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You Gonna Take A Feel-Good Hollywood Biopic From Someone Who Slapped Beat the Crap out of Dee Barnes?

[ 84 ] August 19, 2015 |

Dee Barnes on Straight Outta Compton:

Three years later—in 1991—I would experience something similar, only this time I was on my back and the knee was in my chest. That knee did not belong to a police officer, but Andre Young, the producer/rapper who goes by Dr. Dre. When I saw the footage of California Highway Patrol officer Daniel Andrew straddling and viciously punching Marlene Pinnock in broad daylight on the side of a busy freeway last year, I cringed. That must have been how it looked as Dr. Dre straddled me and beat me mercilessly on the floor of the women’s restroom at the Po Na Na Souk nightclub in 1991.

That event isn’t depicted in Straight Outta Compton, but I don’t think it should have been, either. The truth is too ugly for a general audience. I didn’t want to see a depiction of me getting beat up, just like I didn’t want to see a depiction of Dre beating up Michel’le, his one-time girlfriend who recently summed up their relationship this way: “I was just a quiet girlfriend who got beat on and told to sit down and shut up.”

But what should have been addressed is that it occurred. When I was sitting there in the theater, and the movie’s timeline skipped by my attack without a glance, I was like, “Uhhh, what happened?” Like many of the women that knew and worked with N.W.A., I found myself a casualty of Straight Outta Compton’s revisionist history.

Dre, who executive produced the movie along with his former groupmate Ice Cube, should have owned up to the time he punched his labelmate Tairrie B twice at a Grammys party in 1990. He should have owned up to the black eyes and scars he gave to his collaborator Michel’le. And he should have owned up to what he did to me. That’s reality. That’s reality rap. In his lyrics, Dre made hyperbolic claims about all these heinous things he did to women. But then he went out and actually violated women. Straight Outta Compton would have you believe that he didn’t really do that. It doesn’t add up. It’s like Ice Cube saying, “I’m not calling all women bitches,” which is a position he maintains even today at age 46. If you listen to the lyrics of “A Bitch Iz a Bitch,” Cube says, “Now the title bitch don’t apply to all women / But all women have a little bitch in ‘em.” So which is it? You can’t have it both ways. That’s what they’re trying to do with Straight Outta Compton: They’re trying to stay hard, and look like good guys.

Straight Outta Compton is hardly unique in this respect — biopics tend to whitewash, even when they’re not done with the cooperation of the subjects. And, of course, misogyny from both art and artists is depressingly common, and does not in itself mean that a biopic of very influential artists is unjustified. I would suggest, however, that at a minimum Straight Outta Compton not be called “unvarnished.”


From the Party of Lincoln to the Party of Calhoun, An Ongoing Series

[ 233 ] August 19, 2015 |

Roger-Taney-in-1858Mister, We Could Use A Chief Justice Like Roger Taney Again

Chalk up another crackpot position that’s gone utterly Republican mainstream:

On Sunday, business mogul Donald Trump came out in support of ending birthright citizenship — and on Monday, Wisconsin Gov. Scott Walker joined him.

Ohio Gov. John Kasich said recently that he didn’t think the party needed to go that far in trying to crack down on illegal immigration. But during his run for governor in 2010, according to the Columbus Dispatch, he reiterated his longtime support for ending birthright citizenship.

When Kentucky Sen. Rand Paul first ran for the Senate in 2010, he said he didn’t “think the 14th Amendment was meant to apply to illegal aliens.” He has since pushed for a constitutional amendment. New Jersey Gov. Chris Christie has said the issue needs to be re-examined as well.

Former Pennsylvania Sen. Rick Santorum has also stated his support for altering the 14th Amendment…

And on Monday night, Louisiana Gov. Bobby Jindal joined the debate, tweeting, “We need to end birthright citizenship for illegal immigrants.”

Even South Carolina Sen. Lindsey Graham, a longtime supporter of immigration reform, has called for a consideration of a change in the Constitution because he believes immigrants will simply “drop and leave” their kids in this country.

Taken together, that’s a solid chunk of the Republican field. And for a political party desperately trying to improve its standing with Hispanic and other minority voters, it could portend a damaging bend toward nativism.

If the Republican Party has ever accomplished something good, contemporary Republicans will do what they can to purge any trace of the preemptive heresy from the books.

Amanda Terkel has a good companion piece on the history of denying citizenship to various classes of people.


[ 17 ] August 18, 2015 |

0904_saudi_women_970-630x420“Sure, you can’t drive, vote, or walk around unaccompanied.  But at least you’re not in Venezuela!  Savor your economic freedom!’

For whatever reason, I’m always fascinated by libertarian “Freedom Indexes.” Does CATO’s international comparison consider equal inheritance rights but not the ability of a woman to choose not to carry a pregnancy to term when measuring women’s rights? I think you know the answer to that. Does the methodology apparently assume that all “government transfers and subsidies” and “administrative requirements” on business represent net reductions in freedom? But of course. Do its choices lead to such results as Hong Kong being designated the freest place on Earth and Venezuela being considered less free than…Saudi Arabia? Yup.

And yet, despite the various ways in which the game is rigged, I also note that all of the major Scandinavian states and Germany still rank as more “free” than the United States. “The regions that had greater overall levels of freedom exhibited higher ratings in personal freedom relative to economic freedom than the less free,” the analysis concludes. Maybe there’s a lesson there!

Foner on the Lessons of Reconstruction

[ 41 ] August 17, 2015 |

The whole interview is great, as you would expect. The answer to the assertion that the Civil War was about “states’ rights” is perfect (i.e. the state’s “right” to establish slavery, which by the way required substantial federal intervention with dubious constitutional authorization every so-called advocate of “states’ rights” supported.) A couple more arbitrarily selected highlights. First, on the question of whether Reconstruction was a “bourgeois revolution”:

I tend not to use terminology like that, which I feel is an insider terminology. I try to write as clearly and accessibly as possible. So I understand what it means to call it a bourgeois revolution, and there are a lot of ways one could say it is. But I don’t think you would find that phrase in my writings.

But I do call it a revolution. I call the Civil War the Second American Revolution, as historian Charles Beard did, and as abolitionist Wendell Phillips did. But the Revolution is the destruction of slavery, that’s the revolutionary quality. That’s Du Bois’s point.

I call it a capitalist revolution. I don’t know if that’s the same thing as a bourgeois revolution. It destroys a system that is both capitalist and non-capitalist in ways that are quite difficult to explain, but the consequence of the Civil War is capitalist hegemony throughout the entire United States.

But that’s not the cause of the Civil War, because the capitalists were perfectly happy with the slave South. They made a lot of money off the slave South and there was no reason for them to go to war. But the consequence of the war was certainly the hegemony of Northern industry and finance throughout the entire country.

I also loved this, on the process by which conservatives try to pretend that they retroactively support things they opposed:

We shouldn’t allow them to take possession of these struggles. By the way, Obama absorbs all of this into his narrative of American history, obviously, and what’s objectionable about all this — from Obama’s vision of American history to Karl Rove’s — is that they see all these things as struggles within a stable system, so to speak.

Instead of denying, like the Right used to, that we’ve ever had inequality in this country, the Right says, “Well of course slavery was horrible, but we abolished it. We abolished slavery.” We! We! Who’s this “we,” you know?

And then they say, “Jim Crow, it was terrible.” No one’s defending Jim Crow anymore. We had a great civil rights struggle, Martin Luther King is a hero to everybody left, right and center, but it’s a defanged Martin Luther King. Martin Luther King is the guy who gets up at the Lincoln Memorial and, you know, says one sentence — I want my children to be judged by the content of their character — and that’s Martin Luther King. You don’t get the King who spoke out against the Vietnam War, or the Poor People’s Campaign King.

King was a radical guy. King said that the Civil Rights Movement was a fundamental challenge to American values. The people who absorb it into a feel-good thing now say it was an expression of basic American values. In other words, there is a stable thing called Americanism which all these struggles are just improving all the time.

But the whole thing is very much worth reading.

A Lazy Pundit’s Wet Dream

[ 150 ] August 17, 2015 |


The title alone guarantees you a blast furnace take. The nearly drama-free Democratic nomination contest, highly reminiscent of 2000, is 1968 all over again!

The expected battle of the dynasties between Hillary Clinton and Jeb Bush no longer seems inevitable.

This is some nicely done bullshit, pretending that the Democratic nomination is in serious doubt because the Republicans really do have a hotly contested primary. My question: who ever said Jeb! was inevitable? I think even those who (unlike me) think he’s the most likely to win would agree that he’s highly evitable.

Anyway, to the meat of the argument, such as it is:

Just as President Lyndon Johnson, whom everyone expected to run for re-election, symbolized the Democratic establishment then, Hillary Clinton does now. While Johnson controlled the party apparatus (which in 1968 still chose most of the delegates), Clinton has locked up most of the Democratic donors. Both of them, too, have already lost a nomination battle to a younger, more attractive candidate: LBJ to JFK in 1960, and Clinton to Barack Obama in 2008. And both have serious vulnerabilities that pundits initially underestimated: the Vietnam War for Johnson, and the ongoing email scandal for Clinton.

Wait, what?

the Vietnam War for Johnson, and the ongoing email scandal for Clinton.

Comparing the piddlyshit email non-scandal with Vietnam is so wrong on so many levels it’s hard to even know where to begin. But the idea that Hillary Clinton is going to give up her campaign over this crap is absurd.

Both of them seem to struggle to appeal to a huge new generation of voters: Boomers in 1968, Millennials now.

Is there any evidence for this claim about Clinton?

And like Johnson, Clinton has been challenged by an insurgent Senator with unusual views. Bernie Sanders of Vermont has cast himself in the role of Senator Eugene McCarthy of Minnesota, whom no one gave a snowball’s chance in hell when he announced for President late in 1967. When McCarthy nearly beat Johnson in New Hampshire, the President shocked America by dropping out of the race. Bernie Sanders has just surged ahead of Clinton in New Hampshire in at least one poll, and like McCarthy, will likely command the support of an army of young volunteers there.

Could Sanders give Clinton a very tough fight in New Hampshire? Sure. What is the possible basis for the belief that she would drop out if this happens? I have no idea.

I’ll skip the comparison between Biden and Humphrey because if Clinton stays in the race it’s irrelevant.

You’ve probably already guessed who has been drafted into RFK’s role:

The obvious candidate to fill RFK’s role as the one to shake things up would be another four-year Senator with a national following, who has resisted numerous urgings to get into the race earlier this year: Elizabeth Warren of Massachusetts. Warren insists that she is not going to run, but it’s always possible that she might feel very differently about a race against Sanders and Biden, should Clinton’s campaign founder.

And what if the Clinton emails implicate Clinton, Sanders, and Biden in the murder of Vince Foster, an entirely plausible scenario? I bet Warren runs! Fortunately, the Ambassador Hotel has been demolished.

Sure, it’s a long shot, but—while the Republicans are getting most of the attention now—history proves that the Democrats are still worth watching.

That word “proves,” it does not mean…

The Great Ex-President

[ 99 ] August 17, 2015 |


As we ponder the legacy of Jimmy Carter, it’s worth emphasizing that while he was a rather ineffective president he’s been a remarkable force for good as an ex-president:

Guinea Worm eradication is near. Guinea Worm is a waterborne disease that affects only the poorest of the poor people on the planet. But after millennia of inflicting pain and suffering in Asia and Africa, the disease is tantalizingly close to being wiped off the face of the earth. 30 years ago there were millions of cases worldwide. In 2014, there were just 126. This decline is thanks in large part to Jimmy Carter and the the work of the Carter Center, which launched a Global Eradication Program in the 1980s.

This is just one of countless examples of course. He really deserves immense credit for this work.

Sunday Links

[ 61 ] August 16, 2015 |

Today In Non-Apology Apologies

[ 57 ] August 15, 2015 |


You may remember Kristen McQueary from such op-eds as “oh, if only death and destruction could come to (poorer than me) people so that Chicago could be rid of Rahm Emmanuel’s uncompromising socialism.” The most offensive parts were quietly scrubbed without a note after the initial reaction, but even what remains is appalling. McQueary responds to the criticism her staggering inhumanity received in a manner that is, in its own way, appropriate:

Many readers thought my premise — through my use of metaphor and hyperbole — was out of line. I certainly hear you. I am reading your tweets and emails. And I am horrified and sickened at how that column was read to mean I would be gunning for actual death and destruction.

Now that’s how you do an “I apologize if you were offended by my extremely offensive remarks” non-apology, everyone.

A couple of additional points. First of all, it’s worth noting that McQueary isn’t some random winger crank who got her op-ed published by a paper desperate for traffic on a slow news day; shes a winger crank employed by the Trib as an op-ed writer. I would think that employing a writer who fantasizes about the city’s poor people of color being immiserated by disaster so she could get some neoliberalism out of the deal would be supoptimal, but that’s me. Second, let me quote her discussion of post-Katrina education “reform” in New Orelans in its entirety:

An underperforming public school system saw a complete makeover. A new schools chief, Paul Vallas, designed a school system with the flexibility of an entrepreneur. No restrictive mandates from the city or the state. No demands from teacher unions to abide. Instead, he created the nation’s first free-market education system.

Hopefully you’ve noticed one obvious thing missing here: any discussion of results. Has creating the nation’s first free market blah blah blah led to better results for schoolchildren in New Orleans? McQueary doesn’t know, and she doesn’t care. Union-busting is the end in itself; her choice of metaphor is a good indication of how much she cares about the people the “reforms” are allegedly intended to help.

Wishes Are Totally Free

[ 61 ] August 14, 2015 |

B6d2HiVCAAIskn7.jpg large

Mike Huckabee has asserted that his 6-6-6 Fair [sic] Tax will create SIX PERCENT GROWTH. Take that, Jeb!! As Chait notes, the logic is impeccable:

The beauty of this is that Bush can hardly call Huckabee’s promise unrealistic or made-up, without having to concede his own promise is also unrealistic and made-up, just less so. Bush has no grounds to argue against Huckabee here. Think about it. You walk into a caucus, you see 4 percent growth sittin’ there, there’s 6 percent growth right beside it. Which one are you gonna pick, man?

The Farrelly brothers indeed captured this well, but let us also recall the inner circle Hall of Fame blog post from Belle Waring:

I think Matthew Yglesias’ response to Josh Chafetz’ exercise in wishful thinking was about right, even if Brad DeLong’s is more nuanced. I’d like to note, though, that Chafetz is selling himself short. You see, wishes are totally free. It’s like when you can’t decide whether to daydream about being a famous Hollywood star or having amazing magical powers. Why not — be a famous Hollywood star with amazing magical powers! Along these lines, John has developed an infallible way to improve any public policy wishes. You just wish for the thing, plus, wish that everyone would have their own pony! So, in Chafetz’ case, he should not only wish that Bush would say a lot of good things about democracy-building and fighting terrorism in a speech written for him by a smart person, he should also wish that Bush should actually mean the things he says and enact policies which reflect this, and he should wish that everyone gets a pony. See?

It is for this reason that Lawrence Lessig’s proposal to resign* after signing one statute is such a tragic missed opportunity. If you can create a SUPER MANDATE by campaigning on a single statute combining several proposals, why stop at 3? Shouldn’t the Citizens Equality Act contain the three promised electoral reforms and the French health care system and a minimum of one clinic providing free abortions in every county and quadrupling of the budgets for civil rights and SEC enforcement and a repeal of Taft-Hartley and a pony for everyone who wants one? The chances of the bill passing would be exactly the same! We have a SUPER MANDATE in which Congress becomes helpless, why waste it? Huckabee knows what he’s doing here. I can’t wait for Trump to guarantee 20% annual GDP growth, funded entirely by the Mexican government.

*In fairness, while on its face the declaration that one will resign after getting one bill pass may seem to reflect a dilettantish attitude rather unattractive in someone purporting to run for president, it must be conceded that it has roots extending to the greatest of American political statesmen:

For reasons that are still debatable, Stern decided this was his moment, too. Stern announced on his radio show he was running for governor. [Howard] Stern had talked with the 600-700-member-strong New York Libertarian Party and would be running as a libertarian.

His platform: reinstating the death penalty, forcing construction workers to work at night and staggering highway tolls to alleviate traffic jams. Once those things were done, he’d resign and let his lieutenant governor — a former former state legislator named Stan Dworkin — take over.

“It doesn’t matter if you find me offensive,” Stern said in his March 22 announcement. “I’ll get out of office before I can really screw anything up.”

What Does Don Verrilli Know About Getting Crucial Conservative Votes in Tough Cases?

[ 20 ] August 14, 2015 |


Yesterday, I acknowledged that there was a at least a strong element of self-criticism in Lawrence Lessig’s rather remarkable concession that he argued at the Supreme Court assuming a theory of judicial behavior that has been discredited for decades because if theory was true it would make him feel bad about his job.  It would be nice if he didn’t forget what he had learned in his future political endeavors, but hey, it’s something.  As sleepyirv pointed out to us in comments, he seems to have forgotten his bellyflop even in the narrow field of Supreme Court advocacy:

Yet it is a measure of the pervasive partisanship that is Washington today that it doesn’t even occur to Obama’s solicitor general to suggest a politically conservative argument to Chief Justice John Roberts’s Court that, if applied honestly, might well yield a politically liberal result. That may reflect a limit in the imagination of the Obama lawyers, or a simple realism about the ideological rigidity of this Court. Either way, it is astonishing. Rather than advancing the one argument that the five originalists on the Court might be able to hear, the government insists on standing with an argument that all five conservatives on the Court have already rejected. And so the government leads the Court to do what most Americans expect it will do anyway: Confirm an ideology, rather than honestly follow a principle that might well track something other than simple ideology.

You have to love the condescension shown towards the solicitor general — it can’t be that he was aware of Lessig’s arguments and decided against using them, it must have been that using these brilliant arguments didn’t “occur” to him.  This is particularly rich given the implication that Verrilli is unwilling to tailor his arguments to appeal to conservatives on the Court.  Admittedly, at the time of writing Lessig didn’t know about the ACA case argued by Verrilli that resulted in Roberts (joined by Kennedy) dismembering the corpse of Adler and Cannon’s argument and declining to even send the widow a corsage, but he had seen Roberts adopt an out-of-left-field argument brought up by Verrilli at oral arguments to mostly uphold the ACA in the first place. The causal role the oral argument played is unknowable, but I think just a little modesty might be in order here.

Still, Verrilli is capable of screwing up like anyone.  Is there reason to believe he left a winning argument on the table here?  Of course not:

  • As sleepyirv, even on its own terms, Lessig’s originalist argument is weak.  The dispute about the definition of “corruption” concerns 20th century judicial doctrine, not the text of the First Amendment.  How the framers and ratifiers of the First Amendment conceived of corruption might be worth noting, but it’s hard to see how it could be dispositive here.


  • If I may be permitted to throw some cold water on the whole “liberal originalist” mode of argument, it seems to me that campaign finance law an area in which originalism is particularly useless.  First of all, there was no single “original meaning” of the free speech clause itself in 1789.  Whether the free speech protected by the First Amendment was something like the (very narrow) English common law standard or something more than that and if so how much more was a matter of substantial political contestation at the time.  And even if there was a clearly identifiable consensus on free speech, it wouldn’t help very much as applied to concrete campaign finance cases in 2013, given how radically most of the relevant considerations (the cost of campaigns, the types of media involved, the size of the constituencies legislators represent) have changed in the intervening 225 years.  I think it would be better to say that Roberts’s narrow definition of corruption is wrong because it’s wrong, not because it arguably contradicts something James Madison wrote in the 18th century.


  • Of course, whether the argument appeals to me is beside the point; what matters is whether it would appeal to the justices.  But why would we think this?  We can forget Alito, a human manifestation of the most recent Republican Party platform.  Roberts and Kennedy have never shown any particular interest in originalism or any other kind of grand theory.  The two self-described originalists on the Court are hardly consistent about it.  And in First Amendment jurisprudence, neither Scalia nor Thomas has shown any particular interest in historical analysis, apart from some narrow exceptions (such as Thomas and speech in schools) where the history lines up very well with their a priori political views.  Lessig’s belief that originalism will be appealing in this context isn’t based on anything specific about the First Amendment jurisprudence of the justices in question, but just on the idea that if the justices are conservative they must therefore find orignalist arguments appealing regardless of the context, an assumption that is transparently wrong.


  • Which brings us to a broader problem — campaign finance is not virgin doctrinal ground, but an area in which the justices have well-established, frequently expressed views.  The idea that Kennedy or Roberts are going to go “Aha! Now that I’ve seen this empirical analysis of how corruption was used by the First Congress I have to admit that my libertarian views are wrong!” is absurd.  I was going to say that this applies the logic of the seminar room to Supreme Court advocacy, although frankly the “this not nearly as clever as I think it is argument will get my colleague to abandon her firmly established view” approach rarely works in the seminar room either.


  • Lessig tries to get around this problem by arguing that there’s no necessary contradiction between adopting his approach and the Roberts Court’s prior cases: “Recognizing “dependence corruption” as a kind of corruption that would empower Congress to act would not undermine the holding in Justice Anthony Kennedy’s opinion in Citizens United.”  But this is deeply disingenuous.  As I’ve said before, I think the judgment in Citizens United was right: I don’t think the statute authorized the FEC to suppress the showing of Hillary: the Movie, but if it did then it violated the First Amendment as applied.  But what makes the decision such an intense source of controversy is not the narrow judgment of the case, but Kennedy’s opinion, which went far beyond what was necessary to decide the case at hand.  It’s true that a “dependence corruption” justification would not threaten the outcome of Citizens United, but it would certainly undermine the broader foundations of Kennedy’s opinion, and Kennedy would certainly understand this.

The thing is, one some level it’s clear Lessig understands much of this: “[t]hat may reflect a limit in the imagination of the Obama lawyers, or a simple realism about the ideological rigidity of this Court.”  Again, he seems to think that it’s better to be wrong if being right undermines his choice to devote so much of his career to constitutional grand theory.  I assume the millions of people who benefit from the ACA prefer Verrilli’s approach of trying to appeal to the actually existing Supreme Court rather than the imaginary one that Larry Lessig would find cool.  And it’s a little late in the day to pretend that the most basic insights of legal realism are “astonishing.”

Today In Bad Faith

[ 38 ] August 13, 2015 |

Ben Carson: for fetal tissue research before he was against it.

Ben Carson, a Johns Hopkins neurosurgeon and Republican presidential candidate, previously did research using human fetal tissue.

In the wake of the hidden-camera videos showing Planned Parenthood doctors discussing how to provide aborted fetuses to scientific researchers, Carson has told Fox News that the benefits of this research have been “overpromised” and “under-delivered.”

Late on Wednesday, an OB/GYN and science writer Jen Gunter revealed on her blog a 1992 study in which Carson and three other colleagues used tissue from the fetal brain and nasal cavity to better understand the development of the chambers (or “ventricles”) of the brain. These tissues “were obtained from two fetuses aborted at the ninth and and 17th week of gestation,” the paper says.

Carson’s attempt to defend his views do not quite reach a Roger Goodell level of incoherence, but it’s pretty close.


The Mandatiest President Who Was Ever Mandated: A Mandate for Change

[ 96 ] August 13, 2015 |

Lyndon_Johnson_signing_Civil_Rights_Act,_July_2,_1964Above: This Would Never Have Happened Had LBJ Not Made the 1964 Election a Single-Issue Referendum

After Andre Dawson won the MVP award in 1987, Bill James wrote something to the effect that it felt like he was no longer making any professional progress. I feel the same thing about Lawrence Lessig’s presidential campaign — one wonders if trolling political scientists is its main purpose. The most obvious reason for running an obviously quixotic presidential campaign is if everyone else is ignoring your signature issue. But on electoral reform, Clinton is pretty good, and not only are Sanders and O’Malley excellent on the issue they’ve been pushing it pretty hard, especially the latter. So Lessig’s rationale is not that the other candidates have bad positions on his pet issue, or are ignoring it, but that they lack a strategy for putting the changes into effect. Which makes it all the more remarkable that his theories of legislative change are transparently insane:

Lessig’s strategy involves making the 2016 election into a “referendum” on the Citizens Equality Act. By focusing solely on this proposal — and claiming that he would resign once it passed — Lessig would allegedly create a mandate that would force Congress to pass the bill. “Even if [Clinton] did say exactly the right things, I don’t think it’s credible that she could achieve it because she — and the same thing with Bernie — would be coming to office with a mandate that’s divided among five or six different issues,” asserts Lessig.

But this does not make any sense. Precisely because of the democratic defects Lessig identifies, Republicans will almost certainly control the House in 2016. The magic word “mandate” is not going to compel Republicans to pass legislation that would be politically suicidal for many members and opposed by most Republicans in principle. As is often the case, the word “mandate” is being used to substitute for an actual plan.

The fatal problem with Lessig’s strategy is that after a typical referendum, the policy in question is enacted after a “yes” vote, subject only to judicial review. After a presidential election, both houses of Congress are still required to pass any law, and no campaign strategy can force hostile members of Congress to sign their political death warrant. You cannot just declare a presidential election a “referendum” by fiat.

Nor does the plan make any sense historically. Consider the Great Society, the result of the most productive period of progressive lawmaking of the 20th century. “It wasn’t about shedding light on a single issue. It was about bringing together a large (and, as a result, fragile and fractious) coalition, the exact opposite of what Lessig describes doing,” says the Marquette University political scientist Julia Azari, author of a definitive study of presidential mandates.

By his own admission, Lessig has the tendency to act based on how he would like things to be rather than on how they are. His proposed campaign exemplifies this flaw. The idea that fierce opposition from Republicans and conservative Democrats can be overcome by a single-issue campaign is just daydream believing, and also elides the question of how one is supposed to assemble a majority coalition while ignoring the priorities of most potential Democratic voters. (Electoral reform is important, but so are issues of racial and gender and economic inequality, and Democratic voters don’t want their standard-bearer to ignore them.) Overestimating the potential support from Republicans was one of the factors that led to disastrous results for his Mayday super PAC, and it would doom his electoral strategy as well.

Preferring ideas that sound cool to more rational ones that could work has been a persistent problem for Lessig. I allude to this briefly in my column, but the failure of Lessig’s various activist ventures was foreshadowed by his involvement in Edlred v. Ashcroft. This was the 2003 case that upheld the extension of the 20-year extension of copyrights passed by Congress in 1998. I agree with Lessig that the law was terrible public policy and that it plausibly violated the Copyright clause in Article I. And his losing the case is not, in itself, a basis for criticism — I doubt Zombie Daniel Webster could have transformed the 7-2 loss into a victory.

What was strange was his strategic approach. While his allies urged him to emphasize the terrible public policy consequences of upholding the Sonny Bono Act, Lessig decided to go with a formalist approach. The theory he offered was that in light of the restrictions on Congress the Court placed based on the commerce clause in Lopez and Morrison, the purportedly originalist majority on the Court was therefore compelled to enforce restrictions on Congress based on the Copyright clause.

It’s rather astounding that a major legal scholar would take this approach, which the the kind of quarter-baked gotcha you’re more likely to encounter in blog comments than from people arguing cases at Supreme Court. (Someone once bet me that there was no way, in light of Lopez, that the Supreme Court would uphold the federal ban on “partial-birth” abortion. He didn’t pay up when he was proven wrong.) And leaving aside Lessig’s decision to ignore even the most basic insights of legal realism, the strategy made little sense on its own formalist terms. Lopez was not a sweeping originalist opinion that swept away decades of precedent; it was a very narrow opinion that was careful to leave the basic Wickard framework undisturbed, written by a justice that (like at least two other members of the majority) rarely showed any particular interest in grand theory. The idea that Lopez logically required the narrow reading of another clause in Article I is deeply strange.

But don’t take my word for it, take Lessig’s:

If, that is, the principle announced in Lopez was a genuine principle. Many believed the decision in Lopez represented politics—a political preference for states’ rights, gun ownership rights, and so on. But I rejected that view of the Supreme Court’s decision. Shortly after the decision, I wrote an article demonstrating the “fidelity” of such an interpretation to the Constitution. The idea that the Supreme Court decides cases based upon justices’ political preferences struck me as extraordinarily boring. I was not going to devote my life to teaching constitutional law if these nine justices were going to be petty politicians.


THE MISTAKE WAS MADE EARLY, though it became obvious only at the very end. Our case had been supported from the very beginning by an extraordinary lawyer, Geoffrey Stewart, and by the law firm he had moved to, Jones, Day, Reavis & Pogue. There were three key lawyers on the case from Jones Day. Stewart was the first; then, Dan Bromberg and Don Ayer became quite involved. Bromberg and Ayer had a common view about how this case would be won: We would only win, they repeatedly told me, if we could make the issue seem “important” to the Supreme Court. It had to seem as if dramatic harm were being done to free speech and free culture; otherwise, the justices would never vote against “the most powerful media companies in the world.”

I hate this view of the law. Of course I thought the Sonny Bono Act was a dramatic harm to free speech and free culture. But I was not persuaded that we had to sell our case like soap. In any event, I thought, the court must already see the danger and the harm caused by this sort of law. Why else would the justices have granted review?

In fairness, this was not just a postmortem but a mea culpa; Lessig, to his credit, admits that he was willfully naive and that this was a serious mistake. But his subsequent adventures in activism suggest that he didn’t really learn anything. He’s not interested in correct answers (i.e. “generating mass mobilization around procedural issues is enormously difficult; in the current political context, there’s no strategy that can get national Republicans to vote for electoral reform; getting something like the Citizens Equality Act passed will require the kind of favorable legislative context necessary to pass comprehensive health care reform, and what activists need to focus on is making sure electoral reform is at the top of the agenda the next time the opportunity arises”) if they seem bor-ring. He’d rather come up with a magic bullet that will allegedly change things RIGHT NOW, especially if it involves casting himself in a heroic role, even if it requires all known realities about American politics. And when the approach inevitably fails, it’s time for the next attempt to pretend that politics is the rapid boring of soft boards with a power drill. And while making bad arguments in law reviews or seminar rooms is no big deal, when lousy ideas are the basis for quixotic campaigns that squander resources that would be better spent elsewhere they’re far from harmless.

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