Legal Fiction

__________

I'm back from vacation, so regular posting will resume shortly (probably tomorrow). By the way, vacations are great - Americans really should take more of them. I learned a great deal from mine. For example, it's true - Americans are really really fat. Well over half the men I saw at the beach and at my hotel were significantly overweight. I was also rather amazed at the number of couples that consisted of fat, unattractive men and thin, attractive women. I seem to remember this topic coming up a few months ago on the blogosphere - I wish I had paid more attention. Anyway, the vacation was also a source of inspiration for me. I came up with a new theory on the proper interpretation of the Commerce Clause. Basically, I support any interpretation that would allow Congress to ban all Jimmy Buffett songs within 50 miles of any coastline (or at the very least "Brown-Eyed Girl").

Seriously though, I think it helped me a great deal to just get away for a week. I completely isolated myself from all news - I only watched the Olympics. Well, I did spend 5 minutes on the Internet Monday night and saw that the Swift Boat stuff was still raging - and it almost ruined my night (though it vindicated my First Law of the Press, which states: a given topic's importance is inversely proportional to the amount of press coverage devoted to it). I didn't read anything else after that until today.

But the break was needed, and I think the blog will be better because of it. It's really easy to get lost in the day-to-day news cycles. I think it's important for all people - especially bloggers - to step back periodically and assess the big picture. I also think I have more interesting things to say when I have given myself some time to chew over and wrestle with an idea - rather than firing off the first thought I have. In short, reflection is good. I realize, though, that reflection is damn near impossible given the demands of everyday life - but it's still something for which people (especially writers, bloggers, pundits, etc.) should try to set aside some time. Consider it as quiet time with the Muse.

On that note, here's what I've been thinking about over the past week, and what I will be writing about in the days and weeks to come. First, I'm working on a longer non-snarky post that outlines my substantive disagreements with the Bush administration. I'll hopefully have that up by Sunday. Second, after reading Orhan Pamuk's Snow (reviewed here and here), I'm beginning to think that the containment of (and struggle with) "political Islam" may be the most important challenge of our generation. I should add that Snow is awesome - I would consider it must-reading for anyone wanting an insight into the struggle between modernism and Islamic fundamentalism in the Middle East (it's a novel - and I suspect this guy is on his way to some major awards). I'm going to be writing a lot about this in the days to come (beginning with some thoughts on Snow). Essentially, I think the whole concept of a "war on terror" completely misses the true nature of the conflict we are engaged in. We are not fighting an enemy of civilization - we are fighting for the soul of the Middle East. There are over a billion Muslims in the Middle East (and Asia). And we are losing them to radical fundamentalists. As I said, I have a lot to say about this, so I'll save it for later.

Finally, I'm debating whether I should try to be a bit more experimental on this blog. For example, instead of firing off unrelated posts each day, I may (at times) focus my efforts on a single topic for days, sort of like a mini-series. It's similar to the idea of creating an album, as opposed to a collection of songs. Second, when I first started this blog, I imagined that I would often write short stories (very short) that would include heavy doses of political or legal satire. That's why I called it Legal Fiction. It hasn't turned out that way, and perhaps for the better. I have no idea whether I'll actually start doing this from time to time, but just don't get weirded out if I do. And if they suck, I'll stop.

The basic point is that I want to try new things and not settle into a fixed pattern of writing. A lot of blogs are in the "I Wanna Hold Your Hand" stage, but few have moved on to "Sgt. Pepper's" in that they aren't "growing" or pushing beyond the boundaries of their initial format. That's why I really like Fafblog - I think it's a pretty innovative expansion of the "genre," so to speak (as is Jesus' General). Essentially, I want to try new things from time to time in the hopes of pushing Legal Fiction into its Rubber Soul period (and yes, I'm very aware that I should be shot for analogizing any little part of this blog to the Beatles). But don't get me wrong, I'm not going to drastically change anything. It's just a matter of introducing some new stuff every now and then to spice things up (which I won't do if I think the new stuff stinks).

So, that's it from the administrative front. Regular blogging resumes Sunday.

_________

Ok - I'm outta here. I'll be back next Friday or Saturday. I'll hope you'll come back then. Also, if any of you feel so inclined, here's a link to the Washington Post "blog contest." I'm nominating Instapundit.

Also, I should note that Fafblog is fast becoming my favorite blog.

___________

The NYT returned to being a real paper and laid the smack down on the Swift Boat Vets this morning. I thought it was a pretty damning article so I’m not sure why other liberal bloggers don’t seem to agree. In particular, Matt Yglesias says, “The article's lede -- the only part that many readers will actually process -- is devoted to setting up the fact that the Swift vets controversy exists, not to debunking their charges.” Perhaps I’m missing something – because I thought the article did quite a bit of debunking, and the lede seems OK to me. Then again, I’ve never agreed that this whole mess will be a “net negative” for Kerry. I think it helps Kerry if the fight is over Vietnam – especially if the accusations turned out to be Rove-funded lies, which they are. I realize, though, that I must distinguish between reality, and reality as perceived by certain swing groups – who are also apparently susceptible to sappy 9/11 exploitation. But still, it just doesn’t seem possible that a majority of sentient Americans who are not Glenn Reynolds wouldn’t see the Swift Boat Vet stuff for what it was. Anyway, everyone should read the whole article. I was impressed with it. And I have a sort of laundry list of reactions to it.

First, I think this is exactly the type of reporting the blogosphere has been asking for – which is yet another reason why I found Atrios’s and Tapped’s reactions so curious. It’s unrealistic and inappropriate to criticize the press merely for not advocating pro-Democrat or anti-Republican positions. That’s not what I’m asking the press to do. What I do want, though, is for the press to punish those who lie – from either party. When there are objective answers to questions or controversies, let us know. That’s all I’m asking – call a spade a spade. When faced with an obvious lie that is objectively false, the press should abandon the “he said/she said” template. That’s exactly what happened in this article. The Swift Boat Vets said some things, and the reporters dug deeper to show the contradictions and inconsistencies. We should be praising this type of reporting.

Second, the most damning part of the article (in my opinion) was the link to Rove and Bush – which explains why Bush and Move-It-Forward Scotty wouldn’t condemn the ad:

Records show that the group received the bulk of its initial financing from two men with ties to the president and his family - one a longtime political associate of Mr. Rove's, the other a trustee of the foundation for Mr. Bush's father's presidential library. A Texas publicist who once helped prepare Mr. Bush's father for his debate when he was running for vice president provided them with strategic advice. And the group's television commercial was produced by the same team that made the devastating ad mocking Michael S. Dukakis in an oversized tank helmet when he and Mr. Bush's father faced off in the 1988 presidential election.

I’m sorry, but that’s huge. Has this been reported before? I had never seen it. Kevin Drum at least thought it was new. Anyway, I remember that in the Civil War, offensive charges by one side or the other very often came back to bite the attackers. For example, one side would go on the attack, but in doing so, would become disorganized and open themselves up to a counter-offensive (which was often successful). I wonder if that might be possible here. In their zeal to attack Kerry, it looks like the Rove machine was a little sloppy. I mean, just look at this graphic – their fingerprints are ALL OVER this mess. They seem to have left themselves open to a counter-offensive – especially considering that the vets’ claims are blatant lies. I should add that the vets themselves seem like little more than hapless pawns in a much bigger game – though that doesn’t excuse their behavior.

Third, I think the article does a good job of showing the underside of the modern-day GOP – or at least its current leadership. Look closely – the NYT has shined a light into the shadows. No doubt, the bugs will scurry back into the darkness, but we still got a very good glimpse of how things really work behind the scenes. In reality, the GOP under Bush has two faces – like Two-Face in Batman. The one face is its public face which speaks of religious values, liberal tyranny, and “real” Americans. The other face, though, is hidden from the public. Let’s call it the Tom DeLay face. That’s the face of a spiteful group of individuals who are willing to do whatever is necessary to personally destroy another human being. It happened to Clinton. It happened to McCain. And now they’re trying to do it to Kerry. I mean, think about what we’re seeing here. The bulk of the financing came from a longtime Rove associate and a trustee of Daddy Bush’s presidential library. Rove clearly knew about it. And the fact that Drudge and Fox News have given so much coverage to the lies is another indication of the level of coordination involved here behind the scenes. Once again, I’m wondering where have all the honest conservatives gone? The leadership of your party has become corrupt. The only way to punish them is to vote them out. Then, the GOP will be leaderless, and a new group of real, non-corrupt conservatives can take the wheel. Sometimes you have to lose to win.

To on-the-fence moderates, take a good look. Take a good long look at what you’re seeing – and think about what you’re seeing. I mean, I will give Rove credit for having gall. Bush didn’t even serve, and probably didn’t fulfill his National Guard duties. Kerry of course did serve, and showed great bravery under fire. So, one might think that Bush would shy away from attacking him on this ground. But no – instead, Rove and pals chose this very issue upon which to apply the “Clinton method.” They funded and supported a group of veterans (angry about Kerry’s protests, no doubt) who lied – egregiously – about Kerry’s actions in combat. That my friends is chutzpah. We have the organization surrounding a draft dodger subsidizing an effort to accuse Kerry of lying and of inflicting wounds on himself during the combat he volunteered for. I think I would be more than a little upset if I were a veteran. Shit, I heard Brit Hume talking about medal inflation in Vietnam last night. Can you imagine if a Democrat brought that up about some Republican’s combat record?

All in all, it’s really simple. These are bad people. I’m not talking about conservatives – I’m talking about the network of individuals around Bush and their allies in the media. The people surrounding Bush – those who do his dirty work – are not moral, are not conservative, and do not deserve to remain in power. This is not hard-nosed politics, which I respect. This is coordinated lying and smearing about a veteran’s service to his country. You’ll get a good sense of which conservative blogs/pundits/etc. are respectable by noting how many continue to do all they can to defend the Swift Boat Vets even in the face of overwhelming evidence that their book is a product of orchestrated lies. I hope the press keeps hammering on this.

Oh yeah, and the pie-on-your-face award goes to Brent of Southern Appeal, who wrote the following a while back:

Why haven't we seen any hard hitting investigations of Mr. O'Neill or the other members of the Swift Boat Veterans for Truth organization by the NYT or others? It has to be that they know what they will find, and that is that Kerry truly is Unfit for Command.

I bet you wish you could take that one back, eh Brent?

[Update: Well, maybe Americans aren't as sentient as I thought. The University of Maryland (PIPA) has released a new poll showing that large numbers of Americans remain grossly uninformed about some of the most basic issues surrounding the Iraq war - though the numbers are declining. Anyway, you can get the pdf here. Here are some of the highlights.

First, 50% of Americans (fifty percent!) believe that Iraq was either involved in 9/11 (15%) or "substantially supported" al Qaeda (35%). Everyone else said that Iraq had a "few" al Qaeda contacts (32%) or no connection (10%).

As for WMDs, Americans believe that right before the war, Iraq: (1) had actual WMDs (35%); (2) had no WMDs, but had a major program for developing them (19%); (3) had limited activities (34%); or (4) had no activities (10%).

The report added:

Only 44% of respondents knew that the Senate Intelligence Committee concluded that before the war Iraq did not have WMD or a major WMD program, and only 47% knew that the 9/11 Commission concluded that Iraq did not give substantial support to al Qaeda.

But Good God, don't they know that Kerry said he was in Cambodia on Christmas twenty years ago, when he was actually there in January?!? That clearly shows that he can't be trusted. It would be different if he had been dishonest about, say, justifications for going to war (WMDs or connections with al Qaeda) before and especially after the war. I watched a woman with her arm blown off in Iraq on CNN this morning explaining how she could no longer fix her hair or put a bra on. But I'm sure that she will agree that the Christmas embellishment was a far, far, more egregious dishonesty. Especially when you consider that Kerry wasn't even there until January, and he said he was there at Christmas.]

__________

Today I finish up my clerkship. Because I'm preparing to go on vacation and then move to DC, I thought I would give everyone a brief update of what to expect in the near future.

First, I'll be going on vacation this weekend and I'm taking a week off from the blogosphere. I'll probably post about something that annoys me tomorrow after I read the papers, but after that, I'll be outta here until at least a week from Saturday. I will of course be back before Sauron gathers his forces in New York.

Second, now that I am off the government payroll, I could start campaigning and fundraising for specific candidates. I'm not going to do that though - for now. While I'm certainly anti-Bush, I'm not exactly thrilled with the Democratic Party either. The cowardice in 2002 and 2003 left a very bad taste in my mouth - and America, its military, and the world are paying a price because the Democrats could not stop Bush, or at the very least, demand competent execution of the war. The world is more dangerous, and progress in the Middle East has been set back by a generation, as we have strengthened the fundamentalists' hands all across the region. Besides, I prefer to be an independent pundit, not a party advocate. But don't get me wrong, I would love to see a Democratic Congress and a Kerry presidency. Stopping moving backwards would be progress at this point, even if a Kerry administration couldn't enact much progressive legislation with the anchor of the GOP Congress around its neck. If I do wade into fundraising, it will only be against specific candidates like Tom DeLay or Marilyn Musgrave - if it appears the challengers have a shot this fall. But boy oh boy - I can't wait for the 2006 Democratic Senate primary in Connecticut.

Third, I wanted to leave everyone with a long, substantive post on why I will support Kerry this fall - but I'm going to wait until I get back. My support for Kerry exists until November 2, and after that, it must be re-earned (and I'm sure that will keep him up at night). I support Kerry only because I'm anti-Bush. But, I really want to devote some time to this post - I think it's important to articulate in great detail all the reasons why I oppose this administration. I want to get beyond snark, and focus on substance. So, I needed some time to gather my thoughts.

Fourth, after the Republican convention, I'm not sure what my schedule will look like. I don't start work until October, so I'll be bumming around DC for a month. Posting could be a little hectic depending on how quickly I get moved in - but I'll let you know ahead of time. As for the new job and its effect on the blog, I'll write about that later this fall.

Fifth, Carly Patterson is my new hero. She is an absolute badass. I mean, I couldn't even walk across the balance beam. I never dreamed I would have watched gymnastics so closely this summer. It's awesome. In one second - one second! - you can lose a lifetime's worth of training and effort. It's cruel, but I guess the cruelty and pure chance give it its beauty. Oh yeah, and the Olympics should be in Athens every year.

__________

Plainsman - one of Southern Appeal's best bloggers - has gone solo. If you want to read someone who will challenge your views, as opposed to Bush hackery, he's your guy. He also brings a paleo-con perspective that is missing in the conservative media/blogosphere - along with a knowledge of guns and fine wine. Anyway, I'd encourage everyone to check him out.

[Update: I think I'm going to make this a more regular feature. I remember how much I appreciated getting mentioned by other blogs when I just got started (and it's tough). So if and when you start a new blog, please email me and let me know - maybe I'll aggregate them on Saturdays or something.]

___________

As Dick Morris and I predicted, the Swift Boat ad is really starting to backfire. First, we learn (on page 1 of the Post) that Larry Thurlow lied when he swore in an affidavit that there was no enemy fire on the day Kerry saved Rassmann's life. As it turns out, Thurlow's own military records contradict him (but I'm sure it was a liberal plot - you know, lying about Thurlow's record thirty years earlier in preparation for the 2004 election).

But the Swift Boat vets are not the point. The point is that the ad puts Bush on the defensive and it puts Vietnam - Kerry's strongest card - front and center. First, Bush is going to be hounded to condemn the ad, especially in light of today's Post article. Second, the papers are going to be full of excerpts like these:

Members of Kerry's crew have come to his defense, as has Rassmann, the Special Forces officer whom he fished from the river. Rassmann says he has vivid memories of being fired at from both banks after he fell into the river and as Kerry came to his rescue.

Third, the ad gives Kerry a chance to fire at Bush on the subject of Vietnam, which puts the battle on Kerry-friendly terrain. Just look at the strong words Kerry used today (via the Post):

Sen. John Kerry accused President Bush on Thursday of relying on front groups to challenge his record of valor in Vietnam, asserting, "He wants them to do his dirty work." Fighting back, Kerry said if Bush wants to "have a debate about our service in Vietnam, here is my answer: 'Bring it on.'" Bush served stateside in the Texas Air National Guard during the war.

Ouch. This is just going to get better and better as Bush stubbornly continues not to condemn the ad. And kudos to the Post - if the press had been this vigilant in investigating the claims (and financing) of the anti-Clinton groups, then perhaps we could have been spared from the impeachment debacle.

[Update: Oh yeah, the eternal defender of truth, Glenn "They-Were-Asking-for-the-Genocide" Reynolds, has responded to the Post article. Here's his reaction: "WHAT DOES IT TAKE TO GET THE POST LOOKING AT MILITARY RECORDS? A story that's bad for Kerry's critics, I guess. No mention at all of the Cambodia story, though, in which Kerry's critics have been proved right -- and which the Post has ignored." Kevin Drum explains the Christmas crap - which is not even close to the level of this lie. But that's to be expected from Reynolds the mindless hack - the most overrated person on the Internet.]

__________

I want to propose a new law – a scientific one, sort of like one of Newton's laws. I can’t quite come up with a good name, but I think it should be something like “Atrios’s Law” or perhaps “Blitzer’s Second Law of Press Dynamics.” Anyway, here goes: The relevance of a given issue to being president is inversely proportional to the amount of press coverage it gets. This is merely a subset of the more general law, which I call “The First Law of the Press”: A given issue’s importance is inversely proportional to the amount of press coverage it gets. Thus, the press coverage of Afghanistan – which has enormous importance for the entire world – approaches zero, while press coverage of the Laci Peterson trial – which has no importance to anyone – approaches infinity. (I would love to see some statistics on the combined time given to Laci and then compare that to Afghanistan.)

The same is generally true of presidential campaigns. Gore’s reference to Love Story, which had no relevance to anything, got a lot of press coverage, while Bush’s lack of any domestic policy whatsoever gets almost no coverage. (“But he projects such warmth on TV.”)

Fortunately, the NYT and the Post have offered an exception to this law by providing some excellent coverage of the least-known, but possibly most egregious, outrage of the Bush administration – the whoring of the administrative state. As I explained here, it is absolutely vital to remember that in picking a president, you are picking an entire executive branch. Decisions made by administrative agencies are very, very important, and affect all of our lives every day. Thus, applying Atrios’s (et al.) Law, we should expect that because the actions of the administrative state are very important, they will get almost no coverage. And generally, this is true.

That’s why I want to give a very big hat tip to the NYT and especially the Post for zeroing in recently (in four different articles) on just how much our administrative agencies have been used to help business, even though the actions hurt Americans and threaten our safety. Some of this stuff gets tedious, but I would strongly recommend reading all four of the articles if possible. The NYT is the most general, so if you can only read one, read that one. The Post ran an excellent three-part series this week – here and here and here. Other than Howard Kurtz, I haven’t seen these articles getting much play on the blogosphere, but they should. I mean, this is really what’s at stake in November.

The general theme that runs through all four articles is simply that the Bush administration has quietly gutted rules and regulations in order to help GOP-friendly businesses and industries. There’s too much information to summarize it all, but here’s an excerpt to give you a taste from the NYT:

Allies and critics of the Bush administration agree that the Sept. 11 attacks, the war in Afghanistan and the war in Iraq have preoccupied the public, overshadowing an important element of the president's agenda: new regulatory initiatives. Health rules, environmental regulations, energy initiatives, worker-safety standards and product-safety disclosure policies have been modified in ways that often please business and industry leaders while dismaying interest groups representing consumers, workers, drivers, medical patients, the elderly and many others. And most of it was done through regulation, not law - lowering the profile of the actions.

Here’s a short list of some of the specific regulations that have been changed, introduced, or gutted in order to make the regulatory state more “business-friendly”: forbidding the public release of data on unsafe motor vehicles; increasing logging (at the request of lumber and paper companies); diluting rules protecting coal miners from black lung; reducing tuberculosis protections; no longer requiring employers to record employees’ ergonomic injuries; increasing hours that truckers can drive without a break; “modifying” the Clean Air Act (new installations without pollution controls); weakening standards that increased air conditioner efficiency; drilling for oil in national parks; substantially reducing the staff of OSHA (which is responsible for assessing hazards to workers); and allowing cancer-causing herbicides banned by the EU to be used (atrazine - more on that in a second).

Another neat trick is the administration’s interpretation of the “Data Quality Act,” which was passed in 2000 and written by a old vet of Phillip Morris (this is described in great detail in the second Post article). This is an especially slimy law. On its face, it seems OK – it merely requires that the government rely on “sound science” in issuing information. In reality, the administration has used it as a way to block any information that is unfavorable to its industry buddies by declaring that the science or methodology used to reach the unfavorable conclusions was unsound. This law has been used to challenge all of the following: the data showing the health damage caused by atrazine (a weed-killer); the data used by consumer groups to block wood with arsenic in playground equipment; the data used to justify restrictions on logging; the dietary recommendations to limit sugar and salt intake (at the behest of sugar and salt interests); the data on the hazards of the metal nickel; data that ranked the risk of lint fire in clothes dryers. [The atrazine noted above is used mostly on corn - over 80 million pounds of it are sprayed in the U.S. each year - and it is the "most prevalant herbicide in ground and surface water" - happy drinking.] Let’s not forget that the administration declaring all this science to be bad is the same administration that has been denounced by dozens of Nobel Prize winners, who claimed that the Bushies were politicizing science to fit their political agenda.

To me, the most disgusting one of all – and one that hits me personally as a proud, life-long Kentuckian – is the revival of mountaintop removal in the Appalachians. My friends, when you destroy a mountain, it don’t grow back. It’s forever. Appalachia’s natural beauty is unsurpassed. It’s a national treasure. And now, thanks to this administration, my home land is being raped by these fucking industry whores who care nothing for the environment. If you’ve ever driven by one of these newly “flat-topped” mountains, you’ll share my rage. As I’m becoming more potty-mouthed than I would prefer (I’m sorry, but this really bothers me), I’ll just give you some excerpts (all of this is laid out in the third Post article):

[Im mountaintop removal,] [m]iners target a green peak, scrape it bare of trees and topsoil, and then blast away layer after layer of rock until the mountaintop is gone. In just over a decade, coal miners used the technique to flatten hundreds of peaks across a region spanning West Virginia, eastern Kentucky and Tennessee. . . . Today, mountaintop removal is booming again, and the practice of dumping mining debris into streambeds is explicitly protected, thanks to a small wording change to federal environmental regulations. U.S. officials simply reclassified the debris from objectionable "waste" to legally acceptable "fill." The "fill rule," as the May 2002 rule change is now known, is a case study of how the Bush administration has attempted to reshape environmental policy in the face of fierce opposition from environmentalists, citizens groups and political opponents. Rather than proposing broad changes or drafting new legislation, administration officials often have taken existing regulations and made subtle tweaks that carry large consequences.

. . .

Government studies show that mountaintop mining inflicts a heavy toll. Streams that have not been buried under mining debris carry high levels of silt and toxic chemicals, experts say. About 5 percent of forest cover in southern West Virginia has been stripped away by mines, along with popular mountain vistas that can never be replaced.

. . .

"A huge percentage of the watershed is being filled in and mined out, and we have no idea what the downstream impacts will be," said one senior government scientist who has studied mountaintop mining extensively but insisted on anonymity for fear of repercussions at work. "All we know is that nothing on this scale has ever happened before."

. . .

As more mountaintops disappear and sometimes entire villages along with them, resistance has spread. Coal companies have offered to buy and demolish houses near the mines, effectively depopulating settlements. Residents who remain recite a familiar litany of complaints: dust, truck traffic, constant blasting that rattles nerves and sometimes damages houses. Even more jarring for many is the sight of the destruction of the ancient hills, familiar landmarks and touchstones for generations of families. "I've been coming up through these mountains since I was 5 years old. Now the place looks like an asteroid hit," Bo Webb, a retired businessman and Vietnam veteran, said of the 1,800-acre mountaintop mine above his house in central West Virginia's Raleigh County. "A lot of us up here have fought for our country. To see what is happening now to our homes makes me so mad."

Me too, Bo – it makes me so mad too. This is one of those issues upon which secular liberals and progressive Christians could unite. The secular people can fight to protect environmental treasures – Christians can fight to preserve the land that God has entrusted to them to honor and protect.

But most importantly, these actions reveal one of the deepest, most fundamental dishonesties about the Bush administration - they are screwing the American worker at the same time they try to portray themselves as the working man's party. They use and exploit the culture wars to conceal stuff like this. They beat up on gays, so that West Virginia people won’t realize that they’re breathing in toxic debris and having their land raped by the coal companies - forever. And before anyone suggests otherwise, the Post explains that mountaintop removal is opposed 2 to 1 by residents of central Appalachia.

I would urge the progressive blogosphere to focus more heavily on these regulatory issues, especially mountaintop removal.

__________

As you may of heard, Kerry has wisely come out against the missile defense program. Not only is it costly, and probably ineffective, it's a relic of Cold War nation-state-centric thinking. (And it could trigger a new arms race.) So, I couldn't disagree more with the following statement from the President (via the Post):

I think those who oppose this ballistic missile system don't understand the threats of the 21st century. . . . [Foes of the missile defense system are] living in the past. We're living in the future.

Actually, the opposite is true, though I do believe this is one area where the Bush team isn't lying - they actually believe it's true. One of the clearest choices people have in this election is between a foreign policy group that believes nation-states are our greatest threat, and those who believe that transnational networks of terrorists (similar to organized crime) pose the greatest threat. I've explained several times before that the assumption of the centrality of nation-states represents the biggest conceptual error in the administration's war on terror. It would be far better to spend those billions toward preventing attacks by these international terrorist networks, rather than remaining in the Cold War paradigm (which was the formative period for the foreign policy people in the Bush administration).

___________

Despite what you may think, there is very little internal consensus within the modern Republican Party – other than the Bolshevik-esque loyalty to the current President, whose policies themselves have almost no internal coherence. These differences are not being voiced right now, though, out of fear of losing the White House. I suspect that, if Bush loses, the GOP will enter a period of temporary chaos. All the various factions – which include overlapping and often incompatible groups such as neo-cons, paleo-cons, realists, Rockefeller Republicans, deficit hawks, libertarians, corporate executives, and Falwell conservatives – will find themselves in a full-blown civil war for leadership of the newly-headless GOP. It will be fun to watch. But despite these internal tensions, there is one holy firmament in the GOP sky – limited government. That’s the one position that almost everyone in the GOP camp can agree upon.

What’s interesting, though, is how conceptually meaningless the idea of “limited government” actually is when you stop and think about it. What's frustrating is that - despite the conceptual barrenness - declaring support for“limited government” sounds so good in the abstract. Just listen to what Bush said during one of his increasingly ridiculous “Ask President Bush” sessions:

Let me put it to you bluntly: In a changing world, we want more people to have control over your own life. And that's a difference -- there's a difference in philosophy, when you think about it. A lot of the government policies are, you know, as I like to put it: we'll give you the orders and you pay the bills. (Laughter.) If you really think about it, there's a philosophical divide here in this campaign. My judgment is, government ought to be empowering people by giving them more control over their lives.

Sounds good to me. I sure don’t want the big ol’ fedrul guvmit giving me orders and then sending me bills. I want “limited government” too!

But here again, the abstract narrative doesn’t fit with reality. I’ve argued before that Americans overwhelmingly favor “big” government – or more precisely, they have a set of priorities that they are unwilling to cut federal spending on (entitlements, for instance). You can label that however you want – “big” or “small” or anything in between. Thus, what we are actually fighting over are a few points in the marginal tax rate, along with the allocation of a small percentage of the overall federal budget. Don’t get me wrong, these small percentages have enormous consequences – but they won’t usher in an age of “big” or “small” government.

So that brings me to my point. I’ve been reading an excellent book on the 1890s called “The Reckless Decade” by H.W. Brands. It puts the current debate over “limited government” into a new light. On some level, this entire debate is absurd. It’s sort of like arguing about whether you should get a Diet Coke to accompany an all-you-can-eat buffet of fried fattening food. But I don’t like that analogy because it treats government intervention as if it were something bad. Progressives need to do a better job explaining why government intervention has helped America – and indeed helps Americans every day in ways they rarely even think about anymore. So today, in an effort to show what life looked like under a truly “limited government,” I wanted to turn back the clock to the 1890s.

Brands does an excellent job hitting all the major events and developments of the 1890s – corporate consolidation by people like Carnegie and Rockefeller; the fierce, bloody labor battles; the populist movement; the election of 1896; the technological innovations; the eternal shame of Plessy and our race relations; the Spanish-American War. It’s great stuff. But the chapter I want to focus on was called “How the Other Half Lived.” The name came from a book (by the same name) published in 1890 by Jacob Riis. Riis led his readers on a tour of the poverty-stricken tenement housing of early New York (inhabited mostly by new immigrants).

It’s not a pleasant picture. He offers images of large families that are crowded in dingy tenements that burn down frequently. Cholera outbreaks are also frequent because of the sanitation problems, and garbage and stench are everywhere. And let’s not forget about working conditions that existed in the 1890s when we let business do pretty much whatever it wanted to – and to consolidate into larger and larger entities: No minimum wage. No limit to the workday. Child labor. Unsafe working conditions. Pollution. It goes on and on.

I suppose I demagoguing a bit. But it’s important to realize that these conditions did not improve until government intervened. This sort of rational intervention was one of the intellectual foundations of the early Progressives (1890-1920, or so), who believed that government could be used to check the excesses of business and help people who have less bargaining power. Progressives realized early on that laissez-faire was no longer compatible with the new realities of urban, industrial life. It’s a vision that modern progressives should celebrate, rather than always shying away from and apologizing for. People today can bitch about “big government” because “big government intervention” has given them the luxury to do so.

The benefits of government intervention are so common that they have become invisible to the modern eye. Thus, people forget both the conditions that existed before, and the struggle it took to make things better. I mean, think of all the things that you probably never even think about on a daily basis – clean water, sanitary food, parks in cities, the minimum wage, the weekend, the forty-hour work week, housing codes, fire codes, anti-discrimination laws, anti-child labor laws, national parks, state parks, Social Security, sanitation facilities, voting rights for women, public education, the interstate system. All of these resulted from government intervention – indeed, many of them were the fruits of decades-long efforts by the early Progressives. These benefits that people enjoy every single day of their lives did not pop up spontaneously from a benevolent free market, or from industry executives. They were created in spite of them – and over their sometimes fierce opposition.

What's crazy is that the current debate over “limited government” takes place under the silent assumption that almost none of these "big" government measures will be overturned. That’s what I mean when I say we're having a “Diet-Coke-at-the-buffet” debate – we’re only arguing about the margins. But make no mistake – Americans prefer living in a world with substantial government intervention, even if they don’t realize it when the choice is presented as between “big” versus “small” government. That’s because the reality of limited government is intolerable. Limited government stands silent in the face of a cruel Darwinian world where the strong prosper and the weak don’t. People don’t starve anymore, and that wasn’t true 100, or even 50 years ago. Government intervention has made this country a better place time and time again, and in ways that most people don’t even realize.

I should make clear that I’m not in favor of abandoning Clinton/Blair/Rubin economics, which I find quite compelling. I just wish that current progressives would pay a little bit more respect to the efforts of the old ones. Government can be good. We should start saying it more often.

__________

I usually don't link to articles unless I feel I have something to add to them. But in this case, I'll make an exception. Yglesias has written a very persuasive argument about how Bush's inability or unwillingness to wrestle with complexities and nuance hurts America, and costs lives. Go read it here.

Also, on a totally unrelated point, if you want to see a perfect example of conservative legal narratives in action (which I discussed Sunday night), go read this article by Professor Stephen Presser (via Feddie). This is exactly what I was talking about earlier this week. Presser explains:

Bush sewed up my vote when he promised, during the last presidential election, that he would seek to nominate judges who would limit their roles to interpreting the law.

. . .

There are, of course, critics of the Rehnquist Court who claim that in rulings like its rejection of parts of the federal Violence Against Women Act, the Court has been more "activist" than even the Warren Court. By this charge, these critics suggest that the Rehnquist Court is engaging in the kind of judicial legislation I'm excoriating. But when justices are seeking to return the Constitution to its original understanding, as the majority did in the Rehnquist Court's federalism decisions [Ed. note - i.e., cases without any textual justification, just like Roe], they are not legislating. They are following the people's will as expressed in their Constitution—as The Federalist No. 78 mandates.

Exactly. Exactly. Exactly.

___________

On Sunday, the always-awesome Juan Cole pointed out – almost as an afterthought – something vitally important: Iraq is largely a clan society.

I think the Americans are gradually incurring feuds with all the major clans of Iraq, and this is undesirable. Americans are individualists, and don't understand clan societies. How many Americans are close enough to their cousins even to ask one for a loan? But many Iraqis would risk their lives to protect or avenge a cousin.

Ernest Gellner argued that it is industrialization that breaks up the clans. If you have factories all over the place, going in and out of business, then individuals are pulled away to them by the work opportunities. Clans and clan solidarity depend on people staying put, either on farms in villages, or in close-knit urban neighborhoods. Iraq's industrialization never proceeded far enough to really break up the clans, and many have emigrated jointly to city neighborhoods, keeping their ties even in an urban environment.

Patrick Graham made a similar point in the June edition of Harper’s in an excellent article called “Beyond Fallujah: A Year With the Iraqi Resistance.” (sorry, no link to the actual article – even on Lexis) In my opinion, the clan society is one of the most critical – and least understood – aspects of our war in Iraq. So if you’ll allow me to indulge in some amateur sociology, I’ll explain how clans affect our efforts in Iraq, and then illustrate how the absence of these clan-structures in America affects our own domestic political landscape.

With respect to Iraq, Cole is right that Americans simply don’t grasp the nature of clan society – partly because Americans are themselves so thoroughly atomized and adrift, and partly because of Americans’ profound ignorance of foreign cultures. But the clan societies are probably more consistent with our genetic wiring. Humans are social creatures, and were intended (or wired) to live in larger groups. They were not intended to spend 12 hours a day in front of a computer, only to return to a solitary loft in Soho at the end of the day.

Anyway, the individual clans should be understood as somewhat akin to collective entities of which individual Iraqis are merely smaller parts - cogs in the larger machine, so to speak. Within these entities, there is a strong duty to protect and avenge your fellow family member. I would guess that it’s similar to the micro-structure of our own military, where the duties and loyalties to one’s fellow soldier matter above all else.

Here’s the point. When you offend one member of a clan, you offend the entire clan. That’s absolutely essential to keep in mind. That’s also why we are losing the "hearts and minds" of Iraqis. Over the course of the past 18 months, we have lost them, not one-at-a-time, but in clusters. Every innocent kid who got bombed cost us a clan. Every innocent detainee rounded up in Abu Ghraib cost us a clan (or a “chunk” within a clan). Every military officer who got fired by Bremer cost us a clan. Every house we’ve stormed, every insurgent we’ve killed – each one costs us much more than it appears. Over time, the anger spreads like a virus throughout the interconnected networks of Iraqi clans and communities, until it finally explodes as it did in April. Our ill-advised raid on Fallujah really cost us support. And just like Cole, I fear our current operations around the holy shrine of Ali might cost us even more. Even if there are still many individual Iraqis who silently support our efforts, it’s much harder to get them to voice their support if their clan has now turned against us.

Obviously, some of this couldn’t be avoided. Wars kill people, and we shouldn’t have gone there in the first place. But we did - and so we have to do the best we can. It would have been nice if those in charge had been more SENSITIVE about the family and community structures in Iraq before charging into Fallujah, or allowing torture in Abu Ghraib, but they were not. And now, I’m very close to agreeing with Fred Kaplan that the game is over and we’ve lost. Iraq will remain one country for as long as our troops (or some troops remain there), and not one day longer. As Ehud Barak told Cheney, the only issue remaining “was choosing the size of your humiliation." I would add that there is actually one more choice - whether our humiliation will occur before or after November 2.

Getting away from all that, “clans” – or the lack of them – also affects American society. As noted earlier, America is a thoroughly individualized place. We wander from place to place, leaving our friends and family behind, only to find new ones – and then we leave them too. The clan society is utterly foreign to almost all types of Americans save one – rural communities.

I grew up in a town of less than 2,000 people, so I can personally attest to the interconnectedness of people in rural towns. First, everyone knows everyone else. Second, families are much larger, more extended, and generally more important. Rural politicians know that they can’t piss off anyone from a large family because they often vote in blocs. Third, if you assume that human communities exist along a spectrum that extends from the purely individualistic to the purely communal, then rural towns are much closer to the communal end of the spectrum than most of the rest of America. They are not as communal as the Iraqi clans, but there are striking similarities. For example, I knew not to mess with certain people in high school, because if I did, they could summon a dozen cousins who would beat me up. Also, you can’t underestimate the shared feelings that exist in a rural town. When someone in a rural town succeeds, the entire town shares in the success (e.g., ever driven by a sign that said "Welcome to Smalltown – Home of [Famous Person]”?). But even more critically, when someone in a rural town grieves, the entire town grieves – and sends food to their house. Lots of food. And they come visit the grieving, and they comfort them and pray for them. Rural America is a beautiful place in that sense, and I'm glad that I got to grow up there.

But anyway, these clan-like structures help explain why Bush is losing ground in rural America because of Iraq. Each soldier that dies in Iraq doesn’t merely cause the soldier's family to question the war (or our execution of the war), it causes the entire town to question these things. The lost soldier is discussed at the local restaurants and in the local churches by people who have seen him or her grow up and play Little League. The grief is collective - and it runs deep. Thus, Bush is losing these people in clusters. And the polls show it. Ryan Lizza linked to a recent poll by Stanley Greenberg that showed Bush’s rural support has dropped, and has dropped in states where Bush can’t afford to let it drop.

One last thing about rural communities – and this is where my sociology gets extremely amateur (in that it’s based on little empirical evidence). I think people don’t understand that although rural towns are certainly religious, they’re not really the soul of the Falwell wing of the GOP. In my church, we had a couple of those types, but everyone politely ignored them and made fun of them at Sunday lunch. Overall, I think rural America has much less interest in the culture wars than most people think. Instead, I think the heart of the Falwell Right is white suburbia and especially Exurbia (especially in the Sun Belt). These are the newly developed areas around places like Atlanta that have tons of strip malls and O’Charley’s restaurants. They are also the home of the thousand-member church congregations that simply don’t exist in small towns.

Anyway, I think part of the difference between Exurbia’s Falwells and rural America’s more tolerant Christianity can be explained in part by this idea of “clans” that we’ve been discussing. I don’t want to get into the whole cliched bit about the lifelessness of the suburbs – I'll save that for American Beauty or the one million other tired suburban dystopia stories. Still, it is true that suburbia and Exurbia are among the most atomized, socially isolated places in all of America. People may know their neighbors on their street, but usually not on anything other than the most superficial of levels. People move into these communities, but know no one else in the town or neighborhood, much less their neighbors’ grandparents, cousins, and personal life histories. Exurbia is about as far on the “individual” end of the spectrum as you can get.

Perhaps you can see where I'm going with this. To me, the Exurbian zeal for Falwell and the GOP culture wars is a substitute for the lack of basic family and community networks. Many of these people live in isolated bubbles with their spouse and children, and Falwell gives them something bigger to belong to. It fills the spiritual vacuum that results from individualistic wandering and social isolation. In rural towns, however, we don’t need anything to fill that vacuum – it’s already full of cousins, nephews, nieces, childhood friends, high school football games, potlucks, revivals, and many other community activities. If I’m right that humans desperately need to feel like they belong to something larger, then the social networks that continue to exist in small towns already provide that. It is a more clan-like place, where it’s not possible to avoid one’s neighbors (and sometimes you want to). Thus, Falwell's message doesn't resonate as strongly there.

I should add that the lack of community probably explains the rise of the Deaniacs as well. The Dean campaign consciously tried to build a grass-roots network. In doing so, I think they tapped into a deep yearning by young liberal professionals to have a family or community network to belong to. Anyway, maybe someone with real expertise can tell me if there’s anything to what I’m saying.

[The one bit of empirical evidence I will provide is from Greenberg’s Two Americas where he explains that Republican support in Exurbia is 50% higher than in rural areas. And it appears that the Exurbian support is growing, while the rural support is declining.]

[Update: As usual, the comments today are very good, and people have pointed out other sources of information for those interested in this topic.]

__________

For those who don't know, working in the Office of Legal Counsel ("OLC") within the DOJ is the legal equivalent of getting to the NBA or the major leagues. It's a small, prestigious office that advises the Attorney General and the President about the constitutionality of various proposals or policies. It's a great job - and OLC generally has some of the nation's best legal minds.

And so, it's especially troubling that this group of lawyers (the "Ashcroft Youth") seems to specialize in producing memos that offer roadmaps to the executive branch about how to evade the Constitution. Perhaps they are only being commanded to do so by the Bolshevik Central Command, but still, at some point the whole "I was only following orders" bit fails.

Anyway, here's the latest load of crap from OLC. Remember, these are the people that concluded that torture was OK, and that the president was unbound by the Constitution, treaties, or statutes if he invoked his "inherent" war power as commander-in-chief. From today's NYT:

The Federal Bureau of Investigation has been questioning political demonstrators across the country, and in rare cases even subpoenaing them, in an aggressive effort to forestall what officials say could be violent and disruptive protests at the Republican National Convention in New York.

. . .

The unusual initiative comes after the Justice Department, in a previously undisclosed legal opinion, gave its blessing to controversial tactics used last year by the F.B.I in urging local police departments to report suspicious activity at political and antiwar demonstrations to counterterrorism squads. The F.B.I. bulletins that relayed the request for help detailed tactics used by demonstrators - everything from violent resistance to Internet fund-raising and recruitment.

In an internal complaint, an F.B.I. employee charged that the bulletins improperly blurred the line between lawfully protected speech and illegal activity. But the Justice Department's Office of Legal Counsel, in a five-page internal analysis obtained by The New York Times, disagreed.

The office, which also made headlines in June in an opinion - since disavowed - that authorized the use of torture against terrorism suspects in some circumstances, said any First Amendment impact posed by the F.B.I.'s monitoring of the political protests was negligible and constitutional.

The opinion said: "Given the limited nature of such public monitoring, any possible 'chilling' effect caused by the bulletins would be quite minimal and substantially outweighed by the public interest in maintaining safety and order during large-scale demonstrations."

Yep, that's from our nation's finest legal minds. Lenin and Orwell would be proud.

[Update: The NYT included a picture of some of the people who have been visited by FBI agents:



They look scary to me.

I know I've been sarcastic about this, but maybe I shouldn't be. I mean, it would scare me if FBI officials visited me to ask about anti-war protests. It would especially scare me if I had a bong hidden behind the sofa when the FBI dropped by - as I suspect these people did.]

________

Dahlia Lithwick (this month’s NYT guest columnist) is not exactly loved in the conservative legal blogosphere. I’ve always liked her, and I think she gets bum rap even though I do disagree with some of her Slate articles. Anyway, in today’s NYT, she was this close to writing an outstanding column. It’s still good, and she’s certainly got the right idea, but I would have written it a little differently.

The first part of her argument, though, is dead on:

We can disagree about outcomes, but we have, at least as a matter of political language, internalized the fiction that liberal judges "make" law, while conservative judges "interpret" it.

That’s absolutely true. I’ve written before about how the greatest triumphs of post-Reagan conservatism have been linguistic. In no area is that linguistic triumph more complete than in the field of law. But we’ll come back to that. The second part of Lithwick’s argument is where she and I part ways:

A modest proposal, then: Let's invent a new term right here, today, for judges or judicial nominees on the right, who claim to be merely "interpreting" the Constitution, even when they are refusing to impose settled law; law they deem unsettled because it was invented by "liberal activist judges." And while I am open to better suggestions, here's a tentative offering: "Re-activist judges." Re-activist judges are the ones trying to roll back time to the 19th century.

She’s right to some extent. However, I would prefer to scrap the word “activist” altogether. To me, the mere use of the word keeps us trapped within the linguistic confines of a debate defined by conservatives such as Bork and Scalia. For example, in an earlier post, I argued that one of Reagan’s greatest triumphs was to define the terms of the contemporary political debate. One of his triumphs was getting people to conceptualize the world in terms of “big” and “small” government even though no such dichotomy exists. But so long as people used those terms (even if arguing against Reagan), post-Reagan conservatives would always win. To defeat post-Reagan conservatism, its terms must be completely scrapped and replaced with new ones.

The same is true for the word “activist.” Conservatives have successfully seared into people’s brains that there are creatures called “activist” judges roaming around who desire nothing more than to make us all gay-loving atheists and to impose their own wacko librul views onto statutes and the Constitution itself. As I’m going to explain in a second, I don’t think “activist” judges are all that common – and I certainly don’t believe that the word “activist” should mean “anyone who disagrees with the jurisprudence of Robert ‘the-poll-tax-is-constitutional’ Bork.” That’s the problem with Lithwick’s use of “re-activist” – it assumes that there was some prior “activist” judge whose decision is being undermined by conservative “re-activists.” Even though Lithwick is attacking conservative linguistics, she is still working within the “Scalia narrative” by employing the same vocabulary. It would better to scrap the narrative altogether.

Regardless of its substance, the Scalia narrative is powerful and compelling – and modern progressives have yet to develop a coherent narrative that can compete with it. Within the Scalia narrative, judges are bound by the text and original understanding of the Framers (invoking the mythical Framers in an especially nice touch). As Lithwick explained, Scalia-style judges “interpret” law, while liberal ones “make” it. It sounds so clean and coherent. (Another effective rhetorical tactic that I won’t be discussing here is conservatives’ appeal to federalism and states’ rights – which I debunked here.) The problem is that the pretty narrative doesn’t exactly fit with reality. The narrative is misleading because it depends upon an ignorance of how legal interpretation (of both statutes and constitutional text) works.

To be grossly general, there is rarely one “right” answer in law. Almost all interpretation involves choosing between various plausible interpretations of “boundedly indeterminate” text. Within the realm of the plausible, judges (like all humans) are often influenced by their political and ideological preferences, or their class bias - even if on a subconscious level. Thus, judges often adopt interpretations that fit with their politics. And what’s more important to understand is that wildly different interpretations can be equally plausible readings of the very same text. The key move that Scalia makes is the way in which he describes these actions. It’s rather brilliant. When progressive judges offer their interpretations, they’re “making law” or “usurping the legislature.” Yet, when conservative judges do the exact same thing, they call it “returning to the original understanding” or “being faithful to the text of the statute.” That’s linguistic brilliance.

This general point breaks down into two different parts – interpreting the Constitution, and interpreting statutes. Let’s look at each to see why the Scalia narrative, though pretty, is somewhat misleading.

First, with respect to constitutional text, linguists will tell you that words have no meaning outside of some background context. For example, the word “offer” means something completely different in a law school contracts class than it does in the real world. Similarly, the words “hot” and “cold” only have meaning in relation to some external baseline. In other words, to know if something is “hot,” we have to compare it to something else such as boiling water or the core of the sun. The word itself is meaningless outside of some background context. The same is true for words in the Constitution. Words such as “commerce” or “unreasonable” or “search” depend upon a background context. What originalists like Thomas and Scalia are doing when they use the “original understanding” to define these words is that they are selecting one out of many possible background contexts. In other words, Thomas thinks the word “search” should take its meaning from the way it was understood in 1789. That’s the “context” that gives the word its meaning. However, it’s equally plausible that we could apply, say, the world in 2004 as the relevant background context. To me, it makes more sense given that modern police departments didn’t exist then – not to mention that we’ve had a few technological innovations since 1789. As a matter of textual interpretation (and I do consider myself a “pragmatic textualist” – explained here), both readings are plausible. Yet, by limiting the word “search” to its 1789 definition, the police are free to be more invasive (at least on the margins) – and this result is consistent with many conservative judges’ strong anti-criminal dispositions.

[And remember - this is assuming that we can even know how the hell anything was "understood" in the 1780s. Many times conservatives cherry-pick history (often in good faith) and find a new "understanding" that we can't be sure ever existed. In these circumstances, "returing to the original understanding" is simply making stuff up - you know, just like the dreaded "activists."]

I should add, though, that conservatives do have a point with respect to the entire line of “privacy” cases that includes Roe and Lawrence. There is simply no textual basis in the Constitution for any of these cases. But again, I think that “activism” is the wrong word to use. It’s just erroneous legal reasoning. An interesting contrast to the privacy cases is the state sovereign immunity cases. According to this doctrine, which has been greatly expanded by the Rehnquist Court, states are immune from certain types of lawsuits based on federal claims, even in their own courts. The interesting thing about this line of cases is that, like the Roe and Lawrence line, it has no textual basis whatsoever. It is true that the Eleventh Amendment forbids states from being hauled into court for very specific types of lawsuits, but the amendment does not justify the Rehnquist’s Court’s broad expansion of the doctrine. According to the current Court, the Eleventh Amendment wasn’t really even necessary, as it is merely a subset of the broader state sovereign immunity doctrine that the amendment merely “reaffirmed.” I know I’m losing some people, so here’s the point. When the Rehnquist Court just makes shit up without any textual basis, they are “returning to the original understanding.” When libruls do it, they are being “activist.” But make no mistake – it’s the exact same damn thing. It’s just that conservatives have developed better narratives to defend it.

Something similar occurs when the courts interpret statutes. As I explained here (with illustrations), many statutes have indeterminate text. If they didn’t, we wouldn’t need courts. For example, a given statute could plausibly mean “X”, or it could mean “Y,” or it could mean “Z.” Let’s say “X” is the most favorable outcome for conservatives, and “Z” is the most favorable outcome for liberals. Let’s also assume that all three readings are pretty close to being equally plausible. When libruls win, their reading is declared to be “making law.” By contrast, when conservatives win, they are merely “interpreting” the law and “being faithful” to the statutory text, as they must in a democratic system.

Don’t get me wrong, sometimes liberal judges stray too far from what’s plausible under the text. But so do conservatives (just go look at some of the 5th Circuit’s habeas cases, for example). But more often, the two sides are merely disagreeing over competing, but equally plausible, readings of the statute. It’s just that conservatives have developed a more powerful narrative to defend their preferred outcomes. Just look at this line from the Federalist Society’s mission statement:

[I]t is emphatically the province and duty of the judiciary to say what the law is, not what it should be.

That sounds great until you remember that “what the law is” can usually be “X” or “Y” or “Z” – there’s no single right answer. Unfortunately, progressives have allowed the Federalist Society to define the terms of the debate, and have started employing god-awful narratives such as the “living Constitution.” I wonder sometimes if the Federalist Society pays progressives to use this term, as it so perfectly embodies their critiques that liberal judges are imposing their own views on the Constitution. I think it would be much better to co-opt textualism – which I find to be a powerful narrative - and wield it as a force for progressive policies ("Textualism 2.0" perhaps?). The proper path, I think, is what I like to call "pragmatic textualism" in the spirit of Justice Hugo Black and Akhil Amar – I’ve explained it here in more detail. The gist of it is that judges should first and foremost remain within the bounds of the text. Period. But here’s the key: Once they are safely within the bounds of the text (i.e., X, Y, or Z would be plausible), judges should look to the modern world and be pragmatic about choosing between possible outcomes. That’s not a “living Constitution” – it’s a Constitution. And even better, it’s not a Constitution that depends on the understanding of the pre-industrial slave-owning world of the 1700s.

_________

I've finally updated my sidebar. Newer readers might want to check out the "past highlights" for anything that interests them. I've also added Juan Cole to the sidebar - he's the must-read for all things Iraq (especially if they're Shiite-related).

Thanks to everyone who recommended albums. Regular blogging resumes tonight.

__________

I'm taking Saturday off (as usual). But because I really enjoyed the book recommendation discussion a few weeks ago, I thought I would try the same thing with albums. Feel free to recommend or discuss any albums you think people would enjoy.

As for me, I've been listening a lot to the new Loretta Lynn (with Jack White from the White Stripes) and the New Pornographers' Mass Romantic. Mass Romantic is really really good.

__________

I agree with Digby - Bush's new ad ("Solemn Duty") doesn't make much sense. Here's what Bush says:

I'm George W. Bush and I approve this message. My most solemn duty is to lead our nation to protect ourselves. I can't imagine the great agony of a mom or a dad having to make the decision about which child to pick up first on September the 11th. We cannot hesitate, we cannot yield, we must do everything in our power to bring an enemy to justice before they hurt us again.

As Digby points out, the strange bit about "which child to pick up first" could be read in two different ways. First, Bush could be referring to picking up children at different schools or something. I certainly hope that's what he's talking about. However, the words "great agony" don't quite seem to fit. It also seems that this ambiguity could have been easily resolved by adding the words "from school" or something.

The second reading is that Bush is talking about picking up corpses from the wreckage. As far as I know, no parent walked up to the rubble and saw two children lying side by side and had to choose which one to pick up first. This makes absolutely no sense.

So, surely Bush is referring to Reading #1. But, I still think the ambiguity was intentional. I suspect that the "picking up children" bit was calculated ambiguity meant to conjure up images of dead children in your head. How else can you explain this odd language? That would also be consistent with Bush's standard rhetorical strategy of appealing to emotion rather than logic. But still, this seems like a weird thing to say.

I assume these ads get subjected to rigorous polling and focus group studies, but it's hard to believe that a focus group would find this language either moving or effective. And by the way, isn't it inappropriate to use 9/11 in a political ad?

[Update: The line doesn't seem so bad in text. But if you watch it live (link above), you'll see that it sorta comes out of nowhere. It just sounds weird, I think.]

__________

I have often thought that presidents get unfairly attached to the successes or failures of the U.S. economy. Macroeconomics is not a science, and much of the economy's success or failure depends upon factors and forces beyond the control of any single administration. But I've decided that while the Bush administration has been unfairly blamed for the initial recession (and its results), it deserves a great deal of the blame for the lackluster recovery. But because I am a lowly blogger with little economics training, I need your help. (I spent more time in the history and English departments in college.) I'm going to outline why I think Bush deserves this blame, and if I've made any horrible errors or assumptions, please comment below.

The first question is why in the hell is the economy slowing down again, and why was the jobs gain so pathetic? Bush has injected more money into the economy than any president this side of FDR, but it doesn't seem to be working. Perhaps a better question would be how is it possible for an economy to remain so sluggish after receiving literally billions in tax "refunds" and sharp spending increases over the past few years?

The short answer, I think, is that Bush delivered the money to the wrong types of people. Consumer spending accounts for roughly two-thirds of American economic activity. Thus, one goal of a tax-cut/spending-increase stimulus should be to get consumers to start spending more. The increase in consumer spending then produces a ripple effect throughout the entire economy - i.e., more jobs, more wages, more spending, and so forth. That can't happen unless consumers' wages go up, and they have not (as we'll see in a second).

The problem is that Bush's tax cuts were not really designed to be this sort of stimulus. Essentially, the administration threw a few pennies to the greater public so that they would accept what was actually a massive windfall to the nation's wealthy. To be sure, giving the middle class even its $300 check provided some stimulus, but not enough. That's because what was actually enacted was a long-term shifting of the tax burden away from wealth and capital; and on to wage-earners (e.g., the payroll tax) and future generations (deficits). This is what John Edwards meant by his whole "wealth to work" campaign theme. Here's an excerpt from his old campaign speech:

President Bush has a war on work. You see it in everything he does. He wants to eliminate every penny of tax on wealth, and shift the whole burden to people who work for a living. So people won't pay any taxes at all when they make money from selling stocks, when they get big dividends every year, or when they inherit a massive estate.

That's true, for reasons we're about to see. Why they haven't recycled this theme is beyond me.

But anyway, all of this is familiar. Everyone knows where the bulk of Bush's tax cuts went. But unfortunately for us commie pinkos on the Left, the mere fact that Bush's tax cuts went to the wealthy doesn't make them ipso facto wrong. After all, honest conservatives will freely admit that the Bush administration transferred a lot of the federal treasury to the wealthy. But they will add that you have to keep the second step in mind - giving money to these people will eventually help everyone. This is the leap of faith that the supply-siders take. Giving the wealthy more money will unleash the entrepreneurial spirit. There will more investment, which will lead to more jobs, which will result in a rising tide that lifts all boats.

The religion of supply-side involves a deceptively simple two-step process - and the simplicity explains why so many people who know little about economics seem to believe it (and the press does little to help explain things). The two steps are: (1) give money to the wealthy ("most productive," "entrepreneurs," etc.); and (2) the wealthy will then spend the money in a way that helps the American wage-earner, especially by investing and creating jobs. Today, I want to look at each of these two steps. Again, it seems clear that Step #1 has been completed - the evidence is overwhelming. The better question is whether Step #2 is actually true, or whether it's a myth, or whether it's an outright lie.

But first, with respect to Step #1, one telling statistic is the comparison between the growth of corporate profits (as a percentage of the economy) and the growth of compensation (salaries, wages, etc.). Here's a chart from Bureau of Economic Analysis (first linked by Kevin Drum who was linking Brad DeLong):



As you can see, the corporate profits are improving, while compensation is not. Here's another chart from the Commerce Department (provided by Billmon):



As Billmon (my source for economics) noted, these numbers are "negatively correlated" - when one goes up, the other goes down. And as Billmon also noted, although class struggles are not in vogue these days, that's exactly what we have. When labor is weak (as it is today under the pressure of unemployment and outsourcing), it gives capital an advantage.

Last thing about Step #1. Bush is about to start advocating his "vision" for an ownership society. The justification is that stock ownership is growing, and more Americans own stock than ever before. That's why we needed the dividend tax-cut (referenced in Edwards's speech above). That's also why we need to let younger workers invest their Social Security taxes - because it would be more efficient - blah, blah, optimal, blah, blah. While it's true that more Americans own stock, it's not true that a new mass "shareholder class" is rising. Stock ownership is still concentrated at the top of the economic pyramid. Again, Billmon has the important chart from the Federal Reserve:



You should keep this in mind when you hear people talk about eliminating the dividend tax, or privatizing Social Security. Again, as it always is with this bunch, it's a giveaway to the rich. But that's only Step #1. The real justification for the supply-side religion is Step #2 - which is where we learn that the concentration of wealth trickles down to help the public, like pixie dust.

Here's the problem with Step #2 - it doesn't seem to be true. To me, it sounds more like Linus in old Peanuts cartoon, "It's the Great Pumpkin, Charlie Brown." Linus promises that if they sit out in the pumpkin patch on Halloween night, the Great Pumpkin will come and give the children presents. Well, the American taxpayers have been waiting three years, and the Great Pumpkin still hasn't arrived. And it's not going to because there is no Great Pumpkin, and there is no magical stream of money that will trickle down to the American wage-earners. The Bush tax cut was simply interest group politics. People should read up on the history of capital-labor relations in the early 1900s to learn that capital doesn't give its money back to employees willingly.

Hell, even the Wall Street Journal has recognized that the "recovery" has taken "two tracks." Here's the quote (via Billmon - hard-core econ people should read his entire post):

Lower and middle-income households have benefited from some of these trends, but not nearly as much. For them paychecks and day-to-day living expenses have a much bigger effect. Many have been squeezed, with wages under pressure and with gasoline and food prices higher. The resulting two-tier recovery is showing up in vivid detail in the way Americans are spending their money.

That's not a great recipe for increasing consumer spending. But here's the million dollar question - and one I really don't know. What happened to all that excess money we gave to the more wealthy Americans? We know what would have happened if we had given that money to the middle class - they would have spent it on "stuff," and "buying stuff" drives our economy. But wealthier people are less likely to spend it in a way that will stimulate our economy. They are more likely to save it or invest it abroad (boy, that would be a nice statistic - how much of Bush's tax cuts are currently funding projects abroad - anyone?).

I saw Gene Sperling on CSPAN, and he explained that you simply should not run up such massive deficits at the same time you don't help wage-earners unless you can be damn sure that the tax cuts to the wealthy will help people. There's simply no evidence that they do. That's why I think supply-side is very similar to a religious debate. People may believe in God or one of God's commandments, but they can't possibly prove his existence by an appeal to empirical evidence. Similarly, supply-siders may believe in Step #2, but there seems to be no empirical evidence to support it.

What empirical evidence does show, however, is that targeted tax increases that are redistributed more broadly can help the economy. Clinton showed that - despite all the predictions of doom and gloom. And it makes sense when you remember that consumer spending drives our economy. When wages are higher, people buy stupid shit - but stupid shit is what makes the America economy buzz.

So again, where did all that money go? It hasn't been reinvested in job growth apparently. Where did all the money go?

I should add that if you attack my economic argument, please do me the favor of not invoking either/or bogeymen (i.e., a choice between "capitalism" and "socialism"). In other words, don't reduce the world into a "Rove dichotomy" where two extremes are our only options. No one is talking about scrapping capitalism - the question is merely whether the marginal tax rate should be a few points higher here, and a few points lower there. It's about regulating capitalism in such a way as to harness its power for the greater good - just as the Clinton/Rubin team did. Bush has decided to harness its power to concentrate wealth. That would be fine if wealth turned around and helped America's workers. But there is no evidence that it does - and there's a lot of evidence that it does not. Not to mention that we're effectively raising taxes on wage-earners and future generations.

If history teaches us anything, it's that concentrated wealth begets even more highly concentrated wealth. It's pure Darwinism - the strong get stronger. The "Great Trickle-Down Pumpkin" may exist in the textbooks of the Chicago business school, but it's never been to Wal-Mart.

[Update: Apparently, I picked a good day to talk about this stuff. The NYT has an article today entitled, "Report Finds Tax Cuts Heavily Favor the Wealthy." The Post has a similar article entitled, "Tax Burden Shifts to the Middle." Also, see Krugman for more on the "ownership society." As you can see, our staff is always on the cutting edge here at Legal Fiction.]

[Update 2: Cogitation has an interesting addition to one of the charts above. He breaks it down by presidential administrations. See if you can detect a pattern.]

__________

I had almost forgotten why I thought the Senate Democrats were such spineless cowards. But then the memories of 2002-03 came rushing back when I read this article in the NYT:

Democrats said that if they opposed the Goss nomination [for CIA director] they expected that the White House would cast them as obstructionists who were delaying prosecution of the war on terror.

Oh no! We wouldn’t want that! I mean, the President’s steady leadership in the war on terra has been so good that obstructing it would certainly be political suicide. And it’s not like we need political independence at the CIA anyway – I think the last two years have shown us that. What would really help our anti-terrorism efforts is to get a political hack loyal to the Bush administration in there to ensure objectivity and the airing of dissent. Ugggh. If you want more details, go read Billmon and Fred Kaplan. Quite simply, Goss is a political hack who is far too partisan to be running the CIA at this time. I suspect the Senate Dems are just hoping Bush will lose. But if he doesn’t, then we’re stuck with someone whose hackery will make the CIA even less credible (money quote from Goss when asked about whether he would investigate the outing of Plame – “Somebody sends me a blue dress and some DNA, I'll have an investigation.”) Yep, that’s our new CIA chief.

Anyway, I think what’s more interesting about the Goss nomination is what it reveals about the Bush administration’s style of governing. In fact, I think the nomination shows the increasing “Bolshevik-ation” of the GOP under Bush. As always, my critiques are not of conservatives generally, but of the group of individuals who are currently running the White House and driving their party over a cliff. But first to the Bolshevik style of governing.

The Bolsheviks were the people who seized power in Russia during World War I from the hapless czar. [Update: An astute commenter notes that it was actually Kerensky that overthrew the czar - the Bolsheviks then overthrew him and his provisional government.] After several years of horrible civil war (recounted beautifully in Dr. Zhivago), they consolidated power and became the Communist Party who we came to know and love. What’s interesting is that the Bolsheviks had a very specific – and radical – notion about the best way to implement the "people’s Revolution." Lenin’s contribution to socialist thought was the so-called “vanguard of the proletariat.” The revolution, Lenin said, must be led by an enlightened few. His vision was reflected by the rise of a rigidly centralized hierarchy after the Bolsheviks took power. I found this site on Google, which explains the Bolshevik philosophy pretty well:

Lenin believed it was the job of a small group of dedicated revolutionaries to lead the proletariat in revolution without the need for a bourgeois rising first. . . . In What Is To Be Done? and in his other works dealing with party organization, Lenin articulated one of his most momentous political innovations, his theory of the party as the "vanguard of the proletariat." He conceived of the vanguard as a highly disciplined, centralized party that would work unremittingly to suffuse the proletariat with Socialist consciousness and serve as mentor, leader, and guide, constantly showing the proletariat where its true class interests lie. Lenin's view of the party was that it would be "the party of a new type," which was to be guided by "democratic centralism," or absolute party discipline. According to Lenin the party had to be a highly centralized body organized around a small, ideologically homogeneous, hardened core of experienced professional revolutionaries . . . who would lead a ramified hierarchy of lower party organizations that would enjoy the support and sympathy of the proletariat and all groups opposed to tsarism.

Sound familiar? Obviously, I’m exaggerating by linking the Bush administration with the Bolsheviks, but there are some disturbing parallels that can’t be denied.

First, it’s unquestionable that the Bush re-election team has very much adopted a hierarchical top-down structure of command. The NYT Magazine had a great piece in April on Bush’s “grass-roots” ground war operation in Ohio. What we learned, though, was that Bush’s definition of “grass-roots” is simply obeying central command. Here’s an excerpt from Bai’s article in which he describes the rigid hierarchy of the Ohio ground operation:

In fact, the campaign was conducted entirely by conference calls -- among regional chairmen, county chairmen, coalition chairmen -- that enabled aides at headquarters in Virginia to direct virtually every facet of the Ohio strategy. Each chairman was given his ''confidential'' manual containing diagrams of precisely how his flow chart and his steering committee would look, and any changes had to be submitted to the campaign for approval.

This was also the model adopted both to decide to go to war and to market the war. As I explained here, the decision-making process was woefully inadequate in terms of its ability to generate information – relying as it did upon a small number of cabinet loyalists, and ignoring or suppressing dissent. After the vanguard decided to go to war, it then gave marching orders to Congress and the GOP media empire to market it. The strange and scary thing about the Iraq war (well, one of them) was that it was completely top-down – the public was not advocating for war at all. Rather, a small band of individuals decided to go to war, and then imposed that view upon the masses, who adopted it enthusiastically – it’s all very consistent with Lenin’s “vanguard” philosophy.

Paul O’Neill revealed that this same top-down strategy extended to all realms of domestic policy. Essentially, the vanguard of political advisors decided what policies would best help Bush’ re-election, and then the entire administration was ordered to follow these policies. O’Neill declined to abandon the Enlightenment and empiricism, and so he decided to quit. After doing so, he lamented the loss of true policy-making that requires messy dissent and democratic deliberation (something echoed in Suskind’s Esquire article on Karl Rove).

Another Bolshevik-like quality is the enforcement of loyalty. To this bunch, loyalty trumps experience and competence. That’s why Bill Frist, a man woefully unqualified to handle the political and procedural complexities of leading the egos in the Senate, was selected as majority leader. Bush knew that Frist would be loyal to him. The nomination of Goss is yet another example of this tendency to value loyalty to the party above all else. I mean, think about it. The CIA’s credibility is at its nadir. There have been numerous accusations that the CIA wasn’t independent enough, or didn’t challenge the administration’s conclusions more vigorously. You might think a President truly concerned about rooting out terrorists would appoint someone who could be counted upon to be independent – and to tell unpleasant truths when necessary. But no, Bush decided a political hack would be better. Party above all else – Lenin would be proud. And remember too that disloyalty has been ruthlessly punished. Clarke was savaged in an almost chilling display of coordinated attacks by the entire administration. They also threatened to fire the poor Medicare actuary if he told the world that the Medicare Rx cost estimates were way off, which they were.

A third parallel to the Bolsheviks is the increasing centralization of power vested in a small vanguard. For example, the “conference committee” has been flat-out abused by this bunch. What happens is that the Senate and the House – the two bodies with actual constitutional authority – debate and pass a bill. Rather than reconcile the differences between these two bills, a group of hacks gets appointed to the conference committee, where an essentially new bill is created and then rammed through by the leadership under the threat of retribution (just ask Rep. Smith from Michigan, who initially claimed that the leadership threatened his son’s re-election efforts if he opposed the Medicare Rx bill).

You can see similar efforts all over the administration. Our nation’s energy policy was vested in the Vice-President’s office, who was advised only by corporate oil and energy interests that are hostile to our nation’s legislatively enacted environmental protections. In the lead-up to the war, the vetting of intelligence was vested in the infamous Office of Special Plans – a small group of Feithian zealots. I would also classify DeLay’s redistricting efforts in Texas as nothing more than a ruthless consolidation of power that Lenin would be very proud of.

Finally, there is the maddening conflation of the party’s interests with the nation’s interests, especially in the context of the war on terrorism. For example, Emma Goldman (writing in 1923) slowly realized that “what the Bolsheviks called ‘defence of the Revolution’ was ‘really only the defence of [the] party in power.” Just substitute “war on terror” for the “Revolution” and you’re close to what’s happening today. In 2002, Democrats were denounced for opposing the Homeland Security Department, because it stripped federal workers of numerous labor protections (which itself was a brazen act of politicizing national security - not that the press cared). But rather than addressing the issue (and raising the reasonable argument that in this department, people should be fired if necessary), the GOP chose to demagogue it and charge opponents of being enemies of the Revolution, err... war on terror. The same was true of Iraq. If you opposed invading Iraq (which had little to nothing to do with terrorism), you were not serious about protecting the Revolution, err. . . fighting the war on terror. I spent much of 2002 and 2003 (pre-blog days) with my mouth open – walking around in shock that a small group of individuals could decide to fight an unnecessary war and then succeed in winning widespread public support through a combination of fear-tactics, exploitation of 9/11 emotion, and Orwellian deceptions.

On an aside, it is interesting to think about who will lead the GOP if Bush loses. I mean, they’ve spent the last four years slavishly devoted to whatever directive comes out of Rove’s office. When you’ve built such a rigidly centralized hierarchy, what happens when the head gets cut off?

[Update: I don't know how I forgot to include this, but I did. On the issue of loyalty, let's not forget about the recent Bush-Cheney policy of requiring everyone to sign a loyalty oath before they can attend any speeches or rallies. Right on, comrades.]

__________

I'm no military expert, and I recognize that something must be done about al-Sadr. But I'm really scared that invading Najaf could have disastrous consequences - especially if an American soldier sets foot into Ali's mosque. I fear people may be underestimating the centrality of Najaf and Ali's mosque to the Shiites' religious beliefs. I've discussed all this before. If you want a historical background on Ali and the city of Najaf, just read this post from April, in which I warned that Americans should not enter the city during the Islam holiday of Arbayeen. Here's an excerpt from that post:

When Muhammed had initially died back in 632, many thought that he intended Ali (a very pious man) to take his place, rather than Abu Bakr, who was the first caliph. To this day, Shiites don’t recognize the first three caliphs, but only recognize Ali (this is the source of the split between Shiites and Sunnis - the latter recognize all four caliphs). Ali was murdered in 661. His tomb is in the mosque in Najaf (the same one where al-Sadr is currently holed up – so you can understand why we can’t bomb it).

It's hard for Americans (especially American Christians) to understand how important this city and the mosque are. I mean, imagine if an Islamic army invaded the Vatican and entered (or damaged) St. Peter's. The Shiites are sort of like the Roy Moores of Islam - they wouldn't look kindly upon this stuff.

[Update: Ok, the Roy Moore bit was inappropriate. As a commenter noted, the Shiites represent a large and diverse group of people, though they do tend to be more fundamentalist. However, I suspect that the sorts of people who follow or are sympathetic to al-Sadr are in the Roy Moore wing of Islam. And Roy Moore al-Sadr will gain legions of new followers if Americans raid Ali's mosque.]

__________

I've got court-related duties today, but I suspect I'll be posting later this afternoon or tonight.

__________

I hate to admit it, but a tiny part of me feels bad for the neocons. I’m not talking about Cheney or Rumsfeld (who aren’t really neocons), but the true believers – people like Kristol, Brooks, and Wolfowitz. Granted, their policies have been about as stupid and naive as can be imagined. But there’s a strong streak of wild-eyed idealism in their thought. Since college, I’ve always been partial to Rousseau over Burke, and the neocons’ intellectual ancestors are not the crusty Burke conservatives, but the young radicals of the French Revolution who sought to remake society in the name of an abstract idea. Don’t get me wrong, I understand that Rousseau’s ideas can lead, and have led, to atrocities. But still, there is something attractive about idealism – and something beautifully, terribly tragic (in the ancient Greek sense) about witnessing the failures of naive idealists. As for the neocons, their abstract idea-of-choice was democracy. And as both parties shift toward realism in the wake of Iraq, it seems that the vision has failed – miserably, even.

I thought about this today when I read Danielle Pletka’s plea in the NYT not to give up on democracy promotion in the Middle East. Matt Yglesias responded to that column by saying, “At the appropriate level of abstraction, the neocons couldn't be more right about this stuff, but when it comes to actually getting it done their policies have been a miserable failure.” At first, I wasn’t so sure Matt was right. I mean, if your policies failed so miserably, it’s possible that the defect was not in the implementation, but was inherent to the very idea in the first place, regardless of the level of abstraction. In other words, perhaps democracy promotion in the Middle East is impossible and foolish – nothing more than chasing windmills, except that it gets people killed.

So now, the current debate is between those who favor realism – i.e., valuing stability over democracy, and recognizing that you must deal with those in power, regardless of how immoral those leaders may be – assuming it’s in your country’s interests. On the other side are the idealistic democracy promoters who, like Pletka, warn of pursuing “stability” to the exclusion of democratic reform.

I think both sides are missing something. As for the realists, or neo-realists or whatever they’re called, I think they are making a mistake by not embracing democratic reform as an important goal. But the neocons are fooling themselves if they think democracy can emerge in the absence of stability. But the catch, as the neocons warn, is that creating “stability” often requires supporting governments that are profoundly anti-democratic, like the Saudi royal family. In my non-expert opinion, however, both sides are failing to understand that there is a path that can achieve both sides’ goals of democracy and stability – economic reform. Both sides should shift away from dictator-friendly realism and naive idealism and think of ways to promote economic, and yes, capitalist reforms within the Middle East (with appropriate government regulations). Economics is the key to transforming the Middle East. To help you understand what I’m talking about, I’m going to draw lessons from Karl Marx, Alexander Hamilton, and the greatest visionary of them all . . . Shrub.

I have always divided Marx into two different parts. First, we have Marx’s descriptions and explanations of the world and of History. Second, we have Marx’s suggestions about how to change it. While I thoroughly reject most of the second part of Marx, I agree with a great deal of the first. One of his most valuable contributions was his observation of the role that economics plays in shaping the world. To him, economics is the motor of history – everything else is secondary. The type of government you have; the types of culture your society produces; the values of your society; the laws of your society – all are merely byproducts (or “superstructures”) of the existing economic order. For example, in societies where monarchs control all the wealth, the belief in the “divine right of kings” developed. This both reflected and reinforced the underlying economic realities. In aristocracies, the right to vote (if it existed) was often limited to property owners – which again reflected the underlying economic reality and power distribution.

The point is that democracy – as a system of government – rests upon a specific type of underlying economic arrangement. Democracies tend to emerge successfully only where a society’s wealth is fairly evenly distributed. Francis Fukuyama (if I’m remembering “End of History” correctly) explained that democracies have traditionally emerged organically when a nation's average (or perhaps median?) individual income rises above a certain level.

Sadly, money is power – it always has been. Thus, when the early urban centers in Renaissance Europe gave rise to a new urban middle class (which had new wealth, and thus new power), it made sense that democratic reforms soon followed. It also makes sense that democracy worked so well in America, where land was so plentiful. Democracy in America reflected the underlying economic arrangements, which were more egalitarian than feudal Europe. But you must understand – the economics came first. If America had ever existed as a feudal society where wealth was extremely concentrated, then democracy would have developed much more slowly, if at all. So that’s Lesson #1 for democracy promotion in the Middle East – without the proper underlying economic structures, democracy is a pipe dream.

Once you’ve realized the centrality of economics, you can move on to Lesson #2 from Alexander Hamilton. Hamilton – the ultimate capitalist and the guy on our $10 bill – realized that to make a government work, you must get the people of power (or property) on the side of the government. In other words, these people needed to have a stake in the survival of the government. As much as it pains me to say it, America probably owes more to Hamilton than it does to any other person with the possible exception of Lincoln, and of course, Bush’s steady leadership in the war on terror. Early on, Hamilton convinced the Washington administration to assume certain debts of the states (debts incurred by the propertied, powerful families throughout the states). After he did so, he immediately gave the powers-that-be a stake in the success of the new American government with its new-fangled Constitution.

That’s what’s missing in Iraq. No other country has a stake in its success. You can talk all day about idealism and honor and duty, but it all comes down to money. From Day One, Bush should have allowed foreign countries outside the "coalition" to bid on contracts. He should have spread the spoils, so to speak. Yes, this is a little bit like imperial raping the land, but after we foolishly invaded, I think we had little choice. Inviting others in was the "least worst" option. If other countries had billions invested in Iraq, you can bet your ass they’d send their soldiers to help out. So, Lesson #1 was recognizing the centrality of economics. Lesson #2 is that short-term stability could be encouraged by giving other countries a financial stake in our efforts in the Middle East.

Lesson #3 comes from Bush’s own mouth. Apparently, one of his new themes will involve the so-called “ownership society.” I’ll have more to say on this in the weeks ahead, but the following line is very informative for our purposes: “If you own something, you have a vital stake in the future of America.” That’s exactly right. And that’s the final lesson. Until the people of the Middle East have a stake in the future – and by “stake” I mean a financial stake – there is no hope for democracy or stability.

Very simply, democracy is impossible in Iraq right now, and throughout much of the Middle East, because of the extreme poverty and obscene inequalities. Successful democracies require that certain conditions (largely economic) have been met – e.g., a wide middle class with basic levels of education; markets; and respect for the rule of law, among other things. That’s why our efforts in the Middle East should be directed toward long-term economic reform. For example, if you’re an investment banker in Cairo with a nice house and swimming pool, I doubt that al Qaeda will have much appeal to you. But, if you live in the filth and squalor of the Gaza Strip without access to gainful employment (or even fucking water - thanks Ariel), then blowing yourself up to get into heaven doesn't sound quite so bad. This is especially true if your lack of education leads you to believe that the “Other” is responsible for your woes. Martyrdom and virgins sure beat the slums of Gaza.

It also makes perfect sense that the most unstable elements in Iraq – the followers of al-Sadr – are the poorest. Just look at the slums of Sadr City, and ask yourself what possible stake those people could have in the new Iraq. The very same principles apply to al Qaeda recruitment. The biggest breeding grounds for al Qaeda are failed states with widespread poverty - sort of like Afghanistan. But these same principles apply here at home as well. The areas where people are the poorest and have the least stake in the future tend to experience the highest levels of crime, drug addiction, illiteracy – just name it.

To change the hearts and minds in the Middle East, the Arab masses must be given a stake in the future. Democracy alone cannot bring that about – and it’s foolish to try – unless the necessary economic conditions are first in place. That’s why I predict that Iran – yes, Iran – will emerge as the next successful Middle East democracy. Everything is in place – not least of which is a broad, literate, thriving middle class that is very young and, oddly, very pro-America (at least, before the Iraq War). The problem is that Iran is experiencing cultural lag in that its theocratic form of government “lags” behind the country’s economic evolution. Yet another negative consequence of Bush's Iraq blunder was that he actually froze the organic reform that had been bubbling up in Iran by strengthening the hard-liners' hands. But reform will return, largely because the Iranian middle class has a stake in the future, and will eventually demand their rights from the religious leaders.

As for how to enact this economic reform, I have no idea. I’ll leave that to others. But again, we must understand that economic reform is central, and it must come first. We must also understand that we can create short-term stability by giving other nations a stake in the Middle East. And finally, to achieve real long-term democratic reform, we must set our sights on the sorts of economic reforms (including education reform) that will give the Arab masses a stake in the future. There is little hope in the short-term. Tempers are too hot, and the terrorists are too motivated. We must set our sights on the long-term.

If you want to defeat the terrorists, give ‘em a job. I suspect owning an iPod will do more to fight the appeal of al Qaeda than Bush's Crusade ever could.

___________

The press offered one half-hearted question about Khan today. Here's the exchange with Scotty:

Q Let me follow up with a second question. How damaging was the revelation of the deepest mole that we've ever had in al Qaeda? The publication of that man's name by The New York Times -- how damaging is that to our war on terror?

MR. McCLELLAN: I'm sorry -- which specific instance are you referring to?

Q The New York Times published the name of Muhammad Naeem Noor Khan, who was described by intelligence officials as the only deep mole we've ever had within al Qaeda.

MR. McCLELLAN: I'm not sure where it was published, first. Obviously, it was published recently -- the capture of this individual. It is important that we recognize that sometimes there are ongoing operations underway. And as we move forward on capturing or bringing to justice al Qaeda members, we need to keep that in mind. And sometimes we aren't able to go into as much detail we would like to because of those ongoing operations. And I think everybody has a responsibility to keep that in mind.

Speaking of moving forward, I noticed that Scotty really likes to say "moving forward." If I didn't know better, I'd think he wasn't actually engaging the question, but hiding behind vague, meaningless language. The following sentences are all from today's press briefing:

Iraq is a sovereign nation now. They're moving forward on building a free and peaceful and stable future.

And as we move forward on capturing or bringing to justice al Qaeda members, we need to keep that in mind.

First of all, the economy is moving forward. The latest employment report was one of many indicators that shows that the economy is moving forward (Ed. note - 2 + 2 = 5).

The economy is moving forward, and we're not turning back.

The President was pleased to go and speak to the UNITY Conference and talk to them about his record in office and his agenda moving forward.

And he was pleased to go there and talk about that, and talk about his agenda as we move forward and build upon that record.

He said that he would be moving forward on [the 9/11 Comm. recommendations] in the coming days with some presidential directives. There's no update at this point, in terms of those directives, but we are continuing to move forward in a quick and responsible manner. We have already moved forward in one way or another on 36 of 41 of the 9/11 Commission's recommendations. And we are continuing to move forward on the additional recommendations that build upon the reforms that this administration has already put in place.

So we've made significant strides, and the President welcomes these recommendations and we're continuing to move forward in a quick and responsible manner. It's important that we carefully and seriously consider these recommendations and how we implement them as we move forward. And we'll be working with Congress closely on that. Members of Congress are already moving forward on it, as well.

I said, he believes this is the right policy and he's committed to continuing to move forward on exploring the promise and potential of stem cell research.

And so he came up with this well thought out policy [on stem cells] that allowed the federal government to move forward for the first time.

Our economy is moving forward, but there's more work to do.

And the President will be moving forward with more details about [the National Intelligence Director] as we work through some of the specifics.

And the international community recognizes that we cannot afford to let Iran move forward on a nuclear -- on building nuclear weapons.

[W]e're working very closely with Pakistan as we move forward to defeat the enemies and defeat the terrorists that are in Pakistan and along that Afghan-Pakistan border.

Geez, I miss Ari. On an aside, I suspect we could make a drinking game out of this. Something like one drink for every time he says "move forward." And you have to finish your beer whenever Scotty tells an outright lie.

___________

Like I said last night, I think that Bush's political skills are strong enough that he will give Kerry a very good fight. But now that we're within 100 days, the election is as much about events and Fortune as it is about anything the candidates can do. And unfortunately for Karl Rove, there's a pretty decent chance that some events (or contingencies) are about to converge and form a perfect storm that will push Bush out of the White House.

I mean, think about what all is happening - or on the verge of happening. Iraq is blowing up - and could very well be on the verge of civil war if one of our bombs hits Ali's mosque in Najaf. The jobs report was miserable. Oil prices have hit record highs - and high energy prices have ripple effects on the entire economy. U.S. officials outed an al Qaeda mole that may have already hindered our anti-terrorism efforts. And that's just this week's news.

Let's not forget that the Plame indictments may be issued any day. Also, Abu Ghraib could re-erupt if more damning videos are released - and we know they exist. Salon (via the General) has obtained several classified documents that illustrate grotesque abuse, including a private contractor raping a young boy in the prison while a female soldier took pictures.

Every single one of these events may get better, or may not come to pass. But still, the thought that they could all converge within a few short weeks is probably keeping Rove awake at night.

__________

Say what you will about President Bush, there’s no denying his, and his team’s, political skills. Chris Suellentrop at Slate made this observation just last week. Even Bill Clinton has said as much. That’s why I think that even though Bush’s approval rating should be hovering at about 10% (in a rational world), he’s going to give Kerry a hell of a fight. The guy is good. I mean, think about it. Here’s a guy who is the grandson of Prescott Bush – the old Senator from Connecticut and about as blue as blue-bloods get. Bush’s name should actually be Waspy W. Wasp, Son of Wasp, Grandson of Even-Bigger Wasp. He has enjoyed unearned privilege, unearned access to politics and capital, and pretty much anything he’s ever wanted. Still, unlike his dad, he’s managed to sell himself (successfully) as a Texas good-ol’-boy to the people in the Red states. To them, he’s the man of the people.

But what’s interesting about Bush is that his greatest strength – his political appeal – is inextricably linked to his most glaring vice – his willingness to simplify and deceive the very people his image is intended to appeal to. Just think about his Crawford good-ol’-boy image that is so carefully cultivated by the media-savvy Bush political team. Bush struts around in a cowboy hat, speaking an accent that I can’t for the life of me figure out where he got it (probably from the hicks at Andover). But this cowboy, working-man image obscures the fact that Bush owes his entire political existence to wealthy corporate interests – in many cases, extremely wealthy corporate interests linked to his father and Texas. (For example, see this fascinating series of articles in the Post about Bush’s fundraising circles.) The Post articles make clear that the Bush administration has rewarded these interests with favorable regulation (or de-regulation), tax cuts, and various subsidies.

Anyway, if you want to know more, just go read those articles. Today, I want to offer a more specific example of both the best and worst of Bush. By “best,” I’m referring to his political savvy, which one can admire even if you disagree with the actor (sort of like Huey Long or the old Tammany Hall precinct bosses, for whom I have a grudging respect). By “worst,” I’m referring to his constant misleading simplifications that are aided by a lazy, inept press.

The example I want to offer comes from this article in which Bush challenges Kerry to give a “yes-or-no” answer on Iraq. Here’s what Bush said:

Now, there are some questions that a commander in chief needs to answer with a clear yes or no," Bush said. "My opponent hasn't answered the question of whether, knowing what we know now, he would have supported going into Iraq. That's an important question and the American people deserve a clear yes or no answer."

That’s exactly the right thing to say, and it’s a pretty devastating attack. It puts Kerry on the defensive because he’s screwed either way. If he says yes, then it deflates many of his criticisms of the war effort – not to mention that it would be an obvious lie, and could help Nader or depress the base (but maybe not – the base just hates Bush so much that I think Kerry can say whatever he wants and not lose it). If he says no, then Rove can “plausibly demagogue” the hell out of it with respect to our casualties in Iraq. I can hear it now, “John Kerry says you’ve died for a mistake. John Kerry doesn’t support what you’re doing.” It’s a landmine. I suppose the best answer would be just to lie and say “yes,” but then say “but I would have done it differently.” Perhaps he could say, “Yes, but I would have given it more time.” But that’s tough because Bush phrased the question in terms of “knowing what we know now.” And in an attempt to physically embody Republican talking points, Kerry offered a weak, inconsistent response in the Post:

Knowing then what he knows today about the lack of weapons of mass destruction in Iraq, Kerry still would have voted to authorize the war and "in all probability" would have launched a military attack to oust Hussein by now if he were president, Kerry national security adviser Jamie Rubin said in an interview Saturday. As recently as Friday, the Massachusetts senator had said he only "might" have still gone to war.

Yep, that’s what Rove wanted. Get ready for the October ads.

Still, if that shows Bush’s political skills, it also shows his worst traits – his willingness to simplify and mislead (which is why the whole “Bush is a straight shooter” makes me think I’m in a Twilight Zone episode seeing monsters that no one else sees). First, it’s an absolute lie. No one outside of the Weekly Standard editorial board would have gone to war knowing what we now know. No way. And everyone knows it too, but the press doesn’t push him on it. In a country with a non-lobotomized press corps, Bush’s statement would be the controversial one. I mean, every justification for war has been thoroughly discredited and our President – the guy who could be President again – is saying he would do the same thing regardless. Does anyone else see a problem? Is this the sort of judgment we want in a Commander-in-Chief? The press obviously doesn’t see a problem, as I’m sure they’ll push Kerry on this rather than Bush – the guy promising to lead us into other wars. At least, it seems that way if we take the logic of his comments seriously: "Even though we did not find the stockpiles that we thought we would find, we did the right thing," the president said. "He had the capability and he could have passed that capability on to our enemies." Twilight Zone, monsters, etc.

Second, reducing the Iraq War into a yes-or-no question is an insult to deliberative democracy. Going to war is not, and should not, be that simple – the decision depends on many factors such as what the inspectors found, what countries would join, etc. But Bush knows that by keeping it as deceptively simple as possible, he can define the terms of the debate and the press will play along. Once Kerry starts explaining, he loses (which again is partially a product of the press's unwillingness to provide context to stories - especially on TV - especially on TV - especially on TV).

If you want another example, just look at what Bush says further down in the article:

“My opponent said something the other day I strongly disagree with - he said that going to war with a terrorist is actually improving their recruiting efforts. . . . We don't create terrorists by fighting back. We defeat the terrorists by fighting back.”

Do I have to add anything here? Again, this is example # 1,000,001 of Bush deceiving the American people in his own unique way. To be more precise, Bush often depends on the ignorance of his audience (meaning “uninformed”). That’s not to say that there aren’t some very intelligent conservatives – there are. There were also powerful arguments in support of invading Iraq ex ante. But this is not even an attempt to make a rational argument. It’s purely emotional, designed to appeal to those who lack information about the war and the Middle East.

Kerry didn’t say that – no one said that. Kerry and others have said what is certainly true – the way this administration went about fighting terror has increased terrorism, and increased sympathy for terrorists in the Muslim world. I really don’t understand why intellectually honest conservatives continue to put up with these gross simplifications. I mean, if the President doesn’t even make the slightest attempt to provide an intellectual justification for his policies, what does that say about our democracy – and our press corps. If Tony Blair said this stuff, he’d be chased out of England (am I right Duncan?). But give Blair some credit. When he defends the war, he at least makes an attempt to persuade the informed – talking about the changing paradigms of sovereignty and international law in the face of terror, for example. You might disagree, but you have to think about it and respond. And it's tough to respond, because they're powerful points. (Kinsley makes a similar point about Blair here.)

But not Bush – his greatest strength, which is his ability to resonate with working-class Americans, depends upon his greatest liability – his willingness to simplify and mislead.

__________

According to AP, the Bush administration is now claiming that it has "undermined al-Qaida's plans for attacking the United States with the recent arrests of suspected terrorists and the seizure of detailed surveillance of financial buildings." Now, as Matt Yglesias explains, the only source of this information is the administration itself. And that's why I'm skeptical. On this point, Matt expresses my thoughts perfectly:

Well, while I'm not saying that I don't believe it -- I have no evidence indicating that it isn't true -- I have no way of knowing the truth about something like this except to take their word for it. And after having been lied to -- over and over again, over a period of years, about every major policy initiative this administration has undertaken -- I'd have to be some kind of idiot to take their word for it. So, it may well be the case that government officials, some fairly low-level and anonymous, some fairly high level, have done an excellent thing over the course of this past week, but if they have, they're not going to get any credit from me for it, because the only basis I have for thinking it happened is the say-so of a gang of liars. It's sort of sad.

You can only be lied to so many times before you eventually stop believing everything. And sadly, I believe nothing these people say. From the deficit, to tax cuts, to links to al Qaeda, to the Medicare Rx bill, to WMDs, to stem cells, to job forecasts, to gas prices, to Iraq reconstruction costs - they simply do not tell the truth. And if you're upset about my (or others') skepticism, blame the President for lying, not me.

[Update: Let me make it clear who I am - and am not - talking about. I don't think that Reagan and Bush I lied regularly. I don't think that conservatives or the mainstream GOP lies regularly. But the group of individuals we call "the administration" lies all the time. I really don't want conservative readers (whom I value and who make the comments more interesting) to think I am personally attacking their beliefs. I am not. As I have said, being a former conservative and coming from a conservative family, I think I have more empathy for conservative principles than many liberals. But, attacking this administration is not attacking conservative thought. It's attacking lying and the lying liars who do it.]

___________

To be honest, I'm not sure what to think about the recent stories that the Bush administration may have outed a mole within al Qaeda this week. If it's true, then the Bushies have once again outdone themselves in terms of incompetence - and just when I thought they had reached the outer limits of how incompetent human beings can be. But to be fair, there's a lot we don't know yet. And, there will be probably be a lingering question of whether the frenzied reaction to the terror alert (of which I was a part) might share some of the blame too. I think not, but it's worth discussing. But first things first.

For those who want details of the basic story, see Reuters here and MSNBC here. There are some reasons to be skeptical. First, as far as I can tell, this story is coming from Pakistan intelligence sources. Second, it's not entirely clear who released Khan's name. The original outing - the NYT on Monday - is ambiguous as to who exactly confirmed Khan's name. However, this passage suggests it did come from "White House officials" who were trying to justify the terror alert:

The White House officials spoke in a lengthy interview arranged at the request of The New York Times in which they offered a detailed accounting of the decision-making that led to the terrorist alert.

The computer disks on which the case reports were found were linked to Muhammad Naeem Noor Khan, a 25-year-old Pakistani computer engineer who was arrested by Pakistani authorities on July 13, American officials have confirmed.

Now, I've been a pretty harsh critic of this administration. But even I would like to think that they would not purposely "out" an al Qaeda mole for political purposes. After all, the whole problem is that we lack human intelligence - and this guy sounds like an absolute gold mine whose identity should have been protected at all costs. I think this has to be stupidity and incompetence. That is, if it's true. There are a couple of reasons why I suspect it is true. First, as the original TNR article explained, Pakistani officials prefer Bush to Kerry - for reasons relating to India and nuclear weapons. I think it's absolutely clear that the Pakistanis were trying to hurt Kerry given the facts surrounding the announcement (though the US involvement is unclear). So, the fact that Pakistan intelligence sources are revealing information that could seriously damage Bush might mean that they're really pissed. Second, the British (who are none too happy with our terror warnings) were forced to make a premature raid in response to the outing of Khan, which suggests that the outing really did compromise a number of missions. And the opportunity costs are staggering.

However, even if this specific act was merely good faith incompetence, I still think it was caused by the prior bad faith politicization of the war on terror. Let me explain.

The whole reason Khan's name came up in the first place was that the administration was scrambling to respond to the accusation that the intelligence was too old to justify the terror alert. The whole reason why they had to respond - and why the accusations were leveled - was because the administration has a long history of politicizing terror and issuing bullshit terror alerts. For example, Rove explicitly told Republicans in 2002 to "run on the war." With respect to the Iraq War, the Bushies shunned an honest democratic dialogue, and preferred to hyper-politicize the war and scare everyone half to death. They rushed to schedule the war resolution vote a mere month before the midterm election, all the while they were rattling on about mushroom clouds. Yes, most thought Iraq had chemical weapons, but nearly all the nuclear weapons stuff was absolute bullshit and they knew it. Third, there is a long string of lies, mostly from Cheney, regarding Iraq's links to al Qaeda, the meeting in Prague, and the relevance of Zarqawi. Fourth, Tom Ridge inserted a campaign talking point into the initial terror alert - and a pretty blatant one at that. Finally, we've endured a number of terror alerts that seem to be based on nothing.

In short, the administration is to blame for creating the conditions that led to the skepticism about the terror alert, which in turn led them to release Khan's name in a state of panic. (Again, though, we need more info - it is possible that the NYT obtained the name elsewhere and would have printed it without administration help - though I doubt it). That's also why I don't feel bad about jumping the gun on the terror alert (though I did concede my error later). At the time, I knew the administration's history. I had heard Ridge's talking point. Then, I saw that both the NYT and the Post ran the story on the front page, with the Post quoting an official saying that s/he had no idea why we issued the warning. That led me to start ranting. (However, I stand by the merits of my rant. Just substitute something else for the triggering event if you want - I suspect this Khan event may fit in nicely.)

That's also why I don't think we should blame the skeptical reaction to the terror alert for the outing of Khan (perhaps it deserves 10% of the blame - it's not an either-or issue). The administration - which has done everything in its power to prevent rational deliberation on the subject of terrorism - has politicized terror for over two years now. It was a perfectly rational response given what we have witnessed.

However, I have heard a more reasonable critique of the skepticism surrounding the terror alert. The argument is that if Bush hadn't issued the terror warning, then he would have been crucified if something had actually happened. That's probably true, even though it shouldn't be. In that case, the blame should fall on the American people or anti-Bush partisans (as Bob Barr explained on Real Time last night). Personally, I think it would have been much better to step up surveillance silently (if possible), and milk Khan for all he's worth. But even if that's unrealistic, the terror alert could have been issued without naming Khan. It not only jeopardized current missions, it eliminated any future operations involving him, and it probably discourages other captured al Qaeda operatives from cooperating with us.

It's a potentially huge, huge story - I do hope the press is digging away as we speak.

[Update: Juan Cole is all over this story - which may finally have hit CNN. If you don't read Cole, you should. I'll be adding him when I update my sidebar.]