united NATIONAL independent Tea Party polite just to a point
Guerrilla Government 1
1 The Parable of the Crazed Mechanic
Say you take your slightly used car in for an oil change and tune up. The guy’s posted rates were so cheap they could hardly be believed. It’s not a perfect car but you have quite a bit of money invested in it and it is running well except for a few minor adjustments. But after several unexplained delays when you go back to pick it up you find the mechanic has tinkered with it, removed vital parts and put inappropriate parts in their place. It now doesn’t run at all. In fact, now he guarantees you that it can’t even be fixed. Yet for all his inappropriate and destructive mechanical machinations he is not only not contrite but expects you to pay many times what you had bargained for as he had to work longer hours screwing up than he should have ever had to spend fixing it. Eventually, among other indignities suffered by your car, you find out that the mechanic had been letting his profligate free living banker, who happened to hold the mortgage on his garage, take long reckless drunken joy rides in your car while entertaining his clients without even providing due care or proper provision for maintenance. With more research you find out that this mechanic regularly does things like this. He takes in working automobiles, ostensibly to repair them, then claims they aren’t worth repairing, buys them from the owner for next to nothing, breaks them down and then sells the parts through his own salvage yard as if they were new. When you refuse to pay him he comes up with a counter offer to take the car off your hands for $10. Among your other complaints you grouse that then you wouldn’t even have a way to get home. “No problem” the guy says and totes out a ramshackle bicycle and offers to sell it to you for $150. Finally, thoroughly disgusted, you arrange to have your vehicle towed over to a reputable mechanic’s garage, the fierce competitor of the mechanic who has just destroyed your car. But the first mechanic won’t cooperate. Thinking it would reflect badly on him if his opponent should fix the car which he claims can’t ever be fixed, he becomes recalcitrant, boorish, obstreperous, obstructionist, self-righteous and condemnatory – which is a lot of big words to describe the behavior of a very small and petty man.. He takes the tires off your car, chains the chassis to the wall, throws a tantrum, buys a gun, calls you every name he can think of, files law suits against you to hold you up in court and defames your reputation to anyone who will listen, all to keep you from claiming your own vehicle which he has nearly destroyed back. He hates this other mechanic so much that he is even willing to destroy his own business and reputation just so the other mechanic can’t get the credit for doing the job he’s refused to do. Even after you’ve overcome all the obstacles he’s put in your way and the tow truck is finally hauling your car out the door, this crazed mechanic, face red with rage, deep in high dudgeon and low umbrage is chasing after your car trying to spike the car’s gas tank with sugar to destroy the engine. If he can’t have your car which he doesn’t even intend to try to fix then, to his bizarre and selfish way of thinking, nobody else should ever be able to drive it again either.
The republican party today is playing a dangerous double game of extraordinary cynicism. They have spent nearly thirty years trying to dismantle government effectiveness to prove their theory that government cannot be effective. Now that they have brought nearly everything to a standstill and a ruin and the people are angry and upset and tired of their tiresome pontificating they voted them out. The republicans claim it wasn’t them in charge of government that was the problem, it was the government that was the unfixable problem they were in charge of. Besides, somehow the democrats are all secretly responsible for all this anyway for opposing them in their demolitions. Unfortunately their theories ignore the first couple hundred years of our history when our government was acknowledged to be the best in the world. Strangely, it has only become more and more unworkable since people who claimed it was unworkable were placed in charge of it. Normally, after all, if someone is running something poorly, from a car company to a bank, it doesn’t follow that automobiles and banks are intrinsically evil and should have never been invented and must be destroyed. It just means that they are poorly run. It’s not the thing that is being run that is the problem but the person put in charge of running it who is incompetent. It is similarly absurd to say that the answer to bad government is no government. Such logic throws all principles of human accountability out the window. It is like allowing the drunk driver guilty of multiple counts of vehicular homicide go free while throwing the book at what he was driving, imprisoning his car for life - or perhaps sending it to the death chamber in Texas or even to Guantanamo if it's a foreign made car. That’s what it sounds like when the republicans join with tea party sympathizers to claim that government is the blame for poorly run government as if it were a disembodied entity separate from the people who have actually been in charge of running it. To claim as some do that this government which hasn’t done anything by way of balancing a budget or solving a problem for decades of republican rule, is now becoming oppressive, when it has really been astonishing ineffectual, hamstrung and subjugated to outside influences spreading money like manure around, is hard to credit. Clearly, as most of society has realized, it is not too much government that’s the problem, it’s too little government too ineffectively and corruptly applied that’s killing us. That is the problem, lack of quality people in Washington. In government, just like everything else, size doesn’t matter nearly as much as quality of the people in charge. Quality in a democracy therefore is incompatible with politicians unduly influenced by outside moneyed interests. Many might be forgiven for believing that this debilitating corruption is exactly what the Supreme Court’s decision in Citizens United portends to expand, amending the Bill of Rights to put a double line through the “s” in the word “speech” - the last double strike in an ongoing, semi-surreptitious coup of the moneyed interests against free democracy. Republicans in Washington immediately praised this decision until it was found that Americans in large numbers disapproved. Their ensuing silence on the issue is more about deceptive prudence than any sudden conversion to the public’s enlightened point of view. By disclosing their intentions so brazenly, by barely hiding their corrupting intentions, by agreeing with the court that money is speech and money is holy by enshrining it as sacred when held by a corporation, they have clearly committed democratic blasphemy. They have showed they are in favor of elevating the importance of money ahead of speech and wealth for its own sake ahead of the individual. Clearly this puts the cart before the horse, the ox behind the plow, quantity over quality, money over meritocracy and the future of the American people in the jeopardy of those who don’t necessarily mean them well. But none of this is new. Republicans have believed in doing these things and have been doing these things to us for decades.
2 Beginning in 1980, a bizarre new economic theory was propounded, something called “supply side” economics which was portrayed as a magical economic elixir for all that ails us as if it were a perpetual motion money machine. It said that the more you cut taxes the more tax revenues you raised. Pause and consider the inanity of that snake oil for a second. A greater, more brazen lie has seldom if ever been told a free people by a large proportion of their government. So in 1980 with the national debt at only $900 billion Ronald Reagan cut taxes across the top (as opposed to across the board) to only the wealthiest of Americans and unleashed and deregulated corporations like dogs on the American people. These policies were supposed to make us more competitive in the world but they have made us less competitive. They were supposed to make us richer as a nation and have made us poorer. Tax cuts were supposed to generate so much capital that we could cut taxes permanently, time after time, and still have more than enough for essential services (a social safety net), but have done nothing but bury us in debt, leave all our necessary jobs undone (and the unnecessary ones immune from cuts) and give us a government that when not just making us a laughingstock in the world is indulging its own perverse moral habits in semi-secret or wallowing in money grubbing disgrace like all too public carnival barkers. Very soon after the advent of Reaganomics we passed from being the world’s greatest creditor nation to the world’s greatest debtor. It is at this point we started our decline. Because our banks prefer their customers indebted rather than solvent, our government did everything they could to help comply with their wishes. Wages became stagnant for most Americans and government officials actually took pride and bragged on the falling wages and decreasing benefits of our workers, almost as if our people were separate from the country, almost as if middle class workers weren’t even true Americans or at least Americans whose welfare they needed to concern themselves with. Our government actually cherished the proposition that making the majority of our people poorer actually meant the nation could be stronger. For business to be “efficient” and “competitive” abroad, they told us, our citizens must actually come to resemble the third world here at home. So they tried to destroy unions while deregulating controls on and limiting taxes on business and business leaders and investors. Meanwhile, executive wages, squeezed from the workers’ pensions and pockets and beholden to no one, skyrocketed in a way our poor floundering, underfunded space program could not. Who else but large money interests have profited from these policies? Not the public. The republicans say that government is responsible, ignoring the fact that for the last thirty years they have eviscerated government, but really it is anti-government behavior which is responsible. Guerrilla Government. They have lobbied relentlessly against campaign finance reform. And money has replied by promoting an entire degenerated legion of say anything, do-nothing politicians to bankrupt our democracy further. Like a team of horses unrigged from the wagon, as government effectiveness declines business may become as rapacious as it wants and begin to work against the best interests of America rather than as an integrated part of our national economy pulling the prosperity of the country along with it. To do this perverse bidding, these politicians with their childishly bogus economic theories started by intentionally plunging our government into the red by enacting huge tax breaks for corporations and the wealthy while keeping everyone else’s taxes correspondingly high. In effect, they’ve cut services to the public and gutted the efficiencies of government programs to place a well balanced, productive and livable society at risk. They used manufactured moral issues immorally to try to keep the nation divided against itself (and unable to unite against them). At the same time they sowed mistrust among the people with well organized and very well funded nullification, scare and disinformation tactics against responsible government behavior. They have not only colluded with business to suppress wages and benefits but to levy unseen large taxes against the middle class and the poor from which the wealthy are exempt. But not content with that they have gone further. This debt is not only national but personal debt as well. Again with congressional complicity, Wall Street has scammed and suckered the public with shifting credit card charges, escalating scales of interest, predatory lending practices, mortgage debt and debts incurred through manipulation of markets (such as energy, stocks, medical costs, petroleum, drugs, etc.). Along the way they have dismantled half our economy and sent it overseas with neither a bang nor whimper from a subservient congress. They’ve polluted two-thirds of the world with little control over their actions. They have rabidly supported unnecessary wars which, though harmful to our interests (and those of the world) while being devoid of benefits to the United States taxpayers, were nonetheless quite profitable to defense corporations, their brothers in service to the destruction of America. Technically, this means that so the very wealthy may have their taxes unjustly lowered everyone else in society has had theirs raised and been squeezed in many other ways as well. In effect, this leaves the middle class to carry the bags and pay the taxes and support the extravagant life styles of the very well to do. Then, after they rendered the tax code inexcusably unfair they then rail against an "oppressive" government for enforcing the unfair tax code that they have authored. When a psychopath recently stole a plane in crashed it into an IRS building in Austin, some republican leaders actually implied that his murderous, terroristic behavior was justified for opposing the very tax code that they themselves have written and solely profit from. The net result of this is that massive debt has been saddled on the backs of the American people at large, all with the enthusiastic support of the moneyed interests at whose pleasure our members of congress serve. That’s why Dick Cheney could infamously claim at the outset of the Bush administration that deficits don’t matter.
3 Soon, to repeat, because bankers prefer debtors to solvent clients our nation had piled ten times more debt onto our system since 1980 than in the previous 200 years combined. This is a nation in decline. We used to lead the world in nearly every measurable social, health, education and innovation category. Now we lead in almost nothing and are losing ground across the board in the others. Yet the ones responsible for this are in favor of reforming nothing. Why? They are for sale to the ones abusing us. This is the way their masters with the money like their congress, weak, supine, stupid, obstructionistic and in their pocket. The Supreme Court enthusiastically agrees. Like the Talley court they seem to prefer a slave economy rather than a democracy where instead of everyone, rich and poor, having equal rights and access to our government, only a few super citizens shall lead us. It’s a slave economy they are building and they are the plantation owners. The court in its deep reasonings has glossed over these pernicious trends. It finds no fault with lobbyists writing legislation for supplicant members of congress which they are then supposed to support or suffer the consequences for their opposition. Frequently now, only wealthy Americans are recruited to run for office, leaving congress itself rife with class prejudice in favor of the already affluent. Now, with increasing examples and cases of blatant fraud and moral peccadilloes proliferating among our ruling class, morality is more and more a political posture than a way of life. This corrupted class does not seem troubled by our national decline, it seems only to wonder why it’s taking so long, apparently, because where ever possible it is certainly doing its part to speed it along.
The decline and dismantling of our government is nearly complete. The Monetocracy is pleased because government was the only entity, this troublesome democracy, which could stand in the way of Wall Street’s continued, highly profitable exploitation of our prosperity and manipulation of our future. Wall Street wins whether the US prospers or declines, and one can’t help but feel they are busy selling us short. Government only of the wealthy, for the rich and by the very, very well to do has nearly been brought about in America. That’s the real lesson to be learned from the decision in Citizens United. The public fortunately has seen through this. Unfortunately many have drawn the wrong conclusions. The enemy is not government, it is bad government, government dominated by the moneyed interests which consistently displays beliefs and hopes not shared by the vast majority of Americans. To paraphrase Clinton, there is no problem with bad government that good government cannot magically solve. The Tea Party Movement has it almost exactly wrong. The republicans support them in their outrage over policies that the republican theory of non-government is nearly entirely responsible for bringing about. They are the bigoted mechanics of our demise. They have spent nearly thirty years trying to dismantle government and now that they have nearly brought everything to ruin and the people to their knees and the public is angry and fed up with the tiresome, immoral, do-nothing pontifications going on in Washington, the republicans pretend that they’ve had nothing to do with any of it and in fact are even more outraged than the rest of us are about it. It is almost hard to fathom American public servants so self-consciously devious to their own employers. The republican support of the Tea Party would be like the original Tea Party in Boston if it had been British and assorted Tory sympathizers who had disguised themselves as Native Americans rather than patriots. And then pretended to take over the vessel in Boston harbor and angrily thrown the boxes of tea on shore to cheering colonists so grateful for their feigned outrage and pretend rebellious behavior that they would gladly pay double their taxes to get back at those damn British. The republicans are trying to sell us tea and tax us too. Something tells me our original patriots would have been a touch too smart to fall for such an obvious duplicity. I'm not sure many of us are as smart today. No wonder the republicans wanted to gut public education and destroy the Department of Education. If the British would have been this smart and brazenly cynical they might still be in charge today.
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I Monetocracy – The monopoly by money of a democracy
How have we come to this? It’s like a horror film where from the tiniest mistake in the lab a monster slowly grows to menace all of life as we know it.
It began innocuously enough with Santa Clara v. Southern Pacific Railroad. The year was 1886. 1. Corporations are people too?!! Or words to that effect were uttered by a chief justice in an aside which, though never published in the decision mysteriously became precedent, and… 2. Individuals (within certain set limits) may spend money on political activities in support of particular candidates, but… 3. Wealthy individuals, because they are special, may spend as much of their money as they choose not on specific political candidates but on all other political and lobbying activities far beyond what others may spend. As well as spend as much as they desire on their own candidacies if they should choose to run themselves, which… 4. Means wealthier and wealthier candidates are encouraged to run and utilize their inbred advantage for seeking public office, since… 5. Most people, middle class and poor haven’t enough money to spend on either other candidates or themselves even if they wanted to and are increasingly being priced out of democracy altogether because… 6. In Buckley v. Valeo the court ruled that money has really been cleverly disguised as free speech all along and therefore… 7. Corporations (that, rather I mean who, because remember, they are really just people like you and me) are really just very, very, very wealthy and neighborly individuals (even when rapacious multinationals) with rights to spend millions if not billions more than any individual may reasonably be expected to be able to spend in promoting their favorite political candidates and causes. Ergo: 8. Corporations should just be thought of as big fuzzy friendly helpful giants who stride across our political landscape like colossi with few of the same aspirations or limits on their power that naturally limit the rest of us, devouring the remains of our democracy whole while trying to milk us of our blood…er, money as they go.
Yikes, Igor something really has gone amiss in the laboratory!
After their latest decision in this ongoing horror show, Citizens United v. Federal Election Commission, Justice Kennedy wittily wrote: “a court would be remiss in performing its duties were it to accept an unsound principle merely to avoid the necessity of making a broader ruling…” Or mightn’t a court also be remiss in its duties to the nation if it accepted a whole series of unsound rulings whole merely to make an unnecessarily broad and wrong ruling necessary? Because let’s be blunt here, as clear as we can be, so even a child can understand, corporations are not and never can be individuals and speech is not and never will be money. Does the court even own a dictionary? Can they not differentiate anything to any degree any more, not even one noun from another when they mean two entirely separate and unique things? Not only is money not the same as speech, in most instances it is completely dissimilar and nearly always opposite in meaning and intention to speech. Corporations actually prey on individuals rather than altruistically serve them and are far more likely to be dictatorships than democracies. Because a human has two legs and so do horses and millipedes and birds and tigers it does not follow that we are all one species and we should then be required by law to be treated the same. That would let tigers live freely amongst us in our homes and attend the same schools as our children. To focus on a few minuscule areas of concurrence between things while ignoring the huge and countless differences between people and corporations must have given these poor justices eyestrain. To say that speech is money and corporations are individuals is reminiscent of the mental gyrations rife in Lincoln’s time in support of slavery when he pointed to those who would try to turn a horse chestnut into a chestnut horse. Because houseflies and elephants both have feet it does not follow that elephants can fly. The leaps and lapses in logic in the court’s reasoning in this case are really rather startling. There is no question that money may in some instances help facilitate free speech. Although even this argument immediately begins to sour when you ponder the concept of the word “free” in connection to money, since something which requires money is by definition not free. As speech is the essence of free and spontaneous expression, money is the very soul of unfree, contrived, commercialized exchanges and propaganda and cannot easily be given freely much less found without cost. It nearly always is given in expectation of receiving something in return. It is at the heart of the definition of the principle of quid pro quo, as either quid or quo, which makes calling money spent for political activity, “free speech” an oxymoron from the start. Certainly this is the general rule of thumb in political expenditures where large campaign contributions are involved. To suggest there are no quid pro quos in these political donations is naïve at best, at worst disingenuous. Free speech is a temporary passenger on the money train the same way a hobo may be a unwelcome passenger on a freight train. Yet no one has ever been tempted for even the brief duration of the most intense period of their partnership to confuse the two and consider a train a hobo or a hobo a train. Why is it necessary to conjoin two disparate things together as one that only have an acquaintanceship in passing? This is the sort of symbiosis which exists between money and free speech in politics. Money is not the causal agent of speech after all, it is merely an expediency as speech doesn’t require the money for its existence only for its special, narrow, temporary, occasional propagation. Meanwhile you can listen to a dollar bill as long as you want and never receive an ounce of wisdom from it, try as you may. I know, I know, it’s a ridiculous analogy, calling a train a hobo and a hobo a train. But how much worse would it be to suggest that the presumed needs, and hopes and moral consciousness of the poor hobo are identical and inextricable from those of the corporation that owns the railroad? Because that is precisely what the court is suggesting as fact when it claims a corporation is in essence merely a very large individual. Because at some point in its deliberations the court has gone one (or many) steps too far off the rails and said that for some unknown reason the facilitator of free speech must become the same thing it facilitates. Therefore the expenditure of money for free speech becomes free speech too, not just specifically for the duration of their time together but for all time. And the source (a corporation) of the facilitating agent (money) must have the same rights as the source (a human being) of the thing facilitated (speech). Neat. Wrong, but neat. As has been pointed out, however, in the real world, earth, I mean, just because one thing may have one or more things in common with another temporarily hardly leads to a perfect congruency between them. Such complexity of differentiation and analysis as this seems lost on the court, and one can only wonder how long it may be before corporations are given the right to bear arms, keep private militias, run their own candidates for public office (as opposed to controlling the ones already there). Yes, and even promoting themselves to sit on our courts in place of the jurists who first proffered them the rights of citizenship and personhood to do so. So intellectually supine is the court to the moneyed interests that they claim in order to not disadvantage corporate interests vis a vis we bullying ordinary American citizens, that they must equal the playing field by allowing the very wealthy and the corporations the same rights as the poor, the working class and middle class to spend as much money as they want on politicization. Of course, this conveniently overlooks the fact that no one else but wealthy individuals and corporations have that kind of money to spend on political discourse in the first place. It’s a fine thing when justice is blind but not quite so edifying if it is stupid, too. In their zeal to level the playing field with the common man, in effect, the court has caved and carved out an exclusive right of unfettered, continuous and debilitating influence over our political system for the very wealthiest Americans and corporations which is as a matter of fact available to no one else in the country. Two quotes from Justice Scalia’s opinion in the Citizen’s United v. Federal Election Commission ruling illustrate this thinking superbly. “And the notion which follows from the dissent’s view, that modern newspapers, since they are incorporated, have free speech rights only at the sufferance of Congress, boggles the mind.” Apparently he has a mind that is easily boggled because of course newspapers, since they deal in words about facts and ideas have sufferance to operate not by congress but by the constitution, which protects freedom of speech. No one disputes this. He is actually trying to compare newspapers to a general corporation which it is also but which doesn’t deal in words, facts or ideas primarily but rather is constituted solely as an engine of personal profit rather than a progenitor of democratic ideals. Again the vehicle is always treated separately from things it may carry. Automobiles are not confused with the people they carry so money should not be treated the same as the speech it promotes. So ordinary corporations, and this includes those which operate media, have never in and of themselves as corporations been protected as organs of political free speech, primarily because these businesses as businesses don’t deal in political free speech at all. If they deal in politics it is only for profit. This is separate from the business they perform which, since it often deals in speech, is protected by the first amendment. Nor, by the way, do newspapers generally spend their corporate profits to promote specific candidacies which, of course, is what we were talking about in regard to other, non speech producing corporations. So what the heck is Justice Scalia talking about? This comes clearer in the second quote. “It is hard to see how this (corruption in politics) has anything to do with what sort of corruption can be combated by restrictions on political speech.” See what he did there? To understand what he means you must simply substitute the final word “speech” with “campaign money.” How quaint, he merely substituted one word for another and changed the meaning of the new word to the one he replaced to create a much deeper, though completely erroneous, legal confusion of the situation. Seriously, could someone just get this man a dictionary? A simple Webster’s Collegiate should be adequate. Sorry, you can’t change the law simply by changing the language to suit your purposes, and altering the well established meaning of one word to another and then pretending they’ve been the same all along. In both these quotations Justice Scalia merely treats the meaning of the words "money" and "speech" as if they were interchangeable thus ceding himself his point prior to his ever having been successful in making the point he is trying to make. It is not only presumptuous, it is just bad form to assume your conclusion as a part of your explanation as to why your solution is needed. This is circular logic. Elsewhere he accuses his critics of being simplistic for not agreeing with him. But actually it is simplistic beyond belief, in fact it is downright childish, to take two completely different tenants and pretend they’re identical when the whole world knows they are not and never have been considered as such before.
II Untruth or Consequentialism
It also seems to be another layer of this court’s peculiar myopia of logic that something that may be valuable, necessary and appropriate at one level of application must be uniform as to scale in every other instance. Therefore if no limits can be applied to an object or exercise in one instance they cannot be applied in other. There are too many exemptions to this theory to list. The posted speed limit on an interstate highway is different than that posted in a school zone on a narrow street in a populated area, for instance. So campaign funding limited to small sums, balanced among many others equally endowed and in limited conditions, cannot carry with it undo influence or pressure on the recipient. Yet if a few donors may spend very large sums of money that others can’t, even outside of directly contributing to them, as if the recipient of the favor wouldn’t hear of or be aware of this very generous support, then this special access must fatally diminish the equal access mandated by law. Now these super contributors, these golden calves and idols, are elevated to a higher pedestal of political access and idolatry at which our elected officials have shown themselves only to willing to stoop to worship. Yet, to be equal according to this court, no limits can be applied to these outside expenditures though in every way they are far more valuable, rare, critical and therefore more legislatively appreciated by the politician who is helped by them than the much smaller, direct contributions which may still be regulated. How does it make sense to allow regulation of small contributions and disallow regulation of much larger donations, even if of a different type, when the intention is precisely the same? So because someone goes out and buys a very high performance automobile the court believes it would be a shame if they weren’t able to drive as fast as they wanted out in front of your children’s school. Therefore speed limits are only applicable to slower cars. Let the pupil beware. To give another example how more money doesn’t necessarily lead to more and better free speech imagine this. Let’s say money is used to buy a bullhorn to attend a political rally. Superficially it may be said that this money is being spent to enhance free speech. But in reality this will merely drown out the ability of all but one voice to be heard at the rally. Some might validly propose that if they were given advance notice others could buy bullhorns which would allow their voices to be heard as well, presumably devolving into a sort of shouting match of who could yell louder into a bullhorn. But this would immediately exclude many in the crowd who haven’t money in their pockets to buy expensive bullhorns from ever having their opinions heard at all. And still this amplification would do nothing to ensure that the speech would be better, freer or more reasonable or more balanced, only that it would be a lot louder. Past a certain basic necessity, more money in politics is more about increasing amplification than it is quality or equality of access. In fact, the more money that flows into our political debate means fewer and fewer voices are able to be heard above the din of the big money boys and their big money buys. Therefore, ironically but irrefutably, the very variety of speech that money may advance in small sums is by large sums invariably limited and suppressed. Meanwhile the louder the debate gets the more simplified, cruder and personalized the speech tends to become, often merely devolving into charges and countercharges shouted back and forth above the head of the electorate, leaving the real issues unilluminated and ignored as the debate continues to deteriorate into a mere shouting match. And if one side should manage to monopolize the supply of bullhorns for an election cycle or two, the debate may easily become even more one-sided, predatory and exclusionary. In this way money in politics is free speech the same way as, to continue an earlier allusion, tigers are children – if you overlook for a moment the fact that tigers often eat children. In sum then, the court’s mainspring argument that the more money (which they persist in mindlessly and erroneously calling speech) present in our political discourse, the better, is demonstrably wrong. Conversely, how much better in the instance just stated would it be merely to ban all bullhorns at political rallies so that everyone, at least nominally, would have a far better chance of being heard in their normal, rational voice? No system will ensure perfection, of course, but some systems certainly may achieve political inclusion to a higher degree than others. And in effect this is just exactly what campaign finance reform attempts have always tried to do, at least before a meddlesome and politicized court intervenes to try to destroy their efforts. And this bullhorn metaphor only illustrates part of the problem that money plays in politics. It doesn’t even mention the corollary corruptive moral danger of the politicians who court easy financial success by offering favors to the people who possess the largest political bullhorns (i.e. the most money). Needless to say, this entirely anti-democratic tendency is rampant and well documented in our politics today. And so to the exclusionary propensity of money in politics must be added its overwhelming corrosive and morally corrupting influences. Both of these negative tendencies have been unsatisfactorily dismissed and minimized by the court even though they are transparently obvious and well known to all. So the court plays it coy and humble. They say they are just not qualified to judge the nuances of how free speech is employed and to whose advantage money works and to whose it doesn’t. The court would pretend to believe in a fantasy utopian world where more is always better and all these profoundly unequal strains between national good and evil always magically sort themselves out to the national good. Clearly where money is unregulated and power is for sale and politicians are on the pad this has never been the case and can never be the case in the future. Letting open the floodgates of money wide doesn’t enhance political debate it narrows it. It doesn’t widen its reach but diminishes its access. It doesn’t make it more valuable but cheapens it. With a long history of usurpations by the courts our democracy has been turned away from the marketplace of ideas and ideals toward just another marketplace where our politicians sell themselves like cattle to the highest bidders gathering conflicts of interest as they go. Along the way, every year now it seems, they apparently feel themselves beholden to fewer and fewer Americans as their campaign coffers grow exponentially larger. After all, why work to serve the complicated many with their pittances when you can pander to just a few of the well heeled and make as much or more money for your campaign with half the work and in a fraction of the time; get to go on free junkets to exotic locales and have offers of a lucrative jobs from the same people you have long been secretly working for waiting for you after your political career ends? It is this system which we see unfolding before us more and more clearly by the day, as the spoils go to the well connected and the winners take not just their fair share but all of ours as well. This systemic undoing of democracy, of course, is nearly the perfect antithesis of what we are told is happening, starkly inimical to our historic way of life and more and more debilitating to the future of our country. We see new signs every day as we progress further down this dead end road with the red warning lights flashing and the alarm bells sounding danger. Unfortunately this concern does not extend to our public servants nor to the court which instead of finding ways to help turn us back from disaster have decided our decline needed some further encouragement, full speed ahead. The remarkable thing is that everyone with a brain and ounce of common sense and moral courage knows exactly what is happening. Some are just too weak willed to care and others just corrupt enough to prefer it this way.
III Hoist on the Petard of a Double Syllogism
But if all this is so obvious why does the court pretend to find it so hard to see? After all, their reasoning in support of their decision is so mind-numbingly puerile and banal it’s hard to believe they are serious. While pretending to give corporations parity with individuals they have actually ceded rights that exist no where else in our society to corporations with full sanction to adversely influence our political system in any way they wish. No citizen could possibly exert any where near similar leverage over our political processes as a corporation with unlimited money at its disposal, countless lawyers and accountants with nothing else to do, and the financial incentives to work at bending and corrupting our system to their advantage twenty four hours a day. At the same time it seems to us that corporations as conceived by the court (as they do not exist in any other reality) are able to operate under a double standard. When a corporation speaks of money it means money in the classical dictionary sense, as a medium of commerce and exchange. There is no duality of purpose gnawing at its virtual conscience. It only spends money for one purpose – expectation of immediate profit and return on its investment. Or in the case of a group of people incorporated to lobby for a specific special interest, they wish only specific legislation and nothing else. While the court feeds us odd and unworkable abstractions about money and speech these entities keep their focus on their bottom line. A corporation’s speech is merely a means to more money not as the court would have it as money being a means to more speech. More and more money has led directly to the current divisiveness of our political landscape as it splits our unified nation into bits and pieces and factions and fractions. Meanwhile all other abstractions such as human rights and democratic principles and patriotism and ethics and religious beliefs and morals are pretty thoroughly lost on corporate America as well. Fairness and equal rights are not rules they play by when they can devise an alternative to cheat and achieve unfair or monopolistic advantages for themselves. So although corporate rights and rights of individuals may occasionally coincide under our constitution, in all the most fundamental ways they do not. Corporations are not like us. Corporations, as put famously by one corporate reprobate, do not even like us, customers are the “enemy.” One hates to think how they regard the general mass of their fellow citizens who are not even their customers. Even though both corporations and citizens may be protected from illegal search and seizure, for instance, with the right to sue and be sued, etc., the vastness of our differences are more apparent than our similarities. Therefore corporations say money is like speech but our speech is never like their money. Otherwise we should be able to merely talk our way out of debt or enhance our purchasing power through our persuasive abilities and in consideration of our larger services to the community. But however long and hard you plead and appeal to their humanity a bank is still going to foreclose your house and throw you and your family into the street in the middle of winter. Although corporations want the legal rights of individuals in some instances for self protection at other times they may retreat behind a huge corporate shield and deny their individual liability for anything. Therefore if a person admits to a crime there is nowhere for them to hide and they are liable to do time. A corporation which commits a disproportionately much larger crime always will deny it and merely ascend the scales of justice until no one bears personal responsibility for anything as no one is ever in charge and pay a small – in terms of net worth – settlement while admitting no responsibility for anything. Not only are they sometimes too big to fail, sometimes they are too big to sue, or even prosecute. Thanks to the courts and lax regulations, and a compliant, well lubricated (with money and other party favors) congress, they are very prickly organizations to get at. In fact, corporations have little in common with individuals at all. They are broad collectives of shareholders and officers, employees and bosses. It is both feeble and facile to claim they share the same aspirations and have the same needs as the public. What human in tough times would simply furlough or lay off half their family so the legal head of the household can continue to live high on the hog in the style to which they have become accustomed? Same thing goes for health care and pensions and wages. When times are lean and regulatory regimes are bearing down what householder would merely fire his American family, sell the house they were living in and buy another newer and more manageable and less well regulated one overseas. What head of a household has the option of gambling wildly for profit with other peoples’ money, bankrupting many, going bust and because they are “too big to fail” be bailed out by the taxpayer via the Federal Government and within a year or so be making just as much and more money as before and still have enough to spare to bribe members of congress with campaign money and threats in order to block financial reform that might inhibit them from doing the same thing to us again? This is what just happened to financial institutions on Wall Street. Could you see this happening to you? If, as the court insists, that corporations are just folks like us won’t the government bail us out too? No? Now they tell us it doesn’t cut both ways? Corporations are people but people are never corporations. And the court, saying these corporate entities are just people, ordinary citizens like you and me, should have not less power than individuals, but far more power over our political system in order to manipulate public opinion and carve out special advantages and endless earmarks and undeserved tax advantages and dangerous deregulation for themselves? Apparently to make sure that they aren’t deprived by all we unjust Americans picking on them the court is taking it on itself to see that their fair protections under law must be far vaster and fairer than ours. It seems like corporations are sometimes like individuals and sometimes not, as it suits their purpose and intentions. Sometimes their money is like speech and sometimes it’s just their money. They have all our individual rights but an individual has none of their rights. Sometimes they are above and beyond the law sometimes they are just hiding behind it. Whatever they want to be, monolithic, weak or in need of special protection, the court follows them around like a dog owner carrying a pooper scooper and cleans up their messes.
For fun, let’s recap. The core of these issues revolves around two principles. One, corporations are people and two, speech is money. Put in a structure it runs something like two syllogisms entwined where four of the six individual points in the syllogisms are wrong. This is a perfect legal house of cards. For some this fact may weaken the force of the overall argument
People have freedom of speech Corporations are individual people too Ergo: Corporate speech is protected
Money is also speech So corporate (speech) spending is protected Ergo: corporations can spend unlimitedly
Result: Corporations can both speak and spend far more than anyone else in the country to influence our political system and impact our futures. They are more powerful politically and far more single minded and morally challenged than all the people taken together, individually and collectively, including our two political parties. Though never mentioned in the constitution they have been given more rights and privileges in our democracy than any mere mortal American could ever dream of having. This is odd because there is nothing remotely democratic about these institutions nor is there any mention of them anywhere in the constitution as the super men among us that the court apparently envisions. Who could have foreseen these things? Certainly not the founders of the country.
IV The world is too much with us… getting and spending we lay waste our powers
Now money too, is an useful object. But also a dry, utilitarian thing, deadening to the spirit, a simple measure of relative worth. It ties and binds and by design leads to rote talking, thinking and acting. Creativity and imagination are foreign countries to it. Words and ideas on the other hand tear down the walls that money builds up. Capital sustains corrupt regimes in power which free speech consistently works to erode and undo. Speech is freeing, expanding, consequential, liberating, inspiring, socializing, adding to, and consensus building. Money consolidates and isolates and misers the mind, hoards, weakens spines, controls, subtracts, monopolizes and closes alternatives down that free speech opens up. Normally when a government is corrupt it hates speech with a passion and will limit and alienate sources of free speech such as exposés, whistle blowers, public displays and meetings, honest reportage of facts, journalistic outlets and journalists, foreign press etc. You never hear of corrupt regimes banning money. There’s a reason for this. Money is the oppressors’ friend, his tool of choice. When consolidated into a few hands money helps to protect, abet and hide the worst abuses of humanity. It is a perfect amorality, that profits greater (so it thinks) when government is more oppressive and will in any corrupted system invariably be aligned with the wrong side, i.e. the side opposite to the majority of the people. Free speech is unscripted, revolutionary when it needs be, sentimental when appropriate, inspiriting and inspiring in the right circumstance. Money is none of these. The best ideas appear in words where they may stand on their own merit in the vibrancy of the intellectual marketplace. Often they are quiet, spare, simple or unadorned utterances and are often understated and even chaste affairs that if true, grow and glow far beyond themselves to influence and endure. Bad ideas, on the contrary, because they are so poor in spirit, complement with cash what they lack in persuasive capacity and tend to be fulsome, noisy, threatening and less than the full truth. Bad ideas wedded to money are the ultimate in class differentiation, are enemies of social justice and seek to exploit and expand societal divisions. At the same time free speech armed with open debate from which good ideas may come, seeks unanimity freely. So bad corporations and bad money ideas prefer a rigged , closed, secretive, cover-up and graft ridden system, while good speech and ideas (very often laboring with limited financing) love democracy, openness, free hearings and fair debate. Materially speaking, in fact, good thoughts and free speech are often poor and threadbare. In a corrupt, money driven system they will always find it hard to achieve fair hearing. Yet in the same system bad ideas will be flourishing money magnets, be marched and blared about with complacence or belligerence wrapped in garish verbal opulence. Freedom of speech is taken too much for granted, as a given, and its good ideas are only roused to their own defense as slowly and reluctantly as small families, householders and shop keepers against the marching hoards of big money whose organizers are always plotting and planning, undercutting and overwhelming and seeking to expand themselves at others’ permanent cost. Big money and political coups rig unfair playing fields together and rewrite rules in their favor to their own mutual benefit. True words and speech may also be mundane, boring, serviceable and everyday, of course. But at their best they give rich cloth to thoughts which are a mysterious mirror of the mind which may reflect all the way back to the depths of our soul’s eternal being. But, money, poor money, is an instrument by man made, crudely conceived and contrived stuff, that’s a never ennobling article of no consequence. When our times are done our words and speech will endure and as our legacy remain while the money we’ve gathered will blow like dried leaves meaninglessly away.
So isn't it odd that in these corrupt times, of all times, this court would think it prudent and wise to place addenda to the constitution that elevate money over words and place free speech itself at money's mercy. These strict constructionists are not so strict when it comes to furthering the triumph of a monetocracy over democracy. After all the founders might have protected money in the Bill of Rights, they knew of the concept, but since they could tell the difference from the real and indifferent and the imposter from the permanent, they didn’t bother. Apparently this was such an egregious constitutional oversight that our current court, which has never displayed any apparent insight, felt compelled to improve, 221 years later. Why, after twenty score and one years, a Supreme Court should suddenly feel this urge is unfathomable. You must ask yourself what was broken that this decision will fix and what that wasn’t working won’t this make worse? Because of course this is all wrong. This is a nation of individuals, and if their rights are honored above all, and a nation of healthy, well housed, well educated, well paid, fairly taxed individuals results naturally, then the future of our corporations will take care of itself. But if the government perversely focuses its attentions and loving care on our corporations above all, they will not help the individual American succeed but plunder them with the government’s connivance. This will jeopardize the future of the country. And that is just what these hollow, empty robes and their inbred cousins on Capitol Hill have been doing. They’re loyal slaves to these corrupt political times and have spent their entire lives on their knees and now would drag the rest of us down to their level. The real effect of this progression of rulings which culminate in Citizens United is not to make speech and money equal but to make speech subservient to money. If the hounds of money are loosed speech will always need to be allied with big money to compete in the political forum. At the same time money can always unite defensively to drown out any speech it feels unconducive to moneyed interests. To let corporations spend as much as they want to disrupt our political process merely raises the stakes immeasurably so that no individual or collection of individuals or any of their ideas can possibly compete without dancing to big money’s atonality. These policies do not eliminate free speech but they control it and water it down to levels approved of in advance by the corporate interests that bankroll them. All our politicians must be subjected to a similar litmus and only those approved of by capital that has very little interest in the wants and needs of of normal Americans, need apply. Many of these trends are already clear. There is already a money veto on many candidates and policies. Our politicians are like athletes who have taken bribes to shave points and take dives and throw games so that the bookies that control them may profit. That is why we see a virtual government of nullification by many in politics today. This is by design to clear the way, to discredit and destroy government because it is the only force extent which may actually have the power to stop the monetopoly from usurping democracy altogether. But rest assured, we will endure and all the meandering mendacities of these fools, charlatans and liars will not stand.
What's a word worth Wordsworth a bucket of spit, a handful of earth? even gamblers ante up to play but opinion's free so "nil" they say or at least that's my two cents worth
When the Supreme Court in Buckley ruled that free speech is just money that gushes and bundles of cash and fine turns of prose are a wash they put a for sale sign on democracy
When money is spent promiscuously it cheapens free speech immeasurably it opens the way for ticks and leeches to kill good political bills and speeches by vastly increasing lobbying intensity
Now some would weaken McCain Feingold a poor stab to keep votes from being stolen by pretending there's no public interest in watching corporate and private interests let Congress continue to loaf and freeload
The Court claimed that free speech plain is the same as funding expensive campaigns it's a pure legal fallacy that can be dispensed of with with a dictionary to claim that free speech equals paid is insane
To equate the indecent inducement of money with the chaste voice of speech is baloney all sound thought and fine nuance is lost 'mid the bullhorn of high finance even a blind child has more perspicacity
Yet in their zeal to make wrong seem right they Court'd gut and rewrite our Bill of Rights to allow a very small constituency of a wealthy well heeled minority diminish the glow of Lady Liberty's light
Giving unequal say to the worst among us destroys all hope of a national consensus pays offs and kickbacks are rigidly compulsory but free speech is fluid and voluntary no wonder our politics grow so contentious
To ensure that a corrupt few can profit abjectly access to all must be denied completely they'd lobotomize the constitution in favor of pure political prostitution as they recast free speech as pay to play
But won't moneyed interests be deprived if they lack a way to pay our pols bribes? No. Freedom's based on an individual's right to be heard not on massed capital's speech with a price tag is free speech denied
Politicians deny they vote how they're told to but money screams louder than words do clearly there's a sublime correlation between money outlays and bad legislation no one ever sells out their country pro bono
Has a Supreme Court ever been dumber at least to its typical five to four number that in its loathing for democracy rules bribes not just right but mandatory to rouse Congress from its golden slumbers
Those who'd have money and speech identical and influence peddling as normal are imbeciles all robber barons are unanimous that finance reform is traitorous a justice shouldn't kowtow to people so cynical
They'll say their hands and tongues are tied stutter stare decisis and utter previous lies if you're raised in a corrupt system when money talks you must listen when its says jump laws they say, "how high?"
Not the sword but the dollar, euro, yen, yuan and rial'll all be mightier than the pen in the beginning was the word for free now for most of us it's far too costly as political access for all comes to an end
When money's god only prayer's free as the plutocracy rapes our democracy then even truer words won't count as much as the size of bank accounts first congress then we'll be bought to our knees
But money per se is not the real enemy it's its misuse that spawns demagoguery like Greshams's Law bad money spent drives out good ideas and common sense as money corrupts politicians absolutely
To base our future on the tyranny of money rather than the primacy of ideas is lunacy it's little more than virtual suicide as our leaders abandon all pride to let Wall Street speculate with our liberty
So words aren't money and money isn't words that's the lamest logic ever been proffered though speech is aided by small sums it is completely swamped by large ones to give money more impact than words is absurd
So what's a word worth Wordsworth? free speech is of inestimable worth money's a small and tawdry thing above its own cost not worth anything that's why in the Bill free speech is first
To say that money may be limited is not the same as ruling it's prohibited whether used as bludgeon or coercion too much of it is unconducive a free nation McFeingold should be stronger not weakened
We are approaching an interesting intersection in time. Next year will be the 150th anniversary of the election of Abraham Lincoln and the birth of the Republican Party. Yet in that time, remarkably, the political playing field has almost perfectly reversed. The solid hidebound South which supported Stephen Douglas and felt so strongly about it that they tried to secede and started a Civil War when they lost is today just as solidly republican as it was then democratic. The party of Lincoln has somehow become the heir to the political landscape of Jefferson Davis.
Of course most issues have changed or at least are now known by other names than they were 150 years ago but structurally and philosophically these regions have somehow kept their sociological and political identity intact. Therefore it is less the country that has changed than the two parties which are jockeying for dominance have changed their orientation. Therefore the republican party of today has become a mirror image of what it was and completely reversed the principles on which it was founded.
There is a present danger for the republicans in this. The election of Lincoln and the war that followed marginalized the democratic party for more than half a century. Controlling the South, when it tends to vote in a block against the rest of the nation rather than just as part of a broader coalition, then has not proven to be a strong position to hold.
Obviously the republican party of today is not pro-slavery. But they have made themselves heirs to that position as it has evolved through time. It has lately been the party that unreformed segregationists and anti-affirmative action, anti-immigration and states rights adherents call home. When the republican party was the chief supporter of those in favor of flying of the Confederate battle flag over certain Southern state capitals in recent years they seemed unaware of the irony inherent in that position. You are left to wonder at times if the republicans of today even remember who won the Civil War and which side they were on at the time.
Through sheer constant weak-willed opportunism those who are not only against our government but against most of what our government has done and what it might still do in the future have today gravitated to the republican party. The republican propagandists have played the card of victimhood so long and assiduously that when the majority of the electorate finally decided to enjoin the party to its own propaganda and make it the minority party it has always portrayed itself to be even when it wasn't, they have seemed surprised at this reversal of their fortunes.
The mirror comparison is not perfect, of course, for the US is a much different place now than it was 150 years ago. But when Obama, a former legislator in Springfield and a United States Senator from Illinois, self consciously portrayed himself as the natural heir to Lincoln it was unfathomable that Lincoln's old party barely even contested the comparison. They ridiculed it, as they do nearly everything in their own snide fashion, but without even bothering to insist that they were the true conservators of Lincoln's legacy. Since they knew it wouldn't be convincing they didn't even venture a try.
Naturally this betrayal of their own tradition has been a long time in germination. When the Civil Rights legislation passed in the 1960's and Lyndon Johnson presciently predicted that it would mean the loss of the South for the democrats for a generation, the republicans could not have been more eager to take the bait. From Richard Nixon's conscious determination to win the South as a closet anti-integrationist, to Reagan's nod to reactionaries in the South as an virulent opponent of affirmative action, to George W. Bush's campaign's furtive efforts to smear John McCain with claims that he had fathered a black child, and now with dark grumblings about Obama "not being one of us", the republicans have massaged the Southern Strategy to a fault. They have worked hard to earn their current increasing geographical isolation and have pursued it with a breathtaking combination of verve and myopia.
Now their talk of getting back in power in an election cycle or two is fantasy. Their problems have been too long in the making to be readily reversible. And since the route they have chosen to do this is by becoming the party of "no", as permanent obstructionists, is essentially anti-democratic and profoundly un-American, it becomes even harder to take their strategy seriously. In their latest juvenile attempt to show they are clever - as opposed apparently to serious and substantive - they have tried to confuse this moniker of the "party of no" by saying that they are really the party of "know". Get it?
Unfortunately this reminds of the old joke applied by its enemies to the University of Nebraska football team (sorry Huskers). When asked what the "N" on their helmets stood for they are averred to have replied, "knowledge". So no, the party of no is not the party of know. That would require real policies, hard work and trying to re-earn the trust of the American people, all things the current republican leadership seems constitutionally unable to provide.
It was very clear, for instance, that they were probably not going to get their way on the recent health care debate. The democrats would have had to implode, something they are capable of to be sure, but not probable under present circumstances. The numbers, the momentum and the desire of the American people for action were all united against them. But by their incredibly cynical bad behavior, judgment, lies and exaggerations the republicans have tried their best to turn a loss into a rout.
If you consider the republicans of today a little more deeply, using only historical examples as reference points, the current republican party might be thought of as an amalgam of the anti-government populism of Andrew Jackson, the big business, robber baron party of Herbert Hoover and the anti-immigration and anti-integration party of the late Strom Thurmond. Their intolerant right wing religious beliefs combined with their devil may care guerrilla type political tactics - from their tantrum in shutting down the government when they couldn't get their way legitimately in 1995, to Clinton's bizarre stage managed impeachment, to the flow-through tea baggers of yesterday's news - remind us of the Know Nothing nativists of Lincoln's day, of whom he strongly disapproved and who abandoned the republican party in droves when he won.
Superficially big money, right wing religion, southern style populism and ultra nationalist militarism almost seem to hang together well enough to look like a winning coalition in some circumstances. Money, religion, anti-government fervor, anti immigration and ultra nationalism are all powerful forces in American politics. But since these subsets of voters don't necessarily cleave together naturally the republicans have always sought policies like flag burning, gay marriage and fear of terrorists to infuse their dry policy positions with strong visceral emotional context to glue these disparate forces together.
But emotion is a card you can play only so long politically without exhausting your good will, as well as your base and eventually the entire country. This is particularly true when the private actions of those shouting loudest often seem to contradict the principles they are publicly espousing. It grows even worse when these emotional issues seldom reach any clear legislative consensus or political culmination and which moreover have absolutely nothing to do with actually running the country unless you count running it into the ground. On the contrary these emotional hot button issues normally work in direct opposition to sound management of the nation's business and resources. In addition when you factor in their guerrilla political tactics, more common to a party out of power, which eventually precipitate a decline in governmental trust and effectiveness across the board, the party in charge will necessarily be blamed for the decline.
So when anthropologists look back to try to reconstruct the typical political animal of the Reagan era, republico-pythicus, to place in an unnatural history museum of the future somewhere, he might well look something like this: a slightly overweight middle aged white male ostentatiously waving an American flag with his right hand and a gun held high over head with his left. He would have a "conservative" bible tucked under one arm and a new and undigested copy of Adam Smith under the other. On his head will rest a ballcap with the slogan, "never raise common taxes ever for anything," a pro life lapel pin prominently portrayed on his shirt, and patches sewn on available spaces everywhere proclaiming all his corporate sponsorship logos and allegiances, from Haliburtan, Exxon, Fox News, etc. But this species - the card on the exhibit would explain - was a particularly delicate one unable to easily breed or adapt to climate changes and by the beginning of the 21st century it was an endangered species and soon thereafter was extinct.
A Remarkable Symmetry
In fact, there is a remarkable symmetry here. The republican reign from 1980-2008 is really quite similar to the democratic dominance from 1832-1860. The first of these was vanquished by Lincoln and the latest apparently ended by none other than his self-proclaimed heir apparent, Obama. Both of these political periods, one democratic one republican, were founded by larger than life presidents - Jackson and Reagan - who strode like giants over their times then lent their names to the era over which their parties presided. The interesting thing to note is just how similar was the basis on which they built their popularity.
Though neither was what you would call learned each had simple and firmly held beliefs. Both were rabidly, even irrationally, anti-government. Both were martial men, Jackson actually and Reagan rhetorically. Neither was noted for having humane policies favorable to minorities. Both were strongly popular, both had great hair and looked good on a horse. Both founded dead end deconstructive political movements which achieved far more in spirit than they bequeathed in legislative substance. Each inaugurated a political period which 28 years after its inception led to a deeply divided nation, their opponents' party demoralized from having been beaten so thoroughly for so long and their own party an empty stagnant shell of mindless sloganeering and vapid belligerence. In each case, after 28 years of virtually unmatched domination their party fell on hard times. In Jackson's case, after the Civil War, as I said earlier, the democrats were effectively marginalized for over fifty years.
Now in our current case the history has yet to be written, but alleged signs of an early republican resurgence fall somewhere between greatly exaggerated and totally nonexistent. The republican party today is as surly and obstreperous in defeat as they were obnoxious, arrogant and incompetent in charge. They have become the party of nullification, virtual secessionists from reality. It remains to be seen, which is certainly possible, if they can raise up a leader who can discipline this party to follow him or her and put all this flame and tantrum throwing nonsense aside and start to climb out of the political pit into which they have so rapidly descended.
Otherwise, if for instance the long health care debate eventuates in popular, enduring and irreversible legislation, which is highly likely, the republican party is teetering on the edge of the precipice of a very long decline. So far in the Obama administration their attitude was first cautionary, then inflammatory, then irrational, then shrill and now finally, worst of all, touching irrelevancy.
Just as an aside, at the same time that the basis of Jackson's and Reagan's popularity is so similar it is also true that one would never confuse the two. Jackson is an original democrat and Reagan is a pure republican. So what is the difference? For therein lies the secret in plain sight of American and probably world politics. For it is not the sameness but the difference between them which perfectly defines the eternal difference between the two parties. Quite simply it is money.
Follow the money. Jackson was against large accumulations of capital and considered it to be a threat to democratic procedures and liberty. Reagan was in favor of large accumulations of capital into private hands and considered it the proof and apogee of the success of the American free market system. This not only is the clearest, most fundamental and enduring difference between the two parties, this is the divide that can never ultimately be bridged. This is why there are two parties.
Money in one form or guise or another is at the root of 60 to 80% of every political debate and conflict in the country. It is more subliminal even than region, religion or upbringing. How one feels about the disbursement of money, which hinges on whether or not national wealth is a resource available to be drawn on by all or best kept by a chosen few, has been the most fundamental divide in all our politics from Jefferson to Hamilton, from Franklin Roosevelt to Reagan, from Obama to McCain.
Other issues may arise and fade. Wars, abortion, race, immigration, religion, national security and big government vs. small. All may tilt elections one way or the other from time to time. But along with money, the solid South is the most potent and consistent force in American politics. Money is not the reason the South has stayed the South through all this time. No one can unravel the Gordian Knot that is the southern states, not even the party of (k)no(w). The republicans crassly set out to use the South politically and have been captured by the South philosophically. It will be a very hard knot or (k)no(t) now for the party of no (or even know) to un-knot.
This is especially true as the republican right's unabated drive for political "purity" continues to narrow and winnow the base of their own support farther and farther away.
In sum, over the last few decades some of the party's' lesser lights and dimmest bulbs have made purely opportunistic decisions which the party is paying for now and may have to pay for for a very long time to come. The republicans have won the South and lost nearly everywhere else. They absolutely abandoned the expansive, tolerant, magnanimous, far sighted, unifying principles on which their party was brilliantly conceived by Lincoln, the nation's greatest president. They have replaced these fine standards with the narrow minded, selfish, greedy, torturous, divisive, fear and war mongering techniques of historical nonentities like Dick Cheney and Karl Rove along with various other ranters and ravers too intellectually small and forgettable to note.
It is painfully clear that if they are to begin to broaden their base again and become what they once were the republicans must move back to find the principles on which their party was initially founded 150 years ago and embrace them once more.
The debate over health care has taken a tiresomely predictable turn for
the worse between those in this country who have way too much and the
rest of the nation who have too little. Members of Congress, on
average numbering among the very wealthiest Americans, have their
insurance ensured and subsidized by the American people generally, with their generous pensions, for
life. They may receive treatment at military hospitals, same as the
President, and for a small fee have access to a physician at the
Capitol. Despite our generosity toward them they have no apparent
interest in offering the same benefits back to us.
Their health care is exceptional, among the very best in the world.
Ours is exceptionally bad, among the very worst in the developed world
with ten of millions afforded no reliable access to health care at
all. Their benefit package is carved in granite, ours is written on
sand. Their costs are cheap, ours are steep.
For the last ten years health care costs for the average family has
increased over wages for the average American family, 5% just last year
alone. Yet congress gives itself yearly cost of living wage increases,
sometimes in the middle of the night, to ensure that no health, or any
other, cost they may incur ever rises faster than their pay.
Yet the average net worth of Americans dropped 23% last year while the
average net worth of members of congress soared by 61% from 2004-2007.
The average median household in this country has wealth of about
$62,000. The median wealth of a member of congress is more than 25 times greater at about $1.7
million. Two of every three senators is a millionaire. And they are
paid $169,000 annually. Yet we give them wonderful health care and
they refuse to afford us comparable benefits - even with our own money
- because they say we can't afford it.
They pretend to be frugal and not want health care for Americans to
cost much but make no such "we are all in the same boat here" demands
on their own coverage. They seem far more willing to play medical
lottery with our lives than their own.
They loudly decry record deficit spending (which they are solely
responsible for) as a reason for denying spending on all manner of
necessary and needful things for the nation, while showing no
corresponding disdain or restraint for spiraling debt when it is to
support boondoggles in their own backyards - a bridge to nowhere, for
instance; an outdated weapons system that doesn't work, will never be
used and not even the military wants; or costly earmarks to fat cat
contributors to their campaign coffers.
According to the Center for Responsible Politics the top 5%of Americans
have more wealth than the remaining 95%. The top 20% own over 80% of
all our wealth. According to Edward Wolff of New York University,
income distribution in this country is much more unequal than any other
advanced industrial country. This trend has reversed direction since
the seventies when the fairness of our income distribution was among
the best and most admired in the world. Perhaps this fact alone is
the primary cause of the nation's underlying and growing discontent.
Congress is not only out of touch with our democracy they are foreign to it. They and their
supporters, just proven by the recent government bailouts, will
prosper even when we falter and the nation declines. There is simply
nothing which ties them to main street America any longer. They do not see our successful future as vital to their own. That is why
even those in positions of power who favor health care are dry, detached and academic - it
doesn't affect their own lives in the least. While those against it
are passionate about protecting their wealth from unwelcome incursions
by the poor.
The schism in today's society is greed and class based. Race is just an
emotional cover which moneyed interests and their political mouthpieces
are willing to foment only to misrepresent as populist outrage against any reform
detrimental to themselves. They will use every threat, any lie and tantrum
they can think to throw, from death panels to Socialism to Hitlerism,
to stop health care from going forward.
But it is not because they are opposed to health care per se. It is
simply because the goal of good, affordable universal health care
coverage is a symbol which speaks to a theory of government that
preaches social responsibility and equality as a necessity of
citizenship and maintaining our future prosperity. The sheer humanity of this theory is inimical to them. They would rather we stuck to the timeworn and disproven theories
of "greed is good" and "every man and woman for his or herself" as the
unifying, gathering principle upon which our nation is based and bound
to thrive. This has worked out quite well for them - and poorly for us
and the country - for the last thirty years.
This is what makes this issue so difficult for our political class to
deal with and the argument around it so cynical and surreal and unenlightening.
Congress has crawled gratefully into bed with the same fat cats they were elected to protect us
against. They have become lax and lazy under nearly thirty years of Republican rule and the
unworkable but highly self-serving theorem they operated under - no
government is good government. Now that congress must actually do something
they are lethargic and stuporous and must ultimately decide whether
they want to serve their few wealthy patrons or their millions of
constituents. Neither man nor congress can serve two masters. They can't have it both ways.
I The Strange Case of Ricci, Sotomayor and the Supreme Court
During Judge Sonia Sotomayor's confirmation hearings one case was frequently referenced. This was Ricci vs. DeStefano, where the city of New Haven vitiated the results of a test they had given to the firefighters of their town to determine those most qualified for promotion. The city did this because of an anomaly in the results which seemed to show, relative to similar tests given around the country, a structural bias in the test against minority firefighters.
This put New Haven in a prima facie case of disparate impact liability under Title VII's disparate impact provision. In fear of getting sued the city abrogated the test results and considered how to reform their testing procedure to make it more fair in the future. In the meantime they were sued by those firefighters, predominantly white, who had done well on the first test and wished its results to stand.
Judge Sotomayor, as part of three judge panel, unremarkably and fully in line with existing case law, when the case came before the second circuit, ruled in favor of New Haven and against the protesting firefighters. The Supreme Court overruled her decision 5 to 4.
Even though the New Haven city government found that the test was flawed in a way that would not stand even rudimentary public scrutiny the Supreme Court looked on from afar and deemed the test was perfectly fair and fine with them. They said the city's fears of being sued under Title VII were misplaced and exaggerated and thereby implied ulterior racial motivations for New Haven's actions. They chose to meddle with the city's ability to rewrite the test more fairly and insisted that it be allowed to remain in force even if it were flawed merely because it had once been given. They did this, curiously enough, on civil rights grounds, vigorously protecting the rights of the majority to benefit from an exam biased in their favor.
The oddity and questionable rationale for this decision only comes completely clear when you ask yourself if the opposite situation had existed. In other words, if the test had primarily benefited minority applicants to the exclusion of whites and New Haven had discredited its results would the conservative members of the Court have intervened to insist that the rights of the minority recipients of the test's biases, even when thought to have been fraudulently obtained, must be allowed to stand? Probably not.
In this white tinged reading of the law then whites, as the majority, are supposed to do better on tests than minorities and if they don't the results must be thrown out and if they do the results must be kept. Ironically each of these situations, though completely diametric, would be vehemently justified by those against affirmative action on the same grounds - to protest against some alleged exercise of "reverse discrimination." They use this term as if such a thing had ever been proven to be widespread, or have made any known statistical inroads in our society, such as resulting in higher pay or better jobs or a vastly improved standard of living which elevated the status of minorities unduly over the majority of whites.
Even though such a thing has never occurred conservative elements in this country have determined that reverse discrimination is a pernicious trend which is every bit as bad or worse than the actual,well documented prejudice affirmative action was designed to help counteract. Real, demonstrable discrimination against blacks and minorities ranges long and deep and wide and runs through our history like a river with many tributaries. Evidence of substantive reverse discrimination is shallow, incidental and as hard to find as a spring in the desert.
Yet given a choice it seems the conservative members of the Court have adopted the nebulous, hysterical reasoning of the voices of conservative reaction. Because in the case of the New Haven firefighters they have conspicuously chosen to accept on its face the right of the majority to profit from discrimination of the most direct and old fashioned kind - nothing reverse about it. Meanwhile in their opinion those who are victims of ordinary discrimination must continue to suffer its results without further recourse to or redress from the courts.
In this way the alleged, the incidental and the anecdotal is thought to more or less equate to long established, still evident, well documented and thoroughly insidious examples of actual discrimination that persist to this day. Instead they suggest that the only modestly successful medicine has become every bit as harmful as the original disease it was designed to cure.
This sleight of hand enables the Court, even while eviscerating affirmative action, do so while affirming its necessity - in the opposite direction. While pretending they are rectifying a great mythological wrong which doesn't exist, they are perpetuating an old one which does. They deny equality in the name of equality and gut affirmative action for minorities while affirming it for the majority - as if equality for both at once were somehow an impossibility. They do this while pretending to protect American (at least white American) rights which have never been remotely under threat from affirmative action to start with. So even though one patient is still quite sickly and the other quite robust, the ones playing doctor on the Court have decided that medical aid must quickly be transferred from the sick to the well.
Therefore, for the Court to accept without equivocation the claims of extremists who cry "reverse discrimination" as factual when they say that the rights of whites being discriminated against by minorities (as if they had ever actually acquired the power and opportunity to do this) is every bit the equivalent and some instances today even more of a threat to our freedoms than hundreds of years of historical crime and prejudice which have benefited them without quibble, complaint or rectification, is questionable to say the least. This theory lacks historical perspective and basic common sense as well as any quantitative proof to support their conclusions.
Equality under the law is a very good thing and no one would have any problem with adhering to it if there was any real evidence that it had been achieved. Nevertheless, in the Ricci case, the Court chose to make a rough guesstimate with the law of the land, overturning existing, long standing, well thought through, weighty and momentous precedents and procedures with an off-handed, bias-ridden ideological screed in legal clothing with no corroborating information or evidence whatsoever to back up their true unwritten intention - that of affirming that affirmative action is no longer needed and if it had ever been needed it should still have never been written into law.
II
Unfortunately the case they chose as the vehicle to drive their argument was very poorly chosen. The Ricci case was not a "reverse discrimination" case in any normal understanding of the term because the majority takers of the test suffered no harm and the minority takers of this test received absolutely no benefit from the actions of the city of New Haven. On the face of it, abrogating this test because of its own perceived biases was a perfectly neutral act.
Remember this is a case of affirmative action in only the most tangential way. Affirmative action only comes into play as a possible lawsuit, not an actual one. The city thought they might be out of compliance with Article VII, but no authority ever confirmed they were. They thought they could be liable to suit but were never sued on grounds of affirmative action. The city's decision was an action in anticipation of running afoul of affirmative action laws, not an actual instance of being penalized under affirmative action laws. Nor was this a quota system in any respect. Nor has there ever been, now or projected into the future, a test designed by the city to favor blacks or minorities. This is all about a test whose results, according to those who have reviewed it, were actually biased against minorities. How throwing it out disadvantages whites is a mystery unless you think that whites deserve and need a head start to succeed at tests.
Nor did this decision to scrap the test results unfairly advantage minorities. After all, to keep a prejudice from being enforced is not the same thing as reverse prejudice. Taking away an unfair advantage against you is not the same as providing an unfair advantage to you. In the same way that if the police keep someone from stealing $100 dollars from you it is not the same as being given $100 dollars free by the police. You cannot count as an especial benefit having something returned to you which was yours by right from the start. Equality is a right not a gift and certainly could not possibly represent an injustice to another merely because it is afforded to you. Therefore no advantage has been given to the minority takers of the test except to have a potential injustice being done to them undone.
Similarly, no disadvantage comes to the successful takers of the test by removing an edge they were unfairly given. No one has ever said they are suddenly ineligible for the promotions they seek, only that they may later have to recertify their worthiness by taking a exam which is a fairer test of their skills and knowledge. This can hardly be called prejudicial. By definition, leveling a playing field does not mean imbalancing it in the other direction. A fair test, by design, benefits or disadvantages no one. Making certain the playing field is perfectly level, which was all New Haven is accused of doing, if properly done cannot possibly be the same as reverse discrimination.
As for Mr. Ricci, he was inconvenienced to be sure, but he has not been disadvantaged. To simply right a perceived wrong by vitiating the results of a test judged to be flawed cannot properly be thought of as a wrong done to Mr. Ricci any more than it may be considered a singular advantage to those discriminated against to simply remove the grounds of the alleged discrimination. Even though he did not cause the discrimination he cannot properly profit from it without becoming, like a receiver of stolen goods, a party after the fact to the discriminatory process.
On the contrary, it is a peculiar notion to suggest that the decision to throw out a test which was deemed to have been ineffective and unfair, for whatever reason, to a sizable number of the people who took it could be called discriminatory to anyone. Only letting the test results stand when a large number of people who have studied it have deemed it unfair, constitutes discrimination. In this case, self-evidently, if the test bore undue biases it would become useless to is own purpose, namely finding the best candidates for promotion for the fire department of New Haven.
Remarkably then the Supreme Court didn't just strike a blow against affirmative action and a blow in favor of active, discernible discrimination but also a blow in favor of bad testing. Or at the least in favor of tests that didn't work in the way they were supposed to, to identify the best candidates for promotion in the New Haven fire department. The Supreme Court decided that New Haven didn't have the right or wisdom to control its own promotions.
By implication they also came out staunchly in favor of racial prejudice by saying that wherever it exists or is suspected of existing, it must be allowed to remain so as not to discommode the ones profiting from it. So where New Haven was trying to do the right things, often difficult and rare in our society today, the Court intervened to banish their good faith attempt to oblivion.
III
Although according to the experts the test was not irrefutably biased, there were considerable anomalies to it and enough consensual grounds to find that it was. Even if you didn't happen to believe this or believed that another test would reveal essentially the same results, it is not a bad thing for a city government, in an excess of caution or abundance of managerial zeal, to cast around for a better test to give its firefighters. It is very difficult to find anything wrong with this impulse.
Yet the Court seems as certain that the first test must be good as they are sure that any other method of choosing candidates for promotion the city may decide to employ will be prejudiced. They cannot make this assumption. This seems not to be a prescience the Court could possess, self-deifed though some may believe themselves to be. There is no evidence that they spent any real time trying to discern the relative quality of the test in question. Though there were mixed evaluations by the experts consulted by the city, no one mentioned by the Court ever said that the test already administered was ideal. All found room for significant improvement. It was on this basis that the city fathers of New Haven were operating with an eye to reform. The Court discounted all of this.
But if you cast an eye at the test you find that the anomalous results were only telltale symptoms of a larger disease.
To begin with, according to the author of the test, he stated that it was through interviews, consultations and conversations with the New Haven firefighters to determine their procedures and areas of concern that greatly informed the structure of the test. However, because the department is largely white these questions would necessarily disproportionately embody the concerns, biases and interests and reflect the make-up of the department as it presently exists and replicate these in its emphasis. This is not so much a bias on its face, but information which raises red flags in the background which speaks to a certain potentiality of thoughtless institutional bias behind the scenes.
In addition, as Justice Ginsberg points out in her dissent , not everyone had equal and timely access to the materials needed to sturdy properly and fully prepare for the exam. Some of these materials needed for study were expensive, at an average of $500 per firefighter that had to be spent in preparation for the test. Mr. Ricci's own estimate, designed to elicit sympathy but actually proving unfair access and unequal advantage, was that he invested "1,000 in preparation for the exam. Whites, as the long dominant group in the department would naturally have more collateral support, better contacts and more role models of success to emulate in a testing environment that was not perfectly sterilized from outside influence and internal advantages.
These issues were only given glancing notice by the Court but taken together are severely exclusionary. Money as a means to advancement is the structural equivalent of a poll tax levied on promotions. Not everyone has that sort of money to spend on a speculation, particularly if you have any sense that the playing field may not be absolutely fair. Taken together, poor expectation and significant cost seem almost perfectly designed to serve as a self limiting deterrent to wide and whole hearted participation by those who have historically been passed over for similar promotions in the past. On its face, to have money and connections as a constituent part of the equation necessary for promotion in the New Haven Fire Department thoroughly corrupts the entire process. And that is prior to even taking the test itself. There has to be a better, fairer process available to New Haven than this to determine those best fit for promotion in their fire department.
Yet the Court dismisses out of hand the idea that New Haven had a legitimate cause to have a concern of legal vulnerability. This is very questionable determination.
But on a deeper level it really doesn't matter if the test was unfair or not - and apparently the Court has no idea one way or the other. Because sometimes equality, like quality itself and like democracy always, is an inconvenient, messy and tumultuous thing. It's the long way around to arrive at the right place, which could have never been reached from any other direction. This is what affirmative action is. Make no mistake about it, the conservatives on the Court were not striking a blow for individual freedom, Mr. Ricci's or anyone else's. They didn't really say that the test given the New Haven was fair and good. They merely said, "So what? Who cares? So what if it was patently unfair? So what if it was? The Court said that the fairness of the test should not even be assessed.
Prejudice is a convenient, easy path, the shortest distance between two obvious points in history and time. Why bother with equality and fairness when they are so difficult to determine and hard to achieve? Why bother with a messy pursuit of excellence when mediocrity will do and is so excruciatingly painless and readily available to all? Why try for the best test, when we can settle for prejudice and for a test that will ensure the leadership of the department keeps the same ethnic makeup it has always had even as the rest of the world changes around it?
In fact, if the first test proved to be fair then the same individuals who excelled at it would also undoubtedly excel at a second exam to come. If the first test was flawed, and a second test proved it by elevating some applicants and lowering the scores of others, while it is true that some applicants may lost ground, the city and citizens of New Haven would gain and be far better off by ensuring that only the most meritorious firefighters would be promoted. That after all is precisely the reason for giving the test in the first place.
Naturally, it's also possible that the second method of awarding promotions would be even more flawed that the first in finding the best possible candidates for promotion. But there is no reason to think that this would be the case. The entire process has been open and well watched and easily observed by community watchdogs. With the lone exception of Justice Samuel Alito ( whose concurring opinion we will discuss later) no one has suggested any bad faith or nefarious intentions by anyone involved.
Other than this, It is hard to understand why the Court thought it necessary to intervene in an entirely local issue half way through its process in order to try to dictate winners and losers before the process was completely finished and any actual wrong doing was actually identified. The time to protest would have been once some tangible harm fell upon Mr. Ricci. If others less qualified in his place were promoted over him, for instance, or a second test was administered which turned out to be as biased as the first test in the other direction this would be the time for the Courts to get involved.
But to do what the Court has done in Ricci is like the governing authority of a basketball league stepping in to confiscate the game ball early in the second overtime because it just didn't like the trend the game was taking for its preferred team. Or stopping an electoral recount before it could be concluded because it was afraid its favored candidate might lose if all the votes were actually to be counted fairly.
The Ricci decision might come be known for the establishment of a new legal doctrine, "preemptive alleviation of an injustice yet to occur." Or so that some peoples' justice may not be temporarily delayed others' must be permanently denied. This is irrational and the total lack of proportionality of concern in elevating the white firefighters temporary distress and discomfort over the total lack of regard for the possibility of the minority firefighters potentially erroneous permanent disqualification from advancement - takes one's breath away. Justice delayed is not as bad as justice forever denied. The court is saying that to delay justice in the case of the promotion to Mr. Ricci is worse than justice forever denied via a prejudicially designed exam to the minorities in this case. This represents a Court sanctioned structural and ethical imbalance of major proportions.
The facts of this case, in fact, show no wrong doing anywhere. The test, though perhaps flawed, was not intended to be. The abrogation of its results in order to design a better exam materially disadvantaged no one. The existing status of the firefighters remained in place. No one was demoted, no one was replaced. No one has been unilaterally denied appointment or appointed to anything.
In the New Haven case there is very little tangible evidence anywhere to show that anyone was doing anything other than searching for the best legal option to find the best possible test to determine the best possible people for promotion to leadership positions in their fire department. All we have there was a slight bureaucratic delay common to any public process. Yet not only was a federal case made of it, but Justice Alito in his opinion thought he saw highly sinister goings on.
As if aware that the Court's desire to intervene in this case of good intentions all around was too thin a reed to land such a freighted albatross of heavy legal intention on, he tried to show bias by the mayor and one of the mayor's friends and associates, a "community activist" by the name of Rev. Boise Kimber.
Justice Alito alleged that these two had a prior opinion that the test was biased. He implies that this opinion not only informed their judgment, but that this opinion skewed the entire process and unduly influenced the board that actually made the decision to vacate the test results. This even though he knew of nor made any attempt to show that any untoward influenced was directed by these two men on the decision the independent Civil Service Board eventually made.
But since they neither instigated the questions about the test nor made the final decision regarding whether its results should be kept, it is hard to see from the available where their influence would have been either decisive or untoward. Justice Alito would seem to have it that having an opinion and vigorously expressing it publicly is prima facie evidence of wrong doing. (He also seems to find great fault with anyone who happens to be a community activist too, but that's a slightly different issue). Yet most people consider having such opinions necessary to the making up of one's mind, even while the facts are still being presented, understanding that opinions may change with changing information. An opinion, in fact, is not illegal to possess and is, in the common parlance, a thing "everyone is entitled to have one of".
If to have an opinion, even one that is politically motivated as Justice Alito infers, was tantamount to wrongdoing or de facto evidence of applying undo influence, then the fact that Justices Thomas and Scalia have well known opinions against any form of affirmative action whatsoever, would mean that Justice Alito would necessarily be unable to render fair judgment in an affirmative action case without being fatally influenced by them. Perhaps in Don Rumsfeld's ominous and eerie phrase, Justice Alito "knows more than he knows he knows" about such matters.
In any case it seems rather bad form to scurrilously accuse someone of racism in order to use them as scapegoats in a case which is being consciously used to limit our ability to fight racism.
IV
So why in the world did the Supreme Court take this case anyway? It's hard to imagine a more legally undistinguished, maladroit, almost incoherent decision than this. After all, this is an instance of extraordinary judicial activism undertaken in the name of the theory of judicial restraint. It's a case which allows a racial injustice to stand while wrapping itself in the guise of rectifying a myth of racial injustice (reverse discrimination) which is not even remotely applicable in the case they are employing to do it. All the while they are using the Ricci case as a showhorse instance of the evils of affirmative action when it is hardly an affirmative action case at all and displays none of the evils alleged. They seemed to want to do something with a case that fundamentally couldn't bear the weight of their intentions, like carting a twenty story building with a hand truck.
Perhaps, the conservatives on the Court, finding themselves increasingly marginalized politically, feel themselves more free jurisprudentially to take on controversial cases. What they fail to realize is that if the nation is moving past them politically it is also moving beyond them legally. A case like this seems almost quaint, less pivotal than passe', and in this particular case, just a little bit pathetic. It is apparently the product of a long nursed, festering resentment about progress toward racial equality. They are only emboldened to act forthrightly against it now because of its unnecessary nature, the country has moved on without them. They are trying to latch the gate of the corral long after all the appaloosas have escaped.
Their ruling is not the vigorous one in support of individual freedom and just reward for hard work that it is portrayed. Rather it is visceral, weak ruling that reeks of pique, reaction, resentment and retrenchment; a last gasp effort of a failed thesis of superiority to reinvent and relabel itself as progressive and independent. Yet it is so obviously a ruling of residual preferment for a fading white majority ruling class, class preferment and elitism and prejudice that it's more the echo of a cry from a doomed, backward leaning and intellectually vacuous world we have already left behind.
Surely they took this case too partially for political reasons. This case was less about its merits than its atmospherics. Its proponents have tried to paint it as reverse discrimination while it was obviously just discrimination of the old fashioned variety where majority preferments attempt to lord it over minority pretensions. The facts of the case then were not a indictment of affirmative action but a textbook case for the need and value of an affirmative action law. The city of New Haven tried to correct its bad test on its own without even waiting to be called to account. Self correction is the essence of preventive, educative law as the basis for a civil society. This is the triumph of affirmative action and the petty rantings and rulings of a few jaded conservatives on the bench cannot reverse it. They would have been better served by using New Haven's voluntary obeisance to the spirit of affirmative action as proof that a legal remedy was no longer needed than they were trying to prove that Mr. Ricci was a victim of reverse discrimination.
Or perhaps this case may have been chosen as a boost for conservative policies in general and against Judge Sotomayor in particular. This case was perfectly timed and designed to give conservatives in the Congress and on the talk shows ammunition in the upcoming confirmation hearing over Sotomayor. It is incredible that such a thing can even be credibly alleged, but the history of this particular Court makes it invariable that it should be. They have played politics with the law before. The weakness of their arguments in this particular case, in addition to the lack of necessity of taking on such a weak case in the first place, leave one with few good other guesses as to why the conservative justices on the Supreme Court made such a feeble hash of it.
Finally, and just for the record, Judge, now Justice, Sotomayor's ruling in the Ricci case, perfunctory though it may have been and whatever your thoughts on affirmative action may be, was perfectly correct.
Tom Brokaw wrote a book called "The Greatest Generation" about our parents and grandparents who fought World War II. How quickly we have fallen.
When Washington was nearly captured or assassinated in the plot which involved Benedict Arnold, though Arnold got away they captured his handler, a British officer with incriminating documents. Washington, after much deliberation and soul searching, with no pleasure or gloating self satisfaction, had him executed as a spy. How much thought do you think he gave to torturing the man first? After all his life was personally threatened, his livelihood and way of life was imperiled. As Franklin famously noted, "either we hang together or we will hang separately". No one had any doubt as to how critical the situation was, yet Washington didn't consider torture as an option. Why? Because he had integrity, he was civilized, he knew better. That's why Washington is the founder of a country that didn't exist before he did. He had character. When Lincoln was Commander in Chief during the Civil War his life was threatened many times. Robert E. Lee fought most of the first half of the war in the north, just a few days march from Washington. Lincoln certainly had ample incentive, if he were that kind of man, to torture rebel prisoners (or high value detainees) to discover Lee's troop movements and plans. After all, Lincoln's life was in jeopardy, the country was in danger and our very way of life was under assault. Yet there is no evidence anywhere that such a thing was ever even remotely considered - even by the troops of either side in the field - in that most visceral and passionate of wars. Why? Because Lincoln wasn't that kind of man and is now widely considered today to be our greatest president. After Pearl Harbor was attacked and Japan was running riot in the Far East, Hitler declared war on the United States too. This meant that the two most powerful military establishments, east and west, were arrayed against us. In both theaters of war, Japanese atrocities in China and German genocide against the Jews provided abundant evidence in the darkest days of the war that these nations were not playing by our rules. They wanted to kill us, enslave us, our entire way of life was in peril and under grievous assault by forces of evil and darkness. Yet there was still no torture contemplated. Roosevelt wasn't boastful or apoplectic but reassuringly calm and quietly determined. Our military prisons were humane and the rules of warfare were scrupulously adhered to whenever possible. Roosevelt is also considered to be one of our greatest presidents. If this is what the greatest American presidents did at the greatest crises in our history, why were Bush-Cheney so quick to do exactly the opposite? 9-11 wasn't a situation like that which faced Washington, who against great odds was trying to overthrow control of the world's greatest military power of his day. No, just the opposite. Bush was president of the largest and most powerful and prosperous nation on earth with military firepower greater than the rest of the world combined. To be sure, the attack against us was grievous, not strategically perhaps but in shock value it was every bit another Pearl Harbor. But the ability of the attackers to follow it up with anything as great or greater than the original attack, certainly on any kind of level which approached World War II, was nonexistent. Any ability to follow it up with more attacks at all was severely limited and even, with due diligence on our part, doubtful. Why then with a proportionally much smaller threat against our infinitely greater resources and resiliency did our leaders behave with so much less self control, integrity and courage? Of what exactly were they so petrified? To be sure those who build something have a different sort of mindset and make up than those merely called upon to maintain something that has already been built. Maintence men are of a different caliber than architects and visionaries and great leaders. Still the vast retreat from the principles we have always held dear and scrupulously adhered to in this country in the Bush administration was stark and even astonishing. The one thing they have used as an excuse, as reverse justification for the torture they engaged in, has been an imminent threat scenario of massive destruction. In an improbable "what if" situation they ask, "wouldn't you want to know if we were about to be attacked by a nuclear weapon? Shouldn't we torture then?" But this is an entirely false premise designed to deceive, a non sequitor to this particular situation because nuclear weapons were the one thing we knew our enemies didn't possess at the time and they tortured anyway. In moments of rare lucidity the Bush people seem to have been aware of the implausibility of another attack against us equal to the first. When they weren't busy trying to frighten the American people (something else unprecedented for an American leader to engage in in time of war) for extraneous political reasons they spoke candidly that the threat against us was really more abstract and theoretical than real. Cheney called it "existential". Yet Cheney was so afraid of this existentialism (and apparently any other branch of philosophy or deep thinking) that he apparently spent way more time than was synonymous with bravery hiding in bunker in an undisclosed location. Be that as it may, and all their ulterior political motivations aside, we are still left with the question. Why were they so weak, timid and afraid? Even in the only comparable situation in our recent history, the red scare of the fifties and the farcical, anti-democratic McCarthy hearings which resulted, no one claimed that all the normal rules of human decency were expendable because a few of us were afraid. But supporters of this unjustifiable cause feel that if they can lure you into conditional agreement of an extreme, hypothetical case, that torture might potentially be justified, they then jump to the distant conclusion that in every case, due the discretion of the torturers, torture should be allowed. If torture is acceptable in any scenario then it must be permissible in every scenario. Bizarre as this rationale is, it is what is being claimed today by the apologists and supporters of a torture policy which cannot be proved to have provided us with any actionable intelligence, particularly not of the "smoking gun" variety which has been used as its only legitimate justification. Conversely, torture has indisputably proven very harmful both to our efforts in the court of world opinion and to ensure the safety of our troops of the ground. All because of these policies which only resulted in very nebulous background information which might as well have been obtained by other means. The rest of the information received from torture was purely erroneous which led to false leads and unjustified fears which only hindered our ability to respond to real threats and were undoubtedly counterproductive to our ability to understand the capability of the enemy. In this case it is impossible to see that the benefits of torture outweighed the risks even in the best case scenarios put forward as justification. One of the "triumphs" in torture they do claim was apparently waterboarded eighty four times in the course of one month "after" he had allegedly given us the valuable information he possessed. This disproves the value of their argument cross the board. If they had gotten the information they claimed they got from him why was it necessary to continue to torture him? Either they didn't get the information they claimed or they were torturing just to be torturing. And then why did the CIA feel it necessary to destroy hours of video of these same sessions apologists now are claiming were so valuable and necessary and humane? Innocent people don't destroy tapes they preserve them. In fact one problem with suspending normal rules of ethical behavior is that no other ethical paradigm is ever erected to replace them. Therefore the slippery slope of possibility soon runs straight to the gutter at the bottom of the hill. This is exactly the case with the two instances of torture with which we are most familiar, Abu Gehraib and Guantanamo. Excesses were rampant in both places. Torture and cruelty became ends in themselves and quickly turned into sheer depravity. So why was our government so weak kneed? When you look at the privileged existence of Gorge Bush, never seasoned, steeled or hardened by difficulty, and the intellectual shallowness of the people in his administration you begin to approach the heart of the problem. This generation of Americans in leadership positions are soft and softness and flaccidity lead to moral decay. There was never a difficult challenge facing them which their daddies or sugar daddies or high powered connections couldn't buy them out of. They cut life's corners everywhere. The crisis on Wall Street stems from the same root cause. The money men didn't build the nation's financial power, they only inherited it and capitalized on it, living off their father's or your father's or your wealth. They don't earn money or make things, they merely play with other peoples' hard earned capital. This sense of separation from those who build things to those who only use them leads to a superficial understanding and analysis of how things actually work and how things get done. It leads to a reliance more on ideology than ethics and hard work. In government it leads to Rovian gamesmanship rather than competent government. The Bush administration along with all its mindless and corrupt supporters was small mindedness in action. In an instance like this, often people who are far removed from a fight are more nervous and fearful about its outcome than those actually engaged in the fighting. The policy makers in the Bush administration had nothing in common with the people who built this country, they are its inheritors, they mistrust our strength and the resiliency of the American people. As they have never built anything of value themselves they cannot recognize the telltale signs of the strength of a structure that others have built. Since they lack the integrity, strength of purpose and sheer fortitude that it took to create this country they are weak in the management of it and nervous as to whether it may withstand periods of great pressure. That's why they are so afraid. Such people who possess small minds cannot fathom large principles. They cannot see ahead with confidence because they cannot discern the trajectories of the past. Wracked with paranoia they overreact disproportionately to small provocation while myopically missing large warnings signs which go unheeded. They do not trust the greater instincts of others or of history because of their lack of imagination and courage and personal will power. They have so little in common with the people who have made this country great that they do not even know where to begin to try to emulate them and so in the end do not even try. Bush and Cheney inherited a system of government whose traditions they neither completely trusted nor ever fully understood. It was way too big for their limited imaginations to absorb. Washington, Lincoln and Roosevelt knew the country was great and could feel in their souls that we would prevail against all odds and could afford to adhere to principles without which they knew we could not ultimately succeed. This generation as represented by George Bush and Dick Cheney are hard of heart, flaccid of mind and weak of spirit. They are soft and gutless. They don't have the integrity to adhere to principle and do the hard things necessary to be great. They are short cut artists. They are a danger to us. They are unworthy of our past. They are enemies of our future and they are foreign what has made us great. They engaged in torture not because it worked or because it was necessary. they engaged in torture not because they are tough or strong as they would have us believe, but because they are weak and afraid of things they don't understand. And they understand very little. Heroes don't torture, tyrants do. So what do we do about the Bush torture policies? Imagine if you loan a car to someone who abuses it and then returns it to you impaired just as you are going to have to use it to make a long trip. Would you refuse to get it fixed because you weren't responsible for creating the problems? Obama has inherited Bush's clunkers, his lemons and his wrecks. While it's easy to sympathize with their desire to put Bush behind them, in their rear view mirror so to speak, there are repairs which have to be made first or they will never be able to get very far down the road before the car falls apart. So of course there has to be what they are calling a truth commission or something very much like the 9-11 commission. Not out of vindictiveness but out of honest discipline. We must go on record officially and institutionally and irrefutably against such behavior or undoubtedly its proponents will do it to us again next time they have a chance. Do you believe for a second that a guy like Cheney wouldn't? Rhetoric alone does not wash the stain away. We owe it to our past and to posterity to put ourselves right with our own past to ensure that these things never happen again in our future.
Imagine Barack Obama not on a basketball court but in a corrida on a Sunday afternoon in matador tights taking his formalized bow to the crowd. More on this later but first, I admit - I have attended only one legitimate bull fight in my life, in Madrid. A friend and I went out for the afternoon. There was one matador, obviously an old hand, well known to the crowd but probably not of the uppermost rank anymore. He gave a good performance, workmanlike and precise. The crowd was appreciative if not ecstatic. Actually it was rather dull how easily the magnificent bull was dispatched, a bit sad or bittersweet. Then out came the young stud, the up and comer, the new bullfighter on the block, all flare and élan. Unfortunately the bull wouldn’t cooperate. After a few passes, the bull stopped charging and became pensive - not a good thing at a bullfight. The brave bullfighter, the toreador, magnificently arrayed in black sequined outfit tight to the form, couldn’t entice the bull forward. No matter what he did, and he waved the red cape every which way, the lonely bull only snorted and paced and eyed him with suspicion. The toreador moved closer and closer to el toro, - no doubt calling the giant beast a lot of choice, dirty Spanish names under his breath. Nothing. The bull actually backed up a step or two as the matador drew closer. The crowd was getting very, very restless now. At last the exasperated matador, knowing his moment on the big stage was slipping into farce, threw up his hands in exaggerated theatricality to let the crowd know that, in his opinion, the bull was more to blame for this unfortunate inactivity than him. Then, to at least prove his courage, he actually turned his back to the bull and fell to his knees and bent over backwards until the back of his head was nearly touching the ground. There he looked up imploring at the curious, wary bull from just several feet in front of him. Apparently the bull bore no malice or ill will to the matador, however, and didn’t try to take advantage of his vulnerable position by charging. Reckless and brave as this act was the crowd hated the bullfighter for it. They were booing now. Bullfighting isn’t about bravery, that is a given, anybody who’d climb into a ring unarmed with a massive angry animal that has big horns had to be brave – if not insane. No, bullfighting , the art of the matador, was about skill, bravery is just the price of admission. The name of this matador was Gallo de Moron. I only remember it because it is so memorable. I don’t know what happened to his bullfighting career. It may have gone well, recovered, and become spectacular, or perhaps it didn’t and died right there that afternoon. In a bar not far from the corrida afterward where my friend and I repaired for a few beers, Gallo de Moron’s name was already infamous from the live radio broadcast of the fight. You could hear it spoken with derision to the accompaniment of laughter.
As far as politics go, Obama is a pretty good matador so far. To be sure, his enemies make it easy by their twitching overreaction to every move he makes. They see red flags everywhere, even where none could conceivably exist and charge wildly and in out of control fashion at any provocation, even when they were not provoked. The republican right persists in this because they have built their careers and in some cases their lives around a number of discredited notions which they will not, or cannot, let go of. Every time Obama or anyone connected even obliquely to Obama, makes a move, particularly when it is done expertly or with grace, especially when it is done either matter of factly or cheerfully as if to taunt them in their misery, these permanent malcontents go berserk with rage. They see red again, snort, kick their hooves back in the dust and then make yet another bull’s rush forward, all out, wild, with abandon and total disregard for what will happened next. They have not yet even quite reached the point of caution and circumspection. Their supporters who egg them on can only watch in frustration as their political leaders race to the blur of red cape before their eyes pulling away again, as the swirl of dust clouds their senses and chokes their flaring nostrils; they thunder by into thin air as Obama, unharmed, gracefully pivots away to graciously acknowledge the roar of the crowd. True it’s been rather fun to watch and also rather sad, too, but it is also dangerous as well, for that is the thrill of the bullfight. The republicans know, like that bull, that they need only gore the peerless matador once to score a telling, perhaps even a fatal blow. On the other hand with each pass of futility, the bull tires a little bit more and the likelihood of their landing such a blow diminishes. And so far the Obama team has not even bothered much to fight back. Once they do, bringing out the political picadors with their lazar sharp swords to surgically pierce the bull in the back between the shoulder blades, the bull will slow further, hastening his demise. The lone exception to this was when they took on Rush Limbaugh who infamous claimed hope that Obama would fail. Commentators thought this was a mistake and distraction by Obama’s team but it wasn’t. It was quite effective. Limbaugh’s influence is more myth than reality and to lance his boil diminished him in stature considerably. Side by side with Obama he seems quite a small man. Then to watch Limbaugh's critics in the republican party have to bow and show fealty to him, one by one, has diminished them as well. When an unredeemable opponent crawls too far out on alimb it is mandatory to occasionally cut one off and watch them fall. To be afraid or too nice or too squeamish or too bipartisan to fight back is to embolden your enemies further. There must be costs exacted for each random attack or they will not only increase but eventually become concerted. This is the difficulty Clinton had. The weak kneed democratic support he had never exacted a toll for all the absurd vitriol and wild charges that filled those times and Clinton alone could never slow the continuous onslaught the republican right orchestrated against him. Until finally a weak charge hit home. Clinton survived, of course, and outlasted his enemies but the bloody messiness of the affair and the sheer measiliness of the whole impeachment process left the crowd queasy and unsettled and arguably worked against the democrats in the next election. Even though, it should be pointed out, more broadly it only hurried the republican party’s long slow slide from the pinnacles of power to the ignominy they now enjoy. Because, like the matador and Gallo de Moron, politicians must also play to the crowd. Once you lose them you never get them back. The toreador must never let them see him sweat – that’s half the battle. Reagan, for instance, eviscerated the democratic opposition with his first reconciliation budget and was never touched, though his poll numbers rose and fell, by the democratic opposition afterwards. Bush, with his very low margins for error, not being the best of matadors, was always a showboat, taunting his enemies with his limited skills until, after a – for him - promising start, he went the way of Gallo de Moron. Politics, not unlike the toreador, has its own version of death in the afternoon.
2 Bulls Rush in (where wise men fear to tread)
This is all to be expected. There was a great deal of talk at the advent of the Obama era about bipartisanship and a “team of rivals” based on the title of the Doris Kerns Goodwin book about Lincoln, but this is a false comparison. Lincoln did not invite politicians into his cabinet from across the entirety of the political spectrum but only from across half the political spectrum. There is a big difference there. There were no internal philosophical rivals within his cabinet only rivalries of personal ambition. The real rivalry in Lincoln’s time was the Civil War which washed out all other distinctions. Lincoln didn’t unite the country through the comity of his cabinet but he unified it though division by decisively defeating his opponents on the field of battle. He was a president who was not afraid of a fight when it came to the big issues which faced the country and was only mild and compliant over small matters. After the war he showed every sign of being generous in victory but while it was going on he was not. He only became broadminded after his real rivals, those who believed in slavery and secession, had been soundly beaten into submission. For Obama supporters to suggest he can get a tent big enough to invite all the republicans has always been a fallacy. He has to understand that the right, like their symbolic elephant, never forgive or ever forget. They will hate him with a passion tell the end of time just like they have always hated the last great president who didn’t do what they wanted him to do – FDR. Soft, consensus politics are great if you can get them, generosity and compromise and bipartisanship are wonderful when they occur. And it is wise that Obama always is careful to leave that door ajar to the opportunity of bipartisanship because this is always the easiest and best way forward. And very few politicians are even capable of seeing both sides of an issue much less possess the skill and capacity to gather consensus around centrist positions. That is actually the true compliment that people have bestowed on Obama when they say he reminds them of Lincoln, because objectivity and temperance were Lincoln’s greatest qualities. And it is rare indeed. But the battles upcoming, and the republicans have recognized and accepted this sooner than the democrats, are going to be won or lost through old fashioned hard ball politics. They will be cutthroat and mean spirited just as they have always been and will entail character assassination, political arm twisting, bribery, quid pro quos and deceit galore and all nuance will be swept under the rug of generality and over simplification. We have already seen the republican positions and heard the rhetorical excesses on the internet, cable and radio hardening and intensifying to a nearly absurd level of opposition and we are only several months into the Obama administration. Contrary to expectation then, counterintuitively, the softer the politics Obama plays the louder the screams of the extremists on the other side will become. Soft policy and kind words are fighting words to an extremist. They are an affront and a sign of weakness, as to them compromise is the silent sound of losing. Therefore, it is wise for Obama to present a soft face to such harsh rhetorical and partisan excess. Much like a matador can coax a bull to charge with just a slight flick of his wrist and then lets the bull wear itself out with one bull rush after another into thin air, while he, the matador, red cape tucked gracefully aside, pirouettes out of the way time after time, Obama can work their extremism to his advantage. The bulls and bullies on the republican right, always seeing red, states and otherwise, become even more outraged and out of control with each futile lunge after the twirl of Obama’s cape. This irrational behavior actually makes Obama’s politicies easier to enact. He needs these extreme components the way the toreador needs the bull to enhance and improve his own stature by comparison. Each failed bull rush often, ironically, consisting of a lot of bull, creates its own vacuum which allows apce for more progressive ideas to quickly fill up. Arguably, if the republicans weren’t always on the attack and always predictably obstructionistic, they would have to be created. That is in fact what the republicans have often done to democrats, manufacturing enemies of religion and of the state to oppose. To coax, beguile and entice the bulls in the republican party to attack has been rather easy so far. They have shown no reticence to attack whatsoever, even when they have had no plan of attack and even when they have had to manufacture their own provocations and slights to justify their outrage. To now Obama has shown all the signs of being a superior political bullfighter (in every sense of the term). By first, being soft enough to let your opponents make all the mistakes and then using the weight of their own exaggerated force against them; second, being strong enough to make them pay for particularly egregious remarks and third, to know the difference.
3 The Twenty Egg Omelet
But why is the right being so bullheaded? There is arrogance, corruption and total lack of perspective to be sure. But the simplest answer is: it's because it’s who they are. There is a story from the French Revolution which might help to illustrate. It concerns a member of the nobility at the outset of the worst days of the violence against his kind in Paris who actually played it pretty smart. He laid low for several days and then, dressed in a simple laborers’s clothing, on foot and alone and carrying nothing with him, walked from Paris unobtrusively, no doubt occasionally yelling forth shouts of solidarity with the sans-culottes he passed in the streets. And it worked. He couldn’t believe his good fortune and congratulated himself on his shrewdness to have outwitted the human rabble in the streets whom he no doubt thoroughly despised. After having safely removed himself miles from the worst of what was going on in Paris, he became tired and hungry. Feeling secure at being out of harm’s way, he stopped in at an inn to eat. He ordered an omelet. And just as would happen today the proprietor asked him how many eggs he wanted in it? The nobleman was aghast, he had no idea. He’d never cooked anything in his life. As beads of sweat began to appear on his brow he finally had to venture a reply or look even more suspicious than he already did, “oh, uh, er, uh, twenty?” he guessed. For that tiny little slip and greed for a twenty egg omelet he undoubtedly lost his head. The moral of this story is: the true nature of a man extends beyond the clothes on his back. Similarly, it’s hard not to sympathize with all the wizards of industry and titans of the financial community we’ve seen of late trying to pass for normal and pretend to empathize with the little people of the world as they say how much they feel our society’s pain at the wreckage their own arrogance and corruption has caused us. This includes the heads of automobile companies flying high priced company jets to DC to beg handouts, to the executive pay packages to the worst operaters at AIG, to all the shills and cheats who have been paraded before all the congressional inquiries trying to appear as human as you or me. to a causual observer they are just smug, confused little nonentities desperate not to have to cede their divine right to twenty egg omelets while those around them starve. And the worst of the republicans are the same. They obliviously spent the last election and since, even as their poll numbers continue to drop, refusing to grasp the fact that their old dogs won’t hunt in this world of newer, faster rabbits. People have long since tired of their cheap tirades of family values, and fiscal responsibility and sound, small effective government – after they have been in charge for years and have very nearly delivered us the opposite. And still they continue with the same bland litanies primarily designed to protect the same pockets of bloated excess their policies created in the first place. They have even lately tried to convince America that there is a great populist revolt afoot determined to fight against tax increases for billionaires. Is it any wonder that now, like the pacing bull in the ring, after his first few hard charges against this deceptively sly moving red cape target have only left him looking foolish, the republican right is confused. But can they learn? Watch them now, how they grunt and snort, throw their heads back, push their feet back violently against the sand and look even more determined this time to rush even harder, even more wildly, even fiercer and with even less of a clue than before. Because the old red flag is waving away at them so temptingly, so enticing, to their minds it is almost begging to get gored, and look ther it is again, right there in front of them, for god's sake, taunting them to charge. So who doubts it? Who doubts the next bull’s rush is coming? The republicans will oppose everything always forever, It’s who they are. And that’s why the Obama administration is going to be successful – even sometimes in spite of his own instincts for moderation - because extremists on the right keep forcing it leftward by refusing to make even obvious commonsense compromises on issues which Obama might have otherwise have been inclined to make. The radical right consider this purity and regard their wild bullrushes as noble, but they aren’t. They are just dumb and subjective and always seeking to subvert the essence of mutual respect that democracy is built on in favor of an illusory absolutism they can never enjoy. More power to them.
Super Duper Top Secret Justice Department Meeting Of the Top Legal Minds in the Country (or at least in the Bush Administration)
Bybee - OK guys said Bybee to Bradford and Yoo. We have a directive here at Justice to give our best opinion as to how to approve whatever we’re told to do. OK? Bradford - Says who? Bybee - Dick’s office. Yoo – I approve. Bradford – Me too. Bybee – OK, all agreed? Agreed, said Bradford, Bybee and Yoo.
Bradford – OK now maybe we’ll read it and see what it actually tells us to approve of. OK, we are supposed to approve of torture. Yoo – I agree. Of who? Bybee – First, let’s review in case anyone asks. What does the Constitution say? Bradford – I didn’t know either but there’s a note attached that says the eighth article of the Bill of Rights, whatever that is, says “no cruel and unusual punishment.” Bybee – Oh well, that could mean almost anything. Yoo – Right. I see a huge loophole right away here. What if it’s not both? What if it’s cruel but not unusual or unusual but not cruel? It doesn’t say cruel or unusual so it must be both to be prohibited or as I see it all bets are off. Bradford – Good point, well taken there, Yoo. So what renders it not unusual? Yoo – I’d say anything that’s ever been done in the past. I know we’ve studied methods used against us in the past in the Korean War, how about those as a guideline for us to use against others? Bybee – Or methods used by Attila the Hun or Hitler? Bradford – Right, I see, how can they be unusual when they’ve once been done before? And we can think of others too, there’s ample precedent, Idi Amin, or Pol Pot or genocides in general, here, there and yonder. No, these cannot be called uncommon acts in the course of human events. OK then, what about cruel? Bybee – Too vague a concept. One man’s cruelty is another man’s fun, it depends on which end of the stick or baton you’re on that’s doing the beating. Bradford – Good. I like to kick dogs and pull the wings off butterflies myself, can that be wrong? Yoo – There’s a lot of people in this country right now I believe should be arrested on the spot, sentenced without trial, held indefinitely without right to counsel or being able to review any of the evidence against them, and then slowly drawn and quartered before they’re hanged. And yet there are some in this country who would deny me the freedom to do this. Bradford – That’s an out and out outrage. Bybee- Well what about punishment then? Yoo – There’s a serious problem with that too. After all, all torture isn’t necessarily penal, some is coercive, which is an entirely different thing. Bybee – True, we punish them until they tell us what we want to hear and then we stop. There’s certainly no punishment involved. Arguably it hurts it worse than it does them, at least that’s what my parents always said when they beat the living crap out of me. Bradford – Theoretically then we are trying to keep them from punishment of longer duration by torturing them harder so it can stop sooner. Bybee – Right. Our torturers merely seek a quicker end to torturing, and in that sense it’s a good and noble thing, I’d say. Downright humane, in fact. Bradford – OK, then clearly, this Constitution thing is way, way too vague on the matter to be of any relevance whatsoever to our discussion. Besides, clearly the action must be both cruel and unusual and punishment all three together against people we don’t approve of that the constitution comes into play at all. Yoo - I think that pretty well guarantees exactly never. Bybee- Exactly, then this Constitution thing is just an irrelevant rag to us here in this matter of torture before us? Agreed said Bradford, Bybee and Yoo
Yoo- What about the Geneva convention? Bradford – Gee, Geneva’s far. Bybee- I agree, too far out of our jurisdiction to apply. Yoo- Besides what’s convention got to do with it when the circumstances are so unconventional, after all we’ve been told to compromise our principles by Dick and George, what’s right and wrong got to do with it anyway? Bybee – Good point, Yoo. How about you Bradford? Bradford – What’s a jurisdiction? Yoo – Then it shall be here agreed that no international conventions shall apply to this highly unconventional national situation. And because the enemy combatants are being carefully sequestered overseas, our Constitution doesn’t apply because it’s international. It’s a catch – 22. Agreed? Agreed said Bradford, Bybee and Yoo.
Bradford – What about if organ failure occurs? Yoo – Get yourself a piano tuner. Bradford and Bybee- Oh Yoo, ha, ha. Bybee – That’s like a pun, right? Good one. Bradford – Oh fun. Bybee- In that humorous light, organ failure doesn’t sound so bad, since we laughed out loud about it, so I move that organ failure should be allowed because because it has the potentiality of being funny to someone and may actually serve to lighten the mood of the whole ordeal. Agreed said Bradford, Bybee and Yoo.
Bybee – OK now here’s a toughie. What if someone dies? Yoo – Ooh, ouch. Tough luck for them. Bradford – Accidentally or due to malice? Bybee – You mean malicious torture as opposed to the benevolent kind? Bradford – I mean accidentally or unaccidentally? Yoo – Ooh, nice, fine point of distinction there. Bybee – Sure I see, ipso de facto, fatso, here’s the facts, so why kill someone you are torturing when the whole point of it is to keep them just inches away from death so you can torture then some more? Yoo – Ah ha, I see. That’s irrational. So by torture has to be accidental because no good torturer who loves his work wants to see the object, er thing er- well human being, I guess, technically – he is torturing die because then his fun’ll be done. Bybee – Right, right he’ll have worked himself right out of a well paying job. Bradford – Good, great. Shrewd point. Therefore I think we can stipulate that all deaths by torture shall be by definition accidental. Yoo – Just plain bad luck. Bybee – Almost unavoidable, really like an act of God. The same God who’s on our side, I might point out. Yoo – And not on theirs we might add. Bradford – Right. OK, agreed, therefore the deaths and maiming and insanity that may result from torture must perforce, heretofore, to wit, to woo, be considered unavoidable accidents, not liable to any scrutiny or second guessing by our many enemies in this country, or and outside to. Yoo – Really, I think a simple, “oops”, or “oh, excuse me” ought to suffice in most instances of accidental death by torture. Agreed said Bradford, Bybee and Yoo.
Bybee – One caveat to the rule here that I propose is that I say we should stipulate, thatwhatever we agree to here may be immediately widened if a new torture technique should happen to arise on TV. Namely on “24”, If Jack Bauer does something I think we can all agree that it must be good and fruitful forthe country, whatever it is. Yoo- Ooh, yeah, cool. I love that show. It’s on Fox too. The torture channel, as if just listening wasn’t torture enough. Bradford - What’s Rush say? Bybee – Actually I think we are out ahead of him on this. But I’m sure he’ll approve. As any self-indulgent, blowhard, self-centered anti-constitutional freak would. Agreed? Agreed said, Bradford, Bybee and Yoo.
Yoo – Just for the sake of argument then, try this one for size. Let’s say that someone while being tortured is not electrocuted, but stabbed and strangled as well? Anything wrong with that? Bybee – I’d say not cruel because not unusual enough. Bradford – Oh I don’t know, it’s fairly unusual. Bybee – It’s not unusual enough though. It has to have happened before. Bradford – You’re right, that’s been done to death. Yoo – No you still don’t get it. This would be OK because if he died it wouldn’t be cruel, the grounds would be if he had all those things being done to him, death would be tantamount to a mercy killing. And gentlemen, Yoo said, his eyes filling with tears, as he stood up, “I’ll be damned if I will stand party to anyone trying to outlaw mercy in this country.” Bybee – Here, here. Yoo. Well said. Agreed. Agreed said Bradford, Bybee and Yoo.
Bradford – Well, by God boys, you know I think we’ve done it. In just a few minutes we’ve managed to undo centuries of American and international standards of law and humane criminal justice. And it only took us a few minutes. We’ve rewritten everything . Dick and Georgie and Donnie’ll be so proud. This will surely place our names securely in the legal annals of the United States writ large. Bybee – Of course, we’ll be legends, but seriously, no one will ever see this will they? I’ve got a judgeship waiting for me. Yoo –Good God no! We need to put this in Cheney’s vault and never let it reach the light of day. Bradford - Well maybe you’re right, I got a little carried away. If ripping up half the Constitution isn’t a pure case of our new expanded, elastic sense of national security I don’t know what is. I feel safer already knowing that for once the torturers are going to be on our side. Yoo – Besides, trust me, we are building a permanent republican majority in this country so no way any of this will ever see the light of day. Trust me. Bybee – But I believe we three can hold our heads high for what we’ve done here today. The world has been trying to eradicate torture for thousands of years. And it’s taken us just a bit of an afternoon. We have literally defined it out of existence. Oh sure, we’ll have to write it up like we worked hard at it later, and you know, gave a damn about our jobs, by putting in a bunch of legalese pettifoggery and such but for now I couldn’t be prouder of us. Bradford – Exactly. Under these rules in our country you can’t torture anybody anymore, even if you tried. Hell, not even if they died. Man that’s some accomplishment. We have ensured that no one will ever be held accountable for torturing another under our laws for as long as our laws are held in abeyance under our new secret laws. Yoo – Yoo hoo, Yoo shrieked, pumping his fist in the air. Bybee - So ordered, so moved. Agreed said Bradford, Bybee and Yoo.
