Category: Rants

In an introductory American Government course the judiciary will get one chapter and about a week – two or three lectures – of attention before moving on to other topics. I hardly qualify as a master of the subject, but I try to cover one basic theme in addition to the time that must be devoted to the nuts-and-bolts of what the judiciary does and how it works. The American public and media are often critical of the courts, and particularly the most highly visible one, for being "politicized". That is, they appear to be assuming some role other than what we have been taught they are since childhood: impartial arbitrators. The idea that the Supreme Court decides whether abortion is legal or who won a presidential election is understandably disagreeable to many Americans. After all they are unelected and nearly impossible to remove, two characteristics designed to insulate them from politics. Therefore, it follows, they should keep their distance from political questions.

Considering the reality of the Court, however, it becomes clear that anyone shocked to learn that it is political has managed to overlook some fairly obvious red flags.

First, the members of the Court are chosen in a political process and carefully vetted by self-interested elected officials. From the presidents' perspective, these appointments are their legacy. For Congress, nominations are an important position-taking vote.

Second, there is no reason to believe that legal questions will have strictly legal implications. The political process creates the law, so interpreting the law has political consequences.

Third and most importantly, the Supreme Court is and always has been political because the other branches (and states, for that matter) essentially force it, through action or inaction, to resolve political questions.

This third and final point is key, because it gives rise to the one legitimate complaint that exists on this subject: that the Court is becoming more political over time. Simply put, there is a good argument to be made that the Supreme Court is resolving a greater number of political issues because the actual political process – Congress and state legislatures, presidents and governors – refuses to do so. Our elected officials, rather than make decisions about hot button issues and risk infuriating half of their constituents, willingly punt to the guys who can't be punished on Election Day.

Consider the choice facing members of Congress. One option is to introduce a bill about some controversial topic – abortion, gay marriage, healthcare reform, etc.

– and then go on record for or against it. Another is to tread water, maintain the status quo, talk out of both sides of one's mouth on the issue, and wait for the Supreme Court to issue a decision that may end up being unpopular.

Rational self-interest suggests that the second option is superior for most elected officials. Consider the Republican House majority after 2010, which could very well have debated and voted on one of the "repeal and replace" bills for "Obamacare" that candidates talked about so much during the election.
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In practice, and recognizing how popular some (but not all) parts of the law are among the public, they decided to wait and let the Supreme Court strike it down. Obviously that strategy failed, although tomorrow we'll talk about how they manage to turn this failure into an asset and undermine the efficacy of our government in the process.

It is popular in recent years to write about the failure of leadership in today's political class, often by resorting to sophomoric references to "common sense" and "guts" (Ed Rendell's ridiculous A Nation of Wusses: How America's Leaders Lost the Guts to Make Us Great or any of Glenn Beck's pablum come to mind). Perhaps it is a lack of resolve; perhaps it is simply a rational response to the incentives laid out in our elections, particularly the financial incentive to placate the greatest number of interest groups to the greatest possible extent. Regardless, the Federal bench and the Supreme Court in particular resolve contentious political questions for an uncomplicated reason: someone has to, and the lawmakers won't.

Stop me if you've heard this one before: a perfectly ordinary summer heat wave strikes across the U.

S. and millions of people are without power at the worst possible time. It's something of an annual ritual at this point.

Americans sure are "frustrated" at the thought of experiencing triple-digit temperatures without basic modern conveniences like ceiling fans and air conditioning* but as usual they do not appear to connect the dots. The fundamental problem is that like so much of our infrastructure, the American power grid belongs in decrepit. We have first world prices and a third world grid. The outdated fossil fuel power generating stations look downright modern compared to the transmission system. So Americans – Woo! We're #1! U-S-A! U-S-A! – get to enjoy brown- and blackouts during the height of summer. You know, blackouts; like they have in Uzbekistan and Angola. But I'm sure there's nothing wrong with our grid – the power must be out because the lazy union linemen aren't fixing it. What's beige and sleeps four? The ComEd truck, amirite people? Ha!

I never had high hopes for the current President, but there was some talk during the 2008 election and transitional period about a "New New Deal" type stimulus in which billions would be devoted to the long overdue overhaul of our nation's crumbling infrastructure. It never fails to amaze me how easily most Americans can reconcile our wealth and self appointed greatest-country-ever status with the overall shabbiness of so much of their surroundings – the collapsing bridges, the antique power grid, the slowest-in-the-Western-world broadband internet infrastructure, the 19th Century rail system, the two generations old cellular network, the old (and increasingly privatized) water supply, and so on. Of course it didn't happen. As usual, the only thing we managed to do is fix and repave some highways. And we don't even do a very good job of that.

A summer power outage is neither unprecedented nor unexpected, but it is a very visible reminder of the way that our country as a whole is starting to reflect the saddest aspects of its crumbling cities – the sense that this place was shiny and new in the 1940s and 1950s and it has been all downhill since then. We used to be able to handle ideas like massive government projects (rural electrification, the Interstate Highway System, etc.) to improve our standard of living. Now we sit around waiting for Private Sector Santa to save us; he never quite gets around to it. The idea that we could publicly employ millions of people to make the country less like your grandmother's 100 year old house – the hoarder, not the sweet one with all the doilies – simply doesn't fly before. Even if one rejects Keynesian economics, you'd think there would be some appeal to the idea of not living in a shit hole.

I underestimate our capacity for self-loathing sometimes. Let's start a pool for the first internet hack to call this "Obama's Blackout", with bonus points for naming the first to make it explicitly racist.
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*How is Willis Carrier's birthday not a state holiday in the former Confederacy and the Southwest?

His defenders have always described Justice Scalia as someone with whom you will not always agree but who has a deep, abiding commitment to the Constitution and a powerhouse intellect with which to defend it. The man is neither an idiot nor a mere partisan, the argument goes, and therefore he commands the respect of his political opponents. Scalia's detractors have argued that he is a partisan hack who speaks of the Constitution and the intent of its authors but is perfectly willing to go hog wild making things up if it suits his predetermined conclusion. It is possible that both sides are correct here. Let us give him the benefit of doubt and agree, for the sake of argument, that in his younger days the Judge was a crusader for a strict reading of the Constitution. Over time, though, as age and the insulated cocoon of the Supreme Court altered his perspective and aggrandized his self-image, he became exactly what his critics said he was all along.

I believe that Scalia's tipping point was his dissent in Lawrence v. Texas, a patronizing yet still legally grounded slippery slope argument about the validity of laws based on a state interest in "morality". Since then it has been all downhill, with each successive opinion reading more like a letter to the editor written in the voice of Archie Bunker. He invokes bizarrely torturous legal "logic" – as we shall see in a moment – to give the appearance of intellectual weight to what is essentially his opinion. Not his legal opinion, mind you, but his personal convictions about the way society, government, and the political process should be. See some of my previous complaints about the fallacy of "original intent" as a mode of constitutional interpretation in Scalia's hands here and here.

On Monday, Scalia finally jumped the shark. He has become such a naked reactionary and partisan that even mainstream commentators are becoming more reluctant to laud his brilliance and fair-minded approach to jurisprudence. In Arizona v. US – the now-infamous SB1070 immigration law case – Scalia offers an "interpretation" of state and national powers so ridiculous that a college freshman would be forced to re-take Intro to American Government for submitting it as a final exam answer.

Some quick background: the Constitution gives the national government, and specifically Congress, complete power over issues of immigration and citizenship. If Congress wants to pass a law tomorrow sealing our borders completely or throwing them open to grant citizenship to anyone who can get here by Friday, it can do so. As with all laws passed in Congress, enforcement is delegated to the Executive branch. Congress can limit the president's discretion with respect to enforcement, or it may choose not to. And of course the Supremacy Clause guarantees that all conflicts between state and national laws are decided in favor of the latter.
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Scalia's argument, however, recognizes none of these Constitution 101 For Dummies facts. He argues, if I understand his gibberish correctly, as follows: Barack Obama is not doing a good enough job of enforcing immigration laws.

In fact, he is willfully degrading their enforcement by deferring removal of foreign non-residents detained in the justice system in this country. Therefore the State of Arizona can step in and enforce immigration laws and policies how it chooses, as befits a sovereign state.
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To deny them that power would be to deny their sovereignty, and there exists some amorphous "threshold" of Executive enforcement at which states can choose to enforce the laws of Congress as they wish. States, being sovereign, can choose to enact more restrictive immigration laws than Congress as long as their laws do not conflict with Federal laws. He uses a plethora of two century old examples to argue that states have precedent to set their own immigration policy and that the power is not exclusively vested in Congress.

Forgive me for paraphrasing. If I am being unfair to his argument, please let me know.

The Immigration and Nationality Act gives the president the power to enforce immigration laws – including the canceling or deferral of deportation, which so vexes Scalia – as he chooses based on the resources available to him. No law is enforced with 100% efficiency. More importantly, Congress could have prevented the president from doing these things by limiting his discretion in the legislation…but it didn't. Congress left it essentially open ended. More importantly, however, the three provisions of the Arizona law that were struck down all duplicated an existing Federal law. As the decision reads, Federal law:

specifies categories ofaliens who are ineligible to be admitted to the United States, 8 U. S. C. §1182; requires aliens to register with the Federal Government and to carry proof of status, §§1304(e), 1306(a); imposes sanctions on employers who hire unauthorized workers, §1324a; and specifies which aliens may be removed and the procedures for doing so, see §1227.

While it is clear that something that is against Federal law may also be against a concurrent state law, that logic applies if and only if the relevant power is shared by states and Congress. That Congress has complete and supreme power over issues of immigration and citizenship is made clear in several clauses of the Constitution and 200 years of jurisprudence. The majority opinion does an excellent job of summarizing this. There does not appear to be a vast number of legal scholars aside from Scalia, his buddy Clarence, and Jan Brewer who fail to recognize that, "the States are precluded from regulating conduct in a field that Congress, acting within its proper authority, has determined must be regulated by its exclusive governance."

To Scalia, however, this is all very simple – the President isn't doing a good enough job, according to "the citizens of Arizona." Therefore, screw the Supremacy Clause and the fact that immigration is, outside of the contorted logic in the dissent, an exclusively Federal power not shared with the states. Anton Likes It, therefore somehow it is constitutional. Thousands of words are offered to create the appearance of a complex, reasoned argument (albeit one filled with petty, political potshots at the President) but nowhere does it address the basic reality of the immigration issue except by fiat – sure, the Constitution, precedent, and the laws of Congress make clear that it is an exclusively national issue, but it, like, totally isn't. Because this one time in 1814…..

We talk all the time about the level of ignorance Americans bring to the table with respect to our major social, political, and economic problems. The problems that result are obvious – we will never find our way toward a sane economic policy when Americans overwhelmingly believe that they are egregiously overtaxed and that 50% of the budget is spent on "welfare" and foreign aid. For the most part, our lack of information is our own fault and stems from a fundamental lack of interest in politics (or, arguably, an inability to tolerate how awful and unrepresentative the political process is). But the media must bear some share of the responsibility, given how hard they work to make sure that you are able to ignore reality even while they're reporting on it.
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One of the best examples is a spate of stories in 2003 about the use of the "Barney and Friends" theme song – undoubtedly a most cloying, nerve shattering piece of music – being used by American defense and intelligence services to facilitate the interrogation of detainees and prisoners in Iraq and Afghanistan. A variety of music, mostly heavy metal but also including poor Barney, would be played continuously and at ear splitting volume to disrupt the sleep and sanity of people housed primarily in cages or metal shipping containers. In the U.S., morning talk shows and evening Talking Head shows alike got several days of cheap laughs out of it. "As all of you parents out there already know," Chip would say to Mindy, "being forced to listen to the Barney song certainly qualifies as torture!" Ha ha ha. Hilarity all around.

The thing is, uninterrupted exposure to music played at jet engine volume for days on end is effectively a form of torture, or at the very least in the gray area between torture and interrogation.
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It has been proven to have serious short- and long-term psychological effects and should hardly be taken lightly. But the media were more than happy to make a joke out of it for you. The cold reality – "Your government is torturing people." – is glossed over and turned into a throwaway laugh line – "If you had to listen to Barney, you'd go crazy too!
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Am I right, folks?" No need to think about the issue more seriously, or anymore at all. Here's Tom with Sports.

Over the past two weeks we have seen dozens of stories about the real life "zombie apocalypse", i.
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e. one guy eating another guy's face off in Miami. The story is presented in flawless Hearst style, blending the man-bites-dog and news-of-the-weird formats. You kids like the zombie and vampire shit, right? You parents are scared of black people and drugs, right? Well then you're gonna love this! This dude got his fuckin' face eaten off! It's like Walking Dead or something! Ha!

Bizarre acts of violence like this, perpetrated by people who are obviously disturbed, speak to the underlying reality that we have a staggering number of mentally ill people wandering around in this society with a deteriorating mental health care system and social safety net in place to deal with them. Since the 1980s, when state mental hospitals were emptied out with patients given little more than a bus ticket to the nearest city with a homeless shelter, we have devoted progressively fewer resources to what should be a very obvious social problem. People getting burned out on hard drugs, sleeping on a bridge in the middle of the afternoon (as the "zombie" victim was), or wandering the streets in a state of psychosis are not laughing matters here in reality. But when something happens to prevent us from completely ignoring these social problems, we have to find some way to make a joke or meme out of them to shield ourselves from having to take it seriously.

Matt Taibbi has a decent write-up of the Senate Banking Committee's mass fellatio testimony from Chase CEO Jamie Dimon, which highlights the continued evolution of our government from a functional if unwieldy public sector to an expensive group of administrative assistants to the financial industry. Dragging some hapless public figure before the Senate to testify uncomfortably for the cameras is a timeless political ritual in the U.S. However, in the past it was done primarily for the purpose of tearing the witness a new asshole with the greatest possible fanfare for political gain – Look at Senator Smith handing it to those crooked fat cats! Look at how he pounded the table and shouted "Sir, I demand answers!" Not even popular public figures were off limits; recall Howard Hughes being dragged before the War Investigating Committee in 1947 to account for the lavish War Department contracts his companies had received over the previous decade. Today our elected officials sit listlessly through such hearings with the Captains of Industry, scarcely able to whimper out a few softball questions before recalling that children are best seen but not heard.

There are two obvious explanations here, both of which reflect a political process so completely broken that we can safely confirm a return to the 1890s at this point. One, quite obviously, is that the Senators have been bought off by the financial interests they are supposed to regulate. Remember, the recent testimony took place before the Senate Banking Committee – a group of people that at least in theory is supposed to have a great interest in the issue. Instead the Senators' intent appeared to be to let Dimon speak virtually unchallenged for over an hour, to pick his mighty brain for ideas on how to do their job of regulating his behemoth company. The second explanation is much more disturbing – that the Senators no longer have any political points to score from a public Asshole Tearing of a man who is the modern textbook definition of a Wall Street Tycoon. In fact I suspect that many of them would suffer political repercussions (GOP primary challengers) if they did anything beyond occasionally glancing up at Dimon and asking him if they're doing it right. Don't worry, Sen. Corker. He'll give you the rhetorical head tap if you're not up to snuff.

I rarely say "I'm surprised" by the political world as anything other than a rhetorical device, but this is the real deal. How can it be unpopular to take rhetorical shots at the 21st Century equivalent of the Monopoly Man or J.P. Morgan? How and to whom is this a sympathetic figure? That the Senators can plausibly think "My constituents are gonna be angry if I'm too hard on this guy" is the least subtle sign that Gilded Age politics have returned in full force. That they don't even put up the pretense of being tough on the cartoon villain banking CEO – reaming him for the cameras and then kissing his ass behind closed doors with hearty backslaps and plenty of winking; "Sorry you had to sit through that song and dance, your majesty!" – reveals that they know exactly who the real "constituents" are. Graft and corruption collapse into themselves when those involved get so brazen that they conduct their crimes out in the open because they no longer fear punishment enough to bother with a cover-up. Yet rather than collapsing under a tidal wave of reform, Congress manages to continue getting worse. Each new election thins out more veterans with half of a brain and brings in more Ron Johnson "pro-business" types who don't know their mouths from their assholes.

That anyone could watch such a spectacle as the Great Dimon Gangbang of '12 and not be disgusted is hard for me to believe. Luckily for the bottoms/Senators involved, most Americans appear to have given up so completely on the idea of a functional government representing their interests that no one really notices anymore. Between the 800 cable channels and the number of Americans working two jobs just to keep afloat, most of us are sufficiently distracted to guarantee the Senators free reign to worship their master on camera.

Having always been a fan of the Dying Earth subgenre of apocalyptic and post-apocalyptic fiction, I am surprised at how emphatically I am not a fan of the Dying City subgenre of non-fiction. By now we have all seen enough pictures of Rust Belt urban decay, prairies springing up through concrete, and abandoned buildings to choke a camel. Having not been to the city in nearly seven years, I nonetheless feel confident that I could identify most of Detroit's derelict landmarks (Look, it's the train station! Look, it's that old Packard factory!) simply through sheer repetition and their omnipresence as stock photos (and lazy narrative devices) in that Feature Story on the death of a city that we have all read so many times. Maybe as a native Midwesterner this tale of urban decay hits too close to home for me to enjoy it as though I am an impersonal observer or a hipster faux-anthropologist. Or maybe it is a peephole into a world of intertwined social, political, cultural, and economic problems so overwhelming and depressing that even I can't handle thinking about them for too long.

Cities like Cleveland and Detroit appear to have entered the terminal stage of their decline, a self-reinforcing cycle of population loss, crime, blight, and white flight that sends cities into a torpor from which they do not recover. Detroit is resorting to turning off the streetlights in an attempt to auto-amputate the most thinly populated parts of the city – a not-so-subtle way of doing what eminent domain and rampant decay cannot, namely to force the few remaining residents out of neighborhoods that are 75% vacant or more. Detroit gets the most attention but certainly it is not alone. This is a problem everywhere, particularly in the large, older cities of the Midwest and Northeast but also in the logging and mining towns of the West, the depopulated rural South, and points in between. Yet we find it most compelling to watch the big, once-magnificent cities crumble.

What is happening to the Detroits and Clevelands reveals two particularly jarring realities about America and Americans. First, our cities are not built to last. Look at how quickly these things go to rot. During the height of the housing boom, we saw entire developments in places like Florida and Arizona – remember, we're talking about new housing here – rendered uninhabitable almost immediately upon being neglected. Suburban housing is designed by speculators to look pretty but at its core is slapped together in great haste and is built to last just long enough for the developer to cash his checks. The landmarks of a city like Detroit, not to mention its housing, retail, infrastructure, and so on, are remarkably frail as well. A big urban train station might look mighty and imposing, but it takes just a few short years to turn them into eyesores of dubious structural integrity.

The rapid disintegration of neglected cities leads into the second reality: Americans treat cities as disposable, much as we treat so many things in our lives. Can you imagine the British letting London rot? Can you picture the French saying "Ah, fuck it, let's move to the suburbs" and abandoning Paris? Would the Russians walk away from Moscow? Of course they wouldn't. In other countries, the government, people, and private sector work together to try to save major cities, even past the point at which it makes sense to do so. Here, we just defer to the unerring logic of the Free Market and build another subdivision. Oh, people are leaving your city? Well then it must suck. If it didn't suck people would stay there. In this way we treat cities like businesses – Come to think of it, what don't we treat like a business? – and the ones that fail, well, I guess they couldn't hack it. Adios.

Why do other countries fight to save their cities while we abandon them for illogical, thrown-together suburbs that we will also end up abandoning? There are a few theories we can consider. Perhaps the Eurasian sense of history simply runs deeper – the oldest American cities are about two centuries old, and in many cases much younger. Around the world the history of major cities is more likely to be measured in thousands of years. Perhaps Americans have done too much rhapsodizing about the yeoman farmer and the rural landscape to develop a true attachment to our urban centers. Perhaps we honestly believe, despite all evidence to the contrary, that sprawling suburbs laced with strip malls and highways that scar the landscape like acne genuinely are a better mode of living.

Those theories are plausible. But I think it boils down, as it so often does, to our hatred of all things dark and poor.

When cities begin to lose some of their luster – or, say, when the government invests trillions dollars into a highway system that quickly whisks people from bedroom suburbs to urban employment and back, not to mention trillions more invested in land development and home mortgage lending – the first to flee are those most able to do so. As people with the means to move to newer, more expensive, and less "troubled" communities, the city ends up disproportionately populated by people who can't move…either due to poverty or due to those shiny new suburban communities' habit of keeping out the dark-skinned by any means necessary. As the problems of the cities intensify, the will of people beyond their borders to intervene disappears. "They" are just animals anyway. Look at how They ruined that once beautiful city.

Maybe if our cities had more history or a more prominent place in our cultural fabric we would fight for them rather than treating them like a soiled disposable diaper. Or maybe we don't care about them for the usual reasons that we use to identify who the government and our society should and should not fight to protect. When we redefine the city as places for the Negroes, the unwashed poor, the immigrants with their barbarian tongues, "union thugs", and meddling liberals, it does not take a very thorough understanding of American politics and society to recognize why we are letting them rot, and in some cases fighting to accelerate the process, rather than fighting to save them.

Of all the disheartening aspects of our modern public discourse, nothing saddens me as consistently as listening to people who are proud of their own ignorance. I'm not exactly a strong proponent of a Japan-style Shame Society, but being ignorant is one of those situations in which a little shame can be a valuable tool for self-improvement. You can only watch someone proudly assert that the world is 6,000 years old and Science is wrong so many times before hope for the human condition begins to fade. Ignorance is an easy problem to overcome if an individual is willing to learn. If not, though, it only gets worse.

One of the jarring things about living in the South has been seeing how proud the civic leaders are of things for which they ought to feel embarrassed. They love to boast, for example, about the rapidly growing population and industrialization in places like South Carolina, Mississippi, Alabama, and Georgia. Look at all these shiny new factories! Take that, Detroit! Victory is ours!

Of course the reason that the Bible Belt is the new Auto Belt (among other major industries) is that these states are willing to hand employers billions in tax abatement, free infrastructure upgrades, and other "incentives" – in other words, we're winning the race to the bottom.
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And while it is spoken of only in euphemistic terms like "motivated workforce" or "right to work state", one of the big draws is that unemployment is high, the workforce is docile in the extreme, and people will work for pretty much anything. State and local politicians, not to mention the population itself, crow about the Business Friendly environment, which essentially means that people are ready to stab each other to get a $12/hr factory job, employees won't tell anyone if they get hurt on the job, and the state won't do anything about it even if they do. What employer doesn't cherish being able to use a line as effective as, "If you're not happy, I've got 20,000 people on file who want your job.
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"

That's not an exaggeration. When I see a headline like "20,000 apply for 877 Alabama Hyundai plant jobs" I almost have to feel bad for said Alabamans on account of the fact that they elect people who see this as a victory for the state. Alabama lures Hyundai, much as Georgia lured Kia and South Carolina lured BMW, using the same techniques that bring manufacturing to Mexico from the US, to Eastern Europe from Western, and to China and Southeast Asia from the whole world.

So congratulations, Alabama. You're the Bangladesh of the United States.

Your population is poorer, more desperate, and less assertive than anywhere else in the country.

That's quite an accomplishment.

Maybe it's time to update the state flags again; I'm thinking a job applicant bending over with his pants around his ankles and a big, inviting grin might be appropriate.