Tuesday, July 07, 2015

The Neanderthal Question in U.S. Politics

by Neil H. Buchanan

In the aftermath of the liberal outcomes in the Supreme Court's recent marriage equality and health care cases, some commentators suggested that those outcomes would actually be good for conservatives, especially for the Republican presidential candidates.  In my Dorf on Law post last Wednesday, I acknowledged the logic behind that assertion, in that the Republicans could now choose to put aside their increasingly unpopular positions on both issues.  Although the evidence of the last week suggests that the Republican candidates are refusing to accept this generous gift from the Court, that could merely be a death rattle.  Or maybe not.

What was truly odd, in any event, was the claim that these landmark rulings would serve to clear away the distracting wedge issues that Republicans have foolishly pursued, and that dropping those obsessions would now bring them back to their strengths.  That argument was offered succinctly by former Minnesota Governor Tim Pawlenty, who was quoted in a New York Times news analysis article: "Whether the presidential candidates agree or disagree with the results of all this, it allows them to say these issues have been settled and move on to things that offer more of a political home-field advantage."  Most of my post last Wednesday was essentially a long-winded way to ask: "Things like ... what, exactly?"

Seriously, what are the issues on which the Republicans have a political home-field advantage?  Although that Times article helpfully noted that "Republicans contend that America is still receptive to a more conservative approach on economics and national security," the only supporting argument that the reporter offered was to suggest that there are "limitations of economic populism, as organized labor was [recently] unable to block a measure giving President Obama expansive trade authority."  This, however, is a non sequitur.  It is sadly true that Obama joined with Republicans to ram through fast-track trade negotiating authority, but that does not mean that economic populism is unpopular or that Republicans have a natural advantage on issues of trade.  It merely means that Obama was willing to ignore workers' interests in order to push through a supposedly legacy-defining accomplishment.  That Obama joined with conservatives to pass a bill favoring multinationals' interests is not an argument that "America is still receptive to a more conservative approach" to anything.  It just means that Obama is willing to toe the neoliberal line far too often.

As part of my discussion of the ways in which Republicans might respond productively to the Court's recent decisions, I noted a comment by conservative outcast David Frum, who was quoted in the same Times article as follows: "Every once in a while, we bring down the curtain on the politics of a prior era.  The stage is now cleared for the next generation of issues. And Republicans can say, ‘Whether you’re gay, black or a recent migrant to our country, we are going to welcome you as a fully cherished member of our coalition.’ ”

Summoning all of the subtlety and understatement that I could muster, I characterized Frum's point as saying "that one can be a good conservative without being a gay-baiting, racist, immigrant-bashing neanderthal."  Although I believe that Frum made his point in good faith, I then said that "I am not actually sure that he is right about that."  I have been thinking about why I expressed doubt about that assertion, in particular whether I am really willing to say that one cannot be a conservative without also "being a gay-baiting, racist, immigrant-bashing neanderthal."  Acknowledging that my rhetoric was deliberately provocative, I am still doubtful on the merits that Frum is right.  I will use the balance of this post to explain some reasons why I think that he is, in fact, probably wrong.  The analysis relies heavily on the age-old debate about intent versus results.

The easiest way to argue that conservatives cannot be socially progressive and still be conservative, of course, is to point to the current state of the Republican Party.  The Presidential candidates are not some randomly selected group that happened to skew toward extremism on immigration, gay rights, racial issues, and everything else.  They are clearly aligned with -- or pandering to -- the views of the party's base.  Even Wisconsin Governor Scott Walker, who had been a hard right-winger on economic issues but not a fire-breather on social issues, has recently either revealed his true feelings or has opportunistically morphed into a born-again social neanderthal.

Note also that even Frum did not include women in his peroration.  We cannot know whether this exclusion was meant to deliberately rule out a more open-minded approach by conservatives on reproductive matters and workplace issues, but certainly the Republicans have made it clear that they are not letting go of their longstanding social conservatism regarding women.  Even if the party does ultimately give up the ghost on the ACA and marriage equality, on the theory that "the issues have been settled in the courts and it's time to move on," the Republicans are barreling forward toward the half-century mark in their unwillingness to view Roe as having settled the question of choice on abortion.

As I said, however, this version of the argument is easy, and it arguably misses the point.  At its core, this argument says merely that one cannot be a conservative who is not a gay-baiting, racist, immigrant-bashing neanderthal because all of the current Republican presidential candidates fit that description, and that they are reflecting the views of the more conservative of the two U.S. political parties.  Obviously, however, one could reply that the more conservative U.S. party has been taken over either by something other than actual conservatives, or that the neanderthal attitudes of most current Republicans are not inherent to being conservative.  Indeed, I have argued that one could be a non-neanderthal conservative and quite easily find a relatively happy place in the Democratic Party.  Obama's efforts on the trade deal are merely one example of how that argument works.

The more difficult version of the argument is that, no matter which party one happens to join (if one joins a party at all), it is possible to be a true conservative on the issues that matter without harboring racist, anti-gay, or jingoistic attitudes.  I imagine that this is the version of the argument that Frum was espousing.  Certainly, I have met many conservatives who claim to be examples of that species.  They are sure that they are not bigots, and they argue that their conservative views on issues other than social policy are simply irrelevant to their views on race and other supposedly secondary matters.  In legal circles, that argument is even easier to make, because one need only aver that one's policy preferences are distinct from a belief in textualism, or some other once-removed intellectual commitment.

As I have conceded, I have no doubt that these people believe themselves not to be prejudiced or otherwise backward.  But that argument is too easy in the other direction.  Pretty much everyone in the U.S. knows enough to say that they are not racist, anti-gay, or anti-immigrant.  (Donald Trump, as always, is an exception.)  Chief Justice Roberts claims that his vote against marriage inequality was essentially procedural, not based on animus.  And I believe that he believes that to be true.

Yet we cannot ignore the consequences of what people actually advocate, merely because of what they claim are their well-meaning motivations.   At some level, people must be considered capable of knowing what their actions and opinions imply.  In Roberts's case, his separation-of-powers analysis would result in the continuation of unequal treatment of gay couples who wish to marry.  Even if Roberts reaches that view in sorrow rather than in Scalian anger, he is still taking a position that is harmful to gays.

Similarly, consider the oft-heard claim that economic conservatism simply means "fiscal responsibility and belief in free enterprise."  Yet the result of people holding such views in the U.S. today is that policies that would partially redress the racial imbalances in economic opportunity and outcomes are off the table.  "We can't do that, because it requires deficits, which are bad for future generations" is ultimately a dodge, because at best, it boils down to saying, "I choose future economic growth over helping a disadvantaged population today that is composed disproportionately of minorities, women, and immigrants."

I suppose that one could say, "But I'm a different kind of conservative.  I believe in fiscal responsibility, but that simply means that I don't believe in running deficits, so I'm in favor of spending programs that have a positive disparate impact on people of color, and I'll pay for it by advocating higher taxes."  At that point, however, it is necessary to remind ourselves that words do not mean whatever a person wants them to mean.  Being a high-tax conservative is conceivable, one supposes, but it starts to look a lot like liberalism.

The conservative economic agenda generally favors less government action to deal with social problems, which means that conservatives oppose existing and proposed programs that have obvious racial and gendered effects.  Being in favor of the conservative agenda, and either ignoring or discounting the resulting harm to real people, means that one is choosing policies that have racist and sexist impacts (even though, in terms of sheer numbers, many of those victims are actually white men, a la "What's the Matter With Kansas?").  I can readily concede that these avowedly well-meaning conservatives do not talk like Trump or O'Reilly, but they pursue pretty much the same policy agenda.

In the end, then, is it possible to be a "conservative without being a gay-baiting, racist, immigrant-bashing neanderthal"?  My tentative answer at this point is, "Yes, as a matter of attitude, but not as a matter of substance."  I would not call any of my conservative friends, family members, or colleagues neanderthals, and not just to be polite.  In that context, intent matters.  But unless one redefines conservatism to mean something that is utterly idiosyncratic, the fact is that most conservative domestic policies (economic and otherwise) have impacts that are disproportionately harmful to minorities and women.  That is bad for the people who are harmed, of course.  The good news is that it has implications for political outcomes, too.


Tin said...

Well said.

I would add that even the "fiscal conservatism" label has been utterly debased by the enormous deficits and voodoo economics of every GOP administration since Reagan.

Hashim said...

So let me get this straight: a person is "racist" "as a matter of substance" whenever they "know" that the "consequences" of their preferred policies will "have impacts that are disproportionately harmful to minorities and women"?

I'm pretty sure that many violent crimes are disproportionately committed by racial minorities. So do you think there should be no criminal penalties for those crimes because incarceration would have a disparate impact on minorities, are you too a "racist as a matter of substance" because you're willing to "choose [punishing and deterring violent crime] over helping a disadvantaged population today that is composed disproportionately of minorities"?

I'm guessing the former, because you, like everyone else, recognizes that adverse racial effects aren't dispositive when making public-policy decisions, as those costs still need to be weighed against the benefits of the policy that produces them and the costs of an alternative policy. In short, you just care about deficits less than violent crime and/or believe that it's fair to punish minorities for crime but not for poverty -- the fact that others don't share your views on these economic and moral issues doesn't make them racist, either in attitude or substance.

andy grewal said...

Those who favor robust due process protections for the criminally accused are, "in substance," supporting child molestation and murder, because greater procedural protections inevitably lets more child molesters and murderers back onto the streets. Such persons might claim they aren't trying to get more 5-year old kids raped, but "we cannot ignore the consequences of what people actually advocate."

Very . . . interesting.

Eric Segall said...

Both of those examples are terrible. Racially neutral policies in light of 200 years of formalized legal racial discrimination quite obviously help perpetuate the harm caused by those policies. You think the terrible state we are in today regarding high incarceration rates and lower economic status of minorities is fate, or luck, or happenstance? What about billions of gov't dollars over decades going only to mortgages for white families leading to better neighborhoods, schools, and more family wealth as those houses appreciated. Not fate or luck but intentional gov't choices. Oh, let's just forget that ever happened. Right.

andy grewal said...


The problem with the incendiary original post is to take something that has mixed costs and benefits, focus only on the benefits of that thing, and then argue that anyone who is against that particular thing is a neanderthal because he is against something that is unequivocally good.

Your post exhibits the same flaw. The benefits of affirmative action may very well exceed the costs. But to frame the debate as solely about helping minorities, and arguing that anyone against is is a caveman, is simple intellectual laziness. And it also implies that those who favor criminal defendants' rights want children to be raped because, to borrow the words from the original post, increasing the burden of proof unequivocally has "impacts that are disproportionately harmful" to victims and potential victims.

I of course don't believe that the criminal defense bar wants children to be raped, just as I don't believe that, by virtue of his interpretive approach, a honest textualist wants gay to be discriminated against by, or by virtue of his interpretive approach, a purposivist wants Dred Scott to be enslaved. But the post reflects that flawed analysis, and I'm surprised that you're defending it. Any interpretive approach will give you good and bad things.

Eric Segall said...

I am not saying anything about interpretation. I am saying that I am tired of conservatives arguing as a policy matter that race neutral policies are in some way not obviously harmful to minorities. Of course they are. Affirmative action is just one (high profile) example. We as a society need to enact policies that recognize our terribly racist past and try to redress some of the injustice. If you don't believe that, as a general matter, than yes you are just heartless and not willing to own up to slavery, segregation, formalized discrimination, and blatantly racist economic policies like the one I mentioned in my post.

andy grewal said...


Hashim said...

Eric -- neither andy nor I said that "race neutral policies are not obviously harmful to minorities." Rather, we said that those obvious harms are sometimes outweighed by obvious benefits, and conducting such balancing isn't remotely racist.

And you must agree -- again, the disproportionate commission of certain crimes by racial minorities is presumably the by-product of the history you decry, but you can't possibly think that warrants decriminalizing those offenses.

Anonymous said...

Look, conservatives of all stripes have a need to frame the recent SCOTUS decision their way. Those who only had a half-heated opposition to gay marriage or went along with such opposition in order to toe the party line are OBVIOUSLY going to say "nothing to see here, move along." Likewise, those who had a sincere opposition to gay marriage are now going to pretend that the sky is falling.

My guess, and it's just a guess, is that the near-term result after the 2016 election is going to be an uneasy truce in the conservative camp where the issue will be set aside "for the time being". The long run will be determined by whether the recent change in opinion polls regarding gay marriage represent a true cultural turning point or whether they are yet another example of irrational exuberance. My intuition tells me that it's irrational exuberance; the well-spring opposing gay marriage runs deep and it is likely to not disappear easily. More importantly, the push for gay marriage was spear-headed by the Boomers--it's their generational product. Generation X and the Millennials, while supportive, don't have the same emotional investment. So the question then becomes whether future generations chose to consolidate gains or whether they move on to other issues. My intuition tells me they will move on.

Hashim said...

Also, on the policy question of how to do the balancing, you conveniently ignore that many individuals harmed by affirmative-action-like programs have never benefited from past racism (eg, recent asian immigrants, especially poor ones) and many beneficiaries of such programs no longer suffer any harms that need redressing (eg, rich black students, especially immigrants and foreigners). Recognizing these points isn't "heartless," but simple fairness.

Eric Segall said...

Rich black persons haven't suffered any harm. Really? Anyway, I don't mean intelligent balancing of costs and benefits is racist. I mean non-recognition that maintaining the status quo furthers past discrimination is absurd. So if you agree with that, we can move on.

Hashim said...

Great -- glad you agree, eric, that neil's post was wrong to describe as racist in substance *any* knowing perpetuation of the consequences of past discrimination, no matter how "intelligent" the reasons for doing so. That was the sole point that andy and I made in our initial comments.

Kaelik said...

"Those who favor robust due process protections for the criminally accused are, "in substance," supporting child molestation and murder, because greater procedural protections inevitably lets more child molesters and murderers back onto the streets. Such persons might claim they aren't trying to get more 5-year old kids raped, but "we cannot ignore the consequences of what people actually advocate.""

Is there any actual evidence that requiring police to actually do their jobs and actually get warrants is really going to let more people get away with shit? Or would telling cops to stop being such lazy assholes and just call the judge on the phone and get a warrant in 10 minutes for the cases that actually deserve one really just make cops do their job.

It sure fucking looks to me like every case that the Supreme Court has heard in the last 20 years could have been solved by competent police work instead of lazy shitheads skipping a step just because they could.

"And you must agree -- again, the disproportionate commission of certain crimes by racial minorities is presumably the by-product of the history you decry, but you can't possibly think that warrants decriminalizing those offenses."

But it does warrant looking at actual reformatory criminal sentencing instead of the bullshit "LOCK EM UP" procedures that we employ now.

Kaelik said...

FYI, I forgot this blogger account exists and I didn't mean to use it. I changed the name to conform to my preferred form of address, I am the above meat computer.