Deconstructing America

The Founders would be dumbfounded.

Remember what you learned (maybe) in high school government class about the three “co-equal” branches of government? Well, our rogue Supreme Court says that was wrong–that judges should be the imperial, all-powerful arbiters of national life, because they know far better than the experts serving in various government agencies what government can (or really, cannot) do about elements of our common lives like air and water quality, unfair competition…you name it.

I have previously explained what was at stake in a case challenging what is called “the Chevron doctrine.” But Robert Hubbell’s Substack letter explains better than I could the appalling, immensely negative consequences of Friday’s decision over-ruling that doctrine, and I am going to quote liberally from his explanation/diatribe.

You will be able to tell your grandchildren that you lived through a judicial revolution that rewrote the Constitution to suit the financial interests of corporate America and the social agenda of an extremist minority that fetishizes guns, hates government, and seeks to impose their narrow religious views on all Americans. The open question in 2024 and beyond is whether we will reverse that revolution. The first step is to understand the earth-shaking consequences of the Court’s ruling…

The Roberts Court has anointed the judiciary as the ascendant branch of government. The person of the president—not the executive branch—is nearly omnipotent in Roberts’ schema. Congress has been neutered…

The US economy is the largest in the world by a wide margin. That size is attributable in no small measure to (a) the orderly markets and business conditions created by federal regulations and (b) the comparatively corruption-free nature of the US economy (also attributable to federal regulations).

Managing and maintaining the immense US economy is a monumental undertaking. We need regulations that control how and when fish stocks can be harvested, where medical waste can be stored, how thick concrete must be on bridge spans, what type and color of insulation must protect electrical wires, what temperature meat must be kept at when being transported across the country, and what type of information can be collected and stored in a retail transaction.

Multiply those issues by a million, and you will have a vague sense of the complexity and scale of the US economy….

Those millions of regulatory decisions demand broad and deep expertise by career professionals with advanced degrees and years of experience in their field of regulation. That expertise resides in the federal agencies housed in the executive branch under the president..Businesses hate federal regulation because they impose a trade-off: protecting the health and safety of Americans by reducing the maximum profits unrestrained businesses could earn in the short term in an unregulated economy.

The so-called “administrative state” of federal agencies has been wildly successful. It is why all international airline pilots speak English when flying between countries across the globe. It is why the US dollar is the world’s currency. It is why the world’s science, technology, and innovation hubs are located in the US. It is why every Chinese corporation that goes public in China has the goal of transferring from the Chinese stock exchanges to the New York Stock Exchange, Nasdaq, and the Chicago Options Exchange as soon as possible…

As Hubbell writes, Friday’s decision dramatically reduces the power of Congress by requiring that legislation be as specific as an instruction manual. Under Chevron, when Congress directed the Executive Branch to achieve a desired goal, agency personnel with deep expertise in the relevant area would determine how best to reach that goal. If a regulation was challenged, the Court could strike it down if evidence showed it was unreasonable, but absent such evidence, the courts  deferred to the agency’s interpretation.

Hubbell provides an example:

If the Court requires Congress to specify the precise number of salmon that can be taken from the Klamath River each year rather than saying that the NOAA Fisheries Department shall establish fishing quotas to maintain healthy fish populations in inland waterways, Congress’s work will grind to a halt. Members of Congress have neither the time nor expertise to determine a healthy fish population for each inland waterway in the US. In the absence of “the administrative state,” Congress (or the courts) must serve as the regulators of the millions of daily transactions governed by federal regulations.

In the future, when a business challenges a regulation, federal judges rather than agency experts will interpret and apply–or more likely, overturn– the regulation. We’ve seen the arrogance and fact-free behavior of recent, ideologically-driven judicial appointees. 

The Trump judges on the Supreme Court have accomplished things near and dear to the Rightwing heart. In addition to dramatically undermining the liberties protected by the Bill of Rights, they have substantially deconstructed the checks and balances of the Founders’ government structure. They certainly aren’t “originalists” in any sense that matters.

At best, it will take years–generations–to undo the damage. At worst, a Trump win in November and implementation of Project 2025, would foreclose any possibility of enlarging or otherwise restraining this rogue Court and beginning to reverse the enormous damage it has caused.

What is truly terrifying is how few Americans seem to understand the stakes.

This election is a choice between an elderly man who has been an exemplary President but a poor debater and an equally elderly man who, in service to his own monumental ego and his rabid White Christian Nationalist base, is intent upon destroying America as we know it. 

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Indiana’s White Christian Nationalist Ticket

In November, Americans will choose between/among candidates for various public offices. The potentially dire results of a GOP victory will be especially acute in Indiana, where a Democratic ticket composed of qualified candidates supporting rational policies that would once be considered middle-of-the-road will face off against an extreme, rabid collection of White Christian Nationalists.

It goes without saying that the Christian Nationalists will have more money–Hoosier Democrats are notorious for giving up before the campaign really starts, under the defeatist theory that Indiana is a hopeless case, and sending their dollars to candidates in states where they think the odds are better.

So what is the evidence for my assertion that the GOP’s entire ticket is composed of MAGA theocrats? 

Let’s start with Braun, who is, incredibly, the least scary of the batch. Just a few data points out of the many available:

  • when the surgeon general recently pointed out what everyone knows–that gun violence is a public health issue–Braun and his GOP colleagues immediately introduced a bill prevent the President and the Secretary of Health and Human Services from declaring gun emergencies. 
  • he’s on record supporting the continuing destruction of public schools, via vouchers and legislation to ostensibly shield children from “divisive” concepts.
  • he promises that “woke-ism” and any effort to accommodate diversity, equity and inclusion will have absolutely no place in Indiana government.
  • And of course, he staunchly supports the wholesale denial of reproductive rights to Hoosier women.

I need not elaborate on Pastor Micah Beckwith, a theocrat who proudly self-identifies as Christian Nationalist, supports censorship, wants to ban all abortions–no exceptions– and says that the January 6th insurrection was an “act of God.” (He also says God wanted him to win the nomination…). Beckwith opposes the “woke agenda,” and clearly has no interest in–or credentials for– the actual job of Lieutenant Governor.

Until Micah Beckwith won the nomination for Lieutenant Governor, Jim Banks was the scariest, most extreme member of the GOP ticket. I have previously listed the culture war positions that make him unfit for public office. Several times, actually.

  • He wants a national ban on abortion with no exceptions, not even for rape, incest or life of the mother. 
  • He is opposed to even the most modest efforts to control the proliferation of firearms, supporting concealed carry and opposing background checks for private sales.
  • He calls climate change a “liberal hoax,”
  • He has a zero rating from the AFL-CIO. 
  • He opposes any expansion of healthcare coverage, and rejects medical science, supporting legislation that would ban vaccine mandates. He has voted to repeal the ACA, against legislation that would prevent insurers from discriminating on the basis of pre-existing conditions, and against efforts to fund research into the effects of marijuana. 
  • He created the “anti-Woke” caucus in the House of Representatives and introduced legislation to outlaw any remaining affirmative action in college admissions. He’s been dubbed “Focus on the Family’s Man in Washington,” opposes all Diversity, Equity and Inclusion programs and is especially noted for his strenuous opposition to gay rights generally, and for truly despicable attacks on trans children.

And then, of course, there’s Todd Rokita, running for re-election as Indiana Attorney General, about whom I have posted numerous times. That would be the same Todd Rokita who placed a White Supremacy “thin blue line” flag in his office window, the same Todd Rokita who obsessively panders to the GOP’s most extreme Right wing and has enthusiastically thrown the weight of his office behind anti-abortion extremists– the same Todd Rokita who was charged by the Indiana Supreme Court Disciplinary Commission with violating professional conduct rules while conducting an unhinged vendetta against the Indiana University doctor who performed an (entirely legal) abortion on a 10-year-old rape victim from Ohio.

There is so much more that could be said about these odious, unAmerican candidates. (I’ve previously said a lot of it.) Back when I was a Republican, nominating any of these men would have been unthinkable, but today’s GOP is entirely MAGA–and utterly terrifying.

Fortunately, Hoosiers have excellent alternatives in Jennifer McCormick, Terry Goodin, Valerie McCrae and either of the women running for Attorney General, and I plan to work as hard as I can to help elect them. (One thing I am doing is co-sponsoring a fundraiser for McCormick on the evening of July 30th–if anyone reading this would like to be invited, let me know!)

It’s not just Indiana, of course. If Trump is elected, we not only lose America, we probably usher in WWIII, so moving isn’t an option.

These are perilous times for governance, the Constitution and the rule of law. Not to mention world peace.

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Where “Both Sides-ism” Comes From

One of the most maddening aspects of our current information environment is the media’s constant reach for a bogus equivalency between actions and opinions that most of us see as decidedly unequivalent. Perhaps I’m indulging in false nostalgia, but I remember a time when accuracy and–to the extent possible–objectivity were the markers of good journalism. (I tend to think that all changed when Fox “News” entered the picture and equated fairness with “balance,” but the essay linked below suggests the picture is more complicated than that…)

I still agree with whoever said the journalist’s job is not to report that person A says it’s raining and person B says it’s not–it’s to look out the window and tell us who’s right.

A recent article by Rick Perlstein in the American Prospect considered this aspect of contemporary media. He contrasted what I’m calling “both-sides-ism” with the approach taken by Josh Marshall in Talking Points Memo, a site I depend upon for clear-eyed reporting. (I’m not the only one who finds TPM a valuable resource; I note that several of the other sources upon which regularly rely, including Robert Hubbell and Heather Cox Richardson, also regularly cite to TPM.)

Perlstein is writing a book

about how the last 25 years of American politics brought our democratic republic to the brink of collapse. It apportions one-third of the blame to the failings of elite political journalism. One way I make the case is by pointing to two movements that arose in the opening months of Barack Obama’s presidency, and describing how both were reported in The New York Times.

The first was covered at a volume that betokens obsession. It was called the Tea Party. The Times told its story largely in the way its leaders wished: as a spontaneous outpouring of nonpartisan anger from ordinary Middle Americans at the alleged fiscal irresponsibility of the Obama administration.

The second movement was formed from the dregs of the 1990s militia movement. It sought to recruit active-duty military and police to thwart the Obama administration’s alleged plan, as founder Stewart Rhodes described it in his original manifesto, to “go house-to-house to disarm the American people … with orders to shoot all resisters.” These were the Oath Keepers, whom the Times only ever mentioned in a single news story, in passing, busy as they were sanding down the Tea Party to fit it into the both-sides “polarization” narrative that defines mainstream American political journalism.

It was a pretty striking example of how a supposed Newspaper of Record actively renders it impossible for ordinary news consumers to form an accurate picture of what was going on in front of their noses.

Perstein contrasts that faux equivalency approach with TalkingPointsMemo.com which he says is the “actual publication of record, compiling a bountiful archive of the ways “extremism” and “mainstream” merged in the history of the Republican Party from the dawn of President George W. Bush to the present.”

The essay is lengthy, and includes both a history of TPM and theories about how we got to this point. One part of that discussion really resonated with me; Perlstein writes that the Internet created a new D.C.-based national political journalism space—the Politicos, the Axioses, The Hill, etc., all of which are funded by a subset of the national corporate lobbying budget.

You advertise in Politico, you sponsor Politico’s events, because you need to talk to the people who run the state from Washington D.C., who don’t give a fuck if you are a political obsessive in Kentucky. ‘I need to be talking to the staffers who write the legislation on Capitol Hill.’… And so your publication can’t be left, or even right, in the sense that they see it. You’ve got to be nonpartisan and centrist. Whether or not the cocky 35-year-old political reporter who’s a dick on Twitter understands where his both-sides thing comes from—that’s where it comes from.”

As Marshall is quoted in their discussion, “What we think of as the ‘both sides’ thing is an artifact of the economic structure.”

Follow the money…

Here’s the problem: functioning democracies depend upon the existence of an informed electorate. When the most reliable sources of political news try to find a “balance” between disinformation and accuracy, they aren’t just distorting reality. They are undermining democracy.

In all fairness, no reporting is, or can be, perfect. Even the best reporters can only see through their own eyes, interpret what they see through their own worldviews.

But accurate, objective journalism can tell us whether it’s raining.

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OK–Let’s Talk About Virtue Signaling

A few days ago, a commenter dismissed the recent Women’s Strike as “useless virtue signaling.” That contemptuous comment prompted me to consider both the attitude prompting someone to post that condescending taunt as well as the definition and effect of virtue signaling.

I’m at a loss about the attitude, but I have some very definite opinions about what does–and does not–constitute behavior intended to convey one’s “virtue.”

I first encountered the phrase “virtue signaling” several years ago, when I purchased my first Prius, and a colleague–who, I hasten to say, approved of the purchase and who worries about climate change– told me that Toyota depended upon virtue signaling as a marketing tool. Making people feel virtuous for reducing their use of fossil fuel helped them sell their cars. It’s all about the bottom line, baby!

I understood his point; after all, people have been purchasing cars to “send a message” for generations. Until recently, that message had little to do with virtue or the environment–it was more along the lines of keeping up with the Joneses (or letting them know you could afford that Cadillac…)

Wikipedia’s entry on the term distinguishes between virtue signaling that is what we sometimes call “humble bragging” and the other motivations for– and effects of– communicative behaviors. The entry also included the following, very interesting, observation:

Linguist David Shariatmadari argued in The Guardian that the very act of accusing someone of virtue signalling is an act of virtue signaling in itself. The Conversation‘s Karen Stollznow said that the term is often used as “a sneering insult by those on the right against progressives to dismiss their statements.” Zoe Williams, also writing for The Guardian, suggested the phrase was the “sequel insult to champagne socialist“.

The Wikipedia article also suggested that the term is most commonly applied to online expression rather than in-person behaviors and activities.

The dismissal of the Women’s Strike (and presumably the Women’s March that occurred after Trump’s election) as useless “virtue signaling” struck me as not only patronizing but entirely wrong. It utterly misses the point of civic demonstrations, which are an important–and effective– element of social movements and social change.

The first and most immediate effect of a successful demonstration–a strike, a march, or other public display–is communication. Participation in a protest or other public display does two things: first, it tells other people that their concerns are broadly shared, that they are not alone; and second, it sends a message to those who are in a position to correct the problem that generated the event.

When a segment of the population is upset about something–racism, homophobia, misogyny, failure to fix potholes, whatever–concerted public actions that serve to tell individuals that they aren’t alone, aren’t the only people with that particular concern–are extremely important. (If you hold a demonstration and no one comes, that’s an important message too.) Brooding alone about problem X leads to feelings of powerlessness; joining with others who share your concern or anger strengthens your resolve to do something about it.

It also facilitates contact with others who agree with you, making other action more likely.

In states unlike Indiana, where the existence of referenda or the absence of gerrymandering means that legislators actually have to respond to constituent concerns, demonstrations and other public actions alert those in office to matters requiring their remedial action.

It’s true that few of these public protests get prompt positive results.

But even when strikes or marches or other displays of public concern fail to produce immediate results, over time, those expressions of opinion can and do change the culture. Little by little, they produce social change. Where would the civil rights movement, the gay rights movement or the women’s movement be today without the years of “virtue signaling” that John Lewis aptly called “good trouble”?

In any effort to effect social change, there will be good-faith arguments among proponents about the tactics to be employed. Will X be effective or counter-productive? Is this the right time to try Y? What if we plan a march and no one comes? Those are important discussions.

But they have absolutely nothing to do with “virtue signaling.”

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Federalism And MAGA Lies

I know it’s hopeless to expect anything approaching logic–or constitutional knowledge– from MAGA conspiracy theorists, but I’ll admit I still get surprised by the sheer fact-free idiocy of some of their anti-Biden accusations. In many cases, that idiocy is an outgrowth of what I call “civic illiteracy”–an obvious lack of knowledge of the most basic structures of American government.

Take the MAGA folks who are screaming over Trump’s New York prosecution and subsequent guilty verdicts. Republican partisans–some of whom, as elected officials, should certainly know better–accuse the Biden administration of “weaponizing” the Department of Justice, claiming that President Biden was responsible for both Alvin Bragg’s decision to charge Trump and for the subsequent jury verdict.

Yeah! As the Lincoln Project recently noted, it’s also Biden’s fault you got that speeding ticket!

Anyone who took a high school government class (and actually passed) should know the difference between federal and state jurisdiction. That difference is part of what we call federalism–and it’s foundational to our legal and governmental systems. As I used to explain to my students, the Founders gave us both horizontal and vertical checks and balances: separation of powers (dividing authority among the branches of government–someone should tell Tommy Tuberville), and federalism (dividing authority between federal, state and local units of government).

Federalism is evidently a concept utterly foreign to a large segment of the voting population. As the Washington Post recently reported, a CBS News-YouGov poll tried to figure out just “how many Americans buy into the baseless idea that Biden had something to do with the charges against Trump in Manhattan.

Turns out, it’s 43 percent — and 80 percent of Republicans. Those are the percentages who agree that the charges were brought because of “directions that came from the Biden administration,” rather than merely by “prosecutors in New York.”…

The article debunked several aspects of the claim, and noted

This theory was also firmly rejected in recent weeks by no less than former Trump lawyer Joe Tacopina, who worked on Trump’s defense early in the Manhattan prosecution. He called the idea “silly” and “ridiculous.”

“Joe Biden or anyone from his Justice Department has absolutely zero to do with the Manhattan district attorney office,” Tacopina said in an MSNBC interview, adding, “We know that’s not the case, and even Trump’s lawyers know that’s not the case.”

“People who say that,” Tacopina told MSNBC, “it’s scary that they really don’t know the law or what they’re talking about.”

By Tacopina’s formulation, 4 in 10 Americans have no idea what they’re talking about.

As the article notes, this is hardly the first time Trump’s base has come to believe nonsense, despite a lack of any evidence–and in spite of the fact that believing it requires total ignorance of the structure of their own government.

Believing that the federal government stage-managed a state-level trial also requires a considerable amount of cognitive dissonance, since the GOP has long insisted on an extreme version of “state’s rights.”

In fact, the Republican Party has never quite gotten over its original resentment over incorporation–the odd word for the doctrine that nationalized the Bill of Rights. That process was initiated after passage of the 14th Amendment constitutionalized the principle that the fundamental liberties protected by the Bill of Rights should be a “floor”–that a citizen in Alabama should enjoy the same basic rights as a citizen of New York. States are able to enlarge on those rights, but thanks to nationalization of the Bill of Rights, they are forbidden to retract them. (That’s why the theocrats found it necessary to eliminate reproductive freedom from the liberties protected by the Bill of Rights.)

Our relatively strong federal government was founded in reaction to the serious and multiple problems the country experienced under the Articles of Confederation, which gave states far too much authority.  Obviously, not all policies need to be nationally uniform–there are plenty of areas where local control is appropriate. However, questions about who is entitled to fundamental rights–and what those rights are–shouldn’t be one of them, as the patchwork of approaches to reproductive freedom that’s emerging is likely to demonstrate. Forcefully. Justice Alito’s dismissal of the substantive due process doctrine is-–among other incredibly negative things– a step back toward the fragmentation of the Articles of Confederation.

But that step back didn’t merge state and federal justice systems.

Some of the Republicans who champion “states rights” are happy to ignore the whole concept in order to fabricate a ridiculous–albeit comforting– accusation. Others–probably the majority– are just broadcasting their profound ignorance of America’s basic governance structure.

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