The Danger Zone

Democratic systems vary, but they share certain foundational assumptions. The most important of those is the starting point: We The People are the “deciders.”  Ultimate authority rests with the voters.

In democratic theory, candidates contend for support during election campaigns, voters cast their ballots, and the candidate who garners the most votes wins. (At least if there’s no Electoral College involved).

In order for this process to work, both winners and losers must respect the will of the people.

Losers may disagree with positions endorsed by the winning candidates, and as the “loyal opposition,” they may work in accordance with the rules to defeat the winners’ agenda, but democratic norms require that they acquiesce to the people’s choice.

When that doesn’t happen–when the losers disregard the rules and norms in order to frustrate the choices made by the electorate–governance can no longer be considered either legitimate or democratic.  Political actors who accept authority when they win, but defy the settled norms of democratic behavior when they lose , undermine the public trust and make a mockery of the rule of law.

The visceral reaction to Mitch McConnell’s unprecedented theft of a Supreme Court seat reflected a widespread recognition that this was no ordinary political maneuver–it was the arrogant demonstration of a cheat that he would abide by the rules only when they favored him.

When Republicans in the North Carolina legislature stripped the incoming Democratic governor of powers the office had previously exercised–because they could–it was their middle-finger-to-democracy gesture.

That “in your face” rejection of democratic norms is spreading.

In a newsletter for the Boston Globe, Michael Cohen recently pointed out, “in a normal representative democracy, if you run for office and then lose you let the other party run things for a while. That doesn’t mean a political party can’t oppose those efforts, but it does mean that you have to respect the voters’ decisions.”

That isn’t what is happening in Wisconsin or Michigan.

In these two states, Republican gubernatorial candidates were defeated in this year’s midterm elections. Democrats also won both attorney general races. And now Republicans are refusing to accept the results.

Instead they are trying to use lame-duck sessions – before the Democrats are sworn into office – to weaken the power of the incoming Democrats and put in place policy changes that will benefit Republicans.

Let’s start with Wisconsin, where soon-to-be former governor Scott Walker and his Republican allies in the state legislature have spent the past eight years making a mockery of democracy in the state.  Upon taking office they rammed through a highly controversial measure that stripped collective bargaining rights from the state’s public sector unions. Then they re-wrote legislative maps to give themselves out-sized control of the state government. In the 2018 election, Democrats won 53 percent of the vote, compared to 45 percent for Republicans. Yet, because of gerrymandering, that translates into a 64-36 advantage for Republicans in the state assembly.

But apparently that’s not enough for Republicans. Now they are enacting legislation that would kneecap Democrats once they take office….

For Governor-elect Evers, Republicans would not only force him to enact work requirements for Medicaid, but would also require him to get the legislature’s permission before submitting any request to the federal government to change how federal programs are administered. In effect, Republicans would give themselves a veto over much of what Evers would try to accomplish as governor. Walker has stated publicly that he will sign the bills.

….

Republicans aren’t even being shy about their agenda. In Wisconsin, Republican Senate Majority Leader Scot Fitzgerald defended his party’s actions by saying, “I’m concerned. I think that Governor-elect Evers is going to bring a liberal agenda to Wisconsin.”

He’s right. But of course Evers’s agenda is what Wisconsin voters chose.  To put roadblocks in front of it is to, in effect, say to voters that their choices don’t matter. It’s hard to imagine a statement more contemptible in a democracy than a political leader telling a state’s voters, “only the views of the people who voted for me matter.” But that’s precisely what Fitzgerald and his Republican colleagues are doing.

Changing the rules after they’ve lost the game. Undoing the results of a democratic election because they lost.

This behavior is nothing less than an attack on America and its values.

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Originalism

Definitions are important.

For example, I’m perfectly willing to say I believe in God–if God is defined as “the moral impulse.” I really do believe that most people (not Donald Trump, but most people) have an innate sense of fair play (of justice, if you will), and if we dub the moral guidance provided by that sense of justice as “God”– well then, I’m a believer. (If God is a white guy on a throne with a long white beard who watches to see whether I’m naughty or nice, ala Santa, not so much…)

In constitutional argumentation, originalism is a lot like God.

I mentioned in a prior post that I’ve been reading Erwin Chemerinsky’s We the People: a Progressive Reading of the Constitution for the Twenty-First Century. it’s a really great book, and I recommend it highly; it’s accessible, readable, and (seeing as how it’s from Erwin Chemerinsky) erudite.

Chemerinsky doesn’t have much use for originalism as defined by Scalia et al. I particularly enjoyed his reference to an oral argument in a case involving a California law prohibiting sale or rental of violent video games to minors. Scalia was pressing California’s attorney about whether the the law could be reconciled with the “original understanding” of the First Amendment. After a confusing back-and-forth, Justice Alito interrupted, saying “I think what Justice Scalia wants to know is what James Madison thought about video games.”

The reason I loved this anecdote is that it is so close to the way I introduce “original intent” in my classes of non-law-school undergraduate students. I ask them what James Madison thought about porn on the Internet. (These days, I’m just happy when the respondent knows who James Madison was…but that’s a subject for a different post.)

Obviously, Madison never contemplated either technology–that of video games or the Internet. But I would argue that’s not the end of the analysis, nor is it reason to declare the irrelevance of originalism properly defined.

James Madison may not have contemplated an Internet (and who knows what porn looked like in his day), but he did have firm convictions about the importance of free expression and the deleterious effects of government censorship. Original intent, properly understood, requires the courts to protect the principle that government ought not be able to decide which ideas may be communicated.

If, as Chemerinsky demonstrates, it is impossible to define original intent as the Scalia faction would do— as reliance on and limited to what was in the minds of the Founders at the time they drafted the Constitution– and if it is equally if not more unsatisfactory to say that the Constitution simply means what nine people in black robes say it means at any particular point in the nation’s history, then the only reasonable definition of originalism is protection of the principles and values that the Founders were intent upon protecting.

The value of free expression. The value of religious liberty. The importance of separating Church from State. The value of individual autonomy (aka privacy), and one’s right to be “secure” in one’s papers and effects. The values of due process and equal protection.

The principles and values that the Founders protected in the Constitution and the Bill of Rights are pretty clear, even if their application in many situations is less so. The only approach to Originalism that makes any sense is an approach that protects those values–an approach that serves as an anchor of continuity in a world where “facts on the ground” are always shifting and technology is constantly reshaping the issues with which courts must contend.

Does slapping a GPS device on a suspect’s car require a warrant? Is use of a new technology that lets police see whether you’re growing pot in your basement from across the street a search for purposes of the 4th Amendment? Do Congressional efforts to censor the Internet run afoul of the First Amendment?

What would our quarreling and philosophically differing Founders (there were a lot of them, remember) “intend” about these and hundreds of similar questions?

We can only answer these questions and others like them in a consistent and principled way by considering the limits the Founders placed on government and the values those limits were intended to protect.

It’s the only workable Originalism.

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What We Don’t Know Is Hurting Us

There’s an old saying to the effect that it isn’t what we don’t know that hurts us, it’s what we know that isn’t so.

Misinformation, in other words, is more damaging than ignorance.

I agree–with a crucial caveat. The adage is only true when we are aware of our ignorance–when we recognize what information or skill we lack. As research continues to demonstrate, however, there’s a high correlation between ignorance of a particular subject-matter and ignorance of our own ignorance. (It’s called the Dunning-Kruger effect.)

That’s why lawmakers’ allergy to data and preference for evidence-free policy pronouncements are so maddening.

A while back, I read a column making the point that data is inevitably political. The government collects data in order to inform policy decisions, because in order to address issues, it is essential to understand the facts involved, to have a handle on what we academic types like to call “reality.”

The column that I read (and no longer remember where, or I’d link to it) considered the consequences of the Reagan Administration’s decision to stop collecting data on corporate market share. Without that information, policymakers have no idea how large the largest corporations have become. They lack evidence on the degree to which companies like Amazon, Walmart, et al can dominate a segment of the economy and effectively set the rules for that segment. It’s likely that this lack of data is a significant factor accounting for diminished anti-trust enforcement.

The problem goes well beyond economic data. For a considerable length of time, the United States has been mired in one of the nation’s periodic and damaging anti-intellectual periods, characterized by scorn for expertise and empirical evidence.  (Another troubling manifestation of that scorn is the reported evisceration of Congressional staff–the panels of employees with specialized knowledge that advise Congressional committees and individual Representatives on complicated and technical issues.)

Instead of evidence-based policy, we get faith-based lawmaking. Ideology trumps reality. (And yes, I meant that double entendre…)

Last year’s tax “reform” is a perfect example. It was patterned after Sam Brownback’s experiment in Kansas–an experiment that spectacularly crashed and burned. As NPR reported

In 2012, the Republican governor pushed reforms through the state Legislature that dramatically cut income taxes across the board. Brownback boasted the plan would deliver a “shot of adrenaline” to the Kansas economy.

But the opposite happened.

Revenues shrank, and the economy grew more slowly than in neighboring states and the country as a whole. Kansas’ bond rating plummeted, and the state cut funding to education and infrastructure.

You might think that Kansas’ experience would inform a similar effort at the federal level, that it would at least be taken into account even if it wasn’t considered dispositive, but clearly that didn’t happen.

It’s that same dismissive attitude about “facts” and “evidence” and “data”–not to mention science–that is the largest single impediment to serious efforts to slow the rate of climate change.

Some lawmakers who deny climate change ground their beliefs in religious literalism (making them ‘literally” faith-based), but most do so on the basis of the same free-market ideology that led them to dismiss results in Kansas, and oppose even the most reasonable regulations. (There’s a highly convenient aspect to that ideology, since it keeps campaign contributions flowing…but it would be a mistake to think everyone who subscribes to it does so only as a quid pro quo.)

If the country doesn’t emerge from this “Don’t bother me with the facts” era, we’re in for a world of hurt.

And speaking of literalism, the whole world will hurt.

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A Vicious Cycle?

Among the various articles I’ve been reading in the wake of the death of former President George H.W. Bush was a Vox “explainer” that was provocative, to say the least.

The basic thrust of the article was that when H.W. broke his famous pledge (the oft-quoted one-liner at the 1988 Republican National Convention, “Read my lips. No new taxes.”), he turbocharged the GOP’s radical move to the fiscal right. That breach of promise quickly became the conventional explanation for his loss to Clinton, and explains (according to Vox) why virtually all GOP candidates for office subsequently abandoned pledges of prudence and fiscal sanity in favor of hysterical avoidance of anything resembling taxation.

Bush was a traditional “country club” Republican, whose relatively moderate economic and social beliefs contrasted with more right-wing conservatives who had supported Reagan. When Bush lost to Bill Clinton in 1992, Reaganites abandoned a moderate, bipartisan approach to politics, and the Republican Party has moved further to the right ever since.

I tend to be dubious of simple explanations for complex phenomenons, including election losses, but I’m willing to believe that H.W.’s principled decision to raise taxes when the situation required such a move– even though he had pledged not to do so– contributed significantly to his loss. I’m also willing to believe that later Republican candidates for office–already philosophically opposed to taxes (at least  taxes levied on their base)–then focused on that single element of Bush’s losing campaign, and cited it to justify the party’s increasingly strident opposition to raising taxes.

Any taxes, for any reasons.

It became a Republican article of faith that failure to be rigidly anti-tax would lead to failure at the ballot box.

The question for 2020 is whether that trope has lost its power.

The one and only undeniable service Donald Trump has rendered to the United States is the massive increase in civic and political participation triggered by his election. People who had previously not paid much attention to the country’s legal and economic structure (people who–in Jon Stewart’s memorable description–“have other shit to do”) were understandably horrified. Those people have become politically relevant in ways they haven’t been for a very long time, and a significant number of them want a government that does more than “get out of the way” of well-connected fat cats and special interests.

They want a government that solves the problems that only government can solve, and (unless I am missing something) they seem to understand that a properly operating and competent government requires resources. That recognition has shifted the political debate from “No new taxes” to the far more reasonable “who should be taxed, for what, and why?”

The current iteration of the GOP, which has more in common with a cult than a traditional political party, faces massive crises. Demography will ultimately be destiny, despite the party’s undeniable skill in gerrymandering and vote suppression. Increased turnout by young people not in thrall to a “small government” mythology is a bad omen. The party’s base of White Christian (mostly) males is dwindling, and legions of moderate business Republicans–already repelled by the party’s culture war bigotries– know snake-oil when they see it, and are abandoning the Grand Old Party in droves.

“No new taxes”  won’t cut it anymore, if it ever did. That downward spiral has hit bottom.

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Someone To Blame

One of my all-time favorite movies was 1995’s “The American President.” I loved its full-throated defense of the ACLU, its “rom-com” elements, and the excellent acting, but most of all, I loved the part where the President, played by Michael Douglas, turned to his antagonist–a slimy, political “dirty tricks politician” named Bob Rumson (played by Richard Dreyfuss)– during a press conference  and said

I’ve known Bob Rumson for years, and I’ve been operating under the assumption that the reason Bob devotes so much time and energy to shouting at the rain was that he simply didn’t get it. Well, I was wrong. Bob’s problem isn’t that he doesn’t get it. Bob’s problem is that he can’t sell it! We have serious problems to solve, and we need serious people to solve them. And whatever your particular problem is, I promise you, Bob Rumson is not the least bit interested in solving it. He is interested in two things and two things only: making you afraid of it and telling you who’s to blame for it. That, ladies and gentlemen, is how you win elections.

Making you afraid of it and telling you who’s to blame for it. A perfect description of Donald Trump and his despicable tribe.

As political scientists have continued to amass data in an effort to explain the 2016 election and figure out why any sentient American would cast a vote for Donald Trump, that scene looks more and more prescient.

As Paul Krugman noted in a recent column, there is little if any support in voting data for the notion that “economic anxiety” drove people to vote for Trump. The data pretty clearly shows that what distinguished Trump voters wasn’t financial hardship but “attitudes related to race and ethnicity.”

Those attitudes tend to manifest themselves largely, although certainly not uniformly, in the more rural parts of the country–in areas Krugman identifies as economically “lagging.”

Yet these attitudes aren’t divorced from economic change. Even if they’re personally doing well, many voters in lagging regions have a sense of grievance, a feeling that they’re being disrespected by the glittering elites of superstar cities; this sense of grievance all too easily turns into racial antagonism. Conversely, however, the transformation of the G.O.P. into a white nationalist party alienates voters — even white voters — in those big, successful metropolitan areas.

I remember attending a session at an American Political Science Association conference several years ago, and being fascinated by the presentation of research analyzing the role of “dissing” in (primarily teenage) violence. As I recall (and my recall, unfortunately, isn’t so hot in my dotage), the feeling of being “dissed,” or disrespected, was the single most important factor triggering rage in teenaged boys and in members of socially marginalized groups.

In parts of the country where young people are increasingly leaving for cities offering better job and social opportunities, where small farms and mom and pop enterprises are overwhelmed by corporate enterprises, where main street shop windows continue to be boarded up and the grandkids who moved to the city not only have friends who don’t look, love and pray like they do, but hold and express opinions that would once have been considered scandalous, it’s entirely understandable that many of those remaining would feel disoriented, discounted and left behind, even if their own finances are secure.

These are people who fear losing the America they thought they knew, people who are angry and resentful at what they see as a lack of respect, a “dissing,” from those in the nation’s growing and affluent cities.

Fox News and Trump’s GOP feed that fear, and tell them who’s to blame: people of color, Jews, Muslims, uppity women, smarty-pants intellectuals and self-satisfied “experts.”

And of course, Democrats.

“The American President” was ahead of its time.

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