Essentially Contested America

Reverend Jeremiah Wright is killing Senator Obama’s chances to win the presidency in November, even perhaps to win the Democratic nomination in August. Here is part of the Reverend’s recent performance at the National Press Club.

His arrogance, bitterness, and narcissism, are bringing back the politics of crash and burn, just the sort of politics Senator Obama implores Americans to repudiate. Who will suffer from Wright’s his circus performance? No one important, just Senator Obama and perhaps the American nation. What should Obama have said to condemn (not merely distance himself from) Wright’s antics? Obama should have given the following speech.

“I firmly believe in tolerance, respect, and the appreciation of differences. The politics of personal destruction is antithetical to everything I stand for. Reason, conversation and walking in another’s shoes are central not only to my campaign but to my life. Combatively responding to every attack is anathema to my fundamental values. One should always seek compromise and conciliation. Accordingly, there exists an overwhelming presumption not to defend oneself even when viciously attacked. But that overwhelming presumption is not absolute. There are times when one has to fight back and the time is now. Reverend Wright’s conduct and speeches over the past week have been despicable. He is engaging in the same old politics that I am trying to change. Hence, reluctantly but adamantly I must forcefully repudiate his conduct. Don’t say I’m doing this for crass political reasoning. I’m doing it because the new politics I seek to bring to Washington cannot flourish or even survive in Reverend Wright’s world. Whatever positive role he played in my life notwithstanding, he now is not only hurting me, but much more importantly he is helping cynical Americans to reject the deliberative, respectful, new politics to which I am committed. Nothing is more important than introducing this type of politics to the American people. Since Reverend Wright is not part of the solution to our divisive, harsh, and vengeful politics, he is part of the problem. And I reject and repudiate this problem wherever or in whomever it exists.”

Here’s what Senator Obama actually said.

I do not condemn Reverend Wright for uttering falsehoods. Indeed, I agree with many of his remarks. However, his timing, his narcissism, his ridiculous showmanship, and absolute insensitivity to the feelings of others qualify him for pariah status is this nation. The politics of vilification, even if justifiable in the case of the barbaric treatment of African Americans, has been tried and failed. Senator Obama is holding out a new image of reconciliation, deliberation, and hope. Should it turn out that Reverend Wright’s carnival-like conduct prevents Obama from becoming president we all–the African American Church, all other houses of worship, and every American– suffer . What does Reverend Wright’s self-serving comments accomplish? Perhaps the end of the best hope in decades for civil political discourse, that’s all.

Justice Antonin Scalia, the conservative paragon of objectivity, impartiality, and fairness, last night on 60 minutes admonished critics of Bush v. Gore–the Supreme Court decision that gave the 2000 presidential election–to “get over it.” (If the video below won’t play click here.)

Justice Scalia’s remarks are disingenuous in the extreme. First, the recount was overturned on equal protection grounds. Yet, since the Court insisted that this decision should not serve as a precedent, it was a violation of equal protection for that day only. (”Our consideration is limited to the present circumstances, or the problem of equal protection in election processes generally presents many complexities.”) Second, where states have the authority to create voting standards and procedures, and where a state chooses a de-centralized system of voting, there is bound to be equal protection problems within and without the system. That’s inevitable in a de-centralized voting system; yet the Court never before dared to venture into this thicket. Third, Justice Scalia often complains about judicial intrusion into state affairs. How is this one different? Please do not say there wasa clear constitutional violation here because the circularity of that response is transparent. Moreover, some say that Justices Scalia and Thomas, and Chief Justice Rehnquist thought the equal protection argument a non-starter, but signed on to the Court’s opinion because that was the only way Governor Bush could prevail. If that’s so, only four members of the Court thought the recount unconstitutional for the same reasons. In other words, four Justices thought the recount violated equal protection, three thought it violated Article I of the Constitution, and two Justices thought it violated neither. That’s a long way from saying the constitutional issue wasn’t even close. Fourth, a remedy existed, a remedy explicitly stated in the Constitution. When contested elections prevent any candidate from receiving a majority of electors, Congress settles the matter. So where the Constitution clearly provides a remedy for contested slates of electors, the Court should have never taken the initial case on thegrounds that other branches of the government are better able and more clearly authorized to resolve these issues. Finally, what in the world could have been so important not to remedy the improprieties in the recount? Missing the “safe harbor” deadline did not mean Florida was barred from sending electors to the Electoral College, only that its slate could be challenged at some point. And the safe harbor provision is a goal not a requirement. However, if a constitutionally acceptable recount occurred, why would such a guarantee be necessary? And wasn’t it more important to make sure that all the votes were counted accurately?

I find Justice Scalia to be too smart (or perhaps, too glib is a better choice of words) for his or the nation’s good. Rather than forcing himself to reflect on the possible infelicities in his own argument he forges ahead like a bull in a china shop and exclaims “Get over it.” For many of us contemporary observers as well as our descendants, we will never get over this usurpation of power. The damage to the Constitution and to the nation for the past seven years won’t allow any principled person to “get over it.”

It is important to emphasize that Scalia’s contention that the constitutional question wasn’t even close is only conceivably true within the narrow confines of Justice Scalia’s own imagination. But nowhere else. Two of the most distinguished constitutional scholars in the nation disagree. Consider: “Ronald Dworkin, who has made a brilliant career out of insisting that the Supreme Court makes America a nation of principle, wrote that he can find no reason to think that the majority in Bush v. Gore was doing anything other than trying to recruit conservative reinforcements onto the Court.” . . . Bruce Ackerman, who has long struggled against the view that law is nothing more than politics, has concluded that the conservative justices in the Bush v. Gore majority quite simply arranged for their own succession. . . . . Both Dworkin and Ackerman virtually plead for an alternative explanation–one that could be reconciled with their intellectual commitments of the last quarter century–but neither can glimpse what that explanation might be.” Of course, the fact that Dworkin and Ackerman thought that the only explanation of the decision in Bush v. Gore was political in the crass sense of that term doesn’t make it so. But it sure goes a long way to refute, if refutation is even necessary, Scalia’s claim that the constitutional issue wasn’t even close.

One incident in this terrible judicial drama illustrates Justice Scalia’s obtuseness or political bias. In granting the original stay Justice Scalia gave his reason that without the stay, Governor Bush’s legitimacy as the victor would be tarnished. In Scalia’s words, “the counting of the votes that are of questionable legality does in my view threaten irreparable harm to [Bush], and to the country, by casting a cloud upon which he claims to be the legitimacy of his election.” But at that time there was no victor. Turning democracy on its head Scalia insists that “[c]ount[ing] first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires.” But if the conclusion was that the recount was unconstitutional, the only proper solution was to count the votes again according to a constitutionally acceptable method.

Justice Scalia insists that there is no constitutional right to abortion or same-sex marriage. But if the electorate wants such rights, his argument continues, let them create such rights to legislation, don’t somehow discover them in the text of the Constitution. Fine! But what about finding state powers in the constitutional text such as a bloated conception of state sovereignty that simply cannot bear its own weight? Or what about a non-commandeering rule barring the federal government to enlist state chief law enforcement officers into federalprograms which Justice Scalia himself divined? Where is that rule found in the Constitution? The list of Scalian inconsistencies abounds. Moreover, if the legislature is the vehicle for creating non-constitutional rights and powers, what’s wrong with affirmative action? Virtually every affirmative action case examined a democratically created law. Please don’t say, “Ah ha, Justice Scalia need not defer to the legislature when a law clearly violates the Constitution in this case the equal protection provision.” This reply is entirely circular especially for an originalist who doesn’t even bother to consider the historical evidence that the ratifiers of the Fourteenth Amendment’s Equal protection Clause did not regard racial classification per se to be incompatible with equality. In short, Scalia’s originalism is opportunistic seeking historical evidence to support the original meaning he favors, not necessarily the original meaning.

There is one issue where I agree with Justice Scalia that we should get over it. Let’s get over the notion that the Supreme Court is capable of impartiality and fairness, especially in divisive controversies or that it has the wisdom not to arrogate more and more power to itself. The last straw for some defenders of judicial supremacy was the Court determining the winner in a presidential election. This should never happen in a republican democracy, especially when the Constitution gives that job to the political branches.

Justice Scalia has been a disaster for American constitutionalism and for the wider constitutional culture. The only saving grace is that his tenure on the Court will encourage American citizens to discern the danger of judicial supremacy, a practice whereby Justices, having nothing whatsoever to lose, can read their idiosyncratic ideologies into the Constitution. Such a priestly aristocracy might serve the purposes of religion, but it is anathema to republican democracy.

Credit for First Image
Credit for Second Image

Click here for Jim Chen’s jeremiad against the media’s handling of the last Democratic presidential debate.

I suppose even homosexuals, and their friends, can engage in homophobic jibes with temerity. Sullivan is a self-professed, proud gay man. I have no idea what Hitchens’ sexuality involves. But Hitchens’ homophobic remarks and Sullivan’s enabling compliance is neither funny nor cute, but again reveals the dark side of Christopher Hitchens. Wait! Hitchens’ dark side is the only side he has.

Hitchens’ rhetorical tempo includes claiming certitude and demonizing opponents. Concededly, Hitchens is smart, but he’s not that smart. Similarly, he writes well, but not that well. Why Hitchens made the move from serious, socialist commentator to a vapid, silly virtually neo-conservative buffoon, no one can say. But his arrogant and projected self-importance is becoming tedious. His reclamation, though desirable, is probably beyond the possible. And so another intellectual becomes a faux intellectual and chooses instead to be a sensationalist. To what end? Greed? That seems too facile an explanation. But then is the explanation of his transition subject to rational assessment or is it simply the breakdown of a machine? Here’s the relevant portion of the exchange.

SULLIVAN: Two things. One, it’s important to clear up that he [Wright] did not say “The Jews are going to get you” in some conspiratorial, classic anti-Semitic fashion. I think that’s just–

HITCHENS: He [Wright] thinks only Jews are going to object to [Rev. Louis] Farrakhan and [Libyan leader Moammar] Gadhafi. Excuse me?

SULLIVAN: No, he didn’t say “only.”

HITCHENS: No, but–

SULLIVAN: Again, you keep playing with that quote. We’re happy to have it on the record. And now you’ve made me forget my second point, which is–

HITCHENS: Oh, well, don’t be such a lesbian. Get on with it.

SULLIVAN: I’m sorry, I’ve forgotten my second point. But I do think that’s important. And I don’t think Wright is Farrakhan. And I don’t think Obama, in any conceivable way, represents anything but racial inclusion and integration. And anybody that looks at any part of his career and can be in any doubt about that is beyond me.

The reason he went to that church, clearly, if you read his biography, is he wanted to understand what it was to be black in America. He didn’t understand. He’s a very polyglot person. He grew up in Hawaii, he had some time in Indonesia.

Hitchens’ incorrigibility knows no limits. Why more commentators are reluctant to take him on is is a mystery. Perhaps, it’s intimidation, but I would welcome the opportunity to debate him. His rhetorical deviousness is predicable and it doesn’t require remarkable skills to reveal his ad hominen arguments, his petitio principi reasoning, and his constant stream of non sequiturs. not to mention his penchant for duplicity. The real tragedy is that he still lingers on the “intellectual” scene and is not shunned by respectable media forums.

Democrats, devastated by the reign of George W. Bush, indeed, any American convinced the last seven years have dealt the greatest blow to American constitutional democracy since the Civil War, should support neither Hillary Clinton nor John McCain. Why? Because neither Senator Clinton nor Senator McCain has a commitment to honesty in politics. ECA will have more to say on John McCain’s dalliance with the truth in later posts. For now, let’s concentrate on Senator Clinton.

For purposes of full disclosure, let me first mention that I vigorously supported Mrs. Clinton’s run for the Senate. Indeed, I even contributed a small amount of money to her senatorial campaign, one of the first times I ever picked my own pockets to do so. I was intrigued and hopeful (excuse the anti-Clintonesque term) to see a woman become president of the United States, especially a woman as intelligent and committed as Mrs. Clinton. Her victory in New York delighted me. My hope was that this victory would be the first step toward making history with the felection of the first female president of the United States, and a shrewd and intelligent one at that. And then she voted to authorize military force in Iraq knowing full-well that the intelligence cherry-picked by the president was unreliable. At that point my support begin to slowly wane. Why did she do it? Here’s one hypothesis. Mrs. Clinton feared that removing Saddam would prove to be as easy a cake walk as George H.W. Bush’s military enterprise during the first Iraq war. Had that occurred, and had she voted against authorizing military support in Iraq, her chances to persuade the nation that she had the necessary stuff to become commander-in-chief would have take a fatal nose dive. I sympathized with her dilemma. The first woman president unfortunately has to appear tougher than any man seeking the job. My hunch is that she knew Saddam’s WMDs program was at worst dormant and probably simply dead. She knew, therefore, that he represented no imminent threat to the United States or to the region.

What would a stateswoman have done? She would have followed her conscience not her ambition. Hillary chose to follow her ambition. And then when the truth became known, she lacked the fortitude of someone committed to truth to admit fault and poor judgment. Instead, she duplicitiously rationalized that at the time there was “credible” evidence that Saddam possessed WMDs and posed an imminent threat to the United States. You know, as in Condi Rice’s words, the smoking gun would be a mushroom cloud. This together with Naftagagte and Bosniagate and many other incidents shows that Mrs. Clinton sees truth as an instrumental value at best. If telling the truth works, be truthful, tell the truth. If it doesn’t work, prevaricate. Surely after seven years of one of the greatest liars ever to occupy the Oval office, supporting Mrs. Clinton is insanity. The Bush-Clinton approach to politics, lie with impunity, must be abandoned. Both politicians should be punished for holding truth hostage in politics. It’s too late to punish Mr. Bush, short of historical condemnation. But democrats and other Americans can punish Mrs. Clinton and send a message to our children that honesy is not only the best policy it is the right thing to do.
Credit for Image

What serious threats face American Democracy? George
W. Bush and his ilk? The corporatization of American government? Global warming? Probably all of the above and more. But watch out for the superclass, a group of super-powerful individuals intent on domination, though of course, they deceive themselves into believing their purpose is more benign. Consider the following review of a book alerting us to the insidiousness of this group: “In the first chapter of David Rothkopf’s Superclass: The Global Power Elite and the World They Are Making,
the author quotes Mark Malloch Brown, a British minister of state and
former deputy secretary-general of the United Nations, recalling what
it was like to walk with his wife through a reception in New York for
the World Economic Forum. The WEF puts on the famous annual meeting of
business leaders, political figures, NGO heads, scientists and other
movers and shakers, nicknamed after the small Swiss alpine town where
it takes place, Davos. After crossing the room and shaking countless
manicured hands in the process, the couple turned to each other and
marveled that ‘we walk though the Davos party and know more people than
when we’re walking across the village green in the town we live in.’
Brown is far from the only one who could tell such a tale. “Davos man”
is an epithet coined by the conservative scholar Samuel Huntington to
describe the very specific type that attends the conference. These are
people who, as Huntington wrote, ‘have little need for national
loyalty, view national boundaries as obstacles that thankfully are
vanishing, and see national governments as residues from the past whose
only useful function is to facilitate the elite’s global operations.’”
For more click here.

Is the nation-state soon to become a historical
relic? Will American democracy succumb to the enormous pull of the
globalization of politics? Will the ideal of self-government, arguably, first instantiated in the United States during our constitutional founding, vanish in the tumultuous changes looming in international relations? For self-government to survive, the governing selves–everyday citizens–must make it happen. If we continue to abstain, the remaining skeleton of self-government will consist of the major players–elites–who have no motivation to encourage democracy unless doing so is instrumental to greed, power, and control of people everywhere. This monstrous skeleton of democracy will ruthlessly determine how we live and what we live for. Again, the choice is still ours to make.

Credit for Image

Dick Cheney’s repeated lies to the American people surely qualify him for the gold medal in mendacity. But the Vice-President’s successful scheming to keep the President out of the loop concerning his own administration’s decisions authorizing torture indicates the complete absence of even an elementary moral sense. Consider the following report: “Bush administration officials from Vice President Dick Cheney on down signed off on using harsh interrogation techniques against suspected terrorists after asking the Justice Department to endorse their legality, The Associated Press has learned. . . . The officials also took care to insulate President Bush from a series of meetings where CIA interrogation methods, including waterboarding, which simulates drowning, were discussed and ultimately approved. . . . A former senior U.S. intelligence official familiar with the meetings described them Thursday to the AP to confirm details first reported by ABC News on Wednesday. The intelligence official spoke on condition of anonymity because he was not authorized to publicly discuss the issue. . . . Between 2002 and 2003, the Justice Department issued several memos from its Office of Legal Counsel that justified using the interrogation tactics, including ones that critics call torture.” For the entire story click here and for more click here.

Credit for Image

Bill Clinton is at it again. In the 1931 movie Frankenstein, Dr. Frankenstein admonishes Fritz, his disabled assistant who relished tormenting the creature to “Leave it alone, Fritz, leave it alone.” Bill Clinton needs to heed the warning and leave his wife’s campaign alone. He only makes her fabricated Bosnia story even more startling by further distorting what really happened. Listen to the former president’s own words:

More than a couple of Bill Clinton’s remarks are false. For the evidence click here. Why doesn’t Bill just leave it alone.

Recent reports suggest the extended campaign for the Democratic nominee for president is damaging, perhaps irreparably, the Democrats chance to defeat Senator McCain in November. Here’s a taste: “Republican Sen. John McCain has erased Sen. Barack Obama’s 10-point advantage in
a head-to-head matchup, leaving him essentially tied with both Democratic
candidates in an Associated Press-Ipsos national poll released Thursday. . . . The survey showed the extended Democratic primary campaign creating divisions among supporters of Obama and rival Sen. Hillary Rodham Clinton and suggests a tight race for the presidency in November no matter which Democrat becomes the nominee.” For more click here. The Clinton’s narcissism is, regrettably for the nation, unlimited. For them the notion of “the common good,” in this case the common good of their Party, is simply unintelligible.

Credit for Image

John McCain was repeatedly tortured during his imprisonment in North Vietnam. Understandably, he now says he opposes using torture as a method of interrogation in fighting the war on terror. Nevertheless, he has supported Mr. Bush’s veto of a prohibition of torture, including such techniques as waterboarding which Senator McCain candidly acknowledges is torture. Consider the following article: “When President Bush vetoed legislation Saturday that would have prohibited the CIA from using physical force in interrogations, he had the support of Sen. John McCain - the most outspoken of any presidential candidate in his opposition to torture. The Arizona Republican has described his own torture by the North Vietnamese, who captured him in 1967 after his plane was shot down on a bombing run. He spoke out against the near-drowning technique called waterboarding when it was being defended by other Republican candidates and by Vice President Dick Cheney. . . . And McCain won the signature of a reluctant Bush on 2005 legislation that prohibited military interrogators from using waterboarding and other methods. . . . On Saturday, however, McCain backed Bush’s veto of a bill that would have barred the CIA from employing those same techniques – or any others not authorized by the Army Field Manual – when questioning prisoners.” For more click here.
The only plausible explanation is that McCain wants to be known for opposing torture, while at the same time being seen as tough on national security by supporting a President who clearly believes it is his prerogative to define torture including whether waterboarding is torture. Of course, anyone can define “torture” in such a manner as to render it benign. But that won’t change the fact of its barbarism. McCain wants to eat his cake and have it too. The only thing left for McCain is to exclaim that he voted against torture before he voted for it.

Credit for Image