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Is Ray Rice’s Video a Game-Changer?

The reality of domestic abuse gets harder to deny.


Star NFL running back Ray Rice’s assault on his then-fiancée/now-wife is old news. He was arrested in February, and plea-bargained from criminal charges down to court-supervised counseling. (Emily Bazelon explains: “when a victim refuses to cooperate with the prosecution, the calculus for prosecutors shifts away from trial and conviction.”) Way back then, TMZ released a video showing Rice dragging the unconscious mother-of-his-daughter out of an elevator in an Atlantic City casino.

The NFL suspended him for two games, a punishment that raised a furor in light of the season-long suspension of receiver Josh Gordon for “substance abuse”, presumably marijuana. The NFL claimed it was bound by its previous policies, which it changed so that any future domestic violence incident would draw at least a six-game suspension. (But abusers keep playing while their cases work through the legal system.)

The Rice family.

None of that is new. But this week TMZ released a video of what happened inside the elevator. In it, we see Rice throw the punch that knocked Janay Palmer out. In an abstract sense, the new video didn’t tell us anything we didn’t already know: We knew he knocked her out, we just hadn’t seen him do it. It shouldn’t have changed anything.

But it did. Almost immediately, the Baltimore Ravens released Rice, who otherwise would have been their main ball-carrier when his original suspension ended next week. The NFL then made his suspension “indefinite”, and New England Patriots’ owner Robert Kraft speculated that Rice would never play in the NFL again.

One of the most striking reactions came from ESPN analyst and former player Mark Schlereth, who nearly dissolved into tears as he imagined a player in his own locker room, someone he would have identified with and felt loyal to, doing such a thing. It’s worth watching.

[The video] put a face to domestic violence. I’m not saying Ray Rice’s face, I’m saying the act of domestic violence. Because it was so shocking. And as the father of two daughters, and the [grand]father of a granddaughter, it was frightening for me to see that. The violence that occurred, the callous nature with which that violence occurred … I guess I had never really gone through that mentally before, to really understand what that looks like. And that put it together for me, of how vicious in nature this is.

I’m sure a lot of women are shaking their heads in a well-duh sort of way: You discovered that domestic abuse is callous and vicious? Your Nobel Prize is in the mail, Mark.

But if Schlereth is typical of a larger group of men — and I believe he is — then the Rice video may be a tipping point in the public discussion of domestic violence. Until now, when men have heard accounts of domestic violence, a lot of us have at some level empathized with the abuser, as if he might be like us on a really bad day. Just as an ordinary man might snap in the middle of an argument and say something he doesn’t mean and later regrets, or maybe act out physically by slamming a door or punching a wall, maybe an abuser does something reflexive that — unintentionally, almost accidentally — results in physical harm.

That’s obviously not what happens in this video. Rice just decks his fiancée. Yeah, they are tussling physically, but the much larger and stronger Rice could easily have fended off Palmer’s blows or held her wrists and waited for her to calm down. Instead, he knocks her out, then looks down at her limp body as if he’s seen all this before.

Witnessing that reality could significantly change the way men listen to accounts of domestic violence. Like Schlereth, many men had “never really gone through it mentally before”, and now they have. Now they understand viscerally that this isn’t something any man might have done on a sufficiently bad day. The man in this video doesn’t deserve a single ounce of our sympathy.

Related short notes

Not to say that there aren’t still some men who will make excuses for Ray Rice. And even some women.


Meanwhile, women have been writing about Janay Palmer, who is now Janay Rice. An anonymous writer on The Frisky wrote “Why I Married My Abuser“.

when I saw the footage of ex-Baltimore Ravens player Ray Rice punching his then-fiancée Janay Palmer, I wasn’t surprised that she was now his wife. It isn’t — as many of the commenters on the original TMZ video have said — “all about the money,” or “she doesn’t care about taking a punch,” and it’s especially not that “she is telling all women it’s okay for your man to beat you.”

… It’s beyond silly to say that any woman who is getting smacked around thinks it’s acceptable to be smacked around. No one knows better than a woman who is being abused that it is wrong. Not leaving isn’t the same as consent. I stayed because I was traumatized and isolated. I believed that Hank really loved me and that no man with less passion/ anger (those words were conflated for me) would ever love me like him.

There’s a whole Twitter feed of stories like this: #WhyIStayed. And a companion: #WhyILeft. As with #YesAllWomen, it’s not abstract argument, it’s people telling their stories. The sheer accumulation of them is hard to explain away.


The NFL and the Ravens came out looking really bad — more interested in managing a PR problem than anything else. They claim they didn’t see the inside-the-elevator video until it became public, but that seems doubtful. Schlereth certainly didn’t buy it:

A Rice souvenir repurposed.

Protecting the shield means that we’re supposed to honor and understand the privilege of playing in the league, not supposed to cover up our mistakes and accept those. And that’s where the NFL in my mind is really letting me down, and let every guy who plays in this league down. Because I can’t imagine saying “No, we don’t have access to that video” and you saying, “OK, well, that’s good enough for me. We’ll move forward.” That’s unacceptable.

And besides, what the video changed is the depth of the public anger, not our factual understanding of what happened.


Jon Stewart’s reaction is also worth watching.


If you’re looking for a male hero in this story, I propose this girl’s Dad.

Infrastructure, Suburbs, and the Long Descent to Ferguson

Three dots connected.


Dot 1. The Long Descent. The most pessimistic book I’ve ever reviewed in the Sift is John Michael Greer’s The Long Descent: a user’s guide to the end of the industrial age. Greer paints a very plausible picture of how, over centuries, industrial civilization might fall apart.

The short version is that as the climate degrades and fossil fuels become simultaneously more expensive and less useable, each generation inherits from its more prosperous ancestors an infrastructure that it can’t afford to maintain. Society muddles through from year to year — sometimes even seeming to advance — until some part of that poorly maintained infrastructure snaps and causes major destruction. The destroyed area may get rebuilt, but not to its previous level. The resulting community has less infrastructure to maintain, but is also less prosperous, and so the cycle continues into the next generation.

New Orleans is one example. Hurricane Katrina was an act of Nature (and possibly a consequence of global warming), but the reason it destroyed so much of New Orleans was the failure of the city’s infrastructure. As Jed Horne reported in The Washington Post:

key levees, including the 17th Street and London Avenue canals in the heart of the city, failed with water well below levels they were designed to withstand. As the Army Corps [of Engineers] eventually conceded, they were breached because of flawed engineering and collapsed because they were junk. … The Corps and local levee boards that maintain flood barriers pinched pennies, and suddenly Katrina became the nation’s first $200 billion disaster.

For a rising city like London in 1666 or Chicago in 1871, such large-scale destruction is an opportunity to rebuild bigger and better. But New Orleans has rebuilt smaller, losing almost a quarter of its population between 2000 and 2012. The flood protection system has been rebuilt, but still not to a level that could withstand the next Katrina.

The collapse of Detroit lacks a Katrina-level catastrophe, but follows a similar pattern: Detroit’s sinking tax base can’t maintain a major city, and every attempt to either raise taxes or spend less just exacerbates the decline.

At any particular moment, you can always find something else to blame: corruption, say, or mismanagement. But rising cities are also corrupt and mismanaged, maybe more so — see Tammany Hall. It’s not that declining communities lack virtue, it’s that flourishing communities can afford vice.

Greer imagines the same scenario on a planetary scale. He sees places like New Orleans and Detroit not as unique examples of dysfunction, but as coal-mine canaries. The same vicious cycles that are driving them downward will eventually manifest everywhere.

Dot 2. The suburban Ponzi scheme. In June, 2011, Charles Marohn published “The American suburbs are a giant Ponzi scheme” at Grist (also reviewed in the Sift). His point is that car-oriented suburbs create only the illusion of wealth. In the long run, they are enormous bad investments that create unmaintainable communities.

America’s early suburbs were outlying towns that were gradually engulfed by urban sprawl in a more-or-less natural way — Oak Park, Illinois and Arlington, Massachusetts come to mind. But the 20th century created car-oriented commuter towns out of nothing. Everything was new at the same time: new houses, new roads, new schools, new stores, new sidewalks, new bridges, new sewers, and so on.

As a result, nothing needed fixing right away, so taxes could be low. Sound accounting would have required these towns to build up big maintenance funds for the day when things started wearing out. But under sound accounting, those communities wouldn’t have been quite so attractive in the first place. And whatever the accountants said, why would voters tolerate higher taxes if the town was sitting on a pile of money?

As long as there was rapid growth — new subdivisions, new roads, new malls, etc. — the game could continue: Even after the potholes started, the tax base was still big compared to the relatively small part of the suburb that needed fixing. That’s why Marohn calls it a Ponzi scheme: Just as Ponzi’s later investors paid the dividends of the early investors, the suburb’s new neighborhoods pay for the maintenance of its old neighborhoods.

But trees don’t grow to the sky, so eventually a suburb reaches its carrying capacity. And when growth plateaus, the maintenance time bomb starts ticking. A decade or two later, everything seems to wear out at once, while the tax base stays comparatively flat. Now the local government faces a choice: raise taxes or let things start falling apart. Either option makes the town a less attractive destination for the high-income families and high-margin businesses it needs — especially in comparison with fresher suburbs still in their low-tax, low-maintenance, everything-is-new growth phase.

That starts a slow-but-steady decline, until eventually you have not just high tax rates, but also cracked sidewalks, pot-holed streets, underfunded schools, dingy libraries, litter-filled parks … and the kind of residents who can’t afford to live anywhere nicer.

Eventually, in other words, you have Ferguson, whose population reached its current level in 1960. Marohn spelled it out in late August.

When places like this hit the decline phase – which they inevitably do – they become absolutely despotic. This type of development doesn’t create wealth; it destroys it. The illusion of prosperity that it had early on fades away and we are left with places that can’t be maintained and a concentration of impoverished people poorly suited to live with such isolation. … Unfortunately, nothing I’ve brought up here is really unique to Ferguson. All of our auto-oriented places are somewhere on the predictable trajectory of growth, stagnation and decline. Racial elements aside, I think we are going to see rioting in a lot of places as this stuff unwinds.

Dot 3. The Ferguson revenue structure. As I’ve discussed before, Ferguson didn’t erupt simply because Darren Wilson shot Michael Brown. That was just the spark. Combustible anger had been building up in Ferguson for a long time.

Ferguson erupted because the less affluent black majority resented being in a predator/prey relationship with the mostly white police. It would be bad enough if that relationship were entirely based on racism or abuse of power, but it goes deeper than that: It’s economics. Reuters reports:

Traffic fines are the St. Louis suburb’s second-largest source of revenue and just about the only one that is growing appreciably. Municipal court fines, most of which arise from motor vehicle violations, accounted for 21 percent of general fund revenue and at $2.63 million last year, were the equivalent of more than 81 percent of police salaries before overtime.

That’s why in 2013, Ferguson police issued 3 warrants for every household in the city, raising $321 per household. According to Thomas Harvey of Arch City Defenders:

Some of our municipalities are seeking to raise revenue through the use of their municipal courts. This is not about public safety. The courts in those municipalities are profit-seeking entities that systematically enforce municipal ordinance violations in a way that disproportionately impacts the indigent and communities of color.

Charles Mudede of Slog widens his view to include a statistic from AP: The “homicide clearance rate”, i.e., the percentage of murders that police solve in America, has dropped from 91% in 1963 to 61% in 2007.  Mudede suggests a simple explanation:

Catching murderers costs money. Cities do not have money.

In other words, why have your police out spending the town’s money investigating serious crimes when they could be making money for the town by hassling jaywalkers like Michael Brown? In an era when your businesses are already moving away and your property values are stagnant or sinking, how else are you going to raise revenue?

Mostly, that revenue is going to come from poor people who can’t afford lawyers and have no place to move to. That may seem harsh, but if you change the practice, you’ll have to come up with an alternative revenue stream, preferably one that won’t chase away more businesses and more professional-class families. What could it be?

And so, concludes Reuters, changing the way Ferguson polices its people is going to be “easier said than done”.

Put it together. For the last couple centuries, we’ve had a simple formula for increasing wealth: Take something that people used to do with their muscles and figure out a way to do it by burning fossil fuels. Augmenting human effort with the energy stored in coal, oil, and gas has created a level of luxury that would have seemed magical to our ancestors.

During that time of increase, you didn’t have to worry much about either the fuel you were burning — there was more where that came from — or the atmosphere you were burning it into. Now we’re starting to hit limits on both sides. We have to go to extremes — deep in the ocean, deep underground, far into the polar regions — to find new fuel; and if we burn all that we have discovered, the change in our climate could be catastrophic.

So you don’t have to go all the way to Greer-level pessimism to realize that creating wealth will be trickier in the centuries to come. Many of the things that may look like wealth-creation actually aren’t; they just shove someone else into poverty, or create debt that will eventually have to be written off — like the “profits” investment banks booked during the housing bubble.

When generation-to-generation economic growth is large and reliable, you don’t have to worry too much about the long term, because your grandchildren will be rich enough to handle the messes you leave for them. So it makes a certain amount of sense to push costs off into the future. But if we genuinely don’t know whether generations-to-come will be richer or poorer than we are, then it’s important that we do our accounting right. It’s also important that we build robustly, so that communities are viable under a wide variety of scenarios. Assuming that everybody will have a car or that food can be imported cheaply creates brittle communities that someday may have to be abandoned. A flourishing society can afford such write-offs. But if maintaining the infrastructure we inherit is the difference between advance and decline, we’ll have to be smarter.

And finally, we need to figure out how to rebuild or write off the mistakes of the past. Places like Ferguson — and there are a lot of them — are not sustainable in their current form. They will never generate the capital to remake themselves, and the outside capital they attract will be mainly from vultures who want to squeeze the last bits of value out of the community’s decline and despair.

In the short term, the easiest way to deal with that dysfunction is to blame it on the people who live there and lack more viable options. Their local governments can figure out ever more inventive ways to squeeze money out of them and leave them in squalor, while the rest of us lecture them about their lack of middle-class values. But the fundamental mistakes are not theirs. Those mistakes were made decades ago, and have been quite literally set in stone.

Terrorist Strategy 101: a review

What if ISIS acts like our worst nightmare because it needs us to attack?


It’s been ten years since I wrote “Terrorist Strategy 101: a quiz” explaining how Osama bin Laden’s apparent insanity actually made sense. In retrospect, I overestimated Al Qaeda’s ability to launch attacks in the U.S. — a popular mistake at the time — but the general framework holds up pretty well. Replace “Bin Laden” with “al-Baghdadi” and “al Qaeda” with “ISIS”, and the main points still apply today.

The core message of TS-101 is that if you are a violent extremist with a big dream, your toughest problem isn’t that there are violent extremists on the other side ready to oppose you. Your toughest problem is that almost all the people who (at least at some level) share your big dream have better things to do with their lives. They have jobs and kids and classes, bands that might hit it big, possible lovers to flirt with, and novels they’re sure would be best-sellers if only they could get them finished.

If you’re a would-be Supreme Leader, it’s a huge challenge: Around the world, people would rather get on with the business of living than give their all to the Great Struggle.

Somehow you have to screw that up.

So your big mission — which, ironically, you share with the extremists on the other side of the spectrum — is to flatten the bell curve. In order to bring your air-castles to Earth, you need to make the center untenable. All those folks who consider themselves moderates — if you let them, they’ll muddle along while you get old and the Great Historical Moment slips away. You need everyone to realize right now that compromise is impossible, the other side can’t be trusted, and we all have to kill or be killed.

Perversely, your best allies in this phase of the struggle are the people you hate most, who also hate you. Of course you’d never actually conspire with them, minions of Satan that they are. But you don’t need to, because the steps in your dance are obvious from either tail of the distribution: rachet up the rhetoric and escalate an attack-and-reprisal cycle until compromise really is impossible and everyone is radicalized. Only after the center is gone do the two extremes meet in the second round of the play-offs. It’s a very basic pattern of history, and it never changes: from Caesar/Pompey to Bin Laden/Cheney, extremists have to come in pairs, because they need each other.

What ISIS has.

OK, so now imagine you’re Abu Bakr al-Baghdadi, leader of ISIS. At the moment, you control a large swath of not very much. In Iraq, the Shiite government holds the southern oil fields around Basra, and the Kurds have the northern fields around Kirkuk. You’ve got the western desert. In Syria, flip it around: All the good stuff is in the west, and you’ve got the east. You made headlines by expanding your map-area really fast, but that’s because there wasn’t much there in the first place. (John McCain and Lesley Graham describe your territory as “the size of Indiana“, but a better analogy would be the parts of Nevada that don’t include Reno or Vegas.)

But you do have one important asset. You are the current holder of the Big Dream: a re-unified Caliphate, all the Muslims in the world (or at least the Sunnis) joined in the kind of empire that made Harun al-Rashid a storybook legend. Once, before the West cut the Dar-al-Islam into little pieces and put puppet kings and sticky-fingered generals in charge of each one, Baghdad was the jewel of the world, the center of the greatest empire on Earth.

It could be again.

Lots and lots of the world’s billion-or-so Muslims share that dream at a low level, the way suburban Methodists share the dream of Jesus’ return. It’ll happen someday and that’ll be great, but … you know … I’ve got to get ready for that thing at the office Monday afternoon, and then there’s little Jamal’s soccer game in the evening.

You need to screw that up — all the distracting stuff that gives Muslims from Morocco to Indonesia more to live for than the dream of the Caliphate — and you can’t do it alone. You need help if you’re going to radicalize enough idealistic young men and women to overthrow the current governments of Jordan, Egypt, Saudi Arabia, Pakistan, and a dozen other places.

A restored Islamic Caliphate.

You need America.

In particular, you need a big, blundering, violent America that kills children and calls it “collateral damage” as if Muslims weren’t human at all. You need American troops kicking down doors of innocent families and looking under the chadors of virtuous women in case they might have weapons down there. You need the American president acting like he’s Emperor of the World, drawing other countries’ borders and deciding who can be involved in their governments.

You need an America that says it’s at war with all of Islam — not just you, all of it. Nobody believes you when you say that, but when Americans say it, they will.

You need an America that won’t let its own Muslims assimilate, that harasses them whenever they try to fly or build houses of worship or just walk around looking like Muslims.

You need an America that is scared of you. Nobody cares if you proclaim yourself Grand High Poobah of Everything. But if Americans are on global TV, telling the world that you’re the Baddest Baddy in the History of Badness … you can work with that. That looks great on your website. Deep down, lots of the people whose allegiance you are seeking wish they had what it takes to make U.S. senators quiver with fear or quake with anger. If you have that special something, they’re going to want to identify with you.

Maybe you need to wave a red handkerchief at the American bull to get him to charge. So don’t just execute the Americans you find. (Any thug can do that.) Cut off their heads and put the videos on YouTube. You and I both know that it makes no difference — dead is dead, after all, whether the instrument of death is a barbaric sword or a civilized missile from a high-tech aerial drone. But Americans go crazy when you do shit like that. Maybe crazy enough to come back and start killing people again, crazy enough to return their soldiers to places where ordinary people can get a shot at them. And then the cycle will become self-stoking, because the dead can’t have died in vain, can they? Once you get the feedback loop started, death justifies more death.

So far, it seems to be working.

And so you don’t have to be a mind-reader to know what al-Baghdadi is thinking right now: Thank you John McCain and Lindsey Graham. Thank you, Joe Biden. Thank you, Phil Robertson and Sean Hannity. Thanks to all the other crazy right-wing Christian preachers far too numerous to list. Thanks to everybody who is making it impossible for President Obama to follow his own advice not to “do stupid stuff“.

The stupid stuff ISIS needs from America is on its way, so al-Baghdadi is grateful to all of you. You’re doing a job he could never do for himself.

But he owes you nothing, because it’s a fair trade: He’s radicalizing your followers just like you’re radicalizing his. The bell curve is flattening. The center is becoming untenable.

It’s amazing what extremists can accomplish when they share a common goal.

What Your Fox-Watching Uncle Doesn’t Get About Ferguson

It doesn’t matter how many details you know. If you start the story in the wrong place, you won’t understand it.


Part of my regular news-watching cycle is to check in on Fox News from time to time. It keeps me honest and helps me anticipate the kinds of arguments I’m likely to start hearing from conservatives.

Watching Fox was particularly interesting in the early part of this week, because in the evenings they (like MSNBC and CNN) gave a lot of air time to their reporters on the streets in Ferguson, Missouri. So it was a rare opportunity to see all three cable news networks cover the same controversial events at the same time. Most days, the difference between the networks lies mainly in what they choose to cover — a new report on climate change might lead the news on MSNBC, while Fox focuses on Benghazi hearings in Congress. But for a few days the what of the news was obvious and inescapable, so Fox’s unique perspective on the world could only express itself in the how.

Some of the difference in coverage has been on the detail level and is easy to filter out if you’re aware of the various networks’ points of view. When police would start moving in on demonstrators, for example, Fox would report as fact whatever they were hearing from police — that, say, shots had been fired from the crowd — while MSNBC would stick closer to what they could see (police moving in), express ignorance as to why it was happening, and then later report what police were saying (shots were fired from the crowd) as a claim they couldn’t verify. Whether you were pro-demonstrator or pro-police, you could watch either network and make a good guess about what the other was reporting.

But there has been a much more subtle, harder-to-compensate-for difference in the way each network answers the fundamental question: What are the demonstrations in Ferguson all about?

On Fox, the answer to that question is very simple. Demonstrators in Ferguson are reacting angrily to a single, one-of-a-kind event: White police officer Darren Wilson shot and killed an unarmed black 18-year-old, Michael Brown. That restricted context drives the rest of their narrative.

The apparent mystery. Like any good narrative hook, Fox’s omission of context creates a mystery: Why do so many people in Ferguson care so much about that particular event? Of course, Michael Brown’s family would be upset, and even Fox’s audience can cut them some slack if they want Officer Wilson nailed to the wall. But what about all those other people on the street night after night? It’s safe to say that most of them never even met Michael Brown. Why were they giving up their evenings and risking arrest or worse?

Once you have that question in your head, several answers suggest themselves: Maybe they’re all just crazy. Fox’s resident psychologist, Dr. Keith Ablow, says “the psyche of the community” deserves as much investigation as the actions of police.

Or maybe most of the protesters really don’t care about Brown, and the demonstrations are just an exciting thing to do in a boring town. At night on the streets, you’re where it’s all happening. You might even get on national TV. That’s the interpretation Fox correspondent Steve Harrigan was promoting when he described the demonstrations late Monday night as a “media event” and “child’s play”. (In response, he got cussed out on camera by one of the black “children” he was demeaning: “We go through this shit every day,” the young man reported. Harrigan did not follow up on that observation.)

An even more sinister solution to the mystery evokes racial stereotypes that Fox doesn’t need to spell out. A hint is enough: Maybe these young black men are just wired for anarchy and violence. The Brown shooting was nothing more than an excuse for doing what they’d do all the time if police weren’t stopping them. And once you raise the stereotype of the lawless black savage, the incidents of looting take on a significance far beyond their number or the number of people responsible: This isn’t about Brown or the police at all, it’s about grabbing some free liquor or a new pair of Air Jordans.

In addition, the why-do-they-care mystery leads right into a question Fox raises at every opportunity: Why do blacks only go to the streets about white-on-black cases like Brown and Trayvon Martin, when black-on-black violence [see endnote 1] kills far more people? How street demonstrations could prevent black-on-black violence is a question they never address. (Demonstrations speak to governments and the national electorate, and have little effect on criminals or hot-headed youth.) But Fox presents the Brown and Martin demonstrations as pointless anyway, so why shouldn’t there be equally pointless demonstrations against black-on-black violence instead?

Second, restricting your attention to that one context-free event makes the crowd look like a lynch mob. Why are they so sure Officer Wilson wasn’t justified in shooting Brown? Why can’t they wait for the investigative process to play out? And why can’t they cooperate with police now to keep the peace?

And finally, the mystery-framing makes the politics of the situation look purely venal. How outrageous it seems that liberals — they must be liberals — are exploiting the Brown shooting to register Ferguson’s black population to vote!

What makes Fox’s frame so convincing to its audience is that you can feel well-informed inside it. You can know how many people were arrested each night and which stores they looted. You can learn details of the shooting (though anonymous leaks from police will be reported more authoritatively than eye-witness testimony from black citizens). You can learn statistics about black crime in America. You can know just how rare police killings are compared to drug killings or other black-on-black murders. You’re not ignorant; you’re a walking storehouse of the kinds of information MSNBC would never tell you.

But in spite of that well-informed feeling, you don’t understand what’s really going on, because Fox is leaving out key background information and then beginning the story in the wrong place. The right story begins not with Officer Wilson’s bullets, or even with Michael Brown in the convenience store, but with a community where lesser forms of police abuse are an everyday occurrence.

Start by asking. Slate‘s Jamelle Bouie did what Fox reporters (or most individual whites) hardly ever do: ask the black community what they’re concerned about and listen to their answers.

Talk to anyone in Ferguson and you’ll hear a story about the police. … Everyone—or at least, every black person—can recall an incident. Everyone can attest to friends and relatives who have been harassed, assaulted, or worse by the police.

The right story begins here: A majority-black community feels abused by its almost entirely white police force. [2] And complaining to the white-dominated local government does no good. (As a report from Arch City Defenders spells out, the town of Ferguson gets significant revenue from assessing fines against poor people.)

If you start there, the narrative takes a completely different path. When a policeman shot Michael Brown six times on a city street in broad daylight in front of witnesses, the Ferguson community was not shocked (the way I would be if one of my white friends were gunned down by police in my majority-white town). Quite the opposite, this was the kind of incident they found all too believable, given the police behavior they see all the time.

So the reaction we’ve been seeing on the streets isn’t “OMG! How can something like this happen?”, it’s “This shit has to stop.”

No mystery. So it’s no mystery at all why people who never met Michael Brown have been out on the streets. Brown’s death is part of a bigger issue that they all have a stake in: How can the police be gotten under community control, and disciplined to treat the community with respect?

Their tactics are also no mystery: When the political process is unresponsive, the streets are the only communication channel left. Trayvon Martin’s mother is supposed to have said, “If they won’t hear us, make them feel us.” And Ja’han Jones put it more aggressively on Salon: “What if being peaceful won’t change a thing?”

As far as Officer Wilson is concerned, the crowds are not rushing to judgment, they are speaking from experience. Yes, police act this way, and the result is always the same: If the incident isn’t ignored completely, it is shunted into a opaque “process” in which eyewitnesses are ignored and no quantity of physical evidence is sufficient to bring charges. Ferguson police have showed every indication of wanting to go that way: keeping back relevant information as long as possible, smearing Michael Brown, responding to protests with even more excessive force, leaking bogus “facts” that support Wilson, and arresting reporters.

What’s rare about the Brown shooting isn’t the shooting itself, but how visible everything is: The body was lying in the street for hours. The eyewitnesses have been on TV. Nothing in the autopsy or other available evidence contradicts their testimony. If the police don’t have to answer for this, then what are the limits? Is there anything they can’t sweep under the rug?

Once you understand where the story really starts and what it’s really about, then the whole detour into black-on-black crime is revealed to be “the politics of changing the subject“. Other than corpses, the two issues have nothing in common. It’s like asking Sean Hannity, “Why have you spent so much time on the four Americans who died at Benghazi when tens of thousands of Americans die in car accidents?”

My reality and theirs. Demographically, I look more like a Fox viewer than a Ferguson protester. I’m white, over 50, and have an above-median household income. I barely notice when a police car goes by, and when I have had occasion to deal with my local police — usually because I approached them with a question — they have been unfailingly polite. When I arrange to meet people socially or promise to be somewhere, I don’t allow extra time for the possibility that I might be stopped and frisked, or taken down to the police station and questioned about some crime I never heard of. That kind of stuff never happens to guys like me.

If I did find myself in an unexpected and unpleasant run-in with police, it would feel like snow in July. My instinct would be to wait it out until polite normality re-asserted itself. So I could easily follow the advice of LAPD’s Sunil Dutta:

if you don’t want to get shot, tased, pepper-sprayed, struck with a baton or thrown to the ground, just do what I tell you. Don’t argue with me, don’t call me names, don’t tell me that I can’t stop you, don’t say I’m a racist pig, don’t threaten that you’ll sue me and take away my badge. Don’t scream at me that you pay my salary, and don’t even think of aggressively walking towards me. Most field stops are complete in minutes. How difficult is it to cooperate for that long? … Save your anger for later, and channel it appropriately. Do what the officer tells you to and it will end safely for both of you. We have a justice system in which you are presumed innocent; if a cop can do his or her job unmolested, that system can run its course. Later, you can ask for a supervisor, lodge a complaint or contact civil rights organizations if you believe your rights were violated. Feel free to sue the police! Just don’t challenge a cop during a stop. [3]

Great advice for me, but I don’t believe it has much to do with the reality of places like Ferguson, or even parts of Dutta’s own Los Angeles.

What if I weren’t a middle-aged middle-class white guy? What if police abuse is normal in my experience? What if I’ve cooperated before, and before, and before that … and the stop wasn’t “complete in minutes” and I got tased, pepper-sprayed or worse anyway? What if I “saved my anger for later” and the appropriate channels laughed at me? What if I have dead or injured friends whose attempts to cooperate didn’t “end safely”, and other friends who weren’t “presumed innocent” in court, and are now in prison on sketchy or manufactured evidence?

What’s your advice for me then, Officer Dutta?

What your Fox-watching uncle doesn’t get. The frustrated citizens of Ferguson are pursuing a plan that makes sense: Wait for an incident so egregious that it can’t be swept under the rug, and then get out on the streets in large numbers. Tell your story to the country, put your political leaders on the spot, and show the world how “justice” works in your town. Shine a spotlight on the usual shadowy self-investigation process, and dare the powers-that-be to work their usual trickery in front of a national audience.

That plan might not work — it didn’t work in Florida — but what more likely plan have you got for them? They can’t just be quiet and wait for justice to be served. They’ve got to do something.

Because “we go through this shit every day”, and that shit has to stop.


[1] Reason‘s Steve Chapman asks:

Most crimes are committed by males, but we don’t refer to “male-on-male crime.” Whites in the South are substantially more prone to homicide than those in New England, but no one laments “Southerner-on-Southerner crime.” Why does crime involving people of African descent deserve its own special category?

[2] Unlike Bill O’Reilly, Ferguson residents aren’t giving police credit for all the people they stop and don’t kill. What’s up with that? And what about the 3/4ths of the people police across the nation kill who aren’t black?

[3] This advice was funnier when Chris Rock was giving it.

The Ferguson Test

This week’s events in Ferguson have tested all of us, not just police and politicians.


In a classic South Park bit, Stan’s Dad is on Wheel of Fortune. The category is “People Who Annoy You”, and the letters showing are

N-_-G-G-E-R-S

The solution is naggers, but Mr. Marsh is so overwhelmed by the horror/forbidden-pleasure of saying “niggers” on TV that he can’t think of anything else. Watching for the first time, neither could I. Surely no TV-game-show puzzle could have niggers as its solution, but it instantly jumps to mind anyway. And once you’ve had that thought, calmly running through the other vowels to find a more probable solution doesn’t seem like an option any more.

By the time he blurts out “Niggers!”, Mr. Marsh even seems proud of himself for having found the courage to overcome political correctness and speak the truth as he sees it. But it isn’t truth. It’s just an idea that shines so brightly in his head that he can’t see any alternatives.

That’s how unconscious racism works.

Stan’s Dad is not an I-hate-black-people kind of racist, and undoubtedly he would be offended to be described as any kind of racist at all. In most ways, he’s a fairly typical middle-class white parent. He didn’t wake up that morning thinking, “I’m going to say ‘nigger’ today, and don’t let anybody try to stop me.” He knows what attitudes and behaviors are acceptable and unacceptable in today’s society, and he does his best to pretend that his mind really works that way.

But it just doesn’t. Whatever his conscious intentions, his mental reflexes have been passed down from another era, when racism was as common as air.

Reacting to presidents. Earlier this year, I described how unconscious racism figures in people’s responses to President Obama. Being president and living in the White House has always been a pretty sweet ride. Protocol requires everyone to defer to you. Wherever you go, no expense is spared to keep you and your family comfortable and safe.

The public has known and accepted this for a long time. The President symbolizes the United States, so of course the Kennedys or Reagans or Bushes should be treated with utmost respect. But when the First Family became black, all that luxury and deference suddenly looked different. Why were the Obamas lording it over us like this?

So, those white folks who didn’t even notice when Reagan’s or JFK’s feet were on the desk, but who see Obama’s and think “He was raised so badly.” — are they also secretly thinking “Who does that uppity nigger think he is, acting like he’s a real president or something?” Maybe a few here or there, but mostly no. They aren’t consciously hating Obama because he’s black. But they can’t look at a black president the same way they looked at the 43 white presidents. Things just look different when Obama does them.

And once the thought “Why are the Obamas lording it over us?” pops into your head, it’s genuinely difficult to back up and think: “Wait a minute. Are there other ways to look at this? Would I be interpreting the situation this way if he were white?” In fact, not voicing that bright and shiny “truth” feels like cowardice. The racial influence is long forgotten: Who does this Obama guy think he is, acting like he’s President of the United States or something?

Unconscious racism in the police. At this point, we don’t really know what Darren Wilson was thinking when he killed Michael Brown, sparking more than a week of civil unrest in Ferguson, Missouri. But we know that there’s a long history of police officers reacting differently to black citizens than to whites. Ezra Klein put it bluntly:

Incidents of excessive force are commonplace, and increasingly, there’s a list of young black men who have died for no other reason than that they ran into a police officer at the wrong time and in the wrong way.

Earlier this month, for example, 22-year-old John Crawford was killed by police in a WalMart in Ohio. After he picked up a realistic-looking air rifle from the shelf, another customer called police about an armed man in the store. Crawford was talking to his girlfriend on the phone when police demanded he drop the weapon. While he tried to explain that it wasn’t a real weapon, they killed him.

By contrast, white open-carry activists have been showing up in public places like Target or Home Depot, prominently displaying actual deadly weapons. None of them have provoked a similar misunderstanding. In Aurora, Colorado (site of the 2012 movie-theater massacre) an 18-year-old white man was carrying a shotgun down a public street. When stopped by police, he argued with them and refused to turn over the gun or show any ID. They let him continue on his way, gun in hand.

Most of this disparity, I suspect, is unconscious. I sincerely doubt that Crawford’s killers went to work that morning thinking, “I hate those young black bucks. I’m going to shoot me one today if I get the chance.” But police have to deal with emergency situations that may require quick action. Somebody seems to have a gun and people might be in danger — do you calmly talk him down or go in shooting? There may be no time to work through a checklist and make an objective decision; you have to go with your gut.

But what if your gut is prejudiced? What if seeing a young black man in an emergency situation is like seeing N-_-G-G-E-R-S on the puzzle board? One possibility — that he’s a dangerous criminal and innocent people will die unless you shoot him right now — pops to mind and blots out all others.

The Ferguson test.This is a test,” Missouri Governor Jay Nixon said. But it’s not just the people of Ferguson or the police or Nixon himself who are being tested this week. It’s all of us. As we watch events unfold, in how many ways do they just look different because of race? How hard is it to back up, re-examine our initial framing, and ask ourselves what we’d be thinking if race were not a factor?

The Ferguson police as an organization. Looking at their initial treatment of the Brown shooting, it’s hard to avoid the conclusion that Ferguson police didn’t think killing a black teen-ager was a big deal, or that his family or the community deserved any answers about how it happened or who did it or why. Shielding the shooter appeared to be the paramount concern.

When protests did erupt, police seemed to see only the public order and safety issues rather than the community relations issues. Instead of working with community leaders to balance public safety concerns with the public rights of assembly and free expression, police attempted to dictate to the community, and to enforce their edicts with overwhelming force.

The fact that the police version of the shooting was at odds with the accounts of eye-witnesses, including at least two who did not know Michael Brown, did not seem to bother them. Witnesses and the family’s private autopsy (results of the police autopsy haven’t been revealed) paint the picture of an intentional, unnecessary killing: shots aimed at Brown’s back while he attempted to run away, and then more shots after Brown turns with his hands in the air. After interviewing one witness, MSNBC’s Lawrence O’Donnell assesses her testimony as a description of first degree murder, and the legal experts on his show agree. And yet the officer has not been arrested or charged with any crime at all.

When police finally released Wilson’s name, they simultaneously released video of Brown apparently stealing cigars from a convenience store. That video has no relevance to the legal case — officers can’t shoot down suspects trying to surrender, no matter what they are suspected of doing — but it did have public relations value. It fed the storyline that focuses on black lawbreaking and violence to the exclusion of police misconduct.

Political leaders. It was obvious early on that local officials in Ferguson were making the situation worse, and yet higher authorities were slow to intervene or comment. The swing voters in Missouri are rural or suburban whites, and Governor Nixon has been careful not to look too pro-black. You have to wonder: If police were treating a white community like an occupied war zone, and if large numbers of local whites and their elected representatives were protesting, would it take that long to get a response?

Media. Some reporters are doing their best to get the facts out and portray them fairly, but it is far too easy to treat Ferguson residents as one big black blob. If there is looting and violence, then the citizens of Ferguson are violent looters. No wonder police are shooting them in the street and riding around in tanks and paying no attention to their concerns. Let them stop breaking the law and then maybe we’ll listen to them.

It’s hard to imagine a white community getting this kind of treatment. Whites who break the law are typically presented in the media as aberrations. Often they are portrayed as crazy loners, even when they belong to groups that promote precisely the kinds of crimes they commit. If you’re a law-abiding white homeowner with complaints about your local government, you stand very little chance of being lumped together with thieves and vandals who live in your neighborhood and also happen to be white.

Again, maybe a few journalists or TV personalities are thinking, “Here’s a chance to smear blacks”, but I doubt that’s the primary motivation. I think rioting black ghetto is another one of those bright shiny notions. Get it in your head and it’s hard to get it out.

Also, I can’t count the number of times I’ve run into the comment that we shouldn’t “jump to conclusions” because “we don’t know all the facts” or “we don’t know what really happened”. If several white eyewitnesses gave consistent accounts of excessive force by a black police officer, would we be instructed to ignore them in the same way? Or does the fact that the witnesses are black make it easier to discount their testimony? Does the whiteness of the police chief make his version more authoritative?

All of us. We can blame the police for laying out self-justifying and community-diminishing narratives, and we can blame the media for promoting them. But why do we fall for them?

And I do mean we. Like Randy Marsh, I was raised at time when racism was common as air. When I take a step back, I can see the effects of that training in the way my pre-conscious processes shape the perceptions that my conscious mind then wants to treat as facts.

Situations involving black people just look different. Their lives seem less consequential, their deaths less tragic. When I hear of their misfortunes or the injustices they suffer, part of me is waiting for the explanation of how they brought this on themselves. Their stories and testimonies are easily discounted. The thought, “I need to do something about this” does not arise on its own, unless the something involves defending myself and other respectable white people. A crowd of blacks easily stops being a collection of individual humans and becomes a malevolent unit. I expect violence and lawlessness, and when it appears it dominates the picture I see. “Well, there you go,” I think.

I can see how unfair those thoughts are, when I take a step back. But it’s so easy not to.

Unitarian Universalist minister Meg Riley writes:

As a white person in the U.S., I am conditioned from birth to see whiteness as safety — white neighborhoods, white people, white authority figures. My lived experience, my conversations with people of color, and my study of history have shown me over and over that this is a wild and cruel perversion of the truth. But the cultural conditioning is strong. Unless I fight it every day, white superiority seeps into my brain in slow, almost undetectable ways.

A lot of whites get offended by the suggestion that America is a racist society. They know that the vast majority of whites are not KKK-style racists, actively plotting evil against non-whites. (Some are, of course, but it’s not fair to judge the many by the misdeeds of the few — at least not when we’re talking about whites.)

My point is: We don’t have to be KKK-style racists. We can maintain a racist society quite well just by letting our minds do what they do: assemble age-old stereotypes into the narratives we’ve been hearing all our lives.

We can do that, or we can “fight it every day”. I invite you to take the Ferguson Test and see how you’re doing in that fight.

Not a Tea Party, a Confederate Party

Tea Partiers say you don’t understand them because you don’t understand American history. That’s probably true, but not in the way they want you to think.


Late in 2012, I came out of the Lincoln movie with two historical mysteries to solve:

  • How did the two parties switch places regarding the South, white supremacy, and civil rights? In Lincoln’s day, a radical Republican was an abolitionist, and when blacks did get the vote, they almost unanimously voted Republican. Today, the archetypal Republican is a Southern white, and blacks are almost all Democrats. How did American politics get from there to here?
  • One of the movie’s themes was how heavily the war’s continuing carnage weighed on Lincoln. (It particularly came through during Grant’s guided tour of the Richmond battlefield.) Could any cause, however lofty, justify this incredible slaughter? And yet, I realized, Lincoln was winning. What must the Confederate leaders have been thinking, as an even larger percentage of their citizens died, as their cities burned, and as the accumulated wealth of generations crumbled? Where was their urge to end this on any terms, rather than wait for complete destruction?

The first question took some work, but yielded readily to patient googling. I wrote up the answer in “A Short History of White Racism in the Two-Party System“. The second turned out to be much deeper than I expected, and set off a reading project that has eaten an enormous amount of my time over the last two years. (Chunks of that research have shown up in posts like “Slavery Lasted Until Pearl Harbor“, “Cliven Bundy and the Klan Komplex“, and my review of Ta-Nehisi Coates’ article on reparations.) Along the way, I came to see how I (along with just about everyone I know) have misunderstood large chunks of American history, and how that misunderstanding clouds our perception of what is happening today.

Who really won the Civil War? The first hint at how deep the second mystery ran came from the biography Jefferson Davis: American by William J. Cooper. In 1865, not only was Davis not agonizing over how to end the destruction, he wanted to keep it going longer. He disapproved of Lee’s surrender at Appomattox, and when U. S. troops finally captured him, he was on his way to Texas, where an intact army might continue the war.

That sounded crazy until I read about Reconstruction. In my high school history class, Reconstruction was a mysterious blank period between Lincoln’s assassination and Edison’s light bulb. Congress impeached Andrew Johnson for some reason, the transcontinental railroad got built, corruption scandals engulfed the Grant administration, and Custer lost at Little Big Horn. But none of it seemed to have much to do with present-day events.

And oh, those blacks Lincoln emancipated? Except for Booker T. Washington and George Washington Carver, they vanished like the Lost Tribes of Israel. They wouldn’t re-enter history until the 1950s, when for some reason they still weren’t free.

Here’s what my teachers’ should have told me: “Reconstruction was the second phase of the Civil War. It lasted until 1877, when the Confederates won.” I think that would have gotten my attention.

It wasn’t just that Confederates wanted to continue the war. They did continue it, and they ultimately prevailed. They weren’t crazy, they were just stubborn.

The Lost Cause. At about the same time my American history class was leaving a blank spot after 1865, I saw Gone With the Wind, which started filling it in like this: Sadly, the childlike blacks weren’t ready for freedom and full citizenship. Without the discipline of their white masters, many became drunks and criminals, and they raped a lot of white women. Northern carpetbaggers used them (and no-account white scalawags) as puppets to control the South, and to punish the planter aristocrats, who prior to the war had risen to the top of Southern society through their innate superiority and virtue.

But eventually the good men of the South could take it no longer, so they formed the Ku Klux Klan to protect themselves and their communities. They were never able to restore the genteel antebellum society — that Eden was gone with the wind, a noble but ultimately lost cause — but they were eventually able to regain the South’s honor and independence. Along the way, they relieved their beloved black servants of the onerous burden of political equality, until such time as they might become mature enough to bear it responsibly.

A still from The Birth of a Nation

That telling of history is now named for its primary proponent, William Dunning. It is false in almost every detail. If history is written by the winners, Dunning’s history is the clearest evidence that the Confederates won. [see endnote 1]

Margaret Mitchell’s 1936 novel had actually toned it down a little. To feel the full impact of Dunning-school history, you need to read Thomas Dixon’s 1905 best-seller, The Clansman: a historical romance of the Ku Klux Klan. Or watch the 1915 silent movie made from it, The Birth of a Nation, which was the most popular film of all time until Gone With the Wind broke its records.

The iconic hooded Klansman on his horse, the Knight of the Invisible Empire, was the Luke Skywalker of his day.

The first modern war. The Civil War was easy to misunderstand at the time, because there had never been anything like it. It was a total mobilization of society, the kind Europe wouldn’t see until World War I. The Civil War was fought not just with cannons and bayonets, but with railroads and factories and an income tax.

If the Napoleonic Wars were your model, then it was obvious that the Confederacy lost in 1865: Its capital fell, its commander surrendered, its president was jailed, and its territories were occupied by the opposing army. If that’s not defeat, what is?

But now we have a better model than Napoleon: Iraq.

After the U.S. forces won on the battlefield in 1865 and shattered the organized Confederate military, the veterans of that shattered army formed a terrorist insurgency that carried on a campaign of fire and assassination throughout the South until President Hayes agreed to withdraw the occupying U. S. troops in 1877. Before and after 1877, the insurgents used lynchings and occasional pitched battles to terrorize those portions of the electorate still loyal to the United States. In this way they took charge of the machinery of state government, and then rewrote the state constitutions to reverse the postwar changes and restore the supremacy of the class that led the Confederate states into war in the first place. [2]

By the time it was all over, the planter aristocrats were back in control, and the three constitutional amendments that supposedly had codified the U.S.A’s victory over the C.S.A.– the 13th, 14th, and 15th — had been effectively nullified in every Confederate state. The Civil Rights Acts had been gutted by the Supreme Court, and were all but forgotten by the time similar proposals resurfaced in the 1960s. Blacks were once again forced into hard labor for subsistence wages, denied the right to vote, and denied the equal protection of the laws. Tens of thousands of them were still physically shackled and subject to being whipped, a story historian Douglas Blackmon told in his Pulitzer-winning Slavery By Another Name.

So Lincoln and Grant may have had their mission-accomplished moment, but ultimately the Confederates won. The real Civil War — the one that stretched from 1861 to 1877 — was the first war the United States lost.

The missed opportunity. Today, historians like Eric Foner and Douglas Egerton portray Reconstruction as a missed opportunity to avoid Jim Crow and start trying to heal the wounds of slavery a century sooner. Following W.E.B. DuBois’ iconoclastic-for-1935 Black Reconstruction, they see the freedmen as actors in their own history, rather than mere pawns or victims of whites. As a majority in Mississippi and South Carolina, and a substantial voting bloc across the South, blacks briefly used the democratic system to try to better their lot. If the federal government had protected the political process from white terrorism, black (and American) history could have taken an entirely different path.

In particular, 1865 was a moment when reparations and land reform were actually feasible. Late in the war, some of Lincoln’s generals — notably Sherman — had mitigated their slave-refugee problem by letting emancipated slaves farm small plots on the plantations that had been abandoned by their Confederate owners. Sick or injured animals unable to advance with the Army were left behind for the slaves to nurse back to health and use. (Hence “forty acres and a mule”.) Sherman’s example might have become a land-reform model for the entire Confederacy, dispossessing the slave-owning aristocrats in favor of the people whose unpaid labor had created their wealth.

Instead, President Johnson (himself a former slave-owner from Tennessee) was quick to pardon the aristocrats and restore their lands. [3] That created a dynamic that has been with us ever since: Early in Reconstruction, white and black working people sometimes made common cause against their common enemies in the aristocracy. But once it became clear that the upper classes were going to keep their ill-gotten holdings, freedmen and working-class whites were left to wrestle over the remaining slivers of the pie. Before long, whites who owned little land and had never owned slaves had become the shock troops of the planters’ bid to restore white supremacy.

Along the way, the planters created rhetoric you still hear today: The blacks were lazy and would rather wait for gifts from the government than work (in conditions very similar to slavery). In this way, the idle planters were able to paint the freedmen as parasites who wanted to live off the hard work of others.

The larger pattern. But the enduring Confederate influence on American politics goes far beyond a few rhetorical tropes. The essence of the Confederate worldview is that the democratic process cannot legitimately change the established social order, and so all forms of legal and illegal resistance are justified when it tries.

That worldview is alive and well. During last fall’s government shutdown and threatened debt-ceiling crisis, historian Garry Wills wrote about our present-day Tea Partiers: “The presiding spirit of this neo-secessionism is a resistance to majority rule.”

The Confederate sees a divinely ordained way things are supposed to be, and defends it at all costs. No process, no matter how orderly or democratic, can justify fundamental change.

When in the majority, Confederates protect the established order through democracy. If they are not in the majority, but have power, they protect it through the authority of law. If the law is against them, but they have social standing, they create shams of law, which are kept in place through the power of social disapproval. If disapproval is not enough, they keep the wrong people from claiming their legal rights by the threat of ostracism and economic retribution. If that is not intimidating enough, there are physical threats, then beatings and fires, and, if that fails, murder.

That was the victory plan of Reconstruction. Black equality under the law was guaranteed by the 14th Amendment. But in the Confederate mind, no democratic process could legitimate such a change in the social order. It simply could not be allowed to stand, and it did not stand.

In the 20th century, the Confederate pattern of resistance was repeated against the Civil Rights movement. And though we like to claim that Martin Luther King won, in many ways he did not. School desegregation, for example, was never viewed as legitimate, and was resisted at every level. And it has been overcome. By most measures, schools are as segregated as ever, and the opportunities in white schools still far exceed the opportunities in non-white schools.

Today, ObamaCare cannot be accepted. No matter that it was passed by Congress, signed by the President, found constitutional by the Supreme Court, and ratified by the people when they re-elected President Obama. It cannot be allowed to stand, and so the tactics for destroying it get ever more extreme. The point of violence has not yet been reached, but the resistance is still young.

Violence is a key component of the present-day strategy against abortion rights, as Judge Myron Thompson’s recent ruling makes clear. Legal, political, social, economic, and violent methods of resistance mesh seamlessly. The Alabama legislature cannot ban abortion clinics directly, so it creates reasonable-sounding regulations the clinics cannot satisfy, like the requirement that abortionists have admitting privileges at local hospitals. Why can’t they fulfill that requirement? Because hospitals impose the reasonable-sounding rule that their doctors live and practice nearby, while many Alabama abortionists live out of state. The clinics can’t replace them with local doctors, because protesters will harass the those doctors’ non-abortion patients and drive the doctors out of any business but abortion. A doctor who chooses that path will face threats to his/her home and family. And doctors who ignore such threats have been murdered.

Legislators, of course, express horror at the murder of doctors, just as the pillars of 1960s Mississippi society expressed horror at the Mississippi Burning murders, and the planter aristocrats shook their heads sadly at the brutality of the KKK and the White Leagues. But the strategy is all of a piece and always has been. Change cannot stand, no matter what documents it is based on or who votes for them. If violence is necessary, so be it.

Unbalanced. This is not a universal, both-sides-do-it phenomenon. Compare, for example, the responses to the elections of our last two presidents. Like many liberals, I will go to my grave believing that if every person who went to the polls in 2000 had succeeded in casting the vote s/he intended, George W. Bush would never have been president. I supported Gore in taking his case to the Supreme Court. And, like Gore, once the Court ruled in Bush’s favor — incorrectly, in my opinion — I dropped the issue.

For liberals, the Supreme Court was the end of the line. Any further effort to replace Bush would have been even less legitimate than his victory. Subsequently, Democrats rallied around President Bush after 9/11, and I don’t recall anyone suggesting that military officers refuse his orders on the grounds that he was not a legitimate president.

Barack Obama, by contrast, won a huge landslide in 2008, getting more votes than any president in history. And yet, his legitimacy has been questioned ever since. The Birther movement was created out of whole cloth, there never having been any reason to doubt the circumstances of Obama’s birth. Outrageous conspiracy theories of voter fraud — millions and millions of votes worth — have been entertained on no basis whatsoever. Immediately after Obama took office, the Oath Keeper movement prepared itself to refuse his orders.

A black president calling for change, who owes most of his margin to black voters — he himself is a violation of the established order. His legitimacy cannot be conceded.

Confederates need guns. The South is a place, but the Confederacy is a worldview. To this day, that worldview is strongest in the South, but it can be found all over the country (as are other products of Southern culture, like NASCAR and country music). A state as far north as Maine has a Tea Party governor.

Gun ownership is sometimes viewed as a part of Southern culture, but more than that, it plays a irreplaceable role in the Confederate worldview. Tea Partiers will tell you that the Second Amendment is our protection against “tyranny”. But in practice tyranny simply means a change in the established social order, even if that change happens — maybe especially if it happens — through the democratic processes defined in the Constitution. If the established social order cannot be defended by votes and laws, then it will be defended by intimidation and violence. How are We the People going to shoot abortion doctors and civil rights activists if we don’t have guns?

Occasionally this point becomes explicit, as when Nevada Senate candidate Sharron Angle said this:

You know, our Founding Fathers, they put that Second Amendment in there for a good reason and that was for the people to protect themselves against a tyrannical government. And in fact Thomas Jefferson said it’s good for a country to have a revolution every 20 years. I hope that’s not where we’re going, but, you know, if this Congress keeps going the way it is, people are really looking toward those Second Amendment remedies and saying my goodness what can we do to turn this country around? I’ll tell you the first thing we need to do is take Harry Reid out.

Angle wasn’t talking about anything more “tyrannical” than our elected representatives voting for things she didn’t like (like ObamaCare or stimulus spending). If her side can’t fix that through elections, well then, the people who do win those elections will just have to be intimidated or killed. Angle doesn’t want it to come to that, but if liberals won’t yield peacefully to the conservative minority, what other choice is there?

Gun-rights activist Larry Pratt doesn’t even seem regretful:

“The Second Amendment is not for hunting, it’s not even for self-defense,” Pratt explained in his Leadership Institute talk. Rather, it is “for restraining tyrannical tendencies in government. Especially those in the liberal, tyrannical end of the spectrum. There is some restraint, and even if the voters of Brooklyn don’t hold them back, it may be there are other ways that their impulses are somewhat restrained. That’s the whole idea of the Second Amendment.”

So the Second Amendment is there not to defend democracy, but to fix what the progressive “voters of Brooklyn” get wrong.

It’s not a Tea Party. The Boston Tea Party protest was aimed at a Parliament where the colonists had no representation, and at an appointed governor who did not have to answer to the people he ruled. Today’s Tea Party faces a completely different problem: how a shrinking conservative minority can keep change at bay in spite of the democratic processes defined in the Constitution. That’s why they need guns. That’s why they need to keep the wrong people from voting in their full numbers.

These right-wing extremists have misappropriated the Boston patriots and the Philadelphia founders because their true ancestors — Jefferson Davis and the Confederates — are in poor repute. [4]

But the veneer of Bostonian rebellion easily scrapes off; the tea bags and tricorn hats are just props. The symbol Tea Partiers actually revere is the Confederate battle flag. Let a group of right-wingers ramble for any length of time, and you will soon hear that slavery wasn’t really so bad, that Andrew Johnson was right, that Lincoln shouldn’t have fought the war, that states have the rights of nullification and secession, that the war wasn’t really about slavery anyway, and a lot of other Confederate mythology that (until recently) had left me asking, “Why are we talking about this?”

By contrast, the concerns of the Massachusetts Bay Colony and its revolutionary Sons of Liberty are never so close to the surface. So no. It’s not a Tea Party. It’s a Confederate Party.

Our modern Confederates are quick to tell the rest of us that we don’t understand them because we don’t know our American history. And they’re right. If you knew more American history, you would realize just how dangerous these people are.



Endnotes

[1] The other clear evidence stands in front of nearly every courthouse in the South: statues of Confederate heroes. You have to be blind not to recognize them as victory monuments. In the Jim Crow era, these stone sentries guarded the centers of civic power against Negroes foolish enough to try to register to vote or claim their other constitutional rights.

Calhoun way up high

In Away Down South: a history of Southern identity, James C. Cobb elaborates:

African Americans understood full well what monuments to the antebellum white regime were all about. When Charleston officials erected a statue of proslavery champion John C. Calhoun, “blacks took that statue personally,” Mamie Garvin Fields recalled. After all, “here was Calhoun looking you in the face and telling you, ‘Nigger, you may not be a slave but I’m back to see you stay in your places.’ ” In response, Fields explained, “we used to carry something with us, if we knew we would be passing that way, in order to deface that statue — scratch up the coat, break up the watch chain, try to knock off the nose. … [C]hildren and adults beat up John C. Calhoun so badly that the whites had to come back and put him way up high, so we couldn’t get to him.”

[2] The vocabulary of this struggle is illuminating. A carpetbagger was a no-account Northerner who arrived in the South with nothing more than the contents of a carpetbag. A scalawag was a lower-class Southern white who tried to rise above his betters in the post-war chaos. The class-based nature of these insults demonstrates who was authorizing this history: the planter aristocrats.

For a defense of the claim that the aristocrats intentionally led the South into war, see Douglas Egerton’s Year of Meteors: Stephen Douglas, Abraham Lincoln, and the Election that Brought on the Civil War.

[3] Though Congress had to find other “high crimes and misdemeanors” for their bill of impeachment, Johnson’s betrayal of the United States’ battlefield victory was the real basis of the attempt to remove him.

[4] Jefferson Davis and the Confederates also misappropriated the Founders. It started with John Calhoun’s Discourse on the Constitution and Government of the United States, published posthumously in 1851, which completely misrepresented the Founders and their Constitution. Calhoun’s view (that the Union was a consortium of states with no direct relationship to the people) would have made perfect sense if the Constitution had begun “We the States” rather than “We the People”.

Calhoun disagreed with Jefferson on one key point: All men are not created equal.

Modern conservatives who attribute their views to the Founders are usually unknowingly relying on Calhoun’s false image of the Founders, which was passed down through Davis and from there spread widely in Confederate folklore.

Can Conservatives Solve Poverty?

 

Paul Ryan engages the problem, but can’t remove his ideological blinders.


Paul Ryan has spent years developing a reputation as Captain Cut: cut discretionary spending, cut entitlements, and most of all cut any program designed to help the poor. His budget proposals have meshed well with the other part of his reputation (which he sometimes claims and sometimes disowns): a follower of Ayn Rand, the author/philosopher who saw politics as a competition between Makers and Takers.

Recently, though, Ryan has been coming under the influence of the “reform conservatives” or “reformicons”: a small group of young conservative intellectuals like Yuval Levin and Ramesh Ponnuru — occasionally supported by the NYT’s conservative columnists Ross Douthat and David Brooks — who believe the Republican Party can’t in win the long run as the Party of No, and yet who don’t want to return to the center and compromise with Democrats. Instead, they want to see the GOP claim the Party of Ideas mantle by developing a set of distinctively conservative approaches to solving the very real problems that face America’s middle class: paying for health care, educating their children, finding good jobs, and so on.

And somewhere along the way, conservatives need to come up with their own plan for dealing with poverty, either because they actually care about the poor, or (more cynically) because they know a lot of middle-class voters don’t respond well to the harsh image conservatives have been cultivating. So the message has to be: “We care … we just care differently.”

The root cause of poverty: poor people. But if reform conservatism is going to take over the Republican Party rather than split off from it, it needs to stay in tune with the core sensibilities of the conservative movement. In particular, it can’t change the conservative view of the root cause of poverty: poor people.

I mean, what else could it be? Poverty can’t be capitalism’s fault, because capitalism is the only moral economic system. The problem can’t be the rich soaking up too much of the national output, because the rich are job creators whose wealth benefits everyone. Poverty can’t come from racism, because racism ended in the 1960s. (So if poverty seems to be concentrated in certain racial groups, they must have a cultural problem.)

Consequently, any conservative poverty program has to focus on fixing the character flaws of poor people: They need discipline. They need a work ethic. They need to learn to save their pennies rather than blowing everything on drugs and bling, and to control their libidos rather than spawning children they can’t feed.

The only other possible place to put the blame is government: Government has taken advantage of poor people’s lack of character by offering them benefits. This has made them dependent on government the way an addict is dependent on his drug. Addiction — pushers and addicts — is the fundamental conservative model of the liberal welfare state.

That’s their explanation of why people are still poor, 50 years after LBJ declared war on poverty: Liberals never intended to end poverty, any more than pushers want to end drug addiction. They just want to keep poor people dependent on government benefits, so that they’ll elect Democrats to keep the juice flowing.

So now you can see the outlines of a conservative poverty message: demand more of poor people, teach them middle-class virtues, target benefits more efficiently, and keep benefits flowing just long enough to wean the poor away from their dependency. Then they’ll be back on the path to wealth like the rest of America.

That message won’t convert many poor people, but that’s not really where it’s aimed. It’s supposed to comfort suburban moms, who lean Republican on other issues, but need to believe they’re voting for a plan more compassionate than Scrooge’s prisons and workhouses.

Ryan’s two reports. Paul Ryan is approaching this issue systematically, laying groundwork for the long term rather than grabbing for a few days of headlines.

He started down this path in March, with The War on Poverty: 50 Years Later (which I reviewed). WoP@50 identified and evaluated 92 separate federal programs aimed at helping the poor, and suggested that the government should have a more integrated approach to poverty that builds on the programs that work and eliminates the ones that don’t. He continued in July with Expanding Opportunity in America, which sketches a framework for that integrated approach without making any cost estimates other than to stipulate that the whole program should be “deficit neutral”.

This is not a budget-cutting exercise -— this is a reform proposal. This consolidation does not make judgments about an optimal level of spending.

EOiA‘s approach has two pieces: An expansion of the earned income tax credit to put money directly into the hands of the working poor, and block grants to the states who can use them to provide a variety of other services currently provided either by the federal government or a federal/state partnership: direct welfare payments, job training, child care, drug treatment, housing subsidies, food support, and so on.

Case managers. So far none of that is surprising. But the next piece is: Ryan imagines a system in which the government does not define a uniform set of entitlements that anyone fitting the definition automatically can get. Instead, he envisions each aid recipient working with a case manager who has discretion to create an individualized package of benefits.

Together, client and manager would work out a plan to solve whatever character issues and lack of qualifications prevent the client from getting a good job and leaving government assistance behind. This plan would become a “contract” that the client would sign and the manager would enforce.

Under each life plan, if the individual meets the benchmarks ahead of schedule, then he or she could be rewarded. For example, if the goal of an individual’s plan is to find a job within six months, and he or she starts working within three months, he or she could receive a bonus. Bonuses could take a number of creative forms, such as a savings bond. … [But] the opportunity plan could stipulate consequences for breaches of its terms, most likely immediate sanctions and a reduction in benefits.

If you’re an optimist like Reihan Salam, you can picture this working marvelously.

The theory behind having smart, dedicated caseworkers working on behalf of people who are down on their luck is that spending a bit more time and money now could help save time and money later. If someone takes the time to understand your personal situation and the particular challenges you face, there’s a better likelihood you’ll have a successful outcome down the line.

… People with low or no earnings … face diverse obstacles. Some need short-term help to, say, fix their car, which will allow them to commute to work, or to make a deposit on a rental apartment. Others don’t have the skills they need to earn enough to support themselves and, for whatever reason, will have a very hard time acquiring them. Sure, you could give both kinds of people food stamps and call it a day. Or you could recognize that one-size-fits-all programs don’t do justice to the ways in which individual circumstances vary.

But you can also picture the amount of power a case manager would have over her clients and wonder how to prevent abuse. And that means paying not just case managers (who might spend a considerable amount of time on each case), but also inspectors and supervisors to keep an eye on the case managers. Whether the efficiency gained by tailoring benefits would pay for that overhead is debatable.

Also, Ryan imagines the case workers not being government employees. Catholic Charities comes up in one example, and he might even be thinking of privatized for-profit case management. The first possibility makes me wonder how the law would prevent Guru Bob Charities from taking over the lives of Guru Bob’s followers. And the second has me thinking about the corruption that has accompanied privatized public schools. In a state that doesn’t seem concerned about its poor — Mississippi comes to mind — who’s going to care if the federal block grant winds up as corporate profit?

And finally, what happens if you get to the point in your contract where you’re supposed to be working, but the economy has crashed and there just are no jobs? Or there are only part-time minimum-wage jobs that won’t get you above the poverty level? The whole concept suffers from the Musical Chairs Fallacy*: No matter how quick or alert you train the players to be, somebody’s going to be eliminated if there aren’t enough chairs.

Jamelle Bouie calls the whole approach “breath-takingly paternalistic” and “wrong-headed”.

At some point in their lives, millions of Americans will experience a short spell of poverty. Not because they don’t have a plan to fix their lives or lack the skills to move forward, but because our economy isn’t run to create demand for labor, isn’t equipped to deliver stable work to everyone who wants it, and wasn’t built to address the distributive needs of everyone who works.

I am struck by the difference between how we think of the poor and how we think of corporations. If a poor person gets help and then doesn’t look for a job as hard as we think he should, we are morally outraged. But if a corporate tax cut is justified by the jobs it will create, and some corporation pockets the money but doesn’t create any jobs … well, no big deal. We take for granted that a corporation will be clever in the way it manipulates government programs, but the same cleverness in a poor person is reprehensible.

Independence. For the most part, Ryan’s committee has studied the issue by talking to conservative poverty experts rather than to poor people. (Why would they? If poor people were smart, they wouldn’t be poor.) But they did let one impoverished woman testify, and the culture clash was obvious.

It centered on the word independence. Tianna Gaines-Turner is a mother of three who is married and lives with her husband. They both work low-paying jobs. Her children all suffer from asthma and two are epileptic. Rep. Todd Rokita (R-IN) offered a thought experiment in which current poverty programs were increased fivefold. People would be lifted out of poverty, he said, but it wouldn’t “break of the cycle of dependency”. Gaines-Turner replied, “I am independent on the program.” In other words, her family can have its own apartment and she and her husband can take care of their own children, rather than being homeless or in a shelter or giving their children up to someone else.

It’s precisely that “independence on the program” that Ryan would do away with. Rather than claiming benefits her situation entitles her to, Gaines-Turner would go hat-in-hand to a case manager, who would tell her how to live and cut her off if she didn’t obey.

What Ryan gets right. The two main ways to help the working poor are by increasing either the minimum wage (where the additional money comes from the employer) or the earned income tax credit (where it comes from the government). There’s an argument to be had over which is better, but either is better than nothing. I see the EITC as largely a subsidy to WalMart (which can go on paying wages its workers can’t live on), but I can swallow that if it’s the only politically viable choice.**

Ryan also proposes making the EITC easier to collect, so that you don’t have wait and file a tax return at the end of the year. I can get behind that.

And the most important change in conservative thinking is buried deep in EOiA: Ryan has noticed how lives and families are disrupted by long prison sentences for non-violent drug offenders.

A growing body of research exposes the high costs of incarceration. To help low-risk, non-violent offenders re-enter society, rebuild their families, and pursue careers, this proposal would revise mandatory-minimum guidelines and couple expanded enrollment in rehabilitative programing with an earned-time-credit system in federal prisons.

Liberals should jump on this. If Ryan is serious, it could have a huge impact.

But is he serious? I really have no idea. Quite possibly these reports are all window dressing, so that Republicans can say, “We have our own poverty plan.” Presumably in a few months Ryan will produce the third report in his trilogy, where he starts using numbers. That should tell us something.


* A version of the Composition Fallacy.

** Ryan argues that increasing the minimum wage would kill jobs that poor people need, but that point undermines his worldview. You can’t logically claim that anyone who tries hard enough can find a job at $7.25, but that job availability suddenly becomes a problem at $9. The overall ability of the economy to create enough jobs either is a problem or it isn’t. You can’t assert it in some situations and ignore it in others.

 

Republican Judges Take Another Shot at ObamaCare

If ObamaCare were a TV series, every episode would be a cliffhanger.


Like a superhero’s girlfriend or a soap opera heroine, ObamaCare always seems to be in danger. It survived several apparently fatal crises on its way to passing Congress. After it passed, the new Republican House was going to repeal it or defund it. Then conservative lawyers created a completely new theory of the Commerce Clause to make it unconstitutional — and got five Supreme Court justices to agree with them — only to see Chief Justice Roberts rescue the law at the last minute by re-interpreting a penalty as a tax. (But the Court did allow states to opt out of Medicaid expansion, keeping millions of the working poor from getting health care, and probably killing thousands of them.) Then Ted Cruz was going to lead a campaign to force President Obama to accept repeal by shutting down the government and threatening to wreck the world economy.

After the program started to get rolling, the web site was never going to work, and people were never going to sign up, and the people who did sign up would be old and sick, and the rates were going to astronomical, and more people would lose coverage than gain it, and it just was all going to collapse of its own weight. Democrats would kill ObamaCare themselves, just to keep the disaster from destroying their party forever.

If ObamaCare were a TV series, every episode would be a cliffhanger.

But like TV cliffhangers, the disaster never really arrives. ObamaCare shows every sign of working more-or-less the way it was designed to, except for those minimum-wage folks in Texas (and other red states) who can’t get Medicaid.

But it’s still not out of the woods. Tuesday, two Bush-appointed judges on the D. C. Court of Appeals lobbed the latest bomb in ObamaCare’s direction: The way the law is worded, people in 36 states are ineligible for the subsidies that put the “affordable” in the Affordable Care Act. In an opinion piece at Fox News, Betsy McCaughey — the woman who created the “death panels” hoax that Sarah Palin made famous — announced that the ruling had sent ObamaCare into a “death spiral”.

I’ll get into the details of this in a minute, but first let me spoil the suspense: I don’t think this bullet is going to kill ObamaCare either. Not because the legal ruling is bogus and partisan — it is, but the Supreme Court has five conservative judges who might be happy to issue another bogus partisan ruling against ObamaCare — but because the stock price of health insurance companies didn’t budge when the D. C. Appeals Court’s surprise came out.

Politicians and pundits might predict all kinds of things, and who knows whether they really believe any of it. But what people do with their money reflects what they genuinely expect.

ObamaCare is great for insurance companies. (That’s the biggest liberal complaint about it.) And as the good news about ObamaCare has rolled in, health insurance stocks have had a nice run. United Health, for example, started 2014 at $71.65 and climbed steadily upward to open Monday at $84.68. Back on Inauguration Day, 2009, you could have bought a share for $24.16.

So the beginning of an ObamaCare death spiral would be bad for insurance companies and should have sent investors heading for the exits. (Take your profits. Sell, sell, sell!) But UNH closed Tuesday at $86.05, and closed Friday right back where it opened Monday, at $84.68. The whole week was a total non-event for UNH.

Just about by definition, investors are people with money. And people with money tend to be Republicans, who are more likely than most to live inside the conservative bubble and take bad news about ObamaCare seriously. But they’re not taking this threat seriously. So I’m not either.

Now let’s get down to the legal arguments. Fortunately, we get to look at the same facts from two different angles, because on the same day the Fourth Circuit Court of Appeals ruled the opposite way on a virtually identical case. The D.C. court’s judges vote 2-1 and the Fourth Circuit 3-0, so the net vote was 4 judges to 2 in favor of the ObamaCare subsidies.

The issue. The original plan in the Affordable Care Act was for each state to set up its own health-insurance exchange, like kynect in Kentucky or Covered California. But just in case one or two states didn’t, the law empowered the federal government to set up an exchange for a state.

At the time, I don’t think anyone in the administration expected the level of obstruction the program has faced. Common sense would tell you that a state government would jump at the chance to tailor the program the way it wants rather than have the feds make all the decisions. But these are not sensible times, so there are 36 states with federally-run exchanges.

The basic logic of ACA is achieve near-universal healthcare coverage by

  • expanding Medicaid to cover the working poor.
  • subsidizing insurance premiums via a tax credit for those somewhat better off.
  • using a tax/penalty to push everyone who isn’t already covered by either an employer or the government to buy private insurance on his/her state exchange.

But the line in the law that authorized the tax credits was worded so that they applied to taxpayers who are

covered by a qualified health plan … that was enrolled in through an Exchange established by the State under section 1311

So if you interpret that line in a context-free way, you might think that people in those 36 states with federally-created exchanges don’t get the tax credits. That completely screws up the logic of the plan, and absolutely no one at the time the law was passed thought it would work that way. (In particular, I don’t believe this point ever came up when states were debating whether or not to establish exchanges.) But words mean what they mean, right?

How this would resolve in a sane world. This is what is known as a drafting error, and they happen from time to time. If they aren’t too serious, everybody ignores them. (If a law would happen to mis-spell Connecticut, judges wouldn’t decide that Congress intended to refer to some previously unknown state.) But if the error looks like it will cause some real issue, Congress just fixes it. Or at least it used to. Former Bush Treasury official Phillip Swagel was focused on different errors last fall when he wrote:

It should be possible for the larger (and incredibly heated) debate over the merits of Obamacare to proceed even while specific flaws in the legislation are addressed

He gave the example of a 2005 transportation bill that contained earmarks for projects that no longer existed. A subsequent bill fixed this. But Swagel makes a major understatement:

Legislation to make “technical corrections” has become relatively infrequent as Congressional partisanship has mounted over the decades

These kinds of fixes didn’t used to be partisan issues. It didn’t matter whether or not you supported the original law, you wanted mistakes fixed. But not any more. Now, the worse a law works, the better for the party that opposed it to begin with. Bad for the country, but good for the party. And the party is what’s really important.

How the IRS tried to resolve it. Implementing tax credits falls to the IRS, which now had to implement something that didn’t quite make sense. They did the sensible thing and interpreted the law so that the federal government would be acting in the role of the state when it established a state exchange. So in practice “an Exchange established by the State” meant an exchange established by the state or by the federal government acting for the State. It explained:

[T]he relevant legislative history does not demonstrate that Congress intended to limit the premium tax credit to State Exchanges. Accordingly, the final regulations maintain the rule in the proposed regulations [i.e., that policies bought on federally-established exchanges still qualify for tax credits] because it is consistent with the language, purpose, and structure of section 36B and the Affordable Care Act as a whole.

How this became a court case. Courts can’t just rule on whatever issues they feel like addressing. Somebody has to bring them a case, and the person who brings it has to have “standing”. In other words, the person who sues has to present a real injury that was caused by whoever is being sued and that a court has the power to remedy. (So “My girl friend doesn’t love me any more” might be a real injury caused by a specific woman, but what do you expect the court to do about it?)

Finding a plaintiff with standing took some doing in this case, because who exactly is being hurt if people get tax credits to help pay for their health insurance? (You might think, “the taxpayers”, but those kinds of suits are always thrown out of court. An injury needs to be more specific than just your tax money being spent in some way you find inappropriate.) Eventually, ObamaCare opponents came up with this plan: The individual mandate only applies to people who can find health insurance for less than 8% of their income. So if a guy is just poor enough that unsubsidized insurance would be more than 8% of his income, but subsidized insurance would be less than 8%, then the subsidy is what makes the individual mandate apply to him. That’s his injury.

The government argued that giving people a good deal on health insurance doesn’t really injure them, but neither court bought it. Both the D.C. Circuit and the Fourth Circuit said the suits had standing. Politically, though, it’s still a point worth making: This was the kind of legal contortion conservatives had to come up with to file this suit.

What the four judges said. Naturally, there is precedent for this kind of thing. I’ll let Judge Robert Gregory of the Fourth Circuit explain:

Because this case concerns a challenge to an agency’s construction of a statute, we apply the familiar two-step analytic framework set forth in Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). At Chevron’s first step, a court looks to the “plain meaning” of the statute to determine if the regulation responds to it. If it does, that is the end of the inquiry and the regulation stands. However, if the statute is susceptible to multiple interpretations, the court then moves to Chevron’s second step and defers to the agency’s interpretation so long as it is based on a permissible construction of the statute.

Notice where the burden of proof lies: In order to win their case, the plaintiffs have to convince the court that the statute is unambiguous and that the IRS is just making stuff up to interpret it any other way. (Gregory, BTW, is the only judge of the six to rule opposite to the party that appointed him: Though he was originally a temporary recess appointment by Bill Clinton, he owes his permanent appointment to George W. Bush.)

The argument over what Congress intended was wide-ranging, covering how similar words are used in other parts of the law, how this provision fits or doesn’t fit with other provisions, how it works in the overall structure of ObamaCare, and the “legislative history”, i.e., what the Congresspeople were actually talking about when they passed it.

Unfortunately, Congress never argued about whether or not the subsidies should apply on federal exchanges — probably because no one involved ever conceived that they wouldn’t; it just wasn’t an issue. But that means there is no clear legislative history. It’s like that down the line: Judge Gregory allows that the IRS interpretation seems more likely to him, but that there’s not a smoking gun either way. But …

when that is so, Chevron dictates that a court defer to the agency’s choice.

and so the subsidies stand.

Senior Judge Andre Davis was even less persuaded by the plaintiffs:

They have a clear choice, one afforded by the admittedly less-than-perfect representative process ordained by our constitutional structure: they can either pay the relatively minimal amounts needed to obtain health care insurance as provided by the Act, or they can refuse to pay and run the risk of incurring a tiny tax penalty. What they may not do is rely on our help to deny to millions of Americans desperately-needed health insurance through a tortured, nonsensical construction of a federal statute whose manifest purpose, as revealed by the wholeness and coherence of its text and structure, could not be more clear.

What the two judges said. Judge Thomas Griffith of the D. C. Circuit also cited the Chevron case, but placed the bar of interpretation much higher:

We therefore give the absurdity principle a narrow domain, insisting that a given construction cross a “high threshold” of unreasonableness before we conclude that a statute does not mean what it says. Cook, 594 F.3d at 891. A provision thus “may seem odd” without being “absurd,” and in such instances “it is up to Congress rather than the courts to fix it,” even if it “may have been an unintentional drafting gap.” Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 565 (2005)

Griffith goes on to examine all the places in the law where differentiating between the state-established and federal-established exchanges might seem odd, and is able to find possible (though occasionally convoluted) meanings that Congress might have intended.

Senior Judge Raymond Randolph agreed, but the dissent by Senior Judge Harry Edwards is blunt:

This case is about Appellants’ not-so-veiled attempt to gut the Patient Protection and Affordable Care Act (“ACA”). … The majority opinion ignores the obvious ambiguity in the statute and claims to rest on plain meaning where there is none to be found. In so doing, the majority misapplies the applicable standard of review, refuses to give deference to the IRS’s and HHS’s permissible constructions of the ACA, and issues a judgment that portends disastrous consequences. … Simply put, §36B(b) interpreted as Appellants urge would function as a poison pill to the insurance markets in the States that did not elect to create their own Exchanges. This surely is not what Congress intended.

What happens next? The next step is to appeal the D. C. court’s ruling to the full court, rather than the three-judge panel. Since this is a partisan ruling that only a partisan Republican judge will uphold, the full court will reverse it.

One of the Republican moves that pushed the Senate’s Democratic majority to eliminate the filibuster on judicial nominations (other than the Supreme Court) was the blanket filibuster on any judge President Obama might appoint to the D. C. circuit. At the time, the court had a 4-4 balance of Republican and Democratic appointees and three vacancies. Republicans charged that filling the vacancies (as the Constitution instructs the President to do) would be “court packing“. After the filibuster change, Obama’s nominees were approved, so the full court has a 7-4 majority of Democratic appointees.

If the two appeals courts remained in disagreement, the case would have to go the Supreme Court (because you can’t have a law mean one thing in one circuit and another somewhere else). But if the full D. C. court reverses its three-judge panel’s ruling, the Supremes could decide whether or not they want to get involved.

If they do, I don’t think they’ll overturn the subsidies. The Roberts Court practices conservative activism, but prefers to do it by stealth. (That’s why Roberts nixed the first attempt to skewer ObamaCare in the courts, IMHO.) This would be a nakedly political, we’re-sticking-it-to-the-Democrats ruling. WaPo’s Paul Waldman summarizes:

Now pause for a moment and consider what it is Republicans are asking the courts to do here. They want millions of Americans to lose the subsidies they got this year, in many if not most cases making health insurance completely unaffordable for them, and their justification is this: We found a mistake in the law, so you people are screwed.

I can imagine Thomas, Alito, and Scalia going that way, but Roberts and Kennedy will be reluctant. ObamaCare will escape this cliff, and survive until the next episode.

Gaza, as seen from a distance

Last week I punted on the Israel/Gaza situation, because what I was reading contained more noise and spin than information and insight, and I didn’t want to make that situation worse. This week I can do a little better.

Immediate causes. ThinkProgress provides a timeline tracing the back-and-forth escalation that began with the disappearance (on June 12) of three Israeli teens who later (June 30) were found dead. Israel blamed Hamas, whose leaders didn’t claim responsibility (as they usually do; Hamas’ leadership constantly battles the perception that it’s toothless against Israel), and began arresting Hamas leaders and their associates in the West Bank, including some released in a previous deal. Hamas saw the kidnapping as a pretext for Israel to renege on that deal, and fired (mostly ineffective) rockets from Gaza in protest.

From there things escalated as they so often do. Israeli troops entered Gaza Thursday night.

A different angle on the immediate causes of the conflict comes from Nathan Thrall’s op-ed in the NYT. Since 2007, the limited autonomy that Israel allows Palestinians has been split between Hamas in Gaza and Fatah in the West Bank. But Hamas has fallen on hard times recently because of the rapidly diminishing value of its alliances. You can think of Hamas as the Palestinian franchise of the Muslim Brotherhood. The Egyptian franchise controlled that country for about a year between the fall of the Mubarak government in 2011 and the subsequent military coup, but is now struggling to survive a major crackdown. The Assad regime in Syria was another Hamas ally, but it is now focused on its own problems. Iran’s aid has also diminished.

So in June Hamas was driven to reconcile with Fatah, more or less turning Gaza over to the Palestinian Authority in the West Bank, but leaving its 43,000 civil servants in place. Currently, none of those people is being paid, mostly for reasons having to do with Israel and the United States. (Qatar is willing to pay them until something else can be worked out, but that solution is being blocked.) The other thing Hamas hoped to accomplish by getting itself out of the governance business was that Egypt might re-open its border with Gaza, which would be a big deal in the Gazan economy. That’s not happening either.

So Hamas wants:

  • Israeli troops out of Gaza.
  • End the recent Israeli crackdown on Hamas’ people and release the ones who had nothing to do with the kidnapping.
  • Get the Gaza civil servants paid somehow.
  • Open Gaza’s Egyptian border.

Israel wants Hamas to stop firing rockets into Israel and to stop kidnapping/murder operations in Israel. (The rockets don’t seem to be doing a whole lot of harm, but it’s the principle of the thing.) I’m not sure what Egypt’s military government wants.

This is where the topsy-turvy logic of the situation comes into play: A ceasefire doesn’t get Hamas most of what it wants — which is why it rejected an Egyptian proposal — but all Hamas has to threaten Israel with at the moment (beyond those pinprick rockets) is bad publicity. The more Gazan civilians die, the more support builds for boycotts of Israel and divestment from companies that do business with Israel. It’s like: “If you don’t give us what we want, you’ll have to kill more of us, and then you’ll be sorry.”

In the long run, how does this end? Whenever the Israel/Palestine conflict flares up, it’s easy to get lost in arguments about the most recent actions of each side; whether what one side just did justifies what the other just did, and so forth. I think it’s important to keep pulling back to the big question: How does this conflict end? I can only see four outcomes:

  1. Two states. Some border line is agreed upon between Israel and Palestine, and they become two independent countries with full sovereignty.
  2. One state with democracy. The Palestinians are made full citizens of a unified state. Given demographic trends, they are eventually the majority.
  3. It never ends. The Palestinians remain a subject population ruled or otherwise dominated by Israel. Israelis continue to be targets of terrorist resistance.
  4. Ethnic cleansing. Israel kills or expels large numbers of Palestinians (or otherwise induces them to emigrate), leaving behind a Greater Israel with a clear and sustainable Jewish majority.

It’s important to realize that anyone who finds both (1) and (2) unacceptable is de facto advocating (3) or (4), because those are the only choices.

Some Israelis seem to believe in an outcome (3A), in which the Israeli occupation continues, but the Palestinians are so beaten down that they submit peacefully. I’m pretty sure that’s a fantasy. I don’t know what level of oppression would be necessary to make (3A) happen (if it’s possible at all), but everything that the Russians have been willing to unleash on the Chechens has been insufficient. Israelis need to take that example seriously: They’d need a strongman stronger than Putin to make (3A) work.

Another version of (3A) is: Palestinians end all resistance for a long enough time that Israelis feel safe, and then Israel will consider what rights the Palestinians should have. That’s another fantasy. Nothing in the history of Israel’s dealings with the Palestinians entitles them to that level of trust. In fact, I don’t trust the Israelis that far, and I’ve got no skin in the game at all. I believe that once the terrorist threat subsided, Israel would forget about the Palestinians until the violence restarted, and then claim all over again that no deal can be reached until the violence stops.

So I repeat: The four outcomes listed above are the only ones.

With that in mind, it’s discouraging to read the recent remarks by Prime Minister Netanyahu.

I think the Israeli people understand now what I always say: that there cannot be a situation, under any agreement, in which we relinquish security control of the territory west of the River Jordan.

That eliminates (1). (2) is obviously unthinkable to anyone who values Israel’s identity as a Jewish state. So this goes on forever or there’s ethnic cleansing.

Moral calculus. A lot of the media back-and-forth concerns the morality of the two sides. The argument comes down to: Hamas targets civilians while Israel takes steps to avoid killing civilians, but Israel’s weapons are so much more effective that they end up killing far more civilians than Hamas does, on the order of hundreds to one.

Another reason for the disparity is that Israel prioritizes civil defense, while Hamas puts military targets in civilian areas and doesn’t even build bomb shelters. As Netanyahu put it on Fox News:

Here’s the difference between us. We are using missile defense to protect our civilians, and they’re using their civilians to protect their missiles.

Charles Krauthammer quoted that line in a WaPo column called “Moral Clarity in Gaza“.

Personally, I see this less as a moral difference between the two sides than a difference in their tactical situations. Gaza has no way to stop the Israeli attack by force. Israel will stop when the number of dead civilians creates enough international pressure. So Gazan civil defense would just enable the Israeli attacks to go on longer, with the same eventual body count. What’s Hamas’ motivation to go that route?

And that brings me to a moral principle that I think deserves more attention: Asymmetric warfare is morally asymmetric. In other words: If you are so much more powerful than your adversaries that your decisions create the gameboard and dictate the moves available to the players, then your actions have to be judged differently. You bear responsibility for the shape of the game itself, and not just for the moves you make.

Friendly frustration. Even pro-Israel commentators at some level realize the tactical and strategic realities. Krauthammer writes:

[Hamas rocket fire] makes no sense. Unless you understand, as Tuesday’s Post editorial explained, that the whole point is to draw Israeli counterfire.

Taken for granted here is that the Israelis are helpless in the face of this masterful strategy: They must fire back, even if that’s what Hamas wants. Perversely, Krauthammer presents Hamas as the player powerful enough to have choices, while Israel is driven by necessity.

Friends of Israel more in touch with reality are frustrated by the Netanyahu government’s lack of vision. Fred Kaplan describes the short-term logic of invading Gaza, but then laments:

The Israeli government seems to have forgotten how to think strategically; at the very least, they have a self-destructive tendency to overplay their hands. … Until this conflict with Gaza, Israel had been enjoying a level of security it hadn’t seen in many years. Terrorist attacks from the West Bank are all but nonexistent. Its enemies to the north—Syria, Hezbollah, and a gaggle of Islamist terrorist movements—are embroiled in their own wars with one another. Egypt is once again in the firm grip of a military government committed to putting down the Muslim Brotherhood and its allies (including Hamas). Iran has—at least for now—frozen its nuclear program, as a result of negotiations led by the Obama administration. … Instead of capitalizing on Israel’s unusually strong strategic position, Netanyahu risks squandering it—destroying what little support he has in the West and making it hard for Arab governments that share his interests (Egypt, Jordan, and, even now, the Palestinian Authority) to sustain their tacit alliances.

At The Jewish Daily Forward, J. J. Goldberg marked yesterday as the moment when the tide turned against Israel. After initially receiving a certain amount of international support — or at least seeing Hamas condemned in equal-or-worse terms

What happened next was something that’s happened over and over in Israel’s military operations in recent years: The government overestimated the depth of its international support and decided to broaden the scope of the operation. … The sympathy Israel won because of the kidnapping and shelling is melting before our eyes. Until the weekend, protests of Israel’s actions were limited to street demonstrations by leftists and Muslims in various cities around the world, with almost no governmental backing. Now governments are starting to switch sides. … Many Israelis will argue in the next few days that the mounting international criticism is hypocritical, that Israel has a right to defend itself and that the fast growing civilian toll is entirely Hamas’ fault. Whatever the merits of the arguments, they have lost their audience.

Meta-discussion. In some ways as interesting as the discussion itself is the meta-discussion about how to discuss such a divisive topic, where the sides are dug in so deeply and so many of the arguments rehearsed and ready to pull off the shelf. Also at The Jewish Daily Forward, Jay Michelson posts “5 Ways To Turn Down the Social Media Flame“. He’s basically rediscovering the three principles of Quaker discussions: Is it true? Is it kind? Is it necessary? And he asks:

If a bunch of privileged Americans with so little at personal stake can’t internalize the importance of multiple narratives, how do we expect Israelis and Palestinians — both of whom are living under threat of imminent death, while I sit behind a screen in Brooklyn — to do better?

And the blog This is Not Jewish gives instructions on “How to Criticize Israel Without Being Anti-Semitic“. Knowing how off-base the line “Democrats think anybody who criticizes Obama is racist” is, I was ready to be skeptical of “Jews think anybody who criticizes Israel is anti-Semitic.” In each case, it’s easy to be a lot more racially or ethnically offensive than you realize, and so get hit with criticism that you deserve, but think you don’t deserve. (“What I meant …” is not a defense. And anything that includes the phrase “if I offended anybody” is not an apology.)

Many of the tips are common sense, if you stop to think about it (i.e., don’t appeal to stereotypes). But I had never made the connection between labeling Israel-supporting Jews as “bloodthirsty” and the pogrom-causing blood libel, in which Jews are accused of literally drinking the blood of sacrificed Christian children. I don’t believe I’ve ever violated that rule, but duh, why didn’t I see that? Also be careful about equating Jews, Israelis, and Zionists, who are three different groups of people.

And finally, it’s crazy to hold your local Jewish community responsible for whatever Israel might be doing. (Just like it was crazy to hold your local Muslims responsible for 9-11.) As John Lloyd points out:

There’s a very large, and often very rich, Russian community in London – and there are no attacks on Russians or their mansions, restaurants or churches because of the Russian seizure of Crimea and sponsorship of uprisings in eastern Ukraine.

All four of my grandparents were German-Americans during the World Wars. None of that was our fault, and I’m willing to let Americans of all other ethnicities make similar claims.

There’s Something About Todd

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I don’t know what it is about Todd Akin.

The whole point of the Weekly Sift is to filter the junk and hype out of the news so that you only read stuff that is worth your attention. But success in that venture depends on my ability to leave something alone once I’ve determined that it’s not worth either your time or mine.

Todd Akin is not worth your time or mine. So you shouldn’t read this post and I certainly shouldn’t be writing it. And yet, I can’t seem to ignore him. I suppose it’s that infuriating combination of ignorance, self-righteousness, and self-assurance. So many intelligent, thoughtful people could be interviewed on TV, but aren’t. And yet, there’s Todd Akin, displayed in my living room! And why am I writing about him? I’m just making it worse.

But I can’t stop myself, so let’s get this over with: In interviews promoting his new book — which I refuse to link to; I still have that much control — he says he knows what he did wrong in his “legitimate rape” interview: It was just a bad choice of words. He should have said “legitimate case of rape” instead, because then the liberal media couldn’t have slandered him by making it sound like he thought a rape could be legitimate.

Let’s plug that into the transcript and see how it plays:

CHARLES JACO: So if an abortion can be considered in the case of, say, a tubal pregnancy or something like that, what about in the case of rape? Should it be legal or not?

REP. TODD AKIN: Well, you know, people always want to try and make that as one of those things: “Well, how do you—how do you slice this particularly tough sort of ethical question?” It seems to me, first of all, from what I understand from doctors, that’s really rare. If it’s a legitimate [case of] rape, the female body has ways to try to shut that whole thing down. But let’s assume that maybe that didn’t work or something. You know, I think there should be some punishment, but the punishment ought to be on the rapist and not attacking the child.

Well, the insensitivity is unchanged: Raped women aren’t real people who deserve our compassion, they’re just a “tough sort of ethical question” that tricky interviewers use to try to trip Akin up — like “Can God make a rock so big He can’t lift it?” or something. And after this tough question gets sorted out by the higher mind, it really just comes down to who to punish — the rapist or the fetus. The woman is a bystander.

The junk science about female physiology is still there; two years later, and he still hasn’t educated himself. And he’s still implying that only violent rape really counts. (What about roofies? Even in Akin’s alternate universe, would an unconscious woman’s body “shut that whole thing down”?)

Most importantly, he’s still saying that women who claim they got pregnant from a rape are probably lying, because “that’s really rare” in “a legitimate [case of] rape”.

So no, I don’t think he fixed anything.

Here’s what’s reprehensible about Todd Akin, and it’s got nothing to do with his choice of words: Even given two years to think about it, he still believes in a legal system in which rape is a viable male reproductive strategy. (They’ll put you in jail if they catch you — and if the woman can prove she didn’t consent — but the law will force your victims to bear your children, so your genes will live on.) He believes in that system so strongly that he’s willing to seek out junk science to justify it.

I’m going to stop writing now. To everyone who made it this far: I’m sorry. I really am. Try to do something more worthwhile with the rest of your day.

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