Judicial activism, left and right

 On Thursday and Friday the Supreme Court handed down two momentous decisions by 6-3 majorities, overturning New York state's venerable Sullivan Law (referred to by name in the film On the Waterfront) and then Roe V. Wade.  Clarence Thomas wrote the gun law majority decision and concurred, adding some broader remarks about "substantive due process," in the second.  I made clear months ago when the Alito opinion leaked that I do not think that his position--that the Constitution cannot be read as conferring a right to abortion--is without merit, and that the nation would be better off if abortion issues had been left to the political process within states, where it has now landed once again after 50 years of continuous organization and agitation.  I also believe that if in fact the right to abortion (which I support) is an overwhelmingly obvious necessity, as so many on the left believe, that the political process will ultimately protect it now.  Opinion may shift in red states when the decision's consequences become clear.  Yet I was preparing to write about the first decision--and Justice Thomas's opinion, like the Scalia opinion in Heller upon which it is based, is at least as flagrant a case of judicial overreach as Roe v. Wade is held to have been.  It reveals the doctrine of "originalism" as a total fraud.

I blogged about Heller fourteen years ago here.  I will begin today where I began then. Anyone who takes the few seconds necessary to read the Second Amendment--"A well-regulated militia being necessary to the security of a free state, the right to keep and bear arms shall not be infringed"--has to concede, it seems to me, that that amendment as written has been a dead letter for many decades.  The founders opposed standing armies and therefore limited federal appropriations for military forces to two years, and the colonies had always relied on militias to deal with hostile Indians and outbreaks of lawlessness. They also viewed them as guarantees against a tyrannical government.  While the militia tradition survives in our National Guard, we do not rely upon it for the same purposes, and it does not ask its members to provide their own weapons.  We rely on permanent forces to defend against invasion and police forces to stop crime.  Even Justice Scalia had to admit in his Heller opinion that no one kept up-to-date military weapons in their home.  Such weapons, by the way, play no role at all in the New York state case, which involved handguns.

Essentially, and for reasons known only to himself, Justice Scalia decided to find a right to personal self-defense in the Constitution, one that would allow citizens to keep handguns in their homes.  As I pointed out at the time,  he could not find a sufficient precedent to make his case.  He found that some states in the early Republic recognized a right to personal self-defense, but others did not.  In the same way that I would argue that the Constitution itself did not establish a personal right to own slaves--since many new states were abolishing slavery--it seems clear that the Constitution did not enshrine a self-defense right that some states refused to recognize either.  Each state had the right to make this decision for itself.  As I wrote in 2008, he reached the bizarre conclusion that since some states recognized this right, all of them must have believed in it.  The original blog explores this points at much greater length, and I recommend it to anyone who is interested.  Such an argument exposes conservative originalism as a fraud.  Scalia didn't base his argument on the language of the Second Amendment (he obviously couldn't) or on a fair reading of other evidence: he based it on faith in what the founders must have believed.  That is no more of a stretch than the discovery of a right to privacy in the Constitution.

Thomas's majority opinion in New York State Rifle & Pistol Association et al vs. Bruen retrace's Scalia's steps without paying any attention to the weaknesses of his argument.  He simply accepts Heller--a 5-4 decision by the way--as gospel.  The Sullivan Law required those wishing to carry guns to demonstrate a valid, specific risk that required them to do so, not simply a general need for self-defense.  The New York legislature in the early twentieth century apparently accepted the idea that law enforcement was the business of professionals. Thomas denies its right to take away the supposed "right" of all citizens to bear arms to defend themselves.  

In a very lengthy historical survey, Thomas has to admit that many states, in different eras, have imposed restrictions on the carrying of weapons, and especially on the carrying of concealed weapons. He also has to admit that both Texas and West Virginia passed laws very similar to the Sullivan Law in the late nineteenth century, requiring that anyone who wanted to go about armed have an important particular reason for doing so. He also admits that, as I mentioned recently, various western jurisdictions banned all firearms from towns in the same era.  But he insists on regarding all these laws as "outliers," rather than as reasonable attempts to maintain law and order, and thus without any value as precedents.   And he makes no attempt to compile a list of similar laws in the early twentieth century when the Sullivan law itself was passed.

Obviously many states at different times in our history believed that that law allowed them to ban the carrying of guns, and that the Constitution allowed them to do so.  It is not the language of the Second Amendment that leads Thomas to disregard them as precedents, but rather his and Scalia's determination to find a right in the Constitution that was never stated--exactly what he faults Justice Blackmun for doing in Roe v. Wade.   Of the two decisions, I am actually more disturbed by the New York one.  Dobbs leaves it to the states to decide whether to allow abortions, while the gun case takes the freedom to decide whether to allow the carrying of handguns in public away from the states.  Unlike Dobbs, it lays down a new law--and in my opinion a disastrous one--which we must all obey.  Justice Thomas has given up any right to complain about judicial overreach on the other side of the constitutional aisle.

Do we still have a modern state?

 I had planned to take the weekend off because I became mildly ill Friday night and I'm not quite over it yet--don't worry, not COVID, I checked!--but the morning's New York Times changed my  mind.  A well-researched lobby details how gun manufacturers changed the marketing of the products over the last 20-30 years (while the crime rate was, until recently, falling) from an emphasis on hunting to an emphasis on self-defense.  The story emphasizes the use of masculine imagery to sell weapons but has to add that female purchasers are increasing more quickly than male ones.  The manufacturers take advantage of every mass shooting to increase their sales of semi-automatic rifles and pistols just in case they are banned again.  I was more interested in the theoretical implications of all this.

More than a century ago, the German sociologist Max Weber defined the state as an entity exercising a monopoly of the legitimate use of force.  Half a century ago I think a large majority of Americans accepted that definition whether they could recite it or not, and it was reflected in my own life.  Nearly the only time I ever fired a gun was during basic training for the Army Reserve in 1971--and my superiors treated it as a very serious business.  Every magazine (and they were relatively small magazines) of ammunition was loaded and every single bullet was fired on command.  The end of every day's training featured a ritual to insure that no had taken either empty or full cartridges away from the range.  Our sergeants, in short, kept our use of potentially lethal force firmly under the control of competent authority.

Earlier than that, as a child, I had read a number of children's or young-adult books about the United States, including a biography of Wyatt Earp.  Long before the gunfight at the OK corral he had made his name by restoring some order to frontier cow towns like Dodge City--by making the cowboys check their guns when they came into town.  That marked, quite simply, the advance of civilization.  Yet incredibly, 150 years later, state after state is allowing any adult to purchase a weapon and carry it wherever they wish, concealed.  

Gun manufacturers and the NRA are not the only groups trying to take legal authority away from elected officials and bureaucrats.  The "restorative justice" movement in urban America wants to replace arrest, trial and incarceration with negotiations between the perpetrator and the victim or the victim's family to agree on proper restitution.  That reminds me of what I learned about medieval England, where everyone's life had a fixed value depending on their station in life and a murderer owed that value to the family.  It's another regression away from the ways of modernity.

I am not detailing these changes to insist that something must be done about them.  They seem to me to be part of a profound historical rhythm.  It took a long time to bring pre-modern ways of resolving conflicts under control,and the ebbing away of modern ways will take a long time as well.  It is probalby connected to the rise of our new aristocracy, although so far that aristocracy depends on metaphorical hired guns--attorneys--rather than real ones, to protect its interests.  It also generally settles government claims against itself for wrongdoing in a good medieval manner--by paying seemingly large but quite affordable fines, rather than surrendering its personal liberty.  I am merely identifying these trends, which I obviously dislike, but which I am not sure that any of us can stop.

Watergate and its consequences

 Late last week I participated in this two-day conference commemorating the 50th anniversary of the Watergate break-in, organized by historian and documentary filmmaker Shane O'Sullivan,  who had previously interviewed me at great length for this documentary on the JFK assassination.  Shane kindly put me on the program even though I had never published anything about Watergate before, and it gave me an opportunity to re-examine some questions that had bothered me since the Watergate era and which I felt had never gotten enough attention.  My presentation is in the last session of the conference, "The Legacy of Watergate," and although I now realize that I left out a key piece of evidence that surfaced twenty years ago.  I am not going to go into the content of my presentation here, although I'll be glad to take questions about it in the comments. Instead I want to take up another issue:  the way that Watergate changed the role of the press, and contributed to related changes in the intellectual world.

The late Bill Strauss liked to point out that Watergate was very much a generational event.  In a different era, two reporters in their late twenties would probably not have been able to sell their editors on a sensational story implicating the White House in criminal activity.  Woodward and Bernstein were in fact on the leading edge of the Boom generation, born in 1943 and 1944 (although Bernstein is much more of a Boomer in his personality and Woodward more of a Silent.)  The Vietnam War had already largely discredited the older GI generation's leadership, and their GI editor Ben Bradlee, while trying to hold his young reporters to high journalistic standards, was more than happy to go with the flow.  Sam Ervin, another key figure, showed the strength of character and the independence of mind characteristic of the Lost generation (see also Truman, Harry).  Unfortunately, Watergate became a template, politically, journalistically, and legally, which had a very unfortunate influence on American life for the next few decades. 

Too many reporters and editors, apparently, spent the rest of their careers looking for the next Watergate, and often settled for ersatz substitutes.  More importantly, the mainstream media gradually arrogated to itself the role of the nation's moral arbiter, not only identifying evil, but trying to mete out appropriate punishment.  Gary Hart, as many have pointed out, was the first political figure to crash and burn over misdeeds that earlier generations would have ignored.  One unfortunate legacy of the scandal was the special counsel law, which cost many innocent men hundreds of thousands of dollars defending themselves against very weak charges, and allowed Kenneth Starr to carry out a legal vendetta against Bill Clinton.  Cases like Watergate or Iran-Contra did require special prosecutors, but Congress should have authorized them on a case-by-case basis to ensure that the charges were sufficiently serious.  Presidents like Reagan and Clinton did find strategies to survive, and often protect their surrogates, nonetheless.  Court challenges and classification kept Lawrence Walsh from pursuing many of the most serious charges surrounding Iran-Contra, and President George H. W. Bush--himself implicated in the scandal--pardoned most of the men who had been convicted of anything.  Clinton survived his impeachment.    It took a very long time for many of the worst episodes of the George W. Bush administration to be investigated at all, and by the time a Senate committee released a powerful torture report, the country had lost interest.  Robert Mueller was a failed special prosecutor under Donald Trump, in my opinion, and Trump survived two impeachments thanks to partisanship with his base of support intact.  He remains a serious threat to get back into the White House.

The new journalism has found its real home, as I have pointed out before, on the nation's op-ed pages. A few dozen pundits, almost completely unconstrained, explain to us two or three times a week what is wrong with the United States--whether the government or the majority of the American people agree with them or not.  Many on the left come from the tradition that was born around the time of Watergate, that holds both American government and American society to be irredeemably evil, dominated by racism and patriarchy.  The enormous progress of both minorities and women in the last 50 years only seems to have made them much more shrill, for reasons that I will try to address.  Many of their columns don't even propose remedies for the evils that they identify, but content themselves with jeremiads.   Many academics, especially in the humanities, take a similar view.  And meanwhile, it seems to me, our political leadership has largely given up the task of defining what the nation's problems are and how we can meet them.  Republicans generally argue that we have too much government while Democrats focus on the wishes of certain political constituencies. At the same time, the country has lost much of its interest in what the government is doing. Last week Joe Biden suffered what really should have been a severe setback, when the most important Central American governments boycotted his international summit because he--copying his last few Republican presidents--refused to invite the leaders of Cuba, Nicaragua and Venezuela.  But this did not provoke any political debate to speak of.  Democrats are once again focusing on the sins of Donald Trump, while Republicans emphasize inflation and culture war issues on which Democratic constituencies are out of touch with much of the population.  Watergate occurred in part because many Americans trusted the government too much, but we now see what happens when we all trust it much too little. 

On another front, inflation is on my mind because my new history of the US has now reached 1981, and I have been reminded of the astonishing toll inflation took on our politics from 1965 until that year. After eight years of extraordinary price stability from 1958 through 1965, inflation was never below 3 percent from then until 1996, and it topped 10% three times from 1974 through 1980.  It dominated domestic politics under Nixon, Ford, and Carter, and played a huge role in Ford's defeat in 1976 and Carter's in 1980.  All through that era, those three presidents frequently suggested that a severe recession might stop inflation but refused to select that alternative. In 1981 Paul Volcker and Ronald Reagan did select it. Unemployment remained over 5 percent until 1987, but inflation did drop and Reagan somehow convinced the country that he had worked a miracle.   Now, faced with a new upward spike, the Biden administration appears to have no idea of what to do.  One thing that has not changed over the last half century is the normal rhythm of American electoral politics.  Midterm elections have been devastating to sitting presidents in 1994, 2006, 2010, 2014, and 2018.  Even though loyalty to a demagogue who tried to overthrow the constitution now dominates one party, that party seems almost certain to benefit from that same rhythm this fall.

The Frontline series on big oil and climate change

My dvr is set to tape all Frontline episodes, although I haven't been watching them religiously lately.  This week however I did watch a 3-part series on the energy industry and climate change--an excellent piece of history of the last 30 years or so, and a very depressing one.  It casts grave doubts both on our democracy's ability to function, and on the significance of real information in today's world. You can stream it here.

The great irony with which the series begins is this:  as early as the 1970s, Exxon, our leading energy firm, began studying the impact of greenhouse gases on climate in some detail, and realized that the problem was a serious one.  At one time they even made significant investments in the development of alternative energy sources.  These conclusions have come to light in recent years, but by then, Exxon and the whole energy industry had begun moving in a completely different direction.  Rather than join the emerging scientific consensus about the sources of the gravity of climate change, they have spent many millions on disinformation campaigns designed to stop a popular or political consensus from emerging.  Their first strategy, which in effect they borrowed from the tobacco industry, was to argue that scientists did not agree on the causes and impacts of global warming, and that major attempts to combat it had to await better data.  The Koch brothers, Exxon, the American Petroleum Institute and other key players have created a whole network of "researchers" whose job was to popularize this campaign.  They evidently enlisted the editorial page of the Wall Street Journal in their crusade, and spent many millions on "advertorials"--ads masquerading as editorials--in other major publications. Apparently, this has worked.

In 1992, when Bill Clinton and Al Gore won the presidential election, a new era of environmental regulation seemed possible. Climate change was already Gore's signature issue, and Clinton seemed to be on board.  During his first year Clinton spent most of his political capital on his economic program--including an unpopular tax increase--and threw a controversial health care plan into the mix for good measure. He also called for a BTU tax--a tax on thermal units of energy--to be levied on all forms of energy except solar, wind, and geothermal.  That proposal passed the House, but even a watered-down version failed in the Senate after a tremendous lobbying campaign against it and the costs it was supposed to impose on the economy.  Then, in November, the Republicans won their biggest midterm victory since 1946, taking control of both chambers.  Any chance of significant environmental legislation or of health care reform disappeared, and Clinton governed from the center for the rest of his term.  His administration signed the Kyoto Protocol committing the US to action to reduce emissions in 1997, but times had changed by 2005 when the protocol theoretically took effect. 

As I have noted a number of times over the last 22 years, a post-2000 investigation by journalists suggested that a full recount of Florida in November of that year--which Al Gore never had the temerity to ask for--would have given Gore the presidency.  No such recount occurred and we will never know if Gore might have reacted to 9/11, not be embarking on a series of new wars, but by proclaiming the necessity of weaning the nation from fossil fuels. We also do not know if he could have sold the Congress on such a policy.  George W. Bush and Dick Cheney went in a completely opposite direction.  The documentary disappointed me when it failed to discuss Cheney's energy task force, which operated largely in secrecy, and which I believe laid out the groundwork for seeking US energy independence by fracking for natural gas.  They do mention that Hurricane Katrina, which disrupted oil drilling in the Gulf, became an excuse for developing new fossil fuel sources.  In any event, by the time Bush left office in 2009, the fracking revolution was underway.

The campaign of 2008 was another bad moment for the energy industry because both candidates--Barack Obama and John McCain--supported some kind of energy tax and recognized climate change as a major problem.  After his smashing victory, Obama asked Congress for a cap-and-trade measure that would have forced energy consumers to bid for the right to use allocations from a defined total of energy.  The Democratic House of Representatives passed it, but another huge lobbing campaign managed to keep it from coming to a vote in the Senate, which meanwhile lost its filibuster-proof majority after Ted Kennedy's death.  Right-wing lobbying groups led by the Koch brothers argued that its costs would cripple the American economy, and like Clinton's BTU proposal in 1993, the cap-and-trade proposal became one of several factors in a huge Republican victory in the 2010 midterms. Bob Inglis, a courageous Republican Congressman from South Carolina, suffered a humiliating primary loss after he came out in favor of it, winning less than 30 percent of the vote.  Obama, like Clinton before him, had to move to the center, and he also adopted a key piece of oil industry propaganda himself.  Boasting that the United States now had enough natural gas available to last a century, he adopted the industry line that natural gas was a clean fuel because it resulted in half the carbon dioxide emissions of oil or coal.  That turns out to be a half-truth at best, because the mining of natural gas also leads to huge leaks of methane, which is a more potent greenhouse gas than CO 2. The energy industry was itself pushing natural gas as an alternative to coal, the worst greenhouse gas source, but Republicans seem to have done quite well by blaming a "war on coal" on Barack Obama and Hillary Clinton.  Like Bill Clinton, Obama balanced inaction at home with international agreement abroad, making new commitments to the Paris accord--but those commitments, like Clinton's, fell victim to the US electoral process.  Trump backed out of the accord, claiming that it was unfair to the US.

Throughout this long story--and now, into the Biden administration as well--the fossil fuel industry has benefited from its entrenched, enormous role in our economy.  Any time we encounter a new economic setback, we hear that we cannot afford expensive transitions to new energy sources. Now, with the price of oil soaring because of the Ukraine war, Biden is off to the Middle East to beg for higher production.  He meanwhile had to abandon the climate provision of the Build Back Better act.

Two kinds of interviewees dominate the documentary. On the one hand, there are calm, measured scientists, some of whom have worked in the energy industry, who explain the dangers of emissions and the failure to do anything about them.  On the other, there are former industry lobbyists who boast about stopping any measures that would really hurt their employers, and stick avidly to the fictions that they have developed. Meanwhile, nearly every actual energy producer or active lobbying group refused to be interviewed at all or to provide meaningful written answers to questions.  That is how entrenched interests now treat the mainstream media, of which PBS obviously is a part. Most viewers would prefer to share a meal with one of the scientists, but there are few of them I would bet on in a fight with one of the flacks.  The production of information is a major industry in the United States today, but it serves entrenched interests.  High-quality information--which has also become very hard to market to publishers--has to face torrents of opposing misinformation any time that it threatens established interests. Neither Obama nor Biden has made a real effort to educate the American people on any critical issue.  The great enlightenment experiment may be over.