Damon Linker has a good column in The Week about the launch of American Affairs, a new journal which, in Linker’s words, aims to “explore the meaning and shape of American nationalism in the age of Trump.”
Linker’s main point — and it’s a trenchant one — is to note the belatedness of the effort: National Review and Public Interest took years or even decades to bring the fusionist New Right and neoconservatism respectively to a position of political dominance, whereas American Affairs was only founded after Trump’s unexpected triumph. But I want to comment on something Linker says at the end of the piece about our nationalist moment:
The central paradox of the present historical moment is that nationalism is on the rise — but the trend is taking place simultaneously across the West, as a kind of byproduct or inverse of internationalism itself. Trump himself seems to understand intuitively that he’s part of something bigger than himself. Hence the cheerleading for Brexit, support for the National Front’s Marine Le Pen in France, criticism of Germany’s Angela Merkel, praise for Russia’s Vladimir Putin and other authoritarians, and more far-reaching mischief-making with regard to NATO and the European Union.
I totally agree that this is the essential trend — and that it requires explanation that extends beyond domestic factors. But I’m not sure why it’s a paradox.
In the 1930s, nationalism was also on the rise, along with its hypertrophied cousin, fascism. But the fascists, notwithstanding their fanatical nationalism, shared with and borrowed from each other, and in many cases wound up as allies — the German, Spanish, Italian, Hungarian and Japanese fascists all made common cause with one another.
To some extent, the common cause they made was due to factors unrelated to ideology. Germany, Italy, Japan and Hungary were all revisionist powers, aiming to overturn the established international order and remake it to radically enhance their positions. Poland and China also were ruled by nationalist parties in the ‘30s, but they lined up with the liberal democracies because they were the targets of the revisionist powers.
But to some extent it really was ideological affinity — that factor does seem necessary to explain the extent of the domestic French support for the Vichy regime. And both the major liberal powers (the U.S. and Britain) and the illiberal left-wing regime of the U.S.S.R. took on a distinctly nationalist cast in the 1930s and during the war. Stalin’s Soviet Union got more Russian even before the Great Patriotic War, and Roosevelt’s New Deal drew some of its inspiration from Mussolini’s Italy, even as other aspects were inspired by the radical left and the bulk of it was inspired by prior home-grown experiments within the liberal tradition.
The point being: there’s nothing obviously weird about nationalism, as an outlook, having a transnational dimension. Nationalism is an outlook that is particularist and collectivist. Why shouldn’t people who share that outlook discover they have something in common even if their particularisms differ? After all, traditionalist Evangelicals, Catholics, Mormons, Muslims and Jews discovered they have things in common even though they have radically incompatible theologies, practices and eschatologies.
I’ll give my thoughts on possible transnational factors driving nationalism in subsequent posts.
I’m tempted to say, in response to Robert VerBruggen’s lament, that yes, that’s Twitter for you, and this is one of many reasons why I’m not on it. But I think there is more to say about the problem of eugenics than merely “it’s immoral but not ineffective.”
First of all, as I’m sure VerBruggen would agree, not all efforts to improve the gene pool are immoral, and though we may disagree about exactly where the line is, we both surely agree that it’s laudable to get tested for Tay-Sachs before you marry, and we both surely agree that forced sterilization of “undesirables” is an abomination. For myself, I’ve written about this before, and I stand by what I wrote then.
Second, we should probably limit the word “eugenics” to collective programs to improve the gene pool, and not apply the word to individual choices about who to have children with, because only collective programs can actually change the population as a whole. As such, it’s important to recognize that to breed for particular traits, you have to prevent elements within the population that don’t have those traits from breeding. For example, if you assume that intelligence is highly heritable, and wanted to increase the intelligence of the population, it wouldn’t do to get smart people to marry other smart people. You’d have to get smart people to outbreed less-smart people. I can’t think of a way to do this that is both ethical and plausible — and most of the ways I can think of are neither.
Finally, while we know from extensive experience in selectively breeding animals and plants that such programs work, by “work” we mean that we’ve maximized particular traits, abilities and behaviors. And in the course of doing so, you always get tradeoffs. The swift greyhound has chronic hip problems. The highly-trainable poodle is also prone to stress. The large-breasted chicken can’t fly. And so forth.
There is no reason to doubt that the same would be true of humans, and that any serious attempt to breed people for particular traits — even if undertaken on an entirely voluntary basis and involving no abortion or sterilization or whatnot — would have unexpected side effects. Perhaps breeding for ambition will result in lower empathy. Perhaps breeding for intelligence will result in greater incidence of anxiety and depression. Perhaps breeding for greater athletic prowess will result in higher rates of marital infidelity and divorce. Who knows?
We don’t — and we can’t ethically conduct the kinds of controlled experiments that would allow us to determine with high confidence that we had avoided unexpected side effects. That caution holds as well for genetic therapies that are surely on the horizon. “Fitness” is only meaningful relative to a set of environmental conditions. Narrow the set of traits by which you define fitness and you have implicitly narrowed the set of environments within which an organism will prove fit. Which is not, generally, a good way for a species to maximize its survival prospects.
I’m not arguing that people should blithely ignore genetic history or the science of inheritance more generally in matters like mate selection. (If I did, nobody would listen to me anyway.) But I am arguing both for humility and for a broad understanding of what constitutes fitness. Someone especially smart who says, “I need to marry someone just as smart as I am so that our children are likely to be similarly smart and hence similarly successful” is not only running the risk of disappointment due to mean-reversion (which remains a factor even when you stack the deck in your favor), but running the risk of having ignored other vital dimensions of the human personality by reducing “fitness” to a narrow, measurable trait.
(Also, if you want a good marriage, you should probably marry someone who you love and desire, who is good for you and who you are good for, and with whom you share certain core values and a robust ability to communicate, rather than thinking of your spouse primarily as breeding stock. Not to mention not treating your children as pint-sized success machines. And staying off Twitter when your wife is in the next room with the OB/GYN. Just saying.)
Meanwhile, my latest column at The Week is a bit on the lighter side. It’s a trip down memory lane to my ten-year-old self:
“As for campaigning, people don’t want promises. They want action.” — Noah Millman, age 10
This past Sunday, on a visit for brunch, my mother brought me a time machine in the form of an old valise. Inside was a treasure trove of documents from my childhood: photos, drawings, report cards, clippings, programs from the local drama club’s productions. And, unsurprisingly for a budding writer, a wide array of written material.
I was particularly struck by one piece, written in November 1980 as part of a school assignment, describing my program should I be elected president of the United States. It began with the line quoted above.
I don’t recall the details of the assignment, but I can imagine what prompted it. The 1980 election loomed large in all of our consciousnesses, including us kids. After all, we’d sat on the gas lines with our parents. We’d watched the drama of the Iranian hostage crisis play out on the television every night. And we all still remembered the 1977 blackout. We knew the country had serious problems. As I detailed them in my essay:
The basic problems today are: inflation, crime, energy, transit in the cities, the hostages, war, etc.
The list is different from one we’d make today — though we’re still worried about falling behind economically, about the poor job we’re doing preventing the country’s infrastructure from crumbling, and we’re still panicked about a hostile regime in Iran.
But what I was struck by most was the . . . familiarity of some of the language I used when I talked about how to tackle these problems. You might almost call it my blueprint for making American great again.
Check the whole thing out there.
Michael Flynn was a seriously dangerous man, and I am very relieved that he will no longer be in a position of power. But Damon Linker is absolutely right that the way he was brought down should worry everyone who cares about the health of American democracy:
Flynn’s ouster was a soft coup (or political assassination) engineered by anonymous intelligence community bureaucrats. The results might be salutary, but this isn’t the way a liberal democracy is supposed to function.
Unelected intelligence analysts work for the president, not the other way around. Far too many Trump critics appear not to care that these intelligence agents leaked highly sensitive information to the press — mostly because Trump critics are pleased with the result. “Finally,” they say, “someone took a stand to expose collusion between the Russians and a senior aide to the president!” It is indeed important that someone took such a stand. But it matters greatly who that someone is and how they take their stand. Members of the unelected, unaccountable intelligence community are not the right someone, especially when they target a senior aide to the president by leaking anonymously to newspapers the content of classified phone intercepts, where the unverified, unsubstantiated information can inflict politically fatal damage almost instantaneously.
The Eli Lake article that Linker links to is worth reading in full, but I’ll pull out a key section here:
The fact that the intercepts of Flynn’s conversations with Kislyak appear to have been widely distributed inside the government is a red flag.
Representative Devin Nunes, the Republican chairman of the House Permanent Select Committee on Intelligence, told me Monday that he saw the leaks about Flynn’s conversations with Kislyak as part of a pattern. “There does appear to be a well orchestrated effort to attack Flynn and others in the administration,” he said. “From the leaking of phone calls between the president and foreign leaders to what appears to be high-level FISA Court information, to the leaking of American citizens being denied security clearances, it looks like a pattern.”
Nunes said he was going to bring this up with the FBI, and ask the agency to investigate the leak and find out whether Flynn himself is a target of a law enforcement investigation. The Washington Post reported last month that Flynn was not the target of an FBI probe.
The background here is important. Three people once affiliated with Trump’s presidential campaign — Carter Page, Paul Manafort and Roger Stone — are being investigated by the FBI and the intelligence community for their contacts with the Russian government. This is part of a wider inquiry into Russia’s role in hacking and distributing emails of leading Democrats before the election.
Flynn himself traveled in 2015 to Russia to attend a conference put on by the country’s propaganda network, RT. He has acknowledged he was paid through his speaker’s bureau for his appearance. That doesn’t look good, but it’s also not illegal in and of itself. All of this is to say there are many unanswered questions about Trump’s and his administration’s ties to Russia.
But that’s all these allegations are at this point: unanswered questions. It’s possible that Flynn has more ties to Russia that he had kept from the public and his colleagues. It’s also possible that a group of national security bureaucrats and former Obama officials are selectively leaking highly sensitive law enforcement information to undermine the elected government.
Here’s the thing: I understand why the bureaucracy and the intelligence agencies are behaving the way they are. It’s not just that they are opposed to Trump’s policies, or that they have personal reasons to hate Flynn or Bannon or anybody else on the Trump team. It’s that they are genuinely afraid that this administration is functionally a threat to national security because it contains highly placed individuals actively working for a foreign power or, at best, extremely senior people (including the President himself) who flagrantly disregard basic security precautions:
For decades, NSA has prepared special reports for the president’s eyes only, containing enormously sensitive intelligence. In the last three weeks, however, NSA has ceased doing this, fearing Trump and his staff cannot keep their best SIGINT secrets.
Since NSA provides something like 80 percent of the actionable intelligence in our government, what’s being kept from the White House may be very significant indeed. However, such concerns are widely shared across the IC, and NSA doesn’t appear to be the only agency withholding intelligence from the administration out of security fears.
What’s going on was explained lucidly by a senior Pentagon intelligence official, who stated that “since January 20, we’ve assumed that the Kremlin has ears inside the SITROOM,” meaning the White House Situation Room, the 5,500 square-foot conference room in the West Wing where the president and his top staffers get intelligence briefings. “There’s not much the Russians don’t know at this point,” the official added in wry frustration.
None of this has happened in Washington before. A White House with unsettling links to Moscow wasn’t something anybody in the Pentagon or the Intelligence Community even considered a possibility until a few months ago. Until Team Trump clarifies its strange relationship with the Kremlin, and starts working on its professional honesty, the IC will approach the administration with caution and concern.
When the press first started hyperventilating about Russia, I wrote a column about how we all needed to calm down — because my concern was that the focus was misplaced, because Russia isn’t the problem:
Russia’s alleged actions are entirely unsurprising and far from unprecedented. They are not only the kind of thing that Russia has done before, they are the kind of thing that we have done before — including in Russia’s neighborhood. Russia’s actions may well deserve a response — but the most important response would be to make cyber security a significantly higher priority. They certainly don’t merit panic about Russian intentions, or about the fragility of American institutions.
By contrast, the opacity of Trump’s financial relationships does remain a serious problem, and the possibility that he is personally subject to Russian “influence” because of financial liabilities held by Russian banks could taint any attempt to improve relations between our countries. And of course if the Trump campaign actually coordinated with Russia on dirty tricks, that would be a crime amply deserving investigation, and potentially impeachment.
Meanwhile, those arguing that Russia undermined the integrity of the American electoral system need to take a good look in the mirror. Nothing Russia did or didn’t do can come close to the damage that will potentially be done by exaggerating the extent and impact of that influence, much less creating a constitutional crisis in response.
It certainly looks at this point like major elements within the national security bureaucracy are prepared to create a constitutional crisis in response to what they believe is a serious and real threat to American national security from the White House itself. And there is really only one way to avoid such a crisis: for Congress to step up and begin the necessary investigations of the Trump administration.
I completely understand why a Republican Congress would be reluctant to do this. There’s not only the risk that they’d cripple their own party’s presidency; there’s the very real risk of retaliation by the Trump administration, and the President taking steps to mobilize his supporters against members of Congress that threaten him.
But that is not the only quarter from which threats may come. The GOP Congress is not going to be able to ignore an escalating war within the Executive branch. Nor can they discount the possibility of characters like Flynn engaging in their own freelance retaliatory schemes.
And, you know, there’s also our system of constitutional government, that old thing, which gives Congress the responsibility for dealing with corruption and other lawbreaking by the Executive.
I have no particular love for Senator Roy Blunt, but I’m glad he has come out for a full investigation of the administration’s Russia ties. I hope that the investigation focuses on exactly that: the nature, timing and appropriateness of any connections and communications. Because, again, the real problem isn’t Russia or the fact that Trump favors rapprochement; the problem is the real possibility of corruption and the plain fact of flagrant and dangerous incompetence.
And while they are at it, they can also start investigating the leaks. But it has to be both; if Congress focuses only on the leaks, and ignores or soft-pedals the administration’s behavior, they will contribute to the escalation of a growing constitutional crisis.
Our new editor in chief, Robert Merry, has a piece up about the questions of identity at the heart of the immigration debate:
For most of our history, we have been largely a country of Europeans, a country of the West, with Western sensibilities and a shared devotion to the Western heritage. Now we are in the process of becoming something else—a mixed country without a coherent, guiding heritage of any civilization and certainly not of the West.
This is largely the result both of the numbers of immigrants coming into the country (both legal and illegal) and of the place of origin of most of those immigrants. In 1960, 84 percent of U.S. immigrants came from Europe and Canada; now that number is just 14 percent. Also, the percentage of people in America who were born outside the United States reached 13.7 percent in 2015—just a shade below the all-time high for that statistic, which was 14.8 percent in 1890, after a similar wave of immigrants largely from Central and Eastern Europe.
What’s more, experts expect that percentage to climb to 14.9 percent by 2015 and 18 percent by 2065. In 1965, when the country’s current immigration philosophy was enacted into law, the percentage of foreign-born people in the country was 5 percent. According to the Pew Research Center, by 2055 the United States will have no ethno-racial majority. When that happens, America will be a completely different country from what it was, say, when the Baby Boomers appeared on the scene and throughout American history before that.
This is a profound national alteration, and what’s remarkable about it is how little debate, or even discussion, has attended it until recently.
I count myself as one of the people who is not really worried about this. That’s largely because I’m a native New Yorker. I’ve grown up in a cosmopolitan, polyglot city, and watched that city go from putatively ungovernable to a new golden age while remaining if anything more polyglot than ever. (And it’s been a very long time indeed since New York had an ethno-racial majority.)
I have enough personal experience with immigrants from all over the world to know that, in general, the political, religious and ideological divisions between groups already living in America dwarf the divisions between newcomers and natives. And the evidence seems to show that, in the case of immigration, familiarity is as likely to breed comfort as contempt. (To pick a recent anecdote that I am fully aware is not equivalent to data: here’s a heartwarming story about Syrian refugees in Nebraska.)
I am also aware that this notion that America is a “country of Europeans” is also a relatively new formulation. Back in the early 19th century, the question was whether America would be overwhelmed by Germans; in the late 19th century, the question was whether it would be overwhelmed by Italians, Slavs and Jews. “European” didn’t used to be nearly narrow enough; now, for some worried about immigration from further afield, it’s just right.
Finally, the definition of Western civilization is also highly malleable. It’s not at all obvious to me that Russia is more Western than Mexico. And concerns about Muslim immigration, whether legitimate or overblown, have much more to do with the breakdown of civilization taking place within the Islamic world right now than with anything “essential” about Islamic civilization. Meanwhile, Canada and Belgium have both nearly fallen apart at points in the past on account of being “bi-cultural” states, and nobody would dispute that both Quebecois and Angl0-Canadians, both Flemish and Walloons, are core to the West.
Even considering all of the above, numbers still matter — for a simple practical reason if nothing else. Making unum out of pluribus may or may not happen automatically — but it certainly takes more time the more pluribus you have coming in every year. Nonetheless, those fretting that this country will die if it does not preserve its historic character should recall what a small percentage of the American population is of English descent, and yet how large English cultural heritage still looms in the national consciousness.
So I take the other side of the question. But that doesn’t mean I think the question is illegitimate. I think it’s as fundamental a political question as you can have. I think the advocates of a more liberal immigration regime do their cause a serious disservice by trying to rule it out of bounds — it comes close to trying to rule out politics itself. Barack Obama’s favorite formulation — “that’s not who we are” — isn’t an argument; it’s an accusation. Much better would be, “that’s not who we want to be” — because that makes it clear that we do have a choice of who we want to be, and that he thinks a particular choice is a better one.
I also agree with Merry that the question of immigration is a deeply emotional one, and hence difficult to resolve. But all that implies is that advocates of a more open regime need to make their appeal on emotional terms that might resonate with people who are more anxious and skeptical.
As it happens, this is the topic of my latest column in The Week:
In our private lives, few would accept leaving this question — who inherits our property, our name, and the custody of our reputations — to forces entirely beyond our control. Most of us think seriously about who we marry, who we will have children with. Even those of us — like myself — who are adoptive parents recognize that the choice to adopt is exactly that: a choice.
Questions of identity — of who we are — are just as fundamental to any political community. A shared sense of identity is what makes collective action possible, whether that action is financing a community center or fighting a war. Any time we make sacrifices today to benefit generations yet unborn, we imply an identifying bond between the present and the future. And yet, for many supporters of immigration there is a real dispute about whether this is even a valid political question — or, on the contrary, whether freedom of movement is an inalienable right, or whether asking questions about national identity is inherently racist.
In a piece that considers deeply how immigration advocates have gone wrong, Josh Barro argues for the need to make the case for a relatively liberal immigration regime as being in the national interest (as opposed to just being “the right thing to do”). And he’s right about that. But before that case can be made, they need to win the trust of those who suspect — perhaps rightly — that immigration advocates see “the national interest” as the interest of a corporate entity known as the United States of America, without regard to what the nature of that entity is, or who it exists for in the first place.
If they can’t rule questions of identity out of bounds, liberals will be tempted to answer them with ideological definitions of Americanism that implicitly deem large numbers of actual Americans to be less-than-faithful communicants of the national religion (something conservatives have been prone to do at least as much). It’s an approach that is distinctly unlikely to win over anyone not already singing from their hymnal.
So how can those with a more expansive conception of American identity make their case? The answer begins with a return to that word: posterity.
From the perspective of the founders, we are their posterity, whether our ancestors are from England, Ethiopia, or Ecuador. They are our ancestors. And what they have bequeathed to us — from our political institutions down to the land itself — is our inheritance.
The same is true of our political ancestors — and we need to talk that way.
If we want to share our inheritance more broadly, and convince our cousins to do the same, we need first to be able to demonstrate that we cherish it, that we recognize that it is our inheritance, something we, as individuals, did not create, but was given to us by those who came before, and that we are responsible for passing on. If it is ours, then we have the right to remodel it to better suit the needs of the present and the future — we don’t have to be shackled by the past. But if we care about it as an inheritance, then we’ll show gratitude for what we have received, and make changes in that spirit, even if we know that many of those who came before would have cringed to see just who has taken up residence in what was once their house, and what they’ve done to the place.
Read the whole thing there.
So, apparently, Steve Bannon appreciates Mencius Moldbug, leading neo-reactionary.
I said what I had to say about Moldbug and his ilk four years ago, here. I flatter myself to think that I took him more seriously — and responded to him more soberly — than he had any right to expect, particularly given the apparent unlikelihood of his ideas ever having any real political influence. And yet, here we are.
But I want to add something to my conclusion. I’ve long believed that radicals often offer a useful critique of power, which is a very good reason to read them. That goes for right-wing radicals as well as left-wing ones, and it’s a reason that I took Moldbug’s ideas seriously rather than just mocking them or ignoring them.
Radicals in power are another story. Because they see crisis where non-radicals see only problems, the first thing a radical in power needs to do is align the general perception with his or her own. And the best way to do that is to precipitate a crisis. In terms of normal perception, that means doing one’s job badly, even catastrophically badly.
TAC readers are generally pretty good about understanding that you don’t get any points for good intentions when your actions lead to disaster. Certainly they don’t give neoconservatives any credit for their desire to spread democracy and freedom when their wars have mostly brought chaos and destruction. But does that same standard apply across the board? Does it apply to people who are voicing the repressed truths that you always wished could find a hearing in the corridors of power?
I ask because much of the rhetoric of the intellectual defenses of Trump is aimed at avoiding precisely that kind of accountability, by cultivating an air of extraordinary crisis.
If the bi-partisan establishment is not merely foolish or incompetent pilots, but is deliberately seeking to crash the plane, then of course you don’t ask questions about whether the opposition to that establishment has any idea what they are doing. You rush the cockpit, then you try to fly. If Western Civilization is so rotten and diseased, and democracy such a hopeless form of government, that continuing to operate within existing institutions can at best draw out the agony of decline, then of course you don’t ask what institutions would replace the ones we have, or how they would work. You blow up the system, then you try to build a new one. If China is destined to go to war with America, and if the Islamic world is already engaged in a global battle with Christendom for earthly supremacy, then of course you don’t try to manage our international relationships to maintain order as best you can. You prepare for war, and then you fight to win.
In this manner, the atmosphere of crisis makes it impossible to hold a regime accountable, because disaster is assumed to be inevitable and therefore cannot be blamed on the regime. Instead, the regime may take credit for the fact that it was prescient enough to see the disaster coming, and for having thought through its implications in advance. Indeed, it may even wind up taking credit for the disaster itself, as being a necessary precursor to something better. Chaos becomes a prerequisite for order. Failure becomes a prerequisite for success. War becomes a prerequisite for peace.
This magazine has described its mantra in the past as “realism and reform.” The rhetoric of crisis is inherently antithetical to both.
Hitler analogies tend to be conversation stoppers — and they are especially likely to backfire when it comes to someone like Trump. If you’re afraid of America losing its fundamentally liberal character, and doing awful things, then you almost certainly never got on the Trump train in the first place. But if you are on the Trump train, it’s likely in part because you feel the establishment is still fighting obsolete wars — like the one against Hitler — and ignoring what’s really happening to the country. And if that’s the case, then these scare stories probably just push you further into Trump’s camp.
But those who find themselves thrilled by the cultivation of an atmosphere of crisis, and the “opportunities” such a crisis opens up, would do well to remember something else about Hitler. He didn’t just commit horrible crimes. He ruined his country the way no leader had ever ruined their country before. He came to power substantially because of fear of Soviet Communism, and after twelve years the Red Army was encamped in the ruins of Berlin.
I’m not saying I expect anything similar — among other things, I think the Chinese are clever enough to see they stand to benefit more by a strategy of jiu-jitsu than by a head-on collision, though I worry very much about the consequences of a rapid collapse in America’s international position. I’m just saying that if Nassim Taleb thinks Trump has only upside because people already don’t think much of him, then he really, really hasn’t thought the matter all the way through.
I hope the justices of the Supreme Court re-read John Hart Ely’s book before they consider the pending cases on partisanship in redistricting:
Partisan gerrymandering has become the norm in U.S. politics because the Supreme Court has declined to declare it unconstitutional. For three decades, a majority of justices have failed to identify manageable standards to determine when a plan rises to the level of an unconstitutional partisan gerrymander.
As a result, state legislators have come to believe that they can draw partisan gerrymanders so long as long as they satisfy two criteria: They do not violate one-person, one-vote standards and do not reduce the electoral fortunes of African Americans or other protected racial and ethnic groups. As a result, the 2010 round of redistricting saw partisan gerrymandering run amok in some states.
But change may be coming.
Most interesting to me is that the lower courts are starting to move beyond the view that equal protection is the only question at play in redistricting:
Perhaps most important, however, is a case from Wisconsin (Whitford v. Gill). In November, a three-judge federal court invalidated that state’s legislative districts in a 2 to 1 decision. The majority wrote:
The plaintiffs have established … that the defendants intended and accomplished an entrenchment of the Republican Party likely to endure for the entire decennial period. … They did so when the legitimate redistricting considerations neither required nor warranted the implementation of such a plan.
Whitford was the first time a federal court has ruled a single-member district plan a partisan gerrymander. When there is an appeal of that decision, it will almost certainly be heard by the Supreme Court and has the potential to be a “game-changer.”
One thing that distinguished Whitford from the many previous unsuccessful challenges was that it was based on a First Amendment freedom of association test rather than a 14th Amendment equal protection test. Other federal courts have also noted this distinction. A three-judge panel in Maryland held last year that even if an equal protection claim failed to generate a cause of action, a First Amendment claim against a specific congressional district required a trial on the merits (Shapiro v. McManus). Regardless of the trial outcome, that case will likely come before the U.S. Supreme Court in 2017.
Partisan redistricting is a classic example of the kind of problem that the various conservative theories of constitutional interpretation have a hard time addressing. Our constitution does not recognize the existence of parties. It doesn’t even recognize the right to vote as such; it just says that the right can’t be infringed for certain specific reasons (like race, sex, or previous condition of servitude). If you’re a textualist, there’s not a lot of text to justify mucking about with how states conduct elections. If you’re an originalist, you’ve got a similar problem. If you’re a federalist, you’re hardly going to be eager to usurp state prerogatives. And if you believe in judicial deference, then you’re hardly going to be comfortable intervening to alter the partisan composition of the legislature.
But partisan redistricting doesn’t threaten novel fundamental rights that exist only in the emanations of the penumbras of the constitutional text. It threatens the integrity of the political system itself, by making government structurally unresponsive to the electorate. To call for a democratic response to a situation where the legislature has specifically acted to frustrate that response seems like cruel mockery. On the other hand, without clear textual warrant for action, isn’t the Court inevitably just aggrandizing power to itself — and thereby undermining the very democracy it claims to be protecting?
That’s why I suggest taking another look at Ely’s book. Democracy and Distrust is an extended argument as to why we have judicial review in the first place, in the face of the counter-majoritarian difficulty. At the heart of that argument is the notion that apparently fundamental rights like speech and assembly are, in fact, a kind of deep foundation for procedural rights. It’s not that they are God-granted privileges inherent to humans, but that free speech is necessary for the citizenry to be able to do its job of holding the government accountable. Ely proposes that the Court look at all of its jurisprudence this way, and that this framing would help both limit the Court’s innovations and ensure that when the Court acted its actions would be aimed at improving the functioning of democracy rather than usurping it.
At all events, I am very eager to see where the Court goes with this. I’d expect Roberts and Alito to be distinctly uninterested in wading into this area, but I really don’t know what the rest of the Court will think. And while he’d surely refuse to comment on pending cases (as well he should), I’m quite curious what the recently nominated Neil Gorsuch thinks about the topic.
Normally, someone writing in TAC giving advice to Democrats on how to handle some political question but be assumed to be trolling. But I hope I’ve got enough credibility at this point not to be so perceived.
This is by way of saying that my latest column at The Week is about the Gorsuch nomination, the the dilemmas it poses for Democrats:
Neil Gorsuch is unquestionably a very conservative judge. Like the late Justice Antonin Scalia, he’s a textualist and an originalist, someone who believes that the Constitution and ordinary statutes should be interpreted based on how their actual language would have been understood at the time. He’s ruled in favor of organizations seeking exemption from Obama’s contraceptive mandate on religious grounds, and wrote a book opposing assisted-suicide. He would be a thorn in the side of a future Democratic president who sought to expand government involvement in the economy in novel ways, or to further extend the scope of anti-discrimination law.
But he’s also a man with a reputation both for collegiality and independence of mind. He’s arguably a less prosecutor-friendly judge than President Obama’s previous choice, Merrick Garland. He’s been less-deferential to claims of executive power than either Garland or Scalia. And his defense of religious freedom has not by any means been limited to dominant religious groups. A conservative justice who views government with a jaundiced eye, and who privileges the legislature over the executive, could really come in handy if Trump were to infringe on press freedoms, or corrupt the federal bureaucracy, or further extend the reach of executive power beyond the precedents that Bush and Obama set — all serious concerns that liberals have voiced since the election.
So there’s a case to be made on the merits that liberals should support Gorsuch’s appointment. And there’s also a case for doing so on the politics.
After detailing that case — basically, that opposing Gorsuch will accomplish nothing and will alienate people whom the Democrats need to reach out to — I point out that the Democrats don’t have so much freedom of action on this question:
But the Democrats don’t have the luxury of thinking only about how to expand their coalition and fracture the opposition. They also have to keep their base happy. And their base would not be happy with anything less than total opposition.
Opponents of Gorsuch correctly point out that Trump only had the opportunity to appoint someone in the first place because the Republican Senate refused to even consider Obama’s nominee. (Gorsuch himself has criticized both parties for their shabby treatment of qualified judicial nominees.) The Democrats are understandably loathe to let that unprecedented obstruction stand without consequence.
They also point out that if Gorsuch’s nomination proceeds easily to approval, that this will encourage other aging justices like Anthony Kennedy to consider retirement. Once Gorsuch is approved, though, it will be harder to justify opposition to similarly-qualified conservative candidates, and the Democrats could quickly find themselves having facilitated the entrenchment of a right-wing majority on the Court.
Moreover, advocates of wall-to-wall opposition point to the success of the Tea Party in 2009-2010 as evidence that you don’t need to play to the center to win — that, arguably, it’s better to focus on energizing your base. That base would not only be deeply demoralized by any let-up in the opposition to Trump; it would consider the downgrading of priorities like reproductive rights to be an outright betrayal.
So what should they do?
To regain the initiative, Democrats need to focus their approach to Gorsuch on their fears of Trump. Ask him about the rights of non-citizens. Ask him about war powers. Ask him about political interference in regulatory oversight. Ask him about anti-trust. Ask him about government surveillance. Ask him about whistleblowers. Heck, ask him about the emoluments clause if you want. Make it look like you’re not trying to get business done or to make reasonable compromises — make it look like you’re trying to see if Trump might have played himself.
Read the whole thing there.
I haven’t read any Réne Girard since college, but I remember the experience, and so I was interested to hear that my colleague Rod Dreher has been reading him lately. Among other things, it provides me an opportunity to trot out an old hobby horse of mine: our common misunderstanding of the scapegoat ritual.
In common parlance, a “scapegoat” is an entity that takes the blame for problems that are not truly of their making. By giving the community a target on which to vent its rage and violence, the scapegoat unites the remainder of the community and makes it possible to endure through whatever problems the scapegoat was blamed for.
But as the name clearly implies, the scapegoat isn’t destroyed — it escapes. And, indeed, in the original Israelite ritual from which we get the concept, there are two goats chosen: one for the Lord and one for Azazel. But it’s the Lord’s goat that is killed. The scapegoat is sent off into the wilderness.
Leviticus 16:7. Aaron shall take the two he-goats and let them stand before the LORD at the entrance of the Tent of Meeting;
16:8. and he shall place lots upon the two goats, one marked for the LORD and the other marked for Azazel.
16:9. Aaron shall bring forward the goat designated by lot for the LORD, which he is to offer as a sin offering;
16:10. while the goat designated by lot for Azazel shall be left standing alive before the LORD, to make expiation with it and to send it off to the wilderness for Azazel.
16:11. Aaron shall then offer his bull of sin offering, to make expiation for himself and his household. He shall slaughter his bull of sin offering,
16:12. and he shall take a panful of glowing coals scooped from the altar before the LORD, and two handfuls of finely ground aromatic incense, and bring this behind the curtain.
16:13. He shall put the incense on the fire before the LORD, so that the cloud from the incense screens the cover that is over [the Ark of] the Pact, lest he die.
16:14. He shall take some of the blood of the bull and sprinkle it with his finger over the cover on the east side; and in front of the cover he shall sprinkle some of the blood with his finger seven times.
16:15. He shall then slaughter the people’s goat of sin offering, bring its blood behind the curtain, and do with its blood as he has done with the blood of the bull: he shall sprinkle it over the cover and in front of the cover.
16:16. Thus he shall purge the Shrine of the uncleanness and transgression of the Israelites, whatever their sins; and he shall do the same for the Tent of Meeting, which abides with them in the midst of their uncleanness.
16:17. When he goes in to make expiation in the Shrine, nobody else shall be in the Tent of Meeting until he comes out.
When he has made expiation for himself and his household, and for the whole congregation of Israel,
16:18. he shall go out to the altar that is before the LORD and purge it: he shall take some of
the blood of the bull and of the goat and apply it to each of the horns of the altar;
16:19. and the rest of the blood he shall sprinkle on it with his finger seven times. Thus he shall cleanse it of the uncleanness of the Israelites and consecrate it.
16:20. When he has finished purging the Shrine, the Tent of Meeting, and the altar, the live goat shall be brought forward.
16:21. Aaron shall lay both his hands upon the head of the live goat and confess over it all the iniquities and transgressions of the Israelites, whatever their sins, putting them on the head of the goat; and it shall be sent off to the wilderness through a designated man.
16:22. Thus the goat shall carry on it all their iniquities to an inaccessible region; and the goat shall be set free in the wilderness.
The scapegoat is not the object of communal violence, so that violence cannot be providing a kind of redemptive communal release of tension.
Moreover, if sacrifice is about the release of these communal tensions, then how does one explain thanksgiving sacrifices, which are also blood offerings? The most extensive sacrifices outlined in the biblical text are those for Pentecost, a harvest festival of thanksgiving.
My read on the meaning of biblical blood sacrifice is different from Girard’s. Blood, as the carrier of life, is a powerful substance. That power can be harnessed — to transfer the residue of transgression from one entity to another, for example — but it needs to be treated with the proper respect, particularly respect for its origins: with God. This is explicitly laid out in Genesis 9:4-5.
In the earlier stages of Israelite religion, all killing of animals took the form of a sacrifice — without performing a sacrifice, you couldn’t eat meat. (This is the subtext of Saul’s transgression in 1 Samuel 13.) Sacrifice was a way of making the killing ok — because it meant returning the life to God. In other words, sacrifice wasn’t something you resorted to when the prohibitions failed — it was part of the system of prohibitions: a way of saying, you can only kill if you follow the prescribed rituals.
This is why, once ritual sacrifice was centralized, such that it was no longer practical to say that you can only eat meat after performing a sacrifice, the law had to change. In Deuteronomy, it says that if you slaughter an animal, you have to pour the blood on the ground and declare its return to God. Because you could no longer perform the sacrifice at home anymore, you couldn’t use the power of the blood. But you still needed to remove the blood in a ritualistic manner that made it clear that you respected the life that was being taken, and returned that life to its source.
Moreover, this prohibition was sufficiently strong that it even lasted into the early years of Christianity, vis Acts 15:20. The gentiles didn’t need to take on the bulk of the food-related prohibitions of Judaism when they converted — but they did need to abstain from blood.
So what’s the scapegoat about?
The scapegoat ritual is about cleaning the filter. The scapegoat is indeed removed from the community, but it doesn’t take the blame for transgressions — it takes the toxicity that transgressions leave behind. This is not a ritual act of violence, any more than trash pickup is a ritual act of theft. It’s more comparable to cleansing the house of chametz during Passover than it is to “The Wicker Man.”
Next week maybe I’ll explain how everybody misunderstands Genesis 22:13.
There are many things that could be said about Trump’s travel ban, and most of them have already been said in multiple venues, including by TAC‘s own Daniel Larison. I just want to highlight again one item: nearly half of those affected by the ban come from Iran, a country that is not experiencing Islamist violence, that is not producing large numbers of refugees, and from which we have no particular reason to suspect terrorists might be planning to sneak into America.
I can think of legitimate reasons why Saudi Arabia, Egypt and Pakistan were not included (all major regional allies whose cooperation we need), as well as Germany, France, Belgium, the Netherlands, the UK and Russia (at that point, you might as well ban the world), all of which have produced home-grown Islamist terrorists who might travel to America — or already have. Those reasons do tend to undermine the argument that, even if it had been rolled out in a more prudent and less gratuitously-cruel manner, the ban was a sensible way to protect American security — but let’s grant that being extra cautious about people coming from a war zone isn’t obviously crazy, and that we should be able to argue like civilized people about how to balance helping people facing death versus protecting ourselves from wolves who may be hiding among the sheep.
But it seems to me that anyone arguing with a straight face that the ban was about protecting America from terrorists should be arguing — among other things — that Iran doesn’t belong on the list. Yet this is the only mention of Iran in David French’s defense of Trump’s order (which is probably the best defense I’ve read so far):
[T]he order imposes a temporary, 90-day ban on people entering the U.S. from Iraq, Syria, Iran, Libya, Somalia, Sudan, and Yemen. These are countries either torn apart by jihadist violence or under the control of hostile, jihadist governments.
That’s it. Iran is a “hostile, jihadist government” so we should presume all Iranians are a security risk.
This is why I’m going to continue to assume that a primary reason for the ban in the first place was to provoke Iranian retaliation, with the ultimate goal that poisoned relations will eventually provide a pretext for war.
Regular readers know I was very clear in calling out the Democratic candidate’s enthusiasm for conflict with Iran. I have zero reason to trust that this administration is any less enthused, and I interpret their actions accordingly.