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States Rights

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Index to posts in this series

One of the recurrent themes in The Nation That Never Was by Kermit Roosevelt is states rights, the right of the state to make many critical decisions about the rights and privileges of their residents. It seems like a strange way to run a country. How can we think of ourselves as a single nation when there are enormous variations in our rights? It seems contradictory to another recurrent theme of Roosevelt: the desire for unity.

The original English settlements in the US were organized under Charters from the Kings of England. They seem to have been drawn for various political reasons, that is reasons of English politics and money, and without regard to the interests of Indigenous Americans, or of the Colonists. There was no plan. Our original 13 colonies arrived on the scene just like the nations of the Middle East after the Sykes-Picot lines: as an exercise of British colonialism.

The Colonists were subjects of the English Crown, but each colony eventually established its own government. They created courts, legislatures, and administrative bodies usually under a written constitution. One of the big complaints in the Declaration of Independence is that the King is ignoring these institutions. As an example:

He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.

He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.

By 1776, these governments were entrenched. After the Revolutionary War their big fear was that any central government would act the tyrant as had the English Kings. That led to the Articles of Confederation, which created a central government so weak it could not be a tyrant. The Articles were a total failure.

But the dominant vision remained. Colonial leaders wanted a federation of independent states, each with a strong government, and a national government barred from interfering with state governments. The Constitution preserves most of the powers of the individual states, and gave the rest to the central government. They got a central government strong enough to insure peace among these independent units, to ward off external attack, and to establish a suitable business environment. People’s rights as citizens of the United States were limited. Substantially all individual rights sprang from state citizenship.

Even within this context slavery was a paramount issue. The northern states were moving away from it, as was Europe. This was obviously a concern to the Southern states, and the Constitution contains provisions they demanded by the to alleviate those concerns.

Roosevelt says that supporting the demands of the slave states is just the first of many occasions in which unity takes priority over equality in our history. It’s one of the many times the interests and rights of Black people were sacrificed to the demands of unity.

The Constitution was an agreement among the Thirteen Colonies, not an agreement of “We the people of the United States” as the Preamble states. Theoretically the people agreed through their representatives in the state governments, but that seems just as unlikely as the assumptions underlying of social contract theory.

The Founders Constitution preserves the powers of the States except for specific matters, and that is confirmed by the Tenth Amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The powers reserved to the states include determining citizenship in the state, the right to vote, the right to serve on juries, almost all other political rights, and the right to establish and regulate slavery. This is the origin of the notion of states rights: that the state has the right to determine your rights.

Theoretically the Reconstruction Amendments changed the relations between the states and the Federal government. Citizenship in a state was conferred on all residents, and the states didn’t get to decide that question. The rights in the Constitution became enforceable against the states, although that took decades and has a twisted legal history. Voting was a right guaranteed by the federal government. States were prohibited from treating people differently on account of race. Congress was explicitly empowered to legislate these changes. But the Supreme Court refused to allow this to happen. In the Slaughter-House Cases and later cases, the Supreme Court narrowed and nearly neutered the Reconstructions Amendments and restored state power, enabling states to neutralize the supposed gains of Black citizens.

The pre-Civil War arrangement of power continues to the present. In a 2010 case, McDonald v. City Of Chicago, the revanchist Alito said that SCOTUS wouldn’t reexamine the Slaughter-House Cases.

Discussion

Reading these cases makes me wonder what it means to be a US citizen, a point I have raised before, as here. If it’s true that your rights mostly come from the state where you live, the differences among the rights available to citizens can be enormous.

Two of the obvious examples currently are abortion and trans rights. Right-wing state legislators are passing laws to police these bodies directly and by terrifying medical professionals. Another obvious example is the right-wing assaults on education, including the ridiculous Florida laws against teaching subjects the right wing can’t face, like Black history and racism, LGBTQ rights, and critical thinking. This includes books like the two in this series and probably my posts on them.

I think the problem is much wider. The plain fact is that some states take better care of their citizens than others. The clearest example of this is life expectancy. Here’s a list of the states by life expectancy at birth using data from the years 2018-20. The top 5 states, all Blue (New Hampshire at 4 is purple), have a life expectancy of 79.4 years while the bottom 5, all bright Red, are at 72.9. If, as the Declaration claims, you have a right to life, you get nearly 9 more years of it in Hawaii than in Mississippi.

The same is true for education, public safety, and all other aspects of government that are primarily the responsibility of states. That inequality is the direct result of the notion of dual sovereignty that underlies cases like McDonald.

This problem was created by the Supreme Court. SCOTUS decisions about our rights as US citizens start with the Slaughter-House Cases and related cases that tightly narrow the Reconstruction Amendments. At about the same time SCOTUS decided to give rights to corporations just like people. SCOTUS dismantled the Voting Rights Act in direct violation of the Fourteenth and Fifteenth Amendments which give Congress the power to legislate. SCOTUS allows gerrymandering on the flimsiest pretexts and on the shadow docket.

Because whatever rights we have as citizens of the US are in the Constitution and federal laws, SCOTUS has the final say. SCOTUS has proven itself to be a screaming disaster for democracy, and for the supposed principles of the Founders of equality of life, liberty, and the pursuit of happiness.

Problems With The Standard Story Of The Revolutionary War And The Constitution

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Index to posts in this series

The standard story of the origin of our nation tells us that the Declaration of INdependence asserts that all men are created equal and naturally endowed with certain rights including the right to life, liberty and the pursuit of happiness; that the Revolutionary War was fought to uphold these principles; and that the principles are instantiated in the Constitution. We didn’t always live up to those principles but we’ve always worked towards them, and we get closer all the time. P. 9 et seq. In the first post in this series, we saw that the Declaration doesn’t fit well with the standard story. What about the Revolutionary War and the Constitution?

The Revolutionary War

Roosevelt doesn’t think there was a single cause for the War.

Different people sought independence for different reasons, and likely they sometimes said what they thought would advance their cause rather than what they truly believed. History requires interpretation, and a claim to possession of the one singular truth is a hallmark of ideology. P. 55.

The Declaration explains the decision of the Colonists to throw off English rule. It claims that governments derive their just powers from the consent of the governed. The Declaration complains that the King cut off trade between the Colonies and the rest of the world. It claims that the King ignores the laws and even the courts of the Colonists. The King attacks the Colonies directly, keeps a standing army in the Colonies, and quarters troops on the population. The King imposes taxes on the Colonies even though they are not represented in Parliament. The King stirs up the “merciless savages” to attack and murder the Colonists. The only reference to slavery is oblique: the King “… has excited domestic insurrections amongst us….”

No doubt one or more of these claims were a factor for some of the Colonists. The principle of consent itself may have motivated some of them. The listed claims may have motivated others. Perhaps some were motivated by a desire to bring about equality or at least to end slavery (Thomas Paine and Benjamin Franklin, for example.) Roosevelt points out that protecting slavery may have brought others into the war:

There isn’t much evidence supporting the idea that slavery was an issue. Of course just as people say things they don’t believe to advance their cause, others may keep quiet about their actual reasons if they would hurt the cause. There was little to be gained by saying we’re rebelling because we want to enslave people. Roosevelt suggests that

… for some of the Patriots, a desire to preserve slavery was one reason—and maybe a strong one—to declare independence[.] On its face, this is pretty plausible. Just as it seems unlikely that northern Patriots had slavery at the front of their minds, it is unlikely the southern ones didn’t have it at least at the back of theirs. P. 53.

In any event it’s hard to argue that the War was fought over the principle of equality for anyone except white men and especially white men with property. A telling detail: the British offered slaves freedom if they fought for the King. After the War the Colonists demanded the return to slavery of those people. The British refused.

Nor was the Revolution fought to advance a broad principle of equality. Roosevelt says that the statement that all men are created equal is a reference to the fictional state of nature assumed to exist in the beginning. The broader concept of equality would have to wait for the French Revolution and the Declaration of the Rights of Man and of the Citizen in 1789. It asserts that “Men are born and remain free and equal in rights.” This is a statement about real people living in real societies, not imaginary savages in the wild.

The Constitution

The Constitution was necessary because the Articles of Confederation failed to create a strong enough central government. The states were fighting among themselves, refusing to adhere to treaties, imposing trade restrictions and refusing to pay the debts incurred in the Revolutionary War. The preamble states the reasons for adoption of the Constitution, starting with “to produce a more perfect union”, and ending with “to secure the blessings of liberty to ourselves and our posterity.” Roosevelt says that the chief goal of the Constitution was unity, with liberty at the bottom of the list.

If the Constitution were actually about individual human rights, it would include provisions that protected the rights of individuals. It doesn’t. The Founders Constitution restricts the Federal Government’s right to intrude on the specific rights in the Bill of Rights, but the states were free to intrude as much as their own constitutions allowed. It took the 14th Amendment to change that, and to make the Federal Government the guarantor of individual rights against itself and against the states.

As to slavery, there are three provisions that directly or indirectly support its continuation: the Three-Fifths Clause, a provision barring the Federal Government from ending the international slave trade until 1808, and the Fugitive Slave Clause. Each of these cemented the power of the slave states.

The Three-Fifths Clause redressed the population imbalance between the slave states and the rest, allowing slaves to be counted at ⅗ of a person for purposes of calculating the number of Representatives allocated to each state. It worked with the provision giving each state two senators to insure a balance in the legislature between slave and free states. In addition it gave the slave states an edge in the Electoral College with respect to population. Thomas Jefferson would have lost the election of 1800 to John Adams without the Three-Fifths Clause. Ten of the first 12 presidents were slavers. P. 76.

The prohibition on ending the slave trade before 1808 enabled slavers to rebuild their holdings by importation after losses in the Revolutionary War. The British offered freedom to any slave who fought for the King, and thousands of slaves accepted this offer. Others escaped their bonds. The Colonists demanded return of these escapees, but the British refused. The outcome is that slave population rose from 697,497 in the first census of 1790 to 1,191,362 in the 1810 census.

The Fugitive Slave Clause says that slaves who escaped to a free state did not gain their freedom, and that the free state was required to return them to their enslavers. This was a big win for the slavers. Under the Articles, each state determined how it would treat slaves in their territory; in fact that rule remained in effect as to slaves brought to free states by their masters. The Constitution stripped the States of their right to decide the question of slavery as to escapees, which today we would call a violation of States Rights.

As South Carolina delegate Charles Cotesworth Pinckney boasted upon his return from the Constitutional Convention, “We have obtained a right to recover our slaves in whatever part of America they may take refuge, which is a right we had not before.” P. 79.

Discussion

1. The standard story has a central place in our understanding of ourselves as Americans, regardless of other political views. Other nations have national stories, but it seems like we put a lot of emphasis on this story and the two documents, more than citizens of other countries do.

2. One consistent element of our self-image as Americans is that we consent to our government. In prior posts I’ve discussed the theoretical idea of the social contract. That’s not what I’m talking about. We believe that government only works if people consent to it.

Apparently that belief is not shared by a substantial of Republicans today. In this they are like the secessionist Confederates, as Heather Cox Richardson shows.

“We do not agree with the authors of the Declaration of Independence, that governments ‘derive their just powers from the consent of the governed,’” enslaver George Fitzhugh of Virginia wrote in 1857. “All governments must originate in force, and be continued by force.” There were 18,000 people in his county and only 1,200 could vote, he said, “But we twelve hundred . . . never asked and never intend to ask the consent of the sixteen thousand eight hundred whom we govern.”

3. Regardless of what Jefferson meant with the phrase all men are created equal, today we flatly mean that we’re all born equal, we’re all entitled to equal rights, and that one function of government is to guarantee that equality.

Apparently that belief is not shared by a substantial number of Republicans.

America The Can-Do Nation

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Quinn, Rayne, and Marcy have written about what our last election tells us about our future. Like them, I’ve been thinking about this. Here’s some of it.

Quinn

Quinn thinks our Constitution has led us to a cul-de-sac from which we cannot emerge. For a similar view see this by Tom Englehart in The Nation. Quinn doesn’t exactly explain why the Constitution is the problem. I can identify some of the problems: counter-majoritarian provisions like the Electoral College and the unequal representation of population in the Senate; the emphasis on property rights; and the courts which anchor us to a dead past when controlled by ideologues, as they are now.

These are festering problems that stand in the way of using our government to solve problems. [1] If the only problems were Constitutional we could ameliorate them, or even solve them. For example, the National Popular Vote project will effectively eliminate the Electoral College. The Senate problem can be ameliorated by adding DC and Puerto Rico as states, and possibly in other ways.

But each of these Constitutional problems is exacerbated by the efforts of a number of freakishly rich people and their courtiers in academia, media and politics to exploit these counter-majoritarian provisions. For example, a few rich right-wing people have funded a decades-long project to put business-friendly judges on the bench under the guise of incoherent theories of jurisprudence. This problem doesn’t lend itself to a Constitutional solution.

The problems are further exacerbated by the people we elect to office. Trump has demonstrated the power given to the Executive Branch by the Legislative Branch. Spineless politicians flatly refused to control his abuse of office. That doesn’t lend itself to Constitutional solutions. The problem of weaklings can’t be solved by a Constitution.

Rayne

Rayne thinks that whatever the problems with the Constitution might be, the efforts of our fellow citizens to insure a more perfect union are inexorably working. She describes the extraordinary efforts of ordinary people to insist on participating in our society as equals, and concludes that these people prove that our union is strong, and will survive.

At the same time these changes are underway, a small number of us are becoming wealthy beyond all imagination. The share of the national income and wealth accruing to the average American is slowly dwindling. This too is the work of the rich. Their control over our economic discourse assures that their control of wealth and thus of power is not contested, no matter which political party dominates in government or if there is gridlock. And, of course, it can’t be fixed by Constitutional changes.

Marcy

Writing a few days later, Marcy sees the value in both perspectives:

… I think both Quinn and Rayne had important and not inconsistent things to say. Importantly, both focus on the idea of America, pointing to its culture and diversity as something that needs salvaging. Both point to things that need to happen — committed activism and legal changes — for this country to survive.

Marcy thinks that the problem lies in the collapse of the myth of American Exceptionalism. She thinks our nation has been held together by a belief in the story of our exceptionalism.

… Out of [the Constitution] and a whole bunch of myth-making, we created a story that has worked to get Americans to believe in common cause for two and a half centuries.

The idea of American Exceptionalism is that America is a good and decent country, the best country ever. Our sins against others, slaves, indigenous populations, the nations of South and Central America, even our murderous attacks on Vietnam, Laos, Cambodia and Iraq, all are mere venial sins, immaterial blots on our character that have only made us stronger and better.

Marcy thinks that myth was exposed as rotten early in this century, if it ever meant anything real. Trump just clarified that rot, partly by his attacks on immigrants. Our ideal of a melting pot was one thing that made this nation exceptional, she writes. She thinks we need a new and better story of ourselves, one that all of us, all of us, can share.

Ed

The salient thing about the 2020 election is that more than 74 million people voted for Trump, fully aware of his attacks on the Constitution and on democracy itself. Here’s a partial list of his disgusting behavior from Eric Levitz at New York Magazine:

Singularly unconstrained by our polity’s unwritten rules, Trump has exposed many presumed limits on presidential power as polite fictions. The president can, in fact, openly monetize his public power, gas peaceful protesters without provocation, make personal loyalty to the president an official requirement for leading the Justice Department, promise his lackeys presidential pardons if they refuse to cooperate with investigations that threaten his interests, withhold congressionally approved funds in order to coerce foreign governments into smearing his domestic rivals, commandeer U.S. troops and federal property as campaign props, funnel billions in relief payments to favored constituencies without congressional authorization, declare the press an “enemy of the people,” accuse the opposition party of orchestrating an invasion of the United States, and dispossess hundreds of thousands of longtime, legal U.S. residents, among other things. Links omitted.

It’s with this ugly fact about our fellow citizens that we see the connection among all our views. I suppose that among the Trump voters there are a number who just pull the Republican lever, and even some who at least pretend to think his accomplishments are more important than his corruption. Here’s one of the latter, Maureen Dowd’s brother Kevin, excusing the Levitz list as “flaws”. But far too many of them are racists, white supremacists, truculent gun-toters, conspiracy theorists, religious fanatics, misogynists, xenophobes, and Ayn Randians; all of them infused with a sense of victimhood because their disgusting “opinions” aren’t respected by decent people.

The response to Trump’s loss by his voters is even more astonishing. Politicians continue to kowtow to Trump, because they hope to profit from whatever grift Trump is running. Or maybe it’s a justified fear of the monster they’ve created. A solid minority apparently believe Trump’s lies about the election and every other lie he tells. It’s scary and crazy and upsetting and ….

Marcy suggests that we need a new story to replace the absurd idea of American exceptionalism. Here’s my suggestion.

The Can-Do Nation

I suggest we recognize something that actually characterizes us as a nation: we are a can-do people. As Quinn pointed out, many of the best things we have accomplished are things done by us as private citizens. Think of all the inventions we learned about in grade school: the cotton gin, peanut butter, rayon, and countless more, all organized and accomplished by individuals. But theses individuals were not all working in solitude. Many worked in companies or universities, The government organized many of the things necessary to the creation, and put its efforts behind many of them. That includes the railroads, the airplane business, the Manhattan Project, the organization of war materiel production in WWII, the Apollo Project, the internet, and now the vaccines for Covid-19.

That vaccine project reminds us that when we put our energies into a project we can accomplish great things.

In last 50 years, somehow we became the can’t-do nation. We lack the political cohesion to solve big problems. We just let them fester and get worse. Look at our infrastructure, climate disasters, our education system, our health care system, our massive private debt, our disgusting inequality, our social ills, and our crumbling national purpose.

I’m sick of hearing from the Republicans that we can’t do anything about our problems.

We are the can-do nation. We are a nation of people who love a good problem, love solving hard problems, and have the brains and ambitions to do big things.

We are the Can-Do Nation!

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[1] This is the point of my series on The Public And Its Problems by John Dewey.

From Flickr, Creative Commons License

The Nonmoderns

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Posts in this series. The first posts in this series discuss some of the main terms used by Bruno Latour in We Have Never Been Modern. The book defines ours as the age of the Moderns, as contrasted with the Premoderns who came before; that’s the subject of the previous post. In this post I discuss Latour’s view of the conceptual underpinning of the Moderns, and his proposal to amend that constitution for Nonmoderns.

Latour describes the conceptual basis of the moderns by stating what he calls its constitution. The meaning of a constitution is its guarantees. Here are the four guarantees of the modern constitution, taken from figure 5.2, Kindle Loc. 2834:

The first guarantee is that Nature is transcendent, that is, it cannot be affected by us humans. At the same time, it is immanent, in the sense that once we discover something about nature, we can use it as we see fit. The second guarantee is that society is immanent, meaning we create it and can modify it, but at the same time it transcends any individual, and so it is at the same time transcendent. The third guarantee is that nature and society are totally separate things. Neither affects the other. The fourth guarantee is that the Crossed-Out God is present in our hearts for the purpose of deciding on moral issues that confront us, especially when they involve conflicts between society and nature.

Latour says that the hallmark of modernity in action is the combination of the conscious work of purification which proceeds from the third guarantee, and the unacknowledged creation of quasi-objects. That is underwritten by the third guarantee, which essentially says that everything is either culture or nature, society or science. By implication, there is no space for quasi-objects which are combinations of these two separate things.

I won’t go into all of the implications of this set of guarantees, which Latour works out over Chapters 3 and 4. This part of the book shows how pervasive these guarantees are, and how deeply we rely on them in the way we structure our approach to studying both science and nature and the way we create our society. He also discusses the reactions to modernity by the antimoderns and the postmoderns.

The antimoderns firmly believe that the West has rationalized and disenchanted the world, that it has truly peopled the social with cold and rational monsters which saturate all of space, that it has definitively transformed the premodern cosmos into a mechanical interaction of pure matters. But instead of seeing these processes as the modernizers do – as glorious, albeit painful, conquests – the antimoderns see the situation as an unparalleled catastrophe. Except for the plus or minus sign, moderns and antimoderns share all the same convictions. The postmoderns, always perverse, accept the idea that the situation is indeed catastrophic, but they maintain that it is to be acclaimed rather than bemoaned! They claim weakness as their ultimate virtue, as one of them affirms in his own inimitable style: ‘The Vermindung of metaphysics is exercised as Vermindung of the Ge-Stell’ (Vatimo, 1987, p. 184). Kindle Loc. 2475. [1]

The antimoderns are reactionaries. Latour dismisses the postmoderns as useless. [2] Latour calls for us to become nonmoderns, disavowing the Constitution of the Moderns and the anti- and post- criticisms. He proposes a new set of constitutional guarantees.

The point of this new constitution is to make explicit what we are actually doing. The first Nonmodern guarantee recognizes that the form of our society is in part generated by the things we create, including quasi-objects. Scientific inquiries are driven by what we as a society need or would enjoy far more than by scientists seeking knowledge for its own sake. The second Nonmodern Guarantee recalls the first two guarantees of the Modern Constitution, but recognizes that the transcendence of nature and the immanence of society are related.

The third Nonmodern Guarantee tells us that our society and the nature we are studying are a continuous whole with those of out forebears and of other existing and previous nature/cultures. We are not distinct and new, just the same human beings with different and shinier stuff and some cool new ideas. The fourth Nonmodern Guarantee says that the process of hybridization should be democratically controlled. In a nice turn of phrase, Latour refers to this democracy as the Parliament of Things.

Discussion

The first three Nonmodern Guarantees seem to me to make the processes of society explicit. We use science to create stuff. The processes of science are not some black box, but something we do for a purpose. Each breakthrough leads to exploitation, and it’s the exploitation that leads to quasi-objects. To take an example, the creation of the transistor was a breakthrough, but the exploitation of the breakthrough has recreated our society in fundamental ways.

The Fourth Nonmodern guarantee seems to me to be the most challenging. The founding principle of the US Constitution is the protection of property rights. One of those rights is ingrained in us from birth: I can do whatever I want to with my property. Only grudgingly do we allow laws to restrict that freedom, and not infrequently the Supreme Court strikes down those laws. Let’s examine what I hope is a neutral example: the dramatic increase in the use of liquid soap.

On one hand, liquid soap has benefits. It is easy to use, and possibly more effective than bar soap. It’s easy to replace and clean up in public lavatories, and it encourages and speeds up hand-washing. That’s also the case in medical facilities and kitchens.

On the other hand, liquid soap uses lots of water and one-time plastics. The water has to be purified, then shipped, so there is an increase in the use of fossil fuels for those purposes. One-time use plastics are made out of fossil fuels, have to be moved several times before final production, and then shipped. Then they wind up in waste dumps.

Liquid soap has become the norm for many of us, so much so that bar soap is becoming rare. Fun fact, the bar soap I like, Trader Joe’s Green Tea soap, has disappeared. I don’t think that was a total market choice. I think it was driven by capitalism’s urge to make money. It’s an example of the US way: Lever Brothers and Colgate-Palmolive can do what they want to with their money, including encouraging the use of liquid soap. They don’t have to and don’t care about any of the negative consequences of their actions. They make their decisions based strictly on the amount of money they can make.

The Fourth Nonmodern Guarantee says that we as a society have a right to weigh the positive and negative consequences of the uses of property. That’s a bold claim in the case of liquid soap. It’s a crucial claim in the case of climate change.

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[1] I have no idea what that last quote means. I tried to figure it out, but I can’t, and strangely I don’t care.
[2] Here’s a taste:

The postmoderns have sensed the crisis of the moderns and attempted to overcome it; thus they too warrant examination and sorting. It is of course impossible to conserve their irony, their despair, their discouragement, their nihilism, their self-criticism, since all those fine qualities depend on a conception of modernism that modernism itself has never really practised. Kindle Loc. 2687.

Waiting

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One of our dinner guests, a Parisian, discussing the politics of France, said something like “we feel like we are all waiting.” She explained that the economy is doing will by people with jobs, and the French safety net is strong enough to quell serious problems among the unemployed. But no one is inspired, and the various parties that have dominated French politics are moribund; they haven’t had a new idea in a long time. And so “we are waiting.” The conversation moved on, but that stuck with me. Waiting for what? I also feel like I’m waiting, at least for Trumpian Motion, that hurricane of corruption, lies and intentional cruelty, to subside. But that’s not what our guest was talking about, and it doesn’t explain my feelings either.

In context, I think the problem she described is a feeling of disgust for the French political parties. Francois Hollande, the previous president and a Socialist, was a profound disappointment and didn’t run for reelection. His successor finished a dismal fourth in the first round. The conservative, Francois Filon, was mired in a make-work scandal for his family and finished third. The two who survived to the second round were Marine Le Pen, the right-wing crazy, and Emmanuel Macron, a rich man who started his own party, La Republique En Marche (France On the March, shades of MAGA). Macron won in a landslide, and Le Pen’s party seems to have fallen to schism.

Macron is “business-friendly”, meaning neoliberalish in French terms. He has pushed reforms to the labor laws that are loathed by workers and the subject of massive resistance. Nobody except the rich thinks this will fix anything. The other parties seem irrelevant to our guest. That means there is little to look forward to on the part of the large French left. Something has to change, and she’s waiting.

I too think our party system is moribund. Neither legacy party commands 30% of the voters. The last election was a contest between a competent Democrat and a corrupt cruel liar. We don’t have majority rule here as they do in France, so the corrupt cruel liar was elected.

Oddly in a recent column in the New York Times, David Brooks seems to recognize that this is a problem, and argues for multi-member House districts and ranked-choice voting. Brooks thinks something needs to change, and so do I. We can’t go on like this. I mean that in a broader sense than Brooks, of course. I think we can’t keep going with a system that allows the minority to run the country, especially a racist minority, a misogynist minority, a fundamentalist minority, a cruel and stupid minority. Oops. I called them stupid. We aren’t supposed to call them stupid. It’s as bad as saying rat-fucker.

This is a huge problem. I’ll just address two parts of the Constitution that are problematic. One is our voting rules, the other our worship of private property. Aside from Republican skill at voter suppression gerrymandering and maybe worse, there are Constitutional provisions. Every state has two senators. The 22 smallest states have a total population less than California using Census Bureau estimates for 2017. They have 44 senators. Using the filibuster, it only takes 21 States to stop any legislation. Even without the filibuster, it takes 26 states to stop any legislation. The smallest 26 states have a population of about 57 million, less than the population of California and the New York metro area. Under winner take all rules, the minority can control the country with say 20 million voters, about 6% of the population. How many people in the US are like the people who turn out for Trump’s rallies?

Now consider the protection of property. One central feature of the Constitution is that it is designed to protect property rights. The most obvious parts relate to the protection of the interests of slavers, starting with the Three-Fifths Clause. Doubters should read this article. It also makes a broader point about protection of property, and says that the slavers had a disproportionate effect on US public policy in its early years. On this view, we have always been governed by a minority.

The Fifth Amendment is another obvious property protection: the Takings Clause bars governments from taking property without “just compensation”. All the rights of the slavers and the thinly populated states are protected by the provisions regarding amendments to the Constitution which make it possible for the tiny states and slave states to kill any amendment.

This love of property has become an obsession with Americans. “You Can’t Tell Me What To Do With My Property” should be the National Motto. One tiny bit of evidence of this is the ugliness of most US cities and towns, because people have no interest in the way their communities look if it means they can’t hang ugly signs and pave the countryside to build a Walgreen’s on every corner not occupied by a Taco Bell.

Another manifestation is the idea that taxation is theft as libertarians and not a few others say. Not that it really matters what people think, because Congress is afraid to tax anyone ever. In fact, historically Congress does what the filthy rich want and little else. Because, after all, protecting property is the point of the Constitution.

To top all that off, a large part of the population despises the libtards. No one knows how big that group is, because no one polls the question in that form. In recent polling, the percentage identifying as conservative is trending down while the percentage identifying as liberal is trending up, but the former leads the latter by 9%; moderates are also slipping down. At the end of 2017, conservatives and moderates were each at 35%, while liberals were at 26%. Of course, the operational definitions of all three groups have badly slipped to the right over the years. It doesn’t much matter right now, the conservatives can block any change.

Even if the Democrats start winning, which given their allegiance to neoliberalism is not a sure thing, the crazy right has made it clear that they will howl and throw feces at any action the Democrats might try and we have no reason to think the Democrats won’t cave and do the very least possible as they have done for decades.

So, here we are. Stuck. Interesting question: How long will the majority consent to be governed by the minority? Famous quote from Herb Stein: “If something can’t go on forever, it won’t.” I’m waiting to see how that happens.

Waving the Constitution at Those Who Ignore It

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I waved my pocket copy of the Constitution at Nancy Pelosi on July 19,2008. Khizr Khan waved his at Donald Trump on July 28,2016.

I waved my pocket copy of the Constitution at Nancy Pelosi on July 19,2008. Khizr Khan waved his at Donald Trump on July 28,2016.

In real time Thursday night, I caught only the final few seconds of Khizer Khan’s powerful speech at the Democratic National Convention in Philadelphia. Through the rest of Thursday and Friday, more and more of the details of the speech flitted through my Twitter stream and then my heart was warmed when I saw photos of Khan pulling out his pocket copy of the Constitution and waving it at Donald Trump. Almost exactly eight years ago, I had done the same thing, waving my pocket copy at Nancy Pelosi, who then was Speaker of the House and appearing at Netroots Nation in Austin.

Khan was confronting Trump about his campaign in which he had noted that “Trump consistently smears the character of Muslims. He disrespects other minorities, women, judges, even his own party leadership. He vows to build walls and ban us from this country.” (Quotes come from this copy of Khan’s transcript.) Khan then continued, presumably in reference to banning Muslims from the US: “Donald Trump, you are asking Americans to trust you with our future. Let me ask you: Have you even read the U.S. Constitution? I will gladly lend you my copy.”

In my case, as I noted here and then in a follow-up a couple of months later here, I was urging Pelosi to act on the clear evidence that the George W. Bush administration had committed war crimes including torture. Sadly, as we now approach the end of two terms with Barrack Obama as President, no significant Bush Administration official has faced any consequences for the torture and other war crimes carried out in our name. Further, despite clear-cut evidence of many crimes by banksters in the massive foreclosure fraud crisis that dispossessed a significant proportion of the US middle class, no significant prosecutions have been undertaken by the Department Formerly Known as Justice.

Khan is so right to wave the Constitution in Trump’s face. Note that a central feature at recent Trump rallies has been endless chanting of “Lock her up”, calling for prosecution of Hillary Clinton for crimes associated with her use of a private email server (and presumably also for Benghazi!!1!) while serving as Secretary of State.

And that is where I see potential huge danger for our dear Constitution. We already have seen failure to prosecute crimes of tremendous impact to the world and to ordinary citizens here at home. Should Trump win, how could a “Justice Department” that already has shown a willingness to ignore the law in response to the desires of two presidents in a row refuse Trump’s insistence that Clinton be incarcerated through massive overcharging of any technical violation (if it even occurred, which is a huge stretch on its own) on the email front and totally fabricated charges on Benghazi.

Thank you, Khizr Khan for reminding our country that we are founded on what should be a sacred document that lays out how we should establish justice. And thank you for the sacrifice of your son Humayun, who was lost while taking part in an ill-advised war in which many of the war crimes discussed above were carried out.

Here is the full video of Khan’s speech. Standing next to him is his wife, Ghazala Khan.

Pakistan’s National Assembly, Senate Pass Bills Establishing Military Courts

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On Sunday, Dawn’s editors knew that Pakistan’s lawmakers would enact the bills needed to establish military courts and published a stern condemnation of the move in an editorial with the telling title “A Sad Day”:

In the end, our political leadership proved unable to defend the constitutional and democratic roots of the system or resist the generals’ demands.

Pakistan is to have military courts once again. To establish them the politicians have agreed to distort the principle of separation of powers, smash the edifice of rights upon which the Constitution is built and essentially give up on fixing decrepit state institutions.

The editors pointed out how the efforts to establish the military courts could have been put to better use:

Had the same time and effort spent on winning consensus for military courts gone into urgent reforms and administrative steps to fix the criminal justice structure, the existing system could have been brought into some semblance of shape to deal with terrorism.

Sadly, the political leadership has abdicated its democratic responsibilities. Surrender perhaps comes easily.

For a country that has been beset by repeated military coups, the Dawn editors rightly note the risk in granting more powers to the military.

The votes on the bills were unanimous among those present and voting today, but Imran Khan’s PTI party and religious parties abstained:

The National Assembly and Senate on Tuesday passed the 21st Constitutional Amendment Bill 2015 and Pakistan Army Act 1952 (Amendment) Bill 2015.

The Constitutional Amendment Bill was passed with 247 votes – 14 more than the required two-third majority in the NA, and 78 votes out of 104 were passed in the Senate.

The amendment – aimed to set up special courts to try militants – was not opposed by any member present inside the house. Lawmakers from Pakistan Tehreek-e-Insaf, Jamaat-e-Islami, Jamiat Ulema-e-Islam-Fazl and Sheikh Rasheed abstained from voting – in both the NA and the Senate.

Each clause of the bill was voted for separately. The bill is now expected to be signed into law by the president this week.

This move by Pakistan, coming in the wake of the devastating Taliban attack on a military school in Peshawar, is drawing obvious comparisons to US moves to establish military commissions at Guantanamo for trying terrorism suspects. Sadly, Pakistan has been just as reckless in making the move as the US was. Had they taken the time for a review of the outcome of US military commissions, they would have found (pdf) that while about 500 suspects in terrorism trials have been convicted in US federal criminal courts, the vaunted military commissions have yielded only 8 convictions since 9/11. On the occasion of the conviction in federal court last year of Osama bin Laden’s son in law, Lyle Denniston had this to say:

As long ago as 1866, just after the Civil War, the Constitution stood for the principle that, if the civilian courts were open and functioning during wartime, trials of civilians charged with crimes of war should be tried in those courts, not in military tribunals. That was the Supreme Court’s decision in the case of Ex parte Milligan.

The Court’s lead opinion back then said: “No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false.”

[We can separately note that Denniston’s quote from Ex parte Milligan seems to apply just as well to the excuses brought forth in favor of torture as they do for the establishment of military commissions.]

Perhaps the only good aspect of Pakistan’s move to establish military courts is that the bills carry a two year sunset provision. Sadly, though, given the current cowardly status of Pakistan’s lawmakers, it would not be surprising for regular two year “extensions” of the laws to continue in perpetuity. Just like our endless extensions of unconstitutional wiretapping under FISA.

For John Kerry’s State Department, Constitutions Matter Only on One Side of Durand Line

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John Kerry has made not one, but two trips to Afghanistan to pursue his extra-constitutional “power sharing” agreement between Ashraf Ghani and Abdullah Abdullah that creates the completely new position of chief executive within the Afghan government. As was easily predicted, that plan now teeters near total failure. Clearly, Afghanistan’s constitution means nothing to John Kerry in his pursuit of US goals in that country.

In the daily press briefing yesterday at Kerry’s State Department headquarters, spokesperson Marie Harf had this remarkable exchange with a reporter, where we suddenly see that next door, in Pakistan, the constitution is of prime importance*:

QUESTION: One more quickly. What Imran Khan is saying and others in the country, including hundreds of thousands or millions of people in Pakistan, they are not happy with the current government, and Imran Khan is saying that those elections by Prime Minister Nawaz Sharif were fraud and fake and they were not legitimate or he’s calling that he should step down. That’s what I’m asking. I’m saying —

MS. HARF: He’s the prime minister, period.

QUESTION: Thank you.

QUESTION: So you’re not calling for Prime Minister Sharif to step down?

MS. HARF: I in no way am calling on that.

QUESTION: Does the United States support regime change in Pakistan?

MS. HARF: We support the constitutional and electoral process in Pakistan, which produced the Prime Minister of Nawaz Sharif. That was a process they followed, an election they had, and we are focused on working with Pakistan. And we do not support any extra-constitutional changes to that democratic system or people attempting to impose them.

How about that? In Pakistan, the State Department does “not support any extra-constitutional changes to that democratic system or people attempting to impose them”, while just across the border in Afghanistan, the Cabinet member in charge of the State Department is putting a huge amount of his own energy into an extra-constitutional change to the democratic system there.

Just three days ago, Kerry included this snippet in his letter of congratulations to Afghanistan on their independence day:

With millions of Afghans across your great nation braving violence and intimidation to cast their ballots, it is critical that all parties honor those voters’ aspiration for a democratic, peaceful transfer of power that unifies the country. We will continue to strongly support the democratic process and the agreement reached between the two candidates concerning the formation of a national unity government.

So Kerry claims he supports the democratic process and yet he wants it to produce a “national unity government” that is described nowhere in the constitution that enabled the voting. His real aim appears near the end of the letter:

With a timely resolution of the election and the signing of a Bilateral Security Agreement, I am confident that the next year will open an important new era in U.S.-Afghan relations.

For John Kerry, as well as the rest of the US government, it always has been and always will be about keeping those troops going (and those military contracts running).

Postscript: Did you notice the *asterisk above? I felt compelled to add it when I said that for the US, the constitution in Pakistan is of prime importance. There is a huge exception to that statement. The democratically elected government of Pakistan, whose constitutionality Harf is praising in her briefing, means absolutely nothing to the US when the US wishes to carry out a drone strike inside Pakistan’s borders, even when that same democratically elected government has made it clear that such actions are a violation of sovereignty.

Provide For the Common Defense or Go Galt?

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We awake to a changed and battered country this morning. CNN’s headline at CNN.com currently blares “Millions wake to devastation”, while AP gives us a state-by-state rundown of the effects of Hurricane (and then Superstorm) Sandy. At a time, though, when the natural American response is to help one another, we have perhaps the strongest example of what is at stake next Tuesday as we go to the polls for a Presidential election. Here is Mitt Romney in the Republican debate hosted by CNN:

[youtube]http://www.youtube.com/watch?v=RTSHxR_4rc8[/youtube]

The idea that an “immoral” FEMA should be disbanded in favor of private sector disaster response did not go over well with the editorial staff of the New York Times. From this morning’s editorial:

Over the last two years, Congressional Republicans have forced a 43 percent reduction in the primary FEMA grants that pay for disaster preparedness. Representatives Paul Ryan, Eric Cantor and other House Republicans have repeatedly tried to refuse FEMA’s budget requests when disasters are more expensive than predicted, or have demanded that other valuable programs be cut to pay for them. The Ryan budget, which Mr. Romney praised as “an excellent piece of work,” would result in severe cutbacks to the agency, as would the Republican-instigated sequester, which would cut disaster relief by 8.2 percent on top of earlier reductions.

Does Mr. Romney really believe that financially strapped states would do a better job than a properly functioning federal agency? Who would make decisions about where to send federal aid? Or perhaps there would be no federal aid, and every state would bear the burden of billions of dollars in damages. After Mr. Romney’s 2011 remarks recirculated on Monday, his nervous campaign announced that he does not want to abolish FEMA, though he still believes states should be in charge of emergency management. Those in Hurricane Sandy’s path are fortunate that, for now, that ideology has not replaced sound policy.

A common refrain for the Galt crew is that they want to go back to the basics of the Constitution. And yet, here is the Preamble:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

The simple truth is that if we wish to provide for the common defense and promote the general welfare in the face of such a huge storm, then a Federal agency coordinating the preparations before the storm and the response afterwards is the most efficient plan. Putting disaster capitalists in charge instead would only lead to many more deaths and huge delays in response times.

As the country responds to this terrible blow from the storm, it is worth considering whether we wish to go back to the ineptitude of the Katrina response (or worse) or if we want to work together for the common defense through a properly funded FEMA.

Cowboys, T. Jeff’s Declaration, Bond Bitchez and Teh Porn Stash

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Hi there buckaroos and buckarettes. Sometimes a man has gots to do what a man has gots to do. Now is one of those times. Marcy up and penned this most awesome cutting, biting, truth to power wonderful post. And then she went and buggered the pooch with a sandpapered, plain vanilla, non confrontational milquetoast title.

Bleeeccchhh.

Responsible blog wingman and all that I am, I immediately pointed out the title should be “The Declaration of Independence, Obama’s Presidential Kill Cards and the Porn Stash”. Same old story; same old song and dance. Nobody ever listens to good old bmaz. Instead we went with the Wolf Blitzer/Jonas Brothers/Disney Lite title of “Keep Your Declaration of Independence Right Next to Your Assassination Cards”.

Yawn.

Come on, you just know that Michael Leiter, the designated human kill switch of the Obama Administration, keeps those two critical reference materials – the Declaration of Independence and the US Government’s deck of snuff cards – in the safest, most discreet and yet accessible, location to his bedroom. You know, right where he keeps his porn stash.

Now what is really odd about this report, and does not register at first blush, is that Leiter has mentally honed in and lasered his focus on the Declaration of Independence rather than the Constitution. Seriously; think about it. It is an incredibly telling difference.

Here is the opening text of the aggressive and intentionally somewhat in your face Declaration of Independence, the forward cry and belligerent marking of territory by a new nation staking its claim in the world:

When, in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the laws of nature and of nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

Then ponder the respectful, moral and enlightened reach of the Preamble to the Constitution, the hallowed document that Leiter and Obama ought to be paying attention to when deciding to remotely snuff human lives (including, by all reports, those of American citizens) without the protection of due process and by the cold mechanical death by drone:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

The Declaration is an affirmative statement of manifest authority; the Constitution is a self imposed restriction of manifest authority and protection of due process in the face of it. So, there are a lot of issues with this whole gig surrounding Leiter and his nighttime is the right time to kill thing. And people were worried about Hillary getting a 3 am call; seems all so quaint now.

Oh, and by the way, T. Jeff it has now been concluded made a mistake in drafting the Declaration of Independence, and had it even more authoritarian than anybody ever knew:

Preservation scientists at the Library of Congress have discovered that Thomas Jefferson, even in the act of declaring independence from England, had trouble breaking free from monarchial rule.

In an early draft of the Declaration of Independence, Jefferson wrote the word “subjects,” when he referred to the American public. He then erased that word and replaced it with “citizens,” a term he used frequently throughout the final draft.

The Library released news of the struck word for the first time on Friday.

Jeebus, even dead presidents and founders are going rogue.

The other quite random thought I cannot pry from my beady little mind is the slathering coverage of the super hot, most awesomest, Redhead Rooskie Spy Babe, Anna Chapman. At first I could not figure out the singular fascination of the press with this chick who is being billed as the new “Bond Babe”.

Then it dawned on me. Chapman is hot, red, sultry and enticing. And she looks eerily like a young and come hither Maureen Dowd. Come on, you just know Howie Kurtz and his penis er the media is thinking that.

Well, that is yer friendly Friday Night Emptywheel Trash Talk. New and improved with no sports! Eh, it will be Favre season soon enough, so do not despair. Tonight’s musical interlude is a little slice of the old west I know and love. Actually, I like both kinds of music, country and western. The incomparable Phil Lynott and Thin Lizzy with The Cowboy Song. Oh, and the Boys Are Back.

Happy trails pardners!