Wednesday, August 10, 2016

Trump is Clueless About the Second Amendment and Constitutional Law

   Another day, another outrage.  Yesterday Donald Trump made some remarks that sounded a lot like previous right wing calls for "Second Amendment solutions," that is, suggestions that conservatives should resort to political violence against their enemies.  This rhetoric is, in fact, common enough among today's right wing that it is difficult to credit Trump's defenders' claims that the candidate meant something else or was "just kidding," as if he hadn't been thinking of this popular extremist trope in the first place (and of the fact that his audience would love it).  In fact the only line of defense with even a pretense of credibility is that Trump has to keep saying outrageous things because that's what's got him where he is and if he stopped the whole thing would run out of gas.  That might very well be true.

   But the "Second Amendment solution" gaffe isn't the only thing about Trump's stand on gun rights/gun control that ought to give us pause about the Republican candidate's competence for the office of the Presidency.  The Republican nominee appears to have not even a high school civics class understanding of 1) the centuries-old debate about interpreting the 2A or 2) the larger context of the relationship between the Constitution (including the 2A) and the Judiciary (broadly understood as "constitutional law").  Let's take a look at these two respective topics, and Mr. Trump's less than amateurish take on them (I'm an amateur in this department; Trump is, to use a put-down made famous by the physicist Wolfgang Pauli, not even wrong).

   1) Second Amendment interpretation.  The 2A states, in its entirety, "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed."  A sentence consisting of two simple clauses, but two clauses that are not necessarily consistent in their meaning or implications, the 2A has been the subject of literally thousands of judicial interpretations, as it is the institutional touchstone of decisions determining the constitutionality, or lack thereof, of all local, state, and federal laws, legal rulings and legislation regarding the purchase, possession and use of firearms.

   It's easy to see why the original intention of the 2A is vexingly opaque.  If it just said "The right of the people to keep and bear arms shall not be infringed" that would be relatively straightforward, although still problematic as to the scope of "arms."  Not all conservatives would be inclined to accept that this includes the right of private citizens to maintain their own private nuclear bombs, after all, or fleets of combat helicopters, although some would (and do).

   But the 2A isn't just that phrase.  That phrase is preceded by a phrase that is clearly meant to function as the framers' argument for prohibiting the infringement of the right of the people to keep and bear arms, namely that  "a well regulated militia (is) necessary to the security of a free state."  That is, in the absence of a "well regulated militia" there is no justification (offered in the Constitution, that is) for any right of private citizens to keep and bear arms at all.  At least, so a politically liberal interpreter like me would read the amendment.  And while both sensible conservatives and liberals alike are naturally going to gravitate towards common sense positions like "sports rifles yes, artillery no," no such pragmatic consensus currently exists.  Instead there is a fierce debate that rages in the face of a serious national problem with gun violence.

   But the present topic is not this all-too-familiar one about the 2A and gun rights/gun control.  My topic today is Mr. Trump's grasp of all, or any, of this.  Trump appears to believe that the 2A is universally accepted as establishing the right of private citizens to possess firearms: he appears to be unaware of the whole venerable debate.  In his latest book Crippled America: How to Make America Great Again (November 2015) Trump gives us his "positions" on a number of major policy issues. On gun control he simply quotes the 2A in full and adds one word: "Period."  He maintains that Clinton wants to "overturn the Second Amendment" which goal is not and never has been any part of her (or the Democratic Party's) platform.  What liberal Democrats like Clinton and I contend is that gun control measures are not, as such, unconstitutional under the 2A.  Which brings me to:

2) Trump is shockingly clueless about constitutional law.  This is actually worse, I think, than Trump's mistaken belief that the 2A definitively establishes the right of private citizens to possess firearms because in this case his ignorance extends to our entire system of governance. "Hillary wants to abolish -- essentially abolish the Second Amendment," Trump told the rally on Tuesday, adding, "By the way, if she gets to pick, if she gets to pick her judges, nothing you can do, folks."  He appears to believe that judges can rule on the constitutionality of the...Constitution.  Well, no.  Under our system of government the legislative branch can enact laws, and the legislature and the state legislatures acting in tandem can amend the Constitution.  The function of the judiciary (as regards the Constitution) is to rule on the constitutionality of laws and legal decisions through Constitutional interpretation.  The Constitution itself is the Hobbesian formal "sovereign" under which these rulings occur: it is not itself subject to judicial authority.  That relationship goes the other way around.  And although that basic fact may not be crystal clear to every blessed soul it certainly is to every constitutional scholar, judge, lawyer, legislator and 10th grade social studies student in this country.  Trump, not so much.      


Friday, July 15, 2016

The Sanders Supporters' Blind Spot on Race

   Two days after Bernie Sanders' endorsement of Hillary Clinton, now is a time to show respect for Sanders supporters including respect for their autonomy and self-determination as voters.  But we have also arrived at a teaching moment when it is dangerous to let important things go unsaid.   During the primary season I noticed something about many of my facebook/twitter Sanders-supporting friends that puzzled me.  I see social media as a means of knowledge production: my questions are more often sincere than rhetorical.  On the occasion of the California Democratic primary vote on July 7 I posed an honest question in response to some of the Sanders supporters' rhetoric: Why did black voters stick so overwhelmingly with Clinton throughout the primaries, effectively determining that Clinton would be the nominee with their vote in California?   The response to that post from some Sanders-supporting friends was startling and illuminating, and after a week of reflection I'm convinced that there is an issue here of great importance.  My intent is neither to shame nor to provoke but rather to have a substantial conversation.

   One friend, a member of my academic network (all of the three examples here are highly educated people), argued that black voters had not had time to discover Sanders because blacks were less educated than whites and had less access to social media because they owned fewer laptops, smartphones and so on.  Needless to say he was immediately pounced on for what seems a patently racist line of thought.  I got pretty testy with him myself.  Later on he was still aggrieved, still maintaining that "blacks are less educated" was a reasonable explanation of why they stayed loyal to Clinton.

   Black voters stayed loyal to Clinton throughout all of the primaries, but let's take a look at the black community in California.  California has a long history of black radicalism and has been a center of activism since well before the civil rights movement of the 50s-60s.  From East Los Angeles to Oakland the black political community has a long history of upheaval and struggle.  As a result of this history and because the Democratic Party must retain the loyalty of urban black voters there exists today a powerful network of black churches, communities and politicians who inform and mobilize the black vote.  On June 7 these black voters gave Clinton a 55% victory in California.  Also Clinton won by an average of 15 percentage points in every single congressional district where Latinos make up at least 40 percent of eligible voters  So, yes, it is unacceptably obtuse but also disrespectful to dismiss the support of black voters for Clinton as a result of their not having enough i-phones.

   Stranger still was the Sanders-supporting friend, this time a fellow alumnus of my college, who read the Clinton victory as evidence that California was "racist."  This was a younger woman very devoted to the identity politics of these days (she said she was a "latinx").  As a defender of the oppressed she was quite affronted when I pointed out that her view of the election was quite literally the opposite of the truth.  That simply could not be.

   No, she went on her merry (actually kind of rageful) way, dismissing facts that contradicted her meticulously constructed self-projection.  My academic friend had invalidated black support for Clinton, but this friend had to deny that the actual behavior of black voters, and the effects of that behavior (voters of color in California effectively decided that Clinton will be the next President of the United States on July 7) even existed.  There was no room for the (actual) black voters in her (imaginary) political universe.

   Then there was the third and final friend, another fellow alumni, who was in a self-congratulatory mood after the California primary.  It was a moment, he said, when he could feel "proud to be a white man," as white men were the only group of California Democratic primary voters who had given a majority of their votes to Sanders.

   Ahem.  The last time white males voted in the majority for the Democratic Party presidential nominee was for Lyndon Johnson in 1964. Meanwhile the Democratic Party has won the popular vote in five out of the past six elections.  Along with blacks and Latinos, the sizable support for Democratic Party candidates from women is the key to Democratic Party wins.  It's true that white male Democrats are responsible for several of Clinton's primary defeats, notably in Michigan.  But that is not some salutary example of white men voting progressively, as my friend let himself think.  That's just white men voting the way white men do.

   There is a larger lesson in all of this.  I want to discuss a remark made by Joe Walsh the notorious former Republican congressman turned right-wing talk show host.  Mr. Walsh most recently got attention after the tragic shootings in Dallas when he tweeted "Watch out Obama and Black Lives Matter thugs.  Real America is coming after you."  I can't resist also reminding readers that Mr. Walsh was sued by his ex-wife for failing to pay $117,000 in child support.   He blamed the bad economy for his failure to support his own children.  One guess who he blamed for the bad economy.

   But I digress.  I want to talk about a statement Joe Walsh made on June 26, when he tweeted "The single greatest act of racism in American history was the election of Barack Obama."  (Pause to let the ghastliness of that remark sink in.)  Of course the point is meant to be that people voted for Obama solely based on his race.  True, black voters gave Obama 95% of their vote in 2008 and 93% of their vote in 2012 and that vote was no doubt sweeter to make on account of Obama's own blackness, for them and for quite a few of the rest of us too.  But black voters gave the Southern centrist Al Gore 90% of their votes in 2000 and John Kerry, one of the whitest rich white dudes you're ever likely to see, 88% of their votes in 2004.  Bill Clinton (whatever he is) garnered north of 80% of their votes in his two elections as well and there is every reason to think they will do the same for his wife.

   Why?  Because the black electorate is loyal to the Democratic Party.  That hasn't been an easy thing for them.  Jesse Jackson called the Party out for unfulfilled promises in 1988 to historic effect.  But that community knows that coalition politics is the only way forward for disenfranchised people.  Jackson didn't organize all the black voters, he organized "all the little fish."  He was a black champion but he understood that his campaign was a phenomenon within the Democratic Party.  He had no intention of bolting, and neither does Sanders.  Party politics is all about solidarity.   Black voters don't get to go back to Vermont.  "If the people will lead, the leaders will follow" is NOT compatible with "Compromise is a sell-out." If the black electorate had its own party not only would they not win national races, they would also help to cement in the rule of a minority right-wing.

   During one thread exchange with Sanders supporters I said "Politics is hard."  I thought we had enough mutual understanding that they would understand that we have to make sacrifices and compromises in politics: politics is hard emotionally.  But that's not how they took it.  They thought I was calling them stupid. 


Saturday, June 11, 2016

On Voter Misogyny

   When I was in graduate school and starting as a young professor I learned an important lesson about life in the professional world - in all professional worlds: academia has no monopoly on anything that I'm going to discuss here.  Some (not a majority, but a portion) of my male colleagues were maladjusted, self-important, arrogant and over-proud, self-promoting and unsupportive, aggressive and unempathetic. But no, wait, that's not the important lesson that I learned.  I wasn't surprised by that at all.  I didn't necessarily like them, but I accepted that they were who they were (what choice did I have?), and I also understood, like everyone else, that I had to come to terms with these men, maybe patronize them a little, get them on my side.  Just a fact of life.

   No, the important lesson that I learned was when I realized that I reacted very differently to women colleagues who had any of these same sorts of qualities.  I felt offended and, honestly, a little abused.  I noticed if she wanted to talk about her work but was uninterested in mine.  I was provoked if she boasted about her talents or accomplishments.  I felt a more visceral kind of anger than I did towards the men if we clashed on a committee, or if I felt condescended to, or unfairly criticized (honestly, if I felt criticized at all).  I had to realize that I had a certain kind of respect for the men that I did not have for the women (and by the way I was raised in a liberal, feminist family that was mostly women).

     Respecting people is a tricky business.  We don't fully respect someone until, among other things, we respect their dark side: the dark side that every complex human being has.  (Of course appreciating a person's capacity for goodness is another necessary component of respect.  One has to be so careful in this conversation not to be misunderstood!)  The men around me were empowered (by me) to be jerks and maybe even to be a little creepy.  When we meet a man, any man, we tacitly understand that he might turn out to be, to some degree, a jerk or a creep.  The irony is that that is a necessary part of respecting him fully as a man.  Now there are some real differences.  Men are generally, I think most people will agree, more dangerous than women.  That topic is deep and I can't wander off into the essentialist/conventionalist discussion right now.  My point right now is simply that as a man in the professional world I had to come to understand that I gave permission, that is to say that I empowered, male colleagues to have any number of negative qualities that I bridled at when I encountered them in women colleagues.

   We can see how this kind of patronizing sexism works in the discussion of reproductive rights.  There is no doubt that the decision to end a pregnancy is (depending on the medical circumstances of course) a decision fraught with moral ambiguity that resists any easy closure.  Nobody thinks that abortion as such is a good, happy thing, although many people including myself may think that its safe and legal availability is a good thing.  Rather the underlying issue is about power: who in the community is authorized, empowered, to make decisions that take us into morally ambiguous territory?  My support for a woman's right to choose rests not on some complacent confidence in women's inherent goodness or in the good judgement and moral sense of any particular woman but in my civil, political conviction that individual women ought to and in fact need to be empowered to make this choice.  In my own thankfully narrow experience of this I am proud to say that I only ever had one unhesitating response: "Whatever you decide I support you."

   Now I want to talk about voter misogyny and, of course, about people's reaction to Hilary Clinton.  We have just had a long, difficult, very illuminating lesson about voter racism thanks to the presidency of Barack Obama.  An alarmingly large part of the white electorate rejected Obama's legitimacy as president out of hand: a black man did not have their permission to be President. (Even as I write this the Republican Congress will not take up his Supreme Court nomination.)  To take a small but endlessly telling example, there was outrage at the sight of Obama putting his feet up on Lincoln's desk.  Well-known photographs of Kennedy and Reagan putting their feet up on Lincoln's desk proved, I guess, that the Irish have come a long way (and as a student of Lincoln I can tell you he would undoubtedly have been amused).

   Clinton is probably not going to put her feet up on Lincoln's desk in the first place, which is something to ponder in itself, but let's take up a much more serious matter, and one that misogynist voters on the left never fail to mention.  In October 2002 Clinton voted in favor of the resolution to back the Bush administration's invasion of Iraq.  The subsequent war in Iraq was, in my opinion, an unmitigated disaster.  Before the invasion we had, here in my home city of Mayaguez, a series of anti-invasion demonstrations culminating in a large march to the plaza, and I was one of the marchers in those protests, just as I marched in protest of the Vietnam War in Washington at Nixon's second inauguration in 1972.  Now let's consider some things about Clinton's decision (the Senate vote was 77 in favor, 23 opposed).  Clinton was the junior senator from the state of New York.  The 9/11 attacks had happened 13 months before.  Clinton was a member of the Senate Armed Services Committee.  She explained at the time that the vote was meant to strengthen the administration's hand in forcing further inspections (a diplomatic endeavor that the Bush/Cheney administration, which had already made up its mind, promptly dumped).  Most military analysts at the time believed that the war would be short.  No one had any way of knowing what would happen.  And, yes, she harbored future national political ambitions (I accept that as a factor even though that vote may have cost her the 2008 election).  She wanted to look tough and she wanted to look centrist.  I'm not arguing that she wasn't in any way cynical.  No, folks, that's not where I'm going at all.

   OK, so now she's "Killary."  Now she drops bombs on innocent children.  Now she makes political calculations about foreign policy.  Now she keeps an eye on the main chance.  Now she changes her stance on things as political circumstances change.  Now she naturally assumes her status as a member of the ruling elite.  Now she uses her authority to obtain more money and power.  Now she makes judgements that effect the lives of millions and that take us into morally ambiguous territory.  Now she wields power, makes deals with the opposition, retaliates against enemies.  Now she acts exactly like every other major party nominee that you ever voted for or against your entire voting life. Who does she think she is?  Or maybe the question is "what."  

Sunday, March 6, 2016

Trump's Ejection Rituals

   A pattern has emerged at Donald Trump's rallies. The Ejection Ritual has become a central, not an incidental, feature of the rallies.  It may be that the Ejection Ritual is actually attracting anti-Trump protesters, but it is also clear that if no one is disruptive, a non-disruptive person or group will be selected.  The Ejection Ritual has now evolved to the point where is has a clear structure and cooperation between Trump and the crowd: Trump stops his speech at the sound of a heckler (or perhaps someone with a Bernie Sanders hat, or perhaps a group of black students) and says, "Get 'em out!"  The crowd chants while the person/people are, usually more or less roughly, ejected.

OK.  This phenomenon is being widely reported.  What is striking to me is the very clear, very deep symbolic structure of this behavior.  It gets to the identity of Trump voters and the way that Trump is appealing to them.  It is not enough to denounce these people as uninformed and/or racist and ignore the larger context.  Here I want to keep it simple and just sketch out the symbolic structure of the behavior. 

First, who are these Trump supporters?  They are mostly white, working class, and uneducated (non-college).  That is not, at this point, surprising.  But they are also measurably disenfranchised (they report to pollsters that they feel they have no voice), xenophobic(they believe that immigrants are responsible for high unemployment among poor Americans)  and racist (they believe that most blacks don't work and live more or less comfortably on government checks).  Somewhat more puzzlingly they include many evangelical Christians.  All of these factors, including the last, are symbolized in the Ejection Rituals.

Like populist nationalism, evangelical Christianity tends to be messianic: a leader will appear to cleanse the polluted, expropriated community and restore virtue.  The disenfranchised will be restored to their rightful place.  Trump says he will build a Wall.  It is positively Biblical both in its proportions and its other-worldliness.  There is no real possibility of such a Wall, but Trump repeats again and again that he will build a great Wall that will keep the foreigners out. The Ejection Ritual is a  physical acting out of the wish for purification: the expulsion of the Demonic Other.  And it is a call-and-response routine between the people and the messiah: the strong man gives the order and the people respond.  It must be terribly cathartic for these angry, confused, frightened people to take part in the ritual behavior that acts out symbolically the purification ritual and Trump, a grandiose narcissist, has quickly adapted and begun emphasizing the ritual.  He has begun asking that people raise their arms as they pledge their loyalty, although I can't imagine the campaign continuing that.

Finally, I have questions about the behavior of the police and the Secret Service at these Ejection Ritual rallies.  It's no surprise that trump is hostile to the press.  What is surprising is to see the level of violence from public law enforcement.  Perhaps it is difficult to resist the emotional pull at a mass event both symbolically enacting violence and inciting actual violence.  But it does not bode well for America under president Trump.