Tag Archives: Wilkinson

Defending The Rule Of Law

As the Trump administration careens drunkenly from outrage to outrage, laying waste to the American Idea, there is one “through line” to the Dear Leader’s petulant and bizarre Executive Orders and (ungrammatical) pronouncements: virtually all of them violate the laws of the land. (My husband will read of some Trumpian action and ask me, “Can he do that?” and my response is usually, “It’s against the law, if that matters.”)

The Constitutional crisis we are currently experiencing is Trump’s disregard–not just for the laws he is ignoring–but for Court orders requiring him to obey them.

I don’t know how this crisis will turn out. I have hopes that the increasing numbers of protests will encourage at least some Republican Senators and Representatives to re-grow their spines (although here in Indiana,  Senator Jim Banks–a dim, smug self-proclaimed Christian Nationalist–is beyond hope). In the meantime, there are emerging signs that the legal community is prepared to defend the rule of law against our Mad King and his merry band of lunatics.

I was particularly pleased to read a Fourth Circuit Court of Appeals decision authored by Judge J. Harvie Wilkinson III, because it confirmed a point I’ve repeatedly made on this site: whatever descriptors you want to apply to Trumpism and MAGA, “conservative” isn’t one of them.

As Josh Marshall wrote at Talking Points Memo 

If you had told me in 2005 that 20 years hence federal appeals court Judge J. Harvie Wilkinson III would be writing a paean to our lost liberties and freedoms under a Republican president, I may have politely suggested you seek some help.

The entire order is worth reading. Wilkinson clings to the hope that the judiciary’s “brethren in the Executive Branch” will recognize that the rule of law is “vital to the American ethos.”

Wilkinson’s defense of the rule of law is being joined by individual lawyers. R. William Jonas, Jr., a partner in a law firm in Mishawaka, Indiana, recently shared the following letter he’d written to the Indiana Bar Association.

I write today as a member and Past President of the Indiana State Bar Association, and as an officer of the court who swore on Oct. 9, 1981, to support and defend the Constitution of the United States and the State of Indiana. To fulfill my oath, I write today in the wake of the decision of the U.S. Court of Appeals for the Fourth Circuit attached here.

The U.S. government “snatched” Kilmar Abrego Garcia from his home state of Maryland, and, in utter disregard of his constitutional right to due process and a specific court order, and transported him to an infamous prison in El Salvador where it is now claimed that he is beyond the power of our courts. We know from reading the Fifth Amendment that “no person shall be deprived of life, liberty or property without due process of law.” And “no person” means exactly that – it includes everyone from Jesus Christ and the twelve disciples to Jeffrey Dahmer, Ted Bundy, John Wayne Gacy or Gertrude Baniszewski.

 It is the duty of the Indiana State Bar Association, to speak in support of the opinion of the court and the right of due process which is at the very heart of the rule of law. Some might say that we should be silent because we shouldn’t be taking political positions or because it might cause people to terminate their memberships. To these folks, I say that we all have sworn to uphold the constitution and the rule of law. This association is rightly proud of its efforts to promote leadership through the Leadership Development Academy and civic education through the Indiana Bar Foundation’s civic education program “We the People: The Citizen and the Constitution.” If we remain silent, what message do we send about leadership? About civic duty? If not us, who? If not now, when?

              Judge Wilkinson wrote

It is, as we have noted, all too possible to see in this case an incipient crisis, but itmay present an opportunity as well. We yet cling to the hope that it is not naïve to believeour good brethren in the Executive Branch perceive the rule of law as vital to the American ethos. This case presents their unique chance to vindicate that value and to summon the best that is within us while there is still time.

Now is the opportunity for the ISBA to speak up in support of the right to due process and the rule of law, and to urge the local bars of Indianapolis, Evansville, Allen County, Lake County and St. Joseph County to take similar action. It is an opportunity to urge the faculties of Indiana’s law schools to join the chorus – as Judge Wilkinson says “while there is still time.”

Now is the time for all of us to speak up–and resist.

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The Density Divide

The Density Divide is the title of a very important paper issued in June by Will Wilkinson, Vice President for Research of the Niskanen Center. It looks in depth at the phenomenon that I usually refer to as the “urban/rural divide”–delving into the attributes that make individuals more or less likely to move into cities, and examining the consequences of those differences and the steady urbanization of the American polity.

The paper is lengthy–some 70 pages–but well worth the time to read in its entirety. it is meticulously sourced, and replete with graphs and other supporting data.

Wilkinson confirms what others have reported: a substantial majority of Americans now dwell in the nation’s cities and generate the lion’s share of the nation’s wealth. But he goes beneath those numbers, referencing a body of research demonstrating that people who are drawn to urban environments differ in significant ways from those who prefer to remain in rural precincts. He focuses especially on ethnicity, personality and education as attributes that make individuals more or less responsive to the lure of city life.

He goes on to describe how this “self-selected” migration has segregated Americans. It has not only concentrated economic production in a handful of “megacities”–it has driven a “polarizing wedge” between America’s dense and diverse urban populations and the sparse White populations remaining in rural areas. That “wedge” is what he dubs the “Density Divide.” (Wilkinson is careful to define “urban” to include dense areas of small towns–the divisions he traces aren’t a function of jurisdictional city limits. They are a function of residential density.)

Wilkinson finds that the “sorting mechanism of urbanization” has produced a rural America that is lower-density, predominantly White, and “increasingly uniform in socially conservative personality, aversion to diversity, relative disinclination to migrate and seek higher education, and Republican Party loyalty.”

That sorting has also left much of rural America in economic distress, which has activated a “zero-sum, ethnocentric mindset.” (That mindset is reflected in the angry rhetoric spouted by rural MAGA hat wearers about “un-American” immigrants and minorities, and disdain for “liberal elites”–all groups that are thought to reside in those multi-cultural cities.)

The density divide–together with America’s outdated electoral structures– explains the 2016 election. The “low-density bias” of our electoral system allowed Trump to win the Presidency by prevailing in areas that produce 1/3 of GDP and contain fewer than half of the population. That low-density bias continues to empower Republicans far out of proportion to their numbers.

Wilkinson reminds us that there are currently no Republican cities. None.

As he points out, the increase in return to human capital and density has acted to amplify the polarizing nature of selective urbanization. Temperamentally liberal people self-select into higher education and big cities, where the people they encounter exert a further influence on their political attitudes. They  leave behind a lower-density population that is “relatively uniform in white ethnicity, conservative disposition and lower economic productivity.” Economic growth has been shown to liberalize culture; stagnant or declining economic prospects generate a sense of anxiety and threat.( In that sense, the political scientists who attributed Trump votes to economic distress were correct, but the distress wasn’t a function of individual financial straits–it was a reaction to the steadily declining prospects of rural environments.)

Wilkinson argues that there are no red states or blue states–not even red or blue counties. Rather, there is compact blue urban density (even in small cities in rural states) and sprawling red sparseness.

This spatial segregation of people with very different values and world-views is radicalizing; Wilkinson reminds us that a lack of exposure to intellectual diversity and broadly different points of view breeds extremism. Because urban populations are far more intellectually diverse, more homogeneous rural populations have shifted much farther to the right than urban Americans have shifted left.

The United States population is projected to be 90% urbanized by 2050–not too many years after we are projected to become “majority-minority.” Those projections suggest we will see increasing radicalization of already-resentful rural inhabitants.

The prospects for returning to rational politics and a truly representative governance will depend entirely upon reforming an outdated and pernicious electoral framework that dramatically favors rural Americans. Whether those reforms can pass our very unrepresentative Senate is an open question.

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Really Telling It Like It Is

A recent op-ed in the New York Times considered the passions of the gun lobby.

The column was written by Will Wilkinson, Vice-President for Research at the Niskanen Center. I first encountered Wilkinson’s writing when I was doing research for my most recent book;  I’ve been consistently impressed with his thoughtfulness and the quality of his various analyses.

The column was headlined “Why an Assault Weapons Ban Hits Such a Nerve With Many Conservatives,” and the sub-head was “The premise of Trumpist populism is that the political preferences of a shrinking minority of citizens matter more than democracy.”

Wilkinson began by describing the blowback encountered by Beto O’Roark over O’Roark’s proposed assault weapon buy-back program. One Texas lawmaker issued a not-very-veiled threat to use his own weapon on O’Roark, and there was predictable hysteria from the usual suspects.

“So, this is — what you are calling for is civil war,” Tucker Carlson of Fox News said of Mr. O’Rourke’s comments. “What you are calling for is an incitement to violence.” On ABC’s “The View,” Meghan McCain maintained that “the AR-15 is by far the most popular gun in America, by far. I was just in the middle of nowhere Wyoming. If you’re talking about taking people’s guns from them, there’s going to be a lot of violence.” On Twitter, the conservative writer Erick Erickson said: “I know people who keep AR-15’s buried because they’re afraid one day the government might come for them. I know others who are stockpiling them. It is not a stretch to say there’d be violence if the gov’t tried to confiscate them.”

Wilkinson notes the obvious: no such program is likely to go into effect, absent an overwhelming electoral outpouring of majoritarian sentiment.

In that light, all of these ominous “there will be violence” warnings clearly imply that it simply doesn’t matter whether or not mandatory buyback legislation is enacted by duly elected representatives of the American people with an extraordinary popular mandate, because the wildly outvoted minority would nevertheless be right to regard the law as an intolerable injustice that warrants retaliatory violence. Just ask them.

Wilkinson then considers what this reaction signifies. As he points out, democracy is what we do to prevent political disagreement from turning into violent conflict. Trumpism, however, considers government legitimate only when it agrees with  white Christian conservatives.

Who, you may sensibly ask, granted Tucker Carlson’s target demographic veto power over the legislative will of the American people? Nobody. They got high on their own supply and anointed themselves the “real American” sovereigns of the realm. But their relative numbers are dwindling, and they live in fear of a future in which the law of the land reliably tracks the will of the people. Therein lies the appeal of a personal cache of AR-15s.

Weapons of mass death, and the submissive fear they engender, put teeth on that shrinking minority’s entitled claim to indefinite power. Without the threat of violence, what have they really got? Votes? Sooner or later, they won’t have enough, and they know it.

Nearly every Republican policy priority lacks majority support. New restrictions on abortion are unpopular. Slashing legal immigration levels is unpopular. The president’s single major legislative achievement, tax cuts for corporations and high earners, is unpopular.

Public support for enhanced background checks stands at an astonishing 90 percent, and 60 percent(and more) support a ban on assault weapon sales. Yet Republican legislatures block modest, popular gun control measures at every turn. The security of the minority’s self-ascribed right to make the rules has become their platform’s major plank, because unpopular rules don’t stand a chance without it.

As Wilkinson notes–and as rational people know–this isn’t about self-defense. Nobody needs a gun that can shoot 26 people in 32 seconds to ward off burglars.

The Second Amendment doesn’t grant the right to own one any more than it grants the right to own a surface-to-air missile.

I particularly loved these two paragraphs:

They’ll tell you their foreboding “predictions” of lethal resistance are really about preserving the means to protect the republic against an overweening, rights-stomping state. Don’t believe that, either. It’s really about the imagined peril of a multicultural majority running the show. Many countries that do more to protect their citizens against gun violence are more, not less, free than we are. According to the libertarian Cato Institute, 16 countries enjoy a higher level of overall freedom than the United States, and most of them ban or severely restrict ownership of assault weapons. The freedom to have your head blown off in an Applebee’s, to flee in terror from the bang of a backfiring engine, might not be freedom at all.

I’m not too proud to admit that in my misspent libertarian youth, I embraced the idea that a well-armed populace is a bulwark against tyranny. I imagined us a vast Switzerland, hived with rifles to defend our inviolable rights against … Michael Dukakis? What I slowly came to see is that freedom is inseparable from political disagreement and that holding to a trove of weapons as your last line of defense in a losing debate makes normal ideological opposition look like nascent tyranny and readies you to suppress it.

Clarity. Sanity. Why do I despair about the likelihood that Wilkinson, et al will prevail?

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