What Happens When Parties Can No Longer Be Managed Moderately?

[This is a somewhat expanded version of a piece that appeared in the Wichita Eagle over the weekend; I received an e-mail on Sunday which causes me to think more about what I mean by "moderation," and this is the result.] 

A few weeks after the dust settled from the 2020 elections here in Kansas, I was giving an online presentation on the election results to the local chapter of the League of Women Voters. Many of the virtual participants had good questions, but the most common one was some variation on a question that has been a constant here in Kansas, and elsewhere, for decades now: “Whatever happened to moderate Republicans?” It's a good question, thought obviously not a new one.

That the parties--both following and, not frequently, shaping the voters which support them--have become more polarized over the past generation is well-supported. I think the only people who can honestly say today, as I think could be at least plausibly claimed in the 1990s, that there is "no real difference between the two major parties," are people deeply committed to revolutionary or reactionary causes--everyone else clearly understands that, in both marginal and major ways, elections have consequences. And it follows, therefore, that when you see party positions become less variable and flexible, and more tightly wound around ideological poles distant from each other, that's going to have consequences for governance. It is those consequences--and specifically, in Republican-heavy Kansas, the consequences of the state Republican party having become inhospitable for the moderates and liberals who once found shelter within it--which had my good-government-concerned interlocutors most worried.

Kansas's strongly Republican (and, yes, "conservative," but actually, for reasons of history, it's even more a matter of party than ideology) majority has been in place for many decades. But for a good number of those decades the state Republican party was a fairly crude instrument, one that contained diverse factions, but those factions could be played off one another, allowing for a degree of elite management. I use "management" there purposefully, because that is--for many observers of elections and the processes by which parties serve as the machines which transform, through representative elections, voter preferences into actual legislative and executive action, anyway--exactly what is presumably demanded: managers who, through the judicious orchestration of the mechanics by which voters and candidates produce majorities which can pass bills and enforce laws, do their best to make certain that those majorities are in respectable, balanced, or above all "moderate" ways.

More often than not, those who found themselves in the role of managers were various moderate and liberal Republicans, politicians and donors and strategists who worked hard to connect with--and, by so doing, cultivate--a particular kind of Republican voter. This isn't anything unique; this type of Republican--mostly suburban, mostly college-educated, and mostly committed to the success of their local public schools and other civic organizations--was the backbone of state Republican parties for decades all across the country. These voters (and in Kansas, you found them overwhelmingly in the suburban and exurban communities which surrounded Kansas's cities, and hence the largest numbers of them were found in northwestern Kansas, in and around Kansas city) faithfully supported the GOP, but they also often protected and rewarded those who dissented from any strictly conservative or libertarian ideological line. The result was a consistent majority party that nonetheless remained somewhat flexible, with many elected representatives who tended to move left or right as the times warranted.

Ed Flentje was a long-time Wichita State University professor, a scholar and a gentleman whose place as a regular column writer for Kansas newspapers I had the honor to take over. One of his great themes over the years was to trumpet this historical happenstance in the history of Kansas's political parties as one of the primary virtues of politics in the Sunflower State. We are a state with a decided (more than 2-to-1) Republican majority among voters, thus providing stability and predictability. At the same time, this Republican majority was divided enough between moderates and conservatives that a crucial number of its elected representatives could, from one issue to the next, ally with the minority Democrats or with the more conservative part of the Republican majority in the legislature, thus allowing the party to adapt, innovate, and pursue good government policies, even progressive ones on occasion. This is, Flentje strongly implies, the best of both wolds: consistent Republican party leadership, but a Republican party that regularly had moderates like Dick Bond and Bill Graves and Jean Schodorf leading the way. So thorough was the managing power of this party faction over the decades that the representatives elected by strongly conservative voters--whom, in the wake of the Summer of Mercy and the movement of Wichita, Kansas's largest city, to the right, probably constituted the majority of Kansas Republicans--were themselves seen as the small, trouble-making faction: "Republican rebels" who messed with the state party's commitment to be "the party of government," as Burdett Loomis, another long-time observer of Kansas politics, once put it.

In the introduction to a recent collection of his newspaper writings, Flentje remains confident that the patterns he often defended still hold. The collection includes ten years of columns which follow the path of Sam Brownback as he thoroughly remade the Kansas Republican party, driving out moderates in political primaries throughout his first term as government, and embarking on a fiscal revolution that had terrible consequences for our state. Though the “Brownback Revolution” took the Kansas Republican party, and thus the state government, in what he recognizes as an immoderately right-ward direction for a time, he sees that as a historical aberration, and believes the moderate Republican faction--who were essential to Governor Laura Kelly’s election in 2018--will continue to provide balance. He says this, while noting at the same time that he writes as one who is almost certainly a "RINO" (Republican In Name Only) in the eyes of many of his fellow Kansas Republicans, and also noting that moderates need to do their job as managers of the center of the party better ("grassroots politics will require tending" is his observation). Nonetheless, his commitment to the value of elite party management, of working to promote and fund campaigns and narratives which will put moderate Republicans in a deal-making, compromise-finding position, remains firm.

I don't dispute the value of Flentje's determination, given the convoluted ways that we have historically gotten our nation-wide, representative, two-party system we have. The United States was filled with various informal state-based party arrangements which functioned in mostly moderate ways--even though that regularly involved the exclusion of small segments of the local electorate--throughout the 20th century. But those arrangements may no longer hold. The 2020 election delivered a Republican majority to the Kansas House almost exactly the same as the one which existed when Sam Brownback was first elected governor a decade ago, and that similarly defiant, un-moderate, Trump-centric campaigns led to Republican wins in Congress and state legislatures across the nation, perhaps it is the rather election of Kelly two-years ago, an election made possible by Republican crossing over to vote a Democrat, that will someday be seen as an aberration here in Kansas from the new, 21st-century style of party politics.

What is that style? It is, most of all, a nationalized one. Regional variations that once characterized American politics are dying out. Flentje and others long presumed that state parties were capable of local adaptation, and continued to believe so--as recently as 2014, despite the changes which the Tea Party had by then spent carrying out (some would say "hollowing out") with the national Republican party, Flentje still suggested that Kansas Democrats take a page from the playbook of Democratic Kansas Governor Bob Docking and explicitly rebuke the national party, signing off on the winning strategy of tying his re-election in 1972 to Richard Nixon's. This year, Kansas Democratic senate candidate Barbara Bollier's similar strategy, which included explicitly highlighting voters who intended to vote for her and President Trump, obviously didn't work nearly so well.

The nationalization of American politics has many sources. There is growing congressional dysfunction, the result of campaign finance rules and the way in which ideologically committed interest groups have captured political primaries, which has allowed (or even encouraged) presidents, our only nationally elected figure, to claim, as a matter of necessity, more and more executive power. There is the growing homogeneity and finance-centered character of the America's service economy, with powerful corporations, increasingly distanced from the variable work of actual production (since natural resources from which things can be produced naturally vary around the globe), imposing a kind of accidental uniformity of interests which makes ideology much more appealing way of eliciting voters' attention than traditional political log-rolling. But today, in particular, I think of my old friend Damon Linker's recent--and excellent--two-part essay on how media technologies are turning the tools by which party elites once kept populist extremes at bay against those same managers. His conclusion to the first part is striking:

[This is] what social media does: It allows for the constructing of identities and the cultivation of resentments in a virtual space among likeminded people separated by vast distances in the physical world. Instead of [James] Madison's highly differentiated republic of discrete communities with their own regional, factional interests--or the kind of slow-motion grassroots organizing we saw in the real world during the mid-20th century--we have new forms of rapid-fire, technologically facilitated solidarity among tens of millions of Americans separated by hundreds or thousands of miles but united by a sense of shared grievance and a commitment to lashing out against its sources, real and imagined.

In short, in a centralizing world of instantaneous communication, ideological slights and crusades, whether real or perceived, can amass a movement overnight--and apparently many voters, fearful of being represented by their ideological opponents (or so their news feeds depict them), follow along. Party leaders and donors are, predictably, sensitive to this, start operating on the basis of it, and perhaps are even happy to do so. Why would that be? Obviously, people whose political preferences cannot be easily packaged in a particular ideological construct are frustrated: their swing-vote tendencies are making them less and less important, particularly in states like Kansas, where one-party dominance is mostly unquestioned. But it's not unreasonable to suppose that a good many people in those areas of local dominance have long chafed at the management they've experienced, and wanted real contestation to take its place. The fact that the breaking of this state-specific Republican status quo was primarily due to national, to say nothing to global, movements and technologies is a frustrating irony for believers in participatory and local democracy like myself. Still, unlike some, I can't pretend that I see the eclipse of the cult of anti-populist moderation as entirely bad thing. Bad for Kansas state policies, its taxes and programs and civil society? Absolutely! But bad for Kansas's democratic health? There, I think I mostly agree with Ezra Klein, who draws upon research showing the degree of ideological and historical randomness out of which the label "moderate" emerges, and concludes that frequently the moderate label is "little more than a tool the establishment uses to set limits on the range of acceptable debate." In this jerry-rigged national political system we call our constitutional order, the conviction that there is something fundamentally wrong or illegitimate with ideologically unified and disciplined parties--if that is, in fact, the direction we're going--seems a step too far, to me.

Of course, 2020 was just one election. Who knows how the Republican party will evolve once Trump, whose constant Twitter declarations overwhelmed potential intra-party factions, is out of the White House? There's no good reason to believe that we'll see a complete return to some idealized 20th-century American "normal," but it may that at least a couple surviving moderate Republicans up in the northwest corner of Kansas may find themselves not quite so pressured to either abandon or conform to their party. Still, that's a slim possibility at best. More likely, we here in Kansas may need to start assuming that nationalized, polarized, and deeply divided parties are all we have for turning voter preferences into successful public policies.

That isn’t necessarily impossible; parliamentary democracies, with their “loyal opposition” and “shadow governments,” do it all the time. But that, obviously, involves a great deal of structural adaptation, the sort of thing that would have to emerge over time as parties confront more directly their paralyzed reality, and slowly shake off the deeply ingrained belief that "one more election" could make the difference in squelching their intra-party opponents. How to create such governing forms in Republican-heavy Kansas, however, where deal-making moderates were so central to the whole idea of good government for so long, is far from clear. So I guess I'd just conclude with this, speaking hypothetically here to those who asked me where the moderate Republicans had gone. Let's say times have changed, technology has changed, funding has changed, and that for all those reasons the times wherein moderate voters would regularly send a sufficient number of dissenters and adapters to Topeka under the Republican party, such as would necessitate compromise, are at an end. Figuring out how to enable our state government to work as it once did without that party crutch has to be job number one.

Presidents' Day Questions for Ralph Hancock

[Cross-posted to By Common Consent]

Ralph Hancock, a political theorist at Brigham Young University, is a fairly notorious figure in certain tiny Mormon slivers of the internet, which I happen to partake of regularly. I never took a class from him when I was a student at BYU, but I've interacted with him, in person and online, dozens of times over the decades; we're friendly, if not necessarily good friends. Recently, Hancock made waves with a piece he published in Utah's Deseret News (a Mormon Church-owned newspaper), arguing, in reference to the recent impeachment vote, that Utah Republican Senator Mike Lee, who voted, along with every other Republican save one, to find President Trump not guilty of the impeachment charges, had acted like a true statesman; Mitt Romney, the only Republican senator to voted to convict Trump, had not. This is a position I disagree with, to no one's surprise. So this President's Day, I'd like to pose some questions for Ralph--not with any illusion that anyone's mind will be changed by voicing such questions, but because I honestly want to understand just what it is he's claiming about American statesmanship circa 2020, and why.

Ralph's short piece spends most of its length setting up a philosophical argument regarding the place and the nature of partisanship in our odd political moment, in which we (or, depending on what kind of right-wing or left-wing critique of American voting practices you prefer, "we" in scare quotes) govern ourselves through a pluralistic democratic arrangement wherein certain civic republican ideals and standards are nonetheless at least ritually given a place (the senators taking an oath to judge impartially, and not in accordance with political pressures, during an impeachment trial, for example). Ralph thinks Romney's speech explaining his impeachment vote demonstrates a poor understanding of the place of partisanship today, thus making his appeals to conscience and ethical and religious principles an annoying distraction. (He's made this argument similar to this about Romney before, charging him with failing to recognize that the "foundation" of civic virtues like "decency" and "civility"--which Romney condemned Trump for lacking, as he obviously does--are more "vulgar" virtues like "courage and loyalty," which Trump, in Ralph's view, has plenty of.) The key paragraph in this section, I think, is this one:

To take political responsibility is to reckon with the inevitable fact of partisanship. Anyone really interested in making a difference for the better for our country must recognize the need to have political friends and to beware of enemies. To recognize the reality of allies and adversaries is not to debase political action but simply to reckon with the actual partisan situation. The question is whether Sen. Romney has frivolously spent his political capital (in Utah, especially) or wisely traded it in order to make some powerful new friends in the national political arena....[I]t is hard not to question the otherworldly “profile in courage” of a political gesture that results in immediate celebrity among the great and powerful, if not among the more vulgar in Washington or in Utah.

I'd like to understand whether Ralph, who has insisted multiple times over the years that he is a strong advocate for "original constitutionalism," sees this as a necessary correction to Madison's (I agree flawed, but important and admirable all the same) claim that a properly constituted "extended republic" could effectively sideline the problem of parties (or "factions," as he put it), or whether he actually does hold with Madison, and instead simply believes that "reality of...the actual partisan situation" today requires fighting fire with fire. I'd love to learn it was the former, and thus be able to count Ralph, whatever our other political disagreements, as an advocate for pushing our system in a parliamentary direction wherein partisan divides are treated more honestly and responsibly. My suspicion, however, is that it's the latter, in which case the long theoretical case he makes in the first four paragraphs seems like so much throat-clearing.

Either way, the meat of condemnation of Romney's vote, and his praise of Lee's, comes immediately after this:

Senator Lee deftly framed his decision in the context of the larger partisan conflict over the design and purpose of our constitutional republic. For decades...progressives have worked to overcome the limitations of federalism and the separation of powers by transferring more and more power to unelected “experts” forming a virtual fourth branch of government, the bureaucracy. Trump’s alleged constitutional offense, from the standpoint of progressive or “living” constitutionalism, consists precisely in overriding the authority of expert bodies or the prevailing “inter-agency consensus.” Lee is a frank partisan of the original Constitution and a critique of its progressive reinterpretation. True solicitude for the constitution thus dictates, he concludes, not righteous indignation at the president’s use of executive power, but the defense of his Article II powers against the increasing arrogance of the fourth branch.

I would really like to understand better some of the assumptions Ralph is making here--assumptions which operate, I should note, without ever mentioning any details of the allegations about President Trump made in the articles of impeachment, thus obliging readers of Ralph's column to assume that the truth or falsehood of those allegations is irrelevant. Leaving entirely aside larger historical and theoretical debates over constitutional interpretation and the definition of "progressivism" being used here, the crucial leap I see here is the idea that the "experts" who expressed the "inter-agency consensus" against Trump's bribing or threatening or pushing of President Zelensky (presumably this is a reference to the testimony of Ambassador Gordon Sondland, Ambassador Marie Yovanovitch, Lt. Col. Alexander Vidman, and multiple others), actually constitute a unified body that seeks to operate as a "fourth branch of government," outside of the will of the executive or legislative branches That these individuals and others were actually operating within the reach of the executive branch--hence Trump's ability to fire them--complicates this assumption somewhat, especially in light of the centrality which Ralph grants to partisanship as a necessity of proper statesmanship.

While it is true that conservative stereotype of the progressive interpretation of the U.S. Constitution has involved the progressive empowerment of various agencies, boards, and other institutions within the executive branch, I have never heard it said that President Woodrow Wilson or other progressive bogeymen of the conservative imagination were empowering such agencies in order to limit presidential discretion by way of "expert consensus." On the contrary, the conservative knock against them has long been that these agencies and experts centralized power in the office of the presidency. So in what way, exactly, can executive appointees hypothetically undermining the actions of a president via expressing their critical judgment against him in impeachment testimony be understood as following through on a progressive agenda to centralize power?

I think I can imagine one way, but only one. If Ralph is a complete adherent to the theory of presidential power laid out by Attorney General William Barr, then presidential power must be understood as something that belongs not to the executive branch, but to a single person, wholly and entirely. The executive branch, under this (I think frankly ahistorical, and others agree) interpretation, then the people around the president must be understood as his partisan tools, nothing more or less. Thus, any Republican appointee of President Trump who dissents from or really is just in any way critical of Trump's actions has failed to follow their partisan role within the constitutional structure of the executive branch, and must be understood as acting independently, in alignment with those progressive forces, hiding behind their civil service protections, acting as an unelected, undemocratic force.

If this is correct, then Ralph is arguing--or at least as best as I can construct the argument--that if ours is to be a responsible constitutional democracy, it must firmly resist any kind of intra-party dissent within the executive branch, because absolute partisan unity is central to the executive (that is, the President of the United States) governing--including, I suppose, making phone calls--the way he or she chooses to, and giving the presidency wide freedom in what they choose to do holds off or at least hampers the development of an elite body of undemocratic, unelected others.  Hence, Lee is acting a statesman in voting in support of the president, and Romney, invoking an "impartial" ideal to justify his vote against the president which fails to reckon with the necessity of an executive being free from push-back from his own partisan tools, is not. Have I got this right, Ralph?

I think there are huge historical and theoretical problems with this, and I say that as someone who is entirely willing to dump on Madison, praise parliamentarianism, and join in rolling my eyes at obviously partisan individuals and organizations cloaking what they do in civic republican language. But that's not what Ralph has done here; I think he's made a different kind argument, one that I would really like to understand better, because not only does it not seem to fit the "original constitutionalism" Ralph has so long praised, but it doesn't even seem to entirely fit the conservative complaint against progressivism which so many adherents of "original constitutionalism" have long put forward. Yes, I know; Occam's Razor suggests that Ralph doesn't actually believe any of this; that's it's all motivated reasoning, same as my response, and that his column and my response here is all just so many pointless words tossed around. But noentheless I'd love to be humored, at least a little bit. Ideally I'd love to hear from Ralph himself, but if anyone would like to explain to me what I've misunderstood about his claims, I can't think of a better way to honor Presidents' Day than to argue about it all.

Ten Moderately Short, and Only Moderately Philosophical, Theses on Voting

1) I don't think there is a duty to vote, and I wouldn't support compulsory voting, even if that was a political possibility in this country. I probably was tempted by that idea back when my fundamentally communitarian intellectual orientation and sympathies were more civic republican than localist/anarchist/radical democratic, but I'm not inclined to think that way now.

2) I do think voting is responsibility though. The difference, I suppose, is that duty, to my mind, implies being part of community or organization which, because it is constitutive of who one is, compels one, by virtue of one's own identity with it, to support any or all of the operations of the community or organization, whereas a responsibility implies something more relational: that I am obligated, by affection and attachment, to take those actions which most fully reflect and incorporate my connection to all the other members (and all the other interests of all the other members) of said community or organization.

3) That doesn't mean I reject the idea that one's formal citizenship or civic identity is constitutive of who one is; I just don't believe it is comprehensively constitutive of who one is. Which is another way of saying I'm a liberal communitarian: connections to, and dependencies upon, the whole come first, both psychologically and anthropologically, but connections to the whole are always--or at least invariably, so long as we live under conditions of modernity--to be realized through the subjectivity of the individual. (For anyone who has bothered to read my ruminations over the years, this philosophical determination to see the deep communal grounding of our moral existence realized through individual expression is hardly new; I just keep evolving, I suppose, in terms of how I articulate it politically.)

4) In terms of the present articulation, it means, I think, that voting is a way of showing responsibility towards and connection to one's fellow human being--but so can not voting, under certain circumstances.

5) Those circumstances exist but are, I believe, very rarely defensible at the present moment in the United States of America.

6) Yes, I happily concur that our current winner-take-all, single-member-plurality voting structure, operating in its gerrymandered districts which both reflect and entrench sociological polarization, dominated by often internally rigged political parties, and funded in ways that almost always effectively marginalize anything except elite political preferences, presents few ways of expressing our responsibility to one another. We would be far, far, far better off--despite all of the foregoing's own particular flaws--with a) parliamentary government with general legislative supremacy (and thus providing for greater vote accountability), b) a tightly regulated and limited election season (and thus preventing the sort of electoral exhaustion which empowers those with the financial resources to outlast the attention of ordinary working people), c) a broad awareness that moneyed interests can influence the electoral process in ways which effectively deny equal representative opportunities to all (and thus obliging that we overturn the horrible Buckley v. Valeo and all the Supreme Court decisions which built upon its flawed individualistic premises), d) proportional voting (and thus allowing for a greater range of the populace to have actually electorally effective reasons to organize on behalf of their ideas), and e) significant decentralization, regionalization, and municipal empowerment (though admittedly the point of this last one has already long been greatly compromised by the leveling and centralizing consequences of global capitalism, but that would involve a whole different set of theses). Since we don't have any of the above, I can sympathize with people who think there's no point in voting.

7) But all that said, the fact remains that the two dominant parties in our kludgy, oft-dysfunctional, but still-standing-and-operating governing system nonetheless do represent actual substantive differences in political priorities and, therefore, often actual substantive differences in policy outcomes. And so if you believe either one of those sets of outcomes could even just theoretically involve even something as little as doing marginally less harm to those to whom you have a responsibility, then you really ought to express that choice through voting for the candidates of the party in question. (And moreover, if you happen to believe there actually is no substantive difference between the stated political priorities and the hoped-for policy outcomes of the different parties, then I would respectfully suggest that you are either terribly misinformed or marvelously uninformed about the parties and candidates in question.)

8) Obviously, given the realities of local, state, and national political structures and calculations, the foregoing is subject to whatever contextual considerations might come into play in any given electoral contest. Lack of local knowledge is a problem, as is lack of real choice. The first can be blamed on our unfortunately nationalized (and usually starved to the bone) local media ecosystems, but is still, I insist, something that can be rectified by being individually willing enough to follow through on our responsibility to our fellow community members by learning more about whom are presenting themselves as their representatives, and why. The second could be a function of understanding one's responsibility, quite legitimately, as overwhelmingly tied to a single policy issue or deep structural concern, and not seeing any way as a voter to express that responsibility through the available candidates. To which I can only say: perhaps consider rethinking your conception of how to express your responsibility to your fellow members--and if that doesn't change anything, then do the best you can with the choices available, using whatever creative options are available to legally expand those choices where you can, all while balancing those considerations in light of the aforementioned consequences. (As a two-time Ralph Nader voting, one-time Jill Stein-voting, one-time Bernie Sanders write-in-voting citizen, I would be a hypocrite if I claimed otherwise.) But either way, take up your responsibility, and stand, either strategically or expressively or some calculated combination of both, for whatever your responsibility to others morally obliges you to use our tottering system to, at the very least, publicly affirm, and vote.

9) The only exception I can see to the foregoing is if you understand your responsibility to others as demanding the promotion of radical, even revolutionary, alternatives, and that which any participation in the present, deeply problematic but still meaningful-in-terms-of-causing-or-mitigating-costs-and-harms system actually interferes with that promotion. I know and like people who affirm that they find themselves in such circumstances, and I don't dismiss their sincerity. However, I confess that I've personally never yet heard from any of them what I consider to be a persuasive argument that participating in a flawed process necessarily excludes or limits participation in the business of building radical, even revolutionary, alternatives to said process. If you have one, please, lay it on me. Maybe there's some new form of Marxist accelerationism or Christian end-times promotion that I haven't heard about yet.

10) In the meantime, watch this. And also, you have less than seven hours left to vote here in Kansas, so get busy, dammit.

Obama, Immigration, and Why I am Not (Much of) a Constitutionalist

So, if you haven't seen the SNL video which this image comes from, go watch it here right now. I'll wait.

It's a simplistic and unfair--what did you expect? it's Saturday Night Live!--depiction of the debate over President Obama's executive order on immigration last week, but it gets the heart of the whole legal and political argument. Executive orders have been around as long as the American presidents have, but as our national government has increasingly broken down and executive orders have--predictably--grown in size and scope to fill the gap, more and more people have paid critical attention to the way they allow presidents to, in essence if not in actually, make law. Regarding Obama's order, plenty of people's opinions are quite clear: the president has crossed a Rubicon and become "an elected Caesar, a Cheney for liberalism, a president unbound." Do I disagree? Partly, but only partly; I really do think his action, however beneficial on its merits or legal on the basis of relevant statutes, was unconstitutional--or at the very least, involved what I called elsewhere "a rather, shall we say, impressive expansion of presidential authority."

My comments sparked a fair amount of debate on my own blog and, particularly, following a very thoughtful and critical post by my friend David Watkins. To respond, let me try to explain myself more clearly by way of a few key questions:

1) What is the difference between constitutionality and legality, and do I think one is prior to the other?
2) What does procedural traditions, norms, and precedents have to do with either of those?
3) What specific norms do I think Obama's action violated, in light of the actually existing history of executive orders?
4) Isn't it irresponsible to toss around terms like "unconstitutional" in our current political climate anyway?

So let me try to work some of these out, beginning with the first two put together:

1 & 2) "Constitutionalism" is usually used to denote the idea that those individuals and entities in possession of governmental authority are circumscribed in their use of governmental power by and agreed upon rule of law. In the American case, the rule of law is--for most citizens anyway--understood as very much bound up with the idea of popular sovereignty, so much so that it becomes easy for most Americans to identify the U.S. Constitution, as supposedly that which provides the means by which the will of the people, with the rule of law itself. Obviously there are some who disagree; for example, a small but not insignificant minority of Americans see the Constitution as properly reflecting the rule of law in a Biblical or explicitly Christian sense. But either way, the assumption is usually that constitutions are a function of the rule of law. I disagree. As David noted in his post, the idea of law itself is an "essentially contested concept"; I would say the same for constitutionalism, which I see as rather distinct from, and likely actually parasitic upon the idea of law. My guiding lights here are such radical democratic--and Arendtian--political theorists as Hannah Pitkin, Melissa Williams, Douglas Lummis, and especially Sheldon Wolin. For all of these folks, to one degree or another, a close study of the history of constitutions--both American and otherwise--seems to suggest that the last thing they involve is a concern with what David called "the interactions of the different parts of government with the governed," and instead focus overwhelmingly on establishing preventative rules so as to protect individuals and property from invasive government action. Here's Wolin:

Stated simply, American thinkers conceived a constitution primarily in terms of legal limits and procedural requirements for a selected set of institutions which were then identified as "government" and declared to be formally separated from social institutions of class, status, religion, and economy. Ideologically, the formal separation was justified on liberal grounds; that is, it promoted political equality, toleration, and private rights, especially those of property....

[A constitution] becomes one only when it is put into practice. Practices consist, first, in offices that designate the location of authority and, second, procedures or formalities that legitimate the exercise of power. There is, however, more to "high offices." They are publicly visible, and those who hold them not only are said to discharge an office's responsibilities but also to perform the office. High political office is a symbolic per(form)ance. Those who hold them are expected to display public virtues and to preserve public formalities. The authority of [constitutional] office is, therefore, both a right to power and a rite of power....

Modern constitutionalism, from Hobbes and Locke to Rawls and Nozick, has developed its notions of citizenship almost exclusively through the language of contract. Although that tradition of political argument puts great stock in the notion of "performance," what it means by performances is the virtual opposite of its political-cultural meaning. To perform a contract is to complete it....It is not a question of special skills but of knowing what a promise is and then of discharging it. (Wolin, The Presence of the Past [1989], pp. 13, 85)

So what do I take from all that? I conclude that whatever the popular imagination invests in our Constitution, in function what it really does is serve to discipline the democratic wishes of the American people so that their expectations that their rights and property will be protected depend upon the procedural performance of those invested with high office. David makes use the arguments of political philosopher Jeremy Waldron to claim that the law, as something which is both knowable and reliable, is empowering of the freedom of citizens, and I don't dispute that reading at all (as David knows, I'm quite a fan of Waldron). But I think it's beside the point. When we speak of "unconstitutional acts," we're invariably speaking of whether or not someone in high office has performed an act in such a way as to show that she or he has respected the distinct and limited (and limiting!) terms of our supposed contract with them.

I don't think speaking in that way is itself a bad thing; on the contrary, I recognize that constitutionalism, as the above makes clear, has historically been an enormously powerful tool in promoting the liberal imagination and providing substance to basic individual rights and protections. But I don't think it's the only such tool available to us in the history of political thought; I think fundamental guarantees of personal liberty can be realized just as well in more parliamentary or populists contexts--and with the added advantage that such "uncodified" governing frameworks are far less likely to get caught up in myths about the rule of law and the will of the people than is the case with our founding document. However, for better or worse that's not the regime which we have--despite changes in party, electoral, and legislative structures pushing us in those more democratic directions, we are still governed by a constitutional framework, with all its attendant expectations. To insist, in opposition to the logic contained within this conceptual package, that an action which is allowable within existing statutes but which is performed in a way that violates symbolic precedents and procedural norms which that come to be assumed over the passage of time must nonetheless be defended as "constitutional" is to, I think, work against the grain which shapes the whole appeal of constitutionalism for many in the first place. It seems to me, to the contrary of this position, that it is entirely possible (indeed important, stuck as we unfortunately are with our present system of government) to insist that an action can be both legal and unconstitutional. That is it may, on the one hand, fulfill our democratic concept of law--as in this case, by making the administration of immigration policy more knowable and reliable, lessening its ambiguity and increasing the policy's clarity and match to widely recognized preferences--but also, on the other hand, show disrespect for (admittedly, always evolving) informal expectations and procedural rites that, however frivolous they may seem to those in favor of the administrative improvement, are nonetheless entirely a piece in the way both parties employ (and have always employed) the rhetoric of "unconstitutionality."

3) So, having written at length about procedural rites, symbolic precedents, and other stuff which many commenters dismissed as so much "woo," let's get to brass tacks: what is it that makes this particular executive order such an impressive and challenging leap in administrative authority? The simple fact that it was taken in wake of a midterm election where President Obama's party suffered numerous defeats, and in the face of fierce (and, let it said, essentially incoherent) opposition from the party which will take control of Congress in less than two months' time. Yes, of course I know we don't have a parliamentary system and that the president's executive authority stands independent of Congress; and yes, I also know that Congress has been abandoning its legislative responsibility for decades. Still, like it or not, the contorted fiction we tell ourselves about the will of the people has created assumptions about what we mean when we speak of something being "constitutional" or not. To make use of a common example which many who have supported Obama have invoked--when President Reagan and the first President Bush ordered extensive administrative changes (though, it must be said, not as extensive as Obama's) to just who was and was not going to be subject to America's immigration law in 1987 and 1990, it was following immediately in the footsteps of the 1986 comprehensive immigration reform passed by Congress and signed by the president. And so it goes back through history, or at least 20th-century history (the Civil War is obvious a pretty unique and precedent-setting case on its own): the president is presumed to be able to responsibly take direct executive action, however outrageous (and President Roosevelt's orders, for example, were often very outrageous), in conformity with recent popular, political, and/or partisan support. This isn't a democratic defense of those executive orders, but simply an observation that I think is indisputable: whatever theories we employs to shape our conceptions of government, our regime--like many other constitutional democratic regimes--our quick to swallow abuses of constitutional limits if they are done in a way which conforms with symbolic representations of the people's supposed will. (Does this mean that I think that the push-back against Obama would have been less if he'd taken this executive action before the election, or ideally immediately after the last failed attempt by Senate Democrats to get House Republicans to allow a vote? I certainly do.)

4) Finally, about the appropriateness of this kind of language: shouldn't those of us who are critical of the president's action, but supportive of its administrative consequences (and even, in my case at least, supportive of its legality) stop using the term "unconstitutional," since that is just red meat for the president's opponents? Perhaps...but then again, how can we make our point otherwise? We've seen a major executive reach into the administration of our immigration laws, done on the authority of one man and one man alone. That's not good for democratic self-government. Those kind of administrative invasions into the substance of our laws can be made acceptable and legitimate, if our governing institutions reflected the contesting interests of the voting population in a more populist or parliamentarian manner. But as we don't have those kind of institutions, those who dislike legislative overreach--even if legal!--have to content themselves with falling back on the ritual language of "unconstitutionality." That is, Obama certainly isn't a tyrant in any substantive sense (yes, I was engaging in hyperbole), but he's been forced and/or incentivized into disregarding constitutional norms, however flaky the relationship of those norms to democracy actually are, and those flaky traditions are one of the main controls we have left. Should Obama be able to point to the fact that, in regards to immigration at least, Congress has become far more dysfunctional, and the parties far more uncompromising and therefore legislatively incapable, than was the case 25 years ago? I absolutely think so. But, given the norms we have, I think he should also be obliged to recognize the legitimacy of those who say what he has done as unconstitutional, if only to press the case that, given how our electoral and party systems are ruining their own ability to govern, it was inevitable that unconstitutionality would increasingly become a norm for presidents, if it hasn't already.

Happy Constitution Day! Now Go and Read This

When I was an undergraduate studying international relations and political philosophy back in the early, circa 1990-1993, Francis Fukuyama was huge. His 1989 essay "The End of History" (later expanded into a book) was essential reading. I'm pretty certain I never bought into his Hegelian interpretation of the history of liberal democracy, and in later years I found his apologetic balancing act regarding the Iraq War discomforting familiar to my own unfortunate trajectory. Still, I've always found him worth reading, particularly his reflections on Confucianism, social development, and civic trust. And thus it was with great interest when Damon Linker pointed his readers to this morning to this rather despairing essay by Fukuyama. Drawing on his latest work on the decay of political institutions, he apparently has just one basic thing to say to his fellow American citizens: might as give up.

Okay, maybe his doesn't quite go that far. But when you end a lengthy and detailed article, summarizing much political science research with numerous well chosen examples (though my friend David Salmanson is perhaps rightly complaining to me via e-mail about Fukuyama's treatment of the U.S. Forest Service), with "The depressing bottom line is that given how self-reinforcing the country’s political malaise is, and how unlikely the prospects for constructive incremental reform are, the decay of American politics will probably continue until some external shock comes along to catalyze a true reform coalition and galvanize it into action," the headline of Damon's column--"America is Doomed!"--seems justified. Given my rather odd and radical mix of political preferences--Christian socialism, local community, populist economics, a decentralized and quasi-anarchic egalitarianism, etc.--it's not surprising that I'm quite open to root-and-branch condemnations of the liberal constitutionalism which defines our political order (though it was really only within that past few years that my despair with our particular approach to democratic government really began to flourish), and I recognize that general narratives of decline are a dime-a-dozen and deserve to be treated skeptically. Still, I think overall Fukuyama has thoughtfully and measuredly nailed our institutionally decay. Perhaps there is much more that could be said about the civic, moral, and structural roots of that decay, but in terms of proximate causes, it really is, as Damon commented to me, a tour-de-force.

So, in other words, you all should read it, and think about it. To whet your appetites (or perhaps to serve the needs of those who are curious but don't have a spare half-hour or so), let me summarize some of his main points by reconstructing them in a step-by-step, historical fashion:

1) The constitutional arrangement of the United States ended up--in part by building guarantees of individual rights, guarantees which came to be the interpretive prerogative of the judicial branch, into our fundamental law right from the beginning--enabling (or, at least, given the ideological backwash of the Revolution, legitimizing) a rise in a demand for political and economic democracy long before an administrative state capable of delivering of the democratic wishes of the people was established.

2) Consequently, through the 19th century political parties became the primarily deliverer of democratically demanded prizes--and as the country grew in size and complexity, this political and economic patronage became increasing corrupt, with locally elected representatives and locally elected or appointed judges enjoying enormous patronage resources.

3) The Progressive era was thus much more than simply cleaning up and regulating political parties and elections; it was also creating a set of expectations for administrative agencies--ones that reflected a late 19th-century/early 20th-century devotion to science and organization--that presented them as capable bearers of the public trust distinct from the buying and patronizing of political influence. Ideally, while these agencies would be subject to ultimate legislative (and thus democratic) oversight, they would be kept free from invasive and debilitating interest group interference.

4) Unfortunately, over the long haul, both our particular (separation of powers) constitutional arrangement and our particular (first-past-the-post) electoral system made it in the interest of elected representatives to seek the support of specific interest groups beyond the official agenda of their parties, and our individualism pushed against the regulations that had prevented the development of a hugely expensive campaign finance system which made such support necessary for the success of any individual politician. The combination of these made the ability of administrative agencies to remain free from the legislative veto-points that proliferated in our federal government--or even the desire of those working in said agencies to stay above them--rather negligible.

5) As a result, the judiciary became increasingly responsible for, and then eventually invested in, resolving disputes and issuing rules to patch over both the inability or unwillingness of our legislative bodies to effectively act on political consensus, and the incoherence of the dictates handed out to administrative agencies by a divided and interfering legislature. An executive which regularly took up authority that the legislative branch couldn't or wouldn't make use of, and issued executive orders which often tested the boundaries of its enumerated powers, giving the legislature and interest groups additional things to fight about, didn't help.

6) All this, of course, decreased the trust in and prestige of government, meaning that increasingly the purported meritocracy of the civil service didn't work, as the best and the brightest went elsewhere.

7) Lather, rinse, repeat. Or, as Fukuyama writes near his conclusion:

[T]he United States is trapped by its political institutions. Because Americans distrust government, they are generally unwilling to delegate to it the authority to make decisions, as happens in other democracies. Instead, Congress mandates complex rules that reduce the government’s autonomy and cause decision-making to be slow and expensive. The government then doesn’t perform well, which confirms people’s lack of trust in it. Under these circumstances, they are reluctant to pay higher taxes, which they feel the government will simply waste. But without appropriate  resources, the government can’t function properly, again creating a self-fulfilling prophecy.

How to get out of this? I don't know. Some aim to overturn Citizens United and re-install some strong limits on the ability of powerful individuals and corporations to dictate where the incentives governing the decisions of our elected representatives lie. But frankly, I have little hope for that. But assuming that or some other such reform does work, what would keep the whole process from simply starting up again? Probably, I think, it would have to involve creating a more parliamentary set of institutions, meaning a wholesale change in our Constitution. Again, not something I'm holding our much hope for. See what I mean about despair?

Defunding and Democratic Despair, Again

[Cross-posted to Political Context]

Well, we know where the New York Daily News stands today in regards to the current government debacle. As for me, well, I'm afraid I find myself thinking pretty much the exact same thing I thought back in 2011, the last time that the electoral structures which produce the incentives that give us the Congress (and, particularly, the Republican side of the House of Representatives) we currently have resulted in a series of pointless acts of gamesmanship that left our government unable to get anything as basic as paying for the services which the government has already approved done. Here's how I put it then:

This whole debate strikes me as having been taken over by two utterly maddening realities. First, there is a contorted and self-serving reading of the fiduciary responsibilities which the federal government is granted under that Constitution which is, from what appears to me to be any kind of sound accounting perspective, absolutely bonkers. Second, there is a game of political chicken driven by the mutual incomprehension possessed by two entirely distinct types of parties: the first, the one led by President Obama, being a historically normal American political party, with all its usual problems and dynamics, while the second, the one being led by Speaker of the House Boehner (if he is really in control, which ultimately may not be the case; some Republicans may simply have gotten to the point where they lack "the emotional capacity to accept any bargain that isn't a humiliation for Obama") that has apparently committed itself to an fiscal ideology that is, at the very best, seriously half-baked.

Of course, things aren't exactly the same as they were two years and two months ago, so perhaps I should amend the above sentiments a little bit. I'll try to keep myself to two points:

1) Speaker Boehner, it is more obvious than ever, absolutely is not in control of his own party, or his own branch of Congress; certainly he's in even less control than he was in 2011. I'll admit that the hand he's been dealt is a lousy one. After all, the government in Washington DC has not been able to come up with an actual budget since 2009 (or maybe, depending on how you define these things, 1997), and so with a government operating solely off continuing resolutions and various stopgap spending bills, it's not at all difficult to imagine that certain impassioned, Affordable-Care-Act-and-President-Obama-hating radicals (mostly associated with the Tea Party) could see this as good a moment as any to whip the Republican majority into refusing to vote on the Senate's multiple spending bills, and instead keep sending the Senate resolutions that offer to keep the government paying its bills for a year, or for 60 days, or for something, along as not a dime is spent on the Affordable Care Act. Which, of course, is impossible, because like Social Security (which, thankfully, will go forward during the government shutdown, unlike national parks and the Centers of Disease Control and salaries for our diplomats and State Department employees, etc.), the funding is fully protected by law. So, yes, I feel sympathy for him--but not too much. Because he could do the responsible thing: accept any one of the Senate compromises which have been sent his way in recent days (all of which are essentially austerity budgets, as they all have included dramatic cuts in the the levels of government spending from what President Obama and the Senate Democratic majority originally wanted), chuck the nonsense Hastert Rule, allow the non-Tea-Party-addled Republicans to vote along with the 200 Democratic members of the House, and thereby allow the damn government to pay for what it has already approved paying for. But of course, it is almost assuredly the case that Boehner's political self-preservation (like most of the rest of House, but particularly those diving overboard in the name of venting their spleen against a health care law they hate, he has managed to gerrymander himself into a conservative and white and wealthy enough Congressional district that more votes are likely to be won by ideological grandstanding than actual governing) will trump any such concerns over the common good.

2) During an earlier era of governing paralysis--the Clinton/Gingrich wars of the mid-1990s--the political theorist Sheldon Wolin made some important observations in an essay for The Nation, "Democracy and Counterrevolution":

Media observers suggested hopefully that the confrontation between Democratic President and Republican Congress might usefully be carried forward to November when “the people” could decide whether they wanted an interventionist or a greatly reduced government. That very formulation implied yet an other potentially dangerous conception: that national elections should not be primarily about choosing leaders or expressing party preferences but should serve to focus a Great Issue and force a crucial turning point. The correct name for that conception is “plebiscitary democracy,” and it represents an outlook that is profoundly anti-democratic. Consider what social and economic forces would frame the terms of the plebiscite, or the level of debate that would take place, or the inflated mandate that the victors would claim or the implications of such an event for reinforcing the idea of the citizen as a spectator ready to salivate at the mention of tax cuts. Unfortunately, plebiscitary democracy is not a farfetched notion but a short, highly cost-effective step from the “democracy” quadrennially produced by those who organize, finance and orchestrate elections. Given what elections have become, the effect of national plebiscites on the fundamental shape of government should give pause to anyone who cares about the prospects of democracy.

Arguably little has changed, both substantively and procedurally, between the two parties since then. Bill Clinton was product of the Democratic Leadership Council, the archetypical modern figure of neoliberal triangulation; this Wall Street-friendly dance on the corpse of the New Deal coalition has continued for twenty years within the Democratic party, and Barack Obama, contrary to the never-ending and paranoid accusations of "socialism" lodged at him, has only continued it. The Republican party, meanwhile, has followed the path Newt Gingrich charted, embracing an updated culture war template for Nixonian "Silent Majority" populism that laid the groundwork of the uninformed constitutionalism of the Tea Party. More importantly, as they have seen the demographics which most generally support conservative causes shrink, they have effectively pursued means of popular persuasion through redistricting, through the ideological capturing of political primaries, through undeniably effective media campaigns, through working through the courts to ensure their place at the table, even as their party's own general popularity plummets. That is, they have done all of this outside to the existing practices and structures of our constitutional system, or at least such as they have existed since the Progressive era.

On one level, I admire this, I truly do. Our "existing practices and structures" suited party coalitions and a political culture much more regional, much less disconnected, and much less ideological than America became through the 20th century. We are a more alienated, more globalized, more diverse, and generally more "winner-take-all" country than we used to be, for reasons both economic and social and cultural. For all those reasons, and more, I would be delighted to see radical changes in our constitutional system; I'd like to see us become more federal, more parliamentary, and more participatory. But as Wolin astutely observed, the constitutional fetishism practiced by part of one of our parties doesn't contribute to that kind of radical, foundational thinking; on the contrary, it points us in a "plebiscitarian" direction, in which each and every legislative debate is subsumed under a grand ideological narrative, the climax of which is a bitter--and apparently eternally delayed, so as to continue endlessly--contest between the leaders of unified party machines.

Party unity isn't to be discredited, to be sure; while the progressive solutions to the problems of a century ago may have been appropriate, today we can see the unfortunate consequences of candidate-centered campaign all around us, and a return to effective party precincts that can truly enlist people in contributing to unifying political movements which they can in turn hold accountable would be a good thing. But Boehner--and, for that matter, Obama as well, despite the hopes of many of his supporters, including to a degree myself--isn't contributing to that kind of unity. Instead, by caving in to the Tea Party, anti-ACA caucus, he is giving that much more legitimacy to the idea that "popular government" really just means endless elite plebiscitary contestation, without any interest in building real common accountability and democratic practice. Instead it all becomes a show, played out far above us--or at least far above those expecting WIC payments, or those expecting to be able to visit national parks, or those who need to obtain a passport, and so forth--seeking only the occasional validation through polls and electoral pluralities. Which, of course, thanks to gerrymandering, the culprits are pretty much guaranteed of. And thus is are polity pushed (or lured) even farther down a path away from genuine responsible democracy, and towards mere spectatorship.

Some people have more confidence in our system than I; they're just hoping that the Republicans will be able to marginalize the Obamacare-hating dead-enders and get back to compromising, as they believe our system was designed to encourage. I think we've traveled beyond that; the incentives which induced our elected representatives to compromise across party lines have been significantly reduced, and with every election cycle (especially post-Citizens United) are further structured out of existence. The plebiscitarian path we are on is likely to continue, I fear; much as I'd like to believe otherwise, it may well be that someday this particular shutdown won't be considered just routine mismanagement, but will be seen as one more step in our country's decline. But maybe I should wait until the upcoming repeat crisis about the debt ceiling to be sure about that.

Same-Sex Marriage in the Courts (of Public Opinion, and Otherwise)

Yesterday, the British House of Commons voted 400 to 175 in support of a bill which will legalize same-sex marriages in Great Britain. I'm happy--for the outcome, yes (which I've changed my mind about), but more importantly for the way the outcome came about. Years of protest and agitation, days and weeks and months of discussion, hours of parliamentary debate, and then, finally, a vote. That's the better way.

I'm put in mind of this belief of mine as my church has once again involved itself in the continuing litigation over same-sex marriage in the United States. (I'm among the many Mormons who kind of hoped that some recent developments indicated that our church was willing to let the legacy of the Proposition 8 fight of 2008 fade away, but apparently we're not quite there yet.) This litigation--both sides of it--annoys me. Granted, the history of votes regarding same-sex marriage in the U.S.--whether in the form of popular referendums or legislative action--has basically been a story of many, many losses over the past decade and a half, followed by, over the past couple of years, a rising number of wins, so presumably I ought be happy that with courts making decisions about rights and taking such out of the hands of fickle voters. But the opposite is the case; the uneven record of voting on this issue isn't particularly troubling to me at all--given that I've been through a long patch of unevenness myself, there isn't anything perplexing about realizing that so many others are working their way through a similar reconsideration. No, what I do find frustrating--especially in comparison with how this matter was ultimately, and wisely, handled in Great Britain--is the way democratic activity in this country is so often reduced to judicial claims and counter-claims, taking the issue away from the courts of public opinion and giving it to other, less democratic courts. As things stand now, come the end of March, the U.S. Supreme Court will rule definitively (maybe!) on the constitutionality of both state and national efforts to legalize or deny legal recognition to same-sex couples. I suppose it would be right to say I hope they rule in favor of the legality of such, given my changed opinions on the matter--but also given that such a decision would take the form of a legal mandate which will almost certainly run roughshod over the laws adopted by dozens of states, all of which have the support of millions of citizens, I can't say I'm looking forward to it.

If I now believe that same-sex marriage should be recognized as a legally defensible and positive civic good, which should I care about those whose opinions would be found constitutionally lacking by a decision which I support? Would I have cared about the consequences of Brown v. Board of Education for racists, for example? Well, my answer to the latter is "no"--but my answer to the former is that I just quite don't believe that opponents of same-sex marriage are necessarily operating from the same kind of irrational animus which many of those who were scandalized by the end of segregation presumably were. It's quite easy to position oneself on the probably winning (and, again, I think right) side of history here, and say that the passage of time will prove that same-sex marriage opponents are ultimately cut from the same bigoted cloth, and I can't deny that might, decades hence, turn out to be the case. But for now, as one who prefers the messy imbalances of democracy to the supposedly clear (but for all that usually arbitrary) impositions of the law, and for whom the past three years have mostly just provided confirmation of my many doubts about trusting in the judicial branch), as well as one who not too long ago was persuaded by a certain argument against same-sex marriages, I just can't see in the supporters of Proposition 8 and the Defense of Marriage Act and the opponents of what the House of Commons just voted for something so obviously out of line with our country's evolving political ideas as to deserve the judicial squashing which Boies and Olson (and perhaps President Obama too) clearly think it deserves.

After all, as much mockery as the idea has received from one side of the divide, the claim which my church's lawyers have signed on to--that advocates of traditional heterosexual marriage and supporters of same-sex marriage have in mind visions of marriage which are in "deep tension" with one another, "one inherently intergenerational, the other primarily interpersonal; one focused on children's and society's needs, the other on the desires of the couple"--is not, I think, obviously silly or just a cover for raw distaste and prejudice. It is, on the contrary, entirely plausible (if not, to me, any longer convincing) to argue that the physical differences between men and women, and their reproductive potential, make it incumbent upon society to legally ratify such relationships in a socially beneficial way that homosexual couplings, no matter how loving or civic-minded, are biologically capable of ever being. Moreover, it is not obviously ludicrous to me to note that, given the widespread support for numerous statues in several states providing near marriage-identical forms of civil protection and social validation to gays and lesbians, the argument about the harms of Proposition 8 are probably not quite the same as those 14th-Amendment-centered harms which activated judicial interventions into the political deliberations of the states in the cases of, for example, Romer v. Evans or Loving v. Virginia. And finally, it does not strike me as obviously nonsensical to suggest that a society which truly takes the principle of equal respect seriously should reject the easy solution of "sameness" offered by inviting homosexual couples--who arguably will have a moral and social and sexual teleology in their relationships quite different from those of heterosexuals--into a marriage institution which was designed for people whose needs are distinct from theirs. And when this last argument concludes with a call for churches and other religious institutions to accept the Christian duty to love gays the same as straights, and work out institutions which will serve their teleology as well as heterosexual marriage has served the rest of the population, I think even the most dismissive critics ought to at least acknowledge the decency of their intentions.

All this is to simply say that these are beliefs--just like, I think, most beliefs--that deserve to be taken seriously enough to allow them to be argued out in public, and for the courts of public opinion to respond to them as they will--whether in support or in opposition. This isn't an argument that every democratic majority everywhere ought to have its way all the time, but just a wish that people were more willing to accept the (when properly limited within a reasonable understanding of basic liberal rights) wins and losses of democratic life, and how the lives which get worked out democratically will differ from community to community, and from era to era. Minds do change; they change all the time. For me--to focus just on the first claim above--the accusation that accepting same-sex marriage meant accepting as normative for purposes of social recognition a genderless choice-driven individuality ran aground on my ultimate unwillingness to fully sign on to the sexual inegalitarianism which such an accusation of individuality presumes. Obviously Melissa and I are raising daughters, not sons, and that difference matters. But I couldn't continue to believe, as we taught our daughters and encouraged them to consider themselves equal to both boys and men in the face of the pornographic misogyny which powers so much of the capitalist marketplace which surrounds them, that--to use the terms quoted from the brief above--community-preserving intergenerationality depends on impressing upon them their particular role within a companionate, heterosexual marriage, when it was obvious that such doesn't depend equally upon the men (something especially easy to challenge in world which has been transformed by technologies like the birth control pill or in vitro fertilization, to say nothing of the unfortunate--but probably inevitable--consequences of the no-fault divorce revolution). For better and for worse (yes, it's both) ours is a world more interpersonal than otherwise, and I saw that it was possible to argue against rampant individualism in a way which expanded the circle of community--by, among other things, making room for homosexual individuals in the historical practice of monogamous, companionate marriage--rather than holding tightly to a model of an intergenerational thing which had long since already been changed.

(There is, of course, a Mormon angle to all this for me as well; my church has few rivals in its cult of motherhood and its emphasis upon the special role of women in passing the faith along to the next generation. But that, of course, is something which need not be aligned with the civic sphere. Do I think it legitimate for Mormon majorities in their communities to push for such an alignment? Yes, I kind of do, though again in light of basic liberal guarantees, which itself is something which warrants continuing democratic contestation. I will say, though, that I strongly disagree with those who present such a push as something mandated by the logic of Mormon doctrine--that our (non-canonized!, I shout in vain) teachings about the eternity of gender and our (entirely speculative, I similarly grouse) claims for the existence of an exclusively female companionate deity alongside God make it incumbent upon believers to vigorously resist any attempt to suggest that such supposedly divinely sanctioned institutions as heterosexual marriage might accommodate other forms of human existence. The doctrinal grounds for justifying that kind of narrowly conceived--and inevitably party-aligned--movement would make a mockery of our historical political theology, I think.)

What about the other two claims mentioned above? I remain pretty much in agreement with the second: despite the arguments of many, I'm still unconvinced that the restriction of marriage to heterosexuals constitutes a grievous constitutional harm put in place solely with the aim of burdening a specific, disliked minority population. (That does not deny that fact that harms are a reality here--it only denies that the actually existing harms to homosexual individuals is great enough to demand further empowering the judiciary by handing over to them yet one more of our contentious disputes for resolution.) As for the third, well, that argument calls for exactly the sort of thing which, over four years ago, I thought was the best possible solution--and I'd like to be able to believe that we could wean ourselves away from the false and individualistic reading of "equality" that substitutes the idea of the full recognition of difference with legal identicalness. But I don't see ourselves ever being about to manage such a weaning, because of the legacy of a particular strain of liberalism in this country. And speaking idealistically of what we think we ought to be able to do is no good reason to not do something else which, even it does partake of that particular reading of equality, can extend some real interpersonal richness to our social lives as well. And same-sex marriage will do that.

In the meantime, as we get to wait for the Supreme Court to, sometime this summer, either strike down or legitimize same-sex marriage bans, or perhaps to simply punt the whole issue back to the states, where the rigamarole will begin again, Great Britain will get on with what governments are supposed to do--respond to pressing issues by crafting solutions. The House of Lords may delay this bill's route to becoming law, and given the number of Conservative MPs who deserted Prime Minister David Cameron on this vote, maybe there will be major political consequences, even new elections called early. In which case their own rigamarole will continue: but at least the citizens in that country will be able to say that they, however indirectly, were actually a part of whatever final compromise eventually emerges from Parliament, whereas in our case, for all our claims of freedom, we'll really only be able to have a decisive say if the Supreme Court decides we can have one. Frankly, I think same-sex marriage, which I support, deserves a better court than that.

Populism, Plebiscitarianism, and the Tea Parties

Over the weekend, Samuel Goldman and Daniel Larison had an exchange relevant to one of my annoyingly constant pre-occupations: defending a notion of populism which is local, democratic, and egalitarian, all at the same time. Picking up on an argument made by Peter Beinart--namely, that those who support the Tea Party movement "are today’s version of the California suburbanites who rose up against their property tax bills in the late 1970s...[t]hey’re the second coming of what Robert Kuttner called 'the revolt of the haves'"--Goldman allows that the Tea Party movement isn't a true populist one...at least, not on the first, more historical definition of populism. But what about the second? He writes:

On the one hand, populism can refer a particular tradition of redistributionist, anti-corporate, usually agrarian political ideas. Most Tea Partiers reject that tradition. On the other hand, populism can describe a conception of the appropriate relation between governors and governed in a representative democracy. On this view, policy should be much more closely tied to public opinion, or to direct popular decision, than to the judgment of legislative or bureaucratic elites. Many of the Tea Partiers, it seems to me, are populists in the latter sense. If you prefer, call them plebiscitarians rather than populists.

For Larison, this only goes to show how poorly thought out are most of the slogans which the Tea Partiers brandish; looking at the polling support which most Tea Partiers appear quite willing to give to established entitlement programs like Social Security and Medicare, he suggests that their plebiscitarian rhetoric is highly confused, as no one, not even themselves, appear to be taking seriously what building a truly anti-federal government majority would actually entail (for one thing, convincing majorities of the American people to reject social welfare entitlement spending). Goldman isn't terribly disturbed by this; he allows that the Tea Partiers may suffer from "extreme cognitive dissonance," but that such doesn't compromise their longing for a more direct democracy, as they understand it, all the same.

An important point needs to be added here, I think: namely, that Goldman's two definitions of populism are complementary--in fact, are historically entwined. The redistributionism, agrarianism, and anti-corporatism of William Jennings Bryan and those who supported him was grounded in a particular notion of democracy-as-sovereignty...or, to use more classically republican language, of self-rule. As expanding industrial technology, mobility, and complexity came to characterize the post-Civil War American economy--economic activity which both followed and supported the centralization and urbanization of America's primary generators of wealth and prestige--what the farmers and small town residents of states from Georgia to Kansas to Montana recognized was that their ability to maintain a decent livelihood was becoming dependent upon the decisions of bankers and railroad moguls who lived far away, in New York City and Philadelphia and Chicago. The corporate monopolies of the Gilded Age were deeply undemocratic, not because (or at least not only because) their wealth and power enabled them to buy influence outside the normal democratic procedures of the American polity, but because their very size forced other, small, less prestigious economic actors to orient the control over their own lives--lives focused upon what historically had been more or less self-sufficient communities--to the whims of others. It was, very simply, the replacement of self-government with a free-market oligarchy. And that was what turn-of-the-century Populists hated: being obliged by the rules of the market economy to consent to the rule of a distant minority of wealthy robber barons, a rule which made meaningless the willingness of majorities of people, all across the American South and West, to work in accordance with economic rules they themselves had set. Populism, in the end, was, as Norman Pollack has argued, all about attempting to erect a different, more responsive "framework of democratic power."

For numerous reasons, that framework would almost certainly be inoperable today--but the relationship between demanding greater democratic empowerment and redistributionist, egalitarian policies remains very real, even if it is rarely expressed in populist terms....or when the connection is noticed, it is noticed in highly confused ways. The frustratingly wrong-headed complaint which Megan McArdle made about the passage of the health care bill being an example of the "tyranny of the majority"--a complaint which, if one thinks about it, seemed to suggest that the solution for such tyranny would be for elected politicians to be...even more responsive to popular majorities!--is a case in point. If one dreams of more plebiscitarianism, I'll support it, not the least reason for which being that a little more direct parliamentarianism in our government, a little more willingness to empower voters to direct the government towards specific ends--and, then, giving elected representatives the tools to do so--would very likely (or so I would argue, anyway) result in a more responsible and less poisoned movement towards that which can be popularly and broadly expressed and responded to, in terms of votes. (To use various Western European parliamentary states as examples, the results could easily include both greater social welfare guarantees, and more restrictive, common-sense abortion laws.)

To be sure, a little more listening to voters would have its own political complications and pathologies; there is something to be said, sometimes, for government bureaucracies which often lack both the funds and the political accountability to accomplish what they understand (sometimes poorly) themselves to have been directed to do. But if the primary complaint of the Tea Partiers really comes down to a mildly incoherent plebiscitarianism, I can't complain too much. Whether they realize it or not, they're presuming, or demanding, a more populist democratic framework...one whose ends--especially if directed to local targets--are much more likely to be amenable to an empowering, egalitarian democracy than their own noisy libertarianism.