Wednesday, October 26, 2016

Conservative Word Police

by Neil H. Buchanan

When all else fails, conservatives accuse their opponents of "political correctness."  This has been going on for thirty years or so, which means that Donald Trump's use of the anti-PC attack line is one of the ways in which he has ingratiated himself with his Republican base.

Professor Dorf recently contrasted two theories of Trump's rise in U.S. politics: Trump as truth serum, in which Trump says bluntly what Republicans have been saying obliquely for years; or Trump exceptionalism, in which Trump is unlike anything that we have seen before.

The long history of right-wingers' screaming about political correctness indicates that this is yet another way in which Trump is anything but a deviation from the Republicans' norm.  Indeed, Trump is not even out of the ordinary in degree or kind.  For decades, conservatives have been shouting, "Stop being so PC!"  Trump is simply unexceptional, at least on this score.

I will set aside for now the central problem with the anti-PC meme, which is that the concept has no core meaning.  As used by conservatives, political correctness can be applied to anything, ultimately meaning, "You're saying things that I disagree with, so I'll attack you for being too sensitive."  It is very much like "judicial activism," an attack line that is useful precisely because it is so empty (yet unmistakably negative).

If pressed, I suspect that most people who deplore political correctness would say that it means that liberals care too much about word choices.  "When did 'girls' become 'women'?  Why can't I call someone 'Oriental' anymore?  And what's so wrong about telling a joke about Polish people -- or even using the derogative version of 'Polish people'?"

Ultimately, the claim is that liberals are being hyper-sensitive.  What difference does it make, conservatives ask, whether you call someone a  dwarf or a little person?  Words only hurt if you let them be hurtful.  Why do liberals imagine that using belittling terms can lead people to take negative actions against the people who are being belittled?

This would be annoying enough on its own.  But it is positively infuriating because conservatives are, in fact, positively obsessed with forcing people to use certain words and phrases.  To listen to prominent conservatives, including those who wail about PC culture, the many problems facing this country are caused (or are at least made worse) by liberals being unwilling to speak certain phrases.

For example, during the first presidential debate, Trump said, "Secretary Clinton doesn't want to use a couple of words, and that's law and order."  Similarly, Trump and nearly all prominent Republicans have faulted Clinton and President Obama for not being willing to say the words "radical Islamic terrorism."

For decades, Republicans have been developing a vocabulary that is now a matter of ideological identity.  Obamacare instead of the Affordable Care Act; Democrat Party rather than Democratic Party; religious freedom to mean the right to discriminate; class warfare for redistributive policy; IRS code; death tax; patriot; freedom fighters; pro-life.

Some usages are especially odd, such as using the Dred Scott case as a dog whistle for anti-abortion politics.  Others become a moving target, with climate change first being the preferred conservative alternative to global warming before itself becoming unacceptably PC.

There are, of course, always fresh attempts to use words as weapons.  Trump, for example, recently used the new conservative favorite government school (as in "failing government school"), because the public likes public schools but hates the government (at least, conservatives hope that they do).

Interestingly, when Senator Ted Cruz refused to endorse Trump at this year's Republican convention, he used the words "vote your conscience."  To non-conservatives, that sounded like a phrase that simply meant what its constituent words implied.  To Trump's supporters, however, if meant "Don't vote for Trump."  Cruz's audience got the point, which is why he was booed off the stage.

And who can forget the totemic importance of those two dueling December greetings: "Happy Holidays" versus "Merry Christmas"?

Trump, again, has gladly seized on conservatives' obsession with word choices, telling his listeners that something far beyond words is at stake -- even though he is also willing to dismiss his much more specific words as mere "locker room talk" that tell us nothing about his actions.

For people who think that their opponents are overly concerned with mere words, therefore, conservatives spend an awful lot of time policing everyone else's word choices.  Where did this come from?

To a certain degree, this could be dismissed as mere political gamesmanship.  George Orwell's dystopian novel Nineteen Eighty-Four depicted the use of language as a mind-control device.  Orwell introduced neologisms like doublethink into the language and showed how mantras like "freedom is slavery" can change how people live their lives.

For conservatives, all of their careful word choices are no more nor less than an acknowledgement that words are weapons.  That conservatives have convinced themselves (and some others) that only their opponents are obsessed with words is merely a successful political strategy of deflection.

But merely saying that "everyone does it" does not mean that everyone does it in the same way, or that the effects of different politicians' word choices degrade the political conversation to the same extent.

By analogy, we know that everyone in an economic market can be expected to compete to gain an advantage, but there is a huge difference between one person who uses flowery language to make his product sound appealing, another person who flirts with antitrust violations while driving her rivals out of business, and a third person who threatens to kill his competitors' families.  There is a lot of ground covered by the phrase "aggressive competitive behavior."

Conservatives became extraordinarily aggressive in their obsessive policing of language over the course of the last generation.  Why did this happen?  This past July, I wrote: "The seeds of ugly political discourse that Newt Gingrich so deliberately planted and nurtured have fully flowered."

One might imagine that no single individual could be blamed for what has become such a pervasive problem.  After all, it might simply be that language degrades over time, and that all politicians contribute to that decline in the ways that Orwell identified.

That, however, requires ignoring the reality that terms like death tax and partial-birth abortion show up in conservatives' lexicons after having been focus-group tested in the same way that movies and toothpaste commercials are tested.  And it in particular requires one to be willfully blind to the uniquely negative impact of former Speaker Gingrich.

It is no surprise, of course, that Gingrich has managed to muscle his way back into the national spotlight, using his surrogacy for the Trump campaign to renew his assault on the English language.  Just this week, Gingrich engaged in a bizarre argument with Fox News's Megyn Kelly, accusing Kelly of being "fascinated with sex."

The payoff moment, however, was this: "I just want to hear you use the words, 'Bill Clinton, sexual predator.' I dare you. Say, 'Bill Clinton, sexual predator.'"  Most people would hear or read Gingrich there and think, "What an immature bully!"  My reaction, however, was that this was Gingrichism distilled to its purest essence.

The fact is that Gingrich is not merely one of the people who jumped on a bandwagon, repeating and amplifying the degradation of political conversation.  If any one person can be said to have started us down this road, it is Gingrich.  And his doing so is very well documented.
 For example, the political analysts Norman Orenstein and Thomas Mann recently wrote: "Newt Gingrich, first among other Republican leaders, took this polarization to a new level. He was key in the transformation of the party into a destructive and delegitimizing force in American politics (which makes his recent bonding with Trump very fitting)."

It was not an exaggeration for Michelle Cottle to write in The Atlantic earlier this year that Gingrich "broke politics."  Others have gleefully joined Gingrich over the years, but Gingrich has spent his entire life leading people down this dangerous path.

Back in the 1990's, what is now known as "the GOPAC memo" (named after a Republican lobbying organization) presented Gingrich's strategic use of extreme language, telling Republicans how to use specific words to attack their opponents.  The memo, titled "Language: A Key Mechanism of Control," included this list of words to use against opponents:
decay, failure (fail) collapse(ing) deeper, crisis, urgent(cy), destructive, destroy, sick, pathetic, lie, liberal, they/them, unionized bureaucracy, "compassion" is not enough, betray, consequences, limit(s), shallow, traitors, sensationalists, endanger, coercion, hypocricy, radical, threaten, devour, waste, corruption, incompetent, permissive attitude, destructive, impose, self-serving, greed, ideological, insecure, anti-(issue): flag, family, child, jobs; pessimistic, excuses, intolerant, stagnation, welfare, corrupt, selfish, insensitive, status quo, mandate(s) taxes, spend (ing) shame, disgrace, punish (poor...) bizarre, cynicism, cheat, steal, abuse of power, machine, bosses, obsolete, criminal rights, red tape, patronage.
The memo described those words as "tested language from a recent series of focus groups where we actually tested ideas and language."

Earlier this year, when Trump was criticized for attacking the family of a dead war hero, he defended himself by saying that he had been "viciously attacked" by the Khan family.  Even though the word "vicious" is not on the list above, Gingrich's influence on that framing is obvious.

Back in 1988, Gingrich reportedly said: "When in doubt, Democrats lie."  In Republican circles today, we have moved further down this slope, with supposed falsehoods by Democrats not merely being lies, because they must also be vicious lies.  Gingrich also instructed his incoming class of "Contract on America" congressional freshmen to call their opponents "traitors."

By the time Gingrich ran for president in 2012, he was claiming that Obama was a "food stamp president" and using "urban" as code for African-American.  Defending his food-stamp comment, he once said: "I know among the politically correct you're not supposed to use facts that are uncomfortable."

Maybe the problem, however, is using "facts" that are simply false.  As a writer in The Economist put it in 2012: "Barack Obama has put no one on food stamps. Population growth together with the most severe recession since the advent of the modern American welfare state ... conspired to make a record number eligible for government food assistance."

But none of this matters to Gingrich and his acolytes.  After the Republican convention this past summer, Gingrich went on TV to defend Trump's claims that the U.S. is a crime-ridden hellhole.  When the interviewer pointed out that crime rates are lower than they have every been, and that the small number of cities which have seen increases this year did not change those broad trends, Gingrich smiled and replied that he would rather appeal to what people think is true, not what is true.

This is especially revealing, of course, because what Gingrich is really saying is that he has taught his people to use language as a weapon, which changes what people think is true.  And then Republicans can run on what people think is true, rather than on the truth.  So if, for example, people just happen to think that mouthing the magic words "radical Islamic terrorism" would win the war on terror, whose fault is that?

Even so, Republicans are sure that it is Democrats who are obsessed with language.  Like Trump's claim that Hillary Clinton has "tremendous hatred in her heart," this looks like yet another example of conservatives projecting their psychoses onto their opponents.

Again, this did not begin with Trump, and it will not end with him.  Gingrich led the way, and conservative word policing is now deeply embedded in the DNA of the conservative movement.

Tuesday, October 25, 2016

Trump: Motiveless Mendacity or Denial as Justification

by Michael Dorf

On Saturday Donald Trump gave a speech at Gettysburg that was billed as a major policy address in which he announced that after the election he would bring defamation lawsuits against each of the eleven women who have recently come forward to state that Trump made unwanted sexual advances against them. Fittingly, the editors of the NY Times ran the story under the headline "Donald Trump Pledges to 'Heal Divisions' (and Sue His Accusers)."  By chance, that evening I saw a film about another instance of denial and litigation. The parallels inspire this post.

Denial dramatizes the lawsuit brought by Holocaust denier David Irving against historian Deborah Lipstadt for having called him an antisemitic and racist liar in her book on Holocaust denial. Because English libel law allows recovery in circumstances where U.S. law would not, Irving's suit went to trial. The burden fell on Lipstadt and her lawyers to prove that Irving deliberately mischaracterized the historical record. In other words, they had to prove that (spoiler alert) the Holocaust in fact happened.

Denial is a fine film that deserves to be seen and discussed on its own merits. But here I want to use it as a launchpad for a discussion of Trump.

At one point in the film, after Irving has been exposed on the witness stand as a racist (by Lipstadt's lawyer reading from a part of Irving's diary in which he recounts a racist and antisemitic ditty he taught his young daughter), Irving is speaking to the press, denying that he is a racist. As evidence, he offers the fact that among his personal house staff are black and brown women, even noting that he finds the women's breasts attractive. The scene was a kind of mirror image of Trump's explanation that he couldn't have sexually assaulted those of his female accusers whom he claimed were unattractive. It was also striking in its relevance to Trump because, as portrayed in the film, Irving appeared to be completely unaware of the fact that he had said anything even eyebrow-raising.

That scene resonated with another. During the closing argument of Lipstadt's lawyer, the judge interrupts to ask a question that suggests an arresting line of defense. He inquires whether Irving's antisemitism could actually work on his behalf. In order for Lipstadt to prevail, she had to prove the truth of her claim that Irving lied about the Holocaust. Her lawyer argued that one could not attribute all of the false statements in Irving's books to mere sloppiness because they all point in the same direction: to exonerate Hitler. But the judge asked whether these might not be "honest" mistakes, suggesting that because Irving was genuinely antisemitic he could have made his errors innocently, given his beliefs.

In the end, the judge rejects the argument, but it is worth pausing for a moment over the George Costanza-esque "it's not a lie if you believe it" because it may explain what is otherwise a deep puzzle. What could Trump possibly be thinking when he doesn't merely deny that he is a racist or a sexist but boasts that nobody is less racist than he or has greater respect for women?

Part of the answer is that this is simply how Trump talks. He does not have merely good people working for him. They're "the best." He does not merely promise more jobs but "tremendous jobs." And so when Trump denies that he is a racist and a sexist, he naturally does so in the most extreme way possible.

But Trump's penchant for hyperbole is not a complete explanation. There is also the lying. If a normal person were going to deny something he knew to be true, he might be careful to deny it cagily. Not Trump. He goes all in. Why?

So long as I'm discussing the Holocaust, I should address the possibility that Trump is executing Hitler's "Big Lie" strategy: If you tell a big enough lie and tell it frequently enough, people will believe it. I think that the big lie strategy is indeed partly at work in the Trump campaign, but so much of Trump's lying is unstrategic and even counterproductive--at least if his goal is to persuade undecided voters. Trump forcefully denies having said things that he is clearly recorded having said.

Accordingly, the big-lie strategy can only account for some of Trump's lying. What accounts for the rest?

One possibility is that Trump is simply a pathological liar. When he hears something that challenges his ego or his goals, he says something to contradict it. Or he lies purposelessly. There is controversy among psychiatrists over whether pathological lying is itself a disorder or a symptom of other disorders, but in any event, it is a sufficiently encompassing diagnosis to be unhelpful in understanding Trump's motivation. Saying Trump is a pathological liar does not explain anything; it simply restates the facts. If Iago exhibits "motiveless malignity," as Coleridge famously wrote in his copy of Shakespeare's Othello, then Trump as pathological liar displays "motiveless mendacity."

Accordingly, I want to explore the Costanza possibility. Might Trump actually believe he isn't a racist or sexist? Might he believe that he didn't sexually assault various women over the years? That answer could be consistent with being a pathological liar. Some pathological liars don't realize they are lying.

Yet this answer seems at best only partial. The Trump denials lack credibility because of Trump's boast to Billy Bush about engaging in the very behavior that the women who have come forth allege. If Trump were unaware of or had forgotten that he routinely engages in sexual assault, he would not likely speak about it. So what gives?

By circling back to Holocaust denial, I believe we can gain insight into the mind of Trump. Holocaust deniers are typically antisemitic. They are popular among neo-Nazis. That looks like a contradiction. One would think that virulent antisemites and neo-Nazis would be proud of the Holocaust, not seek to deny it. We must therefore understand Holocaust denial as not simply a historical claim but as a normative claim: In denying the Holocaust, they also mean to say that the Holocaust was not in fact a great evil.

Indeed, Denial includes a portrayal of David Irving speaking to an antisemitic crowd and saying that he finds the Holocaust "boring," even as he adds, in proto-Trumpian fashion, that saying so is not "politically correct." To profess to be bored by the Holocaust is to say that it is not an important historical evil. To borrow a term from a 1992 article by Prof. Colb, Holocaust denial is a form of Holocaust devaluation.

A similar phenomenon can be seen in the typical pre-rape-shield-law-era rape trial. The accused rapist denies that he forced the alleged victim to have sex with him, but meanwhile, the defendant's lawyer slut-shames the accuser, sending the unmistakable message to the jury that what happened to her was not a harm at all because she either wanted it or deserved it. Denial of the factual charge of rape is logically consistent with condemnation of rape when it occurs, but the practice of denial frequently works to minimize the harm of rape instead.

Against this backdrop, we can see Trump's dismissal of the Access Hollywood recording as mere "locker room talk" in a different light. At one level, he was saying that it was "just talk" as opposed to action. But that's not all Trump was saying, and it wasn't even most of what he was saying. Recall that in the second presidential debate, Trump only denied actually dong the things he boasted about to Billy Bush after repeated efforts by Anderson Cooper to pin him down. If Trump's chief goal were to distinguish between words and deeds, he would have made that point immediately and unequivocally.

Thus, there is an alternative account of what Trump was saying. By calling his confession mere "locker room talk," Trump was playing out the Holocaust denial and rape-defendant's-slut-shaming lawyer's dual move. He was saying "it didn't happen" but what he meant was "it wasn't so bad."

Meanwhile, Trump's threat to sue is almost surely empty. In an interview with a Miami CBS affiliate on Monday, Trump said that he would like to see the U.S. move towards the English approach to defamation, but this is not England. For a public figure like Trump to prevail in a libel suit filed in the U.S., he would have the burden of proving that his accusers recklessly disregarded the truth.

However, the point of Trump's threat is not to carry it out. Threatening to sue his accusers is Trump's way of showing how adamantly he denies their allegations. And if I'm right that the denial is itself a form of minimization of the conduct, then the adamance of his denial is likewise a way for him to minimize the wrongfulness of his conduct adamantly as well.

I suspect that Trump's followers understand his dual meaning--much in the way that neo-Nazis understand the dual meaning of Holocaust denial. It's long past time for the rest of us to catch on as well.

Monday, October 24, 2016

Do Voters Care About Constitutional Interpretation?

by Michael Dorf

On Tuesday night last week, I gave a lecture at Johns Hopkins University with the title Does the Dead Constitution Have a Future? Reflections on the Legacy of Justice Antonin Scalia. After exploring some deficiencies of various versions of originalism, I advanced the thesis that despite its flaws, originalism remains an appealing form of justificatory rhetoric because it sells itself as a brand of formalism and the general public are substantially more formalist than warranted by what over a century of legal realism teaches about how courts in fact decide cases. I also explained that originalism has been a formalism of the right, but that formalisms of the left (including liberal originalism) are also available. I offered evidence of the grip of formalism on the public from a variety of sources, including Supreme Court confirmation hearings.

Rarely does one have the opportunity to test an academic thesis immediately after propounding it, but I was given that opportunity the very next night, when the first question of the third presidential debate asked the candidates where they wish to see the Court take the country and to expound on their respective views about how justices ought to go about construing the Constitution. In a Postscript (below), I quarrel with the way in which moderator Chris Wallace framed the second part of his question, but for now it suffices to summarize that part as follows: Do you favor originalism or living constitutionalism?

Not only did neither candidate give a formalist or originalist response; neither candidate even tried to answer that question on its own terms. Instead, each talked exclusively about substantive outcomes that would be favored by the justices he or she would nominate to the Court. For Clinton, that meant preserving constitutional rights to same-sex marriage and abortion, while overturning Citizens United; for Trump, it meant preserving DC v. Heller, while overturning Roe v. Wade. There ensued a policy discussion about guns and abortion.

Taken together, the candidates' non-responses to the constitutional interpretation question seemed like a stunning refutation of the thesis I had propounded just 24 hours earlier. Because the broad topic areas had been announced in advance, each side was ready for one or more questions on the Supreme Court. And thus each campaign could have and undoubtedly did anticipate the possibility of a question about the "judicial philosophy" of his or her prospective nominees. Yet they chose to ignore the issue entirely. Assuming that the campaigns have a reasonable sense of what plays well with the electorate, the answers to the Supreme Court question strongly suggest that I was wrong. The voters don't care at all about interpretive methodology, formalist or otherwise.

Yet willing as I am to confess error when I am persuaded that I have erred, I'm not entirely convinced that the candidates' immediate flight from interpretive methodology to hot-button policy issues provides us with that much insight into the public's views about constitutional interpretation more broadly.

To state the obvious, the fact that Trump didn't discuss issues of constitutional interpretation tells us very little about the electorate. Given how little he prepared for the debate and his background ignorance on matters of constitutional law (e.g., not knowing how many Articles the Constitution has, not understanding that federal judges don't vote on bills), Trump might have simply whiffed. Perhaps his debate prep team (such as it was) advised him to say something about the framers or original meaning, but it didn't stick.

Of course, it's harder to attribute Clinton's answer to poor preparation (because she prepared prodigiously) or ignorance (as she is a well-educated lawyer). Surely Clinton could have said something about constitutional interpretation before pivoting into her substantive pitch. I might have scripted an answer like this:
To keep faith with the Constitution, each generation must give effect to freedom and equality in accordance with our fundamental values. I will appoint Justices who defend our rights against old threats like Donald's irresponsible calls for religious discrimination and against new threats, like the vast influx of unaccountable money that decisions like Citizens United allow. I will not appoint Justices who think the government can control women's bodies or tell people whom they can love. Etc.
It only would have taken one or two sentences at the beginning of her answer for Clinton to be responsive to the interpretive methodology question and still get in her substantive points. The fact that she didn't do so suggests that she and her team didn't see any advantage in pressing the jurisprudential point.

But that could be consistent with my thesis if either or both of two explanations holds:

(1) Perhaps Trump could have scored some points by appealing to formalism. A more disciplined GOP candidate with knowledge of constitutional law (Ted Cruz, let's say), would have begun by saying something highly formalist: "The first duty of judges is to apply the law, not to ignore it in the way that so many Democrat-appointed judges do." And then he would have gotten in his substantive policy talking points. In this view, Trump's incompetence meant that he simply left money on the table by not going formalist/originalist, whereas Clinton's greater preparation and knowledge led her to avoid endorsing living Constitutionalism, which would have alienated more people than it attracted, due to the naively formalist views held by so many people.

(2) Each candidate was speaking to the base and any potentially undecided voters. To the extent that the base cares about judicial appointments, they're sophisticated enough to know where the candidates stand: the GOP candidate will appoint people who claim to be originalists or at least claim that original understanding is very important; the Democratic candidate will appoint Justices who advance progressive values in a living Constitution framework. Thus, the only real audience for the answers here were relatively unengaged voters. Trump was appealing to the low-information conservatives; Clinton was appealing to low-information liberals. Neither would have gotten anything out of discussing interpretive methodology, because low-information voters don't know anything about it.

Accordingly, I do not read the candidates' non-answers on interpretive methodology as signaling general public apathy about interpretive methodology. It's just that given the reachable audience in a presidential debate, such matters necessarily have low (okay, zero) priority.

Postscript: Overall, I thought that moderator Chris Wallace performed reasonably well. At least for the first half of the debate, he managed to elicit substantive answers from the candidates. If one could put aside the fact that Trump was mostly lying, it was almost a conventional debate.

However, throughout the debate, Wallace embedded right-wing assumptions in his questions. As Prof. Buchanan explained in his post-mortem post on Thursday, these included some doozies with regard to economic policy: E.g., we have an unsustainable level of national debt; Social Security is at risk of bankruptcy; and most absurd of all, the stimulus in the early Obama administration "led to" anemic growth (when in fact it helped prevent a depression even though it was too small to lead to stronger economic growth). As Prof. Buchanan explained, the problem was not that Wallace's questions were biased. Given the magical thinking underlying Trump's tax proposals, he was even more of a target of the deficit-scold-conventiona-wisdom Wallace was assuming than was Clinton. The problem was that Wallace did not even appear to be aware that things he takes for granted -- e.g., debt bad, Social Security bankrupt, stimulus was wasted -- are not just contestable but wrong.

Something similar happened with Wallace's question about constitutional interpretation. Here's the question he asked, with the boldface added by me for emphasis:
What’s your view on how the constitution should be interpreted? Do the founders' words mean what they say or is it a living document to be applied flexibly, according to changing circumstances?  
That is an amazingly question-begging formulation. It juxtaposes living constitutionalism against a view in which the "words mean what they say," thus tacitly but unmistakably asserting that living constitutionalists do not consider themselves bound by the words of the Constitution. But nobody who subscribes to living constitutionalism actually thinks that.

The interpretive debate is over how to figure out what the words of the Constitution mean. Concrete-expectations originalists say that the words mean what the framers and ratifiers would have intended them to mean. Semantic originalists say that the words mean what the public would have understood them to mean at the time they were adopted. Living constitutionalists say that the words mean what they appear to mean in light of the many social, economic, and political developments that have occurred in the generations since they were ratified. The choice isn't between adhering to the words of the Constitution and making stuff up, as Wallace's question assumed, but about how to ascertain the meaning of the words of the Constitution and what to do when that meaning is unclear. Roughly since Justice Chase's 1798 opinion in Calder v. Bull, it has been generally accepted that arguments for flexible interpretation must be run through the text of the Constitution, not by going around it.

I do not mean to say that Wallace was deliberately begging the question in order to make originalism look better than living constitutionalism. On the contrary, I think it is highly unlikely that Wallace--a journalist but not a lawyer--had any idea that he was gilding the originalist lily. But that is my point. Wallace is also not a macroeconomist, but that didn't stop him from gilding the right-wing lily on economic policy. Just as Wallace assumed deficit-scold nonsense to be truth because it is conventional wisdom among the pundit class (with rare exceptions such as Paul Krugman), so Wallace assumed that originalists are faithful to the words of the Constitution while living constitutionalists make stuff up in the service of contemporary values because that is the conventional wisdom among non-lawyers.

Put differently, the completely unintentional gross unfairness of Wallace's framing of the constitutional interpretation question is strong evidence for the thesis I advanced in my Johns Hopkins lecture the prior night: Formalism in general and originalism in particular have a much stronger appeal among the general non-specialist public (including elite but non-specialist elements of the public such as journalists) than they deserve.

Saturday, October 22, 2016

Beware of Demons

by William P. Hausdorff

The scary prospect of a close election

Clinton remains favored in almost all poll summaries, though individual polls still come up with surprisingly narrow margins.  But the pollsters’ emphasis on likelihood of winning, regardless of the electoral vote gap, may set American democracy up for a fall: a tight election, combined with a House and Senate possibly both still Republican may be one of the worst situations.  Under that scenario, Trump’s allegations of rigging and lack of legitimacy could run rampant, and completely discredit democratic institutions under an endless series of Congressional investigations. 

What accounts for the continuing tightness in the polls?  I once conceived of an amusing evening parlor game with friends:  try to imagine what Trump could possibly say or do that would finally cause a significant portion of his supporters to bail.  As untreated sewage continues to flow freely from Donald Trump’s mouth, including explicit racist attacks, his boasts of paying no taxes, of contemptuously stiffing small businesses and of lurid claims of sexually harassing women, we finally have an answer: nothing.  

So what really fuels the Trump supporters, and even the hesitancy of many young people to commit themselves to voting?  Hatred of Hillary Clinton, stoked up by decades of Republican Party efforts, clearly looms large.  My attempts to discuss with Trump supporters how they can possibly believe their candidate will implement what he says, given his pathological narcissism, self-aggrandizement, sense of entitlement, and personal greed, are almost immediately answered, not with explanations, but with attacks on Clinton.  This just mirrors Trump’s own pattern in the debates:  almost every request for him to provide his position immediately became an attack on Clinton. 

The demonization of Hillary Clinton

The catalogue of scandals, events, and terrorist groups that she is responsible for is a textbook example of “demonization.”  As Richard Hofstadter put it, the paranoid style in American politics includes

 the attribution of gigantic and demonic powers to the adversary.

In this case, it’s not even a metaphor: Trump mentioned in a debate what he previously said in August:  "He [Sanders] made a deal with the devil. She's [Clinton’s] the devil."

Perhaps this is just part of politics, and all of us succumb to the notion that certain political opponents are completely devoid of positive value. Towards the end of Bush Jr’s 2nd term I was stunned to realize that neither I, nor most of the politically knowledgeable friends and colleagues I queried, could come up with ONE positive thing his administration had accomplished.  This might be taken as evidence of demonization, as even under previously detested presidents like Nixon and Reagan it wasn’t difficult to find some positive aspects.  I was therefore relieved when a few savvy friends noted that the Bush administration’s PEPFAR program on AIDS research in Africa was, all in all, quite a good thing.

I don’t recall, however, anyone ever positing that Bush was a demon or even the “focus of evil in the modern world” as Reagan had described the Soviet Union in his 1983 address to the National Association of Evangelicals.  At the time, it was easy to dismiss Reagan’s statement as inane Cold War hyperbole—were hunger, poverty, environmental destruction, ethnic and religious strife really all the Soviets’ fault? 

But Reagan wasn’t in a silly mood.  In that same speech, immediately before he spoke about the Soviet Union, the amiable President proceeded to demonize another group—non-believers in God--through this sinister anecdote: 

A number of years ago, I heard a young father, a very prominent young man in the entertainment world, addressing a tremendous gathering in California. It was during the time of the Cold War, and communism and our own way of life were very much on people's minds. And he was speaking to that subject. And suddenly, though, I heard him saying, "I love my little girls more than anything -- -- "And I said to myself, "Oh, no, don't. You can't -- don't say that."

But I had underestimated him. He went on: "I would rather see my little girls die now, still believing in God, than have them grow up under communism and one day die no longer believing in God."

There were thousands of young people in that audience. They came to their feet with shouts of joy. They had instantly recognized the profound truth in what he had said, with regard to the physical and the soul and what was truly important.

Fortunately, Reagan’s endorsement of the idea that it would be better if one’s own children died, rather than grow up and become non-believers, did not receive much publicity.   

The dangers of demonization

Demonization can nonetheless become dangerous.  One problem is that we then suspend rational thinking, presumably because demons can only be stopped by violence. The most consistently demonized entity in the American press is usually whichever member of the Kim family is currently leading North Korea. During the Bill Clinton administration in the 1990s Kim Il-Sung suddenly became the focus of all evil in the popular press, and it became impossible to consider that the North Korean dictator might actually be a rational actor, amenable to negotiation.  As ex-President Jimmy Carter tersely phrased it:

I think we were on the verge of war.

It was only when Carter decided to make a controversial, personal visit to Pyongyang did it became clear that Kim was ready to deal, and tensions were effectively defused. 

The demonization of Saddam Hussein made many otherwise reasonable people unable to imagine what could be worse than a vicious dictator and, of course, led directly to the invasion and destruction of much of Iraq, not to mention the expansion of Al-Qaeda and birth of ISIS. 

In the case of Trump, it would have been nice to think he was being amusing in a Hugo Chavez-sort of way.  In Chavez’s 2006 address to international leaders at the UN, he referred to George Bush:

This is another abuse and another abuse of power on the part of the devil. It smells of sulfur here, but God is with us and I embrace you all.

However, Trump’s pattern of demonization tends to be tinged with violent rhetoric, such as his comments that 2nd amendment supporters have “ways” to prevent judges from being named, and that Clinton should consider forgoing Secret Service protection.  Demonization of Hispanics and Muslims may already have inspired actual violence.

The demonization of Vladimir Putin

These days, demonization is not just the province of Trump.  We are deluged by depictions of a thuggish, kleptocratic regime led by Vladimir Putin in which reporters and political opponents are mysteriously murdered.  Taken together with events in Crimea, Ukraine, Syria and especially Aleppo, it can be difficult to believe Putin is not the essence of evil. 

Of course, Trump’s bromantic infatuation with Putin’s “toughness,” his fantasy-world depiction of Russia, Iran and Syria merrily targeting ISIS and his complete denial of US intelligence conclusions regarding Russian interference in Ukraine, not to mention the US presidential campaign, is unseemly at best.  Frankly, it is almost unbearable to envision Trump in Putin’s dacha’s sauna as they down shots of vodka (or just orange juice, for the Donald), roll in the snow, and gently whip each other’s naked sweaty backs with willow switches. 

Nonetheless, not everything Trump says—such as the idea of not-demonizing Putin--is wrong. 
In fact, a strong argument can be made that Putin is quite a rational actor, and that misguided policies by successive US governments have triggered some of his actions.

For that reason, it was encouraging to hear Hillary Clinton note in the 2nd debate her experience in negotiating agreements of mutual interest with Putin.

The demonization of Donald Trump vs the MacArthur alternative

If we look beyond the election, demonizing Donald Trump, very popular among despairing newspaper columnists these days, is probably not a long-lasting solution answer either.  It is perhaps worth reflecting as to how some in the political establishment once handled another serious threat to American democracy, a charismatic figure with presidential ambitions who also didn’t want to participate in a traditional campaign:  General Douglas MacArthur, hero of the Pacific battles in World War II and military ruler of the defeated Japan. 

As Commander of United Nations forces in the Korean War, MacArthur openly advocated the bombardment of China and its invasion by Chiang Kai-shek’s troops, in the process utterly disregarding the potential for nuclear war, and directly challenging the war policies and authority of then-unpopular President Truman.

In April 1951 he was dismissed by Truman for insubordination, but as vividly described by Robert Caro, MacArthur’s “forceful, colorful rhetoric” and “his hold on the public imagination,” subsequently led to a series of wildly popular rallies in San Francisco and New York.  He gave a nationally televised speech to a Joint Session of Congress that elicited a rapturous response. 

Caro quotes a Senator saying,

This is new to my experience; I have never feared more for the institutions of my country. I honestly felt back there if the speech had gone on much longer there might have been a march on the White House.”

That speech was followed by a parade down Pennsylvania Avenue that further crystallized the fears of many.  One journalist recalled it as

 the only time in my life that I ever felt my government to be fragile…. I’ll never forget watching him go up Pennsylvania Avenue. I had a very strong feeling that had he said ‘Come on, let’s take it’ and had started to charge toward the White House…. [T]he adoring crowds that thronged the streets would have gone with him.”

This threat was eventually defused by allowing MacArthur (and other generals and officials) to offer their views within the context of a Congressional hearing on US administration policies in Korea. The hearing was managed in a way that showed how isolated and uninformed MacArthur really was, and allowed passions to ebb.

In Caro’s retelling, there appear to be two key elements here:  first, the involvement of a senior, well-respected conservative political leader (segregationist Georgia Senator Richard Russell).  Through the use of cogent questioning of MacArthur and eminent witnesses, Russell helped to courteously, dispassionately, and systematically dismantle MacArthur’s uninformed and delusional ideas. 

Secondly, the hearings were carried out in a controlled setting, in untelevised Senate Hearing Rooms, which precluded both revelation of secrets as well as grandstanding displays to the masses, and which took place over a period of several days.  MacArthur wasn’t demonized, but shown to be na├»ve, absurd, and dangerous.

In and amongst his intensified ravings about rigged elections, Trump recently launched a thunderous tweet based on zero evidence that the firebombing of GOP headquarters in Orange County, North Carolina was carried out by “animals representing Hillary Clinton and Dems.”  As far as I can tell no other Republicans, not even Breitbart and Fox News, have yet echoed these Reichstag-like accusations, but neither have they condemned them.

Where are the calm, right-wing Republicans here who perceive Trump as a threat to American democracy?  Will any stand up to forcefully and dispassionately dismantle Trump’s wild claims that the devil’s supporters are violently attacking the Republican Party, and that US elections are rigged?

If not, perhaps it’s time to only let women vote.

Friday, October 21, 2016

No More Debates, Ever

by Neil H. Buchanan

The pundits and the public have weighed in on the final presidential debate of 2016, and it turns out that my conclusions (which I reached after my usual self-sequestering, so that I did not know about the emerging consensus as I wrote down my thoughts) were widely shared, with some important caveats that I will discuss shortly.

Most importantly, there has been nearly universal condemnation of Donald Trump's refusal to say that he would accept the results of the vote, even if (when) he loses.  Trump's surrogates spent Thursday frantically reassuring the world that their man is not that insane, but they have had only limited success (for obvious reasons).  But in any event, it is heartening to see the fierce reaction against Trump's flirtation with insurrection.

Still, the negative commentary to a large degree has missed the importance of Trump's arguments as to why the vote will be rigged against him.  Amy Davidson in The New Yorker and William Saletan in Slate were the exceptions in noting all three of Trump's claims: voter brainwashing by the purportedly liberal media, Clinton's ineligibility to run for President because she is supposedly a criminal, and the bogus claims of voter fraud.

By only paying attention to the last of those three delusions, most commentators made it too easy for Trump's apologists to say that he was merely reserving his right to request recounts if the outcome is close, or to raise legitimate claims of voter fraud.  Because that is not at all what he said, as I argued, nothing that happens between now and Election Day will resolve his supposed concerns.

But again, it is gratifying to see nearly everyone get the big picture right, and not just on the post-election insurrection issue, but more broadly.  Clinton won big, again, while Trump melted down and became incoherent.  Clinton handled herself with grace and class, while Trump exposed himself once again as a misogynist and bigot.

With all of that in mind, I nevertheless hereby call for the end of national presidential and vice presidential debates forevermore.  Yes, you read that correctly.  In the aftermath of a debate sweep that might have changed the course of human history, the wisest thing that we could do is to put an end to these dangerous spectacles.

To be clear, I love debating.  I spent many years of my early life participating in and coaching debate, especially parliamentary debate at the university level.

My unhappiness with the presidential debates, however, is not a matter of academic purism.  As Professor Dorf argued before this year's debates began, there is no reason why presidential debates should follow the structure of competitive college-style debating.  The problem is not the variation on some ideal format, but something much deeper.

Not only do I not think that there is a meaningful problem with the structure of the presidential debates, but I continue to think that debates can be a valuable tool.  In my reaction to this year's first presidential debate, I argued that "good debaters beat bad debaters," no matter the venue.  And it is important for the public to know which is which.

One reader responded to my argument by saying that he does not care who the better debater is between two presidential candidates.  Instead, command of facts and the ability to construct logical arguments is what matters.  This argument, however, suggests that there is a difference between being a good debater and being able to construct reality-based, reasoned positions on the issues.  In fact, there is no difference.

In his classic and essential essay "Politics and the English Language," George Orwell rejected the notion that a person can have good ideas without having the words to express them.  When someone says, "I know what I mean, but I don't know how to say it," most people sympathetically nod.  Orwell would say, "Then you don't really know what you mean."

Orwell's point is that the path between muddled thinking and muddled communication is not a one-way street.  That is, most people seem to think that unclear thinking will always lead to unclear speaking or writing, but clear thinking might or might not find its way into clear communication.  Orwell says that if you are not making your point clearly, then you do not have a clear point.

The practical implication of that insight is that we should be wary of politicians and their handlers who excuse sloppy communications as a mere skill deficit.  George W. Bush was not coincidentally a poor speaker.  He was a muddled thinker who did not care even to try to think through issues, and that became obvious any time he opened his mouth.

All of which means, again, that I should be arguing in favor of presidential debates.  Forcing candidates for the highest offices in the land to express themselves, and to respond to the arguments made by their opponents, is a fair and perhaps even irreplaceable method of allowing people to see who thinks clearly, accepts facts (and is aware of them), and can respond to criticism.

As I noted above, moreover, my favored candidate this year benefited enormously from the debates.  Although she has been ahead all along, her recent surge seems to have been triggered by the first debate, and everything has gone her way since then.

Given that I sincerely believe Trump to be an existential threat to constitutional democracy (to say nothing of the future of the world), why should I not be thrilled by the role that the presidential debates seem to have played in saving all of us from doom?

The problem, as I have noted over and over again for the past month, is that these debates are not judged by the important standards that make debating valuable.  After the first presidential debate, I was stunned to read that even left-leaning commentators had been scoring the first part of the debate as a win for Trump.

How was that possible?  As everyone now knows, Trump was simply lying his way through every aspect of that debate (as he did during the next two), and his supposedly compelling arguments about international trade during the first twenty minutes were backed up by neither evidence nor logic.  But, the commentators insisted, he was supposedly being persuasive and "connecting" with voters.

During the first half of the third debate, Trump was just as bad.  Asked about the Supreme Court, he could not even get himself to say clearly that Roe v. Wade would be overturned if he were to become president.  He attacked Justice Ginsburg for attacking him.  He said that Hillary Clinton would destroy the Second Amendment.

In other words, Trump was doing what he always does, inside and outside of debates.  He seized on issues that he knows nothing about -- for example, late-term abortions -- and repeated some things that he had read on some right-wing website about babies being ripped out of wombs the day before birth.  Truly uninformed nonsense.

Yet, as Slate's Jim Newell usefully points out, "Much of the post-debate conventional wisdom on cable news and the internet suggests that Donald Trump was having a fine debate for the first 50 minutes or so."  Newell strongly disagrees with that conventional wisdom, and so do I.  But what does this tell us about the conventional wisdom?

This is not merely a matter of Trump being judged against low expectations.  Instead, the idea was that as long as he was talking about issues, he was doing well.  It did not matter that what he said was fantastical idiocy, because he was talking about issues, which apparently sounded serious or presidential, or something.

Add in the punditocracy's core belief that Clinton is too wonky, and the result is a consensus that whenever the debates were boring, Trump was winning.  And this suggests that a Trumpian idiot candidate in the future who is not also a crazed megalomaniac could "win" these debates.

Do we need to remind ourselves again that this year's vice presidential debate was widely judged a win for Mike Pence because he did not seem fidgety, even though he spent the debate gaslighting the world about what Donald Trump has said?  (Pence on Trump's outrageous statements, in a nutshell: "That's nonsense.  He would never say that.")

As I noted after that debate, Pence benefited from the random reversal of pundits' belief that Al Gore had lost a debate in 2000 by being too condescending.  And Mitt Romney's lie-filled 2012 debate was deemed a win because he seemed to "command the stage," whatever that might mean.

From a purely partisan standpoint, then, liberals -- indeed, anyone who is horrified by the prospect of Trump becoming president -- should not conclude that Clinton's three wins validate the importance of presidential debates.  After all, Clinton has been leading all along, and much of what has damaged Trump (the partial tax returns, the "Access Hollywood" tape and subsequent accusations of sexual assault) coincided with the debates, but they would have happened in any case.

And from a nonpartisan standpoint, we now know with absolute certainty that there is simply no correlation between the valuable knowledge that debates can provide and the impact of that information on the political response to the debates.  These are high-stakes events that can turn on the most superficial of matters, and it is not even possible to know which matters of "style" will be deemed important at any given moment.  (Too angry?  Not angry enough?  Too analytical?  Not relatable?)

The good news is that, running as an incumbent in 2020, President Clinton will be perfectly positioned to suggest that the debates be abandoned.  No one could accuse her of being scared of debating, and if anything, she would seem to be giving up an advantage.

In the end, the presidential debates were a good idea that were defeated by the irresponsibility, laziness, and superficiality of our media's political reportage.  Substance almost never matters, and style only matters in unpredictable ways.  What could go wrong?

Right now, nearly everyone is expressing relief that this year's debates are over.  It would be even better if we never again had to anticipate these ridiculously dangerous events, or the mindless coverage that accompanies them.

Thursday, October 20, 2016

Donald Trump, Insurrectionist

by Neil H. Buchanan

For the third presidential debate, I once again sequestered myself from media reactions, fact checks, conversations with friends, and so on.  As I write these words, I have not read or heard any evaluations of the debate, which allows me to offer my own reaction to the debate rather than being swayed by spin and groupthink.

I will shortly turn to the task of evaluating the debate overall, both from stylistic and substantive angles.  But I simply cannot bury the lead:

Donald Trump announced at the debate that he will not accept the results of the presidential election, unless he wins.

If that is not a plan to foment insurrection, I do not know what is.  This is not the kind of thing that one says lightly, but it is chillingly accurate.

During the debate, the moderator Chris Wallace asked Trump if he would accept the results of the election, win or lose.  Trump said, "I will look at it at the time," and then "We'll find out on November 8."  Wallace had even reminded Trump that his running mate Mike Pence had promised to accept the results, but it did not matter to Trump.

To Wallace's eternal credit, he then all but begged Trump not to go down that road, reminding him of the importance of the peaceful transition of power in our democracy.

Unfazed, Trump said: "What I'm saying is I'll tell you at the time. I'll keep you in suspense, okay?"  He talked as if this was a teaser for the final episode of a television show, not the possibility of the breakdown of American law and order.

Hillary Clinton's response was very good, as always, beginning by saying that Trump's non-answer was "horrifying."  She pointed out that Trump's pattern is to claim that everything is rigged when he loses, even down to losing an Emmy award for his reality-TV show.

Showing just how little he cares about any of this, Trump smirked and said, "Should have gotten it."  Clinton smartly worked his lack of seriousness into her response: "This is how Donald thinks. And it's funny, but it's also really troubling."  To say the least.

The reason that I am describing Trump's response as a path to insurrection, however, is that he actually described his three reasons for believing that the election is rigged.  Not only are those reasons insane, but nothing that could happen between now and November 8 could possibly satisfy him.  He will lose, and he will then tell his people not to accept the results.

First, Trump claimed that the media has "poisoned the minds of the voters."  This is standard press-baiting from any Republican, but Trump used it to say that the election itself is rigged and thus that the results will be illegitimate.

That is an incredible claim, because Trump has now decided that he alone is capable of saying whether people's votes should be counted at all.  "You voted for Clinton?  You poor thing, you were brainwashed by The New York Times and Washington Post.  Your votes are part of the rigging process, so they do not count."  Losing will be proof of his conspiracy theory.

Second, Trump claimed that millions of people who should not be registered to vote are registered.  Of course, Trump claimed that many "places" (by which he seems to have meant media sources) have verified this non-fact, which means that Trump is once again channeling a whole set of pet conspiracy theories on the right.

Trump has spent the last few weeks whipping his supporters into a frenzy with racist claims that "certain neighborhoods" are going to engage in massive voter fraud.  As always, his claims were not based on facts, but he and his surrogates have nonetheless convinced many of his supporters that African-Americans and Hispanics will steal the election.

Again, what could happen between now and Election Day that could convince Trump that voter fraud turned out not to be a problem?  He and other Republicans live in an alternative reality in which minority voters steal elections, even though all independent studies confirm that voter fraud could not possibly swing an election.

Trump will not care.  Surely, he and his supporters will cite "many, many reports" on Election Day that supposedly prove voter fraud.  And nothing will convince them otherwise.

Third, Trump decided to adapt his attack line about Clinton's email controversy by saying that she should be in jail for violating the law.  That means, according to Trump, that the election is rigged because she should not even be allowed to run against him.

Trump dismissed the FBI's decision not to indict Clinton -- which, we should all recall, saw the FBI director being very critical of Clinton yet still concluding that "no reasonable prosecutor would bring such a case" -- because of yet another conspiracy theory, this one involving Bill Clinton and the Attorney General.

In short, Trump thinks that it is acceptable to hold out on answering one of the most fundamental questions of any presidential candidate: Will you go peacefully if you lose?  And although he says, "We'll see," he has already told us what his answer will be.

When the votes have been counted, Trump will still be convinced that the media "poisoned" people's minds.  Stories of voter fraud will fill the right-wing media.  And Hillary Clinton will still not be in jail.

Trump has now announced to the world that his losing will prove that the election is rigged against him.  He will thus arrogate to himself the right to say that he did not lose fair and square.  If you are not scared, you should be.

It is thus more than a bit of an anti-climax to explain just how badly Trump lost the rest of the debate.  Even so, it is important to remind ourselves just how incapable of rational thought this man is, and how temperamentally unfit he is for any public office.

Actually, there was one good moment for Trump, from the standpoint of effective debating.  Wallace brought up the hacked emails from the Clinton campaign, asking her about the portion of a speech in which she said that she "dreamed" of a world with open borders and open trade.  This question did not take Clinton by surprise, of course.

After answering the question directly, she used the opportunity to remind Wallace and everyone else that the question was based on foreign espionage, with Russian hackers having violated her privacy in order to tilt the U.S. election to Trump.  Among other things, this allowed Clinton to remind people that the Russians have not leaked anything against Trump.

When it was Trump's turn to speak, he pointed out that the discussion of Russian hackers was not at all responsive to Wallace's original question.  As I noted above, that was a good debating move.  In three debates, Trump had one good moment.  Kudos.  Of course, Clinton actually had answered the question, and she had raised a much more important point, but why be picky?

For the rest of the debate, Trump was his usual rambling, incoherent self.  He went through his greatest hits of just-so stories and lies, continuing to blame Clinton for not having solved every problem in the world during her years as First Lady, U.S. Senator, and Secretary of State.  It is still, in Trump's view, all her fault.

I will comment on one or two policy issues in a moment, but it was especially notable how badly Trump performed stylistically.  Although he only snorted once, he was simply terrible when it came to his speaking style.  Sentences would trail off.  Sometimes it was impossible to know who or what he was talking about, because he was being so vague.

More to the point, he was a snide, condescending jerk.  He made faces when Clinton was speaking, he revived his honking "Wrong!" heckle, and he insulted her to her face.  Weirdly, he twice asked her direct questions but then cut her off dismissively when she tried to answer.

The substantive aspects of the debate were even worse for Trump.

Because I am an economist, I was especially fascinated -- and not in a good way -- by the discussion of budgetary issues.  This is not to say that any of the other issues about which Trump made up his own facts -- terrorism, immigration, guns, and so on -- are less important.  I just happen to know more about the economic issues.

The discussion went badly in large part because Chris Wallace is so ignorant about economics.  He had a tough time all night in his moderating role, and he did do a good job in some ways, but he asked ridiculous questions about economics.  Trump's answers, of course, were worse.

Early in the debate, Wallace asked this jaw-dropper: "Secretary Clinton, I want to pursue your plan. Because in many ways it is similar to the Obama stimulus plan in 2009, which has led to the slowest GDP growth since 1949."  Even Trump could not pretend that that was a fair and balanced question.

So, Wallace believes that the stimulus plan "led to" slow GDP growth?  The most generous way to view this, I suppose, is to say that the stimulus happened first, and then after a few years of decent growth the economy has slowed down disappointingly for the last few quarters.  Of course, current forecasts indicate that this is a temporary lull, but we can leave that aside, too.

For Wallace to say that the stimulus package "led to" this recent slow growth suggests causation, which is utterly ridiculous.  This is a standard Republican talking point, which is that the stimulus "failed."  The fact is that the economy would have grown even more slowly if there had been no stimulus package, and the economy would have grown faster if the stimulus package had been larger (and included fewer giveaways to the rich).

Moreover, as Clinton pointed out, the U.S. and the world in 2008 and 2009 were on the precipice of something truly terrible.  Economists were seriously asking whether a full-on global depression was imminent.  I have always thought that the stimulus was too small, and that President Obama was wrong to capitulate to Republicans and a few conservative Democrats who insisted on shrinking it, but the idea that the stimulus did something enormously important at the time that it was passed is beyond question.

Trump, of course, thinks that he has the magical touch to make the economy grow faster.  He invoked India and China to say that they have high growth rates, even though those growth rates are a matter of those countries catching up with the wealthy countries.  They cannot be replicated here.

It has become all too easy to forget just how empty Trump's economic argument is.  He says that he will bring back America's former industrial glory, by stopping jobs from leaving the country.  How?  By making it happen.

Like almost everything else he said at the debate, Trump was simply preaching to his choir.  Trade bad, immigrants bad, politicians fail, tax cuts for the rich, trust me.  It is a fantasy world, but some people like hearing him say these things.

Wallace's other economic questions focused on the national debt.  He twice invoked a "deficit scold" lobbying group as a source of claims about federal borrowing, and he then invoked the all-purpose "entitlements" trope to attack Medicare and Social Security.

To be fair, this question was likely to be more uncomfortable for Trump than for Clinton, because Trump's trickle-down tax plan is so extreme, while Clinton's plan has real numbers to back it up.  Even so, it was fascinating to see a moderator adopt as fact a model of economics that has never been less relevant than it is today, with global interest rates at or near zero.

Trump managed to give the most ridiculous answer possible.  He simply said that debt will not be a problem, because he will make the economy grow really, really fast.  He claimed that he can move the annual GDP growth rate "up to 4 percent. I think you can go higher, to 5 or 6 percent. We have a tremendous machine. We will have created a tremendous economic machine."

I guess it will be tremendous.  Why not 7 or 8 percent, as long as we are just pulling numbers out of the air?

From a debating standpoint, perhaps the most interesting moment of the night was when Wallace asked the candidates to deliver what amounted to closing statements.  Clinton delivered a crisp, positive vision of the United States and the future, promising to stand up for the powerless against the powerful.  It touched on themes that she had brought up earlier in the debate, and she closed strongly.

Trump, in stark contrast, rambled on about his usual run of fact-free claims, from our supposedly "depleted military" to "Our policemen and women are disrespected" to "Our inner cities are a disaster."  On the latter, he immediately equated inner cities with minorities, saying absurdly that "They have no education, they have no jobs. I will do more for African Americans and Latinos than she can ever do in ten lifetimes."

In short, Trump ended his final debate as he began his campaign, and as he honed his message at the Republican National Convention.  In Trump's mind, everything is terrible, and the only way to make things better is to let him do whatever he wants.

Finally, I cannot help but comment on Hillary Clinton's poised performance in the debate.  She was a picture of composure, even as Trump called her a liar and claimed absurdly that her campaign had tried to pay people to disrupt Trump's rallies.

Most importantly, Clinton managed to force herself to stand calmly next to a confessed serial sexual assailant, speaking firmly while her opponent heckled and demeaned her.

A year ago, I was not sure how I felt about Hillary Clinton as a presidential candidate.  At this point, her grace and strength have won me over.  No one else could withstand what she has withstood.  I want her working for me.

Wednesday, October 19, 2016

Colin Kaepernick and the Meaning of Patriotism

by Michael Dorf

My Verdict column for this week examines Justice Ruth Bader Ginsburg's criticism of Colin Kaepernick's refusal to stand for the national anthem. Interviewed by Katie Couric, Ginsburg called Kaepernick's ongoing boycott--which protests police brutality and racism--"dumb" and "disrespectful," even as she acknowledged that he cannot be criminally charged for his freedom of speech. I argue that while Ginsburg or any other justice can say this sort of thing without violating any judicial code of ethics (and not just because none applies to Supreme Court justices), she was unjustified in criticizing Kaepernick.

I drafted the column on Friday of last week, and by the end of the day, Justice Ginsburg had announced that she regretted the criticism. Thus, I edited the column (before publication) to make it less a critique of Ginsburg's initial criticism of Kaepernick and more of an exploration of why she was right to rescind her criticism.

My column explains why kneeling to protest the national anthem is roughly equivalent to sitting or standing quietly during the Pledge of Allegiance. Because liberals generally don't think there is anything wrong with the latter, we also shouldn't think there's anything "dumb" or "disrespectful" about the former. The column also explores the possibility that Ginsburg was making a comment about the content rather than the form of Kaepernick's protest, but I rule that out as well, because Kaepernick is raising consciousness about important issues.

Here I want to suggest and then reject a way of seeing the initial Ginsburg/Kaepernick split through the familiar lens of reformer-versus-radical. We might be tempted to think of Ginsburg as following in the footsteps of Frederick Douglass, who (in an 1860 speech in Glasgow) acknowledged that the (pre-Civil War) Constitution may have been intended by some and had been construed by many as pro-slavery, but that given its most natural meaning, the Constitution was anti-slavery. Meanwhile, we can think of Kaepernick as walking the same path as William Lloyd Garrison, who condemned the Constitution as a "covenant with death" and "an agreement with hell." Or, if you prefer a more recent dichotomy, Ginsburg was Thurgood Marshall and MLK, while Kaepernick was Malcolm X and Huey Newton.

This comparison resonates with an intriguing take of recent activism. I recently read a draft of an excellent paper (and heard a likewise fascinating presentation) by Ohio State Law Professor Amna Akbar, in which she contrasts the reformist vision for policing that one sees in the Justice Department's reports on policing practices in Ferguson and in Baltimore with what she calls the "abolitionist" approach to policing minority communities set forth in the Black Lives Matter Platform. (The paper is still in the development stage and thus not yet publicly available on SSRN or otherwise, but Prof. Akbar graciously granted permission to me to discuss it here.) She argues persuasively that the vision articulated in the BLM Platform "echoes earlier platforms of the Black Panther Party and the Chicano Young Lords." If the DOJ has a mainstream civil rights focus that grows out of the Marshall/King vision, then, to an extent not widely appreciated, Black Lives Matter has a Black Power focus that grows out of the Malcolm X/Huey Newton vision. And the closeness of Kaepernick's protest to the activism of Black Lives Matter thus reinforces the (initial) distance between Ginsburg and Kaepernick as a manifestation of a long-running split between reformers and radicals.

And yet, there is something about these comparisons that seems to get Kaepernick wrong. Kaepernick is not demanding change by any means necessary. He is engaging in wholly peaceful protest. His is not even an act of civil disobedience, as he has no legal obligation to stand for the national anthem.

Nor is it evident that Kaepernick's substantive goals are radical, rather than reformist. Back in late August, Kaepernick explained that he would stand for the national anthem when he feels "like that flag represents what it's supposed to represent, and this country is representing people the way it's supposed to." In an important sense, that is the Frederick Douglass view of the Constitution: Best understood, it advances liberty and equality; it's not being understood that way now; let's work to redeem it.

In light of the mildness of Kaepernick's means and ends, the reaction against Kaepernick by various commentators and current and former athletes is interesting. A great many have been supportive, but some have been quite critical. Some of that criticism has been mindless, as when Ted Cruz called Kaepernick "spoiled" (and attacked President Obama for supporting Kaepernick's right to free speech).

But there has also been some thoughtful disagreement with Kaepernick. The most interesting I have seen came from Baltimore Ravens tight end Benjamin Watson. While defending Kaepernick's right to free speech and pretty much agreeing with Kaepernick about the issues of racial justice Kaepernick cares about, Watson argued that one can stand for the national anthem as a kind of mindful (as opposed to mindless) patriotism. (I say this even though Watson's views on a number of issues differ from mine. E.g., he is pro-life and he thinks that "religious freedom is increasingly under attack.)

There is a sense in which both men are right. Watson is obviously right that if any problems at all precluded participation in the national anthem, then no one could ever stand for the song, because our country is not and never will be perfect. But I take Watson to be making more than that trivial point. I take him to be saying that we are not merely imperfect; we are deeply troubled still by our original sin, just as Kaepernick argues. And even so, Watson thinks that the right answer is to engage in the collective patriotic ritual.

There is no doubt something to that--especially when coupled with a defense of the right of Kaepernick and others to dissent. But even so, I think the very thoughtfulness of Watson's defense of mindful patriotism shows the efficacy of Kaepernick's protest. Kaepernick has succeeded in refusing to accept racial injustice as normal, but in doing that he joins a chorus of many voices, including other athletes (like NBA stars Lebron James, Chris Paul, and Carmelo Anthony). What Kaepernick almost alone has done is to spark a renewed conversation about the meaning of patriotism.