Norman Rockwell And The Spoils Of War: The Golden Age Of American Manufacturing Is A Myth

This week, in a fresh attempt to derail the media’s focus on his Russian misadventures, Donald Trump is celebrating “Made in America” week at the White House. Once again, Trump is selling the myth of the great, competitive, well paying American manufacturing sector. Why do I call it a myth, you ask? Because he is deliberately referencing America’s manufacturing boom of the 1940s-1950s, and there was nothing normal about that economy. The only reason American workers of the 1940s and 1950s could come home to unskilled jobs that could support a family of 4 in Levittown while Dad went to school on the GI bill was because all our economic competitors were destroyed by war. The circumstances of the US manufacturing sector from 1940-1960 were unique. They were created by 1) the government’s need for war materiel to win the greatest conflict in human history, and 2) the partial or total destruction of our economic competition. Even without accounting for automation and advances in robotics, that sort of demand for unskilled labor is unlikely to ever be replicated in the United States. Unless we want to make like Randy Newman and drop the big one on all our trading partners, we need to stop pretending otherwise.

American manufacturers got a YUGE leg up from the Feds

The US manufacturing sector benefited from an unprecedented infusion of government cash from the passage of the lend-lease bill in 1940 until the end of the war (with significant infusions due to the Korean war and occupation of Europe thereafter). The entire economy was mobilized to manufacture war materiel, package food, and otherwise provide nearly all Allied manufactured resources for the duration of the war. Federal spending increased by a factor of 7 from 1940 to 1945, until it was over 40% of US GDP in both 1944 and 1945. A lot of that money went to goods manufactured for the armed forces, plus the $32.5 billion (1940 dollars) that the US exported through lend-lease during the war. It is very difficult to overstate  how much this demand, especially from 1944-1946, turbocharged the manufacturing sector and set it up to dominate the post war years. When WWII ended, the US had a thriving economy, no political unrest at home, no domestic damage from the war, and vast manufacturing resources that had been producing at maximum capacity to meet government demand. In other words, we were perfectly situated to convert our manufacturing sector to sell the products the world needed to rebuild.

Most of the world was in a state of chaos – and we profited handsomely

America was the primary economic beneficiary of two back to back World Wars, resulting in the total destruction of Europe and Japan, the consequent end of colonialism, the permanent expansion of the American military to compensate for European (especially British) withdrawals, the economic isolation of the Soviet bloc, war in Korea, and civil war and mass starvation in China. If you want to see how we profited artificially from global chaos and destruction, you’ve just got to look at the numbers. From 1900-1913, the US accounted for about 10-12% of world manufacturing exports. In 1921, the first post-WWI year for which the UN has available data, the American share had jumped to over 19%. Over the course of the 1920s the US settled into a 15-17% manufacturing export percentage level, still higher than before WWI. This dropped during the Great Depression, but by 1938, the US again accounted for a little over 15% of the world’s manufacturing exports (please see above UN link for data).

In the 1920s and 1930s, the US was the world’s richest nation, just as it is now. In the 1940s, its manufacturing predominance became truly disproportionate. In 1948, 3 years after WWII ended, the US still accounted for 30% of the world’s manufacturing exports. As late as 1953 it accounted for 28%. It wasn’t until 1959 that the US share of world manufacturing exports dropped below 20%. For most of the 1950s, the US ranged from 22-28% share, more than twice the American manufacturing export share before WWI, and 10% higher than the interwar period. Now American manufacturing has maintained an export share in the high ‘teens ever since, but after 1959, the artificial boost from WWII and the destruction of our trading partners had ended. Since 1960, the share of American workers employed in the manufacturing sector has steadily declined.

American manufacturing in the Rust Belt responded poorly to postwar competition

The part of America that received the greatest boost from the World Wars is also the part of the country that handed us Donald Trump. That’s no coincidence. The manufacturers who dominated the Upper Midwest had virtually no competition in the ’40s and ’50s. as a result, they became complacent and failed to innovate. When competition, international and domestic, showed up in the late fifties, they started losing business. It took them until the 1980s to improve their production model and stop hemhorrhaging jobs both to competing countries and the American South. However, this decline did not happen because other countries and their workers were “stealing” US jobs. It happened because jobs and market share were undergoing a predictable and appropriate redistribution in a more peaceful world.

The period between 1955 and 1980 saw Germany’s “economic miracle,” and the reconstruction of Europe thanks to the Marshall Plan. The US helped Japan, Taiwan, and South Korea develop a healthy manufacturing sector. Finally, after Nixon went to China, it began to take its place as a manufacturing powerhouse. A lot of this recovery was fueled with US government cash, and for good reason. While the loss of American manufacturing jobs since the 1960s has been hard for many Americans, it isn’t as hard as helping prop up a destitute world devoid of trading partners. When the American worker’s artificial advantage disappeared, a lot of people, especially in the Rust Belt, saw a decline in their way of life, and some of that squeeze came from our trading partners’ recovery and increased competition. But in reality, the trading partners we helped recover in the ’50s and ’60s buy the American goods that still represent 17% of global manufacturing output. Global manufacturing output keeps on growing, and for the most part it hasn’t been German or Japanese or Korean or Chinese workers who encroached on the American working class after 1960. It has been automation and production efficiency.

We can’t return to a prosperity bought with global war and widespread death

Until we quash the myth that there was a sustainable golden age of the American worker, we are going to have more and more Donald Trumps. Americans support Trump for a lot of reasons, but I think many of them support him because they are chasing a time when unskilled labor could support a high quality of life, and he has promised to bring it back. A lot of Trump’s supporters are baby boomers who were born during the period when the Rust Belt had no competition and manufacturing jobs provided a stable future. They believe they are entitled to what their parents had, and I can’t blame them. The working class got to be middle class from 1940 until 1960 on the back of a war torn world, and they have, understandably, never gotten over the loss of that status. However, a lot of people all over the world had to die to create that lifestyle for unskilled American workers. We are going to have to find a new way forward for the children and grandchildren of the greatest generation of factory workers. Going backward is not an option.

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Blue States’ Rights: How California And Other Blue States Can Hold America To The Paris Accords

This week, Donald Trump decided (or by the tone of his speech, Steve Bannon decided) to withdraw the United States from the strictly voluntary Paris Accords.  This decision was a tragic abdication of American leadership, and it is entirely possible that it marks the end of the American era. Why would any country ever enter a long term agreement with us again if our word is worthless? It was one of the most ridiculous self-inflicted wounds I have ever seen, and Trump’s prediction that the world would end up laughing at us has already become a reality. However, Trump’s destruction of American’ leadership may not actually destroy the planet. California, New York, and Washington have created the United States Climate Alliance, and intend to work with other countries, regions, and provinces to meet the Paris Accords. If they play it right, these states, and others that will hopefully join them, can use their constitutionally protected right to tell Trump to eat coal and enact laws that will keep the US to its Paris commitments.

States’ Rights Aren’t Just For Living Confederate Monuments Like Jeff Sessions

Those of us who take a dim view of America’s history of slavery and segregation tend to recoil at the term “States’ Rights,” because the concept has most often been invoked to promote institutionalized white supremacy. However, the Tenth Amendment, which says all powers not granted to the Federal Government belong to the States, is an essential check on federal power. It is there to protect California’s right to control carbon emissions just as much as it was ever there to help South Carolina persecute its black citizens. California already has a cap and trade system in place as well as other progressive environmental regulations. A State’s right to regulate internal  carbon commerce has already been established.

The United States Climate Alliance may not be able to control all carbon emissions in the US, but they may just be able to offset the transgressions of the Koch brothers and other polluters in states they cannot reach, and curb some big polluters in the bargain. Most carbon emissions don’t come from the federal government (although the Tennessee Valley Authority accounts for quite a few); they come from people and corporations. Just imagine that Oregon, New Jersey, Connecticut, Massachusetts, Rhode Island, New Hampshire, Vermont, Delaware, and Maryland join the Climate Alliance. About 100 million consumers live in those and existing Climate Alliance states. No business wants to voluntarily give up that many domestic customers over a few environmental regulations. A third of the American population uses a lot of power and a lot of cars and a lot of plastic, all of which come from fossil fuels (at least for the moment). Any business wanting to sell to consumers or do business in those states will have to adhere to whatever regulations the alliance may impose. The great news is that most big polluters are big companies, and big companies’ policies can be manipulated by a minority of states thanks to the power of capitalism.

Large Corporations have to set policies based on all states in which they do business

Big companies tend to develop internally consistent policies based on the most restrictive state law they have to obey. Let me give you an example: If 1/3 of American states pass a law mandating that all small SUVs must have 35 mpg as of 2020, American car manufacturers are not going to make a Ford Escape that gets 25 mpg for Alabama and one that gets 35 mpg for California.  They are going to create a product (given the technology already exists) that they can sell in all states.  Streamlining their products and policies to comply with all applicable regulations is a better and cheaper way for them to do business. There are also non-product related examples. Before marriage equality was decided by the Supreme Court, many large companies offered health benefits to same sex domestic partners.  This was often because some states required it.  It is easier for HR departments (or any other departments) in large organizations to have 1 policy to apply to all of its operations than different policies for every jurisdiction. Exxon, BP, and every other major oil company sell gas in California and every blue state. After all, that’s where most of the people are. Seems like a fair bet to me that they will be unwilling to forgo 100 million consumers – more than the entire population of Germany – just to avoid a little carbon cutting.

It’s time to use the tools we have to achieve the ends we want

With a petulant toddler at the head of the Federal Government, we need to look for alternative means to achieve our goals, and California has the right idea. For a hundred years, the South used their state laws to achieve the horribly discriminatory policies they wanted, and they succeeded, despite the existence of a constitutional amendment designed to prevent those policies. We have no such impediment! There’s no reason we can’t use our state laws to try to save the planet, or anyone else who needs saving, for that matter. One excellent aspect of federalism is that people in other states generally don’t kick up a fuss about what the state next door is up to, as long as it does not fundamentally offend human dignity, and it took almost two hundred years to nip that one in the bud. It’s time for us to support the United States Climate Alliance and any other state-level initiatives that can move our country forward. The more states sign on, the more consumers fall under a climate-protective umbrella, and the more polluters have to listen to us. Let the era of Blue States’ Rights begin.

After The Monuments: Coming To Terms With History And Hate

Yesterday the last of the much-maligned Confederate statues was removed from Lee Circle in New Orleans, ending a two year battle over how to deal with the city’s – and the South’s – veneration of its “Lost Cause.” Watching a city I love in the throes of an uncharacteristic battle between hateful white supremacists and aggrieved activists has brought home to me the degree to which America has failed to wrestle with a defining fact of its history: while it lost the argument about the supremacy of the federal government, the Confederacy won the Civil War. Terrorist actions all over the South and the cost of enforcing Union policies soured northerners’ taste for the Reconstruction that would have ended white supremacy. After that, Southerners got sharecropping, which was scarcely better or freer than slavery, and Jim Crow. They spread their propaganda all over the country with Birth of a Nation, which lionized the KKK. They argued for “states’ rights” so often the rest of the country forgot or ignored that it is a euphemism for white supremacist oligarchy. Even northern textbooks taught that the Civil War wasn’t really about slavery. And when black southerners migrated north in search of a freer life, they faced less obvious but still permanent racial restrictions. For over a hundred years our history has been written by unacknowledged Confederate victors. I think the movement to erase Confederate monuments from the public square is the expression of an unaddressed need for what the Germans call Vergangenheitsbewältigung, or processing and coming to terms with history. We can’t process our history by wiping the public square clean of the evidence of American apartheid. We have to use it.

Destroying evidence doesn’t help the victims of a crime

Confederate monuments all over the Southern and border States are evidence and must be used to teach the true history of the United States. Both sides of the New Orleans monuments controversy are wrong. Leaving these monuments up as they were doesn’t preserve history, it celebrates mythology. However, tearing them down and hiding them away somewhere like Beauvoir (the home of Confederate President Jefferson Davis) does not erase the white supremacy they represent any more than bulldozing Dachau would have helped erase the impact of the Holocaust. Americans need to be taught about the truth of the Civil War and its aftermath. We need to understand that it had many facets; it was a war about slavery, but it was also a war about whether states could challenge federal power. I would argue that the South functionally won the first question, while the North won the second – and unforgivably waited 100 years to enforce it in favor of black Americans, benefiting economically from Southern practices all the while. We need to understand the nuance that comes with all human history – that Confederates were not universally bad, and that some important ones evolved on the issue of civil rights. Most importantly, we all need to understand the length of scope of the oppression black Americans suffered after the war that was supposed to liberate them. The only way to do that is to use the evidence at hand – statues erected decades after the civil war to Confederate leaders and white supremacist terrorists – to prove that the American history we have been taught is upside down.

These monuments tell an important story about the reality of post-civil war America

The existence of all four monuments taken down by the City of New Orleans proves that the regime in charge 130 years ago revered and celebrated the Confederacy and its cause. Two of them also represent specific lessons about the good and the bad in New Orleans after the Civil War. This first important monument is to the Battle of Liberty Place, an insurrection by white supremacists against the Reconstruction government of New Orleans. This monument was nothing more and nothing less than a homage to racist terrorists who wanted to re-take the city in order to oppress a hefty percentage of its citizens. The fact that it stood, prominently displayed, in the middle of a modern American city until 1989 (and still stood tucked in a corner until 2017) says pretty much all you need to know about the degree to which the South’s commitment to white supremacy (and the North’s quiet enabling of it) has dominated American history. That monument needs to be displayed prominently in an educational context in a public place in the City of New Orleans to teach this history to future generations.

So does the monument to Pierre Gustave Toutant-Beauregard, the man who fired the first shots of the Civil War. He wasn’t just a Confederate General, he was also a prominent advocate for the civil rights of freedmen after his side was “defeated.” He was the most prominent advocate of the New Orleans Unification movement, which saw local Democratic lawmakers and business leaders unite with local wealthy pre-war free people of color to propose equal representation in government for both races and integration of the schools, among other things. It represents New Orleans’s unique pre-war racial dynamics, and an attempt by one of the most prominent Confederates to accept defeat and move on. Beauregard’s change of heart demonstrates that individual opinions varied, and the City of New Orleans has a history at odds with the glorification of Liberty Place. It is certainly an injustice that we have failed for so long to acknowledge the true legacy of the Confederacy. However, it would be foolish and dangerous to overcompensate by pretending that everyone in the Confederacy or in the history of the South should be dismissed as wholly malevolent for participation in white supremacy. Among other things, painting the entire history of every white southerner as purely evil will simply provoke resistance to the message, even in sympathetic people. Coming to terms with history means coming to terms with the whole of history, not creating a new anti-Southern mythology to replace the old pro-Southern mythology. Fortunately, other states and countries have had creative solutions to this problem.

Education, Truth, and Reconciliation

I think possibly the best way to use the Confederate statues removed this month is to create something like Memento Park in Budapest.  The Hungarian government understandably removed a great many public statues after the fall of Communism. They represented Russian ideological control of the country and all of the wrongs done by the Hungarian regime against its people. So the government created a curated presentation of those statues designed to educate future generations about their oppressive past. Can you imagine a similar exhibit in City Park in New Orleans? I can. I think it would be a powerful start to the reconciliation this country sorely needs right now, which can only come from processing the whole truth of our history.

That sort of reconciliation through truth has been going on in Maryland, and I think they have the right idea. In front of the Maryland State House stands a statue of Chief Justice Roger B. Taney, a Marylander who wrote the infamous Dred Scott decision, and who opposed Abraham Lincoln’s emancipationist policies until his death in 1864.  This year, the descendants of Taney and Scott met at the statue and Taney’s descendant apologized to the Scott family. The Scott family asked that the State “Add to [the statue], don’t take from it,” suggesting it would be educational to add a statue of Scott and explanation of the court case to the statue of Taney. There is also a movement for the addition of a statue of Frederick Douglass, another Marylander with a profound impact on the Civil War. These ideas will use and value history, rather than attempting to erase an ugly past or hide it away on a plantation. If there is one thing the New Orleans battle over Confederate monuments has taught us, it is this: failing to come to terms with the history of American apartheid and the people who participated in it – the good, the bad, and the ugly – will only create two polarized mythologies and contribute to the schism in our national life.

It’s The Sun Wot Won It… the topsy-turvy world of American media – and why it’s dangerous

By Mince Pie

In this week of dramatic developments on both sides of the Atlantic, I write from 35,000 feet above the Indian Ocean, having made a last minute trip home to London. A week surrounded by tea, queueing and the British media offered up much food for thought.

The UK is in the grips of election fever (or rather election malaise). After 3 major votes (Scottish Independence, General Election, Brexit) in two years, the British people will head to the polls again on June 8th after Prime Minster Theresa May called a surprise “snap” election.

In that context, in a supposed world of 24 hour news, fake news and social media hysteria one would expect wall-to-wall election coverage with vehement opinions flying all over the place. And yet, the British seem oddly calm and level headed about all this and the invective of American politics seems strangely absent. So I started to wonder why that might be.

One could chalk this up to natural British diffidence and refusal to get too excited about anything in case it “starts to rain later.” I don’t think that’s it though. I have been a resident of Australia for the last three years and have seen the same thing there.

I think the comparative equanimity of British and Australian voters comes not from the absence of political invective in media but from who is supplying that invective. In the USA, the TV channels are fundamentally biased towards either left or right. The TV companies that soak up the majority of news viewing were founded with agendas in mind: MSNBC, Fox etc. Sure if you want unbiased news coverage on TV you can find it (on CBS for example) but the big audiences are with the commercial behemoths. In general, my experience of the US is that if you want a level headed approach to news reporting and news commentary you have to pick up a newspaper.

In Europe and in Australasia, this situation is completely reversed. Small countries (in either geography or population) that have national broadcasters (the BBC, the ABC, TF1, ZDF etc) have embedded the concept of the neutral TV news report. In the UK, the BBC is duty bound by its governance to report both sides of an argument (in fact it often gets in trouble with conservatives for “sympathizing with the bad guys” because of it). Even the majority of the commercial channels get their news coverage from one source – Independent Television News (ITN) – which has a long history of outstanding independent news reporting and investigation. Monopoly rules prohibit agenda setting moguls like Rupert Murdoch from owning 100% of the news coverage of their own channels. Sky News (part owned by Murdoch’s right wing News International) has a rightward, populist tilt but he can’t push it too far. Certainly not as far as he’s pushed Fox in the USA.

The print media on the other hand is entirely different. From the holier-than-thou lefty liberalism of the Guardian to the right wing invective of the Daily Mail, the British press is a whole smorgasbord of vibrant political opinions of all stripes. The press are famous for claiming responsibility for shifting elections, particularly close ones. The support of the key tabloids is still, even in the declining age of print, seen as crucial to any would-be-leader’s chance of success.

So, why does having an even handed TV news underpinned by biased newsprint produce a more stable political culture than the other way around? Why do the Brits and Aussies manage to keep a lid on the invective when Americans do not?

The obvious answer is that print is much smaller. 5m people will watch the BBC TV news in an evening. Another 2m will be watching an ITN production on another channel. At the height of its powers the Daily Mail will sell only a third as many copies as that. The quality press (the right wing Telegraph, the centrist but establishment Times and the lefty Guardian) will come up with around a million readers a day between them. This creates a natural foundation of people who get either all or at least part of their news coverage from more even handed sources. That doesn’t happen in the US. The only people getting unskewed news coverage are the readers of certain print publications (The New York Times for example) or viewers of venerable TV channels like CBS.

Print also encourages thought through its format. Long form content that uses only one of the senses (sight) is a relative rarity in the digital age. Whilst sensationalist headlines sell newspapers, they don’t get far without the content underneath them. TV news isn’t like that. A big headline, a few talking points and on to the next story with no pause for thought provocation or analysis is the staple of lots of commercial TV news operations.

A vibrant mix of news is good – it showcases new thinking, new ideas and ensures minority opinion is heard. Bias is good as long as it is balanced by a healthy source of objectivity. The British, French and Australians have a news culture where TV is even handed and print is politically skewed. The USA is the other way around – and its news culture is all the more divisive and dangerous for it.

The Day France Refused To Surrender

It is a great day for France, Europe, and western democracy; it is a terrible day for Anglo-American surrender jokes. Today Emmanuel Macron, a capitalist, pro-EU, pro-UN liberal, won the French Presidential election in what appears to be a landslide victory. The French people rejected Marine Le Pen’s nativist campaign in favor of the post-war values and institutions that have given us peace in the West for over 70 years. This is partially a testament to the virtue and reasoned choices of French voters, but it is also the result of Macron’s active defense against the Russian interference that helped convince Britons to leave the EU and Americans to elect Donald Trump. In our era, tyrannical regimes are not using tanks to threaten us; they are using cyber warfare and disinformation campaigns. Tyrants finally have a means to exploit the biggest weakness of democracies – that government leadership is determined by ordinary people who can make extraordinarily bad decisions if you scare them enough. In this war all democracies are equally vulnerable, and it was Britons and Americans, unprotected by the English Channel and Atlantic Ocean, who surrendered without much of a fight and, in America’s case, elected a collaborator. In a volte-face from 1940, it was the French (and the Dutch) who fought back.

The French rejected anti-refugee fearmongering and Russian interference

The French electorate resisted two of the driving forces that brought us Brexit and Donald Trump: fear of Islamic immigration and Russian propaganda. Marine Le Pen’s campaign included anti-Muslim and anti-refugee rhetoric similar to the Trump and Brexit campaigns, but her loss indicates that these narratives were not determinative for a majority of the electorate. France’s successful rejection of anti-refugee rhetoric is notable in light of the fact that it was France, not Britain or the US, who has suffered multiple significant terrorist attacks directed by the Islamic State. While the Pulse nightclub shooting in Orlando was a significant event, it was one of many “lone wolf” operations undertaken by a disturbed young man. While terrible, it was not an attack by an organized terror network. It is particularly impressive that France elected a pro-EU candidate, given the fodder the nativist right had at its disposal.

It is also promising that the Macron campaign seems to have resisted the cyberattacks from Russian hackers. Macron has taken a bullish position against Russian propaganda; in late April he revoked RT’s press credentials in retaliation for Russian hacks, and in recognition of the fact that it constituted an organ of Vladimir Putin’s propaganda machine. In the final hours of his campaign, hackers dumped a load of documents they had obtained from a “massive” hack. It turns out that the Macron campaign had prepared for this eventuality.  As the Daily Beast reported yesterday, the campaign deliberately planted fake passwords and documents to bamboozle hackers, and ensure that when any document dump came along, it could respond with certainty that some documents were fake. The French government also asked French media outlets to stay away from the document dump for the one day preceding the election. These are calculated controls designed to promote reasoned decisions by French voters and prevent hackers from acquiring an outsized influence. Ultimately, both French voters and French political structures found ways to resist the forces that compromised the British and American electoral systems.

Give the French their due – we’re the cheeseburger eating surrender monkeys

Yes, my friends, after 77 years it is time to surrender our jokes about the surrender of 1940. I don’t know what we’re going to do with all those dropped rifles, never used, but we no longer have the right to taunt anyone for cowardice. This time, at a moment when democracy was threatened, it was Britain and America who, demoralized and rudderless, fell victim to the fearmongering of antidemocratic forces from within and without. This time, France stood up and stemmed the tide of hate in defense of our common values. And we shouldn’t be surprised, despite the many, many digs we have thrown their way since 1940. As Winston Churchill once said, “all my life I have been grateful for the contribution France has made to the culture and glory of Europe, and above all for the sense of personal liberty and the rights of man which has radiated from the soul of France….Show me a moment when I swerved from this conception, and you will show me a moment when I have been wrong.” Contre nous de la tyrannie, L’étendard sanglant est levé. From the center of the new Résistance we will be looking to France for inspiration and leadership. Well done, my friends, and Vive La France!

Shutting Down The Government Isn’t Just Stupid, It’s Ineffective

Donald Trump has decided that now is the time to withhold funding for Obamacare subsidies for millions of low-income Americans if he doesn’t get funding for his border wall. This is a typically asinine and pointless move on his part; for once, Democrats and Republicans in Congress seem to have been on their way to achieving a mutually beneficial deal without creating widespread collateral damage. Democrats’ reaction to this news was to promise they will shut down the government if funding for Trump’s border wall is included in the budget. No matter which party you support, this political brinksmanship with the basic functions of government has got to stop. If we were talking about a gross, unconstitutional threat to democracy like internment camps, there might be an argument in favor of a shutdown, but we’re not. We are talking about Trump insisting on pettily defunding a duly enacted federal program without repealing it, and the Democrats insisting on withholding funding for a stupid, pointless, expensive border wall that millions of Americans explicitly voted for. The integrity of the core institutions of government is more important than any policy goal. Holding the government hostage over partisan policy preferences erodes the structure of our Republic. More importantly, from a politician’s perspective, none of the shutdowns in the past 25 years benefited the fanatics who were responsible.

Newt Gingrich is a despicable megalomaniac and his gambit failed

Now, there were government shutdowns before Newton Leroy Gingrich came along, but they were in the order of 1-3 days. Even the first shutdown in 1995 wasn’t inconsistent with this history.  It lasted about 5 days.  However, Gingrich’s shutdown of 1995-1996 was a precedent-setting piece of political warfare that totally failed to achieve its goals. Gingrich initiated a standoff with Bill Clinton over which numbers Clinton had used to create his budget (Gingrich wanted him to use the Congressional Budget Office). Clinton, having produced a plan designed, as requested, to balance the budget in 7 years, refused to go back to the drawing board. On this basis, Gingrich shut down the government for 21 days. The American people were not impressed. Afterward, Republicans simply caved, and accepted Clinton’s proposal. The fact that the shutdown came after Gingrich felt snubbed during a ride on Air Force One did not help his reputation or make the shutdown more effective. Nevertheless, 17 years later, Republicans thought they’d have another crack at the shutdown strategy.

The Tea Party fell on its face trying to defund Obamacare

In 2013, the most fanatical tea party advocates in the House of Representatives advocated defunding Obamacare, since they did not have the ability to repeal it.  Over the summer of that year, tea party activists sent a barrage of phone calls and letters to members of Congress, demanding a government shutdown if Obamacare was not defunded. Senator Ted Cruz spoke for 21 hours on the Senate floor about his beliefs regarding shutdown. These developments forced even relatively moderate Republicans into going along with the party’s ideologues. Accordingly, the Republican House of Representatives shutting down the government for 17 days because it refused to fund the President’s signature domestic policy achievement. The shutdown ended when the Republicans were forced, due to widespread voter disapproval, to fund Obamacare. To add insult to injury, they were also compelled to raise the debt ceiling, or amount of debt the US government is able to repay, a particular bugbear of theirs during the Obama years. The shutdown was a total failure.

A failed strategy that damages government institutions is no strategy at all

It’s time to stop the madness. These ideological shutdowns don’t work! In this case, Congress seems to be working together, and Trump needs to stay out of it. Perhaps Trump is laboring under the delusion that he will get a popularity bump like Bill Clinton and Barack Obama did when the opposing party shut down the government. The trouble is, both of those men were trying to compromise with fanatics in Congress, not trying to insert poison pills into the negotiation at the eleventh hour. The Democrats seem to think taking a page out of the fanatics’ playbook is a great idea. It isn’t. In the last 25 years, Congress has never gotten its way from a shutdown. In our current political environment, I am vehemently opposed to drawing false equivalencies between the Democratic Party and the GOP under Trump. That said, if Congress fails to fund the government and shuts it down, I wish a pox on both their houses.

How Do We End Gerrymandering? By Suing A Deep Blue State

Once again, someone is asking the Supreme Court to end partisan gerrymandering of congressional districts based on a violation of the Equal Protection clause. Specifically, they asked the Court to evaluate whether the 2010 Wisconsin legislature drafted a map of congressional districts that effectively eliminated the voting power of Wisconsin Democratic voters. (This is a great explanation of how politicians use gerrymandering to keep power). There is no question that, at the moment, Republicans win the award for the most gerrymandered congressional districts. Perhaps, given how widespread the problem has become, the Court will finally decide to stop the practice. However, the outlook isn’t great. The Court ruled in 1986 that partisan gerrymandering violates the Equal Protection clause, but could not decide, either in that ruling or again in 2004, how to fix the problem. I think it’s time for a new strategy, and a law student from American University, Steve Shapiro, may have just the one. He has filed a suit arguing that gerrymandering violates the First Amendment, and sued the perfect test case – the heavily Democratic State of Maryland.

Suing a Democratic state could persuade conservative Justices

Maryland is a quiet little state nestled on the eastern seaboard, and most other Americans may only know it for its excellent crab cakes (but seriously, the crab cakes are really good). One of the interesting things about Maryland is that a fluke of history has made it one of the most gerrymandered states in the country. Democrats have held power in both houses of the legislature since 1918.  This is because Maryland was once a loyal, Democratic, segregated state in the Solid South, but since desegregation, it has gone its own way. As the rest of the South responded to Nixon’s Southern Strategy, Maryland became gradually more liberal, and today it is one of the bluest states.

Because it is a Democratic state, Maryland offers an opportunity to present the case against gerrymandering without attacking the Republican Party and its interests. Why does that matter? Four out of the five sitting Supreme Court Justices are dedicated conservatives, and Anthony Kennedy frequently sides with them. Obviously, Supreme Court Justices know that any gerrymandering decision will subsequently be applied to all states, but it doesn’t take a leap of imagination to suppose that a case brought on behalf of Republican voters might be persuasive. Supreme Court Justices are, after all, only human.

The First Amendment might be an easier sell than the Equal Protection clause

For one thing, it may be an easier argument because Anthony Kennedy seems open to it, and this is Anthony Kennedy’s Court. In the last gerrymandering case brought under the Equal Protection clause (arguing that political parties are a class of persons being deprived of equal protection of the laws) Justice Kennedy indicated he might be amenable to a free speech argument. It is no wonder – the Court has been unable to make Equal Protection work. Unlike racial classifications under the Voting Rights Act, classifying people by political party – by what they think – is a hairy prospect. It is hard to figure out when Democrats or Republicans have been discriminated against as a class and when it is appropriate for a court to intervene. Moreover, how is the Court supposed to invent a way for legislatures to re-draw the districts, without becoming overly involved in the political process?

Violations of Free Speech and Free Assembly rights under the First Amendment create a simpler metric and a simpler analysis than Equal Protection. The question is: did the Maryland General Assembly silence Republican voters deliberately? All Marylanders, like all Americans, have the right to freely form political associations and band together to have their political speech heard. If Shapiro can prove that the Maryland General Assembly took voting patterns into account when it re-drew the districts, that forms a pretty strong argument it deliberately infringed on the Free Speech and Free Association rights of Maryland Republicans. If so, the Court does not need to come up with formulas for distribution of voters, it can simply say “no legislature may take voting records into account when drawing congressional districts.”

A First Amendment argument may not solve everything, but it’s a start

You may be wondering whether simply ending the use of voter data in redistricting will fix the gerrymandering problem. It’s possible that it will not – politicians are known to be awfully tricksy, and they may find some sort of proxy for voting records that allows them to estimate voter behavior. However, that may be harder over time. People move around, demographics change, and a ban on using voter data may gradually even out congressional districts, even if it does not automatically bring an end to gerrymandering. We may never get a magic solution from the Court. The truth is, this is a problem we are supposed to be addressing through advocacy to our elected officials. The Court is in a Catch-22: it is certainly supposed to protect us from attempts by those elected officials to silence our votes and voices, but it is also not supposed to usurp the political process. Mr. Shapiro et. al. has given the Court a chance at a simpler rule against gerrymandering. Let’s hope the Court takes it.

Why Are We Still Arguing Over Reproductive Rights? The Problem With Roe v. Wade

Once again, Republican lawmakers are taking aim at the reproductive rights of American women. Assaults on Planned Parenthood don’t really make any sense – its primary purpose is to provide its patients with contraception and sexual health screening, and it’s the only provider in a lot of urban and rural communities. Planned Parenthood’s mission isn’t all that controversial. For all the prudishness expressed by many on the religious right, no one actually wants an outbreak of HIV or untreatable gonorrhea in rural and urban America (even Mike Pence). The only reason the Republican party is attacking contraception and women’s health organizations is because some Planned Parenthood clinics and many other sexual health clinics perform abortions. The “moral majority” just can’t seem to get at Roe v. Wade itself – yet. Social conservatives have allied themselves with judicial conservatives, who have a constitutional objection to Roe, for 40 years, and they aren’t likely to stop attacking reproductive rights unless the split in the legal community is resolved – which is highly unlikely.

It is the legal controversy, not the moral one, that has created Roe’s destructive power in our politics, because social conservatives know they can attack Roe by appointing the right people to the Court. Many perfectly rational judges and lawyers, whether they personally support abortion rights or not, are skeptical about the constitutional theory Roe was based on. In finding a right of privacy inherent in the 14th Amendment, the Court revived one of the most controversial theories of constitutional law in American history and based women’s reproductive rights on that unstable foundation. Basically, we’re fighting to protect the right of poor women to have access to pap smears because it did not occur to the men writing the seminal case on women’s rights that the case was about the equal protection of women’s rights at all.

About that right to privacy …

So here’s the thing: a woman’s right to have an abortion is based on a right to privacy that the Constitution does not explicitly grant.  That right, as applied in Roe, is read into the 5th and 14th Amendments, which say that no citizen shall be deprived of life, liberty, or property without Due Process of law. The Court says that the right of a woman to procure an abortion before her fetus becomes viable – when it could live outside the womb – is part of the “liberty” interest the State can’t take away from her. This act of reading into the “liberty” interest is called “Substantive Due Process” (I have never heard a good explanation why). On one hand, that seems completely logical. What could be more important to liberty than the right to control one’s health and bodily function? On the other hand, many lawyers and judges are very wary about reading rights into the “liberty” interest of the Due Process clause, because doing so is associated with one of the ugliest chapters of Supreme Court history.

I mean, why shouldn’t a kid work 70 hours a week?

In the late 19th and early 20th centuries, the Supreme Court went to quite a bit of trouble to protect the property rights of the wealthy at the expense of the huddled masses of 12 year olds apparently yearning to breathe some free factory air. The Court concluded that the “liberty” interest of the Due Process clause included a right to contract. In a series of decisions knocking down labor laws, including a federal law regulating child labor, the Court concluded that the individual’s right to contract was more important than the government’s interest in ensuring corporations were not abusing and killing its citizens. This era of pro-property rights Court decisions is called the Lochner era, after one of its most famous cases. This line of cases was finally overruled in 1935, and it is among the most clear and destructive examples of “activist judging.” So when Roe was decided in 1972, reading rights into the “liberty” interest in the Due Process clause, Substantive Due Process had long been a constitutional hot potato. It is favored by some Justices for its flexibility in adapting an 18th and 19th century document to the modern world and disfavored by others for its past and potential future abuses. The problem with basing Roe on substantive Due Process is that whether you agree with it or not, there are popular and valid legal arguments against it. The debate about reproductive rights isn’t going away because there are a lot of lawyers and judges who, whatever they think of abortion, are very wary of this line of reasoning.

What’s wrong with a little Equal Protection for the ladies?

The weird thing about Roe v. Wade is that it could have been decided on a much more solid foundation: the Equal Protection clause of the 14th Amendment. Had the decision been founded on that basis, some judges might have questioned whether abortion rights are an Equal Protection issue, but no one questions whether the right to Equal Protection of the laws exists. Moreover, it’s easy to prove that reproduction places a burden on half the population that does not exist for the other half. With many women acting as heads of household, it seems a pretty obvious argument that restricting their right to control reproduction effectively restricts their right to pursue their life goals and provide for their families in competition with men, who cannot get pregnant. Few, if any, judges would contest today that the clause applies to the rights of women. Indeed, the argument against the Equal Rights Amendment was and is that women are protected by the Equal Protection Clause. It seems unlikely Roe would have remained so profoundly controversial if it had been decided on that basis.

So why are we still arguing over reproductive rights? Because the men evaluating the importance of a woman’s right to terminate a pregnancy spent a great deal of time evaluating the medical history and implications of termination, but very little time evaluating whether an abortion could impact a woman’s ability to determine her future, as any man would expect to do. Ruth Bader Ginsburg has said that she wishes the first reproductive rights case had been that of a young female Air Force Officer who, when she became pregnant in Vietnam, was given the choice of terminating the pregnancy or leaving the service. Ginsburg thinks this illustrates the fact that the issue is a woman’s choice, not the mechanics of abortion. I agree. At the time Roe was decided, it was only two years after the Equal Protection clause had been applied to women for the very first time. The world might be quite different if abortion rights had been decided a few years later. However, all speculation about how Roe could have been decided is an intellectual exercise; it is unlikely substantive Due Process is going anywhere. As with all important civil rights cases, Roe v. Wade has other precedents built on top of it, most importantly (in my opinion) the entire line of gay rights cases involving sexual privacy and marriage. So ladies, when the next Supreme Court seat opens up, grab your gay friends and protest for all you’re worth, because all of our rights depend on it.