Friday, July 24, 2015

The Meaning of the Iran agreement

Yesterday, in Senate Foreign Relations Committee hearings, the Republican chairman, Senator Robert Corker, accused Secretary of State John Kerry of moving from a situation in which Iran was a pariah to one in which Congress was a pariah.  There was more than a grain of truth in that statement--but in fact, what is at stake is much, much bigger, even though the real issue is being treated rather quietly by both sides.

"Congress," today, means the Republican Party, whose successful long-term offensive has given it majorities in both houses and left the Republicans just one election away from completely transforming the United States.  But with regard to Iran, the Republicans stand for two things.  To begin with, they stand for the neoconservative doctrines put into effect by George W. Bush, that give the United States the right and the duty to rule the world and to apply force as necessary against any state perceived to be seeking nuclear weapons.  But equally importantly today is the rock-solid alliance, unprecedented in American history, between the Congressional Republicans and the Israeli government.  The Israeli Ambassador, Ron Dermer--who, like his predecessor Michael Oren, was born and grew uip in the United States--has been having Republicans-only meetings on Capitol Hill.  Meanwhile, AIPAC, the leading U.S. organization advocating on behalf of the Israeli government, is apparently throwing all its enormous political capital  into the scales against the agreement, with the result that many Democrats are reluctant, as  yet, to endorse it.  (One notable exception is Democratic whip Charles Schumer of New York.)  Those wishing to reacquaint themselves with AIPAC's tactics and power should review this post, and the Michael Massing article in The New York Review of Books upon which it was based.  To stop the deal--or rather, to keep the US out of the deal--AIPAC needs 2/3 majorities to override a presidential veto in both Houses.  I do not think it is impossible that they might get them.

It was inevitable that the Republican Party, in its utterly single-minded drive to regain power and undo the Progressive era, the New Deal, and the Great Society, would make an ironclad alliance with a powerful lobby that does not care in the least about American domestic politics but only foreign policy.  Equally determined  Republicans made a comparable alliance 70 years ago with the "China lobby" on behalf of Chiang Kai-Shek's doomed regime in China, and kept a stranglehold on U.S. China policy until Richard Nixon turned apostate, courageously, in 1971.  Until Barack Obama, Democratic legislators and Presidents had been nearly as beholden to the Israeli lobby as Republican ones, and despite all the bitter rhetoric between Obama and Netanyahu over the past few years, this is the first time that Obama has actually done something directly contrary to Israeli policy.  The issue is quite simple:  the Israelis have tried to insist that the US treat as a pariah state any nation that has openly called for their destruction, to put maximum pressure upon it, and in certain circumstances, to go to war with it.  The second Iraq war as a triumph for Israel, and Benjamin Netanyahu joined George W. Bush in proclaiming that it would lead to a new era of peace and reconciliation in the Middle East.  This Israeli policy--along with the continuing, if clearly unsuccessful, attempt to replace the Palestinian population of Jerusalem and the West Bank with an Israeli one--has isolated Israel within the world community for some time.  That is why the veto power of the U.S. has repeatedly protected Israel against Security Council resolutions condemning various Israeli policies.  The Iran agreement terrifies Netanyahu, I think, not simply because he thinks Iran might get a nuclear weapon, but because it marks the end of the era in which the United States would diplomatically protect Israel.

President Obama's defense of the agreement has been provocative, sophisticated, and effective, although typically, as in the case of  the Obama doctrine, he has not enunciated it in a major speech, the way that Roosevelt, Kennedy, or Nixon would have.  It rests on a frank recognition that the United States must live alongside many states that do not share our interests and values, but with whom we can make useful agreements.  As Obama told Jon Stewart the other night, if we could make such agreements with the Soviet Union when it had 10,000 nuclear warheads pointed at us, surely we can make agreements with Iran to keep them from having any.   The President pledged to continue opposing Iranian support for militant groups in certain countries (he did not really answer Stewart's question as to why we were with Iran in Syria and Iraq, but against them in Yemen), and, to my sorrow, he forswore re-opening diplomatic relations with Teheran.  But the broader point he is making, with typical, maddening restraint, is true. Neither Russia nor China, as well as Iran, shares our values or wants the kind of world that we do.  We have proven that military force cannot transform the Middle East according to our wishes, and a military conflict with Russia or China would be a disaster we cannot imagine.  American diplomacy now faces unprecedented challenges, requiring a realistic, sophisticated view of other nations and regions, their values, their aspirations, and the ways in which we can live together in the same world.  We barely survived that situation during the Cold War, and we disposed of a far more educated elite then than we do now.  But Obama and Kerry are headed in the right direction.

The alternative, clearly, is the for the US to remain tightly allied with Israel in opposition to every other major power in the world, including Britain, France, and Germany.  That has been the goal of Israel and AIPAC for years, and under George W. Bush they achieved it regarding Iraq--with disastrous results. That policy is not, we must keep in mind, supported by all Israelis, and its opponents include not only Israeli doves, who are increasingly isolated, but former heads of Mossad, at least one of whom has endorsed the agreement.  Republican rhetoric of "American exceptionalism" also militates in favor of that outcome.   Obama has in fact paid shockingly little attention to our traditional allies, but John Kerry has now created a new situation.  The Iran agreement is an important step in the right direction for the United States.

Wednesday, July 08, 2015

The Supreme Court and Gay Marriage

Before going any further, may I say that I believe gay marriage should be legal, and, indeed, that I think the Constitution can legitimately be interpreted to require it.  In that sense the Supreme Court's decision nearly two weeks ago was worthy of applause, even though nearly everyone seems to agree that Justice Kennedy's decision was not a highlight of American jurisprudence.  I did not think so either.  I think it embodies some unfortunate trends that have changed the role of the high court and changed our laws in unfortunate ways. And I am one of those who believe that consistency and fidelity to precedent are critical to a well-functioning judiciary, even if those qualities sometimes make it harder to reach my preferred result. Thus, I want to discuss the decision, and to show how I think the court could have reached a better one.  To do so--and believe me when I say that I am just as shocked to write this sentence as you are to read it--I am going to rely mainly on the opinion of my contemporary, Justice Clarence Thomas. Please pick yourself off the floor and be ready to proceed.

Kennedy's majority opinion (which none of his liberal colleagues thought fit to supplement with reasoning of their own)  relies, to begin with, on the doctrine of "substantive due process." Both the 5th and 14th amendments state that no American citizen shall be deprived of life, liberty or property without due process of law.  That looks like a mere protection against arbitrary detention or imprisonment to me.  As my old friend, the legal commentator Ken Jost, helped explain to me, however, these clauses have been read to give the citizens other liberties never enumerated in the Constitution, and, indeed, which early Americans did not enjoy.  The Griswold and Baird cases that legalized birth control, Roe v. Wade which legalized abortion, and Lawrence v. Texas which legalized gay sex, all relied on this doctrine.  They did not invent it: it comes originally from a 1923 case, Meyers v. Nebraska, which struck down a law that  banned the teaching of foriegn languages by anyone to any child not old enough to attend the eighth grade. Here is what Justice McReynolds said then, speaking for the Court.

"While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. Slaughter-House Cases, 16 Wall. 36; Butchers' Union Co. v. Crescent City Co., 111 U. S. 746; Yick Wo v. Hopkins, 118 U. S. 356; Minnesota v. Barber, 136 U. S. 313; Allgeyer v. Louisiana, 165 U. S. 578; Lochner v. New York, 198 U. S. 45; Twining v. New Jersey, 211 U. S. 78; Chicago, Burlington & Quincy R.R. Co. v. McGuire, 219 U. S. 549; Truax v. Raich, 239 U. S. 33; Adams v. Tanner, 244 U. S. 590; New York Life Ins. Co. v. Dodge, 246 U. S. 357; Truax v. Corrigan, 257 U. S. 312; Adkins v. Children's Hospital, 261 U. S. 525; Wyeth v. Cambridge Board of Health, 200 Mass. 474. The established doctrine is that this liberty may not be interfered

with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the State to effect. Determination by the legislature of what constitutes proper exercise of police power is not final or conclusive, but is subject to supervision by the courts. Lawton v. Steele, 152 U. S. 133, 152 U. S. 137."

While McReynolds defined liberty broadly, he did so in terms of tradition, both under the Constitution (the reference to religious freedoms, properly defined) and with respect to the common law.  He also established a test for legislation--that it could not be arbitrary or lacking any reasonable purpose.  But he did not use the clause to invent any new liberties, as the Warren and Burger and Rehnquist courts did to legalize birth control, abortion, and gay sex.

In their dissents, Justices Roberts and Scalia took Kennedy and the majority to task for inventing new law that reflected their own beliefs, or perhaps the beliefs of a large portion of contemporary society.  Kennedy essentially admitted that that was what he was doing, acknowledging that opinions of what is right and proper change, and declining to wait for all our state legislatures to pass laws reflecting new views of gay marriage.  I think Roberts's and Scalia's accusations had more than a grain of truth, but they have repeatedly been guilty of the same sin.  It was not until the decisions they joined in Heller and Citizens United that anyone asserted that the Constitution protects a citizen's right to bear almost any arms, or that restrictions on campaign spending are illegal.  And in striking down the key section of the Voting Rights Act, they invalidated a very recent act of Congress.  I honestly would prefer it if the present court included at least one genuine strict constructionist, who might have voted against the gay marriage decision, but also against all of those conservative decisions as well, on the grounds that every one of them went well beyond what the Constitution says.  Unfortunately there is no such person on today's court.

Justice Thomas's dissent starts with a flat-out, carefully argued rejection of the whole doctrine of substantive due process, and goes back to Magna Carta to show that "liberty," under English and American law, had the clear definition of freedom from physical restraint, period,  With this I am inclined to agree: I do not think those clauses of the 5th and 14th amendment referred to broad and undefined liberties.  The court going back at least to Griswold would have been better advised, in my opinion, to find additional rights in the 9th and 10th amendments, which specifically state that the people enjoy rights not specifically guaranteed in the Constitution.  Unfortunately, they did not.  At the same time, Justice Thomas makes a second argument, one dear to the heart of present day "conservatives" like himself, which seems to me quite absurd.

Stating the new conservative view of the Constitution and its origins, Thomas claims that liberty does not come from government.  John Locke, he argues, said that men enjoyed perfect liberty while still in a state of nature.  "When the Framers proclaimed in the Declaration of Independence that “all men are created equal," he writes, "and 'endowed by their Creator with certain unalienable Rights,' they referred to a vision of mankind in which all humans are created in the image of God and therefore of inherent worth. That vision is the foundation upon which this Nation was built."  But this is not correct.  The authors of the Declaration did not refer to "God," but to a "Creator." More importantly, Thomas, like most contemporary conservatives, conveniently omits the next sentence in the Declaration: "To secure these rights, governments are established with the consent of the governed." 
 We enjoy our rights only because we have an effective government.  Without it, we would be at one another's mercy.

This fundamental misreading of history and law allows Thomas to embark upon a real flight of fancy worthy of a 19th-century French Catholic conservative.  "The corollary of that principle," he continues, "is that human dignity cannot be taken away by the government. Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved.Those held in internment camps did not lose their dignity because the government confined them. And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits. The government cannot bestow dignity, and it cannot take it away.

"The majority’s musings are thus deeply misguided, but at least those musings can have no effect on the dignity of the persons the majority demeans. Its mischaracterization of the arguments presented by the States and their amici can have no effect on the dignity of those litigants. Its rejection of laws preserving the traditional definition of marriage can have no effect on the dignity of the people who voted for them. Its invalidation of those laws can have no effect on the dignity of the people who continue toadhere to the traditional definition of marriage. And its disdain for the understandings of liberty and dignity upon which this Nation was founded can have no effect on the dignity of Americans who continue to believe in them."

Now Justice Thomas, a Catholic himself, is free to believe that he owes nothing of his dignity to his status as a free and equal citizen of the United States, but our whole history and body of law screams the exact opposite.  The greatest and most radical achievement of our revolution, as Tocqueville along with the framers themselves understood, was to create a society without distinctions of rank, in which all were equal before the law.  The abolitionist movement based itself upon that principle as well and it was embodied in the 13th, 14th and 15th amendments after the civil war.  The twentieth century has extended full legal dignity to women.  Under Franklin Roosevelt's leadership, we fought the Second World War to make four fundamental freedoms safe in the world at large.   It seems that Clarence Thomas, had he been an adult living in 1776, would have been a Tory, complaining that the Continental Congress had opened a revolution against an earthly authority whose doings should not unduly trouble any of God's creatures. Fortunately for the United States and the world, those views, while present in the revolutionary era, did not prevail.

It was these words of Justice Thomas that convinced me that the Supreme Court had made the right decision, even though its reasoning could have been much better. Gay sex has now been legal in the United States for more than ten years.  The majority of us who are disposed to love and desire members of the opposite sex have always had the freedom to marry a partner of our choosing.  In Loving v. Virginia, the case that struck down laws against interracial marriage in the 1960s, the Court did what it had been doing for a long time: it put an end to laws that created two classes of citizens, one free to marry whom they chose, and the other not.  That is what it has done now. With gay sex recognized as legal, there is no basis for denying gay men and women the right to marry, based on the equal protection clause of the 14th amendment.  As the court held in Meyers, liberty at common law includes the liberty to make contracts, including marriage contracts.  When homosexuality was illegal, such contracts would also have been, but we live now in more enlightened times and it is not.  My thanks go to Clarence Thomas, whose utterly baseless view of the foundation of our law and the source of our rights led me to see why the Court was right to legalize gay marriage.


Thursday, June 25, 2015

Why the Confederate Flag flew so long


 Most of the white southerners whom I have known well left their region as young men and women, at least in part because of its political values.   Several of them have talked very frankly about the psychology of their native region, and to them I owe some of the ideas behind this painful post. But meanwhile, other white southerners whom I never met have loomed large on my horizon for as long as I can remember: the barons of the House and Senate in the 1950s and 1960s, such as Senator Richard Russell of Georgia and House Rules Committee Chairman Howard Smith; the defiant governors, George Wallace and Ross Barnett, who rallied their white constituents behind segregation; and perhaps the most interesting of all, those like Senators Lister Hill and John Sparkman of Alabama, who were liberals on virtually every issue but race. Their fellow Alabamian Hugo Black had already been on the Supreme Court for twenty years when I became aware of him, and he had joined the civil rights coalition.  So did Ralph Yarborough of Texas and Estes Kefauver and Al Gore, Sr., of Tennessee.  I studied race relations in college with Thomas Pettigrew, a liberal white Virginian, and I have never lost interest in them.  And thus, although the evidence I want to present today is primarily circumstantial, I think I do understand why the Confederate flag is displayed even today on the grounds of the South Carolina capitol, and why it remains a potent symbol in white southern politics.  I do not think it is primarily a symbol of hate; rather, I see it as a sign of fear, which in turn is fueled by a very bad conscience over what white southerners have done to black ones for five centuries.

Because slavery explicitly denied the full humanity of the slaves, it also forced the masters to suppress many of their own human feelings.  Holding other men and women in bondage and forcing them to work, often with violence, is a brutal, degrading, and frightening affair.  That is why, as  I learned from Pettigrew, planters customarily delegated the dirty work to an overseer—a white without property, not infrequently from the North, like Simon Legree in Uncle Tom’s Cabin, whom Harriet Beecher Stowe specifically identified as a Yankee from Vermont.  When feelings between the overseer and the slaves became too intense, he was fired and replaced.  But the real burden of slavery on the master lay in the fear it inspired, the belief, amounting to a certainty, that the slaves would gleefully take their revenge upon white men and women if ever given half a chance.  And what is more natural, after all, than a belief that one’s slaves would treat one’s self just as one had treated them—or worse—if given half a chance?  While some antebellum white southerners undoubtedly felt slavery had been a mistake to impose in the first place, nearly all agreed that to give it up would be madness.  But the more extreme, who became more and more influential in the decades before the civil war, argued that it was a positive good that not only had to be maintained, but expanded.  That was why they defied the will of the nation in 1860 and seceded rather than live peacefully under Abraham Lincoln, who was elected without any plans to free the slaves.

Four years later, when the Confederacy’s resistance finally collapsed and emancipation took place all over the South, the nightmare appeared to have come true.  In the next ten years, the radical Republicans insisted upon black suffrage, and black governments ruled a number of southern states.  They were not, as southerners claimed for a century, simply corrupt and inefficient: some of them were the first southern state governments to provide what even then were regarded as basic services.  But the white power structure re-asserted itself through a campaign of terror led by the Ku Klux Klan, and eventually wore out the North. After federal troops left, the white elite not only terrorized and disenfranchised the black population, but created a new myth of “redemption,” arguing that they had saved their people from the horror of a race dictatorship.  And until the 1950s, intimidation, including lynchings, kept the black citizenry subjugated.  Then, fueled in part by the votes of blacks who had moved north, the federal government began once again to take an interest in the fate of black citizens.

Once again, this meant, to white southerners, the terrifying prospect of black rage let loose.   In the 1950s reporters who went south to report on civil rights issues heard the same line from whites again and again: that they didn’t have any trouble with “our Negroes,” it was just the outside agitators from the North who were causing the trouble.   That is why it was in 1962 that the Confederate flag first began flying over the capitol in Columbia, South Carolina, and why it was then that it was revived in other states.  Once again the Yankees were threatening to unleash black rage upon white southerners, and symbols of resistance had to be revived.    And suddenly, in the 1960s, when the civil rights movement reached its climax, most white southerners once again forgot every other issue, quit the Democratic Party en masse, and became the backbone of the Republican coalition.  By the 1970s, a new rhetorical trick had emerged to conceal what was happening.  Since it had become impossible openly to defend racism or the “southern way of life” (segregation), some new buzzword was needed around which southern whites could rally.  Fundamentalist Christianity provided it, and “Christian values” became the glue that held southern whites together.  It had become unfashionable to vote in favor of racism, but who could vote against Christianity?  (This morning, Charles Blow of the New York Times noted that a couple of Fox News commentators actually tried to spin Dylan Roof’s crime as an attack on Christianity—even though Roof is a member of a Lutheran Church.)  Dylann Rooff was inspired by the website of a neo-Confederate group that keeps lists on black-on-white crimes.    When he told the parishioners that he had to kill them because “you are raping our women and taking over our country,” he expressed the white southern fears that have dominated southern politics for much of the last two centuries.  

What is so painfully, dreadfully sad about all this, is how unnecessary it all has been.  Slave rebellions in the antebellum South were extremely rare, and attacks upon whites after emancipation seem to have been even rarer.  Having been thoroughly intimidated by slavery, new black citizens would have been more than happy to exercise the benefits of citizenship peacefully—but this they were not allowed to do.  Black violence has always been more directed against other blacks than against whites.  Still, the election of Barack Obama still symbolized, for many southerners, their worst nightmare, and white southerners have become more solidly Republican than ever in the Deep South.  And so respectful are Republican politicians of white southern fears that not a single Republican presidential candidate dared suggest that the Confederate flat come down on the state capitol grounds.  

Since I first drafted this post, however, an extraordinary wind of change has blown around the South.  Governor Nikki Haley os South Carolina is to be commended for taking the lead.  It is interesting that when the South Carolina legislature decided to fly the flag at a Confederate memorial on the grounds, it specified that only a 2/3 vote of both houses could overturn their decision.  That, too, looks like an attempt to defend the views of white folks against a growing minority tide.  But the South Carolina legislature has quickly come around, and a vote to remove the flag seems certain.  Similar moves to take Confederate flags off of license plates and remove statues of prominent Confederates from state capitols are gaining ground, and white Mississippians are talking about removing the Confederate battle flag from their state flag.

Wednesday morning’s New York Times describes what is happening at length, and includes a remarkable quote from a South Carolina state legislator with a famous name. “Our ancestors were literally fighting to keep human beings as slaves, and to continue the unimaginable acts that occur when someone is held against their will,” said State Senator Paul Thurmond, a Republican, explaining that he would vote to remove the flag.  “I am not proud of this heritage,” said Mr. Thurmond, the son of Strom Thurmond, the former governor and United States senator who was a segregationist candidate for president in 1948.  To be quite frank, I had given up on ever hearing any white southern politician say words like those.  Senator Thurmond has used his family’s prestige to try finally to move his state and his region forward.  He is a great American.