Essentially Contested America

According to an article in today’s NY Times, it’s becoming clear that Senator McCain’s choice of Sarah Palin as his running mate may be the reason he has not yet closed the gap between himself and Senator Obama in the battle for the White House. The more we get to know Governor Palin, the greater the certainty that she is not close to being ready to assume the presidency, and let’s be candid, it is extremely unlikely that she ever will.  Those who think she can be rehabilitated over the next four years and become a serious contender for the Republican Party’s presidential spot are simply engaged in wishful thinking. Since McCain picked her for the vice-presidential slot, McCain’s candidacy has been spinning out of control with increasing speed. Can McCain still win the election, even with the weight of Palin dragging him down? Sure he can. But the circumstances in which his victory is possible are becoming much more difficult to imagine. Compare McCain’s conduct in making executive decisions over the course of his campaign with how Senator Obama has executed his campaign. Obama may have limited or no formal executive experience, but the very nature of his decision-making is thoughtful, analytically sophisticated, grounded in empirical facts, and finalized only after considering a multiplicity of opposing views, and these are precisely the virtues that depict executive decision-making at its very best. Let’s drop the charade that his “inexperience” casts him in the same black hole as Governor Palin. The differences between how each candidate approaches executive decisions could not be further apart.

Morning Joe aired a piece purporting to depict folks who live on the upper Westside of Manhattan as closed-minded elitists who march in lock step against the McCain/Palin ticket.  No one on the show even raised the possibility that the choice here is obvious, not only to New Yorkers but also to those who live in the heartland of this great nation. Sometimes even “elitist” New Yorkers make decisions that reflect the common sense of Americans everywhere. At least, that’s a possibility the folks on Morning Joe might have raised.

During the Republican Party convention, many speakers derided Barack Obama’s background as a “community organizer.” Next Tuesday, if the polls are to be believed, they will see just how hard it is to run against a good community organizer. Indeed, the benefits of the community based Obama campaign are likely to last for many years to come.

Obama has run a campaign based in grass roots organization, with a neighborhood based structure and an emphasis on the individual autonomy of volunteers. This structure will enable the campaign to mobilize the “boots on the ground” necessary to get out the vote in the next couple of days. But even more importantly, the campaign has been a source of empowerment for thousands of volunteers throughout the country. Volunteers have met neighbors who share their interests and concerns, and enjoyed the experience of working with them for a common cause.

In an era when many of us feel increasingly isolated from others and cynical about politics, this grass roots based campaign has been a refreshing source of social contact and re-connection. It also has established a network for future political change. When my neighbors are concerned about an issue, whether national or local, they now know whom to call. The next progressive candidate in my community will have a ready-made structure on which to rely. With this pattern repeating itself throughout the country, thanks to Obama’s campaign strategy, American politics may never be the same.

As we reach the final stages of the presidential campaign, John McCain has begun to call Barack Obama a redistributor of wealth.  McCain presumably means that raising taxes on some, e.g., those making more than $250,000, and lowering taxes on others, e.g., those making less than $200,000, is a redistribution of wealth.  This is nonsensical based on conservative orthodoxy, which suggests that lowering taxes merely amounts to allowing people to keep more of their own money.  Thus, it is unclear how a redistribution of wealth could ever come from a mere change in marginal tax rates.    However, given that McCain is a self-proclaimed maverick, it is possible that he does not believe in conservative orthodoxy.  We probably should assume that McCain is using the term redistribution of wealth in a fuzzy way to mean any systemic change that creates a different distribution of wealth than would exist without the change.  Of course, such a definition of redistribution of wealth would suggest that any change in marginal tax rates, up or down, would amount to a redistribution of wealth.  Given that McCain has argued that lowering taxes is good, McCain likely recognizes in his heart that it is the justification for the redistribution of wealth that matters rather than the fact that it is a redistribution of wealth.  

Simply, some redistributions of wealth are justified.  The 13th Amendment’s abolition of slavery was a massive redistribution of wealth in McCain’s terms, as wealth was defined at the time.  That redistribution of wealth was justified to say the least.  Indeed, even though McCain’s family - which owned slaves at one time - may have suffered on its balance sheet becuase of this redistribution, certainly the good senator understands that the redistribution of wealth was not only good, but necessary for the country to survive.      

The President with the consent of the Senate nominates and confirms federal judges. Often such appointments turn out to be critical concerning the powers of government and the rights of individuals. Consider the NY Times’ introductory paragraph in a column in today’s paper: “After a group of doctors challenged a South Dakota law forcing them to inform women that abortions “terminate the life of a whole, separate, unique living human being” — using exactly that language — President Bush’s appointees to the federal appeals courts took control.  A federal trial judge, stating that whether a fetus is human life is a matter of debate, had blocked the state from enforcing the 2005 law as a likely violation of doctors’ First Amendment rights. And an appeals court panel had upheld the injunction.  But this past June, the full United States Court of Appeals for the Eighth Circuit voted 7 to 4 to overrule those decisions and allow the statute to take immediate effect. The majority argued that it is objectively true that human life begins at conception, and that the state can force doctors to say so.  Mr. Bush had appointed six of the seven judges in the conservative majority. His administration has transformed the nation’s federal appeals courts, advancing a conservative legal revolution that began nearly three decades ago under President Ronald Reagan.” For the complete story click here.  Choose Senator McCain if you seek to mire the Court in ancient, irretrievable values. Choose Senator Obama if you seek balance and a Constitution relevant to contemporary challenges.

More than ever before in American history, this election poses clear, significant choices in how the United States will handle a host of extraordinary important and pressing issues.  Among those issues are whether there will be some political and jurisprudential balance in the federal courts or whether the judiciary will become the most conservative (perhaps even most reactionary) courts in American history. Such issues as affirmative action, gay marriage, abortion, immigration, the economy, foreign policy, and war are among the most pressing issues. Presidents, senators, and judges who believe there is some talismanic method for determining the original understanding of the Constitution will ground American constitutional development in a series of arcane and ultimately foolish arguments about what the Constitution would mean today to an ancient priesthood of judges who could never imagine, in their wildest dreams, contemporary American constitutional and political challenges. Although some judges and constitutional scholars engage in super-intellectual gymnastics to ascertain the original meaning of the Constitution, the effort required should make us wary that constitutional originalism is anything more than an elaborate vehicle for imposing one’s idiosyncratic constitutional values onto the Constitution.  Interpretations of any text cannot exclude the invoking the ultimate values of the interpreter, and constitutional interpretation cannot exclude the constitutional and political values of contemporary judges even if they insist that they are attempting to construct the meaning of our ancient text and suppressing their own values from corrupting the process. There’s no escaping the interpreter’s values from determining his or her interpretation of the Constitution and only distortion and disaster results from trying to do so.

An Obama mandate could potentially transform American politics for a generation. The Senator seems to embody a commitment to sincere deliberation, community, and compromise. He views the American republic as a rich assortment of diverse cultures, all attracted to the United States for its grounding in the ideas of liberty, equality, and especially community. American society and politics may have never seen anyone like him before. And the obstacles to his success are formidable. American culture has been rooted in fractious, political warfare from 1796 to the present. Keep in mind that some of these battles have been important and desirable. They help the community identify and refine the values that have sustained us through a series of crises and transformations. Yet, demonic elements in these transformations are often corrosive precluding civility, honesty, and truth.  Campaign 2008 is a text book study in how to poison fundamental American values. Together with the advent of internet news and commentary and instant cable chatter, this campaign has a sui generis distinction. It perverts deliberative discourse. However, Obama’s “deliberative conversationalism” and quest for community has the power to transform American civic culture. The bellicose forces of darkness–the individuals groups unable or unwilling to deliberate in good faith–will never go quietly into that good night. Obama will need patience from both principled conservatives and principled liberals until the contrast between conservatives and liberals no longer has much currency. If Obama garners an electoral mandate for change, ECA will try to explore his deliberative conversationalism and how this method of resolving political disagreement or better stated how this method for rationally creating agreement can transform American politics. However, beware what sorts of obstacles the dark forces will continue to place in his path. There will be much to examine in Obama’s era of unity. But first he must win the election the old fashioned way: by fighting for it.

With Senator Obama steadily increasing his lead over Senator McCain, the single most important worry is whether the election will be conducted fairly. Or will the Republicans steal the election as they certainly did in 2000 and probably in 2004 also? (Yes, I know that some legal academics have engaged in sophisticated cognitive gymnastics in their attempt to justify the Supreme Court’s intrusion into the 2000 campaign. But sophistry is sophistry called by any other name.) My only hope is that Democrats have already amassed an army of election specialists to prevent the theft of the presidency once again. The reliability of voting machines must be the first priority. Second, preventing election workers to refuse legitimate voters their right to vote is a close second. Behind the scenes of November Fourth lies troubling questions of whether voting every two-four-and six years is a satisfactory method of keeping the people involved in self-government.

The American decentralized method of conducting elections is rife with actual and probable defects.  And keep in mind the theft of the 2000 election caused the calamitous eight years of the Bush-Cheney administration.  The Constitution must be revisited to guarantee that individuals who serve as the Chief Executive of the United States are, for better or for worse, the people’s choice. Vigilance and prompt remedial responses to attempts to illegitimately prevent voters from exercising their constitutional right to vote are the key to the integrity of an election that certainly will certainly determine the future of democracy in the United States.

Click here for the New York Times‘ compelling endorsement of Senator Obama.  Here’s a critical sample of the endorsement.

It will be an enormous challenge just to get the nation back to where it was before Mr. Bush, to begin to mend its image in the world and to restore its self-confidence and its self-respect. Doing all of that, and leading America forward, will require strength of will, character and intellect, sober judgment and a cool, steady hand. Mr. Obama has those qualities in abundance. Watching him being tested in the campaign has long since erased the reservations that led us to endorse Senator Hillary Rodham Clinton in the Democratic primaries. He has drawn in legions of new voters with powerful messages of hope and possibility and calls for shared sacrifice and social responsibility.

A few weeks ago, John Lewis compared the language used by the McCain-Palin ticket to the language used by George Wallace in suggesting that inappropriate and inflammatory language can lead to violent results.  Though Lewis never suggested that the substantive views of the McCain-Palin ticket were similar to George Wallace’s substantive views, John McCain angrily suggested that he had essentially been called a segregationist and called on Barack Obama to denounce Lewis’ statements.  Obama’s campaign agreed that McCain is not George Wallace, but noted that Lewis’ comments about the McCain-Palin ticket’s inflammatory rhetoric were well taken.  The irony is that Lewis’ comments were not only measured, but his reference to George Wallace was far closer to the mark than many recognize.

Lewis suggested that George Wallace’s rhetoric created an atmosphere that made the bombing of Birmingham’s Sixteenth Street Baptist Church somewhat unsurprising.  He could have added that Wallace’s rhetoric also made the beating Lewis received in Selma, Alabama at the Edmund Pettus Bridge unsurprising.  The straight line between Wallace’s rhetoric and the violence was not overblown.  Wallace was the governor of Alabama at the time both of the violent outbursts mentioned before occurred.  Indeed, in his inaugural address in 1963, Wallace famously declared, “In the name of the greatest people that have ever trod this earth, I draw the line in the dust and toss the gauntlet before the feet of tyranny and I say segregation today, segregation tomorrow, segregation forever.”

In noting the inappropriateness of the rhetoric of the McCain-Palin rhetoric, John Lewis merely suggested that stating that one’s opponent has been “palling around with terrorists,” has “voted against the troops” and would “waive the white flag of surrender in Iraq” might provoke some to violent outburst.  We all hope that Lewis is wrong, but our history suggests that his statements were hardly improper or even inaccurate.

Interestingly, Lewis could have made a much more direct comparison between Wallace and McCain.  Maybe he did not because many – particularly Southerners of certain age – may already know where I am going.  In his early days, George Wallace was a maverick.  In 1958, when he ran against John Patterson for governor of Alabama, Wallace declined an endorsement from the KKK and lost after that garnered an endorsement by the NAACP.  In the wake of the election, he is reputed to have said that he had been “outniggered” by Patterson and that he would never be “outniggered” again.  For much of his career, he stuck by that sentiment, was a maverick no more and was elected Alabama governor a number of times.  However, he later recanted and was last elected based on what is known as the Wallace coalition, which included many Alabama blacks who wanted to and did forgive Wallace.

John McCain has claimed to be a maverick, somewhat like George Wallace.  He has decided that he will do what he believes he needs to do to get elected, somewhat like George Wallace.  However, arguably unlike Wallace, McCain he has yet to recant.  Maybe because he has yet to win this most important election.  It is possible that John Lewis really was calling on McCain to be a little less like George Wallace and to be a little more like George Wallace at the same time.  Apparently, McCain did not hear the call.

Lest anyone think me unfair, here are two final points to ponder. First, Wallace appeared to see nothing improper or unchristian in his call for segregation, ending his inaugural speech saying, “And my prayer is that the Father who reigns above us will bless all the people fo this great sovereign State and nation, both white and black.”  Apparently, McCain sees nothing improper or presumably unchristian in his campaign’s rhetoric.  Second, Wallace appealed to states’ rights in supporting his views in 1963.  McCain somewhat anachronistically cited federalism – to some a current incarnation of states’ rights – to support his views in his last debate with Barack Obama.   Without a doubt, John McCain is no George Wallace.  However, that could mean different things to different people.

Every four years, Ohioans experience a new surge of interest in election law.  This year’s litigation has taken an ironic turn.  The Republican Party has run into a roadblock – the barriers to civil rights litigation erected by Republican nominees on the United States Supreme Court.

Two weeks ago, the Ohio Republican Party filed a lawsuit against Jennifer Brunner, the Democratic Ohio Secretary of State.  The suit asked a United States District Court to find that the Help America Vote Act (HAVA) requires the Secretary to compare the list of 600,000 newly registered voters against other government databases, and to investigate the voters whose names and addresses did not precisely match other government records.  If they had prevailed, the right to vote of an estimated 200,000 Ohio voters could have been challenged, and there would have been a real risk of chaos on election day.

The District Court ruled against the Secretary despite the fact that the Republican Party failed to show any evidence of voter fraud, and despite the fact that another federal statute, the National Voter Registration Act (also known as the “Motor Voter” Act), prohibits the removal of voters based on computer matching.  A 6th Circuit panel overturned the District Court, but in a highly unusual procedural move, a divided 6th Circuit issued an en banc opinion upholding the District Court’s order.  Written by Bush “43″ appointee, Judge Jeffrey Sutton, the panel opinion was, to be kind, surprising.

Prior to his appointment to the federal bench, Sutton established his legal reputation as an advocate for restricting Congress’ power to enact civil rights legislation and make civil rights enforceable against state officials.  One of Sutton’s most important victories was in the case of Alexander v. Sandoval, a case in which the Court gutted the ability of private individuals to enforce their federal rights by imposing a highly restrictive test for determining whether a federal statute creates a private right of action, thereby making the requirements set forth in the statute enforceable by private citizens against the government.  Combined with the subsequent case of Gonzaga v. Doe, the Court’s Sandoval ruling has had a devastating impact on civil rights and other public interest litigation.

Sandoval and Gonzaga pose an insurmountable barrier for any private individual, including the Ohio Republican Party, wishing to enforce the provisions of a statute like HAVA, which governs the Secretary of State’s implementation of a variety of voter registration requirements.  Yet, in his opinion, Sutton inconceivably glossed over the private right of action issue, stating “perhaps when a statute effectively benefits everyone but no one in particular, a right of action still may exist.”  Perhaps that would have been the case had Sutton not prevailed in his role as counsel for the State of Alabama in Sandoval . . . perhaps someday in the future when we have another Supreme Court . . . perhaps when a snowball no longer melts in hell! Perhaps, indeed.

Millions of recipients of public benefits, those concerned about the environment, victims of civil rights violations and others who have suffered from states’ violations of federal law would be better off if Judge Sutton had been right.  But, thanks in large part to Sutton’s efforts as a private attorney, his Sixth Circuit en banc opinion was clearly wrong.  Secretary Brunner appealed to the United States Supreme Court, which issued a 2-page per curiam opinion vacating the 6th Circuit en banc ruling on the ground that – surprise – there was no likelihood that the plaintiffs would prevail since the holdings of Sandoval and Gonzaga precluded them from having a private right of action to enforce the requirements of HAVA.  Thus, the party that appointed the judges that closed the doors of the federal courts to civil rights litigants had those same doors slammed in their face — truly a bittersweet victory for Ohio voters.

I am committed to gun control.  Yet, many years ago I learned to use a rifle and a revolver for target practice. Each time I used either weapon I was exhilarated. Merely holding the gun, fondling it, loading it, or using it generated a feeling I’ve never experienced before or after with any other artifact. This disconnect between a judgment limiting gun use and the exhilaration in merely holding a gun has more than once motivated me to try to figure out why I wanted to limit gun use when I enjoyed using guns so much. Was it caused by different parts of the brain? Did I merely have perverse feelings? I don’t have the answer.  But Colin Farrell, the actor, has given me a partial glimpse into what I always considered to be an incoherent element in my psychology or character. According to Farrell, ‘I don’t like guns much, and the reason I don’t like them is because I do like them . . . . If you put one in my hand, I feel incredibly omnipotent.  And I hate that truth.’ It seems, according to this view, that the knowledge,  no the emotional appreciation of what guns do, and do with relative ease, is a turn on. Holding, cleaning, and using a gun makes one feel to be in control, perhaps in a way nothing else makes one feel in control.  I no longer have access to guns.  Yet whenever I see one on television or in a gun shop I immediately experience the same kind of inexplicable exhilaration.  Can it be that this primordial instinct to dominate others–and its expression in the history of the United States–is what’s really behind the role guns play in American politics and constitutionalism?

According to the latest Zogby poll Obama leads McCain by a mere four points with Ralph Nader garnering two percent of likely voters.  Is it conceivable that Lord Ralph will do it again? Will he attract a sufficient number of voters in critical states to hand the election to McCain? If so, Lord Ralph will once again skew the election in favor of dangerous conservatives.  Please don’t respond that there are other candidates on the ballot who combined attract a greater number of voters than Nader. This is a bogus argument because these candidates individually or combined are unlikely to vote for Obama if they left their party now.  By contrast, Nader attracts voters who would likely vote for Obama. Don’t get me wrong.  I agree with many of Nader’s substantive views on the corporate distortion of democracy in the United States. Indeed, the military-corporate-think tank conspiracy has been waging a successful war against American democracy for at least seven decades.  The problem is Nader voters, in order to satisfy their own inflated views about just how progressive they are, must take some of the responsibility for the last eight years. Are they content to accept responsibility for the next four years also? Just consider the effect of Florida’s Naderites in 2000? Had Nader withdrawn from the race it’s almost certain that we would not be in Iraq now nor would our financial and economic institutions be near collapse.  Oh yes, perhaps if they collapse we’ll be in a position for the first time in American history to transform our authoritarian capitalist society into a democratic socialist one. Right!  Vote for Lord Ralph? No self-respecting, non-narcissistic progressive would contemplate doing so. For more on the poll click here.