Conspiracies are part of the paranoid's delusion. They are, also, very much a part of the American mindset. From John Winthrop's seventeenth-century claims that Massachusetts Puritans were beset by enemies plotting their destruction to Salmon P. Chase's 1850s allusions (not originally his) of the "slave power's" power over the northern government to Oliver Stone's curious historical reworking of JFK's assassination, conspiracy theories have been perennial.
I don't believe in them. Conspiracies are easy to piece together with circumstantial evidence but depend in the end on both a willingness to believe in rumor, the absence of direct evidence, and a kind of paranoia that makes them acceptable. We may jettison with safety now Winthrop's fears that the pope, all Catholics, and the Pequot Indians were conspiring to undermine the Massachusetts Bay Colony. Someday we may be able to do the same thing with JFK's assassination.
But this long-winded introduction does not mean to suggest that conspiracies do not exist. And the CIA has gone a long way in covering up a huge conspiracy to violate U.S. law, international norms, and human rights in Guantanamo Bay. I refer, of course, to its destruction of videotapes documenting harsh interrogation techniques at Guantanamo Bay in 2005.
Revelations that the CIA destroyed the tapes came months ago. But it is only now that the relevant due process questions are being raised. The government was under a court order to turn over relevant information in several cases when the CIA began destroying tapes. This willful violation of judicial authority will, of course, come with consequences. At the very least, the government's prosecution of alleged terrorists is now seriously in question. We must beware the state that destroys its own evidence. There is also the question of whether the agents who did this are criminally liable for their actions.
But there is a third problem with this. If the CIA was acting under general orders from the Administration, then we may be witnessing the most egregious misuse of executive authority by this president yet. Of course, no such evidence has yet come to light (to my knowledge). But given that there is significant evidence that "harsh interrogation techniques" (or whatever the euphemism may be) were certainly part of the executive plan on prosecuting the war on terror, then this may well be part of a design. And if it is part of a planned design, then it may be an impeachable offense.
To some degree, I am engaging in rank speculation. But Congress has yet to take serious action on the question of its constitutional responsibilities to contain a president who flouts the laws of the country so willfully. For this reason, it is reasonable to wonder whether this CIA action is simply more evidence (albeit indirect) that Congress is fast becoming the weakest branch of government. One might even wonder if this is part of, well, a design.
Now that would be a conspiracy.
Friday, March 28, 2008
Tuesday, March 25, 2008
Posner's Gauntlet
Eric Posner, son of famed legal scholar Richard Posner and a formidable legal scholar in his own right, has recently posted an essay on Slate about judicial restraint. Claiming as essentially proven the contention that judge's decide cases based on policy preferences, Posner suggests that judges ought to exercise more restraint than activism in deciding cases. Mark Graber over at Balkinization has taken exception to Posner's lack of scholarly reading on the subject, claiming that his rendering of the "best academic literature" on the subject is heavily weighted toward legal scholars without taking into consideration the best historical and political science literature on the subject. Graber further suggests that he has found copious evidence of antebellum belief in a regime of judicial supremacy.
I will be interested in reading Graber's work when it is out. Graber always does interesting work--his last book, for example, argued that Dred Scott was decided correctly--but his claim sounds a bit overdone. This is Graber's style, of course, so we will have to see what comes out of it.
But it might be worth looking at Posner's call for judicial restraint. The Rehnquist and Roberts courts have been, so far, some of the most activist in our history. They are, in a large sense, heirs of the Fuller and Warren courts. Can we even return to judicial restraint? Posner makes the call, but does not suggest how in a regime in which we accept judicial supremacy we can enforce anything like judicial restraint. It is difficult to see how it might work.
I will be interested in reading Graber's work when it is out. Graber always does interesting work--his last book, for example, argued that Dred Scott was decided correctly--but his claim sounds a bit overdone. This is Graber's style, of course, so we will have to see what comes out of it.
But it might be worth looking at Posner's call for judicial restraint. The Rehnquist and Roberts courts have been, so far, some of the most activist in our history. They are, in a large sense, heirs of the Fuller and Warren courts. Can we even return to judicial restraint? Posner makes the call, but does not suggest how in a regime in which we accept judicial supremacy we can enforce anything like judicial restraint. It is difficult to see how it might work.
Tuesday, March 18, 2008
Obama's Gambit
For those who take the time to read Barack Obama’s speech of Tuesday, March 18, they might find a few things to surprise them. Certainly they will find much more than the headlines suggest, which uniformly focus on Obama’s “repudiation” of Rev. Wright, or his “continued relationship” with him. They will find more than a treatise on “anger,” as Amanda Carpenter has insinuated in her townhall article on the subject.
What people who care to look into his speech will find is something of the truth once articulated by Walt Whitman. In a poem reflecting on what it meant to be American, he wrote “Do I contradict myself? Very well, I contradict myself. I am large, I contain multitudes.” Obama’s gambit is that his speech will speak to audiences that contradict each other. And that they might, then, begin speaking to him, and to each other.
This would, of course, be no mean feat. Traditionally there has been very little honest discussion of race in America, especially at the political or constitutional level. Obama understands this history better than most politicians. He said that our Constitution was “stained” with the original sin of slavery, a sin committed by our venerable founding fathers that has forever been visited upon their descendents.
This is not a statement characteristic of politicians, who usually do not like to suggest our founding fathers got anything wrong in the Constitution. Compare it, for instance, with George W. Bush’s halting and inept invocation of the infamous Dred Scott v. Sanford during a 2004 debate with John Kerry. Slavery (said our highest executive officer charged with defending the U.S. Constitution) wasn’t in the Constitution. Wrong, Mr. President. Even schoolchildren know better.
So does Obama. One gathers he also has a much better sense of why race has historically been such a difficult subject. The great sin of slavery was embarrassing enough that the generations that followed Jefferson, Hamilton, Adams, and Washington found it difficult to negotiate. By the 1830s, slaveholders faced an increasingly vocal and self-righteous abolitionist enemy, determined to judge not just the sin of slavery, but the sins of slaveholders. Abolitionists denounced them from the pulpit, in their newspapers and pamphlets, and in petitions that they shipped off to the U.S. Congress.
Slaveholders demanded that abolitionists shut up. They won a gag order in Congress that prevented the national legislature from ever discussing petitions touching on slavery, and each of the slaveholding states prohibited the publication or circulation of abolitionist tracts. Some demanded that northern states take similar steps. Free states declined, and abolitionists refused to quit.
It is easy for us historically to admire the abolitionists and despise the slaveholders. It is much more difficult to coolly assess the net effect of this simultaneous bedlam and silence: a real dysfunction in racial discourse, one in which radicals shouted past one another and the vast majority of Americans could not participate. The resultant coalition-building into sectional parties split America politically, constitutionally, and militarily. The result was more than half a million dead and a generation scarred. Slavery was done away with. So too was the Constitution that protected slavery.
When Obama referenced this struggle in his speech, he did not do so to excoriate the Constitution. Sure it was stained with sin. But the same document offered redemption in its sweeping assumptions of equal citizenship under the law, and its promise of liberty and justice that would be perfected over time. In short, said Obama, the means to change even the Constitution’s meaning—to redeem the sinner and advance the cause of liberty—was embedded in the Constitution itself.
Intellectually, this makes Obama the heir of Thomas Jefferson and, perhaps more fittingly, Frederick Douglass. Both these colossal figures believed the Constitution to be a blueprint for democratic action and change. Both believed that it was really only “the people themselves” who could change the meaning of the Constitution. Both envisioned a country full of agitators who would never give up the struggle.
This call for struggle marks Obama as a constitutional aspirationalist. Nothing new here—this has been his message for some time. What makes his voice refreshing is his promise that our current, poisoned racial discourse might be healed through real dialogue. He referenced that oh-so-American problem of silence. We feel uncomfortable bringing up race precisely when it is most important. Should it be any surprise, then, that blacks speak differently in the barbershop or in the church than when in mixed company? Or that whites don’t feel able to speak about race openly? Here the racial current and “privilege” do not run in the same stream. Obama referenced the frustration felt by many of the white working class, none of whom really feel that they have gained much by happening to be white.
And most importantly, he made room for them all. Where politicians usually spend their time being sunny and asking us to be “kinder, gentler” or “uniters” or whatever, Obama freely embraced the need to speak openly about such anger. About missed opportunities. And he warned everyone that to overlook the multiple realities that make up “America,” to ignore the anger that comes from it, is to repudiate America itself. America is large. It contains multitudes.
This is Obama’s gambit: his faith in the decency of Americans to come together despite internal divisions. Contrary to what many pundits are declaring, he is not walking a tightrope or trying to thread a needle. This was not a case of a politician saying one thing to one crowd and one thing to another. This was aimed at all of us. He has pointed out to us, as a nation, our own internal contradictions. Will we look away, or within?
What people who care to look into his speech will find is something of the truth once articulated by Walt Whitman. In a poem reflecting on what it meant to be American, he wrote “Do I contradict myself? Very well, I contradict myself. I am large, I contain multitudes.” Obama’s gambit is that his speech will speak to audiences that contradict each other. And that they might, then, begin speaking to him, and to each other.This would, of course, be no mean feat. Traditionally there has been very little honest discussion of race in America, especially at the political or constitutional level. Obama understands this history better than most politicians. He said that our Constitution was “stained” with the original sin of slavery, a sin committed by our venerable founding fathers that has forever been visited upon their descendents.
This is not a statement characteristic of politicians, who usually do not like to suggest our founding fathers got anything wrong in the Constitution. Compare it, for instance, with George W. Bush’s halting and inept invocation of the infamous Dred Scott v. Sanford during a 2004 debate with John Kerry. Slavery (said our highest executive officer charged with defending the U.S. Constitution) wasn’t in the Constitution. Wrong, Mr. President. Even schoolchildren know better.
So does Obama. One gathers he also has a much better sense of why race has historically been such a difficult subject. The great sin of slavery was embarrassing enough that the generations that followed Jefferson, Hamilton, Adams, and Washington found it difficult to negotiate. By the 1830s, slaveholders faced an increasingly vocal and self-righteous abolitionist enemy, determined to judge not just the sin of slavery, but the sins of slaveholders. Abolitionists denounced them from the pulpit, in their newspapers and pamphlets, and in petitions that they shipped off to the U.S. Congress.
Slaveholders demanded that abolitionists shut up. They won a gag order in Congress that prevented the national legislature from ever discussing petitions touching on slavery, and each of the slaveholding states prohibited the publication or circulation of abolitionist tracts. Some demanded that northern states take similar steps. Free states declined, and abolitionists refused to quit.
It is easy for us historically to admire the abolitionists and despise the slaveholders. It is much more difficult to coolly assess the net effect of this simultaneous bedlam and silence: a real dysfunction in racial discourse, one in which radicals shouted past one another and the vast majority of Americans could not participate. The resultant coalition-building into sectional parties split America politically, constitutionally, and militarily. The result was more than half a million dead and a generation scarred. Slavery was done away with. So too was the Constitution that protected slavery.
When Obama referenced this struggle in his speech, he did not do so to excoriate the Constitution. Sure it was stained with sin. But the same document offered redemption in its sweeping assumptions of equal citizenship under the law, and its promise of liberty and justice that would be perfected over time. In short, said Obama, the means to change even the Constitution’s meaning—to redeem the sinner and advance the cause of liberty—was embedded in the Constitution itself.
Intellectually, this makes Obama the heir of Thomas Jefferson and, perhaps more fittingly, Frederick Douglass. Both these colossal figures believed the Constitution to be a blueprint for democratic action and change. Both believed that it was really only “the people themselves” who could change the meaning of the Constitution. Both envisioned a country full of agitators who would never give up the struggle.
This call for struggle marks Obama as a constitutional aspirationalist. Nothing new here—this has been his message for some time. What makes his voice refreshing is his promise that our current, poisoned racial discourse might be healed through real dialogue. He referenced that oh-so-American problem of silence. We feel uncomfortable bringing up race precisely when it is most important. Should it be any surprise, then, that blacks speak differently in the barbershop or in the church than when in mixed company? Or that whites don’t feel able to speak about race openly? Here the racial current and “privilege” do not run in the same stream. Obama referenced the frustration felt by many of the white working class, none of whom really feel that they have gained much by happening to be white.
And most importantly, he made room for them all. Where politicians usually spend their time being sunny and asking us to be “kinder, gentler” or “uniters” or whatever, Obama freely embraced the need to speak openly about such anger. About missed opportunities. And he warned everyone that to overlook the multiple realities that make up “America,” to ignore the anger that comes from it, is to repudiate America itself. America is large. It contains multitudes.
This is Obama’s gambit: his faith in the decency of Americans to come together despite internal divisions. Contrary to what many pundits are declaring, he is not walking a tightrope or trying to thread a needle. This was not a case of a politician saying one thing to one crowd and one thing to another. This was aimed at all of us. He has pointed out to us, as a nation, our own internal contradictions. Will we look away, or within?
Thursday, March 6, 2008
Gay Marriage, Equal Protection
On March 4, the California Supreme Court heard arguments in the _Marriage Cases_, a legal challenge to the state's ban on gay marriage. It is a complicated series of cases that raise fundamental questions about fairness and tolerance, as well as tradition and history. Legally it pits competing claims of equal protection against the state's police power--its right to regulate the health, welfare, and morals of its residents.
But the case is more complicated than even this. In our recent constitutional and legal past, the United States experienced a national backlash against the extension of civil rights to marginal groups. From the 1940s on, all three branches of the federal government have demonstrated a willingness to protect the rights of U.S. citizens against states and individuals who threatened them. Beginning with African-Americans and eventually extending to women, Asians, and other minorities, the language of rights claims became prominent in America.
The 1980s "Reagan Revolution" was the first concerted backlash against this new, rights-oriented culture. Its success was not precisely a rollback of the civil rights movement--after all, part of the civil rights movement's success was in changing the predominant culture to such a profound degree that even right wingers could no longer profess openly racist views and get away with it. Tolerance became normalized.
This did not please some. The interest group known as the "religious right" began expressing dismay that the dominant culture was *too* tolerant. Its tolerance was creating a culture of relativity that equated with permissiveness. The right already had political muscle, which it flexed powerfully in 1992, forcing President Bush I to shuffle to the right and abandon his own centrist and pragmatic policies and, for these sins, lose the election to Bill Clinton. The religious right pressed on, joining the "Republican Insurgency" of Newt Gingrich, and ultimately becoming a decisive factor in garnering electoral votes for George W. Bush in 2000 and 2004.
This was the context within which the subject of gay marriage became headline news. When the Massachusetts Supreme Court said in 2003 that the marriage law of its state could not exclude homosexual unions (because it violated the equal protection of the law to homosexuals), the reaction became nationwide. A number of states, including Georgia, sought to amend their constitutions to define marriage as being between one man and one woman. That these votes were often brought during key national elections (the presidential election year of 2004, for example) should surprise no one. Karl Rove helped organize the backlash to bring evangelicals to the polls at precisely the moment that Bush needed votes to defeat John Kerry. It should also be noted that the first stages of this backlash were in the mid-90s, culminating in the Congress passing the Defense of Marriage Act (DOMA) in 1996 (another election year). Bill Clinton signed it into law, and the Clinton campaign trumpeted this defense of marriage in ads on southern and midwestern radio stations while remaining mute about it in the national race. So much for the progressive Clintons.
Which brings us to California. It is true that state law, not the state Constitution, bans gay marriage. But it also extends all the benefits of marriage that the state can provide to gay couples in the form of "domestic partnerships." The only difference between a domestic partnership and a marriage in California is that the domestic partnership will not be recognized by other states that prohibit gay unions. This has nothing to do with California law, but rather with DOMA (mentioned above). DOMA provided that no state could be compelled to recognize a marriage from another state that was not between a man and a woman. Whether this is a legitimate exercise of the full faith and credit clause has not been scrutinized judicially.
Does the California law violate equal protection of laws? The case recalls the question of segregation that was presented during the famous cases of Plessey v. Ferguson (1898) and Brown v. Board of Education (1954). In Plessey, the high court ruled that separate but equal facilities for blacks and whites were not a violation of the equal protection clause of the Fourteenth Amendment. If blacks chose to view it as a badge of their second class citizenship, opined the Court, that was their choice, not the reality. In Brown, famously, the Court said the reverse: that separation was inherently unequal.
Is it true with marriage? Do homosexual couples in California suffer from not being able to call their union a "marriage," even if state law extends them the same privileges as married couples under a different name? Is it an invocation of the discredited "separate but equal" standard?
I'll avoid making a direct answer. Suffice it to say that the issues are even more complex than I let on. And the fact that California's story is wrapped up in a national narrative makes it all the more interesting. We are witnessing, perhaps, one of the great constitutional struggles of our day that will be as trenchantly written about by later generations as was the 100 year struggle for civil rights.
But the case is more complicated than even this. In our recent constitutional and legal past, the United States experienced a national backlash against the extension of civil rights to marginal groups. From the 1940s on, all three branches of the federal government have demonstrated a willingness to protect the rights of U.S. citizens against states and individuals who threatened them. Beginning with African-Americans and eventually extending to women, Asians, and other minorities, the language of rights claims became prominent in America.
The 1980s "Reagan Revolution" was the first concerted backlash against this new, rights-oriented culture. Its success was not precisely a rollback of the civil rights movement--after all, part of the civil rights movement's success was in changing the predominant culture to such a profound degree that even right wingers could no longer profess openly racist views and get away with it. Tolerance became normalized.
This did not please some. The interest group known as the "religious right" began expressing dismay that the dominant culture was *too* tolerant. Its tolerance was creating a culture of relativity that equated with permissiveness. The right already had political muscle, which it flexed powerfully in 1992, forcing President Bush I to shuffle to the right and abandon his own centrist and pragmatic policies and, for these sins, lose the election to Bill Clinton. The religious right pressed on, joining the "Republican Insurgency" of Newt Gingrich, and ultimately becoming a decisive factor in garnering electoral votes for George W. Bush in 2000 and 2004.
This was the context within which the subject of gay marriage became headline news. When the Massachusetts Supreme Court said in 2003 that the marriage law of its state could not exclude homosexual unions (because it violated the equal protection of the law to homosexuals), the reaction became nationwide. A number of states, including Georgia, sought to amend their constitutions to define marriage as being between one man and one woman. That these votes were often brought during key national elections (the presidential election year of 2004, for example) should surprise no one. Karl Rove helped organize the backlash to bring evangelicals to the polls at precisely the moment that Bush needed votes to defeat John Kerry. It should also be noted that the first stages of this backlash were in the mid-90s, culminating in the Congress passing the Defense of Marriage Act (DOMA) in 1996 (another election year). Bill Clinton signed it into law, and the Clinton campaign trumpeted this defense of marriage in ads on southern and midwestern radio stations while remaining mute about it in the national race. So much for the progressive Clintons.
Which brings us to California. It is true that state law, not the state Constitution, bans gay marriage. But it also extends all the benefits of marriage that the state can provide to gay couples in the form of "domestic partnerships." The only difference between a domestic partnership and a marriage in California is that the domestic partnership will not be recognized by other states that prohibit gay unions. This has nothing to do with California law, but rather with DOMA (mentioned above). DOMA provided that no state could be compelled to recognize a marriage from another state that was not between a man and a woman. Whether this is a legitimate exercise of the full faith and credit clause has not been scrutinized judicially.
Does the California law violate equal protection of laws? The case recalls the question of segregation that was presented during the famous cases of Plessey v. Ferguson (1898) and Brown v. Board of Education (1954). In Plessey, the high court ruled that separate but equal facilities for blacks and whites were not a violation of the equal protection clause of the Fourteenth Amendment. If blacks chose to view it as a badge of their second class citizenship, opined the Court, that was their choice, not the reality. In Brown, famously, the Court said the reverse: that separation was inherently unequal.
Is it true with marriage? Do homosexual couples in California suffer from not being able to call their union a "marriage," even if state law extends them the same privileges as married couples under a different name? Is it an invocation of the discredited "separate but equal" standard?
I'll avoid making a direct answer. Suffice it to say that the issues are even more complex than I let on. And the fact that California's story is wrapped up in a national narrative makes it all the more interesting. We are witnessing, perhaps, one of the great constitutional struggles of our day that will be as trenchantly written about by later generations as was the 100 year struggle for civil rights.
Tuesday, March 4, 2008
Maintaining Freedom
There is, these days, a political mantra that seems both undebatable and incontrovertible: "support the troops." The mantra is intoned at political rallies, by talk show hosts, in the streets, and the media at large. No matter where a candidate for the presidency stands on any given foreign policy issue, respect is due to the troops who put themselves in harm's way to carry out the orders of the commander-in-chief.
I have no truck with such a sentiment. Soldiers face the gravest of risks and of all our public servants are the only ones repeatedly asked to put their lives on the line. That they do so deserves and demands our respect, which is precisely why the mantra works.
The problem, however, is what the mantra hides. To "support the troops" does not mean to "support the war." To call attention to the atrocities of war is not to countermand the order to "support the troops." And to suggest that we need a less intrusive foreign policy (three cheers to Republican Ron Paul for calling attention to the American Empire) has nothing to do with "supporting the troops."
Granted, this has not been as much of an issue in the last year as it has been in times past. Jingoism will always be invoked by some, but its capacity to persuade has been diminished by the dismal results of Bush's ill-fated adventure in Iraq.
Which brings us to the surge, sure to be an issue in this November election, and a major question for voters to address at that point. John McCain has staked his presidential bid on the success of the surge, which he has been trumpeting for some time now. The media, for the most part, seems to be agreeing with him. Violence, after all, is down -- and General Petraeus has the numbers to show it. With progress comes the hope of more progress, leading to the ultimate success of the intervention in Iraq. And, if McCain's 2007 Foreign Affairs article is any guide, it is a blueprint for future operations. McCain's presidency would likely see the rebuilding of the military to handle these situations and engage in more nation-building exercises.
I do not admit the surge's success. Violence only declined when Muqtada al-Sadr declared a unilateral cease-fire in August of 2007. Granted, he did so under enormous pressure from the United States which only could have been contemplated with the surge. But additional factors pressured Muqtada as well, including a growing dissatisfaction on the part of Shiites within Iraq with the corruption that was accompanying the Sadrists rise to power. And there has been great cost with the surge's success. The most important may prove to be the deals struck between the U.S. military and anti-Sadr militias. Empowering local thugs to fight against other local thugs may not prove to be the best bet to secure a stable democracy in the Middle East, even if it does provide some order and put America's enemies on the run. Most of the American media establishment is oblivious to such details, preferring the much simpler argument of whether the surge is "working" and what "defeat" might mean for the United States (forgetting, it would seem, the Iraqis who must live amidst this violence).
So will "support the troops" translate into a "support the surge" come November? It will if the American media continues to conflate concepts and slip promiscuously from one idea to another in repeating the mantra. To give but one horrific example, the ladies from _the View_ on ABC debated Gloria Steinem's remarks about John McCain's POW experience. One of the vapid hosts--Elisabeth Hasselbeck, whoever she is--took Steinem's simple statement that military service was not a prerequisite for high office and turned it into a syllogism that would have made George Orwell blush: 1. Gloria Steinem argued that John McCain's POW experience did not qualify him for high office; 2. Gloria Steinem argued that military training does not in-and-of-itself qualify somebody to be commander-in-chief; 3. Therefore, Gloria Steinem argued that our men and women in uniform are bad because they are trained to kill; 4. This is evil because it denigrates our men and women in uniform.
Simple logic has never been easy for talk show hosts, so I don't want to dwell too much on Hasselbeck's inability to reason from premises (1&2) to necessary conclusions (3&4). Suffice it to say that it does not follow logically.
What I do want to dwell on is the latter assumption, revealed noisily by a frustrated Hasselbeck when pressed on this point by Barbara Walters and others on that show. She blurted out that we wouldn't be free if it wasn't for our troops in Iraq.
There is, needless to say, a huge difference between "supporting the troops" and claiming that the only reason we enjoy, say, the privilege of blogging, is because they are in Iraq right now. It represents the worst in logical fallacies, complete with internal inconsistencies and faulty premises.
But it does raise the question of what precisely it takes to maintain freedom. Doubtless, a strong military presence is important. More debatable is whether that military power ought to be projected or not (or, perhaps more accurately, when it should be presented). But strong militaries have not traditionally been the sign of a healthy, free society. Certainly no one would argue that a strong military is more important to a despotic state than a free one.
So what else does it take to maintain a free society? I am hoping to solicit some responses that list some of the requirements for maintaining freedom. It may be the only way to get past the mindless and uncritical United States media and its coverage of U.S. power abroad.
I have no truck with such a sentiment. Soldiers face the gravest of risks and of all our public servants are the only ones repeatedly asked to put their lives on the line. That they do so deserves and demands our respect, which is precisely why the mantra works.
The problem, however, is what the mantra hides. To "support the troops" does not mean to "support the war." To call attention to the atrocities of war is not to countermand the order to "support the troops." And to suggest that we need a less intrusive foreign policy (three cheers to Republican Ron Paul for calling attention to the American Empire) has nothing to do with "supporting the troops."
Granted, this has not been as much of an issue in the last year as it has been in times past. Jingoism will always be invoked by some, but its capacity to persuade has been diminished by the dismal results of Bush's ill-fated adventure in Iraq.
Which brings us to the surge, sure to be an issue in this November election, and a major question for voters to address at that point. John McCain has staked his presidential bid on the success of the surge, which he has been trumpeting for some time now. The media, for the most part, seems to be agreeing with him. Violence, after all, is down -- and General Petraeus has the numbers to show it. With progress comes the hope of more progress, leading to the ultimate success of the intervention in Iraq. And, if McCain's 2007 Foreign Affairs article is any guide, it is a blueprint for future operations. McCain's presidency would likely see the rebuilding of the military to handle these situations and engage in more nation-building exercises.
I do not admit the surge's success. Violence only declined when Muqtada al-Sadr declared a unilateral cease-fire in August of 2007. Granted, he did so under enormous pressure from the United States which only could have been contemplated with the surge. But additional factors pressured Muqtada as well, including a growing dissatisfaction on the part of Shiites within Iraq with the corruption that was accompanying the Sadrists rise to power. And there has been great cost with the surge's success. The most important may prove to be the deals struck between the U.S. military and anti-Sadr militias. Empowering local thugs to fight against other local thugs may not prove to be the best bet to secure a stable democracy in the Middle East, even if it does provide some order and put America's enemies on the run. Most of the American media establishment is oblivious to such details, preferring the much simpler argument of whether the surge is "working" and what "defeat" might mean for the United States (forgetting, it would seem, the Iraqis who must live amidst this violence).
So will "support the troops" translate into a "support the surge" come November? It will if the American media continues to conflate concepts and slip promiscuously from one idea to another in repeating the mantra. To give but one horrific example, the ladies from _the View_ on ABC debated Gloria Steinem's remarks about John McCain's POW experience. One of the vapid hosts--Elisabeth Hasselbeck, whoever she is--took Steinem's simple statement that military service was not a prerequisite for high office and turned it into a syllogism that would have made George Orwell blush: 1. Gloria Steinem argued that John McCain's POW experience did not qualify him for high office; 2. Gloria Steinem argued that military training does not in-and-of-itself qualify somebody to be commander-in-chief; 3. Therefore, Gloria Steinem argued that our men and women in uniform are bad because they are trained to kill; 4. This is evil because it denigrates our men and women in uniform.
Simple logic has never been easy for talk show hosts, so I don't want to dwell too much on Hasselbeck's inability to reason from premises (1&2) to necessary conclusions (3&4). Suffice it to say that it does not follow logically.
What I do want to dwell on is the latter assumption, revealed noisily by a frustrated Hasselbeck when pressed on this point by Barbara Walters and others on that show. She blurted out that we wouldn't be free if it wasn't for our troops in Iraq.
There is, needless to say, a huge difference between "supporting the troops" and claiming that the only reason we enjoy, say, the privilege of blogging, is because they are in Iraq right now. It represents the worst in logical fallacies, complete with internal inconsistencies and faulty premises.
But it does raise the question of what precisely it takes to maintain freedom. Doubtless, a strong military presence is important. More debatable is whether that military power ought to be projected or not (or, perhaps more accurately, when it should be presented). But strong militaries have not traditionally been the sign of a healthy, free society. Certainly no one would argue that a strong military is more important to a despotic state than a free one.
So what else does it take to maintain a free society? I am hoping to solicit some responses that list some of the requirements for maintaining freedom. It may be the only way to get past the mindless and uncritical United States media and its coverage of U.S. power abroad.
Monday, March 3, 2008
Was Dred Scott Right?
Dare we ask the question? More fiercely controversial than Roe v. Wade, more volatile than Brown v. Board of Education: Dred Scott v. Sanford is without a doubt the most reviled case in the Supreme Court canon. Even George W. Bush, a president not known for his strong credentials in constitutional law, felt comfortable invoking Dred Scott during the 2004 debates to illustrate how important it was to appoint judges who understood the Constitution. In the respectable (and perhaps not so respectable) constitutional literature, Dred Scott is always invoked similarly, to illustrate precisely what is wrong with Supreme Court decision making. But does that mean it was decided wrongly?
Mark Graber, a political scientist at Maryland, has recently argued that maybe Dred Scott was decided rightly. In his provocative book, Dred Scott and the Problem of Constitutional Evil, he
has suggested that our scholarship on the subject is tainted and that we have overlooked the obvious--that the decision in Dred Scott was at least as possible a constitutional outcome for a hard case as was its opposite. The book has generated a buzz in the academy and continues to rattle conservatives and liberals alike who are concerned about its shaking of fundamental truths in constitutional law.
Most intriguing for me in this is one of the book's fundamental premises: that constitutional law in the main is indeterminate. This is not new to Graber (the critical legal studies movement has been singing this tune for some time) but it has never been put in starker terms. The only equivalent is Michael Klarman's recent work on Brown v. Board of Education, in which he advances the controversial thesis that Brown was NOT responsible for the Civil Rights Movement except indirectly, and that it had little effect on American society. Along the way, Klarman argued that the Constitution supported both the "separate but equal" standard advanced in Plessey v. Ferguson and the "separate is inherently unequal" standard of Brown v. Board. If the Constitution was not clear on this subject, Klarman argued, what was more important was the society in which the justices made their decisions.
In short, both seem to argue that it is EXTRAJUDICIAL factors that determine how hard cases are made, and both are compelling arguments for this case. But along the way, we must confront the problem: was Dred Scott decided correctly? Could someone read the Constitution in 1857 and properly conclude (moral issue aside) that the color of someone's skin determined his or her legal rights in perpetuity? That citizenship was reserved to white men? That slavery was protected by the Bill of Rights?
History is a moral discipline as well as an intellectual one. And that means we ought to take seriously questions that make us uncomfortable. Graber has posed such a question. Is he right?
Mark Graber, a political scientist at Maryland, has recently argued that maybe Dred Scott was decided rightly. In his provocative book, Dred Scott and the Problem of Constitutional Evil, he
has suggested that our scholarship on the subject is tainted and that we have overlooked the obvious--that the decision in Dred Scott was at least as possible a constitutional outcome for a hard case as was its opposite. The book has generated a buzz in the academy and continues to rattle conservatives and liberals alike who are concerned about its shaking of fundamental truths in constitutional law.Most intriguing for me in this is one of the book's fundamental premises: that constitutional law in the main is indeterminate. This is not new to Graber (the critical legal studies movement has been singing this tune for some time) but it has never been put in starker terms. The only equivalent is Michael Klarman's recent work on Brown v. Board of Education, in which he advances the controversial thesis that Brown was NOT responsible for the Civil Rights Movement except indirectly, and that it had little effect on American society. Along the way, Klarman argued that the Constitution supported both the "separate but equal" standard advanced in Plessey v. Ferguson and the "separate is inherently unequal" standard of Brown v. Board. If the Constitution was not clear on this subject, Klarman argued, what was more important was the society in which the justices made their decisions.
In short, both seem to argue that it is EXTRAJUDICIAL factors that determine how hard cases are made, and both are compelling arguments for this case. But along the way, we must confront the problem: was Dred Scott decided correctly? Could someone read the Constitution in 1857 and properly conclude (moral issue aside) that the color of someone's skin determined his or her legal rights in perpetuity? That citizenship was reserved to white men? That slavery was protected by the Bill of Rights?
History is a moral discipline as well as an intellectual one. And that means we ought to take seriously questions that make us uncomfortable. Graber has posed such a question. Is he right?
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