Seidman and Krugman: Voices of Reason

Two stellar pieces appeared on the same page of today's New York Times: Paul Krugman addresses the problem of trying to sound balanced when the situation is unbalanced; Louis Michael Seidman, a professor of constitution law at Georgetown, addresses the issue of being hidebound by the Constitution.

Speaking of the efforts by the CEO of Starbucks to encourage "bipartisanship" by having employees write "Come together" on coffee cups,  Mr. Krugman says, "It's true that elected politicians have been unable to 'come together and compromise.' But saying that in generic form, and implying a symmetry between Republicans and Democrats, isn't just misleading, it's actively harmful."

He then details the huge, and likely hurtful concessions made by Mr. Obama, rejected by the Republicans. "In return, the Republicans have offered essentially nothing. Oh, they say they're willing to increase revenue by closing loopholes--but they've refused to specify a single loophole they're willing to close. So if there's a breakdown in negotiations, the blame rests entirely with one side of the political divide..Given that reality, think about the effect when people like Mr. Schultz respond by blaming both sides equally."

This is the point I was trying to make about Mr. Douthat's article, yesterday. He is another one of those kumbya types trying to smooth over the nasty reality of Republican intransigence.

"What they're actually doing is rewarding intransigence and extremism," Krugman observes, because they are refusing to place the blame where it belongs.

Professor Seidman argues in a provocatively titled article, "Let's Give Up on the Constitution," that the words on parchment have outlived their usefulness, and more harm than good now accrues from any belief in this document as a sacred text. 

He outlines a long history of Presidents and government officials on a variety of levels violating the Constitution, from Jefferson's Louisiana Purchase, to Lincoln's Emancipation Proclamation, to decisions like Brown v Board of Education (outlawing segregated schools), to Miranda v Arizona (requiring "Miranda rights" be recited to citizens arrested)  to Roe v Wade (legalizing abortion)  to Bush v Gore (handing the election to Bush before a recount).  For many of these decisions, the immediate need for going beyond what was written in that document or frankly defying it (since slavery was accepted in the Constitution) was thought paramount to the national good. In the last case, it was simply convenient for the "orginalists" to ignore the Constitution when it suited their political convictions.

Today, with Antonin Scalia the real power on the Supreme Court, espousing "originalism" we have a recipe for disaster. 

"Our obsession with the Constitution has saddled us with a dysfunctional politcal system, kept us from debating the merits of divisive issues and inflamed our public discourse. Instead of arguing about what is to be done, we argue about what  James Madison might have done 225 years ago."

It is the legal equivalent of, "Just ask what Jesus would do."

All thinking ceases, in the face of this level of ethical analysis.

Seidman concedes, "This is not to say that we should disobey all constitutional commands...What would change is not the existence of these institutions, but the basis on which they claim legitimacy. The president would have to justify military action against Iran soley on the merits, without shutting down the debate with a claim of unchallengeable constitutional power as commander in chief."

He goes on to address the fears that many have raised about ensuing chaos if we change our approach to the Supreme Court or the Constitution: "The deep-seated fear that such disobedience would unravel our social fabric is mere superstition...The country has successfully survived numerous examples of constitutional infidelity." 

He points to Britain which has no constitution but holds together by traditions, accepted modes of procedure and engaged citizens. 

It is strange, Mad Dog observes, that Britain, which has a state religion does not try to justify its policy and governmental decision by reference to a "Good Book" or sacred scripture, but the United States has a Supreme Court which makes every decision thumping the good book of the Constitution, insisting "All the answers are in here. Every question is answered in the Good Book."

"What has preserved our political stability is not a poetic piece of parchment, but entrenched institutions and habits of thought and, most important, the sense that we are all one nation and must work out  our differences, " Seidman avers.

That is actually a scary thought, and I hope Professor Seidman is wrong about that, because if he is correct, just look at the Tea Party Republicans who currently hold sway in the House of Representatives. These are the people who believe 47% of our nation is compromised of parasites, freeloaders who want to suck the blood out of the the hard working 53% and most especially the upper 1%. These are not people who think of our nation as a whole people, but who believe the nation is a system of castes, and they believe themselves superior,  in the ruling caste, who live in walled communities, who keep their  children separate and apart,  free of despoliation by the hoi polloi; these are the people  who vacation among people of their own station and who believe other Americans are the enemy. 

I think a less radical approach might work, and I've spelled it out in terms of changing the composition of the Supreme Court with the president appointing a new justice every two years, only the 9 most recent justices voting. At least that way we could assure the Constitution is seen as a living document, not a holy book.

Ross Douthat: Getting the Balance Wrong

Audi Alteram Partem

--Hear the Other Side

Ross Douthat instructs us in today's New York Times, "Shake yourself free of the toils of partisanship, and let your mind rove more widely and freely...And whenever you're tempted to hurl away an article in disgust, that's exactly when you should turn the page or swipe the screen and keep on reading, to see what else the other side might have to say."

Like David Brooks, Douthat has made a living playing the role of the dispassionate, rational, approachable conservative.  The New York Times publishes these two as if they represented a lively conservative movement, as if they are the William F. Buckley, George Will ilk of amusing, thought provoking, waspish foil to smug liberalism.
The problem is, these are conservatives who do not represent a conservative wing, because they are the only extant surviving members of the species. They are the last two Dodos, and even Dodos were not all that benign.

Their pitch is, come let us reason together. Let us be Civil. 
We saw what that approach got us in the first Presidential debate, where Mitt Romney rolled over Jim Lehrer's civility with a Panzer tank and crushed any hope of a restrained, reasoned discussion in the first three minutes.

As for an interesting conservative backbench:  Charles Krauthammer is so pathological, just watching him on television one thinks of that deranged general in Dr. Strangelove who rides the nuclear bomb to its target like a cowboy on a wild horse.  George Will has the capacity to be amusing, but he is really nothing more than an old lady gossip, incapable of discerning when he has been fed the wrong answers at his Old Ebbet's Grill lunch. For me, the quintessential George Will appeared in 1981, when the AIDS epidemic was fresh,  and he published a story about how AIDS will never infect heterosexuals--it was destined to be a queer disease, promulgated and requiring anal intercourse with disruption of normal rectal tissues.  One can only imagine where he got this line, but the fact is, he did not have the intelligence or training to ask hard questions before publishing this stuff as received truth.  It was, like so much else which conservative belief is based upon, wishful thinking. 

In light of these circumstances, it is difficult to read and engage "other side" because the other side so rarely has anything reasonable to say.  

Consider the "gridlock" in Congress over the Fiscal Cliff. This is not a case of if only the Democrats would give a little and the Republicans would give a little...The Republicans, virtually every last one of them, have become so extreme, there is no room left for governing. They have purged, driven away or exiled any Republican who even verges on moderation.  

The House of Representatives Republicans have en masse, bound themselves to a pledge to never raise taxes, which is to say, to simply not govern. As long as you have a party dedicated to this kind of intransigence, how can you "hear the other side?" The other side is saying, "No government. Kill Medicare by converting it to Coupon Care and call it "saving" Medicare. Kill Social Security and call it fiscal responsibility. Never ask millionaires to pay more taxes. Spend only on defense, let everything else take care of itself.

Imagine if Lincoln and Thaddeus Stevens had taken Mr. Douthat's counsel:  Let's just listen to the other side and allow slavery to persist. Economic forces will eventually make it go away. Or maybe we should listen to the plan of phasing out slavery on a timetable which would end slavery by 1900. 

Imagine if Martin Luther King, Jr. and the leaders of the Civil Rights movement had taken the advice that Southern whites were not ready for integrated schools and we risked raising expectations of Blacks which could never be met, expectations for equal opportunity in education, employment and housing and that would cause a violent backlash.

All these reasonable conservative ideas were given a hearing and discarded. 

But at least there was room in some of these discussions for a shift in opinion. One side had not dug in.

When you listened to the debate on the floor of Congress in the movie Lincoln  (which was presumably historically as accurate as Doris Kearns Goodwin could make it) and heard the shock from the Democrats of the 1860's( who were the conservative party then,) when you heard them say there could never be a place for Negroes voting, or for women voting or for interracial marriage or for any sort of multiracial society, you have some idea of the sort of problem we have today, as we look across the aisle and see the face of fanatic opposition. 

The other side wants to drown government in a bathtub.

They are, at best fanatics, at worst anarchists. 

How do you expand your mind to listen to that?

In his masterful Second Inaugural Address, Lincoln wrestled with the existential idea of "why" the Civil War had come about. If it was God's will, why? The best he could come up with was the rather Old Testament notion that a vengeful God required a deep and abiding wrong be paid for with blood. The wrong that was slavery could not simply be phased out and patted on the head told to go away.   No, the murders and enslavement, and wrecking of families and lives ruined had to be atoned for.

 So each drop of blood drawn by the bondman's whip had to be paid for by a drop of blood drawn by the sword, as Lincoln reckoned.

I think we are in the same place now, with respect to the Tea Party Republicans. There is no reasoning, no compromising with those who "think" like these fanatics. You have to simply oppose them with whatever tools you have. 

Our system of government is designed to thwart action, with checks and balances meant to prevent action rather than to expedite it. 

Until 2014, there are no elections to expunge the fanatics. So what do we do until then? The Tea Party has its foot rammed on the brake of government. 

We can only jam our foot on the accelerator and hope the car moves forward. If it remains, wheels spinning in place, we can only point to the root cause of the problem and hope the American people can see the truth, not the half truth of Mr. Douthat, but the full truth, in full light of day. 

We are still stuck with the Tea Party of 2010. The Radical Tea Republican Party has the power to send us back into recession, to reverse the slow progress we have seen emerge.  

The only question is:  Can we find a way to overwhelm the fanatical right?

Currently, I see no path forward, other than attempting to shame the fanatics. 

Not a good bet.

Peyton Place, New Hampshire and Rape

From The Phantom Speaks Blog. Used with Permission


Hard on the heels of the news out of Newtown, Connecticut is today's summary of the week's news in the Sunday New YorkTimes, with an extraordinary story by Jeffrey Gettleman about the ordinary viciousness of life on planet Earth, this one focused not on America, but on the huge central African nation of Congo.  He reports on the rampant raping of women by young men carrying AK-47's in what are called militias. "What's the strategic purpose of putting an AK-47 assault rifle inside a woman and pulling the trigger? Or cutting out a woman's fetus and making her friends eat it?"
As chilling is his simple observation about cruelty not directed at women: "I met a pair of soldiers who had chained a chimpanzee to a corroded railway tie, leaving the animal in a pile of its own feces, staring up at us with rheumy eyes as the soldiers howled with laughter."

Police and pundits alike are quoted, decrying the murder of "innocence" at Newtown. Presumably, they meant, the murder of "innocents," that is, six year old children. But, no, they often extend their remarks to include the adults in this "idyllic" town where adults moved to raise their children in a protected environment, where children could grow up feeling safe from predators.

Of course, there is no such place on earth, not Norway, not small town America.

Wherever there are people, particularly young male human beings, you will find savagery lurking. 

Right next to the story about Africa, where young men stride about villages grinning, with babies squirmy in death throes on their bayonets, is a story about crowds on New York city streets, where people walk among each other, reading cues, and never colliding. There is another about the aging of Japan, where the first grade class in Nanmoku has just a single student this year. No fear of mass murder in that school. In fact, enrollment in the whole school system there is down from 1,250 to 37 over the past 50 years. Japan does not have a problem with young men and guns or bayonets, presumably because it has so few young men. But it did once, and they were as vicious or more vicious than any on the planet--just ask the women of Nanjing. 

The authors of Freakonomics, have suggested the drop in the murder rate, which began in the United States about 20 years after abortion was legalized resulted from the reduction of unwanted children, so fewer young men were around 20 years later to rape and shoot. 

That may apply to the everyday ghetto violence, but what do you think about the mass murderer? As Chris Rock has noted: When you hear about a man who grabs a lady's pocket book, hits her over the head with it, and runs away--Black man. When you hear about a man who walks into a school yard with an AK-47 and mows down six year old children--White guy.

Young, white guy. The people who shoot "randomly" do not typically emerge from the angry underclass, the poor, the spat upon. They seem to come from among the comfortable, from among those to whom much as been given.  And they seem to slaughter after planning, and that planning is designed to protect them from being injured, interfered with. Like the lions and predators on the nature shows, they do not attack other lions--they go after the young and the defenseless, where there is less risk of injury to the predator.

Grace Metalious wrote a brave, infamous, by today's standards quite mild pot boiler about 50 years ago, about a New Hampshire village which appeared, on the surface, to be picturesque, quaint, sexless and all "innocence" but which, below the surface was roiling with lust, greed, avarice and rape. It was called Peyton Place.  It was a decent book, and it made her famous, and she was not saved by that fame. She is buried in a pretty cemetery near the towns she described. But the violent emotions she described were not buried with her. 
There are twenty somethings growing up not five miles from her grave, who put in Congo with an AK-47 in their hands would be just as vicious as any native. 

The Politics of Rape

A report about a gang rape of an Indian woman, who was not only raped but bludgeoned and is currently dying  came across NPR this morning. Just a week ago,  a report in the New York Times about rape in Congo, by boys and men of the militias which terrorize the country side described, graphically, the prevalence of rape in that African country. In Haiti, a twenty something volunteer was raped and the head of the organization for whom she was working tried to press charges, but the Haitian government made that nearly impossible. The first step of simply having her examined, having specimens taken, giving her drugs to prevent pregnancy and HIV and syphilis and gonorrhea were delayed for days. During all this time she was not allowed to bath, because she might wash away the evidence of rape and the consistent refrain from the male officials was she was probably just asking for it.

The same act may well have different origins and meanings.  The rape by invading armies of soldiers visited upon the vanquished people of a nation which has waged war on the comrades of the rapists may be an expression of a different rage than the rape committed by the boy soldiers of the Congo or by the village rapist in Haiti.

When the American female reporter covering the Egyptian revolution strayed into Tahir Square, where demonstrations were in full throat, she was raped. Why? Was this rage against a representative of the West? Was this rage against a Western woman who had the folly to stray into the province of the male Islamic ego?

Why do men of some cultures seem to fear women so? There must be some connection between insisting on covering women completely and the attitude that those who are not completely covered are inviting rape. As if, women are so seductive it gives them a power to corrupt men which is so potent they ought to be raped at the first indication they might exert that power over men. The idea of rape as self defense.

Apparently, if you are an Afghan woman and raped, the shame is yours.

Google rape, and politics and you see sites in Norway and England which claim Middle Eastern men do all the raping in  Nordic countries. Just can't keep their hands off the white women. Right wing sites in Scandinavia say Scandinavian women are never raped by Scandinavian men, only by men of Middle Eastern origin.

 Sounds a lot like what I used to hear growing up,  from white men--those colored just can't keep their hands off white women. Got to string them up as a warning to the others.   Of course, nobody mentioned the rape of black slaves by their slave owners, but looking at any black from the Carolinas, Georgia or Alabama and you see blue eyes, light hair: American Blacks resemble white slave owners more than they resemble the Africans from Africa. 
And there was the case of the Central Park Jogger, where five Black boys were convicted of raping a white woman, wrongly, based on the familiar bias. 

What of the  men raping women of their own color--rape is what? A weapon? A form of torture? A terrorist tactic? But what strategic purpose does rape serve in the civil war in Congo?

How do we, as Americans, deal with stories of rape in cultures we do not understand?

Are we simply seeing the unleashing of restraint in the breakdown of law and order, like looting when the lights go out and the power fails? Is all that stands between women in our nation and rape, the power grid and armed force?

Are we seeing attitudes from distant cultures arriving here in the USA? Or are our rapists home grown and needing no inspiration from abroad?

The same act of violence against women likely has different origins in the minds of men, from an act of self assertion (the man who feels this is the only way he will have access to a woman who may otherwise reject him) to sheer hostility toward a woman because she is a member of a hated group, to an attempt to defile an entire nation, to a simple expression of power by men who fester in an underclass.  The woman in India was a medical student. Did those men who rape her come from an uneducated underclass? This may be a semester course we are talking about. 

All I know is I am mystified. Are these men who rape the same men who shoot school children?  If not, why not?

We clearly cannot look to our politicians for answers--those enlightened souls who assure us that women who were "legitimately" raped shut down their bodies so they don't get pregnant, or that pregnancies resulting from rape are "God's will."

Who has answers on this which are dispassionate, reasoned, informed and useful?

Limiting Supreme Court Justices Terms

For at least 6 years law professors at Duke, Cornell and George Washington University Law School have tried to interest the public in the problem of our Supreme Court, its dysfunction, its arrogance borne of immunity and its radicalization.

Various proposals have been advanced, most of which do not require amending the Constitution, but "simply" require an act of Congress, which means, of course the Senate and the House.

One idea which appeals to Mad Dog is simply allowing each President two Supreme Court justice appointments per term, allowing 4 for a two term President. The 9 most recently appointed justices can vote on cases. Any can write an opinion.

The disadvantages of this approach have been well recited:  1. "Whipsawing" the court, bringing it from conservative to liberal to conservative, as the cycles in Presidential elections occurs.  2. "Politicizing" a Court which is supposed to be above politics, deciding cases on the basis of where the law leads them rather than what they think the law ought to be.

As for "politicizing" the court, this could hardly be a more naive argument: The Court has demonstrated since its inception, through Dred Scott (slaves are property, not people) and Brown vs Board of Education (segregated schools are inherently unequal) to  Citizens United (corporations enjoy rights to finance elections)  to District of Columbia vs Heller (2nd amendment guarantees individuals the right to own guns) to Florence (strip searches of any citizen arrested, before arraignment or trial, to protect the jailers are legal) to even Bong Hits for Jesus (principals, as authority figures, can exert their authority to enforce their own political views on students) to the decision to end the vote counting in Florida and give the Presidency to George W. Bush, the court has demonstrated consistently the sort of decisions they make are made in territory where the law ends and personal philosophy and political belief rules--a court of authoritarians will predictably always find for those in power and against those underdogs, whom the founding fathers meant to protect.

As for "whipsawing" the court, i.e. creating change in the court too quickly for the good of country, is this better than the current system which allowed Richard Nixon 4 appointees and Jimmy Carter none? Is the current system, which has implanted four radical conservatives on the bench who are likely to serve 20 more years, on average, better than a system which would predictably replace justices every 2 years?

And, if the President had this power, would it not be more apparent and visible to the voters the importance of the President as a man who appoints Supreme Court justices?

The business of the Senate comes to a halt every time a Supreme Court justice comes up for appointment, because the Senators know this appointee, unlike any elected official may serve, immune to all law and review, for two or three decades, influencing the direction of the country far more than any bill they may vote on over the course of their own personal lives in the Senate. With two new justices every 4 years, there would be time for a natural correction and turn toward another path.

What is needed, if we can agree on the value of this approach is a media and marketing campaign in the media to force Congressional action. I have been in email connection with these professors of law, all of whom have said the virtues of the new system are obvious, the dysfunction of the current systems is obvious--all that is needed is a concerted effort on the part of citizens. 

Christmas2012

As we celebrate the birth of the Prince of Peace,  we can think about messages and their impact.

Mad Dog's religious education has been, by design, non traditional, and his touchstones have been "Jesus Christ Superstar,"  "Why I am Not A Christian" (Bertrand Russell), a variety of TV specials starring Charlton Heston (a lifetime member of the NRA), Michael York and others,  and various excerpts from the New and Old Testaments, assigned in school.

All of this has left Mad Dog mightily confused, but Mad Dog has always liked the idea of trying to solve problems among men without resort to clubs or guns.  This approach depends, of course, on two sides of a disagreement which are influenced by a population of relatively dispassionate citizens.  Howling mobs tend to facilitate the more violently inclined leaders, whether they are Roman functionaries, like Pontius Pilate or elected thugs, (Hitler, Stalin, you provide the name.) 

As has been often observed, Gandhi, had he been protesting against Hitler and the Third Reich, would have quickly become a nameless number, just another statistic.  And Gandhi might have gone that same way, had it not been for the existence of newspapers and mass communication in the 20th century.  For Jesus of Nazareth, the closest thing to mass communication was a mount from which to preach a sermon to those within earshot. His message would have been lost,  were it not for the willingness and determination of disciples or at least reporters to spread the word.

So, in that mode, I would think our 21st century version of the Gospels may be the blogosphere.  Getting the thought out to the world, seeing if it resonates, all a part of the message.

We've opened the gifts, stuffed the wrapping paper into the recycle bin and tomorrow, I expect tomorrow, the world will be pretty much the same, although for one day at least we've talked about the narcotic of hope, the power of hype and the possibility of change.

Christmas Present from the Supreme Court: NRA Rules

http://www.newyorker.com/online/blogs/comment/2012/12/jeffrey-toobin-second-amendment

Jeffrey Toobin, in the New Yorker blog, recounts the history of the Supreme Court in its opinions regarding the 2nd Amendment, with no less a conservative than Warren Burger saying the whole idea of a individual American citizen's right to bear arms is an absurdity, explicitly contradicted by the "because" clause which begins the amendment.

The link to his very concise article is above.

Our country of 300 million, stretching across an entire continent, comprised of people from thousands of different cultures, who speak hundreds of languages as their native tongue, who worship in different institutions, or not at all, has always been seen as a chimera which is in imminent danger of blowing apart. 

Closely linked to this fear is the fear of change: We have held together, just barely, for so long, and the visible symbol for our divisions can be seen in the red and blue states displayed on the maps on election night.  

So, we do not change easily or quickly. We fear and we quake at the idea of tampering with our institutions and we only do change when the pressure to change builds to the exploding point, and even then we fear to change.

So, Martin Luther King was correct to say we have to change now, when he was advised the people were not ready for a multi racial society. Lincoln was correct when he pushed through the 13th amendment before the new Congress could convene.  The Supreme Court was right when it forbade school segregation and affirmed one man one vote.  

Almost every time there has been the call for substantial change, the reply is, not now, too soon, too dangerous. 

And now we face the need to change the Supreme Court. Not just because of Antonin Scalia or even because of Antonin Scalia and Alito and Thomas. These are individual problems, unique personalities, why change an institution because a few flawed people have poisoned it?  

The answer has to be, the problem is not Mr. Scalia but the fact there can be an Antonin Scalia. We need to recognize there will always be Scalias who can slip onto the bench and and we need a way to check their power and balance their unbalanced minds.  To institute a new system for the Court, a system which would bring change to the court as we bring change to the executive branch and to the legislative branch would ensure a sort of cleansing, or if that sounds too much like "ethnic cleansing" then a renewal, a refreshing, a healthful cycle. 

Jefferson wrote about the importance of our government undergoing "a little revolution now and then."  We need to remember that.

Clearly the number of Americans with psychopathology has been underestimated--you can see it in the blogs and letters to the editor predicting revolution and blood in the streets if we ever try to take their guns away.  But this is an argument for change, not against it. 

Opinions about the need for mental health care in addition to gun control only serve the interests of those who opposed gun control--these mental health murmurers simply deflect attention from the practical solutions. And, of course, there is the problem of motivation--so many who argue for mental health efforts would stand to gain financially from federal dollars flowing in that direction. And, truth be told, there are no mental health solutions for the shooters. They are too good at hiding their disorders, and even those who are well known are uncontrollable, unless you propose locking them up in some deep and maximally secure hole.  No medication, no psychotherapy works for these deeply damaged psychopaths. Whenever you see a Congressman saying, "Let's let the experts handle this," know that Congressman has not clue about how ineffectual any of those experts are.

No, we need to change the institutions which underlie the pathology in our national organism. We need to change the Supreme Court.

Merry Christmas, one and all.