Repealing the 20th Century

One of the more little noticed ideas being pushed by the Tea Partiers is a proposal to repeal the 17th Amendment to the Constitution. If you are like most Americans, you had to stop just now and think, "OK, which one is that?" I'm an American historian, and I had to. The 17th Amendment, ratified in 1913, changed the way we elect senators. Originally, the Constitution gave state legislatures the power to choose the senators, and the amendment created the current system of direct election by popular vote.

So why do some elements of the Tea Party oppose direct elections for senators? One blog dedicated to the idea calls repeal the "first significant step to remove the domination and unmistakeable corruption deriving from the federal government." The irony here is that that is precisely the reason the 17th Amendment was passed in the first place.

The 17th Amendment was part of the third major wave of revision of the original Constitution. The first was what we call the Bill of Rights, the first ten Amendments. The second was during Reconstruction, which saw the passage of the 13th, 14th and 15th Amendments to abolish slavery, guarantee due process, and extend the right to vote to all adult men. The third wave was part of the larger era of Progressive reform. Four amendments were ratified in the space of seven years. The 16th Amendment established the income tax, the 18th was prohibition, and the 19th guaranteed women the right to vote.

Like the others ratified in the 1910s, the 17th sought to adapt the Constitution to modern times, addressing problems either unforeseen or unappreciated by the founders. In this case, the problem was the inordinate influence of concentrated wealth on politics. Reformers argued that senators no longer were the dispassionate debaters of old, but the servants of the robber barons produced by the industrial revolution. Their election by state legislators was no guarantee of probity in an age in which the financier Jay Gould was said to be guilty of "the wholesale bribery of the New York State legislature."

By the 1890s, it was common knowledge that certain senators were not only serving business interests but were essentially on their payroll. One of the most infamous was Rhode Island Senator Nelson Aldrich, who served the Sugar Trust. In 1894, the New York Times ran an expose that showed the senator had become a multimillionaire (at a time when senators made $5,000 a year) in part due to direct payments from the representatives of the Sugar Trust, whose bidding he did in setting tariff rates.

For progressive reformers, the solution to this rampant corruption was to make the senators directly answerable to the people, thus producing the 17th Amendment.

Modern day reformers want to fix today's much milder corruption by returning to the state of things that produced far greater corruption in the past.

There is another element to the desire for repeal. Much Tea Party rhetoric calls for a return to the original Constitution, and certainly repeal of the 17th Amendment fits nicely with that goal. But it goes beyond that--it reflects a desire to roll back the larger growth of federal power. According to a New York Times article, the "basic argument is that the amendment effectively eliminated the only real oversight that state legislatures had over Washington, which in turn has encouraged Washington to pile unfunded mandates onto the states."

The assertion that the founders intended the election mechanism to protect states rights has some historical basis. James Madison made that argument during the ratification debate, saying that the direct election of senators would create a consolidated government. But Noah Webster, also arguing for the Constitution, made the opposite argument and said that the Senate would be where "we may find the general good the object of legislation" and that senators would "act impartially for the whole collective body of the United States." And Alexander Hamilton wrote in Federalist 27 that since they would be chosen by "State Legislatures, which are select bodies of men," senators "will be less apt to be tainted by the spirit of faction." In other words, they would be independent actors rather than anyone's servant (Hamilton was no great fan of state power).

There was also some concern for the anti-democratic potential of the senate. The Antifederalist Samuel Bryan noted that a senate chosen by state legislators "will be composed of the better sort, the well born." He warned that a senate so chosen might, in conjunction with the president, create "a permanent ARISTOCRACY." The state of New York, concerned about that potential, proposed that the Constitution be revised to allow for the recall of senators by state legislatures and limiting any one person to serving only six out of any twelve years. In this case, as in just about every other one, there is no single "original intent."

Some of the people calling for repeal seem not at all concerned about creating a less responsive senate--rather, that is what they want. A Republican state senator in Utah who is pushing for repeal says: "Direct democracy is the worst form of government possible because it relies on 60-second sound bites and the ability of the ad firm that can best make an impression on the voters." It's amazing to me that anyone could call direct democracy "the worst form of government possible" after the totalitarianism of Hitler, Stalin and Pol Pot. Nonetheless, it is a telling statement. Like reformers of old, today's proponents of repeal are attempting to deal with new forms of corruption or the perceived distortion of the system through a change in governmental process.

Tinkering with process is what we Americans do. The entire debate over the Constitution was about which process would produce the best results. (See also California's recent decision to change its primary elections to a non-partisan "top two" system). But there is no reason to think that repealing the 17th Amendment will serve of any of the goals of its advocates. Corruption of the political system is an ever-present problem whose real solution is public vigilance. The growth of federal power over the last century was due to large historical forces, not the 17th Amendment. You can, in theory, repeal the 17th Amendment, but you can't repeal the 20th century. The answer is not to return to the 19th century, but to move forward with new answers to new problems. But all the Tea Party seems to do is look back.

The Dictator Delusion

Crisis seems to bring about the best and worst in a people, and the unfolding catastrophe in the Gulf of Mexico is no exception. CBS News ran a story the other night about an 11-year-old, bird-loving little girl who volunteered to paint and sell pictures of birds and donate the proceeds to the Audubon Society to aid in the rescue of wildlife in the Gulf. So far, she's raised $100,000. The story ended with the girl finding an oily feather on the beach and crying "it's just not fair." You'd have to be pretty hard-hearted not to be touched by that.

No doubt there are countless other stories of people volunteering to help to save the animals, habitat, and people of the Gulf Coast. But there has been an uglier, disturbing reaction too.

Watching MSNBC the other night before President Obama's Oval Office address, I listened in horror as Ed Schultz, who increasingly seems to want to be the Rush Limbaugh of the left, called on the president to act like "a dictator" in this crisis. He said it not once, but twice, leading me to conclude that it was no mere slip of the tongue or inadvertent rhetorical flourish but a sincere belief. That morning, a letter in the New York Times called on Obama to emulate Harry Truman's threat to draft striking coal miners and "think about the law later."

There is, I suppose, a natural tendency to yearn for a strong leader in troubling times. Watching this tragedy unfold day after day with no end in sight creates a sense of despair and hopelessness, not to mention helplessness, among the public. We want someone to "do something." For weeks commentators have been saying essentially that to Obama. Now, few if any of them have actual concrete suggestions for the president. He should show emotion, take charge, or in the vacuous words of Sarah Palin, give us the "assurance ... that [stopping the leak] has been his top priority." With the exception of his somewhat embarrassing statement that he was looking to find "whose ass to kick," Obama has resisted these entreaties.

This is not just about temperament. It is about real leadership. Anyone can show anger, but anger is not leadership.

Let's look more closely at the Truman example. Now, if there was ever a president who was good at getting angry and showing emotion, it was Harry Truman. He had a refreshing tendency to wear his heart on his sleeve and say exactly what he was thinking, even when that was not the most politic thing to do. The Times letter writer longs for decisive leadership like Truman showed during the "coal miner's strike that could have hindered the American war effort in Korea."

First of all, the letter writer is conflating two different events. The coal strike, when Truman threatened to draft the miners, was in 1946, four years before the Korean War began. What the writer is thinking of was Truman's takeover of the steel industry in April 1952. The confusion notwithstanding, both events are indeed examples of Truman's "take charge" approach. So how did they play out?

In 1946, the United States was experiencing unprecedented labor action. With the wage and price controls of World War II lifted, labor sought to recoup some of the gains lost during the lean years of the depression and the war. April saw strikes in the coal, steel, automobile and railroad industries. Truman was subject to the same kinds of pleas from the public that plague Obama today. As David McCullough tells us in his biography of Truman, telegrams flooded the White House: "Is the present incumbent impotent in the railroad strike?" "Why don't you go ahead and act?" "Less talk and more action." "Time to get tough." At a meeting with veterans, a World War II soldier in a wheelchair said to Truman "Draft all the strikers."

As he was want to do, Truman vented his rage by writing out an angry speech (never given) in which he intemperately wrote "Let's ... hang a few traitors." He then calmed down (a bit) and told his cabinet that he was going to draft the strikers. When his attorney general challenged the constitutionality of the idea, Truman supposedly replied "we'll draft them and think about the law later."

This is the dangerous example some people would have Obama follow. But what did Truman actually do? First of all, in his speech to Congress, he proposed to ask Congress for legislation authorizing him to draft strikers. He did not threaten to do it on his own authority. While the House quickly and supinely submitted to his request by a huge margin (306-13) after debating the issue for less than two hours, the Senate took its time and shot the proposal down by a large margin, 70-13. The strike was settled without such a draconian abuse of power.

In the 1952 case, Truman seized the steel mills, citing management's refusal to reach a reasonable contract with labor. He acted under the so-called "inherent powers" of the president (the same argument that the unitary executive extremists empowered by Dick Cheney in the last administration used to justify torture and warrantless wiretaps). A federal judge ruled against Truman's "claim to unlimited and unrestrained Executive power." Later the Supreme Court agreed, in a 6-3 decision, that Truman had overstepped his bounds. It was, McCullough concludes, "a humiliating defeat."

In both cases, Truman showed emotion, took charge, and acted impetuously. In both cases, the checks and balances of our constitutional system intervened and prevented him from abusing his power. In both cases, Truman emerged from the crisis looking weaker, not stronger. And this is the example some people urge Obama to follow.

What has Obama's more measured response achieved? There are, of course, plenty of things to criticize in his response to this disaster. Certainly the clean-up should have been mobilized more quickly, and now that it has begun, it does seem rife with red tape and confusion about who is in charge. But note what happened yesterday, the day after Obama's Oval Office address was panned by critics on all sides of the political spectrum. BP agreed to suspend dividend payments and set up a $20 billion fund, administered not by the company but by a government appointed administrator, to compensate victims of the disaster.

Note also that last month Democrats in Congress proposed increasing the corporate liability from $75 million to $10 billion, and that Republican filibuster threats have killed the proposal. Now, without having a public temper tantrum, and without abusing his power, the president has gotten BP's voluntary agreement to set aside at a minimum (since this is not a cap) twice that amount.

The delusion that a dictator could take charge and magically and instantly solve our problems is as dangerous as it is seductive. But as Eleanor Roosevelt reminded Truman in a private letter during the 1946 crisis, "there must not be any slip, because of the difficulties of our peacetime situation, into a military way of thinking." Fortunately, Obama seems to understand that much better than his hectoring critics.

Immigration: Contemporary Perception, Historical Reality

The immigration debate is raging again due to Arizona's recent law. Immigration is one of those issues that periodically flares up throughout the course of American history, and on few issues is the gap between popular opinion and historical reality greater.

A letter in this morning's Spartanburg Herald-Journal is a perfect case in point. The author starts with a typically silly straw man, a question addressed to "all who support open borders." While there must be some people who advocate that position, I know of no serious or influential political leader who does. The author is using that extreme position to discredit every critique of Arizona's new law--not a promising beginning.

Then comes the question, which the author clearly thinks is an argument ender: "Out of the 7 billion people on this planet, how many have the God-given right to live in the United States? All of them? No? Why not?" Let's leave aside the absurd idea that all of the world's people want to move to the United States. The U.S. does still remain the most desirable potential destiny for those seeking to immigrate. History tells us, however, that this is nothing new. In the roughly 100 years prior to the first comprehensive American immigration laws in the 1920s, approximately 60% of the world's migration flowed to the U.S. Not only did this influx of foreign population not ruin the country, it arguably contributed mightily to its growing prosperity and power.

But, one might object, things were different then--we needed people, we were sparsely populated. The letter's author predictably raises the specter of a time when "because of illegal immigrants ... there's no more room." The idea that we in the U.S. are running out of room also won't survive exposure to the facts. Guess where, on a list of 192 countries in the world, the U.S. placed in population density according to the 2006 CIA World Factbook. Give up? No. 142. In other words, 73% of the countries in the world have greater population density than the U.S. Of the countries with less population density, only Russia and Canada have a larger land mass. Of course, the U.S. could not accommodate literally everyone who might want to come here, but it is obvious that the U.S. could easily accommodate more than it currently does without coming close to the point where "there's no more room."

Where the letter writer commits her most egregious crimes against history, however, is in her next paragraph, in which she simultaneously romanticizes earlier immigration while demonizing today's immigrants. Her letter is a litany of misinformation and uninformed prejudice.

In the past, she confidently states from a position of profound ignorance, immigrants "learned and respected our traditions" and "they were proud to speak" English. In reality, the history of immigration to America is one in which ethnic groups tended to cluster together in their new home and continued to practice their own traditions, sometimes by choice, more often by necessity. In most cases, immigrants who did not speak English did NOT immediate learn and adopt it. Louis L. Gerson, in his 1964 book on the influence of immigrant groups on American foreign policy, observes that "non-English speaking immigrants ... would insist that their own language be used in their churches." This is no recent phenomenon, either, Gerson reminds us: "in the early days of the Republic, the refusal of the Methodist Church to fractionalize itself led to the formation of German Methodist bodies." Ethnic communities quite often created and supported newspapers in their native language as well. This idea that previous immigrants more readily spoke English is simply not true.

She also asserts that previous immigrants "didn't sneak in." What she fails to note is that prior to the 1920s, there were no numerical limits on immigration to the U.S. People did not "sneak in" because there was no need to--the doors were generally open. Unless, of course, you were Asian, in which case blatantly racist legislation such as the 1882 Chinese Exclusion Act and the 1917 Asiatic Barred Zone Act kept you out. In supporting the Chinese Exclusion Act, President Grover Cleveland spoke in the same language that today's opponents of immigration use, calling the Chinese "an element ignorant of our constitution and laws, impossible of assimilation with our people and dangerous to our peace and welfare." How many people would say that of Chinese immigrants today?

The 1924 Immigration Act, the first general and permanent immigration law in American history, limited the number of immigrants in any year to 2% of the number of people from that country in the U.S. at the time of the 1890 census (i.e., before the large influx of immigrants from southern and eastern Europe). In short, it was an attempt (and a somewhat successful one) to rollback the ethnic composition of the country to what it was before the "bad" immigrants arrived. The 1924 law effectively invented the idea of illegal immigration, so when people say their ancestors came here legally, ask them if they came (like mine) before 1924. If so, it is a meaningless statement.

Perhaps most despicably, the letter writer tars those "who are illegally invading our Southern border" (thus leaving no doubt as to which illegal immigrants in particular bother her--the illegal Irishman or Italian working in a New York City bar or restaurant didn't come in through Arizona) by associating them with crime: "some of them smuggling drugs to our young, kidnapping and murdering our citizens." For the vast majority of immigrants who have entered the country illegally, that is the only illegal act they have committed. This exaggerated connection to crime is also nothing new in the annals of immigration, of course. Italians have long been tarred by the same brush. Of course some Italian immigrants were associated with the Mafia. The vast majority, however, like my mother's cousins in New York, were honest, hard-working people who simply wanted a shot at the American dream.

The idea that illegal immigrants are "bleeding our economy" and taking jobs goes back to the very first American law restricting immigration, the Page Act of 1875, which barred Chinese contract workers. The law's congressional sponsor said he wanted "to end the danger of cheap Chinese labor." Today that law is rightfully seen as a racist embarrassment, but substitute "Mexican" for "Chinese" and you'd find wide agreement with his sentiment today.

Lastly, the letter writer completes her tour of anti-immigrant stereotypes and cliches by raising the specter of political corruption. "Why is this being allowed to happen? Politics, power and votes! The law doesn't allow illegal immigrants to vote, but there's no restriction on their countrymen and their kinfolks who are here legally and will vote in their favor." The idea that immigrants have corrupted the political process also has a long pedigree in the U.S. Much of the criticism of the urban political machines of the late 19th and early 20th centuries focused on how "they" all voted the same way and thwarted "our" will. The idea of an unelected "city manager" to run the cities, which became prominent in the Progressive era, was in part due to this desire to remove the influence of ethnic voters and restore it to established white elites.

Perhaps it comes from living in a part of the country which has had relatively little recent experience with immigration, but this person's view of earlier immigrants could not be more inaccurate. Growing up as I did in New Jersey, with parents who grew up in New York City, I have a somewhat different view, as would anyone familiar with the ethnic neighborhoods of major cities. The suburban New Jersey town where I went to Catholic school had large numbers of students of Irish and German heritage (like me), as well as Italians and eastern Europeans, especially Poles. In recent years, it has been utterly transformed. Now, the street where my old school is located is filled with Indian restaurants, stores and other businesses. It isn't the same, not by a long shot; in many ways it is better, revitalized, renewed. That kind of change is not to be feared, though it always has been. But it has also almost always been for the better.

Yes, we need immigration reform, and yes, we need to establish better control over who comes into the country and how they come. But the answer lies in raising the number of people we welcome, in increasing opportunity, not in returning to the kind of irrational, racist, and exclusionary stereotyping that has too often marked immigration legislation in our national history, and typifies too much of the rhetoric in the debate today.

Two Bad Calls

Let me say up front that I know that these are not really comparable situations. Apples, oranges, kiwi fruit. I know.

But in the past couple of days, stories about two really bad decisions have crossed my radar screen, and the contrast between the how the two men who made them handled questions about them could not be more stark.

The first one will be familiar to any baseball fan, and to not a few others: the blown call by umpire Jim Joyce that cost Armando Galarraga what would have been the third perfect game in the first third of this major league baseball season. If you missed it, the Detroit Tigers pitcher was one out from perfection. He had set down the first 26 batters to face him--no hits, no walks, no errors. No one had reached base. One more and he'd have a perfect game. The 27th batter hit a ground ball between first and second. The first basemen fielded it, turned and threw to the pitcher covering at first for what the announcers prematurely called the final out. But the umpire called the runner safe, though the replay clearly showed the throw beat the runner. And just like that, what should have been a perfect game became just another one-hitter.

If that were all there was to the story, it would be extraordinary enough. But two things add to the poignancy of the story. First, the camera shot clearly shows Galarraga's reaction to the call. Volcanic rage? Stunned disbelief? No. He smiled. He looked almost bemused. And he did not argue the call (though others did for him). It was an amazing example of personal grace.

What most impressed me most, however, was the umpire. After the game, he watched the replay and took questions from reporters. When asked about it, he said simply and clearly: "I did not get the call correct. I kicked the shit out of it." Joyce did not simply admit his mistake, however. When a reporter tried to give him an out and asked if maybe he didn't have a good angle, he refused to take it: "I had great positioning on it," Joyce said. "I just missed the damn call." Joyce also refused to minimize what he had done: "This isn't *a* call. This is a history call.... I took a perfect game away from that kid over there who worked his ass off all night. It's probably the most important call of my career and I missed it." When asked about what the Detroit manager and players said to him about it, Joyce took that with grace as well: "I don't blame any one of those guys over there for saying whatever they said to me." Joyce later met with Galarraga and personally apologized.

Joyce was a model of accountability and responsibility. He did not hide, he did not shift blame, he did not deny. He admitted his mistake, took responsibility, and apologized.

In contrast, there was this story, in which former President George W. Bush, when asked about water-boarding said "Yeah, we water-boarded Khalid Sheikh Mohammed.... I'd do it again." I won't rehash the history of this torture technique here, except to note that prior to its adoption by the Bush administration, it was basically universally accepted as torture. I'd be willing to accept that in the heat of the moment, Bush may have made a bad call, may have thought it was right at the time. But now, years later, not only does he not admit error, he still cannot even entertain the notion that it might have been a mistake.

Bush was fairly infamous as president for not admitting any error. Most notably, when asked in a press conference in April 2004 to name his biggest mistake, he could not think of any, and tried to laugh it off by saying "Maybe I'm not as quick on my feet as I should be in coming up with one." But when asked again a year and half later, in December 2005, Bush again gave no answer--instead, he questioned the motives of the questioner: "The last time those questions were asked, I really felt like it was an attempt for me to say it was a mistake to go into Iraq. And it wasn't a mistake to go into Iraq."

Now, I realize that Bush does not believe that it was a mistake for his administration to cross that awful line into adopting torture as an official American policy, and that he does not believe invading Iraq was a mistake. I also recognize that Bush can't, unlike Joyce, simply look at a replay and see objective evidence of whether or not he made the right call.

What bothers me most is the unreflective character of Bush's response. He seems unwilling to even consider that he might have been wrong. Perhaps it is inevitable that presidents will tend to refuse to publicly consider that they may have erred. Harry Truman, for example, always insisted that he never doubted that he made the right decision about dropping the atomic bombs. Nearly 20 years afterward, in 1963, Truman wrote: "I have no regrets, and under the same circumstances, I would do it again." He always insisted, "I did what I thought was right," and claimed he never lost any sleep over it.

I generally like Truman, and it long bothered me that he seemed so unthinkingly certain about so momentous a decision. But when doing some research for my book, The Truman Years, 1945-1953, I found out that Truman was not as certain in private as he was in public. After the second bomb was dropped, Truman reclaimed control of the bomb from the military, and said to some advisors: "The thought of wiping out another hundred thousand people was too horrible. I hate the idea of killing all those kids." And years later, when some people called for him to use the bomb again to break the stalemate of the Korean War, he refused.

Truman may well have always believed he did the right thing. But I think it says something good about the man that at least in private he did not shy away from acknowledging the terrible consequences of what he had decided, and clearly felt the grave responsibility that it placed on him. I hope that one day historians uncover similar sentiments expressed by Bush in his private moments.

But I'd feel better about both Bush and Truman had they had the confidence to express such thoughts in public, or better yet, say simply and clearly, about something substantial, "I did not get the call correct."