Friday, December 21, 2012

Blundering Boehner

Back in graduate school, when I was first learning about schools of historical interpretation, I read about the so-called "Blundering Generation" theory of the Civil War. The idea was something like this: the Civil War was no inevitable conflict, but rather the result of a poor generation of political leaders. Whereas the first generation of the Founders and the second generation of the Jacksonian era found ways to compromise and preserve the Union, the third generation, coming into its own in the 1850s, had failed. Political ineptitude, not irreconcilable differences, produced the war.

The word "blundering" leapt to mind Thursday night when I heard that Speaker John Boehner was withdrawing his own proposal to avoid the ill-named "fiscal cliff" because he could not get his own party to vote for it.

What has happened to the GOP?

Nearly three years ago, I wrote a piece bemoaning the lack of party discipline among Congressional Democrats when compared to the lockstep nature of Congressional Republicans. The relative lack of success in passing Obama's agenda was due at least in part to the extraordinary unity showed by the GOP.

That was then, this is now. Of course much has changed. Republicans have controlled the House for two years now. But Democrats still control the Senate as they did then, and the president has been re-elected. And yet, the GOP is a mess. Even when the Republican Speaker of the House said he needed support for a bill in order to get leverage in negotiations with the president, he failed because enough of his own party members told him to take a hike rather than vote for even the most minimal tax hike (only on income over $1 million a year).

So who, or what, is to blame? Is Boehner a blunderer, someone who is (as Rachel Maddow has been saying almost since he became Speaker) simply bad at his job?  Or is there something deeper going on here?

I confess that I've always thought the "Blundering Generation" thesis of the Civil War was something of a cop out, a way of avoiding analysis of the complex political, economic, and social forces that produced the political failures of the 1850s and early 1860s.

In this instance, however, there is something to be said for the idea that Boehner is simply blundering. Friday morning on NPR's Morning Edition, correspondent Scott Horsely noted that while Boehner's "Plan B" could not pass without near unanimity among House Republicans, that did not mean that no plan could pass the House. A compromise proposal that garnered votes from both Democrats and at least some Republicans could certainly pass:
It could win a majority with Democratic support if Speaker Boehner were willing to bring it to the floor. That would take a level of statesmanship we have not seen so far and it could be the end of Speaker Boehner - his speakership.
And there it is: if there is no agreement, it will be because the Speaker is more concerned with keeping his title than in solving the problem, because he failed the test of leadership and did not rise to be a statesman. This is the "Blundering Generation" critique.

In a sense, Boehner is the victim of his own previous success. When he was faced with doing little more than saying "hell, no!' to whatever the president proposed, Republican unity served him reasonably well.

But now he is in the position of having to be for something, of needing to do something that will also be acceptable to the president and enough Democrats in the Senate to pass and become law. He cannot do that and maintain complete GOP unity, because at least some of the Tea Party members will never go along.

The question now is which he will choose.

I have observed many times (here and here, e.g.) that the Tea Party mindset shares much in common with the uncompromising southern position before the Civil War. As Rep. Steve LaTourette (R), from Ohio said last night, there was no use appealing to them: "we have been doing that for two years with these people and all they -- they become martyrs. They become martyrs in the eyes of these extreme groups."

Historians of the "Blundering Generation" school blame the extreme, uncompromising "fire-eaters"(and the other "leaders" who enabled them) for failing to find political solutions in the secession crisis. I suspect there were no plausible political solutions left to be found in 1860-1861.

There are solutions today, however. Our disagreements are not as fundamental as theirs were. Does anyone really think that Boehner and Obama cannot find a budget agreement that includes both tax hikes and spending cuts and that can win majority support in both Houses of Congress? Of course they can. As Horsely put it, however, it will "take a level of statesmanship we have not seen so far" from Boehner.

If he cannot find the courage to be a leader and statesman, if he continues to submit to the political blackmail of the Tea Party martyrs, John Boehner will truly have earned the title "blunderer."

Tuesday, November 20, 2012

The New Secesh

As someone who gets deeply invested in politics, I understand the despair that can set in when one's candidate loses. My first three votes for president went to losing candidates, and despite better luck recently, I'm still batting under .500 in presidential elections (4 wins, 5 losses).

So I'm fairly tolerant when anyone says something along the lines of "If [opposing candidate] wins, I'm moving to [Canada, Costa Rica, etc.]." I'm tolerant of it because the sentiment is roughly this: "My side lost, so I must either accept the will of the majority or separate myself from the country." In short, despite the frustration, it accepts the legitimacy of the process.

These thoughts were prompted by the secession petitions which have popped up ever since President Obama's re-election. Evidently petitions requesting peaceful secession coming from all 50 states now have been started on the White House website.

These are not serious proposals, of course. They are the equivalents of temper tantrums by spoiled children angry that they did not get their way.

But they are, I'd argue, different from the "I'm leaving the country" response. They question the legitimacy of the process based on a particular outcome, and that is an extremely dangerous idea.

I've noted in numerous posts (for example, here, here, and here) that today's Republicans increasingly evoke the mindset of the pre-Civil War secessionists. The point is not that they are neo-Confederates (though a few are), but rather that they take the same approach to politics: confrontational, refusing to compromise, and--as the secession sentiment makes crystal clear--more interested in achieving preferred outcomes than in preserving the democratic process.

This silly secession talk is part of a pattern among far too many Republicans: we can't win with the rules as they are, so let's change the rules. Too many young people and minority voters are voting? Pass laws making voting more difficult. Don't have a majority in the Senate? Filibuster every substantive proposal the majority puts forward, effectively requiring 60 votes to pass anything.

But the impulse toward secession is by far the worst. It is, at its essence, a repudiation of democracy--particularly coming, as it did, only after losing an election. Just like the secessionists of 1860, these tens of thousands of Americans who have signed the petitions are reacting simply to the fact that their guy lost. They are repudiating the process because it produced a result they do not like. What they are saying, in effect, is that if they do not win, the process itself is illegitimate.

After Lincoln's election in 1860, a Georgia secessionist argued that since Lincoln's policy was (in his mind) "treasonable and revolutionary," the election itself was "void." The states that had given him their electoral votes had become--by virtue of their political beliefs--"disenfranchised of all constitutional right to cast them." Secessionists claimed to themselves exclusive right to determine which elections were legitimate and which were not. And it just so happened that ones which they lost were not legitimate. Had that very same process produced a victory for their preferred candidate, John C. Breckinridge, there would have been no talk of secession.

That's what makes all this loose talk, even among some ostensibly serious people, so dangerous. It is not just the emotional outburst of disappointed partisans. It goes to the heart of what makes our system work: the willingness to accept outcomes that we do not like because we agree beforehand on the rules and that the process is fair.

The secessionist mind values results over process. It believes that our constitutional processes are not valuable in and of themselves, but only insofar as they produce the correct results. It says that the policies we favor are more important than maintaining a fair process that is equally open to all. It says that if the majority disagrees with us, we do not need to accept their judgment--instead, we can withdraw entirely from the process and create a new political unit that will do what we want it to do.

Once we start down that road, the republic truly is in danger.

Tuesday, November 13, 2012

"My father was a good man"

"My father died when I was forty
And I couldn't find a way to cry
Not because I didn't love him
Not because he didn't try
I'd cried for every lesser thing
Whiskey, pain and beauty
But he deserved a better tear
And I was not quite ready."

--Guy Clark, "Randall Knife"

My father died on October 19. For me, the tears came readily enough. It was the words that wouldn't come.

At some point during those surreally busy days after his death, as my mother and sister and brother and I made the arrangements, my sister Kathy mentioned to me that she was writing a letter to place in our Dad's casket and suggested I might want to also. My brother Brian wrote one too, I think, and he also wrote a beautiful eulogy that he delivered at Dad's funeral Mass. On the morning of the funeral, I saw my Mom sitting at their kitchen table, writing a letter to Dad through her tears.

But I wrote nothing.

To paraphrase the lyric above, I'd written for every lesser thing, but he deserved a better word and I was not quite ready.

In the three weeks since the funeral, I've wanted to write and been unable to find those better words. I've posted on Facebook many photos of my Dad--maybe unconsciously thinking of the old adage, "A picture is worth a thousand words."

Last week, I found myself thinking of this Guy Clark song. I think it had been waiting quietly in the shadows of my mind ever since Dad's passing. I've always loved it. It brought tears to my eyes long before I ever really feared feeling the loss that it captures so beautifully. But I didn't want to hear it now, didn't want to think of it. I didn't think I could bear it.

But when it stepped cautiously into the semi-light, the line from the song that came to mind was a simple one:

"My father was a good man."

I realized then that those were the words that came to me first. When Dad died, I wanted to let people know quickly, and so posted this on Facebook:

"Thomas Joseph Byrnes, January 22, 1926-October 19, 2012. A good man. A good life."

Those words don't seem nearly adequate. They can't capture 86 years of life, 65 years of marriage, five children, seven grandchildren, four great-grandchildren (with another one the way), his Navy experience in World War II, his business career, his devotion to his church.

But for now, they are the only words I have. My father was a good man.

I'll never be the man he was, but hoping that someone might think the same of me when my time comes is aspiration enough for me.

Maybe there are no better words than that.

My father was a good man.

Monday, October 15, 2012

Health Insurance and the Bipartisan Canard

While most people on the left felt some satisfaction at the way Vice-President Joe Biden challenged Rep. Paul Ryan at last week's debate, there's one Romney campaign talking point that I wish Biden had demolished: that President Obama has not been bipartisan.

In the presidential debate, Mitt Romney touted his record as governor of Massachusetts: "I figured out from Day 1 I had to get along, and I had to work across the aisle to get anything done." An extensive New York Times article on Romney's record as governor notes that the reality was rather different: "Bipartisanship was in short supply." But put that aside. Let's give Romney the benefit of the doubt and accept his characterization that he governed in a bipartisan manner.

His great bipartisan achievement in Massachusetts was of course health insurance reform, which included at the state level the same individual mandate that conservatives now argue is tyranny when implemented by the federal government. Romney's claim to bipartisanship is that the Democratic legislature voted along with Republicans for his bill. Fair enough.

But what does that story tell us? The key to the wide bipartisan support for the bill was the simple fact that Sen. Ted Kennedy urged Massachusetts Democrats to support it, even though it contained what was then the conservative idea of an individual mandate. In short, the Democrats in the legislature, in order to achieve a liberal goal (universal coverage), agreed to a conservative method (individual mandate) of getting there. That was a bipartisan decision.

Fast forward to 2009-2010. President Obama, in the national debate on health insurance, tried to do exactly the same thing: in order to achieve a liberal goal, he agreed to a conservative method of getting there. He refused to stand with liberal Democrats who wanted a single-payer system--that was a non-starter with conservatives. He refused to go to the mat for a public option--that was also a non-starter for conservatives. He supported a solution that would increase the customers for private health insurance companies by using the power of government to encourage (and subsidize) the purchase of private insurance through the individual mandate. He did so to get conservative support for the idea.

You can't get much more bipartisan than that.

But, as Romney and Ryan are fond of pointing out, Obama's health care bill received zero Republican votes. Why? 

To hear Romney and Ryan tell the story, it was because Obama did not take a bipartisan approach. That is patently false. 

The real reason is that Republicans did not want health insurance reform to get done. They did not want President Obama to get anything done. 

According to Robert Draper's book, Do Not Ask What Good We Do -- Inside the U.S. House of Representatives, Republican leaders of Congress met on inauguration day in 2009 and decided to oppose every substantive proposal the president put forward. Their simple strategy was this:
Show united and unyielding opposition to the President's economic policies. 
Win the spear point of the House in 2010.
Jab Obama relentlessly in 2011.
Win the White House and the Senate in 2012.
Paul Ryan was one of the participants at that meeting. He knows that it was the policy of his party to deny the president any Republican votes on any significant issue.

Nonetheless, Ryan had the unmitigated gall to say at the debate: "Different than this administration, we actually want to have big bipartisan agreements."

The simple fact of the matter is that no one--no one--can get bipartisan agreements when one of the two parties has decided beforehand that their own partisan political goals are more important than achieving anything substantive for the country.

On a purely political level, there is a certain brilliance to the Republican strategy. Take advantage of Obama's sincere willingness to reach bipartisan compromise and use it to wring every possible concession to conservative ideas while the details of the legislation are being debated. Then force him to try to pass the legislation with only Democratic votes. He either fails to pass it at all (a win for the GOP) or he passes it without Republican votes and then the GOP slams him for failing to be bipartisan (also a win for the GOP). 

The losers, unfortunately, are the American people. But Republicans in their inauguration day meeting made it crystal clear that their own future political victories, not the welfare of the public, was their top priority.

So when Paul Ryan said, with incredibly hypocritical sanctimony, that he and Mitt Romney were all for bipartisanship, I wish Joe Biden had said something like FDR said in his Syracuse speech in 1936:
Remember, too, that the first essential of doing a job well is to want to see the job done. Make no mistake about this: the Republican leadership today is not against the way we have done the job. The Republican leadership is against the job's being done.
That is as true today as it was then. We know what "bipartisan" means to today's Republican Party: unconditional surrender by the Democrats. What Biden should have said to Ryan is this: President Obama will seize every chance for true bipartisanship. But he will not submit to blackmail by a party that values its own electoral victories over the well-being of the American people.

That's a winning message.

Monday, September 17, 2012

American Perfectionalism: The Constitution

Today, we observe Constitution Day. While the Constitution itself is quite old, Constitution Day is not--as a federally recognized celebration, it only dates back to 2004. The law passed that year requires federally-funded educational institutions to mark the day by paying some formal attention to the document. Given the regularly exposed ignorance of many American citizens about what is actually in the Constitution, this generally seems like a worthwhile endeavor.

All good ideas, however, end up becoming political footballs. In South Carolina last week, Constitution Day became a pretext to attack President Obama's alleged lack of dedication to the document.

At a "Take Our Country Back" rally in Greenville, Rep. Trey Gowdy said "Is it OK for me too say 'God bless you?' Is it OK for me to say 'God bless the United States of America?'" Evidently Gowdy has been spending time in some alternate universe in which this is not OK. He must have missed the endless repetition of those words by speakers at the Democratic convention in Charlotte.

At that same rally, one of the sponsors said that he is often asked where he wishes to take the country back to, and the answer was "all the way back, right back to the Constitution." Another, Rep. Mick Mulvaney, said when they are criticized for wanting to go back, conservatives need to reply "you need to have more faith in a 223-year-old document called the Constitution than you do in the current resident at 1600 Pennsylvania Avenue."

It should go without saying that no one should want to go all the way back to the version of the Constitution that existed 223 years ago. That document explicitly protected slavery: it allowed the unrestricted importation of slaves for another 20 years, it provided for the return of runaway slaves, it treated slaves as 3/5 of a person for purposes of representation.

Do they want to go back to the Constitution that did not guarantee the right to vote to freedmen in 1865? Do they want to go back to the Constitution that did not require the states to recognize the Bill of Rights? Do they want to go back to the Constitution that did not guarantee women the right to vote well into the 20th century?

No doubt they would answer that of course they don't want to go back to those parts of the Constitution. But they also do not offer those qualifiers. If asked, they'd say no. But they don't volunteer that information. To do so would be to admit that the Constitution was, from its beginnings, flawed. And that's a problem for them.

For reasonable people, it is easy both to respect the Constitution and its strengths, while bemoaning its failings. That is what adults do: they see complexity, they see shades of grey.

Far too many American conservatives, however, have elevated the Constitution to the status of Holy Writ. Some even claim that it is divinely inspired. How can the Constitution be divinely inspired if it is also flawed?

I realize that saying that the Constitution is not perfect is sacrilege to some ears. But that is precisely the problem.

When we take the work of fallible men and transform it into a sacred text, and argue that all we need to do to return the nation to a state of grace is to "go back to the Constitution," we convert political debate into theological dispute. That is what is wrong with the increasingly religious language that today's conservatives employ when discussing the Constitution.

We hear a lot these days from Republicans about "American exceptionalism." But in fact, that's not what they mean. What they really are insisting on is American perfectionalism.

That is the inevitable consequence of turning American history into a Bible story. It is not enough that the arc of the story be a positive one. It must have a creation story in which the hand of God is explicitly credited with establishing the nation. God's creation is not just exceptional--it cannot be questioned. It is not merely striving (in the actual words of the Constitution) to "create a more perfect Union." It is, in some fundamental sense, already perfect.

While its leaders may be wrong--as conservatives insist Obama almost always is--America never is. Its ideals are perfect, and there is never any reason to "apologize" for anything. There is never any reason to doubt.

We do not honor the Constitution by distorting it. If we wish truly to honor the Constitution on this Constitution Day, we should remember the humility of the men who wrote it and their explicit recognition that it was--from the beginning--assumed to be a flawed instrument.

Part of the Constitution's genius is that it contains within it a mechanism to change it. I can think of no more eloquent statement of imperfection. The very people who wrote it took its imperfections for granted, and provided the means of correcting them.

The amendment process was an invitation to improve, an invitation we the people have exercised 27 times in our history in our quest to become "more perfect." That phrase is our challenge. It does not ask of us smug self-satisfaction at our own perfection. It demands that we always ask how we can make our Union more perfect.

For people who insist on America's perfection, there is only one answer to our current problems: "go back." For those who know that no work of man has ever been perfect, the answer is "go forward."

Tuesday, August 14, 2012

Churchill and Islam

As I noted in my post last week, Winston Churchill cultivated the image of himself as the prophet who warned of the threats to liberty: first Hitler's Nazism, then Stalin's Communism. Now he is also being portrayed by others as a prophet who saw the threat of Islam over 100 years before 9/11.

If you do a Google search for "Churchill Islam" you will find endless pages, all quoting comments on Islam that Churchill wrote in his 1899 book The River War:
How dreadful are the curses which Mohammedanism lays on its votaries! Besides the fanatical frenzy, which is as dangerous in a man as hydrophobia in a dog, there is this fearful fatalistic apathy. Improvident habits, slovenly systems of agriculture, sluggish methods of commerce, and insecurity of property exist wherever the followers of the Prophet rule or live. A degraded sensualism deprives this life of its grace and refinement; the next of its dignity and sanctity. The fact that in Mohammedan law every woman must belong to some man as his absolute property - either as a child, a wife, or a concubine - must delay the final extinction of slavery until the faith of Islam has ceased to be a great power among men. 
Individual Moslems may show splendid qualities. Thousands become the brave and loyal soldiers of the Queen: all know how to die. But the influence of the religion paralyses the social development of those who follow it. No stronger retrograde force exists in the world. Far from being moribund, Mohammedanism is a militant and proselytising faith. It has already spread throughout Central Africa, raising fearless warriors at every step; and were it not that Christianity is sheltered in the strong arms of science - the science against which it had vainly struggled - the civilisation of modern Europe might fall, as fell the civilisation of ancient Rome.
The general tone of these pages is "Churchill saw it coming. He tried to warn us about Islamism, just as he warned us against Nazism and Communism." If one reads some of the commentary on pages which quote these words (and I can't recommend that anyone do so), there is, not surprisingly, a lot of anti-Muslim bigotry. But there is more than that: what emerges is the fusion of two different strands of thought, a strange amalgamation of the religious mindset of the Crusades with the ideological battles of the 20th century (especially the cold war).

The Crusader imagery is overt. One video, showcasing Churchill's remarks, begins with an image of a crusader knight, and then the blood-red title "The Crusader" fades in. It states, in the face of overwhelming evidence to the contrary, "Muslims have never been able to create anything really useful." It also asserts the cultural inferiority of Islamic lands: "Compare what billions of muslims [sic] have been able to come up with against a small number of Jewish intelligentsia, a fraction of one percent of the muslim [sic] population and the gulf between the ignorant backward culture of mohammedianism [sic] and other faith based cultures is obvious."

Others go back even further and refer in reverential terms to Charles Martel, who is praised as saving the West from Islam at the battle of Portiers in France in 732. On a web site that defends Geert Wilders, a Dutch politician who has called for banning the Quran (he compares it to Mein Kampf), eliminating immigration from Muslim countries, and prohibiting the construction of new mosques, there is a comment that specifically connects Wilders to Martel and Churchill: "Geert Wilders is the modern European hero fighting against evil, like Charles Martell [sic], Jan Sobieski [who was responsible for the defeat of the Turks in the Battle of Vienna in 1683] and Winston Churchill."  As the picture below shows, the phrase "Islamo-fascism" further enhances the connection to Churchill the prophet.

In this mindset, we see the blanket condemnation of all things Muslim.  There is no attempt to distinguish between radicals and violent extremists on the one hand and peaceful adherents of Islam on the other. All Muslims are guilty. The current struggle is with the religion itself, and goes back 1400 years.

Of course, in most polite political circles today, such ideas are beyond the pale. What is so insidious about the Churchill quotation is that it is used to validate ancient historical prejudices and wrap them in a cloak of modern respectability. After all, to reject Churchill's words about Islam is to make yourself into a latter-day Neville Chamberlain, foolishly appeasing evil.

These sites also show how the tropes of anti-communism are being grafted onto Islamophobia. One of the first things that struck me is the prevalence of references to "useful idiots." Students of communism will recognize that phrase--it has been attributed to Lenin, to refer to naive liberals who trusted the radical communists and then were used by them.

Today the phrase has new currency referring to anyone who resists anti-Muslim bigotry. In 2002, Cal State Fresno professor Bruce Thornton wrote: "Now the useful idiots can be found in the chorus of appeasement, reflexive anti-Americanism, and sentimental idealism trying to inhibit the necessary responses to another freedom-hating ideology, radical Islam." Conservative columnist Mona Charen used the phrase as the title of her 2004 book, suggesting a line of continuity from this alleged cold war naivete to the fight against Al Qaeda. What this signifies, I suspect, is how much Islam has come to replace communism in the right-wing mind since 9/11.

If this were all relegated to the darker corners of the internet, that would be one thing. But the Churchill quotation occasionally finds its way to more "respectable" places as well. Radio host Michael Savage has read it on his show, and then proceeded to talk about "front groups for radical Islam." (The phrase "front groups" of course also has a long anti-communist lineage.)

That same mindset of infiltration that is the point of Savage's rant is also behind the recent attack by Michele Bachmann and four other members of Congress on Secretary of State Hillary Clinton's Deputy Chief of Staff, Huma Abedin. In a letter to the State Department, they charge "information has recently come to light that raises serious questions about Department of State policies and activities that appear to be a result of the influence operations conducted by individuals and organizations associated with the Muslim Brotherhood." Like the red-baiters of the late 1940s and 1950s, they find in any policy with which they disagree the influence of the foreign "other."

The Churchill quotation shows up in the "comments" section of the website of Daniel Pipes, who has a doctorate in history from Harvard. After 9/11, Pipes created Islamist Watch, to track attempts to impose Islamic law on the U.S. His most recent post on his blog is fulsome in its praise of Mitt Romney's speech in Jerusalem. Pipes pays no attention to the most controversial part of the speech, in which Romney suggested that the reason that Israel's economy outpaces that of the Palestinians is culture: "if you could learn anything from the economic history of the world it’s this: culture makes all the difference. Culture makes all the difference."

It is hard not to notice that Churchill's words associate Islam with poverty. I do not believe Romney was in any way referencing the Churchill quotation or trying to appeal to people familiar with it. (David Frum had an interesting post recently suggesting that Fox News often does engage in conscious appeals to this dark underside of our political discourse--he calls it the "Fox News Wink.")

My point is that once reasonable ideas can be bastardized by fringe elements, and then these more unseemly underground manifestations have a way of bubbling back up to mainstream discourse, even in ways that the speaker may not realize--but the listeners certainly do.

This Churchill quotation serves as a rhetorical bridge for extremists--it connects the modern struggle against radical Islamists such as Al Qaeda and its offshoots with both the historical defense of Christian Europe from the Muslim invaders and the liberal democratic capitalist resistance to the radical ideologies of the 20th century. That is a potent combination. It is also a toxic one. In neither case is it fueled by any sophisticated understanding of those historical episodes. Instead, it taps into the worst aspects--the fear and hatred and tribalism--that emerged from both.

Going back to the original incident that prompted this discussion--Romney's pander about returning the bust of Churchill to the Oval Office--I think the lesson is this: Words have historical baggage. When politicians are tempted to use certain forms of cultural shorthand to score quick and easy political points, they would be well-advised to tread carefully--you never know what kind of message you may be sending.

Friday, August 3, 2012

Churchill, Romney, and Modern American Conservatism

In Wednesday's post, I concluded with a series of questions:
How is it that a perceived slight to the memory of a British leader has come to suggest a lack of American patriotism?
How did Churchill become more "American" than the American president?
The bust of Churchill is obviously symbolic--but symbolic of what exactly?
My short answer is this: I think many of today's American conservatives who embrace Churchill do so because they embrace Churchill's vision of a world benignly managed by the "English-speaking peoples." Romney's pandering on the Churchill bust is a desperate attempt to both appeal to those conservatives and wrap himself in the image of a well-known decisive leader.

Seeing the waning power of the British Empire after World War II, Churchill sought to bolster it by forging not just an alliance with the United States, but something close to a union with it. That union, he argued, could effectively manage world affairs far into the future, as a new, updated, and revived version of the British Empire.

In a sense, Churchill became American because he sought to erase the differences between the British and the Americans. Churchill himself embodied that union--he was literally half-American. His mother was born in Brooklyn. In 1963, President John F. Kennedy even made him an honorary citizen of the United States (perhaps to immunize himself against charges that his anti-colonial Irish heritage made him hostile to Britain?), calling Churchill "a son of America though a subject of Britain."

Most importantly, Churchill almost single-handledly created the "special relationship." The phrase was in fact coined by Churchill himself in 1944, but he had held the idea for many years.  Fraser Harbutt, author of The Iron Curtain: Churchill, America, and the Cold War, writes that as early as 1931, Churchill believed that the "two great opposing forces of the future ... would be the English-speaking peoples and Communism." 

Today, most Americans tend to think of the "special relationship" in general terms to mean simply that the United States and Great Britain have been close allies since World War II. But for Churchill, it meant much more than that. The vision he sketched in Fulton, Missouri in 1946 was for a virtual Anglo-American union which would keep the postwar peace.
Churchill delivering the "Iron Curtain" speech in Fulton, MO, March 1946, with President Truman seated on his right.

Churchill used the phrase "special relationship" twice in his Fulton speech, and he said "English-speaking" people (or world) on five different occasions.

Churchill consciously cultivated not just a connection, but a complete identification between the two nations. The Fulton speech was a pivotal part of that. His conscious goal was to wed the two in common cause. He called the United States a "kindred nation" and said it was "necessary that the constancy of mind, persistency of purpose, and the grand simplicity of decision shall rule and guide the conduct of the English-speaking peoples in peace as they did in war."

For Churchill, the combination of Britain and America was essential. He said that to fail to achieve this virtual unity of Britain and the United States threatened the world with the return of "the dark ages." Peace depended on "what I have called the fraternal association of the English-speaking peoples. This means a special relationship between the British Commonwealth and Empire and the United States of America."

Few people today realize that the "special relationship" Churchill envisioned was far more ambitious than what actually developed. He called for the virtual merging of the American and British militaries: "It should carry with it the continuance of the present facilities for mutual security by the joint use of all Naval and Air Force bases in the possession of either country all over the world. This would perhaps double the mobility of the American Navy and Air Force."

Churchill called for "such co-operation ... in the air, on the sea, all over the globe and in science and in industry, and in moral force" to insure that "there will be no quivering, precarious balance of power to offer its temptation to ambition or adventure. On the contrary there will be an overwhelming assurance of security."

Churchill even looked forward to the day when not only he, but every Briton and every American, would be citizens of both countries: "Eventually there may come -- I feel eventually there will come -- the principle of common citizenship, but that we may be content to leave to destiny, whose outstretched arm many of us can already clearly see."

Churchill's vision was no short-term expedient, meant simply to meet the immediate postwar challenges: "if all British moral and material forces and convictions are joined with your own in fraternal association, the highroads of the future will be clear, not only for our time, but for a century to come."

What Churchill was proposing was nothing less than an Anglo-American condominium to keep the world peace; not the American Century, but the Anglo-American Century.

This, I argue, is why Churchill is even more attractive to some American neoconservatives today, 20 years after the end of the cold war, than he was during the cold war. We tend to remember the Fulton speech as a cold war warning only, but the fear of communism had a larger purpose for Churchill. Like Churchill, American neoconservatives believe that the "English-speaking peoples," by virtue of their "moral and material forces," are fit to manage the world.

Mitt Romney's trip to London not only prompted my questions; I think the complete story of that trip illustrates the above answer.

Romney made the statement about the Churchill bust at a fundraiser. He was not pandering to the British--by law Romney could only raise money from American citizens in Britain, not from British citizens. He was appealing to American conservatives who idolize Churchill.

But more importantly, the Churchill bust was not the only Romney story to come from the London trip. The controversial comments of unnamed "Romney advisors" are even more illuminating and make the connection between the bust and this larger foreign policy vision.

In a story in The Telegraph, those anonymous sources were quoted criticizing President Obama and explaining why a President Romney would be better for Britain. It is important to look at everything they said, to get the full effect:
"We are part of an Anglo-Saxon heritage, and he feels that the special relationship is special,” the adviser said of Mr Romney, adding: "The White House didn’t fully appreciate the shared history we have."
"Obama is a Left-winger," said another. "He doesn’t value the Nato alliance as much, he’s very comfortable with American decline and the traditional alliances don’t mean as much to him. He wouldn’t like singing 'Land of Hope and Glory'." [This is roughly equivalent to criticizing a British leader for not being comfortable singing "God Bless America."]
The two advisers said Mr Romney would seek to reinstate the Churchill bust displayed in the Oval Office by George W. Bush but returned to British diplomats by Mr Obama when he took office in 2009. One said Mr Romney viewed the move as 'symbolically important' while the other said it was 'just for starters,' adding: 'He is naturally more Atlanticist.'
After criticism of those comments (particularly the racial implications of the phrase "Anglo-Saxon heritage"), Romney "distanced himself" from them. "I don't agree with whoever that adviser is," Romney said.

Nonetheless, I think it is important to view Romney's Churchill bust remark in the context of these other comments. The Romney aides themselves made the connection--it was all of one piece. They said that Romney appreciates the "Anglo-Saxon heritage" (not all that different from "English-speaking peoples"), was "more naturally" comfortable with British culture and the "special relationship" and correctly predicted that Romney would say that he plans to make the "symbolically important" step of returning the Churchill bust to the Oval Office to signify all of those things.

In doing so, Romney is singing the Churchill-adoring, neoconservative tune.

The neoconservative choirmaster is Charles Krauthammer. It was Krauthammer who, in his column last week, revived this nonsense over the Churchill bust. The point of his piece, however, was that Romney's choices of destinations on his trip were meaningful. He would be the anti-Obama, affirming support for Britain and Israel and, via the trip to Poland, animosity toward Russia (they have trouble completely letting go of the cold war).

Krauthammer is an unabashed advocate of American unilateralism in foreign policy. Churchill's Fulton speech, despite the occasional nod to the new United Nations, is an argument against the kind of multilateralism that neoconservatives such as Krauthammer hold in utter disdain. Krauthammer believes--like Churchill--in the idea of a "benignly" managed empire.

As the cold war was ending in 1990--a time of transition not unlike 1946 in some ways--Krauthammer published "The Unipolar Moment."  He wrote: "The immediate post-Cold War world is not multipolar. It is unipolar. The center of world power is an unchallenged superpower, the United States, attended by its Western allies." He argued that the West needed to develop "antiballistic missile and air defense systems to defend against those weapons that do escape Western control or preemption." [emphasis added]

In Krauthammer's world view, the sin of multilateralism is that it seeks to "restrain the American Gulliver and remake him into a tame international citizen." For Krauthammer, the United States should always be the tamer, never the tamed.

A dozen years later, he argued that one "effect of September 11 was to accelerate the realignment of the current great powers, such as they are, behind the United States." It was, in a sense, Churchill's Fulton vision finally come to pass.

Writing on the eve of the Iraq war in 2003, Krauthammer concluded confidently: "The new unilateralism argues explicitly and unashamedly for maintaining unipolarity, for sustaining America’s unrivaled dominance for the foreseeable future." That dominance would be "managed benignly" by the United States, he said. Americans had the duty to manage the world: "To impiously paraphrase Benjamin Franklin: History has given you an empire, if you will keep it."

This, effectively, was also what Churchill was saying to the United States in 1946. Churchill sought, of course, to be America's equal partner, while Krauthammer sees Britain as merely one of its attending allies. The vision is fundamentally the same: by virtue of its "moral and material forces," Americans must dominate the international system.

To the extent that Mitt Romney has had a foreign policy vision, this is it. As I noted in an analysis of Romney's speech at the Citadel back in October, the Romney foreign policy amounts to little more than mindless muscle-flexing. He said then, in a passage he repeated a couple of weeks ago in a speech to the VFW: "This is very simple: If you do not want America to be the strongest nation on Earth, I am not your President. You have that President today." In ominous tones reminiscent of the Fulton speech, he warned of a "global alliance of authoritarian states." His simple-minded answer was a "strategy of American strength" leading to a new "American century."

Romney's foreign policy advisors are working hard to cast him in a Churchillian mold, to present him as strong where President Obama is allegedly weak and "eager to address the world with an apology on his lips."

This superficial attempt to claim the mantle of Churchill should make all Americans suspicious. Recall who started all of this by requesting that bust of Churchill in the first place: George W. Bush.

Why did Bush want the bust? It seems Churchill reminded him of, well, himself:
People said why would you be interested in having a bust of an Englishman in your Oval Office and the answer is that he was one of the great leaders in the 20th century. He stood on principle. He was a man of great courage. He knew what he believed, and he really kind of went after it in a way that seemed like a Texan to me, wasn't afraid of public opinion polls, he wasn't afraid of, he didn't need focus groups to tell him what was right, he charged ahead and the world is better for it.
Bush wanted to associate himself with those leadership traits that he identified in Churchill, and we know how that turned out. Bush was, to say the least, no Churchill.

Now Mitt Romney is doing the same thing. As Bush once tried to say, "Fool me once ..."

[In the course of working on this post, I concluded that I have two separate explanations that I'd like to explore--one more respectable (above), another more disturbing. I'll examine the latter in a subsequent post.]

Thursday, August 2, 2012

A Quick Note on the Bust Kerfuffle

Another reason the Churchill bust has been in the news is that the columnist Charles Krauthammer cited it last week in explaining Romney's trip to Britain. His comments prompted a rebuff from Dan Pfeiffer at the White House, claiming the bust had never left the White House. Pfeiffer then had to apologize and admit that it had. Turns out there are two busts of Churchill, one of which remains in the residence--the one in the picture of Prime Minister Cameron and President Obama.

So, the White House looks incompetent at best, and Krauthammer comes out smelling like a rose.

Not quite.

This is what Charles Krauthammer said on Bill O'Reilly's program: "All I know is that the British reaction to the return of the bust was extremely negative, and it felt like it was an insult, that this was a gift after 9/11 to show solidarity. The British had soldiers serving with us at the time in Iraq and Afghanistan, really standing shoulder to shoulder and this was a slight. That's how they saw it."

There is nothing true about that passage by Krauthammer. The bust was a loan, not a gift. It was given before, not after 9/11; it therefore had nothing to do with the fact that American and British soldiers later served together in Iraq and Afghanistan. It was a personal gesture to the new president, George W. Bush, not a symbol of the "special relationship."

The Churchill bust was presented to Bush on July 16, 2001, a week before Bush was to visit Great Britain. As Bush explained in his remarks after the presentation, the British gesture was prompted by a remark by Bush:

"I think I casually mentioned to the ambassador right after my swearing in, I lamented the fact that there was not a proper bust of Winston Churchill for me to put in the Oval Office. He's a man of great action. Here sits a bust on loan from Her Majesty's Government which I accept gratefully."

Two things are significant here: 1) the Churchill bust ended up in the Oval Office due to a remark made by Bush, and 2) Bush himself acknowledged in accepting it that it was not a permanent gift but was on loan to him. So the idea that it was done at the initiative of the British and that to return it was some kind of insult is patently false. It was loaned to Bush personally at his request and returned when he left office.

These are easily verified facts. It took me a matter of seconds to find out when Bush received the bust. Krauthammer evidently never bothered to find out, because the facts did not fit his pre-determined narrative that the Obama administration deliberately insulted the British, a line he has been pushing for years.

The White House apologized for its error. It will be interesting to see if Krauthammer acknowledges his.

Wednesday, August 1, 2012

Romney's Foreign Bust

No, I'm not referring to Mitt's misadventures abroad this week. Those have received substantial (and in some cases, hilarious) attention. I mean the Churchill bust.

While holding a fundraiser in London that reportedly raked in over $2 million for Romney's campaign, Romney said: "I’m looking forward to the bust of Winston Churchill being in the Oval Office again."

In doing so, he revived a silly story that made the rounds early in the Obama presidency. In the years since, it has become common in anti-Obama emails bouncing around the internet. It goes like this: Obama, seething with anger over Britain's colonial rule over Kenya, deliberately insulted Great Britain by evicting a bust of Churchill that had been in the Oval Office ever since 9/11 July 2001.

In reality, the bust was on temporary loan, as the White House has repeatedly pointed out. The British Embassy in Washington issued this statement to clear it up:
The bust of Sir Winston Churchill, by Sir Jacob Epstein, was lent to the George W Bush administration from the UK’s Government Art Collection, for the duration of the Presidency. When that administration came to an end so did the loan; the bust now resides in the British Ambassador’s Residence in Washington DC. The White House collection has its own Epstein bust of Churchill, which President Obama showed to Prime Minister Cameron when he visited the White House in March.
In short, there was no anti-colonial pique on Obama's part. So why all the fuss?

Prime Minister Cameron and President Obama examine the bust that still resides in the White House.
Official White House Photo by Pete Souza

There are two things at work here. One is the ongoing, pervasive attempt to present President Obama as a foreign "other." Obama's alleged motivation in this fable is his identification with this Kenyan heritage. Though not nearly as stupid as the birther claim that he was born in Kenya, this slightly more respectable version plays footsie with bitherism. Its height was Dinesh D'Souza's article in Forbes (later made more famous by Newt Gingrich) that asserted that the key to understanding Obama was that he inherited an "anti-colonial ideology" from his Kenyan father. Lately, Romney has been flirting with this fringe concept by repeatedly referring to Obama's ideas as "extraordinarily foreign."

The other factor, however, has little to do with Obama. It is the odd love affair today's American conservatives have with Winston Churchill.

I'm not saying there is nothing to admire in Churchill. In 2002, a poll in Britain named him the most admired Briton in history (though in 2008, in another poll, 23% of Britons said he was a myth while 53% said Sherlock Holmes was real). In the 1950s, Americans regularly placed him among the top ten most admired figures in the world.

That makes sense. Through radio reports and movie newsreels, Americans came to know Churchill during World War II. He personified the stoic, gritty, stubborn resistance of the British people to Hitler's aggression.

What strikes me as odd, however, is the fawning, uncritical hero-worship of Churchill among American conservatives nearly 50 years after his death.

In the immediate aftermath of World War II, Churchill's reputation was based to a great extent on his record as a critic of appeasement. Unlike Neville Chamberlain and his government, Churchill recognized Hitler's danger early on. (Churchill's champions rarely recall, however, that three weeks after Hitler came to power in 1933, Churchill criticized the young Englishmen of the Oxford Union Society who voted not to "fight for country or King" by comparing them unfavorably to young Germans: "I think of Germany, with its splendid clear-eyed youth marching forward on the road of the Reich singing their ancient songs, demanding to be conscripted into an army; eagerly seeking the most terrible weapons of war; burning to suffer and die for their fatherland.")

For a generation of Americans that came to see appeasement as the great failure of their times, Churchill was the unheeded prophet. When he came to Fulton, Missouri in March 1946 and delivered his "Iron Curtain" speech, Churchill quite consciously exploited that status and looked to convert it into American support for a hard-line policy against the Soviet Union: "Last time I saw it all coming and I cried aloud to my own fellow-countrymen and to the world, but no one paid any attention."

In conservative circles in the United States after World War II, it became commonplace to deride Franklin D. Roosevelt as the naive, idealistic dupe who was taken in by Stalin at Yalta, while Churchill was the wise, cunning statesman who was never fooled by the communist dictator.

This is a convenient myth. Shortly after the Yalta meeting, Churchill remarked to Hugh Dalton: "Chamberlain believed he could trust Hitler. He was wrong. But I don't think I am wrong about Stalin."

Like FDR, Churchill thought the Yalta agreement was the best they could do, given the power realities on the ground in Europe. In the decades since, however, the myth of Churchill's prescience has only grown, fostered in no small part by his own conscious cultivation of it in his memoirs and elsewhere. As he once put it: "History will be kind to me for I intend to write it."

But this image alone is, I think, inadequate to explain the fetishizing of Churchill today--particularly the way it has grown over the last decade.

How is it that a perceived slight to the memory of a British leader has come to suggest a lack of American patriotism?

How did Churchill become more "American" than the American president?

The bust of Churchill is obviously symbolic--but symbolic of what exactly?

I'll attempt to answer that in my next post.

Tuesday, July 17, 2012

Bain's Back

Newt tried to warn the GOP primary voters, but they wouldn't listen.

Not that you can really blame them--after all, Newt wasn't exactly a good alternative. Nor was anyone else in the GOP primary field. But they were warned.

Six months ago, I wrote a piece on Newt's attacks on Mitt Romney's leadership at Bain. As I argued back then, that debate revealed the tension between two basic ideological components of the Reagan coalition that have always been at odds: traditional values and free markets (especially the amoral changes that result from the unrestrained activities thereof).

Today, all the political commentators are in a tizzy over when exactly Romney gave up control over Bain, and whether he is responsible for decisions made between 1999 and 2002. That's interesting in a micro-, inside-the-Beltway kind of way, I suppose. But I still think the important question is why Romney is trying so hard to distance himself from those business activities.

The answer lies, I think, in that tension.

The reason Romney is so intent on claiming that he had nothing whatsoever to do with Bain's business decisions after 1999 is that the company was involved in sending jobs overseas. In free market terms, that's entirely justifiable. If there's more profit from cheap labor overseas, away go the jobs. But it also violates traditional values like patriotism and support for working families. Politically, that's dicey.

Back in January, rather than address that tension, Romney did what Romney does: he took the easy way out. Gingrich made the moral argument: "Just because you have the right to do something, doesn't mean it's the right thing to do." Romney did not engage Newt on substance, he did not try to explain why what might seem like unsavory business practices were in fact "the right thing to do." Instead, he accused Gingrich of putting "free enterprise on trial."

The consequence of that decision is that Romney failed to either 1) embrace the idea that there should be moral restraints on business by agreeing with Gingrich or 2) counter that idea and argue that while sending American jobs overseas in search of greater profits hurts some people in the short run, it serves the greater good in the long run.

Had Romney done either, he'd be in a position to fight today's attack from the Obama campaign. Instead, he did what he always does: he ducked the question, he refused to take any clear stand.

I wrote in January that Newt was warning Republican voters, "if they nominate Mitt Romney, [they] are handing this potent political issue to President Obama, and with it, possibly, an essential component of Republican political success over the last 30 years."

That's where we are today. If, as some people are suggesting, Romney were now to disown those practices openly, he would be accused (rightly) of flip-flopping and adopting Newt's old position, the one he described as putting free enterprise on trial. If he were to defend them openly, as others suggest, he would alienate working class voters who might otherwise vote for him.

So what does he do? Neither. He just says that he had nothing to do with those practices because he had left Bain already, so he does not need to pass judgment on them either way. That's why he is so intent on saying he left Bain in 1999--so he can avoid taking a stand.

I believe that is why this incident may end up hurting Romney badly. The specific issues--when did he leave Bain, what do the SEC documents mean--are too arcane for most voters to follow. But people know when someone is afraid to take a stand. They see it when someone can't give a straight answer to a simple question. They sense when someone has something to hide.

Right now, everything about Romney's words and behavior sends those signals to voters.

He either failed to see the importance of Newt's critique in January, or he saw it and ignored it because of his short-term focus on getting the nomination. Regardless, his failure to address it honestly then is costing him now, and as a result, my conclusion then seems even more apt now:

"If Obama can take advantage of Romney's moral blindness and regain a significant number of Reagan Democrats, he will win re-election. If he can go further and recapture the mantle of the moral dimension of politics, he can realign American politics and fracture the Reagan coalition."

Tuesday, July 3, 2012

FDR Got Things Done. So Has Obama.

Sunday was a bad day for FDR in the New York Times Sunday Review section.

Ross Douthat, showing a level of understanding of the New Deal that I would find deficient in an undergraduate, used FDR to bash President Obama's decision to pursue health care reform. Bill Scher used FDR's allegedly cozy relationship with corporate heads to praise Obama. Both showed how little they understand about the politics of the 1930s.

Douthat's argument is that, despite the Supreme Court ruling upholding the constitutionality of the Affordable Care Act, Obama was foolish to pursue it early in his first term--that choice, he says, was "disastrous." His evidence for that is that the legislation is "deeply unpopular." (Douthat never deigns to evaluate the actual merits of the legislation. Evidently that is not important--timing is all.)

Douthat says the law is unpopular not because people don't understand it (the usual Democratic argument) but because of the timing. See, people are just mad that Obama pushed this legislation before the economy improved enough. "By turning from economic crisis management to sweeping social legislation before the crisis had actually abated, Obama made himself look more ideological than practical and more liberal than pragmatic." Evidently Obama did this by pursuing a goal he had explicitly campaigned on (the nerve!) and by embracing Republican ideas (eschewing a public option and accepting the individual mandate instituted by Mitt Romney in Massachusetts).

Douthat's points are self-evidently wrong on the surface, but he deepens his errors by claiming the authority of history. "This was not a mistake the icons of the liberal past made," he intones. "Franklin Roosevelt spent two years defining himself as a Depression fighter before he set out to establish Social Security."

To call this point simplistic would be an understatement.

FDR announced his intention to implement Social Security in June 1934, 15 months into his presidency. He signed it into law in August 1935, 29 months into his presidency.

Obama signed the Affordable Care Act in March 2010, 14 months into his presidency. According to Douthat, 15 months is the difference between political success and political disaster. This is not an argument. It is an assertion without evidence or logic.

More to the point, Douthat's praise of FDR ignores the rather significant fact that FDR had hardly ended the Great Depression when he pushed for Social Security. In fact, he pushed it because the first New Deal had failed, recovery was sluggish, and he was under political pressure to do something, anything, so he could point to successes going into the 1936 election. FDR didn't push for Social Security because the "economic crisis" had passed, as Douthat implies, but because it hadn't.

Scher's argument is a little better. His point is that Obama is to be commended, not criticized, for working with corporate interests on health care. Obama has been unfairly criticized by liberals, Scher says, who neglect how much their heroes FDR and LBJ did the same thing.

It is true that, as Scher says, FDR "was quite adept at bargaining with corporations" in the First 100 Days. What he neglects to note is that the major policy he negotiated with business, the National Recovery Act, is almost universally considered an abject failure.

FDR's most notable successes came after he stopped trying to appease big business. He learned that his attempts to do so were futile, since they excoriated him anyway. By August 1934, they had formed the anti-FDR Liberty League and dedicated their efforts to defeating him in 1936. So much for "bargaining."

After business turned on him, FDR not only passed Social Security, but the Wagner Act (which established union rights) and the WPA (which created jobs for the unemployed). These liberal policies were passed over the objections of businessmen, not by compromise with them.

Scher's point, however, is still a reasonable one: "most of the time politics is exasperating and irritating, not euphoric and cathartic." That's true, and it is also true (though Scher doesn't note it) that FDR returned to a detente with business when American involvement in World War II loomed.

I have no idea whether FDR would have, in Obama's shoes, pushed for health care in his first year in office, or if he would have sought to appease drug companies and the Chamber of Commerce whenever he did it. What I do think I know is that he would be proud of Obama for having gotten it done.

FDR's commission on Social Security recommended including health insurance as part of that program, but FDR feared (probably correctly) that it would be too much for Congress to swallow.

But he did not give up on the idea. In January 1944, when he proposed his postwar political agenda, the "Economic Bill of Rights," he included the following: "The right to adequate medical care and the opportunity to achieve and enjoy good health."

In short, we owe the very idea of health care as a right to FDR. Given that fact, and his own rather flexible approach to politics, I rather doubt he would care very much how--or when--Obama got it done. FDR got things done. So has Obama.

Sunday, July 1, 2012

John Roberts and The Case of Dred Scott v. Madison

Last March, I wrote a post about the Court's consideration of the health care law. My point then was that it was possible for a judicial victory to turn into a political defeat. That could still be the case, if the Court's ruling upholding it motivates the conservative base that is so viscerally opposed to the Affordable Care Act. Already, in an echo of the reaction to the Brown v. Board decision, some in the blogosphere are calling for the impeachment of Chief Justice John Roberts.

My major concern in the original post was that the Court's conservative wing would overreach, much like Roger Taney did in the Dred Scott decision in 1857. The temptation had to be great. The conservative movement is nearly unanimous in its rejection of the act, and even the so-called "moderate" swing vote, Justice Anthony Kennedy, was prepared to throw out the entire law.

It seems, however, that John Roberts was sensitive to that danger. Certainly he could have sided with the four conservative justices in this case. But he didn't. Why?

My good friend Bill Carleton wrote the following in a comment to my original post:
What you say reminds me of a CSPAN documentary I just saw about the workings of the Supreme Court. The current Chief Justice, John Roberts, is heard in a voice over, as the camera pans the portraits of prior Chief Justices, remember the lesson of Taney - don't be THAT man.
It would seem that Roberts thought exactly that. Taney's overtly political decision tarnished the reputation of the Court for years. By avoiding a 5-4 decision in which all 5 votes to overturn the greatest achievement of a Democratic president came from justices appointed by Republican presidents, Roberts may have avoided becoming THAT man.

But as observers on the right and left have noted, he did so in a rather odd way--by effectively agreeing with the dissenters on many of the substantive points, particularly on the matter of the Commerce clause. Some people see this as a stealth attempt by Roberts to set the stage for more significant limitations on the power of Congress in the future.

George Will, for example, argues: "Conservatives won a substantial victory" in the case. Since reformers have used the Commerce clause to expand government power since the New Deal, the argument goes, Roberts has served the larger cause by putting limits on the use of the Commerce clause, which Will, of course, thinks is all to the good.

Pamela S. Karlan, writing in the New York Times, sees the same thing but from the opposite political perspective. Karlan fears that Roberts "laid down a cache of weapons that future courts can use to attack many of the legislative achievements of the New Deal and Great Society."

In short, the argument is that in exchange for allowing this law to stand (barring a political decision by a future president and Congress to repeal it), Roberts has established the ground work for a revolution in constitutional law that might limit significantly the power of Congress under the Commerce clause.

If this is indeed Roberts' game, then instead of pulling a Dred Scott, he decided to pull a Marbury v. Madison. In the latter, Chief Justice John Marshall ruled against the short-term interests of his political party, the Federalists. As Gordon Wood puts it in Empire of Liberty, Marshall's early tenure as Chief Justice showed "his strategy of retrenchment and conciliation and his genius for compromise while at the same time asserting the authority of the Court."

Federalists lost the bitter presidential election of 1800 to Thomas Jefferson, but in the lame-duck session of Congress between the election and Jefferson's inauguration, the now-repudiated Federalist majority passed the Judiciary Act of 1801, which outgoing President John Adams signed into law only weeks before he was to leave office. The law was a rather overt power grab--it created new circuit courts, and Adams immediately appointed Federalist judges to them. It was meant to preserve Federalist power in the judicial branch after the party had lost the Congress and the Presidency. In 1802, Jefferson's Republicans repealed the 1801 act.

In the meantime, one of the last-minute judges appointed by Adams, William Marbury, sued to receive his commission, which the new Republican administration had refused to deliver. Marshall was under a great deal of pressure. Federalists wanted him to rule that the Republican repeal of the 1801 act had been unconstitutional. Republicans warned that a blatantly political ruling by a Federalist judge would reveal the partisan nature of the Supreme Court and require Congressional action to rein it in.

Chief Justice John Marshall
Marshall's decision brilliantly solved his problem. He ruled that Marbury had a right to the commission, and that the Jefferson administration had no right to deny it to him.

So, Jefferson lost, right? Not really. Marshall also ruled that Marbury had based his petition for relief to the Court on a provision of the 1789 Judiciary Act, and that provision, Marshall said, was unconstitutional. Thus the Court had no power to order that Jefferson's Secretary of State, James Madison, deliver the commission.

So, Jefferson won, right? Not really. He thought the idea of judicial review was undemocratic, and said that if the Courts alone had the power to rule on constitutionality of laws, it "would make the judiciary a despotic branch." But since he had "won" the case on those grounds, Jefferson was put in the position of accepting--at least indirectly-- the validity of judicial review.

In the short run, Marshall gave the administration a political victory. In the long run, he established the precedent of judicial review, which is not explicitly stated in the Constitution, but is the greatest power the Court has. But not challenging the Jefferson administration directly, Marshall maintained the reputation of the Court and enhanced its power.

The parallels to what Roberts did last week are obvious. He too resisted the pressure of the political party that nominated him to the Court. He too handed that party a short-run defeat. He too (at least somewhat) rehabilitated the Court's reputation.

Whether or not he has also set the stage for a conservative judicial revolution, such as Will hopes for and Karlan fears, depends entirely on future Courts and future decisions.

But Roberts does seem to have decided--at least for now--that he'd rather be Marshall than Taney. We should all be grateful for that. But for George Will's hopes and Pamela Karlan's fears to be borne out, Roberts would have to some day pick up those judicial "weapons" and use them against the New Deal and Great Society.

For the record, though John Marshall effectively created the Court's power of judicial review, he served on the Court for more than 30 years after Marbury v. Madison and never used it to invalidate another law passed by the United States Congress. In fact, no Court used it for that purpose until 1857, when Roger Taney used it in the Dred Scott decision. Hopefully, John Roberts will remember that, too.

Monday, June 25, 2012

Scalia Really IS a Political Hack!

Six weeks ago, I wrote a piece on the overtly political (rather than constitutional) nature of Justice Antonin Scalia's questioning in oral arguments on the Arizona immigration law. Today, the Supreme Court handed down its decision, upholding the "papers, please" part of the law but striking down other parts involving state enforcement of federal law.

Scalia, to no one's surprise, dissented on the decision to strike down parts of the Arizona law. But he also went out of his way--this time in a written dissent-- to expose his political views. Referring to President Obama's recent decision to refrain from deporting certain young people brought into the country by their parents, Scalia introduced a completely irrelevant political observation: “The President said at a news conference that the new program is ‘the right thing to do’ in light of Congress’s failure to pass the administration's proposed revision of the Immigration Act.7,” Scalia wrote. “Perhaps it is, though Arizona may not think so.”

The whole point is that it is not Arizona's place to decide on immigration. It is a federal responsibility. Scalia, who seems to be arguing that the states are sovereign entities and can police their own borders, rejects that constitutional principle. That strikes me as a bizarre view, but he is entitled to it.

In his opinion, however, he goes beyond that. Recall that the president's recent decision was not a subject of the case before the Court. To introduce it at all is entirely inappropriate. But even more inappropriate is what Scalia says about it. He questions the sincerity of the administration's explanation of its policy: “The husbanding of scarce enforcement resources can hardly be the justification for this,” he writes. Again, this is beside the point. Whether or not Scalia believes the administration's explanation for the policy is utterly irrelevant to the constitutionality of the Arizona law.

If Scalia would like to resign from the Court and run for office, he can question the motives of the administration all he likes. But to put such blatantly partisan arguments in a dissent shows how irredeemably political he is. He disapproves of the Obama administration's policies, so he wants Arizona to be able to act contrary to those policies.

We have reached a truly absurd point in the relationship between the Court and politics. The Republican Party, which has railed for decades against "activist judges" who "legislate from the bench" has no better representative of its political id than Antonin Scalia, a doctrinaire ideologue who routinely injects his personal political views into his decisions. He brazenly spouts partisan political arguments from the bench, all the while making the ridiculous claim that he is dedicated to the "original intent" of the Framers of the Constitution. But his words betray him. If you want to know what Scalia thinks, you would do better to watch Fox News than read the Constitution.