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Tuesday, June 25, 2013

Just Another Day, Just Another Example of Judicial Imperialism

[Cross-posted to Political Context]

This morning the word came down from the Supreme Court: in the matter of Shelby County v. Holder, the landmark (and often-renewed) 1965 law, the Voting Rights Act, survives....but the law's crucial Section 4, which was the formula by used by Congress determined the range and extent of "preclearance" coverage which they'd long judged to be necessary in order to guarantee federal-level protections of minority voting rights against state and local discrimination in certain parts of the country (currently these), is unconstitutional. It no longer matches, in the judgment of five of the nine members of the Supreme Court, the racial realities on the ground (even though in 2006, after an enormous amount of research and testimony and backroom dealmaking, Congress decided that it still did), so it's gone. And that means that Section 5 of the VRA, which is where the whole process of preclearance is spelled out, is essentially defunct. The ability of the federal government to provide some real support to racial minorities who believe they have a legitimate complaint against unfair voting rules is now mostly gone, because five judges wanted to absolve certain states and localities from constitutional obligations in ways which our national legislature had determined they still needed to do.

Absolving states from constitutional obligations? Is that a too-extreme description? Perhaps, a tiny bit--after all, there are other mechanisms in the VRA to enable the federal government to respond to claims of voter discrimination (the means for pressing federal lawsuits on behalf of voters is spelled out in Section 2 of the law), and it is true that most of what the Section 5 has been used to address in recent years as been matter of unfair representation outcomes, rather than actual, direct, voter discrimination (and that, admittedly, has its own problems as well). But on the other hand, the whole reason that Congress came up the preclearance process and a formula for determining what was covered by it in the first place was that making these determinations lawsuit by lawsuit, across thousands of jurisdictions, is incredibly messy, costly, and time-consuming (meaning that it will be usually the marginalized voters who will suffer). Civil rights organizations insist that, with Section 5--and the Section 4 which makes it operable--gone, they will have lost one of their strongest tools for maintain a certain level of equal civic access and representation in this nation. And that is a constitutional concern.

The usual defenses will, of course, be trotted out: times have changed, the South has changed, so shouldn't the Voting Rights Act change as well? That's an excellent question--which is why Congress has to regularly renew the Act. Which it did, after many weeks of testimony and investigation and debate, resulting in some fine-tuning, only seven years ago. (Jacob Levy sees an excellent opportunity for snark here: Justice Scalia, a self-proclaimed textualist who insists that the language of the law doesn't change to fit social realities, signed on to the majority opinion shooting down Section 4 of the law, which concludes its undemocratic decree by simply stating "our country has changed"; this makes Jacob want to ask, "Justice Scalia, when did the evolving standards of the living constitutional text of Amendment 15 section 2, change to make the VRA Section 4 unconstitutional? Can you give me a date on that?") I realize that this is a constant obsession of mine, but that's only because the cause of the obsession has no intention of going away: we have a Supreme Court (and particularly, these days, a pseudo-composite conservative/libertarian/originalist five-judge majority upon it) who are possessed of a certain kind of constitutional fetish, one that leads them to insist far too often that the deliberations of our legislatures, however subject to critique they may be (and believe me, I have many critiques I can make of our Congress!), ought to be not merely reviewed for the sake of addressing specific concerns about ensuring certain constitutional guarantees, but substantively investigated, measured against whatever sociological or ideological or historical predilections happen to possess the nine (or, more usually, some combination of five or more) people currently sitting upon it, and if found wanting, carefully parceled out and then flushed down the toilet. The idea that the U.S. Constitution needs to be kept, as much as possible, unsullied by the messy process of democratic decisionmaking and dealmaking on the federal level strikes me as entirely incompatible with the realities of self-government in a nation like our own--and hence the fact that the animating concern behind Shelby County v. Holder was clearly an overwrought and somewhat twisted devotion to minimal government and state sovereignty is that much more frustrating.

Final words to Justice Ginsberg's strong, calm dissent from this latest bit of depressing news:

After exhaustive evidence-gathering and deliberative process, Congress reauthorized the VRA, including the coverage provision, with overwhelming bipartisan support. It was the judgment of Congress that “40 years has not been a sufficient amount of time to eliminate the vestiges of discrimination following nearly 100 years of disregard for the dictates of the 15th amendment and to ensure that the right of all citizens to vote is protected as guaranteed by the Constitution.” 2006 Reauthorization §2(b)(7), 120 Stat. 577. That determination of the body empowered to enforce the Civil War Amendments “by appropriate legis­lation” merits this Court’s utmost respect. In my judg­ment, the Court errs egregiously by overriding Congress' decision.

True enough. But hey, the term isn't over yet! Let's see what the Supremes will have for us tomorrow.

Saturday, June 22, 2013

Saturday Night Live Music: "Trouble"

Lindsey Buckingham, stripping this great little pop song from the 1980s all the way down to the bone, and revealing a haunting vocal and acoustic ballad. Great stuff.

Saturday, June 15, 2013

Saturday Night Live Music: "Love Hurts"

A friend of mine recently got me to rethink The Rolling Stones--or at least to rethink Keith Richards and his place in that rock and roll band. He sent me a copy of the wonderful A Stone Alone, a collection of bootleg solo recordings by Richards from the late 70s and early 80s, and it blew me away. Then he sent me this, and I was stunned. Apparently, there's a whole lot more classic musicianship in Keef than I'd ever dreamed.

Saturday, June 08, 2013

Saturday Night Live Music: "Route 66"

Sorry for no live music last week, but we'd just returned from a week-long trip from Kansas to Michigan and back again. And actually, we were on Route 66 for a good chunk of our drive. Appropriate, no? Everyone has done this song, but why not stick with the performer who did it first? Nat King Cole, working when jazz was opening up the room for rock and roll, despite it not having been invented yet.

Thursday, June 06, 2013

Stuff that a Brilliant (and often Wise) Left-Wing Jewish Intellectual Had to Say

Tony Judt, a much-praised historian and all-around intellectual-provocateur, died of Lou Gehrig's disease nearly three years ago. I was not at all familiar with his scholarly work, and only knew him as a pundit, due to his many essays which appeared in The New Republic or The New York Review of Books through the 1990s and the first deacde of the 21st-century. "What is Living and What is Dead in Social Democracy?" was one his last, and one that I remember well; Ross Douthat smartly described it as "both a cri de coeur over the absence of true social-democratic politics in America, and a reminder of how much ideological space there is, even at a moment of liberal ascendancy, to the left of Barack Obama." As someone whose socialist and/or populist and/or progressive (and lately anarchist too!) interests regularly put me to the left of Obama on many (though not all) issues, that description made me want to become more familiar with his work, which eventually led to my reading of Ill Fares the Land, a wonderful and impassioned social democratic manifesto, which might be best described as an egalitarian European liberalism by way of old school British socialism. (My favorite passage in the book comes when he, counter-intuitively yet--to me, anyway--utterly persuasively, makes use of Burkean conservatism and communitarianism to defend a redistributionist democratic state, in contrast to what he sees as an unrestrained, coercive, and individualizing one.) But, for all that, I never read any of the scholarly work which gave him his perspective--not to mention his perch--as a pundit in the first place.

I still haven't rectified that. But I have at least tipped my toes a little deeper in Judtian waters, and all to my own benefit--I've finally made my way through Thinking the Twentieth Century, a fascinating (though not always easy to read) transcription of a months-long series of conversations which Judt, as his body failed him, had with his close friend and fellow historian, Timothy Snyder. (See this excellent interview with Snyder about what the experience of working on the book with Judt was like.) Judt and Snyder shared much--both Jews, both scholars fascinated with 19th and 20th-century central European history--as well as having some real differences: Judt, for one, was a product of an earlier generation, and had formative, postwar experiences as a young socialist and Jewish activist growing up in Great Britain in the 1950s and 60s, which subsequently shaped much of his perspective on matters both cultural and political. But much more than that, this arrangement made it possible for someone like me to slowly work my way through hours and hours of recollected events, ideas, and insights--many provocative, many more rather obscure, but not less intriguing for all that. Judt talked about Judaism and Zionism, being English, being a New Yorker, socialism and Marxism, the problem and power of Israel, economics and politics and philosophy, and the fate of his own historical profession. I wanted to find some way to comment on the whole of it...but ultimately, all I can say was that this book inspired me to want to know more, and engage more in those few scholarly matters where I might, perhaps, have something to say. Beyond that, the best I can do is share a couple of dozen selections from Judt himself. Every one of these passages below are extracted from a long, discursive context, so don't assume just from reading them that you know exactly what Judt was talking about--nor should you assume that by putting them here, I'm showing my agreement! No, I just find these glimpses of a fascinating mind, one that I could never be like, but which somehow inspires me, all the same. (All page citations are to the 2012 Penguin edition.)


"Odd as it may sound today, democracy was a catastrophe for Jews, who thrived in liberal autocracies." (p. 19)

"Phenomenology, coming first from Husserl and then from his student Heidegger, offered the appealing ideal that the self was something deeper than the Fruedian psychological self. It proposed a notion of authenticity in an inauthentic world." (p. 37)

"Anglicanism is not Protestantism. The Church of England was and is a weird animal: at its most conservative, it is far more ornate and tradition-bound than its Episcopalian brethren in the U.S. In essence, High Anglicanism was Catholicism without the Pope. On the other hand, at its low end, the Anglican Church can resemble Scandinavian Protestantism: under-adorned, its authority vested in a single, often rather gaunt and morally and sartorially restrained pastor....What unites this weird religion is its long-established identification with power. From that little church in a Norfolk village through the High Anglican cathedrals of Liverpool or York, this is the "Church of England." Historically, the link between church and state in England has been usually intimate, the rule elite overwhelmingly drawn from Anglican families and the church itself umbilically attached to the political establishment....The establishment identity associated with Anglicanism is thus of far greater significance than its rather nebulous theological markers. This was above all an English church; its Christianity could at times appear almost secondary." (p. 73)

"G.E. Moore, the Cambridge philosopher, it seems fair to say, is what Nietzsche would have looked like had he been born in England." (p. 81)

"Following the Bolshevik Revolution of 1917, there was a sharp and enduring schism between those who could not digest the human consequences of their own [Marxist] theories, and those for whom these same consequences were nasty in just the way they had thought they would be, and all the more convincing for that reason: it's really hard; we've really got to make difficult choices; we have no choice but to do bad things; this is a revolution; if we are in the omelette-making business, this is not the moment to coddle the eggs. In other words, this is a break with the past and with our enemies, justified and explained by an all-embracing logic of human transformation. Marxists for whom all of this suggested mere repression were (not altogether unreasonably) accused of failing the grasp the implications of their own doctrine and condemned to the dustbin of History." (p. 94)

"For the fist time I came to appreciate that Israel was not a social-democratic paradise of peace-loving, farm-dwelling Jews who just happened to be Israelis but were otherwise just like me....The junior officers I met were drawn from the cities and towns rather than the kibbutzim, and thanks to them I came to appreciate something that should have been obvious to me long before: that the dream of rural socialism was just that." (p. 117)

"In the Christian version of Jewish history, Jews--Christ-like--can only truly win when (or rather, after) they lost. If they appear victorious, to be gaining their ends (at someone else's expense) there is a problem. But this otherwise elegant European appropriation of someone else's history for other purposes raises complications. The first of these...is that Israel is there." (p. 122)

"A Zionist, we used to say, is a Jew who pays another Jew to live in Israel. American is full of Zionists." (p. 125)

"As for cultural studies, I found them depressingly superficial: driven by the need to separate social data and experience from any economic roots or influences, the better to distinguish their claims from the discredited Marxism on which they otherwise drew shamelessly....What happens, after all, when the proletariat ceases to function as an engine of history? At the hands of practitioners of cultural and social studies in the 1970s the machine could still be made to work: you merely replaced "workers" with "women"; or students, or peasants, or blacks, or--eventually--gays, or indeed whichever group had sound reason to be dissatisfied with the present disposition of power and authority....All this struck me as jejune and callow." (p. 155)

"The prospects of fascism...depend upon a country being trapped in some combination of mass society and fragile, fragmented political institutions. As of today, I can think of nowhere in the West where these conditions obtain in a sufficiently acute form." (p. 166)

"Those who did not believe Orwell in 1939 would be forced to backtrack in later years: from 1945 through the mid-fifties, a crucial element in all the Soviet Bloc trials of those years...would be the actions of the accused during the Spanish Civil War....In that sense, communist strategy in Spain turns out to have been a dry run for the seizure of power in Eastern Europe after 1945. Obviously, this was very hard to appreciate at the time. Moscow, after all, was the only significant and effective backer of the Spanish republic. The Soviet Union was increasingly regarded as the only remaining bulwark against the rise of fascism in Central and Eastern Europe--and therefore Spain too. Everyone else, including Britain, was more than happy to compromise, so long as they were not affected themselves." (p. 190)

"The real Cold War at the intellectual and cultural level, and also at the political level in many countries, was not fought between the Left and the right but within the Left. The real political fault line fell between communists and fellow traveling sympathizers, on the one side, and social democrats, on the other wise....Culturally, the fault line drawn by the inherited cultural politics of the 1930s. Once you understand this, you can see who the Cold War liberals were. They were people like Sidney Hook....an aggressively socialist critic of communism." (p. 226)

"The crucial asset of Western liberalism was not its intellectual appeal but its institutional structures." (p. 230)

"By the last decade of the twentieth century, opposition in Eastern Europe was frequently and plausibly presented not just as a revolution within politics but also against them. The transformation gave the smarter neo-liberals their opening: a way to ditch the dissidents while stealing their clothes. If politics as usual has been replaced by "anti-politics," then we live in a post-political world. And in a post-political world, shorn of ethical meaning or historical narrative, what remains? Certainly not society. All that is left, as Margaret Thatcher famously insisted, are "families and individuals." And their self-interest, economically defined." (p. 248)

"From an academic point of view, New York resembles the continental European model rather than the Anglo-American template. The most important conversations in town are not those conducted among academics behind college walls, but the broader intellectual and cultural debate exchanged across the city and taking in journalists, independent writers, artists and visitors as well as the local professoriate. Thus, at least in principle, universities are culturally and intellectual integrated into the wider conversation. In this sense at least, by staying in New York I could also remain European." (p. 255)

"Many historians today do indeed regard history as an exercise in applied political polemic. The point is to reveal something about th past that conventional narratives have camouflaged: to correct some misreading of the past, usually in order to engage as parti pris in the present. When this is undertaken with crass shamelessness, I find it depressing. It so obviously betrays the purpose of history, which is to understand the past." (p. 259)

"You cannot teach children American history by saying: it is widely believed that the Civil War was about the abolition of slavery, but ha!--I can assure you that is was really about something else altogether. For the poor little things in the front row are turning to one another and asking: 'What a minute, what's she talking about? What is the Civil War? When did it happen? Who won?'" (p. 266)

"I think that in one form or another, this is challenge facing any serious intellectual today: how to be a consistent universalist. It is not just a simple matter of saying: I believe in rights, freedoms or this or that norm. Because if you believe in people's freedom to choose, but you also believe you know better than others what is good for them, then you face a potential contradiction. How can one as a consistent universalist impose one culture or one set of preferences on another--but how can one decline to do so if one takes one's own values seriously? And even if we allow that this problem could be resolved, how can we be sure that we have avoided other contradictions in a necessarily complex political world/" (p. 290)

"It's a very odd experience for an English person, and I think even more so for a continental European, to come to America and discover the deeply felt national identification of even its most liberal and cosmopolitan citizens--something that is on the whole not the case in Europe. It was once the case that the forms of state-and-nation identification were part of the required civic life....but it's not that they were deeply embedded in what it meant to be a certain national, it's just that they were part of the tradition: like the tartan in Scotland....The American traditions are now so profoundly embedded that it's very hard to distinguish them from what it means to be American: that is why perfectly reasonable American citizens can get genuinely angry when someone fails to salute the flag or sing the anthem. Such sentiments are unknown in contemporary Europe." (p. 302)

"The tendency of mass democracy to produce mediocre politicians is what worries me." (p. 309)

"Today it takes a very considerable degree of ethical self-confidence to say, as people used to as recently as the Watergate era, that such-and-such a person is a bad politician because he lies. Not because he lies as a spokesman for the arms lobby, or the gun lobby, or whatever it might be--but just because he lies....The historical background to this disturbing loss of moral confidence seems to me in large measure the collapse of the old Left, with all its faults, and the attendant ascendency of the soft cultural Left. Thus American liberals feel vaguely uncertain about what exactly the ground is that they stand on when they say that they disapprove of something. We're easier with the problem of good and evil if it is unambiguously located in another time (or place); we're more comfortable saying we don't like witch dunking, or we don't like the Gestapo. But we are not always clear how we should state our opposition to, e.g., female clitorectomies in East Africa--for fear of giving cultural offense. And that hands huge hostages to those (normally but not always on the right) who, in a much cruder way, think they know exactly what's right and wrong, false and real, and so one. And who are willing to say so in a self-assertive, confident way. The problem of ethical insecurity has kneecapped two generations of liberals." (p. 317)

"At what point is it legitimate for a government to simply say that a certain commodity or service is better provided publicly? When is it right to create a natural public monopoly? But since 1980 or so, the question has been posed differently: why should they be any public monopolies? Why should not everything be open to profit? It is that visceral suspicion of any sort of public monopoly in anything that could in principle be rendered private that we live with, or have lived with, for the last twenty-five years. And I don't, by the way, think that it's going to change now because of the overhyped crisis in capitalism that we're passing through now. I think that what we're going to see more is the acceptability if government as regulator--but government as monopolizer of certain kinds of good and services we will not see." (p. 363)

"Like debt, gambling was long frowned upon and mostly banned. It was widely and correctly assumed that gambling led to criminality and was thus a social pathology to be avoided. But of course it was also regarded in a long-standing Christian tradition as wrong in itself: money should not beget money. We would benefit from revisiting that perspective." (p. 367)

"The twentieth century was not necessarily as we have been taught to see it. It was not, or not only, the great battle between democracy and fascism, or communism versus fascism, or left versus right, or freedom versus totalitarianism. My own sense is that for much of the century we were engaged in implicit or explicit debates over the rise of the state. What sort of state did free people want? What were they willing to pay for it and what purposes did they wish it to serve? In the perspective, the great victors of the twentieth century were the nineteenth century liberals whose successors created the welfare state in all its protean forms. They achieved something which, as late as the 1930s, seemed almost inconceivable: they forged strong, high-taxing and actively interventionist democratic and constitutional states which could encompass complex mass societies without resorting to violence or repression. We would be foolish to abandon this heritage carelessly." (p. 386)

Tony Judt, requiescat in pace.

Tuesday, June 04, 2013

Holy Crap, Ayn Rand is Alive and Well and Has an Office at the Wall Street Journal

New York City, the wealthiest and most powerful city in America, cowers in fear and lays helpless before the all-powerful and totalitarian bicycling lobby. Behold the once glorious libertarian paradise that was Gotham! Now, pedestrians and motorists will be occasionally obliged to negotiate around bike-sharing racks! Which are colored blue!! Truly, what a sad, sad day for American freedom.(Via David Watkins.)