Unoriginal Sin: Part III

Yeah, I thought it was going to be a two-parter too. Part I starts here if you are just seeing this.

In my previous post, I wrote that it was Robert Bork rather than Antonin Scalia who had “put Originalism on the map.” To clarify, I did not mean to imply that Bork had originated Originalism either – only that he put it in the public eye and made it a political football in modern times.(1) After all, I had acknowledged that the founders had both anticipated and warned against the temptation Originalism and it did not take until modern times for anyone to take the bait.

Take Justice Robert Taney’s infamous Dred Scott decision in which he said that African Americans were “so far inferior that they had no rights which the white man was bound to respect,” and thus, “the negro might justly and lawfully be reduced to slavery for his benefit.” To Taney, blacks were never considered citizens by the founders and therefore could not sue in court. That was the basis of his decision - that we were bound by the prejudices he projected on the founders.

Abraham Lincoln disagreed. Echoing one dissenting opinion, he pointed out that free blacks could vote in many states when the Constitution was ratified. He argued that blacks’ participation in the Constitution’s ratification meant that they were also entitled to its protection. As Lincoln said, "It is grossly incorrect to say or assume, that the public estimate of the negro is more favorable now than it was at the origin of the government." On the contrary, Lincoln believed that the status of blacks had drastically deteriorated.(2)

To Lincoln's ratification argument I could add any number of anti-slavery quotes from our founders – including ones that affirm the humanity of blacks in no uncertain terms. Benjamin Franklin reasoned that freeing slaves was not enough: White society had a duty to help freedmen get acclimated and established as well – including, “To instruct, to advise, to qualify those, who have been restored to freedom, for the exercise and enjoyment of civil liberty.” In other words, for the practice of citizenship.

While there certainly was plenty of racist legislation as well, it varied by place and there was frequent change.(3) The point being is that there was never any national consensus. The issue was always in dispute. Justice Taney had made an Originalist argument. And, like most Originalists, he had grounded it on faulty, cherry-picked history - on what he imagined was original intent:

In the opinion of the court, the legislation and histories of the times, and the language used in the Declaration of Independence, show that neither the class of persons who had been imported as slaves nor their descendants, whether they had become free or not, were then acknowledged as a part of the people, nor intended to be included in the general words used in that memorable instrument. It is difficult at this day to realize the state of public opinion in relation to that unfortunate race which prevailed in the civilized and enlightened portions of the world at the time of the Declaration of Independence and when the Constitution of the United States was framed and adopted. But the public history of every European nation displays it in a manner too plain to be mistaken.

Note the phrase “unfortunate race.” The bogus sympathy is significant. It sounds oddly modern. It reeks of the Bell Curve’s “We’re not racists, but we have to follow our data.” But in both cases, the data was junk. Pat Buchanan was far more blunt in his defense of apartheid South Africa. In his syndicated column, he mocked the concept that there was anything wrong with white supremacy. "Where did we get that idea? The Founding Fathers did not believe this.” By contrast, Justice Taney almost seems to claim he is more evolved - or at least that his times were: "It is difficult at this day to realize."

Some take Taney's tone at face value because he had freed his slaves when he was younger, but his heart had hardened since. Ultimately, his tone was a result of gentility, not sympathy. Of course, this made his argument all the more dishonest because his calcifying attitudes mirrored much of the country's.

But putting Taney's comparatively soft tone and enlightened affectation aside, he was clearly making an Originalist argument: The founders have spoken so our hands are tied. As Sol Wachtler wrote in the Touro Law Review, Taney sounds like he is addressing the Federalist Society. Indeed, Taney does:

It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or lawmaking power, to those who formed the sovereignty and framed the Constitution. The duty of the court is to interpret the instrument they have framed with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted.

Towards the end of his decision, Taney hit all the previous beats - the phony sympathy, suggesting public attitudes had evolved, and claiming the court had no legal remedy - all in one run-on sentence:

No one, we presume, supposes that any change in public opinion or feeling, in relation to this unfortunate race, in the civilized nations of Europe or in this country, should induce the court to give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted. 

Thus we must assume the worst of the founders and rule accordingly. "Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day." Seriously, Rodger Taney wrote just like Robert Bork.

Of course, Bork thought Taney's decision violated Origialism because - drum roll, please - the Constitution does not explicitly grant any right to own slaves. This argument was so absurd and dishonest that even other Originalists had balked at it. Yes, the Constitution certainly skirted the word slavery, but it recognized that institution in a range of ways from the three fifths compromise to the fugitive slave clause. The South insisted on special protections for slavery and refused to ratify the Constitution without them. Preserving slavery was their precondition for participating in every national endeavor from the Declaration of Independence on forward. And, after the Civil War, white supremacy took its place.

Moreover, in the same book that Bork made this argument, he wrote that original intent can be divined from "secondary materials, such as debates at the conventions, public discussions, newspaper articles dictionaries in use at the time, and the like." Those very documents would confirm that the founding fathers were talking about slavery. Of course, as I wrote before, Bork often ignored these materials. Most Originalists do: It's judicial fundamentalism. Bork's dishonesty mirrored Taney's in every way.

I wrote a lot about Robert Bork in my book because his Originalism encapsulates conservative thought rather aptly. Conservatives are authoritarian "traditionalists" who are militantly ignorant of history. When they insist we must submit to the dead hand of the past, they mean we must submit to whatever their elastic, reactionary imaginations can manufacture. As I wrote in the first chapter:

The Tea Party is simply Originalism applied to economics. Hence the tricorn hats they sport at protests. Indeed, Originalism is their entire motif. And Robert Bork’s martyrdom at the hands of the “liberal elite” fits the Tea Party’s victim script perfectly. It is symmetry in symbolism.

It's all there: the weaselly tyranny of "small government" advocates, the persecution fantasy of the privileged, the fear of liberalizing attitudes - real or imagined, you name it. As George Orwell had warned in his famous dystopian novel 1984, “He who controls the past, controls the future.” That's their game plan. For conservatives, history is a creature of convenience. The accuracy of their past is not as important as your loyalty and obedience. It's mythology management. 

Thomas Jefferson thought each generation must get free of the dead hand of the past. Thus, original intent says, "Forget original intent." One good reason for that is the dead hand of the past is frequently the invisible hand of self-interest. And that has not done America much good.

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(1) I was quite surprised to see that few articles on Antonin Scalia’s passing bothered to mention Robert Bork. Apparently, today’s corporate press employs lazy mother fuckers who have the collective memory of a fruit fly because actual journalists cost too much. Memo to the media: The method of interns using Google is insufficient. You still need knowledgeable people who know what keywords to enter.

(2) The idea of deterioration was a theme. As Lincoln ruefully wrote a friend: "Our progress in degeneracy appears to me to be pretty rapid. As a nation, we began by declaring that 'all men are created equal.' We now practically read it 'all men are created equal, except negroes.' When the Know-Nothings get control, it will read 'all men are created equal, except negroes, and foreigners and Catholics.' When it comes to this I should prefer emigrating to some country where they make no pretense of loving liberty - to [Tsarist] Russia, for instance, where despotism can be taken pure, and without the base alloy of hypocrisy."

- Abraham Lincoln, Collected Works of Abraham Lincoln, ed. Roy P. Basler (New Brunswick, NJ: Rutgers University Press, 1953), 2:323.

(3) Shortly after the American Revolution, slave codes – which also policed the behavior of free blacks – were loosened. Tobacco’s profitability was dropping and the practice of slavery was conspicuously inconsistent with the ideals of the revolution. Many people believed that slavery was dying off. Northern states abolished slavery outright during this period, while many in the South took advantage of the loosened laws to voluntarily free their own slaves. Then, Eli Whitney invented the cotton gin, restoring slavery’s obscene profitability. Slavery’s apologists went from calling it a necessary evil to calling it a positive good authored by God. (The Enlightenment was over and America was becoming less secular as well.) Money talked and legislatures listened. Not only were slave codes re-tightened, abolitionist talk was outlawed throughout the South. Criticizing slavery in any way - as Thomas Jefferson had - could get you arrested. Racism and authoritarianism accordingly worsened.

Unoriginal Sin: Part II

Let's acknowledge the elephant in the funeral parlor.

Obviously, this two-parter (now three) on Originalism was prompted by the recent death of Supreme Court Justice Antonin Scalia. There was no advocate of Originalism on the court more conspicuous or malicious than Scalia. Thus, his name became synonymous with this spectacularly dishonest doctrine.

But Justice Scalia did not originate Originalism. Indeed, he did not even put the idea on the map. That dubious distinction goes to Robert Bork, who Ronald Reagan had sought (and fortunately, failed) to put on the court. Un-fortunately, Bork became a martyr in conservative lore, which helped pave the way for other conservative appointments - like Antonin Scalia.

I talked a lot about Robert Bork in my book because his hostility to liberty and equality were legendary. This was valuable to me because my thesis was that conservatives dislike the three interdependent Enlightenment ideals of liberty, equality, and democracy that America was founded on. Bork argued that liberty and equality had both gotten out of control – while contradictorily arguing that they were locked in a zero-sum game. He never really reconciled this.(1)

Moreover, Robert Bork was what I called “a treasure trove of profoundly unpatriotic thought.” He believed that “current liberalism’s rot and decadence is merely what liberalism has been moving towards for better than two centuries.”(2) In other words, since our nation’s founding. And what is liberalism? Bork wrote, “Liberalism does not vary; it is always the twin thrusts of liberty and equality, and they never change.” Of course, for someone writing a book entitled Conservatism is Un-American, Bork's works comprise a horde of rhetorical gold that cannot be ignored. Talk about The Tempting of America.

And I am not twisting Bork’s words: He explicitly cites the American Revolution and the Enlightenment. “The idea of equality began to undergo considerable and worrisome change soon after its enshrinement in the Declaration.”(3) Yes, people started applying it – a logical result, especially since we had complained so bitterly of English tyranny.(4) And here is Bork on individual liberty:

Jefferson was a man of the Enlightenment and the Declaration of Independence is an Enlightenment document. That means not only faith in the power of reason to build a just and stable social order, but also emphasis on the individual as the building block of society. The Enlightenment optimists made a serious mistake about the nature of the individual human in whom they placed so much faith.(5)

And what I have quoted thus far is just the tip of the iceberg.

At this point, you are probably wondering how accurately such a hostile critic of the Enlightenment would interpret the Constitution. The answer is pretty awkwardly.

Let's zero-in on liberty for a bit. Thomas Jefferson said, “Rightful liberty is unobstructed action, according to our will, within limits drawn around us by the equal rights of others.”(6) Or as one-time conservative icon Barry Goldwater put it, "I am a conservative Republican, but I believe in democracy and the separation of church and state. The conservative movement is founded on the simple tenet that people have the right to live life as they please as long as they don’t hurt anyone else in the process."(7) The logical corollary of this is that our rights are infinite in number, but not breadth.  

Interestingly, this bedrock principle made some of our founders suspicious of the Bill of Rights because they worried that such a list would be used to limit our rights. For example, on October 28, 1787, Justice James Iredell argued at the North Carolina ratification convention, "[I]t would not only be useless, but dangerous, to enumerate a number of rights which are not intended to be given up; because it would be implying, in the strongest manner, that every right not included in the exception might be impaired by government without usurpation; and it would be impossible to enumerate every one. Let anyone make what collection or enumeration of rights he pleases, I will immediately mention twenty or thirty more rights not contained in it."(8) In 1789, Representative Theodore Sedgwick echoed Iredell's objection on the floor of Congress. He quipped, "[T]hey might have gone into very lengthy enumeration of rights; they might have declared that a man should have a right to wear his hat if he pleased; that he might get up when he pleased, and go to bed when he thought proper."(9)

James Madison acknowledged that this was a problem and came up with a solution: The Ninth Amendment. That's the one that says the Bill of Rights does not limit your rights to a list of ten. It states, "The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people." Of course, deny and disparage is exactly what Originalists do when they say that liberals are "inventing new rights." Therefore, Originalists routinely ignore original intent.

Of course, I should say that they studiously ignore original intent because they put some effort into it. Take Robert Bork's take on the Ninth Amendment at his confirmation hearings:

I do not think you can use the Ninth Amendment unless you know something of what it means. For example, if you had an amendment that says “Congress shall make no” and then there is an ink blot and you cannot read the rest of it and that is the only copy you have, I do not think the court can make up what might be under the ink blot if you cannot read it.(10)

The obvious problem with Bork's sorry ink blot analogy, is that we have a wealth of source material to tell us what the Ninth means. We have debate transcripts, pamphlets, letters, etc. But that's not the kicker. The kicker is that many founders had anticipated how Originalists could misconstrue the Constitution. Here is Justice James Iredell again:

No man, let his ingenuity be what it will, could enumerate all the individual rights not relinquished by this Constitution. Suppose, therefore, an enumeration of a great many, but an omission of some, and that, long after all traces of our present disputes were at end, any of the omitted rights should be invaded, and the invasion be complained of; what would be the plausible answer of the government to such a complaint? Would they not naturally say, “We live at a great distance from the time when this Constitution was established. We can judge of it much better by the ideas of it entertained at the time, than by any ideas of our own. The bill of rights, passed at that time, showed that the people did not think every power retained which was not given, else this bill of rights was not only useless, but absurd. But we are not at liberty to charge an absurdity upon our ancestors, who have given such strong proofs of their good sense, as well as their attachment to liberty. So long as the rights enumerated in the bill of rights remain unviolated, you have no reason to complain.”(11)

Both stories suppose missing documents. The difference is Iredell was speculating about the future while Bork was misrepresenting the present. Otherwise, they track exactly. It is almost as if Bork had read Iredell and thought, "What a neat idea!"

Also note the second to last line in the block quote: "But we are not at liberty to charge an absurdity upon our ancestors, who have given such strong proofs of their good sense, as well as their attachment to liberty." Although he did not quite anticipate the founders being thought of as marble gods or prophets, James Iredell still recognized that veneration had its perceptual pitfalls.

Conservatives are so enamored with the dead hand of the past that they sometimes take it literally. When Justice Scalia died, Heritage Foundation senior fellow Hans von Spakovsky said that pending cases should be decided as if Scalia were still alive. Have sitting Justices died before in our 200+ year history? Of course. Could they vote from the grave? Of course not. But traditionalists don't really care about precedent.

If that absurdity is not enough, there is also a generous dollop of hypocrisy. As Right Wing Watch noted, "We can’t help but point out the irony that von Spakovsky has been one of the primary drivers of the myth that massive voter fraud requires suppressive laws that make it harder to vote. One of the voter-fraud specters he has raised is that of people casting votes on behalf of people who have died."

But I noticed another amusing nugget of absurdity - namely that it violates original intent. Off the top of my head I could think of several instances in which Thomas Jefferson explicitly said the dead have no rights or political voice and that was as it should be. He believed each new generation should be free of the previous one's debts and obligations. To be anchored by the past was tyranny. He wrote floridly and often on this topic, but always with a secular, scientific mindset. To Major John Cartwright, Jefferson wrote:

Rights and powers can only belong to persons, not to things, not to mere matter, unendowed with will.  The dead are not even things.  The particles of matter which composed their bodies, make part now of the bodies of other animals, vegetables, or minerals of a thousand forms.  To what then are attached the rights and powers they held while in the form of men?  A generation may bind itself as long as its majority continues in life;  when that has disappeared,  another majority is in place,  holds all the rights and powers their predecessors once held,  and may change their laws and institutions to suit themselves.(12)

Even the cautious and conservative John Adams believed, "[T]he people alone have an incontestable, unalienable, and indefeasible right to institute government; and to reform, alter, or totally change the same, when their protection, safety, prosperity and happiness require it."(13)

Of course, some conservatives will protest that they never denied we had the right to change things - only the wisdom in doing so. But other conservatives feel otherwise. As I wrote in my book, Originalism functions like religious fundamentalism. "Both insist on a 'strict literal interpretation' of sacred texts while twisting them into pretzels." And neither are really freedom-friendly. As Corey Robin pointed out, Antonin Scalia was a devoutly religious authoritarian. Indeed, Scalia believed that the devil literally exists and is promoting atheism. Moreover, Thomas Jefferson was not just making a legal argument but an attitudinal one. He thought culture evolved and that government must evolve with it:

Some men look at constitutions with sanctimonious reverence and deem them like the Ark of the Covenant, too sacred to be touched.  They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment.  I knew that age well; I belonged to it, and labored with it.  It deserved well of its country.  It was very like the present, but without the experience of the present; and forty years of experience in government is worth a century of book-reading; and this they would say themselves, were they to rise from the dead.  I am certainly not an advocate for frequent and untried changes in laws and constitutions. I think moderate imperfections had better be borne with; because when once known, we accommodate ourselves to them, and find practical means of correcting their ill effects. But I know also that laws and institutions must go hand in hand with the progress of the human mind.  As that becomes more developed,  more enlightened,  as new discoveries are made,  new truths disclosed,  and manners and opinions change with the change of circumstances,  institutions must advance also,  and keep pace with the times.  We might as well require a man to wear still the coat which fitted him when a boy, as a civilized society to remain ever under the regimen of their barbarous ancestors.(14)

The barbarians in today's Tea Party movement disagree. And given Donald Trump's thuggish campaign, you can hardly object to my using the B-word.

Historians rightly warn against making the mistake of presentism - of seeing the past through the lens of the present. But I am often struck by how modern-sounding some historical figures were. We will always have curious, conscientious tinkerers. And we will always have ignorant bigots - although, hopefully fewer with better education. The struggle between bullies and nerds is eternal. Who is currently winning varies over time: There are both progressive periods and nasty backlashes. This is not to deny that we have made net gains. The point is the struggle continues. Yes, the more things change, the more they stay the same. But the reverse is also true: The past was a time of constant conflict. And the founders fought a revolution no less, so they were not as averse to change as conservatives claim.

As Robert Bork acknowledged, Thomas Jefferson "was a man of the Enlightenment." But Bork thought those "Enlightenment optimists" were wrong about human nature and therefore should be ignored. Conservatives insist on judging the present by the values and attitudes of the past - except, of course, when that past is the Enlightenment and therefore inconvenient.

End of Part II -  Part III is here.

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(1)  My best guess says that Bork believed they were initially small and distant from each other and that they have only recently closed the empty ground in between. Indeed, on page 67 of Slouching Toward Gomorrah, he wrote, “[I]t was not until the twentieth century that equality became a serious threat to freedom.” There are a couple of problems with this. First, he believed that they “operate in different areas of life” with liberty reveling the realm of pleasure and equality threatening the realm of achievement. Wouldn’t this limit how much they could encroach on one another? Sure, there might be some topics where they overlap and conflict could occur, but not much. Second, he sees these oppositional forces as cooperating against traditional morality. Here he is quite right: liberty and equality do cooperate – and often (although not always) against morality. But this cooperative dynamic is awkward for his oppositional dynamic. Perhaps Bork saw liberty, equality, and morality in a three-way fight; but that is not quite the same as liberty and equality cooperating. That just means that the three forces are pushing against each other with one possibly taking the brunt depending on the issue. Maybe he thinks liberty and equality are “frenemies” who temporarily ally against tradition. But that would not explain their cooperating when traditional morality is not an issue. I have run across countless quotes from our founders that use the terms liberty and equality interchangeably and they do not concern sex, family, or religion. And we are not talking about sloppy word association – liberty and equality are built into each other’s definitions, hence their interdependence. Remember Jefferson's definition of "rightful liberty." That is also why Cato wrote, “Liberty can never subsist without equality.” Without it, might makes right and only the tyrant is free. Can liberty and equality conflict? Of course! But liberty can conflict with liberty. For example, one person’s right to know can clash with another’s right to privacy. (If you are affected, you have a right to know: Otherwise, it is nobody’s business.) Our rights bump up against each other’s all the time and it is the law’s role to referee, but that does not mean we should limit rights in order to preserve them. Yes, liberty and equality have grown during our history. The result is less hypocrisy with regard to the principle Jefferson articulated. It is fulfilling an often broken promise.

(2)  Robert H. Bork, Slouching Towards Gomorrah (New York: Reagan Books, 1997), 63.

(3)  Ibid., 67. Bork knew that he was courting controversy. On the previous page, he wrote, “The proposition that all men are created equal said what the colonists already believed, and so, as Gordon Wood put it, equality became ‘the single most powerful and radical ideological force in all American history.’ That is true and, though it verges on heresy to say so, it is also profoundly unfortunate.”

(4)  Some conservatives will invoke Edmund Burke and insist that the colonists only wanted the traditional “Rights of Englishmen” that they had been denied. But the interpretation of these rights had always been in flux on both sides of the pond. Certainly they were in dispute during the English Civil War in the 1640s. Another example would be the issue of slavery. During the Enlightenment, more Englishmen and colonists began to see it as inconsistent with British political principles. In his first draft of the Declaration of Independence, Thomas Jefferson accused King George III of forcing it on America. A bit of an exaggeration, of course. However, Royal authorities did make it difficult to free your own slaves and these regulations were later relaxed after independence was won. The point is these rights were always evolving. The American Revolution sped up this evolution, but change was already a constant long before.

(5)  Robert H. Bork, Slouching Towards Gomorrah (New York: Reagan Books, 1997), 58.

(6) Thomas Jefferson, The Political Writings of Thomas Jefferson: Representative Selections, ed. Edward Dumbauld, (New York: Liberal Arts Press, 1955), 55. The quote comes from a letter to Isaac Tiffany on April 4th, 1819. The Manuscript Division of the Library of Congress has a scan of it here.

(7) Barry Goldwater, “Job Protection For Gays,” Washington Post, July 13, 1994.

(8) Debates in the Several State Conventions on the Adoption of the Federal Constitution as Recommended by the General Convention at Philadelphia in 1787: Together with the Journal of the Federal Convention, Luther Martin's letter, Yates’s minutes, Congressional opinions, Virginia and Kentucky resolutions of '98-'99, and other illustrations of the Constitution, ed. Jonathan Elliot (Philadelphia: Lippincott, 1937), 4:167.

(9)  Annals of Congress, ed. Joseph Gales & William Seaton, (Washington: Gales and Seaton, 1834), Column 532 Vol. 1.

(10)  Nomination of Robert H. Bork to be Associate Justice of the Supreme Court of the United States: Hearing Before the Senate Comm. on the Judiciary 117 (Washington, D.C.: Government Printing Office, 1989), 249.

(11) Debates in the Several State Conventions on the Adoption of the Federal Constitution as Recommended by the General Convention at Philadelphia in 1787: Together with the Journal of the Federal Convention, Luther Martin's letter, Yates’s minutes, Congressional opinions, Virginia and Kentucky resolutions of '98-'99, and other illustrations of the Constitution, ed. Jonathan Elliot (Philadelphia: Lippincott, 1937), 4:149.

(12)  Thomas Jefferson, The Life and Writings of Thomas Jefferson: Including All of His Important Utterances on Public Questions, Compiled from State Papers and from His Private Correspondence, ed. Samuel Eagle Forman, (Indianapolis: Bobbbs-Merrill Co., 1900), 294.

(13)  John Adams, Article VII, Constitution of the Commonwealth of Massachusetts, 1780.

(14) Thomas Jefferson, Works of Thomas Jefferson, ed. Paul Leicester Ford (New York: Kickerbocker Press, 1904), 12:12.

Unoriginal Sin: Part I

Conservative ideology is often convoluted and dishonest. Its "simple truths" must be buttressed by increasingly Byzantine rationalizations that make hypocrisy a constant rhetorical hazard. If their magazines were factories, their DAYS WITHOUT AN ACCIDENT signs would seldom escape single digits.(1) I blame negligent and callous management. Conservative scribes need a good union.

Take the judicial doctrine of Originalism. At first, it seems quite reasonable and straightforward: It insists that the Constitution should be interpreted as the founding fathers intended. So, what's wrong with that?

Well, one big problem with this doctrine is that Originalists harbor some pretty faulty assumptions about our founders. Their fanciful founders were devout Christians who were skeptical of government. In this reactionary fantasy, the founders all hated taxes, handouts, and social engineering of any sort. Not quite.

The idea that the founders wanted to run the country on a biblical basis is particularly ridiculous. Patrick Henry was the only famous founder who thought religion had any place in government – the only one they can quote without lying outright. The rest were either deists who openly loathed organized religion or Christians who understood that mixing church and state was dangerous to both.

Otherwise, there were few areas of broad agreement. The founders fought over everything from slavery to the property qualification for voting to the proper role of government. Remember reading about the Federalists and the Anti-Federalists? This may surprise you, but they disagreed over the how much power the federal government should have. Yes, it’s shocking, I know.

And even after compromises were hammered out, there was still disagreement on how to interpret the results. Certainly everyone remembered what they were originally aiming for and sought to turn every ambiguity to their advantage. And often ambiguity is what makes compromise possible. Your “obvious” interpretation will likely differ from mine. But if we both think the language is to our advantage, we will both approve. We will either think we have outfoxed each other or that we have found common ground – only to decry betrayal later on. In politics, compromises are only temporary cease fires.

And these fights could get downright dirty. Thomas Jefferson and John Adams hired newspapers to slander each other. This is the origin of our two party system, folks. It shattered their friendship and they did not mend it until years after most of the other founders had died off. (They died within hours of one another on the fiftieth anniversary of the Declaration of Independence that they had worked together on.) The point is that disagreement was fierce, to say the least. As I wrote in my book, "To suggest that there was consensus where there was scalding conflict is either ignorant or dishonest."

One often overlooked topic of conflict was their concepts on economic equality. As I detail both in my book and this blog, founders like Thomas Jefferson, Benjamin Franklin, Thomas Paine, and many others were proto-socialists who thought a rough economic equality was fundamental to a functioning republic. James Madison thought it would mitigate the evils of political parties, while Noah Webster thought it was "the very soul of a republic." Obviously, not all the founders agreed. Alexander Hamilton and John Jay thought the rich should rule and had no problem saying so. This was why Jefferson called Hamilton a corrupt monarchist. The founders did not speak with one voice.

Finally, party strategy and ideology have often gotten flipped and remixed since then. The founders who favored states rights, like Thomas Jefferson, advocated for the poor – whereas the founders who wanted a strong central government, like Alexander Hamilton, favored the rich. At that time, the greatest threat to the wealthy came from the states. In some states, poor veterans demanded debt relief acts and their agitation sent terrified bankers to the feds for help. After all, that’s what the right thought the Constitution was for. As James Madison had argued in Federalist #10, “a rage for paper money, for the abolition of debts, for an equal division of property, or for any other improper or wicked project” would be less likely to prevail at the national level. (Yes, vets were demanding those other things too.) Conservatives originally loved the federal government.

Such flips should not be difficult to imagine. After all, the Republican and Democratic parties had switch geographical voting bases after the 1964 Civil Rights Act. That is when the GOP began its infamous Southern Strategy of using racist dog whistles. Likewise, the GOP was once so pro-tariff that it was their signature issue, but today they favor free trade.(2)

Incidentally, George Washington thought, “The Men who oppose a strong and energetic government are, in my opinion, narrow minded politicians, or are under the influence of local views.”(3) No, he did not seek an eighteenth century version of the New Deal. (Although Thomas Paine’s social security proposal suggests that he might have.) But nor did Washington think that the weak, decentralized, states rights-based Articles of Confederation system worked either. Sorry, modern day “Tea Party” movement.

Likewise, as I wrote in my book, Thomas Jefferson is often called the father of small government. But to him, “big government” meant large armies and broad police powers - things conservatives love. So it is strange to hear them invoke the man who thought banks were “more dangerous that standing armies.”(4)

Today, ideological battle lines are ying-yanged from what they were when the founders lived. This makes making honest analogs pretty tricky to pull off. You have to acknowledge these switches, which conservatives are loathe to do because, to them, tradition is about resisting change rather than adapting to it. Legitimacy hinges on purity of preservation. They see the founders as almost prophets whose precepts are therefore perfect and eternal. By contrast, liberals are more likely to recognize that the founders were fallible mortals with all the associated foibles.

I am not saying that you cannot invoke the founders to argue anything – obviously, I do routinely. But you have to provide context to be honest, and context gets complex. After all, this was supposed to be a short post. And I have not even gotten into the enormous problems with the arguments of Robert Bork and Antonin Scalia or how some founders had anticipated the great temptation of Originalism and warned against eating the fruit of the Tree of Stupid.

I will explore those omissions in part two. The point here is that conservatism's "simple truths" are neither. Originalism is the Creationism of jurisprudence. Both are wishful thinking-driven cherry-picking: Myths and fables seeking not only to be taken literally, but to also enjoy the force of law.

And that is not what the founders wanted.

End of Part I - Part II is here.

________________

(1) Okay, this joke admittedly begs explanation. See, factories were places were Americans used to make things before Republicans and conservative/"centrist" Democrats facilitated their export overseas. Some factories still exist. Take your kids to see them before they are all gone.

(2) Such party-wide flips are familiar. They may even make parties disown or at least ignore their own founders. For example, Thomas Jefferson founded the Democratic Party. Ignoring the fact that Jefferson had owned slaves while writing against slavery, Lincoln said the Democrats had originally put “the man before the dollar” – i.e. put human rights before property rights. Since abolitionists frequently quoted Jefferson’s anti-slavery rhetoric, the Democrats had soured on their founder. In a famous letter Lincoln reflected on the irony - particularly since the Republicans were arguably descended from the old Federalist Party. He followed up with an anecdote about two drunks who got to wrestling in the street and wound up wearing each others great coats by the time they got pulled apart. Lincoln said that America's two major parties had done the same. In the early twentieth century, progressive Republican Teddy Roosevelt affirmed the primacy of the man before the dollar. His younger cousin, Franklin D. Roosevelt later ran as a Democrat and quoted Lincoln's anecdote about the two drunks, suggesting that the two parties had switched principles again. Today, the party of Lincoln has embraced Jefferson Davis. And so it goes.

(3) George Washington, The Papers of George Washington: Confederation Series, ed. W.W. Abbot (Charlottesville: University Press of Virginia, 1983), 5:257.

(4) Thomas Jefferson, Writings of Thomas Jefferson, ed. Andrew Adgate Lipscomb and Albert Ellery Bergh (Washington DC: Thomas Jefferson Memorial Association, 1905), 15:23. Actually it was John Taylor who first coined the phrase but Jefferson expressed his agreement in a letter to him on June 7th 1816. Jefferson’s reply reads, “And I sincerely believe, with you, that banking establishments are more dangerous than standing armies; and that the principle of spending money to be paid by posterity, under the name of funding, is but swindling futurity on a large scale.” 

The Death Debate Again

Edit: This post was originally written before Greenwald went right. The principles still apply.

Supreme Court Justice Antonin Scalia died a week ago today and I am ashamed to say that I joined in on the tasteless schadenfreude-fest that swept the Internet. I must admit I said some terrible things.

Okay, I’m not actually ashamed and my jokes were really pretty tame.

But some kind-hearted liberals think I should be, so the traditional cycle of cheering and chiding ensued. The arguments against celebrating are familiar - they get trotted out whenever a malevolent political figure dies. Glenn Greenwald wrote a great essay about this on the occasion of Margaret Thatcher’s death. It was a follow up on an argument he made on the occasion of Christopher Hitchens' death.

Naturally, how terrible the individual was in life varies and I suppose we can disagree over whether the degree of glee is really proportionate to the departed's damages. Augusto Pinochet’s regime tortured and murdered thousands of Chileans whereas, in England, Margaret Thatcher’s austerity measures merely ground a generation of working poor deeper into poverty. And Antonin Scalia only sought to subvert equality and democracy in America, so I suppose it is all relative.

I can maybe see making the argument that only their victims have a right to raise a glass but that others do not. I disagree, but I can at least see it. But to say nobody should only silences the victims. It tries to shame them for their valid anger – particularly when the public figure’s crimes are gently finessed or totally ignored in a flourish of eulogistic praise, as is frequently the case. As noted in the Greenwald article, it is the praise that is truly tasteless. Those who tisk-tisk are the type that think it is rude to point out rudeness. 

But then how does rudeness ever get corrected? This politeness is enabling writ-at-large on the scale of nation states. Gallows humor towards, say, war criminals who escaped the gallows and died peacefully in their sleep is not only understandable but totally appropriate. It is scant, bitter consolation to the survivors; and I will not deny them that. They are unquestionably entitled to it.

Simply put, the “no matter how bad they were” argument makes no sense in the secular context of civic life. If the strictures of your personal religion command you to love everyone, then do so. But I am not Mohandas Gandhi or Martin Luther King. I did not sign up for either of their religions, so I am not bound by their precepts. The fact is that, contrary to conservative propaganda, liberals are ridiculously Christian in temperament regardless of their religion. Forgiveness, atonement - liberals love that shit. Even Darth Vader gets saved and comes back as a blue Force ghost - with an impressive celestial face lift, no less. 

But what gets me is that you do not even have to atone if you had ever held public office. Official liberal forgiveness is automatic. Grace is de rigueur, if not an unthinking reflex. I know that one of the dictionary definitions of "liberal" is "generous," but perhaps a measure of conservative restraint is required here.

The thing is, I seriously think that society benefits from impolite timing. Last Sunday, I tweeted, "Political prediction: Opponents of genocide will cheer Henry Kissinger's death and be criticized for their insensitivity." I cross-posted it on other social networking sites and a friend objected that there should be no cause to cheer. I replied that it can turn the media's predictable whitewashing into a teachable moment. We must confront our history. The fact that Henry Kissinger is a free man and actually admired by the establishment reveals terrible truths about America that seriously need to be addressed.(1) Until he sits in a cage in the Hague, we cannot possibly call our nation a champion of human rights.(2)

The point here is that opportunities to talk about such figures are incredibly rare. Who would have guessed that Henry Kissinger would get mentioned in a Democratic presidential primary debate? TWICE! Secretary of State Hillary Clinton actually doubled-down on that endorsement. The second time, Senator Bernie Sanders could not let it pass again. His response was righteous and I quite approved. Kissinger had facilitated three different mass murders either by accident or deliberately.(3) Sanders only singled-out one of them, but even that one mention was a minor miracle. But everybody eventually dies, so that last opportunity is guaranteed. We should never surrender it.

Our country commits lots of atrocities and will continue to do so as long as we flinch from talking about them. Funny how it's always the "wrong time" to talk about it when people are paying attention. It's "unpatriotic" to criticize when the bombs start falling and "insensitive" when those who gave the orders peacefully pass away. It's only okay in between when the topic is not in the news anymore so nobody cares. 

How convenient! It's just like when conservatives insist we should not talk about gun control after another school shooting. It's never thought proper to solve problems when they are in the spotlight and therefore more likely to actually get acted on. It's always considered insensitive to prevent the next tragedy.

I think there would be a lot less liberal "vitriol" if the "liberal" media didn't whitewash manifest monsters. It legitimizes them and thereby encourages others like them. The fact that an obvious war criminal like Henry Kissinger is not only walking free but respected by the establishment and proudly touted by Hillary Clinton illustrates this sickness in our society. It's a chronic condition because we perpetuate it. If you want monsters to be more respected in death, your priorities are part of the problem. 

The news media should stop spin-doctoring sinister cadavers and treat their deaths as ordinary news stories. Write an obit, not a eulogy. Screw the usual slurry of polite, funereal obfuscation. If a writer wants to write eulogy, give the victims' case equal time. Granted, not every effort will equal Hunter S. Thompson's epic "eulogy" of Richard Nixon, but that rare effort should still be made.

But, hey, maybe I am wrong. I am always open to that possibility. Perhaps I should not toast the deaths of total toads. After all, there are a lot of them. As I noted in my book:

[T]he right’s icons have been dropping off like flies – Strom Thurmond, Ronald Reagan, Jesse Helms, Charlton Heston, Rev. Jerry Falwell, Paul Weyrich, William F. Buckley, and Robert Bork have all kicked the bucket since I had started writing this thing.

I need to start drinking less before I start seeing the Force ghost of Richard Nixon in the full youth and vigor of his early McCarthyite days. He's Blue, Rested, and Ready.


EDIT: Here's another argument against writing white-washing eulogies of political figures. Those who find mine insufficiently respectful might prefer Jeet Heer's podcast about Bob Dole's recent passing.

There's some genuine sympathy and admiration mixed-in; but it is not allowed to obfuscate the fact that Dole was a cold-blooded political opportunist and Richard Nixon's attack dog. His eulogies portrayed him as a principled statesman who put country before party, but he was the polar opposite of that. He was a vicious cynical partisan who not only endorsed Trump (no other past living Republican presidential contender did so) but facilitated the trajectory of the GOP that got us to Trump.

Heer is against flattering eulogies because they're bad history - but also because they erase the deceased's personality. Interesting characters become solemn two dimensional cut outs. Dole was a ball of frustrated ambition and bitterness, but he had a sense of humor about it. He wore it on his sleeve and owned it. It was who he was. These mawkish eulogies turn fascinating cads into boring heroes. 

This podcast was, in fact, fascinating.


SECOND EDIT: Liza Featherstone's obituary of Secretary of State Madeline Albright is  also excellent.

_______________

(1) Nationalists will naturally call this sentiment unpatriotic. Quite the opposite: You cannot fix problems that you refuse to recognize, and in a participatory democracy fixing things is a duty. As I write in my book, "Criticism is part of citizenship. Stifling dissent is a form of sabotage. It is like disconnecting an important dashboard warning light."

(2) This makes two recent posts that I am put in the awkward position of praising Christopher Hitchens, but his book, The Trial of Henry Kissinger is must reading on this topic. Watch the documentary of the same name, if you prefer. Secretary of State Hillary Clinton’s touting Henry Kissinger’s praise of her encapsulates all that is terrifying about her candidacy.

(3) First, the accident: The illegal bombing of neutral Cambodia during the Vietnam War may have killed as many as 150,000 Cambodians. That is not the accident part. The accident part was that it destabilized that country and allowed the brutal Khmer Rouge to take over and murder over a million more. Nixon and Kissinger's recklessness accidentally had helped the Khmer Rouge just as surely as George W. Bush had accidentally created ISUL (or Daesh, if you prefer). You could call it negligent genocide. It is a chronic blow back from bombing. As the first linked article noted, comparing Afghanistan to Cambodia, "The Khmer Rouge grew from a small force of fewer than 10,000 in 1969 to over 200,000 troops and militia in 1973. During that period their recruitment propaganda successfully highlighted the casualties and damage caused by U.S. bombing." Funny how similar actions in similar circumstances get similar results.

Installing the aforementioned Chilean dictator General Augusto Pinochet was the other mass murder that Henry Kissinger was an accomplice to, but that was no accident. Kissinger explicitly green-lit that slaughter. Generally, the dictators we chose to run other countries during the Cold War, asked our permission first. That was also the case when President Gerald Ford and Henry Kissinger approved Indonesia's invasion of East Timor. Indonesia massacred almost a quarter million Timorese - a third of that country's population. It's traditional. Indeed, a miscommunication in one protocol is what triggered the first Gulf War. Saddam Hussein sought - and thought he got - George Bush Sr.'s permission to invade Kuwait. After all, during the Reagan administration, we sold him the poison gas he used on the Kurds. Yes, we sold it to him to fight Iran, but we did not stop selling to Saddam after we discovered on whom it was being used. Kissinger was not directly involved in the sale, although he had betrayed them previously. No, that is Donald Rumsfeld seen shaking hands with Saddam.

Some quibble with the use of the word "genocide" arguing that specific ethnicities were not targeted. For example, this article argues that, in East Timor, the term is not technically correct in terms of international law. And in Chile, the targets were ideological rather than ethnic. But the Khmer Rouge's brand of communism was rabidly nationalistic and ethnic Chinese and Vietnamese Cambodians were targeted by Pol Pot's regime.

On Coates and Roosevelt

In preparation for my last post, I reread Ta-Nehisi Coates’ excellent essay “The Case for Reparations.” For the most part, it holds up. I have only one minor quibble with Coates’ essay but even this ultimately justifies him. Facts are frequently double-edged swords.

I think that Ta-Nehisi Coates was a tad harsh on the New Deal. Granted, the most important New Deal programs like Social Security and the Federal Housing Authority did indeed exclude Africa Americas. And the net effect dramatically widened the wealth gap between blacks and whites. There is no denying that and, at the end of the day, that is all that actually matters. But a casual reader might get the idea that preserving and strengthening white supremacy was the goal of these programs.

Not quite. Craven compromises were made out of weakness rather than malevolence or indifference. Such concessions are familiar examples of the Southern plantocracy holding the whole country hostage – something they had done since threatening to scuttle the Declaration of Independence. (There is actually a musical about that.) The New Deal era was no different. As Harvard Sitkoff admitted in A New Deal for Blacks: The Emergence of Civil Rights as a National Issue: The Depression Decade, the Roosevelt administration initially feared that aiding African Americans in any way would derail other legislation. "Even as minor a matter as the invitation of a Negro to the Senate restaurant in 1934 resulted in Southern Democrats howling their rage and threatening to cut off appropriations."(1)

And this may very well be what Ta-Nehisi Coates means when he says that America was built on white supremacy - only that our country has been continuously structured to advantage whites and keep blacks vulnerable in various ways right up until the present day. If so, I cannot possibly argue with that. I may be misreading him on the New Deal.
           
But, as the title of Harvard Sitkoff’s book suggests, things started to change during the New Deal. Not all the credit goes to the Roosevelts or the New Deal. The Harlem Renaissance had inspired African Americans to take pride in their identity and assert their rights. (And, although Sitkoff is an integrationist, he has praise for Marcus Garvey on this score.) Black labor leaders were flexing their muscles. And unquestionably some credit goes to communists who were agitating on both class and race issues. More whites in the union movement began to grasp how racism is used to divide and conquer the working poor. Even conventional liberals noticed the Nazis’ brutal racism and asked how the Klan was any different. The logic of the New Deal coalition's "forgotten man" rhetoric pulled toward civil rights even though it prioritized economic recovery and, later, getting Hitler. 

Within the Roosevelt administration, there were different opinions on this issue. Some were wary of offending Congress, while others favored pushing the envelope within the executive’s prevue. Among the later was Harry Hopkins, head of the Works Progress Administration, and Francis Perkins, Secretary of Labor. Both were once social workers in New York and sympathetic to the plight of Blacks. But perhaps the most powerful was First Lady Eleanor Roosevelt. She needed schooling but proved an apt pupil. As Sitkoff wrote of Eleanor's education:

Her friendship with Walter White of the NAACP and Mary McLeod Bethune, President of the National Council of Negro Women, began to resemble a crash course on the struggle of blacks against oppression. ... Like other liberals who initially viewed the race problem as essentially economic, to be solved by New Deal anti-poverty measures, Mrs. Roosevelt only gradually came to the realization that such specific matters as discrimination, lynching, and disfranchisement had to be faced directly.(2)

That last sentence pretty much sums up Ta-Nehisi Coates' critique of Bernie Sanders' answer on the question of reparations for slavery. Of course, I should add that Sanders has embraced the Black Lives Matters movement and believes that African Americans are owed an official apology for slavery. But with regard to the question of black poverty, Sanders program is indeed only class-based. Eleanor Roosevelt became a vocal advocate for a federal anti-lynching law, much to the chagrin of many White House staffers. And I have no doubt that Bernie Sanders is an equally quick study. But, yeah, this has often been a blind spot with socialists and liberals alike. 

It is also important to note that blacks benefited from some New Deal programs. This was when blacks began to switch their allegiance to the Democratic Party – a process completed by the 1964 Civil Rights Act. Before, blacks had loyally supported the “Party of Lincoln.” This was not just a byproduct of the second northward black migration during WWII. (The first was during WWI.) The efforts of Eleanor Roosevelt, Harry Hopkins, and Francis Perkins got some results. Of course, because these federal programs were locally administered, the gains were severely limited in the south; but they were noticeably effective in the north where blacks were migrating. 

But, again, evidence that supports this narrative also supports Coates. As Sitkoff wrote of the racist and timid climate in then Secretary of Agriculture Henry Wallace's department:

Henry Wallace, according to to civil rights spokesmen, especially feared antagonizing Southerners on the race issue. No other department was as controlled by white supremacists both in the bureaucracy and in Congress as was the Department of Agriculture. It had the smallest percentage of black employees and was the last to appoint a Negro adviser. "You didn't dare take a Negro to lunch at Agriculture," recalled Dr. Will Alexander, one of the few supporters of civil rights working on the New Deal farm programs. Wallace not only ducked action on Negro rights but complained to Alexander: "Will, don't you think the New Deal is undertaking to do too much for Negroes[?]"(3) 

This is a bit embarrassing for progressives because Wallace was their icon. Roosevelt later made him his Vice President (1941-1945), but then replaced him with Harry Truman - to the great ire of progressives. Truman and Wallace became rivals; and in 1948, Wallace ran as the Progressive Party's candidate for President thereby threatening Truman chances. However, by this time, Wallace had evolved a lot on civil rights becoming a stronger supporter than Truman, who desegregated the armed forces. The point being is that progressives haven't always been awesome. As I wrote before, the left's record is mixed - better than the liberal record to be sure, and far better than the conservative one, but it still has plenty of blemishes. 

There is a telling incident that illustrates both Franklin D. Roosevelt’s timorousness and the admittedly limited – but still significant – beneficial impact of the New Deal on blacks. In 1935, Georgia Governor Eugene Talmadge, then one of the biggest bigots in politics, wrote a letter to Roosevelt complaining that work relief projects paid too much. The upshot was local cotton barons could not get field hands for the starvation wages that satisfied tradition. Roosevelt wrote a tart response, but never mailed it. Instead, he then delegated the task of replying to Harry Hopkins. Hopkins wrote Talmadge that his favored wage rate left people "under-fed, sick, and ragged, and their children out of school for lack of food, clothes and school books."(4) Race was not specifically mentioned in either Roosevelt's or Hopkin's response. It was understood. But just in case it was not clear to the reader, the 1957 book this bit comes from introduced it with this opening sentence: "Talmadge was one of the most vociferous white-supremacy Southerners of the era." Hopkin's letter was still critical in tone, but it significantly did not come from the president.

Let’s not equivocate: This was not a heroic moment for Roosevelt. And Coates’ disappointment with the New Deal generally is unquestionably justified. If it seems like an example of “same old/same old,” that is because that is exactly what it was – a story that is quite literally as old as the republic itself. However, nor is this evidence that Roosevelt approved the perpetuation or strengthening of white supremacy. It is certainly disappointing, but not evidence of intent or desire. Yes, this is a defense of FDR, but it is hardly a rousing or inspiring one. And, hey, I can make it even worse by pointing out Roosevelt's internment of Japanese-Americans, which was active rather than passive and – as Coates correctly points out – an instance where America has actually has made payments to an injured ethnicity.

But like I said, this is a quibble. At the end of the day, Ta-Nehisi Coates is right about reparations. What actually matters is that, whatever Franklin D. Roosevelt’s intentions, much of the New Deal was a massive whites-only giveaway which unquestionably widened the wealth gap between whites and blacks. And its effects are felt to this day. Conservatives cannot deny that and complain about the inheritance tax. And the subsequent G.I. Bill – arguably the first federal affirmative action program actually implemented – was also whites-only. Indeed, contrary to the absurd conservative fantasy that Martin Luther King would have opposed affirmative action, he not only helped pioneer it, he also likened it to the G.I. Bill. And, as Coates notes, blacks trying to buy homes were denied legitimate credit sources and thereby herded into predatory scams – and variants persist to the present day. Government collusion was always a part of this. The grievances so go far beyond slavery. If you doubt me, read his essay already.

I may be wrong, but my reading of Ta-Nehisi Coates is not that he is denying the contributions of socialist solutions insomuch as saying that there is another important, studiously ignored piece to the puzzle. Socialism solves a lot, but it doesn’t solve everything.

So let's emulate Eleanor Roosevelt and recognize that.

________________

(1) Harvard Sitkoff, A New Deal for Blacks: The Emergence of Civil Rights as a National Issue: The Depression Decade (Oxford University Press, 1978), 45.

(2) Ibid., 60.

(3) Ibid., 44.

(4) Franklin D. Roosevelt, The Roosevelt Reader: Selected Speeches, Messages, Press Conferences, and Letters of Franklin D. Roosevelt, ed. Basil Rauch (New York: Rinehart & Co., 1957), 137.

On Bernie and Ta-Nehisi

Ta-Nehisi Coates recently wrote an interesting piece for the Atlantic. It asked why Senator Bernie Sanders does not support reparations for slavery when he advocates so many other ambitious proposals that are supposedly doomed too. When did the radical Sanders become such a safe pragmatist all of a sudden?

In the interests of full disclosure, I am a Bernie Sanders supporter. But I am also working on a follow up book on the ideal of equality and conservatism's eternal hostility toward it. One chapter deals with the issue of reparations. I am pretty convinced and Ta-Nehisi Coates 2014 Atlantic cover story, "The Case for Reparations" has played a part in that.(1) His prose is both powerful and persuasive.

Let's first talk about reparations for a moment.

I did not set out to discuss reparations in my second book. My goal was to look at conservatives’ bogus opposition to “group rights” in their anti-affirmative action rhetoric. They insist that there is no such thing as group rights despite their adoration for states rights and corporations. Their insistence that this is "a Christian nation" is another overt endorsement of “group preference” and I suspect they have many covert ones as well - like race, for example.

I also wanted to look at how conservatives conceptualize justice and concluded that they like authority and having an excuse to use violence and feel righteous about it, but that balancing the scales without any gun play apparently fails to ignite their enthusiasm. Hostility, yes. Enthusiasm, not so much.

In the process of all this, I quickly discovered that making reparations for slavery was an issue that no student of American history could honestly ignore.

Let's get something out of the way. Perhaps this reveals the limits of my imagination or my chops as a writer, but there is no polite way to say this that does not shortchange the facts or do outrageous violence to logic or the English language. The right’s arguments against reparations are bat-shit racist.  

Of course, the ever horrible David Horowitz's ten point newspaper ad proved that back in 2001. I was amazed that the late Christopher Hitchens’ take-down of it did not connect the last dot. (2) When Horowitz said it is actually blacks who owe America, the best Hitchens could muster was, "Smile when you say that, David." Hitchens' critique was otherwise epic. It is a pity that the mainstream media could not match those standards. Instead, a superficial acceptance of Horowitz's absurd assertions prevailed.

In his famous Autobiography, Benjamin Franklin wrote that reading a poorly-argued book against deism was what made him a deist.(3) Arguments against reparations have a similar effect on most thinking people if they bother to wade into them, which is why most don’t. Whatever your stance on reparations, the right’s tortured rationalizations against them are as viscerally illuminating as flipping on a light switch in a darkened slaughterhouse. The smell tells you exactly what to expect so most back out beforehand.

So what do I think of Ta-Nehisi Coates' critique of Bernie Sanders?

Well, there is a lot that I cannot really argue with. I agree that the word "divisive" was ill-chosen. Likewise, I agree that singling out Sanders was not unfair because Hillary Clinton never claimed to be a radical, parody notwithstanding. And historically the left has had a mixed record with recognizing that socialism doesn't solve everything.

My objection centers on the question of Bernie Sanders’ alleged pragmatism or lack thereof. Calling yourself a democratic socialist certainly sounds quixotic. And Ta-Nehisi Coates is quite right that Sanders picks his battles, so asking what yardstick the candidate uses is a valid question. But it is a question that Coates has actually already answered, although he does not seem to be asking it rhetorically. When not calling Sanders' agenda D.O.A., Coates notes that it is well inside the Overton Window. Isn't that contradicting himself? Well, not exactly. And there's your answer.

Sanders' strategy is to champion already popular proposals. It's about pounding obstructionists in Congress. Admittedly, it may take more than one electoral cycle. But the metric he uses to pick his fights is strategic, not naïve. Presently, reparations do not enjoy the same popularity as, say, breaking up the banks. Therefore, more agitation for slavery reparations remains necessary. In short, Sanders is picking difficult but currently winnable battles. One of which is reviving democracy. Is that radical?

Vis-à-vis the people, no. Vis-à-vis the system, yes.

Coates is correct when he says that Sanders is not actually all that radical. As Political Compass notes, Sanders is just slightly left of center - which is where the bulk of the frustrated voting public actually is. Energizing that public and demanding why we don't have nice things like Scandinavia has is his leverage.

Does this mean that Sanders is hostile to reparations? Not necessarily, although the word "divisive" certainly suggests he might be. But if so, he has proven himself quick to evolve and get in front of progressive change. We very recently witnessed a beautiful revolution in people's attitudes toward LBGT rights and Bernie Sanders embraced them early. Reparations might follow.

Does this sound like an odd mix of optimism and cynicism? Well, all political commentary is and mine is no different. Yes, leaders should lead and make difficult and unpopular decisions. But few have ever run on promising them. Lincoln's platform was modest when he first ran for the presidency: All he promised was no slavery in the territories. He believed that was all the Constitution would allow him to do. Likewise, in 1932, there was almost no daylight between Franklin D. Roosevelt's platform and Herbert Hoover's.

My best guess says that Ta-Nehisi Coates already knows all this and wrote his piece on Sanders in part as an act of agitation for reparations. If so, it worked beautifully and I approve.

______________

(1) My only objection is not really an objection but a caution. Never underestimate the right’s capacity to twist an idea. Conservative columnist Charles Krauthammer has suggested using slavery reparations to replace affirmative action. Monstrously, he had proposed them in exchange for all affirmative action programs, including those for women and other minorities who would get nothing. Krauthammer’s attempt to drive a wedge between disadvantaged groups was pathetically obvious. It is one of the handful of tactics conservatives routinely use – like presenting false-trade offs. Could reparations be used to preclude future class action litigation like the Tobacco Settlement does? Depends on how it is structured. As I type, details on the poisoning of Flint, Michigan’s water supply are coming to light. And the predatory, systematic disaster gentrification of New Orleans after Hurricane Katrina is still raw. Both show that the targeting of black communities en masse remains ongoing.

Of course, poor execution does not invalidate a righteous idea and none of these scenarios are inherent to the concept of reparations. Moreover, reparations would, in the long term, make black communities less easy targets thereby lessening the vicious cycle of victimization.

(2) Christopher Hitchens, "Debt of Honor," Vanity Fair, June 2001. Reprinted in Raymond Winbush's  Should America Pay? Slavery and the Raging Debate on Reparations, (New York: Amistad), 2003. I have been critical of some of Hitchens' positions - one of which, the invasion of Iraq, proved disastrously wrong - but not only was he right here he consistently kept pushing.

(3) Speaking of Benjamin Franklin, in my book, I point out that the founder of America's first anti-slavery society had made the argument that simply freeing slaves was insufficient. After listing the psychological scars of slavery on the freedman, Franklin adds, "He is poor and friendless; perhaps worn out by extreme labour, age, and disease." Franklin's solution was education and job training. His aims now sound both modern and modest. Granted, Franklin’s language could accurately be described as “not entirely awesome.” As I wrote, "While it is easy to be cynical about 'education calculated for their situation in life,' such organizations often provided promising freedmen with college educations and professional training." But part of Franklin's argument remains "radical" today - his appeal to duty. Franklin felt, “Attention to emancipated black people, it is to be hoped, will become a branch of our national policy,” because “that attention is evidently a serious duty incumbent on us.” Again I ask how much longer will it take for today’s conservatives to catch up with Benjamin Franklin. Contrary to conservatives' inconsistent individualism, the concept of collective responsibility is neither new nor un-American. In Coates' "Case for Reparations," he cites many contemporaries of Franklin who agreed that granting freedom was not enough. (Their language was arguably more awesome.) It was just as obvious to honest people then as it is now - the operative words throughout being “obvious” and "honest."

- Benjamin Franklin, Writings of Benjamin Franklin, ed. Albert Henry Smyth (New York: Macmillan Co., 1907), 10:67.

Feeling Slightly Less Futile

Great googly-moogly! Somebody possibly reads my blog!

(Outside my circle of friends and robots from Russia, I mean.)

A short time ago, I wrote a post called "Misogyny? Seriously?" which questioned the prevalence of "Bernie Bros" who supposedly defined Bernie Sanders' supporters. I did not question that they existed. Every group has terrible members who don't get it and need a talking to. But I strongly doubted there were very many, mainly because Bernie Sanders had essentially inherited the draft Elizabeth Warren movement.

So imagine my delighted surprise when I ran across an article entitled, "Progressive Brothers: You Don’t Have to Hate Hillary to Love Bernie (and Don’t Drag Elizabeth Warren Into It)."(1) 

WOOT! SOMEBODY RESPONDED! Sort of. 

Or maybe not. It is entirely likely that the same thing has already occurred to others.

Okay, probably the latter. I mean, the article probably does not address my arguments because it was not written to address my arguments. But still, the article has problems I feel I need to address because this is the Internet and I have a blog. WITNESS ME!(2)

The main problem with the article is suggested by the title, or rather the author's explanation of it: 

The title of this piece is purposely direct. Every time I raise the issue of sexism in 2016, every time I point out that the blind, irrational hatred of Hillary is driven by more than just support for her opponent, I get the same response: Elizabeth Warren.

Somehow, it’s OK to bash one female politician if you can name another one you like.

Wait. Is this guy saying that I cannot mock Sarah Palin or Michelle Bachman either?

Probably not, but I think I know what he was trying to say, even though it came out wrong. He is suggesting that a kind of tokenism is afoot, and in some instances he is likely right. After all, it is certainly possible that Bernie Bros are cynically invoking Elizabeth Warren the same way that, say, white racists routinely compare themselves to Rosa Parks. Shit, it is not only possible, but probable. It is easy to say you support Warren after-the-fact since she is not running.

But it would be equally dishonest to ignore the fact that progressives really wanted Warren to run. And we really wanted her to run. Accordingly, we convinced ourselves that we could persuade her. We took hope in the fact that she pointedly (still) had/s not endorsed Clinton despite (once again) Clinton being anointed as the inevitable nominee. Warren's obvious lack of enthusiasm for Clinton mirrored ours. In my aforementioned post, I linked to an interview Warren did with Bill Moyers in which she expressed her profound disappointment with Hillary Clinton.

The point is I don't think the majority of Warren's supporters were faking their enthusiasm so that they could switch their allegiance to a male candidate at some later date. I don't know if any of the folks pushing the Bernie Bro story actually believe that. But there are only two logical implications to their narrative and neither of them is one that centrists have really thought out: Either the progressive movement is dominated by misogynists pretending to be feminists or it is far larger than they wish to admit. This puts them in a bind because the first possibility is paranoid and the second is demoralizing.

So, pick your poison: The vessel with the pestle or the chalice from the palace. The later has the brew that is true, but I think you will still find it pretty bitter tasting.


______________

(1) The site of the article, Blue Nation Review, has been a Clinton organ since last November.

(2) There, in two words, is the sum total of Twitter. Yeah, I got one of those.

New Atheists and Old Bigots

I must admit that I have not paid sufficient attention to the “New Atheists.”

I suppose I am what one of my friends calls an “old atheist.” Like him, I had rejected religion by my teens and moved on to other things. As my friend likes to say, “There is only one atheist book you really need. It reads, ‘There is no god. The End.’” On to improving the human condition.

Accordingly, I identify as a humanist. To clarify, not the way Men’s Rights Activists twist the term to malign feminists.(1) I mean in the sense of the American Humanist Association which has honored Gloria Steinem, Alice Walker, and Barbara Ehrenreich.(2) Specifically, I identify as a secular humanist since religious humanists also exist. But secular humanism has always struck me as the logical extension of atheism. I advocate the advancement of humanity and the celebration of its achievements.

This tightly ties into both my book and this blog because I believe that humanism is inherent in the Enlightenment's generous conception of patriotism which I contrast with narrow nationalism. Concepts like The Rights of Man transcend nation states. And as Mary Wollstonecraft (England), Judith Sargent-Murray (America), and Marie Olympe De Gouges (France) asserted, the Rights of Man must mean humanity, women very much included. True patriotism strives for liberty, equality, and democracy for everybody. It is therefore universal and internationalist.

Historically, humanists have been super-polite. Carl Sagan was kindliness personified. Indeed, he seemed nearly saintly. It is impossible for me to imagine him raising his voice. I am not saying that his politeness is a mistake – I think he is someone most people should emulate. However, the good cop/bad cop dynamic is missing and we need people like me to be assholes. And one thing I think that the New Atheists are doing right is getting confrontational. The objections to doing so are identical to the ones used against every minority that has tried to assert their rights.(3) As groups like Act Up and Black Lives Matter understand, you have to bother people. Certainly, we humanists have never shied from asserting ourselves: We have always advocated coming out of the theological closet. But we have rarely gotten really obnoxious about it and that made us heretofore easy to ignore. So, I have no problem with being rude or obnoxious. I am a sometime cartoonist and a fan of satire, so how could I?

But that does not mean that I condone bigotry just because it generates controversy. And the New Atheist movement seems to increasingly resemble Donald Trump's campaign – often dominated by Islamophobic rhetoric. Perhaps they should be called "paleo-atheists" after the paleo-libertarians some run with.

I have not read enough Richard Dawkins or Sam Harris to say how personally responsible they are for this. We should be cautious judging figures by their followers.(4) Some apologists say that their writings are more nuanced than Salon.com suggests. Although, Harris saying that "most Muslims are utterly deranged by their religious faith” is certainly not a good sign – likewise with Richard Dawkins calling Islam an “unmitigated evil.” My point here is that there are a lot of vocal Islamophobes calling themselves atheists and making shockingly shoddy arguments that are inconsistent with a scientific mindset.

Take the one that they are only attacking the religion and not the people. Turn that one around in your head for a moment. No, I mean really turn it around: You would not say that atheists should not feel threatened when politicians demonize atheism, would you? Of course not because you know that an assault on our rights comes next. Remember President George Bush, Sr.'s comments on atheists. And recall Poppy was the moderate George Bush - the "kinder, gentler" one. Regardless of how successful you think they would be, the trajectory of such rhetoric is never in question. Likewise, there is precious little “love the sinner, but hate the sin” in the Westboro Baptist Church’s “GOD HATES FAGS” signs, so it is a pretty fragile distinction and I strongly suspect planned obsolescence is in play.

Claiming that Islamophobia is not racism because “Islam is not a race” is another dud stock argument. It keeps cropping up despite its being so easily debunked. Yes, Islamophobia is not racism but an entirely different kind of bigotry – minus the word “entirely” because fear of a brown planet is part and parcel of the hostility. Likewise, sexism and homophobia are entirely separate prejudices.

This post is prompted by a debate that I had in and atheist discussion group about a month and a half ago. Yeah. But for the most part it was okay. I only had to deal with one overt racist and he dropped out after the first day. But, boy howdy, was he ever racist! Here is a sample:

Point is don't feed me this tolerance shit, Christians have nativity scenes up and you want to take them down yeah very tolerant but a Muslim who believe that people who leAve the religion should be put to death let's be tolerant guys.

This page takes no prisoners on Christians and their beliefs the you turn around and take up for Muslims who throw gays off roofs because they are gay and yes even the nice Muslims think gays should be persecuted for being gay but yet again when it comes to them let's be tolerant.

This is where the PC thing comes in you only take up for Muslims because they are a different race than WHITE, you have no trouble making fun of a Christian because we live in a time where it's cool to hate white people for being white.

So much for the claim that Islamophobia has nothing to do with racism.

Also, for the record, I do not condone throwing LGBT people off roofs. However, I will go out on a limb and guess that this guy probably does not really care about gays and was cynically concern trolling. His contempt for tolerance telegraphed that pretty clearly. Pro tip: You are less convincing when you rant about political correctness. Also, your silent dog whistle is actually quite audible.

Oh, and one more thing: Defending the separation of church and state isn't intolerance. Festoon your homes and houses of worship with whatever religious brick-a-brac you like. Buy billboards. Whatever. Just do not do it on public land or on the taxpayer’s dime. Because once you do that, you are enlisting the prestige of the state to promote your faith and proclaiming special status. Calling this commonsense precept intolerance is either ignorant or dishonest.

Yes, only one guy got explicitly racial, but he was not the only one bashing political correctness. It was almost like the 12/15/15 Republican primary debate. Pinball machine bells dinged when the candidate's time was up, but it seemed to be for whenever they said “political correctness.” They all knew that they had to push that button by the end of their answer/sound byte.

Another common comment was that I was somehow hypocritical for defending Muslims or that I thought that Islam was above criticism. Not at all. I was just pointing out how easy it was to cherry pick horrific passages out of everyone's sacred texts and it seemed that they had Sharia Law pretty much covered. And it turns out that most old holy books sound pretty much alike. I had also pointed out several recent incidents of Christian terrorism - including one that had just happened. And I also mentioned the fact that presidential candidate Ted Cruz sought and got the endorsement of a pastor who favors executing homosexuals. And he was not the only GOP hopeful seeking the pastor's blessing.

Of course, my debate opponents still insisted that none of this really counts and that Christianity had gotten such extremism out of its system. As evidence, they said America has no such laws. Um, that's not for want to trying. But if zealots fail stateside, they often succeed overseas. American Evangelical pastors essentially authored Uganda's "Kill the Gays" bill and they are pushing draconian anti-gay legislation all over Africa. They give Russia's anti-LBGT laws lots of love too. It's like the post-Tobacco Settlement strategy of the cigarette industry: Lose in America, pedal your poison abroad.

The point is that such ugly impulses remain. And those who I was arguing with puzzlingly gave America's secular safeguards precious little credit for keeping them in check.

Indeed, their argument that other religions had somehow gotten over their violent texts made me question the sincerity of their criticism of religion. It turns out that they think religion is actually pretty okay - like The Hitchhiker's Guide to the Galaxy described Earth: "mostly harmless." It's just that one particular religion that's really nasty. In their weltanschauung, Islam is the exception that proves the rule. In short, apologists were calling me an apologist. But that was not nearly as funny as their linking to fundamentalist Christian websites as credible news sources. Yes, one person actually cited World Net Daily. Meet the new Islamophobes: Same as the old Islamophobes. Or close enough. They apparently drink from the same well.

I’ve asked around, and discovered that friends have had similar experiences. All of the New Islamophobes’ arguments are pretty shoddy and have often been debunked before. But that does not stop them from repeating them. It is as robotic as a catechism recitation. To true believers, a talking point is an article of faith. They are so enamored with its imagined cleverness that they cannot be objective about it. They are incapable of recognizing that it is actually a moronic argument that could only convince a hardcore convert like themselves. Their rhetorical gold is sophomoric dross: The Dunning-Kruger Effect in action. If they could perceive their embarrassing shellacking they would take it as a test of faith. But they cannot and take it as your failure to understand. Hence the repetition.

Obviously, atheists are by no means immune to dogmatism. Take orthodox Marxists or Ayn Rand’s “Objectivists” (who Robert Anton Wilson often called "Randroids"). The interesting thing here is I was essentially accused of heresy. The overtly racist atheist said I was "giving real atheists a bad name" with my "hypocritical" tolerance. My atheism was questioned because I doubted that one religion was significantly worse than another. I did not know that was something that we had all agreed on. Did we have a meeting on this? I must have missed the memo.(5) Accordingly, my ideology was incorrect and not approved by the party. In retrospect, the experience was almost Maoist.

Let me emphasize that the atheist discussion group in question has plenty of good folks who have made posts against Islamophobia. That's important because Islamophobia must be acknowledged and confronted. There is no acceptable form of antisemitism. Secular humanists especially must confront this. Tolerance is not just a bedrock principle but something we have also benefited from. So when atheists foster religious intolerance, it is dangerous, ironic, and conspicuously pisses on what desists and atheists have been trying to achieve since the Enlightenment and I am going to call it out.


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(1) Likewise, white racists like to reply to the Black Lives Matter movement by saying “All Lives Matter.” Yes, but not all lives are equally threatened. Thus, I do not think these white racists really believe that “all lives matter.” If they did, they would share the outrage of their fellow human beings. By the same token, those who want to keep women subjugated can hardly call themselves “humanists.” Their hostility to half of humanity disproves it. They claim that women have gone beyond achieving equality and now enjoy greater power than men. But when they articulate their aims, it is “a man’s world” rather than an equal one that they seek. Both the “All Lives Matter” and the MRA twist on “humanist” are obviously dishonest and an idiot’s idea of clever. Only an ignorant bigot could find them convincing.

(2) Full Disclosure: I am not a dues-paying member of the AHA, although I used to subscribe to their magazine. So what I am saying might be slightly off and is certainly not an official position of the organization. If anyone in the AHA spots a faulty assumption, please feel free to correct me. I am using the term “humanist” broadly and this is my impression on the current state of atheism. Your mileage may vary.

(3) I do not think that atheists are “the last” or “most persecuted” minority. I do think polls that show that most Americans are least likely to vote for an atheist show a disturbing and ironic contradiction in American society. (How many of the founding fathers who were deists could get elected today because of that?) But, let’s keep things in proportion here. Again, it is not like there is an epidemic of cops routinely shooting atheists at traffic stops and getting acquitted for it. And it is not like atheists are paid less than the faithful – like women are paid less then men. Other minorities are far worse off and anyone who dismisses their hardships – while cynically invoking those same hardships as metaphors for their own struggles – abdicates any claim to be taken seriously. The dynamic might be similar, but the scale sure ain’t. And that absurdity does your claim more harm than good.

(4) I have heard that both Richard Dawkins and Sam Harris have disavowed the “New Atheist” label. Likewise, Karl Marx had also insisted that he was no Marxist. To quote the Deadly Bulb in “The Tick” TV show, “Heh. Minions.” Alas, labels are like that. Few folks know that Machiavelli wrote The Prince sarcastically. He was an advocate of independent republics and his “advice” to a prince was actually ridiculing the crimes of kings. Similarly, George Orwell was an obvious opponent of “Orwellian” forms of thought and government. Likewise, Franz Kafka was horrified by “Kafkaesque” bureaucracies. I do not want to be cavalier about inaccuracies and I certainly would hate for a twisted interpretation of one of my ideas to take root. However, the New Atheist label exists and must be dealt with. Therefore, to be ethical and err on the side of caution, I have opted to separate the celebrities from the movement. After all, it is the reactionary element that has infected the movement which is my true target.

(5) I do remember that we all agreed that taxpayers should not fund nativity scenes. (See also government displays of the Ten Commandments.) But it seems that some people may have missed that memo.