An Absolutely On-Target Essay

I frequently disagree with the conservative New York Times opinion writer Bret Stephens, but a while back, he honed in on an under-appreciated aspect of America’s current dysfunctions--our lack of authentic argumentation.

Before you decide that both Stephens and I are looney–after all, sometimes it seems as if all we Americans do is fight one another–let me emphasize that this is another of my frequent diatribes about the importance of using terminology accurately. Because whatever we want to label the interminable angry and hostile encounters between MAGA ideologues and the multiple factions of citizens appalled by and opposed to them, I don’t think you can properly call them arguments.

Stephens attributes his own appreciation of proper argumentation to his time at the University of Chicago, an institution that requires its undergraduates to read the books that formed the Western tradition, to familiarize themselves with a philosophy and literature that was notable for argumentation meant to persuade, not put down.

Where did the anti-Federalists differ from the Federalists, or Locke from Hobbes, or Rousseau from them both? The curriculum made us appreciate that the best way to contend with an argument was to engage with it rather than denounce it, and that the prerequisite to engagement was close and sympathetic reading. Reading Marx didn’t turn me into a Marxist. But it did give me an appreciation of the power of his prose.

I don’t think Stephens is wrong or exaggerating when he focuses on the importance of genuine argumentation to democracy.

What is the soul of the Western tradition? Argument. Socrates goes around Athens investigating the claims of the supposedly wise and finds that the people who claim to know things don’t. The Lord threatens to destroy Sodom for its alleged wickedness, but Abraham reproaches and bargains with Him — that for the sake of 10 righteous people He must not destroy the city.

The virtue of Chicago’s curriculum is that it introduces students to a “coherent philosophical tradition based in reasoned argument and critical engagement that explained not only how we had arrived at our governing principles but also gave us the tools to debate, preserve or change them.” (In other words, students who were required to immerse themselves in these works received an actual education, rather than a job training credential; a distinction entirely lost on Indiana’s pathetic legislature. But I digress…)

It’s hard to argue with Stephens’ observation that the Internet and the digital transformation of the way we receive information has facilitated our ability to inhabit carefully curated bubbles of ideology and “facts” confirming our biases. But he argues that the deleterious effects might have been mitigated “if we hadn’t first given up on the idea of a culture of argument rooted in a common set of ideas.”

Which brings me to Charlie Kirk.

Kirk, to my way of thinking, was not a real conservative, at least in the American sense. The point of our conservatism is to conserve a liberal political order — open, tolerant, limited and law-abiding. It’s not about creating a God-drenched regime centered on a cult of personality leader waging zero-sum political battles against other Americans viewed as immoral enemies…

It’s too bad that Kirk, raised in a Chicago suburb, didn’t attend the University of Chicago. It wouldn’t have hurt getting thrashed in a political debate by smarter peers. Or learning to appreciate the power and moral weight of views he didn’t share. Or recognizing that the true Western tradition lies more in its skepticism than in its certitude.

But the larger tragedy by far is that it’s America itself that’s losing sight of all that. In the vacuum that follows, the gunshots ring out.

That last sentence sums up the central point of the essay–at least as I read it. A citizenry that has lost the ability to engage in genuine arguments–and the operative word there is “engage”–expresses its disputes and disagreements with insults and violence.

The utter inability to engage in actual debate may be the most prominent characteristic of the incompetent clowns who dominate the Trump administration, and it may explain why the administration eschews civility and relies on invective and militarized violence rather than efforts at persuasion.

Comments

An Insider Analysis

America’s “chattering classes”–to use Molly Ivins’ apt phrase for the pundits who pontificate on our social and governmental aches and pains–come in two broad categories: inside and outside.  Commentary by members of both groups ranges from puerile to perceptive, but I think there is a special value in the observations and regrets of former Republicans who belong to the “old too soon, wise too late” category.

Stuart Stevens is one of the “Never Trump” Republicans who have reacted to the current assault on constitutional democracy by reassessing their own complicity with the darker elements of the party’s history. Stevens published a recent essay in Lincoln Square that confronted today’s realities with insights derived from his years as a GOP strategist, and several of those insights speak to many of us who once believed the party’s rhetoric.

Stevens began by posing a question we’ve all asked: How did this happen? How did we get to a place where a major American political party is controlled by one man–a man who doesn’t have to worry about Republicans in Congress exercising their governing prerogatives?

To call it partisanship is to call Ebola an airborne virus like the flu. It’s both true and woefully inadequate. The level of subservience in the Republican Party is unlike anything we’ve known in American politics. Running for office is often humiliating, inevitably exhausting, rarely enjoyable. You must suffer fools to an enormous degree and do so while feigning interest and appreciation. All of these Republican Senators and Congressmen endured the dehumanizing gauntlet of election only to come to Washington and do what? Whatever it is Donald Trump requires.

Stevens looks back at the devolution of the GOP over the decades, and finds a system that increasingly “rewarded compliance and punished independence. The path to advancement was to go along, to wait your turn.” And he acknowledges the party’s growing reliance on racism.

Since the 1960s, the Republican Party has operated as a homogenous white party, with non-college-educated white voters the dominant subgroup…. To win an election, you had one simple task: appeal to white voters. Consider this under-appreciated fact: Over the last fifty years, no Republican has been elected to the House of Representatives, Senate, or won a governor’s race who did not win the majority of the white vote.

One of Stevens’ most perceptive observations is aimed at the numerous pundits and political operatives who constantly bemoan what they see as the Democratic Party’s lack of messaging savvy. As he notes, it’s much easier to message to a monolithic base than to the wildly diverse voters who range from disaffected Republicans to Democratic socialists.

It’s often said that Republicans are better at messaging, but it’s a false standard. It’s easy to stage a successful concert for an audience that likes the same kind of music. It’s much more difficult to do the same for a crowd that enjoys very different types of music.

That homogeneity has allowed the GOP to create what Stevens calls “a top-down hierarchy.”

Like a corporate headquarters laying out a marketing strategy for regional offices, a political party that needed to appeal to the same demographic for victory gave candidates no reason not to echo its message. You were graded within the party on your ability to articulate the proscribed message and penalized for being “off message.”

That process, Stevens writes, “curates a particular kind of candidate.” Those who advance are those who are willing to follow and conform. Deviation was punished.

And what about the values the GOP extolled? Free trade. The importance of character. Family values. A muscular foreign policy. Personal responsibility.

As Stevens and many others have concluded,  those supposed bedrock values turned out to be nothing more than marketing slogans.

When Donald Trump looked at the Republican Party, he saw through the artifice of values and understood it was a party of followers. The soul of the party was conformity, not values. The “family values” party would embrace a three-time married casino owner who talked in public about dating his daughter if he could give them power. The most “conservative” element of the party that was the fiercest opponent to the Soviet Union and an expansive Russian Federation would become the beating heart of the pro-Putin movement in American politics.

So here we are. The GOP has been bleeding non-racists and non-conformists for at least two decades. It is now–as Stevens notes–a homogeneous White cult. The problem is, in a system that privileges two major parties, the intellectual and moral collapse of one of those parties is a big problem.

Comments

Losing The Rule Of Law

It isn’t just the loss of due process (yesterday’s lament).

The Bulwark recently published an essay comparing the rule of law to the rule of Trump which is displacing it. You will not be shocked by the article’s conclusion that the two are incompatible. Under the rule of law, for example, certain specified persons are empowered to use force on behalf of the state in specified circumstances against persons engaged in specified activities. The rule of law does authorize state violence, but only under the enumerated circumstances–and other laws restrain government officials from engaging in such activities.

Under the rule of Trump, inevitable conflicts between public safety officials and people with whom they engage become conflicts “between angels and demons.” In Trump’s mind (I use the word “mind” hesitantly), “military police are heroic patriots by virtue of being in his military police.” Criminals are people who anger or cross him, or object to Trump’s will. By definition, they are dangerous insurgents who must be rooted out.

In other words, criminals are whoever Trump says are criminals, including the invented rioters and murderers in his fanciful descriptions of the horrors of life in Blue cities–descriptions so at odds with reality that they confirm his mental derangement.

The New York Times recently interviewed  50 members of the Washington, D.C. legal establishment, men and women who had worked as high-level officials for every president since Ronald Reagan. The group was evenly split between Republicans and Democrats. All of them were appalled.

One former official who served in both Democratic and Republican administrations–including Trump’s first term–was quoted as saying “What’s happening is anathema to everything we’ve ever stood for in the Department of Justice.” There was a near consensus among the officials surveyed “that most of the guardrails inside and outside the Justice Department, which in the past counterbalanced executive power, have all but fallen away.”

The indictment of James Comey, the former F.B.I. director who was charged only after Trump fired the prosecutor who refused to do so and installed a pliant operative in his place, represents a misuse of power that several respondents said they had never expected to see in the United States.

The survey found a “collectively grim state of mind.”

All but one of the respondents rated Trump’s second term as a greater or much greater threat to the rule of law than his first term. They consistently characterized the president’s abuses of power — wielding the law to justify his wishes — as being far worse than they imagined before his re-election.

And every single one of the 50 respondents believe that Trump and his attorney general, Pam Bondi, have used the Justice Department to go after the president’s political and personal enemies and provide favors to his allies.

At the end of his first term. Trump pressured the Justice department to investigate obviously “fact-free” claims. Bill Barr, who was attorney general at the time, had been a close ally of Trump, arguably subverting DOJ independence on Trump’s behalf in several matters. But when Trump pressured him to pursue allegations that Joe Biden had won the 2020 presidential election because of voter fraud, Barr wrote in his memoir that it was an ask too far, and he resigned rather than give in. Other top officials also threatened to resign rather than use the department in a dishonest effort to overturn the election.

Because of the lawyers in the room, the safeguards held. But if such a scenario were to play out in Trump’s second term, the same result is “unthinkable,” said Peter Keisler, who was an acting attorney general under President George W. Bush.“No one in the room now will say no,” said the Justice Department official from Trump’s first term. The lesson Trump drew from his first term, the former official continued, is that the lawyers who talked him out of “bad ideas” were the wrong kind of lawyers. “The president has set it up so that the people who are there are predisposed to be loyalists who will help him do what he wants.”

The dismantling of the rule of law began immediately after Trump assumed office the second time, with his shocking grant of pardons and commutations to the Jan. 6 rioters. It has continued with innumerable other examples, many of which were enumerated in the Times article.

It was significant that all 50 respondents faulted Congress for doing little or nothing to fulfill its role of restraining the president–and a majority also faulted the rogue Supreme Court. When checks and balances no longer check and balance, autocracy flourishes. 

RIP rule of law…..

Comments

RIP Due Process

During my tenure as a college professor, I taught graduate and undergraduate classes in Law and Public Policy through what I called a “Constitutional lens.” I was convinced–and remain convinced–that policy decisions unconnected or antagonistic to the country’s underlying legal framework are illegitimate, and that the public affairs students who would become police officers, public managers or legislators needed an education grounded in the Constitution and Bill of Rights.

When we came to the 4th and 5th (and 14th) Amendments, the lessons revolved around the purpose and definition of “due process.” I used to introduce that discussion by drawing two circles on the blackboard (or later, the whiteboard..)–one large circle, which I labeled “the 500 pound gorilla” and a much smaller one labeled “the individual.” As I would proceed to explain, due process guarantees were intended to level, to the extent possible, the mismatch between the power of the 500 pound gorilla (the government), and the resources of far less powerful individual citizens–to require the government to prove its right to deprive a citizen of either  liberty or property.

The Fourth Amendment is considered one of the due process Amendments. It requires that the government have probable cause to arrest a citizen. The courts have (until now) defined probable cause as sufficient, reasonable, articulable grounds to believe that a crime has been committed, is being committed, or will be committed, in order to justify an arrest, search, or issuance of a warrant. Hunches or suspicions aren’t sufficient–and until this year, arresting someone solely on the basis of their identity would constitute a clear violation of the Fourth Amendment.

There are three kinds of due process recognized in American jurisprudence: criminal due process, civil due process, and substantive due process. I have written extensively about the current attack on substantive due process, which limits the areas of our lives in which government can properly intervene. When it comes to criminal due process, legal scholars frequently use the phrase “fundamental fairness” to summarize the elements intended to provide an accused person with a fair hearing, including a trial overseen by an impartial judicial officer, the right to an attorney, the right to present evidence and argument orally, the chance to examine all materials relied upon by the prosecution, the right to confront and cross-examine adverse witnesses, and the right to appeal an adverse result.

In my undergraduate classes, I sometimes used a tape from an episode of “Star Trek: Deep Space Nine” (yes, I’m a nerd) to introduce due process. In that episode,  Miles O’Brien, the station’s Chief Engineer, is arrested by Cardassians (the series’ aliens) while on a vacation. The Cardassian system is the mirror opposite of ours–O’Brien isn’t told what he was accused of, his lawyer is appointed by the state to “make the case” for his eventual execution (which was scheduled before the trial began), the Judge was also the prosecutor, and so forth. My students would be reliably outraged at the obvious unfairness of that system, and that outrage led to thoughtful and productive discussions about what a truly fair trial would look like and the reasons for the multiple requirements of “due process of law.”

The current, corrupt Supreme Court is allowing the Trump administration to eviscerate those constitutional guarantees. In Noem v. Vasquez, the Court lifted a lower court injunction against patently unconstitutional arrests of people believed to be non-citizens, essentially holding that ‘looking like an immigrant’ can now be considered probable cause for stop, arrest, and detention.

It isn’t just Supreme Court rulings diametrically opposed to years of precedent.

The Prospect, among other sources,  has reported that ICE deliberately uses bureaucratic excuses and location transfers to isolate detainees both from their families and from their lawyers. Only 23 percent of defendants in immigration court even have an attorney in court to represent them. (Unlike in criminal courts, defendants in immigration court aren’t entitled to representation.) But those who do have attorneys are struggling to connect with them. The Prospect report documents the impediments ICE has intentionally constructed to keep these detainees in situations the report describes as “punitive and desperate” and to deprive them of due process.

So here we are. We have a Supreme Court untethered to long-standing constitutional guarantees, and a federal agency committed to denying their indiscriminate targets anything resembling fundamental fairness.

We’ve unleashed the 500-pound gorilla. I’m glad I’m no longer teaching….

Comments

The Morphing Of Civil War

Americans who know anything about the country’s Civil War tend to dismiss warnings of a similar eruption. After all, the War Between the States was a war between states, a conflict with antagonists defined largely by geography. Were there Union sympathizers in the South? Pro-slavery citizens in the North? Sure. But the war was largely between Americans who inhabited specific regions of the still-new country. As pundits like to point out, that’s no longer the case; deep Blue cities are located in even the Reddest states, and the nation’s suburbs have been turning purple for several election cycles. That absence of a geographical division means another civil war is somewhere between unlikely and impossible.

A book titled “The Next Civil War” begs to differ.

Lincoln Square recently interviewed the author, Stephen Marche. Marche’s essential thesis was that our notion of what constitutes “war” is outdated.

What counts as civil war isn’t cannons at Gettysburg but something closer to “Ireland in the Troubles,”…. Low-level clashes, targeted killings, the steady presence of fear — these don’t come with banners or declarations, but they tear at civic trust all the same. That’s why the term “political violence” undersells what’s underway: It’s governance by threat, a society reshaped by intimidation. Once fear becomes the organizing principle, there’s no real boundary left between war and politics.

Stuart Stevens, who conducted the interview, noted that Marche had documented the steady “sorting” that has given us two diametrically opposed “armies.” He began with a telling statistic: the party that once competed for nearly 40 percent of the Black vote under Eisenhower, now hovers at eight percent under Trump. Over the years, the GOP purposely collapsed its coalition, abandoning a “big tent” and diversity in favor of loyalty. Partisan rewards now go to those most willing to comply, and as Stevens writes–and as we can now all see– the result is a hollowed-out political class.

In the Republican Party, competence has been traded for obedience.

Blue state governors resisting the authoritarianism of MAGA and the Trump administration are–at least in Marche’s telling–engaging in what has been dubbed a “soft secession.” The result is an emerging patchwork that signals national fragmentation.

Marche reminds readers that authoritarian regimes around the globe provide ample evidence that control doesn’t equal competence. Meanwhile, democracy is fading every day, despite the lack of a formal death notice. More troubling, politically motivated violence is rising.

Reviewers have described “The Next Civil War” as a “chilling and deeply researched work of speculative nonfiction.” Marche conducted nearly two hundred interviews with experts—civil war scholars, military leaders, law enforcement officials, secret service agents, agricultural specialists, environmentalists, war historians, and political scientists–in order to produce a book predicting a terrifying collapse of the America most of us have inhabited. Marche also interviewed soldiers and counterinsurgency experts, asking what it would take to control the population of the United States, and he tells us that “the battle plans for the next civil war have already been drawn up. Not by novelists, but by colonels.”

Thanks in large part to a fragmented, partisan information environment that facilitates misinformation and propaganda, promotes conspiracy theories, and deepens suspicions and bigotries, MAGA Republicans inhabit a vastly different reality than the one Democrats and Independents occupy. Our divisions go deeper than geography. Marche concludes that the United States as we’ve known it is coming to an end, with the only question being “how,” and in his book, he offers several scenarios to illustrate the possibilities.

I’m not convinced.

Granted, America has never been Camelot. Our elected officials have always included grifters and blowhards and outright criminals; our public policies even today fall far short of the lofty–“woke”– aspirations of the Declaration, the Constitution and the Bill of Rights. This country has always been an experiment, and people like  Marche have evidently concluded that the experiment is failing.

Marche’s book is part of a burgeoning industry of doom and gloom. Although it’s important to understand where these predictions of disaster are coming from–important to recognize the severity of the threats to our always-fragile union– it would be a mistake to give in to those predictions, to give up in advance.

Remember, those “woke” abolitionists won the last Civil War–and although it won’t be easy, We the People significantly outnumber the Trumpers who want to turn America into a White Christian Nationalist autocracy. We can win this one too.

Comments