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Saturday, June 30, 2012

The Decision

This may be a long post!

My prediction turned out to be pretty accurate, although Justice Kennedy decided to side with his conservative brethren this time. I also think I identified Justice Roberts's motives: he did not want to go down in history as one of the most partisan Chief Justices of all time--although as we shall see he carefully left open plenty of constitutional room for his fellow Republicans to work with in the months and years ahead. The Justice's petulant complaint a year and a half ago after the President criticized the Citizen's United ruling evidently showed that the accusation had stung. Roberts did not want a re-elected President Obama to point out in his next State of the Union that the Court had overruled the other two branches of government on a critical issue of public policy.

The decision was therefore a welcome exercise of judicial restraint. More importantly, it made the President's re-election, in my opinion, far more likely, because the overruling of the law would have definitely branded his administration as a failure. He still has a long way to go, but the analyses at fivethirtyeight.com suggest that the odds are in his favor, and this will help. But at the same time the decision's logic represents yet another huge step backward for America and another symptom of the intellectual degradation of what passes, nowadays, for "conservatives. It also illustrates one of my favorite points:the extend to which my own Boom generation has undone the intellectual achievements of our forbears in favor of its own prejudices. To make this point, I would like to quote at some length from key portions of the opinion of Justice Roberts, now the most powerful Boomer in the country, and of Justice Ginsburg, arguing, respectively, that the Health Care act's mandate was not, or was, a valid exercise of Congressional power. Readers who want to read the entire opinions--a very useful exercise I think--can do so at www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf. [For some reason I can't make the link work.)

Roberts and Ginsburg agree that there is a market for health care in this country, which in theory makes the industry a proper target of regulation under the commerce clause. I have argued earlier here that that is our real problem: we the only major industrial nation that treats health care as a commodity and a source of profit, and that's why our system is in the mess that it is. But however we feel about this, it is nonetheless a fact. The critical question upon which the controversy turned, and upon which Roberts carried the day against Ginsburg, Breyer, Sotomayor and Kagan, is how to understand individual participation in that market. Here are key passages from each of their opinions, beginning with Roberts. As you probably know, he claimed that people who chose not to buy health insurance could not be subject to regulation because they were not engaged in any commercial activity. Here is the crux of his argument.

To an economist, perhaps, there is no difference between activity and inactivity; both have measurable economic effects on commerce. But the distinction between doing something and doing nothing would not have been lost on the Framers, who were “practical statesmen,” not metaphysical philosophers. Industrial Union Dept., AFL–CIO
v. American Petroleum Institute, 448 U. S. 607, 673 (1980) (Rehnquist, J., concurring in judgment). As we have explained, “the framers of the Constitution were not mere visionaries, toying with speculations or theories, but practical men, dealing with the facts of political life as they understood them, putting into form the government they were creating, and prescribing in language clear and intelligible the powers that government was to take.” South Carolina v. United States, 199 U. S. 437, 449 (1905). The Framers gave Congress the power to regulate commerce, not to compel it, and for over 200 years both our decisions and Congress’s actions have reflected this understanding. There is no reason to depart from that understanding now.
The Government sees things differently. It argues thatbecause sickness and injury are unpredictable but unavoidable, “the uninsured as a class are active in the market for health care, which they regularly seek and obtain.”Brief for United States 50. The individual mandate “merely regulates how individuals finance and pay for that active participation—requiring that they do so through insurance, rather than through attempted self-insurance with the back-stop of shifting costs to others.” Ibid. The Government repeats the phrase “active in the market for health care” throughout its brief, see id., at 7, 18, 34, 50, but that concept has no constitutional significance.An individual who bought a car two years ago and may buy another in the future is not “active in the car market”in any pertinent sense. The phrase “active in the market”cannot obscure the fact that most of those regulated bythe individual mandate are not currently engaged in any commercial activity involving health care, and that fact isfatal to the Government’s effort to “regulate the uninsured as a class.” Id., at 42. Our precedents recognize Congress’s power to regulate “class[es] of activities,” Gonzales v. Raich, 545 U. S. 1, 17 (2005) (emphasis added), not classes of individuals, apart from any activity in which they are engaged, see, e.g., Perez, 402 U. S., at 153 (“Petitioner is clearly a member of the class which engages in‘extortionate credit transactions’ . . .” (emphasis deleted)).
The individual mandate’s regulation of the uninsured asa class is, in fact, particularly divorced from any link to existing commercial activity. The mandate primarily affects healthy, often young adults who are less likely toneed significant health care and have other priorities for spending their money. It is precisely because these individuals, as an actuarial class, incur relatively low healthcare costs that the mandate helps counter the effect of forcing insurance companies to cover others who impose greater costs than their premiums are allowed to reflect.See 42 U. S. C. §18091(2)(I) (recognizing that the mandate would “broaden the health insurance risk pool to include healthy individuals, which will lower health insurance premiums”). If the individual mandate is targeted at a class, it is a class whose commercial inactivity rather than activity is its defining feature.

Now compare Justice Ginsburg, who took a broader view of what participation in the health care market means.

In enacting the Patient Protection and Affordable Care Act (ACA), Congress comprehensively reformed the national market for health-care products and services.By any measure, that market is immense. Collectively,Americans spent $2.5 trillion on health care in 2009, accounting for 17.6% of our Nation’s economy. 42 U. S. C. §18091(2)(B) (2006 ed., Supp. IV). Within the next decade, it is anticipated, spending on health care will nearly double. Ibid.

The health-care market’s size is not its only distinctive feature. Unlike the market for almost any other product or service, the market for medical care is one in which all individuals inevitably participate. Virtually every person residing in the United States, sooner or later, will visit a doctor or other health-care professional. See Dept. ofHealth and Human Services, National Center for Health Statistics, Summary Health Statistics for U. S. Adults: National Health Interview Survey 2009, Ser. 10, No. 249, p. 124, Table 37 (Dec. 2010) (Over 99.5% of adults above 65 have visited a health-care professional.). Most people will do so repeatedly. See id., at 115, Table 34 (In 2009 alone, 64% of adults made two or more visits to a doctor’s office.).
When individuals make those visits, they face another reality of the current market for medical care: its high cost. In 2010, on average, an individual in the United States incurred over $7,000 in health-care expenses. Dept. of Health and Human Services, Centers for Medicare and Medicaid Services, Historic National Health
Expenditure Data, National Health Expenditures: Se- lected Calendar Years 1960–2010 (Table 1). Over a lifetime, costs mount to hundreds of thousands of dollars. See Alemayahu & Warner, The Lifetime Distribution ofHealth Care Costs, in 39 Health Service Research 627, 635 (June 2004). When a person requires nonroutine care, the cost will generally exceed what he or she can afford to pay. A single hospital stay, for instance, typically costs upwards of $10,000. See Dept. of Health and Human Services, Office of Health Policy, ASPE Research Brief: TheValue of Health Insurance 5 (May 2011). Treatments for many serious, though not uncommon, conditions similarlycost a substantial sum. Brief for Economic Scholars as Amici Curiae in No. 11–398, p. 10 (citing a study indicating that, in 1998, the cost of treating a heart attack for thefirst 90 days exceeded $20,000, while the annual cost of treating certain cancers was more than $50,000).

Although every U. S. domiciliary will incur significant medical expenses during his or her lifetime, the time whencare will be needed is often unpredictable. An accident, a heart attack, or a cancer diagnosis commonly occurs without warning. Inescapably, we are all at peril of needing medical care without a moment’s notice. See, e.g., Campbell, Down the Insurance Rabbit Hole, N. Y. Times, Apr. 5,2012, p. A23 (telling of an uninsured 32-year-old woman who, healthy one day, became a quadriplegic the next due to an auto accident).

To manage the risks associated with medical care— its high cost, its unpredictability, and its inevitability—most people in the United States obtain health insurance. Many (approximately 170 million in 2009) are insured by private insurance companies. Others, including thoseover 65 and certain poor and disabled persons, rely on government-funded insurance programs, notably Medicare and Medicaid. Combined, private health insurers and State and Federal Governments finance almost 85% of the medical care administered to U. S. residents. See Congressional Budget Office, CBO’s 2011 Long-Term BudgetOutlook 37 (June 2011).
Not all U. S. residents, however, have health insurance. In 2009, approximately 50 million people were uninsured,either by choice or, more likely, because they could not afford private insurance and did not qualify for government aid. See Dept. of Commerce, Census Bureau, C.DeNavas-Walt, B. Proctor, & J. Smith, Income, Poverty,and Health Insurance Coverage in the United States: 2009, p. 23, Table 8 (Sept. 2010). As a group, uninsured individuals annually consume more than $100 billion in health- care services, nearly 5% of the Nation’s total. Hidden Health Tax: Americans Pay a Premium 2 (2009), avail- able at http://www.familiesusa.org (all Internet mate- rial as visited June 25, 2012, and included in Clerk of Court’s case file). Over 60% of those without insurance visit a doctor’s office or emergency room in a given year.See Dept. of Health and Human Services, National Center for Health Statistics, Health—United States—2010, p. 282, Table 79 (Feb. 2011).

The large number of individuals without health insurance, Congress found, heavily burdens the national health-care market. See 42 U. S. C. §18091(2). As just noted, the cost of emergency care or treatment for a serious illness generally exceeds what an individual can afford to pay on her own. Unlike markets for most products, however, the inability to pay for care does not mean that an uninsured individual will receive no care. Federal and state law, as well as professional obligations and embedded social norms, require hospitals and physicians to provide care when it is most needed, regardless of the patient’s ability to pay. See, e.g., 42 U. S. C. §1395dd; Fla.Stat. §395.1041(3)(f) (2010); Tex. Health & Safety Code
6 NATIONAL FEDERATION OF INDEPENDENT Ann. §§311.022(a) and (b) (West 2010); American Medical Association, Council on Ethical and Judicial Affairs, Code of Medical Ethics, Current Opinions: Opinion 8.11—Neglect of Patient, p. 70 (1998–1999 ed.).
As a consequence, medical-care providers deliver significant amounts of care to the uninsured for which the providers receive no payment. In 2008, for example, hospitals, physicians, and other health-care professionals received no compensation for $43 billion worth of the $116billion in care they administered to those without insurance. 42 U. S. C. §18091(2)(F) (2006 ed., Supp. IV).

Health-care providers do not absorb these bad debts.Instead, they raise their prices, passing along the cost of uncompensated care to those who do pay reliably: thegovernment and private insurance companies. In response, private insurers increase their premiums, shifting the cost of the elevated bills from providers onto those who carry insurance. The net result: Those with health insurance subsidize the medical care of those without it. As economists would describe what happens, the uninsured “free ride” on those who pay for health insurance.

The size of this subsidy is considerable. Congress foundthat the cost-shifting just described “increases family[insurance] premiums by on average over $1,000 a year.” Ibid. Higher premiums, in turn, render health insurance less affordable, forcing more people to go without insurance and leading to further cost-shifting.
And it is hardly just the currently sick or injured amongthe uninsured who prompt elevation of the price of health care and health insurance. Insurance companies and health-care providers know that some percentage of healthy, uninsured people will suffer sickness or injury each year and will receive medical care despite their inability to pay. In anticipation of this uncompensated care, health-care companies raise their prices, and insurers their premiums. In other words, because any uninsured person may need medical care at any moment and because health-care companies must account for that risk, every uninsured person impacts the market price of medical care and medical insurance.

"The distinction between doing something and doing nothing," Roberts wrote, "would not have been lost on the Framers, who were “practical statesmen,” not metaphysical philosophers." Yet who could possibly read the two passages above without concluding that Roberts is speaking as a metaphysical philosopher entranced by the beauty of free markets and individual choices, whereas Ginsburg, and the government briefs which she often cites, are exhibiting the essence of practical statesmanship? Who can seriously contest any of her facts? Health care is a market in which we are all destined to participate, and which 99% of us can pay for, in serious cases, only with insurance. If we don't have it, other participants in the market will pay. Putting an end to this situation is the essence of practical statesmanship, and federal legislation is, for reasons she makes very clear, the only way to do it.

Other passages from Ginsburg's opinion echo some of the points I've made here, even in my last post. She does not quote Justice Story, but she makes essentially the same point to make it clear that there is ample Constitutional and legal precedent for measures like the Act. She also quotes Alexander Hamilton to the effect that one could not possibly define the powers of the federal government based upon its functions at the time it was created, since they would inevitably change to meet future contingencies that could not be anticipated--a critical corrective to the current obsession with "original intent." “'[W]here we find that the legislators . . . have a rational basis for finding a chosen regulatory scheme necessary to
the protection of commerce, our investigation is at an end.' Katzenbach, 379 U. S., at 303–304. Congress’ enactment of the minimum coverage provision, which addresses a specific interstate problem in a practical, experience-informed manner, easily meets this criterion." She deals succinctly with Roberts's attempt to argue that the powers claimed by the government would allow it to force consumers to purchase cars or broccoli. "Maintaining that the uninsured are not active in the health-care market, THE CHIEF JUSTICE draws an analogy to the car market. An individual “is not ‘active in the car market,’” THE CHIEF JUSTICE observes, simply because he or she may someday buy a car. Ante, at 25. The analogy is inapt. The inevitable yet unpredictable need for medical care and the guarantee that emergency care will be provided when required are conditions nonexistent in other markets. That is so of the market for cars, and of the market for broccoli as well. Although an individual might buy a car or a crown of broccoli one day, there is no certainty she will ever do so. And if she eventually wants a car or has a craving for broccoli, she will be obliged to pay at the counter before receiving the vehicle or nourishment. She will get no free ride or food, at the expense of another consumer forced to pay an inflated price."

Justice Ginsburg does not mince words regarding the place of Roberts's doctrine in the history of the Court: is is a clear repudiation of a century of precedent and a return to Gilded-age jurisprudence. "This Court’s former endeavors to impose categorical limits on the commerce power have not fared well. In several pre-New Deal cases, the Court attempted to cabin Congress’ Commerce Clause authority by distinguishing “commerce” from activity once conceived to be noncommercial, notably, “production,” “mining,” and “manufacturing.” See, e.g., United States v. E. C. Knight Co., 156 U. S. 1, 12 (1895) (“Commerce succeeds to manufacture, and is not a part of it.”); Carter v. Carter Coal Co., 298 U. S. 238, 304 (1936) (“Mining brings the subject matter of commerce into existence. Commerce disposes of it.”). The Court also sought to distinguish activities having a “direct” effect on interstate commerce, and for that reason, subject to federal regulation, from those having only an “indirect” effect, and therefore not amenable tofederal control. See, e.g., A. L. A. Schechter Poultry Corp. v. United States, 295 U. S. 495, 548 (1935) (“[T]he dis- tinction between direct and indirect effects of intrastate transactions upon interstate commerce must be recognized as a fundamental one.”).

These line-drawing exercises were untenable, and the Court long ago abandoned them. “[Q]uestions of the power of Congress [under the Commerce Clause],” we held in Wickard, “are not to be decided by reference to any formula which would give controlling force to nomenclature such as ‘production’ and ‘indirect’ and foreclose consideration of the actual effects of the activity in question upon interstate commerce.” 317 U. S., at 120. See also Morrison, 529 U. S., at 641–644 (Souter, J., dissenting) (recounting the Court’s “nearly disastrous experiment” with formalistic limits on Congress’ commerce power). Failing to learn from this history, THE CHIEF JUSTICE plows ahead withhis formalistic distinction between those who are “active in commerce,” ante, at 20, and those who are not.

Returning once again to the principle enunciated by Justice Story, Justice Ginsburg makes it quite clear that ample reasons exist to distinguish a health care mandate from mandates against personal behavior, and then, like Story, gets to the heart of the matter. "Supplementing these legal restraints is a formidable check on congressional power: the democratic process. See Raich, 545 U. S., at 33; Wickard, 317 U. S., at 120 (repeating Chief Justice Marshall’s 'warning that effective restraints on [the commerce power’s] exercise must proceed from political rather than judicial processes' (citing Gibbons v. Ogden, 9 Wheat. 1, 197 (1824)). As the controversy surrounding the passage of the Affordable Care Act attests, purchase mandates are likely to engender political resistance. This prospect is borne out by the behavior of state legislators. Despite their possession of unquestioned authority to impose mandates, state governments haverarely done so. See Hall, Commerce Clause Challenges toHealth Care Reform, 159 U. Pa. L. Rev. 1825, 1838 (2011).

When contemplated in its extreme, almost any power looks dangerous. The commerce power, hypothetically,would enable Congress to prohibit the purchase and home production of all meat, fish, and dairy goods, effectively compelling Americans to eat only vegetables. Cf. Raich, 545 U. S., at 9; Wickard, 317 U. S., at 127–129. Yet no one would offer the “hypothetical and unreal possibilit[y],” Pullman Co. v. Knott, 235 U. S. 23, 26 (1914), of a vegetarian state as a credible reason to deny Congress the authority ever to ban the possession and sale of goods. THE CHIEF JUSTICE accepts just such specious logic when he cites the broccoli horrible as a reason to deny Congress the power to pass the individual mandate. Cf. R. Bork, The Tempting of America 169 (1990) (“Judges and lawyers live on the slippery slope of analogies; they are not supposed to ski it to the bottom.”). But see, e.g., post, at 3 (joint opinion of SCALIA, KENNEDY, THOMAS, and ALITO, JJ.) (asserting, outlandishly, that if the minimum coverage provision is sustained, then Congress could make “breathing in and out the basis for federal prescription”).

On the one hand, then Justice Ginsburg, who attended both Harvard and Columbia Law Schools and made both their Law Reviews long before the days of affirmative action and began her career in the days of the Warren Court, has written a brilliant defense of the jurisprudence of the first two thirds of the twentieth century. On the other hand, she lost the argument within the court, and the Boomers on the court voted against her by a margin of 3-2 (Roberts, Alito and Thomas against Kagan and Sotomayor.) She is, sadly, the least healthy of the nine justices, and should Mitt Romney win election her replacement will very likely be a Republican conservative. In that case little or nothing will stand in the way of the unraveling of the Progressive Era and the New Deal through the courts.

When I heard the news of the opinion I was elated because I hoped that it might mean the end of extremist Republican dau tranh (see earlier post) at all levels of government. Were Obama re-elected and were the implementation of the law to proceed, we might have a reasonable consensus on where the country is. We would still be bidding farewell to the days of the New Deal for the foreseeable future and we would still have huge structural economic problems, but perhaps a calmer tone might begin to prevail. Having read the opinions, I'm afraid I was too optimistic. Republican governors are pledging to fight the law. Republican legislators are dreaming of repealing the mandate through reconciliation, if they win majorities in both houses, because Roberts defined the penalty as a tax. (For the record, he did not define the mandate itself as a tax.) The struggle, for the moment, goes on, but the battle has not been lost, as it might well have been had Justice Roberts decided to side, as he usually does, with the three conservatives and Justice Kennedy.

Sunday, June 24, 2012

The Powers of the Government

I had intended yesterday's post to suffice for this weekend, and I suggest that you turn to it first; but since nearly everyone seems to expect the Supreme Court tomorrow to hand down one of the most momentous decisions in its history on the constitutionality of the Affordable Health Care Act, I thought it might be well once again to quote the words of Justice Story, our most distinguished constitutional commentator of the 19th century, regarding the proper interpretation of powers granted by the Constitution. To wit:

"A power, given in general terms, is not to be restricted to particular cases, merely because it may be susceptible of abuse, and, if abused, may lead to mischievous consequences. This argument is often used in public debate; and in its common aspect addresses itself so much to popular fears and prejudices, that it insensibly acquires a weight in the public mind, to which it is no wise entitled. The argument ab inconvenienti is sufficiently open to question, from the laxity of application, as well as of opinion, to which it leads. But the argument from a possible abuse of a power against its existence or use, is, in its nature, not only perilous, but, in respect to governments, would shake their very foundation. Every form of government unavoidably includes a grant of some discretionary powers. It would be wholly imbecile without them. It is impossible to foresee all the exigencies, which may arise in the progress of events, connected with the rights, duties, and operations of a government. If they could be foreseen, it would be impossible ab ante to provide for them. The means must be subject to perpetual modification, and change; they must be adapted to the existing manners, habits, and institutions of society, which are never stationary; to the pressure of dangers, or necessities; to the ends in view; to general and permanent operations, as well as to fugitive and extraordinary emergencies. In short, if the whole society is not to be revolutionized at every critical period, and remodeled in every generation, there must be left to those, who administer the government, a very large mass of discretionary powers, capable of greater or less actual expansion according to circumstances, and sufficiently flexible not to involve the nation in utter destruction from the rigid limitations imposed upon it by an improvident jealousy. Every power, however limited, as well as broad, is in its own nature susceptible of abuse. No constitution can provide perfect guards against it. Confidence must be reposed some where; and in free governments, the ordinary securities against abuse are found in the responsibility of rulers to the people, and in the just exercise of their elective franchise; and ultimately in the sovereign power of change belonging to them, in cases requiring extraordinary remedies. Few cases are to be supposed, in which a power, however general, will be exerted for the permanent oppression of the people.1 And yet, cases may easily be put, in which a limitation upon such a power might be found in practice to work mischief; to incite foreign aggression; or encourage domestic disorder. The power of taxation, for instance, may be carried to a ruinous excess; and yet, a limitation upon that power might, in a given case, involve the destruction of the independence of the country."

Justice Story, like the Founding Fathers, Abraham Lincoln, Franklin Roosevelt, understood the need for effective government--and he also understood that the requirements of effective government would change over time. He specifically rejected the idea that a proper measure must be outlawed simply because the constitutional interpretation that would permit it could theoretically be extended to provide for an absurd result, such as a law to require the purchase of broccoli. Those Americans who have argued falsely that the Constitution was designed merely to limit government, from John Randolph in the early 19th century through the Supreme Court justices of the Gilded Age and onward to Strom Thurmond, Richard Russell, and now, the Federalist Society and its acolytes on the Supreme Court, do not understand the necessity of government to make live endurable, and their counterparts today will not be satisfied, it seems, until they have reduced to misery and near-anarchy.

Predictions are always dangerous, but I am inclined to believe that, the oral arguments notwithstanding, the Court will in fact uphold the law by a vote of 6-3, with Justices Roberts and Kennedy joining Ginsburg, Breyer, Kagan and Sotomayor. The health care act is one of the biggest issues in the current election campaign, and the voters, should they wish to do so, have every opportunity to insure its repeal in November. The Court may well be feeling a bit uneasy about the spectacular results of the Citizens United decision and thus hesitate to make another such dramatic assertion of judicial authority. But if I am wrong and the law is overruled, it will be a huge step in the Republican drive--now thirty years old--to assume control of government throughout the United States for the purpose of dismantling it. It will also, I fear, give Mitt Romney an enormous boost, and lend an air of inevitability to the triumph of the Republican Party and its disastrous ideals.

Friday, June 22, 2012

Caro's best yet?

Robert Caro is, for the time being at least, the last of a breed. Grand-scale biography has been an important part of the western tradition at least since the early 19th century, when the French historian and politician Adolphe Thiers wrote a 20-volume life of Napoleon, and almost every major western political figure of the 19th and early 20th centuries received at least one multi-volume treatment. In the second half of the twentieth century they became harder and harder to complete. No less than three historians from the GI generation--Frank Friedel, Arthur M. Schlesinger, Jr., and Kenneth Davis--began multi-volume treatments of Franklin Roosevelt, but Friedel never got beyond 1933, Schlesinger stopped at the 1936 elections, and Davis died without getting beyond 1944. Arthur Link's planned definitive biography of Woodrow Wilson never got beyond 1917, and my friend Nigel Hamilton's projected three volumes on JFK came to an end after volume I thanks to disputes with the Kennedy family. Stephen Ambrose wrote two volumes on Eisenhower and three on Nixon.

After scoring a brilliant success with his book on New York master builder Robert Moses in the mid-1970s, Caro began work on LBJ. Two volumes, taking the story up to his election to the Senate in 1948, appeared during the 1980s. A substantial hiatus followed, and Master of the Senate came out in 2003, taking in the period 1949-58. That volume was quite extraordinary regarding the legislative battles of the Truman and Eisenhower years, but Caro and his editor apparently decided that length forced them to cut it short and essentially leave out the very interest legislative sessions of 1959-60, when large new Democratic majorities failed to win any major victories at all. Now, nine years later, comes The Passage of Power, covering Johnson's failed campaign for the 1960 Presidential nomination, his extraordinarily frustrating Vice Presidency, and above all, his first seven months or so in office. It is, obviously, the most concentrated volume yet, and it draws on new kinds of sources, especially the recordings of telephone conversations that Johnson began making as soon as he got into the White House. I found it the most readable so far--partly, I admit, because Caro has now reached the events that I not only remember quite vividly but have also researched myself--and in some ways the most moving.

Several emotional themes have dominated the whole work. On the one hand, Johnson evidently inherited his mother--known like so many mothers from the Missionary generation as a saint--a deep compassion for the misery of others. On the other hand, he was scarred by his father's business failures and determined to be hard-nosed, realistic, and successful in anything he did. As Caro has shown again and again, he had only two ways of treating other men. If they depended on him, he treated them like dirt; if he needed them, he fawned all over them. He could not treat anyone, it seems, as a real equal, and that suddenly explained to me something I had discovered writing American Tragedy--that Johnson had no talent at all for dealing with foreign leaders. As Presidents like Kennedy and the elder George Bush have understood so well, one must understand his foreign counterparts' problems if one expects them to understand one's own--and this Johnson could not do, it seems, outside the halls of the Congress of the United States, where he was accustomed to supreme power.

The book falls essentially into four parts. There is first the rather pathetic story of Johnson's half-assed (as he might have put it) campaign for the Democratic Presidential nomination of 1960, in which he was torn, Caro argues convincingly, between his overwhelming ambition on the one hand and his fear of losing on the other. John F. Kennedy, for whom LBJ had never had any respect as a Senator, beat Johnson at his own game, out-campaigning and out-organizing him. Caro became very taken with many aspects of Kennedy's personality and governance while writing this book, and he implies that Kennedy's genuine wartime heroism under fire had given him an ability to cope with the ups and downs of electoral politics that Johnson lacked. He also had the ability to inspire, rather than to terrorize, those fortunate enough to work with him. Caro tells the story of Johnson's selection as Vice President very well, largely destroying, like Robert Dallek before him, the myth propagated by Robert Kennedy, Arthur Schlesinger, and others, that JFK didn't really mean to offer the Vice Presidency to Johnson at all.

The second part deals with the Vice Presidency himself. I had completely forgotten--indeed, I had probably never known--that Johnson during the 1960-1 transition had attempted a Dick Cheney-style coup, proposing not only that he continue to lead the Senate Democratic caucus but also to assume unprecedented executive authority. Both attempts failed, and Johnson within a few months found out how badly he had underestimated JFK and the people around him. He became a figure of fun without influence in Camelot, and his frustration became intense. He responded by fawning all over the First Family, even giving Jackie Kennedy a few head of prize cattle to keep on the Virginia estate the First Lady had rented for her preferred quadripeds, horses. Eventually Jackie had to return the gift, suggesting that Lyndon sell them and contribute the proceeds to her White House restoration project. He did.

I did remember the Bobby Baker scandal very well. I had spent the summer of 1963 working in Hubert Humphrey's Senate office, thanks to a family friend, LBJ protege Harry McPherson, who had remained at his Senate staffer post after 1960, and sometime that summer I came across Harry in conversation with another young staffer with a polished southern accent. When I asked Harry about him sometime later--I think it must have been in August--he replied that he was the most powerful staffer in the Senate, its Secretary, Bobby Baker--but there was a wistful, slightly troubled look on his face as he said it. A couple of months later, at boarding school, I read the story of Baker's resignation under fire below the fold of the front page of the New York Times. It turned out, as Caro shows in great detail, that Baker must have been orchestrating an elaborate network of fundraising, political favors, gratuities such as a $500 stereo, and purchases of advertising on LBJ's radio and television stations on Johnson's behalf for a long time. Major news organizations including Life magazine began a deep investigation into how Johnson, who had never held a private-sector job in his whole adult life, had become a multi-millionaire, and there is ample reason to believe that, had it not been for Kennedy's assassination, Johnson's life as he had known it would shortly have come to an end. While I was not persuaded by Caro's argument that JFK was thinking seriously about dropping him from the ticket yet--an argument that rests on one conversation with the President's Secretary Evelyn Lincoln--it certainly looked as though the scandal would have turned Johnson into an enormous liability.

The third and most intense part of the book, of course, is the account of the events of November 22-25, 1963, which Caro recounts in detail every bit as affecting, although not quite so excruciating, as William Manchester did 45 years ago. But as the excerpts published in the New Yorker made clear, Caro provides something new as well. The Lyndon Johnson who walked out of Parkland Hospital as President (even though he had not taken the oath of office) was a very different man than the frustrated, bitter, and deeply frightened Vice President who had gotten up that morning, or the Senator who could fly into a rage at the slightest mistake that a staffer might make. While the trauma Kennedy's death represented for the nation has often been discussed, its extraordinary impact on his successor has been neglected. Johnson, like everyone else close to Kennedy, had clearly developed an enormous respect for him and what he was trying to accomplish, and he undoubtedly felt genuine survivor guilt over what had happened. And for at least the next seven months, Caro makes clear again and again--most movingly in the last pages of the volume--Lyndon Johnson was truly a different man--calmer, more reasonable, far less prone to rage, and thus capable of providing the calming presence that the American nation needed so desperately.

Nor was this all. Nearly the country's entire political leadership also put their customary concerns aside--and Johnson took full advantage of this. When Kennedy was killed, the Senate was about to pass a bill forbidding a planned wheat sale to the Soviet Union, then, as later, a harbinger of detente. Working the phones, Johnson appealed to Republicans not to damage his prestige in his first few days in office, and it worked. Only after 9/11 have we ever seen anything comparable to the way the nation pulled together at that moment in the years since--and in that case, a new President put the new spirit into disastrous causes. Johnson put them into great ones.

There is no question, as Caro shows beyond doubt, that Johnson was determined to use that spirit and his knowledge of the legislative process to pass Kennedy's Civil Rights Bill. He understood--because he had seen and even assisted in the strategy as a Senator--how the southern barons who controlled Congress would stall every other measure on the calendar in order to leave too little time to deal with civil rights when it finally encountered a Senate filibuster. (Many readers will note how little things have changed: this is exactly the tactic that today's Republicans, led by southerners, have used against President Obama.) Their main hostage in December 1963 was Kennedy's tax cut, stuck in Virginia Senator Harry Byrd's Finance Committee. Determined to win Byrd over, Johnson insisted that his team submit a budget smaller than Kennedy's 1964 budget and somewhat under $100 billion, a figure of symbolic significance to Byrd. (It is astonishing to realize the extent to which, even in my youth, American politics were dominated by white southerners still determined, to the maximum extent possible, to mitigate the impact of Appomatox.) Caro's portrayal of Byrd is accurate, although he does not seem to have heard that, as Harry McPherson told me at the time, Byrd's mental capacity was by now sufficiently diminished so that he could not follow the details of his own committee hearings. In any event, Johnson's flattery won him over, as it had won over many older men in the past, and the tax cut--a fateful measure, actually, that dropped the top marginal rate from 91% to 75%--passed the Senate early in the year.

The story of the passage of the great civil rights act is equally compelling. Johnson needed Republican votes in the House and Senate, and he got them by ceaselessly appealing to the "party of Lincoln." Mainline clergy of all faiths--who half a century later have ceased to be a political force--played a critical lobbying role in breaking the Senate filibuster s well. And so the bill was passed. "We could have beaten Kennedy," Johnson's old mentor Richard Russell remarked very early in this fight, "but we can't beat Johnson." That could well have been the case, although we will never know.

Caro is apparently deferring foreign policy for the next volume. He does show that Johnson from the first moment was determined not to lose South Vietnam or pursue the neutralization option that Kennedy had gone for in 1961 in Laos. He does not discuss the very revealing crisis over the Panama Canal that broke out in early 1964, which showed LBJ as a man determined not to let foreigners push him around. I suspect he will make up for this when the time comes. Like me, he has listened to the White House recordings.

Regarding the Kennedy assassination itself, Caro takes a welcome agnostic position on the possibility of a conspiracy, except to say that he had found no evidence whatever that Johnson himself was involved. I heartily agree with that position. He makes it clear that Johnson appointed the Warren Commission to quiet suspicions of Soviet or Cuban involvement--although he could have gone a bit further in detailing the extent to which Johnson shared those suspicions himself. (Those suspicions escalated in 1967, as I have shown in The Road to Dallas, after Johnson learned about the CIA-Mafia assassination plots against Castro.)

Finishing The Years of Lyndon Johnsonr will be a challenge, not least because of the enormous source material available for the year of the Presidency. I have no doubt that Caro, by making full use of White House tapes, could write 1000 pages about each year from 1965 through 1968. In volumes I and II he had to rely mainly on interviews to develop an astonishing amount of information about events already half a century old; now he is drowning in documentation. Having struggled with similar problems of data organization myself, I know they can be solved. There is no doubt that Caro intended to write one of the greatest tragedies of American history, and no doubt that, so far, he has succeeded.

Friday, June 15, 2012

Continuing stories

This week's post essentially follows up on a number of fairly recent ones, drawing in part on news and commentary in the press. It's a very busy news time. The coup in Egypt marks a new phase in that country's revolution, and may introduce even greater danger. The civil war in Syria--a warning of what could happen in Egypt--continues. The election campaign is heating up. But all this takes place against the background of what has become the main theme of these posts: the continuing decline of political authority around the world in general and in the United States in particular. Almost all over the world, political authority grew during the first two-thirds of the twentieth century. It seemed to stabilize in the 1960s (although that is when the long-term threats to it first emerge), weakened beginning in the 1980s, and has been in free fall for the last twenty years. The question of how far this process can go before much of the world descends into anarchy is, I think, the critical question we now face. All these stories bear upon this.

A couple of months ago I blogged about the Trayvon Martin-George Zimmerman case, the stand your ground laws in Florida and elsewhere, and the long tradition of individual violence, especially in the South, which they seem to be continuing. A recent investigation by the Tampa Bay newspaper uncovered a number of extraordinary cases in which men and women have been set free under the law, confirming my worst suspicions. As several law enforcement personnel note, it has become very easy for two individuals to get into an altercation that ends in death without either one of them being guilty of anything. Once one is in a situation that threatens death or bodily harm, one has the right to draw and shoot to kill, regardless of who started the fight or what it is about. In medieval times, killers in such situations usually owed a money payment to the victim's family; now, in Florida, and presumably in a number of other states as well, they owe nothing at all to anyone. It's a frightening development, and I wonder whether there will be a backlash.

On another front, the New York Review of Books just published a long article on the Texas textbook wars. Because of its size and its powerful elected statewide board, Texas, as you probably know, exercises disproportionate influence over America's textbooks, and this article explains how it has been used in recent decades. The story of course deals at length with religion and science, but I was even more struck by the explicit and increasingly successful effort by right-wingers to recast the whole story of recent American history. The Growth of the American Republic by Samuel Eliot Morison and Henry Steele Commager, the textbook in my high school AP history class, laid out a straightforward story of American history from the Civil War until the mid-1960s, showing how the Progressive Era and then the New Deal had repaired the damage done by the Gilded Age while the U.S. rose to world power. The counter-narrative (I hate that term, but it's appropriate) portrays the New Deal as a statist intrusion into American life which Ronald Reagan successfully began to undo. What depressed me the most about this is the complete failure of the contemporary left to stand up for the version I learned in school, which had the considerable virtue of truth. The academic left shares the right's contempt for almost anyone who has ever held or exercised power, and for thirty years it has been finding virtue only among the ignored and oppressed. This has not contributed much either to American history or to American life.

Last but not least, in the midst of what is becoming a world depression, right-wing parties all over the world are calling for smaller governments and left wingers are putting up very weak resistance. Here of course the principal authority is Paul Krugman, whose column today pounced on Mitt Romney's statement that President Obama thought we needed more policemen, firefighters, and teachers. As Krugman pointed out, state and local layoffs are in fact the major cause of continuing unemployment today, and they also portend a further deterioration of public services. But they are happening almost everywhere in the United States, and Republicans at every level are becoming more and more aggressive in bringing them about. Pension reform is another matter: pensions for state and local officials, especially police and firefighters, need to be reformed. But we still need government, and we already suffer, in many ways, from a shortage of it, not a surplus.

Meanwhile, I am nearly through the latest, fourth volume of Robert Caro's biography of Lyndon Johnson. It maintains the consistently highest level of interest, I think, of any of the four volumes so far, and it is greatly enhanced, in its later sections, by the availability of Johnson's presidential recordings, which I used myself writing American Tragedy. It will provide the grist for at least one long post, probably starting next week. Stay tuned.


Sunday, June 10, 2012

A note on comments

In order to deal with 50 comments-a-week flow of right-wing spam that I received, I have had to ban anonymous comments. To comment you must now be a registered user. I do not think that is a difficult option to exercise and or that it requires you to leave your actual name. However, I am not going to let Republican dau tranh practitioners hide behind anonymity any longer.

Friday, June 08, 2012

International Anarchy?

Thanks largely to Franklin Roosevelt, the Second World War, which created the world in which we still all live, was fought for certain privileges embodied in the Atlantic Charter he and Churchill signed in August 1941, and four years later in the charter of the United Nations. They included the right of self-determination for all peoples, relatively free economic exchanges, and even disarmament. In theory those have remained the basis of American foreign policy every since, even though at times we have failed to observe them. Not only the United Nations, but the Law of the Sea Treaty and the Nuclear Non-Proliferation treaty are based upon the idea of equality and impartiality--the only basis, in my opinion, for a truly peaceful world. Yet the men who initially wrote those agreements are long dead, and no new great war to reaffirm those principles is looming. That is not a bad thing, but we now risk sliding into war on several fronts because we are abandoning those principles.

One front is in the Middle East. Israel's foundation was regarded as an application of self-determination: the Jews, like other peoples, wanted their own state, and the United Nations decided they should have it. Unfortunately it was three decades before any of Israel's neighbors would recognize its existence, and by that time, Israel had expanded further thanks to the Six Day War. Since 1967 the Palestinians have been denied self-determination, and if I am not mistaken, they are the only people in the world who are not citizens of any country. The possibility of a two-state solution is fading rapidly from view. Reports out of Israel confirm that settlements are expanding and that the current Israeli government has no intention of giving up any control of East Jerusalem or halting the gradual seizures of property taking place there or elsewhere. The United States government, meanwhile, simply will not take on the Israelis, reduce their aid, or exert real pressure for a new solution.

Iran is a related issue. Nothing in the UN Charter denies Iran the right to a nuclear program or, for that matter, nuclear weapons. The Non-proliferation Treaty to which they are a party does deny them that right, but they deny any intention to build a weapon and they could in any case disavow the treaty, as the North Koreans have done. (Israel never signed it, and India and Pakistan developed nuclear weapons anyway.) The Non-proliferation treaty committed non-nuclear signatories not to develop nuclear weapons, but also committed the nuclear states to disarm. This they have no real plans to do. Slowly but surely, the Obama Administration has adopted the position of its predecessor: that Iran will not achieve a nuclear capability simply because we do not believe that it should. Last week a news story quoted an anonymous American official telling the Israelis that containment of Iran is not our policy. That points eventually to military action. The attempt to deny their capability has already led us to unleash cyberwarfare, a precedent that may come back to haunt us. As we did at the height of the Cold War, we appear almost to be ruling out the prospect of living with the current Iranian government in peace.

The Pentagon is now increasingly focused on a possible war with China--the basis of a new doctrine of "air-sea battle" designed to prevent China from securing military control of its neighboring seas. The danger of conflict comes from two issues: Taiwan, whose status is still undetermined, and a dispute over territorial waters. Most of the world recognizes a 12-mile limit to sovereignty, but China is claiming the right to dominate the South China Sea out to 200 miles or so. The 12-mile limit is part of the Law of the Sea Treaty, which the United States has refused to sign, but in this case, we have endorsed that provision, as have China's neighbors. Here world opinion is indisputably against China, but it is not clear to me that anyone is working actively to try to close the gap and remove a potential source of trouble through agreement. The Pentagon meanwhile seems happy to have a new great-power threat on which to spend money.

The problem before the world is to recommit once again to a set of impartial principles, as in the 1940s--but this time without war. No one is better placed to encourage that process than the President of the United States, and in his first year in office it seemed that President Obama might do so. He has not. He and his administration have largely remained focused upon Afghanistan and Pakistan and on the Arab spring. The richer parts of the world are being left to take care of themselves. Meanwhile, the Republican insistence on "American exceptionalism" and their ceaseless portrayal of European societies as an evil to be avoided is breaking down the idea of the Atlantic community that held the world together for the second half of the twentieth century. Let us hope that this trend can be reversed.

Friday, June 01, 2012

The real crisis

The United States has indeed entered a crisis, one that has been building for decades--really, for the whole of my adult life. At first glance the crisis seems to be largely economic. Not only do we have more long-term unemployment than at any time since the 1930s, but the lower half of our society has been losing ground for about 40 years, and our economy no longer provides adequate jobs. But beneath this, I think, is an even deeper crisis--a crisis of values. A new consensus is indeed forming--one that will be solidified, I suspect, if Mitt Romney and the Republicans win in November. It will be disastrous for decades to come--but it may happen nonetheless.

The single most striking aspect of our values crisis, I would suggest, is our growing obsession with private wealth as a good in itself--indeed, as virtually the only good. The free-market dream of Milton Friedman, that unrestrained private enrichment does the most for the general good, as been decisively proven false over the last four decades. As marginal tax rates have fallen and private fortunes have grown, inequality and structural unemployment have gotten worse. Yet Barack Obama and his campaign are torn, evidently, by the temptation to attack Mitt Romney's record at Bain capital and the need both to respect economic orthodoxy (as their policies have) and to secure their own hefty campaign contributions from Wall Street. The idea that what private equity firms do--reducing work forces and incurring debt to secure greater profits--might be socially destructive, as indeed it is, is too dangerous to discuss out loud. Thanks in part to Citizens United, greed has become politically self-sustaining. Great wealth can buy both political parties and make its own views orthodox.

Thus, virtually no one seems to be asking the obvious questions about the American economy: where will the capacity to put the American people to work come from? Is anyone really trying to put the bulk of the unemployed back to work? Is there the slightest interest in doing what the Germans do, that is, to trade maximum productivity for employment in pursuit of social justice? It was not so long ago that some leading businessmen could make a distinction between their own bank accounts and the national welfare. There do not seem to be any now. Profit maximization has become our new god--sometimes, it seems, the only one.

Corporate America's ability to buy 90% of the Democratic Party, as well as 100% of the Republicans, has of course a great deal to do with this, but sadly, I have realized that the Left bears a lot of the blame too. The Boomer Left has foresaken our parents' interest in the welfare of the nation as a whole in favor of the pursuit of various forms of individual liberty and individual gratification. They have deified minority rights, women's rights, and gay rights--all important causes, but all pursued within an individual framework, rather than as part of a broader attempt to secure justice for all. The emphasis on group entitlement, which seduced Elizabeth Warren in the course of her academic career, is now bidding fair to doom her Senate candidacy. Having failed, in the course of a long interview with a Boston Globe reporter last February about her childhood and early life, to mention anything about native American ancestry, she now insists on claiming that it has always been part of "who I am." The great mass of comments on the controversy are negative, not only in conservative Boston Herald but also in the liberal Globe. The mass of the American people do not share the values of academia, even if they favor minority, women's and gay rights.

Over the last thirty years at least, democracy has become increasingly identified with individual freedom and economic freedom. That is why Francis Fukuyama declared The End of History twenty years ago after the collapse of Communism. But the western world had learned the hard way during the twentieth century that unrestrained economic liberty could destroy democracy and make life almost impossible for millions of citizens. The great adventure of the twentieth century, pursued by leaders and political parties of all stripes, was the attempt to organize relatively just societies. It is ironic that Russia, the scene of the most sweeping and draconian experiment, has now sunk the furthest into an almost medieval rule of economic oligarchs supported by a weak state. But at the same time, the United States, which had to organize itself in the 1930s and 1940s to cope with the threats of economic collapse and totalitarian regimes, seems to be headed down the same road. Republican Superpacs are trying to buy this election as no election has been bought since 1896, and they may succeed. That could mean an unprecedented undoing of government.

I have said again and again that I see no totalitarian threat on the horizon because we live in such an unorganized age. For the time being I still believe that. Yet more weakening of government at every level could produce chaos, and chaos, as in Russia in 1917 and Germany in 1932 (or Egypt in 2012!) can open up opportunities for any well-organized minority. None is on the horizon now, but one could emerge.

I have compared our current crisis many times to the Civil War crisis--not because of its nature but because of its impact. Even though hundreds of thousands of men gave their lives to preserve the union, civic authority never really recovered after that war. But if things get even worse, we may relive another form of the Revolutionary War crisis. That war was relatively small by modern standards, but it bankrupted the authorities, debased the currency, and left the new nation with a hopelessly weak central government. By 1786 the nation was literally sinking into anarchy and the Constitutional convention was the result. The Constitution remains in place and is not the problem. The current paralysis of our government reflects our values today. The question is whether another descent into near anarchy would lead to a rebirth of better values--and I do not know the answer.