A Moment Of Clarity

I have previously cited and linked to Heather Cox Richardson’s daily Letters from an American, but a recent one deserves more than a passing mention. In it, Richardson does a masterful job of clarifying the stakes of November’s election.

She begins by reminding us of the events leading up to the choice we will face, reminding readers that–once it had become clear Trump had lost the 2020 election– he’d given up “all pretense of normal presidential behavior.” Not only did he try to overturn the election, ignoring the will of the voters, “his attack on the fundamental principle of democracy ended the tradition of the peaceful transfer of power established in 1797 when our first president, George Washington, deliberately walked behind his successor, John Adams, after Adams was sworn into office.”

Trump has continued to push the Big Lie, and his loyalists in the states have embraced that lie, undermining faith in our electoral system. His theft of enormous amounts of classified materials has compromised national security.

We know all this, although the recitation/reminder is important. But–as historians like Richardson are well aware–past is truly prologue.

Trump is not the same as he was in 2020, and in the past three years he has transformed the Republican Party into a vehicle for Christian nationalism.

In 2016 the Republican Party was still dominated by leaders who promoted supply-side economics. They were determined to use the government to cut taxes and regulations to concentrate money and power among a few individuals, who would, theoretically, use that money and power to invest in the economy far more efficiently than they could if the government intervened. Before 2016 that Reaganesque party had stayed in office thanks to the votes of a base interested in advancing patriarchal, racist, and religious values.

But Trump flipped the power structure in the party, giving control to the reactionary base. In the years since 2020, the Republican Party has become openly opposed to democracy, embracing the Christian nationalism of leaders like Hungary’s Viktor Orbán, who maintains that the tenets of democracy weaken a nation by giving immigrants, people of color, LGBTQ+ individuals, and women the same rights as heterosexual, native-born white men.

Richardson then underscores what most of us who follow politics know–that today’s GOP looks absolutely nothing like the Republican party of the past.

Rather than calling for a small federal government that stays out of the way of market forces, as Republicans have advocated since 1980, the new Trump Party calls for a strong government that enforces religious rules and bans abortion; books; diversity, equity, and inclusion programs; and so on. In 2022, thanks to the three extremists Trump put on the Supreme Court, the government ceased to recognize a constitutional right that Americans had enjoyed since the 1973 Roe v. Wade decision: the right to abortion.

The far-right Trumpers have paralyzed the House of Representatives.

Republican members who actually want to pass laws are either leaving or declining to run for reelection. The conference has become so toxic that fewer than 100 members agreed to attend their annual retreat that began today. “I’d rather sit down with Hannibal Lecter and eat my own liver,” a Republican member of Congress told Juliegrace Brufke of Axios.

Richardson ticks off some of the actions Trump has promised if he wins in November: purging the nonpartisan civil service created in 1883, in order to replace career employees with Trump loyalists; weaponizing the Department of Justice and the Department of Defense; rounding up 10 million people– “not just undocumented immigrants and asylum seekers but also those with birthright citizenship,” and putting them in camps, ignoring a “right that has been enshrined in the Constitution since 1868;” cutting Social Security and Medicare; and being a “dictator on Day One.”

She then enumerates many of the achievements of the Biden Administration, drawing a stark contrast between an incredibly consequential President who has worked within the traditions of this country and an autocratic madman.

Every American following the news can probably point to policies of the Biden administration with which they disagree. That’s par for the course in every administration. Liz Cheney probably said it best: we can survive what we consider bad policy, we cannot survive a president who torches the Constitution.

It is incredibly disheartening to realize that millions of our fellow-Americans harbor resentments and hatreds that this repulsive buffoon has exploited–grievances for which he serves as a vehicle. But I refuse to believe that those angry and limited people represent anything close to a majority. If they did, Republicans wouldn’t be so frantic to suppress the vote.

Click through, read Richardson’s entire Letter–and VOTE as if your life depended upon it, because in a very real sense, it does.

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How We Got Here

I hadn’t planned to post about Trump’s latest indictment–the media has been all over it, including his trip to turn himself in and the mugshot (which perfectly captures this demented and hateful man’s affect). But the day after that unprecedented event, two newsletters that I regularly receive–from Heather Cox Richardson and Robert Hubbell–when read together, told the story of how we got here and where we are.

Richardson, of course, is an acclaimed American historian–someone well equipped to trace the trajectory of the once-Grand Old Party from Lincoln to Trump. And that is what she did.

In the 1960s, Republicans made a devil’s bargain, courting the racists and social traditionalists who began to turn from the Democratic Party when President Franklin Delano Roosevelt began to make inroads on racial discrimination. Those same reactionaries jumped from the Democrats to create their own party when Democratic president Harry S. Truman strengthened his party’s turn toward civil rights by creating a presidential commission on civil rights in 1946 and then ordering the military to desegregate in 1948. Reactionaries rushed to abandon the Democrats permanently after Congress passed the 1964 Civil Rights Act, joining the Republicans at least temporarily to vote for Arizona senator Barry Goldwater, who promised to roll back civil rights laws and court decisions.

The 1965 Voting Rights Act was the final straw for many of those reactionaries, and they began to move to the Republicans as a group when Richard Nixon promised not to use the federal government to enforce civil rights in the states. This so-called southern strategy pulled the Republican Party rightward.

In 1980, Republican presidential candidate Ronald Reagan appeared at the Neshoba County Fair near Philadelphia, Mississippi, a few miles from where three civil rights workers had been murdered in 1964 for their work registering Black Mississippians to vote, and said, “I believe in states’ rights.” Reagan tied government defense of civil rights to socialism, insisting that the government was using tax dollars from hardworking Americans to give handouts to lazy people, often using code words to mean “Black.”

Since then, as their economic policies have become more and more unpopular, the Republicans have kept voters behind them by insisting that anyone calling for federal action is advocating socialism and by drawing deep divisions between those who vote Republican, whom they define as true Americans, and anyone who does not vote Republican and thus, in their ideology, is anti-American.

The bottom line is the transformation of a once-responsible political party into a racist cult. I would actually quibble with one part of Richardson’s summary–the GOP’s policies haven’t “become unpopular,” they’ve vanished. It is impossible to identify “policies” espoused by the party’s current iteration–unless racism, misogyny, homophobia and anti-semitism can be considered policy positions.

And that brings me to the concluding paragraphs of Robert Hubbell’s newsletter.

Trump’s mugshot will become the defining image of Trump for all time. His facial expression conveys equal parts menace, anger, and defiance. There is no hint of a soul behind the eyes, only animal grievance and feral resentment at being cornered. It is astounding that a mugshot could capture the essence of evil that resides beneath the surface in Donald Trump.

The photo is also a mugshot of MAGA extremism. It captures the hostility and meanness that animates most of the GOP’s “agenda”—including policies that demean and discriminate against Blacks, women, LGBTQ people, educators, scientists, and immigrants. Trump’s mugshot will likewise become the defining image of MAGA extremism for all time. Tens of millions of MAGA adherents will celebrate and glorify the image—confirming the virulent strain of authoritarianism that has infected the MAGA base.

Not just authoritarianism; hatred..raw hatred for the people who have stolen their preferred vision of America–a vision in which straight White (pseudo) Christian men rule the roost. Virtually every Republican candidate, local, state and federal, is pandering to the angry and fearful  members of a MAGA cult that has replaced a once respectable party. 

Hubbell focuses on the rest of the electorate.

By making this gargoyle of hate the “face” of the 2024 GOP campaign, Republicans are reinforcing the suspicions and fears of tens of millions of Republicans and swing voters who are looking for a reason not to vote for Trump—or to stay home. (As they did on debate night by boycotting his Tucker Carlson interview.)  

 Against the deeply unsettling MAGA mugshot, Democrats will feature the kindly face of Joe Biden as he reaches to pet a rescue dog or hug a survivor of the Hawaii wildfires. Joe Biden may be older than some would like, but his face exhibits kindness and wisdom. We should not underestimate visceral reactions to human decency—or lack thereof—in our leaders.

I sure hope he’s right.

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The Tyranny Of The Minority

Among the newsletters I receive is one from historian Heather Cox Richardson, who regularly provides historical context for contemporary issues.

These two paragraphs from a recent newsletter have prompted me to dust off and recycle one of my old classroom lectures.

The right-wing rejection of democracy was on display at a meeting of the Federalist Society in early March. Politico’s Ian Ward covered the meeting. The Federalist Society organized in the 1980s to argue that the civil rights decisions of the past several decades corrupted democracy because liberal judges were “legislating from the bench” against the wishes of actual voters. The society’s members claimed to stand for judicial restraint.

But now that their judges are on the bench, they have changed their philosophy. Last summer, after a Supreme Court stacked with Federalist Society members overturned the right to abortion, voters have tried to protect that right in the states. Now, according to Ward, the Federalist Society appears to be shifting away from the idea of judicial restraint in the face of popular votes and toward the idea that judges should “interpret the Constitution” in ways right-wing Americans support. They are quick to claim that democracy is not the answer: it would result, they say, in the tyranny of the majority.

When I taught Law and Public Policy, we talked a lot about the U.S. Constitution, and the Founders’  approach to that “tyranny of the majority.”

The phrase points to a legitimate concern: if the law is anything a majority of voters say it is at any given time, individual rights are at risk. A majority can vote to disenfranchise a minority, require everyone to attend a particular church, criminalize anti-government sentiments… the list goes on.

It is easy, after 200 plus years, to find fault with our Constitution, and in this blog I have pointed to areas that I think need to be amended or re-construed. But the philosophy with which the Founders approached these very real worries about what they called the “passions of the majority” was (in my view) as close to perfect as possible.

Drawing on Enlightenment scholarship, the Founders distinguished between matters that were properly within the decision-making authority of “the people”–the majority– and matters that were to be protected from the majoritarian passions of those people.

That division was the entire purpose of the Bill of Rights.

In our system, a majority of voters get to select their lawmakers (theoretically, at least, voting for those whose positions they endorse). Those representatives then decide, via legislative majorities, issues ranging from waging war, to taxes, to electoral processes, to the establishment of government agencies…on and on. (And yes, as I periodically point out, this process is currently not working very well…)

The Bill of Rights constrains the ability of the majority to determine the law. It protects the right of individuals to self-govern, marking out legal territory that the majority cannot enter. Your neighbors cannot vote to make you attend a particular church or  prevent you from reading a particular book; they may not authorize a government functionary to “search and seize” you without probable cause. Etc.

For years, judges and lawyers have debated the range of personal liberties protected against majority disapproval. Was the Bill of Rights to be read as an organic whole, encompassing the “unenumerated” rights retained by the people, or was it to be limited to rights expressly identified? I think the expansive reading is more consistent with the text and the Founders’ original expressed philosophies, but it’s a legitimate debate.

The about-face by the Federalist Society is not legitimate. It is an argument for the tyranny of a minority–so long, of course, as that ruling minority agrees with them.

The American constitutional system was based upon the libertarian principle (libertarianism as properly–and originally–understood). I’ve shared it before; let me share it again: The libertarian principle holds that Individuals should be free to pursue their own ends–their own life goals–so long as they do not thereby harm the person or property of another, and so long as they are willing to accord an equal liberty to their fellow citizens.

We can argue about the nature of the harms that justify government intervention, but Jefferson had it right: “It does me no injury for my neighbour to say there are 20 gods or no God. It neither picks my pocket nor breaks my leg.”

The purpose of the Bill of Rights was to erect a boundary between those matters that harm others, which the majority can properly sanction, and the individual, profoundly personal human rights that are simply none of government’s business.

We can argue about where that boundary belongs, but the Federalist Society,  MAGA warriors and  Christian Nationalists are trying to erase it altogether.

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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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The Rear-View Mirror

Like many who read this blog, I get the Letter from an American from Heather Cox Richardson. Richardson is a historian, and the great benefit of her Letters is that they provide what I like to think of as a look in humanity’s rear-view mirror.

Driving a car requires checking the traffic behind us in order to navigate the road ahead. History serves much the same purpose (which is one of the many, many reasons why the rightwing hysteria over teaching the country’s history of racism is so deranged…)

A few days ago, Richardson shared an “aha” moment.

It has been hard for me to see the historical outlines of the present-day attack on American democracy clearly. But this morning, as I was reading a piece in Vox by foreign affairs specialist Zack Beauchamp, describing Florida governor Ron DeSantis’s path in Florida as an attempt to follow in the footsteps of Hungary’s Viktor Orbán, the penny dropped.

She proceeded to outline the political currents prior to the election of Trump: the evolution of today’s GOP into the pro-oligarchy party, following what she described as the usual U.S. historical pattern to that point– “in the 1850s, 1890s, 1920s, and then again in the modern era, wealthy people had come around to the idea that society worked best if a few wealthy men ran everything.”

Each of those periods was a reaction to the expansion of civil equality. Richardson reports that wealthier Americans protected their privileged status by playing on the racism of  poorer white male voters– telling them that passage of laws protecting equal rights was really a plan to turn American governance over to immigrants or to Black or Brown Americans.

The idea that poor men of color voting meant socialism resonated with white voters, who turned against the government’s protecting equal rights and instead supported a government that favored men of property. As wealth moved upward, popular culture championed economic leaders as true heroes, and lawmakers suppressed voting in order to “redeem” American society from “socialists” who wanted to redistribute wealth. Capital moved upward until a very few people controlled most of it, and then, usually after an economic crash made ordinary Americans turn against the system that favored the wealthy, the cycle began again.

When Trump was elected, the U.S. was at the place where wealth had concentrated among the top 1%, Republican politicians denigrated their opponents as un-American “takers” and celebrated economic leaders as “makers,” and the process of skewing the vote through gerrymandering and voter suppression was well underway. But the Republican Party still valued the rule of law. It’s impossible to run a successful business without a level playing field, as businessmen realized after the 1929 Great Crash, when it became clear that insider trading had meant that winners and losers were determined not by the market but by cronyism.

Trump deviated from the usual cycle in one way–he didn’t care about enriching the oligarchy, only about enriching himself, his toadies and his family. Despite his  repellent personality and embarrassing ignorance of government and policy, he was especially dangerous because he turned the Republican base into a cult that no longer respected the rule of law.

Richardson warns that Trump’s deliberate destabilization of faith in our democratic norms is especially dangerous because it creates space for two right-wing, antidemocratic ideologies. Two current Republican governors model those ideologies: Abbott in Texas, who is pursuing the South’s Civil War insistence on “states’ rights,” and DeSantis in Florida, who is emulating Viktor Orbán’s “soft fascism.”

Orbán has taken control of Hungary’s media, ensuring that his party wins all elections; has manipulated election districts in his own favor; and has consolidated the economy into the hands of his cronies by threatening opponents with harassing investigations, regulations, and taxes unless they sell out.

DeSantis is following this model right down to the fact that observers believe that Florida’s “Don’t Say Gay” bill was modeled on a similar Hungarian law. DeSantis’s attack on Disney mirrors Orbán’s use of regulatory laws to punish political opponents (although the new law was so hasty and flawed it threatens to do DeSantis more harm than good).

Richardson counsels us to look in that rear-view mirror–to access the knowledge and tools that history provides to defend democracy from the ideology of states’ rights.” But she also warns that, because the rise of “illiberal democracy” or “soft fascism” is new to us, we need to understand how it differs both from Trump’s version of autocracy and from the old arguments for states’ rights.

At risk of over-extending my somewhat strained analogy, Orbanism represents a massive pothole on the road to democratic self-governance and civil liberty–a pothole requiring us to drive carefully and keep our eyes on the road– ahead and behind.

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