- Irin Carmon on yesterday’s staying of the Texas anti-abortion statute.
- Mark Graber and Brendan Nyhan on the Roberts Court’s “shift the left” that really isn’t.
- Fascinating investigative reporting from Katie Baker.
- Chris Squire, R.I.P.
- The death penalty in Louisiana.
- The picture of Obama after the ACA troofers had their arguments nuked from orbit is pretty awesome.
- I will probably have more on this, but a really smart analysis of law and social change.
- >Party politics and the ACA and SSM decisions.
- “Breyer quite cheekily references (twice) the DNA exoneration of Henry Lee McCollum, in September, as someone who “did not commit the rape and murder for which he had been sentenced to death.” Justice Antonin Scalia had once used McCollum as the poster boy for why the death penalty is morally necessary.”
A central piece of the rhetoric about taking the Confederate flag down from state property and official state symbols is that “it belongs in a museum.” Actually it doesn’t belong in a museum either unless it is properly contextualized and interpreted, unless you don’t want any people of color to come to the museum. Aleia Brown has a good piece explaining this:
What might such an exhibit look like? It would need to tell the history behind the flag. It is a symbol of white supremacy, and museums should acknowledge it as such. The designer for the second national flag of the Confederacy described it as a representation of the fight to “maintain the Heaven-ordained supremacy of the white man over the inferior or colored race.” The exhibit should also acknowledge the role the flag played in South Carolina’s past. The flag that’s captured national attention this week came to Columbia in 1962, as a reaction to black people fighting for and winning rights during the civil rights era.
Effective museum interpretation would not stop there. It would address the reoccurring questions surrounding this symbol. Why do people find the flag offensive? Why are other people so attached to the flag? Why do some people who embrace the fullness of Southern pride, including the Confederate flag, not see themselves as racists?
Furthermore, a complete interpretation of the Confederate flag would need to make clear that black people have always resisted white supremacy and fought for the demise of institutional racism. The late historian Vincent Harding put forth this idea, characterizing black people as committed to their freedom and unwilling to accept oppression. There has always been a cadre of black people willing to die for their freedom in America, and this too is germane to museum interpretation of the Confederate flag. In addition to being a sacred space, the AME church in Charleston was also home to the storied congregation to which the revolutionary Denmark Vesey had belonged. His church was burned after Vesey was accused of plotting an uprising in which enslaved people would revolt against slave masters.
This doesn’t mean you can’t have controversial pieces in museums. I’ve seen KKK material in several museums, including fully uniformed figures in the Colorado and Ohio state history museums. But those are contextualized, or in the case of Ohio was part of an exhibit that was specifically about the most controversial pieces they had in their collection.
But this often is not the case. As Brown discusses, lot of history museums do not deal with race well at all. Most people on history museum governing boards are conservatives. There’s a lot of downward pressure against anything “controversial” which inevitably means “would make white conservative patrons uncomfortable.” Does anyone believe that the South Carolina state history museum would tell the story of the Confederate flag in an appropriate way? I surely don’t.
So let’s either keep the Confederate flag out of museums or, hopefully, pressure museums to tell stories of white supremacy carefully to emphasize what those objects actually represented.
Even worse is Alito’s conclusion that death by torture does not violate the Eight Amendment unless defendants can identify a safer method, which Sotomayor correctly describes as “indefensible”. Even assuming for the sake of argument that the US constitution permits the death penalty in the abstract, it does not guarantee that states will be able to perform executions in every circumstance. If medical personnel and drug companies – making free choices – decline to participate in the machinery of death, this does not mean that the Eight Amendment ceases to apply. As Sotomayor explained:
“But a method of execution that is “barbarous,” or “involve[s] torture or a lingering death,” does not become less so just because it is the only method currently available to a State. If all available means of conducting an execution constitute cruel and unusual punishment, then conducting the execution will constitute cruel and usual punishment. Nothing compels a State to perform an execution. It does not get a constitutional free pass simply because it desires to deliver the ultimate penalty; its ends do not justify any and all means.”
Her argument is unanswerable. Boiling people in oil or killing the on the rack would not suddenly stop being cruel and unusual punishment if they were the only methods available. It is true that the condemned prisoners in the cases considered by the court committed genuinely heinous crimes – one broke an infant’s back with his bare hands; another raped an killed an 11-month-old girl, as Alito was sure to mention in his opinion. Fortunately, even if Oklahoma could not execute these prisoners a remedy exists that is good enough for most American states and every other liberal democracy in the world: imprisonment.
It’s worth comparing the careful, devastating dissents written by Sotomayor and Kagan — both of which rank with Ginsburg’s evisceration of Shelby County — today to Scalia’s witless ranting last week. The fact that Sotomayor was described as unqualified by pundits who take Alito’s (identical to Sotomayor’s) credentials for granted and consider Scalia some kind of supergenius is about as clear as a racist and sexist subtext can get.
It’s not a coincidence that today was the day Ginsburg and Breyer announced their disinclination to continue to tinker with the machinery of death. If this is what the death penalty will be, holding the death penalty per se unconstitutional will become the default liberal position.
Today’s atrocious death penalty and EPA opinions — more on those shortly — should end this meme quickly, but while last week was a good one we really shouldn’t overstate the extent to which last week was a liberal triumph:
On same-sex marriage, then, no qualification is necessary. It’s a flat-out liberal win, comparable to the great landmarks of the Warren Court. With respect to the two other big cases of the week, however, the questions are more complicated.
In King v. Burwell, the Supreme Court turned away the latest ad hoc legal challenge to the Affordable Care Act, with both Chief Justice Roberts and Justice Anthony Kennedy joining the court’s four Democratic nominees to produce a 6-3 majority. The court determined that tax credits would be available on health care exchanges established by the federal government, rejecting the bizarre argument that Congress went to the trouble of setting up a federal backstop that was designed to fail. It’s hard to overstate the importance of this opinion, which will save millions of people from being denied health insurance and thousands of people from unnecessary death.
But, in another sense, this case isn’t really much of a liberal “win.” The case was premised on bad statutory construction that was used to concoct an utterly preposterous theory of what the ACA meant. In a sense, the fact that conservatives got the court to take the case and three justices to buy the argument shows just how conservative the court is. Had liberal activists, say, gotten three votes at the Supreme Court for a theory that the Bush tax cuts violated the Equal Protection Clause, that really wouldn’t be a sign that conservative thought was ascendant at the Supreme Court.
More at the etc. I will add that you probably want to do a blood pressure test before reading Scalia’s EPA opinion if you’ve read the King dissent.
A few commenters suggested that I focused too much on the flaws in Kennedy’s historic opinion for the Court Friday and not enough on the infinitely worse dissents. And…they have a point. Part of this is that I never had any doubt about how the case would come out. I didn’t bother to point out Roberts’s endorsement of stop-hitting-yourself theory because the outcome of the case was much less certain and as long as he arrived at that outcome how he did it was far less important (and, in addition, apart from that lapse the opinion was a home run.) It was easier to quibble with Kennedy because I knew he’d do the right thing in his vote, which isn’t entirely fair. Certainly, some fuzziness and rhetorical overreaching seem relatively trivial when compared with Scalia’s SCORCHING HOT TAKES.
Fortunately, many smart people have produced excellent commentary on the bankrupt dissents. Judge Posner:
Related to the preceding point, the chief justice’s dissent is heartless. There is of course a long history of persecution of gay people, a history punctuated by such names as Oscar Wilde, Pyotr Ilyich Tchaikovsky, and Alan Turing. Until quite recently, many American gays and lesbians took great pains to conceal their homosexuality in order to avoid discrimination. They value marriage just as straight people do. They want their adopted children to have the psychological and financial advantages of legitimacy. They are hurt by the discrimination that the dissenting justices condone. Prohibiting gay marriage is discrimination.
Justice Samuel Alito’s dissent, to which I turn briefly, ascribes to the states that want to forbid same-sex marriage the desire “to encourage potentially procreative conduct to take place within a lasting unit that has long been thought to provide the best atmosphere for raising children. They thus argue that there are reasonable secular grounds for restricting marriage to opposite-sex couples.” That can’t be right. States that forbid same-sex marriage do not do so in an effort to encourage gays and lesbians to marry people of the opposite sex and thereby procreate. The nation is not suffering from a shortage of children. Sterile people are not forbidden to marry, though by definition they do not procreate. There is no greater reason to forbid gay marriage, which is actually good for children by making the children adopted by gay couples (and there are a great many such children), better off emotionally and fiscally.
Alito says that states that want to prohibit same-sex marriage “worry that by officially abandoning the older understanding, they may contribute to marriage’s further decay.” This doesn’t make sense. Why would straight people marry less and procreate less just because gay people also marry and raise adopted children, who, but for adoption, would languish in foster homes?
He adds: “Today’s decision usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage.” But why should the people who control a state have the right to deny the right of some of their fellow citizens to marry, without a reason? Alito has no answer.
None of the points made by the dissenters withstands critical scrutiny – not least the claim that because marriage originated as an institution to address accidental procreation by heterosexuals, a state has a rational (much less compelling) interest in forbidding gay and lesbian couples from participating in the modern institution of marriage.
Still less persuasive is the dissenters’ repeated insistence that this case differs from prior marriage cases because those cases did not involve the definition of marriage. To quote Justice Antonin Scalia’s acerbic dissent, “Huh?” Would the eight Justices who signed onto the fundamental rights portion of Loving v. Virginia have reached a different conclusion if the Virginia statute defined marriage as an institution between a man and a woman of the same race?
Chief Justice John Roberts, in the principal dissent, sets forth the most elaborate argument, but fundamentally he makes three points: (1) there is a difference between support for same-sex marriage as a policy matter and as a constitutional matter; (2) premature constitutionalization of a right that cannot yet be said to be deeply rooted in the nation’s history and traditions risks undermining long-term support for the right because defeat of the anti-same-sex-marriage position in the democratic process would be more acceptable; and (3) the majority’s logic opens the door to claims such as a right to polygamy. Beyond that, his dissent repeatedly compares the ruling to Lochner v. New York, citing the case a whopping sixteen times.
Nearly all of what the Chief Justice says would work equally well as an argument against all unenumerated rights, indeed, against all judicial decisions that draw inferences from vague language contained in enumerated rights as well. The other dissents do not fare better.
Justice Scalia replies: “If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began” in this way, “I would hide my head in a bag.” This from a Justice who – just in cases that are centrally relevant to the issue in Obergefell – once began a dissent by accusing the Court of mistaking “a Kulturkampf for a fit of spite” (as though Prussian anti-Catholic policies were an appropriate model for Colorado’s treatment of its gay and lesbian minority), in another dissent compared same-sex intimacy to bestiality, and in a futile effort to read Loving as having nothing to do with evolving values, invented his very own inaccurate text of the Fourteenth Amendment.
Forget about the bag. Justice Scalia should not appear in public except in a full burka.
Both are worth reading in their entirety.
Book Review: Alex Gourevitch: From Slavery to the Cooperative Commonwealth: Labor and Republican Liberty in the Nineteenth Century
I don’t read much, or really any, political theory at this point in my life. It’s an important field but I have little background in it and the start-up cost of time and energy to read difficult texts is high. But political theorists can often add a great deal of context to the ideological framework of political movements. And so I was quite interested in reading Alex Gourevitch’s From Slavery to Cooperative Commonwealth, which is an exploration of how the Knights of Labor and other workers’ movements of the 19th century reframed ideas of republicanism in order to demand Independence from exploitative captialism.
Because of my lack of a background in political theory, I am writing this review in the context of how the book is useful for the U.S. historian. Framing his story with the biracial organizing of the Knights of Labor in Louisiana, which led to the Thibodaux Massacre, Gourevitch argues that the Knights created a rhetoric of freedom that could appeal to African-Americans because it was about not having masters of any kind. This brought together African-Americans’ lived experiences and memories of slavery with working people of all races who had new demands for emancipation from their employers. Ideally, the Knights hoped workers could create cooperative institutions that would allow them to be truly independent and avoid the tyranny of capital altogether.
This master-slave language was a significant transition in the history of republican thought. The two key points for Gourevitch is a) republicanism had largely been an elite language in the past and b) slavery was a real live thing in the United States and when it was gone, workers could then use that language to serve their own purposes. On the first, 19th century workers appropriated this elite language around independence and virtue to describe the world of labor relations. Slavery and elite republicanism had been tied together from the Greeks and Romans to the Founding Fathers in Virginia. Life in the United States challenged this in a number of ways, creating not only working class definitions of it, but most prominently, abolitionists who tried to disconnect the need for chattel slavery from American republican thought. Abolitionists like William Lloyd Garrison completely rejected workers’ claims to be slaves, often in vociferous terms, because workers were not unfree like slaves and therefore the comparison were not apt. Economic dependence was not unfreedom.
But the defeat of slavery then solved the abolitionist objection to worker use of this language, or at least made that appropriation less of a threat to their political project. With one form of slavery undone, workers sought to use republicanism to undo what was becoming a new and increasingly powerful form of unfreedom: the employer-employee relationship of the Gilded Age. The issue of independence was at the core of labor’s critique of this new system. The changes in American work developing before the Civil War began to create widespread changes to workers’ independence and freedom. If they labored for 12 hours but only made enough money to buy goods that took 4 hours to produce, that was 8 hours a day being stolen from them by their employer. And even if contracts were enforced fairly, the conditions of control had become so bad after the Civil War that workers were still oppressed. They didn’t make enough money to withhold their labor from employers, so the system was already unequal. Then the contract ceded total control of the workplace to the employer. Ultimately, only cooperative workers organizations could allow workers to escape this system of capitalism and regain their independence. A cooperative republic would challenge the dominant system of production and give workers control over their lives again.
This book gets at another key issue in American history, which is how a Republican Party that ended slavery and sought rights for free blacks during Reconstruction could then turn around and not only crush workers movements, but talk about unions in apocalyptic terms. But these two things were not contradictory in the mindset of Republicans. Garrison himself could celebrate black freedom in terms of “independent laborers by voluntary contract.” But what did “voluntary” mean? For mainstream Republicans, it was the conditions an employee agreed to when he (most likely) agreed to take a job. This construction of freedom did not have any room for other forms of compulsion like the need to eat or put a roof over your head. Freedom did not have to extend any farther than compulsory labor at the point of a lash. The Supreme Court itself roundly rejected the idea of alternative forms of tyranny in the Slaughterhouse Cases of 1873 when white New Orleans butchers said a new law forcing them to work at a single private institution violated the 14th Amendment by violating their economic independence and placing them in servitude. From there through Lochner, Gourevitch takes readers through how the courts routinely found that freedom of contract was true freedom, ignoring the increasingly unequal realities of Gilded Age society that led to the rise of the Knights in the 1870s and 1880s as a response.
Gourevitch also helps us understand the Knights’ unfortunate position toward immigrants, especially the Chinese and eastern Europeans. Labor republicans held themselves and other workers to very high standards because they believed the cooperative republic would have to rest on the morality of its members. These standards could easily not be fulfilled. They would them blame workers for their own failings. Given the racial milieu of the late 19th century, blaming workers for their own problems could easily morph into racial characterization. However, Gourevitch doesn’t really get into how the Knights managed to include African-Americans into this system when the Chinese and eastern Europeans could not be. That’s a weakness of the book, but you can read Joseph Gerteis’ Class and the Color Line for an understanding of that. Unfortunately, that book is not cited in Gourevitch’s bibliography, even though it was published in 2007. Interestingly, the two books use the same image for their cover.
Gourevitch does not shy away from the modern implications of his study in the New Gilded Age, noting that “who is subject to whose will” is a key question today. (177) Like in the 19th century, employers are using unnecessary power against workers to hurt their lives, such as cracking down on bathroom breaks to use Gourevitch’s example. He suggests the positives of using labor republicanism rhetoric and moving toward cooperative enterprises today. Personally, I’m really skeptical that cooperative enterprises can succeed on any large scale. But as I have argued before, one of the similarities between the two Gilded Ages is that in both cases, working people were smacked in the face by a radically transforming capitalism that left them figuring out just what the heck happened to their lives searching for any alternative to that system. So any alternative should be on the table today.
Ultimately, Gourevitch wrote a book that goes a long way to explaining some of the trickier and most often misunderstood intellectual trends in American history.
Paul LePage is a very special person. I have to wonder whether in the entire annals of American politics, an executive has been such an asshole to have united both political parties against him to the point of the legislature unanimously overriding vetoes. If so, I certainly don’t know about it. And yet this man managed to be elected by the voters of Maine not once, but twice!
Of course, we can certainly blame Eliot Cutler, the pointless third party vanity candidate for this to a certain extent. Nader ’16: Third parties in American politics never lead to horrible outcomes!
About four months ago, I screened a beautiful 35mm print of the picture for my daughter and her friends. “Why do we keep watching this?” I suppose it’s [Joseph] Cotten and [Alida] Valli – that’s the emotional core of the picture. For instance, the scene where Holly Martins (Cotten) finally goes to her apartment. He’s a little drunk, and he tells her he loves her and he knows he doesn’t have a chance. That’s when she says, “The cat only liked Harry.” So that leads right into the great revelation of Harry Lime in the doorway with the cat – which is iconic. But it’s more than that – it’s one of the great epiphanies in movies: the cat turning the corner and nestling itself on those wing-tip shoes, and then Harry Lime being revealed when the light is turned on in the doorway and it shines in his face.
Remember Walker Percy’s great novel The Moviegoer? He refers to that moment in such a beautiful, special way. It became a moment internationally, a shared experience for a vast audience seeing that film. It’s not just a dramatic revelation – there’s something about Orson Welles’ smile at that point that shifts everything to another level, and it sustains no matter how many times you see it. Welles comes into the picture about halfway through. That’s the first time you actually see him, after you’ve spent so much time picturing him in your mind because everyone has been talking about him and thinking about him. So that might be the best revelation – or the best reveal, as they say – in all of cinema.
The Third Man is of course amazing, but I’ll leave discussing it to Scorsese. What makes Scorsese so great is two things. First of course are his films. It would be nice if he stopped making pointless projects to the late era Stones because when he sets his mind to a story, he still almost always makes a good film. But at this point can do what he wants. Second is his effusion about film, a joy that is truly contagious. Part of this is his natural manic energy but much of it is his pure love for film that has influenced his whole career, yet not turned him into Brian DePalma, ripping off scenes from his favorite movies and sticking them into his own. That might be fine once such as with the famous Battleship Potemkin into The Untouchables baby carriage, but this has turned into a schtick. Anyway, Scorsese isn’t going to be around forever and when he’s gone, there is no possible replacement.
I’m a tough sell when it comes to both the rhetoric of politicians and religious rhetoric, but Obama’s eulogy on Friday really was quite extraordinary:
Removing the flag from this state’s capitol would not be an act of political correctness; it would not be an insult to the valor of Confederate soldiers. It would simply be an acknowledgment that the cause for which they fought — the cause of slavery — was wrong — (applause) — the imposition of Jim Crow after the Civil War, the resistance to civil rights for all people was wrong. (Applause.) It would be one step in an honest accounting of America’s history; a modest but meaningful balm for so many unhealed wounds. It would be an expression of the amazing changes that have transformed this state and this country for the better, because of the work of so many people of goodwill, people of all races striving to form a more perfect union. By taking down that flag, we express God’s grace. (Applause.)
But I don’t think God wants us to stop there. (Applause.) For too long, we’ve been blind to the way past injustices continue to shape the present. Perhaps we see that now. Perhaps this tragedy causes us to ask some tough questions about how we can permit so many of our children to languish in poverty, or attend dilapidated schools, or grow up without prospects for a job or for a career. (Applause.)
None of us can or should expect a transformation in race relations overnight. Every time something like this happens, somebody says we have to have a conversation about race. We talk a lot about race. There’s no shortcut. And we don’t need more talk. (Applause.) None of us should believe that a handful of gun safety measures will prevent every tragedy. It will not. People of goodwill will continue to debate the merits of various policies, as our democracy requires — this is a big, raucous place, America is. And there are good people on both sides of these debates. Whatever solutions we find will necessarily be incomplete.
But it would be a betrayal of everything Reverend Pinckney stood for, I believe, if we allowed ourselves to slip into a comfortable silence again.
I don’t think Erik and I actually disagree, but since I’ve seen a variant of this argument going around I think it’s worth clarifying an important point. As of now, the right to same-sex marriage is secure in all 50 states; reproductive rights are not, and the trend in some states is getting worse. This might, on the surface, seem to be a reflection on the strategies applied by activists.
But it’s really not. Here’s the thing: in the states most aggressively restricting reproductive rights, there was zero chance Republican-controlled statehouses were going to legalize same-sex marriage rights. And despite the gains that LBGT activists have made in changing public opinion, these states aren’t about to provide civil rights protections to gays and lesbians either. Here are the reasons why same-sex marriage is more secure in red states than reproductive rights:
- Anthony Kennedy is much more sympathetic to gay and lesbian rights than to reproductive rights
- That’s it.
This doesn’t mean, of course, that supporters for reproductive freedom shouldn’t fight for everything they can. But the brutal truth is that until there’s a median vote of the Supreme Court nominated by a Democratic president things are going to continue to get worse no matter what activists do.