policy wouldn’t differ much from what Rumsfeld and Feith actually did. The fact that Rumsfeld still has a job is . . . well, I actually can’t find the words to express just how insane it is. But it’s fucking insane.

And I know that what I'm about to say is a common rhetorical tactic and everything, but really, the supporters of the war should be the most furious after reading this book. If you really took these ideas seriously, and if you really believed you had a once-in-a-century existential moment to change the world for the better by sheer will, it should literally crush your soul to see how recklessly the Pentagon ran the war and its aftermath.

After reading Packer, I can only guess that ignorance or party loyalty is the reason that Rumsfeld hasn't been chased out of town with pitchforks - especially by the war supporters. He really should be impeached. If the Weekly Standard wants to join me on that, I'll even purchase a subscription.

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Ho Ho Ho everyone.

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I must confess - I'm having some trouble understanding why so many smart people seem to subscribe to the king-in-wartime theory of executive power. It just seems wrong under so many different theories of interpretation - textualist, originalist, pragmatist, etc. But I'll try.

To me, there are two distinct parts to the question of executive war power. For lack of better terms, I'll use "nature" and "scope." The error that I think the Yoo camp makes is to conflate questions about the nature of executive war power with questions about its scope. As long as we're talking about the nature of the executive war power, I think Yoo is generally right. When we talk about scope, I think he's wrong - very wrong - Rumsfeld-esquely wrong, even.

Let me back up and explain what I mean. I think the best way to think about this is to imagine a circular fence surrounding a plot of land in a field. Let's also imagine that once you are inside this fence, no one outside the fence can direct you to do anything. It's sort of like "home base" for you "tag" veterans out there.

The fence represents the boundary of the executive war power. Within these boundaries, the executive has a lot of leeway to act as he sees fit. That's what I mean by the "nature" of the war power - I'm talking about what the executive can do inside the fence. I'm also talking about what Congress can't do - which is reach inside and force the executive or military to act affirmatively. For instance, it seems clear that Congress can't compete with the President in terms of directing troop movements or commandeering the chain of command. On these matters, I (like Yoo) think the Constitution gives the executive plenary power.

But while Congress can't seize the reins of the war power (i.e., can't control the President within the fence), it can construct the fence so to speak. To stretch the analogy to its breaking point, Congress can't saddle the wild horse, but it can keep it inside the fence (e.g., no torture; no spying). It can't control it, but it can contain it.

And so, the real issue isn't so much the nature of the war power, but its scope. It's not so much about what happens inside the fence, but where the fence begins and ends. What are the appropriate boundaries? Most critically, who gets to decide where to put those boundaries?

This is a critical point. I think what happens in a lot of these debates is a sort of oopsies switch-a-roo-zees. Arguments that are relevant to the nature of the war power are used to justify the scope of the war power. But these are two conceptually distinct questions.

For instance, arguments about the need to prohibit Congress from reaching in and interfering with the chain-of-command are relevant to the nature of the war power. The executive needs strong authority in this area - no one disputes that. But those arguments don't necessarily justify shifting or even tearing down the fence altogether.

The main problem with the Yoo theory is that it vests the executive with the sole discretion to determine how far the plenary war power will reach. If Yoo is correct, there is simply no fence that Congress can construct to contain and check this awesome power. The McCain bill can thus be ignored even if it passes as law. Domestic spying is also ok because the executive has - in his sole discretion - deemed it to be within the scope of his war power.

That said, it may not be quite right to say that the Yoo theory completely destroys the fence. After all, I don't think anyone has floated the argument that the war power allows the executive to ignore fences imposed by the Constitution itself. From what I understand, it's just that Congress can't act in this realm to limit the scope of the war power by statute. [That's what makes the "enemy combatant" concept so potentially radical though. If the executive can declare any citizen an enemy combatant without rights, then the war power literally has no limits, constitutional or otherwise.]

At bottom, then, this is an institutional battle. It's a battle about the proper allocation of authority between the legislative and executive branches. The precise question is whether Congress can build a fence around the war power even though everyone concedes that it can't affirmatively direct and control it.

To repeat what I said at the beginning, I can't think of a single interpretative theory that gets you there. Textualism doesn't work well given the division of the war powers between the branches. Pragmatism doesn't work well - after all, it's hard to defend a policy that allows the executive to ignore law in light of 20th century history. Yoo makes an originalist argument, but I think even that is shaky and relies on some stretched, cherry-picking (see, e.g., this post) that I'll have to address another day.

Last point - I suppose one could object that my fence analogy doesn't really work and that "nature" and "scope" are not actually distinct concepts. For instance, even if the law were phrased as a negative limitation rather than an affirmative command, you might argue that Congress couldn't pass a law forbidding troops from marching to, say, Fallujah. That's probably correct, but it might not destroy the distinction I'm trying to make. For instance, you could argue that this sort of law is actually reaching inside the fence and directing the war power in a way that simply banning domestic spying or torture is not.

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Boris Pasternak, Dr. Zhivago:

That's metaphysics, my dear fellow. It's forbidden me by my doctor, my stomach.

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Wow - the NSA controversy seems to have exploded while I've been away. I'm still getting my head around the legal dimensions of everything - and this post by Orin Kerr was most helpful in that respect. In the meantime, I want to address something that's been irritating me to no end lately - the "national security" defense.

It seems that national security is being cited for anything and everything these days. It has become the universal justification - often for actions that everyone (in the pre-9/11 world, I suppose) used to acknowledge were objectively bad (like, say, torture and domestic spying).

The logical problem with the universal national security justification is that it's not so much an argument as it is a conclusion that follows an argument. In other words, it's a label. And a label is quite different from an argument. Some legal analogies will help illustrate what I mean.

Take the concept of negligence. A lawyer can't win simply by asserting "the defendant was negligent." That's not an argument - that's a conclusion that follows an argument. What the lawyer must do is present a factual narrative about the defendant's conduct and then explain why that conduct should be deemed negligent. Negligence is simply a label that gets applied to concrete conduct. Invoking the label in the abstract adds nothing to the debate.

Another example is the abstract concept of guilt. Again, prosecutors can't jail someone simply by saying "he's guilty." That's not an argument - it's a conclusion that assumes the existence of a prior argument. In the criminal context, prosecutors have to present a number of factual and legal arguments - "His wife was cheating on him"; "Her blood was found on his hands"; "Murder is prohibited by statute"; etc. After all those arguments are presented, the prosecutor can then say, "therefore, he's guilty."

It's the "therefore" that administration apologists seem to be missing. To say that torture or illegal domestic spying is "necessary for national security" is the same as saying "Joe is guilty." The statement may ultimately prove correct, but not without out a heck of a lot more.

So if you’re going to cite national security, you have to raise an argument that justifies your conclusion. If the spying program or torture really is in the interest of national security, you need to show me precisely how (or at least that) it's worked to achieve good results. Assuming it has, you also need to demonstrate how and why the costs (constitutional, moral or otherwise) of these practices have been justified by tangible life-saving gains - as opposed to some ridiculous 24 hypothetical. While you're at it, show me how I can be sure the program has clear, enforceable limits – and demonstrate why I need not worry that this program will evolve into something more hideous in the hands of untrained, scared reservists in Iraqi prisons. Hell, just show me anything. Make a real argument.

What you can't do is just jump to the conclusion (it's in the national security) without making an argument that justifies that conclusion.

And that leads to a larger point about political abstractions more generally (e.g., freedom, liberty, the revolution, Allah). What’s frightening about political abstractions is how easily they can become unmoored from the factual context that originally gave them meaning. This is getting into some deeper philosophical territory - and one that pits Plato's idealism against Aristotle's materialism (for the record, I'm with Aristotle). To be grossly general, Plato argued that there was such a thing as the idea of, say, an apple. Aristotle disagreed - he thought "apple" was simply a useful description of concrete, material objects that share certain characteristics (red; shaped similarly; taste similarly; etc.). But for Aristotle, the idea of the apple had no meaning in the abstract. The term only made sense in the context of the concrete objects it described.

I think the same thing is true for political abstractions like liberty or freedom – they only make sense when they’re grounded in some material context. For instance, I can look at slavery and the effect of the Civil War and understand what "freedom" means in that context. Similarly, I can see genocide in Rwanda and understand what “evil” means in that context.

But what happens with abstractions is that people inevitably pull them out of the contexts in which they have meaning and start using them in ways that have no inherent connection to the material world they claim to describe. When this happens, abstractions can mean anything and nothing all at once.

And here's where things get scary. The most effective political abstractions are ones that were initially grounded in some emotionally-charged, unifying cultural event. For instance, actions in the name of "liberty" make sense in the context of overthrowing an oppressive French monarch or a czar, just as actions in the name of "national security" or against “terrorism” make sense in the context of 9/11. All of these were unifying cultural events that triggered a lot of patriotic emotion and base rage.

The problem comes when abstractions such as "liberty" and "national security" and “terrorism” are plucked out of their original factual context and used for new, unrelated purposes. For example, the oppressive regimes that emerged following the French and Russian Revolutions continued to quote the same abstractions even after those abstractions had long since lost any material connection to reality. Describing reality was no longer the point though. Instead, the abstractions were invoked simply to generate the emotion (or hatred) necessary to maintain support for the policy or the regime.

This is an important point, so let me make sure I'm clear. What’s dangerous about these kinds of political abstractions is that their inherent meaninglessness coupled with their ability to generate raw emotion allows them to be used to justify anything. In post-revolutionary France, "liberty" was thus the perfect tool for the oppressive regime. Because the term both triggered the emotions of the Revolution and simultaneously lacked inherent meaning, it could be – and was – used to justify anything.

And that brings me back to my frustration with using "national security" to justify the questionable policies we’ve been hearing about. Not only is it logically meaningless in the abstract, it simultaneously triggers the emotions and rage surrounding 9/11. At best, it's a cheap rhetorical point to persuade people that certain ill-advised (and liklely unconstitutional) policies aren't that bad. At worst, it's a rhetorical strategy that has aided and abetted some of the most horrendous actions of the 20th century. Either way, invoking it without a proper basis is deeply irresponsible.

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I'll be on the road heading home (and away from work) for the holidays tomorrow. Posting may be a bit erratic for the next couple of weeks, but I fully expect to keep a'bloggin' while I'm home.

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Just a friendly, altruistic reminder that Koufax nominations are now up and running. As you were.

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I meant to write this a few days ago (Rule #1 of Blogging – when you think it, write it or someone else will), but I completely agree with Yglesias and Iranian blogger Hoder (via the Guardian) who think there is a method to Ahmadinejad’s recent madness. His anti-Israel comments, while disgusting, are not crazy ramblings, but a very deliberate and potentially effective political strategy. Hoder in particular provides some thoughtful comments. He thinks the systematic Israel-bashing should be understood to serve three political goals: (1) diversion from bad policies; (2) gaining Arab support for the nuclear program; and (3) undermining moderates.

I think that’s right, and you should read the post. But what struck me about Ahmadinejad’s Jew-baiting is how similar it is – in structure – to American “culture wars.” In fact, I would argue that Ahmadinejad’s recent comments differ only in degree from Richard Nixon’s “southern strategy” and the more recent gay-baiting campaign strategies.

The culture wars all work the same way. First, you have to find an issue that generates not just a purely emotional response, but a specific sort of emotional response – one that blends anger and fear, often stemming from a perception of persecution. Finding a hated minority generally does the trick (Jews, blacks, gays, Kurds, Muslims, Mexicans, or even Christians depending on where you are).

But you can’t pick any ol’ minority – it doesn’t work that way. For the culture war to work, that minority must be associated with some broader sense of persecution – i.e., you have to make the majority feel that the minority has wronged you or is the source of your suffering. For instance, Jews work because they oppressed our people in Palestine (or caused us to lose World War I). The blacks cost us the Civil War. Gays are destroying the family. Muslims are overrunning Paris. Mexicans are overrunning the Southwest. And so on.

But minorities aren’t the only way to create a culture war. The most familiar, non-minority culture wars follow this exact same pattern. The Ten Commandments, Christmas, school prayer – all of these (1) generate anger (2) stemming from a sense of persecution. Just watch the O’Reilly Factor and you’ll see that the controversies are always presented in terms of Christianity being under attack.

The other fundamental characteristic of the culture wars is that they’re almost always about something other than the emotional debate at issue. Technically speaking, if the emotion is related to an actual policy being debated, it’s not really a culture war in my book. Remember Newton’s first law of the culture war – emotion is inversely related to policy. The higher the emotion, the less likely it is that the emotion is linked to the actual policy at stake.

That’s a long way of saying that culture wars are usually politically convenient distractions. Take Iran. Ahmadinejad’s repulsive comments have nothing to do with any serious policy regarding Israel. But, generating base hatred for Israel serves other purposes. First, as Hoder pointed out, it keeps the attention away from Ahmadinejad’s failure to deliver on his promises to the poor and focuses it on a hated enemy (similar to the Two Minutes Hate in Orwell's 1984). Second, it helps generate support in the Arab world for Iran’s nuclear program. Third, and this is most important, it undermines domestic moderates and their agenda.

The third point is really the key. After all, to purposely piss off the Western world (and to do it again and again) seems pretty silly given Iran’s desire to, say, join the WTO. But Ahmadinejad – and what he represents – probably wants nothing to do with that. He rejects the West entirely and probably doesn’t like where he sees Iran’s youth heading. In fact, I suspect he wants a confrontation. I bet he would like nothing more than for the U.S. or Israel to bomb something in Iran. Thank you Mr. Ledeen - you understand the issues perfectly. - Yours, Mahmmie

Moderates, of course, are getting freaked out by all this, but Ahmadinejad hates them too. And moderates are a potential political threat to him. Thus, Jew-baiting kills two birds with one stone – it alienates the West (good) and it puts Iranian moderates in roughly the same position that Democrats are on guns, God, and gays (also good). I, um, opposed the action but supported the authority to take the action but the action was executed poorly and so I oppose it though I would vote the same way . . . If moderates try (like Democrats) to focus on critiquing his policies, they get called Jew-lovers. It’s sort of like Sean Connery’s famous line from The Untouchables about bringing a knife to a gunfight. Raw emotion can’t be battled with logic – though I suppose it’s our tragic, futile duty to try.

Anyway, that’s what so maddening about the culture wars. They are distractions from serious, consequential policy disputes. And unlike the Ten Commandments, this is a really important one. The question of how much Iran should integrate with the world is a critical debate with wide-reaching global consequences. Ahmadinejad is trying to pre-empt it by picking a fight and demagoguing Jews. It is precisely what Southern whites did in America for so long. Race was used to pre-empt everything else and keep poor whites distracted.

On an aside, the really scary thing is that we may be at a moment of truth with respect to Iran. Being the clear winner of the Iraq War, Iran will be the force to be reckoned with in the decades to come. But from I can gather, Iran’s youth are still pro-Western, anti-clerical, and anxious for reform – even after Iraq. But, if we listen to people like Michael Ledeen and strike Iran (or allow Israel to do so), the entire country (and its youth) will fall in line behind the clerics – which is precisely Ahmadinejad’s plan.

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Ezra Klein:

This whole Dan Froomkin/John Harris dust-up is pretty interesting stuff. Deep down, what it's about isn't so much Froomkin's column as the obscene ways the press has taught itself to patrol for that thing that people who don't like skeptical reporting call bias.

The Knights Who Say “Bias”

King John Harris and Brave Sir Deborah Howell enter the dark RNC forest. Spooky music plays in the background and grows louder. Harris looks around and sees shadowy figures shifting back and forth in the brush.

HOWELL: I am afraid, King Harris.

HARRIS: Be not afraid, brave Sir Howell, for you are with one full of courage. A brave warrior who does not bend in the face of pressure . . .

Suddenly, the two come upon a row of giant knights standing in the forest.

HEAD KNIGHT: Bias! Bias! Bias! Bias!

HARRIS: (writhing in pain and moaning) No! Stop! Please!

HEAD KNIGHT: Bias! Bias! Bias! Bias!

HARRIS: (still writhing) Who are you?

HEAD KNIGHT: We are the Knights Who Say... Bias!

HARRIS: (groaning in pain) No! Not the Knights Who Say Bias!

HEAD KNIGHT: The same!

HOWELL: (trembling) (to Harris) Who are they?

HEAD KNIGHT: We are the keepers of the sacred words: Bias (they both cringe), Balance, and Biiiiiii–Partisan!

RANDOM KNIGHT: Bias! (Harris cries out in pain).

HARRIS: (to Howell) They are most feared. Those who hear them seldom live to tell the tale!

KNIGHTS: Bias! Bias!

HOWELL & HARRIS: (cringing) No! Please stop!

The Head Knight holds up his hand and silences them.

HEAD KNIGHT: The Knights Who Say Bias demand a sacrifice!

HARRIS: Knights of Bias, we are but simple travelers who seek to travel beyond these woods and find balance and harmonic symmetry . . .

HEAD KNIGHT: Bias! Bias! Bias! Bias!

HARRIS & HOWELL: (crying out in pain) Oh, ow!

HEAD KNIGHT: We shall say “bias” again to you if you do not appease us.

HARRIS: Well, what is it you want?

HEAD KNIGHT: We want ... a conservative blogger! (dramatic chord) On the White House Briefing website! (dramatic chord)

HARRIS: A what?

HEAD KNIGHT: Bias! Bias!

HARRIS & HOWELL: (moaning) Oh, ow!

HARRIS: Please, please! No more! We shall find a conservative blogger to put on the White House Briefing page. We shall do everything you ask. Please! No more!

HEAD KNIGHT: You must return here with a conservative blogger to balance Dan Froomkin or else you will never pass through this wood . . . alive!

HARRIS: O Knights of Bias, you are just and fair, and we will return with a conservative blogger.

HEAD KNIGHT: One that recognizes the bias of the press.

HARRIS: Of course.

HEAD KNIGHT: But is simultaneously unbiased. An objective arbiter of truth - someone like Glenn Reynolds.

HARRIS: Yes. Of course.

HEAD KNIGHT: Now... go!

__________

Putting aside the rest of his speech, some friends have pointed out to me that Bush spoke of Lt. Ryan McGlothlin, who was recently killed in Iraq.

One of these men was a Marine lieutenant named Ryan McGlothlin, from Lebanon, Virginia. Ryan was a bright young man who had everything going for him and he always wanted to serve our nation. He was a valedictorian of his high school class. He graduated from William & Mary with near-perfect grade averages, and he was on a full scholarship at Stanford, where he was working toward a doctorate in chemistry.

I went to law school and was good friends with Ryan's brother, who is one of the best people you'll meet. And so I wanted to give the family my condolences.

And I do hope that good faith supporters of the war understand the full scope of its costs - and don't lose sight of what sending young people to war inevitably leads to.

__________

I thought this was an amusing line in today's Post article on the GOP's immigration schism:

The immigration debate comes as lawmakers are facing rising public criticism for their cozy relationships with lobbyists. . . . The atmosphere has given a leg up in the immigration fight to the faction of House Republicans that has long been wary of its party's ties to business lobbyists.

And what a loud and rambunctious faction it's been! In fact, I think it consists of Bigfoot, the Loch Ness monster, Snuffy Snuffleupagus, the Great Pumpkin, and some disillusioned Cato intern crying in the bathroom of the Cannon Building.

__________

I'm tied up at work, but I thought it might be useful for people to offer some holiday book recommendations. I haven't had time to read much lately, but I did re-read Confederacy of Dunces recently and it's even better the second time. All the King's Men is also on my to-read list right after The Assassin's Gate. I'm also thinking of getting Rise of the Vulcans, so I'd welcome any thoughts on that book.

But please share your book recommendations below.

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Josh Marshall is annoyed at the Post's ombudsman's hand-wringing about the lack of balance on the "White House Briefing" page. Specifically, the Post is considering "balancing Froomkin with a conservative blogger."

Silly Josh - he simply doesn't understand the Great Scales of Objectivity and the Post's role in keeping our heads from exploding.

__________

For a perfect example of the “internal” vs. “external” debate I was talking about yesterday, just check out this NYT op-ed by Kanan Makiya (one of the main characters in The Assassin’s Gate) and then these comments by Yglesias. Makiya’s basic point is that the Constitution – as currently written – is a recipe for disintegration, chaos, and eventually civil war. Yglesias responds:

Yesterday's op-ed from Kenan Makiya, a liberal Iraqi author and intellectual who was an influential pro-war voice back in the day and has since become pretty disillusioned with the outcome, is also interesting, though I tend to think he puts too much weight on the specific provisions of the Iraqi constitution rather than the social and institutional conditions that produced the document.

If Iraq does evolve into a decentralized Balkan/Lebanon/Colombia-like militia state, the million dollar question will be the extent to which the Constitution caused this outcome. An internalist (like Makiya apparently) would argue that the structure of the government created by the Constitution played a big role. His op-ed points to specific provisions that are of particular concern – e.g., weak executive, regional sovereignty, regional control of oil revenue.

An externalist (like Yglesias perhaps) would argue that Makiya is mixing up cause and effect. If instability comes, it will have resulted from the underlying social conditions (economics, demographics, etc.), and not from the Constitution. In fact, under this view, the Constitution should be seen merely as a product – not a cause – of these underlying social, political, and economic realities.

In the spirit of the great, wise, esteemed David Broder and the Washington Post editorial board, I sort of fall in the middle on these questions. Better yet, I tend to follow Madison. I’ve always thought Madison was an internalist on issues of institutional structure (i.e., law does matter) and an externalist on civil liberty protections (law doesn’t matter).

Starting with the latter, Madison didn’t initially support the Bill of Rights. It wasn’t so much that he thought it was a terrible idea, he just thought there wasn’t much point in it. The way to protect religion is not to pass a law (a “parchment barrier” he called it), but to assemble a large, pluralistic republic with a rich diversity of religion.

And just as Madison would predict, the areas of America where religion is the most intrusive (e.g., Kansas) happen to be the areas with the least religious diversity. It’s the same reason cities have always been more culturally tolerant than rural areas. Diversity and pluralism are the true source of our civil liberties, or so the argument goes.

In that sense, then, Madison didn’t have much use for law. On bigger issues, though, he clearly did. For instance, on matters of institutional design (bicameral legislature; checks and balances; etc.), law clearly mattered. Madison wanted to bring the same “big republic” pluralism that protected our civil liberties to the legislative sphere. In a sense, he was creating an institutional urban area – a constitutional Greenwich Village. And as a result of the swirling chaos and diversity better known as the House and the Senate, American liberty was protected and the American experiment survived (with a bump in the road here and there).

Applying all this to the new Iraqi Constitution, I think the biggest worry should be those provisions that relate specifically to institutional or structural design. For instance, I think Makiya is quite correct to be concerned with the lack of true executive power and with the powers divested to regional authorities. In this sense, the Constitution is not creating an Iraqi Greenwich Village, but is ensuring that one will never emerge.

You might respond that this extreme federalism (which is a misnomer because “federalism” implies the existence of a central authority, but I digress) was unavoidable in light of underlying political and social realities. And you might be right. But I think that the current constitutional structure makes things worse. For instance, if the Articles of Confederation won out in 1787-89, then the American states would have drifted off and formed separate nations much like Europe. And like the European states, they probably would have fought a lot of wars with each other rather than just one.

To me, what Iraq really needs is not so much a James Madison, but an Alexander Hamilton. In fact, you can make a strong argument that Hamilton’s efforts to nationalize the economy and to win the allegiance of capital by assuming state debts were far more instrumental to America’s longevity than Madison’s pretty Constitution. Under this Marxist perspective, what Iraq needs is some way to nationalize its economy and make the powers-that-be in each region dependant on the success of the federal government.

But then again, it’s hard to get that without a better constitutional structure. You need a Madison to get a Hamilton. Madison’s institutional creation of a stronger executive branch laid the groundwork for Hamilton’s Treasury Department. Without any sort of real executive authority, it’s hard to see how something similar could arise in Iraq.

__________

I think the Iraqis are starting to get the hang of this democracy thing. From the NYT:

The Iraqi Interior Ministry insisted Monday that none of the 625 prisoners discovered last week in an Iraqi detention center had been tortured or abused, despite assertions by American officials to the contrary. . . . The exact nature of the maltreatment of the 13 hospitalized prisoners remained unclear. In an interview, Sami al-Anbagi, director general of the Interior Ministry, said there had been "no mistreatment or torture."

Somewhere in the distance, Scotty McClellan smiled. "They grow up so fast, these Iraqis."

__________

I’m just over a hundred pages in to The Assassin’s Gate and it’s great. I can’t recommend it enough. In fact, I may blog about it all week, so be prepared. For today, I want to talk about what The Assassin’s Gate (and the Iraq War more generally) contributes to the age-old debate of materialism vs. idealism.

Legal history provides a particularly illustrating window into this debate, so I’ll start there. Despite its diverse range of subjects, legal history often boils down to a single fundamental question – what is the source of legal change? Legal historians often break into two camps on this question – one camp favors “external” explanations, the other favors “internal” ones. By “external,” I mean explanations that rely on forces external to law or the idea of law.

To see an example of how this works, let’s look at Brown v. Board. One fundamental question for legal historians would be to identify the source of the legal change that culminated in Brown. If you were in the “internal” camp, you might look at the evolution of the legal doctrine and the cases that immediately preceded Brown. You might also read about Thurgood Marshall’s systematic litigation effort to win the favorable precedents that laid the legal foundation of Brown. Either way, you would be looking for an explanation that was “internal” to the law and legal doctrine.

An “external” position would reject that approach. Instead of looking “within” law, it would look outside of it. For instance, this camp might argue that the key to understanding Brown is understanding the role of the Great Migration and the two world wars – and how these developments gave rise to a more economically powerful black middle class, which eventually translated into political power. Under this theory, Brown was simply a product and a reflection of these larger external forces – a raft on the ocean, if you will. Brown itself, they would argue, had no historical agency (i.e., it was not an agent of change). In fact, an extreme “externalist” would argue that “law” plays no role in historical change at all because it is simply a reflection of larger forces or power structures, etc. In this sense, it’s just an illusion or an abstraction.

It’s not a perfect analogy, but this helps explain the materialism vs. idealism debate that has engaged historians and philosophers since at least the age of Plato and Aristotle (and more recently, Marx and Hegel). The basic question here is whether ideas matter – i.e., whether, and to what extent, ideas have historical agency. To return to the civil rights movement, a materialist might attribute it to these larger material forces we’ve discussed – the Great Migration, rising black prosperity, etc. An idealist, however, might argue that the “idea” of equality played an important role too. For instance, the idealist might argue that democratic ideology of World War II – though an immaterial “idea” – caused real change.

The basic question then is whether abstract ideas can exert force on the material world. If you’re confused by the difference between neoconservatives and old-fashioned Burke conservatives, look no further. This is it. The neocons are idealists. Like Hegel but unlike Burke, they believe in the power of ideas – and they take them very seriously. In this sense, Bush’s Second Inaugural may go down as one of the most philosophically interesting in American history given its wholesale embrace of Hegelian idealism and its application to foreign policy (in theory anyway).

Turning to Iraq, historians will probably debate whether and to what extent idealism contributed to the Iraq War for centuries to come. For a long time, I generally fell in the materialist camp (as I did on almost everything else). While not wholly discounting ideas, I thought people usually overestimated the role that ideas played - both in Iraq and elsewhere. Now I’m not so sure. And that’s where Packer comes in.

The Assassin’s Gate makes a very strong case that ideas do matter and that they possess historical agency. The fact that the Iraq War happened at all is rather amazing. It was essentially the brainchild of a relatively small, academically-intense group of people who had developed grand ideas about Iraq and the Middle East long before 9/11 and who, coincidentially, had assumed important positions in the Bush administration. The beginning of the book describes how their abstract ideas, which had almost no popular constituency prior to 9/11 (and even well into 2002), translated into the reality of war.

Getting back to legal history, The Assassin’s Gate seems to confirm what one of my old internal/idealist legal history professors thought about the role of idealism and its relationship with material forces. He didn’t deny that material forces were important. He just said they could never explain why things happened the way they did. More precisely, he argued that materialism could never explain why things happened this way as opposed to some other equally plausible way. His argument was that ideas (or “law” in the legal history context) dictated the form in which material forces would ultimately manifest.

If that’s not clear, think of it this way. Imagine that “material forces” are a flooding river approaching a town. Imagine that the town, however, has constructed a drainage system that channels the water down a specific path and away from the town. Under my professor’s theory, this drainage system channels the flooding water in a certain direction in the exact same way that ideas “channel” material forces down a specific path.

Applying that to the Iraq War, one could point to a number of material causes of the war – 9/11, demand for oil, threat to Israel, etc. But the point is that when the post-9/11 material forces flooded America, the neocons’ pre-existing ideas channeled these forces in a very specific way that led to the Iraq War. Because the ideas existed and were in place when the 9/11 waters hit, those ideas played an important role in channeling the fear and anger and desire for change straight to Baghdad.

In short, ideas matter. That, to me, is one of the most important lessons of both The Assassin’s Gate and Iraq more generally.

__________

It’s fairly clear that I have many disagreements with Republican policies and, more specifically, with this administration’s policies. Despite my disagreements, I recognize that many of these debates boil down to subjective value judgments. I also recognize that there are a number of arguments that can be raised in good faith in support of policies I disagree with. For instance, I may disagree with a tax cut, but I can at least imagine some plausible reason why others might support it.

That said, I’m having trouble imagining any argument whatsoever that could justify prohibiting career DOJ attorneys who have devoted their lives to voting rights law from making recommendations on major voting rights cases. It’s not just that I disagree with this action, I can’t think of a single argument that could even plausibly justify it. The Iraq payola stuff is really bad, but I can at least imagine some argument in favor of it. But not here – this seems like pure Putin.

So I need some help from my pro-Bush readers. What is the nominal justification for this action? I’m not asking you to justify it, I’m just asking for a plausible justification. Anything. I gotta be honest – I’m drawing a complete blank.

And one last thing while we're on the subject – to borrow from my hero Bork, if you don’t like the Voting Rights Act, there’s a thing called the legislative process. If you want to repeal the VRA, that’s the route the Constitution requires you to take. Repealing laws in unauthorized manners is something conservatives usually get upset about.

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The NYT is reporting that Iraq’s Shiite coalition may be crumbling. That’s potentially really good news – or really bad.

The United Iraqi Alliance, a coalition of 18 conservative Shiite parties - the largest of which are backed by Iran - remains the centerpiece of Shiite politics and is expected to garner more votes on Dec. 15 than any other single coalition or party. It has long been vulnerable to infighting, but its members have managed to pull together at critical moments, as when they nominated Ibrahim al-Jaafari as prime minister last February.

This time, though, the rivalries have grown more heated and the potential for an irreparable split is greater, Iraqi and Western officials say. Many coalition members have broken away and started their own parties, and there has been a palpable drop in support among moderate voters and the leading ayatollahs, who are disenchanted with the performance of the current Shiite government.

Internal dissension among the Shiites is, according to Madisonian theory, an essential element for Iraq’s future stability. I explained all this in more detail here, so you should read that if you’re interested. But the whole idea of Madison’s “theory of the big republic” is that increasing the size of the republic increases the number of “vectors,” which increases stability by preventing one coalition from becoming permanent (and thus permanently oppressive).

Applying that theory to Iraq, one key to success is creating the conditions for shifting, ad hoc Shiite-Sunni coalitions. And the first step in that is getting the Shiite coalition to splinter. If it does, the next step would obviously be for one or more of these groups to seek support elsewhere. As the NYT says:

But if entire blocs of the coalition defect, then it will be easier for politicians such as Mr. Allawi or Mr. Chalabi to cobble together a patchwork of allies among the various Shiite, Sunni Arab and Kurdish parties.

That’s pure Madison. So that’s the good side of this internal tension.

The bad side, though, is that even if the Shiites break up, it might not necessarily lead to a nirvana of Madisonian stability if the rival Shiite groups don’t accept the basic premise that their fights should be conducted within the political arena rather than the street. Living in America, we tend to assume people will keep their fights within this arena, but that's not exactly the historical norm.

In general, I’m starting to be more skeptical that Lebanon’s largely ethnic/religious-driven civil war is the best model for the types of battles that might ultimately rage in Iraq after we leave. I’m starting to think Colombia might be a better example. Correct me if I’m wrong, but the in-fighting in Colombia seems to be intra-ethnic. The left-wing guerrillas fight the right-wing paramilitaries and they all fight the army. It’s a fierce three-way conflict, but not an ethnic or religious one. It’s essentially a conflict of rival militias fighting for power and scarce resources (e.g, drugs).

As I read more about the conflicts between Shiite groups like the Sadr Organization and SCIRI, I’m starting to wonder whether a Colombian-like, eternally-simmering civil war could be what we ultimately see emerge in Shiite Iraq. Now maybe these tensions aren't anywhere close to the tensions among Colombia's rival groups - I'll defer to others on that. But a lot of the same elements are in place – an oil-rich territory (instead of drugs), armed militias, and deep enmity between power-hungry groups. It’s not exactly a recipe for stable democracy.

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Via Brendan Nyhan, I saw this quote in the Post from David Dreier:

"By cutting taxes, you grow the economy, and you generate an enhanced flow of revenues to the Treasury," said Rep. David Dreier (R-Calif.), chairman of the House Rules Committee.

You know, one important part of an economic theory is that it be true. At the very least, it should be potentially true - i.e., it's better if it hasn't been proven false every time it's been tried. When it comes down to it, I guess that's my problem with supply side. It sounds nice. It's got the always-important alliterative element going for it. But it's just not true - and being true is an important component of an economic theory. Shockingly, when you shrink things, they get smaller.

Sorry for the snark, but comments like this rank right up there with Cheney's Prague stuff. Empirical reality seems to have no effect on them. What Dreier is saying is just empirically wrong. At the very least, it has nothing supporting it. Any way you measure it (current dollars, constant dollars, % of GDP), the federal government took in less revenue in 2004 than it did in 2000. In fact, in terms of constant dollars and % of GDP, we took in more in 1998 than we did in 2004.

And kudos to the Post for noting this:

Although the federal tax revenue has grown since the passage of the 2003 tax cuts -- from $1.9 trillion in 2004 to $2.1 trillion in 2005 -- the tax revenue measured against the size of the economy remains below the 2002 level and well below the level of 2001, when the first of Bush's five tax cuts was passed.

That's an important point. When Bushonomics folks justify the deficit, they're quick to use % of GDP as the relevant metric. They're less quick to use that same metric to describe tax receipts. And you can see why.

Take a look at the numbers - from 1998-2000, tax receipts were just over 20% of GDP. Tax receipts as a percentage of GDP declined steadily from 2001 to 2004 - 19.8% in 2001, 17.9% in 2002, 16.5% in 2003, and 16.3% in 2004. (At this same time, spending was also increasing any way you want to measure it.) Now maybe someone with better economics training can explain why it's appropriate to measure the deficit as % of GDP but not tax receipts, but I can't think of a reason.

Bottom line - supply side just doesn't work. Cutting things results in things being cut. Now, maybe decreasing revenues is better as a matter of policy. That's a whole different debate and possibly an interesting one. But the point is that this particular argument (cutting = raising) is empirically wrong.

At some point, you would think the continuing absence of empirical support would matter. Supply side has never raised revenues - not under Bush, not under Reagan. As Kevin Drum has noted repeatedly, Reagan had to raise taxes seven times after the massive deficits caused by his first round of cuts - and even then, the increase of revenues in constant dollars wasn't exactly something to write home about. As Kevin explained:

The end result is that very few voters understand that the Reagan deficit eventually went away only after ten major tax increases that were cumulatively bigger than the famous 1981 tax cut. And because people don't understand that, they figure that maybe Bush can grow his way out of the deficits he's created.

So, I'd urge everyone to be skeptical when you hear that tax cuts increased revenues this holiday season. First, make sure they're adjusting for inflation. Second, keep an eye out for shifting metrics.

__________

It’s hard to know what’s going on in Joe Lieberman’s head these days. Is he angling for Secretary of Defense? Is he bitter toward the base after his, um, unsuccessful 2004 campaign? I don’t know. Billmon has his own theory, and maybe he’s right. But for today I’m going to give Joe the benefit of the doubt. I mean, I suspect he’s not waking up every morning saying, “How can I be wrong today in the most annoying possible way?” I’d like to believe that, in his own head, he actually thinks that what he is saying is best for America. So getting away from all the name-calling and taunting, I think Joe’s real problem is that he is living not in a pre-9/11 world, but in the post-9/11 world. The problem is that, since the beginning of Rove’s Iraq marketing campaign, America has been living in a post-“post-9/11" world. Joe hasn’t kept up.

You hear a lot of talk about the “pre“ vs. “post”-9/11 worlds. It’s a familiar dichotomy – and one that makes a lot of sense. In fact, I think 9/11 will be one of those historical markers that signal the beginning of a new era like the French Revolution or 1989. But I want to focus on a different dichotomy – the post-9/11 vs. the post-“post-9/11" world.

Before we do that, let’s talk about family. One of the great things about belonging to a family is that there is a sort of unspoken bond that exists at all times and in all circumstances among family members. No matter how angry you get, no matter how passionate your disagreements are, somewhere in the back of your head you know that when push comes to shove, you share a common bond with your family. And in times of emergency, you can appeal to that common bond.

A lot of people feel something similar about America and being American. Underneath all the political fights and polarization, there is still a shared unspoken bond that can be appealed to in certain situations – a bond that we all share just by being Americans (it’s similar to Lincoln’s “mystic chords of memory”). In theory, you should be able to appeal to this shared bond in times of war or emergency - and in doing so, transcend everyday politics.

That was one of the great things about the post-9/11 era. The “mystic chords” were ringing loudly then, even in sadness. Coming on the heels of Gingrich, impeachment, and the judicial coup d’etat of 2000, it was a welcome break to hear them again.

But Karl Rove destroyed that world by exploiting the post-9/11 bond for political ends. Essentially, in a time of war, he put Democrats in a catch-22 on Iraq. Democrats could either support the war or oppose it (or, I suppose, do whatever it was that Kerry did). If they opposed it, they would be accused of betraying the post-9/11 bond. If they supported it, however, the success of the war would be used to punish them politically – just as the successful removal of the Taliban was used as a political weapon in 2002. It was damned if you do, damned if you don’t. It was like someone saying, “That man is a traitor if he doesn’t give me the sword I need to kill him.”

In short, Bush and Rove transformed the post-9/11 unity into a post-“post-9/11" disunity where there is literally nothing above politics – not war, not our troops, not Katrina, nothing. All has been relegated to serve political ends.

Of course, what’s maddening is that if you have any principles, you still have to hope for military victory even though you know you’re supporting the sword that may be ultimately be used to attack you. For instance, if Bush had been successful in Iraq, it would have been used as a bludgeon even if Kerry had fully supported it the whole time.

But still, you have to hope for victory even if victory will inevitably hurt you politically. It’s just shameful that an administration would put elected leaders in that position using our troops (and our emotional attachment to them) as pawns and backdrops, but that’s the administration we have.

But even if you must support a military victory, it does not mean you have to cut Bush an inch of slack in the name of “national unity” or the “bond” or whatever. And it certainly does not mean that you should be saying things like this:

It is time for Democrats who distrust President Bush to acknowledge that he will be commander in chief for three more critical years and that in matters of war we undermine presidential credibility at our nation’s peril.

Joe’s problem is that he’s stuck in the post-9/11 world. He still foolishly thinks that because we’re at war, we need to put aside our perhaps-justified criticisms for the sake of the country and for the sake of the “bond.” But Bush betrayed that bond. And if you let up on the credibility front in the name of the war, no one at the White House is going to thank you by refraining from attacking you using the war. They'll just laugh at your political ignorance while they stab you through the heart.

In light of recent history, it just makes little sense to cooperate with him. As a result of the 2002 and 2004 campaigns, Bush has created a collective action problem in which cooperation with him is irrational. Helping him only helps him and hurts you - it doesn't help the country. Again, you still root for military victory even at potential personal cost, but that doesn't require doing what Lieberman recommends doing.

What's most troubling is that Lieberman could be a strong voice for change. He has enough credibility on the Right that some targeted criticisms could go a long way in making better policy and increasing oversight. Instead, he thinks the President will meet him halfway in the name of unity if he's nice. Bush won't, but he'll happily cite Lieberman's name in speeches designed to destroy his party in 2006.

That's what so tragic sad about the whole thing - Lieberman's good intentions (let's assume) won't prick any consciences at the White House and won't be met by anything in return in the name of national unity. They will only be used for political campaigns that will result in policies that Joe, on balance, will probably oppose. But Joe can't see that because he remains in the post-9/11 world, while the White House lives in the present.

__________

Following up on the last post, I recognize that this is a bit cynical and Straussian, but why shouldn't Democrats adopt a position (or "framing") precisely opposite to what Dean said yesterday? Why not justify phased withdrawal by saying we've already won?

I'm pretty sure Yglesias wrote this a few months back, but I can't find the link. Anyway, the idea is to say we've already achieved our mission. Saddam is gone. We've confirmed there are no WMDs. We've set up the constitution. And there's been a vote. We've done the best we can, did it well, so let's go home.

I'm not exactly happy with this - I would like nothing more than to send the administration to some camp and get, to borrow from Kevin, tearful confessions. I'd also like to see some accountability and a few trials at the Hague.

But realistically, preaching defeat is a political loser and will only keep Republicans in power (which keeps subpoena power safely in the holster). Democrats should feel free to criticize everything about the war, but they shouldn't acknowledge defeat. Instead, they should say that the military did its job well despite Bush and now it's time to come home.

I don't mean to let these people off the hook, but if the American public insists on living in a gumdrops-and-lollipops fantasy-world impenetrable to hard truth, then I'd rather tell them a fantasy that stops getting people killed as opposed to the fantasy that maintaining an indefinite occupation under a criminally negligent policy (i.e., "staying the course") is necessary to beat the "terrorists" (i.e., decentralized, multi-headed Sunni insurgency that has far less to do with foreign Islamic terrorists than advertised).

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If you think about the domestic politics of Iraq long enough, it will drive you insane. I’m almost there. I try to repress it, but the madness keeps bubbling up to the surface. Here’s what triggered my latest relapse (from the Post):

Several Democrats joined President Bush yesterday in rebuking Dean's declaration to a San Antonio radio station Monday that "the idea that we're going to win the war in Iraq is an idea which is just plain wrong." The critics said that comment could reinforce popular perceptions that the party is weak on military matters and divert attention from the president's growing political problems on the war and other issues.

I think that’s probably right. If Democrats become associated with the idea of defeat, it’s going to be another long, cold November night next year. Statements like Dean’s just don’t help, politically speaking. In fact, they're pretty dumb.

But here’s where my insanity comes in – on another level, Dean was clearly right. And that gets to a larger point. In politics, any given statement exists in several different dimensions. Statements can be simultaneously right and wrong – both empirically and morally – just like light can be both wave and particle.

And that's what drives me up the wall about Dean’s statement. It is: (1) empirically accurate; (2) politically suicidal. In other words, it’s right and wrong all at once. On #1, Howard Dean – yes, Howard Dean – has been far more empirically accurate about Iraq than the administration that actually conducted the war (and it’s not even close). And yesterday’s statement was equally accurate – we are now in the “cutting our losses” stage of Iraq and everyone knows it.

But none of that matters because, in domestic Iraq politics, being right is being wrong – and being wrong is being right. The public and party elite embrace the wrong and run from the right – and they do so for morally wrong, but politically right, reasons (see, e.g., Hillary). Ultimately, it’s the public’s fault. They are simply unwilling to entertain the cognitive dissonance that Iraq has created (like Vietnam before it). And so they punish those who tell them uncomfortable truths. Thus, in the political sphere, telling uncomfortable truths is wrong – even though it’s right.

It’s all maddening. If the war is lost, it’s immoral not to say so – especially in light of the lessons we learned after watching LBJ and Nixon keep throwing young people to the wolves long after it was clear that the war was hopeless. But to say that publicly, of course, is politically wrong. In fact, just to add to your insanity, saying it publicly helps the very people you’re trying to discredit.

That’s the ultimate irony of Dean’s criticisms. Republicans don’t get upset when they hear statements from Dean or Cindy Sheehan – they love them. They give thanks for them. And that’s because Dean and Sheehan provide an “Other” to demagogue and rally around. That said, on some level, Dean and Sheehan are right. But in speaking out for what it is right, they unwittingly help perpetuate the very conduct they think is wrong.

It's just an odd - bordering on insane - thing. The war becomes less popular when opponents say nothing, and more popular when opponents speak the truth about it.

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Generally speaking, I think that O’Reilly’s Christmas culture war is a politically useful tool to maintain the perception among Christians that they are a persecuted minority. I pretty much said all I had to say about that last year around this time. So this year, at the risk of giving the O’Reillys of the world too much credibility, I want to focus on the people who actually do take the whole “Happy Holidays” thing a bit too far. It’s not that I think this is a statistically significant problem, it’s just that it provides a perfect example of how religion (and similar "spiritual" movements) can go bad. More precisely, it shows how the animating spirit that initially inspires religion gets lost after people try to translate that “spirit” into a set of formal rules.

The basic idea of saying “Happy Holidays” is rooted in politeness – not hostility to Jesus. It’s just sort of rude to tell, say, a Jewish co-worker to have a Merry Christmas. I think part of reason many Americans don’t understand this is because many of them live in areas that are 100% Christian (in an ethnic sense, not necessarily a church-going sense).

Take me, for instance. I grew up in a town not knowing a single Jewish person. By the end of college, most of my immediate friends were Jewish. And there were just certain situations where it wasn’t appropriate to use “Christmas.” For instance, when I left town for winter break, “Have a good Christmas break” eventually became “have a good break.” It wasn’t rooted in hostility to James Dobson. It was just the polite thing to do. That was the animating spirit behind the practice.

The problem, of course, enters when people try to take these personal acts of politeness and institutionalize them in a form of rigid rules such as banning Christmas cards from a department store or prohibiting Christmas trees or banning carols in schools or things like that. Maybe I’m wrong, but I think no one really cares about that. America is overwhelming Christian (ethnically) and Christmas is the biggest holiday of the overwhelmingly dominant ethnic/religious bloc. It’s ok to put up a tree – people are used to it. It’s ok to sing a song – no one cares. What they do mind is when you show complete disregard of their own religion or culture by wishing them a “Merry Christmas” to their face or scheduling a “Christmas Party” for your office when it’s only 70% Christian.

In short, there are some people who take a practice that was initially rooted in goodwill and transform it into a more rigid system of rules wholly divorced from the initial impetus of the practice. And this, in a nutshell, is my problem with certain aspects of the evolution of American Christianity – both Protestant and Catholic.

Perhaps it’s a stretch, but I think the evolution of the institutionalization of “Happy Holidays” is similar to that of religion. In the beginning, people are drawn to religion by experiencing a spiritual moment so to speak that is rich in love and goodwill or whatever. Over time, that initial spiritual moment slips away as the practice becomes institutionalized and gets replaced by formal rules imposed by institutional leaders. The spiritual impetus for loving your fellow man evolves into “no gays allowed.” A spiritual connection with a higher force is replaced with “Don’t do X or go to hell.” Rules and negative reinforcement replace spirit and positive reinforcement.

This same pattern of “spirit” followed by rigid rules can be found in some of the big “movements” on the Left as well. Campus reforms and student movements are a good example. Many of the initial student reforms were rooted in goodwill. People wanted to help minorities and women who had been subjected to past exclusion and discrimination. But over time, these impulses led to things like rigid speech codes and an intellectually oppressive set of rules (written and unwritten) regarding what could or couldn’t be said about race and gender.

Same deal with certain elements of the environmental movement. What initially began as a movement rooted in protecting natural resources slowly evolved into a set of rigid rules enforced by some nasty (and hairy) people.

Certain things just get lost when you institutionalize them. In fact, to me, this is one the themes of Romeo & Juliet. Because the young couple’s essence was the “spirit,” they can’t be incorporated into the formal institution – and so they die. And while I'm on Romeo & Juliet, I want to add that it’s not a play about “true love” or any of the sappiness normally attributed to it. It’s actually a very dark play – yet one tinged with a sort of tragic beauty in the Greek/Nietzsche sense. One of the most interesting (and sad/beautiful/depressing) themes is that infatuation (or the “spiritual moment”) is necessarily and inherently fleeting. It only exists if it dies quickly - because that is its essence.

I’m not sure how I got from Happy Holidays to this depressing ending – but there you go. Puppies and sunflowers tomorrow.

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From today's Post, "China Confronts Contradictions Between Marxism and Markets":

The Communist Party has launched a campaign among political leaders and senior academics to modernize Chinese Marxism, seeking to reconcile increasingly obvious contradictions between the government's founding ideology and its broad free-market reforms. . . . In addition, the campaign will promote more research on how Marxism can be redefined to inform China's policies even as private enterprise increasingly becomes the basis of its economy, they explained.

I suggest the Chinese government recruit David Brooks and Douthat and Salam - they've been doing some excellent work in the field of, um, "reconciling obvious contradictions."

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I’ve been out of the loop for a while, but I’ve been meaning to comment on this astute post by Ezra Klein for some time. Unlike others (e.g., Kos), I don’t dislike the Bull Moose. But I think Klein makes exactly the right point about his sometimes knee-jerk centrism:

What frustrates me about Wittman is that he's infatuated with centrism for the sake of centrism. He doesn't offer an ideology with greater coherence than the splintered philosophies pushed by the major parties. . . . He wants a third way, but so far as I can tell, all he's interested in is the building of the road, not where it goes.

That’s exactly right. Klein pretty much explains the problems with this style of thinking, but I’ll try to reword it a bit.

The reason blind partisanship is bad is because it reveals a lack of thought. In an ideal world, people would assess the merits of various debates and then, on any given issue, align themselves with the party that takes a similar view on that particular issue. In this same ideal world, people's ultimate party affiliation would be a function of which party they side with more often (or at least on those issues for which they have an intense preference).

Blind partisanship flips that process on its head. When a given issue comes up, blind partisans (e.g., Hugh Hewitt) first determine what the party line is and then align themselves accordingly. Their flaw is a lack of critical thinking in adopting their various positions.

What is refreshing about true “centrists” is not so much their centrism per se, but the increased likelihood that they assess issues rationally before coming to a conclusion. In other words, their loyalty is to the merits of a debate, not to a party position on that debate.

Wittman’s problem (one shared by David Broder and the Washington Post editorial board) is that his centrism sometimes lapses into a centrism-for-centrism’s sake that is, as Klein noted, utterly devoid of any policy rationale. Instead, he seems too eager to adopt a position simply because he can portray it as “not partisan” or “centrist” or “Third Way” or whatever.

But that has all the same problems of blind partisanship. To blindly adopt a position for no reason other than it’s not "partisan" is to commit precisely the same logical error that partisans do. In this sense, “conspicuous centrism” is as bad as blind partisanship – in both, critical thinking is absent. The self-conscious centrist looks around, sees what both sides are saying, and then adopts the middle position simply because it’s in the middle. That’s what’s so maddening about the Post editorial board (the point I tried to make in my Scales of Objectivity post).

And that leads to the bigger point, which is that centrism is just a silly concept in general. There’s nothing inherently better about the middle position in a given debate. Sometimes the middle position will be more correct, but other times it’s ridiculous. It depends entirely on the context of the debate. For instance, to be “centrist” in the intelligent design debate is to be wrong – laughingly and ridiculously wrong.

The best “centrists” (people like Yglesias) are people who assess issues on their merits and then let the chips fall where they may. In creating an “Yglesias Award,” Andrew Sullivan sort of misses the point. Yglesias tries to be overly-contrarian sometimes, but he’s not consciously trying to be a “centrist” in the same way that Broder or Wittman or Lieberman is. In other words, he’s not thinking – ok, how can I show my centrism today by loudly disagreeing with the party I’m nominally aligned with just for the sake of disagreeing with them. He’s just assessing issues rationally and letting his conclusion fall where it may. And when you assess issues rationally, you are necessarily less likely to follow a party line – again, not because of a conscious attempt to be “centrist,” but because you’re assessing things empirically and rationally and letting those factors guide your conclusion.

I guess the bottom line is to beware of people who have to tell you they’re centrist. True centrism – which is simply a poor name for what is actually rationalism – is best when it arises organically as a result of assessing issues rationally. If, however, centrism is artifically imposed upon debates, it is no different from the blind partisanship it claims to reject.

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Yes, I'm alive. I'm just in the middle of writing a brief and am swamped (double-super swamped). It will be over this weekend and I can talk about our bold plan for victory in Iraq.