Jan 26, 2005

Bring it to the masses

by Cliopatria

It's nothing new -- hasn't been for decades -- to say that we live in an era of mass consumption. But there keep being new and different variations, which are interesting. David Nishimura, one of my favorite (i.e. most useful) bloggers for his tireless scouring of news sources for historical interest items, notes two new examples, though he hasn't tied them together yet:

Russia is selling off WWII memorabilia. Not pins and caps, but
Maksim machineguns, 76mm ZiS-3 field guns, PPSH sub-machineguns and T-34 tanks. . . For the more ambitious there are T-54 tanks, built in the immediate post-war period and used to defeat the Hungarian uprising in 1956, and even Soviet-era submarines. . . While it has not yet published a price list, it is likely to sell rifles and pistols for a few hundred pounds each. Tanks in good working order are expected to cost upwards of £10,000. . . The company is also selling German and Allied equipment captured during the war or received as part of the Lend Lease programme.
The materiel is"decomissioned" but Nishimura is concerned about whether that really means"unusable."
CostCo is selling art, but Nishimura notes that it's not very good, nor is it likely to revolutionize the art business, which still limits access to good stuff by personal connections. His tips on buying good art are interesting, if a bit of an abstraction for me.
Nishimura also notes this story of an archaeological find nearly obliterated by the desire to avoid archaeological delays. We really do need to explain to the public better why history and historical preservation and archives are important. But you'd think a city which survives largely on government and historical tourism would get it.
And here's a link to one of many stories about the second revelation of a conservative columnist taking money to even more strongly support programs they probably would have supported anyway. For the record, nobody pays me anything to do this. Nothing. I don't get any credit, little glory, and I expose myself to the world, professionally and personally. What do I have to do to change that?
Jonathan Spence takes a look at the ill fate which befalls so many reformers in Chinese history, and which befalls so many of their malefactors, which is why China's leaders are still nervous about the funeral arrangements for Zhao Ziyang.
And Paul Starr argues that
Democrats were right to challenge segregation and racism, support the revolution in women's roles in society, to protect rights to abortion and to back the civil rights of gays. But a party can make only so many enemies before it loses the ability to do anything for the people who depend on it. For decades, many liberals thought they could ignore the elementary demand of politics - winning elections - because they could go to court to achieve these goals on constitutional grounds.
In other words, being right is fine. As long as you don't care about being popular. Starr argues that sacrificing right for popular is worth it. I'm not convinced.
US history textbooks too liberal? Facts getting in the way of your neo-conservative or neo-Christian agenda? Try this. Much like Malkin's work, it's being flogged by Fox and related institutions, so it's going to be popular whether or not it's any good.
Taking it away from the masses: The New York Times no longer includes the"mail full text" option in their e-mail story page. That makes it considerably less useful for me, since their links are only available free for a limited time.

A bit of a digression, but Dr. History has compiled some truly horrific tales of tenure denied. My chair came by the office today and asked how the publications were going..... I think blogging could well qualify as the most dramatic form of peer review.... nah, my committee won't go for it. Not even 200 posts worth.

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Jonathan Dresner - 1/27/2005

I still question your premise. Your premise, and Starr's, is that the Democratic party is somehow failing to win its share of the electorate; I think that, controlling for the fact that the current administration is in the middle of a self-generated war and is immensely, impressively skilled at propagandas of attack and obfuscation, the DP did and is doing pretty well.

I think the issues for the DP are tactical, not strategic; presentation, not principle. I think you're being fooled by "winner take all" into thinking that the loser is fundamentally inferior to the winner.

Richard Henry Morgan - 1/26/2005

Starr in fact says it was liberals who went to court, not the Democratic Party, and that this was their preferred method, rather than the legislative path. Without beggiing the question on what is right and principled, I can see where the Democratic Party might not profit electorally from a large constituency (liberals) devoting resources to pursuing victory by constitutional construction of the Courts, rather than electoral victory.

I haven't endorsed Starr's corrective. But I can see where if a bunch of significantly unpopular constitutional revisions, if they enjoy minority popular support, when rolled together as constituents, can leave one in a minority electoral position. Consider the questions of race and gender. There is hardly a state that hasn't, through the legislative process (and by both major parties), enshrined these considerations in law. Certainly the federal legislature has. Can one make the same claim for abortion rights or gay rights? Has the Massachusetts court action in the latter served their cause well, rather than putting support behind civil unions, which do enjoy majority support? Starr has argued it hasn't.

Why is being on the right and principled side not more electorally successful? You may retire to the answer that the large part of that is demonization by the right. Even if so, where does it leave you? What is your remedy? Why is the other side not able to counteract that? Would it require dirty hands that violate the purity of the other side?

Jonathan Dresner - 1/26/2005

Mr. Morgan,

That's not my point; that's your attempt to salvage a thesis from the discussion.

We disagree on the role of the courts. I don't see a point in rehashing that argument here.

What would be worth discussing, which you and Oscar are approaching, is why being on the right side of law and principle has not been more electorally successful. I think a larger part of the answer belongs to the other side's willingness to demonize and delegitimize the process of legal contestation (as evidenced by your reply above).

Richard Henry Morgan - 1/26/2005

Actually, I'm recommending that the Court no longer see themselves as the instrument for tailoring the law to "changing circumstances", but leave that to legislatures in their statutory AND constitutional roles. For instance, I'm glad to see that nobody has chosen to argue that Brennan's and the Court's invention of a property right (yes, a a property right) in public education, was a response to a massive wave of arbitrary expulsions that made its way across the country. Nor has anyone argued that such an invention has actually helped attain the purposes of education, rather than retard them.

I'm not wedded to the idea that the DP had legal strategies as part of their platform, only that the decision to defend judicial fiat when it comports with their constituents' aims had political effects, and that since most of those changes were to the advantage of one or more possibly competing constituent groups, did not help party unity, nor led to the party seeking such ends to do the political work necessary to achieve them by legislative means. If your point is that the DP has actually been disserved in the long run by judicial fiat that was never a part of their strategy, you'll hear no argument from me.

Oscar Chamberlain - 1/26/2005

You are correct that legislative solutions are often better. Although I support Roe v. Wade I think there is something to the argument that if abortion had been fought for in the political arena in the 1970s and 80s, the right to it might be more secure today. (I suppose that is more of a pragmatic argument than a consitutional one.)

Schools bring up all sorts of hard problems. Clearly individual kids can and should have some right to free speech and some right (under state constitutions) to access to an education. However, educators have to have the right to establish a disciplined environment or you get chaos.

One of the ironies of schools is that, in many ways, school restrictions become more onerous (e.g. drug tests) as the student ages. Whereas it seems to me it would be more logical to ease restrictions as a student ages. (Of course, I've never dealt with a class of 8th graders!)

Going back to your comments on the death penalty, I do find the cultural shift argument a disquieting one, largely because cultures can go "backwards" as well as "forwards." The ho-hum acceptance today of the use of torture on our enemies suggests to me the possibility that we may be going backwards. Should the Courts respond to that?

Jonathan Dresner - 1/26/2005

So are you recommending that the Republican party abandon it's legal strategies (Bush v. Gore, anyone?) or denounce its lawsuit-filing religious wing?

To prove the point you and Starr are making would require evidence that the DP leadership acknowledged legal victories as a component of their strategy, which led to altered political tactics. That's a tough case to make, in my view: this whole thing stinks of post hoc ergo propter hoc to me.

That the Republican party tacticians made a good jump on direct mail and rural radio (and their closed mailing lists developed by religious conservatives) is true (again, had Ohio gone the other way, Republicans would be self-flagellating about their failed internet strategies), but I really do not see evidence of the link.

Richard Henry Morgan - 1/26/2005

I think you're right -- the DP wasn't a party to the suits. Yet I think one could still make the case (in fact Starr and Carter have) that winning the lawsuits (by whoever) has impoverished the Dem's approach to politics, inasmuch as the decisions seem to embody principles that the DP has adopted, and likely would have pursued by legislative remedy had the courts not made that moot -- or as syou put, were already adopted by certain of its cosntituents. I saw the dark prince of conservative politics on Jon Stewart's show the other night, pushing a book that pretty much documents how the DP missed the boat on direct mail, etc. I too don't think this election has empowered anyone to make changes. It won't change the Court as the preferred mode of change for the left or the right, where the ballot box goes against them. That bell won't be unrung anytime soon.

Jonathan Dresner - 1/26/2005

Mr. Morgan,

I question the premise both you and Starr are operating on. The Democratic Party did not win these lawsuits. The DP was not a party to these suits, nor did it, as an institution, contribute money or labor to the pursuit of these suits. (I'm making these statements based on my general knowledge; if I'm wrong, I'm willing to be corrected) Winning these suits was not part of a DP strategy.

You and Starr are conflating the party with its allies and constituents. You could argue that the party could repudiate those suits and their results, but why would a party reject or campaign against a decision which is favorable to its constituents? After all, these groups are party constituents, still deeply loyal to the party after all these years. If Ohio had gone the other way, Starr would be arguing that "firing up the base" with loyalty and progress was the key to the party's success. Sorry, but this election does not give anyone a great trajectory with which to make major policy changes.

Richard Henry Morgan - 1/26/2005

You're right. The 9th was intended as a bulwark against constructive expansion of federal government power. And yet, it is not often invoked, even as the commerce clause powers of the federal government have been stretched beyond recognition. As a matter of history, the 9th hasn't been a bulwark. Hell, it hasn't even been a speedbump. Interestingly, it may theoretically turn out to be a source of gun rights. Chief Justice Warren (who never did any research of record on the Second), in his famous off-the-cuff remarks in that paragon of scholarly excellence, Parade Magazine, ridiculed the Second as a source of individual rights, yet said the individual right was protected -- one assumes by the 9th. I'm not holding my breath waiting for Justice Ginsburg to make that argument, but if she did, I expect a great many people would take exception, and would suddenly see a virtue in construing rights less broadly.

As you put it, the Court seems to concern itself with meeting changing social, political, and other circumstances. That is not an unalloyed good. Consider Brennan's decision that a student has a property right in a public education. The upshot is that no student can be disciplined in a number of circumstances without the protections afforded property -- that is without due process. That involves prior notice, legal representation, etc. Talk to a local principal some time and see if he/she thinks that hasn't diminished his/her authority and ability to deliver an orderly environment to his/her students.

Or consider Tinker v. Des Moines, where the Court magisterially proclaimed that a student doesn't surrender his rights at the school door. Unfortunatley, this begs the question of what rights a minor does have. They have no right of contract, of free movement, have limited legal proceeding rights, are in fact compelled to attend school. Yet their First Amendment rights stop only at material and substantial interference with the educational process, rather than allowing schools the prudential discretion of their parents. Seems the Court picks and chooses what rights minors have, according to their own non-professional views of the likely outcomes of their decisions. Again, check with any principal, and see if they think Tinker advances the purposes of education.

There are costs and benefits on each side of an issue. One would think that the flexibility of solutions crafted by legislatures might be a better approach than constitutional writ, embedded in stone, but that is not a universal view.

Oscar Chamberlain - 1/26/2005

As usual, your responses cause me to think some more.

I knew when I wrote it that my construction of the circumstances leaned toward pro-choice. You are right to point out that a different conception of life can lead to a different conclusion. One of the frustrations of this debate is that it is nearly impossible to frame it neutrally. Beyond that here are some thoughts.

You state: "The weakness of problematically reading into 'liberty', without constraint, rights not previously recognized, nor policies not enacted by legislatures, is precisely the problem we now have." Actually, the Constitution, in particular the 9th amendment, makes clear that the Bill of Rights was not an enumeration of all rights. It left open the possibility that unstated rights existed.

Justices nearly always avoid invoking the 9th amendment,because they know it would create controversy. However, many have concluded that, at minimum, rights should not be construed strictly. I'm inclined to think that the 9th amendment supports that.

Now for the fun part. Give a loose construction of rights, should the Court interpret the 9th amendment, or any other right, according to the opinions, knowledge, and circumstances of 1787 or according to those of today?

You are right that a willingness to do the latter has made the appointment process more political, and that has negative consequences. On the other hand, too much rigidity over too long a period of time would have its own costs. In particular, it would make it hard for the court to respond to the tremendous social, political, and ethnic diversity of our own time, a diversity the framers never anticipated.

Richard Henry Morgan - 1/26/2005

As usual, you put the questions soberly. There are, of course, other ways of framing the question. Assuming that abortion is clearly a part of the personal liberty inherent in the term, and not just an insertion into an empty vessel, does it yet still trump other fundamental rights, like the right to life? That, granted, is a much more controversial way of putting it.

Now I grant that women have not historically enjoyed equal rights. The weakness of problematically reading into 'liberty', without constraint, rights not previously recognized, nor policies not enacted by legislatures, is precisely the problem we now have: the instability of the law, and the devolution of jurisprudence to just another election spoil. Until the Court decided down this path, I really don't think that appointments to the Court became quite the battles that they are now. Nor were justices openly praised for their political skills.

One could take another example. Toward the end of his tenure, Brennan (along with Marshall) regularly voted against the death penalty as inherently cruel and unusual. To understand how he arrived at that conclusion, you have to understand the evolution of judicial philosophy at places like Columbia and Yale. Brennan had it that since the evolution of government had created an octopus of great power, intruding on everyone's life to an extent unprecedented, it was the Court's business to expand personal rights as a countervailing force.

In the death penalty cases, Brennan went so far as to say that society was progressing to his opposition position, but had yet to achieve his level of moral advancement. The upshot of Brennan's philosophy is that the great middle ground of uncovered action would eventually be covered as within the police power of the state (despite the limitations of the Cosntitution), or within the rights of individuals. The middle ground where we negotiate our lives and values disappears.

I just ask, look at the cost of the judicial philosophy of Roe. Can respect for the law be maintained, or stabilty, and politicization of the Court and the appointment process be avoided, if we go down this road?

Oscar Chamberlain - 1/26/2005

Part of the problem with the abortion issue is that our constitutions--state and federal-- began as male oriented documents. There was nothing in them that grappled with the question of what does it mean for women to be equal, because, almost no one thought they were equal.

Yet, there was a sea change of extraordinary power in the 1960s and 70s, when a majority began to accept the idea that women should be full equals to men in public and private life.

So here was the dilemma. The Burger Court recognized that change. Such a change required reconsideration of a number of practices because it necessarily changed interpretation of the 14th amendment.

The precedents for dealing with such a change in interpretation involved race. Race could be dealt with by reducing skin color to a triviality. The equality of women, however, brought up more difficult questions, because, in their capacity to carry a child, women have something both miraculous and burdensome that men do not share.

So here was the question the Burger Court faced. What is equality in this context? Put differently, can a woman be equal if the state can force her to bear a child regardless of her will or the circumstances of conception.?

People argue that the Burger Court overreached, but let's consider the alternative. What would have been the consequences of the Supreme Court of the 1970s arguing that the 14th amendment does not apply fully to a pregnant woman?

Richard Henry Morgan - 1/26/2005

I would add that Ely was an abortion proponent, and that among the critics of Roe was Archibald Cox. The real danger is not that a party becomes dependent on the courts, but that the courts distort law in a manner that can become a threat to the democracy.

Richard Henry Morgan - 1/26/2005

Some time back (about 20 years ago) Hodding Carter III made essentially the same point -- that the Democratic party had won its major battles through the courts, not at the ballot box. The interesting point is that this pattern hasn't led any of the beneficiaries of this largesse (yes, that's a deliberately provocative term) to question whether the courts were right. To make that point, one need look no further than Starr's choice of words: "to protect abortion rights" (when there had been no rights to protect previously).

When Roe v. Wade came down some 70% of lawyers (by poll)thought the decision deficient. The critique of Roe even by liberals such as John Hart Ely of Yale was scathing (it's available on the net, and I suggest that all read it). Having been the beneficiaries of the legal realism of Brennan et al, Starr and company can see their own party's political deficiencies only now that it doesn't own a court to give them by fiat what they couldn't win at the ballot box. But they seem constitutionally (pun intended) incapable of questioning the legal basis for their prior wins. And why should they? As has been demonstrated, the Warren Court reversed more precedent than any other court, yet that didn't stop its holdovers on the Rehnquist Court from screaming stare decisis when Rehnquist et al followed suit. Linda Greenhouse of the Times captured the spirit of the Warren Court, praising Brennannot for his his jurisprudence, but for his political skills in delivering a majority on an opinion.