Free Speech For The “Right” Ideas

Pun in the title intended.

Michelle Goldberg recently focused her column in the New York Times on yet another inexcusable decision of the Trump Administration. (I know, there are several every day…)

The Palestinian activist Omar Barghouti, one of the founders of the boycott, divestment and sanctions movement, was supposed to be on a speaking tour of the United States this week, with stops at N.Y.U.’s Washington campus and at Harvard. He was going to attend his daughter’s wedding in Texas. I had plans to interview him for “The Argument,” the debate podcast that I co-host, about B.D.S., the controversial campaign to make Israel pay an economic and cultural price for its treatment of the Palestinians.

Yet when Barghouti, a permanent resident of Israel, showed up for his flight from Israel’s Ben Gurion International Airport last week, he was informed that the United States was denying him entry. When I spoke to him on Sunday, he still didn’t know exactly why the country where he went to college and lived for many years wasn’t letting him in, but he assumed it was because of his political views. If that’s the case, Barghouti said, it was the first time someone has been barred from America for B.D.S. advocacy.

I believe it was Alexander Meiklejohn who said a nation afraid of ideas is unfit for self-government. He was right.

The efforts of right-wingers to shut down B.D.S. by passing laws that obviously violate the First Amendment’s Free Speech guarantee are especially ironic given their hysteria over the supposed censorship of rightwing speech on the nation’s campuses. (But then, self-awareness has never been a characteristic of the Right.)

Several states have evidently passed laws penalizing, B.D.S. activities, and the Senate recently passed a bill supporting those measures.

According to the American Association of University Professors, some public universities in states with such laws require speakers and other contractors to “sign a statement pledging that they do not now, nor will they in the future, endorse B.D.S.” It’s hard to think of comparable speech restrictions on any other subject.

What makes this effort particularly offensive is that the B.D.S. movement neither engages in nor promotes violence. As Goldberg notes, Its leaders have made a genuine effort to separate anti-Zionism from anti-Semitism–in fact, the Palestinian B.D.S. National Committee demanded that a Moroccan group stop using the term “B.D.S.” in its name because it featured anti-Semitic cartoons on its Facebook page.

An administration unwilling to sanction Saudi Arabia for multiple murders, including the murder of a Washington Post journalist, is willing to penalize people who are advocating a nonviolent economic boycott.

Goldberg’s column goes on to consider why Israel’s defenders consider the B.D.S. movement so threatening, and that part of her column is enlightening but ultimately beside the point. It doesn’t matter whether you applaud or detest B.D.S. If it doesn’t have the right to advocate for its beliefs, neither do those who disagree with those beliefs. Rights–unlike privileges– are indivisible, as a federal court recently affirmed when it struck down the Texas version of these efforts.

Free speech, as Justice Holmes memorably wrote, requires freedom for the idea we hate.

Can ideas be dangerous? Of course. And the nation’s Founders knew that. They also knew that allowing the government to decide which ideas can be communicated and which cannot would be far more dangerous.

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Who Counts?

Talk about gaming the system. Gerrymandering is bad enough;  anyone who has read this blog for very long has encountered my periodic rants and explanations of how legislators choose their voters in order to ensure that the voters don’t get to choose their legislators.

I actually came across another example recently, one of which I had previously been unaware–prison gerrymandering.

Prison gerrymandering occurs because the census counts incarcerated people as residents of the towns where they are confined, even though they can’t vote while imprisoned and most return to their homes after being released. Census data is the basis of redistricting at all levels of government, so the specific location of populations is critically important. Thanks to the drug war, among other counterproductive policies, the United States has an enormous prison population. Counting prisoners in the wrong place undermines the Supreme Court’s requirement that political power be apportioned on the basis of population.

As the Prison Gerrymandering Project puts it, the process of drawing fair and equal districts fails when the underlying data are flawed.

Which brings us to the critical importance of the census.

The Supreme Court recently heard oral arguments in an appeal from lower court rulings  prohibiting the Census Bureau from adding a citizenship question to the upcoming census. Observers reported that the five conservative judges seem likely to reverse the lower courts’ three separate decisions, all of which found the question and the manner of its addition illegal.

If they do, it will be a nakedly political decision and will further undermine what is left of this Court’s legitimacy.

Why do I say that?

First of all, because there is no legitimate reason to ask the question. The census is supposed to count “heads”–the number of people in a given area. There is no current use of census data that requires knowing how many of those residents are citizens. (Wilbur Ross’ lame justification was that this information would somehow protect the voting rights of African-Americans. Not only is there no logical nexus between that goal and the census, this administration has not previously shown any solicitude for the rights of minority voters–quite the contrary.)

There is, of course, a different and blatantly obvious reason Republicans want to add the question: it will hurt Democratic cities and states and benefit Republican ones.

Experts, including several who previously headed the census bureau, have testified that addition of a citizenship question would significantly reduce the response rate of immigrants, both legal and illegal. The undercounts that result would be the basis of the 2021 redistricting, and would reduce the political power of states with large numbers of immigrants, most of which lean Democratic. (The exception is Texas, which sets up an interesting dynamic.)

The Census is also the basis upon which federal monies are distributed back to cities and states for multiple program purposes. Guess which ones would get more and which less?

The three federal judges who have considered the issue have all ruled that Ross failed to follow the legal procedures governing the addition of a question to the Census.

In one of those decisions–a 277 page enumeration of the flaws in Ross’ attempt to subvert the accuracy of the count–the judge found that the addition of the citizenship question was “unlawful” because of “a veritable smorgasbord of classic, clear-cut” violations of the Administrative Procedure Act, including cherry-picking evidence to support his effort.

“To conclude otherwise and let Secretary Ross’s decision stand would undermine the proposition — central to the rule of law — that ours is a ‘government of laws, and not of men,’ ” Furman wrote, quoting one of the country’s Founding Fathers, John Adams.

There are two pending cases in this year’s Supreme Court term that will go a long way toward affirming or destroying the rule of law in our country: the combined partisan gerrymandering cases from Maryland and North Carolina, and the Census case.

The fundamental issue in both is whether America will insist on fair elections in which all citizens’ votes count, or whether partisans will be allowed to continue gaming the system.

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Dick Lugar Has Died. So Has The Party He Served With Distinction.

I stepped out of the shower yesterday to find a news alert telling me that Senator Richard Lugar had died.

My own involvement with politics began with Dick Lugar’s mayoral campaign; I headed up an effort titled, as I recall,  “The 67 Committee for Lugar for Mayor”–a euphemistic name for an effort at outreach to Indianapolis’ Jewish voters.

The Washington Post has a lengthy recap of Lugar’s career, and it is worth reading for several reasons: to remind those of us who care about governance that genuine public servants once occupied the Senate; that the complexities of foreign affairs demand the sort of intellect and expertise that Lugar exemplified rather than the faux machismo and counterproductive religiosity currently on display; and that once upon a time, the Republican Party included grown-ups who took their oaths of office seriously.

If there had been any doubt that the GOP represented by statesmen like Lugar was dead and gone, it was underlined by his 2012 primary loss to a Trumpian asshole whose entire campaign was a cartoonish Tea Party performance.

Every aspect of Lugar’s service–from his stint on the Indianapolis school board to his chairmanship of the Senate Foreign Relations Committee–was marked by thoughtfulness, intellect and civility. Those characteristics are in extremely short supply these days, especially in the once-Grand Old Party, and most of us who supported that party, who admired statesmen like Dick Lugar and agreed with their philosophies of governance, have left, horrified at what the party has become.

I didn’t always agree with Dick Lugar’s domestic positions, especially in the later years of his Senate tenure. His positions on reproductive rights and discrimination against LGBT Americans, for example, were far different from mine (although I still admire his unsuccessful efforts to curtail farm subsidies and his support for comprehensive immigration reform.) But when it came to his work on foreign policy–the area that clearly was his abiding passion– he was a giant.

As the Post obituary put it:

A moderate conservative who came of age in the Cold War, he viewed the proliferation of weapons of mass destruction as the most serious threat to national security, and it was in that area that he left his greatest mark.

As the Soviet Union collapsed, he and other policymakers feared that its nuclear, chemical and biological weapons might fall into the wrong hands. In 1991, Mr. Lugar teamed with the Senate Armed Services Committee chairman, Sam Nunn (D-Ga.), to push through legislation to help Russia and other former Soviet republics secure their arsenals and, in most cases, dismantle them entirely.

The initiative — officially the Cooperative Threat Reduction Program but better known as Nunn-Lugar — provided funding and expertise that over the next two decades led to the deactivation of more than 7,500 nuclear warheads and hundreds of other weapons and delivery systems, according to the Defense Department. Ukraine, Belarus and Kazakhstan eliminated all of their nuclear arms.

The obituary noted a number of other important contributions to foreign affairs–from arms control to the New START nuclear-weapons-reduction treaty with Russia.

In his first stint as Foreign Relations chairman, Mr. Lugar played an influential role on two hot-button issues. Although a faithful supporter of Reagan’s agenda, he led the Senate in overriding Reagan’s veto of legislation imposing stiff economic sanctions on apartheid South Africa. He also helped bring about the ouster of Marcos in the Philippines.

Lugar had a reputation for working across the aisle; he was the ranking Republican on the Foreign Affairs Committee when he first collaborated with Obama, then an Illinois senator. They traveled together to Russia, Ukraine and Azerbaijan in 2005 to visit weapon dismantlement sites, and later co-sponsored legislation aimed at  eliminating stockpiles of shoulder-fired missiles.

I can’t help experiencing the death of Dick Lugar as more than the death of an honorable and important statesman. His death is also symbolic of the terminal state of statesmanship itself–and yet another reminder that a political party that once elevated serious, effective and principled office-holders has been replaced by a collection of embarrassing know-nothings, hypocrites, bigots and moral cowards.

I mourn them both.

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Approaching A Major Crisis

Donald Trump is refusing to produce documents demanded–subpoenaed–by Congress, and has instructed members of his administration not to comply with orders to testify to Congressional committees.

If this isn’t a constitutional crisis, the term has no meaning.

As several sources have reminded us, Article 3 of the Articles of Impeachment against Nixon asserted that the President

… has failed without lawful cause or excuse to produce papers and things as directed by duly authorized subpoenas issued by the Committee on the Judiciary of the House of Representatives on April 11, 1974, May 15, 1974, May 30, 1974, and June 24, 1974, and willfully disobeyed such subpoenas. The subpoenaed papers and things were deemed necessary by the Committee in order to resolve by direct evidence fundamental, factual questions relating to Presidential direction, knowledge or approval of actions demonstrated by other evidence to be substantial grounds for impeachment of the President. In refusing to produce these papers and things Richard M. Nixon, substituting his judgment as to what materials were necessary for the inquiry, interposed the powers of the Presidency against the the lawful subpoenas of the House of Representatives, thereby assuming to himself functions and judgments necessary to the exercise of the sole power of impeachment vested by the Constitution in the House of Representatives.

As Josh Marshall of Talking Points Memo reports,

The White House isn’t doing the standard tussling with Congress about oversight: some stonewalling, some negotiation, taking some questions of privilege to court. It’s more accurately characterized as massive resistance. The Congress has a constitutionally mandated responsibility to oversee the executive branch. They are flatly refusing to comply with ordinary document production and testimonial requests across the board. It’s not a difference of degree but of kind. In itself it is an impeachment worthy refusal to follow the constitutionally mandated framework of American government. It’s up to Democrats to make this clear.

Here’s the very simple bottom line: If a President can refuse to comply with the demands of a Congressional oversight committee–part of a co-equal branch of government– America no longer has checks and balances or the rule of law.

Checks and balances and the rule of law are the very foundation of the American constitution. Governmental legitimacy is defined as adherence to that government’s legal framework–in our case, the constitution. Trump’s defiance is thus evidence of his administration’s lack of legitimacy.

If the Senate, under the control of Mitch McConnell (aka the most evil man in America), fails to stand up for the prerogatives of the Congress, history–assuming we survive to have a history–will brand them traitors. Their first duty is to protect the Constitution and the Separation of Powers; the crisis Trump is precipitating requires them to stop cowering in fear of Trump’s ignorant, rabid base and discharge their obligation to protect America.

(Speaking of ignorance, Trump has said he’ll fight any effort to impeach him by taking the matter to his buddies on the Supreme Court–once again demonstrating his utter cluelessness about constitutional processes and American governance.)

It’s hard to argue with Josh Marshall’s analysis of the current impasse.

But as much as anything else this is a political conflict: how to bring to heel a lawless President. The big error I see so far is that these joustings are being treated as legitimate legal processes which must be allowed to work their way through conventional processes and the courts. That’s not right and it gives the President free rein to try to run out the clock on any sort of oversight. Democrats need to find a language for the political debate that makes clear these are not tedious legal processes which will run their course. They are active cover-ups and law breaking, ones that confirm the President’s bad acting status and add to his and his top advisors legal vulnerability.

There is no hope for Trump; the man is aggressively stupid, proudly ignorant and quite obviously mentally ill (and those are his better qualities!) He is a perfect example of the Dunning-Kruger Effect.

The only question that still remains open is: how many Republican Senators are genuine patriots and how many are self-serving cowards? We’re about to find out.

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A (Collapsed) Bridge Too Far

The liberal political site Daily Kos maintains an infrastructure series; recently it posted an entry titled “Another Week, Another Bridge Collapse in America.”

This past Monday, news came of another bridge collapse in the United States, this time in Chattanooga. The fact that a bridge collapse has to be qualified with the determiner ‘another’ in the richest Country the World has ever known is distressing, even more so considering said bridge was also part of the largest infrastructure project the World has ever know.

Late Monday morning, the side of an overpass on I-75 collapsed, tumbling onto the ramp headed to Chattanooga. This bridge had been built in the 1950’s, and was recently inspected in July 2018. The condition of the bridge was found to be ‘Fair,’ which sounds more like a weather report than something very large that can collapse and kill you.

This particular collapse was evidently caused by an oversized truck that had slammed into the bridge and weakened it. But nationwide, the number of structurally-deficient bridges is staggering; assuming funding at current rates, engineers estimate that it will take 82 years to repair all of them.

The American Road and Transportation Builders Association has issued a report based upon 2018 data. It shows

  • There are 616,087 bridges in America
  • Of those, 47,052 (nearly 8%) are “structurally deficient” and need urgent repairs
  • 235,020 bridges (38%) need some sort of repair
  • Americans cross structurally deficient bridges 178 million times a day, including such landmarks as the Brooklyn Bridge and the San Mateo-Hayward Bridge over the San Francisco Bay
  • The average age of a structurally deficient bridge is 62 years

Structurally deficient doesn’t necessarily mean that the bridge is in imminent danger of collapse, but it also isn’t a label affixed to bridges with minor problems. The post included the definition used by Virginia’s Department of Transportation:

Bridges are considered structurally deficient if they have been restricted to light vehicles, closed to traffic or require rehabilitation.Structurally deficient means there are elements of the bridge that need to be monitored and/or repaired. The fact that a bridge is “structurally deficient” does not imply that it is likely to collapse or that it is unsafe. It means the bridge must be monitored, inspected and maintained.

More than 1200 bridges in the state of Indiana are considered structurally deficient.

The Daily Kos post links to a list of the bridges in the worst shape. As the list makes clear, the worst bridges are exclusively urban interstate bridges.

Why are highway bridges in urban areas the most dangerous of all in America?

  • Decades of neglect of urban infrastructure by state and federal authorities who feel taxpayer dollars are better spent on rural and suburban constituents. (Thanks to gerrymandering, this is the case in Indiana.)
  • Lack of public transportation, or overcrowding of public transportation, forcing these structures to carry far more vehicles than they were ever designed for.
  • Replacing these structures in an urban environment, where service cannot be interrupted and there is no available real estate to build a new bridge alongside, is extremely costly.

When you think about it, governments exist to provide infrastructure–not just physical infrastructure, but also the social infrastructure that prevents what Hobbes called “a condition of war of everyone against everyone.”

When a government can’t even sustain the physical infrastructure, it is a failed government.

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