Newt Is Not a Slobbering Idiot; Why Is He Playing One on TV?

         I am no fan of Newt Gingrich. I think he is arrogant, ambitious, reckless, solipsistic, and utterly devoid of a moral center. I do not, however, believe that he is stupid. Nor do I consider him insane. Why, then, has he taken one of the stupidest, craziest public positions of any serious presidential candidate in recent history?

         I refer, of course to his statement in last week’s debate that sitting judges should be hauled before Congress to justify their legal opinions, his follow-up opinion that the president and congress should be free to ignore court decisions that they don’t like, and yesterday’s promise that he would send Federal officials—U.S. Capital Police or U.S. Marshals—to arrest members of the judiciary whose opinions he disagreed with.

Gingrich’s attack on the federal judiciary is so far out of the mainstream that it was labeled “outrageous” by Ann Coulter and “frightening” by Bill O’Reilly. Let me say that again: Ann Coulter called Newt Gingrich outrageous. Could this possibly get weirder?

So what’s up? Is a former speaker of the house with a doctorate in history from an actual college really suggesting that America start arresting judges for exercising their judgment? Would he really be willing to risk the biggest Constitutional crisis since the Civil War in order to protect the “right” of religious Texans to say a meaningless, non-denominational prayer once a year at graduation ceremonies? Could he possibly be that stupid or that crazy?

I don't think so. That Gingrich has turned to such rhetoric, I think, tells us a lot about how he views his position in the Republican field. He has a large lead now, but it is the same large lead once held by Michelle Bachman, Rick Perry, Herman Cain, and Donald Trump—and this is simply the result of a cause in search of a rebel. To beat the better-funded, better-organized, and more-respected Mitt Romney for real, he absolutely has to consolidate this 35% or so of the Republican electorate behind him. And many of these voters really are crazy.

One of the things that they are the craziest about is the Supreme Court. A brief tour through the la-la land of far-right Constitutional history—via books such as Mark Levin’s Men in Black: How the Supreme Court is Destroying America (2006) and Andrew Napolitano’s The Constitution in Exile (2007)—can show us exactly what the people who control Gingrich’s fate have been taught to believe. They think that

·       the Supreme Court seized the power of judicial review in a “counter-revolution” led by Alexander Hamilton and John Marshall, making every subsequent judgment on a law’s constitutionality an illegal act on the court’s part.

·      the Supreme Court has no legitimate power over state laws at all, only over conflicts between states or between the states and the federal government.

·      the court has used the “commerce clause” of Article I to invade—intentionally and with malice aforethought—the civil liberties of all Americans.

·      the entire federal judiciary is made up of atheists who hate God and religion and have eliminated any trace of religion in the public square.

·        since the days of Franklin Roosevelt, the Supreme Court has been the declared enemy of the American way of life and is now the most powerful of the three branches of government.

I am not making this stuff up. A substantial portion of the extreme right believes everything on this list (responding to the historical and Constitutional flaws in these books constitutes the penultimate chapter of my forthcoming book That’s Not What They Said!). And while I strongly suspect that these are not the voters that Gingrich would like to be courting right now, they happen to be the only niche not currently being filled by a more attractive, less historically adulterous candidate.

To understand why Newt Gingrich, who is not an idiot, is sounding so much like an idiot, we have to consider the race that he is running right now. He is not yet positioned to run against Barack Obama, or even against Mitt Romney. Those are later games in the series. Right now, he has to finish off Michelle Bachman, Rick Perry, Ron Paul, and Rick Santorum to become the only viable “Not Mitt Romney” in the race. 

And in that particular four-way contest, there is simply no such thing as too much crazy. 

Dear Liberals: It's Time to Cut the "Obama Betrayed Us" Crap

Dear Lefties,

I am not quite one of you. I am, rather, a creature of the political center, and sometimes you drive me nuts. However, for the last twelve years or so we have been fellow travelers, as the Democratic Party has been the only safe place for people like me—centrists who view with trepidation the increasing radicalization of the Republican party. So, I speak to you as an ally if not as a soul mate.

            That said: it’s time to stop all of the “I’m-not-ever-voting-for-Obama-again” stuff. It’s just getting silly. Yes, I suppose he has done some things to disappoint you. He has done some things to disappoint me as well. One of the big downsides of a two-party system in a functioning Republic is that nobody ever quite represents anybody’s ideology. This is just how the system works. Get over it.

            Politics is a pragmatic business, and the situation is like this: one of three people is going to be elected president next year. Barack Obama, Mitt Romney, or Newt Gingrich will be sworn in at the beginning of 2013, and, for the next four years, will control the reins of government. This person will appoint thousands of like-minded people to executive and judicial offices, including, perhaps, one or more Supreme Court justice. If you are absolutely neutral in this, then go off and support the Peace and Love Party or whatever. But if you even suspect that there might be a difference between a Gingrich government and an Obama government, then, really, it’s time to get behind the one who probably won’t drive the country off a cliff.

            Some time soon, the three candidates will become two candidates, Obama and “the other guy.” At that point, anything that you do to hurt Obama will automatically benefit the other guy. Please don’t equivocate on this. Remember that, had Ralph Nader not been in the 2000 race, Al Gore would have won a few hundred more votes in Florida and become president. Spend a few minutes thinking about how different the world would have been then.

            And then admit to yourselves that you are going to vote for Obama in the end because, whatever you dislike about him, he will be better than the other guy. The sooner you admit this to yourselves, the better chance Obama will have to be re-elected. If you haven’t noticed, his poll numbers are pretty bad. The economy still pretty much sucks, and people are unhappy. The only things that Obama has going for him are 1) the weakness of the Republican field; 2) the fact that he does not have a significant primary challenger; and 3) the absence of any Naderesque third-party general election candidate. If you keep whining, #2 and #3 could disappear.

            So please, I am begging you, let’s end this now. I get that you would like a more ideologically pure liberal, but it isn’t going to happen. And such a candidate would virtually guarantee that the other guy would be President anyway. And if your grousing about a few concessions to conservatives helps that happen, I will probably never forgive you.

Glenn Beck and the "Original Intent" Fallacy

Divining the intent of the Constitution’s framers through the use of extra-Constitutional sources has become a major part of the fringe-conservative position, as we can see in books such as David Barton’s Original Intent (5/e 2008), which examines the religious beliefs of dozens of Founding Fathers in an attempt to prove that the Constitution was never intended to restrict religious expression in the public sphere, and Larry Schweikart’s What Would the Founders Say, which tries to divine the Framer’s opinions on hot-button issues from environmental protection to health care. 

In both books, the original intent argument leads—as it must always led—to the uncritical amalgamation of opinions that we have been discussing. Inherent in the assertion that the Framer’s had an original intent is the assumption that they had the same intent—otherwise there would be no way to use it as an interpretive standard to begin with.     

In his just-released Being George Washington, Glenn Beck spends one chapter discussing the Federal Convention. He insists that “original intent was the only intent” and that we must (like George Washington) bind ourselves to the original purposes of the men who wrote the Constitution. In summing up the convention, Beck tries to put this the original purposes of the Constitution into four succinct statements, the first and last of which illustrate the fallacy of the original intent position more than my own analysis ever could:

(First Principle) The Constitution recognizes the existence of natural law. In the Declaration of Independence Thomas Jefferson referred to “the laws of Nature and Nature’s God.” Natural law recognizes the existence of God and acknowledges that God established a natural order of things for this earth and the people of this earth.

(Fourth Principle) The Constitution was created on the assumption that America would function under a free-market economy, recognizing and protecting property rights. John Adams wrote: “All men are born free and independent, and have certain natural, essential, and unalienable rights, among which may be reckoned the right of . . . protecting property.”[1]

            Both of these propositions give us a lot to argue about. It is not at all obvious, for example, that the Jeffersonian notion of “natural law” included a God that modern American Christians would recognize as such. As an Enlightenment Deist, Jefferson saw God as something like the sum total of the laws of nature rather than as a personal deity who interacted with the human race. Furthermore, neither Jefferson nor Adams would have even understood the term “free-market economy” as we understand it today. Jefferson in particular saw America as a primarily agrarian economy, and he viewed all kinds of financial markets with suspicion.

            Two facts, however, are beyond dispute: 1) that Jefferson did not attend the Constitutional Convention in Philadelphia in 1787; and 2) that Adams didn’t attend it either. At the time the two men were ministers to, respectively, France and England, and they knew only as much about the Constitution as they read in letters from home. Both the Declaration of Independence and the Constitution of Massachusetts (the source of the Adams quotation) are very different things than the U.S. Constitution, and there is no historically acceptable way to use the words found in one of them to support an originalist interpretation of the others. Such an interpretive strategy only makes sense if we assume absolutely ideological unity among the Founders, which is a really dumb thing to do.

I believe that “original intent” is a spectacularly bad standard for interpreting the supreme law of the land. I do not say this as an America-hating liberal who sees the Constitution as a “living, breathing document” that can mean anything that we want it to mean. I believe that we must interpret the Constitution according to the meaning of its words, with careful attention to how those words were used in their historical context. Words mean things, and those meanings matter. Where the Constitution is concerned, meanings matter very much; if the Constitution does not have fixed meanings, we do not live under the rule of law.

But interpreting the Constitution according to the meaning of its words—the jurisprudential standard known as “originalism”—is very different than interpreting it according to the intentions of its authors. Nobody has drawn this distinction more clearly than Supreme Court Justice Antonin Scalia, who, though often cited as an exemplar of the Framer’s intent standard of interpretation, rejects that standard in no uncertain terms:

It is simply incompatible with democratic government, or indeed, even with fair government, to have the meaning of a law determined by what the lawgiver meant, rather than by what the lawgiver promulgated. That seems to me one step worse than the trick the emperor Nero was said to engage in: posting edicts high up on the pillars, so they could not be easily read. Government by unexpressed intent is similarly tyrannical. It is the law that governs, not the intent of the lawgiver.”^[2]

The view of original intent propounded by the fringe conservatives is directly at odds with the democratic principles they espouse, the common sense they advocate, and even the Supreme Court Justice they revere. This difference between “original meaning” and “original intent” may seem slight, but it separates Scalia’s mainstream conservatism from that of the right-wing fringe. Scalia himself alluded to this distinction in a 1997 lecture at the Manhattan Institute for Policy Research. When asked whether or not he would consider scaling back the application of the Bill of Rights to the states through an originalist reading of the Fourteenth Amendment, he replied, “I am an originalist. I am a textualist. I am not a nut.”^[3]

            Unfortunately, many of those driving public opinion and government policy in the era of the Tea Party cannot say the same.

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[1] Beck, Being George Washington : the indispensable man, as you've never seen him: 240-44.

[2] Antonin Scalia and Amy Gutmann, A matter of interpretation : federal courts and the law : an essay, The University Center for Human Values series (Princeton, N.J.: Princeton University Press, 1997). 17.

[3] Antonin Scalia, "On Interpreting the Constitution,"  http://www.manhattan-institute.org/html/wl1997.htm.

I Am George Washington and So Can You: A Review of Glenn Beck's BEING GEORGE WASHINGTON

It has finally happened. Glenn Beck has written a whole book in which I can find nothing with which to disagree. Really. I find his newest offering—Being George Washington—to be perfectly innocuous. And what’s more, it is clear that Beck is trying to use his powers for good instead of evil. Gone is his usual stridence and arrogance. Here, he deals generously with those he disagrees with, and he genuinely tries to present George Washington as a suitable model for Americans of all political persuasions. 

That said, it isn't a very good book.

It is hard to say what kind of book this is trying to be. The text fits into three distinct genre categories, any one of which could have made for a promising book about George Washington. The three categories are:

Historical Fiction: About 60% of the book could best be described as a historical novel written on the 5th-8th grade reading level. This novel deals very unevenly with Washington's life, beginning with the French and Indian War and focusing principally on the American Revolution before jumping to the Constitutional Convention in 1787 and and the Farewell Speech in 1796. I call this portion a novelization, rather than a biography, because the author goes frequently into the minds of the characters and pulls out thoughts and motivations that go well beyond what any biographer could surmise. Take the first sentence of the book: "The colonel's horse was terrified." It is the novelist, not the biographer, who knows what goes on in the mind of a character's horse.


There is nothing particularly objectionable about the novelization portion of the book, but neither is there anything remarkable. Much the same narrative could be found in any one of dozens of young adult versions of the George Washington story. 


Historical Analysis: A second component of the book--one not clearly delineated from the first--aims to analyze the significance of George Washington's life for the modern reader. Again, there is little to object to here. Most of the analysis fits within the general received wisdom about George Washington’s values: the importance of conviction, the need for fixed principles, an abiding belief in the justness of one's cause--that sort of thing. Much of this analysis comes in somewhat annoying grey boxes plopped in the middle of the novelization with titles like "Thinking Outside the Eighteenth-Century Box" and "What If He Had Been King?" 


Leadership Manual: Beck begins the book with the assertion that all Americans can "be George Washington," which is to say that everybody can, by studying Washington's leadership principles, be the kind of person that Washington was and make a positive difference in the world. To help us along, he pauses the novelized narrative every now and then to point out some aspect of Washington's leadership that we should strive to emulate. Once again, there is nothing earth shaking here--much the same ground has been covered in such books as George Washington on Leadership or George Washington's Leadership Lessons. From Beck, we learn that we should be on time, believe in God, be willing to compromise, and not sweat the small stuff. Pretty basic stuff, really, but its always nice to have reminders.

As I said, any one of these elements could have made for an interesting book. And there are probably ways that they could have been combined together coherently to create something unique and interesting. Beck and his team, however, have simply thrown them together haphazardly with no real thought about how to give coherence to this odd collection of Washingtonian bric-a-brac. Almost everything that the book does is done much better in other (and less expensive) volumes, and the whole thing feels like uncorrelated notes that have been hastily assembled and placed between cardboard covers in time to make a Christmas killing--which, in fact, it is. The credits for Being George Washington list six different people as writers and thirteen more as "contributors & researchers." Beck himself was simply the compiler of random bits of work that other people did. And it shows.

Ultimately, what this book shows us is that Glenn Beck has ceased to be a shrill ideological firebrand and become a factory. Being George Washington was not so much written as produced on an assembly line. "Glenn Beck" (tm) is simply the brand name that guarantees book sales. I fully expect that this franchise will expand--that, in the next few years, we will see similar books on Franklin, Hamilton, Jefferson, and the other Founding Fathers. And from there: cat food, salad dressing, and beer. The good news is that the world has little to fear from Glenn Beck in the future. The bad news is that we have nothing to learn from him either.

A Christian Nation, Except Where It Matters

“Self-righteous liberals tell us that Jesus had a heart for the poor, which is undeniable. But Jesus never directed that government be the agency used to help the poor. He was talking about charity proceeding from individuals and His church.”—Sean Hannity, Conservative Victory, p. 207

         Don’t get Sean Hannity started on the “Christian left.” Only a communist, or worse, would even suggest that Christ’s injunctions to take care of the poor and vulnerable had anything to do with government. Those who believe such nonsense, he concludes, “would do well to remember the scriptural commandments against stealing and coveting.” Taxing me to give food to a hungry person is a violation of two of the Ten Commandments. True religion is not about who you feed; it’s about whether or not we can post all ten commandments above our lockers.

         I have argued before that the contemporary Tea Party movement mixes and matches positions from the Founding era to create an ideological mishmash that any Founding Father would have seen (for different reasons) as ideologically incoherent. But the historical incoherence of the movement pales in comparison to the theological incoherence of trying to hold, simultaneously, that

1)    America is a Christian nation, founded on Christian principles by Christian Founders who always intended that religion remain an important part of public life. Liberals who accept a false notion of “separation of church and state” are actually persecuting Christians and ignoring the Founders by trying to disallow prayers in public schools, nativity displays on municipal property, and public postings of the Ten Commandments.

2)    America has no business trying to use the government to feed hungry people, give shelter and clothing to the poor, or provide educational opportunities and health care to those who cannot afford it on their own. This is the responsibility of private charities and Churches. Jesus never said that the government was supposed to do these things.

Each of these propositions contains a hidden theological assumption that Christians must question before drinking the Hannity-Beck-Levin Kook Aid.

The first proposition—that America’s Christian heritage means that we must allow minor expressions of religion in the public square—dramatically overstates the importance of, well, minor expressions of religion. To listen to Hannity and others defend the right to post the Ten Commandments on a school wall, or to put up a crèche display at city hall, one would think that these were vital to the free exercise of religion—that Christians could screw up their salvation by failing to walk underneath the 3% of the Jewish Law represented by the Ten Commandments.

But guess what? Most Christians don’t post the Ten Commandments anywhere (they being Jewish laws and all). And most denominations believe that Christians can go to heaven even if they lived all their lives in towns that didn’t display nativity scenes on public property. These things really aren’t that important to the Christian tradition.

Feeding the hungry, clothing the naked, and all that stuff, however, is REALLY important to the Christian tradition. This was not an incidental component of Jesus’s earthly mission; it WAS his earthly mission, and He made it pretty clear that it is supposed to be our earthly mission as well.  

         But you say (if you happen to be Sean Hannity), Jesus still doesn’t say that we are supposed to use the GOVERNMENT to do all of this feeding and clothing and visiting. This is what they set up the Church to do.

         I have a hard time imagining that any adult could read the New Testament and think that it had anything to do with dividing responsibilities for the poor between Church and State—concepts that nobody at the time could have understood. An essential part of the Christian message is that societies have a responsibility to care for their most vulnerable members. We do not do this because it is spiritually ennobling for rich people to give their money to the poor; we do it because the poor and the vulnerable need taking care of. How we do this, really, is up to us, with the implication that the best way to take care of them is the way that takes care of them the best.

         What Hannity & Co. tell us (when they are talking about money) is that Jesus imagined a great divide between what the government is supposed to do (Rome, we presume, but possibly Judea) and what “His church” is supposed to do. Taking care of people is good, if individuals do it by themselves or through a Church, but bad if individuals band together and structure a government that does it. (This logic does not, of course, apply to moments of silence in public schools).

One of the core assumptions of democracy, however, is that people have a right to try to structure their government in way that supports their values. Both liberals and conservatives believe this, but they believe it about different things. Most liberals (like most moderates and most conservatives) believe that their government should reflect the values of charity and compassion—values that can be found in all religious traditions as well as in most forms of secular humanism. The shrillest voices from the extreme right, however, see these things as outside of the government’s purview. They prefer that we focus our religious attention on graduation prayers, crèche displays, and making sure that schools give equal time to the dinosaurs on Noah’s Ark.

Jesus actually had an expression for just such a worldview. It had to do with swallowing a camel.  

A Balanced Budget Amendment? Not for These Guys

The Balanced Budget Amendment didn’t even get out of the starting gate this term. The House of Representatives rejected it with a vote of 261 for to 165 against, 23 votes short of the 2/3 majority necessary to send a proposed Constitutional Amendment to the Senate. And—though I would not have said so a few years ago—I’m glad it failed.

I actually do think that balancing the federal budget would be a good idea most of the time, but not all of the time. Without sufficient safeguards, a Constitutional requirement for a balanced budget would limit America’s ability to respond to genuine emergencies (think: World War II) or no-brainer opportunities (think: Louisiana Purchase) that could not be anticipated by any rational budget process.

There are, of course, emergency safeguards built into most contemporary versions of the balanced budget amendment. The resolution voted on yesterday—H.J. Res. 2—allows for deficit spending with approval of a 3/5 supermajority in both houses. If the United States is engaged in a military conflict, a deficit can be approved by a simply majority. So there are safeguards in the resolution that would allow reasonable people to react to situations where deficit spending is the only rational choice.

But we are not dealing with reasonable people.

This, unfortunately, is the logical conclusion to draw from last summer’s debt-ceiling debate. This was an excellent preview of how our current leaders would respond to a genuine fiscal emergency. On the day before America was set to default on its debt obligations for the first time since the Revolutionary War, 161 members of the House of Representatives voted against raising the debt ceiling. And even now, months after the debate, the “Supercommittee” that was formed by the debt compromise is on the brink of failing and throwing the nation back into the same crisis we faced in July and August.

And why has every attempt at a debt compromise failed? Because nearly every Republican currently in Congress has signed a pledge to never raise taxes, ever, under any circumstances, for any reason. Tea Party (and Utah) Senator Mike Lee even argues in his (genuinely awful) book The Freedom Agenda, that any balanced budget amendment should require a Congressional Supermajority to increase taxes (72)—a provision that found its way into an earlier version of the rejected amendment. And this, ultimately, is why Americans should not trust the current Congress with a balanced budget amendment. They have made it abundantly clear that goal of balancing the budget is less important than the goal of reducing taxes.

No quickie-mart manager would seriously set out to balance a budget by declaring a moratorium on any increase in revenue, much less a pledge to reduce revenues by any means possible. The Chair of the House Budget Committee, on the other hand, seriously proposed a budget that would try to balance the budget with nearly 2 trillion dollars in tax cuts. Such uncritical belief in the power of tax cuts, as I have argued before, goes well beyond rational economic theory and becomes a belief in magic.   

Really balancing the budget will require real pain and real sacrifice on the part of all Americans—those who pay taxes and those who receive entitlements. Those who believe that they can pull it off one hand tied behind their backs are deluded. Let’s not change the Constitution to make their delusions permanent. 

How Madison and Jefferson Occupied Wall Street

          Here is a quick, one-sentence quiz: what was the first major American political crisis after the implementation of the Constitution? Here’s a hint: it destroyed the relationship between Alexander Hamilton and James Madison, who had collaborated on the Federalist Papers and helped to secure the ratification of the Constitution. Here’s another hint: it involved a lot of people who were upset about the way that wealthy financiers—about one percent of the population—pursued huge profits at the expense of the other ninety-nine percent.

Give up? Well, here’s the story:

         In 1789, the new American government had a debt of about $54 million, most of which was contracted to finance the Revolutionary War. Alexander Hamilton, the new Treasury Secretary, spent his first months in office devising a plan to pay this debt off. Everyone agreed that the debt to foreign countries—$12 million dollars, mainly to France and Holland—had to be paid in full. The trickier part of the debt involved the $42 million in government bonds that had been issued to American citizens, largely in payment for military or other service. Hamilton proposed that the holders of these bonds be paid the full value, plus interest, of the bonds that they held.

         The problem was that most of the hardworking soldiers and suppliers who originally accepted the bonds had since sold them to speculators, often for pennies on the dollar. Madison, who was one of the most influential members of the House of Representatives, felt that it was unfair to allow speculators to reap huge profits simply because they had the money to buy up the bonds when they were cheap. He proposed an alternative plan that would require the government to seek out the original holders of the bonds and give them a share of the profits. “Madison sought no total reduction in the payments due from the government,” explains his biographer Ralph Ketchum. “Rather, he proposed a redistribution of the payments, to benefit those who had suffered from the government’s earlier defaults, and to scale down the profits of the speculators who had gathered the depreciated certificates.”^[i]    

         The House of Representatives overwhelmingly agreed with Hamilton, who felt that redistributing the income from the bonds would be injurious to the credit of the United States. Madison’s proposal was defeated on February 22, 1790, by a resounding vote of 36-13. Thomas Jefferson was en route from Monticello when the vote was taken, but when he arrived in New York City a week later, he quickly became incensed at what his Treasury colleague had done. This controversy, as he later wrote in his “Anas,” set him on a course of opposition to Hamilton’s financial programs for the rest of his time in the Cabinet:

It is well known that, during the war, the greatest difficulty we encountered was the want of money or means, to pay our soldiers who fought, or our farmers, manufacturers & merchants who furnished the necessary supplies of food & clothing for them. After the expedient of paper money had exhausted itself, certificates of debt were given to the individual creditors, with assurance of payment, so soon as the U. S. should be able. But the distresses of these people often obliged them to part with these for the half, the fifth, and even a tenth of their value; and Speculators had made a trade of cozening them from the holders, by the most fraudulent practices and persuasions that they would never be paid. In the bill for funding & paying these, Hamilton made no difference between the original holders, & the fraudulent purchasers of this paper. . . . Immense sums were thus filched from the poor & ignorant, and fortunes accumulated by those who had themselves been poor enough before. Men thus enriched by the dexterity of a leader, would follow of course the chief who was leading them to fortune, and become the zealous instruments of all his enterprises.^[ii]

         The debt-payment debate drew the battle lines that would define the next generation of American politics. Hamilton stood firmly on the side of the investors, and of the undeniable market principle that a thing belongs to whoever purchased it. No good American capitalist today would suggest anything else. 

         Madison and Jefferson, on the other hand, insisted that the government not help the rich get richer at the expense of the poor. And they didn't particularly care what Adam Smith, or Ludwig Von Mises, thought about the matter.

     

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[i] Ralph Louis Ketcham, James Madison: A Biography, 1st pbk. ed. (Charlottesville: University Press of Virginia, 1990). 308.

[ii] Jefferson and Peterson, Writings: 666-67.

If He's Running for President in 2012, Why Does It Sound So Much Like 1954?

If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution. When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens.--James Madison, Federalist #10 

In an increasingly diverse and growing nation of over 300 million citizens of varying religious, ethnic, and cultural backgrounds, this benefit has only grown in significance and impact since the Founders contemplated and implemented federalism. From marriage to prayer, from zoning laws to tax policy, from our school systems to health care, and everything in between, it is essential to our liberty that we be allowed to live as we see fit through the democratic process at the local and state level.—Rick Perry, Fed Up!, p. 27

    If we look closely, we can see that the majoritarian tyranny Madison feared is simply the flip side of the “responsiveness to the people” aspect of state sovereignty that fringe conservatives praise. Rick Perry’s sunny dictum that “states allow us to live with people of like minds” should scare the socks off of people who live in states where their minds (or bodies, or economic values, or religious beliefs) are unlike those of their neighbors, as the Perry doctrine comes perilously close to declaring open season on their basic civil rights. 
     Though Governor Perry clearly has other political issues in mind, his words have an eerie resonance with the stance that most Southern states—including Texas—took against civil rights for African-Americans for most of the 20^th century. On the issue of marriage, for example, the State of Texas had one of the nation’s strictest laws against interracial marriage until the Supreme Court’s Loving v. Virginia decision overturned all such laws in the United States. Schools, health care facilities, public transportation, and most other state-controlled services were similarly segregated throughout the South until the federal judiciary forced states to comply with the Fourteenth Amendment and grant all people within their borders basic civil rights.

    But we need not go back to the Civil Rights Era to see the rights of minorities being invaded “through the democratic process at the local and state level.” A Pew Research Center report released on August 30, 2011 documents 37 challenges to proposed mosques and Islamic Centers in the United States between 2008 and 2011, nearly all of which included some element of community discomfort with the Muslim religion. Most of these construction projects have been allowed to proceed, but often only with some pressure from the federal Department of Justice, which launched 16 investigations of Religious Land Use violations between May 2010 and August 2011. Without some federal check on the power of state majorities to "live as we see fit," I suspect that American Muslims would have a difficult time securing the right to worship freely in a number of state and local jurisdictions.

     Perry’s assertion that states “allow us to live with people of like minds” posits a world that simply does not exist—a world in which every citizen of a particular state has made an affirmative decision to live among people who share his or her values and perceptions. In this world, people are not constrained to live in certain places by economic circumstances, family ties, job opportunities, health-care needs, etc. Those who don’t like a certain political climate can simply move around until they find a more suitable one.

     This is not how life works for most of us. We live where we live for all kinds of reasons, most of which have very little to do with whether or not our governor packs heat on his morning jog. Conservatives live in Massachusetts, liberals live in Texas, Mormons live in Alabama, Catholics live in Utah, and everybody has certain fundamental rights that are not subject to the whims of the people around them. While majorities will generally get their way on most political issues, they cannot get their way all the time, or our society will cease to be free. The Founding Fathers who supported the Constitution, and wrote the Federalist Papers, understood this clearly.
     But Perry, too, is making an argument about what the Founding Fathers supposedly believed. In the fashion of a true proof-text patriot, he closes out his “states allow us to live with people of like mind” argument with a quote from a bona fide member of the Founding Era:

As one pro-states Revolutionary-era politician writing under the pseudonym of Agrippa said, “The idea of an uncompounded republic [with millions of] inhabitants all reduced to the same standards of morals, of habits, and of laws is in itself an absurdity, and contrary to the whole experience of mankind.” Just as each individual is unique, so, too, do we come together to form unique communities with differing needs. (27)

     To spell out what nearly all observant readers will have already guessed, “Agrippa”—also known as James Winthrop, a minor state official in Massachusetts—was one of the Constitution’s most dedicated opponents.

What the Right Gets Wrong about Federalism

Our Founding Fathers understood that every government becomes more susceptible to tyranny as it amasses more wealth and power. Any leader . . . will become a tyrant, and likely will become a tyrant, unless his powers are carefully limited. The Founders also knew that, although local governments are capable of tyranny, the risk is less severe than it is at the national level. That’s because local governments operate closer to the people, making them more responsive to the people’s needs and desires.

               --Senator Mike Lee, The Freedom Agenda, 25

     Tea Party (and Utah) Senator Mike Lee is exactly right about the views of the Founding Fathers who opposed the ratification of the Constitution. But he is exactly wrong about the views of the Founding Fathers who supported the Constitution. Washington, Madison, Hamilton, and most of the other signers of the Constitution—while concerned about the dictatorial potential of national government—perceived a much greater threat to liberty in the actions of individual states and local governments who, in the name of responsiveness to the majorities within their jurisdictions, often deprived their other citizens of even the most basic civil and political rights. This, in fact, is the main point of the most widely read and cited of all of the Federalist Papers: James Madison’s magisterial and prophetic Federalist #10.
    Madison’s primary objective in Federalist #10 is to rebut one of the arguments against the Constitution that had gained a lot of traction in the State of New York: that the territory of the United States was too large to be incorporated into a functional Republic. The original source of this objection was the Baron de Montesquieu, one of the best known political theorists of the 18th century, who argued in The Spirit of Laws, his major work, that

it is natural to a republic to have only a small territory, otherwise it cannot long subsist. In a large republic there are men of large fortunes, and consequently of less moderation; there are trusts too great to be placed in any single subject; he has interest of his own; he soon begins to think that he may be happy, great and glorious, by oppressing his fellow citizens; and that he may raise himself to grandeur on the ruins of his country.

     Montesquieu’s views on large Republics were first introduced into the ratification debate in a 1787 essay by the Anti-Federalist crusader known as “Brutus,” who was almost certainly Judge Robert Yates, who had been a delegate to the Constitutional Convention and had left without signing. In the first of his sixteen Anti-Federalist essays, Brutus quotes Montesquieu and argues that the sheer size of the thirteen colonies, and the distances that must be travelled to any capitol, will prevent any kind of effective representative government. “In a large extended country,” he insists, “it is impossible to have a representation, possessing the sentiments, and of integrity, to declare the minds of the people.” 
     By citing The Spirit of Laws, Brutus was quoting scripture against Madison and the Federalists. Montesquieu’s ideas of the separation of powers had contributed significantly to the foundation of the proposed Constitution. It is largely on the French philosopher’s authority that the delegates divided the government into three separate functions—legislative, executive, and judicial—and gave each branch ways to check the power of the other two. Brutus’s arguments, backed by the same authority as much of the Constitution, raised serious doubts about the Constitution among New York’s educated elites.
     When Madison teamed up with Hamilton and Jay to create “Publius,” he understood that his first task must be to refute Brutus, the most forceful and articulate of the Anti-Federalist writers active in the State of New York. It would not do to argue simply that a large republic would not trample individual rights. Such an argument would turn Brutus’s negative into a neutral, but Madison was not one to play for a tie. He wanted to win, and that meant showing that large republics could protect individual liberty in ways that small republics could not. Using ideas that he had initially worked out on the floor of the Constitutional Convention, Madison crafted his first contribution to the Federalist Papers around the revolutionary proposition that only a strong national government could control what he called “the violence of faction.”
    For Madison, a “faction” was something like what we would call a “special interest group” today—a collection of individuals, either in the majority or the minority, “who are united . . . by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.” Among the potential factions in the United States, Madison mentions religious sects, supporters of paper money, and advocates for the equal division of property. He believed that the tendency to form factions lay deep within human nature and that, “as long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed.”
     Madison saw factions as a non-negotiable, non-preventable byproduct of freedom. No truly free society can keep factions from forming or to prevent them, once formed, from trying to advances their agendas at the expense of other people’s rights. As long as a faction does not constitute a majority within a nation, then the rule of the majority will ultimately keep them in check. However, when a faction becomes a majority in a democratic society, it gains the ability to impose its will on a minority. And this, Madison believed, was the greatest threat to freedom that a republic faced.
     In Federalist #10, Madison proposes a way to solve this problem and, in the process, offers a brilliant rebuttal to both Brutus’s argument and Montesquieu’s political theory. The way to prevent a permanent majority from forming, he argues, is to make sure that the republic is large enough to contain so many factions that none of them can ever stay in the majority for very long:

The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party. . . . Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other.

     With this single masterstroke, Madison takes one of the Constitution’s greatest perceived weaknesses and turns it into a powerful strength. A large republic such as the United States will contain so many different factions, parties, and interest groups that none of them will ever predominate. Temporary coalitions between different interests will form to pass certain issues, but they will be continually forming and dissipating, making it almost impossible for a single faction to seize power long enough to damage the rights of the minority. 
     For Madison's idea of a republic to work, the primary guarantor of liberty in a free society must be a centralized government with more authority than its constituent units--for only such a government is capable of resisting the majoritarian impulses that have always plagued democratic societies. This places Madison directly at odds with the majority of 21st century conservatives who call themselves “Madisonians.”

Why Obama Is Not, Actually, Destroying the Constitution: Thoughts on Federalist #31

“Not every intrusive law is an unconstitutionally intrusive law.”

—Bush appointee Jeffrey Sutton, writing for the the United States Court of Appeals, Sixth Circuit, in its June 29, 2011 decision to uphold the Individual Mandate clause of the Patient Protection and Affordable Care Act. 

The last few years have been a good time for whoever does press clippings for the US Constitution. Polling data suggests that the percentage of people who have heard things about the Constitution is greater today than it has ever been. People know, for example, that the Constitution was designed to prevent the Federal Government (which had become out of control under the Articles of Confederation) from encroaching on the rights of the states. They know that it was never intended to give the National Legislature the power to collect taxes. And, most important of all, they known that (last summer's misguided appellate decision aside) the Patient Protection and Affordable Care Act is patently and completely unconstitutional. Read the blogs and the letters to the editor; America is chock full of people who have heard things—often a whole bunch of things—about the Constitution.

The problem with relying on what you have heard, of course, is that whoever you heard it from probably has an interest in not telling you the whole truth. Constitutional law is actually somewhat complex; it’s a bit more involved than reading a sentence or two out of context and imagining that you know how it fits within a 200 year old legal tradition. But our political system is not friendly to complexity. We don’t want to be lectured by professors, we want to be entertained by clowns; and all clowns know that they have to keep things simple. But the process of simplifying complicated arguments often results in the loss of crucial distinctions. Tolstoy’s War and Peace contains over 500 distinct characters. The Wikipedia entry for the novel gets by with a few more than 20.   

One very important distinction that is being lost in the current political climate is the distinction between a “bad idea” and an “unconstitutional action.” The term “unconstitutional” has been thrown around on both the right and the left (but, let’s be honest, in this historical moment it is coming more from the right) like a casual greeting. Bestselling books now proudly trumpet the President’s secret “blueprint” for subverting the Constitution one cherished principle at a time. And the charge that Obama is bent on “destroying the Constitution” (here, here, here, here, and here) is made so frequently in the conservative media that it has become an article of faith for millions.

When we hear exactly what the President is doing to destroy our beloved document, however, the answers are, quite frankly, a little bit silly. Obama, we hear

·      Is appointing powerful policy advisors called “czars” without the advice and consent of the Senate (when Supreme Court Justice Antonin Scalia—nobody’s liberal activist—was asked about this at a Congressional round table, he responded, to the chagrin of the Tea Party activists present, simply that  “the President is  entitled to hire advisors”).

·      Is bent on appointing only liberal activist judges to the Supreme Court (as if the Constitution did not actually give presidents the power to appoint whomever they want to the Supreme Court, subject to Senate approval).

·      Has rammed an unpopular health care law down our throats in direct violation of the constitutional prohibitions on an overarching federal government (despite the fact that the health care law is currently working its way through the court system—like thousands of other laws have in American history—and will ultimately either be declared Constitutional and enacted, or declared Unconstitutional and rejected according to policy that the Constitution sets up for resolving precisely these kinds of issues). 

The assertion that these policies are wrong because they are unconstitutional is, BY THE TERMS OF THE CONSTITUTION ITSELF, the wrong argument. Call in radio hosts and bi-weekly columnists are simply not given the power to issue binding statements about the Constitution. Even television hosts are not given this power. In the system that Messers Beck, Levin, Blackwell, and Klukowski supposedly like, the power to determine the constitutionality and unconstitutionality of a presidential or legislative action resides in the court system—which is where all of these issues, especially health care reform—will ultimately be decided.
 

In the mean time, the people who don’t like these ideas owe it to the rest of us to give real reasons for their opposition. "X is unconstitutional" is quickly becoming, not so much an argument itself, but a way to avoid an argument--a way, that is, to avoid doing all of the things that arguers are supposed to do, like presenting evidence, establishing criteria, appealing to shared values, and persuading people to a coherent point of view. Arguing persuasively that something is a bad idea can be difficult. Reflexively calling what you don't like unconstitutional, and saying that your opponent hates America, is much easier on the mind.

Nobody understood the difference between a bad idea and an unconstitutional one better than Alexander Hamilton, who was especially eloquent on this topic in his series of Federalist Papers on taxation (30-36). Though it does not come through clearly in the recent Glenn Beck “translation” (or, more accurately, simplification) of the Federalist Papers, Hamilton felt that the Federal government should have almost unlimited power of taxation. He makes this case primarily in #30 and #31 (both of which somehow ended up on Beck’s cutting room floor). In one particularly important passage, Hamilton addresses the issue of “double taxation,” in which the federal government taxes something that the state taxes as well. Look carefully at what he says:

As to a supposition of repugnancy between the power of taxation in the States and in the Union, it cannot be supported in that sense which would be requisite to work an exclusion of the States. It is, indeed, possible that a tax might be laid on a particular article by a State which might render it INEXPEDIENT that thus a further tax should be laid on the same article by the Union; but it would not imply a constitutional inability to impose a further tax. The quantity of the imposition, the expediency or inexpediency of an increase on either side, would be mutually questions of prudence; but there would be involved no direct contradiction of power. The particular policy of the national and of the State systems of finance might now and then not exactly coincide, and might require reciprocal forbearances.

Had this passage made it into the Beck translation, it might (I hope) have come out sounding something like: “It is entirely possible that the federal government may want to tax something that the state government is taxing too. And this could (or could not) be a really bad idea; but it would not be an unconstitutional one.”

However, when Mr. Beck actually does speak of “double taxation” in his book, this is what he says:

While the Founders argued in favor of the federal and state governments’ each having the power to tax, they were convinced that neither would tax the same thing at the same time. But now? Plenty of items, from gasoline to alcohol to tobacco, have federal excise taxes along with state sales taxes. In addition, of course, there’s income tax, which is often charged at the federal, state, and sometimes even local level. These concurrent taxes were never part of the Founders’ plan. (360)

This is wrong in the “that’s-clearly-not-what-he-said” sort of way. The Founders had a clearer vision, and a better plan, than Glenn Beck gives them credit for. Hamilton clearly foresaw the possibility of double taxation —and he was not at all “convinced that neither would tax the same thing at the same time.” Quite the reverse, he thought that they probably would. And his answer to the problem still applies to many, if not most of our informal Constitutional debates today: “this is a political issue, not a Constitutional one, so take your fight outside where it belongs.”

This, ultimately, gets to my biggest problem with the Beck-Levin-Coulter-Limbaugh-etc.-etc.-etc. assertion that President Obama (or anyone else) is “destroying the Constitution.” It presents the Constitution as a remarkably fragile document and the Founding Fathers as bumbling idiots who couldn’t figure out that some forms of government would sometimes try to overstep their bounds. It turns out, though, that they had it covered all along.  And actually respecting the Founding Fathers means having faith that the system that they designed will work—as it generally has worked in the past—according to its design specs.

One of the most ingenuous aspects of the Constitution is that it sets up a process for adjudicating disputes about its own meaning. That system—we call it the judiciary—is fully capable of resolving all of the current disputes about what is, and what is not, Constitutional. We should register our opinions, of course, but we also owe it to the Founders to allow their system to do its work. And while it does, the rest of us should get busy arguing about what is, and what is not, a good idea. 

The War on Knowing What the Hell You’re Talking About

I recently got my first hate e-mail—something that I was not actively looking forward to but was nonetheless expecting after I expanded some of my blog critiques into this negative Amazon review of Glenn Beck’s The Original Argument. It wasn’t much of a hate-e-mail, to be honest, but I do take some pride in the fact that (since e-mail addresses are not linked to Amazon accounts) the author had to spend a few extra seconds on Google figuring out where to find me. Here is a screen shot of the original text:

Initially, I suppressed my desire to respond and have just tried to let various reactions play out in my mind. My first four thoughts went something like this: 1) “while I would certainly rather have fan mail than un-fan mail, I do realize that being criticized is part of the game (which consists, basically, of criticizing someone else)”; 2) “but couldn’t Mr. Vaughn have taken the time to think of a good insult, rather than just repeat a meaningless cliché?”; 3) “wait a minute, isn’t the whole point of Mr. Beck’s book to “teach” people something about the Founding Fathers”?”; and 4) “at least he thinks I am a teacher and has not guessed that I am really just a useless administrator who used to teach.”

But it is the fifth thought that stuck with me and bounced around in my head for the rest of the day. Here it is: “I can only claim to be an expert in one thing, and this guy is trying to dismiss that expertise on the authority of a 200 year old cliché.” 

Let me explain: I am an academic. I am actually quite willing to admit that the 13 years that I spent in college left me ridiculously unprepared to face the real world. I can’t change a tire, I have never actually balanced a checkbook, and I have to use Wikipedia to understand the sports metaphors that the other vice presidents use in our cabinet meetings.

The depth of my uselessness is unusually profound, given that all three of my degrees are in English. I spent 2/3 of my college career studying 18^th century political rhetoric—a stunningly unimportant pastime that I have continued in the dozen articles and two books that I have written since completing my doctorate in 1997. Other than the language and rhetorical style of 18^th century political discourse, there is not a single thing that I could plausibly be considered an expert about.

Fully aware that my area of expertise is both narrow and shallow, I confined my review of Beck’s Federalist “translation” to two representative passages that, I felt, demonstrated a lack of understanding of 18^th century English. Both examples were clear paraphrasing errors that either reversed or seriously altered the intended meaning of the original text. It is perhaps the only thing I have ever written for a non-professional audience that actually has anything to do with the expertise that I have spent more than 20 years developing. And the response? “Those who can – do; Those who can’t – teach.”

Mr. Vaughn’s not-exactly-inspiring e-mail is just a very minor front of what I have started to call “The War against Knowing what the Hell You’re Talking About.” The soldiers in this war come from all over the political spectrum—but mainly from the extremes—and share only the propensity to turn expertise into a sin that disqualifies its possessors from political discourse. As an example, consider the following propositions:

·      All claims of global warming are “junk science.” Temperatures increase and decrease all the time, and human beings have nothing to do with it.

·      There is no such thing as being “born gay.” Homosexuality is simply a lifestyle choice.

·      Our Founding Fathers were committed Christians who believed that America was called by God to be the greatest nation on the earth.

These should not be unfamiliar claims to anybody who reads the papers; each one of them has been made in the past month by at least one serious presidential contender. Each of these three statements also shares at least two important rhetorical properties:

·      Each statement requires a certain level of expertise in a scholarly field—respectively, climate science, human psychology, and history. Each statement, that is to say, makes claims that can be supported or refuted by analysis that can reasonably be described as “scholarly.”

·      Each statement is the subject of debate among actual experts. While there are very few legitimate researchers who would accept the extreme versions of these propositions that I have quoted above, there are also very few who would accept their diametric opposites (that climate change is entirely the result of human activity; that homosexuality is entirely genetic, with no environmental component; and that all of the Founding Fathers were atheists). In each case the truth—in as far as scholarly activity is able to get at the truth—lies somewhere in between the two extremes.

But there is a third thing that these statements have in common: they are all non-negotiable parts of certain powerful ideologies that can only accept the most absolute versions of each claim. If human activity responsible, in any way, for climate change, for example, then certain extreme political positions become untenable—and those who have aligned their political fortunes with these positions must either moderate their ideology (unlikely) or dismiss the entire class of people we call “climate scientists” (or historians, or psychologists, or even experts in 18^th century political rhetoric) as part of an evil, ideologically driven conspiracy to suppress the truth.

The War on Knowing What the Hell You're Talking About is, like all wars, waged out of a perceived ideological necessity. With genuine expertise comes a mistrust of absolute statements, simplistic arguments, and uncompromising positions—which is precisely why those who want to build their political careers on absolute, simplistic, and uncompromising ideologies must first wage war on expertise.