Presidential Pardons and Obstruction of Justice

One thing is finally clear about the Russia investigation, thanks to Donald Trump, Jr.'s decision to tweet his incriminating e-mails: someone is going to prison over this. All three principals who took that meeting looking for Russian oppo research, Manafort, Kushner, and Trump, Jr., are likely in serious criminal jeopardy. Other figures (like Flynn, Sessions, and peripheral creeps Eric Prince, Carter Page, and Roger Stone) may be in danger of prison as well. But the Trump Tower Three certainly are.

The best advice any lawyer could give Donald Trump, Jr. is to flip, to make a deal with the prosecutors (immediately, right now) and agree to testify against someone higher up. But that is never going to happen, because it would mean turning on his own father, Donald Senior. Trump Junior is clearly unequipped for that. It would be hard for anyone to turn evidence on your mother or father, and Donald Junior isn't able to stand up to his father about much more trivial things. Not going to happen.

On the other hand, Donald Senior is not about to see his own son, or his favorite son-in-law Kushner, go to federal prison. So at some point President Trump may find himself overwhelmingly tempted to use his presidential pardon power. Pardoning people for crimes that helped put Trump himself in office would, under any of the usual American standards, be political suicide, but that does not mean Trump won't do it. He can't resist the temptation to tweet nasty things at cable TV personalities; he has nothing like the willpower or integrity to stay out of a Trump Junior prosecution. Trump does not believe the rules apply to him, which is what makes him so dangerous to the republic as a leader, but he also genuinely does not understand how rules, laws, or the Constitution actually work.

So Trump may trigger a genuine Constitutional crisis, triggering an unresolved problem in the Constitution itself: the danger that the President will use his pardon authority to carry out crimes against the Constitutional order, giving his accomplices impunity. Yes, the President would still be subject to impeachment and removal, but there would be no remedy short of that.

My (admittedly quick) glance at The Federalist (#69 and #74), doesn't help much. In #69, Hamilton concerns himself with plots for a military seizure of power, which is no longer necessary in an executive that commands a powerful standing army and security establishment. In #74, Hamilton is more concerned with Shays's Rebellion, which had after all helped prompt the Constitutional Convention, and focuses on the President's authority to pardon rebels as a tool for restoring domestic peace. (Hamilton is responding to the argument that the President should need at least one house of Congress to confirm pardons, and points to the Shays's Rebellion pardons as evidence for the benefits of the power to assure a speedy pardon.) You can say that the Framers did not quite plan for this situation, or perhaps more accurately you can say that the Framers gave Congress impeachment power to deal with it. But only the impeachment power.

So what happens if Trump decides to pardon his own confederates who are facing criminal charges for their work on his campaign? What if he pardons Kushner? Or what if he pardons Flynn and Manafort (both of whom are more likely to turn cooperating witness, because they're not related to Trump and might be looking at serious prison time)? Does he have the legal power to do that? The most likely answer is that he has the power, because it's one of the powers of his office, but using it would be a crime.

How can this be? Because doing something that is otherwise perfectly legal can become a crime when it is done to obstruct justice. Trump has the legal right to fire the FBI Director; firing the FBI Director to stop an investigation into his own advisers is obstruction of justice. Trump has the right to pardon federal criminals; pardoning one of his own flunkies to keep the flunky from testifying against Trump is criminal obstruction.

Put it this way: it is legal for me to buy a house. It is legal for me to pay more than asking price for a house (in fact, in some housing markets you have to). And it is legal to buy the District Attorney's house if he's selling it; public servants have to be allowed to sell their homes, too.

BUT, if I am under investigation by the District Attorneys office and I then offer to buy his house for, say, $100,000 more than the asking price (this is Cleveland; in San Francisco say a million over asking price) then it's attempted bribery and obstruction. Everything I did was legal, but I did it in order to obtain an illegal result. That is how the pardon power works, too. Chris Christie has the legal power to pardon criminal offenses in New Jersey; if he pardoned all of his own aides involved in Bridgegate, that's a new crime, because he would obviously be obstructing justice.

So if Donald Trump tries to squelch the Russia investigation by firing more investigators, or by pardoning his personal aides who are under investigation, that is obstruction and pretty clearly illegal. But the only remedy would be for Congress to impeach him.

cross-posted from, and all comments welcome at, Dagblog

Take Action on the Muslim Ban: Stop Sessions

The Administration has handcuffed legal American residents and detained them without charges as part of the President's pointless, lawless Muslim ban. It's a great moment to protest, an even better moment to donate to the ACLU and CAIR. But also be sure to call both your senators on Monday and demand that they make Jeff Sessions explain his position on this. If the President will not follow the Constitution or the law then we need an Attorney General who will.

Call both of your senators' offices. Speak briefly and politely. Ask that the Senator not vote to confirm Sessions as Attorney General until Sessions tells Congress whether or not the ban is legal. If you have time, add that you are concerned that Sessions's long-time aide, Stephen Miller, helped write this ban. The committee vote on Sessions is Tuesday; make sure to call before then,

Attorney General is THE key position for any administration that wants to dismantle our democracy, or to keep it from being dismantled. After World War II, when many future Iron Curtain countries in Europe had coalition governments combining Communists and non-Communists, the Communists always made sure that they got the position comparable to Attorney General: the Interior Minister, who controlled the internal police and security functions. Then the pro-Soviet Communists used their control of the police and the counterintelligence services to take control of the country, so there were no more coalition governments. In Czechoslovakia, the Communists took the Interior Ministry and the leader of the democratic mainstream party took the more prestigious role of Foreign Minister. Then the Communists threw the Foreign Minister out a high window and the security police ruled it suicide. The Secretary of State can't start a coup, or stop one. The Attorney General could do both.

The Attorney General controls the FBI, oversees voting rights, prosecutes all federal crimes, supervises our efforts to catch foreign spies. The Attorney General could lay off prosecuting spies from particular foreign governments. The Attorney General can simply choose not to prosecute crimes committed on the Administration's behalf. It's an extremely dangerous position in the wrong hands.

On the positive side, a principled Attorney General helped bring Richard Nixon down. A good Attorney General can save our country.

Stopping Jeff Sessions is one of the most important things we can do. If he gets confirmed anyway, but has to publicly repudiate one of Trump's policies to do it, that could also be very valuable, because Trump will be angry and we want their working relationship to be as damaged as it can be. An Attorney General who won't do Trump's dirty work for him is what we need.

Call both of your senators, please. Trump has made it clear that he intends to govern lawlessly and unconstitutionally. But he has made a mistake by moving too obviously, too soon, before he had his Attorney General and Supreme Court pick in place. Let's make him pay for that mistake, now, before he can solidify unlawful power.

cross-posted from, and all comments welcome at, Dagblog

Vote for American Democracy. Vote Hillary.

This Tuesday, I want to ask you to vote for something bigger than a person. I ask you to vote for the future of our country. I ask you to vote, as an American, for our democratic republic and for the constitutional political system that has preserved us from civil violence for the past hundred and fifty years. I ask you to keep faith with the American experiment. The best and only way to do that this year is to vote for Hillary Clinton.

Vote for a country where we don't jail the loser of an election, or threaten to jail our political opponents.

Vote for a country where both parties agree to abide by our elections.

Vote for a country where no major candidate casts doubt on the fairness of our elections.

Vote for a country where the politics stop at the water's edge, and no party accepts or tolerates interference from a foreign power.

Vote for a country where we have a full and functioning Supreme Court, and where no party damages our democratic government just to keep the other party from having its turn to make appointments.

Vote for a country where the President does not order our military to kill unarmed women and children.

Vote for a country where we do not shut down the government or threaten to default on the national debt because one party lost a fair vote about something they wanted.

Vote for a party where no eligible voter is turned away from the polls, and no voter is intimidated while waiting to vote.

Vote for a country where the President does not threaten freedom of the press.

Vote for a country where we solve our disagreements through rules that we have agreed on beforehand, the rules of politics, law, and civil order, rather than through force. Vote for a country where we make deals and live by them rather than shooting at each other or throwing each other in jail.

If "making deals" sounds corrupt or dirty to you, remember that the alternative is lawlessness and despotism. The choice is not between compromise and idealism. The choice is between compromise and tyranny. It is the rule of law or the rule of force.

And if tearing up the system sounds like a good idea to you, remember that the system we're talking about -- peaceful transfer of power, freedom of the press, parties abiding by elections -- is the system put in place by George Washington and the Framers of the Constitution.

This year, one candidate is running to be President inside George Washington's system. The other is running to make himself something like a king, with powers that Washington did not want any president to have and that the other Founders would not trust even to Washington: the power to jail opponents, the power to shut down newspapers. It is not clear our democracy can survive that.

Don't take my word for it. Take Donald Trump's. He has said he wants to throw his opponent in prison. He is campaigning on that. He has promised to order our soldiers to kill women and children, promised to authorize torture, promised to "open up the libel laws" so he could close down newspapers and news channels. And he has openly said that he will not agree to accept the results of the election if he does not win. He is not running against Hillary Clinton. He is running against the American Republic.

Hillary Clinton is a compromising politician, which makes her unpopular with some people. But I ask you to vote for an American who solves conflicts through compromise and politics, within the bounds of the Constitution. I ask you to vote for a negotiator. I ask you to vote for a deal-maker. I ask you to vote for four more years of Americans at peace with one another in our own country.

I ask you, above all, to vote for the possibility of another election like this one, to give yourself another chance to vote in 2020, and 2024, and for the long hopeful future of our beautiful country. I ask you to vote for politics and for politicians, for democracy in all its messy, mundane, compromised glory. I ask you to vote for the Constitution of the United States of America, and to vote for Hillary Clinton, who will guard that Constitution for all her days in office and pass that sacred charge along, as Washington and Adams and Jefferson did, to her duly elected successor.

I ask you to keep the faith with all the Americans who have gone before us, believing in our democratic Republic, and to keep faith with all the Americans yet to come. Let the American Experiment go forward, and may it last forever.

cross-posted from (and all comments welcome at) Dagblog

Do We Have a Constitution, Officer?

A country is only as democratic as its police, and Constitutional rights are only as real as its police treat them. The fight over police work in America is ultimately a fight over whether or not the United States Constitution is real.

The Constitution plainly states that no person "shall be deprived of life, liberty, or property, without due process of law." It could not be clearer. It could not be more essential. But in 2015 we hear apologists for police misconduct, across our country, loudly advocating a civil order where the police can punish any citizen who does not comply swiftly enough to please the police officer, where police can arrest citizens without cause, where police officers can kill unarmed citizens with impunity to guard against hypothetical and thoroughly imaginary dangers. There is no due process of law. You have no rights.

Officer Michael Brelo, recently acquitted of manslaughter in Cleveland, stood on the hood of two unarmed citizens' car and shot fifteen bullets into their windshield. Brelo had already shot 32 other bullets at that car. In fact, Brelo and his fellow officers, who shot 137 bullets at those two unarmed citizens, were also shooting at each other, because they had surrounded the car and were shooting into a circle. Brelo, the only one prosecuted for shooting, was standing on the hood of the victims' car because, even if they had had a gun, Brelo knew they were no longer in condition to return fire.

Timothy Russell and Malissa Williams's lives were taken, by paid agents of the state, without due process. There was no trial. There was no judicial process, and there are no consequences. Nor was there ever any danger to any police officer except from other police officers. The chase (which involved more than a hundred cops) began because Russell and Williams's car had backfired and a jumpy police officer, hearing an engine backfire, decided that he was being shot at.

The police can take two citizens' life in response to their own fantasies. They go free after doing it. The Constitution is not in force. We do not live in the country we say we do.

In Baltimore, Freddie Gray was arrested for no reason that the police themselves can explain. He was arrested without committing a crime; he had looked at a police officer, and then he had run. Baltimore police officers punished these non-crimes by arresting Gray, and by beating him; he was limping on his way into the police van. He was dead when he came out. But other citizens put into Baltimore police vans have come out with broken bones, concussions, and spinal damage: the Baltimore cops' way of dispensing "justice" without any judge, without any chance for the citizen to defend or explain himself, without any law needing to be broken at all.

Did they mean to kill Freddie Gray? Or did they just mean to punish him by doing him bodily harm, without due process of law? Either way, there is no Constitution in Baltimore. This is not the America we talk about.

Police officers in Cleveland, in Baltimore, and across the country, consider themselves entitled to beat citizens who don't cooperate as the police officers see fit, to beat citizens who say something a police officer doesn't like, to beat citizens who make the police officers run. They see this as their right and their privilege. They don't ask a judge. They don't bother with the law. Your rights in the Constitution are not your rights, because the police don't bother with them.

People who excuse or encourage this behavior, who say that you're in no danger if you obey a police officer, should be up front about what they believe. They believe in abolishing the Constitution. They trust the police, any specific police officer on any given day, more than they trust the Founders. If your Constitutional rights can be voided whenever a cop, any cop, in any mood, decides to give you an order, then you have no Constitutional rights. The Founders deliberately decided that no one in our system, not even George Washington himself, could be trusted with unchecked power. Allowing police to dole out any punishment they see fit to anyone who disobeys any order, even unlawful orders, is a mockery and misunderstanding of everything our system was meant to be.

I am from a family of police officers. I grew up around police officers, including many, many officers I love and admire. I know lots of good cops. But I have never known a cop who was not a human being, with human failings. I have never met a police officer who should be allowed to do anything he or she wants without accountability. Thomas Jefferson mocked the idea of "angels sent as kings," by divine right; certainly, a system that requires all police to be angels, because they are empowered to do whatever they want, is even worse.

Yesterday Cleveland agreed to Justice Department oversight for the Cleveland Police. That oversight includes things like not beating suspects who are already in custody and in handcuffs. But that is not a new rule. That was always the rule. The Cleveland police knew that rule and disobeyed it. That Cleveland police officers did that, time and again, shows that they have routinely ignored the law, that they consider themselves above the law and can not be held accountable. The New York Police Department forbids its officers to use chokeholds on suspects, and has forbidden that for years, but for years its officers routinely did it anyway. The six Baltimore police officers who took Freddie Gray on his fatal ride all told their superiors the same story, a story that did not match video evidence. Lying and falsifying reports has become routine. Standing orders are routinely ignored. It is clear that in many police departments, the rules that are written down are not actually obeyed, and the focus is on protecting one's fellow officers from oversight.

Every cop is not bad. But when police are not properly supervised and held accountable, then the bad cops are put in charge and the good ones have to follow their lead. When the police avoid the authority of the laws, then there are no laws but the police.

If the police are not answerable for what they do, then nothing else matters. If they are beyond the law, then none of us are safe from them. If the police need not answer for what they do to us, then the police become, in the most literal way, irresponsible. And then the Constitution is just some words on paper, no more real or meaningful than the beautiful and high-minded constitutions of every other police state.

Michael Brelo was acquitted because the judge said no one could prove that Michael Brelo's shots killed the two unarmed people who had committed no crime. After all, by the time Brelo was standing on the hood of the car, both of those victims were probably already dead. But that means Brelo was standing there, pouring fifteen more bullets into two defenseless human bodies, to make sure that neither of them survived. Think about that when you go to sleep tonight, and try to pretend that you have any rights.

cross-posted from Dagblog

Religious Freedom vs. Religious Privilege (or, Franklin vs. Penn)

The version of "religious liberty" currently promoted by the American right, best exemplified by the Hobby Lobby decision and the "Religious Freedom Restoration Act," is not only a recipe for future religious disputes and persecution. It represents an approach to religious freedom that has already created trouble. It was tried and abandoned so early in the American Experiment that most of us don't learn it in school. That's because the policy of providing religious groups extensive privileges or exemptions, rather than maintaining a neutral public square for all, failed before the Revolution.

Many of today's religious conservatives object to a religiously-neutral public square (where, for example, everyone has to follow the same laws). This, they say, restricts their free exercise of religion. They feel entitled to exercise their "sincerely held" religious beliefs in full. The problem with this is that when everyone enjoys maximal rights of free exercise, parties inevitably infringe on other parties' rights to free exercise. People of other faiths are not allowed to practice, or people are forced to abide by some religious precept which they do not believe. (For example, non-Catholics might not be denied certain health coverage benefits because of a Papal encyclical from 1968, forcing those non-Catholics to abide by the tenets of someone else's faith.) The approach that Justice Kennedy et al. have so improvidently revived grants certain parties (especially powerful parties) particular carve-outs or concessions, allowing them spheres of influence where they are exempted from the ordinary rules.

Some of the original Thirteen Colonies, of course, began as religious concessions on a grand scale, with particular religious minorities (in the 17th-century English context) granted their own domains to settle and govern. The most obvious of these are Puritan New England (settled by radical Congregationalists and Presbyterians), Maryland (granted to the Roman Catholic Lord Baltimore as a personal fiefdom), and Pennsylvania (granted to the Quaker William Penn as his personal property). This idea of colony-as-denominational-ghetto is, of course, an outgrowth of 17th- and 18th-century England's own sorry resistance to religious toleration, and its bias toward its own official Church; better to give the Quakers huge swaths of territory in the New World than to accept an England where all faiths were welcome.

But in all of these colonies, albeit in different ways, there was serious conflict between the locally privileged religion and people of other faiths. Maryland never quite got off the ground as planned, because so many of the colonists were resistant to the idea that Catholicism would be specially privileged; the colonists had to struggle with a superior civil authority in order to achieve a more level and neutral public square, with the same rules for all.

Puritan New England became a site of significant religious persecution, as the Puritans battled non-Puritan groups and one another. That Massachusetts, Connecticut, and Rhode Island are three different states is testimony to the Massachusetts Bay Puritans' gift for squabbling and schism. Connecticut and Rhode Island were founded by Puritan religious dissenters from Massachusetts. The struggle between the Congregationalists and Presbyterians was more peaceful, but bitter and socially divisive. And other religious groups had no rights at all. Baptists and Quakers were not only expelled from Massachusetts, but whipped for good measure; the Massachusetts Puritans insisted on their religious freedom not to intermingle with other faiths. The final extreme was the execution of some Quakers for being Quakers, at which point the royal government had to step in. A superior civic authority had to restrain the majority of the colonists from oppressing and persecuting their neighbors.

(One of the ironies that I've blogged about before is that Mitt Romney has enjoyed far more religious liberty in modern secular Massachusetts than he would have in colonial religion-in-the-public-square version. Secular Massachusetts elected him Governor; theocratic Massachusetts might well have hanged him. When modern religious conservatives complain that the "secular culture" oppresses them and limits their freedom, they have NO idea what they're talking about.)

In Pennsylvania, the case was most complicated, with the colony owned by a family of Quaker proprietors and the colonists divided between a Quaker-led political faction and a non-Quaker faction. But the special privileges accorded to the Quaker faith did, inevitably, burden the rest of the Commonwealth. The most startling example was the reluctance by the pacifist Quakers to countenance a colonial militia despite recurring armed conflicts with the French and the Native Americans. That left their fellow-colonists with the choice of going undefended, and thus dying for beliefs they did not share, or of shouldering the entire risk and expense of colonial defense themselves, without any contribution from the Quakers. In the 1740s Benjamin Franklin (nobody's military man) had to organize an all-volunteer militia without legislative sanction; essentially a self-funded private club to defend the colony. The Pennsylvania legislature wouldn't actually fund a state militia until 1756, two years after the French and Indian War had begun in Pennsylvania, and a year after the colonial commander of the British Army had been killed in action there.

The Quakers' special prerogatives could only be sustained by limiting the political freedoms of others. "Religious liberty" conceived as special privileges or exemptions for believers has repeatedly, inevitably, become an infringement on others' liberty.

Franklin stands as an exemplar of the other, more successful approach to religious freedom. Franklin advocated a public square open to all, with no special advantage or favor to any sect. This often put him at odds with the Quaker party in colonial politics. But, since it is the eve of the Fourth of July, let me be bold on the great Franklin's behalf: he was right, and his political opponents were wrong.

Franklin, who belonged to no organized church and swore to no particular creed, advocated a "secular" public sphere, the true religious equality where all believers (and unbelievers) are accepted by the commonwealth and all accept the same obligations to the commonwealth. Franklin remained on friendly terms, by his own account in the Autobiography, with every religious denomination in Philadelphia by donating money whenever someone was trying to build a church. He believed in a Philadelphia where faith was a choice and every citizen had the same freedoms, where every conscience was free and where no one had to bear the burden of a stranger's beliefs.

The William Penn model has failed, more than once. Now that the RFRA and five short-sighted Supreme Court justices have revived that long-discarded model, it will fail again, but only at the cost of burdening Americans' liberty. Under the Penn model, some people have more religious freedom than others; the rest of us are free to exercise someone else's religion. And that tends, always, to mean extra religious freedom for  the rich and powerful at the expense of ordinary citizens' freedom. The rest of us are free to worship as my Lord Baltimore pleases, free to sacrifice to William Penn's lofty principles, free to have the chief shareholder of the corporation that employs us make moral decisions about our wombs. The model of "religious liberty" as special privilege always ends up giving all the liberty to the privileged.

That was not the America Benjamin Franklin wanted. And I say, this Glorious Fourth, that Benjamin Franklin was right in 1776, and right in 1787, and Benjamin Franklin is right today. Freedom of conscience is not about exemptions or concessions. Every conscience is, and can only be, equally free. And only a neutral public square, where all have equal standing, allows religious equality. Franklin was right, and history will continue to prove it.

Happy Independence Day.

cross-posted from Dagblog

Religious Liberty vs. Hobby Lobby

Let's start with one thing. It is not acceptable for my boss to make my religious decisions. It is not acceptable for your boss to make your religious decisions, or for somebody else's boss to make religious decisions for them. Your religious freedom is yours, alone. It does not belong to your employer, to your landlord, or to anybody else. The deepest stupidity of the inane Hobby Lobby decision is that it uses religious freedom to let your boss take away your religious freedom. That is not acceptable. And it is not sustainable. Five allegedly rational Supreme Court justices have just opened the door to vicious religious conflict. Because letting your boss make your religious decisions is not acceptable, and over the long run people will not accept it.

I will admit that the Supreme Court and I come at First Amendment questions from different directions (although with a shared commitment to the First Amendment's value). They look back at it from the present day, viewing the Constitution as a point of intellectual origin. They understand its context and immediate antecedents, but their historical narrative is about the creation of the Constitution and the past two centuries of its interpretation. My scholarly work forces me to look forward to the Constitution. The writers and books I study are from an earlier period, inhabiting a world in which the Constitution is not yet imaginable. So I have gradually come to see the Constitution in terms of what went before, to see it as a set of codified solutions to particularly ugly historical problems. I don't have to imagine where we would be without Constitution or the Bill of Rights, because I have all too clear a picture of what the world without them was like.

The 16th and 17th centuries were periods of ferocious religious warfare, complete with terrorism, persecution, assassination, torture, inquisitions, and massacres of civilians. I use none of those terms figuratively. Kings were stabbed to death by religious fanatics. Religious leaders were burned alive in the public square. Conspirators plotted to blow up government buildings, to overthrow regimes. Women and children were beaten to death by mobs of their own neighbors. All of this was done by Christians to other Christians, and no denomination's hands were clean. If you look back at this history hoping to find that your own church behaved like the good guys, you will be sorely disappointed. Every existing Christian group played both the villain and the victim, more than once.

The hundred years or so before the Constitutional Convention saw the European religious conflicts modulate somewhat, so that religion became one volatile and dangerous wild card in larger games of international conflict and domestic factionalism. But religious intolerance and aggression did not go away. The settlement of the Thirteen Colonies was partly driven by the need to escape various forms of sectarian prosecution. And while the wars of religion were no longer the main show, they were certainly not gone. The last armed revolt aimed at putting a Roman Catholic on the English throne was in 1745. Benjamin Franklin was 39 years old at the time.

When I hear 21st-century American Christians complain about being persecuted for their beliefs, I am caught between laughter and disgust. Those people have no idea what real persecution is. And the danger to Christians has never been the secular state. The greatest danger to Christians; religious freedom is always other Christians. Secular government was devised to protect Christians from one another, and it is the only thing that has been shown to work.

The First Amendment guarantees free exercise of religion, and prohibits the establishment of any favored religion. The current religious right loves one clause and hates the second. They want freedom of exercise. They hate that the Establishment clause enforces a level playing field, and prevents one religious group's exercise from infringing upon others. Enormous bitterness is directed toward Jefferson's phrase "separation of Church and State," with endless tedious reminders that Jefferson's phrase is not in the First Amendment per se (but only a clear record of, ahem, original intention). But the fact is, you can't have one without the other. Religious freedom is only possible if the officially-secular state enforces a neutral playing field.

If we allow various Christian groups (or hypothetically other groups, although only Christians have that kind of political muscle in the United States) to use political or economic power to push their version of Christianity on others, the live-and-let-live "free exercise" arrangement falls apart. And then push comes to shove.

If certain parties are allowed to exercise their religious rights so vigorously that other people aren't free to make their own religious decisions, then no one can afford religious tolerance anymore. If my neighbor is permitted to impose his religion on me, then my only recourse is to drive everyone whose religion I disagree with out of the neighborhood. If the principal of the public elementary school has religious freedom to proselytize my (hypothetical) children, then I need to discriminate against certain potential principals on religious grounds, eliminating people whose beliefs I don't share. If a Mormon governor is liable to ban coffee shops, then I can no longer vote for a Mormon candidate. If people are using business to push religion, I can no longer do business with people of incompatible religions. That's a very bad outcome, but it's also the inevitable outcome.

If the government does not act as a referee, religious toleration becomes impossible, unworkable. If individuals are allowed to use whatever leverage they happen to have to coerce their neighbors or employees or tenants into conforming with their own religious beliefs, what you create is a competition in which people are forced to keep amassing more and more coercive muscle. The only way to keep your neighbors from jamming their religion down your throat is to organize some coreligionists and jam your religion down the neighbors' throats. That turns into persecute or be persecuted: a swift, ugly, and distinctly ungodly cycle.

What five of the Supreme Court justices have decided in Hobby Lobby is that religious coercion by non-government agents is actually a guaranteed right, and that the government cannot step in to prevent it because that would limit the coercive party's right to free exercise. That is a mind-bogglingly stupid position. And it ultimately leads back to the bad old days of sectarian infighting, where the only way to protect your own religious liberty was to trample everybody else's. I don't want any part of a country like that. I been there before.

cross-posted from Dagblog

Ten Years After Iraq: Top-Down Leadership

The decision to bring "democracy" to Iraq displayed a deep and obvious contempt for democracy itself. George W. Bush considered the decision to begin a war his personal prerogative, and both the political establishment and the media establishment treated it that way. The war was inevitable; the decision had already been made. Not supporting the war was treated as foolish (because futile) and unpatriotic (because patriotism was defined as supporting the President's decisions). James Fallows has a reconstruction of how the Bush Administration moved toward the war without any concern about Congressional approval, and John Judis recalls what it was like to be one of the few journalists asking real questions about the war (h/t Historiann). They're sobering reads. Imposing democracy when you think of democratic process as an inconvenient hindrance was never going to work. And refusing to let the Maximum Leader be gainsaid on the important decisions is a great way to make Maximum Mistakes.

George W. Bush was ceded powers that George Washington himself did not want or believe he should have. The Constitution entrusts the power to declare war to Congress. That isn't simply because few of Washington's successors have Washington's military judgment. It's because it's a mistake to rely on any single man's judgment for something as serious as declaring war. That, the Framers, insisted, should never be an executive decision.

Ten years after the debacle in Iraq War began, our country is still gripped by a cult of executive leadership, the fantasy that a single unchallenged leader makes the best decisions. We glorify CEOs and imagine them as succeeding best when they are sole decision-makers. People talk wistfully about business stars as political candidates, "running" the government the way they are imagined "running" their business. And, as I've blogged about my own industry, there is a cult of CEO-style university governance, reducing the normal checks and balances to rubber stamps. The thinking is that shared, deliberative decision making is just a pain, that things go better when the process is simple and one person is empowered to make all the decisions. It is the Myth of the Efficient Dictator.

But history establishes that this is bunk. Dictators make decisions efficiently. But they also make bad decisions efficiently, and since no one can talk them out of their mistakes, the consequences can be absolute disaster.

You can't find a national leader with better military sense than Napoleon. But empowering Napoleon to make all the decisions ultimately leads to crushing military defeat. Napoleon's very real successes eventually convinced him he was invincible, and that conviction made his destruction inevitable. And since no one could tell the Emperor that invading Russia was a bad idea, everyone had to go along.

We narrate history as the story of brilliant individual leaders. But the actual record shows autocratic regimes doing very poorly, both on their own account and when pitted against societies with a broader distribution of decision making. Democracies are not always right, and free debate does not always produce the best answer; nothing always produces the best answer. But a democracy has the chance to draw upon the intelligence of many, many minds. A dictatorship can never be smarter than the dictator. An FDR with a recalcitrant Congress to keep happy turns out to be a better war leader than a Hitler who cannot be contradicted by his subordinates. In fact, an FDR with a Congress to keep happy might even be a better leader than and FDR without one.

And if you really want to appreciate the glories of Efficient Dictatorship, contemplate the Pyramids. A wonderful achievement by unquestioned kings who commanded armies of slaves and were worshiped as gods. Those pyramids are what is left of their regime, because those projects bankrupted Egypt's Old Kingdom: a huge slice of the GDP went into building every Pharaoh's big geometry-project tomb.

The dirty secret about fascism is that the trains don't actually run on time. You're just not allowed to say that they're late. And by the time that train goes off the rails, it's too late to say anything.

cross-posted from Dagblog

The Romney Paradox (and the Crybaby Bishops)

cross-posted from Dagblog

Mitt Romney used to be Governor of Massachusetts, a commonwealth which has at various times been A) the closest thing to a theocracy America has ever had and B) the poster child for tolerant secular liberalism. Many vocal religious conservatives now insist that the tolerant secular liberalism is an infringement on their religious liberty, and that they can only fully exercise their religion when the state actively endorses and promotes their religious values for them.

Back in the early days of the Massachusetts Bay Colony, of course, the government did actively promote religious values, and the official magistrates were under the indirect supervision of the ministers. (Massachusetts was never such a theocracy that the ministers were directly in control, but the religious leaders could make and break the politicians; they weren't officeholders, but they were political bosses). This is the closest resemblance that any historical fact bears to the Christian Nation narrative popular with today's religious right.

Here's the thing, though: none of the people currently demanding a Christian Nation would have been able to exercise their religion under that system. Virtually without exception, today's right-wing religious activists belong to denominations that were banned in colonial Massachusetts (or would have been, had they been founded in time). Mitt Romney, likewise, would not have been allowed to practice his faith or even to remain in the Massachusetts Bay Colony.

The Massachusetts authorities in the 17th century were given to expelling members of dissident religious groups, such as the Baptists, with an instructive public whipping to hasten them on their way. They executed people for the crime of being Quakers. (Those executions led the English government to tyrannically curtail Massachusetts' religious freedom by forbidding the colonists to hang people for being a different flavor of Protestant Christian.) After the King outlawed religious executions, the God-fearing colonists had to content themselves with whippings, expulsions, and breaking into to private homes to see if anyone was holding a Quaker service inside.

Baptists were outlaws; the Pentecostalists and other later evangelical denominations would surely have been outlawed too. Practicing Catholicism was out of the question; Massachusetts Puritans looked on the Catholic Church as a diabolic organization headed by the Anti-Christ. The Catholics didn't enjoy religious toleration in England, let alone Puritan New England, and as late as the 1830s a mob burned down a convent in greater Boston, because it was full of, you know, nuns.

And as for being a Mormon, if there had been any Mormons yet, forget it. Groups that got driven out of 19th-century Illinois wouldn't have stood a chance in theocratic Boston. If Mitt Romney had shown up in the Massachusetts Bay Colony he would have been immediately thrown in jail, publicly flogged, and (if he caught a few bad breaks) hanged. In fact, every single Republican candidate for the presidential nomination, including Herman Cain and Tim Pawlenty, belongs to a church that would have been criminalized in early colonial Boston.

On the other hand, "Godless" liberal Massachusetts, that terrible threat to religious freedom, has treated Mitt Romney remarkably well. Not only did he get two degrees from Harvard (whose Puritan founders would have never admitted anyone of his faith), and he was actually elected to John Winthrop's old job as Governor! (We're still trying to harness the original colonists spinning in their graves to make green electricity.) He didn't do any of that on a wave of religious support from his fellow Mormons, of whom Massachusetts has approximately none. He did it with the votes of people who don't believe in his religion and have no particular sympathy for it, even some people who view Mormonism as slightly crazy. Those voters disagree with Romney's personal religious choices, but respected his right to make them and did not penalize him for them. Tolerant liberal values gave Mitt Romney the maximum freedom to practice his faith.

The people of Massachusetts did expect Romney to live up to the traditional separation-of-church-and-state deal, in which the elected magistrate represents the interests of the whole commonwealth and not his private religious convictions. If Mormon Governor Romney felt that, as a Latter-Day Saint, he had to close down all of the state's bars, liquor stores, and coffee shops, he wouldn't have been Governor Romney for even a week. In fact, Romney signed the repeal of the old Puritan-inspired Blue Law against selling alcohol on Sundays. He acted on behalf of the voters who had delegated him his authority, rather than using that authority to express his own religious concerns or impose them upon the public.

Was this a limitation of his religious freedom? No. It was a recognition that an elected leader is a representative of the public. If Romney had insisted that his freedom of religion entitled him to use his office to promote his specific values, he would have been barred from that office, because under that system no reasonable voter would ever choose to empower any candidate whose religion differed from their own. If we all agree that the President of the United States will keep his religious practice separate from his public duties, then anyone can be President. But if we considered the President of the United States free to use the powers of office to promote his or her own faith, then no one who doesn't share my particular faith, or yours, would be acceptable to me or to you. We can have, say, a Quaker president (like Nixon), because we know that the president won't simply disband the armed forces to keep with his Quaker faith. If Nixon had undergone a (spectacularly unlikely) crisis of conscience and decided that he had to be true to his religious upbringing he had to abolish the army and navy, he would have been impeached faster than he could resign.

Today's religious right complain about the separation of church and state as a hindrance to their religious freedom. Most recently, some Catholic bishops have complained that they can now longer receive taxpayer funding for adoption-placement services that exclude gay couples from adopting. They are free to run a Catholic adoption agency, and free to turn away gay couples if they choose, on the principle that children are better off orphans than raised by two men or two women. What they view as "government-backed persecution" is that the taxpayer will no longer underwrite this. Apparently, the bishops feel the government is obligated to fund an adoption service that deliberately limits the pool of adoptive parents, rather than giving its money to adoption services that accept more potential parents and therefore place more kids. “In the name of tolerance, we’re not being tolerated,” one of the bishops has told the New York Times, which reports that these bishops fear "an escalating campaign by the government to trample on their religious freedom."

To those bishops, I can only say: get over it. If you feel that it is important to keep orphans from being adopted by gay couples, and want to run a heterosexual-only adoption service, you can do it with donations from like-minded donors. You're not being "persecuted" because the government won't fund it for you. Taxpayers don't want their money spent to keep orphans from being adopted. Keeping orphans from being adopted because your religion currently teaches certain ideas about gayness is also not a public benefit. And as far as intolerance for the Catholic faith goes: baby, if this feels like persecution to you, you have clearly arrived. Nobody's set fire to a nunnery in this town for a long, long time.

Today's religious right defines "freedom of religion" as the freedom to use public resources, and public authority, in order to further the goals of their own specific religion. But almost without exception, the groups who feel "persecuted" by the government's religious neutrality are the groups who would never have been tolerated in the United States under the kind of arrangement they're currently agitating for. The Catholics, evangelicals, and Latter-Day Saints, for example are all traditionally disfavored religious groups who have only managed to thrive in this country because the Establishment Clause defends their religious freedom through tolerant neutrality. Their attacks on "tolerance" and "liberalism" as a kind of persecution is an attack on the very things that have shielded them from persecution in this country. It's like watching people trying to tear the roof off their own house. They might succeed in leading this country into a new period of deep religious intolerance. What they won't succeed in doing is escaping that intolerance themselves. It wouldn't just be the people that the religious right dislikes who would become targets if they ever got their way. And God forbid that they ever do.

What Tools Does Obama Have Left?

cross-posted from Dagblog, with discussion thread here.

I've thrown away the woe-unto-ye-Barack-Obama post that I started after the debt ceiling debacle, because lots of other people have written it, and truth be told I've written it already myself. Let's take for granted that Obama needs to put up more of a fight against the Republicans, and that compromise and sweet reason aren't working. Here's the question: what to do now?

Let's skip "use the bully pulpit!" and "talk to the American people!" We've all heard those, and to be frank I don't see the weekly radio address turning this mess around. I'm interested in the question of what he can actually get done, rather than what message he should send. Let's also rule out "be tougher" and "don't compromise" as too vague; what would "being tough" actually entail? And let's save the argument about how he'll never do the right thing, because he doesn't want to for the next thousand and six discussions about that.

Let's imagine that the ghosts of Lincoln, Kennedy and FDR appear to Barack Obama tonight, tell him it's time to save the Republic, and put a ramrod up his spine. He wakes up tomorrow determined to stop those conservative maniacs and take the country back, just the way people with blogs are always saying he should. My question is this:

When he wakes up tomorrow, all fiery and determined, what specific steps are available to him? What can he do?

He's not going to be able to get anything through the Legislature, with an angry opposition party controlling the House and a bunch of "centrist" Democratic Senators focused on appeasement. No matter how much he wants to, he can't get laws passed, because it turns out that the executive branch is not in charge of legislating.

And he's still going to have the problem of his appointees being locked up in confirmation limbo, with a huge pile of judicial and sub-cabinet-level appointees stuck in the Senate after two and a half years. He can't make that problem go away just by wishing.

So what can the President of the United States do in this ugly position with the powers that the Constitution grants him: the power to make recess appointments, the oversight of the justice department, supervision of the federal bureaucracy (including all of the regulatory agencies), and the power to veto legislation? What can Obama do with the powers specifically invested in him as President, rather than in his unofficial Presidential roles as party leader and bully-pulpiteer?

Republicans Against the Right to Vote

cross-posted at Dagblog

The first time I went to the polls on Election Day I was probably five, tagging along beside my mother. It was a brilliant November day in New Hampshire, and the polls were in a spare room of the town hall, the same room where I would go in later years for Cub Scout meetings and later still walk through on the way to help stock our town's tiny food assistance pantry. There was a larger room upstairs, where the annual Town Meeting was held and where I would someday go for Halloween parties and the soap box derby. The thing I remember most clearly was walking out of Town Hall after Mom was through voting. About ten feet in front of us, an exit poller asked an older man, a genuinely flinty-looking old Yankee, who he'd voted for. He declined to say, with a curt-and-not-unfriendly "no," and kept walking. I asked my mother why the man hadn't answered the question.

"You don't have to tell anyone how you voted," she said. As a five-year-old, I was awestruck by the idea of not having to do anything; that no one could make you was basically the most impressive thing I ever heard. I didn't know the words "inalienable" or "citizen," but the lesson got across and it stuck with me. I can still see the set of that old man's shoulders and his proud, confident stride in the autumn sunlight. It's my picture of American citizenship.

I pretty much fell in love with voting, right then. Haven't gotten over it. Never will.

Six years ago I moved to Ohio, four months before a national election: clearly long enough to establish residency to vote, but more importantly clearly too long to vote in my previous state of residence. The law was very clear about where I should be voting. But there was a problem: the Ohio Secretary of State was actively trying to discourage voter registration.

You read that right. The Secretary of State, the person in charge of state elections, wanted to keep new voters from registering, and actively tried to lay the groundwork to have voter registrations challenged and thrown out. Why? Because he was a Republican, and he thought that the Democrats' voter-registration drive would hurt his party. My favorite moment was when he declared that new voters' registration cards would be summarily thrown out unless they were on 80-pound paper stock. (For comparison, bond paper for legal documents is typically 20 or 24 pounds.) This gambit ultimately failed when it turned out that the Ohio Secretary of State's office did not actually have any paper that heavy itself. Then the Republican Party won the right to put challengers, not observers but challengers, inside polling places on Election Day, trying to get votes thrown out.

As a newly registered voter, I took that to heart. For the first time in my life, I went to my legal polling place feeling nervous about my rights as an American citizen. It was the Ohio Republican Party that made me worry about the exercise of my rights.

That was the first election that I worked as a Democratic volunteer.

The national Republican Party and the Tea Party movement both remain deeply committed to preventing other Americans from voting. They routinely use bogus accusations of voter fraud, dirty tricks, and even illegal polling-place electioneering in order to deprive fellow Americans of their most basic rights as Americans. I have met a voter who had a Republican challenger try to throw out his vote because he signed a "Junior" at the end of his name and the printed list had left out the "junior." That's the spirit of democracy right there. Two years ago, someone went through an African-American neighborhood in Cleveland and put misleading stickers on door hangers: the door hangers reminded people to vote; the stickers were added to deliberately give those voters the wrong address for the polls, hoping that those Americans would be disenfranchised. I saw those stickers myself.

There is no excuse for this. And this is not conservatism. This not American. It's an admission that the Republicans know their policies are bad, and want to prevent people from having their say. But even if the Republicans had the soundest policy ideas in the world, it would be wrong. They have no right to take away anyone else's vote.

Don't tell me about their traditional values. I grew up in a little New England town that still had a town meeting: everyone in town showed up at the town hall and voted on the budget, line by line. I know what old-fashioned American democracy looks like. This is not it. I disagree with the Republicans on policy because I'm a progressive. But it's the conservative part of me, the part that loves what is old and best in America, that actually hates them.

If the Tea Party lends itself to voter suppression and intimidation, it has no right even to speak about the Founders or the Sons of Liberty. Voter suppression is an attack on the Constitution. It is an affront to the Declaration of Independence. And anyone who obstructs another American's rights as a citizen has broken faith with America. This is not an expression of "small town values." It not traditional. It is not conservative. It is an expression of something new, and vicious. It is an expression of hatred for individual rights and personal liberty.

There are issues that require compromise, when compromise is reasonable. The right to vote is not one of them. It never will be.

The Second Amendment Right to Kill You

cross-posted at Dagblog

Someone with an assault rifle shot up the University of Texas today. And then he killed himself. I'm pretty nauseated just writing that first sentence, considering UT's history. No one is dead but the guman, who shot himself.

Ten days ago someone else walked into Harvard Yard with a handgun, stood on the chapel steps, and killed himself in full view of a tour group. It was Yom Kippur. He left a nineteen-hundred-page suicide note, detailing his inability to get past sophomore philosophy questions.

In related sophomore-logic problems, one commenter on UT-Austin's emergency alert page used this to argue for more guns on campus.

Andrew Kelling said on September 28, 2010

This is exactly why we need to allow concealed carry on campus, so that if this shooter had decided to open fire, he would've been stopped long before he would have done much damage

That's one deep dedication to the counter-factual there, Andrew. Although the shooter harmed no one but himself under the current gun laws, it proves a need for even looser gun laws which "would've" hypothetically prevented him from doing any harm. Let's imagine things went even worse than they did, but then imagine that something else magically solved the problem. When your guarantee of public safety rests on not just one but a series of contingent events working out in your favor, I'd say you've just stepped down from the planning commitee. But Andrew's just working with ideas that are already out there, ideas which are so committed to everyone's freedom to have an AK-47 that no real world evidence can possibly interfere.

Apparently, we are committed to the Second Amendment, and committed to it everywhere, even in places dedicated to strengthening the mind and spirit. Thanks to the Founders' commitment to intellectual liberty and philosophical ideals, there is nowhere in this country where the life of the mind cannot be cut short with a small piece of lead.

Both Harvard and Texas are beautiful places. They've both been kind to me in what time I've spent there. They both have people I like and want to see safe.

Both of those stories are going to be spun as relatively happy endings, because neither of the unbalanced gunmen murdered anyone but himself. Pardon me if I don't see suicide as a happy ending. And I'm tired of talking about preventing murderers from getting guns. It is a terrible thing to sell a suicide the bullets.

I wish that 1,900 page suicide note had a sequel. I don't mean that as a joke. I think that every suicide note should have a sequel. I think the people who write them could eventually come through the other side of their suicidal depressions and rejoin the living world. I think that would be better for the potential suicides and better for the world.

It's easy to die. It always has been. But there is no point in making our fragile lives more fragile, making them easier to throw away in one dark moment. Death has always been stupid. But I'm sick of living in a country that makes dying so easy.

McChrystal's Failures

cross-posted at Dagblog

If you tune out the upcoming storm of spin, distraction and hype, what just happened is very simple: a general whose strategy has failed has tried to tie the Commander-in-Chief's hands by running to the press. McChrystal's goal was to create a political situation inside the Beltway in which the President would face problematic amounts of criticism if he changed either the unsuccessful strategy or the unsuccessful commander.

It's insubordination in an attempt to conceal failure, the full McClellan. It is a threat both to our Constitutional traditions and to the proper military defense of our nation.

When President Obama took office, he made a decision to commit further resources to gaining some credible form of victory in Afghanistan. It would have been easier in some ways for him to plan a simple phased withdrawal from both Afghanistan and Iraq. Most of Obama's political base was against any extension of the war. At that time, McChrystal promised that his own strategy, backed by a certain number of additional troops, would achieve certain results in a certain time frame. Based on those promises, Obama approved McChrystal's strategy instead of others (including strategies based on troop drawdowns), committed more troops, and gave McChrystal the Afghanistan command.

McChrystal has not delivered the promised results. The recent American offensives have not achieved their goals, and it's increasingly apparent that McChrystal's plan isn't going to work. So, having let the President down, McChrystal has attempted to cover his backside by letting the President down. He has permitted his aides to commit insubordination by slagging the civilian authorities around Obama to the press, and to relay McChrystal's own personal contempt for the Commander-in-Chief. Of course, McChrystal delegated aides to do this, not being man enough to take responsibility for his own insubordination.

Some right-wingers are going to take up McChrystal's cause and depict Obama as a soft, decadent civilian and McChrystal as a tough, upright, honorable soldier. But nothing about McChrystal's behavior is remotely tough, honorable or upright. He is treacherously backstabbing the leader who promoted him. McChrystal's ability to work back-biting and ass-covering into the same motion just shows how very supple and flexible his character is, and how little he's burdened by any spine. McChrystal is willfully violating the military's code of ethics and conduct. He is trying to duck his own command responsibilities by whining and slinging mud. And he's sent his deputies to do it for him. I'm having a hard time seeing any soldierly virtue here.

But more importantly, there's a question of our Constitution at sake. As I've pointed out before, civilian authority over the military is one of the central principles for which the American Revolution was fought. The Massachusetts Minutemen were fighting to end a military governorship of their colony. George Washington went to enormous pains to make clear that the Presidency was a civilian and not a military office, and that every military officer served the civil political authority, the power delegated by the people. The Constitution designates the President as Commander-in-Chief of the armed forces for exactly this reason.

Over the last few decades, parts of the right wing in this country have tried to use the phrase "Commander-in-Chief" to mean exactly the opposite of what it means, to imply that the President is somehow a military officer and thus answerable to the military's norms or the military's approval. This is completely backwards. The intent of the Constitution and its Framers is that the military exists to serve the people, not the other way around, and so the military must be absolutely subordinate to the country's elected leader. George Washington wrote that chain of command. It's not for Stanley McChrystal to go outside it.

Civilian authority over the military is necessary for any real democracy; you can't have a democracy if a bunch of people with guns refuse to honor the elected leaders. But it's also a smart principle for national defense. A military that isn't accountable to any higher power is a military that allows itself to stick by strategies after they stop working. Giving the generals and admirals freedom to make all the decisions can actually make the military less effective and the nation less safe. Someone has to have a veto when a field commander is too stubborn or proud to admit that things aren't working, or when the military brass refuses to accept changing times. Sometimes you need a politician like FDR to tell the Army that cavalry has become obsolete. Sometimes you need a civilian like Lincoln to replace a West Point thoroughbred like McClellan. What gave Lincoln the right? The Constitution. What made some Illinois lawyer think that he understood strategy and tactics better than General George McClellan? The facts on the battlefield. That McClellan went whining to the newspapers and the opposition party only confirms the man's unfitness.

The same old truths are true today. If McChrystal can't win the war in Afghanistan, he shouldn't try fighting one in the media. And if we start letting the paper battles of the news cycle decide how we fight our actual wars, our country will lose over and over again.