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Heritage or Hate?

[ 27 ] June 22, 2015 |

Both, of course.

On the Haley Speech

[ 116 ] June 22, 2015 |


  • I think Haley merits praise for this action.  People called for South Carolina to take down the flag.  She called for it to be taken down.  I, myself, take yes for an answer.  (And while she’s not running again, plenty of public officials in the South who have safe seats or aren’t running again haven’t done the right thing.)
  • Yes, she had to be pushed by a horrible event.  But as Coates says, when it comes to politicians this is very nearly a tautology.  (You think  LBJ would have had a major record of accomplishment on civil rights had he been elected president in 1952?)  Politicians, up to and including Lincoln, act in politically expedient ways, and doing so is integral to progressive success.
  • It should also be obvious that politicians doing good things doesn’t follow from public pressure as night follows day.  There are many, many public officials  who don’t do the right thing in the face of bad events and public pressure.  (Seven Southern states don’t have Confederate symbols on their flags because of a lack of racist violence or because of a lack of opposition from civil rights groups.)  Cf. also the Republican Party and the Affordable Care Act passim.
  • Yes, it’s only symbolism.  You know what?  Sometimes symbols matter.  When a state-sanctioned symbol of treason in defense of slavery and lawlessness in defense of apartheid flies on the state capitol grounds, informing the state’s citizens that they’re second-class citizens, that matters.  When Republican presidential candidates feel the need to defend the practice every four years that matter.  When a Republican governor who may well have national political ambitions says nuts to this, wrong is wrong, that matters.   Yes, this does not singlehandedly transform South Carolina’s politics and the South Carolina Republican Party is not going to be a reliable vehicle for racial justice, news at 11.  To the zero liberals who will argue that this makes Haley a progressive hero, I will disagree in advance.  Sometimes, politicians who aren’t admirable from a progressive point of view do good things.  This is one of them.

Knowing Your Audience Is Mostly NERDS

[ 47 ] June 22, 2015 |


Scalia’s decision to give Kimble v. Marvel Entertainment to Kagan was inspired:

  • “The parties set no end date for royalties, apparently contemplating that they would continue for as long as kids want to imitate Spider-Man (by doing whatever a spider can).”
  • “Patents endow their holders with certain superpowers, but only for a limited time.”
  • “To the contrary, the decision’s close relation to a whole web of precedents means that reversing it could threaten others.”
  • “What we can decide, we can undecide. But stare decisis teaches that we should exercise that authority sparingly. Cf. S. Lee and S. Ditko, Amazing Fantasy No. 15: “SpiderMan,” p. 13 (1962) (“[I]n this world, with great power there must also come — great responsibility”).”

Substantively, the case is another example of the disagreement between Scalia and Thomas about the value of stare decisis. While I’m dubious about the idea of “superpowered” precedents in general, in this case — involving statutory interpretation in an area of law in which Congress has been very active and contract law — it makes a certain amount of sense. I also thought Kagan’s discussion of the implications of stare decisis was interesting:

Respecting stare decisis means sticking to some wrong decisions. The doctrine rests on the idea, as Justice Brandeis famously wrote, that it is usually “more important that the applicable rule of law be settled than that it be settled right.” Indeed, stare decisis has consequence only to the extent it sustains incorrect decisions; correct judgments have no need for that principle to prop them up.

I don’t think this is strictly accurate. Stare decisis could also have value in preserving rules that in the first instance could have been reasonably decided either way in the interests of stability. But courts generally prefer not to be explicit about how much discretion they have — “correct” and “incorrect” sound more authoritative than “a decision in a case that could have plausibly come out either way.”

Monday Morning Coming Down Links

[ 72 ] June 22, 2015 |

The Silver Bullet That Will Create A Progressive South Doesn’t Exist

[ 228 ] June 21, 2015 |


There are a couple comments to Paul’s post about Rick Hills’s “don’t talk about the racist flag” argument that bear citing.

First, from Tyro:

The entirety of post-Civil War history in the USA has been about the idea that letting the south hold on to their “heritage” and looking the other way regarding the consequences, instead of “naming and shaming” would be better for everyone. And after 150 years, the problems persist. Time to find another solution.

And second, from Abagail Nussbaum:

It is surely trivially, obviously true that you will not change hearts and minds by telling people “your culture is bad and you should feel bad.” Especially in a culture that already so coddles white people’s self-image, the possibility of this message being seen as anything other than an attack to be defended against is nonexistent. I have to say, looking at it from the outside, I’ve found the focus on the Confederate flag, understandable as it is, rather self-defeating. It seems to be more about self-gratification and taking out some amount of the terrible anger aroused by this massacre than any actual progress towards ensuring that nothing like it ever happens again.

Having said all that, is there any reason to believe that changing hearts and minds is even on the menu? It would be comforting to think that the one good thing to come out of this horror would be some real change, but I actually think the lesson from it is going to be that the political and social will to make that change doesn’t exist. (I saw someone online make the same point about Sandy Hook – if the murders of first-graders made no difference to the US’s commitment to arming itself to death, nothing ever will.) So why not burn flags and wave bloody shirts in the faces of people who would like to believe that they’re the real victims of a system that benefits them disproportionately? You won’t change their minds, but you might make some of the more open-minded people listening realize just what sort of world they’re living in.

There are a variety of reasons why I don’t like persistent arguments that if there was only some way of declaring a “truce” in the culture war then a natural progressive coalition on economic issues would finally emerge throughout the country. First of all — although, to be clear, I don’t think this is what Hillis means — issues like “silly women and their trivial reproductive rights” have a tendency to get subsumed in the “culture war” issues liberals are urged to abandon.

But Tyro really gets to the heart of the matter. The brutal truth is that most of American political history is an experiment in seeing what will happen if national political elites agree not to offend white supremacist Southern white men. The New Deal coalition agreed to take civil rights off the table from FDR until briefly Truman and then JFK, and the result was after a brief period of supporting (threadbare) national welfare state policies (that largely excluded African-Americans) during a period of particularly acute deprivation, Southern Democrats happily joined with Republicans to thwart economic reforms and pass Taft-Hartley with a veto-proof majority. Republicans took civil rights off the table by 1891, and in the resulting context Albama’s constitution was basically written by timber companies. The Jacksonian party system was essentially organized to take slavery off the table, and during this period the Southern Democrats who dominated the federal government largely had reactionary economic views.

I dunno, maybe at some point we have to consider the possibility that a lot of non-super-affluent white Americans, particularly outside of the northern coasts and upper midwest, have conservative economic views, or at least persistently vote for people with conservative economic policies for reasons that can’t be easily boiled down to culture war distractions. 1.2% of Kansas’s population is African-American,* and yet a majority of its electorate liked draconian spending cuts and tax increases on the poor to fund huge tax cuts for the wealthy so much they voted for more. I’m not saying that we should despair of this ever changing. But by the same token, the idea that “a cross-racial rural coalition rooted in church and guns” will emerge if we can only find the right kind of clever false-consciousness destroying rhetorical strategy is, at this late date, implausible in the extreme.

Does this mean that I think that drawing attention to the ugly history of the Confederate flag will lead to progressive economic outcomes in South Carolina either? No, but the history is true, and I think the burden of proof is always on those who want to deny the truth. And nor am I inclined to tell the multiracial coalition in South Carolina protesting against the Confederate flag that they should stop paying attention to mere white supremacist symbolism and focus on Real Issues.

*xq in comments is correct: I misread the chart.  The correct figure is 6.2%.  Since this is well below the national average I don’t think this materially affects my point, although on this narrow point Idaho or Utah would be better examples.

But the broader point about Kansas, and the reason I cited it, is that I don’t think anyone can reasonably say that the 2014 election came out the way it did because of “culture war” “distractions.”  Economic policy was the focus of Brownback’s first term.  It was the salient issue in the elections.  He signed legislation representing an extreme form of conservative Republicanism, it couldn’t have worked out any worse, and he won anyway.  It’s just very difficult to square this election with the idea that if some issues arbitrarily designated as “culture war” issues are boiled off a natural liberal majority would emerge.


Wherever Someone Needs to Defend White Supremacy, the National Review Will be There

[ 162 ] June 19, 2015 |

174_2317_1_lgHeritage, Not Hate

Edward Baptist, author of the superb The Half Has Never Been Told, had a series of tweets yesterday (usefully compiled here) laying out the history of the Confederacy and the Confederate flag. As I said yesterday, the Confederate flag “originated as a symbol of treason in defense of slavery that was repurposed as a defense of apartheid during the massive resistance to Brown v Board of Education.” It’s really not terribly complicated.

Which won’t stop people from trying! Given its history, you will not be surprised that the National Review stepped up to the plate, with Ian Tuttle sniffing that “It’s not a straightforward topic, whatever Vox may say.” So what, exactly, is the difficulty?

But with respect to Ms. Kendall, this hateful man’s use of a slogan is no proof that the slogan itself is hateful. Elected leaders make this distinction constantly when it comes to Islamic terrorism, after all: The teachings of Muhammad, the Koran, the black flag with the Shahada (the flag of ISIS) — they have been “hijacked” and “perverted.” Why hasn’t Dylann Roof merely “hijacked” or “perverted” the main symbol of the Confederacy?

Well, yes, in itself the fact a white supremacist killer found the Confederacy an attractive symbol does not prove that the Confederate flag is a white supremacist symbol. What makes the Confederate a white supremacist symbol is that the Confederacy was explicitly founded to protect slavery, and the Confederate flag was then revived as a symbol supporting private and state violence to maintain white supremacy in the South during the Civil Rights era. It’s pretty hard to argue that someone engaging in white supremacist violence is “hijacking” or “perverting” the “main symbol of the Confederacy” when white supremacist violence is what the Confederacy and its main symbol are all about. (This defense is made even more ridiculous when you find out that Tuttle is willing to suggest that Muslims do bear responsibility for Islamic terrorism.)

To that the obvious answer would be, Because the flag in question is the symbol of a cause rooted in hatred and racial oppression. But it is exactly that point on which persons of good faith can — and do — disagree. One does not need to think the Civil War was the “War of Northern Aggression” to think that the “Blood-Stained Banner” represents something more than visceral racial hatred.

At this point, one might expect some kind of argument for what the Confederate flag represents other than a commitment to white supremacy defended through violence, given its unambiguous history of association with white supremacy defended through violence.  But there isn’t one.  Tuttle doesn’t explain what the Confederacy stands for other than white supremacy; he has no explanation for why the Confederate flag was revived as a symbol when it was.  There’s nothing but bare assertion.

Amazingly, it gets worse:

Yet much of the reason the Confederate flag is so contentious is because objections to it are not raised in good faith. Many opponents of Confederate symbols demonstrate not to promote the reduction of racial tensions and the advancement of a shared good, but out of a desire to impose their own moral outlook on dissenters — because it suits their present-day interests. Racial identity and the interests of one’s own racial group are of outsize importance in leftwing politics. Those interests are furthered when history can be invoked in one’s favor; thus today’s “racial activists” are keen to cast the the Civil War as a simple contest of Good-versus-Evil — even though it is obvious that, pace Ta-Nehisi Coates, the American South was not analogous to Nazi Germany, and the Confederate flag is not the Third Reich’s swastika. Arguments to the contrary have in mind not a proper interpretation of past events, but the manipulation of those events to bolster a present-day agenda.

So we have some vacuous blah-blah-blahing about “identity politics” — something certainly not practiced by White Southerners who proudly display white supremacist symbols, but only by people who opposed them. And then we have a bare assertion, making not the slightest attempt to engage with the historical record, that the Confederate flag is not analogous to the swasitka, with no argument beyond “it is obvious.” It is not!

Presumably, they’re drawing straws at the NRO to determine who will get to argue that Roof is an agent provocateur acting on behalf of ACORN and the Black Panthers.

Friday Links

[ 6 ] June 19, 2015 |

What Are the Odds That a Symbol of Treason in Defense of Slavery Would be Associated With A Racist Nut?

[ 68 ] June 18, 2015 |


Via gocart mozart in comments, this is priceless:

We reached the national spokesman for the Sons of Confederate Veterans just moments ago, just after he had been told that early reports out of South Carolina suggest that the man police have arrested in connection with last night’s massacre at a historic black Charleston church had a confederate plate on the front of his car.

Ben Jones, a former Georgia Congressman made famous for his role as Cooter in Dukes of Hazzard, reacted bitterly to the news.

“Now to hear that this son of a b**ch had a Confederate plate,” Jones said in an interview with The News moments ago. “That said it all for me. Those people are the ones who are defining this issue and not the millions and millions of good people who see it as a symbol honoring their ancestors. It’s a crying shame. Symbolism is a power thing. Carl Jung said that. And it’s the winners who write the history. There’s nothing we can do about it. You can’t appeal the Supreme Court.

“But it won’t make me feel any differently [about his ancestors}. Except to make me more angry at the bigots and racists who desecrate the Confederate symbols,” he said.

Admittedly, this puts Jones one up on Nikki Haley, who asserted that we can’t possibly know what motivated Dylann Roof. Right, trying to determine Roof’s motives is impossible, like trying to determine why South Carolina started flying the Confederate flag at its capitol in 1962.

Speaking of which, I think Coates deserves to be linked twice.

Moral cowardice requires choice and action. It demands that its adherents repeatedly look away, that they favor the fanciful over the plain, myth over history, the dream over the real. Here is another choice.

Take down the flag. Take it down now.

Put it in a museum. Inscribe beneath it the years 1861-2015. Move forward. Abandon this charlatanism. Drive out this cult of death and chains. Save your lovely souls. Move forward. Do it now.

Confederate License Plates and the First Amendment

[ 53 ] June 18, 2015 |


Today was probably not the ideal day for four members of the Shelby County majority to find that Texas was constitutionally required to issue a specialty license plate with the Confederate flag. Unlike Shelby County, Alito’s dissent is not unreasonable.  But I think the majority (the 4 Democratic nominees + Thomas) drew the line in the right place. 

Essentially, the question in this case is whether specialty plates are private speech or government speech.  If the former, then Texas’s refusal to print the Treason In Defense of Slavery plate is plainly unconstitutional viewpoint discrimination.  If the latter, refusing to endorse white supremacist symbols is certainly within the state’s discretion.  There’s a companion pending case about whether North Carolina can offer a “Choose Life” plate but not a pro-choice one that allows one to focus on the speech issue rather than the flag per se.  I remain inclined to think that the Court is right that this is government speech and while states can celebrate lawlessness in defense of apartheid on government IDs if they choose to, I don’t think they are required to.

Alas, this does mean I won’t be able to start a campaign arguing that Virginia is constitutionally obligated to issue a license plate featuring Sherman and Grant burning the Confederate flag.

The Horror in South Carolina

[ 290 ] June 18, 2015 |

EP-141009948.jpg&MaxW=520&q=85Above: a state capitol. In 2015.


I don’t think I have anything to tell you about the killings in South Carolina that you don’t already know. I can tell you that the Charleston Post and Courier has been doing absolutely remarkable work, and that Jamelle Bouie’s piece on Emanuel African Methodist Episcopal Church is essential.

Today in the American Meritocracy

[ 58 ] June 17, 2015 |


Mark Penn apparently brought the same quality of ideas to Microsoft that he did to the Clinton campaign:

Another key departure sees Mark Penn leave Microsoft in September. Penn was the main driving force behind Microsoft’s highly criticized Scroogled campaign. Penn says he is leaving Microsoft to form a private equity fund, but his departure could see him rejoin the political world ahead of the the upcoming presidential campaigns.

1)The list of investors willing to invest in Mark Penn’s equity fund would be one of the most valuable collections of leads in sales history. 2)If he goes the “rejoin the political world” route, I recommend that he try his more natural ideological allies in the Republican Party.

The Aftermath if King Is Decided Correctly

[ 50 ] June 17, 2015 |


We’ve discussed the politics of the Supreme Court announcing that the card says “Moops!” extensively.  But what if the Court correctly interprets the statute?  Here, I agree with Brian Beutler that things will get very messy for Republicans:

But it is also quite conceivable that the whole effort will boomerang on the GOP  even if the government wins in King, and the federal subsidies survive for those states using federally facilitated exchanges. A number of persuasive legal arguments point to a victory for the government. But one of the most likely paths begins with the Court concluding that the Affordable Care Act statute is ambiguous—that both parties’ readings of the law are plausible—and that deference should go to the government.

As Chief Justice John Roberts suggested with his one and only question at oral arguments, this would leave the door ajar for a future presidential administration to reinterpret the statute, and discontinue the subsidies.

It’s difficult to fathom that any Republican president would turn off the subsidies quite as abruptly as the challengers want the Court to do. But if the government wins in this way—on what’s known as the second step of the Chevron deference standard—it will create a new conservative litmus test for Republican presidential candidates. If elected, will you shut down the subsidies? I suspect most of the candidates will yield to pressure from the right and promise to do precisely that. Most immediately, this promise becomes a general election liability for the Republican primary winner. If that person becomes president, it will turn into an administrative and political nightmare, forcing states and the U.S. Congress to grapple with a completely elective policy fiasco.

I would guess that if the government wins in King — not what I’d bet on, but certainly possible — it will indeed be on Chevron deference grounds.  (Let me pause here to concur with Stephenson and Vermeule that for all intents and purposes Chevron is a one-step test.)  Roberts is right that this would allow President Trump to order the IRS to stop issuing the subsidies to free up money for his proposed solid gold toilet tax credit.  My guess is that whatever they say during the primaries, a Republican president would not unilaterally stop the subsidies.  I wouldn’t put anything past a contemporary Republican, but I think it’s more likely that the president won’t act without congressional collaboration.

But, certainly, the politics of this are genuinely bad for the Republicans.  Clinton should by all rights be able to make a big deal of this in the debates, and any candidate who survives the Republican primaries will presumably have had to make some kind of promise to wreck the federally established exchanges.  And while the Court upholding King on Chevron grounds won’t make the federally established exchanges invulnerable to future interference from a Republican president, it would at least pretty much ensure that political responsibility is apportioned correctly.  The Republicans might be able to evade accountability if the Court does their dirty work, but a Republican president unilaterally ending the subsidies is a different story.  They would own it fully.

I’m skeptical of the idea that the Republican Party would lose for winning King.  But they would definitely lose big by losing, barring the unlikely event that five justices find that the ACA unambiguously provides tax credits for the federal exchanges.

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