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Category: General


[ 43 ] July 2, 2015 |

I just watched Marjoe, the 1972 documentary about an ex-child preacher turned hippie who supported himself by going back out on the preacher circuit even though he believed none of it. It’s pretty great. If you want to understand why the current wingnut world is a giant grift, this is a good place to start as he gives out all the secrets. This film won Best Documentary at the Academy Awards. He then went on to appear in 17 episodes of Falcon Crest in the 80s. Here’s an excerpt.


[ 43 ] July 2, 2015 |

Whew, for a second I was worried that the “neoconfederate apologist in 2015″ niche in the Democratic primaries would go unfilled. And, fortunately, he also takes care of the “people who would have a 0% chance of winning the nomination even if every other candidate were to get killed in a blimp accident today” niche in case Linc Chaffee drops out.

Antonin Scalia’s Fraudulent “Textualism”

[ 54 ] July 2, 2015 |

Scalia gesture

Patterico argues that federal judges not abiding by the tenets of ACA tooferism is not merely wrong, it’s an impeachable offense:

I would support all manner of reactions that the GOP will lack the guts to try — and that, if they did try, would cause them to get shellacked in the elections. For example, I would support impeachment of any and all of the Justices that voted in the majority of either King v. Burwell or Obergefell. That, in my view, is a proper constitutional reaction to lawless decisions (notwithstanding the disastrous precedent established by the Samuel Chase impeachment proceedings).

There are countless ways of demonstrating that this argument is being made in bad faith. But let’s go with my favorite one, the Rehnquist Court’s “sovereign immunity” jurisprudence. The Eleventh Amendment reads, in its entirety:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

Despite what people who think that disagreeing with their interpretations of the 14th Amendment is an impeachable offense will tell you, most of the constitutional provisions whose interpretation leads to frequent Supreme Court cases are so broadly worded that the text does not yield technically “correct” or “incorrect” answers in a case of any interest. Reasonable people can disagree with what constitutes a “cruel and unusual punishment” or a denial of the “equal protection of the laws.” (This broad wording is necessary: an 8th Amendment that listed specific punishments rather than enacting a general principle against “cruel and unusual punishment” would essentially be a roadmap for how to get away with torture, in addition to becoming instantly obsolete.)

The 11th Amendment is an exception: it enacts a clear and specific restriction, not a general principle. It forbids a state from being sued in federal court without its consent by any citizen of another state or a foreign state. By implication, the amendment also answers another question: a state can be sued in federal court by a citizen of the state. The amendment could have been easily worded to ban any federal suit against a state; the fact that it didn’t logically requires the conclusion — absent another constitutional provision or act of Congress saying so — that citizens retain the right to sue their state government in federal court.

As it happens, in 1991 the author of the spittle-drenched dissent in King v. Burwell had the opportunity to address this very question. And:

Despite the narrowness of its terms, since Hans v. Louisiana, we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms: that the States entered the federal system with their sovereignty intact; that the judicial authority in Article III is limited by this sovereignty.

If the Eleventh Amendment forbids citizens of a state from suing their state government, one might say, words have no meaning. But that’s what the Court ruled.

At this point, I might be accused of committing a tu quoque fallacy. Since I’ve been consistently critical of the ridiculous line of “sovereign immunity” cases, am I therefore required to declare that the card says “Moops”? Of course not. In the ACA case, the “Exchange established by the State” language is embedded within a statute that takes up 1,000 pages of the U.S. Code. It is an elementary principle of statutory construction that statutory language must be read in the context of the statute as a whole. In this case, reading the isolated phrase as denying tax credits on exchanges established by the federal government on the state’s behalf produces an absurd result that contradicts both other specific provisions of the law and the general purpose of the statute. Which is why 6 members if the Supreme Court, including one justice who believes the law to be unconstitutional, refused to bite this particular lemon.

With the 11th Amendment, conversely, there is no other text — it says what it says in one sentence and that’s it. The text read properly does not produce an absurd result; it is perfectly logical to make state governments accountable in federal court to their own citizens but not to those in of other states or nations. As Justice Souter explains in his dissent in Seminole Tribe Congress considered but rejected language that would bar suits against a citizen’s own state. Conversely, no legislator involved with the ACA ever suggested the preposterous idea of going to the trouble of establishing a federal backstop that wouldn’t work; that idea is solely an ex post facto invention of the statute’s most fanatical opponents.

Justice Scalia attempts to get around all this by making a structuralist argument about the meaning of the Constitution as a whole. I don’t think there’s anything wrong with this method of interpretation (although Scalia’s King dissent would rule it out.) But in this case, the argument is lousy. It’s true that states retain their “sovereignty,” but the idea that royalist assumptions of immunity for states that violates the rights of citizens upon whose consent the legitimacy of the government rests is an essential element of sovereignty in a democratic state is the purest question-begging, and perverse question-begging at that. If anything, the presumption created by a Constitution that “guarantee[s] to every State in this Union a Republican Form of Government” should be the opposite. There’s certainly not nearly enough there to overcome the very strong presumption created by the specific wording of the Eleventh Amendment.

And yet, I can find nothing in Patterico’s archives calling for the impeachment of Scalia and Thomas (or Alito, who also shares this misreading of the Eleventh Amendment.) Indeed, as a first approximation the group of people fulminating against King who have anything critical to say about the “sovereign immunity” cases is a null set. I wonder what could possibly explain this?

Oh, and as for the idea that the Obergefell majority should be impeached, I have a certain equal protection case to discuss…

Does It Violate the Constitution to Not Admit Students Who Wouldn’t Be Admitted Anyway?

[ 102 ] July 2, 2015 |

The Supreme Court seems poised to rule all public affirmative action programs unconstitutional, although Anthony Kennedy might step in with another one of his “affirmative action might be permissible in theory although it never is in practice” specials. This would be regrettable, as well as revealing the “originalism” of Thomas and Scalia for what it is. Jamelle Bouie reminds us of an instructive fact about this particular plaintiff:

What’s striking about this case—and what makes it frustrating to some observers—is the curious question of Fisher’s academic record. Put simply, as Nikole Hannah-Jones documented for ProPublica, affirmative action wasn’t her problem.


Neither special circumstances nor grades were determinative. Of the 841 students admitted under these criteria, 47 had worse grades than Fisher, and 42 of them were white. On the other end, UT rejected 168 black and Latino students with scores equal to or better than Fisher’s.

To call this discrimination is to say that Fisher was entitled to a space at the UT Austin, despite grades that didn’t make the cut. It’s worth pointing out that the university gave her the choice of transferring from a satellite school, which she rejected.

Despite the “taking slots from people who deserve them” narrative so beloved by opponents of affirmative action, the “victims” are highly likely to be these kinds of very marginal cases, coming from the part of the applications process where distinctions are essentially arbitrary. Using diversity is a criteria in making these otherwise arbitrary distinctions isn’t bad policy and doesn’t violate the Constitution.

Today in Racist History

[ 76 ] July 2, 2015 |


This month is the 50th anniversary of the Moynihan Report. Stephen Steinberg:

A few weeks after Moynihan’s report was leaked to the press, the Watts neighborhood in Los Angeles exploded in violence, triggered by an incident with police that rapidly escalated into five days of disorder and left thirty-four people dead. Pundits and politicians seized upon the report to cast blame for the “riot” on the deterioration of “the Negro family.” The report warned, “The family structure of lower class Negroes is highly unstable, and in many urban centers is approaching complete breakdown.”

Critics condemned the report for pathologizing female-headed households and black families in particular. The most trenchant criticism, however, was that the preoccupation with black families shifted blame away from institutionalized inequalities and heaped it on the very groups that were victims of those inequalities. As James Farmer, cofounder and national director of the Congress of Racial Equality, wrote with blunt eloquence, “We are sick unto death of being analyzed, mesmerized, bought, sold, and slobbered over while the same evils that are the ingredients of our oppression go unattended.”

Today, in the wake of Ferguson and Baltimore, family dysfunction is again cited by politicians, pundits, and scholars as the root of the problem. Rand Paul publicly twaddles about “the breakdown of the family structure, the lack of fathers, the lack of sort of a moral code in our society.” David Brooks opines in the New York Times, “The real barriers to mobility are matters of social psychology, the quality of relationships in a home and a neighborhood that either encourage or discourage responsibility, future-oriented thinking, and practical ambition.” And sociologist Orlando Patterson asserts that “fundamental change” can come only from “within the black community: a reduction in the number of kids born to single, usually poor, women.”

Steinberg goes on to break down the intellectual sources for the Moynihan Report, particularly Nathan Glazer. Intellectual racism that blames people of color for their own poverty has not diminished in the last half-century. Any number of racist sites refer back to Moynihan today; meanwhile this paragon of institutionalized racism became a respected Democratic senator without ever questioning his blaming of black people for their own poverty and ending his career as a big supporter of slashing welfare. Among other great things in this man’s life was ensuring the UN did nothing to stop the Indonesian slaughter in East Timor when he was UN Ambassador during the Ford administration and opposed the Clinton health care plan.

This Day in Labor History: July 2, 1980

[ 10 ] July 2, 2015 |


On July 2, 1980, the Supreme Court ruled in Industrial Union Department AFL-CIO v. American Petroleum Institute that the Occupational Safety and Health Administration must take economic considerations into account when issuing regulations. This 5-4 decision severely impacted the ability of the government to take an aggressive and preemptive stand against workplace health problems.

One thing that often gets left behind in discussions of OSHA is the health part of the agency’s mission. We focus on safety. That’s because those issues are easier to take care of. You put proper protection around a saw and it becomes a lot less dangerous. But health is a whole other issue. You have a couple of issues making it so. First is the long term impact of work upon health, which means that occupational illness can take decades to become apparent. Second is that remaking worksites so that workers aren’t exposed is a lot more expensive than the saw guard. Protecting workers from benzene, toxic gases, or dust has real challenges. And those solutions can be expensive.

The Occupational Safety and Health Act of 1970 charged the federal government with protecting workers on the job from industrial hazards. OSHAct stated, “no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life.” It built on the “Precautionary Principle” that was in favor during these years for dealing with workplace safety and health issues, addressing environmental uncertainties in the regulatory process before they became problems. That means in the case of workplace health trying to figure out what substances might cause health problems and preemptively eliminating them. That requires action even if scientific data doesn’t exist that suggests there is a problem, but only that there could be in theory. This principle drove the move toward environmental and workplace regulation during the 1970s in both the United States and Europe. But the political implications of this were not worked out in the legislation and Congress gave OSHA a lot of leeway in figuring out how the agency would actually operate.

OSHAct tasked the Secretary of Labor is bound to set out rules for substances like benzene, even if only one worker might become unhealthy due to exposure. It was benzene at play in Industrial Union Department. OSHA sought to regulate benzene, an carcinogen, but without really nailing down how many workers’ lives would be saved in doing so.

The American Petroleum Institute decided to fight this, even though the petroleum industry clearly had the money to protect its workers from benzene exposure (it didn’t even bother arguing otherwise). Industry had engaged in a court campaign to slow down OSHA from its beginning, challenging the agency at every turn. On the other hand, the AFL-CIO led the charge to save the Precautionary Principle, building on its significant progress in fighting for workplace health in the 1970s. OSHA finally was up and running at full capacity by the late 1970s with Jimmy Carter naming Eula Bingham as the agency’s head. Bingham, the first OSHA director who really supported the agency’s mission, sought to remake workplace environments around the nation, often with the active support of those unions who saw the agency as a way to empower workers on the shop floor to protect themselves and express workplace power at the same time. So defending the Precautionary Principle became a top OSHA priority after 1977. Bingham’s OSHA created standards for acrylonitrile, cotton dust, lead, arsenic, and benzene.

Yet for organized labor, this was very slow progress. By 1981, the National Institute on Occupational Safety and Health (NIOSH) had recommended 250 standards but OSHA had only implemented 21 of those. Only 4 of these standards dealt with cancer-causing agents. In my forthcoming book on timber unions, I discuss in some detail how the International Woodworkers of America (IWA) was frustrated that their concerns on a wood dust standard was not taken seriously enough by OSHA. So for corporations, these standards were outrageous and for workers, they were too little and usually too late. The Precautionary Principle was a great idea but workers in the 1970s were impatient and wanted immediate remediation of the problems of work.

In the case itself, more popularly known as the benzene case, the Court had two primary objections. First was to rule on the benzene standard itself, specifically the reduction of benzene at the workplace from 10 parts per million to 1 ppm. Second was whether OSHA needed to have a “reasonable relationship” between the costs and benefits of new standards. The Court’s majority (John Paul Stevens wrote the opinion with Burger and Stewart in the majority while Rehnquist and Powell wrote concurring opinions) decided to read Congress’ mind in interpreting the Occupational Safety and Health Act, assuming Congress couldn’t have meant to protect all workers from all health risks without cost consideration. Effectively, the Court rejected the Precautionary Principle as an unreasonable standard with which to hold business. A plurality tried to create a standard for workplace health that would activate OSHA action, rather unhelpfully noting that it should lie somewhere between a 1 x 1000 chance of illness and a 1 x 1,000,000 chance. What this did was allow the Reagan administration to effectively avoid health regulations on the job at all after it took power in 1981 by adhering to the 1 in a million standard. Thurgood Marshall wrote a blistering dissent (Brennan, White, and Blackmun making up the rest of the minority) saying the decision placed “the burden of medical uncertainty squarely on the shoulders of the American worker.”

Despite Industrial Union Department, American work is much safer and healthier today than it was decades ago. Unfortunately, a lot of the reason for that is the outsourcing of such work to Latin American and Asian nations where workers labor in health-destroying conditions making products for American consumption.

While researching this case, I ran across a celebratory essay about the decision by one Antonin Scalia in an American Enterprise Institute publication.

The roots of this week’s decision in Michigan v. Environmental Protection Agency
can be seen in Industrial Union Department, as Scalia’s opinion relied heavily on the same cost-benefit analysis as that case.

I don’t think there is a single book that really deals with this case effectively, but it is mentioned in Gerald Markowitz and David Rosner’s Deceit and Denial: The Deadly Politics of Industrial Pollution, which is a very good book on the larger issue of workplace health. I also consulted Albert Matheny and Bruce Williams, “Regulation, Risk Assessment, and the Supreme Court: The Case of OSHA’s Cancer Policy,” in Law and Policy, October 1984.

This is the 149th post in this series. Previous posts are archived here.

The Neo-Confederate Response

[ 49 ] July 1, 2015 |


The racists have burned 8 black churches in 10 days.

Movie scene bleg

[ 25 ] July 1, 2015 |

Help out here all-knowing LGM collective consciousness.

I have a vague memory of a fairly recent film (like in the last 10-12 years) in which police interrogators try to intimidate a suspect they’re interviewing by pulling their guns and laying them on the table in front of the witnesssuspect. I think this might have been a Ben Affleck movie (The Town?) (Gone Baby Gone?).

Does this ring a bell? Also, extra kudos to anyone who can find a Youtube clip.

. . . actually I’m interested in any film (or TV show episode) that features this scenario, not just the one I sort of remember.

The Subway

[ 77 ] July 1, 2015 |


It’s amazing the New York subway system works at all.

But the fundamental reason the MTA is so hard to fix, say transit experts both inside and outside the authority, goes back to those antediluvian switches. The MTA runs one of the largest transit systems in the world on a budget that’s dependent on the whims of elected officials in City Hall and Albany. It’s the equivalent of trying to change the engine and tires on a 1930 Studebaker while driving cross-country at top speed and hoping you can find enough spare change between the seat cushions to buy parts.

“We’re trying to address three or four decades’ worth of disrepair and disinvestment,” says MTA planning director Bill Wheeler. “The last time people sunk money seriously into the subway system was before World War II. It’s taken us a long, long time to come back, and that’s why much of the capital program is about rebuilding.”

“New York started off behind a lot of other places, because most other places haven’t let their physical plant deteriorate to the extent that New York has,” agrees Richard Barone, director of transportation programs for the Regional Plan Association (RPA), one of the local groups that has pushed hardest for improved transit infrastructure. It’s a problem that started in the 1950s and 1960s, when local budgets got tight and subway service for a shrinking (and increasingly nonwhite) city populace no longer seemed like a priority.

“New York really just ignored investing in its infrastructure,” says Barone. “So it took decades to rebuild what we had lost because of neglect.” And while the MTA has spent more than $100 billion on improvements since its first capital plan in 1982 — almost every subway car has been replaced in that time, for starters — Barone says the agency remains in “catch-up” mode.

And of course there’s huge parts of the city the system does not touch. Yet it’s still reasonably reliable. In my limited experience, it seems more functional than that of Washington. I’ll find out more about that in the next few weeks as I’ll be in the nation’s capital for most of July researching a new project and enjoying that sweet, sweet DC weather.

Why Honoring Jefferson Davis Is Unacceptable

[ 109 ] July 1, 2015 |


The discussion that starts here raises a very important point. There’s one defense of monuments to Confederates that runs something like “sure, Davis was a slaveholder, but we have slaveholders on the $1 and $2, a white supremacist on the $5, a slaveholder and ethnic cleanser on the $20, and so on. Why is Davis different?”

I think the answer to this should be clear. There’s a difference between honoring a slaveholder or white supremacist from the 18th or 19th century and honoring them for their support for slavery and white supremacy. Washington isn’t on the $1 because he was a slaveholder, but because he was the first (and still one of the best) presidents and also a major leader in the Revolutionary War. Lincoln is widely honored because of his crucial role in preserving the union and smashing the slave power, not because of the belief he held for most of his life that a multiracial democracy was impossible. The Constitution protected slavery, but its sole purpose was not the protection of slavery. (And we should also remember that the options the framers had in 1787 were a Constitution that provided some protection for slavery, or no deal. The idea that Virginia or Georgia or South Carolina would have agreed to an antislavery constitution with better bargaining is Green Lanternism that makes “Obama could have made Joe Lieberman vote to nationalize the American health care industry” look plausible.) The Revolutionary War and the Constitution were both the product of a combination of admirable motives, immoral motives, self-interest, and practical politics. One can admire the sentiments of the Declaration of Independence while also being mindful that the “all mean are created equal” part was observed in the breach to disastrous effect. Evaluating these things involves complicated judgments.

The Confederacy is a different story. Protecting slavery was its sole reason for being. Confederate leaders aren’t honored in spite of their commitment to treason in defense of slavery; in 99% of cases they’re being honored because of it. (Nobody would be naming highways in Washington state after Davis because he was Pierce’s Secretary of War.) As I said in the previous post, the idea that people like Robert E. Lee are being honored because they were fine gentleman or fathers (except for, you know, the slaves) is absurd even if you take the assertions at face value like you shouldn’t. I have great parents and you probably do too, but nobody’s building statues of them or naming schools after them. Confederate leaders are honored because of their role in the Confederacy. And the purpose of secession was 1)protecting slavery, and 2)that’s it.

To be clear, I’m not arguing that tributes to non-Confederate leaders shouldn’t be assessed critically. (Personally, I’m OK with Washington and Lincoln on the currency, but would remove Jackson with all non-deliberate speed.) A norm may emerge that honoring slaveholders in any way and no matter what else they did is unacceptable, and that would be OK with me. Norms could develop against naming things after political leaders in general. But those are complicated questions. Confederate leaders are an easy case.

The Foolishness of Post-Work Utopianism

[ 176 ] July 1, 2015 |


Every now and again, you see some essay about the utopia of a post-work society, suggesting that the disappearance of traditional paid labor (a lot of which is not much fun) will allow people’s real passions to flourish. Derek Thompson wrote a very long Atlantic piece exploring these ideas in a very positive way. I was not pleased. There is no utopian end of work. What follows the end of work is poverty. And such articles undermine what we actually need–motivating people to political action for economic justice and good jobs. The threat of automation creating mass unemployment is real enough, as I have discussed here repeatedly. But there’s nothing positive at the end of that process. Moreover, I felt like, although I can’t know, that all the people Thompson talked to as examples of people already engaging in a post-(traditional) work economy are relatively well-educated white people–the PhD who decided to start a foundry where people like mixed media artists and engineers come to labor/leisure, the bartender in Youngstown who is also a PhD student at the University of Chicago, the writer with two master’s degrees working in a cafe. Where are the African-Americans in Youngstown or Native Americans on the reservations already suffering from long-term unemployment? Do they have a place in this post-work future? They sure don’t seem to in Thompson’s article.

Luckily, I’m not the only person rolling their eyes at this sort of thing. Mike Konczal:

There’s been a consistent trend of these stories going back decades, with a huge wave of them coming after the Great Recession. Thompson’s piece is likely to be the best of the bunch. It’s empathetic, well reported, and imaginative. I also hope it’s the last of these end-of-work stories for the time being.

At this point, the preponderance of stories about work ending is itself doing a certain kind of labor, one that distracts us and leads us away from questions we need to answer. These stories, beyond being untethered to the current economy, distract from current problems in the workforce, push laborers to identify with capitalists while ignoring deeper transitional matters, and don’t even challenge what a serious, radical story of ownership this would bring into question.

But what is the impact of these stories? In the short term, the most important is that they allow us to dream about a world where the current problems of labor don’t exist, because they’ve been magically solved. This is a problem, because the conditions and compensation of work are some of our biggest challenges. In these future scenarios, there’s no need to organize, seek full employment, or otherwise balance the relationship between labor and capital, because the former doesn’t exist anymore.

This is especially a problem when it leaves the “what if” fiction writings of op-eds, or provocative calls to reexamine the nature of work in our daily lives, and melds into organizational politics. I certainly see a “why does this matter, the robots are coming” mentality among the type of liberal infrastructure groups that are meant to mobilize resources and planning to build a more just economy. The more this comforting fiction takes hold, the more problematic it becomes and easier it is for liberals to become resigned to low wages.

Because even if these scenarios pan out, work is around for a while. Let’s be aggressive with a scenario here: Let’s say the need for hours worked in the economy caps right now. This is it; this is the most we’ll ever work in the United States. (It won’t be.) In addition, the amount of hours worked decreases rapidly by 4 percent a year so that it is cut to around 25 percent of the current total in 34 years. (This won’t happen.)

Back of the envelope, during this time period people in the United States will work a total of around 2 billion work years. Or roughly 10,000 times as long as human beings have existed. What kinds of lives and experiences will those workers have?

Worker power matters, ironically, because it’s difficult to imagine the productivity growth necessary to get to this world without some sense that labor is strong. If wages are stagnant or even falling, what incentive is there to build the robots to replace those workers? Nothing is certain here, but you can see periods where low unemployment is correlated with faster productivity gains. The best way forward to a post-work atmosphere will probably be to embrace labor, not hope it goes away.

And if you actually were going to promote a post-work utopianism, you’d think you would go so far as to endorse the one policy that might alleviate a few of these problems, which is universal basic income. But nope, not a word about that. Just a vague of sense of fulfillment and belonging through artisanship and a sort of government funded online-WPA type proposal. So the policy recommendations here really fall short of even beginning to think about how to deal with unemployment in the present or in the future.

Finally, Thompson’s story ends with a 60 year old going back to get a master’s degree so he can become a teacher. He writes, “It took the loss of so many jobs to force him to pursue the work he always wanted to do.” Except that where are the jobs for 60 year old teachers?!? Thompson just leaves this here as if personal fulfillment somehow leads to economic stability. And anyone who knows anything about the current state of education and employment knows that even if you do love teaching, the realities of being in a classroom in a Rheeist society of extreme testing and attacks on teachers’ unions is not some glorious result. Rather, Thompson is engaging in a sort of romanticizing of teaching (a long tradition) to avoid real conclusions and a strong basis in the realities of work and labor policy in the United States.

In conclusion, I really have to wonder how many of these people who write about a post-work society in a hopeful way have ever actually experienced poverty or even basic working-class life. Not having employment is a terrible thing. And even if everyone else isn’t working either, it’s not like that leads to some universal acceptance of the situation and everyone getting over their Protestant work ethics. Rather, we can see what a bit of a post-work society looks like. It looks like Youngstown or it looks like southern West Virginia. And that’s not a vision anyone remotely progressive should want to replicate. If Youngstown is someone our national future because all the jobs are gone, there’s nothing to celebrate. There’s no positive endgame to that scenario.

The Confederacy Won the Peace

[ 143 ] July 1, 2015 |


The statistic at the end of the second paragraph says it all:

The Confederates won with the pen (and the noose) what they could not win on the battlefield: the cause of white supremacy and the dominant understanding of what the war was all about. We are still digging ourselves out from under the misinformation that they spread, which has manifested in both our history books and our public monuments.

Take Kentucky. Kentucky’s legislature voted not to secede, and early in the war, Confederate Gen. Albert Sidney Johnston ventured through the western part of the state and found “no enthusiasm as we imagined and hoped but hostility … in Kentucky.” Eventually, 90,000 Kentuckians would fight for the United States, while 35,000 fought for the Confederate States. Nevertheless, according to historian Thomas Clark, the state now has 72 Confederate monuments and only two Union ones.

Another excellent example is the fact that if you drive from Seattle to Vancouver you do so in part on the Jefferson Davis Highway. Given that Washington not only didn’t secede, but didn’t exist, during Davis’s brief period heading the treasonous slave state I think we can safely chalk this up to 100% hate, 0% heritage. A bill was proposed to get rid of it in 2002, but it generated intense Republican opposition and was ultimately killed in the Senate:

The opponents describe the highway change as a needless affront to Davis, who remains revered in some quarters and for whom plenty of schools are named in the South.

Now Representative Thomas M. Mielke, a Republican from Battle Ground, has taken up their cause and is opposing the bill, expected to come up for a vote on Thursday.

Mr. Mielke circulated an e-mail message to his colleagues on Tuesday night, attaching a biography of Davis and calling him ”an outgoing, friendly man, a great family man who loved his wife and children and had an infinite store of compassion.”

“Sure, he was a traitor who believed that slavery was a cause worth dying for and supported the establishment of apartheid police states in the South after the civil war, but he was a nice guy.” Hey, maybe Mohamed Atta remembered to call his mother every birthday, we could start naming roads after him too! I’m afraid when it comes to public monuments I’m in the “Nice guy? I don’t give a shit. Good father? Fuck you, go home and play with your kids” school. The fact that Republican legislators in states that had nothing to do with the Confederacy are willing to make such transparently silly arguments to preserve the monuments to the slave power is highly instructive.

Returning to Loewen:

Perhaps most perniciously, neo-Confederates now claim that the South seceded for states’ rights. When each state left the Union, its leaders made clear that they were seceding because they were for slavery and against states’ rights. In its “Declaration Of The Causes Which Impel The State Of Texas To Secede From The Federal Union,” for example, the secession convention of Texas listed the states that had offended them: Maine, Vermont, New Hampshire, Connecticut, Rhode Island, Massachusetts, New York, Pennsylvania, Ohio, Wisconsin, Michigan and Iowa. These states had in fact exercised states’ rights by passing laws that interfered with the federal government’s attempts to enforce the Fugitive Slave Act. Some also no longer let slaveowners “transit” through their states with their slaves. “States’ rights” were what Texas was seceding against. Texas also made clear what it was seceding for: white supremacy.

And there are plenty of other illustrations. Uniform support of the Fugitive Slave Act by the slave power in itself reveals the “states’ rights” argument as a con. Any “strict constructionist” would look at the wording of the Fugitive Slave clause and its placement in Article IV and construe the return of fugitive slaves as a state, not federal, responsibility. And perhaps the single most important issue in the dissolution of the Democratic Party was the unwillingness of Congress to impose a proslavery constitution on Kansas that its citizens didn’t want. The Confederate Constitution did not permit states to abolish slavery. 99% of arguments about “federalism” are really arguments about policy substance, and attempts by Confederates and their apologists to claim they were motivated by “states’ rights” are particularly fraudulent.

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