21 November 2014

The Prosecutor-in-Chief and executive discretion

As compromise between the two major parties seems increasingly impossible on a widening field of issues, presidents assert ever more sweeping discretionary powers that allow them theoretically to ignore or override the legislative branch. George W. Bush was much criticized for his various executive orders, by Senator Barack Obama among others. Since then, President Obama has found it convenient if not necessary to claim similar discretionary power in his executive capacity. While Bush asserted the President's right as Commander-in-Chief to use discretion in taking immediate action for national defense before consulting Congress, Obama claims similar discretionary authority in his capacity as chief enforcer of the nation's laws to "defer" the deportation of large numbers of undocumented immigrants. He depends on the concept of "prosecutorial discretion," based on the assumption that law enforcement inevitably must set priorities given inevitably limited resources. The current opposition claims that the sort of discretion the President elects to exercise effectively nullifies policies set by Congress and thus tips one of the balances upon which constitutional government depends. This isn't the first time the Obama administration has been criticized for selective enforcement of laws, but given his new position as a lame duck facing hostile majorities in both houses of Congress next year, his action (or inaction) on deportations strikes Republicans in particular as a provocative act if not a threat to the American political order. Each party in turn, as it gains strength in the legislature, fears that a President of the opposing party will hop on skis and race down the slippery slope to "authoritarian" rule if not outright dictatorship. Each party has been hypocritical when criticizing executive power as exercised by the other, and in defending controversial assertions of executive power by their own leaders. While the prosecutorial discretion principle assumes that discretion is necessary and inevitable, the public can still ask itself exactly how much discretion the President of the United States should have. As Ruth Marcus, a liberal columnist, asks at an admirable distance from partisanship, how would Democrats like it if a future Republican president, acting on his or her discretion, chooses not to enforce the Affordable Care Act's rule requiring everyone to buy health insurance, or any number of "anti-business" environmental regulations? Prosecutorial discretion can justify such choices as easily as it justifies Obama's present course.  If discretion is inevitable, it needn't be the last word. If Republicans feel strongly enough about this, perhaps they can seek something like a writ of mandamus from a court that could compel a president to execute laws according to legislative discretion, respecting the letter and spirit of legislation. And of course, there are always elections, and while Barack Obama doesn't have to worry about those anymore, his party still does.

As for the merits of the President's particular course, he may be pandering to Hispanics but he wouldn't be the first chief executive (as his supporters note forcefully) to take pragmatic discretionary action in face of overwhelming numbers and humanitarian concerns. Ideally, there ought to be a way to debate policy without also having a debate on the desirability of greater Hispanic immigration, but that's entirely up to Republicans. Unfortunately, they seem incapable of making their case without implicitly questioning the fitness of Central Americans for small-r republican citizenship. For the GOP some things never change. While Abraham Lincoln in particular among the GOP founders criticized the "Know Nothing" nativism of his time, the Republican party effectively inherited the anti-immigrant vote the Know Nothings once claimed. Republicans have always accused Democrats of exploiting immigrants by making them clients of local party machines and expediting their naturalization in order to get their votes. For their part, Democrats have told each new wave of immigrants since 1854 that Republicans hate them, and the immigrants have seen little reason to dispute the claim. As more people question the very idea of "illegal" immigration the modern debate has grown more intense, while not as virulent as when most immigrants were Irish. Many people are cheering Obama's discretionary move as a means toward a desired end, while just as many seem ready to take him to court, but the end in this case may not entirely justify the means. The case itself shows us that partisan gridlock and presidential assertion go hand-in-hand. Presidents will feel less tempted to claim worrisome discretion if their parties actually could work with the opposition instead of each party playing an all-or-nothing game. If you fear the rise of an authoritarian executive, the paradoxical fact is that you have to smash the two-party system, but this becomes less paradoxical when it means creating not a one-party state but a true multi-party state or, perhaps even better, a no-party state. Then I could understand people wanting to come here.

19 November 2014

The Cosby Show Trial

A black celebrity is accused of date-raping a number of women, at least several of whom are white, and conservatives are rallying to his defense, while at least a few blacks are experiencing a bit of schadenfreude at his plight. The reason is simple: Bill Cosby has become best known in recent years for scolding black culture and condemning much of hip-hop culture in particular. This made him a hero for white conservatives who could let him make charges many of them wouldn't dare make. They see Cosby as an espouser of "personal responsibility," someone who won't just blame blacks' problems on whites. Hostility toward Cosby among black opinionators is based largely on how they think whites will exploit the comedian's criticisms. Americans in general seem to assume a zero-sum relationship between "personal responsibility" and "social justice." If Cosby and other high-profile contrarians (e.g. the basketball broadcaster Charles Barkley) argue for more personal responsibility, they're assumed to downplay the need for social justice. When Cosby denounces "knuckleheads" in the hood, he's accused of stereotyping (if not blaming the victim) and of enabling stereotyping attitudes among whites. Without ever seeking political office, Cosby has become a political figure, which may be why we haven't seen white conservatives dismiss him, in light of the new or revived charges against him, as just another [n-word]. He has individualized himself in opposition to the supposed black consensus or "herd mentality" in a way that O.J. Simpson, for instance, never did. As a result, we can see conservatives indulging in conspiracy theory, suggesting that the liberal media is out to destroy Cosby because he challenges political correctness or the hegemony of "social justice" thinking in the black community. On the other side, some black opinionators see the Cosby scandal as the humbling of a hypocrite who had no business passing judgment on anyone else, much less the disadvantaged of his own race. Add to the mix all those celebrity-worshippers who always presume the celebrity innocent when relative nobodies accuse him of such things, as well as the dead-end bigots who do now see Cosby as just another [n-word] and we have yet another case where people will find it difficult to judge the charges objectively. Because Cosby's fate may have an impact in a wider realm in which many hold a stake, people will be tempted to judge the case as a means to an end rather than on its own terms. But if Cosby has been defined increasingly by his own judgmental attitude -- his supporters might call it his moral courage -- I suppose the result will only be fair, even if it also proves very annoying.

17 November 2014

The worst are full of passionate intensity: an argument for getting out the vote

Carl Strock, once a columnist for the Schenectady Gazette and now a blogger for the Albany Times Union, is no fan of the Republican party, but when others blame low turnout for the GOP victories this month and wish more people had voted, Strock is skeptical. "I have never considered voting the civic virtue that public figures invariably consider it," he writes, "Maybe knowledgeable voting is a virtue, but voting just for the sake of voting, whether or not you have any idea of who the candidates are and what kind of horse thieves they might be, I’m not sure. It might be just as well that you stay at home if you haven’t made a minimal effort to inform yourself."

This is the sort of rhetoric I expect to hear or read from Republicans. Just as liberals believe that the more people vote, the better for them, Republicans believe the opposite. The GOP argument against maximizing voter turnout is pretty much the same as Strock's: the more people vote, the more ignorance will prevail. Strock is also willing to believe that non-voters have made a conscious if cynical choice, seeing no difference for them in who gets elected, but he still wishes that voting could be made conditional on some sort of intelligence test. Knowing how controversial this idea is, Strock proposes something minimalist and value-free: "Just, what state do you live in? Who is the governor? Which way is up?" But he knows even that would be attacked as implicitly discriminatory, while the more severe partisans would more likely propose more biased tests. Each of the major parties believes the other profoundly ignorant in certain major fields, Democrats presuming Republicans ignorant of science, Republicans presuming Democrats ignorant of economics. Each would love making tests in their own specialized fields of knowledge (or belief) the prerequisite for voting in pursuit of their respective utopias where there's no such thing as an uninformed vote.

Permit me to suggest, for today at least, that our present problem is not so much ignorance -- I presume most Americans were no more conversant with science or economics a century or more ago -- as it is ideological fanaticism. The U.S. is in a Yeatsian state in which, as the poet wrote almost a century ago, "the worst are full of passionate intensity" while most, if not the best, "lack all conviction." Acquiescing in apathy yields the field to the worst of the passionately intense. As for the apathetic, the real hidden majority of the country, however ignorant they may be we can assume that their cynicism will immunize them against the appeals of demagogues and void the oldest argument against maximizing voter turnout. If the hidden majority were compelled to vote -- if they actually have to choose a candidate rather than leave any column blank -- they may simply vote for the least obnoxious candidate, which hopefully would eliminate the most extreme or fanatical rivals. Another possibility is that, in a collective fit of "ignorant" pique, they might choose a third-party candidate to spite the Bipolarchy. If our future is threatened by voting blocs who care to excess, the answer may be simply to swamp them with a majority that doesn't care. But if this idea gives "ignorance" too much voice for your taste -- if you still dream of imposing the perfect test to sort the deserving from the undeserving -- your problem may be not so much with the American electorate or any hidden majority but with democracy itself. I don't mean that as a conversation stopper, since intellectual arguments against democracy can be made, but if those arguments are going to be made we should make clear what we stand for: government by, of and for the people, or something else.

14 November 2014

Kissinger and 'fresh' thinking on foreign policy

As he grows more insufferable as an opinionator on domestic politics, George Will still maintains a somewhat reasonable perspective on foreign affairs. In a recent column he calls attention to American politicians ("Republicans especially") who are "thinking afresh" about our country's stance toward other nations. Will goes on to suggest that these fresh thinkers could take notes from a nonagenarian, Henry Kissinger, who has published a new book diagnosing the country's problem. Here's Kissinger as quoted by Will:

The conviction that American principles are universal has introduced a challenging element into the international system because it implies that governments not practicing them are less than fully legitimate. [This] suggests that a significant portion of the world lives under a kind of unsatisfactory, probationary arrangement, and will one day be redeemed; in the meantime, their relations with the world’s strongest power must have some latent adversarial element to them.

Kissinger is a foreigner by birth, after all, and is bound to notice things about us that we don't recognize -- or won't acknowledge. Kissinger and Will invite us to rethink this national bias, and doing so can only be a good thing. Ever erudite, Will repeats the now-familiar John Quincy Adams quote describing the U.S. as "the well-wisher to the freedom and independence of all. She is the champion and vindicator only of her own." He seems to propose a repudiation of liberal interventionism, the idea that the liberal democracies (the U.S. especially) have a moral responsibility and a right regardless of law to liberate individuals from tyrannical governments. For self-styled conservatives this should be an easy call, but American conservatism as it evolved in the 20th century is, to put it generously, paradoxical to a fault. Many "conservatives" in this country remain wedded to an idea of "natural rights," with corollary assumptions about their universality, that most conservatives throughout history would have laughed at. In this country, "natural rights" have evolved from a Jeffersonian justification for revolution to an existential argument against slavery to an ideological defense against communism and other forms of totalitarianism or authoritarianism. By now I'm not so sure that American conservatives (Republicans especially) can dispense with this pretense. An appeal to natural rights is their ultimate veto against the perceived self-aggrandizement of the state and the perceived whims of the masses. Acting on the commonsense premise that the individual is prior to the state, the idea of natural rights asserts inherent limits to what the state, understood as the ruler and/or the people, can demand of or take from the individual. While alternate ideas like social-contract theory or the romanticism of fascism assert that the individual becomes something different and arguably superior by subjecting himself more completely to the body politic, natural-rights theory, at least as practiced here, assumes that such submission invariably diminishes the individual in an unacceptable way while empowering the state in inevitably more oppressive ways. But for this argument to be more than the preference of certain political philosophers or their wealthy patrons it has to be a universal principle, applicable everywhere on Earth. That makes it hard for some Americans not to judge other countries on the basis of something more, well, judgmental than the "contingent" basis Kissinger prefers.

For "bleeding heart" liberals the problem is even worse, and to the extent that they're "collectivist" rather than individualist they're only more likely to feel that no one on Earth should have to suffer as they imagine people suffer under tyranny.  While it should be easy to imagine a conservative saying it's each person's personal responsibility to liberate himself from tyranny, and not the job of other countries, liberals have a Good Samaritan (or busybody, depending on your perspective or interest) impulse, compounded by their philosophically hedonistic revulsion at the repressive measures taken in many countries, that tells them that whoever can should do something about repression, torture, etc., though most would flee from the inference that this means conquering the world. To the extent that modern American conservatives feel threatened by any (or every) foreign dictatorship, they've only been contaminated by liberal fear, most likely as a result of the mid-20th century Cold War consensus against Communism, while in the past, presumably, conservatives only abhorred tyrants if they refused to trade with us.

If you accept the argument that the military-industrial complex, and thus the American economy, requires a perpetually adversarial relationship between the U.S. and the world's authoritarians, you only acknowledge a further impediment to "thinking afresh." But the biggest obstacle may be one that Will, at least, won't acknowledge. The truth in the assertion that authoritarianism anywhere threatens freedom everywhere, or at least in the U.S., lies in our fear of an example. Recall how Americans assume that Vladimir Putin wants to crush the Maidan revolution in Ukraine because he fears the example it will set for Russians. Presuming that Putin is not a universalist of any sort, it's unlikely he has such a fear. He more likely believes that Russians are culturally immune to any example set by Ukraine, and that only Russia's economy and global prestige, and not his own power, are at stake in that country. If you are a universalist, however, an event anywhere might set an example everywhere. It's more likely that the U.S. fears the success of Putin, or the success of the Chinese, because these might set examples for Americans. Could Americans actually want a more "authoritarian" government? If you define it as a government that "gets things done" and has the power to push around billionaires grown too big for their britches, I could definitely see a constituency for it here, and I can also see that theory of Putin's motives as a form of projection. Some American conservatives may think that the only way to suppress an American desire for a stronger government is to demonize and plead defense against any authoritarian regime that might prove an attractive example. Conservatives should be able to refute the whole idea by saying that American liberty is our particular birthright by virtue of the Constitution while Russian authoritarianism, or any other form, is merely one country's unique cultural legacy. But another problem arises when you acknowledge your system of laws and rights as no more than the work of men, rather than something almost divinely inspired. If the U.S. wasn't founded on universal or unalterable principles, all our laws and rights ought to be subject to review at some point, unless you want to be really conservative and declare a taboo on questioning the ancestors' legacy. Despite all this, there should be some way for Americans to think about foreign policy without turning it into a debate on forms of government and human rights with our own liberties at stake. If old Republicans -- even those with tainted legacies like Kissinger -- can help us figure it out, then they may be useful after all.

12 November 2014

The world watches Ferguson

Some Americans are sure to be annoyed at the idea of a United Nations commission investigating the killing of Michael Brown by a Ferguson MO policeman last summer. Look at the comments thread for this report of Browns' parents testifying in Geneva and you'll see some troll calling them traitors. Others find it ridiculous if not offensive that the U.S. should be subject to scrutiny from an anti-torture committee when so many dictatorships elsewhere are self-evidently worse. They've forgotten a golden rule: judge not, lest ye be judged. There are lots of people in the world whose notion of individual rights may not be as expansive as Americans', yet are probably more sensitive to the ways discrimination or ethnic inequality belie any country's pretense of liberty. This should be old news to us. Ever since Americans declared independence with Jefferson's eloquent rhetoric, critics have questioned our rhetoric's credibility by citing our treatment of Africans and/or Native Americans. Even before the Declaration, Samuel Johnson asked of the Americans, "How is it that we hear the loudest yelps for liberty among the drivers of negroes?" Communists in the 20th century would always bring up the blacks when challenged about their own oppressive policies, while many American politicians pragmatically endorsed the Civil Rights Movement in an attempt to deny the Commies this rhetorical point. To this day, one part of the appeal of "radical Islam" is its insistence that their religion doesn't countenance racial discrimination. Sure, Arabs enslaved Africans by the millions back in the day, but those were pagans so that was okay. Around the world, equality is a value that transcends ideologies. Whether a government is liberal, authoritarian or totalitarian, it matters that it treat people the same. Some may even prefer a regime that oppresses everyone equally, depending on how you define oppression, to a regime where liberty appears to be reserved for certain groups only. Of course, some will be hypocritical in criticizing the U.S. while discriminating against unfavored groups at home, and it can be argued that any regime's pretense of egalitarianism is hypocritical once you see the sordid reality behind the rhetoric. But we should avoid the ad hominem fallacy of assuming that if a dictator says we're wrong, we must be right. We should probably also resist the temptation to see the Ferguson case as symbolic. Michael Brown is almost certainly not as innocent as his grieving family and their friends claim, but the cop who shot him is almost as certainly not as innocent as police apologists insist. At the least, in the latter case, people have a right not to see him as an innocent -- not to accept the police or pro-police interpretation of the incident as the last word on the matter.

Ferguson is poised for more unrest as everyone awaits the determination of a grand jury, the authorities warning against violence if Brown's supporters don't get the justice they've demanded but also allowing for peaceful protest if it comes to that. One side wants the policeman prosecuted, while another abhors the idea. A compromise should be possible, one that stresses answerability more than accountability. It may not be necessary or appropriate to prosecute police in all such cases, but a "truth commission" in all such cases might be in order. If relatives of murder and manslaughter victims get to confront and denounce convicted perpetrators in court, it may be proper for police to face the same informal judgment in a public forum from the families of those they've killed, even if they face no legal penalty. If the police are at least answerable to the bereaved to some extent, that might relieve the sense of oppression, the feeling that the government has no interest in them other than to keep them quiet, that has driven the Browns to Geneva. But if you think that the Browns are doing this only for publicity, or with an eye on some future payday, or that they're dupes of some enemy of America, these considerations probably won't mean anything to you. You're probably hopeless, and you're definitely part of the problem, even if you don't see one here. The fact that others do see a problem here may be a problem for you someday. But if you think it's none of their business if they're not from here, please remember how you feel now when you feel like criticizing the ways other governments treat their people. In this case, equality is the only rule we can recognize. If we can criticize them, they can criticize us. If we can act on our criticisms, so can they on theirs. Judge not lest you be judged.

11 November 2014

Veterans Day in perspective

It's appropriate to set a day aside to acknowledge the sacrifices made by those who fought in our country's wars and show sympathy with the survivors. In the U.S. we have two such days, one in May for those who died, and one in November dedicated, more or less, to the living. Veterans Day falls on the day of the armistice that ended World War I, and the American holiday was known as Armistice Day until 1954. The current label was adopted to include veterans of World War II and the Korean police action in the day's honors. With this came a subtle change in emphasis. Back in 1938, when Armistice Day became a holiday by law, rather than a matter of presidential proclamation, the occasion was dedicated by Congress to "the cause of world peace." Although World War II was just around the corner, World War I was still the Bad War in many memories, the conflict that seemed to have no point and in which, in retrospect, Americans had few good reasons to intervene. Yet were someone now to propose that Veterans Day observances be dedicated to the cause of world peace, I suspect that many Americans would denounce the proposition as an insult to the troops. On both Veterans Day and Memorial Day we are exhorted to show gratitude to fallen and living soldiers for having spared the country from some awful fate. Yet from the Civil War forward, with the debatable exception of World War II, the freedom and sovereignty of the nation has not been at stake in any of our wars. If you were to suggest in 1938 that these had been at stake in the Great War, veterans and civilians alike probably would have laughed at you for still believing the propaganda of Liberty Bond posters. In our time, the constant implication of holiday rhetoric is that Americans owe their freedom not merely to the obvious heroes of the Revolution, but to soldiers who have fought in our lifetime, as if our freedom, however defined, was recently in jeopardy from abroad. The more offensive subtext of such rhetoric is the warning that, since we owe our freedom to a powerful military, we really shouldn't criticize the military, nor even the government policies that send the military to war. In short, Veterans Day serves today primarily as a reminder that "freedom isn't free" and an argument for the permanent necessity of a large military establishment, because otherwise Vladimir Putin or ISIS or the Chinese will fall upon us in their hunger to dominate and oppress. To question any of these premises is to insult soldiers past and present, as far as many Americans are concerned, but to pursue provocative policies thoughtlessly and put today's soldiers at risk of combat seems like more of an insult. I understand that today's desire to thank soldiers still goes back to regret over the poor treatment given troops returning from Vietnam, but what soldiers deserve is our sympathy more than our thanks. We owe them something for sacrificing for the government, but we do not owe them in any way that binds us to militarism or an ideologically aggressive foreign policy -- and I doubt many of them would ever call in such a debt. For that, probably, we should thank them.

10 November 2014

Rebranding parties: can it work?

A form of boutique politics was practiced in New York State during this year's gubernatorial campaign. Republican challenger Rob Astorino, hoping to take advantage of widespread distrust of the "Common Core" educational standards, set himself up as the candidate of a new "Stop Common Core" party. The Democratic incumbent, Andrew Cuomo, tried to draw more women than usual to a Democrat by giving them a new option; they could vote for Cuomo on the Women's Equality Party line. While Astorino's gambit is probably a single-use proposition, Cuomo may have a long-term agenda of undermining the Working Families Party, an institution at once inflexibly loyal to Democrats yet often critical of their alleged centrism, and dedicated to the still-unproven premise that they can pressure Democratic candidates further to the left. In the end, Stop Common Core provided about 3.5% of Astorino's total vote, as compared to the 16.3% who checked him off on the Conservative line, making the latter the state's largest "independent" party. In the Cuomo camp, Women's Equality provided little more than 2.5% of the incumbent's total vote, compared to 6.2% who voted for Cuomo on the Working Families line. Self-styled progressive voters more likely voted against both candidates by giving Green candidate Howie Hawkins just under 5% of the vote, presumably that party's best showing ever. For those bothering to keep track, the Libertarian vote was dismal, amounting to less than 0.5% of the total popular vote.

For what it's worth, Women's Equality slightly outpolled Stop Common Core, and both parties just made it over the 50,000 vote threshold entitling them to automatic lines on the next statewide ballot. On that level, for those with an interest in perpetuating both parties, this fall's results count as success stories. Is there a future in this sort of pseudo-partisanship? Not in any state where election laws forbid cross-endorsement of candidates, of course, but the greater creativity in labeling this year might get people in the big parties thinking as approval ratings for Democrats and Republicans in general continue to sink. If you can't throw an alternate party line out there and have it count for you, why not re-brand the actual major party? This, too, would be tricky under most election laws, but if that isn't feasible why not abandon the old labels and stake everything on a hot new brand? Consider how this may have benefited the Democrats this fall. Despite President Obama's low approval ratings, there is a barely-hidden majority of voters out there who came out twice, in 2008 and 2012, to give him historic victories. Many of these same people, reportedly, didn't bother voting either this year or in the 2010 races that cost Democrats the House of Representatives. As the numbers add up, this year is revealing a historically low turnout that clearly hurt Democrats more than Republicans, and apathy rather than vote suppression is clearly to blame. A kind of cult of personality devoted to Obama seems to prevail among the quadrennial voters, who seem not to give a damn about the other branches of government, and some people opined, both before and after the fact, that Democratic candidates had to embrace rather than run from Obama if they hoped to get votes at anything like 2012 levels. If this were the private sector, the solution would have been obvious. If these voters wanted a product called Obama, it was up to the Democrats to provide it, even if the man himself wasn't running for anything. If the quadrennial Obama voters represent the imminent majority Democrats expect to make life easy for them in decades to come, and if Obama alone inspires them, why not change the party name from Democratic to Obama, or create Obama lines everywhere and dedicate all advertising to getting people to "Vote Obama?" Depending on how things change in the next two years, you can keep it the Obama Party or change it to the Hillary Party or whatever your focus groups advise. All of this may sound absurd, but given the excuses being made and the blame cast at apathetic liberals after the election, there may well be Democrats out there who think something like this may have worked. A lot more probably can be convinced that it'd be easier than actually thinking hard and proposing new policies and priorities for the 21st century. And if no one steps up to start more credible alternative parties, it may be up to the Bipolarchy to make up third parties of their own to save themselves.