Category Archives: Articles

Minority Rule Snowballs

July 2, 2018 – 9:17 am

When I did my annual end-of-the-year review in 2013, “the biggest single theme” I picked out was Minority Rule:

Republicans have given up on the idea of persuading a majority to agree with them. Instead, conservatives plan to rule from the minority.

I listed a number of the tactics they had been using: voter suppression, gerrymandering, and judicial activism among them. I didn’t expect these tactics to work nearly so well as they have. Consider:

  • In 2016, Mitch McConnell led a Senate majority that represented far fewer Americans than the Democratic minority. [1]
  • He used that minority-rule majority to radically change the way the Senate considers presidential appointments, blocking President Obama (who had defeated Mitt Romney 51%-47% in the 2012 election) from appointing a new swing vote on the Supreme Court. Instead, McConnell delivered that appointment to Donald Trump (who, even with the assistance of a hostile foreign power, lost the popular vote in 2016 to Hillary Clinton 46%-48%).
  • Trump’s appointee, Neil Gorsuch, was approved by the Senate 53-46. The senators voting for him represented far fewer Americans than the senators voting against him. [2]
  • Thanks largely to gerrymandering, Republicans in the House have a larger majority of seats than they have of voters. In 2012, Republicans won a 33-seat majority even while losing the popular vote. This year, as Democrats run considerably ahead in generic-ballot polls, political scientists argue over how big the Democratic voting margin needs to be to take control of the House. Is 5% enough? Seven percent? Eleven? One very likely outcome from this fall’s elections is that Democrats win a clear majority of voters, while Republicans win a clear majority of seats.
  • At the state level, things are often worse. Last year in Virginia, Democrats failed to gain a majority in the House of Delegates, despite a landslide 53%-44% victory in the popular vote. In North Carolina, the population is split relatively evenly between the two parties; Trump won the state with just under 50% of the vote compared to Clinton’s 46%, but the Democratic candidate won the governor’s race 49.0%-48.8%, despite one of the country’s most outrageous attempts at voter suppression. Meanwhile, gerrymandering gives the Republicans a 74-46 supermajority in the General Assembly, making Governor Cooper (and hence, the voters who elected him) virtually powerless.
  • Since Gorsuch joined the Court, several partisan gerrymandering cases have come up. The Court has not taken a stand. Gorsuch apparently does not even have a problem with racial gerrymandering.
  • Gorsuch was also the deciding vote in a 5-4 decision allowing purges of the voting roles in a manner than is likely to disenfranchise many legitimate voters while preventing virtually zero illegal votes.

In summary, minority rulers in Congress, the White House, and state capitals keep changing the rules to make it possible to rule with ever-smaller minorities. And a minority-appointed Supreme Court is fine with that.

A certain amount of minority rule was built into the Constitution in institutions like the Senate and the Electoral College, but I don’t think the Founders envisioned even those mechanisms becoming as skewed as they are today. [3] The Founders hoped the United States could avoid splitting into political parties, so they certainly never envisioned the vicious cycle of minority-rule entrenchment we’re seeing now: A political party centered in the small states that the Constitution favors (and representing the interests of the very rich) has used that extra boost of power to make the system increasingly more anti-democratic, giving themselves legislative and executive sway well beyond their voting numbers, making it increasingly difficult for the majority to vote them out, disenfranchising many citizens who might vote against them in the future, tearing down any limits on the use of money in politics, and packing the courts with judges who will rubber-stamp their power-grab.

With Justice Kennedy’s retirement, the minority-rule president and minority-rule Senate have a chance to appoint another Supreme Court justice, tipping the Court’s balance further in their favor for many years to come.  Jonathan Chait notes:

Democrats have won the national vote in six of the last seven presidential elections, which, with the retirement of Anthony Kennedy, will have resulted in the appointment of eight of the Supreme Court’s nine justices. And yet four of those justices will have been appointed by presidents who took office despite having fewer votes than their opponent.

We can expect this new justice to make it virtually impossible for the Court to limit or mitigate the techniques of minority rule. [4]

Increasingly, that minority-appointed and minority-approved Court majority has become nakedly partisan. Justice Kennedy’s opinion-of-the-Court in Citizens United is a flight of fantasy in which unlimited corporate money improves the public debate prior to an election, because money (even money from profit-making corporations seeking government favors) is speech, and “There is no such thing as too much speech.” Chief Justice Roberts’ gutting of the Voting Right Act contains very little legal reasoning beyond his vague assertion that “things have changed dramatically” since the first version of the VRA in 1965.

It is no longer necessary to understand the laws or the Constitution to guess which side the Court will favor: Whatever improves Republican chances in the next election is good law. The Constitution’s guarantee of “a republican form of government” increasingly leans on the word form; if the formal process of an election is carried out, it doesn’t matter whether the sovereignty of the People is respected.

We know where this process can go: The end result is plainly apparent in Putin’s Russia, where Potemkin elections are held on a regular basis. The path is laid out by authoritarian “democracies” in Hungary and Poland, whose rulers have not yet achieved Putin’s level of security against the People, but are on their way.

None of that is inevitable, but it gets harder to turn things around the further we go. If the Supreme Court won’t protect democracy, then we will have to count on elected officials to do it. If it takes a 7% margin to control the House, we need to get that 7% margin. If winning the popular vote by three million votes isn’t enough to elect a president, then we need to win by four million votes. Gerrymander-ending laws that can’t get through gerrymandered legislatures need to be passed by referendum.

If a majority ever regains power, it shouldn’t be shy about using it: We need a constitutional amendment that controls corporate political spending. Voting rights need protection, and gerrymandering has to be stopped — by legislation if the Supreme Court will allow it, and by amendment if it won’t. The Electoral College has to be abolished. Citizens without representation in Congress need to get it: Puerto Rico needs to be offered statehood, and the District of Columbia needs representation. Breaking up the big states needs to be on the table.

The sovereignty of the People is a principle that runs deep in the DNA of American voters, even those who might favor conservative social policies. We need to make them understand the trade-off they’ve been making: An American Putin would do many things they’d like, but is it worth surrendering the Republic?

If we’re going to pull this out, we need to have all hands on deck. Apathetic citizens need to be convinced to care and to vote. The canards that “it doesn’t really matter” and “both sides are the same” need to be rejected. For the next few cycles, and maybe for the rest of our lifetimes, democracy itself is going to be the most important thing on the ballot. It’s going to be on the ballot in every election from president to school board. It needs to win.

[1] I couldn’t find a source to reference, so I calculated for myself. (You can check me if you want.) From a list of the senators by state, I determined that in 2016, 20 states had two Republican senators and 16 states had two Democratic senators (counting Bernie Sanders and Angus King as Democrats), accounting for an 8-seat Republican majority (54-46). I then went to the 2010 census and added up: The 20 two-Republican states had a total population of 99,576,045 and the 16 two-Democrat states totaled 126,215,202. I had not expected the margin to be quite so wide.

[2] By the same methods as above, 22 states had two senators voting for Gorsuch and one (Georgia) had one for and one not voting, so I’ll count Georgia’s population for Gorsuch. Those states total 108,613,347. Eighteen states totaling 135,574,383 people had two senators voting against Gorsuch. The other states had one senator for and one against, which I’ll regard as canceling out.

[3] The first census, in 1790, showed that the most populous state was Virginia, with 454,983 free inhabitants. The least populated state was Delaware, with 50,207, a ratio of about 9-to-1. In the 2010 census, California had over 37 million people and Wyoming 568,300, a 66-to-1 ratio. If you combine the populations of the seven states with less than a million people — Alaska, Delaware, Montana, North Dakota, South Dakota, Vermont, and Wyoming — you have 5.3 million people represented by 14 senators. That’s 1/7th the population of California with 7 times the senators.

The situation gets worse when you consider the Americans not represented in the Senate at all: 3.4 million in Puerto Rico and 700K in the District of Columbia. Puerto Rico’s population almost exactly matches that of Alaska, the Dakotas, Vermont, and Wyoming put together; those states have 10 senators.

The situation is somewhat better in the Electoral College, but still considerably less fair than in 1790. The first census gave Virginia 21 electoral votes and Delaware 3; 9 times the population produced 7 times the electoral votes. But today California has 55 electoral votes to Wyoming’s 3; 66 times the population produces 18 times the electoral votes.

It’s also clear what the Founders’ solution would be: Break up large states. In their time, Kentucky was created from land claimed by Virginia, and Vermont from land New Hampshire and New York were arguing over.

[4] Trump’s legal situation creates yet another problem: Probably, the Supreme Court is going to have to make some serious rulings about whether the president can be subpoenaed, when a corrupt pattern of pardons constitutes obstruction of justice, and even whether the president can pardon himself. Trump may well be deciding those issues himself right now, by choosing a justice who will rule in his favor.

By weeklysift | Tagged , | Comments (7)

You can’t compromise with bullshit

June 25, 2018 – 11:11 am

For the second straight week, I start with a Paul Krugman column. This time it’s “Return of the Blood Libel” from Thursday. The key observation concerns the Trump administration’s family-separation policy, the one that has obsessed the country for the least two weeks.

What’s almost equally remarkable about this plunge into barbarism is that it’s not a response to any actual problem. The mass influx of murderers and rapists that Trump talks about, the wave of crime committed by immigrants here (and, in his mind, refugees in Germany), are things that simply aren’t happening. They’re just sick fantasies being used to justify real atrocities.

This observation isn’t new, and Krugman isn’t the first to point it out. Trump started his campaign by talking about Mexican rapists. His acceptance speech at the Republican Convention warned that “illegal immigrant families … are being released by the tens of thousands into our communities with no regard for the impact on public safety or resources.” His inaugural address painted a picture of “American carnage” which he promised “stops right here and stops right now”. Yesterday he tweeted: “Strong Borders, No Crime!”, as if America had no indigenous criminals, but suffered only from rampaging gangsters that cross our borders.

And from the beginning, it’s all been bullshit. Violent crime is on a long-term downward trend in America, and very little of the remaining murder and mayhem is carried out by undocumented immigrants. If the US isn’t safe enough for you yet, neither the Muslim Ban nor the mistreatment of refugees from Central America going to make you safer. And if you ignore the nationwide stats and focus on a border town like Brownsville, Texas? “We’re doing fine,” says the mayor.

[Commenters have been confused by the “per 100,000 population”, so I’ll clarify. The question is: Is that per 100K of the state’s entire population, or per 100K of the named group? If it were the former, then the apparent pro-immigrant point is lost; there are more native-born people than immigrants, so of course they commit more crimes. But if you click through to the WaPo article I got the chart from, and then keep clicking until you get to their source, you wind up at a report from the Cato Institute, where the charts are labelled less ambiguously: “per 100,000 in each subpopulation”. So the chart is saying that immigrants commit fewer crimes per capita than native-born Americans.]

Lots of writers have making comparisons to the Nazis as they see the mindless cruelty of the family-separation policy, or the concentration camps that will be needed to hold all those waiting for immigration hearings, if they have to be held. (They don’t have to be held.) But Krugman points back to an even earlier era of anti-Semitism: the centuries of random riots and organized pogroms incited by the Blood Libel — the myth that secret Jewish Passover rituals required the sacrifice of Christian children. All it took was for a child to go missing at the wrong time, and mobs would descend on the local Jewish ghetto, seeking revenge for an imaginary horror.

Picture for a moment the helplessness you would feel if you were either a Jew or a sympathetic Christian hoping to prevent the upcoming Passover from ending in tragedy. You can’t get the Jews to stop sacrificing Christian children, because they were never doing that in the first place. The underlying cause of the looming riot is in a mythological realm you can’t access.

Same thing here. Both Presidents Bush and Obama imagined that they might be able to compromise with anti-immigration hardliners by strengthening enforcement. And so over the last 20 years we’ve had more and more fence built, more and more agents manning the border, more and more deportations. And what they’ve gotten in exchange is exactly nothing, because the border that matters, the one that murderers and rapists and drug mules are streaming across at will, isn’t in the real world at all. When the problem that motivates someone is imaginary, there’s nothing anybody else can do about it.

Some people, Andrew Sullivan for example, appear not to have learned this lesson. Just one more real-world effort, they think, and Trump’s irrationally fearful supporters will be satisfied:

So give him his fucking wall. He won the election. He is owed this. It may never be completed; it may not work, as hoped. But it is now the only way to reassure a critical mass of Americans that mass immigration is under control, and the only way to make any progress under this president. And until the white working and middle classes are reassured, we will get nowhere.

But why will they be reassured by a wall that doesn’t get completed and won’t work? Why will they be reassured by anything that happens in the real world? Won’t there still be examples of whites who get killed by undocumented immigrants? Won’t there still be unemployed whites who blame Hispanics with jobs? Won’t demagogues still tell them that subhuman vermin are streaming by the millions across our open borders? Build the wall, open concentration camps, start shooting illegal immigrants on sight — what changes?

You can’t compromise with bullshit. It isn’t just that it’s not smart; it simply doesn’t work.

This is an across-the-board problem with the Trump administration. Take Canada, for example. How is it going to shrink its trade surplus with the US when it doesn’t have a trade surplus with the US? What could possibly be done to end discrimination against Christians in America when there is no discrimination against Christians in America? How do we end the War on Coal when there is no War on Coal?

When claims are based on nothing, they can go on being based on nothing, no matter what you do to mollify the people who make those claims.

You can sympathize with people, even if they vote against you. And when they point to actual problems in the real world, you can offer them solutions, or at least concessions.

But the Jews of Prague and Warsaw had nothing to offer Christian parents who worried about their children being sacrificed and their blood baked into matzah. Their fear was quite real, but their problem lived in a mythic realm beyond any Jew’s influence.

Similarly, there is nothing we can offer those who worry about “American carnage” or the persecution of Christians or unfair Canadian trade.

Real-world solutions can’t touch imaginary problems. You can’t compromise with bullshit.

By weeklysift | Comments (15)

Family Separations: Should we be horrified, relieved, or just confused?

June 25, 2018 – 10:01 am

It’s not clear what Trump’s executive order means, or what will happen in 20 days.

The national outrage against the Trump administration’s family-separation policy kept ramping up until Wednesday, when Trump seemed to back down. But the executive order he signed is confusing, and what exactly it means is still being hashed out.

The fundamental contradiction. The heart of the problem is that the order mandates two outcomes that look contradictory:

  • It apparently endorses the zero-tolerance policy of criminally charging everyone caught crossing the border somewhere other than an official entry point. “This Administration will initiate proceedings to enforce this and other criminal provisions of the [Immigration and Naturalization Act] until and unless Congress directs otherwise.”
  • But it also seems to end the family-separation policy that zero-tolerance has led to: “It is also the policy of this Administration to maintain family unity, including by detaining alien families together where appropriate and consistent with law and available resources. It is unfortunate that Congress’s failure to act and court orders have put the Administration in the position of separating alien families to effectively enforce the law.”

So:

  • We’re going to continue enforcing the law.
  • Enforcing the law required us to separate families.
  • But we’re going to stop separating families.

Imagine that you’re a Customs and Border Patrol officer trying to obey this order: What do you do?

Flores. The most obvious answer is to imprison the children along with the parents. However, once you get past 20 days that is illegal under what is called the Flores settlement, a series of consent decrees the government has signed going back to the Clinton administration. Vox explains:

The Flores settlement requires the federal government to do two things: to place children with a close relative or family friend “without unnecessary delay,” rather than keeping them in custody; and to keep immigrant children who are in custody in the “least restrictive conditions” possible.

No judge is going to believe that jail or a government internment camp is the least restrictive condition possible.

The administration can’t just back out of Flores on its own; a court has to let them out of it. The executive order instructs the attorney general to ask the court to modify Flores “in a manner that would permit the Secretary, under present resource constraints, to detain alien families together throughout the pendency of criminal proceedings for improper entry or any removal or other immigration proceedings.”

But there’s really no reason why a court should do that — and the judge in charge seems particularly unlikely to — because the original reasoning of Flores still applies: The kids have done nothing wrong and don’t deserve punishment. The threat that the government otherwise will mistreat them in an even worse way (by separating them from their parents) is simple extortion, as I think the judge will clearly see.

Congress. Congress could supersede Flores by writing a new law explicitly describing how the children of parents charged with illegal entry should be handled. But with the Republican majority deeply divided on how harshly to treat immigrants, and the leadership unwilling to turn its back on its anti-immigrant radicals (and on Trump) to craft a compromise bill that could get Democratic votes, that’s very unlikely to happen, especially in the next 20 days.

Thursday, a far-right immigration bill failed to pass the House by a wide margin, 193-231. That vote was supposed to be followed by a vote on a less draconian “compromise” bill. (The compromise was between moderate and conservative Republicans. No Democrats were consulted.) But that vote was postponed until next week, because supporters couldn’t round up enough votes. In a tweet Friday, Trump reversed course on his demands for a new law, and instead urged Congress to “stop wasting their time on Immigration” until after the November election.

What does he think should happen to the families between now and November? It’s a tweet; there’s no space to spell that out. At any rate, it’s quite likely that neither the courts nor Congress will resolve the executive order’s contradictory instructions. What then?

Confusion within the administration. Thursday, CBP and the Justice Department made contradictory statements. A CBP official said:

We’re suspending prosecutions of adults who are members of family units until ICE (Immigration and Customs Enforcement) can accelerate resource capability to allow us to maintain custody.

But a DoJ spokesperson (coincidentally named Flores) said:

There has been no change to the Department’s zero tolerance policy to prosecute adults who cross our border illegally instead of claiming asylum at any port of entry at the border.

So it looks like the return to the previous procedures is temporary: Zero-tolerance prosecutions will resume as soon as CBP can find space to house the families, which will number in the thousands. Immigrant detention camps — there’s a debate about whether to call them “concentration camps” — are being assembled on military bases. This also was envisioned in Trump’s executive order:

Heads of executive departments and agencies shall, to the extent consistent with law, make available to the Secretary, for the housing and care of alien families pending court proceedings for improper entry, any facilities that are appropriate for such purposes.

These camps will set up a conflict with the courts: Flores allows holding children in such settings for 20 days. Trump wants to hold them “throughout the pendency of criminal proceedings for improper entry or any removal or other immigration proceedings”, which could be years. (The current average wait time at the most overloaded immigration court, in Houston, is 1751 days, or more than four years.)

Changing the process. That time could be reduced under a proposal by Ted Cruz to hire more judges, open more courts, and make decisions in 14 days. (That raises its own problems: A family that runs for its life and arrives on our border with nothing can’t put its asylum case together in 14 days.) Another option is to abandon due process altogether, as Trump proposed Sunday, tweeting:

We cannot allow all of these people to invade our Country. When somebody comes in, we must immediately, with no Judges or Court Cases, bring them back from where they came.

I’ll repeat a point I used to make when the Bush administration was threatening habeas corpus: Any time people can be imprisoned, deported, or otherwise harmed without a hearing, there’s a hole in the legal system that all kinds abuses can slip through. Suppose you, an ordinary American citizen, get swept up in an ICE raid by mistake. If there’s no hearing, who will you explain the mistake to? Or suppose it’s not a mistake, and somebody in ICE just doesn’t like you? You may find yourself on a street corner in Juarez, telling your story about how unfair this is to anybody who will listen.

If all this sounds crazy, that’s because it is. There actually is no emergency that requires this kind of response. There is a problem of rising backlogs in immigration courts. Cruz’ additional judges would help with this, but there’s nothing wrong with a case taking, say, months to assemble and decide, rather than 14 days.

In the meantime, there are far less cruel (not to mention less expensive) ways to handle the families than to lock them up, either together or separately. Sonia Nazaro explained in Friday’s NYT:

The family case management program, a pilot started in January 2016, allowed families seeking asylum to be released together and monitored by caseworkers while their immigration court cases proceeded. Case managers provided asylum seekers with referrals for education, legal services and housing. They also helped sort out confusing orders about when to show up for immigration court and ICE check-ins. And they emphasized the importance of showing up to all court hearings, which can stretch over two or three years.

The pilot was implemented with around 700 families in five metropolitan areas, including New York and Los Angeles, and it was a huge success. About 99 percent of immigrants showed up for their hearings.

It also did something Republicans love: It cut government spending. The program cost $36 per day per family, compared with the more than $900 a day it costs to lock up an immigrant parent with two children, said Katharina Obser, a policy adviser at the Women’s Refugee Commission.

The pilot, scheduled to last five years, was abruptly canceled by the Trump administration almost exactly a year ago.

Other alternatives to prison have also excelled. ICE has two programs that use electronic ankle monitors, biometric voice-recognition software, unannounced home visits, telephone reporting and global positioning technologies to track people who have been released from detention while their cases are being heard, at a cost of 30 cents to $8.04 per person per day. In 2013, 96 percent of those enrolled appeared for their final court hearings, and 80 percent of those who did not qualify for asylum complied with their removal orders.

The Trump administration isn’t being driven to harshness and cruelty, it is seeking out ways to be harsh and cruel. As Jeff Sessions and several other administration officials have admitted, the point is deterrence. Families that are being terrorized by gangs in Guatemala or Honduras need to understand that if they come here, we’ll terrorize them too.

Dehumanization. The main thing that has gone wrong for the administration these last two weeks is that the American people have been seeing asylum-seeking families as human beings. The recording of crying children at a toddler jail was effective because it brought home the point that these are just children, like your kids or anybody else’s. (This was precisely the point Fox & Friends host Brian Kilmeade needed to deny: “Like it or not, these aren’t our kids.“)

Trump has responded to this outpouring of human sympathy by doubling down on his dehumanizing rhetoric and his effort to raise fear of an imaginary immigrant crime wave. In Trump’s version of reality, families aren’t coming here to escape danger or seek a better life, they “invade our Country“. They “pour into and infest” America. They don’t establish families like human beings, they “breed” like rats. He responded to the sympathy Americans have shown for migrant families by hosting a meeting of people who have had relatives killed by undocumented immigrants. Unlike the families Trump has separated by government policy, these families are “permanently separated” — implying that the latter injustice somehow justifies the former. [1]

Sarah Jones writes in The New Republic:

Trump did not invent this language from whole cloth. Modern history is full of examples of political regimes that has described certain populations as subhuman—often to justify treating them as such. In the most extreme cases, that rhetoric preceded mass killing.

Trump’s dehumanization of Hispanic immigrants doesn’t have to go that far, but we don’t actually know where it’s going, and this kind of thing never goes anywhere good. Once you start thinking of people as less than human, and you gather thousands of them together in camps, how do you argue against any form of cruelty someone wants to inflict on them? (Miniver Cheevy makes the case that the Nazis (or at least not all of them) didn’t set out with the intention of genocide. But their short-term solutions to “the Jewish problem” left them with camps that were expensive to run and filled with subhuman vermin. When the Final Solution of annihilation was proposed, the logic seemed inescapable.)

Reunification. Even if the prosecutions and separations are suspended, what happens to the kids the government has already taken? CBP claimed on Friday that the 500 or so kids it hadn’t yet turned over to other agencies would be reunited with their parents by Sunday. But that leaves another 2,300 or so. (Homeland Security claims 2,053.) Often the parents have no idea where their children are, and it’s not entirely clear that the government knows either. (DHS claims it does.) A public defender described the situation in The Washington Post:

In a typical meeting, the defendants in a federal criminal case ask the same questions: How much time am I looking at? What do these charges mean? Is my judge fair? Should I go to trial or plead guilty? But things are different in El Paso now. In the wake of the Trump administration’s policy to purposely separate parents and children at the U.S.-Mexico border, my clients now ask: Where is my little girl? Who’s taking care of her? … I have to explain to these parents that I might never be able to answer their questions.

… At another hearing before a different judge, as one of my colleagues asked the agent on the stand about the whereabouts of our client’s child, the prosecutor objected to the relevance of the questions. The judge turned on the prosecutor, demanding to know why this wasn’t relevant. At one point, he slammed his hand on the desk, sending a pen flying. This type of emotional display is unheard of in federal court. I can’t understand this, the judge said. If someone at the jail takes your wallet, they give you a receipt. They take your kids, and you get nothing? Not even a slip of paper?

But that’s only a problem if you picture these families as human. If “they’re not our kids”, if they represent an invasion or an infestation that’s going to come here and breed, then everything is going fine. Carry on.

[1] For what it’s worth, I’ve discussed this fallacy before: You can play the same trick on any large group of people. For example, take Americans whose first names begin with D, a group that includes both myself and Donald Trump, plus millions of other people. Undoubtedly, some of those millions are criminals or even murderers. You could host a meeting of their victims, who do indeed deserve sympathy. But would that really make a case for throwing Trump and me out of the country?

Even if you ignore the collective-guilt problem — what does a murder committed by David or Denise have to do with me? — you’d need more than just anecdotes to make any kind of case at all. Are D-named people statistically more likely to commit violent crimes? Immigrants — illegal or otherwise — aren’t.

By weeklysift | Tagged | Comments (2)

Is Trumpism becoming a new religion?

June 18, 2018 – 11:23 am

His followers are certainly religious, but they’re not Christians any more.

When Jeff Sessions quoted Romans 13 (“Let everyone be subject to the governing authorities, for there is no authority except that which God has established. The authorities that exist have been established by God.“) to justify the villainous policy of taking immigrant children away from their border-crossing parents, he touched off a flurry of Bible-quoting in the media. Not only did Christian writers dispute his interpretation of Romans 13, which, after all, has been used to justify everything from slavery to the Nazi death camps, but they also unleashed a flurry of verses defending the rights of immigrants, such as Matthew 25:41-45, in which Jesus envisions Judgment Day proceeding like this:

Then he will say to those on his left, “Depart from me, you who are cursed, into the eternal fire prepared for the devil and his angels. For I was hungry and you gave me nothing to eat, I was thirsty and you gave me nothing to drink, I was a stranger and you did not invite me in, I needed clothes and you did not clothe me, I was sick and in prison and you did not look after me.”

They also will answer, “Lord, when did we see you hungry or thirsty or a stranger or needing clothes or sick or in prison, and did not help you?”

He will reply, “Truly I tell you, whatever you did not do for one of the least of these, you did not do for me.”

Or Leviticus 19:33-34, in the middle of the Laws of Moses.

When a stranger sojourns with you in your land, you shall not do him wrong. You shall treat the stranger who sojourns with you as the native among you, and you shall love him as yourself, for you were strangers in the land of Egypt

But if those writers were expecting Sessions to slap his forehead and say “Oh, right, I get it now!”, they were disappointed. The policy continues, and Sessions still supports it.

That’s how it’s been since Trump descended the escalator to announce his candidacy in 2015. Trump has stood pretty much in direct opposition to the message of Jesus. Jesus advised his followers to “turn the other cheek” when attacked; but Trump always “fights back” — even against gold-star parents or military widows or men about to die. Jesus spoke out for “the least of these”; but Trump likes “winners” and despises “losers”. Jesus said that marriage was for life; but Trump is currently married to his third wife, and he has cheated on all of them. Jesus emphasized love and compassion, but Trump has so little compassion that needed to take notes (written by somebody else) into a meeting with shooting survivors so that he could remember to ask them about their experiences and to tell them he had heard them.

For laughs, take the Trump or Jesus quiz and see if you can identify which leader said which quote. (It’s pretty easy.)

It’s hard to find any line of the Sermon on the Mount that Trump would support: He’s not just anti-immigrant, but also anti-health-care, pro-weapon, anti-feeding-the-hungry, and just generally against the poor and the meek wherever they show their miserable faces. He’s a compulsive liar who brags that he can grab women “by the pussy” and get away with it.

And he got 81% of the votes of white evangelicals.

The evangelicals who didn’t back Trump are starting to feel like they don’t belong; some are dropping the evangelical label altogether. The largest Protestant denomination, the Southern Baptists, may become a battleground. It’s newly-elected president wants the denomination to become less political:

We believe that Jesus is the lord of the whole earth. He is the king of kings and he is the lord of lords. We believe that he, not any version of Caesar, is the Messiah. He is the Christ, the son of the living God, that salvation is found in him, not in the Republican platform or the Democratic platform, and that salvation did not come riding in on the wings of Air Force One. It came cradled in a manger.

And yet, the same convention that elected him featured a speech by Vice President Mike Pence, which climaxed with Trump’s campaign slogan:

I know that with your support and prayers, with the strong support of leaders at every level of government, with President Donald Trump in the White House, and with God’s help, we will make America safe again. We will make America prosperous again. And to borrow a phrase — (laughter) — we will make America great again.

When the Trump evangelicals explain the issues that cause them to support him, they bring up topics that don’t appear in the gospels at all: abortion and homosexuality. (With the new immigration policy, they can’t claim “family values” any more.) On immigration, white evangelicals side with Trump against Jesus: 68% deny that America has a responsibility to take in refugees.

Whatever this is, it isn’t Christianity.

More and more, metaphors of religion are used to describe Trumpism. Bob Corker called it “cult-like“. Dana Milbank wrote: “This isn’t religion. It’s perversion. It is not the creed of a democratic government or political party but of an authoritarian cult.” Cal Thomas asks who evangelicals follow: Trump or Jesus? Elizabeth Bruening says that Sessions and Press Secretary Sarah Sanders are “inventing a faith” in which order is the highest good.

But what if it’s not just a metaphor? What if what we’re seeing is an actual schism in American Christianity? On one side will be a genuinely Christian Christianity, one that takes the words of Jesus seriously. On the other side will be a Trumpist religion that is nativist and supports all the traditional supremacies: white, male, heterosexual, and born to wealth. One side will concern itself with the poor and victims of injustice. The other will preach a prosperity gospel in which God wants you to be rich and has his own reasons to leave the poor in the gutter. One side will promote humility, the other will glorify men of large egos, who never apologize or admit their mistakes.

Something bigger than politics is going on here. It goes way beyond cutting or raising taxes or wanting a bigger or smaller military. A large segment of American Christianity has been drifting away from Jesus for many years. Now they have found their voice and their leader.

By weeklysift | Tagged | Comments (29)

The corporate tax cut will never trickle down

June 18, 2018 – 9:23 am

The immediate benefits of the corporate tax cut have gone to stockholders and executives rather than workers. The long-term benefits will too.

Dropping the corporate tax rate from 35% to 21% was the centerpiece of the tax reform package Republicans passed (with no Democratic votes) and Trump signed late last year. They sold that cut with the argument that lower corporate taxes would stimulate investment: Rather than build that new factory in Indonesia or Vietnam, a corporation might site it in Iowa instead, creating new jobs and raising wages. So while it might look like the benefits would go entirely to wealthy shareholders, in the long run that money would flow to American workers. American households, Trump economic advisors claimed, would see their incomes go up by $4000 a year over the next 3-5 years.

For a few weeks, it looked like the trickle-down was happening: A number of companies responded to the tax cut by giving their workers a one-time $1000 bonus — small potatoes compared to what the companies themselves were set to rake in, but not bad if it represented a down payment on future wage increases.

But how long would it take those increases to show up? Well, not immediately, in spite of the well-publicized bonuses. And not in one quarter. CBS reported in April that the corporate windfall (financed by increasing the federal budget deficit) was mostly going into stock manipulations.

In the first quarter, corporate America committed $305 billion to cash takeovers and stock buybacks, more than double the $131 billion in pre-tax wage growth for both new and existing workers subject to income tax withholding, TrimTabs calculates.

Worse, the Bureau of Labor Statistics is reporting bad news for “production and nonsupervisory employees”.

From May 2017 to May 2018, real average hourly earnings decreased 0.1 percent

The Washington Post elaborates, saying that this category “accounts for about four-fifths of the privately employed workers in America”. It also provides this graph.

How long? But it terms of the tax cut, it’s still early days. Of course the process of building new factories and hiring new workers would take longer than just a few months. So when should we expect the corporate tax cut to trickle down? Two years? Five years? Ten?

What about never?In his Friday column, Paul Krugman explains why the tax-motivated new factories and jobs and higher wages aren’t coming, not immediately and probably not ever. He labels his argument as “wonkish”, meaning that ordinary people who aren’t economists may find it hard to follow. So let me interpret a little.

The vision of low corporate taxes creating new jobs with higher wages comes from the Industrial Era, the age of coal-powered textile mills and Henry Ford’s assembly lines. Business investment in those days was mostly big, heavy equipment that cost a lot of money and was meant to last for decades or even longer. (I live in an apartment in a converted textile mill. The mill was built in the 1820s.) Businesses were national (or more likely, local) in those days, so a company located in Akron or Dearborn paid taxes in Akron or Dearborn.

That’s not what the economy looks like any more.

Tax havens. The biggest corporations are multi-national, and they book their profits in whatever countries their accountants choose. One trick is to transfer a company’s intellectual property to a foreign subsidiary, and then pay massive royalties and licensing fees to that subsidiary.

The rights to Nike’s Swoosh trademark, Uber’s taxi-hailing app, Allergan’s Botox patents and Facebook’s social media technology have all resided in shell companies that listed as their headquarters Appleby offices in Bermuda and Grand Cayman, the records show.

When pieces of your product — an iPhone, say — are made all over the world, who’s to say what country the profit is made in? Your accountants say. And they all say the same things: You made your profits in a tax haven.

Indeed, a tiny handful of jurisdictions — mostly Bermuda, Ireland, Luxembourg and the Netherlands — now account for 63 percent of all profits that American multinational companies claim to earn overseas, according to an analysis by Gabriel Zucman, an assistant professor of economics at the University of California, Berkeley.

Think about it: When was the last time you bought something marked “Made in Luxembourg”? Multinationals don’t build factories and employ workers in low-tax countries, they just route their profits there.

Krugman looks at the profit-to-wage ratio of foreign firms and local firms in a variety of countries.

If places like Puerto Rico and Ireland were just massively more productive than the US or Germany — producing enormous profits with relatively low labor costs — that would apply to their local firms too. But it doesn’t. For local firms, the ratio of profits to wages stays pretty constant across the board. It’s only foreign firms that have managed to unlock the Irish productivity miracle — not with actual production that employs workers, but via accounting tricks that claim profits produced by workers in other countries.

In short, multinational corporations have benefited enormously from Ireland’s generous tax laws. Irish workers, not so much. And with time, the corporations get better and better at gaming the tax system.

So lower US corporate taxes may induce corporations to book more of their profits here, for what that’s worth. But that’s an accounting gimmick, not an actual change in economic activity.

But even with that illusion making the effect look bigger than it is, won’t lower taxes still motivate investment and create jobs? Why doesn’t that work? This is where Krugman gets wonkish.

What investment means now. In the Industrial Era, nothing was more solid than a factory. Henry Ford started building his massive River Rouge complex in Dearborn during World War I, and it’s still there. Once it made Model T’s; now it makes F-150 trucks. The US Steel complex in Gary is even older, going back to 1908. Firestone in Akron, Caterpillar in Peoria — the big Industrial Era companies were virtually synonymous with the towns where their factories were.

In the Industrial Era, corporate investment was long-haul investment. You bought land and erected massive buildings to house huge machines. You dug canals and built railroad spurs that came right up to the beginnings and ends of your production lines. The industrialists who made those investments were looking half a century into the future, or even longer.

But most corporate investment these days is far more ephemeral. Take Google, the second-most valuable company in the world. What does it make exactly? Where is its River Rouge or Gary Works? If it wants to create a new product, it may have to hire some extra designers and programmers. But what does it invest in? An office, some computers. The office could be rented, the computers will be obsolete in a few years. Ditto for Facebook. Amazon also needs some warehouses, and maybe some robots to move boxes around. In a few years the warehouses could be somewhere else and the robots will be replaced by better robots. It’s all short-term stuff.

Whenever a company makes an investment, it’s weighing its expected profits against two things: the cost of capital (for example, the interest rate it has to pay on the money it borrows) and the depreciation rate (how fast the investment becomes obsolete). In the Industrial Era, when a factory complex or a railroad might be around for half a century, depreciation was low. So the cost of capital really mattered. If interest rates dropped from 6% to 4%, all your calculations changed. Investments you’d been putting off suddenly made sense again.

But when the equipment you’re buying is going to be scrap in 3-5 years, the cost of capital doesn’t matter nearly so much. Cutting interest rates still motivates people to buy houses, because those are long-term investments. But it doesn’t motivate business investment much any more. Krugman looks at the huge interest rate spike of 1979-1982, when the Fed pushed rates up over 20%. Housing investment crashed. Business investment not so much.

If that was divergence was happening already in the early 80s, it’s even moreso now.

What’s that have to do with tax rates? Now comes the wonky part:

What does this have to do with taxes? One way to think about corporate taxes in a global economy is that they raise the effective cost of capital. Suppose global investors demand an after-tax rate of return r*. Then the pre-tax rate of return they’ll demand in your country – your cost of capital — is r*/(1-t), where t is the marginal tax rate on profits. So cutting the corporate tax rate reduces the effective cost of capital, which should encourage more investment.

Let’s work an example of that. Suppose global investors are looking for a 5% return on their investment after taxes. (That’s Krugman’s r*.) If the corporate tax rate is 35%, they’ll need to make a pre-tax return of 7.7%. (That’s 5%/(1 – .35).) So for every $1,000 you invest, you make $77, you pay 35% of your profit in taxes ($27), and you wind up with $50, or a 5% profit.

Now cut the tax rate to 21%. Now you only need to make 6.3% before taxes to wind up with 5% after taxes. For every $1,000 invested, you make $63, pay 21% in taxes ($13) and wind up with $50.

So in this example, the tax cut effectively reduces the cost of capital from 7.7% to 6.3%.

That would have been a big deal to Henry Ford or Andrew Carnegie. Jeff Bezos or Mark Zuckerberg prefer the lower rate, of course, but it doesn’t drive their decisions in the same way.

Hence Krugman’s conclusion: It’s not that cutting corporate taxes will have no effect on jobs or wages, but it’s going to work out to a huge loss of goverment revenue in exchange for a small number of jobs.

But the vision of a global market in which real capital moves a lot in response to tax rates is all wrong; most of what we see in response to tax rate differences is profit-shifting, not real investment. And there is no reason to believe that the kind of tax cut America just enacted will achieve much besides starving the government of revenue.

The end result. Krugman’s argument needs one more step, because he leaves one question unanswered: Why should you care if the government collects less tax revenue? OK, maybe the lost revenue flows mainly to rich shareholders and billionaire CEOs and only a few jobs are created. Maybe the overall effect on wages doesn’t amount to much. But if it’s something, isn’t that good? The taxman may bag a little less — or even a lot less — but why should American workers cry about that?

Over the last few decades, conservatives have done a good job of convincing many Americans that taxes just go down a rat hole and aren’t connected to the valued services government provides. (In states like Kansas and Louisiana, though, people are starting to see the relationship.) And for the moment, Republicans have stopped worrying about the budget deficits that they were so focused on during the Obama administration. Less revenue means bigger deficits, but, again, why should you care?

Because deficit phobia will be back someday. We are already looking at trillion-dollar deficits beginning in 2020, and that’s under the assumption that we aren’t in recession by then. (This economic cycle is already getting a little old; that’s why unemployment numbers are so low.) In any serious recession — and one always comes eventually — the deficit will top $2 trillion, which is much higher than the record Bush/Obama deficit of FY 2009.

There is only one pile of money big enough cover a shortfall like that: entitlements like Social Security and Medicare. (We could zero out the defense budget and still have a deficit.) When Republicans remember that they care about deficits, that’s where they’re going to look.

So American workers who cheer for the corporate tax cut are like Esau being grateful to Jacob for his porridge: In the long run, the tax cut they let the rich monopolize will cost them their birthright of Social Security and Medicare.

By weeklysift | Tagged | Comments (14)

Thoughts on Depression Sparked by Anthony Bourdain’s Suicide

June 11, 2018 – 10:36 am

I imagine a lot of people have fantasized about being Anthony Bourdain, the star of CNN’s Peabody-winning “Parts Unknown” series, in which he traveled the world eating exotic food and meeting the people who made it. That was probably the most enviable job on television.

Friday, CNN announced that he had committed suicide. He was 61, my age. So I’m having a Richard Cory moment.

Bourdain’s suicide, coming so soon after that of fashion designer Kate Spade, has sparked a lot of discussion about depression. (I’m not sure we really know that either was depressed at the time, but it’s a plausible assumption.) Here’s my contribution to that conversation.

No one close to me has committed suicide, but I have watched both parents and at least one close friend deal with depression. I’ve also skirted the borderlands of depression myself on occasion. In my view, the most insidious thing about it is that it first attacks the faculties that you will need to fight it off. (That’s why all the “snap out of it” advice never works. The command center that could have received and acted on that message has already fallen.) You may not even notice what’s happening until the depression has you encircled.

That’s why I think everyone needs to set alarms at the border, so that you notice the slide while you still have the resources to turn things around. In my case, I’ve flagged two thought patterns. Whenever either of them shows up, I’m in danger and need to implement high standards of mental hygiene:

  • I can’t lean on my friends because they aren’t really my friends. Secretly, it would give them satisfaction to know that I’m doing badly.
  • I can still imagine things that would make me happy, but feel like they’re not worth the bother. Whether or not I enjoy my life is really not that important.

Those are mine; you may have other typical borderland thoughts. Try to identify them and notice when they start showing up.

So what are “high standards of mental hygiene”? Obvious stuff, mostly: Eat right, sleep well, get exercise, drop unrewarding responsibilities that cause unnecessary stress, indulge any creativity or playfulness you happen to notice in yourself (even if it seems silly), spend time with people who love you (and trust that they really do), expose yourself to whatever kind of beauty moves you. If you know any children who aren’t your responsibility, they tend to make good companions: They are naturally playful, and it’s hard to believe that they are devious enough to fake caring about you.

None of that cures a depression after you’re in it. But if you’re not quite there yet, maybe you don’t have to go.

By weeklysift | Comments (12)

Who won the Masterpiece Cakeshop case?

June 11, 2018 – 9:52 am

Technically, the Supreme Court ruled in favor of the baker. But it didn’t endorse any of the larger points he raised. What, if anything, does this mean for future cases?

The Masterpiece Cakeshop case is the legal equivalent of the movie Solo: Touted as a blockbuster in the series of landmark cases that includes Obergfell and Hobby Lobby, it turned out to be a dud.

You’ve probably already heard the basics of the case: In 2012, before same-sex marriage was legal in their state, Charlie Craig and David Mullins were planning to get married in Massachusetts, and then have a wedding reception back home in Colorado. They went to Masterpiece Cakeshop to order a custom-designed wedding cake, but the owner, Jack Phillips, refused to discuss it with them. Attributing his position to his Christian faith, he said he couldn’t be involved in celebrating a same-sex marriage. Craig and Mullins sued under Colorado’s anti-discrimination law, and they won at every level. So Phillips appealed to the Supreme Court.

What everybody expected. The case was supposed to be a 5-4 decision, as all nearly all the same-sex marriage decisions have been. Four conservatives (Thomas, Alito, Roberts, and Gorsuch) would line up with Phillips and four liberals (Ginsburg, Sotomayor, Breyer, and Kagan) with Craig and Mullins, with Justice Kennedy casting the deciding vote, as he usually does.

Nobody was too sure what he would do. He has authored (badly, in my opinion) most of the landmark gay-rights decisions of recent years, but (as part of the 5-4 majority in Hobby Lobby) he also was also known to be sympathetic to the kinds of religious-liberty arguments Phillips was making.

However this case came out, though, we were all sure it would have sweeping consequences: Either the Court would affirm that gays and lesbians have to be treated like everyone else, or it would establish “sincere religious belief” as a permanent loophole in our discrimination laws. [1]That’s not what happened.

Instead, the Court decided 7-2 that the Colorado Civil Rights Commission hadn’t handled this particular case with proper respect for Phillips’ religious views, and so the Court threw out the decision against him. Essentially, we’re back to Square One: It’s as if Craig and Mullins had never filed their complaint.

Here’s how limited the decision is: If tomorrow another same-sex couple goes to Masterpiece Cakeshop asking for a wedding cake and Phillips turns them down, nobody knows what will happen next.

This is how that 7-2 breaks down:

Thomas. Justice Thomas went whole-heartedly for the baker’s argument: Phillips is an artist, and the government cannot command him to create a message he finds abhorrent. Quoting previous free-speech cases, he says:

Forcing Phillips to make custom wedding cakes for same-sex marriages re­quires him to, at the very least, acknowledge that same- sex weddings are “weddings” and suggest that they should be celebrated—the precise message he believes his faith forbids. The First Amendment prohibits Colorado from requiring Phillips to “bear witness to [these] fact[s],” or to “affir[m] . . . a belief with which [he] disagrees.”

Gorsuch and Alito. Justices Gorsuch and Alito (with Gorsuch writing for both of them) believe that the Colorado Civil Rights Commission has itself discriminated against Phillips because of its hostility to his religious views. They see Phillips’ case as being equivalent to that of William Jack, who intentionally tried to create such a comparison.

[Jack] approached three bakers and asked them to prepare cakes with messages disapproving same-sex marriage on religious grounds. All three bakers refused Mr. Jack’s request, stating that they found his request offensive to their secular convictions. But the Division declined to find a violation, reasoning that the bakers didn’t deny Mr. Jack service because of his religious faith but because the cakes he sought were offensive to their own moral convictions.

… The facts show that the two cases share all legally salient features. In both cases, the effect on the customer was the same: bakers refused service to persons who bore a statutorily protected trait (religious faith or sexual orientation). But in both cases the bakers refused service intending only to honor a personal conviction. To be sure, the bakers knew their conduct promised the effect of leaving a customer in a protected class unserved. But there’s no indication the bakers actually intended to refuse service because of a customer’s protected characteristic. We know this because all of the bakers explained without contradiction that they would not sell the requested cakes to anyone, while they would sell other cakes to members of the protected class (as well as to anyone else).

… Only one way forward now remains. Having failed to afford Mr. Phillips’s religious objections neutral consideration and without any compelling reason for its failure, the Commission must afford him the same result it afforded the bakers in Mr. Jack’s case.

So that’s three votes for the baker’s case on the merits. Two more votes and Phillips would get the kind of result he (and the Alliance for Defending Freedom, the Christian-religious-liberty organization arguing his case) had been hoping for: At least in Colorado, bakeries (and presumably florists and caterers and all kinds of other businesses) would be free to deny their services to same-sex couples.

Kagan and Breyer. But you may have noticed a problem in the Gorsuch-Alito reasoning. How could they say Phillips “would not sell the requested cakes to anyone”, when he happily makes wedding cakes for opposite-sex couples? That’s because in their reasoning, a gay wedding cake is a thing. Phillips also wouldn’t sell a “cake celebrating same-sex marriage” to Craig’s mother, who is straight, so he’s not just refusing to sell to gays.

Justices Kagan and Breyer (Kagan writing) found this ridiculous. There is no such thing as a gay wedding cake. The product is just a wedding cake, and the fact that the cake will find its way to either a same-sex or opposite-sex wedding reception does not make it a different product.

And that’s the difference between the Phillips case and the Jack case: The anti-gay message in the Jack case was on the cake. (One cake would have said “God hates sin. Psalm 45:7” on one side and “Homosexuality is a detestable sin. Leviticus 18:2” on the other. Another Jack cake would have put a red X over an image of two groomsmen holding hands.) In the Phillips case the only problem was in the use of the cake and who was using it. Phillips might legally have refused to put overt pro-gay symbols or messages on the cake (say, a rainbow flag). But refusing to make any wedding cake, even one identical to one he would make for an opposite-sex couple, was discrimination.

However, Kagan and Breyer found that the Civil Rights Commission didn’t make that argument properly, and instead some of the commissioners made statements hostile to Phillips religion. This created the impression that the commissioners were responding to their personal beliefs rather than legal principles: They found Jack’s message offensive, but not the Craig-Mullin wedding cake. In short: The CRC could have justified the findings it made, but it didn’t, so its decision in this particular case should be thrown out.

Ginsburg and Sotomayor. Justices Ginsburg and Sotomayor (Ginsburg writing) spelled out in more detail the difference between the Jack and Phillips cases:

Phillips declined to make a cake he found offensive where the offensiveness of the product was determined solely by the identity of the customer requesting it. The three other bakeries declined to make cakes where their objection to the product was due to the demeaning message the requested product would literally display.

Ginsburg and Sotomayor scoff at Gorsuch’s notion that the product was a “cake celebrating same-sex marriage”.

When a couple contacts a bakery for a wedding cake, the product they are seeking is a cake celebrating their wedding—not a cake celebrating heterosexual weddings or same-sex weddings—and that is the service Craig and Mullins were denied.

The merits of the case matter more than any procedural errors the Commission may have made.

I see no reason why the comments of one or two Commissioners should be taken to overcome Phillips’ refusal to sell a wedding cake to Craig and Mullins. The proceedings involved several layers of independent decisionmaking, of which the Commission was but one.

The Colorado Court of Appeals, Ginsburg notes, “considered the case de novo“. (In other words: It started over, and considered the case on its merits rather than on the basis of what the Commission had done.)

What prejudice infected the determinations of the adjudicators in the case before and after the Commission? The Court does not say.

In a footnote, Ginsburg-Sotomayor also tear up Thomas’ free-speech argument: A message may be in Phillips’ mind, but it isn’t in the cake unless other people can see it there.

The record in this case is replete with Jack Phillips’ own views on the messages he believes his cakes convey. But Phillips submitted no evidence showing that an objective observer understands a wedding cake to convey a message, much less that the observer understands the message to be the baker’s, rather than the marrying couple’s.

It comes down to Kennedy and Roberts. So three justices agree with the baker on the merits and four don’t. But two of the four also find procedural problems in the rulings against the baker. So it’s already clear that the baker will win the case: The judgment against him will be thrown out. The question for the remaining two justices — Kennedy and Roberts — to decide is whether the Court will create a precedent that similar cases can appeal to.

Roberts’ thinking is usually subtle and often hidden. He will, at times, rule in a way that technically upholds a precedent, while re-interpreting it in a way that will ultimately undo it in subsequent cases. (In a current case that I’ll discuss in the weekly summary, his decision upholding the constitutionality of the Affordable Care Act in 2012 is now the basis for a new case claiming it is unconstitutional. He does that kind of thing.)

Roberts is happiest when he is changing society in a conservative, pro-wealth, or pro-business direction, but doing it behind the scenes. He doesn’t want the Court to make the kind of waves that could result in a major political backlash. (So, for example, he will write a decision that celebrates the principles behind the Voting Rights Act, while gutting the provisions that enforce it.)

This case is not Roberts’ style. He doesn’t want to author a sweeping takedown of anti-discrimination laws, and Kennedy isn’t going to go for that anyway. Also, he knows that the wind is blowing against him here. More and more, society accepts gay rights. The kind of sweeping decision Thomas, Gorsuch, and Alito want won’t look good in five or ten years.

So on this case he will keep his powder dry, uphold his (mostly false) image as a moderate, and go with what Kennedy wants.

Kennedy wants this case to go away. The decisions leading up to the full legalization of same-sex marriage (in Obergfell) are his legacy. When he eventually dies, that’s what his obituary will be about. He doesn’t want that record tarnished, least of all by his own decision.

But Kennedy is an empathy-based judge rather than a principles-based judge. [2] In this case, he seems to empathize with both sides: Craig and Mullin just wanted to have the same kind of wedding reception anybody else might have. Phillips didn’t want to be forced to act against what he saw as his religious convictions.

So the deciding Kennedy-Roberts opinion lets the baker off the hook on the narrowest possible grounds, without giving future courts anything to work with in similar cases.

When the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires. Given all these considerations, it is proper to hold that whatever the outcome of some future controversy involving facts similar to these, the Commission’s actions here violated the Free Exercise Clause; and its order must be set aside.

So the baker wins. But Kennedy leaves the larger issues open.

Our society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth. For that reason the laws and the Constitution can, and in some instances must, protect them in the exercise of their civil rights. The exercise of their freedom on terms equal to others must be given great weight and respect by the courts. At the same time, the religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression. [3]

I find myself sharing the concern Sarah Posner expressed in The Nation: “how assiduously Justice Kennedy labored to find government ‘hostility’ to Phillips’s religion”. If a judge searches the record hard enough, with hyper-sensitivity to a hostility that he has pre-decided must be there, won’t he always be able to find some evidence of anti-religious bias somewhere?

What will be the evidence of such supposed animus in the next case? A question from a judge at oral arguments? Deposition questions by government attorneys? That is the crucial open question from Masterpiece—not whether the next case will be more winnable for a gay couple without Masterpiece’s specific facts, but how hard opponents of LGBTQ rights will work to convince the courts that similar specific facts exist in that case, too.

What next? Neither side can take comfort in the numbers. Seven justices looks like a solid majority for the conservative side, but four of the seven are only citing procedural reasons for objecting to the Commission’s ruling, and not saying they should have ruled in the baker’s favor.

Similarly, six justices reaffirm that anti-discrimination laws can apply to gay couples, whose “dignity and worth” is not inferior to opposite-sex couples. But Roberts cannot be trusted. If he could have formed a conservative majority on the other side, he quite likely would have.

So here’s where I think we are: Roberts is stalling, with the hope of getting another conservative appointment out of Trump before the Court has to make a definitive ruling. If he gets that extra conservative justice, then the Court will rule decisively to gut anti-discrimination protections for gays and lesbians, using “sincere religious belief” as the loophole.

In the meantime, look for a series of cases like this one, decided on the narrowest possible terms, and usually in favor of the conservative side.

[1] Phillips’ defenders argue that discrimination against gays is special in some way, but it’s hard to see how. When inter-racial marriage was controversial, the arguments against it were also framed in religious terms. Slavery, segregation, discrimination against women — pretty much every kind of bigotry roots itself in religion when other supports start to fail. If “sincere religious belief” allows discrimination against Craig and Mullins, it’s hard to see how any discrimination law stands up.

BTW: Notice what I didn’t say there. I didn’t say that Christianity or any other religion is inherently bigoted. I’m saying that bigots will cloak themselves in religion, and will cherry-pick sacred texts to justify their bigotry. If courts let them get away with this dodge, anti-discrimination laws will be toothless.

[2] That is what has driven me nuts in his previous rulings. He consistently fails to enunciate principles that lower-court judges can apply, instead making what are essentially political arguments that one side or the other deserves to prevail. That is why same-sex marriage cases kept going to the Supreme Court. Kennedy’s opinions were murky, and lower-court judges disagreed about what they meant. Eventually each new case had to come back to Kennedy so that he could interpret himself.

[3] This kind of writing also drives social conservatives nuts. “Our society has come to the recognition …” What kind of legal principle is that?

Kennedy consistently acts the part of the stereotypic liberal-activist-judge who projects his own moral convictions onto the law. Ginsburg is much more liberal than Kennedy, but you’ll never find that kind of mushiness in her opinions. She defines terms, cites precedents, and enunciates principles that lower-court judges can apply with confidence.

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What is impeachment for?

June 4, 2018 – 9:07 am

During Obama’s presidency, Republican standards for impeachment were low and Democratic standards high. Now it’s the reverse. We need American standards that don’t change with the political winds.

Someday — maybe sooner, maybe later — Bob Mueller is going to issue his report on the Trump campaign’s relationship with Russia, whether Trump has been attempting to obstruct justice, and possibly other Trump-related scandals. When that happens, Congress and the American people will have to look at what has been found and decide what to do about it. Is it enough for an impeachment or not?

At that moment, partisans on both sides will adjust their standards to get the conclusion they want. Trumpists will put forward impossibly high standards for impeachment, and anti-Trumpists will drop their standards to match the facts available. Not admiring either of these approaches, I want to set out my general ideas about impeachment now, before we know what the evidence will say.

Previous impeachments. As background, let me start by confessing that I’m old enough to have watched two presidential impeachment processes: Nixon’s and Clinton’s. The two could not have been more different.

At the time of the Nixon impeachment hearings, the United States hadn’t impeached a president in a century. Leaders of both parties in Congress appreciated that they were wielding a fearful and awesome power. They felt the Eye of History watching them. So, while Democrats were in general the prosecutors and Republicans the defenders, both approached their roles with extreme scrupulousness. Both sides were determined to get to the truth of the matter rather than just to win.

The iconic question “What did the President know and when did he know it?” was asked by Republican Senator Howard Baker. The House Judiciary Committee’s decision to subpoena Nixon’s tapes of Oval Office conversations was overwhelmingly bipartisan (33-3). Of the five articles of impeachment considered by the committee, three were supported by some Republicans and three were opposed by some Democrats. In the end, Nixon resigned after a delegation of Republican leaders went to the White House to tell the President that they could no longer defend him.

By contrast, the Clinton impeachment was an entirely partisan exercise from beginning to end. Nixon’s special prosecutor (Leon Jaworski) had been a fellow Republican. But for Clinton, the first Republican special prosecutor hadn’t been rabid enough, so he was replaced with a more partisan one. The focus of the investigation kept shifting, eventually settling on Clinton’s sexual escapades. Even the obstruction of justice charge postulated a private conspiracy (inducing Monica Lewinsky to give false testimony in a civil lawsuit) rather than a misuse of presidential power. None of the 45 Democratic senators voted to convict on any charge.

During the Obama administration, Republicans would occasionally raise the idea of impeachment, but it was clear that their standards had declined even further since the Clinton era. Republican Congressman Kerry Bentivolio told a town hall meeting of impeachment-happy partisans that impeaching Obama would be “a dream come true”, but there was one tiny hurdle he didn’t know how to jump yet: “You’ve got to have evidence.”

Now, of course, Republican standards for impeachment are high again and Democratic standards have lowered. But what we need are American standards that we’re willing to apply to presidents of either party.

The Constitution only helps us up to a point. It lays down the basic process, but (as it so often does) leaves the details to the interpretation of later generations. Perhaps that openness is why the document has lasted this long.

I first formulated my ideas about impeachment during the Clinton process, and I will attempt to apply those theories to Trump, even though Clinton is a Democrat and Trump a Republican.

The bad-president problem. The Founders believed that any legitimate sovereignty had to come from the People, but they understood that the People would make mistakes. It was inevitable that sooner or later the United States would elect a bad president — a demagogue who was unwise, uninformed, and temperamentally unfit for the job.

It’s clear what they saw as the primary remedy for a bad president: Wait for his term to end and elect somebody else. (In the meantime, the other branches of government should use their checks and balances to minimize the harm he could do.) We may not have the same appreciation for the elect-somebody-else solution as the Founders, but you have to bear in mind that they were comparing the presidency to the monarchy of England. Alexander Hamilton wrote in Federalist #69:

The President of the United States would be an officer elected by the people for FOUR years; the king of Great Britain is a perpetual and HEREDITARY prince.

If England had a bad king, the solution was either to revolt or wait for him to die. But in the US, you could circle a date an a calendar and plan for the bad president to be gone. The Founders saw that as a big improvement.

So what is impeachment for? Impeachment is in the Constitution for those rare cases where the country just can’t wait. You can see that reflected in the clause that establishes it.

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

What makes treason and bribery so special that the Constitution names them? Each points to a problem more serious than mere incompetence or wrongheadedness or lax morals or bad temper. Both describe situations where the power of the presidency has been removed from the People and might possibly be used against them. A treasonous president is loyal to a foreign power; a bribed one is loyal to some private interest. The power of the presidency hasn’t just been used unwisely, it has been suborned or usurped. That’s a situation that can’t be allowed to continue.

Treason and bribery should be models for “other high Crimes and Misdemeanors”. That phrase, I think, is intentionally vague, to give Congress the leeway to do what it thinks it needs to do. But treason and bribery should set the bar: A legitimate impeachment case needs to argue that the Republic is in danger. There must be some reason why waiting for the next election either won’t work or isn’t good enough.

Reasons to impeach. If you buy that general framework, then legitimate reasons to impeach fall into four categories:

  1. The president is not loyal to the People of the United States. Basically, treason or bribery. A third offense, which in the Nixon impeachment was called “abuse of power”, is similar if a bit more vague: Loyalty to self has eclipsed loyalty to the country. The power of the presidency is being used not for the common good, but to enrich the president, to reward the president’s friends, or to punish his or her enemies.
  2. The president’s actions threaten the integrity of the election process. One reason we might not be able to wait for the next election is that the next election has been compromised. This was the heart of the Nixon impeachment: If a president can harass and spy on political rivals with impunity, then the whole election process becomes untrustworthy. You can imagine extreme cases where the president is winning elections by stuffing the ballot box, as happens in many pseudo-democratic countries.
  3. The president’s actions prevent investigations of (1) or (2). Obstruction of justice can be an impeachable offense, but it should only be used if the underlying charge has some can’t-wait significance. Nixon’s attempt to obstruct the investigation of the Watergate burglary had clear implications for the integrity of the election process. But whether or not Clinton obstructed Paula Jones’ civil lawsuit was an issue that could have waited.
  4. Congress has no other way to protect itself or the judiciary from presidential encroachment. This is not explicitly stated anywhere in the Constitution, but constitutional government doesn’t work otherwise. Congress necessarily relies on the executive branch to carry out the laws it passes. Presidents famously find loopholes that allow them to do things they want and avoid doing things they don’t want. But if a president ignores clear laws or disobeys direct court orders, Congress has to have some way to preserve the powers of the legislative and judicial branches of government. Waiting for the next election isn’t good enough, because (once the pattern is established) the next president might usurp power in the same way. Impeachment is the ultimate arrow in Congress’ quiver. If the Iran-Contra scandal had led to impeaching President Reagan, this would have been the justification.

A fifth condition is urgent in a similar way, but has its own constitutional process: A president who is insane or demented can be removed via the 25th Amendment, if the vice president and a majority of the cabinet believe he or she is unfit.

Reasons that aren’t good enough. Impeachment shouldn’t be seen as a do-over for the voters’ mistakes. No matter how many people change their minds, or how low the president’s popularity sinks, that by itself is not a reason to impeach.

Policy disagreements between the president and Congress aren’t impeachable, as long as the President is respecting Congress’ legitimate powers. Attempts to stretch presidential power into debatable areas — like Obama’s executive orders on immigration — are not impeachable if the president backs down when Congress passes new laws or the courts overturn the orders.

The president becoming an embarrassment to the country is not enough. This, I think, was the mistake at the heart of the Clinton impeachment: Many Americans were embarrassed to hear news reports about oral sex in the Oval Office. That might be a good reason to call for a president’s resignation, but not to impeach.

Loss of faith in the president’s judgment isn’t enough, unless it rises to 25th-amendment levels. If, say, a president were ready to start nuclear war for no reason, the vice president and the cabinet should step in. But if the president just demonstrates bad judgment within the ordinary human range, replacing him or her would be another form of election do-over.

Standards of proof. During the Clinton impeachment, my representative (Charlie Bass) was one of many Republicans who pledged that they would only vote for impeachment if the evidence were beyond reasonable doubt. (He lied, and voted to impeach anyway. It was certainly reasonable to believe that Clinton perjured himself or conspired in Lewinsky’s perjury. Depending on your opinion of Clinton’s character, that may even have been the more likely possibility. But by no stretch of the imagination was the case against Clinton proved beyond reasonable doubt.) I think they made that pledge because they knew that the charges against Clinton were legalistic rather than based on the kind of emergency concerns the Founders envisioned.

But is the criminal-trial standard — beyond reasonable doubt — really the appropriate one? What if members of Congress are only 90% convinced that the president is a traitor? Should they wait for the next election?

Clearly not.

Criminal conviction can take away the freedom we all value and view as our right. But political office, especially a high political office like the presidency, is an honor and a privilege rather than a right. Taking it away just reduces a president to the same level as the rest of us. So the standards of proof required shouldn’t be as high as in a criminal trial. (After a president is removed from office, a criminal indictment might follow. At that trial, the beyond-reasonable-doubt standard would apply. So it would not be unreasonable to remove a president from office via impeachment, and then fail to convict in the subsequent criminal trial. Both outcomes might be appropriate responses to the evidence.)

The House and Senate play different roles in an impeachment, and they should apply different standards. The House is like a grand jury; essentially, it is voting to indict. The Senate is the trial jury; it is deciding whether to convict. I think the House should turn the reasonable-doubt standard upside-down. Voting to impeach should mean two things:

  • The charges are serious enough that they can’t wait until the end of the president’s term, and Congress has no less drastic way to deal with them. If they are true, the president needs to be removed as soon as possible.
  • The evidence could lead reasonable people to believe that the charges are true.

The Senate is making the more serious decision. If the House impeaches, the trial in the Senate will be stressful for the country, but by itself the trial does no real harm. (The country survived the Clinton trial with little damage. The situation when Clinton’s term expired — peace, a budget surplus, low unemployment, low inflation — was arguably better than at any time since.) Improperly removing a duly elected president, though, would be a serious blow to our constitutional system.

The Senate has to weigh the risks on each side: Voting to acquit leaves a possibly dangerous president in office until the end of the term, and tells future presidents that Congress will tolerate the impeached behavior. Voting to convict might damage the presidency and devalue future elections. Which path into the future is better for the country and our system of government?

Application to Trump. It’s possible that Mueller might find the exact wrong-doing that the Constitution specifies: If Trump conspired with the Russian government to gain an advantage in the 2016 election, and if his subsequent favoritism to Russian interests stems from his political debt to Putin, that’s treason. If he has been making foreign-policy decisions based on foreign-government actions that benefit him financially (like the Chinese investment in the MNC Lido City project), that’s bribery. Those would be the slam-dunk cases.

Abuse of power accusations (like his alleged pressure on the postmaster general to raise rates on Amazon to strike back at Jeff Bezos for The Washington Post’s hostile coverage) haven’t gotten as much attention, but would also be serious if they could be proved — not just the fact of pressure, but also the intent. But I would want to see a pattern of such reprisals — like Nixon’s enemies list — rather than just one example.

The offense Mueller is most likely to find is obstruction of justice. The question I would have at that point is whether the obstruction succeeded. (Firing Comey, for example, may have been intended to derail the Russia investigation, but it obviously didn’t.) If Mueller’s conclusion is that Trump’s obstruction prevents us from knowing whether he was part of a treasonous conspiracy, then I would want to impeach him for that. But if Mueller did in fact get to the bottom of the Russia affair, then the impeachment decision should be based on the answer to that question.

One outcome, for example, could be that Trump played no part in the Russia conspiracy, but obstructed justice to cover up crimes committed by his sons or by son-in-law Jared Kushner. If that’s the case, I would indict those people immediately, and prosecute Trump for obstruction after his term ends. It’s a crime, but it’s over now, and waiting does not endanger the country.

I suspect there is considerable evidence that Trump is profiting off his presidency in ways that don’t quite rise to the level of bribery. For example, he could hardly be doing any more to promote Mar-a-Lago than he has been, including spending large quantities of public money there. (Trump’s trips to Mar-a-Lago have cost the taxpayers more than the entire Mueller investigation. “Probably several times over,” estimates the WaPo’s Philip Bump.) The Trump International Hotel in Washington profits extensively from foreigners attempting to curry the President’s favor. (The Trump Organization donated $151K in foreign-government profits to the Treasury, but has not explained how it came up with that number. I would be amazed if it were a fair accounting.) Michael Cohen has collected millions in what appear to be payments for access to the Trump administration, but we still don’t know if Trump conspired in that, or whether the payments bought any government favors.

However, Congress could crack down on Trump’s profiteering without resorting to impeachment. He (and future presidents) could be required to publish their tax returns. Congress could investigate the Trump Organization and do its own accounting of politically tainted profits, or insist that Trump divest (and let him decide whether he would rather resign). It could refuse to spend public funds on any businesses owned by the President. Conflict-of-interest rules that apply to every government official except the president could be extended.

Congress hasn’t done these things because Republicans don’t want to take any action against Trump. It’s crazy to imagine that impeachment is feasible as long as such common-sense moves haven’t been made. Impeachment is a break-glass-in-case-of-emergency last resort; if anything else could fix the problem, it should be tried first.

To be continued … Chances are, not all of the conclusions of the Mueller investigation will be clear-cut. There may be some evidence of collusion with Putin, but not definite proof. It may be impossible to establish whether Trump’s reluctance to sanction Russia was a quid-pro-quo or not. I’ve laid out my general principles on impeachment, but those kinds of judgment calls can’t be made without seeing the specific evidence.

When that evidence comes out, I can only hope that I and the Congress and Americans on both sides of the partisan divide will understand the gravity of the judgment to be made, and that we will all feel the Eye of History watching us.

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It’s time to let Israel be a country

May 28, 2018 – 10:50 am

The assumptions behind the United States’ Israel policy are obsolete, and many were never realistic. It’s time to go back to Square One and rethink.

Since its founding seventy years ago, Israel has consistently been more of a symbol or a fantasy to Americans than a real place. I can’t pretend to grasp the full significance it has for American Jews, but for the rest of us Israel has meant the Holy Land, a way to make right the collective guilt we felt for doing so little to avert the Holocaust, the heroic Sabras of Leon Uris’ Exodus, a demonstration of the West’s superiority to the decaying Orient, a Cold War destination for talented Jews abandoning the Soviet Union, a David-and-Goliath story of one tiny country standing up to larger ones, and many other things that have been (at best) tangentially related to a real country of real people.

For Evangelical Christians, the founding of Israel started a prophetic clock ticking down to the End Times, when all the Jews who don’t convert will be sadly wiped out, but the rest of us will get to live in Jesus’ Millennial Kingdom. Socialists have idealized the kibbutzim. The alt-Right sees Israel simultaneously as the place they will someday deport American Jews to, and as a model for the ethno-religious state white Christians could make here and in Europe. For globalists, the peace we will someday broker among Israel, its indigenous Palestinians, and its Arab neighbors will prove the righteousness of American power in a unipolar world. For neo-cons, Israel represents a no-nonsense approach to the terrorist threat, unclouded by the hazy illusions of political correctness.

All these constructions are built on a foundation of stereotypes, both positive and negative, about Jews. They are God’s chosen people, the invisible and infinitely manipulative Elders of Zion, both the relatives and the accusers of Jesus, the fast talkers who can sell anything, the source of inexplicably many of the West’s foundational thinkers, or the bankers who always win because they have backed both sides. You can hear echoes of these ancient, quasi-supernatural Jewish powers whenever a conversation turns to Mossad or AIPAC or the Rothschilds or that nebulous collection of “Jews who control the media”. Ordinary notions of possibility and impossibility melt away; they’re Jews, who knows what they can do?

From the beginning, Israel has been both the beneficiary and the victim of the fantasies we project onto them. The benefits have been tangible: billions in American aid every year, American military technology, and the protection of both the American nuclear umbrella and the US veto in the UN Security Council. But our illusions have also been freighted with expectations: Israel should be better than other countries, and should be condemned and even punished when it isn’t.

During the 1948 war that established Israel as a country, Arabs terrified by both real and imagined Jewish atrocities fled the war zone, creating a refugee population that under international law has a right to return home. Since the 1967 war created the Occupied Territories, Israel has ruled a subject population that it treats badly.

But lots of countries are in violation of some international law or another, and lots have subject populations that they treat badly. (Some countries treat all their people badly.) Try being Shia in a Sunni country like Saudi Arabia, or Sunni in a Shia country like Iraq. Hindus and Muslims oppress each other in India and Pakistan. In Myanmar, the Buddhist majority is pushing Muslim Rohingya out of the country, even though they have nowhere to go. Americans, if we bother to inform ourselves about these situations at all, wring our hands helplessly. We don’t organize boycotts or insist that our church or university’s endowment divest holdings tainted by association.

In recent years, Israel’s internal politics have taken a disturbing rightward turn, with growing intolerance and disregard for abstract principles of justice. But so have Hungary’s and Poland’s and (let’s be honest) our own. What fault can you find in Netanyahu that isn’t also present in Trump?

Recent events have been hard to square with American illusions about Israel. Two weeks ago, the United States dedicated a new embassy in Jerusalem, abandoning a long-held bipartisan policy that such a move should wait for a peace treaty putting the status of Jerusalem on a firm international foundation. While this was happening, Palestinian protesters rushed the fence that keeps them trapped in Gaza, and Israeli snipers shot them down by the dozens.

Viewed through one lens, the shooting was entirely justified: The protesters — all hostile, some armed, all attempting to cross an international border — constituted an invading army, or at least an invading mob. Viewed through another, it was a gross overreaction: The Israelis had ample warning and held all the cards; surely they could have devised some less lethal method of crowd control without endangering their soldiers or citizens. Gazan lives, it seems, don’t matter.

For decades, the United States has tried to restrain Israel’s more extreme tendencies. We have discouraged building settlements on disputed territory, pushed for cease-fires, and sometimes even brokered treaties like the Camp David Accords. We have styled ourselves as the holders of the vision of peace, and so we have consistently urged Israel not to do things that can never be undone.

We don’t do that any more. UN Ambassador Nikki Haley was full-throated supporter of the Israeli snipers. “No country in this chamber would act with more restraint than Israel has,” she told the Security Council. If the Trump administration believes this, it is chilling. It suggests that’s Trump’s wall might someday be manned by snipers indiscriminately gunning down Mexicans because some of them might be MS-13 gangsters.

Increasingly, it is clear that there isn’t going to be a negotiated peace. Gaza is the new model of resolution: Israel will dictate terms. It will set boundaries for zones of Palestinian autonomy, and will decide what that autonomy consists of. Like the reservations the US created for Native Americans, the Palestinian zones will not be economically viable, at least not for the number of people assigned to live there. The best land and the water rights will be reserved for Israeli settlements. As with the Native American reservations, non-viability will be a feature. America hoped its Indians would eventually assimilate into second-class citizenship in white society; Israel hopes that Palestinians will self-deport to Jordan or Egypt or anywhere Israel doesn’t have to deal with them.

All of these developments should raise a question: What is the US role going forward? For decades, Americans have believed that our aid gave us leverage, which we could use to nudge all parties towards a peace agreement. But if we’re not nudging and there isn’t going to be an agreement, what is our aid for? What are we buying? What are we supporting? Why?

I am not proposing answers to those questions. But I am urging all Americans, whether you think of yourself as pro-Israel or anti-Israel or neutral, to rethink your view from first principles. What if we all stopped thinking about Israel in mythic or symbolic terms and instead just thought of it as a country like any other country? In some ways it is like us and in some ways not. In some ways we share its interests and in other ways we don’t. It does things that deserve our support and things that deserve our condemnation.

Like any other country.

When we let go of all the fears and fantasies that we have projected onto Israel, what is left? How should we respond to the reality of Israel as country like any other country?

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Outlines of a Reading Project on Class

May 28, 2018 – 9:06 am

Lately I’ve been reading a lot about the class divide in America — a topic that has been on my mind for several years, but has acquired a new significance in the Trump Era. Probably all this research will eventually result in a long article where I try to find some deeper insight, but in the meantime I’ll just summarize what I’ve been reading, in case you want to read along with me.

A great place to start is “The 9.9% is the New American Aristocracy” by Matthew Stewart in The Atlantic. Wealth, as many authors have shown, is increasingly accumulating in the top tenth of a percent. But beneath that layer of plutocrats is the rest of the top 10%, which mostly consists of educated professionals with a decent amount of economic security, who have pleasant homes in safe neighborhoods with good schools, read magazines like The Atlantic, and do physical labor only to the extent they want to. (I wasn’t born into this class, but that’s where I am now. I suspect most — but not all — of my readers are 9.9-percenters also.)

Collectively, we control more than half of American’s wealth, a percentage that has held fairly steady for decades. The gains of the top .1% mostly haven’t come from us, but at the expense of the bottom 90%. Stewart says:

By any sociological or financial measure, it’s good to be us. It’s even better to be our kids. In our health, family life, friendship networks, and level of education, not to mention money, we are crushing the competition below. But we do have a blind spot, and it is located right in the center of the mirror: We seem to be the last to notice just how rapidly we’ve morphed, or what we’ve morphed into.

What we’ve morphed into is a hereditary aristocracy; it’s increasingly hard for people not born into this class to join. On its surface, the system looks like a meritocracy, but we’ve gamed it. Winning the race requires the kind of preparation that only aristocratic kids are in a position to get. Like Jane Austen’s aristocrats, we have a strong tendency to intermarry, closing off that point of entry. We also feel very little guilt about leaving the classes below us in the dust: In the Game of Life, we tell ourselves, they just didn’t measure up. (Chris Hayes made a similar point several years ago in The Twilight of the Elites.)

The middle-working class — let’s leave the boundaries of that vague for now — consists of people who didn’t make it into the aristocracy, but have what Joan Williams in her book White Working Class calls “settled lives”: They aren’t college educated, but they are consistently employed and have stable homes with (mostly) solid families. They typically have jobs rather than careers, and they get their identities from family and community (often a church community) rather than from their professions. (Even if you have lucrative lifelong employment as a plumber or electrician, it’s what you do, not who you are.)

Members of this class take a lot of pride in the disagreeable things they’ve had to do to stay out of poverty — the long hours of unrewarding work, the desires they’ve had to suppress, the dreams they’ve had to defer, etc. — and they picture poor people as lacking the same moral stamina. (That’s why it aggravates them when government programs let the undeserving poor enjoy some of the same rewards they take pride in earning. Liberals, they feel, are trying to erode the significance of their moral achievement.) They have different cultural values than the aristocrats and are annoyed by our belief that they tried to be us, but just failed. They don’t actually want to be us, but they envy our generational stability, because (as the kinds of jobs that underwrite settled lives go away) they see no guarantees that their children won’t be poor.

They also resent the hell out of us, much more than they resent the .1%. The plutocrats are like distant kings, but working-class folks have to deal with aristocrats every day. We’re their bosses and the doctors who talk down to them. We’re their hard-to-please clients, the consultants who come in to tell them that they’re doing it all wrong, and the experts who observe and interview them in hopes of replacing them with machines. We’re the talking heads on TV who use big words and insist that they’d agree with us if only they had read enough books to know what they’re talking about.

Trump made it to the White House by playing on that resentment. (Historically, the 9.9% has been split between the parties or even leaned Republican. But many never-Trump conservatives are 9.9 percenters, and congressional seats in professional-class suburbs are viewed by Democrats as pick-up opportunities.) Since taking office he has done virtually nothing to help the working class — not even the white working class. But he remains popular among them because he gives voice to their resentment of the 9.9%.

Williams’ point is that we aristocrats should try harder to understand and show respect to the working class, which is true as far as it goes. But The Washington Post’s Paul Waldman points out a disagreeable truth: Professional-class liberals — or even just reality-based anti-Trump conservatives — are kidding themselves if they think respect is some kind of “magic key that Democrats can use to unlock the hearts of white people who vote Republican”. No matter how respectful a candidate or a set of policies might be, that message will never get through the filter of “an entire industry that’s devoted to convincing white people that liberal elitists look down on them.”

If you doubt this, I’d encourage you to tune in to Fox News or listen to conservative talk radio for a week. When you do, you’ll find that again and again you’re told stories of some excess of campus political correctness, some obscure liberal professor who said something offensive, some liberal celebrity who said something crude about rednecks or some Democratic politician who displayed a lack of knowledge of a conservative cultural marker. The message is pounded home over and over: They hate you and everything you stand for.

Essentially, conservative media is like the community gossip who constantly starts conversations with “Did you hear what so-and-so just said about you?” No matter how respectful the bulk of us may eventually learn to be, somebody somewhere is always going to be dissing working-class whites, and Fox News will make sure that they hear about it.

Even when that disrespect is absent, it is easily manufactured. Waldman points out how out-of-context quotes were used to skewer Barack Obama and Hillary Clinton. Everyone knows that Clinton thinks working-class Trump voters are “deplorable”, and Obama believes they are “clinging to guns and religion”.

Finally, the consequences of this class divide are discussed in Ganesh Sitaraman’s book The Crisis of the Middle-Class Constitution. Unlike previous republics, the United States didn’t write the class struggle into its constitution: Rome, for example, balanced an aristocratic Senate against the veto-wielding Tribunes of the People. Britain separated the House of Commons from the House of Lords. America didn’t do anything like that.

Instead, the Founders counted on relative equality of wealth and the presence of a large middle class to maintain a balanced society. Those are the conditions our system of government is designed for, and at various key points in American history (the homestead era, the Progressive Era, the New Deal) the government made deliberate choices that preserved the middle class and prevented either plutocratic domination or a revolution of the dispossessed.

Now we’re in an era of increased concentration of wealth and power by the .1%. Now more than ever, if we’re going to preserve our system of government, we need the 9.9% and the working class to band together against the domination of the super-rich. But how is that going to happen?

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