Don’t Know Much About History…

It’s not just a song by Sam Cooke…

This Fourth of July, Americans aren’t only fighting over our future; we are also fighting over our past–and the need to learn from it. That requires  a clear-eyed encounter with history– accurate history.

Efforts to teach a non-whitewashed  ( pun intended) history in the public schools has been met with so-called “anti-CRT” bills, angry parents accusing school boards of blaming today’s children for the sins of the past, and “patriotic Americans” demanding that history classes emphasize the ‘greatness” of the country and minimize or ignore deviations from our Constitutional aspirations.

The Supreme Court was able to count on that ignorance of actual history in its decision in Dobbs v. Jackson.

In that decision overruling Roe v. Wade, Justice Alito relied substantially on a dishonest recitation of American history  to justify his result.  Few Americans were in a position to point to that dishonesty and set the record straight. I have previously posted on this subject, but let me repeat a portion of what Randall Ballmer, an eminent historian of Evangelical Christianity, has written.

Both before and for several years after Roe, evangelicals were overwhelmingly indifferent to the subject, which they considered a “Catholic issue.” In 1968, for instance, a symposium sponsored by the Christian Medical Society and Christianity Today, the flagship magazine of evangelicalism, refused to characterize abortion as sinful, citing “individual health, family welfare, and social responsibility” as justifications for ending a pregnancy. In 1971, delegates to the Southern Baptist Convention in St. Louis, Missouri, passed a resolution encouraging “Southern Baptists to work for legislation that will allow the possibility of abortion under such conditions as rape, incest, clear evidence of severe fetal deformity, and carefully ascertained evidence of the likelihood of damage to the emotional, mental, and physical health of the mother.” The convention, hardly a redoubt of liberal values, reaffirmed that position in 1974, one year after Roe, and again in 1976.

Ballmer tells us that Falwell and Weyrich, who were furious about efforts to tax their segregation academies, were “savvy enough” to recognize that organizing grassroots evangelicals to defend racial discrimination would encounter moral blowback. “Saving babies” was far more palatable.

Another scholar who has criticized the ahistorical tale told by Justice Alito is  Geoffrey Stone, who authored “Sex and the Constitution” and  teaches law at the University of Chicago. Stone was a Supreme Court Clerk when Roe was decided; as he says,

Americans, almost all, believed at that time that abortion had always been illegal, that it had always been criminal. And no one would have imagined that abortion was legal in every state at the time the Constitution was adopted, and it was fairly common. But people didn’t know that.

The justices came to understand the history of abortion partly because [Justice Harry] Blackmun previously had been general counsel [at the Mayo Clinic] and researched all this stuff. But this history also began to be put forth by the women’s movement. And this was eye-opening to the justices, because they had, I’m sure every one of them, assumed abortion had been illegal back to the beginning of Christianity. And they were just shocked to realize that was not the case, and that prohibiting abortion was impairing what the framers thought to be … a woman’s “fundamental interest.”…

In the 18th century, abortion was completely legal before what was called the “quickening” of a fetus – when a woman could first feel fetal movement, or roughly four and a half months through a pregnancy. No state prohibited it, and it was common. Post-quickening, about half the states prohibited abortion at the time the Constitution was adopted. But even post-quickening, very few people were ever prosecuted for getting an abortion or performing an abortion in the founding era.

This accurate history gives the lie to Justice Alito’s claim that the right to abortion was not ” deeply rooted in the nation’s history and traditions.” Several other historians–notably Heather Cox Richardson–have also disputed Alito’s characterization.

It’s highly unlikely that teaching more accurate history would have included the history of reproductive rights, but it would have–and should have–included those elements of the American past that gave rise to the racial and religious divisions we are experiencing today. Going through school, as I did, without ever encountering the Trail of Tears, the Tulsa massacre, the rise of the KKK and so much else leaves students without important context they need in order to understand today’s political debates. (It’s not just the omissions; we are now discovering that the tales we were told, and told to remember,  were often twisted...)

As legal scholar Akhil Reed Amar recently argued, “originalism” needn’t be dismissed as simply a dishonest tactic employed by radically conservative judges. Based on good, accurate history, it can be surprisingly progressive.

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Behind the Misleading Labels

One of my pet peeves–okay, one of the aspects of American political debate that absolutely drives me up the wall–is the substitution of labels for adult argumentation. We see the use of labels to dismiss factual disputes from all parts of the political spectrum, with right-wingers accusing Democrats–and even moderate Republicans– of being “socialists” and”Marxists” and left-wingers calling everyone to the right of Bernie Sanders   “fascists.”

In fact, I just did that too–I labeled by using the terms “left” and “right”–terms that aren’t remotely accurate. What passes for the far left in the U.S. is middle-of-the-road in Europe and elsewhere, and while we have definitely seen a growing number of American fascists, most of the screamers on what we think of as the political right are just our usual, garden-variety racists and White Nationalists.

These right and left labels are especially misleading, because what constitutes left and right in American politics has shifted. Dramatically.

I’m an excellent example. When I ran for Congress in 1980, as a (pro-choice, pro-gay-rights) Republican, I was routinely labeled “too conservative.” Today, I’m just as routinely accused of being a lefty/ socialist,  although I haven’t changed my political philosophy. (I have changed my positions on a couple of issues, as a result of learning more about them, but I haven’t changed my underlying approach to issues of liberty and the role of government.)

In other words, while I stood philosophically still, the popular definitions of “left” and “right” changed. The Overton Window shifted.

In a recent column, Paul Krugman considered how–and why– that change occurred.

As anyone with a living braincell has observed, today’s GOP bears little to no resemblance to the party I once belonged to, and its transformation from a respectable center-right political party to the irrational and frightening cult it has become is a vivid illustration of how misleading those labels really are.

Krugman reminds us that the change occurred over many years; Trump was just the most recent manifestation. He rquoted congressional scholars Thomas Mann and Norman Ornstein, who warned us in 2016 that the GOP had become “an insurgent outlier” that rejected “facts, evidence and science” and didn’t accept the legitimacy of political opposition. And he noted a 2019 survey of international political parties intended to determine their commitment to basic democratic principles and minority rights. The G.O.P., the survey found, “looks nothing like center-right parties in other Western countries. What it resembles, instead, are authoritarian parties like Hungary’s Fidesz or Turkey’s A.K.P.”

Such analyses have frequently been dismissed as over the top and alarmist. Even now, with Republicans expressing open admiration for Viktor Orban’s one-party rule, I encounter people insisting that the G.O.P. isn’t comparable to Fidesz. (Why not? Republicans have been gerrymandering state legislatures to lock in control no matter how badly they lose the popular vote, which is right out of Orban’s playbook.) Yet as Edward Luce of The Financial Times recently pointed out, “at every juncture over last 20 years the America ‘alarmists’ have been right.”

Why has this happened?

Krugman compared the GOP transformation to populist emergences in Europe, and found those comparisons unhelpful. His ultimate conclusion was persuasive.

It’s a puzzle. I’ve been spending a lot of time lately looking for historical precursors — cases in which right-wing extremism rose even in the face of peace and prosperity. And I think I’ve found one: the rise of the Ku Klux Klan in the 1920s.

It’s important to realize that while this organization took the name of the post-Civil War group, it was actually a new movement — a white nationalist movement to be sure, but far more widely accepted, and less of a pure terrorist organization. And it reached the height of its power — it effectively controlled several states — amid peace and an economic boom.

What was this new K.K.K. about? I’ve been reading Linda Gordon’s “The Second Coming of the K.K.K.: The Ku Klux Klan of the 1920s and the American Political Tradition,” which portrays a “politics of resentment” driven by the backlash of white, rural and small-town Americans against a changing nation. The K.K.K. hated immigrants and “urban elites”; it was characterized by “suspicion of science” and “a larger anti-intellectualism.” Sound familiar?

OK, the modern G.O.P. isn’t as bad as the second K.K.K. But Republican extremism clearly draws much of its energy from the same sources.

And because G.O.P. extremism is fed by resentment against the very things that, as I see it, truly make America great — our diversity, our tolerance for difference — it cannot be appeased or compromised with. It can only be defeated.

It’s hard to argue with Krugman’s diagnosis. It’s even harder to see just how the rest of us can recapture our governing institutions. If we don’t, however, in short order that “fascist” label will become horrifyingly accurate.

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A Concise Diagnosis

In an aside in a recent column about the January 6th hearings, Jennifer Rubin really summed up the current crisis (or more accurately, crises) in American governance.

Trump utterly failed the country; his successor is stymied by a radicalized opposition determined to see him fail. The Senate is gridlocked by a minority party wielding the filibuster to, among other things, preserve voter suppression and subversion laws. The Supreme Court has been overtaken by rank, radical partisans whose decisions cannot be defended on the merits and whose public utterances and tone lack any semblance of “judicial temperament.” We seem stuck because structural advantages for the minority (the Senate, the electoral college, the right-wing Supreme Court) make real reform impossible.

Rubin’s main thrust was the meaning of the very real heroism displayed by poll workers Ruby Freeman and Shaye Moss. (The column was written before the even more impressive bravery displayed by Cassidy Hutchinson this week.)

Unlike a number of the witnesses called by the committee, these two women–mother and daughter–weren’t high-ranking members of the administration or Department of Justice, people who might lose a current job but would have little trouble finding new ones. Freeman and Share are ordinary citizens who were doing some of the low-paid jobs essential to the operation of democratic elections. Rubin is certainly correct in lauding the courage they displayed both in doing those jobs accurately and in testifying; her point was that they served the country just as surely as our military does, and that we need civilians “like Ruby Freeman and Shaye Moss in public life if we are to muddle through a dangerous and disturbing period in our history.”

I don’t disagree, but I remain fixated on the quoted paragraph, because it succinctly sums up the challenges we currently face–and their magnitude.

I’ve written several times about the filibuster, and how its current use differs substantially from its historic one. The wrongheaded protection of what the filibuster has become allows a minority of lawmakers– who have been elected by a minority of voters– to veto the demonstrable will of the great majority of American citizens.

I need not reiterate the evidence showing how drastically the current Supreme Court has deviated from what was thought to be settled jurisprudence. To use a term beloved by a former vice-presidential candidate, the Court’s majority has “gone rogue.” To the extent that Americans were relying on the judiciary to protect fundamental rights, the Court’s current majority has signaled repeatedly that such reliance is misplaced–at least, so long as that majority fancies itself a religious tribunal rather than a court of law  bound by precedent and serving a theologically and ideologically diverse population.

In the final sentence of that quoted paragraph, Rubin alludes to what has become my most pressing–and depressing– concern: the obsolescence of much of America’s electoral and governing systems.

I doubt we can ever do anything about the fact that electing two senators from every state, irrespective of massive disproportions in population, means that very soon 70% of the Senate will represent 30% of the population. So long as our rogue court continues to protect partisan gerrymandering, lawmakers in both houses will continue to be answerable primarily–indeed, overwhelmingly– to rural Americans. The difficulty of amending the Constitution means we are probably saddled with the Electoral College for the foreseeable future–I don’t hold out much hope that the National Popular Vote Compact will be ratified by states having the necessary 270 electoral votes. (I would love to be wrong!)

The only remedy I can see would be a massive turnout in November repudiating the GOP –turnout large enough to allow Democrats  to get rid of the filibuster and pass a number of remedial measures–most importantly, the voting rights act. That law  would–among other salutary consequences– outlaw gerrymandering. Congress could also add Justices to the Court, diluting the power of the Court’s radical theocrats.

Are the Democrats perfect? Certainly not. But they’e a thousand times saner than the cult that is today’s GOP. If that cult loses badly enough, it will either be reformed from within, by genuine conservatives like Adam Kitzinger and Liz Cheney, or go the way of the Whigs.

Either way, We the People could then go back to arguing over our policy differences, rather than the survival of the republic.

In a very real way, Rubin was right: America’s future depends on ordinary citizens–those who do their jobs, and especially those who cast their votes to rescue the Constitution and Bill of Rights from the autocrats and theocrats. I’m clinging by my fingernails to the hope that there are enough of those citizens…

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The Supreme Court Has Made Me A Liar

This week, the United States Supreme Court laid waste to 20 years of lectures I gave my students.

I used to explain the importance of stare decisis–the importance of a predictable and stable legal system based on fidelity to the rule of law. I explained that the Founders used lifetime appointments to the federal judiciary to shield judges from political pressures and allow them to engage in dispassionate evaluation of the law and facts of the cases before them. And I emphasized that–while statutes can be passed to confer and protect rights– statutes are much more easily overturned than rights secured by the Constitution.

Mitch McConnell’s Court has proven me wrong on all counts.

Stare decisis? Precedent? What are those to determined judicial ideologues? Mere minor impediments to be brushed away by finding that they’d been wrongly decided and followed.

What about those lifetime appointments? Thanks to a Senate dominated by politicians determined to appoint political cronies, those lifetime appointments have become protection against removal–giving  Justices who have clearly subordinated ethics and dispassionate evaluation to political ideology free reign to wreak havoc with the rule of law.

it was appalling enough when the religious tribunal that constitutes today’s Supreme Court majority overruled Roe v. Wade –a fifty-year precedent–using language that clearly signaled the coming of an all-out assault on other rights. That decision followed a victory by the gun lobby that overturned a New York statute that had been in place for over 100 years, and was equally dismissive of the plain language of Justice Scalia’s decision in Heller.

As if the case from Maine requiring vouchers to be spent at religious schools wasn’t a clear enough message that the majority was coming for the Establishment Clause, the Court drove that message home: the tribunal ruled that a public school corporation must allow a football coach to deliver performative prayers on the football field’s 50-yard line–a clear endorsement of religion, and a radical departure from over 100 years of First Amendment jurisprudence. That decision created a hole in Jefferson’s “Wall of Separation” big enough for the Christian Taliban to drive through, and arguably put prayer back in the nation’s public schools.

(More solicitude for religion: the Court ruled that Texas would violate religious freedom if it executed a death row inmate without allowing his pastor to touch him and pray aloud with him. Evidently, killing him didn’t pose any religious problem–or constitute a “pro life” inconsistency…)

But this radical Court didn’t stop with those UTurns in the law. Yesterday, it eviscerated   the ability of the EPA to act on urgent environmental threats–again, despite precedents to the the contrary. In yet another 6-3 decision, the Court limited the Environmental Protection Agency’s authority to set standards on climate-changing greenhouse gas emissions for existing power plants. A Guardian editorial said the ruling “means it may now be mathematically impossible through available avenues for the US to achieve its greenhouse gas emissions goal.”

Evidently, these Justices don’t have grandchildren who will have to live in a society upended –or possibly just ended–by climate change.

There were other, less publicized offenses against the rule of law.

Wednesday, the Court dramatically increased the power of states over Native American tribes. That result –a win for Republican officials in Oklahoma–required ignoring the Court’s own 2020 ruling that had recognized an expanded tribal authority. (That particular affront was too much even for Justice Gorsuch, who–for once–departed from the lockstep radical majority.)

In another 6-3 case demonstrating the selective nature of the majority’s concern for life (the concern apparently evaporates at birth) the court found that the Biden administration’s vaccine-or-testing mandate for large employers was not lawful.

The New York Times has a rundown of this appalling session, with additional cases.

This recitation brings me to my final error: telling my students that constitutionally protected rights are more stable than rights protected only by statutes.

Congress can–and must–codify the rights this illegitimate Court has trampled, as well as those it is clearly threatening. It also needs to add Justices chosen by a President who actually won the popular vote. But in order to do those things and take other critical steps, Democrats must win in November, and they must win control of the Senate in sufficient numbers to make Joe Manchin and Kyrsten Sinema irrelevant.

Off-year elections almost always favor the party that doesn’t control the White House. If the GOP wins even one house of Congress this year, it is not hyperbole to say that the Constitution and Bill of Rights are effectively over. Neutered. Irrelevant.

Vote Blue no matter what. We can argue about gas prices after we save the Republic.

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Fact, Analysis, Opinion

I’ve repeatedly used this platform to complain about the deficits of what have been called “ghost” newspapers, like the remnants of our local Indianapolis Star. Unlike the 2000+ papers that have simply disappeared over the past several years, ghost papers still exist, but in a form that is no longer adequate to the needs of the community. Here in Indianapolis, the Star (never a particularly good newspaper) no longer bothers to inform the public about the various agencies of local or state government; it devotes its reduced reporting resources mainly to sports and entertainment, with occasional forays into “human interest” stories. As a result, significantly fewer people look to the Star as a common source of information for residents of central Indiana.

(I’m happy to note that the Star’s deficiency has sparked creation of a new nonprofit covering the Statehouse: the Indiana Capital Chronicle. May they prosper!)

The loss of local newspapers hasn’t just deprived us of local news. It has also deprived us of analyses of that news, columns and letters to the editor expressing a variety of opinions over the meaning and significance of the matters being conveyed.

The Star is a Gannett paper (which explains a lot about its sorry state), and it turns out that Gannett isn’t simply uninterested in providing local communities with needed information.A reader recently sent me a column (snatched from behind a paywall) outlining Gannett’s recent decision to minimize inclusion of analysis and opinion.

Gannett, America’s largest newspaper chain, recently recommended changes to its affiliates’ opinion pages. There will be fewer syndicated columnists and letters to the editor and no more editorials that, in Gannett’s words, “tell voters what to think.” Gannett’s directive noted that editorials and opinion columns are among the most frequent reasons that readers give for canceling their subscriptions, and many of the chain’s opinion pages across the country are poised to cut back production or fold up shop in response.

It is certainly the case that devoting editorial pages to opinions focused on national events adds to our current American polarization. But as the writer noted, space devoted to opinions on local matters has the opposite effect–it brings readers’ attention back to the local community and strengthens local connections. He insists–I believe correctly–that Gannett and other newspaper owners should “reinvest in what makes an opinion page work: amplifying local voices, presenting a diverse array of opinions in a respectful way, and serving as their community’s public forum.”

A local newspaper’s main advantage in today’s sprawling media marketplace is its geographic focus: Nobody covers a community as thoroughly as its newspaper, even today. The opinion page is an essential part of that coverage because it seeks out and organizes a diverse array of community perspectives. It is the least “professional” part of the newspaper: a place where you can learn about the issues facing neighbors, community leaders, and elected officials in their own words. Unlike the neighborhood Facebook and NextDoor groups that so often fill in local news deserts, where the brashest and most extreme voices rise to the top, an opinion page is edited according to journalistic ethical standards of fairness, accuracy, and fact-checking.

Opinion columns and vetted letters to the editor aren’t the sort of “opinions” that litter Facebook and Twitter–posts that are all too often little more than insults and/or invective.

Good opinion writing is analytical–it is based upon the factual reporting, but goes beyond the surface to explore the significance of the reported facts and opine about their likely meaning and possible consequences. Opinion writers almost always come with a bias or point of view, and good opinion writers are explicit about their ideological commitments, but they also come with background in the subject-matter that allows them to illuminate what the bare recitation of “who what where when and why” cannot.

There’s a reason they are sometimes called “think pieces.”

The author of the column from which I’ve pulled these quotes–a journalism professor–points out that effective columnists are trained in the art of observation. And as he says, a talent for connecting storytelling with current events makes an impression on readers that the bare recitation of facts usually doesn’t.

Studies show that op-eds can have enduring persuasive effects — a rare finding in studies of the media — and can set the political agenda for citizens and elected officials alike. Local columnists can use their reputation and intellectual freedom to explore deep, complex, and oft-ignored community histories or serve as respected watchdogs to protect consumers and citizens.

The evisceration or outright loss of local newspapers over the past couple of decades has deprived us of a critically important asset–a forum informing us about our local government, business and community–and now, of informed opinion probing their significance.

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