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Two Cheers for Justice Kennedy

June 29, 2015 – 8:43 am

By all means, celebrate. But, looking to future gay-rights cases, Justice Kennedy gave us more rhetoric than precedent.

Friday, the Supreme Court ended the decades-long legal debate on marriage equality, making same-sex marriage legal for the entire nation in Obergefell v Hodges. Across the country, supporters of gay rights were jubilant as they read to each other delicious paragraphs out of Justice Kennedy’s majority opinion. But I have a complaint: Justice Kennedy got the right result for the wrong reasons, and that will eventually cost us.

Not in other marriage cases — that’s over, just like everybody says. But Kennedy’s soaring rhetoric about the dignity of gay relationships wasn’t supported by a sound legal framework that we can use in, say, employment equality cases.

The DOMA hangover. As regular Sift readers know, I have mixed feelings about Justice Kennedy, particularly on the subject of gay rights. He tends to rule the way I want, and he’s often the swing vote that puts my position over the top. But being the swing vote, he usually ends up writing the majority opinion, and he writes it badly. That’s what happened when the Court threw out the Defense of Marriage Act (DOMA) two years ago, which I covered (along with Chief Justice Roberts’ hamstringing of the Voting Rights Act) in an article I demurely called “This Court Sucks“. And it happened again Friday.

The reason Obergefell came to the Court in the first place was that lower courts could not follow Kennedy’s mushy reasoning in the DOMA case. The Supreme Court is supposed to do more than just decide the current case, it’s supposed provide interpretive frameworks for lower courts to apply, so that future cases can be decided without involving the Supremes again. But when Judge Kean was throwing out Oklahoma’s ban on same-sex marriage, for example, he wrote that he had “gleaned” — not quoted, gleaned — two principles from Kennedy’s DOMA opinion. Other courts gleaned other principles and disagreed, so the highest court had to sort it out.

This time, Kennedy has made marriage equality the law of the land, but he’s done it with another piece of mushy reasoning that is a poor climax to the distinguished series of lower-court decisions supporting same-sex marriage, going all the way back to the 2003 Goodridge decision in Massachusetts. Instead of following the compelling logic laid out by one lower court after another, Kennedy’s opinion looks like exactly what critics of marriage equality say it is: a judge redefining marriage according to his own values. His ruling is full of beautiful tributes to the dignity of same-sex couples, but short on the kind of step-by-step legal thinking you can find in the lower-court rulings, which I summarized last month.

Due process isn’t enough. Every pro-marriage-equality judge I know of, other than Kennedy, has centered the argument on the 14th Amendment‘s guarantee of “the equal protection of the laws”. As I summarized:

In practice, that phrase has been interpreted to mean that if the government treats some people differently than others, it has to have a good reason. The more significant the discrimination, the weightier the reason needs to be.

That’s why laws that provide a marriage option to opposite-sex couples but deny it to same-sex couples are in trouble: because it’s increasingly hard to say what legitimate reason the government might have for that discrimination.

… So the claim that gays and lesbians want to “redefine marriage” has it exactly backwards. During the last century-and-a-half, marriage has already been redefined. And in marriage as it exists today — rather than during the Revolution or the Civil War — what’s our justification for refusing its advantages to same-sex couples?

Instead, Kennedy focuses on the 14th Amendment’s due-process clause, and finds a fundamental right to marry in the word liberty. His rhetoric is inspiring if you already agree with him, but if you don’t, his reasoning isn’t compelling. The dissents by Roberts, Thomas, Scalia, and Alito eviscerate his argument, and rightly so.

Kennedy’s biggest problem is that the Constitution doesn’t require governments, either federal or state, to recognize marriage at all. (If Oregon wanted to become “the free love state” and stop performing marriages entirely, that would be up to Oregonians.) Liberty traditionally means being left alone by the government, not that the government must help you in some way. So Roberts makes an argument that appears in some form in all the dissents:

Our cases have consistently refused to allow litigants to convert the shield provided by constitutional liberties into a sword to demand positive entitlements from the State.

The question Kennedy should have raised is: Once the State has defined the “positive entitlement” of marriage for some people, what’s its justification for denying those benefits to others? But that’s an equal-protection issue, not a liberty issue.

In short: the ruling came out the right way, but the people who still want to hold out against marriage equality feel vindicated in their view that the Court has usurped the power of the legislative branch by “redefining marriage”. It didn’t have to be like this. Why, oh why, couldn’t Justice Ginsburg have written this ruling?

Why it’s important. The lower courts nearly all used the equal-protection framework: Define a level of scrutiny appropriate to laws that discriminate against gays, and then examine the government’s reasons for discriminating under that level of scrutiny. One of the issues to decide, if you go that way, is whether gays and lesbians are a class that has traditionally faced discrimination, and so how much benefit of the doubt a legislature or electorate should get as to its motives.

Racial discrimination, for example, faces the highest level of scrutiny. As a matter of judicial precedent, laws that discriminate against traditionally disadvantaged racial groups are inherently suspect. Similarly, laws that discriminate against women are inherently suspect. It’s possible that some particular race- or gender-discriminating law can be justified, but a court will not give the government any benefit of the doubt.

The traditional discrimination against gays and lesbians certainly would justify giving laws against them some heightened level of scrutiny, but the Supreme Court has never done so. Kennedy doesn’t do so either.

Pro-marriage-equality judges who don’t invoke heightened scrutiny are forced to give the legislative branch the benefit of the doubt. And so they end up having to argue that same-sex marriage bans are completely irrational. That argument has been made, and was sitting there for Kennedy to endorse. He didn’t.

Going either way would have established a precedent for fighting other anti-gay discrimination: Either anti-gay discrimination would face heightened scrutiny in the future, or there would be a precedent for saying that certain kinds of anti-gay discrimination are irrational.

Instead, Justice Kennedy gave us just this result, justified by a lot of effusive rhetoric that has no further legal consequences.

The “threat to American democracy”. All four dissents lamented a judicial usurpation of powers properly belonging to the democratic branches — which is in fact a fair criticism of the argument Kennedy made. The place for flowery rhetoric is in the legislature or on the campaign trail. But it wouldn’t have been a fair criticism of the equal-protection argument Kennedy avoided.

Dahlia Lithwick raised the right question:

And all I could keep thinking was, “Where was all this five unelected judges chatter when you all handed down Citizens United? Or Shelby County? Why does this rhetoric about five elitist out-of-touch patrician fortune-cookie writers never stick when you’re in the five?”

The most-quoted Roberts line was:

Indeed, however heartened the proponents of same-sex marriage might be on this day, it is worth acknowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause.

If you’re a straight person very distant from the gay community, this might sound convincing. But if you imagine yourself in the place of a same-sex couple, it isn’t convincing at all. Would you rather have widespread social approval ten years from now, or the equal protection of the laws today? The answer is pretty obvious.

The comparison to interracial marriage is apt. XKCD draws the chart:

Our fellow citizens are being persuaded of the justice of marriage equality — not, for the most part, by referendum campaigns, but by living in society with same-sex couples. That process will continue apace.

In these the-sky-will-fall-if-we-allow-this situations, most people have to see something in action before they realize the panic-mongers are conning them. As I predicted back in 2003:

Personally, I expect the same-sex marriage issue to follow the same course as interracial marriage. After a few years of Chicken-Little panic, the vast majority of Americans will recognize that the sky has not fallen, and that the new rights of homosexuals have come at the expense of no one.

Today, no one cares how interracial couples got the right to marry. Most young people have trouble believing it was ever an issue. (Have you ever tried to explain to a teen-ager why his friend’s parents’ marriage would have been illegal 50 years ago? I have.) So it will be for same-sex marriage.

By weeklysift | Tagged , , | Comments (13)

Please Take Down Your Confederate Flag

June 22, 2015 – 7:05 am

It’s his flag, not yours.

Friday, I was walking along Main Street in Nashua, New Hampshire, a few blocks from where I live, when a pick-up truck drove by trailing a full-size Confederate battle flag behind its cab.

The truck didn’t stop, so I didn’t have a chance to ask the driver what message he thought he was sending. But I know what message I received. A little more than 36 hours had passed since Dylann Roof had murdered nine black people at a prayer meeting in Charleston, South Carolina, saying “You rape our women and you’re taking over the country. You have to go.” So, given the timing, what such a vigorous display of that flag said to me was: “Right on, Dylann.”

It’s possible that I’m misjudging that driver. Maybe he’s a Southerner stuck in New England for the summer, showing his regional pride. Maybe he’s a Lynyrd Skynyrd or Dukes of Hazzard fan who hadn’t been listening to the news at all. Maybe he’s the kind of guy who just likes to get a rise out of people like me. Maybe … I don’t know. I can spin possibilities all day, but the message I keep coming back to is: “Right on, Dylann.”

It pissed me off. I’m white, I’ve never been to Charleston, and to me Roof’s nine victims are little more than names and faces on my TV. But I imagine being gunned down in my church by someone I welcomed, and I get angry. And then I feel sad. And then I despair that we will never be done with this ancient tribal barbarism, much less ever achieve our stated national goal of “liberty and justice for all”.

As the truck went by, I didn’t respond, didn’t yell an insult or wave my middle finger or anything like that. To be honest, it was gone before I could react. But I like to think I would have restrained myself anyway. Because my anger, my sadness, my despair … maybe that was exactly what the driver wanted from me. Maybe hate-evoking-hate was exactly his purpose.

I don’t know what purpose motivates the government of South Carolina, or the legislature that put Dylann Roof’s favorite flag on top of the capitol in Columbia in 1961, and responded to an NAACP boycott in 2000 by moving it to fly in front of the capitol rather than above it. (Because the details of its presentation are enshrined in law, the flag could not be brought to half-mast in response to the Charleston massacre. So the American flag was lowered, but the Confederate flag was not.) I can’t say what motivates leaders like Governor Haley or Senator Graham to continue defending that flag.

Probably no state is more identified with the Confederacy than South Carolina, and no city more than Charleston. In 1860, South Carolina was the first state to secede from the Union. Charleston harbor was where the Civil War’s first shots were fired. Charleston is where the Southern delegates walked out off a Democratic convention set to nominate likely general-election winner Stephen Douglas, splitting the party and setting the stage for Lincoln’s election and South Carolina’s secession. (According to historian Douglas Egerton, that series of events was foreseen and intended by the walkout’s leaders.) Years before that, South Carolina was the home of John Calhoun, whose speech “Slavery a Positive Good” announced to the Senate the arrival of the defiant, self-righteous Southern attitude that laid the groundwork for secession and war. (Calhoun’s statue still stands on a pedestal high above Charleston. The Emanuel AME Church where the massacre took place is on Calhoun Street.)

For decades after Appomattox, the Confederate flag was displayed mainly at cemeteries and war monuments, but it became a political symbol again after President Truman desegregated the military in 1948 and Strom Thurmond’s Dixiecrats rebeled. Truman was succeeded by Eisenhower and Kennedy, each of whom sent federal troops to enforce the Supreme Court’s desegregation decisions. As the federal government became more and more identified with the civil rights movement, states and cities across the South began flying the Confederate flag over their official buildings. As in the 1860s, the flag represented “states rights”, but particularly a state’s right to oppress its Negro population.

South Carolina started flying it over the state capitol in 1961. After the Voting Rights Act restored the franchise to South Carolina’s blacks, the flag became a political issue. The slogan of those whites who want to keep it flying has been “heritage, not hate“, as if the heritage of South Carolina and the Confederate flag could somehow be separated from slavery, segregation, lynchings, and all the other manifestations of racism right up to Wednesday night’s massacre.

Since Wednesday, there has been a national backlash against the flag. In The Atlantic, Ta-Nehisi Coates wrote “Take Down the Confederate Flag – Now“, and many other writers and bloggers have posted some similar message, often in an angry or demanding voice. Hundreds protested in Columbia Saturday, but South Carolina’s political leadership has held firm. That intransigence has prompted calls for protesters to take more drastic action.

In that South Carolina will never willingly take down the flag, the time has come for opponents to exercise their First Amendment right to free speech and burn the Confederate flag — at the state Capitol in South Carolina, in front of the White House, in front of Fox News or maybe even outside the Grand Ol’ Opry.

One white supremacist’s merged symbol.

The writer angrily compares the flag to the Nazi hooked cross, and I’ve seen many blog articles and Facebook posts referring to it as “America’s swastika” or “the Confederate swastika“. (I found a literal Confederate swastika posted on a forum of the white supremacist group Stormfront. “I like it … a lot!” replied a commenter.)

I can imagine the feelings that lead people to say and write (and now do) stuff like that. Probably they’re a lot like what I felt when that truck went by me on Main Street. But burning Confederate flags to protest the Charleston massacre is like burning Qurans to protest 9-11. Yes, it will piss off the people who pissed you off. But how does that lead us anywhere good? I doubt that the glow of burning flags or books has ever enlightened anyone.

And enlightenment is what we need. The people who fly the Confederate flag need to come to understand the message they are sending. And understanding that message, they should take their flags down voluntarily. (Except for what I hope is the minority that really does want to say, “Right on, Dylann.” Racists have free-speech rights too.)

That’s what I’m asking, in as polite a form as I can manage: Please take your flag down.

I know you think your flag says something positive. But you need to understand that your intention does not control the message. You’re not saying what you think you’re saying.

Nobody enjoys being compared to the Nazis, but there is one way in which the swastika is an instructive example: It didn’t always mean what it means today. The swastika has a millennia-long history as a positive religious symbol. Even the word swastika has a pre-Nazi history, tracing back to a Sanscrit word that means good fortune. Particularly in India, you can see the hooked cross carved into temples built long before anyone ever heard of blitzkrieg or Kristallnacht or the Final Solution. There’s a lot in the swastika that I might want to invoke.

But I can’t.

The Nazis ruined the swastika. They own it now, because nothing captures a symbol like blood sacrifice.

Today, if I get a swastika tattoo or wear a swastika t-shirt or stencil a swastika onto the hood of my car, it doesn’t matter what I want it to mean. Whatever I think or intend, the swastika is a Nazi symbol, and no German-American like me will be able reclaim it for any other purpose for centuries.

And no, it doesn’t matter that generals like Rommel and Guderian were brilliant tacticians who revolutionized warfare, or that many of the brave German soldiers who marched under the swastika just wanted to defend their homes and families. The swastika is inextricably linked to Hitler and Auschwitz, and if I display it, I am linked to them too.

Something similar is true of the Confederate battle flag. Whatever you want it to mean, it belongs to the people who have sacrificed blood to it: the slave-masters and their defenders, the klansmen whose lynchings enforced Jim Crow, and the white supremacists who are still with us.

Dylann Roof laid his claim to the flag Wednesday night. He owns it; you don’t. What you want it to symbolize just doesn’t matter.

So take it down. It doesn’t say what you want it to say, and it won’t for generations to come.

By weeklysift | Tagged , | Comments (42)

The 2016 Stump Speeches: Rick Santorum

June 15, 2015 – 9:54 am

[This is part of a series of articles on the speeches of 2016 presidential candidates. The overall vision of the series and links to the other articles can be found here.]

On May 27, in a speech at Penn United Technologies in Cabot, Pennsylvania, Rick Santorum announced that he is running for president again. [video with transcript, better transcript]

Rebranding. The main thing I learned from the speech is: Santorum is rebranding for the 2016 cycle. He hasn’t changed the product, in that he still has the same positions and beliefs. But the emphasis will be different this time.

The Santorum of 2012 was mainly a culture warrior: anti-abortion (to the point of telling women carrying their rapist’s child to “accept what God has given you” and “make the best out of a bad situation”), anti-gay (he famously compared gay sex to “man on dog” in 2003 and then stood by that quote in 2011), and even anti-contraception. (“It’s not okay because it’s a license to do things in the sexual realm that is counter to how things are supposed to be.”)

And he still opposes those things. (Well, I’m guessing about contraception; he didn’t mention that.) But they’re not front and center any more. Instead, “My priority is you: the American worker.”

That’s not completely new either. In the 2012 cycle, especially after he was the last man standing against plutocrat Mitt Romney, Santorum tried to be the candidate of the working-class Republican. [see endnote 1] And much of the post-Ohio-primary wrap-up analysis said that Santorum could have won if he’d focused on that message, rather than getting drawn back into talking about contraception.

It sounds like he got the message. The announcement speech took place at a manufacturing plant in his home state, and was dominated by declarations like “Working families don’t need another President tied to big government or big money.” and “I promise you we will regain the title of a leader in world manufacturing.” He introduced himself by holding a lump of coal and telling about his coal-mining Italian-immigrant grandfather. [2]

New and improved nostalgia. Santorum’s conservatism has always been scented with nostalgia, but this time around the formula has changed: Rather than longing for Leave It to Beaver families, he’s trying to recover a past of humming factories, where unskilled workers could earn enough to support a housewife and send two kids to college. [3]

Any nostalgia-driven campaign has to answer two questions: How did we lose those golden days, and what can we do to get them back? Santorum answers the first in a classic right-wing fashion: American workers didn’t lose their place in the world economy, they were stabbed in the back.

In the late 70’s [4], like many of you, we saw the economic devastation here in Southwestern Pennsylvania and across this country, particularly in manufacturing, as a result of the excesses and indifference of big labor, big government, and yes, big business. Here in Southwestern Pennsylvania, the epicenter, we lost over 100,000 jobs in what seemed to be overnight.

That has to and did leave a mark on all of us. Afterwards, big government and big business told our workers that times have changed, American workers could no longer compete with low foreign wages and that those jobs were gone forever. Well, what about those politicians? For all those years, what did they do? What did they do for communities across this area and across this country and in small town America? They had no plan, and they provided no hope. And to that, I say: “No longer.”

As Middle America is hollowing out, we can’t sit idly by as big government politicians make it harder for our workers and then turn around and blame them for losing jobs overseas.

And they were subverted by an underclass.

Over the last 20 years, we’ve brought into this country, legally and illegally, 35 million mostly unskilled workers. And the result, over that same period of time, workers’ wages have flat lined.

Hillary Clinton and big business, they have called for a massive influx in unskilled labor. Business does it because they want to control costs. Hillary does it – well – she just wants votes. Their priorities are profits and power. My priority is you, the American worker.

Sleight of hand. Where Santorum will be vulnerable, at least in a general election, is in his answer to the second question: What in his proposals would actually do anything for the American worker? Answer: not much. His rhetoric about workers mostly just masks an agenda that will make the rich richer.

During Santorum’s grandfather’s lifetime, mining transformed from a hellish existence to the kind of endurable, good-paying job Santorum is nostalgic for. Two forces were responsible for that: government safety regulations and the United Mine Workers. Santorum is against both. His speech mentions unions only in that one derisive “big labor” quote above. As for regulations:

We will revoke every executive order and regulation — yeah — will revoke every executive order and regulation that costs American jobs.

Both in his speech and on his web site, Santorum frames a flat tax as his primary pro-worker idea. In fact it is an anti-worker idea, as anyone with common sense can see: Assessing the same tax rate on everyone reduces taxes for those who pay the top tax rates now, i.e., the rich. Unless the government is going to collect far less revenue, that means working people will have to pay more. And if a sharp loss of revenue and no corresponding cut in defense spending is the plan, will the deficit rise, or will Santorum make working people pay by cutting the other programs that make up most of the federal budget: Social Security and Medicare?

In short, what Santorum is proposing is the same sleight-of-hand Sam Brownback has played on Kansas: Cut taxes on the rich, and then (after huge deficits appear) re-balance the budget on the backs of working people.

The theory that this would create jobs is based on the same trickle-down economics conservatives have promoted for decades: Make the rich much richer, and then they’ll have the money to hire more people. It hasn’t worked for the last forty years, and doing even more of it in the next administration won’t work either. [5]

I could only find two Santorum positions that might genuinely help workers: an “incremental” increase in the minimum wage (I can’t find a commitment to a specific figure, but implicitly it must be lower than the $10.10 proposed by President Obama), and opposing the Trans-Pacific Partnership trade agreement.

Nativism. There is one other part of Santorum’s plan that will appeal to working-class conservatives: restricting immigration. His web site says:

He supports reducing immigration from about a million immigrants per year—the current level—down to about 750,000 per year. This will help blue collar American workers get back to work and thrive economically.

He spelled out his plan for undocumented immigrants in a column for Breitbart last month: Build an Israeli-style fence across the southern border, track more closely everyone who comes into the country legally on tourist or education visas, deport everyone who is here illegally, and start a guest-worker program for agricultural workers from Mexico.

Here at least the first-order common sense works: If you reduce the foreign-born competition for unskilled jobs, more native-born Americans might get them, and employers might have to pay more. Whether that all works once you figure in the secondary effects, though, is something a lot of economists doubt. Immigration doesn’t just take jobs, it creates jobs. Throwing out all those working, tax-paying undocumented immigrants will certainly shrink the economy. Whether the resulting smaller economy would have more jobs for the native-born — other than government jobs tracking down undocumented immigrants — is not clear.

At a minimum, there’s something unseemly about a guy glorifying his grandfather’s immigrant experience while denouncing today’s immigrants: Now that my family has made it into the lifeboat, let’s cast off.

Racial resentment. There was nothing overtly racist in Santorum’s speech, but his rhetoric is carefully constructed to appeal to a target audience — working-class Republicans — that is overwhelmingly white. Consequently, it contains certain code phrases that blacks and whites will hear differently.

It’s time we have a President who sees the struggle of working families in America not as an opportunity to divide us along race or class – but as a chance to unite us around the ideal that every child in America deserves her birthright – to be raised by her parents in a healthy home.

The idea that Democrats in general and Obama in particular “divide us along race or class” is very popular among Republicans. But let’s think about what it means. [6] First, delete “class” from the quote, because what else is Santorum doing when he talks about “a president tied to big money”? He’s dividing us by class. He’s saying Jeb Bush can’t represent American workers because he’s from the wrong class.

And how does Obama “divide us by race”? He talks about racism. Unless you believe racism ended with Jim Crow — somebody should ask Santorum about that — it continues to be a problem America needs to address. And how are we going to do that without pointing out ways that the black or Hispanic experience of America continues to diverge from the white experience? So in essence, what Santorum (or any of the other Republicans who use this phrase) mean when they denounce those who “divide us by race” is: People who talk about racism should just shut up.

Black Americans hear that message loud and clear, and know that they are not welcome to put their concerns forward in Santorum’s America. In short, Santorum’s white-targeted rhetoric divides us by race.

The culture warrior. Santorum the Culture Warrior is not gone, but in this speech he was submerged a bit.

As President, I will stand for the principle that every life matters – the poor, the disabled, and the unborn.  I will also fight for the freedom for you to believe what you are called to believe, not just in your places of worship, but outside of your places of worship too.

First, I sincerely doubt that Santorum wants to extend “the freedom to believe what you are called to believe” to, say, Muslims or atheists. He is talking to Christians, and maybe a few conservative Jews. Nobody else.

Second, “outside your places of worship” means that Christian-owned businesses should be able to discriminate against gays, and to dictate how female employees use their health insurance, if they can claim they have religious reasons to do so. (He called the Hobby Lobby decision “a tremendous victory for our freedom of conscience”.)

In front of a different audience, though, the culture war is still front-and-center. On a recent Glenn Beck radio show, Santorum played along with Beck’s apocalyptic fantasy of the government forcing churches to perform weddings for same-sex couples, saying “this is tantamount to government establishing religion.” He went on to echo what Mike Huckabee has been saying, that if the Supreme Court finds that marriage equality is part of the 14th Amendment’s “equal protection of the laws”,

that’s the court’s opinion. They’re entitled to their opinion. But the president and the Congress have an opinion too of what the Constitution is. And if they get it wrong and the consequences are what I suspect they will be toward people of faith, then this president will fight back.

What he leaves out. Mainly two things: climate change (or any concern for the environment at all) and women’s rights.

When he talked about his grandfather, Santorum admiringly held up a lump of coal — the dirtiest kind of fossil fuel to burn. “Cheap energy”, specifically “the shale revolution”, is one of the catalysts he sees for new American manufacturing jobs. And if he really does reverse “every executive order and regulation that costs American jobs”, that would include just about every environmental regulation ever. Didn’t the chemical companies that dumped toxic waste at Love Canal make that waste while creating American jobs?

After all, the climax of that humming-factories era Santorum is nostalgic for came when the Cuyahoga River caught fire in 1969, an event immortalized in Randy Neuman’s “Burn On, Big River“.

Specifically, though, I think Santorum is targeting the executive orders President Obama has issued to control greenhouse gases. The words climate, global warming, and greenhouse gas don’t appear in this speech. But Santorum is a climate change denier, and has even criticized the Pope for defending the environment.

And Santorum’s concern for the American worker doesn’t extend to female workers who make less money than their male co-workers or don’t want their employer’s religion to control their health care options. And if a woman would like to make her own choices about when to have children, or even just to have children by someone other than her rapist, tough luck.

[1] His pro-working-class stands have not stopped Santorum from drawing large contributions from mega-wealthy donors like Foster Friess.

[2] It’s always entertaining to watch Republican candidates stretch to connect to the working class. Rick himself was a professional-class kid. His Dad got a G.I.-bill education after World War II — thanks, big government — and became a psychologist. No doubt Jeb Bush’s announcement speech will flash back to a working-class Bush in the Middle Ages.

[3] Just as family-values nostalgia leaves out the oppression of women and blacks, nostalgia for the factories of the 1950s and 60s leaves out pollution, workplace injuries, and the unsafe-at-any-speed cars they made. (In a crash, those steering wheels would go right through your chest.) Also forgotten: the unions that demanded the wages that moved factory-workers into the middle class.

[4] Locating this betrayal in the 1970s is important, because it hides Ronald Reagan’s role in dismantling unions, changing the tax code to favor the rich, and taking the teeth out of antitrust enforcement.

[5] The best capsule definition of trickle-down theory was provided by William Blum: “the principle that the poor, who must subsist on table scraps dropped by the rich, can best be served by giving the rich bigger meals.”

[6] The Weekly Sift’s “Conservative-to-English Lexicon” defines dividing the country as “Talking about the concerns of voters other than real Americans.”

real American, in turn, is defined as “A white conservative Christian born in the United States at least 30 years ago.”

By weeklysift | Tagged , | Comments (19)

What’s So Scary About Caitlyn Jenner?

June 8, 2015 – 9:53 am

Transsexualism is the latest example of a difficult truth: Everything you thought was a category is actually a continuum.

The interview. When I started watching Diane Sawyer’s interview with Bruce Jenner (as he was still calling himself in late April), I can’t say I was fully comfortable either with transsexualism in general or with the idea that the hero of the 1976 Olympics [see endnote 1] thought of himself as a woman.

I sort of understood transsexuals in the abstract, or at least I could repeat the right words: For some reason nobody can adequately explain, the gender that society assigns you (based on your genitalia) just feels wrong; you think of yourself as a woman with a penis or a man with breasts and a vagina. Jenner described the feeling in Christian terms: feeling like he had “the soul of a female”.

But as someone who has a hard time pointing to his own soul or tracing its outlines, I can’t really claim I know what that means. At times I have felt like a dissenter from various aspects of male culture — the violence, say, or the joy so many men take in humiliating others — but I have always experienced myself as reaching for a different kind of masculinity (just as so many women in my generation reached for a different kind of femininity) rather than rejecting the whole concept. I’m not sure what it would mean to not feel like a man “inside”. I’m like the fish who hears another fish say that swimming in water just feels wrong, that he was meant to fly through the air. And I respond, “Water? What is water?”

In my personal life, no one has forced me to come to terms with transsexualism. More than one of my casual friends has a child who has adopted a new name and a new pronoun. But learning that name has been about all the adjustment required of me. Occasionally I have found myself in a social setting with someone whose gender was ambiguous — combining breasts with a beard, say. And I have been uncomfortable, but what I mainly felt was fear of making a social error. My discomfort manifested as a desire to be somewhere else, not to harm that other person or make him/her be different.

So I was perhaps the perfect target audience for the Sawyer/Jenner interview. The distance — identifying through a screen with Sawyer sitting across from Jenner — was about right for me to put aside my discomfort and listen with empathy as he (at that time, Jenner was still using the masculine pronoun and talking about “her” as a person he had not yet revealed to the public) discussed his decision to create a new public identity as a woman.

First reactions. After watching that interview, a few things seemed obvious to me:

  • At 65, Jenner is old enough to know what s/he wants.
  • Jenner gave masculinity a fair shot. If it hasn’t worked, it hasn’t worked. In some ways, his external success — being an Olympic hero, trying marriage with three gorgeous women, fathering six and step-fathering four “wonderful, wonderful children” — makes the case clearer. A less successful person with Jenner’s inner life might have blamed himself and said: “Masculinity would be fulfilling if only I were better at it.”
  • Sixty-five is a do-or-die point for a lot of things in life. If there’s something you’re going to regret not trying, you better get on with it.
  • If Jenner’s kids and step-kids are OK with the transition [2], why should the rest of us object?

So this week, Jenner’s new female identity — Caitlyn — made her public debute with an Annie Leibovitz portrait on the cover of Vanity Fair. (Looking at that photo, I assume Kim Kardashian is happy with the way Caitlyn “rocks it”. [2])

Not pink and blue, red and blue. The public reaction has generally split on political lines. Liberals like me have mostly praised the courage it took to go public with something this controversial, while the conservative reaction has been described by the Washington Post as “apocalyptic“. The American Family Association’s Bryan Fischer said on his radio show:

If you want one snapshot of just how corrupt, how morally corrupt, how morally bent, how morally twisted, how morally confused, how morally bankrupt we have become, all you’ve got to do is take a look at the cover of Vanity Fair magazine.

Matt Walsh wrote for The Blaze:

It’s all so evil and so bizarre and so unthinkably ridiculous that no dystopian sci-fi writer could have predicted that the collapse of western society would look like this.

President Obama has praised Jenner, while Republican candidates to replace him have either said nothing or lined up against her. (Lindsey Graham is the exception. And while the WaPo article lists Hillary Clinton as “generally supportive”, I can’t find a quote.) Mike Huckabee has been particularly interesting to watch, as he defended the Duggar family’s handling of their son’s abuse of his sisters (but then removed their endorsement from his web page), while trying to make a joke out of transsexualism.

The social-conservative base that the Republicans need to appeal to has been anything but silent. All you have to do is pick any of the links above and read the comments. They’re not just opposed, they’re actively hostile about it.

Why? Now, part of me (and probably part of you) is saying, “What else is new? Conservatives are rejecting somebody for being different from them, sometimes in very aggressive, insulting ways. Par for the course.” But it’s worth considering all the reasons that it didn’t have to be this way.

  • Jenner is one of their own. In the Sawyer interview, Jenner self-describes as a conservative Republican who “believes in the Constitution”. Jenner talks about God creating his male body and female soul, and thinks seriously about what mission God had in mind for that combination. And Jenner is not just a nominal Christian, but has a real relationship with a congregation. In the WaPo, a minister describes how the Jenner/Kardashian family was “an integral part of this nondenominational evangelical church” and put considerable effort into founding a new church in their neighborhood.
  • There’s really no scripture about this. You’ll search in vain for a verse that says, “A man shall not become a woman.” (If God foresees all, why wouldn’t He have included that verse in His scripture?) The Bible assigns different roles to men and women (not always consistently), and Deuteronomy 22:5 bans cross-dressing (though this rabbi interprets that ban in a limited way). But as for spelling out how you tell whether God meant for you to be male or female, the Bible is silent. Biblical verses supposedly condemning transsexualism all require a lot of interpretation. What motivates people to do the work necessary to arrive at that conclusion?
  • It’s not our business. We all have the option to say, “I wouldn’t do that, but I guess it takes all kinds.” In Thomas Jefferson’s words, Jenner is neither picking my pocket nor breaking my leg.
  • It’s a freedom thing. Who knows, maybe Caitlyn has made a mistake she will eventually regret. But she’s risking her own future life and happiness, not yours or mine. People following their own vision and risking it all for a goal that seems important — that’s something conservatives usually admire.
  • Jenner is a great family-values story. When unexpected challenges arise in the life of one of its members, does a family pull that person closer or push him or her away? The Sawyer interview shows Jenner embedded in a matrix of close family relationships, and the family supports Caitlyn. I’ve got to admire that, and you’d think people who define their politics around “family values” would too.

So there’s plenty of room for conservatives to support Jenner, or just to shrug and move on. But clearly they don’t want to do that. Why not?

What I think is going on. When I look at my own initial discomfort, I think it traces back to a source so basic that it’s pre-verbal. Before I can talk about it, I need to tease it out. So bear with me while I seem to go off on a tangent.

The human mind is kind of a kludge. It has to be. After all, how is a three-pound piece of meat supposed to make sense of such a vast and complicated universe? One of the kludgy short-cuts our minds take is to break the world into categories, i.e., to clump different things together and treat them the same. Many of those categories are binary: male/female, child/adult, right/wrong, friend/enemy, and so on. Others have more options. (In grade school I was taught that there are three races of humans: caucasian, negroid, and mongoloid.) Some of the categories seem in-born, while others are taught to us so early they might as well be. For example, a certain amount of species recognition is practically hard-wired. Kids at an early age will tell you that two dogs are similar while a dog and a cat are different.

We really, really want to believe that the categories in our heads are objective descriptions of the world out there, but science keeps telling us that they aren’t. For example, there are no races, but rather a continuum of genetic difference. If you pluck two people from distant parts of the continuum, they may look like members of distinct races, but in the world as a whole, you won’t be able to trace any boundary line between those races.

Similarly, species are not platonic ideals, but clusters in the genetic continuum. So (contrary to Plato) there is no ideal horse or dog, just lots of individual horses and dogs, any two of whom resemble each other. There are no gay people and straight people, but rather a continuum of bisexuality. There are no nationalities — a point made very strikingly in a fascinating book called The Discovery of France. And like nationalities, modern languages are largely political constructions. In medieval Europe, for example, each village would have a dialect slightly different from the next. If you plucked people out of distant places on that continuum — say one from Paris, another from Madrid, and a third from Lisbon — they would sound like they were speaking different languages you could call French, Spanish, and Portuguese. But, like races, there were no boundaries where one butted up against the other — until politics created those boundaries and imposed them.

And now we are discovering that gender is a binary categorization imposed on an underlying continuum with multiple dimensions. It’s more complicated than just John Waynes with penises and Marilyn Monroes with vaginas.

If you think seriously about how flawed the fundamental building blocks of our thinking are, it’s scary. At any moment, some part of the Universe you’ve been assuming away could come back to bite you. That’s the human condition.

That’s why we get such an oogy feeling whenever we see an example of something we were raised to think didn’t exist: an effeminate man, two women kissing, a child with dark brown skin and frizzy red hair. It’s a reminder that we don’t really grasp the Universe; we just apply kludgy notions that more-or-less work most of the time.

What social conservatism is. At its root, social conservatism is a way to deny that fear and transmute it into anger. Conservatism reassures us that the categories in our heads are real. We didn’t make them up; God created them. They’re natural.

You can see that principle operating across the board. For example, that’s why social conservatives have such a hard time accepting evolution: If species are real things and if humans evolved from some other kind of primate, then each being in that mother-to-child chain belonged to a species. Somewhere along that line, the impermeable boundary between species had to be crossed: an ape mother gave birth to the first human child. Impossible!

Likewise abortion. The moral worth of a member of the human species is a unitary thing. It can’t develop gradually along a continuum, but has to exist either in its entirety or not at all. And a fetus is either a member of the human species or not. We aren’t allowed to recognize that in its early stages, a human fetus is virtually indistinguishable from the fetus of a pig or cow, or that it begins to differentiate from a chimp fetus even later.

This reification of the categories is why conservative rhetoric is obsessed with the word real: real men, real Americans, real conservatives. Liberals are more likely to describe themselves as authentic. Authentic is a relative word; it points to a harmony between what I am and the image I project. Real is absolute; I am a real X because I match an ideal definition of X that exists eternally in the mind of God.

Now, not even social conservatism can deny the existence of things that don’t fit neatly into the proper categories. But it can reject them as abominations. The list of abominations depends on the categories you were raised with: Men attracted to other men are abominations. Women who operate heavy machinery are abominations. Families who cross from black to white are abominations. Americans who can’t speak English are abominations. Mixed-race people are abominations. Genetic engineering produces abominations.

Functionally, an abomination is anything that causes confusion by making us doubt our categories. And by labeling it as an abomination, we transform our doubt and confusion into anger at whatever confused us.

So: Caitlyn Jenner is an abomination. Just by existing, she creates confusion about the kludgy notion of binary gender. She points out that there is more in Heaven and Earth than is dreamed of in our philosophies … or our religions. That’s a scary idea, and by raising it, she becomes an object of anger.

[1] I remember eating Wheaties out of a box with Bruce Jenner’s picture on it. In the 1970s, (moreso than today, for some reason) the Decathlon was a legend-making Olympic event. Americans who won it — Jim Thorpe and Bob Mathias, for example — were famous for more than just a four-year cycle. They became the defining image of the perfect all-around athlete. Physically, they were what every American boy was supposed to want to become.

Bruce Jenner was a record-setting Olympic Decathlon champion, and he arrived at a moment in history when white males were starting to feel insecure about their athleticism. Black sports heroes (Jesse Ownes, Joe Louis, Jackie Robinson) had once been tokens, freakish exceptions who were “credits to their race”. The next generation of black athletes (Wilt Chamberlain, Jim Brown, Willie Mays) claimed their place in the mainstream. But by the mid-70s, it was white players (Rick Barry, Dave Cowens) who looked like tokens in the NBA, and the NFL and MLB seemed headed in the same direction. Blacks would never be great quarterbacks, we told each other. But secretly we wondered if there would ever be a white running back on the level of O. J. Simpson, Tony Dorsett, or Walter Payton. (According to this CheatSheet.com top-ten list, the answer was no.) Even the last American Decathlon champion (Rafer Johnson) had been black.

And then came Bruce Jenner, the hero we needed at the time we needed him. A white man’s white man. Or so we thought.

[2] The most amusing reaction Jenner reports came from step-daughter Kim Kardashian. Following a “breakthrough” conversation with Kanye West (of all people), Kim became “by far, the most accepting” of the children. Jenner quotes her volunteering to help shape Caitlyn’s style:

Girl, you gotta rock it, baby. You gotta look good. If you’re doing this thing, I’m helping you. You’re representing the family. You gotta look really good.

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Rich Lowry’s False Choice

June 1, 2015 – 7:52 am

If you don’t like racist police, you must want no police at all.

There’s a rhetorical trick that everybody needs to learn to spot, because it’s widely used and very convincing if you’re not on guard: the false dilemma. In the false dilemma, an author or speaker cuts an entire universe of possibilities down to two: the one he likes and an alternative that is obviously horrible.

A particularly nasty false dilemma is the heart of Rich Lowry’s “#SomeBlackLivesDontMatter“, which appeared on the Politico website Wednesday. (Lowry is a longtime editor at National Review. Why Politico publishes his work is something of a mystery.)

Lowry starts with the familiar conservative trope that black activists don’t care about black-on-black crime.

Let’s be honest: Some black lives really don’t matter. If you are a young black man shot in the head by another young black man, almost certainly no one will know your name. Al Sharpton won’t come rushing to your family’s side with cameras in tow. MSNBC won’t discuss the significance of your death. No one will protest, or even riot, for you.

Of course, no one should protest for you, because protest is a tool for addressing the government, not criminals. So protesting against some random street criminal who shot some innocent civilian would make no sense. (This is frequently missed point on the Right. For example, the protests after Trayvon Martin’s death weren’t directed at George Zimmerman, but at the local legal system that wasn’t taking Martin’s death seriously.) But keep going, Rich.

The Baltimore Sun ran a headline (since changed) that had the air of a conundrum, although it isn’t very puzzling, “With arrests down in Baltimore, mayor ‘examining’ increase in killings.” According to the paper, arrests have dropped by about half in May. The predictable result is that violent crime is spiking.

The implication is clear: More people need to be arrested in Baltimore, not fewer. And more need to be jailed. If black lives truly matter, Baltimore needs more and better policing and incarceration to impose order on communities where a lawless few spread mayhem and death.

The reason Baltimore can’t get this “better policing” — somehow synonymous with “incarceration” — is because the black community doesn’t like the bad policing it’s been getting.

If the message is supposed to be that they don’t want the police there, it has been received.

Of course, literally no one is saying that the black neighborhoods of Baltimore shouldn’t be policed. (That’s why Lowry needs the if. If he could quote some black or liberal leader calling for no policing, he’d really have a point against them. But since none is, he needs a hypothetical.) And now that Lowry has cut the alternatives down to (1) continued racist policing and (2) no law enforcement at all, it’s clear that the people protesting against racist policing should just shut up.

It is wrong for the police to shrink from doing their job, but the last month in Baltimore shows how important that job is. This is especially true in dangerous, overwhelmingly black neighborhoods. They need disproportionate police attention, even if that attention is easily mischaracterized as racism. The alternative is a deadly chaos that destroys and blights the lives of poor blacks.

Again, he quotes no one saying that police don’t have an important job, and he offers no evidence at all that policing in Baltimore has been mischaracterized as racism. That’s just what Lowry wants to believe and wants you to believe. (If someday we reach a point where all the apparently racist actions of police have been “mischaracterized”, the #BlackLivesMatter movement will have succeeded.)

So that’s your choice, black America: Live in completely lawless communities, or STFU whenever police kill young blacks they already have subdued, or shoot down young blacks who are doing nothing wrong. You can have police who continue misbehaving the way they have been, or no police at all. There is no third alternative.

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The 2016 Stump Speeches: Bernie Sanders

May 25, 2015 – 10:29 am

Bernie Sanders challenges not just Hillary Clinton, but the country’s long-term rightward drift.

[This is part of a series of articles on the speeches of 2016 presidential candidates. The overall vision of the series and links to the other articles can be found here.]

Senator Bernie Sanders of Vermont began his presidential campaign on April 30 with a five-minute statement in front of the Capitol, and then took five more minutes of questions from reporters. [video, transcript]

The standard I try to maintain at The Weekly Sift is that I’m honest, but not necessarily objective. So I’ll tell you the bias I start with: As I listened to Sanders’ talk, I had the reaction conservatives must have had in 1964 when they listened to Barry Goldwater. In my heart, I know he’s right.

Sanders says the things I’ve been thinking, but that I never hear directly from presidential candidates. Or I hear them, but only because I know how to unwrap the layers of bows and wrappings that politicians put on their ideas to make them look pretty to the conventional wisdom.

Prosperity for everybody. All candidates, left and right, seem to agree that the major economic issue America faces is the shrinking of the middle class and the dismal prospects faced by our young adults. Rand Paul, for example, said:

I’ve been able to enjoy the American Dream. I worry, though, that the opportunity and hope are slipping away for our sons and daughters.

And Ted Cruz:

For so many Americans the promise of America seems more and more distant. … So many fear that that promise is today unattainable.

And Marco Rubio:

My parents achieved what came to be known as the American Dream. But now, too many Americans are starting to doubt whether achieving that dream is still possible.

If the 2016 race is about issues — always a question in this era of trumped-up pseudo-scandals and 30-second attack ads — the issue it should be about is why the middle class is shrinking and what can be done about it. Paul explains that our economy is “collaps[ing] under mounting [government] spending and debt.” Rubio blames leaders whose “ideas are stuck in the 20th century” and says we need to “reform our tax code, reduce regulations, control spending, modernize our immigration laws and repeal and replace ObamaCare”. Cruz talks more vaguely about “liberty”, mentions policies like a flat tax, and implies that the real secret to success in all areas is for our nation to get right with God.

Sanders points in a different direction: The middle class is endangered because the very wealthy have taken control of our political system and shaped our economy so that virtually all economic growth flows to them.

The major issue is how do we create an economy that works for all of our people rather than a small number of billionaires, and the second issue, directly related, is the fact that as a result of the disastrous Supreme Court decision on Citizens United, we now have a political situation where billionaires are literally able to buy themselves elections and candidates.

Class warfare and socialism. Conservatives have wasted no time calling this “class warfare“. Ben Stein expressed his upper-class let-them-eat-cakism like this:

There has never been a case in history where a poor person who’s a slovenly, uneducated, lazy, undisciplined drug addict got to be rich because of some wealthy person being taxed.

But a lot of progressives aren’t afraid of the class-warfare meme any more, and respond: “It’s about time somebody started fighting back.” As Warren Buffett said in an interview in 2010:

There has been class warfare waged, and my class has won. I mean, it’s been a rout. You have seen a period where American workers generally have gone no place, and where the really super-rich have (as a group) increased their income five for one.

Sanders has been turning around the “class warfare” rhetoric for a while now. When Goldman Sachs CEO Lloyd Blankenship (with an annual salary of $16 million) came to Congress in 2012 to call for cuts to Social Security, Medicaid, and Medicare, Sanders’ web page called him “the face of class warfare“.

Likewise, Sanders doesn’t run away from the word socialism. They have socialism in Scandinavia, and those countries are pretty nice places to live. Let’s talk about how kids are going to afford college, not about labels like socialist.

Proposals. Sanders alluded to a number of proposals he has fleshed out elsewhere. All of them take a step beyond anything the Obama administration has proposed.

Reverse Citizens United. Sanders has proposed a constitutional amendment.

Nothing in this Constitution shall be construed to restrict the power of Congress and the States to protect the integrity and fairness of the electoral process, limit the corrupting influence of private wealth in public elections, and guarantee the dependence of elected officials on the people alone by taking actions which may include the establishment of systems of public financing for elections, the imposition of requirements to ensure the disclosure of contributions and expenditures made to influence the outcome of a public election by candidates, individuals, and associations of individuals, and the imposition of content neutral limitations on all such contributions and expenditures.

Make College Free. He has proposed legislation he describes like this:

$70 billion a year in assistance – two-thirds from the federal government and one-third from states – would replace what public colleges and universities now charge in tuition and fees. The federal share of the cost would be offset by imposing a tax on Wall Street transactions by investment houses, hedge funds and other speculators.

That tax, the so-called Robin Hood tax, is interesting in its own right. The theory is that introducing friction into the financial markets would make them less volatile.

Transition from fossil fuels to renewable energy. Sanders is a long-time champion of solar energy, and a leading opponent of the Keystone XL pipeline.

Create jobs by rebuilding infrastructure. He has proposed spending $1 trillion over five years on infrastructure, and claims this would create 13 million jobs. (I don’t know what that’s based on.) He has not specified how to pay for this (though the next item might play a role). He has pointed out that this plan would be cheaper than the Iraq War, which also had no funding mechanism.

Tax corporate profits that are hidden overseas. Again, he has a bill proposed:

Under current law, U.S. corporations are allowed to defer or delay U.S. income taxes on overseas profits until the money is brought back into the United States.  U.S. corporations are also provided foreign tax credits to offset the amount of taxes paid to other countries. Under the legislation, corporations would pay U.S. taxes on their offshore profits as they are earned.  The legislation would take away the tax incentives for corporations to move jobs offshore or to shift profits offshore because the U.S. would tax their profits no matter where they are generated.

He quotes an estimate by the Joint Committee on Taxation that this would bring in $590 billion over ten years.

Can he win? Should he? I understand the point Hillary Clinton supporters make: The difference between the two parties is so vast now that our entire focus should be on winning in the general election. (Justice Ginsburg will be nearly 88 by the time the next president leaves office; 92 if there’s a second term. Imagine any of the Republican candidates appointing her replacement.) The best way to do that is to get behind our strongest general-election candidate early, and avoid any fratricidal strife that will hurt the party.

I see two problems with that. First, since Republicans show no signs of returning to the moderate ways of Dwight Eisenhower and Jerry Ford, we might be in this position for decades. So the upshot of this argument is that the liberal wing of the party should never make its case to the primary electorate. If that’s how things are, then I have a hard time arguing against the progressives who want to abandon the Democratic Party completely. If you want to prevent another Nader-style candidacy by Sanders (who has already rejected the idea) or somebody else, you have to be able to argue that the Left had a shot at the nomination and just lost it fair and square.

So I think it’s way too early to make the unite-behind-a-winner argument. There has to be some point in the electoral process where people express their consciences and vote their ideals. Otherwise, the horse-race mentality becomes self-stoking: People won’t support a candidate they agree with because he can’t win, and he can’t win because the people who agree with him won’t support him.

Second, there are large sections of the electorate who never hear a strong progressive message. Compare to the Republicans. No matter who gets nominated, they always make a pitch for their overall brand identity: small government, low taxes, strong defense, so-called “family values”, and so forth. It would be unthinkable to go through an election cycle without somebody preaching that gospel in its purest form.

The Democrats don’t do that, and in the long run it hurts us. Obama-Clinton in 2008 was a debate between two flavors of moderate. Dean and Kucinich were out of the picture early in 2004, and so was Bradley in 2000.

The result is that right-wing alternatives to the status quo are part of the national debate, but left-wing alternatives aren’t. So voters who could tell you about the conservative Ryan Budget have never heard of the progressive People’s Budget. Every hint of a conservative alternative to ObamaCare gets massive coverage, but a liberal alternative well tested in other countries — single payer — is off the table.

So when it comes time to compromise, the compromise that seems reasonable in the media is between an already-moderate Democratic plan and a far-right Republican plan. Should we cut Social Security little by little, or make a big slash in it? Should we invade any country that gets in our way, or just hit them with a few drone strikes? Hold the line on the estate tax or eliminate it?

In short, even if we end up nominating Hillary, I want the public to know she’s not the extreme edge of the liberal spectrum.

I’ll get more pragmatic as Election Day gets closer. (I was totally against voting for Ralph Nader in the 2000 general election, for example, and I stand by that. The Nader voters in my own state of New Hampshire — forget Florida — had it in their power to swing the election from Bush to Gore, and decided not to.) If, late in the primary season, after Sanders’ message has been aired around the country, polls show him running behind the Republican front-runner while Hillary runs ahead, then Democrats should think about doing the pragmatic thing.

But this far out, that’s not the only possible scenario. Sanders is claiming that a full-throated defense of the middle class will resonate with voters who don’t get inspired by baby-step proposals like bumping the minimum wage up a little, or not cutting Social Security as much as Republicans want to. That case needs to be tested every few cycles, and it has been a while.

Fact-checking. Sanders made a number of checkable claims.

For most Americans, their reality is that they are working longer hours for lower wages. In inflation-adjusted income, they are earning less money than they used to, years ago, in spite a huge increase in technology and productivity.

There are a lot of ways to measure wages. But in terms of take-home pay adjusted for inflation, Sanders is right.

The wild card in this discussion is how you account for health-care costs, which have ballooned over the last several decades. So pro-business groups will show you graphs of total cost of employment, which includes everything a company spends on a worker, including health insurance premiums. That looks less depressing.

Even so, a 2013 Brookings Institute report began:

Over the past quarter century, labor’s share of income in the United States has trended downward, reaching its lowest level in the postwar period after the Great Recession.

99% of all new income being generated in this country is going to the top 1 percent

The transcript I linked to has this quote wrong. (It says “99 percent of the income”, which would be a laughable statement.) Watch the video to get it right.

PolitiFact rated this claim “mostly true“. The more complete story is that Sanders’ claim is based on what the economy does prior to any government interference: before taxes on the rich or government benefits paid to the rest of the country.

the top 1 percent owns almost as much wealth as the bottom 90 percent

This is wrong, but not in the way you think: Sanders should have said the top tenth of a percent. Economists Emmanuel Saez and Gabriel Zucman provide the following graphs:

we have the highest rate of childhood poverty of any major nation on Earth

Like so many claims, this one depends on how you define your terms. In sheer size, India is a “major nation”, and in absolute terms, a lot of Indian children have less than American children who are considered poor.

Most studies that get results like Sanders is stating are measuring relative poverty, i.e., the number of children who live in households whose income is less than some percentage (typically 50%) of the national median. Also, they are comparing the U.S. to other developed nations — a group that includes Canada, Japan, and the European Union nations, but not India or Indonesia.

Miles Corak does a creditable job of explaining why relative poverty is the right thing to measure. (Summarizing: A household receiving less than 50% of the median income has a hard time participating in normal society. So these children are growing up so far outside the mainstream that it will be hard for them to present themselves as normal adults when they go looking for work.) And if contemplating America’s superiority to Ethiopia or Bangladesh gives you a chest-thumping satisfaction, don’t let me stop you.

the Koch Brothers and other billionaire families who are prepared to spend hundreds and hundreds of millions of dollars in elections to buy the candidates of their choice

According to the NYT:

The political network overseen by the conservative billionaires Charles G. and David H. Koch plans to spend close to $900 million on the 2016 campaign.

It’s not immediately obvious how much of that $889 million is from the Kochs themselves. Sheldon Adelson spent around $100 million of his own money on 2012 campaign (including $20 million for Newt Gingrich), and is expected to be a major donor in 2016 as well.

There’s no way to quantify to what extent the candidates who receive this money will be “bought”. In the 1950s, Speaker of the House Sam Rayburn is supposed to have told a young congressman, “Son, if you can’t take their money, drink their whiskey, screw their women, and then vote against ’em, you don’t deserve to be here.”

Real unemployment in America is not five and a half percent, if you include those people who have given up looking for work, and people who are working part time when they want to work full time. Real unemployment is 11 percent.

The Bureau of Labor Statistics calculates something it poetically refers to as “U-6”: a measure of unemployment that includes the people usually classified as “unemployed”, but also people who are underemployed (i.e., the engineer who’s flipping burgers) or who want a job but aren’t currently looking for one (i.e., “discouraged workers”). (The unemployment rate you usually hear about is U-3.)

U-6 is running at about 11%, — 10.9% in the most recent stats available when Sanders spoke — so that might be what he was talking about.

It’s fine to quote U-6 or any of the other U’s, as long as you’re consistent about it. Watch out for anybody who compares some measure of “real” unemployment today to what the official unemployment rate was when Obama took office, or claims that the gap between the two represents some kind of statistical shenanigans. Since discouraged workers tend to be the last people to start working again, you’d expect U-6 to lag behind the official unemployment rate. So even though the official unemployment rate is back below where it was when Lehman Brothers collapsed in 2008, U-6 hasn’t completely recovered yet. That’s not some sleight-of-hand by the Obama administration, it’s how these statistics run.

One thing is undeniable: All the measures of unemployment have been coming down over the last few years, as shown in this graph:

In Germany, countries around the world, they understand that you tap the intellectual capabilities of young people, and you make college tuition in public colleges and universities free.

True.

Bernie Sanders has never run a negative ad.

“Never” is hard to check, and “negative” is a judgment call, but in his 2012 Senate race (as an incumbant Independent) Sanders didn’t run TV ads at all. He got 71% of the vote. People say, “Well, that’s Vermont for you.” But Sanders counters:

It wasn’t that long ago that Vermont was one of the most Republican states in the country. Until two years ago, the governor was a Republican; the lieutenant governor is a Republican. This is a significantly rural state. This is a state with some very conservative regions.

Since April 30, Sanders has been living up to his word and running a positive campaign. On CNN’s State of the Union he said:

I’ve known Hillary Clinton for 25 years. Maybe I shouldn’t say this: I like Hillary Clinton. I respect Hillary Clinton.

That doesn’t sound much like the fratricidal strife Clinton supporters are worried about.

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Turning the Theocracy Against Itself

May 25, 2015 – 8:20 am

What happens when atheists claim the new kind of “religious freedom”?

Ever since the Tea Party sweep of 2010, conservative Christians have been on offense in state legislatures, pushing a variety of laws that distort religious freedom — a fine principle that goes back to the foundation of our country — into something the Founders would not recognize at all: the power (not freedom) to shape society so that it doesn’t rub Christians the wrong way.

The hole in this “religious freedom” rhetoric is that in practice only Christians (and only certain kinds of them) can wield such power. The people who push these laws are shocked whenever someone wants to extend the same kind of consideration to, say, Muslims or atheists. (Muslims, after all, can’t even take for granted the original meaning of religious freedom, which included the ability to build a house of worship.) Justice Alito’s majority opinion in the Hobby Lobby case more-or-less just laughed off the idea that employers with less mainstream religious views — Christian Scientists, say, who reject virtually all modern medicine — might claim the right to control their employees’ health insurance too.

In recent months progressives have been playing whack-a-mole with anti-gay “religious freedom” laws in various states, threatening boycotts and mostly succeeding in avoiding the worst.

But the way the new “religious freedom” will ultimately be brought down is to force courts to consider its laws in the light of the 14th Amendment’s guarantee of “equal protection under the law”. If “religious freedom” laws end up giving atheists and Muslims the same consideration Christians are claiming, Christians will repeal those laws themselves.

In other words, non-Christians need to insist — in court — that society shouldn’t rub them the wrong way either. There will often be an aspect of the ridiculous in these cases, like the statue Satanists want to install on the grounds of the Oklahoma statehouse, now that religious statues are allowed.

A very interesting legal argument is being put forward by atheist Michael Newdow, who is famous for taking the case against the “under God” part of the Pledge of Allegiance to the Supreme Court, which denied his standing to sue. This time Newdow is targeting the “in God we trust” motto on the currency. (Like “under God” the motto does not go back to the Founders, who would have been horrified. It appeared on some bills during the Civil War, but wasn’t established as the national motto until 1956.)

Newdow has failed to banish “in God we trust” before, but this time he’s basing his argument not just on the Establishment Clause of the First Amendment, but on Justice Alito’s interpretation of the Religious Freedom Restoration Act.

The RFRA says:

Government may burden a person’s exercise of religion only if it demonstrates that application of the burden to the person — (1) furthers a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.

The Hobby Lobby decision put forward a very expansive notion of what it means to “burden a person’s exercise of religion”. It used to just mean things like forcing Jews to work on Saturday or lose their jobs. But the Hobby Lobby decision extended it to forcing a corporation to fund health insurance that its employees might choose to use in ways that the offend the corporate owners.

Newdow argues that under this expansive interpretation, the government burdens atheists’ exercise of religion when it forces them to choose between

  • carrying around and distributing pieces of paper saying they trust in God,
  • forgoing the convenience of using the public currency.

And since putting “In God we trust” on the currency accomplishes no useful purpose whatsoever, this burden does not further any compelling governmental interest.

In case anybody out there wants to volunteer, Newdow is seeking plaintiffs from legal jurisdictions where no existing ruling supports “In God we trust”, especially Alabama, Florida, Georgia, Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island.

The time commitment will be minimal (as you help write the prose relevant to your particular circumstances) and there will be no obligation to provide any financial contribution … What we need mostly are families with minor children since the Supreme Court has indicated that it is more likely to uphold constitutional (and, presumably, statutory) principles when children are involved. Please be advised that the identities of any families with children will be kept “under seal” in order to protect the children from any harms.

I don’t have children, and my published opinions on God are sufficiently ambiguous that I’d make a lousy plaintiff anyway. But I’m sure there are Sift readers out there who are just perfect for the job. One of my friends was a plaintiff in one of the important religious-freedom cases of the 1960s (when religious freedom still had its original meaning). His family’s experience was more difficult than what Newdow pictures (because their name was public) but half a century later, I think he still looks back on it with pride.

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Civics For Dummies: Judicial Review

May 18, 2015 – 9:49 am

Or: Why Mike Huckabee should have flunked 9th grade.

The possibility that the Supreme Court might soon rule in favor of same-sex marriage, resulting in its legality in all 50 states, is causing a certain amount of panic on the Religious Right. In response, presidential candidates whose campaigns hope to exploit that panic have been spreading dangerously ignorant ideas about the Constitution and the judicial branch of government. And, as ignorant people often do, they’ve been claiming that everyone else is ignorant, while they alone grasp the true nature of the Founders’ vision.

For example, when NewsMax asked Dr. Ben Carson about same-sex marriage, he responded:

First of all, we have to understand how the Constitution works. The president is required to carry out the laws of the land, the laws of the land come from the legislative branch. So if the legislative branch creates a law or changes a law, the executive branch has a responsibly to carry it out. It doesn’t say they have the responsibility to carry out a judicial law.

And Mike Huckabee presented a similar perspective in more detail:

Getting a decision from the Court is not tantamount to saying, “That settles it. It’s the law of the land.” And when I hear people say that I just cringe, and I’m thinking: “How many people passed 9th-grade civics?” This is not that complicated.

There are three branches of government, not one. We don’t like it if the executive branch overreaches, and pretends that it can act in indifference to the other two. And neither can we sit back and allow the Court — one branch of government — to overrule the other two.

And so when a court rules that same-sex marriage is OK, it doesn’t mean that the next day marriage licenses should be issued for same-sex couples. It simply means that if the legislature agrees with that court decision, and the representatives of the people, the elected officials, if they then put this into legislation, and it is signed and enforced by the executive branch, then you have same-sex marriage. But until those other two branches act, what you have is a court opinion and nothing else.

Clearly, Governor Huckabee’s 9th-grade civics teacher has a lot to answer for, because he seriously misunderstands how our system of government works. So let’s back up and answer a simple civics question: How does the Supreme Court come to have the power to say what laws mean and even to determine that some of them are unconstitutional?

Where judicial review comes from. People who dislike particular court rulings often imagine that this power of judicial review wasn’t in the Founders’ original vision at all; somewhere along the line the Supreme Court just usurped it. But in fact the Founders foresaw judicial review and approved.

If you want to know what the Founders thought the Constitution meant, one of the best places to look is in The Federalist, a series of essays Alexander Hamilton, James Madison, and John Jay wrote to explain the new Constitution and encourage states to ratify it. In Federalist #78, dated June 14, 1788, Hamilton wrote:

The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. … [W]henever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.

So where does the power of judicial review come from? From the Founders. It goes all the way back.

Without judicial review, our constitutional rights are meaningless. This idea is easiest to explain through a hypothetical: Imagine that a Clinton landslide in 2016 sweeps in large Democratic majorities in both houses of Congress. When the new Congress takes office in January, 2017, it passes this one-sentence law:

Whereas Ben Carson and Mike Huckabee are pernicious individuals whose continued liberty is detrimental to well-informed public discourse, they shall be imprisoned in the federal penitentiary in Leavenworth, Kansas for a period of ten years.

President Hillary Clinton signs the law. Federal agents arrest Carson and Huckabee and drag them to Leavenworth. What happens next?

First, notice that even though the Carson-Huckabee Imprisonment Act of 2017 went through the process the Constitution lays out for passing a law, it is still blatantly unconstitutional. In technical terms it’s a bill of attainder, which the Constitution specifically forbids in Article I, Section 9:

No Bill of Attainder or ex post facto Law shall be passed.

But how does that fact do Carson and Huckabee any good? They can complain to the agents who arrest them. They can complain to their Leavenworth guards and cell mates. But so what? “Yeah, yeah, join the club,” they’ll be told. “Everybody in here is innocent.”

Short of counting on friends with guns to break them out, there is only one effective thing they can do: file a writ of habeas corpus, (another Article I right). In other words, Carson and Huckabee can make their jailers justify themselves before a judge. That judge then has the power to say that the Carson-Huckabee Imprisonment Act is unconstitutional. And the very instant that decision comes down, they have to be released.

Notice what doesn’t happen here: There is no “judicial law”, no Carson-Huckabee Release Act that the judge has to pass. And the judge’s ruling is not a suggestion that the other two branches might want to revise or repeal the Carson-Huckabee Imprisonment Act. Carson and Huckabee don’t have “a court opinion and nothing else”. They have their freedom.

If they didn’t, then the Constitution’s protection against bills of attainder would be meaningless. Congress could just refuse to pass a Release Act, or President Clinton could veto it, or just not get around to enforcing it. And Ben and Mike would sit in jail, no matter what rights they had in theory.

All our rights are like that. If you can’t bring your case before a judge who has the power to tell the other branches “Stop doing that right now!”, then in practical terms you don’t have any rights.

Interpretation. I intentionally made that last example simple: a one-line law that stood on its own and did something obviously wrong. But lawmakers with bad intentions are usually sneakier than that.

A much more likely scenario is that Carson-Huckabee imprisonment would be a page of legalese somewhere in the middle of a 300-page bill that built a dam and changed food-stamp requirements and made Al Sharpton’s birthday a national holiday. It wouldn’t mention Carson or Huckabee by name; it would just give the administration power to imprison people who fit some abstract description. Of the people described, only Carson and Huckabee would be worth bothering to arrest. Or maybe 100 people would get arrested, of whom 98 really would be dangerous to the public.

However it shook out, the effect would be the same: Ben and Mike would find themselves in Leavenworth without a trial. But now their habeas corpus case is more complicated, because it isn’t obvious that the Omnibus Reconciliation Act of 2017 — which contains that one significant page — is a bill of attainder. Somebody has to interpret it, and weigh its effects against the abstract definition of a bill of attainder, or against the 14th Amendment’s abstract guarantee of “due process of law”. Exactly how much “process of law” were Carson and Huckabee “due”, and did they receive it? Lawyers from the Clinton Justice Department might concoct some very slick arguments saying that they did.

And that brings us back to Hamilton: “The interpretation of the laws is the proper and peculiar province of the courts.” If the courts are prevented from doing that job, then a clever lawmaker or a hostile administration can take away your rights.

Change. Another way my example is simple is that “bill of attainder” means pretty much the same thing today as it did when the Constitution was written in 1787: a law that sends people to prison without a trial. But it’s reasonably certain that the Constitutional Convention of 1787 had no idea it might be creating a right for same-sex couples to marry, and neither did the people who drafted and passed and ratified the 14th Amendment after the Civil War.

So how can a judge “find” that right in the Constitution today? Did the Founders and subsequent amendment-drafters not understand what they were writing? Were all previous judges stupid not to see this right that judges see today? Or if you don’t believe those absurd things, how is marriage equality not a total abuse of the power of judicial review?

The answer is that even when the text of a law doesn’t change, the practical meaning of that law can change as the world changes around it. Today we have lots of “constitutional” rights that the Founders could not have imagined. When they wrote the Second Amendment, they weren’t picturing AR-15s. When they guaranteed “freedom of the press”, they weren’t thinking about blogs. The Fourth Amendment protection against “unreasonable searches and seizures” didn’t originally have anything to do with the pictures on your smart phone, or the possibility that police might see through your walls with infrared devices.

Today, those kinds of issues come up all the time, along with examples of extended rights we probably shouldn’t have. (If a nuclear weapon can be shrunk down to a suitcase that I can carry, should I have a right to “bear” those “arms”?) In a perfect world, maybe we’d be constantly updating the Constitution to make this stuff clear. But judges don’t get to live in that perfect world; they have to decide the cases that come before them on the basis of the laws on the books.

One solution would be for a court to throw up its hands whenever a case involved something lawmakers hadn’t foreseen. (“How should I know what to do with bazookas?”) In an era with fast technological change and a dysfunctional Congress, increasingly large parts of life would move outside the law. So you’d have the right to bear the same kind of ball-and-powder weapons the Minutemen used, or to print whatever you wanted on a press like Ben Franklin’s. Beyond that, though, your rights would start to evaporate.

Instead, in the American legal tradition, judges read the laws as embodiments of principles, which can then be abstracted and applied to new situations. You really wouldn’t want it the other way.

Marriage equality. In the case of same-sex marriage, the main thing that has changed since the Founding era isn’t the Supreme Court, it’s opposite-sex marriage. In 1789, any gay or lesbian couple claiming they had a right to marry would have been laughed out of John Jay’s Supreme Court, and rightfully so.

That’s because in a truly “traditional” marriage husband and wife are legally distinct roles that can only be filled by people of the appropriate gender. As Blackstone’s authoritative Commentaries on the Laws of England put it in 1765:

By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband. … The husband also, by the old law, might give his wife moderate correction. For, as he is to answer for her misbehaviour, the law thought it reasonable to intrust him with this power of restraining her, by domestic chastisement, in the same moderation that a man is allowed to correct his apprentices or children; for whom the master or parent is also liable in some cases to answer.

Only the husband could own property or sign contracts. No wife could enter into employment without her husband’s approval. There was also no concept of marital rape; for all practical purposes, a wife’s body was her husband’s property, so if he chose to use that property in the ways that husbands typically did, the law saw no issue.

(BTW: Anybody who uses the phrase “traditional marriage” and doesn’t mean what I just described is playing games with words. A marriage of spouses equal under the law is not at all “traditional”, even if the spouses are of opposite genders.)

In that legal environment, a same-sex couple trying to marry would be doing something absurd. Who would be the husband and who the wife? Whose contractual agreements would be valid? Which spouse could discipline the other? And in an era when only men could vote, wouldn’t democracy be undermined if some households had two votes and others none? Nonsense!

But all those circumstances changed. As Justice Ginsburg framed the issue last month:

Marriage was a relationship of a dominant male to a subordinate female. That ended as a result of this court’s decision in 1982 when Louisiana’s Head and Master Rule was struck down … Would that be a choice that states should [still] be allowed to have? To cling to marriage the way it once was?

In current law, the roles of husband and wife are virtually interchangeable. There continue to be social and cultural differences, and many religions still encourage husbands and wives to take on distinct roles. But nothing in the law forces them to do so.

So under the law as it currently exists, same-sex marriage is not absurd, and it exists without causing any apparent problems in about half the country, as well as in several other countries.

Equal protection. In addition to “due process”, the 14th Amendment guarantees each American “the equal protection of the laws”. In practice, that phrase has been interpreted to mean that if the government treats some people differently than others, it has to have a good reason. The more significant the discrimination, the weightier the reason needs to be.

That’s why laws that provide a marriage option to opposite-sex couples but deny it to same-sex couples are in trouble: because it’s increasingly hard to say what legitimate reason the government might have for that discrimination. Salon summarized Justice Breyer‘s analysis like this:

When states try to justify denying same-sex couples the right to marry, “the answer we get is, well, people have always done it,” observed Breyer. That answer won’t do, because it was used to justify racial segregation. “Or, two, because certain religious groups do think it’s a sin.” That can’t justify a law either. “And then when I look for reasons three, four and five, I don’t find them. What are they?”

So the claim that gays and lesbians want to “redefine marriage” has it exactly backwards. During the last century-and-a-half, marriage has already been redefined. And in marriage as it exists today — rather than during the Revolution or the Civil War — what’s our justification for refusing its advantages to same-sex couples?

In short, the Constitution and the 14th Amendment haven’t changed, but the world has changed around them. Nor is the Supreme Court being asked to “redefine marriage” or to pass a “judicial law” legalizing it. That’s not what a court is for. But we do need the Court to tell us what “equal protection” is going to mean in the context of today’s marriage laws.

That’s a use of judicial power I think Alexander Hamilton would understand.

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2016’s Mission Impossible: Support Jeb While Forgetting George

May 18, 2015 – 8:10 am

Republicans won’t repent the Bush/Cheney mistakes, so they have to keep pushing them out of mind.

The aura of inevitability around Jeb Bush’s nomination started to flicker this week, as he gave four different answers about Iraq in four days.

  • Monday, he responded to Fox News’ Megan Kelly’s question: “On the subject of Iraq, knowing what we know now, would you have authorized the invasion?” With “I would have, and so would have Hillary Clinton, just to remind everybody.” (In her 2014 book Hard Choices, Clinton addressed the topic like this: “I wasn’t alone in getting it wrong. But I still got it wrong. Plain and simple.”)
  • Tuesday, he told Sean Hannity that he had misinterpreted Kelly’s question, but still avoided answering: “I don’t know what that decision would have been, that’s a hypothetical. But the simple fact is that mistakes were made.”
  • Wednesday, at a town hall meeting in Nevada, he defended Tuesday’s non-answer, citing the feelings of the families of the soldiers who died in Iraq: “Going back in time and talking about hypothetical, ‘what would have happened, what could have happened,’ I think does a disservice for them.”
  • Thursday in Arizona, he finally gave the opposite of Monday’s answer: “Knowing what we now know, what would you have done? I would not have engaged. I would not have gone into Iraq.”

While this clumsy performance does raise doubts about Bush’s ability to run a smooth campaign — how could have he not have foreseen that question and prepared a better answer? — it was just a bad week, and he has a lot of weeks to get back on track before any votes are cast. But Jeb’s Iraq misfortunes underline a larger handicap for Republicans in general in Jeb in particular: In response to the horrible shape President Bush left the country in — and the corresponding electoral disaster of 2008 — the Republican Party still has not developed any better strategy than pretending George W. Bush never existed.

For comparison, Bill Clinton came back from his impeachment to be one of the most valued campaigners in the Democratic Party, with prime-time speaking slots at every Democratic Convention since he left office. (Bill has in fact spoken at every convention since he gave a widely-panned nomination speech for Mike Dukakis in 1988. I wonder if seven in a row is a record.) But W has been a no-show at Republican conventions, and his political appearances in general have been limited to closed-door fund-raisers in front of audiences known to be friendly. As for the other major players in his administration: Dick Cheney was not even in the country during the 2012 GOP convention, where the only speaker with a major Bush-administration role was Condoleeza Rice, who Romney’s people needed for racial and gender diversity.

During this time that they’ve kept W himself locked in the basement, though, Republicans have never rejected his policies or philosophy. Again, compare to the Democrats: Bill Clinton’s centrist “New Democrats” turned away from classic liberalism after bad losses in 1980, 1984, and 1988; and recent Democrats have changed their minds about specific Clinton administration policies while continuing to cite the successes — relative peace, low inflation, low unemployment, and budget surpluses — of the Clinton era in general. For example, many Democrats cheered when the Supreme Court rejected the Defense of Marriage Act, and Hillary’s recent speech against “mass incarceration” implicitly rejected Bill’s 1994 crime bill.

But in spite of all the “revolutionary” noise the Tea Party has made since Bush left office, their candidates’ proposals (with the exception of Rand Paul’s isolationism and several candidates’ anti-immigrant positions) are to do more of what Bush did: cut taxes on the rich, cut regulations on corporations and the big banks, boost fossil fuel production, deny global warming, hold the line against gay rights, keep chipping at abortion rights, and don’t shy away from new wars in the Middle East.

You can’t ask for forgiveness if you won’t repent, so Republicans’ only option is to keep pushing out of mind the mess left behind the last time a president implemented these policies.

Like all people trying to forget a traumatic past, Republicans are full of impatience and even anger when Democrats bring it up: Why can’t Obama stand on his own record rather than keep blaming things on the disaster he inherited from his predecessor? The rare occasions when they speak the forbidden name usually are coupled with some major memory lapse, as when Rudy Giuliani edited 9/11 out of history: “We had no domestic attacks under Bush.”

I’m reminded of a quote in Patrick Smith’s Somebody Else’s Century, from a Chinese man reflecting on the horrors of the Cultural Revolution: “The official forgetting we are supposed to do will not produce the desired result. [Eventually] people forget why they are supposed to forget, and then they start to remember.”

It’s still too soon for Republicans to remember the Bush administration, because the American people still haven’t forgotten why we’re supposed to forget. So any successful 2016 Republican general-election campaign will have to continue making the Bush/Cheney years disappear. And, as we saw this week, the candidate least likely to pull off that trick is Jeb Bush.

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Rating This Week’s Craziness

May 11, 2015 – 8:26 am

What should we do when debunking just isn’t enough?

Sometimes inaccurate news stories or false factoids get widely distributed and need to be corrected, like “Obama was born in Kenya” or “Saddam was behind 9-11.” Other times, claims about economics or history need correcting, like “Tax cuts raise revenue.” or “The Civil War wasn’t about slavery.” Debunking such popular misconceptions may not get the attention it deserves in the national media, but it does get covered if you know where to look: Snopes.com specializes in it, newspapers have fact-checking columns, and some news-and-opinion TV shows include regular features like Rachel Maddow’s “Debunction Junction” or Lawrence O’Donnell’s “Rewrite”.

But then there’s stuff that isn’t just wrong, it’s crazy, like the myths about  FEMA concentration camps a few years ago. Debunking the alleged “facts” just doesn’t seem adequate, because people who assess things rationally … well, they wouldn’t have believed the story to begin with, would they? For a story like that, the question that needs an answer isn’t “Is X true?”, but “Are there are really people out there crazy enough to believe X?”

And if there are, what should we do about them? If you’ve ever met such a person and tried to argue, no mere fact-checking column can help you, because the storehouse of pseudo-facts that support the crazy idea is bigger than you can possibly imagine. Each of those then needs its own debunking, and the whole thing goes fractal in a hurry.

So when crazy things ricochet around on my Facebook news feed, it’s often hard to decide what level of attention they deserve. It’s tempting not to take them seriously, but if all the sensible people do that, maybe the insanity will metastasize into delusions popular enough to have real influence on our political process, like the ObamaCare death panels. Maybe by ignoring them, I allow irresponsible politicians to dog-whistle; i.e., to say things that sound innocuous to the general public, but send another message entirely to the part of the population crazy enough to think they’re “in the know” about this. Worse yet, the wider these things spread, the more likely they are to reach the ears of some unstable person who will take violent action, like the guy police apprehended on his way to shoot up the Tides Foundation, a well-meaning organization that Glenn Beck thrust into the center of some big conspiracy theory.

On the other hand, maybe the whole point of craziness is to distract the public from discussing genuine issues, and if I respond I’m just playing along. Craziness has been running high lately — I’ll get into that below — and it’s probably not a coincidence that the news-for-rational-people has been very upsetting to the right-wing fringe lately: The protests in Baltimore — and the sporadic violence that spun out that situation — have emphasized that the police-killing-black-young-men issue is not going away; the black community is justifiably mad as hell and they’re not going to take it any more. The Supreme Court might be on the brink of recognizing marriage equality for gays and lesbians. There might be a peace agreement with Iran. And the second consecutive year of record temperatures makes global warming much harder to deny.

Given all that, how comforting it must be for extremists to create scenarios where the righteousness of their cause is obvious, like if Obama declares martial law in Texas and starts confiscating guns. Insane scenarios like this are the comfort food of far-right politics: They’re not going to happen, but imagining that they could underlines how important your movement must be — the Tyrant will have to bring down the Republic to try to stop us! — and lets you live in a heroic Red Dawn fantasy rather than in the real world, where you’re probably just an ignorant bigot.

With those considerations in mind, I’ve decided that — instead of fact-checking or satirizing —  craziness calls for something more along the lines of the Fire Danger scales you see in the national parks. Here’s the scale that makes sense to me:

  • Green. The only danger is to your blood pressure if you let yourself pay attention.
  • Blue. Laugh. You should probably have heard of this, but if it starts bothering you, let it go.
  • Yellow. Somebody you know probably takes this seriously, but it’s not going anywhere. Bookmark a debunking article, and if Cousin Bob tries to get you interested, invite him back into the sane world by sending him the link. (If he replies with a 10-page de-debunking, ignore him. Life is too short.)
  • Orange. This has the potential to get out of hand. It’s starting to infiltrate mainstream political discourse, and if the wrong people take it seriously, bad things could happen. Learn the key phrases that indicate someone is infected with this meme. When you hear them, you have a decision to make: Either quietly back away, or draw the topic into the foreground: “Are you really claiming …?” This is the level where it makes sense to start psycho-analyzing: What anxiety is really at the root of this?
  • Red. Bad things are already happening, and you hear the craziness from people who are not even crazy, they’re just poorly informed enough to be susceptible. You need to educate yourself and start actively inoculating the people you care about. Extra credit: Is there some way you can take action on the actual anxiety-causing issue?

Given that scale, let’s start evaluating the unusual run of craziness we’ve been having these last few weeks.

1. Jade Helm 15. Wikipedia describes Jade Helm 15 as “a planned United States military training exercise that is scheduled to take place over multiple states in the US from July 15 through September 15, 2015. It will involve U.S. Army Special Operations Command (SOC) with other U.S Armed Forces units in a multi-state exercise that includes Texas, Arizona, New Mexico, Utah and Colorado.“

But if you look at it through the eyes of paranoia … well, that’s what makes it such a great crazy theory: It’s hard to argue with because it’s hard for reasonable people to grasp exactly what the threat is supposed to be. Maybe it’s a dry run for the imposition of martial law, or maybe it’s not even a drill, it’s martial law itself, or something else that involves confiscating guns (and secret tunnels under abandoned WalMarts). Because if President Obama were about to launch a coup against his own government, the place he would absolutely have to get under control first is Bastrop, Texas. I mean, if the Red Dawn patriots are anywhere, everybody knows that’s where they’d be.

The New Republic‘s Brian Beutler supplies the needed psychological analysis:

There’s a good amount of mythical and self-important thinking going on here, but there is also a very real sense in which these conservatives conceive of themselves as beleaguered, bent over a barrel by the federal government, living every day at the breaking point. It helps explain why [Senator Ted] Cruz believed a missive about using the Second Amendment as an “ultimate check against government tyranny” would make for a winning fundraising pitch, and why South Carolina Senator Lindsey Graham (also running for president) had to remind him that armed insurrection didn’t work out so well for his state a while back.

But this reasoning collapses without a foil. The secessionist impulse can’t be attributable to the ebbs and flows of social policy alone. If we live our lives on the razor’s edge of rebellion, there must be an equally reactionary adversary somewhere in the middle distance threatening our autonomy. That’s what gives rise to a projection of the kind we’re seeing in Texas today. Without an enemy, real or imagined, threatening our autonomy, we’re not patriots. We’re merely zealots.

Rating: Yellow/orange. It’s tempting to call this one blue, because liberals have gotten a lot of laughs out of it. But numerous Republican officials have responded as if the upset members of their party’s base had a legitimate concern, so it has definitely crossed the line into the mainstream. We can only hope that no wackos are taking this so seriously that they start shooting at our troops this summer. That plan probably wouldn’t work out well for them.

2. Kids posing with the Confederate flag. This one is true: The craziness isn’t in believing the rumor, but in why anybody would do this to begin with. Apparently egged on by some of their parents, eight teens dressed for the prom at Chaparral High in Parker, Colorado took a few minutes to pose for this picture and upload it to the internet. (Media versions of the photo have blurred the teens’ faces to protect them from their own foolishness.)

Denver’s Fox31 quoted a University of Colorado-Denver history professor identifying the flag as “first the Tennessee flag and more importantly the army of Virginia’s battle flag” before becoming the symbol of the KKK after the Civil War.

One of the parents speculated that there was no racist intent involved, but that “in their immaturity they kind of think it’s a sort of a cowboy type of thing.” Other commenters have suggested admiration for a “Southern lifestyle” a la Duck Dynasty.

CNN’s debate between Marc LaMont Hill and Ben Ferguson is instructive. Ferguson (a white conservative) accepts that the kids were probably not trying to offend blacks, and sees this very lack of race-consciousness as a sign of progress.

It may not be race as much as you’re trying to make it into race. It could actually be that there are younger people in America today that are not obsessed about racial issues or being bigoted or racist as you’re implying there are.

And Hill (black) replies, “Yeah, they’re called white people.” His point is that the ability to live without consciousness of race is itself part of white privilege. Blacks are never able to forget that there is a racial divide, or to ignore the possibility that whites might read something offensive into what they do. (I’m trying to picture how this story would play in the media with the races reversed: black kids with guns surrounding a Black Panther or Nation of Islam banner. I find it hard to imagine that pundits would accept a claim of innocent intent or see it as a sign of racial progress.)

Rating: Green, but orange if you have any connection to Chaparral High: If kids are coming out of your school without understanding what that flag really means — particularly when surrounded by whites with guns — you’ve got a problem.

3. Christianity is in danger of being “criminalized”. As unbelievable as it might be to outsiders (who see the Religious Right throwing its weight around all over our society), conservative Christians honestly believe both that they are persecuted and that their persecution is about to take sudden turn towards something truly dark and tyrannical.

This bizarre notion has been around for many years. In 2005, Janet Fogler published The Criminalization of Christianity: Read this book before it becomes illegal! (If it has become illegal in the subsequent decade, no one has told Amazon.) She in turn attributed the phrase to a speech she heard in 1997: “The ultimate goal of the homosexual movement is the criminalization of Christianity.”

A number of Republican presidential candidates are dog whistling about this idea, as when Ted Cruz said “Religious liberty … has never been more in peril than it is right now.” But Mike Huckabee is explicitly making this looming criminalization one of the themes of his presidential campaign. In a conference call recorded by Right Wing Watch, Huckabee laid it out:

Christian convictions are under attack as never before. Not just in our lifetime, but ever before in the history of this great nation. We are moving rapidly towards the criminalization of Christianity, where it’s not simply going to be that a church’s tax-exempt status is threatened, but more importantly, where [there are] criminal charges for a person who defies the new government norm. … We would be in essence criminals for preaching the scriptural truth about holy marriage.

He justified this fear by citing “numerous cases” across the country of “chaplains in the military being told to put their Bibles away, no longer pray in Jesus name”. (Air Force Chaplain James Bradfield explains the origins of this canard: When soldiers have been ordered to attend a meeting, regulations say the invocation of that meeting — if any — should be non-sectarian. So it is inappropriate to pray in Jesus’s name, or in Allah’s or Buddha’s. In short, the regulation is against forced devotion, not devotion in general or Christian devotion in particular.)

To me, this a classic example of what I have elsewhere called privileged distress: as a favored group loses some of its privileges and is treated more like everyone else, its members imagine that they are being persecuted.

The sad thing is that Huckabee and his ilk are blind to the sense in which Christianity really is being criminalized — by Christians who believe their higher righteousness justifies them in ignoring the laws and Constitutional principles the rest of us have to live by. Scott Roeder, for example, criminalized Christianity when he killed abortionist Dr. George Tiller. Governor Jindal is criminalizing Christianity when he conspires to misappropriate public funds to promote his religious views in the Louisiana public schools. And Huckabee himself is advocating the criminalization of Christianity later in this same conference call, when he urges local government officials to defy court orders to issue marriage licenses to same-sex couples.

Rating: Red. Bad things are already happening. The proponents so-called “religious liberty” bills in the state legislatures often take as given that Christian belief and practice is in some kind of legal danger.

4. Obama is bringing on the Apocalypse. This story, in my opinion, got blown out of proportion. In an interview on a religious-right radio program, Michele Bachmann accused President Obama of helping Iran get nuclear weapons, which spins the world toward disaster. But then she segued into a common Christian belief: that the worse things get, the closer we are to the Second Coming.

To my mind, this is comparable to a point Communists often make: that the worse things get, the closer we are to the Revolution. And Bachmann never completely boiled it down to “Obama is causing the Apocalypse”, as you might assume from the headlines.

I find another clip from this interview more interesting, because it illustrates how the conservative mind uses theories of dark magic to deal with the cognitive dissonance caused by the increasing evidence for climate change: Since President Obama has “in effect, declared war on Israel”, he has invoked the curse in Genesis 12:3 against the United States. The interviewer (Jan Markell) sums up the consequences: “As we speak, they’re severe, from economic issues to some of the weather-related issues: drought on the west coast, unparalleled, unprecedented snowstorms on the east coast.” And Bachmann responds: “It’s my opinion that that is only the very threshold or down payment.”

Rating: Green.

5. Two guys die trying to shoot their way into a Muhammad cartoon contest. Like #2, this one really happened. The American Freedom Defense Initiative — an anti-Muslim group whose president is Pamela Geller — attempted to recreate the Charlie Hebdo situation in Garland, Texas.

They succeeded. Two extremely foolish Muslim extremists took the bait and wounded a security guard. They were gunned down by police and died.

The incident reminds me of high school, where a big guy might start talking trash about a little guy’s Mom or girl friend, hoping he’ll attack and provide an excuse to beat the crap out of him. Yeah, the little guy is wrong to react, but that doesn’t make me root for the big guy either. Larry Wilmore nailed it:

Make no mistake, it is absolutely, unequivocally wrong to shoot people who do things that offend you, but two things can be wrong at the exact same time. Even if Pamela Geller’s argument about free speech is valid, she can still be a dick.

If somebody has a real point they’re trying to make, and if the best way to get that point across is through a cartoon with Muhammad in it, I totally support the right to draw that cartoon no matter how many Muslims it incidentally pisses off. But if pissing off those Muslims is the whole point, I still agree in a legal sense, but my sympathy is limited.

I know it’s Bill Maher’s job to make the New Rules, but here’s one I’d like to propose: If you portray AFDI as innocent victims, you are absolutely forbidden ever to claim that any victim of any crime was “asking for it”. If supermodels want to walk down inner-city sidewalks by themselves at 3 a.m., naked but for solid-gold jewelry, they’re just exercising their right to free expression.

Rating: Red. Craziness really starts to take off when you can provoke a crazy response from the opposite fringe. Eventually you can get into the center-destroying cycle of reprisals I described a decade ago in Terrorist Strategy 101.

6. Obama is promoting a race war so he can cancel the elections. World Net Daily is the New York Times of conspiracy theorists. On its site you can find columnists like Erik Rush, who will “connect the dots” and explain to you what this Baltimore nonsense is really about.

The common denominator, as we have seen illustrated above, in the streets of Ferguson and Baltimore, in the White House and across America: Marxists and militant Muslims working together in a coordinated effort to precipitate circumstances that will eventually “necessitate” the imposition of martial law. …

The operatives in Baltimore are but one contingent of Obama’s Revolutionary Army; illegal immigration and amnesty activists are another, as are various other entitled and protected class groups the political left has cultivated over many years. Effective manipulation of these demographics will be integral in determining whether or not he can successfully turn us all against one another at the appointed time.

Another WND columnist, Morgan Brittany, says “I completely agree” with that Rush column, and elaborates:

I don’t think the chaos in Baltimore “just happened”; I think it was planned and is the next step in the breakdown of our society.

Another piece of the plan is the “over-charging” of the officers who killed Freddy Gray, because when they are inevitably acquitted, Obama’s Marxist/Muslim allies can incite similar riots across the country.

If the verdict is not what they want, perhaps Obama will have to institute martial law to preserve order, form a national police force and postpone the 2016 elections.

Michael Savage knows who will be in that national police force: Obama’s about to “deputize” the Crips and Bloods to “keep order on the streets”.

You’re going to see more race war right up until the Labor Day of 2016 for an obvious reason. … they’re going to take the street garbage and they’re going to take the illegal immigrants and they’re going to warp the entire election.

Rating: Blue. But only because everything from Savage or WND rates as Blue until it gets picked up elsewhere; I’ll upgrade this bit of craziness to Yellow as soon as I see it on Fox.

The Obama-planned-Baltimore theory has potential. If you take as an axiom that white racism in America is ancient history, then these repeated unnecessary police killings of black men and the deep anger they evoke in the black community are profound mysteries. What better explanation could you find?

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