Ollie's quibbles

Two points about Ollie’s May 25 post (“I Could Quibble, So I Will”): First, in mentioning slavery I was not trying to delegitimize the Constitution by connecting it to slavery. I was merely pointing out that there were sectional differences that made many of the participants at the Constitutional Convention prefer a weak central government, and slavery was one of the most divisive of those differences. You only have to read Madison’s Journal to see how strongly opposed many of the Conventioneers, including Madison, were to the Peculiar Institution. But they realized that nothing they did in Philadelphia could end it, for a Constitution that outlawed slavery would not be ratified by a sufficient number of states.

In any case, I don’t want to “delegitimize” the Constitution. For its time it was a nifty piece of work. How many other countries in 1789 had a body as powerful and democratic as the House of Representatives? My argument is simply that times have changed, and what worked well enough for 1789 may not work for 2014. Michael Jordan was a great basketball player, but he wouldn’t be much help to an NBA team today.

Second, Ollie said that the Constitution has been amended many times, the implication being that popularly-backed amendments should not be too difficult to effect. In fact, the Constitution has been amended 27 times in the last 225 years. But the first 10 of these amendments (our Bill of Rights) happened at the very start as part of the ratification bargain. And it took a Civil War to effect three others (#13 through #15).

That leaves 14 amendment adopted through normal processes, or about one every 16 years. Of these only three were truly important—the income tax (#16), direct election of senators (#17), and women’s suffrage (#19), all ratified in the period 1913-1920. Of somewhat lesser importance are the two-term limit for Presidents (#22), giving DC residents the vote for President (#23), abolishing poll taxes (#24), and lowering the voting age to 18 (#26). Of the remainder, #21 repealed #18 (Prohibition), and the remaining five addressed technical problems. Not a particularly impressive record for two-and-a-quarter centuries.

My differences with Ollie shouldn’t obscure the larger point on which we agree: On some critical issues, the people who wrote the Constitution (including the amendments) didn’t mean what the courts currently say they meant. I tend to think the distortion was inevitable and in some cases beneficial, Ollie not so much. But about the true meaning of the Constitution, and the poverty of the Supreme Court’s reasoning on Constitutional issues, I think we are in substantial agreement.

—Stan

Zero Dark Thirty

(So far, this blog has dealt almost exclusively with social policy, but that’s not a requirement. Accordingly--and since I don’t have anything else ready to go--I thought I’d post an unpublished 2012 review of a much misunderstood film.)

Zero Dark Thirty, a semi-factual account of the hunt for Osama Bin Laden, has provoked a small controversy. There are graphic depictions of CIA torture of suspected terrorists that yield nuggets of information leading to Bin Laden’s Pakistan hideout. No one denies that such torture went on, but Senators Diane Feinstein and John McCain, and numerous others, have asserted that the torture did not elicit any useful information. They say that the movie sanctions torture as a valuable aid in the war on terror.

Like most critics and supporters of Zero Dark Thirty, I have no idea whether torture did or could yield useful information. Too many people have a stake in that debate, and too much information is classified, to trust any particular answer. In any case, the debate over the efficacy of torture seems largely irrelevant to the movie.

Zero Dark Thirty is about an obsession. It opens with a black screen and actual recorded phone messages from people trapped in the World Trade Center on 9/11. It then follows Maya (Jessica Chastain), a CIA analyst, through incidents in the near decade-long hunt for Bin Laden. Maya has no social life, and no other CIA mission than her all-consuming hunt for Bin Laden. (She briefly becomes friendly with a similarly-obsessed CIA agent who is killed, along with other CIA operatives, by a Taliban suicide bomber in Afghanistan.)

Maya’s obsession is the national obsession. 9/11 was a victory for Bin Laden, not because of the body count or the physical destruction, but because it achieved the main goal of terrorism: It robbed us of our reason. From the tsa follies to the wars in Iraq and Afghanistan, it led us to numerous dead-end policies and self-inflicted wounds. For the movie-makers, torture was one of those dead-end policies. It is depicted graphically so that it will (one hopes) be repellent, but for the purposes of the film it has to yield some useful information because otherwise there would be no reason to show it.

The problem with the obsessive focus on Bin Laden is summed up by the CIA station chief in Pakistan, who tells Maya that Bin Laden is a spent force—there has not been a successful Al Quaeda attack in the U.S. since 9/11—and that the resources devoted to the hunt could be better used fighting actual threats. Maya faces him down by arguing that he can’t be seen as the man who let Bin Laden get away—that is, that he stood in the way of our national obsession.

Later at a meeting as others argue about the probability that Bin Laden is in the Abbatobad compound, Maya blurts out that she is certain that Bin Laden is there, and berates the others for being “uncomfortable” with certainty. Some in the audience may see this as a brave statement of conviction, but can there be any doubt that no reasonable person could have been that certain?

The film ends with the Navy SEALs raid on Bin Laden’s compound. The main defense is a series of stout metal doors, which the SEALs force with explosive charges. There are only three men in the building, all of whom are quickly gunned down. As they lie motionless on the ground, the SEALs shoot them several times to make sure they are dead.

Since everyone knows how the story ends, there can’t be the usual buildup of suspense, but remarkably (and I think deliberately) Bigelow doesn’t show Bin Laden alive for more than perhaps a second, and there is no dramatic buildup to what is ostensibly the whole point of the mission and the extraordinary effort that preceded it. You only become aware that this particular corpse is Bin Laden when a SEAL radios a laconic “Possible jackpot” message. The focus of the raid scene is on the SEALs’ ruthless efficiency; the most dramatic incident is the deliberate destruction of a SEAL helicopter that crash-landed in the compound.

The minimal attention to Bin Laden in the raid is consistent with the rest of the film. Bin Laden is not portrayed as a villain, or indeed portrayed at all. He is simply the semi-abstract object of a man-hunt, and when he is killed there is no feeling of victory, simply of the successful end of a task. In a coda, after the raid Maya boards a military transport plane. She is the only passenger, and the pilot says that he will take her anywhere she wants to go. It’s clear that she has no idea where that could be.

Zero Dark Thirty was nominated for numerous awards. One of its competitors was Argo, another semi-factual movie about our relations with the Islamic world. In Argo a CIA operative creates a phony movie project as cover to spirit some American Embassy employees out of Iran in the early days after the fall of the Shah. It’s an enjoyable feel-good story: American ingenuity springs the trapped employees, with an (invented) hair-breadth escape at the Tehran airport. Predictably, Argo won the Oscar for best picture.

Two people can read a newspaper, accept all the reported facts, and yet reach quite different conclusions as to what it all means. So it’s not surprising that people can read Zero Dark Thirty as a triumphalist work on the order of Argo: Dedicated CIA analyst, not afraid to use extra-legal methods, tracks down mass-murderer through hard work and force of moral certainty. Lots of movies work that way, and it’s not surprising if viewers slot Zero Dark Thirty into that mold.

But it doesn’t seem to be what the writer, Mark Boal, and director, Kathryn Bigelow, intended. The title tells it all: Zero dark thirty is military slang for the hours between midnight and dawn, and could refer to the hours of the raid. But thirty (written “-30-“) is the traditional newspaper reporter’s end for a story. The implication is that this story ends with nothing, in a moral darkness.

—Stan

I Could Quibble, So I Will

The quotes are from Stanley's post The Establishment Clause below

“want to live under the Constitution as written. Most of us don’t”

I do. I know a number of other estimable gentlemen who do as well. I would really like to know what I would be missing in such a world. Corkscrew light bulbs? Income taxes?

As far as I know most of the things that the Federal Government has gotten into since SCOTUS started to treat the constitution like toilet paper have gotten worse because of Federal involvement. Public education has not improved, but it is a lot more expensive. The US has the most expensive healthcare system in the world by about 5% of GDP, but not healthier citizens. Social Security and Medicare are locked into bankruptcy. Housing finance has now caused two recessions in the last 25 years. Heck, the Federal Government can’t even discharge responsibilities that it would have under any reading of the Constitution, such as caring for disabled veterans.

“The Constitution was written 225 years ago for a different time and polity.” 

The correct answer to this canard is: So What? Human nature has not changed. Men have not become angels. Further the constitution is a sufficiently flexible framework to allow for great changes, and it can be amended.

“The Framers (most of them) owed their first allegiance to their States[*], and they were careful to limit the federal government’s ability to interfere with State practices (such as a State religious establishment and, more critically, slavery)”

The rhetorical move here is to connect the Constitution to slavery and thereby delegitimize it. It is an error to insist that something done by some people whose motives were not pure (as if anybody’s motives are ever pure) is therefore infected with that impurity. In the last 225 years, the United States has grown to be much larger. The fundamental problem that Madison set out to solve was the size and diversity of the country called for different laws in different places. I think that is no less true now when the country spans 5000 miles and has a population of 320 million as it was 225 years ago, when it was smaller in size and far smaller in population.

Notice that in Europe countries far smaller than the US, such as Britain, Italy, and Spain have regional groupings that want independence or autonomy. The Constitution sought to prevent that centrifugal problem by leaving most issues to the several states.

*I don’t know that this is true, they fought for the creation of the United States, and pledged to that cause their lives, their fortunes, and their sacred honors.

“The Constitution answered to the needs of its time, but the amendment process the Framers settled on has made it difficult to modify the Constitution as needs change”

This is not true. There have been many Amendments. The problem that the Blue State Elites have is that amendment requires national consensus. It was easily done when objects were widely popular. But it is a lot easier to persuade a couple of dozen lawyers who are class confreres of the elites to impose abortion or same sex marriage on an unwilling nation than it is to achieve the type of consensus required to amend the constitution. And, I rather suspect that it is a lot more fun to shove it down the throats of people you hate, than to talk them into something.

 “buying Louisiana, ending slavery, establishing the Federal Reserve System, or fighting the Great Depression, to name a few.”

Buying Louisiana was not hard to justify as pursuant to the treaty power. Establishing the Federal Reserve System had been approved by the Chief Justice Marshall in the early days of the republic. Slavery was ended by the 13th Amendment. And the Great Depression was not fought (it is of course impossible to fight incorporeal concepts) by unconstitutional means, they exacerbated the situation, so as to entrench partisan power.

The “New Deal” or as I call it the Peoples Socialist Democratic Republic of the Untied States was, and is to this day, unconstitutional. Sadly, SCOTUS would not, could not, bail us out of the damage. They clipped off a few of the worst depredations, but we still suffer from others (like Social Security) that will eventually collapse of their construction.

“But when the Court gets out ahead of the citizenry (abolishing the death penalty, legalizing abortion), the result can be some ugly politics, made uglier by the denial of the possibility of normal democratic procedures.”

Yes, that is true and they are lining up to do it again with same sex marriage. Apparently, the temptation to crush the enemy and hear the lamentations of his women and children is irresistible. Politics be dammed.

“Thomas has often plowed this lonely furrow, insisting that the courts should interpret the Constitution just as they interpret any other statute. ... Any other approach makes judges into unelected lawgivers.”

This is true and this is why he is the only one of the black robed clowns I have any respect for.

Shadow politics

I don’t have a position on capital punishment. But I find the hubbub over the recent “botched execution” in Oklahoma both gruesomely funny and politically instructive. As is often the case, the ostensible issue is not the real one—and everybody knows it. But since the real issue can’t be addressed, we have shadow debates about phony issues.

The phony issue here is “How much pain should a person feel whilst being executed?” Assuming the execution isn’t particularly grotesque—drawing and quartering, say—I doubt if the object of the exercise much cares. Offered a choice between a harrowing hour-long ordeal that he’ll survive and a peaceful voyage to the undiscovered country, the condemned would no doubt opt for painful survival. The pain is in the execution, not the method.

But the execution can’t be legally attacked, so death-penalty opponents try to stop it by insisting on a condition—absolute painlessness—that seems reasonable but may prove impossible to guarantee. (Which explains why they labor so hard to make unavailable any drugs that could make lethal injection painless.) Judges who may themselves be opposed to the death penalty go along with the subterfuge.

Speaking as a layman, I don’t see why it’s so hard to kill someone painlessly. After all, surgeons cut people open without the patients feeling anything, and people painlessly shuffle off with sleeping pills. What did Dr. Kevorkian know that eludes our current bumbling executioners?

There’s an analogy here with the debate over marijuana legalization. The people who support legalizing medical marijuana argue that it can provide an effective treatment for the pain of chemotherapy. Perhaps they’re right, but that’s a sideshow. Where medical marijuana is legalized, it predictably becomes easy for the healthy to indulge, perhaps with a nod and a wink from an assisting doctor. That was always the real object. And sure enough, legalizing medical marijuana has now led to the general legalization of marijuana in some states (which, as a policy matter, I’m all for).

What’s interesting is the politics. In both cases, frontal assaults on the center were easily beaten back, but guerilla raids on vulnerable flanks succeeded. Those small victories then changed the terms of the larger debate. The lesson? Perhaps the surest way to change opinions is not to challenge them directly—people just dig in—but to work on the fringes where people are less committed: Let’s keep executions, just make them less painful; let’s not legalize marijuana, just allow it where there’s a medical need. As people get comfortable with the small changes, it becomes easier to move them on the big ones. Persuasion is usually a process of step-by-step familiarization with the previously unacceptable view.

On The West Wing grand political values clashed, with one side (usually the liberals) convincing the other through sheer force of argument. But that’s just television politics—a dramatic confrontation leads to a resolution that confirms the audience’s (and Aaron Sorkin’s) pre-existing moral views. I loved The West Wing—Sorkin wrote marvelous comic dialogue for a gifted team of actors—but I never confused it with real politics, where dramatic shifts of opinion seldom happen. Outside of television, democratic politics is largely persuasion and accommodation.

“Politics is a strong and slow boring of hard boards.”—Max Weber

—Stan

The Establishment Clause

Ollie’s take on the Bill of Rights, including the Establishment Clause ("Antidisestablishmentarianism," 5/17/14), is that the States are not bound by it. That’s historically correct. The Court, however, has used part of the 14th Amendment—the part that says “No State shall … deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws”—as a basis for claiming that the 14th Amendment “incorporates” most of the Bill of Rights, making those rights applicable to the States. There seems little historical or textual basis for such a claim. As Ollie says, incorporation is a 20th century judicial invention.

Justice Thomas’s concurrence in Galloway made this point about the Establishment Clause, but no other Justice saw fit to join him. (Justice Scalia joined in part of Thomas’s concurrence, but not the part on the Establishment Clause.) Thomas has often plowed this lonely furrow, insisting that the courts should interpret the Constitution just as they interpret any other statute: It means what the people who wrote it intended it to mean, which is usually clear enough from the words, supplemented by a dash of history. Any other approach makes judges into unelected lawgivers. Thomas’s approach is usually called “originalism,” but few originalists are as consistent as Thomas. It’s a view with which I sympathize. And yet …

The problem with originalism is that it assumes we want to live under the Constitution as written. Most of us don’t. The Constitution was written 225 years ago for a different time and polity. The Framers (most of them) owed their first allegiance to their States, and they were careful to limit the federal government’s ability to interfere with State practices (such as a State religious establishment and, more critically, slavery). The Constitution answered to the needs of its time, but the amendment process the Framers settled on has made it difficult to modify the Constitution as needs change.

The result has been that under the Constitution, properly construed, the federal government cannot do many things that majorities of its citizens very much want it to do--buying Louisiana, ending slavery, establishing the Federal Reserve System, or fighting the Great Depression, to name a few. Since the Constitution can’t (practically) be amended, the Court has been willing to distort the meaning of the Constitution to get to the desired result. But no one is allowed to say what’s going on, so many Supreme Court opinions on the Constitution are merely a series of sophisms; the Justices hold their noses and solemnly declare black to be white. Of course, I suspect most Justices manage to convince themselves of the deeper wisdom of their gibberish; for the rest, it’s a gig with many perks. And, of course, most opinions involve non-Constitutional issues, where the Justices can be more forthright.

Where the obfuscations get to a result acceptable to the mass of Americans, perhaps no harm is done, except to our logical sensibilities. But when the Court gets out ahead of the citizenry (abolishing the death penalty, legalizing abortion), the result can be some ugly politics, made uglier by the denial of the possibility of normal democratic procedures. (Surprisingly, this is the view of Justice Ginsburg, who is on record that the Court should have waited for popular opinion to sanction abortion before making it a Constitutional right.) 

I’ve developed this view of the Constitution in greater detail in a paper, “Thinking about the Constitution,” which I hope to publish some day in a reputable journal.

—Stan