How Democracy Might Fail

 A long article by Jeffrey Toobin in last week's New Yorker lays out in considerable detail what might happen beginning on November 3 to keep Donald Trump in the White House even though the plurality of voters in states with 270 or more electoral votes might have voted against him.  The most likely scenario begins with Trump declaring on November 4 that only fraudulent mail-in ballots deprived him of a victory in certain states--or declaring victory in states where he is ahead before such ballots can be fully counted. Trump might at least in theory be able to persuade states with Republican governors to stop counting such ballots, but only Florida, Arizona and New Hampshire among the swing states have Republican governors; Wisconsin, Michigan and Pennsylvania do not.  Thanks to gerrymandering, however, they do have Republican legislatures, and that opens up another avenue for Trump and the Republican Party. "Each State shall appoint, in such Manner as the Legislature thereof may direct," article II of the Constitution reads, "a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress."  Many state legislatures reserved the power of appointing the electors rather than delegating it to the voters in the early days of the republic, and some continued to do so right up to the Civil War.  And lest anyone think that no 21st-century Republican legislature would dare take such a step, allow me to point out that in December 2000,. when the Bush-Gore election controversy was reaching its climax, the Republican-controlled Florida legislature was preparing to do exactly that--to call a special session to award the state's electoral votes to Bush if they had been unable to stop any recouts in the courts.

That would not, however, be the end of the matter.  The Constitution and relevant statues provide that the Vice President shall count the electoral votes before a joint session of the House and Senate on the sixth day of January--which now means that a new Congress will be in session.  The law governing this procedure and providing for the resolution of disputes was originally passed in the late 19th century, after several such controversies had occurred, most notably in 1876, when Congress had to choose between two competing sets of electors from each of three states, Louisiana, South Carolina, and Florida.  It appears to have been amended in 1948.  It provides that an objection to any state's electors by just one Senator and one Representative will create a controversy that each house must immediately consider in separate session, and provides guidelines for their decision.  Toobin or his editors apparently decided that the language of the law is too confusing to be interpreted, but I will attempt to do so.  Section 6 of the statute provides, critically, that the executive branch of the state government must certify the properly designated electors, indicating to me that the governors of Wisconsin, Michigan, or Pennsylvania could ignore attempts by their Republican legislatures to ignore the decision of the voters and appoint Republican electors. The same situation prevails in North Carolina, now rated as a tossup state. The governor's decision can under the law be overridden, but only by majority votes in each house of Congress to that effect.  Since the Democrats seem certain to control at least the House of Representatives come January, this is unlikely to happen. That provision seems relatively straightforward, but unfortunately, the law did not stop there.

We come now to the further passage in the law (see the link above) that seems to have been too much for Toobin and his editors.  After several readings over the last two months, I think that I have finally discerned its meaning.  Section 5 of the law allows each state to fix its own procedures for settling any controversy over the choice of its electors by law, provided that the law is passed before the election.  If that law is applied at least six days prior to the date specified for the meeting of electors--December 14, this year--their determination "shall be conclusive."  Section 15, however, once again assumes that such a determination might be challenged in one  of two ways.  In the first, some one might object that the proper state authorities have not made the choice, and in that case, both houses, will have to agree, separately, that their appointment was proper under the laws of that state, in order for them to be counted.  If they did not so decide, the state in question would lose its electoral votes, although a 270 majority would still be necessary to secure election by the electoral college. This provision, it seems to me, would enable the Democrats to challenge the result from a state whose legislature had arbitrarily awarded its electoral votes to Trump, and a Democratic House could invalidate (although not necessarily transfer) those votes.  We shall look later on how that is likely to affect the final count.

A second kind of controversy would arise if two different state authorities sent two competing sets of electoral votes.  In that case the two houses, acting separately, will vote to decide which set of votes is the valid one.  If however they disagree--as a Democratic House and a Republican Senate would almost surely do--then "the votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted."

Before getting once again into what might happen in specific states, may I say that I do not think there is enough civic virtue left in today's Republican Party, either at the state or national level, to prevent them from trying to give Trump an election that he has lost by any means necessary.  Dependent as they are on Trump for electoral power, on Republican contributors for their seats, and on Fox News to keeop their voters behind them, I think they will mostly do what the Trump campaign tells them.  I will be delighted to be surprised, but I think we have to plan for the worst-case scenario.  How bad is it?

There are no key swing states with Republican governors and Democratic legislatures.  (I happen to live in such a state myself, but Massachusetts is not in play.)  It seems, then, that under the statute, results certified by the Democratic governors of Wisconsin, Michigan, and Pennsylvania would be counted, even if a Republican Senate voted to reject them.  On the other hand, if Florida or Arizona submitted electoral votes for Trump, even though more votes had been counted for Biden, and a Republican Senate voted to accept them while a Democratic House voted to reject them, those states would lose their electoral votes.

We turn now to the electoral map.  As it happens, the predictions of one site, 270towin, tell us exactly what we need to know to make a prediction based on the analysis in the last paragraph.  Should Biden carry all solid blue states, plus Minnesota, Wisconsin, Michigan, Pennsylvania, Nevada (which has a completely Democratic state government) and New Hampshire, he would win with 278 electoral votes.  That means he would also win even if the Republican governor and legislature of New Hampshire awarded its four votes to Trump, or if a split vote of the two houses denied New Hampshire its electoral votes.  (I think they are the least likely Republicans to do so, but it's possible--and it's at least equally possible that Trump could win New Hampshire honestly.)  To put it bluntly, Trump cannot win the election simply by stealing Florida and/or Arizona.   He can only steal electoral votes in states whose governments are completely controlled by Republicans, and thanks to the 2018 elections, there aren't enough of them to get him over the top. 

We certainly can't rule out the possibility that Trump will win honestly.  The fivethirtyeight.com probability of a Biden win is up to 78%, but that's only 6 points higher than Hillary's probability on the eve of the 2016 election.  Yet the possibility of his winning dishonestly looks smaller than I thought it would when I started this post.  It seems to me that the best way to avoid a long drawn-out fight in which the above scenarios are played out is to stress the math that I have laid out, and to secure statements from the Democratic governors of the key states that they will not certify an illegitimate result decreed by their legislature. Trump will almost surely declare a stolen election and try to fight the result in any case, but many Republicans, I do believe, will be reluctant to go along, if they have realized that the odds are hopelessly against them.

I will be glad to revise any of this post iof any readers can convince me that it has serious logical or arithmetic flaws. 

A Tribute to Justice Ginsburg

 As I began thinking last night and today about the death of Justice Ruth Bader Ginsburg, I thought of the opinion which, for me, represented her finest hour: her dissenting opinion in the first case challenging the Affordable Care Act in 2012.  Justice Roberts, writing for a 5-4 majority, argued that the act was not a valid exercise of the federal power to regulate interstate commerce, although he upheld the individual mandate as an exercise of the taxing power.  In so doing, he repudiated approximately 75 years of jurisprudence and attempted to return to the dogma of the late nineteenth and early twentieth centuries.  I have decided to repeat that post, with some editing, as an example of her jurisprudence at its best--and of the approach of the Silent generation, of which Justice Breyer is now the only representative on the court.  Sadly, my final paragraph has turned out to be much too optimistic.  We shall all miss Justice Ginsburg.

Here it is, without quotation marks.

The decision upholding the Affordable Care Act was  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 "conservatism." It also illustrates one of my favorite points:the extent to which my own Boom generation has undone the political and 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.

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 that because 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 by the individual mandate are not currently engaged in any commercial activity involving health care, and that fact is fatal 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 as a 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. of Health 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: Selected Calendar Years 1960–2010 (Table 1). Over a lifetime, costs mount to hundreds of thousands of dollars. See Alemayahu & Warner, The Lifetime Distribution of Health Care Costs, in 39 Health Service Research 627, 635 (June 2004). When a person requires non-routine 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: The Value of Health Insurance 5 (May 2011). Treatments for many serious, though not uncommon, conditions similarly cost 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 the first 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 when care 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 those over 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 Budget Outlook 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 material 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: the government 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 found that 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 excerpts 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 makes 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 with his formalistic distinction between those who are “active in commerce,” ante, at 20, and those who are not.

Returning once again to a 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 have rarely done so. See Hall, Commerce Clause Challenges to Health 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”).

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. But  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.

Activism, then and now, Part II

 While last week's post relied on one very useful source, this one draws on my own reading and thinking over more than half a century to try to explain how political activism has changed.  Great historians, I often remark, do not argue with history, and while I have opposed many of the changes I will be discussing, I am not suggesting that they could suddenly be undone, or regretting specific great mistakes that allowed them to happen.  "It's useless to argue about the causes of great events," Zhivago remarks in the  midst of the Russian Revolution (in a passage that I have searching for in vain for weeks)--"they haven't any."  I would say rather than the causes are as profound as tectonic shifts in the earth's crust, but also as difficult to observe.  The earthquake that hit the nation in the 1960s must have been building up unseen for a long time.

The first big tremor had hit Berkeley, California, in early the fall of 1964, when students protested long-standing restrictions on campus political activity.  Mario Savio, a young product of the superb New York City public educational system and a veteran of the Mississippi Summer voting registration drive of the previous summer, emerged as a leader.  In his most famous oration, he made a remarkable statement that I have cited here before.  "Last summer," he said, "I went to Mississippi to join the struggle there for civil rights. This fall I am engaged in another phase of the same struggle, this time in Berkeley. The two battlefields may seem quite different to some observers, but this is not the case. The same rights are at stake in both places—the right to participate as citizens in [a] democratic society and the right to due process of law. Further, it is a struggle against the same enemy. In Mississippi an autocratic and powerful minority rules through organized violence to suppress the vast, virtually powerless majority. In California the privileged minority manipulates the university bureaucracy to suppress the students’ political expression. That “respectable” bureaucracy masks the financial plutocrats; that impersonal bureaucracy is the efficient enemy in a Brave New World."

Savio, like so many young radicals, was a brilliant but very troubled young person, who never in the long run found a real focus for his relatively short life.  What fascinates me is the resonance this message found among his audience.  They had grown up in a relatively prosperous United States, one far more economically egalitarian than the one we live in today.   Just a few months earlier, the US Congress had taken a dramatic step forward toward racial equality with the great Civil Rights Act of 1964, and the Voting Rights Act was only months away.  Lyndon Johnson had declared war on poverty. They were enjoying a better education than is available anywhere in the US today, for which, if they were Californians, they paid absolutely nothing.  Yet many of them embraced the role of downtrodden subjects of a cruel system, and in the next five years, they set the tone of left wing politics from that day to this.  Why?

The Boomers who made up the bulk of Savio's audience (born 1943-46) came from a mass-produced generation.  Their parents regarded them as naturally great, and had laid down simple paths that they expected them to follow gratefully to success--all the more so because so many of their parents had had to struggle very hard through Depression and war to make the same journey.  Postwar America was the Garden of Eden that they, like the old testament God, had created for their children.  But those children, like Adam and Eve, were determined to eat from the tree of good and evil, and make their own judgments.  No matter how kind their world might be, they had not designed it.  They resented their parents' certainty that all real truths had been discovered, and were looking for new ones.  And meanwhile, in that same week in December 1964 that Savio spoke, a high-level committee in Washington, as I later discovered, was planning the Vietnam War.

By the spring of 1968, I, too--then a college junior--had turned against that war, but I viewed it, then as now, as a catastrophic mistake made by certain decision-makers, not proof of a corrupt system.  I had also seen first hand as early as 1966 that many establishment figures recognized it as a great mistake.  I was however in a minority of politically engaged students by that time--or perhaps an invisible plurality.  The SDS, as we saw last week, had adopted the Marxist-Leninist view of the war as a natural product of capitalist imperialism, an inherently exploitative and doomed system.  Political action needed to happen outside and against it, and universities like Harvard were just one of many institutions supporting it.  At our commencement in June 1969, the SDS persuaded the student government, which in turn persuaded President Pusey, that they deserved a commencement speaker because of their superior moral virtue, and he pronounced the commencement "an obscenity" because the college had trained young men for their roles in the corrupt system.   

Within three more years, the student movement had largely disintegrated as draft calls shrank and sectarian splits turned pieces of it against one another.  Many activists rejoined the mainstream, and many more became local activists of various kinds, with little or no interest in national politics.  But simultaneously, during the 1970s and 1980s, the idea of a corrupt system became more and more popular among certain types of young academics, those focused upon race and gender.  The civil rights movement, the feminist movement, and later the gay rights movement all began as attempts to open up access to an existing political and economic system and give everyone an equal chance.  Yet beginning with the Black Power movement in the 1960s, younger civil rights activists began renouncing integration into a corrupt system in favor of a radical critique of that system.  Many feminists, and eventually LGBT activists, took the same tack, which dominated black, women's and gay studies programs in colleges and universities.  This, in my opinion, was in part a self-interested and self-centered activism among young academics.  To argue that one's own group had traditionally been excluded and silenced was an argument for giving more members of it academic jobs, and that spirit is still very much alive, as a recent letter by black Princeton faculty shows.  And in the last, critical step, all the intellectual and political achievements of western civilization increasingly fell into disfavor, seen as instruments of straight white male oppression against "marginalized" groups.  These achievements included most of the western intellectual tradition, free speech, and representative democracy itself.  In my opinion, much of the new scholarship about white people and western civilization is projection on the part of female and nonwhite academics.  Having become obsessed with race, gender, or both, they assume that western civilization has been equally obsessed with those categories.  In fact it has been less obsessed with them than any other--which is why the ideas of racial and gender equality are almost unique to the West.

The belief that group oppression lies at the foundation of our economy had society has deeply affected how we see economic and social problems.  If one has already concluded that the oppression of women or black people is a given, then any disparity in their incomes, poverty rates, incarceration or health must be due to that oppression, which becomes the fault of white people in general or white males in particular--whether they know it or not.   Police shootings of black people are automatically interpreted as racism, even though the police nationwide kill more white than black people every year, often in equally horrifying circumstances. The new idea of intersectionality encourages combining various forms of racial and gender oppression.  

An excellent example of all this comes from Vicki Osterweil, a white transgender woman whose book, In Defense of Looting, appeared serendipitously just five months ago.  Looting, she says, "attacks the very way in which food and things are distributed. It attacks the idea of property, and it attacks the idea that in order for someone to have a roof over their head or have a meal ticket, they have to work for a boss, in order to buy things that people just like them somewhere else in the world had to make under the same conditions. It points to the way in which that's unjust. And the reason that the world is organized that way, obviously, is for the profit of the people who own the stores and the factories. So you get to the heart of that property relation, and demonstrate that without police and without state oppression, we can have things for free.

"Importantly, I think especially when it's in the context of a Black uprising like the one we're living through now, it also attacks the history of whiteness and white supremacy. The very basis of property in the U.S. is derived through whiteness and through Black oppression, through the history of slavery and settler domination of the country. Looting strikes at the heart of property, of whiteness and of the police. It gets to the very root of the way those three things are interconnected. And also it provides people with an imaginative sense of freedom and pleasure and helps them imagine a world that could be. And I think that's a part of it that doesn't really get talked about — that riots and looting are experienced as sort of joyous and liberatory."

Those quotations come from a very friendly interview Osterweil did for NPR, and specifically for its "Code Switch" page, which is devoted entirely to contemporary views on race.

And this in turn leads me to a last comparison between leftism then and now.  The student radicals of the late 1960s--few of whom came from genuinely poor backgrounds--claimed to identify with the people of Vietnam and other parts of the Third World, and with poorer Americans, especially nonwhite ones.  Today, white activists effectively argue that their race and privilege makes it impossible for them to form correct political programs on their own and forces them to defer to others for leadership. This tendency has a few older roots too, as I discovered reading a remarkable article, "The Wages of Whiteness," in the current issue of the New York Review of Books.

That article is an interesting document in itself.  Its author, Hari Kunzru, appears to be a native born Brit of South Asian descent, and a very successful novelist.  The essay is among other things a detailed treatment of leftist ideas on race in the United States.  Kunzru quotes from a 1970 Weather Underground manifesto, Prairie Fire, on the relationship of white and nonwhite revolutionaries. "The Black struggle for self-determination is the strategic leading force of the US revolution…. Black and Third World people’s right to determine the direction of their struggle is undeniable. Self-determination means the right of oppressed people to seize and organize their future and the future of their children…. Whatever decisions Black people and other oppressed peoples make in exercising this right to self-determination, white revolutionaries and anti-imperialists have a very clear-cut responsibility to support those decisions once they are arrived at. This does not mean to support only those choices one approves of."  Kathy Boudin was a white member of the Weather Underground who helped carry out a 1981 armored car robbery on Long Island in which a guard and two police officers were killed.  Twenty years later, in the midst of a long prison sentence, she claimed that she hadn't known  anything about the robbery in detail but had willingly participated in it because she supported a struggle that was "not my struggle.   I certainly don’t have the right to criticize anything. The less I would know and the more I would give up total self, the better—the more committed and the more moral I was."

Oddly enough, Kunzru does not mention that "black and Third World People" was the late 19t0s synonym for "people of color," a  term that has now entered the mainstream.  That term obviously implies a dichotomy between white people on the one hand and everyone else on the other--which reinforces the idea of white people as oppressors of everyone else.  This is quite misleading, since all nonwhites are anything but a monolithic bloc, either in the United States or in the world at large.  Yet his quotes from the Weather Underground and from Boudin have a great deal of resonance today, when white people are constantly exhorted to mistrust all their own views and feelings about racial issues and defer to others.  That in turn fundamentally attacks the intellectual foundation of the American experiment.

The United States was founded on the idea that reason could lead us closer to truth and justice, and secure life, liberty, and the pursuit of happiness.  Marxism-Leninism, even in its revolutionary form, believed in the power of reason as well.  Yet contemporary activism holds, in effect, that reason--which we can all strive to use--is less important than the views we all hold by virtue of our status either as oppressors or oppressed.  Some of them do not hesitate to argue, in fact, that reason and the Enlightenment tradition are simply tools of straight white male oppression.  In the wake of George Floyd's killing, its Newspaper Guild--the journalists' union--declared, "The Post newsroom standards of objectivity continue to be rooted in elite whiteness."   A schema, "Some Aspects and Assumptions of White Culture in the United States" posted on the website of the national Museum of African-American History included "Objective, rational linear thinking; Cause and effect relationships;" and "quantitative analysis" as specifically white cultural traits.  I am not suggesting that a majority of nonwhite Americans shares these views, but an increasingly influential minority of social justice activists do, and these examples show that they are influencing the mainstream.

This, perhaps, is the simplest link between the SDS radicals of 50 years ago and our own today: the belief that only a select few know the path to truth and justice, and that they in turn need not respect the views of others.  Then the select few was defined by ideology, now they are defined by demography. Both clearly are profoundly anti-democratic.  I do not think either set of beliefs can hold the United States together as a functioning nation, and I don't think a majority of Americans do so either.  Yet they are mainstream on the intellectual left dominates universities and major news organizations.

 

Activism Then and Now, Part I

 

For a long time now, I have been arguing that the student protests of my youth in the late 1960s set the tone of much of our politics for a long time to come.  This does not apply merely to leftist politics.  In one of my very first posts, George W. Bush: Man of the Sixties, sixteen years ago, I argued that our then-President embodied the moral certainty and unbounded self-confidence of the SDS, even though he was starting a new Vietnam, not trying to end one.  In recent years, however, I am been more struck by the similarities between contemporary left wing activism and its ancestors from that era.  To try to focus my thoughts, I decided to reread, for the first time in decades, the best book I ever read about student protest, Push Comes to Shove, by Steven Kelman.

I don't think I have seen Steve Kelman face to face since college, when I knew him slightly.  He was one year behind me at Harvard, and was politically active as a leader of the small Young People's Socialist League, or YPSL (Yipsil, as it was known.)  Beginning in his freshman year, he became embroiled .in endless arguments the more popular and active SDS, which gradually radicalized itself and the campus from 1966 through the spring of 1969, when one SDS faction occupied University Hall, provoking a police bust and a college wide strike.  That in turn led to two significant changes on campus: the elimination of ROTC programs and the creation of an Afro-American Studies program.  The Vietnam War was the proximate cause of radicalization and protest, but I don't think anyone really understands the deeper causes to this day.    Although Kelman did not work at the Harvard Crimson--whose role in the agitation and the strike he describes with utter contempt--he was a budding journalist who placed articles in several major publications while he was in college, and his book, which appeared in 1970 (but too late to include the new round of protests after Kent State and Cambodia) got a good deal of deserved attention at the time.  It remains a very revealing document today.

My discussion of this book and its contemporary relevance will extend over two or three posts.  Today I'm going to summarize some of its main lessons, pointing out some similarities between the SDS and today's "Social Justice" movements.  Next week, I'm going to talk about a remarkable new article that traces some of the history of the ideas and practices that now inform Black Lives Matter.  I'll decide then whether I need another post.  

The SDS, as Kelman points out repeatedly, had begun in 1962 as a student movement for more participatory democracy, a reaction to the political and social conservatism of the 1960s and the racial injustice that produced the civil rights movement.  It was neither large nor influential, and it was certainly a fringe group at Harvard when I arrived in 1965, and only slightly larger the next year, when Kelman followed.  Kelman traces its growth in 1967-8 and its radicalization mainly to one key development in the late summer of 1967:  the Johnson Administration's decision to do away with educational deferments for graduate students. Student deferments, which still applied to undergraduates, were justified on the basis that educated people were likely to contribute more to society--and took no notice of the equally important point that they were likely to secure greater rewards, as well.  Until this change in policy, it was quite possible for young men to keep their education going until they reached the age of 26, when they were no longer liable to be drafted in any case. By the fall of 1967, juniors and seniors in particular knew they would have to deal with Uncle Sam as soon as they graduated.  The first big step towards radicalization in the fall of 1967 was a mass sit-in that kept students away from a Dow Chemical recruiter, on the grounds that Dow made napalm, which the US military was using in huge quantities in Vietnam. The McCarthy campaign that winter and spring provided another outlet for relatively moderate protesters, but then in the spring of 1968 came the revolt at Columbia which briefly shut down the university and brought down its president.  By the fall of 1968 the radical presence was big enough to convince the Social Relations department--which combined sociology and psychology--to list a two-semester course on radical theory, taught almost entirely by radical undergraduates.

Who were the radicals? Kelman divided them sensibly into two types.  The first, "hereditary radicals," came from left wing families, whether or not they were actual Red Diaper babies, that is, children of Communists.  The second, which he calls "cultural radicals," had mainstream upper-middle class backgrounds, and a great many of them came from elite prep schools. Many of them had felt alienated from Harvard from the time of their arrival and had arrived at radicalism via extensive involvement with marijuana or hallucinogenics.  It's certainly true that a lot of us, like Benjamin Braddock in The Graduate, had gotten sick of being good boys all our lives and were wondering why we were continuing down that path to some uncertain future.   These were also the years in which Harvard dropped its dress code (coats and ties in the dining hall) and gave up its restrictions on women in dormitory rooms, and men's hair got longer.  Radicalism (which I never embraced) provided a new community and, critically, a feeling of moral superiority.  Meanwhile, we were right on one point: our parents had made a dreadful mistake in Vietnam and refused to admit it or do anything about it.

Things had however gone further by the spring of 1969.  A substantial minority of undergraduates had decided not simply that the war was wrong, but that it was an inevitable product of a corrupt system marked by capitalism, imperialism, and racism.  Most of SDS had now embraced some kind of Marxism-Leninism, and its most militant faction, the Progressive Labor Party, were avowed Maoists and supporters of both Stalin and the Cultural Revolution.  They also favored the creation of a "worker-student alliance" that would overthrow both capitalism and the American state.  In April 1969, the PL faction demanded a building occupation to force the University to abolish ROTC and stop expanding into Cambridge.  An SDS meeting voted the occupation down for the time being, but the next day, they occupied University Hall anyway.  The Administration, led by Dean Franklin Ford, decided to act swiftly, and at dawn the next day, police from several surrounding communities ended the occupation.  That in turn radicalized a much larger part of the student body, who decided that they hated the police more than they disliked SDS.  Hatred for the police as a symbol of oppression is another common bond between radicals today and fifty years ago, even though they focus on different aspects of police behavior.

Kelman, who for somewhat different reasons than I never abandoned his belief in democracy, was appalled that the radicals never cared that a vast majority of the American people--and especially the well-organized working class, which was a much more coherent political force then than it was now--did not share the radical viewpoint, and in fact, hated student radicals on both political and social grounds.  Like Lenin, however--who in What is to be Done? explained that a workers' movement needed to be led by educated revolutionaries--the SDS believed their superior wisdom and morality gave them the right to dictate the future to us all.  What they and their counterparts around the country actually did was to help split the Democratic Party and pave the way for a Republican resurgence, first in California in 1966 and then in the nation two years later.  

And here, we encounter the first big similarity between the SDS and today's student activists.  They too have a moral certainty that they know what needs to be done in the world and a complete intolerance for opposing views.  Kelman details numerous arguments he had with the SDS about free speech, which they dismissed as a tool of those in power.  Often they denied any right to defend the war in Vietnam.  The basis for that certainty, however, has changed somewhat.  In those days the SDS claimed it on the basis of Marxist-Leninist theory; today, activists tend to claim it based on their own race, gender, or sexual orientation, which they claim gives them particular insights into the injustices of our society that others do not have.  I will return to this point later in this series, but meanwhile I will note another difference on the issue of free speech.  The SDS regarded speech simply as a political weapon, and wanted to take it away from its political enemies. Today's activists often regard speech and other forms of representation as violence that will traumatize them and demand protection from it--an interesting change in the self-image of students.  Both sets of protesters, however, agree that they must be immune from punishment of any kind, since they are right.

Along with it goes a contempt for any kind of impartial procedure to resolve conflicts.  Again and again, at the height of the 1969 crisis, Kelman's younger brother--also a Harvard student--asked SDS members how they thought the ROTC issue should be resolved--that is, what procedure should make the decision.  They could not understand his question.  The same spirit informs feminist activists today who regard respect for the due process rights of men accused of sexual assault as a betrayal, and urban protesters demanding the immediate serverance of police officers present at shooting incidents.

The second stage of radicalization in 1968-9 shifted the focus of anger from the government and the broader society to the university itself.  Rather than an educational institution, it became in the eyes of the SDS a cog in the imperialist machine whose real function was to train managers of a corrupt system.  The ROTC programs--which enabled dozens of relatively poor students to attend--were the worst, since they actually fed young men into the war machine in Vietnam.  And during 1968-9, first the faculty--which in those days still had some power over how the university ran--and then the university administration caved in to that view. The faculty voted to deny academic credit to ROTC courses (which was probably enough to force the program off campus), and the administration gave up on maintaining it after the occupation of University Hal, the bust, and the strike.  SDS also campaigned against the administration for expanding into surrounding Cambridge, and accusing it of creating a housing crisis.  (This in retrospect is one of the most ironic aspects of that time.  Most of Cambridge in those days was a working class community, and very affordable for workers and students.  Now it is almost entirely gentrified and out of reach for most of the population.)  Racism was of course very much in the news in that era of urban riots, and SDS talked a lot about it as well, but there were no black students in the SDS leadership, and Kelman reports that black activists focused completely on their demand for an Afro-American Studies department and lost interest in the strike as soon as they got it.  Today's activists have also frequently made their institutions--or individual faculty or administrators within them--their target.  

These Boomer radicals also tended to glorify violence for its own sake--violence in speech, certainly, but also in action.  "Action is its own reason for existing," read one Crimson editorial. "Rebellion can only be understood by a rebel, who knows that the only 'reason' for rebellion is the pleasure (or whatever feeling) of rebellion itself.  Revolution for the hell of it, because there is no other reason big enough for rebellion."  This strikes me as the origin of "performative" politics, which is very popular today.  

Kelman was something of a political organizer himself (he, like me, went into academia, and remains today a professor at the John F. Kennedy School of Government), and he repeatedly makes another important point about young radicals, then and now.  They were, and are, too lazy, and too focused on immediate gratification, to do the hard, lengthy, and often boring work of organizing a political movement.  They also tend to be too self-centered to accept the discipline and leadership that any effective moment requires--a point to which I will return in later posts.

Some of the radicals of the late 1960s became lifelong activists, and some dropped out of society.  For far more of them, however, this was just a youthful detour from a successful Establishment career.  My own 25th reunion in 1994 featured a panel on politics moderated by my one-time roommate, Chris Wallace, and including Congressman Bobby Scott of Virginia and former Assistant Secretary of State Elliot Abrams.  Another members was James Glassman, then a Washington Post  financial reporter who sheepishly described his own conservatism.  I had totally forgotten that he had been a Crimson editor, the author of many editorials praising direct action against the university, in those days, including the one that I quoted above on action for action's sake..  And some other radicals, such as Kelman's friend Michael Kazin, became academics.  I shall return to them later too. 

In later posts I shall trace the influence of these and other aspects of the radicalism of my youth upon the radicalism of today.  Meanwhile, it is only fair to note some big changes in the context of activism.  Fifty years later, the SDS portrait of American society as capitalism run amok, crushing the working class, seems like a pathetic caricature.  Unfortunately, it is much more accurate now than it ever was then. I shall return to that as well.