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Looking for President GoodClimate

September 9, 2019 – 10:28 am

Wednesday, CNN devoted its entire primetime schedule to letting voters question ten leading Democratic presidential candidates (the same ten who qualified for the debate this Thursday) about their plans for dealing with climate change. I didn’t spend the full seven hours sitting in front of my TV, but I did read all the transcripts, which you can find here.

I suppose it was naive of me to hope that these townhall Q&A sessions would settle which candidate would be the best president for the climate. You may come away with a different impression, but mine was that none of the candidates eliminated themselves and none stood head-and-shoulders above the others. All agreed that climate change is a serious problem that requires significant action, and that taking that action is going to be difficult. None put forward the fossil-fuel industry talking points that you would hear in a comparable Republican setting: climate change is a hoax, the climate is always changing, nothing can be done to stop the climate from changing, doing anything will be too expensive, or the US should wait for other nations to do something first.

The things they disagreed about were fairly technical: a carbon tax vs. a cap-and-trade system vs. direct government regulation; exactly how much should be budgeted for fighting climate change and where it should come from; whether nuclear power plays any role in our post-fossil-fuel future; how much sacrifice should be expected from the average person; how to mitigate the sacrifices asked of vulnerable populations; and so forth.

In short, any of the ten would contrast strongly with Trump’s positions on the issue. (To the extent that Trump has done anything about climate change, he has opted to make it worse: pulling out of the Paris Accords, trying to roll back Obama’s automobile-gas-mileage standards, rolling back limits on power plants burning coal, rolling back regulations on methane leaks, and so on.) But which of them would be the most effective president for fighting climate change?

Reading the transcripts told me less about the candidates that it did about myself and what I’m looking for. I think that President GoodClimate has to jump several very different hurdles. He or she needs to have:

  • a vision
  • a plan that carries out the vision
  • a message to rally the public behind the vision and the plan
  • the ability to leverage the vision, plan, and public support to push Congress to pass the needed legislation and appropriate the needed money
  • the ability to use the gravity of the crisis, the example of US action, and US soft power to push other nations into action.

Jumping each hurdle requires a different skill-set; we need a president who can jump them all.

The vision and the plan. The example everyone uses for this is President Kennedy setting the goal of landing a man on the Moon by the end of the decade. Kennedy announced that vision in 1962, and it came to fruition right on schedule in 1969.

The reason this is a good parallel is that Kennedy himself had no idea how to land a man on the Moon, and in fact no one did at the time he set the goal. New techniques and technologies had to be invented for the project to succeed. At the same time, though, he managed to set a goal that was realistic. If he had announced that we would land a man on the Moon by Christmas, it wouldn’t have happened. And when Christmas came and went with no Moon landing, public enthusiasm for the whole project might have waned.

Those advances would not have happened, though, if Kennedy (and President Johnson after him) hadn’t put serious resources into making them happen. Also, the plan involved immediate action as well as speculative research. Project Mercury was already underway, and John Glenn had orbited the Earth earlier that year. When NASA had a serious setback (the cabin fire in 1967 that killed the crew of Apollo 1 during a ground exercise), the country had the tenacity and commitment to continue.

So what I’m looking for in a climate vision and plan aren’t just the most ambitious goals and the highest price tag. The vision and the plan have to ring true in some way that is hard to define. The plan needs to reach beyond what we know how to do right now. (For example: If we’re going to generate much, much more of our electricity from wind and solar, we’ll need better ways to store power on windy and sunny days.) But it can’t reach so far beyond that it loses credibility. And it has to start by ambitiously doing the things that we already know how to do; we can’t twiddle our thumbs and then depend on some magic invention appearing in the nick of time a decade from now.

An aside on cheeseburgers. It’s predictable what’s going to happen when the next president announces his or her X-trillion-dollar climate plan, which also puts limits on the fossil-fuel industry, raises the cost of certain environmentally costly consumer goods, and bans others entirely: Fossil-fuel companies (both in their own voices and by funding unofficial spokesmen behind the scenes) will become advocates for “freedom”, and there will be either a real or astro-turf uprising against this “government overreach”.

You could see this already in the questions in the CNN forum. Several candidates had to answer questions more-or-less like: “Am I still going to be able to eat cheeseburgers?” Plastic straws and incandescent light bulbs also came up. The-government-is-coming-for-your-cheeseburgers has been a very effective pro-carbon argument.

The right answer to this challenge is multi-faceted, and it’s hard to make all the points at once. Part of the answer is to invoke the seriousness of the problem and shame the triviality of the question: Do you really want to condemn your grandchildren to a Mad-Max hellscape so that you can keep eating cheeseburgers, burning inefficient lightbulbs, and using plastic straws? The World War II generation accepted gas-rationing and a number of other artificial hardships to save the world from fascism. Is there nothing you’re willing to give up for future generations?

The second facet is to bring the question back to reality. Yes, the carbon footprint of a cow is much greater than a comparable weight of chickens, or a potato patch. So yes, as a country we need to shift our eating habits so that we consume less beef and dairy. But that doesn’t mean we have to ban cheeseburgers. Maybe a cheeseburger becomes more expensive. Maybe it turns into an occasional treat rather than a staple of your diet. But the government is not coming for your cheeseburgers.

Third, the crimps on your personal lifestyle are going to be a small part of a much bigger change. You’re not going to have to bear the whole sacrifice. This is what Elizabeth Warren was getting at in her answer to the cheeseburger question:

This is exactly what the fossil fuel industry hopes we’re all talking about. That’s what they want us to talk about. … They want to be able to stir up a lot of controversy around your lightbulbs, around your straws, and around your cheeseburgers. When 70 percent of the pollution of the carbon that we’re throwing into the air comes from three industries.

And finally, we’re going to try to be smart about this, so that changes will be as painless as possible. Lightbulbs are actually a good example in this regard. When the Bush administration decided to change the nation’s lightbulbs, it didn’t just ban incandescent bulbs overnight and make us light candles or sit in the dark. The wasteful bulbs are off the shelves now (at least until Trump finds a way to bring them back), but instead we have better bulbs: longer-lasting, cheaper to operate, and so on.

Beto O’Rourke, for example, expressed his confidence in the ingenuity of American farmers and ranchers to produce the same foods with a smaller carbon footprint. (I don’t doubt that he’s right about that, but I question whether it will be enough.) And yes, today’s paper straws aren’t as good as plastic straws. But is it truly beyond the limits of science to make an equally good straw out of paper or some other biodegradable material?

Or take cars. I drive a 100,000-miler hybrid Honda Accord. My current tank of gas is getting over 45 miles per gallon, and that’s not unusual. If government standards had insisted on 45 mpg decades ago, everyone would have been forced to drive underpowered subcompacts. But I don’t suffer from a lack of room or pep in this car. Similarly, today’s all-electric cars won’t take you as far in a day as most of us would like go on a long driving trip. But someday soon they will. A future of electric cars powered by wind and solar doesn’t mean we’ll have to give up on driving the family to Yellowstone.

Rallying support. So anyway, President GoodClimate is going to face well-funded resistance that will appeal to people’s fears and resentments. Combating that is going to require a lot of political skill, simultaneously shaming people out of their petty self-centeredness and inspiring them to take on the challenge of saving the world.

Who’s up to that? Who can create not just a vision and a plan, but a message that raises public enthusiasm around implementing the plan, even if it requires some sacrifice?

And suppose the public does support the plan. That doesn’t necessarily mean Congress will pass it. We see that now in gun control. Universal background checks (which might have stopped the recent Texas shooting) are ridiculously popular, with 97% support in one recent poll. They’ve been popular for years now, and yet somehow they don’t happen. In Congress, a small, intense, well-funded resistance can overcome broad but lukewarm popular support.

That points to a different kind of political skill, the ability to put together deals that make things happen. We tend to think in either/or terms about this: an inspirational progressive visionary like Sanders or Warren, versus a moderate deal-maker like Biden or Klobuchar. But the next president has to do both.

Tomorrow the world. In a Republican presidential debate in 2015, Marco Rubio said “America is not a planet.” He was making the defeatist point that no one country, not even one as important as the United States, can solve the climate problem by itself. Even if we do everything right, it won’t make any difference if no one else goes along.

This is a common conservative trope: Collective action is impossible and individual action inadequate, so we should just do nothing.

If we buy into that line of thought, though, we condemn the next generation to a world of rising seas, expanding deserts, mass migrations, and war. The tens of thousands of migrants who currently try to cross our borders every month will be nothing compared to the masses we’ll see when much of Bangladesh is underwater and new deserts have appeared in places that now support a booming population. Even within the US, how much hotter can places like Phoenix or Houston get and still be habitable?

Fortunately, the image Rubio evoked — of the US doing everything it can and the rest of the world dragging its feet — is the exact reverse of the truth. In reality, the US is the country holding the world back. Why should India stop burning coal if the US won’t? Europe is way ahead of us in adopting sustainable electric power. Today, the biggest challenge facing environmental activists around the world is how to make change happen without the United States.

So it would be a huge improvement if the next president just went along with what other nations are doing. (If only we could invest in mass transit like China and in solar and wind power like Germany.) But the world needs more than that. The US combination of economic, scientific, and military power makes us uniquely positioned to lead. Until Trump started tearing them up, we had meaningful alliances with most of the other major powers. It would make a huge difference if we could be the world’s good example rather than its bad example.

So even as the next president turns American climate-change policy around, he or she has to be working with the world to raise standards, and to establish trade policies that promote climate-positive action around the world, rather than allowing carbon-pollution to shift to the country with the lowest standards.

The next president can be a rallying figure internationally, as Kennedy was we he said “Ich bin ein Berliner”, or Wilson was when he enunciated his 14 points for ending World War I. Who can do that? The next president also needs to be a negotiator like FDR and an alliance-builder like Truman or Eisenhower. Who can do that?

I don’t know, or at least I don’t know yet. The climate forums have just given me more questions . The answers I’m looking for are only partly contained in the programs the candidates outline on their web sites. They also require evaluating character and talents.

These are harder questions than I had thought, so it’s going to take a bit longer to make up my mind.

By weeklysift | Tagged , | Comments (8)

Follow-up to “How Should We Rewrite the Second Amendment?”

August 26, 2019 – 9:17 am

Last Monday evening, I was reading on my iPad when something strange happened: Notifications started popping up about comments on the article I had posted that day, “How Should We Rewrite the Second Amendment?“. Every minute or so, there was a new comment. I usually get 5-10 comments total on a featured post, not 5-10 comments in a few minutes, so I knew something strange was happening.

When I’m writing a post, I usually lose myself in what I’m trying to say. But as soon as I hit the Post button, I start imagining it catching on with readers: Maybe they agree with it, or maybe it just makes them look at something a different way, so they like it and tell their friends. Those friends tell their own friends, and a positive chain reaction gets rolling.

But that wasn’t what had happened. My anti-Second-Amendment post was getting attention not just from my usual readers (who I think mostly agreed with it), or from new readers who liked it, but from outraged NRA types. It was a chain reaction, all right, but not a positive one. People were telling their friends about it because they hated it.

Nothing motivates like outrage, so the post got 15K page views (independent of subscribers, who see posts via email) and 290 comments, the vast majority of which were negative. (For comparison, the previous week’s featured post had done quite well by recent standards: 1182 page views and 8 comments.)

Something similar had happened to me once before: Back in 2011, “Why I Am Not a Libertarian” became one of my first viral posts, and for a while it was the Sift’s most popular article. (Numbers are not really comparable any more, because changes in social-media algorithms have made it harder for posts to go viral, but the Libertarian article got 28K views and 282 comments.) It did that not by impressing people with its clear thinking and crisp prose, but by pissing them off. The vast majority of the comments (and I suspect of the page views as well) came from offended Libertarians.

So back in 2011, I saw a road to notoriety opening up: I could be a provocateur, the kind of blogger that folks love to hate. I could write posts that trolled large groups of people, and then make sure that they knew I was running them down (maybe by seeding a few links on the appropriate Reddit groups). They’d shoot emails and Facebook comments and text messages back and forth, saying “Can you believe what this jerk is saying about us?”. And my numbers would take off. If I simultaneously started having advertising on the Sift, this might turn into some real income.

I didn’t do that.

There are writers who love the provocateur role and even some who are good at it, and I don’t want to judge them. But to me it would be a kind of hell. It’s not in my character to take satisfaction in the hate and anger of others, so I don’t know how I could get up every morning and intentionally aggravate people.

But eight years had gone by, and I had accidentally done it again. I doubt there are a lot of 2nd Amendment absolutists in my subscriber base, so I don’t know how word of “How Should We Rewrite the Second Amendment” filtered out to them. I can’t find any popular pro-gun blog that blew the outrage trumpet, and I certainly didn’t seek out that kind of attention myself. So it’s a mystery.

But it produced an interesting artifact: that 290-long comment stream. I pretty quickly decided I wasn’t going to answer them all individually. (A real provocateur would. Annoy enough of the commenters individually and who knows how often they’d come back and how many of their friends they’ll tell. Trying to annoy me back might become a minor hobby.) However, I have read them all. They provide an interesting window into a world outside my usual neighborhood.

For those of you who don’t have the time to wade through all of them, the rest of this post is my summary.

A large number were just statements of disagreement, without much attempt to convince: The Second Amendment doesn’t need rewriting. Keep your hands off the Second Amendment. And so on.

Many others were statements of disagreement plus some insult. The shortest was my favorite: “Idoit”. Whether that was a typo or a bit of intentional cleverness, I’m not sure. (When I was in high school, my friends and I would intentionally mispronounce pseudo-intellectual the way it looks: puh-sway-dough-intellectual.)

I didn’t feel like any of these needed a response. I said something; you disagree. Fine.

One version of this was to dispute my assertion that the Second Amendment has become meaningless by counter-asserting that its meaning is perfectly clear. I’ve often seen this happen with Bible verses: If your ministers and teachers repeat an interpretation to you often enough, that meaning begins to seem obvious to you, no matter how obscure the original text is in reality. Apparently, the same process works with the Constitution.

Other people made objections that I felt I had already answered in the article, like saying that gun ownership is necessary to protect us against tyranny. I had considered that idea and rejected it for specified reasons. If people had a response to those reasons, I considered their views. But if they just reiterated the original point, my response was already available.

Several people repeated the myths about Hitler and Stalin disarming their people; I had already provided a link debunking those myths.

Some commenters entered into the spirit of my post, but want to rewrite the Second Amendment to make the NRA’s intended meaning clearer: that any gun-control laws at any level are unconstitutional.

Those comments speak for themselves and need no reply from me. Again: I said something; you disagree.

One of the stranger misconceptions in the comments was that I had said something about Denmark. “Denmark” shows up six times in the comments, and not at all in article. (I actually mentioned the Netherlands as a nation without an armed populace, but which doesn’t seem to be threatened by tyranny.) I think this was probably because Denmark had annoyed Trump this week, so it was in the minds of his minions.

Several bizarre theories about the Constitution were put forward.

A number of commenters asserted that the Bill of Rights can’t be changed. I’m not sure where that comes from or who promotes it, but it’s just flat wrong. Article V of the Constitution is pretty clear about that:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

One thing the Constitution does not give anyone the power to do is to is to amend the Constitution in a way that can’t be amended back. So when the First Congress wrote the Bill of Rights, it was creating a set of amendments that could be repealed in the future through the same amendment process.

Several people seemed not to get the whole idea of amending the Constitution. Quoting the Second Amendment against the idea of repealing the Second Amendment makes no sense.

Two anonymous comments (probably the same commenter posting twice) claimed that “the Preamble” said that our rights come from God. (He was kind of obnoxious about it, calling some other commenter “you of weak mind”.) This is false. Neither God nor any religious synonym appears in the Constitution, in the Preamble or anywhere else. Mr. Anonymous had confused the Declaration of Independence (a Revolutionary War polemic that has no legal significance) with the Constitution.

Others similarly found a religious significance in the Constitution that I doubt the Founders intended to put there. (More about that below.)

The constitution should be treated as sacred as the bible is. Both to be held in the highest regard and NEVER changed or messed with in any way. The government should stay the hell away from it, and keep their fat traps shut. If this country would live by both, the bible being the most followed, then we wouldn’t be in the crap hole this country is in. But we shouldn’t be changing it as we see fit, but follow it as the founding fathers and GOD saw fit.

The Constitution is a thoroughly secular document that sets up a secular republic. Some of the Founders had religious motives and some didn’t, but they didn’t write their religion into the Constitution.

If we regarded the Constitution as sacred and never changed it, blacks would still be slaves and women wouldn’t be able to vote. Anybody who regards the Founders as divinely inspired and their work as sacrosanct needs to own that.

Other commenters couldn’t comprehend the idea that the world can change out from under a text and leave it meaningless. (Back in 2015, I explained how changes in opposite-sex marriage had made bans against same-sex marriage indefensible, even though they had made sense a century or two before. Change erodes meaning.) Several argued that we could know what the Founders thought because they left extensive writings behind. And that’s true: We can know quite a bit about what they thought about the world they lived in.

What we can’t know is what they thought about the world we live in. And that’s my point: Applying the Second Amendment to the world we live in is just senseless. On either side, people are just making stuff up, because actual text doesn’t mean anything any more.

As an aside, this is one way that the Constitution does resemble the Bible: There are parts of the Bible that are meaningless now, because no one knows how to translate them into modern language. Anyone who says they know what the commandment against “coveting” means is lying to you, for example. So is anyone who claims to know the meaning of “witch” in “Thou shalt not suffer a witch to live.” Any honest discussion of those verses has to start by saying, “We don’t really know what this means.”

Quite a few commenters seemed to think that even talking about rewriting the Second Amendment should be taboo, because then somebody could rewrite all the amendments and take our rights away.

This is kind of a silly point, because amending the Constitution is a Herculean task. It will only happen when there is good reason for it to happen.

So yes, it is completely possible that we could repeal the First Amendment, or the 15th, or whichever one is closest to your heart. The Founders never intended to write a Holy Scripture. Jefferson was undoubtedly an extremist in this regard, but I doubt he was the only one who believed this:

no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation.

And yes, some of the arguments I made about the Second Amendment becoming meaningless can apply to others, because time is constantly eroding the meaning of texts. I was explicit about that.

Old laws become encrusted with layers and layers of debatable interpretations. If judges do their jobs well, the public may retain confidence that some “spirit” of the law lives on, even as it applies to novel and unforeseen situations. But at some point, we need to accept that the original meaning has been entirely lost, and so it’s time to shake off the encrustations and reconsider the relevant issues from scratch.

The First Amendment, like the Second, is often applied to situations the Founders didn’t foresee. Personally, I still find a “spirit of the law” in First-Amendment interpretations that I don’t find in Second-Amendment interpretations (where it seems to me that everyone is just making stuff up), so I would not favor repealing and replacing the First Amendment.

If, however, we found ourselves in a situation where an unfortunate application of the First Amendment was leading to thousands of deaths every year, I might change my mind.

But I do agree this far: We should absolutely be talking about all the rights in the Constitution, and evaluating what they mean and/or should mean, because we are the living generation. The earth belongs to us and not to the dead. If any part of the Constitution no longer serves us, and if that has become so clear that we can get supermajority agreement about it, we should change it.

One common criticism was that I didn’t know history, but usually commenters floated that objection without attaching it to anything in particular, so who knows what they meant or whether the criticism has any validity. Chances are, they have seen some of the bogus history the NRA spreads, so the criticism could just be turned back on them. But there was one exception: I in fact did not know about some of the bizarre early versions of multi-shot weapons.

Several commenters made claims about weapons the Founders might have seen, but only one provided a reference link. Admittedly, it’s a link to an NRA blog, so I take all this with a grain of salt. But apparently there were multi-barrel guns that were capable of multiple shots.

I have to question how reliable, accurate, or otherwise practical any of those guns were. But even if they worked reasonably well, I see no reason to change my conclusion that

An attack like the recent Dayton shooting, in which one man killed nine people and wounded 14 others in half a minute, would have been unimaginable [to the authors of the Second Amendment].

To sum up, nothing in the comment stream makes me want to go back and rewrite the original article, or change the amendment I would like to pass. Likewise, none of it changes my conviction that the Constitution is (and was always intended to be) open to amendment. As Jefferson said, the world belongs to the living, not the dead.

By weeklysift | Tagged , | Comments (134)

How Should We Rewrite the Second Amendment?

August 19, 2019 – 9:12 am

We argue so vociferously about the meaning of the Second Amendment because it doesn’t really mean anything any more. We should replace it with a new amendment protecting freedoms that matter to us today.

Whenever you pick up an article about gun control — pro or con — you can be virtually certain of one thing: The author believes that the Second Amendment has a unique and definite meaning, which he or she knows with certainty.

So the Amendment either clearly supports an individual right to own and use guns, or it was intended purely to prevent the federal government from disarming state militias (i.e., the National Guard). If it does indeed protect an individual right, the “arms” we are allowed to bear include only the guns appropriate for defending our homes — which leaves out military weapons — or else the Founders wanted us to have the means to overthrow the federal government should it prove tyrannical, making military-grade weapons not only permitted, but absolutely necessary. And so on.

I want to turn that conversation upside-down: Our arguments about the Second Amendment are so dogmatic because we are arguing about shadows in the dark. Each of us projects our own desired meaning onto the Amendment, because the Second Amendment no longer has any meaning of its own. With regard to the role of guns in society, so much has changed in the last 200 years that whatever the Founders intended when they wrote the Amendment is entirely inapplicable to us.

We argue so intensely because there is no answer. We’re like middle-aged siblings arguing about what Dad wants, when Dad has advanced Alzheimer’s and doesn’t know where he is or who we are. Rather than looking at the world as it is and deciding what we want to do with it, we sit around a Ouija board trying to contact the ghosts of the Founders — and then we complain that somebody else is pushing the planchette rather than letting the spectral vibrations work their will.

How meaning gets lost. Any text is vulnerable to having the world change out from under it, and the Founders gave us the power of amendment precisely because they never intended their words to stand as eternal truths. Is, say, the First Amendment’s protection of “freedom of speech” intended to protect your right to set up bots to spread disinformation on social media? What, exactly, was James Madison’s opinion on that issue? What would George Washington say about using facial recognition software to identify individuals as they move through a world whose public spaces are covered by networked surveillance cameras?

Judges make decisions about such issues because they have to; cases come to their courts and something must be done with them. And so old laws become encrusted with layers and layers of debatable interpretations. If judges do their jobs well, the public may retain confidence that some “spirit” of the law lives on, even as it applies to novel and unforeseen situations.

But at some point, we need to accept that the original meaning has been entirely lost, and so it’s time to shake off the encrustations and reconsider the relevant issues from scratch. That’s where we find ourselves with respect to the Second Amendment. Anyone who says he knows what the Second Amendment really means today is either fantasizing or lying, because it doesn’t mean anything any more.

Consider how different the world was when the First Congress wrote the Bill of Rights.

  • State militias were the first line of national defense. Political leaders of the Founding era were afraid of the tyrannical potential of a centrally controlled professional army, and imagined that the new nation would have either no army in peacetime or a very small one. [1] That army would grow in wartime, but wars were supposed to be rare, because early American foreign policy intended to avoid “entangling alliances” that would pull the United States into European wars. [2] A state militia (perhaps with help from the militias of neighboring states) would be adequate to deal with Indian raids, slave revolts, riots, criminal gangs, and other challenges that might occur more frequently. In Federalist 29, Alexander Hamilton described a “well-regulated militia” in detail, and judged it to be “the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist.”
  • Private citizens played a much larger role in law enforcement. American cities wouldn’t start organizing modern police forces until more than half a century later.
  • Guns were single-shot weapons that took time and skill to reload. Modern re-enactors can reload 18th-century muskets in about 15 seconds, assuming no one is trying to interfere with them. An attack like the recent Dayton shooting, in which one man killed nine people and wounded 14 others in half a minute, would have been unimaginable.
  • The Bill of Rights did not apply to state and local governments. [3] Prior to the Supreme Court’s Heller decision in 2008, state and local governments could and often did regulate guns. About a century after the Second Amendment, the gunfight at the O.K. Corral was a dispute about gun control: The Earp brothers were lawmen enforcing the laws of Tombstone, Arizona, which required visitors to disarm. Many towns in the Old West had some form of gun control. They passed those laws for the same reasons people want such laws today: Law-abiding citizens should be able to go to a store or to church or send their children to school without worrying about getting caught in a crossfire.

Today, we have entangling alliances, fight more-or-less constant wars, and live in the midst of the large standing army that the militias were supposed to make unnecessary. Even small towns have professional police forces, and state and county police forces cover rural areas. The vast majority of citizens do not at any point in their lives belong to a well-regulated militia. (And no, self-appointed bands of armed yahoos running around in the woods bear no resemblance to the Founders’ vision.)

In short, the original reasons citizens needed to be armed no longer apply, the weapons themselves have changed beyond recognition, and the notion that no one can restrict weaponry is entirely new. Given all that, how can anyone interpret the Second Amendment with confidence?

Why mess with it? Currently, both sides deal with the Second Amendment’s fundamental emptiness in the same way: Decide what you want the Amendment to mean, and then try to win elections so that you can appoint judges who will pretend it says what you want it to say.

Two things are wrong with this approach. First, it’s dishonest and undermines respect for the law. The right way to change laws is to pass new laws, and the right way to change the Constitution is to amend it. Each side may claim that it is restoring the “true” meaning of the Second Amendment. But, as I have argued above, there is no longer any true meaning to recover. The society that gave the Second Amendment its meaning is gone forever.

Second, both sides in this argument need a credible goal, even if that goal is politically impractical at the present moment. The current approach of gun-control advocates (of whom I am one) is, “Can you just give us this much?” So we ask for background checks or assault-weapon bans or limits on bump stocks or large magazines. All those proposals are very reasonable, but even in combination they are not a solution to America’s gun problem. So even if those restrictions become law, sooner or later we’ll be back to ask for more.

This smallball strategy plays into the NRA’s slippery-slope argument, which claims that the ultimate unspoken goal is complete confiscation. I know of very few people who advocate complete confiscation, even in private. But as long as the gun-control movement has no stated goal, the NRA has complete freedom to assign us whatever goal most frightens its members. The response “No, I just want background checks” isn’t credible, so gun owners who want to protect any gun rights at all will want to hold the line.

Conversely, the NRA’s strategy of disrupting any potentially political conversation about guns — it opposes even studying the public-health implications of widespread gun ownership, as well as developing technology to make guns safer — is similarly untenable and provokes similar paranoia on the left: They won’t be satisfied until we’re all dodging bullets every day.

On each side, rewriting the Second Amendment is a worthy goal. It will force gun control advocates to grapple with the question of confiscation, and challenge gun-rights advocates to justify exactly which rights are worth protecting and why. The conversation about what the Second Amendment means can never reach consensus, because there is no meaning to converge on. But a conversation about what it should say has more potential.

The rest of this article describes and justifies my own attempt to rewrite the Second Amendment.

What rights don’t need constitutional protection? To be perfectly blunt, a lot of the reasons people want to own guns are frivolous. Those reasons might be perfectly fine in their own ways, but they don’t rise to the level of a right that needs constitutional protection.

Guns, I admit, are very clever mechanisms; they even can be said to have a certain kind of beauty. So I understand why someone might want to own a collection of them, just as someone else might collect the pocket watches of various eras. But the Constitution doesn’t protect any other collections; it shouldn’t protect this one either..

Similarly, target shooting is a worthy sport. It demands skill and concentration. Some people are particularly gifted at it, just as some are gifted at pole-vaulting or throwing footballs. But if a community decides that public safety demands restricting this sport, so be it. Ditto for the sport of hunting. It may be traditional and so forth, but it’s a sport. Baseball is also traditional, and raises similar sentiments about passing down interests from father to son. But my right to play baseball should not be enshrined in the Constitution, and neither should hunting.

What about overthrowing a tyrannical government? Then we come to the most contentious issue: resisting or overthrowing the government, should it turn tyrannical. A disarmed populace, according to this argument, is the precondition for tyranny, and gun control is often a precursor to taking away other rights.

The are a few things to note about this point: First, if you believe that an unarmed populace is an invitation to tyranny, I have two suggestions: Reconsider the history you think you know, and go visit the Netherlands. The Dutch have only 2.6 weapons for every 100 people (compared to our 120), and very strict gun-control laws. They also have a higher democracy index than we do: 8.89 to our 7.96.

Second, if retaining the ability to fight the government is the justification for the right to bear arms, then it’s hard to argue for any restrictions on armaments at all. Red State founder Erick Erickson made this explicit:

You may think a 30 round magazine is too big. Under the real purpose of the second amendment, a 30 round magazine might be too small.

Indeed, if my purpose in owning guns is to preserve my option to join a Red Dawn resistance and fight the U.S. Army, then I need a lot more than just an AR-15. I need grenade launchers and anti-tank weapons and shoulder-fired Stinger missiles that can take down helicopters (or airliners as they take off or land).

Do you really want to go there? I don’t. As much as I fear the current administration, I’d rather take my chances with the American government than get on a plane knowing that Stingers are available at Walmart.

And that leads to what I see as the biggest problem with this vision:  In the NRA fantasy, the American people are unified in their resistance to a vicious cabal at the top, and must fight to restore democracy. Second Amendment proponents like to think about the Minutemen or the French Resistance in World War II. But those aren’t the most likely scenarios.

You know what’s much more likely? A violent minority tries to impose its will on the rest of us through terrorism. That, in fact, is what we’re seeing now from armed white supremacists like the El Paso and Pittsburgh shooters. Their problem is that they don’t represent the American people and so they can’t achieve their white-homeland vision through the democratic process. That’s why they need guns.

The US has seen this pattern in the past as well. The Atlantic’s Mark Nuckols offers two examples:

  • Bleeding Kansas of the 1850s, where pro- and anti-slavery marauders tried to drive each other’s supporters out of the territory.
  • The post-Civil-War South, where the KKK and other white-supremacist groups terrorized blacks out of voting. The resulting white-supremacist governments eventually disenfranchised blacks legally and instituted Jim Crow.

In short, the situation we have now, in which a decreasing minority of people owns an increasing numbers of guns, doesn’t secure our democracy, it endangers our democracy. [4]

The right to self defense should be protected from federal interference. So far it sounds like I’m making a confiscation argument, because I haven’t identified any type of gun-ownership that deserves constitutional protection. But I believe self-defense qualifies on a number of grounds:

  • Self-defense is a fundamental human right. If someone attacks you, you shouldn’t have to just stand there and die. Depending on the severity of the attack, you may be justified in using lethal force. Few things are more horrifying than the thought that someone is coming for you or your loved ones, but there’s nothing you can do about it.
  • Americans broadly believe in a right to self-defense, whether or not they personally own weapons or get self-defense training.
  • Despite the risks that come with gun ownership, many people have in fact driven off or captured or killed attackers by using their own guns. The risk/reward balance of owning a gun varies from place to place and individual to individual, so judgments about it should not be made on the federal level.

Some of these considerations also apply on the city and state level, so the federal government shouldn’t prevent a lower-level government from equipping a force to defend the public safety or enforce the laws.

That said, there are some legitimate roles for the federal government to play. Self-defense is not an open door for any kind of weaponry at all. No one needs a tank or a nuclear bomb to defend their home or person, or to drive coyotes away from their sheep. Likewise, no one needs an assault rifle with a 100-round magazine or an armory with dozens of weapons. A closer analysis of what means of self-defense might be necessary in one place or another is better done at the state level, but the federal government should be able to make some broad restrictions.

Additionally, states that want to control guns more tightly need protection against their laws being undermined by neighboring states with looser laws. So in addition to its general power to regulate interstate commerce, the federal government’s power to regulate, police, or completely ban the interstate transportation or sale of firearms should be spelled out.

A few final considerations. The Constitution sets up a federal government whose powers are limited to those expressly granted. [5] But history has shown that the government can leverage the powers the Constitution grants to wield other powers that it doesn’t grant. A relatively harmless example was the 55-MPH speed limit set in 1974 as an energy-conservation measure. The Constitution doesn’t grant any speed-limit-setting powers to Congress, so it passed a law that denied federal highway funds to states that didn’t enact a 55-mph limit. Before the Supreme Court struck it down, the Affordable Care Act’s Medicaid expansion was another attempt at using federal funds to force state action.

So any amendment that limits federal power to regulate guns, but allows state and local powers more extensive powers, should also guard against federal coercion of the states.

Conversely, the federal government needs the power to regulate anything that otherwise would work around restrictions it can legally make. So, for example, if Congress can ban automatic weapons, it should also be able to ban kits for converting semi-automatic weapons to fully automatic ones.

What should it say? Here’s my proposal:

1. The Second Amendment to this Constitution is hereby repealed.

2. Congress shall make no law preventing individuals from securing adequate means to defend their homes and persons, or preventing state or local governments from equipping police forces adequate to enforce their laws and ensure public safety.

3. Congress shall have the power to regulate the interstate transportation and sale of weapons, ammunition, and other weapon-related items.

4. States shall have the power to regulate the use, manufacture, ownership, and transfer of weapons within their borders, or to delegate such powers to local governments.

5. No federal expenditure or regulation shall be contingent on a state or local government using its power to regulate weapons in a manner specified by federal law.

What does it mean? Several things:

  • In order to pass a gun restriction, Congress would need to establish that individuals still have the means to defend their homes and persons. So Congress could ban assault weapons, but not handguns. It could limit the size of your arsenal, but not disarm you completely.
  • More detailed gun laws would have to be passed at the state level, so states could implement wildly divergent visions. If Texas believes that guns-everywhere makes the public safer, it can try that. But if Illinois wants to let Chicago ban guns completely, it can try that too. People who feel unsafe in one state or the other don’t have to go there. (Texans who come to Chicago would have to check their guns, just as they would have when entering Tombstone.) Colorado might decide to allow a wide range of guns, but regulate guns and their users in a similar way to cars and drivers. This state-by-state diversity would be healthy; we would see clearly what does and doesn’t work.
  • State and local governments would keep the ability to enforce their own laws, and would not have to depend on a federal force. This was one of the main tyranny-restraining pieces of the Founders’ vision, and one of the few implications of the Second Amendment that still makes sense today.

Or write your own. The main advantage my amendment would have over the current Second Amendment is that it would mean something, independent of everyone’s hopes and fears. As a result, both sides could have more confidence about its interpretation. We could lessen the paranoia that now attends every presidential election or Supreme Court nomination.

The choices I have made are far from the only ones possible. I have left a lot of decisions to the states; you may wish to have a more uniform policy across the country. I have allowed outright bans on the local level; you may not want that. I have left room for interpretation by using the word “adequate” rather than spelling out exactly how I expect future generations to defend themselves. And so on.

But if you write your own version and we each promote our favorite, look how the discussion has changed: We are no longer arguing about something unknowable, such as what was in the minds of people centuries ago, or what they would want if they could see us now. Instead, we are arguing about the world we live in and what we want for our future. Anyone can participate in that discussion by drawing on their own experiences; you don’t have to be (or pretend to be) a historian or legal scholar.

That is a conversation that has potential for growth and change and compromise.

Conversely, no one who considers the recent history of Second-Amendment interpretation should have any confidence that they know what it will “mean” a generation from now. The Supreme Court’s current interpretation was considered a fringe position a generation ago. [6] Unless we replace the Amendment with one that has clear meaning to people of our era, no one can say what ideas on the fringe today might be constitutional doctrine tomorrow.

[1] After the Treaty of Paris ended the Revolutionary War, the Continental Army was reduced to a single regiment of about 700 men stationed on the western frontier.

[2] President Washington said in his Farewell Address:

Europe has a set of primary interests which to us have none; or a very remote relation. Hence she must be engaged in frequent controversies, the causes of which are essentially foreign to our concerns. Hence, therefore, it must be unwise in us to implicate ourselves by artificial ties in the ordinary vicissitudes of her politics, or the ordinary combinations and collisions of her friendships or enmities.

[3] In general, constitutional restrictions didn’t apply to the states until the 13th, 14th, and 15th amendments were passed after the Civil War. The 14th Amendment says:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Over time, the Supreme Court came to interpret “liberty” to include the rights described in the Bill of Rights. This doctrine is known as the “incorporation of the Bill of Rights“. The incorporation of the Second Amendment wasn’t fully recognized until 2010.

[4] People who are honestly worried about the future of American democracy should focus instead on making it work: End gerrymandering and voter suppression. Limit the influence of big-money donors, corporate lobbyists, and hostile foreign governments.

As long as the American people retain the ability to vote out governments that don’t serve their interests, the resort to guns won’t be necessary.

[5] For this reason, in Federalist 84, Alexander Hamilton argued against including a Bill of Rights in the Constitution because he believed it would be unnecessary.

For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?

[6] As Jeffrey Toobin writes in the current New Yorker: “The Court changed the Second Amendment, and the Court can change it back again.” But unfettered by a text with any actual meaning, it could also go somewhere else entirely.

UPDATE

I was kind of overwhelmed by the quantity and negativity of the comments, so I decided not to answer them one by one. Instead, I wrote a sequel that summarizes a lot of the points commenters made and answers the ones that seem to need or deserve answering.

By weeklysift | Tagged , | Comments (313)

Republican Whataboutism Gets More Desperate

August 12, 2019 – 8:42 am

Trump has been promoting many of the same white-supremacist themes that are found in mass-shooter manifestos. That can’t be excused or explained, so his cultists need to divert your attention.

Whataboutism is the tactic of responding to criticism of a politician you like by asserting (often falsely [1]) some equivalent wrongdoing by someone on the other side. (Examples: responding to mention of one of Trump’s 10,000 lies with “What about when Obama said you could keep your health insurance?” or to Trump’s birtherism by claiming Hillary Clinton started it.) Whataboutism has long been a tactic favored by conservatives, but Trump has taken it to a new level: It’s hard to come up with an example of him addressing a criticism any other way. He never explains or apologizes, but instead launches some new accusation against someone else.

David Roberts points out the general moral immaturity of a whatabout response

One thing to note is the bizarre implicit assumption that if responsibility is equal on both sides, then … we’re fine. We’re even. Move on. In other words, it’s not the damage done, or the principle violated, that concerns [WaPo columnist Marc Thiessen], it’s *blame*. We need not strive to be good as long as we are no worse than the other side. It’s the moral reasoning of a [10-year-old], focused exclusively on avoiding responsibility or sanction.

Gonna be lots of right-wing whataboutism focused on antifa and environmental extremists in coming weeks. [Conservatives] need to head off the growing consensus that [right-wing] terrorism is a unique problem.

This week saw two prominent attempts at whataboutism, both aimed at diverting attention from Trump’s role in promoting the false claims that inspired the El Paso shooting and have inspired other acts of white-supremacist terrorism.

  • What about the liberal views of the Dayton shooter?
  • What about Rep. Joaquin Castro revealing the names of Trump donors in his district?

Dayton. Roberts was specifically responding to the Thiessen column “If Trump is Responsible for El Paso, Democrats are Responsible for Dayton“.

But if Democrats want to play politics with mass murder, it works both ways. Because the man who carried out another mass shooting 13 hours later in Dayton, Ohio, seems to have been a left-wing radical whose social media posts echoed Democrats’ hate-filled attacks on the president and U.S. immigration officials.

The difference between the two cases is pretty obvious: The El Paso shooter justified his rampage in a manifesto that used Trumpist rhetoric about the “invasion” of our southern border. [2] His massacre took place near that border, and targeted Hispanics under the assumption that they were the “invaders”. Similarly last October, the man who slaughtered 11 Jews at a synagogue in Pittsburgh believed Jews were organizing the immigrant “invasion” caravans that Trump had been making the focus of his midterm-election messaging, and the MAGA bomber targeted people he saw as Trump’s enemies.

A window of the MAGA bomber’s van.

But so far no one has found any connection between the Dayton shooter’s left-wing views and his crimes. If the Dayton shooter had shot at “the president and immigration officials”, that would be comparable. In future, if someone follows up his retweets of Elizabeth Warren statements by, say, shooting some of the bankers or drug company CEOs Warren criticizes, that also would parallel the El Paso shooting (and we could expect Warren to issue a statement telling her supporters not to be violent). But the Dayton shooter did nothing of the kind.

In the wake of the El Paso shooting, Hispanics might legitimately fear further attacks from copycat killers; but fear of a copycat Dayton shooting afflicts anybody who goes out in public rather than some group criticized by Democrats.

Picturing what a comparable liberal shooting would look like just emphasizes the Trump connection to El Paso.

“How do you stop these people? You can’t,” Trump lamented at a May rally in Panama City Beach, Fla. Someone in the crowd yelled back one idea: “Shoot them.” The audience of thousands cheered and Trump smiled. Shrugging off the suggestion, he quipped, “Only in the Panhandle can you get away with that statement.”

Trump wasn’t horrified by the suggestion that someone might shoot Mexican border-crossers, and did not say it would be wrong. Instead he talked about what his followers could “get away with”, as if it’s natural to want to shoot Hispanics, but politically incorrect to say so out loud. If the El Paso shooter was listening to that exchange, it’s fair to assume that he was not discouraged from his plans.

“Hate has no place in our country!”

You have to go back to 2017 to find any kind of legitimate liberal parallel: the shooting of Republican Congressman Steve Scalise by someone who once volunteered for Bernie Sanders. Unlike Trump, who denounced the El Paso shooting in general terms (in one of his read-from-the-teleprompter statements that look as insincere as a hostage video) without acknowledging any connection to it, Sanders did the responsible thing:

I have just been informed that the alleged shooter at the Republican baseball practice is someone who apparently volunteered on my presidential campaign. I am sickened by this despicable act. Let me be as clear as I can be: Violence of any kind is unacceptable in our society and I condemn this action in the strongest possible terms. Real change can only come about through nonviolent action, and anything else runs against our most deeply held American values.

Trump, on the other hand, undercut even his general denunciation of the shooting by implying that the shooter might have had a point: Limiting immigration should be part of the response. It’s as if Sanders had proposed that Republicans respond to the Scalise shooting by ending their attempts to repeal ObamaCare.

Trump also undercut his anti-white-supremacy statement by reverting to the both-sides rhetoric he used after Charlottesville: He’s against not just white supremacy, but “any other kind of supremacy“. (Both Trevor Noah and Seth Myers wondered what “other kind of supremacy” Trump might have had in mind. The Bourne Supremacy?) He’s also against “any group of hate”, and singled out the amorphous anti-fascist group Antifa, as if hating fascism is similar to hating Hispanics or Jews, and as if the Antifa body count (0) bears any comparison to the many dozens killed recently by white supremacists. Matt Bors makes the point with a cartoon.

Shaming Trump donors. The second whataboutist controversy started with a tweet on Monday: San Antonio Congressman Joaquin Castro listed the names of 44 San Antonians who had given the maximum allowable personal donation to Trump’s re-election campaign, and commented

Their contributions are fueling a campaign of hate that labels Hispanic immigrants as ‘invaders.’

He got the names from publicly available FEC records; you could have looked them up yourself had you been so inclined.  And he used those names for the purpose that the disclosure laws intended: So that the public knows who’s bankrolling a political campaign.

Castro was clearly trying to shame the people he listed, and you might imagine Castro’s Twitter followers, especially Hispanic ones, deciding not to do business with big Trump donors: If money I give these people might flow through to ads that threaten me, maybe I’ll deal with somebody else. (This logic is similar to why so many LGBTQ people are reluctant to eat at Chick-fil-A. It’s also why #CancelSoulCycle has been trending after word got out that owner Stephen Ross was hosting a multi-million-dollar Trump fundraiser in the Hamptons.)

But nothing in Castro’s tweet suggests violence against these donors, and in fact there is no established pattern of violence against Trump donors. But conservatives needed to divert public attention from the violence Trump incites by accusing some Democrat of inciting violence too — because, as David Roberts pointed out, that would make it all OK from their grade-school moral perspective — and Castro was what they had to work with.

So Donald Trump Jr. went on Fox & Friends to compare Castro’s list of Trump donors to a “hit list” that the Dayton shooter had kept in high school. (As far as I know, none of the people on that list were targeted in the Dayton shooting. So even if you buy the idea that there’s a comparison, we’re talking about a list of fantasy targets, not actual ones.) Ted Cruz accused Castro of “doxxing” his constituents. (Falsely. [3]) House Minority Leader Kevin McCarthy tweeted:

Targeting and harassing Americans because of their political beliefs is shameful and dangerous.

And I suppose that is true if you assume that someone has been targeted and harassed, rather than just called out for sponsoring insults against their neighbors.

So the whatabout here is equating a direct connection to several real-world mass murders with a fantasy about what some Castro-follower might do, even though none of them have actually ever done such a thing, and there are no examples of similar crimes.

What does it mean? Whataboutism isn’t new, of course. (What about Hillary’s emails?) But new whatabouts point out where conservatives believe they’re vulnerable. And the less convincing the whatabouts are, the more desperate the need for them must be.

If you meet whataboutism in the wild — in face-to-face conversation or in social media — it’s important not to get distracted by it. [4] Call it out for what it is (that meme at the top of the page is kind of handy) and restate the point the whataboutist is trying to divert you from. In this case, that’s Trump’s role in promoting the rhetoric of white-supremacist terrorism.

[1] Since the point of whataboutism is to derail a criticism rather than refute it, a false assertion often works even better than a true one, because the discussion then careens off into evidence that the assertion is false. Suddenly we’re rehashing the details of what Obama or Clinton did or didn’t do, while the original criticism of Trump scrolls off the page.

The assumption behind refuting the false whataboutism is that the Trumpist will be embarrassed to be caught saying something untrue, and so will stop repeating the false statement. But the essence of Trumpism is that shame is for losers, so refutation is pointless.

[2] A wrinkle in this argument is that the El Paso shooter seems to have worried that his actions might reflect badly on Trump. So he made sure to state that his views predated Trump’s candidacy.

the media will probably call me a white supremacist anyway and blame Trump’s rhetoric. The media is infamous for fake news.

But his concern for Trump’s image belies his point, and whether or not his murderous rage against the Hispanic “invaders” predates Trump’s rhetoric is irrelevant. Nobody is saying that Trump invented white supremacy or anti-Hispanic racism. Rather, he (along with many, many conservative opinion-makers) has promoted and mainstreamed ideas that have been floating around in the white-supremacist and neo-Nazi underground for decades.

Trump’s rhetoric is a Nazi gateway drug. After you get used to the notions that Central American refugees are really “invaders”, that immigrants are spreading crime and disease, that white Christians are victims, that people of color who criticize America should “go back where they came from”, and that political correctness is a far more serious problem than racism — all core Trump points — then when you chase a link to the Daily Stormer or some other Nazi site, 90% of what you read sounds perfectly normal.

So, for example, if you marinate long enough in TrumpWorld, and then start to wonder how these illiterate Guatemalan peasants are organizing their invasion of the US, the neo-Nazi answer — Jews like George Soros are behind it all — jumps out at you like a revelation.

[3] True doxxing reveals personal contact information like a home address or personal phone number, and typically violates an assumed boundary (like when someone attaches a name, address, and phone number to someone else’s Twitter handle). But donors to political campaigns know that their names are being recorded for the public record. Suzanne Nossel explains:

It’s fair to question whether Mr. Castro’s tweet was prudent or decorous. But to refer to it as doxxing or online harassment is inaccurate, and sows confusion over what online abuse actually looks like.

CNN adds:

Richard Hasen, an expert on election law at the University of California at Irvine, said neither the boycott calls [against SoulCycle] nor Castro tweet appears to cross the line into the “unconstitutional harassment” of donors. “Being called a bad name on Twitter is not the kind of harassment the Supreme Court was talking about” in allowing exemptions [from disclosures] for people who face a real threat of harassment, he said.

Republicans can’t have it both ways here. They want to allow unlimited political donations because “money is speech”. But when you speak in the public square, people know who you are. At the very least, an ad whose donors you can’t track down should end with “The sponsors of this message have chosen to remain anonymous” so that we can assume the worst about them.

[4] Don’t do the kind of lengthy explanation I’ve done here; this was for educational purposes only. Having seen a couple of whataboutisms dissected in detail should make it easier for you to spot new ones.

By weeklysift | Tagged , | Comments (10)

Campaigning in a Traumatized Nation

August 5, 2019 – 10:26 am

Trump has damaged our country in ways too deep to fix with an executive order or an act of Congress. The campaign against him needs to reflect that somehow.

Two rounds of Democratic presidential debates are behind us now, and everyone I know was dissatisfied with them. We’re all casting about, looking for somewhere to assign blame. There are plenty of places to look.

  • Maybe it was the overcrowding. Spreading twenty candidates over two nights didn’t give any one of them a chance to put forward a coherent vision of what the country needs.
  • Maybe it was the moderators. Both CNN and MSNBC wanted to see conflict rather than thoughtful discussion, so questions often ignored the forest of beliefs all the candidates share, and focused instead on a few contentious trees of dubious significance.
  • Maybe it was the candidates, none of whom managed to overcome the format, the time limits, and the competing voices to deliver the clarion call we wanted to hear. The heavens did not part, and no ray of light illuminated the Chosen One.

All that is true, and yet I think my disappointment has another cause. Candidates standing behind lecterns, arguing about funding mechanisms and timelines and the meaning of whatever one or another of them did or didn’t do decades ago — it all seemed so ordinary. It’s exactly what Democrats would be doing if it were 1976 and we were hoping to replace Gerald Ford, a nice conscientious guy who happened to be wrong about a few things.

It’s not that I’m disappointed with the policy proposals of any particular candidate. But any set of policies seems inadequate as an answer to the Trump phenomenon.

My regular readers know that I think Trump has terrible policies. On climate change, for example, he seems to be working to bring on disaster as fast as possible. His trade wars are stupid. He loves all the world’s bad guys (Putin, Xi, Kim, MBS, Duterte, Bolsonaro …) and does his best to piss off all the good guys (Trudeau, Macron, Merkel …). His immigration/asylum policies are largely illegal, not to mention intentionally cruel. He’s been trying for years to take health care away from millions.

And yet, the real impact of Trump strikes much deeper than any of that. He both reflects and exacerbates something horribly wrong in our country. All forms of racism, xenophobia, and anti-Semitism have become more acceptable on his watch. Lying has gone off the scale. All sense of fair play has vanished from our politics. Countless norms and practices that were supposed to protect us against corruption and tyranny have been scrapped. We used to worry about how lobbyists would influence government officials, but now we just appoint lobbyists to high office and eliminate the middlemen.

Raising the minimum wage or canceling student debt isn’t going to touch that.

I thought George W. Bush was a terrible president, certainly the worst of my lifetime up to that point. And yet, a change of policies seemed adequate to put him behind us. If Obama could have succeeded not just in avoiding the Depression Bush had set us up for, but also in ending Bush’s wars, closing Guantanamo, and reversing the tax cuts that had put our nation in such perilous fiscal shape, the negative legacy of the Bush years would have been almost entirely sealed off. Wrong-headed mismanagement had been the problem, and good management could fix it.

That’s not true this time. Something deep and dark is happening to our country. If we are fortunate enough to elect a Democrat in 2020, the new president will have to deal with a traumatized nation.

Bush told a few big lies, but Trump has damaged the very notion that we can find common truth. Any fact he doesn’t want to face is “fake news”. Any criticism is met with wave after wave of conspiracy theories against whomever has had the effrontery to call him to account. All inconvenient expertise is painted as corrupt, and countered with opinions “I heard” or “a lot of people are saying”, even if those opinions contradict each other.

Trump doesn’t just oppose anyone who looks into his actions, he dismisses their right to do so. Congress has no business overseeing his administration at all. The courts owe him deference that no other president has received. Investigating his misdeeds is “treason”.

America has always debated where the common good might be found, but Trump destroys the entire idea of the common good. He does not speak at all to the 54% of the electorate who voted for someone else. He stereotypes entire races, religions, and ethnicities, offering them as scapegoats for whatever afflicts his followers. If you are the wrong color or speak the wrong language, you can either support him or “go back where you came from”, even if you are a citizen, even if you were born here, even if the people of your district have overwhelmingly elected you to represent them in Congress.

And it’s not just him. He has a following. People don’t just like him or his policies, they like the fact that he insults and abuses other Americans. He has done little or nothing to help most of the people who voted for him, but they love how mean he is to the people they resent. The Republican Party as a whole now doesn’t even pretend to favor democracy. Elections are simply about winning, and it doesn’t matter whether you win via massive amounts of corporate cash, by making it hard for people to vote, by gerrymandering districts so that you retain power in spite of being opposed by a majority of voters, or even with help from foreign enemies.

If Democrats win in 2020, they can change a lot of those policies: restrain corporate political influence, end gerrymandering, guarantee the right to vote, and so on. But the Republican willingness to subvert democracy will still be there, as well as the belief that some people’s votes should count more than others, or that a loss is not really legitimate if it is based on votes from someone other than white Christians.

The crisis in this country goes way beyond the usual policy discussions, to the point that debating how fast to phase in universal health care or whether crossing the border without a visa should be a civil or criminal offense … it almost mocks the sense of trauma I feel, and that I think a lot of people share.

That’s why many of the most memorable lines of the Democratic debates have nothing to do with policy. When Kirsten Gillibrand said her first presidential act would be to “Clorox the Oval Office“, she was speaking to that sense of a deeper wrongness than can be fixed by an executive order. The White House needs an exorcism, not just a new resident.

But the candidate who most often points to the deeper trauma is the most unlikely candidate: Marianne Williamson. She has no qualifications for a high executive office and her policy agenda has a lot of holes, but she speaks the language of spiritual transformation rather than ordinary politics. In an otherwise critical article, Tara Isabella Burton sums her up like this:

Williamson, a self-help spiritualist (and sometime adviser to Oprah Winfrey), preaches a gospel of “love” and “oneness,” blending a chipper New Age sensibility with progressive politics. In the Democratic debate Tuesday, she condemned the “dark psychic force” of hatred that she said Trump has unleashed, saying it could be combated only by “something emotional and psychological” — which only she could bring forth — accompanied by a dose of “deep truth-telling” on the subject of race. She’s called for a “moral and spiritual awakening” in the United States.

NYT columnist David Brooks claims that she “knows how to beat Trump” via an “uprising of decency”.

Trump is a cultural revolutionary, not a policy revolutionary. He operates and is subtly changing America at a much deeper level. He’s operating at the level of dominance and submission, at the level of the person where fear stalks and contempt emerges.

He’s redefining what you can say and how a leader can act. He’s reasserting an old version of what sort of masculinity deserves to be followed and obeyed. In Freudian terms, he’s operating on the level of the id. In Thomistic terms, he is instigating a degradation of America’s soul.

We are all subtly corrupted while this guy is our leader. And throughout this campaign he will make himself and his values the center of conversation. Every day he will stage a little drama that is meant to redefine who we are, what values we lift up and who we hate.

The Democrats have not risen to the largeness of this moment.

I haven’t risen to the largeness of the moment either. But I sense the need, and I’m struggling to figure out what it would mean to address it.

Remember 1980, when conservatives were not just hurting politically, but felt that America was slipping away from them? Vietnam, Watergate, double-digit inflation, bankrupt cities, gas shortages, rising divorce rates … they also felt a sense of crisis that went beyond policy. From this remove, we tend to remember the policy agenda of the Reagan administration: low taxes, deregulation, strong defense, free trade. But 1980 was also the high point of the Moral Majority, which called the country back to the old-time religion of fundamentalist Christianity.

1980 wasn’t just about political change. It was about spiritual transformation. That’s how it changed the country in ways that we’re still dealing with today.

The Left also has an old-time religion, but it’s not the liberal Christianity Pete Buttigieg wants to invoke, or any form of institutional religion. It’s the hippie idealism whose wisdom found its way into countless songs: All you need is love. Everybody come together, try to love one another. We’ve got to get ourselves back to the Garden. Give peace a chance.

There’s a power there, and I’m not sure how to tap it. But I hope somebody actually qualified to be president figures it out soon.

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Reset: Investigations Post Mueller

July 29, 2019 – 11:33 am

Bob Mueller testified to two congressional committees Wednesday, the Judiciary Committee in the morning and the Intelligence Committee in the afternoon. [full transcript] For weeks it has felt as if everything related to impeachment and investigation has been on hold, waiting for Mueller’s testimony. Now Mueller is done: He finished his investigation, wrote his report, and testified about it in public. Mueller time is over; those of us who want Trump to be investigated and/or impeached won’t get any more help from him.

So let’s think about where we are and what we know. There are two sides to the investigation: the Russia side and the Trump side.

What Russia did. The Russia side of the picture is becoming fairly clear: The Putin government was trying to get Trump elected, and it succeeded.

Russian operatives hacked the DNC and Clinton campaign chair John Podesta, and then used WikiLeaks to orchestrate the release of the stolen emails at a pace and in a manner designed to keep Clinton constantly on defense. In parallel, Russia ran a sophisticated disinformation operation on social media with two main purposes: suppressing the black vote and preventing Bernie Sanders’ supporters from reconciling with Clinton. (Coincidentally, those were also goals of the Trump campaign.)

This was far more than the “couple of Facebook ads” in Jared Kushner’s disparaging claim. For example, the Russians created the fake “Blacktivist” identity, which had half a million Facebook followers. At one point the fake @TEN_GOP Twitter account had ten times more Twitter followers than the actual Tennessee Republican Party. Altogether there were more than 470 such groups. They helped propagate fake news stories like “WikiLeaks confirms Hillary sold weapons to ISIS” and “FBI Agent Suspected in Hillary Email Leaks Found Dead in Apparent Murder-Suicide”. (The Russians weren’t responsible for the entire fake-news ecosystem, but they helped.) The impact of fake news [1] on the election was huge.

There is still no evidence that they actively reached into voting machines and changed vote totals, but that’s not for lack of trying. Reportedly, Russia tried to penetrate election systems in all 50 states. According to the Senate Intelligence Committee, “Russian cyberactors were in a position to delete or change voter data” in the Illinois voter database. Whether they used that capability or not, the possibility has big implications for the future: If Russia wanted to, say, suppress the Hispanic vote in Florida, why not just delete the registrations of some or all voters with Hispanic names? They wouldn’t have to be inside the voting machines to swing an election.

Did the Russian activities make a difference? Yeah, probably. Without them, it’s likely Trump would not be president.

What Trump’s people did. From the beginning of the Trump/Russia investigation, I’ve had two questions about the Trump campaign and Trump transition team:

  • Why did Trump’s people have so many interactions with Russian officials, Russian oligarchs, and other people connected to Vladimir Putin?
  • When they were asked about those interactions, why did they all lie?

Those two questions have formed my standard of judgment ever since: If I ever felt like I could confidently answer them, I would believe we had gotten to the bottom of things.

I don’t think we have good answers to those questions even now.

I can imagine a relatively innocent answer for the first one: The Russians were trying to infiltrate the campaign, so they repeatedly contacted Trump’s people. But that answer just makes the second question more difficult, because then Trump’s people could have given perfectly innocent answers, like: “I wondered about that at the time. It seemed so weird that these Russians kept wanting to talk to me.” It would have been so easy to say: “Yeah, I talked to the guy, but I never figured out exactly what he wanted. I had a bad feeling about it, though, so I didn’t see him again.” Instead, they either made false denials, manufactured false cover stories, or developed a convenient amnesia around all things Russian.

Why? Innocent people don’t act that way.

Trump and his defenders have not offered an answer of any kind about the lying, and instead have done everything possible to distract us the question. All the wild conspiracy theories about the Steele dossier, the “angry Democrats” in Mueller’s office, Mueller’s supposed “conflicts”, the “witch hunt”, and so forth — it all has nothing to do with the two basic questions: Why meet with so many Russians? Why lie about it?

We still don’t know.

Obstruction of justice. One reason we don’t know more about those questions is that President Trump obstructed the investigation. This is pretty clear if you read the Mueller report: Volume 2 examines ten instances that might be obstruction, and finds all three elements of the definition of obstruction in seven of them. [2]

Two of the seven instances stand out: telling White House Counsel Don McGahn to fire Mueller, and witness-tampering with Paul Manafort. The first stands out because it is the clearest: McGahn refused because he knew at the time he was being asked to obstruct justice. (Trump apparently knew also; why else would he order McGahn to lie about it later?)

The second stands out because it might have had the biggest impact: Manafort was Trump’s campaign chairman, and was also feeding campaign information to a Russian intelligence operative. Honest testimony from Manafort might have told us exactly what Russia wanted to know, and maybe even what it did with that information. At one point, Manafort agreed to cooperate with Mueller’s investigation, but ultimately he lied to investigators and may have spied on Mueller for Trump.

If Manafort did that out of love, that’s one thing. But if he did it expecting that Trump will pardon him before leaving office, that’s witness tampering. Whyever he did it, Manafort closed the door on our best chance to know what really happened. [3]

Mueller’s report and testimony. Attorney General Barr did an amazing job of obfuscating Mueller’s written report: He delayed releasing the redacted version for several weeks, and in the meantime left us with the impression that the investigation had found nothing significant. Trump started summarizing Mueller’s conclusion as “No collusion, no obstruction” — which was false, but not provably false until later. “No collusion” was just a lie, and “no obstruction” was the conclusion Barr had been hired to announce; it was not Mueller’s conclusion.

Mueller’s actual conclusion about obstruction is subtle and easy to exaggerate in either direction. Department of Justice guidelines would not have allowed him to indict Trump while in office. Given that guidance, he concluded that it would be irresponsible to write a report saying that Trump obstructed justice, since there would be no trial in which Trump could dispute that claim. If, on the other hand, the facts allowed him to dismiss the obstruction claims, reporting that would be within his mandate.

Mueller was unable to dismiss the claims of obstruction, but he intentionally avoided making a charging decision. I read him as saying that someone who does have charging ability — either Congress now or a U.S. attorney after Trump leaves office — should look at the evidence he has assembled and make a charging decision. [4]

So it’s possible to quote Mueller and imply either that he is asserting or denying that Trump obstructed justice. Neither is quite true.

Media response. That kind of nuance doesn’t play well on TV, and so Mueller’s testimony this week didn’t produce the pivotal moment Democrats were looking for. He was asked to directly contradict several Trump talking points and did. (He testified that his investigation was not a witch hunt, Russian interference was not a hoax, his report did not exonerate Trump, etc. He also agreed that Trump’s written testimony was “generally” incomplete and untruthful.) But he did not tell the Judiciary Committee to start impeachment proceedings, or explain clearly to the American public why they should.

In addition to Mueller’s lawyerly reticence to exceed his role or speculate beyond what he could prove, he also appeared to have aged since the last time he had testified to Congress. He seemed tired and at times confused. He chose not to fight with Republican congressmen who put forward a variety of conspiracy theories that no one outside the Fox News bubble has heard of.

In short, he is not the man to rally the nation against its corrupt ruler.

For the most part, pundits judged Mueller’s testimony like a reality TV show. Jennifer Rubin critiqued the response:

I worry that we — the media, voters, Congress — are dangerously unserious when it comes to preservation of our democracy. To spend hours of airtime and write hundreds of print and online reports pontificating about the “optics” of Mueller’s performance — when he confirmed that President Trump accepted help from a hostile foreign power and lied about it, that he lied when he claimed exoneration, that he was not completely truthful in written answers, that he could be prosecuted after leaving office and that he misled Americans by calling the investigation a hoax — tells me that we have become untrustworthy guardians of democracy.

The “failure” is not of a prosecutor who found the facts but might be ill equipped to make the political case, but instead, of a country that won’t read his report and a media obsessed with scoring contests rather than focusing on the damning facts at issue.

What now? The burden now rests in two places: on House Democrats and on the general public.

The Judiciary Committee is continuing to seek information, and the Trump administration is continuing to stonewall it. In a court filing Friday, the Committee asked to receive evidence collected by Mueller’s grand jury. The filing implies that the Committee is already conducting a preliminary impeachment investigation.

the House must have access to all the relevant facts [regarding the president’s conduct] and consider whether to exercise its full Article I powers, including a constitutional power of the utmost gravity—approvals of articles of impeachment.

Unfortunately, the mills are grinding very slowly. The Committee still has not filed suit to enforce its subpoena of Dan McGahn, for example. That case might take months to wind its way up to the Supreme Court, and then we’ll see just how partisan this Court is: In numerous cases (like the Muslim ban) it has refused to look into possible illicit hidden motives of the executive branch. The case to block this subpoena is based on claims about the illicit hidden motives of the legislative branch. Will the Supremes rule that they are empowered to second-guess a Democratic Congress in ways that they can’t second-guess Republican president? That would be a striking message that the rule of law is essentially dead.

The other way this progresses is if the people rise up and demand impeachment, the way that people have risen up in Puerto Rico or Hong Kong. But will we?

[1] This is “fake news” in the original sense: posts designed to resemble news sites, but based on pure flights of fantasy. Trump later stole the term and now uses it to refer to any report he doesn’t like. But it once had an important meaning.

One striking feature of the Mueller report is how often a story that Trump labeled “fake news” was actually true.

[2] In addition, Trump refused to testify in person, and his lawyers threatened a subpoena fight that would have delayed the investigation for months or maybe years. Mueller eventually submitted a small number of tightly constrained questions, which Trump (or his lawyers) answered in writing. Nearly all his answers were some version of “I don’t remember.” Trump’s testimony, then, was neither incriminating nor exculpatory, because there was no real information in it.

[3] This is the difference between Trump’s “no collusion” mantra, and what Mueller really reported: that he could not assemble sufficient evidence to charge anyone in the Trump campaign with criminal conspiracy. Rather than “No collusion, no obstruction”, the real story might be “insufficient evidence of conspiracy, because obstruction succeeded”.

[4] About 700 former federal prosecutors have read Mueller’s report and said that they would charge Trump with obstruction, based on the evidence Mueller cites.

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A New ICE Policy Endangers Everybody

July 29, 2019 – 8:56 am

If you’re mistaken for somebody without the right to a hearing, who do you complain to?

Tuesday, the Trump administration expanded the concept of “expedited removal” to apply to “immigrants who can’t provide documentation that they’re in the United States legally and that they’ve been physically present here for at least two years”.

Expedited removal was created in 1996, and since 2004 it has mostly been used to quickly deport people apprehended while crossing the border illegally or within two weeks of entering the country. For years it allowed immigration officials to remove immigrants without a hearing or a review of their case if they were apprehended within 100 miles of the border.

What’s “expedited” about the process is that there’s no hearing before an impartial judge. Instead, you only get to talk to people who answer to Trump.

It will allow the Department of Homeland Security to deport people without having to place them in detention facilities for weeks or months while their cases are sorted out.

It’s not that cases will “get sorted out” faster, but that the system just won’t bother to sort them out at all. If you look suspicious (i.e., Hispanic) and don’t have believable documents on you, you could be gone just like that. (An exercise to try at home: If you were plucked off the street unexpectedly, how would you prove to DHS that you have been in the United States for the last two years?)

This raises a problem I often called attention to during the Bush administration: Whenever you eliminate due process for ANYBODY, you create a hole in the system that the rest of us could fall through. Back in the Bush war-on-terror days, the hole was to be declared an “enemy combatant”. Nobody outside the executive branch needed to be involved in that declaration, and once it was made, you had virtually no rights, not even the right to present evidence that the government had made a mistake. [Details here.]

The same principle applies to expedited removal. Our immigration officials have made a lot of mistakes, and now we’re eliminating one of the major ways mistakes get caught and corrected.

Consider, for example, 18-year-old native-born Hispanic-American Francisco Erwin Galicia. He spent more than three weeks in ICE detention because he couldn’t get ICE to believe his documents were genuine. If the new policy had been in place when he was picked up, he could have been whisked out of the country without ever seeing a judge.

Forget the specifics of immigration for a moment and just imagine any group of people who have no rights. (That’s exactly what Francisco says he was told when he insisted he had a right to a phone call to notify his mother. “You don’t have rights to anything.” He also didn’t have the right to a shower or decent food. He lost 26 pounds in 23 days.) If you get mistaken as one of those people, what can you do? The person they think you are doesn’t have to the right to tell a judge that you aren’t that person.

Even if you do get to see a judge, you might not correct the mistake if you don’t have an attorney to argue your case. Davino Watson was 23 when he was released from prison on a cocaine charge. ICE picked up him immediately and started deportation proceedings. Despite lacking a high school education, Watson correctly argued that he became a citizen at 17 when his Jamaican father was naturalized. He showed ICE officials his father’s naturalization papers.

ICE investigated his claim by not calling the number Watson gave them and instead contacting the wrong man (Hopeton Livingston Watson of Connecticut rather than Hopeton Ulando Watson of New York). The Hopeton Watson they talked to was not a citizen and did not have a son, so deportation procedures continued. Watson was held for 3 1/2 years before he was released. The $82,500 in damages that a court awarded him was reversed by an appeals court, because the two-year statute of limitations ran out while he was being held without access to a lawyer who would know stuff like that.

And in March, the Border Patrol held a 9-year-old American citizen for 32 hours because she gave “inconsistent information”, as 9-year-olds are prone to do once you’ve scared the crap out of them.

See the pattern? There are more such stories.

And those, I presume, are just honest mistakes made by over-zealous agents. What if someday an administration starts making such decisions in bad faith, and in massive numbers, without any judicial oversight? You might get deported simply because the current government finds your presence inconvenient.

It’s a simple principle: Denying anybody’s rights endangers everybody’s rights.

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Don’t Panic

July 22, 2019 – 9:16 am

Trump is using the same tactics that failed so badly in 2018. It’s not some stroke of genius. It’s all he knows.

I know. I felt it too.

When that crowd in North Carolina started chanting “Send her back. Send her back.”, it was like watching the videos of the Nazi book-burnings, when the flames shot into the sky, and people kept tossing more books onto the pile with a look of revelry on their faces.

The world just goes crazy sometimes. And once it starts, why should it stop? Why won’t that wave of insanity just sweep away everything in its path, leaving behind a country forever changed into something dark and unrecognizable?

Don’t panic.

The news coverage didn’t help. Pundits of the left and right alike were telling us that Trump had seized control of the narrative, and so the 2020 election won’t be about health care or climate change or anything Democrats want to talk about. It will be Trump against “radical”, “socialist” women of color. You may want to discuss democracy and corruption and the rule of law, but the only response you will get is to be asked why you hate America so much.

Don’t panic.

This isn’t some masterstroke of political genius. It’s a one-trick pony performing his one trick.

It’s frustrating, because there’s no immediate way to prove to ourselves that this appeal to America’s darkest impulses won’t work. It’s tempting to want to lash back somehow, but the election won’t happen for another 16 months, and that’s the response that really matters.

There are immediate things we can do, of course: Write a check to candidates with a healthier vision for America, or to organizations that do good work on issues we care about, or to any group that makes us feel hopeful. Volunteer. Organize. March. We can show our courage in public. (My hat is off to the 150 or so constituents who greeted Rep. Ilhan Omar, the target of the chants, at the Minneapolis airport. “Welcome home,” they chanted.)

I grant you: None of that will strike the decisive blow immediately. But what we need isn’t to lash out. It’s to be determined. Figure out what kind of determined mindset you can hold for the next 16 months, and get there as soon as you can. Battles like this aren’t won with flashes of anger. They’re won with day-in, day-out effort.

And don’t panic. Laugh, if it helps. Here’s how Trevor Noah handled the racist tweets that led up to the North Carolina rally. I found it hilarious.

And don’t forget: We’ve seen this before and it didn’t work. In the lead-up to the 2018 elections, Trump similarly seized control of the narrative. He turned the focus of the news towards immigrant caravans that were “invading” America, and painted the Democrats as the party of MS-13 and open borders. The result was the most decisive popular-vote total in a long time: Nancy Pelosi’s Democrats won 53%-45% nationwide. (Only gerrymandering stopped the Democrats from having the largest House majority in decades.)

2018 proved that Trump’s one trick could firm up his support among his base. That’s probably why Democrats lost Senate seats in North Dakota, Missouri, and Indiana. But it’s also probably why they won in Arizona. Trump’s base is not a majority of the country. It’s not even the 46% who voted for him in 2016. Chants of “Send her back” won’t just bring Trump’s followers to the polls, it will bring the marginal voters Democrats need in states like Michigan and Wisconsin.

We’ll get through this, as long as we don’t panic, don’t get intimidated, and don’t lash out. Channel your anger into determination.

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The Privilege of Being Normal

July 22, 2019 – 8:27 am

You can’t explain “white privilege” without first acknowledging that “privilege” used to mean something else.

A little over a week ago, Kirsten Gillibrand was confronted on the campaign trail by a woman who challenged what “so-called white privilege” could possibly mean in a place like Youngstown, Ohio. Youngtown has lost its factories and is ground zero of the opioid crisis. White people there are suffering. So how can they be “privileged”?

Gillibrand’s answer got applause from the room, was described by Vox as “spot on”, and was widely shared on social media: She acknowledged the distress of Youngstown’s whites, clearly stated that it’s “not acceptable and not OK”, but then segued to institutional racism, which she characterized as “a different issue”.

While in general I agree with what Gillibrand said, I wonder if the woman who asked the question really heard her yes-but answer. Gillibrand allowed that “no one in that circumstance [i.e., unemployed in Youngstown] is privileged on any level”, but then went on to talk about their privilege anyway. I wonder how many struggling whites will dismiss her response as confusing double-talk.

I think a proper answer to the Youngstown woman’s question has to start by recognizing that we use the word privilege differently than we used to. When that woman was growing up (or when I was), privilege was a kind of abnormality: Being privileged meant that you didn’t have the same worries as ordinary people. Privileged teens didn’t have to sweat about their grades or test scores, because of course they’d get into the same Ivy League college Dad and Grandpa went to. If they had trouble finding a first job, an uncle would invite them into the family business. If they had an idea for a business of their own, start-up capital would be available. And if that business failed, there would be more capital for a second or third try.

Privilege in that sense — which the Youngstown woman has probably never had — was summed up in the Barry Switzer line that Ann Richards applied to George Bush: He was born on third base and thinks he hit a triple.

But white privilege (like male privilege and straight privilege and all the other privileges we talk about these days) is fundamentally different: It’s the privilege of being seen* as normal. You still have to follow the rules, do the work, pay the bills, and so on, but whoever set the system up had people like you in mind. So the effort you put in has a chance to succeed. You weren’t born on third base; you had to hit the ball and run like all the other players. But nobody challenged your right to have a turn at bat.

Take me, for example. As the son of a factory worker and a secretary, I never got the kind of exceptional treatment a Bush or a Kennedy could expect. But all my life I have had the advantage of being classified as normal in a variety of beneficial ways: Police see me as a citizen to protect rather than a malefactor to control. Neither I nor anyone else ever had to wonder whether “people like me” can succeed in my chosen profession. Doctors take my complaints seriously. When I walk into a store, clerks think about what I might buy rather than what I might steal. The public has never debated whether people like me should be allowed to join the military or get married. No one stares when my wife and I walk down the street together. I can find a restaurant on Yelp and have confidence that the front door will be accessible to me, the staff will speak my language, the menu will include food I can eat, and no one will object if I use the bathroom.

None of that is anything like having a spot reserved at Harvard or a corner office waiting for me when I get out. But these days we call those things “privileges” in order to recognize that not everybody gets them. In some sense, my “privilege” has been to be treated the way everybody should be treated. But everybody isn’t treated that way in 21st-century America. And that’s the point we’re making when we talk about “white privilege” or any similar privileges.

* It’s important to understand something about normal: It’s not about what you are, it’s about how systems treat you. If some system works for you the way it’s supposed to, without anybody needing to step in and make some special exception, then for the purposes of that system you are normal. You may have purple skin and three heads, but if a bus picks you up and takes you where you’re going without incident, that bus has normalized you.

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Chief Justice Roberts OKs Minority Rule

July 1, 2019 – 11:30 am

If you’re a Republican, the demographic trends look bleak: Each cycle, your party’s core voters (white Evangelicals) become a smaller portion of the overall electorate. Worse, your positions on social issues (like gay rights) are turning off young voters, even if they’re straight and white, and your leaders target the fastest growing demographic (Hispanics) with vitriol almost every day.

You could try to change all that by shifting your positions. That’s what an RNC report recommended after Mitt Romney’s 2012 loss. But the party decided to go another way: Figure out ways to stay in power with fewer votes.

Minority rule. In certain ways, the US system already favors a Republican minority: Small red states like Wyoming or the Dakotas have just as many senators as liberal California, and the Electoral College tilts towards small states. But that natural advantage can be expanded: Voter suppression in Georgia allowed Republicans to keep the governorship there. And, of course, unlimited campaign spending helps Republican candidates win elections they otherwise might not.

But the real pillar of minority rule is gerrymandering. If you draw the districts properly, you can remain in power even if most voters are against you. And if you’re in a state where you have a small majority of voters, you can get a supermajority of seats in the legislature, allowing you to twist the system to your advantage in all sorts of ways.

Take Virginia for example. In 2017, Democrats overwhelmingly won the popular vote in House of Delegate elections, 53%-44%. All the seats were up for election, so you’d think they’d get control, wouldn’t you?

Such a quaint notion! In fact, Virginia delegate districts are gerrymandered all to hell, with the result that Republicans stayed in power: 51 seats to the Democrats’ 49. Apparently, Democrats would have to win by at least double digits to break the Republican dominance.

Same thing in Michigan. In the 2018 elections for the Michigan House, Democrats won the popular vote 52%-47%, but Republicans kept a six-seat majority, 58-52.

On the other hand, you have North Carolina. In 2016, Republicans won the popular vote in the NC House elections, 52%-47%, similar to the Democrats’ Michigan margin in 2018. But with a different result: Republicans got an overwhelming 74-46 majority of the seats. The Republican legislative supermajority was what allowed it to change the rules when a Democrat won the governorship. Maybe the voters still can give statewide offices to Democrats, but gerrymandering lets the legislature strip power away from those offices once Democrats win them.

That’s the essence of gerrymandering today: You don’t really need a majority of voters to keep power, and even a small majority will give you a constitution-amending supermajority, along with the ability to override the vetoes of any governor that the voters manage to elect over your opposition.

Best of all, it’s self-reinforcing: If the other party can’t break your hold on the legislature, then you get to improve your gerrymander every time there’s a new census!

The minority-rule Supreme Court. The Republican minority-rule majority in the Senate allowed Mitch McConnell to block President Obama’s last nominee to the Supreme Court, and to hold the seat open until President Trump (elected with only 46% of the vote) could fill it, as well as name a second justice after Anthony Kennedy retired. So the Court has a 5-4 conservative majority rather than the 6-3 liberal majority it would have if American voters had actually gotten their way.

So when a gerrymandering case came to the Court this term, it gave the five conservative judges a moral challenge: Defend democracy, or defend the partisan minority that appointed you?

None of them rose to that challenge.

The case. Ostensibly, the case was non-partisan, because it paired a Republican gerrymander in North Carolina with a Democratic gerrymander in Maryland. Both concerned districts for the federal House of Representatives.

But in the larger context the case was very partisan, because nationwide, the Republican Party has embraced gerrymandering whole-heartedly, while Democrats have hung back. When Democrats took over the House of Representatives in January, the first thing it passed was H.R. 1, which banned gerrymandering of congressional districts. (It’s not clear whether Congress has any power over gerrymandering of state elections.) But of course, that bill has never come up for a vote in Mitch McConnell’s minority-rule Senate.

John Roberts’ opinion. There was never any doubt that Justices Thomas, Alito, Gorsuch, and Kavanaugh would take a partisan Republican position. The question mark was Chief Justice Roberts, who ended up writing the majority opinion.

The gist of his opinion is that while of course he personally finds partisan gerrymandering to be a despicable practice, he can only wring his hands, because the law does not allow him to do anything to stop it.

Chief Justice Marshall famously wrote that it is “the province and duty of the judicial department to say what the law is.” Sometimes, however, “the law is that the judicial department has no business entertaining the claim of unlawfulness—because the question is entrusted to one of the political branches or involves no judicially enforceable rights.” In such a case the claim is said to present a “political question” and to be nonjusticiable—outside the courts’ competence and therefore beyond the courts’ jurisdiction. Among the political question cases the Court has identified are those that lack “judicially discoverable and manageable standards for resolving [them].” …

We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts. Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions.

The picture he paints is that if the Court interfered at all, then it would be forced to come up with its own answers to questions that ought to be decided by the political branches of government: How should districts be designed? What does it mean for an election to have a “fair” outcome? And so on.

He points out that gerrymandering happened in the era of the Founders, and that their solution to it was to balance state legislatures’ decisions against the check of the federal Congress, not the courts. He points out all the ways that political forces inside the states might defeat gerrymandering without court intervention:

Indeed, numerous other States are restricting partisan considerations in districting through legislation. One way they are doing so is by placing power to draw electoral districts in the hands of independent commissions. For example, in November 2018, voters in Colorado and Michigan approved constitutional amendments creating multimember commissions that will be responsible in whole or in part for creating and approving district maps for congressional and state legislative districts. Missouri is trying a different tack. Voters there overwhelmingly approved the creation of a new position—state demographer—to draw state legislative district lines.

Kagan’s dissent. Justice Elena Kagan acknowledges Roberts’ points, and gives a “close, but no cigar” response to each.

Yes, the Founders knew about gerrymandering, the same way that they knew about firearms. (My analogy, not hers.) But the modern version is a different animal entirely.

Yes, partisan gerrymandering goes back to the Republic’s earliest days. (As does vociferous opposition to it.) But big data and modern technology—of just the kind that the mapmakers in North Carolina and Maryland used—make today’s gerrymandering altogether different from the crude linedrawing of the past. Old-time efforts, based on little more than guesses,sometimes led to so-called dummymanders—gerrymanders that went spectacularly wrong. Not likely in today’s world.

And the thing Roberts said was impossible — judging that the gerrymanders in question were unacceptable without imposing your own vision of fair design and fair outcomes — was exactly what the lower courts had done.

The approach—which also has recently been used in Michigan and Ohio litigation—begins by using advanced computing technology to randomly generate a large collection of districting plans that incorporate the State’s physical and political geography and meet its declared districting criteria, except for partisan gain. For each of those maps, the method then uses actual precinct-level votes from past elections to determine a partisan outcome (i.e., the number of Democratic and Republican seats that map produces). Suppose we now have 1,000 maps, each with a partisan outcome attached to it. We can line up those maps on a continuum—the most favorable to Republicans on one end, the most favorable to Democrats on the other. We can then find the median outcome—that is, the outcome smack dab in the center—in a world with no partisan manipulation. And we can see where the State’s actual plan falls on the spectrum—at or near the median or way out on one of the tails? The further out on the tail, the more extreme the partisan distortion and the more significant the vote dilution.

The North Carolina plaintiffs randomly produced 3,000 districting maps that meet the legal criteria. All of them were more favorable to Democrats than the one the legislature adopted.

Under [the lower courts’] approach, in other words, the State selected its own fairness baseline in the form of its other districting criteria. All the courts did was determine how far the State had gone off that track because of its politicians’ effort to entrench themselves in office. …

The plaintiffs asked only that the courts bar politicians from entrenching themselves in power by diluting the votes of their rivals’ supporters. And the courts, using neutral and manageable—and eminently legal—standards, provided that (and only that) relief. This Court should have cheered, not overturned, that restoration of the people’s power to vote.

And finally, Kagan examined Roberts’ faith that the political system would fix this problem on its own.

The majority disagrees, concluding its opinion with a paean to congressional bills limiting partisan gerrymanders. “Dozens of [those] bills have been introduced,” the majority says. One was “introduced in 2005 and has been reintroduced in every Congress since.” And might be reintroduced until the end of time. Because what all these bills have in common is that they are not laws. The politicians who benefit from partisan gerrymandering are unlikely to change partisan gerrymandering. And because those politicians maintain themselves in office through partisan gerrymandering, the chances for legislative reform are slight.

No worries, the majority says; it has another idea. The majority notes that voters themselves have recently approved ballot initiatives to put power over districting in the hands of independent commissions or other non-partisan actors. Some Members of the majority, of course, once thought such initiatives unconstitutional. But put that aside. Fewer than half the States offer voters an opportunity to put initiatives to direct vote; in all the rest (including North Carolina and Maryland), voters are dependent on legislators to make electoral changes (which for all the reasons already given, they are unlikely to do). And even when voters have a mechanism they can work themselves, legislators often fight their efforts tooth and nail. Look at Missouri. There, the majority touts a voter-approved proposal to turn districting over to a state demographer. But before the demographer had drawn a single line, Members of the state legislature had introduced a bill to start undoing the change. I’d put better odds on that bill’s passage than on all the congressional proposals the majority cites.

She concludes:

Of all times to abandon the Court’s duty to declare the law, this was not the one. The practices challenged in these cases imperil our system of government. Part of the Court’s role in that system is to defend its foundations. None is more important than free and fair elections.

Potemkin democracy. My interpretation of these opinions is that Roberts (and the minority-rule court majority he leads) has no interest in actual democracy, just Potemkin democracy. As long as we have “elections” in which people vote and votes are tabulated, he’s satisfied. If the system has been rigged so that the same people win all the time, well, that’s just politics. And the Roberts Court is above politics.

What I think we should never lose sight of is how all these minority-rule actions build on each other, and then wrap around to cycle through again. A minority-rule Senate and a minority-rule President have given us a minority-rule Court. The Court now is returning the favor, helping the ever-shrinking conservative minority to maintain its hold on power into the indefinite future.

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