Wednesday, December 31, 2003
Bill Safire has an office pool for predictions for the coming year. My bets and his:
1. Next tyranny to feel the force of U.S. liberation: (a) North Korea; (b) Iran; (c) Syria; (d) Venezuela. SAFIRE PICK: NONE; GIDEON'S BLOG PICK: NONE
2. Iraq will (a) split up, like all Gaul, into three parts; (b) defeat the insurgents and emerge a rudimentary democracy; (c) succumb to a Sunni coup. SAFIRE PICK: (B); GIDEON'S BLOG PICK: (C) - though I will claim a moral victory if it's not a coup but some gentler assumption of hegemony
3. First to fall from power will be (a) Little China's Chen Shui-bian, whose two-China campaign oratory on Taiwan is asking for trouble with Big China; (b) Pakistan's Musharraf, double-crossed by his Islamist military; (c) the U.S.'s Bush, after abandoning fiscal restraint; (d) Russia's Putin as his electorate miraculously awakens; (e) Cuba's Castro. SAFIRE PICK: (E); GIDEON'S BLOG PICK: (A) - Castro is never going to die
4. Long-overdue exoneration will come to embattled media megastar (a) Martha Stewart; (b) Michael Jackson; (c) Kenneth Lay; (d) Pete Rose. SAFIRE PICK: (A); GIDEON'S BLOG PICK: (A)
5. The economy will (a) see a booming 13,000 Dow and 3,000 Nasdaq; (b) grow more slowly as a weakening dollar drives up interest rates; (c) be rocked by the abuse of manipulative derivatives in hedge funds. SAFIRE PICK: ALL; GIDEON'S BLOG PICK: (B). No way we see a 3000 NASDAQ, and I work with hedge funds and derivatives, and I assure you, the sky is not going to fall because of them. Interest rates are going up, up, up, or the dollar is going down, down, down, and either one is bearish, though the former not catastrophically so. It'll look like 1994, I bet. Bears think it'll look like 1973.
6. The fiction best seller will be (a) "Retribution" by Jilliane Hoffman; (b) "Confessions of a Bigamist" by Kate Lehrer; (c) "Flying Crows" by Jim Lehrer (presumably one of Kate's husbands). SAFIRE PICK: (B); GIDEON'S BLOG PICK: ??? Who are these people?
7. The nonfiction sleeper will be (a) "Inside — A Public and Private Life" by Joseph Califano Jr.; (b) Carl Zimmer's brainy "Soul Made Flesh"; (c) Michael Korda's biography of U. S. Grant; (d) Gertrude Himmelfarb's "The Roads to Modernity." SAFIRE PICK: (A); GIDEON'S BLOG PICK: (A), by process of elimination.
8. The scientific advance of the year will be (a) age retardation enhanced by memory protection; (b) a single pill combining erectile dysfunction treatment with a fast-acting aphrodisiac; (c) neuroscientists' creation of a unified field theory of the brain; (d) the awakening of geneticists to the liberating study of bioethics. SAFIRE PICK: (D); GIDEON'S BLOG PICK: NONE. Wish I had Safire's confidence here.
9. Best-Picture Oscar: (a) Anthony Minghella's "Cold Mountain"; (b) Edward Zwick's "The Last Samurai"; (c) Clint Eastwood's "Mystic River"; (d) Sofia Coppola's "Lost in Translation"; (e) Gary Ross's "Seabiscuit." (This is the category I'm good at.) SAFIRE PICK: (C); GIDEON'S BLOG PICK: (A). Not that I've seen it, but come on. Minghella? Kidman? Epic? Civil War? Better than Gone With the Wind?
10. Bush's domestic initiative will be (a) Social Security personal accounts; (b) community college scholarships; (c) a moon colony; (d) snowmobile restrictions in Florida parks. SAFIRE PICK: (B); GIDEON'S BLOG PICK: (B). Maybe - maybe - we get (A) in 2005.
11. The U.S. Supreme Court (a) will decide that the rights of alien detainees in Guantánamo have not been violated; (b) will deadlock, 4-4 (Scalia recused), in the Pledge of Allegiance case, thereby temporarily affirming the Ninth Circuit decision declaring "under God" in the pledge unconstitutional; (c) in Tennessee v. Lane will uphold a state's immunity to lawsuits, limiting federal power in the Americans with Disabilities Act. SAFIRE'S PICK: ALL; GIDEON'S BLOG PICK: A and C but not B. Kennedy's not that stupid.
12. Howard Dean will (a) sweep Iowa and New Hampshire and breeze to a boring nomination; (b) lose to Gephardt in Iowa and do worse than expected in N.H., leading to a long race; (c) transform himself into the centrist, affable "new Dean"; (d) angrily bolt and form a third party if the nomination is denied him. SAFIRE PICK: (B); GIDEON'S BLOG PICK: NONE. Dean wins Iowa and New Hampshire and then hits a Clark-shaped speed bump in South Carolina.
13. The "October surprise" affecting our election will be (a) the capture of bin Laden in Yemen; (b) the daring escape of Saddam; (c) a major terror attack in the U.S.; (d) finding a buried bag of anthrax in Tikrit. SAFIRE PICK: (C); GIDEON'S BLOG PICK: it ain't gonna be A, B or D, so let's just pray for NONE, shall we?
14. Debating Cheney on TV will be the Democratic running mate (a) Wes Clark; (b) Bob Graham; (c) Bill Richardson; (d) Dianne Feinstein; (e) John Edwards; (f) Carl Levin. SAFIRE PICK: (B); GIDEON'S BLOG PICK: (C). You gotta be kidding, Bill. What, they want to make Cheney look manic by comparison?
15. The next secretary of state will be (a) Richard Holbrooke; (b) Paul Bremer; (c) Donald Rumsfeld; (d) John Kerry. SAFIRE PICK: (B); GIDEON'S BLOG PICK: NONE. Powell will retire, but I don't think Bremer's next in line. Not sure who is. Could be Armitage, I guess.
16. Israel, staunchly supported during the U.S. election year, will (a) build its security barrier including the Ariel salient and the Jordan Valley; (b) undermine Arafat by negotiating territory with Syria after Assad quiets Hezbollah in occupied Lebanon; (c) close down illegal outposts before "redeploying" settlers out of Gaza. SAFIRE PICK: ALL; GIDEON'S BLOG PICK: A and C, but probably not B. I can't believe Syria would do something helpful for a change. But I do believe Israel will build the fence, that it'll include Ariel, and that Israel will be out of Gaza, all within the year. Happy Unilateral Day everybody!
Tuesday, December 30, 2003
More on the Court:
Conservative critics of the Court too rarely acknowledge that the problem they identify is essentially structural. It goes back to the establishment of judicial review in Marbury v. Madison, when the judiciary seized a power not delineated in the Constitution proper. No modern Court decision - including Roe - was as politically intrusive, unreasonable or damaging as Dred Scott. And our out-of-control equal-protection and privacy jurisprudence are no more out of control and no more untethered from the text of the Constitution than was the "substantive due-process" jurisprudence of the 19th and early 20th centuries. For every provision that the Court extends well beyond its intended significance - e.g., the equal-protection clause of the 14th Amendment - there is a provision that the Court has essentially drained of meaning altogether - e.g., the privileges and immunities clause of the 14th Amendment. By its nature, the Court is vulnerable to the temptation to usurp the prerogatives of the political branches. Whether it is tempted to do so in the name of the right to property (Dred Scott) or the right to contract (Lochner) or the right to privacy (Griswold) is a function of prevailing ideological fashion; the constant is the temptation, inherent in the Court's structure.
Historically, the remedy when the Court engages in this usurpation has occasionally been extreme. Thus: Dred Scott was reversed only by the Civil War and the post-Civil War amendments. The Lochner era was only decisively ended by FDR's threat to pack the Court. The Court can attempt to rule without the consent of the people, but if the people decisively refuse their consent, the Court must, and does, retreat.
Why, then, has there been no catalyst for a retreat to date?
I would venture that one insufficiently acknowledged reason is that conservative jurisprudence and political theory has a skeleton in its closet that it is reluctant to bring fully to light, and that this reluctance has had the effect of emasculating a truly conservative perspective on the Court.
The skeleton in the closet, it should come as no surprise to learn, is Brown v. Board of Education. It is a commonplace in conservative circles to say that Brown was correctly decided on the wrong grounds. Conservatives thereby assure themselves that their philosophy is pristine; that no manifest injustice like segregation could survive before a conservative Court if that Court was truly fair. But this is a glib evasion, because there is no way I know to decide Brown for the plaintiffs without traducing professed conservative juridical principles.
Robert Bork lays out one strong case against the imperial judiciary in his 1991 book, The Tempting of America. Bork acknowledges that Brown was a pivotal moment for the history of jurisprudence; that the result in Brown cannot be gainsayed without (correctly) discrediting the gainsayer; and that Brown was a fairly incoherent decision and certainly applied lawlessly (inasmuch as the decision rested on psychological studies related to the impact of segregation in primary schools but was applied to strike down racial segregation in entirely unrelated areas). He then proceeds to argue the Brown can be "reconstructed" on originalist grounds, as follows:
Yes, he says, the ratifiers of the 14th Amendment thought that segregation was perfectly consistent with the equal-protection clause. The legislative record leaves no real doubt about that. However, the ratifiers of the 14th Amendment certainly didn't think the purpose of that amendment was to secure a legal place for segregation; rather, the purpose was to ensure equality under the law for people of different races, and they presumed that this goal was compatible with segregation. In practice, segregation produced consistent inequality; it was not, as it turned out, possible to be both separate and equal. And, therefore, the ratifiers were wrong as to a matter of fact, and the Supreme Court would have been fully originalist in striking down Plessy, saying that while in 1896 people might reasonably have believed that separate but equal was a reasonable doctrine, it turned out not to be, and hence is unconstitutional. The alternative, Bork argues, would have been endless litigation about each instance of segregation to determine if services and facilities were truly equal, an unreasonable burden to place on the Court when a clear principle was called for.
This sounds persuasive on first reading, but it collapses on examination.
Let me make an analogy. The Constitution assumes in several places the institution of capital punishment. Nonetheless, the 8th Amendment prohibits cruel and unusual punishments. Does that mean that capital punishment was repealed by the 8th Amendment? The legislative record would clearly indicate that it was not. But perhaps the ratifiers of the 8th Amendment merely presumed that capital punishment was not cruel or unusual? Perhaps they were wrong about this presumption - perhaps we now know, with the benefit of hindsight and greater enlightenment, that capital punishment is necessary cruel, or that it is unusual, either in the sense of being irregularly applied or generally abhorred? Does not Bork's reasoning in his "reconstructed" Brown provide equally strong reasoning for the Court to eliminate capital punishment?
Let's take another tack. Justice Thomas has criticized the Court for presuming that, wherever there are racial disparities in representation (e.g., in schools) there is necessarily invidious segregation at work. A disproportionate number of black pupils should not, in and of itself, be sufficient evidence to prove a school sub-standard, unless the Court wants to presume that black students are necessarily inferior, or that blacks would never voluntarily choose to self-segregate. This is part of Justice Thomas' argument against the Court's history of school busing and other cases where the Court ran roughshod over our most basic liberties in the name of desegregation.
Bork is equally opposed to the history of busing jurisprudence. But without the very presumption that Justice Thomas attacks, Bork's "reconstructed" Brown falls to pieces. It would have been a hollow victory indeed for the Court to ban explicit racial segregation but permit it by surreptitious means, just as it was a hollow victory to provide constitutional guarantees of voting rights while allowing literacy tests, poll taxes and bald intimidation to evicerate those guarantees. Bork argues that segregation is necessarily incompatible with equal protection because separate cannot be equal in practice. I don't see how you avoid going from that principle to the one that Justice Thomas objects to.
One final tack: it is quite clear from the legislative record that the equal-protection clause of the 14th Amendment was something of an afterthought, with none of the sweeping significance that Brown endowed it with. Moreover, the text requires "equal protection of the laws." It is something of a stretch to interpret this as "equal provision of government services" which is what Brown was about. Further still, the text of that clause, and of the 14th Amendment generally, makes no reference to race. If it is a violation of the equal protection clause to provide unequal education to blacks and whites, it is presumably also a violation of the clause to provide unequal education to uptown and downtown residents, provided that residents are obliged to attend their local district schools. Would Bork really like to argue that universal school choice - which would at least ensure equal protection of the laws - is mandated by the 14th Amendment?
The other favored tack to take on Brown, taken by many anti-affirmative-action conservaties, is to say that the first Justice Harlan was correct in his Plessy dissent, and that the Constitution is color-blind. But this is manifestly false to the legislative record, and can in no sense be taken as originalist. The ratifiers of the 14th Amendment not only contemplated segregation but they contemplated affirmative action; neither was understood to violate the proposed amendment.
I agree with most of the legal profession that Brown, while an excellent result, was a poorly-written opinion. But I disagree with conservative critics like Bork that the opinion could have been founded in originalist principles. It could not. This is the skeleton in the closet: that the principles championed by the most high-minded of judicial conservatives could not plausibly and honestly have struck down racial segregation.
Brown happened because of a massive, sixty-year failure of the national government to address an affront to justice (segregation), just as the Civil War, its consequent amendments, and their radical redefinition of federalism, happened because of a massive, eighty-year failure of the national government to address an affront to justice (slavery). The legislative branch had its authority usurped because it failed to do a job it knew it had to do. The Court did not seize the sword from Congress's hands, but picked it up where it had been dropped.
We should be honest about this. Our Constitution is not perfect; it did not, most glaringly, resolve the problem of slavery, but merely kicked that can down the road a ways in the hopes that future generations would prove wiser, braver, or more dedicated to union. They were none, and we know the consequences.
We should be honest because there is a moral here. Those who cherish our free institutions should be the most zealous in advocating their just reform. When Jefferson and Madison, Clay and Webster, failed to reckon honestly with slavery, they did not thereby preserve the Union; they crippled it. When generations of national Democratic and Republic leaders failed to reckon honestly with segregation, they did not thereby preserve the Constitution; they undermined it. (An ocean away, when Britain's Liberals failed to reckon honestly with the demands for Home Rule, they did not thereby preserve the Empire; they sowed the seeds of its destruction.) It is not enough, it is never enough, for conservatives to point out how this or that proposed remedy for an injustice would break with tradition, or cause instability. It is not enough, it is never enough, for conservatives to stand athwart history yelling: "Stop!" If the injustice is looked in the face, and is manifest, it must be answered. If it is not answered the right way, it may well be answered the wrong way.
I'm informed by readers that there's a long tradition of Americans serving in foreign militaries and foreigners serving in the U.S. military, so I guess my suggestion that anyone so serving should suffer alienation (part of my fourth suggested amendment below) is ill-advised. It's sufficient for my point to say that anyone voting in foreign elections or serving as an officer of a foreign government shall be deemed to have alienated himself. Indeed, it's probably sufficient to limit alienation to those who serve as officers of a foreign government, or take up arms against our own, and nothing more. The point is mostly symbolic; it'll be hard to enforce alienation anyhow. But dual citizenship, as FDR pointed out, is an absurdity, and there should be some recognition in our fundamental law that it is an absurdity.
Monday, December 29, 2003
It's pretty slow at work this week, so I'm going to take the opportunity to put down on pixels some thoughts about our system of government, on what principles it operates, and how it might be reformed in a manner in accord with those principles. I was originally going to title this piece "Four Constitutional Amendments To Pass Before The Federal Marriage Amendment" and perhaps I will if I do anything with this.
The enthusiasm in some precincts of the American right for an amendment to prevent the redefinition of marriage is, I think, more a cry of anguish than a reasoned response to a real problem. With only tepid support around the country, the amendment has essentially no chance of passing. The various versions of the amendment proposed do either too much (prohibiting any public recognition of same-sex relationships), too little (providing only a defense of the word "marriage" without any explanatory context), or both (banning any public recognition of homosexual relations while explicitly permitting a wide array of "marriage light" alternatives so long as they are not predicated on an implied sexual union). In all cases, they write into the Constitution matters that are emphatically not constitutional concerns. The only reason any amendment is being supported is that many religious conservatives fear that the Court will soon impose this redefinition on the country whether the country wants it or not, and they see no other way of stopping the Court but writing into the Constitution: STOP! But they have not addressed the structural problem of a lawless Court; they have only revealed the depth of their anger about this one issue. And they would put beyond the reach of democratic politics an issue that is entirely properly the subject of democratic politics. Marriage is a pre-political institution, but whether and how our political organs choose to recognize and regulate it is a political question, not a constitutional one. And so, because it will fail and because it would be a bad idea if it succeeded, I do not support the FMA.
But the problem that supporters of the amendment have identified is real. We are to a great extent at the mercy of a Court that, while it has greatly moderated its enthusiasm for depriving citizens of their individual rights since the days of forced busing and the like, has ceded none of the authority that it claimed in those days to usurp our collective sovereignty. Indeed, this Court is as emphatic as any of its forebears in asserting that its word is law. And that is not the case. That is the problem to be addressed, or part of it. And to address it, the problem must be understood.
The problem is one of the legitimate source of authority, and so to understand the problem we have to understand how authority works in our political system. Our political system is sometimes called a Republic, sometimes a Democracy, but neither term is entirely correct. A Republic, classically, means an entity governed collectively by those who form it, historically meaning the notable families of a region. Venice was a Republic, but it was in no sense a Democracy; only the nobles voted in the council, and elected the various officers to whom authority was delegated. In the Roman Republic, the Senate was similarly constituted; the tribunes of the people, from which the office of Emperor evolved, were a democratic check on the republican Senate. The Polish monarchy was similarly republican in character, with the king elected by the noble families; its constitution was characterized by executive weakness, as the various nobles were more concerned with maintaining their own freedom of action than in collective strength. But whether a Republic's central institutions are strong or weak, the essence of the system - a compact among strong parties for collective action - does not, in truth, characterize our political system.
Our system is, indeed, democratic, just as it is republican, but Democracy doesn't ideally describe it either. Democracy means rule by the people. In Athens this meant voting by a majority of citizens on questions of the day. California is to some extent a Democracy, governed as it increasingly is by the electorate at large through the initiative process, but this is the exception rather than the rule in our political system. Moreover, it is plain from reading the Federalist and other documents from the Founding that the notion that our government was intended to express the people's will - which I would argue is the essential premise of Democracy - was a decidedly minority view (albeit one held by very significant figures, including Thomas Jefferson).
Properly, I think, the core premise of our system of government is not a kind of social compact among propertied families (the premise of a Republic) nor an expression of the popular will (the premise of a Democracy). Rather, the premise of our system is popular sovereignty: the reign of the People.
To understand what this means, think of a traditional monarchy. The monarch does not necessary rule. He may do so, of course, but in most cases he does not; even in traditional monarchies where the monarch has the clear right to rule, he usually delegates that task to others more expert in taxation, diplomacy, etc. And when he delegates this power, and vests his power in a chancellor or prime minister or grand vizier, the monarch does not, primarily, seek an individual who best divines his will, but rather one who best divines his interests. Of course, should the monarch express his will on one or another matter, his chancellor is bound to obey. But this is the exception, not the rule, in their dealings. Indeed, if the monarch found it necessary to continually assert his will, it would suggest that he employed the wrong chancellor.
So with our system. Our system is the creation of the sovereign People, an abstract collective, not the compact of individuals. This much is clearly implied by the preamble to the Constitution and was settled by force of arms from 1861 to 1865. (As a historical matter, the People of the United States may have come into being as the result of a compact, but ontologically the People as a collective is prior to the state, even if the historical chronology went the other way.) We are "one nation, under God, indivisible," or so we affirm (the Ninth Circuit's objections notwithstanding). But our government is not, in the course of ordinary politics, the vehicle for expressing the popular will. Rather, it is the vehicle for safeguarding and advancing the people's interests.
The democratic aspects of our system, in this view, serve primarily a corrective function rather than an expressive one. They enable the sovereign people to remove a representative in whom they vested power when, in the judgment of the people, that representative has failed to serve the interests of the people faithfully and diligently.
Now, human nature being what it is, it is far from unheard of for the officer of the sovereign to become corrupt, to cease to perform his functions faithfully. This can happen even if the officer is not unduly influenced by some foreign interest; indeed, the most likely corruption is that the officer will engage in self-dealing, either for personal enrichment or, even more dangerously, to arrogate to himself the prerogatives and powers of the sovereign. The chancellor may identify his interests rather than the monarch's as his object, and steal from the state; he may do the same more "idealistically" and decide that the preservation and enhancement of his own personal power over the resources of the state is the proper aim of his administration.
This is what has happened, in various ways, to our system of government. From the right, the complaints are voiced most loudly about the Court, which has decided that it, in its enlightened wisdom, is the most fit arbiter of certain categories of political questions. It has been successful in this usurpation of the role of the legislature, however, because the usurpation serves the legislature's interests - the legislature, after all, is thereby freed from making decisions, and the fewer decisions the legislature has to make for the same pay, the easier the lives of the legislators and the less likely they are to be to be voted out of office. To restore to our system a recognition that the people are sovereign, then, it is necessary not for the people to opine on specific political issues directly (which is what it does when the Constitution is amended; if the FMA passed, the People of the United States would be expressing their sovereign will about the meaning of the word, "marriage," which is a strange thing indeed for the People to express their will about). Rather, it is necessary for the sovereign people to remind their representatives in whose name and interests and at whose pleasure they serve. What is needed is an injection of accountability.
To that end, I have compiled a list of four proposed amendments to the Constitution designed to restore that accountability. None of these deal with any hot-button social issue; none is obviously a left- or right-wing measure or predetermines any policy outcome; none creates new rights nor abolishes old ones. The objective is structural reform: to make the Constitution work better according to its original principles. Moreover, while these amendments are mutually-reinforcing in their effectiveness, they are independently good ideas, so it's not like passing one while failing to pass another would result in a worse situation than the one obtaining currently.
[Note: I have not attempted to write these amendments in legally proper language. I'm trying to communicate the intent in plain language to the best of my ability.]
Here's the list:
ONE: AN AMENDMENT TO ABOLISH GERRYMANDERING. Congressional Districts for each of the states shall be drawn on a decennial basis following reapportionment of Congressional seats among the states by independent commissions chartered by the legislatures of the several states. To the greatest extent practicable, each Congressional District will be constructed to contain an equal number of legal residents. Subject to that preeminent condition, each Congressional District will be constructed to follow intra-state political boundaries to the greatest extent practicable. Subject to that subsidiary condition, each Congressional District will be constructed to follow natural boundaries and will be constructed in a compact form to the greatest extent practicable.
Why abolish gerrymandering? Because the body most directly accountable to the people, and which should therefore be most acutely responsive to their interests, is the House of Representatives. But gerrymandering eliminates accountability, providing effective life tenure for the majority of Representatives, encouraging the corruption of their office and encouraging other branches to usurp their authority. The moral authority of Congress carries little weight when as few as two dozen seats are actually contested in a typical election. Restoring accountability starts here. And the only way to restore accountability is to take redistricting out of the hands of the state legislatures and put it in the hands of an independent commission. There is no reason to think that such a commission would necessarily be corrupted; with contemporary computer technology, redistricting is a technical exercise, and the only question is whether one optimizes to achieve sensible-bordered and compact districts or crazy-quilt gerrymanders that minimize political competition. There is no basis in the Constitution currently to force states to adopt such a commission, and there are strong political disincentives not to do so wherever there is a partisan advantage to gerrymandering, which is the case in most states. Moreover, there's a first-mover disadvantage to adopting such a proposal in any one state where a gerrymander creates an artificial dominance for one party. Therefore, solving this problem and restoring accountability to the Congress requires a constitutional amendment.
There are a handful of subsidiary benefits to this amendment. First, it makes clear in passing that only legal residents (citizens and aliens legally residing in the country) should be counted for the purpose of apportioning districts equally. This removes an incentive on the part of certain localities to encourage illegal immigration for the sake of increased representation. Second, it writes into the Constitution the one-man-one-vote rule that is currently absent from the document, and was invented by the Court; it's a good rule, but it isn't there and so writing it down would be a good thing. Third, would eliminate the currently intractable disputes over racial gerrymandering. Currently, the Court has found that gerrymandering to eliminate minority representation is illegal, while gerrymandering to increase minority representation is sometimes mandatory and sometimes illegal, depending on how flagrant it is - an obviously untenable state of affairs.
TWO: AN AMENDMENT TO REVISE THE ELECTORAL COLLEGE. Within each state, one elector will be chosen based on the plurality victor in the Presidential balloting in each Congressional district, and two electors will be chosen based on the plurality victor in the Presidential balloting for the state as a whole.
Why amend the Electoral College? Why not abolish it altogether, and go to a national plebiscite? Why, for that matter, not go to a national plebiscite with instant runoff voting, as a number of process-oriented liberals have favored?
I'll tell you why. The Electoral College serves a very important function: it reduces the leverage of fraud in the electoral system. In the last Presidential election, victory depended on the outcome in one state - Florida - that in turn hinged on only a few hundred votes one way or another. Fraud to the tune of a few hundred votes is far from inconceivable; indeed, it's likely common, in both parties. If you got rid of the Electoral College, the entire country would look like Florida, and any race that came within fifty thousand votes would probably be contestable, because fraud on that scale for the nation as a whole would not be difficult.
Moreover, the Electoral College encourages candidates to focus on "swing states" and ignore their safest territories. Bush will not be campaigning in either Texas or Massachusetts much, and neither will the Democratic nominee, because these electoral votes are locked up respectively for the Republicans and the Democrats (at least for this election). Rather, both candidates will be spending a lot of time in states like Michigan, Wisconsin, Missouri and Ohio that could go either way. This is a bad thing to the extent that Presidential campaigns are not responsive to the needs of the citizens of Massachusetts or Texas. But it is a good thing to the extent that you want campaigns to be forced to the center of the political spectrum rather than out to the fringes, and it seems to me that basic risk-aversion should make want exactly that. (We don't want the electoral system to go spinning off in some crazy direction even if that is our transient will; we want it to reflect our interests, which are more served in general by a more stable system. More specifically, inasmuch as we are a collective entity - and as the sovereign people, that's what we are - we cannot but want the political system to pull us together rather than pulling us apart, so the more our political system tends towards a dynamic center and the less it pulls centrifugally towards extremes, the better.) But within each state that is "in play" politically, the incentive of the winner-take-all Electoral College is to "energize the base" even if that means increasing political polarization. A national plebiscite would make this a national phenomenon; rather than ignoring New York and Texas, Presidential candidates would campaign primarily in these states, trying to run up the total among the most committed voters, and would devote less attention to swing states like Missouri and Michigan. This would polarize our politics and reduce accountability to the people as a whole.
Preference or "instant runoff" voting would make polarization even worse. A lot of commentators who write on this topic behave as if the universe of political alternatives were fixed, and that the political-science problem at hand is just how to best express the preference of the voters. But this is not the case; there's feedback from the system to the alternatives. In any runoff system, a strong incentive develops to vote for extreme and/or parochial candidates for one's first choice, because there is no perceived downside to doing so. Even if these candidates don't win, your second-choice vote will be counted, so you'll still get someone you "prefer" in office if your side (broadly construed) gets a majority. But this very incentive means that more and more energy, money, etc. will go to fringe candidates and campaigns, to the detriment of the general interest. And as this process accelerates, it becomes possible for fringe candidates to start winning (or nearly winning) elections. Suppose you have three candidates running for office: a far right, a far left and a centrist. The far right candidate wins 35% of the first-round, and all his voters vote for the centrist for second choice. The far left gets 33%, and all his voters vote for the centrist for second choice. The centrist gets 32%, and his voters go 18% for the far left, 14% for the far right for second choice. Since the centrist got the fewest votes, his second-choice ballots are counted next, and the result is that the far left candidate wins by 51% to 49%, even though a majority of the electorate preferred the centrist to the far left candidate and even though the far right candidate won a plurality of the first-round votes. Immediately after the banks are nationalized, of course, the far right candidate will seize power in a military coup.
I'm not saying this sort of result is the inevitable result of preference voting. But it's a risk, and it's a far more serious risk than the "illegitimacy" that Bush faced after losing the popular vote, because, while any system can have a tie, our system encourages parties to hew to the center and be responsive to the largest bulk of the people, and ideally to the people as a whole, while a national plebiscite with preference voting would do precisely the opposite: encourage extremism and fracture the electorate. This is what happened in France in their last Presidential election: Le Pen's far right party captured the second-most votes in the initial election. Admittedly, he was defeated overwhelmingly in the runoff, and in a preference-voting system he would have also been defeated (and who knows who would have won - how many fifth- or sixth-place votes were for the Socialist rather than for Chirac? For that matter, how many were for Le Pen?). But that's not the point; Chirac now presides over a country where radical alternatives (mutually-contradictory ones, mind you) have been empowered, but where he nonetheless received an overwhelming mandate as a result of electoral peculiarities. This outcome does not, to say the least, hold him optimally accountable to the French electorate.
I propose revising the Electoral College not to move in the direction of direct election of the President but to move in the opposite direction: to reduce the leverage in the system even further and force the parties to be more responsive to the people as a whole. Assigning electors based on Congressional districts would make Presidential campaigns responsive to a wider spectrum of the country geographically, would make it harder to win elections by running up the base in key states, and would make it harder to steal an election through fraud.
My one reservation about this amendment is that, so long as Congressional gerrymandering continues, this amendment would not really achieve its objectives. While the goal of reduced leverage generally and greater geographic responsiveness would be achieved, the goal of greater accountability to the electorate as a whole would not; now, the President would be elected not by swing states but by a handful of swing districts. Therefore, it would be vastly better if this amendment were passed only after or in conjunction with passing the prior amendment abolishing gerrymandering.
THREE: AN AMENDMENT TO PROVIDE FOR VOIDING OF SUPREME COURT RULINGS. By a simple majority vote, the House of Representatives may call for consideration by the Senate to void a ruling of the Supreme Court. In response to such a call for consideration by the House, by a two-third majority, the Senate may void any ruling of the Supreme Court.
There have been various proposals for making it clear to the Supreme Court that its voice is not the final word on the law: to have Congress declare this or that law exempt from judicial review; to have Congress try judges for impeachment; to abolish judicial review entirely. None of these strike me as a good idea. There is no particular law that I can think of that should be exempt from review, even assuming that the Court would respect such a declaration, and if it did then partisan pressure would quickly mount to exempt all favored laws, in a tit-for-tat fashion, until judicial review is completely undone. Similarly, there is no particular judge I can think of who deserves impeachment. I don't much like Justice O'Connor's jurisprudence in general, but I've seen worse, and she is only laboring in fields that were plowed long before. In any event, take her head and partisans of the other side will demand a trophy of their own.
It is entirely sensible for the Supreme Court to arbitrate whether decisions of the legislature traduce the clear meaning of the Constitution. This is an important check upon what might be an ill-considered whim of a transient majority. There is no "countermajoritarian difficulty" to the Court's work because our democracy is not construed to be Rousseau-ian in character. We want the government to be accountable to the sovereign people, not to be the echo of its will. But where the Court makes bad law out of hard cases - or hard cases out of clear ones - and where no transient majority but an overwhelming one rejects the Court's interpretation in the name of the sovereign people, that majority must be able to rebuke the branch that overstepped its authority. Without such a check, the Court may begin to think that it is sovereign - or, an equal fault, to fall into a kind of clericalism, thinking the constitutional document to be sovereign and themselves to be the privileged interpreters thereof, which I think comes closer to our actual situation.
The proposed amendment consciously echoes the procedures for impeachment, and with good reason: it is not to be presumed that the House and Senate would lightly tread upon the Court's prerogatives and rebuke it over trivial matters or matters where sensible people might reasonably disagree over the best interpretation. But in extraordinary cases of brazen usurpation, the right and power of Congress to overrule the judicial clerisy would now be clear.
This would have several positive effects. First, the Court would be leery of receiving such a rebuke, a hence more deferential to the legislature. Second, any such rebuke would have the effect of limiting judicial power rather than transferring that power to the legislature. Thus, the legislature could not overrule a verdict of the court (for example, deciding for the plaintiff rather than the defendant in a suit) but merely to void that verdict. If the Court struck down a law, Congress would void that striking down, and leave it to the Supreme Court whether to reconsider and rule again or simply drop the subject. If Congress voided a judgment in a suit where a verdict must be handed down, then of course the Supreme Court would perforce reconsider - and would be within its rights to hand down the same verdict, perhaps on other grounds. In any event, Congress would be overwhelmingly likely to use its new power, or the threat thereof, to protect its own legislative prerogatives and those of the state legislatures rather than to attempt to arrogate to itself the judicial function in cases of common law. Third, Congress would no longer be able to get away with letting the Court make policy in sensitive areas where legislators fear to tread. With the power in hand to undo what the Court legislates, Senators could not pass symbolic legislation by overwhelming margins to express their outrage and then wave their hands and return to their states and say: there's nothing we can do, for the Court has spoken. Those margins will come down (the Court does pay attention to polls; they don't go that far out on a limb), and far fewer such laws will be passed. But when they are passed, they will have teeth.
FOUR: AN AMENDMENT TO CLARIFY CERTAIN ASPECTS OF CITIZENSHIP AND TO PROVIDE FOR ALIENATION. No citizen of the United States may accept citizenship in any other country or make himself subject to any other sovereign. Any citizen of the United States who accepts such citizenship or makes himself so subject, whether by voting in an election in a foreign country or serving in a foreign military or by other means, shall be deemed to have renounced his American citizenship and have alienated himself from the United States of America. Other than for treason or other armed offense against the government of the United States, no citizen so alienated shall be denied the privilege of legal residency in the United States, notwithstanding his alienation. Except where extended by legislation to non-citizens, the privileges and immunities of the citizens of the United States are reserved to the citizenry. Following the decennial census, each state shall be apportioned a whole number of seats in the House of Representatives according to the proportion of citizens and legally resident aliens residing in that state.
This is a relatively narrow amendment and is primarily symbolic in its purpose. Which is: to make it clear that citizenship in the United States is not a collector's item but an honor, a privilege and an exclusive loyalty, and that citizenship is not to be confused with other conditions. Only citizens can vote, and only citizens can serve on juries. Some of the rights specified in the Constitution accrue to citizens of the United States; these should be understood as privileges of citizenship rather than the birthright of all humanity. (The amendment uses the phrase "privileges and immunities" specifically to draw the Court's attention to his neglected provision of the 14th Amendment, in the hopes that the Court will pick up the challenge to rest its incorporationist rulings on a more secure basis in this wording.) Dual citizenship is inconsistent with the theory behind our political system. There is no intention to disrupt the life or livelihood of anyone who chooses to become a foreign citizen (hence the provision that alienated former citizens cannot lose the status of legal resident) but you can't be an American citizen while serving as President of Yugoslavia, or mayor of Guadalajara, or an officer in the Israeli Defense Forces. Finally, basing apportionment on legal residents rather than all residents removes another important incentive (at the state level) for governments to encourage illegal immigration. If California accepts large numbers of illegal immigrants and gets no political benefit, they'll have a greater incentive either to work with the Federal government to reduce that immigration or to work with the Federal government to divert that immigration into legal channels. Either is preferable to a system of winking illegality. Once again, the objective of the amendment is to make the government more responsive to the sovereign people, in this case by clarifying who is and isn't part of said people.
In that regard, there are a number of proposals that I have not adopted here. I have not abandoned birthright citizenship, for example. There's legitimate worry in some quarters about "obstetric tourism" - people who come here to give birth, and thereby establish a toehold citizenship. I don't believe that this amounts to a very significant proportion of immigration into this country, and if eliminating birthright citizenship were the only way to end this practice then the cure would be worse than the disease. Countries that lack birthright citizenship - e.g., Germany - have, as a consequence, nurtured generations of unassimilated immigrants who have no home in the country and no home outside of the country. These people have become a serious political problem in a number of countries; this is a problem we don't need to have. I don't think we need radical surgery on the Constitution in this area; just a little minor tinkering around the edges that will, over time, pack considerable clarifying punch.
That's my list. You will note some traditional "accountability" measures that are missing. I do not believe that campaign finance "reform" does much good. (I don't think it does as much harm as its critics think either.) It seems quite clear that the Nixon-era reforms' primary effect was to empower corporations and unions over individual wealthy people; the primary effect of the latest round of reforms is to weaken parties and strengthen ideological groups and quasi-parties that will typically be under the control of one person or a group of like-minded people. Money will still flow into politics, just through different paths. Will politics be less corrupt? Maybe, though the evidence of classical quid-pro-quo corruption was pretty low before McCain-Feingold, and the evidence of interest-group influence of politics is just as good now as it was before the law was passed. In any event, it escapes me how a reform that gives incumbents a bigger fundraising advantage makes our representatives more accountable.
I also have little interest in the right's old favorite for promoting accountability: term limits. Interest in this little reform seems to have flagged since Republicans started winning Congressional elections, and what a surprise that is. But that's fine with me. Lame ducks have less incentive to respond to the interests of their nominal constituents, and term limits laws increase the supply of lame ducks. Term limits reduce voter choice rather than increasing it. So long as districts are gerrymandered, the more frequent elections to replace term-limited Representatives will only result in intra-party contests, and so will not significantly increase accountability, and if gerrymandering is abolished then there will be more competitive elections anyway, and so less need for term limits. Throw the bums out if they don't do their job, I say; keep 'em if they do.
Finally, I have little interest in Perot-style direct democracy (an invitation to demagoguery and incompetent governance - look at California) nor in non-partisan elections, which, if they have runoffs, have all the faults of runoff systems described above and, if they don't, raise the prospect of truly bizarre outcomes. Besides, I think parties are good things: they provide political discipline and clarify debate. They nurture talent for both governance and communication. They force people in disparate parts of the country and with different economic, social and ethnic backgrounds to form coalitions and figure out how to get along in them. They make compromise possible and make it clear when it is impossible. It's good to force the electorate to choose between well-defined alternatives, and it's good to have parties compete to win the electorate's confidence. Initiatives and nonpartisan elections weaken parties, and I believe that weakens government accountability rather than strengthening it.
And I've also left off my list all the hot-button amendments proposed in recent years. No balanced budgets. No definition of marriage. No defense of the flag. Nothing to fight the culture war or tilt the policymaking playing field this way or that. Just stuff that's supposed to be in a Constitution: the procedural stuff that makes the political system work the way it's supposed to. Am I a goo-goo or what?
Tuesday, December 23, 2003
There's a good piece at First Things about the establishment and free exercise "clauses" (as the article points out, they are part of the same clause) of the 1st Amendment.
The article makes two points. First, it points out that the Ninth Circuit's decision in the Pledge of Allegiance case is quite cogent and entirely faithful to Supreme Court precedent in this area. Specifically, the Pledge fails the Lemon test (there is no plausible secular purpose for including the phrase "under God" in the Pledge, and the legislative record makes clear that no secular purpose was intended in any event), fails O'Connor's "Endorsement" test (the Pledge as written unambiguously endorses a view about God's existence, as clearly attested by the legislative record) and fails Kennedy's "Coersion" test (since students are forced to listen to an official leading the class in an assertion of God's existence). Hence, the Pledge of Allegience, under all varieties of current establishment-clause doctrine, is unconstitutional. So, by extension, is the prayer that opens sessions of Congress, the singing of "God Bless America" at public functions, the reading of the Declaration of Independence, etc. Existing establishment-clause doctrine is revealed to be absolutely hostile to any reference to the deity in the public square, and all attempts to fix this problem in recent years have only made it worse. Since this is manifestly not what was intended by the ratifiers of the 1st Amendment - or, indeed, of any subsequent generation of American citizens - current doctrine must be jettisoned.
Second, it points out that the case of Davey v. Locke, filed by Joshua Davey after his "Promise" scholarship was revoked (in accordance with Washington State law) because he sought a degree in theology, raises serious problems for existing free-exercise doctrine. Indeed, that doctrine scarcely exists, and recent free-exercise cases have been decided on free speech grounds rather than free-exercise grounds. Because of this precedent, in order to resolve Davey the Supreme Court will either have to say the choice of degree is a form of expressive speech (which is nonsense), or that discriminating against religion in the allocation of scholarships is perfectly fine and no violation of the free-exercise clause, or it must revise free-exercise doctrine.
The author recommends the revision of doctrine in both cases. Specifically, the author suggests that the Court revise its understanding of the establishment clause, which was originally intended to serve to support the free exercise clause rather than to stand on its own as an independent principle, and to bolster its free-exercise doctrine into something much more stoutly opposed to discrimination against those choosing to exercise their religion.
This is all very appealing, and the analysis of the madness of current establishment-clause doctrine is entirely convincing (not that I needed to be convinced). But appealing or no, I cannot conclude in agreement with the author.
First, with respect to the establishment clause. It is true that the establishment clause's purpose is to support the free-exercise clause, rather than to frustrate it, as currently construed. But that fact doesn't provide a court with a test for determining whether the clause has been violated. Munoz suggests that the establishment clause means that no individual shall receive special privileges or suffer special penalties on account of religion. If find this problematic; the text does not sound like it is creating an individual right, which is how Munoz construes it. Moreover, the examples he gives of what the Founders intended to prohibit - religious qualifications for office, Sabbath laws, public chaplains - either are prohibited elsewhere in the Constitution (in the first instance) or exist currently (there are "blue laws" on the books in many jurisdictions, and the army chaplains maintains a corps of chaplains). So I have a hard time seeing how this understanding is authentically originalist.
Worse, I'm not sure it brings substantial improvement over our current legal situation. Take the pledge case. If "discomfort" is a "penalty" - and who is to say that Justice Kennedy will not find it so, since he has already found it to be "coersion" - then having to listen to the pledge if one is an atheist is a "penalty" incurred on account of religion (or lack thereof). I fear that Munoz's proposed solution is no better than Kennedy's. After all, if Kennedy construed "coersion" strictly, then the Pledge would clearly pass his test, as would most other instances of public religiosity.
This is not going to work. I would suggest that another, more fundamental attack on existing establishment jurisprudence is in order, a two pronged attack: first, on the doctrine of incorporation; second, on the definition of the word religion.
Incorporationism is the assertion that the Bill of Rights was incorporated into the constitutions of the various states by the Privileges and Immunities clause of the 14th Amendment to the U.S. Constitution. This is *not* reigning doctrine; there is no Supreme Court case law that supports this position. It is, nonetheless, a far more persuasive and logical basis for the existing Supreme Court jurisprudence that applies the Bill of Rights against the actions of state governments, as that jurisprudence currently rests on "substantive due process" grounds that make no sense at all. So it's important from the outset to recognize that incorporationism is a law-school doctrine, not a Supreme Court doctrine.
If incorporationism means anything, it means that, under the Privileges and Immunities clause of the 14th Amendment, states cannot abridge the privileges and immunities of citizens of the United States, and that these are construed to refer to those rights granted under the Constitution of the United States. The right to free exercise of religion clearly qualifies as such; the Constitution binds only Congress not to abridge this right, and the incorporation of this right through the 14th Amendment prohibits the states from doing so as well.
But how does "establishment" qualify? "Establishment" is not a privilege or immunity. There is no "privilege" of being unable to establish a religion, not an "immunity" from being able to establish one. And realize that this is what we are talking about: "establishment" of religion would be an act of a sovereign people that, while it might be good or bad on the merits, does not directly infringe on the rights of any dissenter (as any British Jew or Muslim or, for that matter, Roman Catholic or Calvinist or Quaker can attest). Establishment may, empirically, be a threat to free exercise in many cases, but it is not in itself an infringement. And besides, we have the free exercise clause to prevent any such infringement.
Moreover, the establishment clause does not prohibit the establishment of religion. It prohibits Congress from making any law "respecting" establishment of religion. This is clearly (to my mind) a prohibition on Congress either establishing a national religion or disestablishing state establishments.
In other words, the establishment clause is an instance of federalism, a case where the Constitution is distinguishing between the proper competancy of the Federal government and the governments of the several states. If that is the case, it is inconceivable that the establishment clause could be incorporated against the various states, even if the free exercise clause is. Incorporating the establishment clause makes as much sense as incorporating bicameralism or any other constitutionally-specified characteristic of the Federal government against the states: it's a category mistake.
This tack, of course, puts paid to "Roy's Rock" and creche-display disputes and the like. States and (if authorized by the states) localities can do what they like to support religion, including specific religious organs, in their jurisdictions, provided that they in no way impinge on free exercise by so doing. Florida can establish a prison run by Charles Colson on Christian principles, but it cannot compel prisoners to go there and be evangelized if they dissent. Michigan can give vouchers to parents to attend religious schools - Michigan could even give money directly to Catholic schools if it felt like it - but it cannot compel parents to send their children to Catholic schools (or any sectarian or religious schools).
It does not, however, deal with the Pledge or other Federal matters, since the establishment clause does indeed bind Congress and the Federal government. To deal with this, we need to address the question of how to define religion.
Religion is pragmatically understood by the current court to mean, first and foremost, belief, conviction, conscience. Any sincere reference to God, therefore, is understood to be a religious act. (The Court has historically understood some such references to be, effectively, insincere; ceremonial, non-theistic invocations that have no substantive content.) This is precisely why recent free exercise cases have been decided as free speech cases; once belief becomes expressed, the Court implies, what we're dealing with is not a religious fact but an expressive act, and the question is one of free speech. Religion is something one professes, and free exercise means the right to this profession, without suffering disability on that account. All expressive acts are speech.
This, I think, is profoundly wrong. A religion is not an individual profession; it is a corporate entity, with a physical presence in space and an extension in time. You do not decide that you are a Jew or a Catholic or a Muslim or a Hindu; the corporate body of Judaism, of the Catholic Church, of Islam, or of Hinduism, decides whether you are such. Religion is not simply what you believe to be so in your heart. It is baptism; it is circumcision; it is cremation. It is, most profoundly, the transmission of the truth about the nature of things and how to live to one's children. Free exercise of religion does not mean the right to believe what you like. It means the right to affiliate into such corporate bodies (and, of course, to found new ones). And it means the right to induct one's children into same.
If this is what religion is, then establishment of religion means affiliating any such corporate body to the state. And it seems clear to me that the Pledge of Allegiance - and "In God We Trust" on the currency, and so forth - does not constitute religion as such. In effect, I'm saying that ethical monotheism - that we humans and our institutions exist "under God" - is not religion; it is something else. This minimalist view must be ramified but also embodied in institutions and practices to become religion as such. Unitarianism - which professes ethical monotheism (sort of; they've fudged of late) but has an institutional structure, regular services, etc. - is a religion. Ethical monotheism as such is not.
I recognize that this is a relatively radical position to hold. But I think it's true to the facts of how we behave and how we speak. I had an argument with an atheist friend once where I protested against official atheism by arguing that atheism is no less a religion (a religion professing the nonexistence of God) than monotheism. To which he responded: that's nonsense. Where are the atheist churches? What is their heirarchy? What is their law? What are their practices? How are they organized? What are their ceremonies? How do atheists manifest their beliefs in the nonexistence of God? They don't. Atheists do not, in any meaningful sense, form a corporate body dedicated to their collective belief in the nonexistence of God. There is no church of atheism. Atheism is not a religion.
I hear an objection: Buddhism is, arguably, an atheist religion. But this only proves my point: Buddhism is an atheist religion; atheism is a religion. Similarly: Judaism is an ethical-monotheist religion. Ethical monotheism per se is not a religion.
If the foregoing understanding were to be adopted by the Court, there would still be establishment clause jurisprudence. The clause would not be eliminated. It would be eliminated at the state level, of course. And, at the Federal level, there might still be dispute what constitutes the establishment of a particular religion. But there would be no more debate about whether the Pledge of Allegiance and the like constitute establishment of religion; they do not.
Next, with respect to the free exercise clause, I am puzzled by the logic in Munoz's approach to the Davey case. From Munoz's perspective, this is a case of religious discrimination. Joshua Davey lost his scholarship because he chose to study theology, for which the scholarship was ineligible. In what sense what Davey's right to freely exercise his religion infringed? Was he forbidden to go to the school? Was the school forbidden from teaching any particular doctrine or practice?
Suppose, for example, that the state had mandated that its scholarships not be used for the study of theology, philosophy or literary criticism, arguing that none of these courses of study are remotely useful to the betterment of the citizenry of the state and are therefore not entitled to state subsidy. Would Davey have a case? I should think not. Why can't the people of Washington decide that religion is a waste of time and undeserving of state subsidy?
The logical end of the road that Munoz embarks on with this discrimination logic is that the state may never provide a benefit that is secular unless it offers a religious alternative. It may not provide scholarships unless they may be used at religious institutions. Presumably, by extension, it may not have public schools unless vouchers are available to attend religious schools. Where does this logic end?
The free exercise clause is not an anti-discrimination clause. It is, rather as it sounds, a pro-freedom clause.
Munoz is concerned that current free-exercise jurisprudence is insufficiently robust, and would like to see the Court more active in this area. But why? Where are the pervasive violations of the right to worship as we please? Munoz cites none. The one example he does give - where a municipality constructed public-health regulations specifically to prohibit Santaria, a religion that practices animal sacrifice - was an instance where the Court ruled unanimously for free exercise. Munoz complains that such clear attempts to suppress religious practice are comparatively rare. This is a complaint? That means we're all following the law! And if we are, then why should the Court stick its nose in our business?
This points to a broader problem with conservative writing on the Court. Traditionally in the post-war world, liberals have been the ones pushing for the Court to extend and expand its understanding of different rights and to create new ones out of whole cloth, and have been the ones eager to see the courts take a larger and larger role in public life. Conservatives, meanwhile, have argued for restraint. But now, both sides are eager for an active an involved Court. Both sides want the Court to expand rights and stick its nose into our business. It's just that they have a different list of rights. Liberals want the Court to broadly construe the right to free speech (understood as personal expression) in the 1st Amendment, the establishment clause of the 1st Amendment, the equal-protection clause of the 14th Amendment (except with respect to affirmative action), the prohibition on illegal searches and seizures in the 4th Amendment, the self-incrimination provision of the 5th Amendment, the prohibition on cruel and unusual punishments in the 8th Amendment, and the right to privacy and sexual autonomy in the . . . well, no one's sure which Amendment that one's in, but it's somewhere in the emanations from the penumbras of a bunch of them. Right-wingers, meanwhile, want the Court to broadly construe the free exercise clause of the 1st Amendment, the right to free speech (understood as political speech, including monetary contribution to such speech) in the 1st Amendment, the right to bear arms in the 2nd Amendment, and the just compensation clause of the 5th Amendment, and the equal-protection clause of the 14th Amendment (only with respect to affirmative action). And even this may make the distinctions sound more principled than they are, since the Bush v. Gore decision rested primarily on the equal-protection clause, and was applauded by most conservatives and denounced by most liberals. To a greater and greater extent, conservatives are treating the Court as no less a political venue than are liberals, and their arguments are getting less and less principled. And their trust in democracy and the sovereign people diminishes concomitantly.
Munoz's free-exercise argument suffers, to my mind, from this very same fault. He would construe the free-exercise clause very broadly, to prohibit any state discrimination against religious viewpoints in provision of services, not because he thinks that there are egregious violations of the rights of religious people that can only be remedied in this manner, but because a narrower construction would leave the courts little to do precisely because there are so few clear-cut violations of the rights of religious people. Moreover, he recognizes that many of the regulations that force religion out of the public square are caused by misguided establishment-clause jurisprudence, but he is insufficiently trusting of the people to repeal these regulations if establishment-clause doctrine were revised, and demands that what was previously prohibited now be imposed. This kind of "everything that is not prohibited is compulsory" thinking is not a conservative constitutional philosophy, and it is not conducive to the education of a free people.
The Blaine amendments of various state constitutions may be bad policy; I think they are. But they are not violations of the Constitution of the United States. The sovereign people, acting through the several states, are free to deny state funds to religious institutions if they wish. To deny them that right is an infringement on their freedom, the freedom to act collectively in their own interest as they see it, the most fundamental political freedom there is. And for what? Whose freedom is infringed by the legacy of Blaine? No one's that I can think of.
It is true that Munoz's argument is more in tune with the way the Court construes the Constitution generally. He is, after all, making an equal-protection-style argument, and no argument is more persuasive to the Court. But while this might be a tactical political advantage, it is a strategic political weakness, for the overly broad interpretation of this clause is a major pillar of the imperial judiciary's edifice. We will never get a restrained Court, one that trusts the sovereignty of the people and is unconcerned if it has little to do outside of extraordinary circumstances, if we do not whittle this particular pillar down to size. That means giving up on the judicial fight against most forms of affirmative action, giving up on Bush v. Gore's equal-protection argument, and giving up on Munoz's novel expansion of the free-exercise clause into an anti-discrimination clause. That's the price to be paid to restore popular sovereignty, if indeed it can be restored.
Monday, December 22, 2003
I've been very much enjoying the Deanophobe blog on TNR's website. Having briefly lost their souls to the ill-starred Albert Gore Jr., TNR has returned to its proper and traditional stance of hating *everyone* in politics, finding no one they can support with a clear head and a confident heart.
Seriously, though, the Deanophobe has a problem: the "in-your-heart-you-know-he's-right" problem, and it may be crippling.
As Chait's critic-blog has delighted in pointing out, the Deanophobe tends to conclude that Dean was, actually *right* about whatever position or stance he took, but Chait worries that taking that position is politically inexpedient. This does not make for the strongest critique.
Take taxes. Dean favors repealing the Bush tax cut. The other Dems want to keep the lower-bracket cuts but raise rates on the higher-income brackets. Chait thinks the better policy is to repeal the whole thing, but he thinks keeping the lower-bracket cuts is more politically palatable, while Dean's position is suicide, because Bush can honestly attack Dean for wanting to raise taxes on the middle class.
But is the soak-the-rich position really such political gold? Republicans usually do a pretty good job of calling that "class-warfare" - not to mention pointing out that such tax cuts are "job-killing." There's a coherent, principled Republican position on tax cuts (and a politically opportunistic and less-principled version that actually gets proposed as law), just as there is for Democrats. Why does Chait think that "straight talk" on this matter is necessarily a loser? What does it say about his view of the electorate that he thinks no Democrat can get elected by saying what Democrats really believe about taxes?
Similarly with religion. Chait says he isn't religious. He probably doesn't think religion has a particularly positive effect on politics; indeed, he probably thinks that while it's impolite to mock people for their religious beliefs, he probably doesn't think much of those beliefs in the privacy of his own mind. At least, that's the impression he tries to give.
But Dean, who thinks and feels similarly, is attacked by Chait, basically for not being able to fake it. I say that because, presumably, Chait doesn't wish Dean had more in common with self-professedly religious people (who tend to vote more Republican, after all). He just wishes Dean could bring himself to *pretend* to be more like those people, and thereby get a few more of their votes.
I understand Chait's thinking here. But again, the problem he has is that he's saying that when Democrats are honest, when they reveal who they really are, they can't win elections. In his heart, he knows Dean is right. He just doesn't think the country's heart is where his is.
This is a real problem for the Democrats, and it's why they are planning to nominate Dean (among a number of other reasons). You can't beat something with nothing. Dean stands for something - even if that something is only a vague, cultural stance rather than a set of policy positions. The man whom I thought was going to win the nomination - Kerry - turns out to be nothing. And pretty much everyone else in the field turns out to be nothing - Clark especially. You can't beat Dean by saying, "you're being too honest about how we really feel" - and that's basically Chait's position.
The irony, of course, is that while Chait's main complaint is that Dean is too honest about how Democrats feel, his minor complaint is that Dean is too dishonest about himself. This whole "Dean's a liar" meme is intimately related to the blessedly revitalized TNR hatred for anyone successful in politics (they hate our current President, and never reconciled themselves to Clinton; meanwhile, they swooned like nobody's business over John McCain and they suddenly found nice things to say about the first President Bush of all people once he was safely consigned to the dustbin of history). But successful politicians lie - particularly about themselves, and particularly to themselves about themselves. No one who doesn't have a particularly grand notion of his place in history is going to run for President, and such people tend to edit their identities to fit the story line - Reagan did it, Clinton did it, Bush does it, and Dean, trounced in the general election though he will be, does it, too. Hating this aspect of him is just a sub-species of hating winners.
I can't stand Dean. I think he's a Jimmy Carter who's fooled a chunk of the primary electorate into thinking he's a George McGovern. But I'm a Republican; I should hate him. Does Chait think Dean would make a worse president than Jimmy Carter was? That he'll be a worse nominee than Walter Mondale or Michael Dukakis? That if by some fluke he gets elected President he'd be a worse President than Walter Mondale or Michael Dukakis would have been? I mean, come on!
You can't beat somebody with nobody. Who does Chait want to win the nomination? Are they running? A lot Dean-haters are pining for Hilary. Does anyone think Hilary isn't arrogant? Wouldn't be anathema to religious voters? Doesn't lie about herself? Wouldn't be a vehicle for inchoate Democrat rage that she greatly participates in? Wouldn't be portrayed as a card-carrying, down-the-line, out-of-the-mainstream liberal by GOP attack ads?
Chait and the other Democrats who are terrified of a Dean candidacy are really terrified of President Bush. They have no idea who could beat Bush - they're not sure anyone can - and Dean has filled the vacuum of that uncertainty and is hence the focus of their anxiety.
Speaking of Hanukkah:
As everyone pretty much knows, Hanukkah celebrates a miracle involving light. When the Hasmonean rebels finally defeated the Seleucid (and Hellenizing Jewish) rulers of Israel, they seized the defiled Temple in Jerusalem, and set about to cleanse and rededicate it. One of the first things they needed to do was relight the eternal flame with pure, undefiled olive oil. They found a small cruse of oil, enough to keep the lamp lit for one day only, and they knew it would take eight days to prepare new oil to keep the lamp lit thereafter. Nonetheless, they immediately relit the lamp. Miraculously, that one-day worth of oil lasted a full eight days, enough time for new oil to be prepared to keep it lit.
So why is this a miracle? Because the oil lasted longer than expected? What if they oil had lasted five days instead of eight - long enough to be very surprising, even inexplicable in rational terms, but not long enough to prepare new oil, so that the lamp went out. Would that also have been a miracle?
No, it would not. A miracle is not simply an unexpected, unlikely or inexplicable event. If you win the lottery, that's not a miracle. A miracle is a miracle because of its meaning, its relation to something of higher significance and purpose.
So what is the meaning of this particular miracle?
It seems to me that the significance is that God, by means of this miracle, was assisting in the rededication of the Temple, was making sure that the Temple would become operative again as quickly as possible, and effectively rewarding the Hasmoneans for lighting the lamp even when there was not enough oil, and therefore for trusting that the Temple *would* become operative again, in spite of its defilement.
Recall that at this point in history, Temple sacrifice was the primary means by which Israel atoned for its sins. Without the Temple, it was not obvious to many that sin *could* be atoned for (though, as we are tought, repentance, prayer and deeds of lovingkindness are similarly capable of achieving the necessary reconciliation with God after sin).
Moreover, it is not a given that God would allow the Temple to continue to play this role. When Nebuchadnezzar of Babylonia invaded and conquered Judea in the 6th century B.C.E., the invaders destroyed the Temple, which remained a ruin until after the Jewish return under Ezra and Nehemiah, seventy years later. Centuries after, the Second Temple was destroyed by the Romans, and has not year been rebuilt - and will not be until the coming of the Messianic Age.
At the end of the Book of Lamentations, written after the destruction of the First Temple, the authors cries out: "Turn us toward you, HASHEM, and we shall return; renew our days as of old." The Temple was the familiar route to reconciliation with God. But God does not always allow us to pursue familiar paths back to Him. Sometimes, He makes us learn new ways, sometimes difficult ways. Other times, He leaves the old ways open. On Hanukkah, He left the old ways open, and renewed our days as of old, for a time. And that is the significance of the miracle.
May our old ways yet suffice; may we all be granted that by doing what we already know how to do that is pleasing in God's eyes, we may be reconciled to Him, for this season and for seasons to come.
Chag Urim Sameach.
Yesterday afternoon and evening we hosted a Hanukkah party at our place. The menu was as follows:
* Potato latkes (of course)
* Apple-pear-pineapple sauce (for serving on latkes)
* Schmaltz herring and matjes herring with onion (for serving on bread or on latkes)
* Salmon mousse, smoked sea bass and kippered white salmon with pumpernickel bread
* Deep-fried butternut squash fritters (an Italian Hanukkah delicacy)
* Fried halibut cakes served with caper-parsley sauce (a Croatian dish, kind of like crab cakes)
* Mushroom bourekas, spinach bourekas, and fried potato pastels (I bought these)
* Spicy carrot salad (I bought this, too)
* Sweet malai (a Romanian corn-meal pudding made with sour cream)
* Crudites with hummus and artichoke-parmesan dip
* Various cheeses, crackers, nuts, pickles, candies and the like
* Tiramisu (brought by a guest - and very good)
So this is why posting has been light the past week.
Monday, December 15, 2003
Well, I haven't said anything about the wonderful capture of Saddam yet because I didn't think I had anything to add to what was being said. But it seems there's an expectation that everyone will opine even if they don't have an original opinion. Strange conventions this blogosphere has.
Anyhow, it seems to me there are now two open questions: how and where will Saddam be tried, and what will happen to the anti-occupation guerillas in Iraq now that Saddam has been captured? (And how can we use that capture effectively in responding to the guerillas?)
The first one is easy: he should be tried in Iraq, by Iraqis, because they'll stick his head on a pike and feel good about it. Seriously: handing him over to the Hague is just ludicrous, as his primary crimes were committed against Iraqis and the prosecution of Saddam is one of the few things the new Iraqi government can do that will lend it legitimacy - and it needs all the legitimacy it can get. American prosecution would be even worse than international prosecution in that regard, and the only real reason we need to keep a hand in at all is that Saddam is a potential intelligence treasure-trove, and to maximize his intelligence value we need to be in a position to dangle carrots in front of him, something we certainly can't do if he's out of our hands. But that's something that can be worked out with the Iraqis, no doubt.
The second one is harder to assess. The conventional view (articulated by the Administration) has been that the guerillas are Saddam loyalists, "dead-enders" who have now truly reached a dead end. That could certainly be part of what we've seen, but I can tell you this: there are no suicide bombers among the Baathist thugs, and it's hard for me to see how Saddam would have had time or ability to train them prior to the American invasion. Suicide terrorism is pretty rare and requires thorough indoctrination - I mean, you're asking someone to kill himself, to look forward to killing himself as the highest duty and noblest act he can perform. Not easy to do. The Japanese militarists managed it in the 1940s; Hizballah managed it in the 1980s; Hamas and al-Qaeda managed it in the 1990s; and now we have the Al Aqsa Martyrs who are, I think, the first Arab terrorist group to employ suicide bombing that is nationalist rather than Islamist in orientation. That example notwithstanding, I think it's notable that there's a religious or quasi-religious dimension to all these groups (including, I would argue, the kamikazis). I just don't see how Saddamism could provide the inspiration necessary to produce suicide bombers. I mean, Stalin didn't, Kim Il Sung didn't, Ceaucescu didn't. It's not so easy to get someone to strap a bomb on and blow himself up. It takes some dedication.
By the same token, I don't think Steve Sailer's "thug-entrepreneurs" theory accounts for the suicide bombers either. Sailer thinks that the attacks are primarily coming from younger Sunni Arabs who are making a play for power in a post-Saddam, post-occupation Iraq; therefore, he argues, we won't be able to decapitate the guerillas, because they have no single head, and we will face more attacks post-Saddam than we did when there was a chance he would come back. That's not a bad theory, and it's probably partly true. But freelance thugs are not going to get people to blow themselves up.
It seems to me that the group in the best position to organize these kinds of suicide attacks - which are the hardest ones to stop, and therefore the most threatening to the occupying forces and the Iraqis alike - is Hizballah, for three reasons. First, it's backed by Iran, who has the greatest geopolitical interest in the failure of the American occupation (Iran would likely dominate a Lebanonized Iraq as Syria has dominated Lebanon). Second, it's based in Syria, which is right next door to Iraq, and which has a fairly porous border. Third, Hizballah has been at this longer than anyone else in the region, and has a substantial store of volunteers. They are far better placed, in all three ways, than al-Qaeda, and far more capable of mounting these kinds of operations than the Baathist dead-enders.
However, they are a Shiite group, backed by Iraq's territorial enemies. Certainly Baathist thugs would work happily with them so long as their interests coincide. Do they still coincide now that Saddam is out of the picture?
I suspect not. Sailer may be right that there's a lot of freelancing going on, but the fact is without Saddam a random Tikriti thug is going to have a real hard time taking over the country. If America pulled out, Iran would fill the power vacuum, and there's no reason Iran would prefer to work with said Tikriti thug rather than with the folks of SCIRI - or even Ahmad Chalabi, who has been making kissy noises towards Tehran for a while now. (And before I get more nasty mail for saying bad things about Chalabi: I'm willing to entertain the possibility that he's an Iraqi patriot and not just a scheming opportunist, but even an Iraqi patriot would have reason to try to make friends with Tehran, since the Iranians are vastly larger and stronger and fully capable of subverting whatever government emerges in Iraq. That said, I think Chalabi is an opportunist. He's not the worst guy in Iraq; there are far worse. But conservative romanticism about the guy is just ridiculous, in my view.)
So let's post there are three elements to the guerillas: pro-Saddam forces, opportunistic young Sunni Arabs looking to move up in the post-war ranks, and foreign fighters largely controlled by Hizballah. If these folks were largely working together before, it's not clear they should be working together now that Saddam is out of the picture. Rationally, the first group should shift gears and be more friendly towards the Americans, and turn on their erstwhile allies from Hizballah. By the same token, Iranian-backed elements should now be bolder and more aggressive, because these folks are now the only ones substantially able to seize power in a post-occupation Iraq.
Watch what happens with the new militias (terrible idea), particularly those loyal to Chalabi and to SCIRI. Watch how the American occupation is viewed in Shiite areas versus Sunni Arab areas; it will be interesting to see if there are more attacks in the former than before, and fewer in the latter. And watch how America's relationship with Syria develops. Without their bases in Syria and Lebanon, Hizballah would be devastated. Normally America wouldn't care, because Hizballah hasn't attacked Americans specifically since we fled Lebanon; they've been more focused on Israel, and America is leery of destabilizing Syria, creating a bigger mess there than we have now. But if Hizballah is playing in big role in the Iraqi guerilla campaign, American attitudes might change.
Friday, December 05, 2003
I don't know that I'll be able to do this justice in the time I have, so I may return to it. Two new peace plans for Israel and the Palestinians were brought forth this past week. The first, more trumpeted, comes from Geneva. The less-heralded comes from the West Bank.
So now, we have left- and right-wing versions of partitionism (Beilin on the left, Sharon on the right) and left- and right-wing versions of bi-nationalism (Tony Judt on the left, Pinchas Vallerstein on the right).
I think it's constructive that the far-right is finally thinking about what the alternative is to partitionism. The lack of an alternative has a lot to do with why Israel has come to her current pass. Orthodox thinking since Rabin's election has been that Israel needs - badly needs - an agreement, for her own sake, to protect her own security and secure Israel's identity as a Jewish state. That being the case, and since the other side knows Israel needs an agreement, and since the other side is willing to spend blood and treasure indefinitely in its struggle with Israel, the other side has never had an incentive either to compromise or to live up to its agreements. Arafat & Co. have employed violence and rejectionism against left- and right-wing governments; they are not deterred by threats nor have they ever been beaten into submission. Which is why the Oslo idea won't die; there is no apparent military solution so long as Israel's objective is partition.
But the far right has lived too long in fantasy land, and it is good to see them coming down to earth and thinking about what an alternative solution would actually look like. Their new plan is still a fantasy, of course, one that will never be supported by the Palestinian people. Maybe - maybe - such a thing could have been possible in 1970 or 1980 or even 1990, though I doubt it. But putting these things on paper will at least bring their assumptions out into the open air.
In this case, two things have become clear: if Israel is to hold on to the territories, it must give up being a unitary state and it must accept a large number of Palestinian citizens.
People on the left assume that to hold on to the territories Israel would have to accept as equal citizens every Arab resident in the territories, and that these voters would then vote to disestablish Israel as a Jewish state. Anything less, they confidently assert, would be "undemocratic." This is, of course, hogwash; there are all kinds of democratic and liberal systems in the world, and few of them involve strict proportional representation in a unitary state with universal sufferage. But the right has never frankly admitted that holding on to the territories means vastly expanding the number of Arab voters in Israeli elections. Now they have.
Moreover, they have never admitted that giving Arab citizens control over their lives means limiting the control the central government has over their lives. By suggesting the federalization of Israel - breaking it up into cantons with substantial autonomy - the writers of this plan implicitly recognize that even the most favorable one-state solution from the Jewish perspective will necessarily grant to Arab-controlled entities the ability to control land-use in their areas - effectively, the ability to limit Jewish settlement, though not necessarily Jewish residence. This has enormous significance not only for the territories but for Israel proper; for a long time, Israel has been trying to establish a critical mass of Jewish towns in the Galilee - not to drive the Arabs out, but to prevent the Arabs from taking the territory with them in the event of any two-state peace settlement with the Palestinians. In the context of the new settler one-state peace proposal, such an effort would seem to be problematic at best.
My views haven't changed. The problem with Geneva is not, fundamentally, that the Jewish participants are undermining the government, nor that the "accord" makes too many concessions. The "accord" is basically a publicity stunt; it does not meaningfully extend Israeli concessions beyond what Barak offered at Taba, and everyone knows that were Amram Mitzna or someone like him elected Prime Minister, similar terms would be offered again. No, the real problem is that the other side is still killing Jewish children as a form of political protest. Peace under any terms is impossible in such circumstances. And that's Bush's consistent message, which is why I'm not really worried about Powell meeting with the Geneva accordians.
And the problem with one-state solutions is that there is no reason to believe they will remain stable. A bi-national Israel, however constituted, will become an Arab Israel because that's what the Arabs - on both sides of the Green Line - want. Fantasies about a federal structure and cantons and an electoral college and what have you will last until the first Arab riots in favor of constitutional change. And then what? Use tanks against people who are now citizens of Israel? Nice solution.
The only solution was and remains to give the bulk of the territories away to Jordan, a power that actually has a reason to want to keep the peace with Israel and to stifle the terrorist groups. They have no interest in taking on that unpleasant task. The right-wing partitionists around Sharon should be working much harder than they are to figure out what carrot they can offer to lure Jordan back to the table.
This piece by Charles Murray, on the other hand, requires little comment. It's a delight. You want to read something really conservative? Here's a conservative argument for you: the three worst ideas in history are logic, reason and artistic genius.
Unfortunately, everything and anything you like can get the same treatment. Democracy leads to vulgarity and dictatorship. Faith leads to fanaticism and obscurantism. Family? Philip Larkin told us what our Mums and Dads do to us. But the Law of Unintended Consequences is as conservative a statute as you'll find on the books, and universal in its application. Enjoy.
I've got a backlog of things to write about, and little time to do it. Here's just one thing I've been meaning to write about.
Everyone seems to be talking about this article from Edward Feser about how Islam needs a Pope, not a Luther - i.e., that the "problem" with Islam is that it has no central religious authority and, hence, no "law" as such. And he specifically compares Islam with Protestantism - in its Lutheran and, especially, its Calvinist manifestations - to argue that it is Catholicism, and not Protestantism, that is the true source of a Hayekian liberal order.
This is profoundly wrong in so many ways that I'm not sure I can list them all.
First, it is historically wrong. The modern, liberal order dates basically from 1688. It was born in a Protestant country whose leadership explicitly broke with Rome and which had only recently recovered from a civil war between Calvinist dissenters and partisans of the King who was also the head of the Church. A very good argument can be made that liberalism was born of nationalism and that nationalism began with Henry VIII's schism; I happen to buy into that argument myself. In the only Catholic country with a robust liberal tradition prior to the 20th century, that liberalism was explicitly directed against Catholicism. From the Counter-Reformation through Vatican II, the Catholic Church was explicitly opposed to pretty much everything about modernity and liberalism. I'm on board with the idea that liberalism, democracy, etc. owe an enormous debt to Christianity. But it is pretty hard for me to see how obedience to the Pope was the key element in this debt, and it's pretty easy to make the historic case that the opposite is true: that revolt against the Pope was at least one key element necessary for liberalism to flower.
Perhaps what Feser means to say is that the modernization of Catholicism that took place with Vatican II was only possible because Catholicism is a top-down religion. Catholicism could change in ways that Islam (and, for that matter, Orthodox Christianity) could not. That's probably true. But it's not especially telling; for hundreds of years, the Church took a very different attitude towards liberalism than that taken with Vatican II. If authority was the solution, it was the solution to its own problem.
Second, the argument about the nature of law is deeply flawed. Did Athenian democracy have no law? I suppose not; Athens had a single titular leader from whose lips flowed the law, and citizens of Athens regularly struck out to found colonies when they didn't like the political climate at home. Moreover, Islam has a quite developed legal system, and a lengthy set of traditions. Orthodox Muslims are called Sunni because they follow the Sunna - a set of traditions derived from actions of Muhammad roughly equivalent to the Jewish law code, the Mishnah. The English common law would also fail to pass muster with Mr. Feser, and it is the very paradigm of what law means in the Hayekian sense.
Something has indeed broken down in Islam: what has broken down is the traditional understanding of the law, the relationship to tradition and traditional authority that existed for centuries. In Christian history, when that relationship broke down, we got Protestantism. Which would seem to suggest that Islam is currently going through a Protestant moment - the settled Orthodoxy of the past has been unsettled, and the surging fundamentalist tide is analogous to Lutheran and Calvinist surges in 16th and 17th century Germany. But what does that do to Feser's thesis? After all, Christianity *had* a Pope. They got Protestantism anyhow.
Third, the Iranian Shiites do have a Pope, after a fashion. In any event, they have centralized their religion to a high degree, with a heirarchy and everything, much in contrast to traditional Islamic practice. And how has this proved a solution to any problem? Iran is a repressive, terrorism-sponsoring theocracy, with a tendentious and fundamentalist understanding of their own religious tradition - and the most reasonable Muslim religious opponents of the regime are in effect rebelling against this heirarchy.
Fourth, the church/state distinction may indeed be profoundly Christian, but it is just as reasonably a part of Protestantism as of Catholicism. And I'm not sure it's as crucial as everyone makes out to solving Islam's problem with modernity. Liberalism, remember, is a British invention, and the head of the Church of England is the King. Orthodox Christians also give religious character to the state, and Catholic teaching pre-Vatican II was decidedly in favor of absolute monarchy.
Fifth, what does Islam's problem with modernity have to do with its cult of violence? Orthodox Judaism is divided between those who are ambivalent about modernity and those who are passionately opposed to it - and the passionate opponents are winning. And those same passionate opponents are traditionally quietist and have essentially zero history of communal violence. American Protestantism is in the midst of an extended fundamentalist resurgence, with mainline Protestantism in profound decline against a surge in sects that reject the possibility of evolution, embrace biblical inerrancy, and have a weakness for charismatic leadership. And this is a profoundly law-abiding and peaceful community. They don't have a "problem" in the way that Islam has a problem. Why not?
I'm not saying that Islamism's anti-modernism is unrelated to the cult of violence. But I feel a little like analyses of Nazism that debate whether Nazism was caused by nationalism, or by capitalism, or by imperialism, or (by reaction) by Bolshevism, or by some essential German trait, or by what-have-you. And this implies that the exaltation of murder as a positive good which was the most essential thing about Nazism was somehow derivative of one of these other supposed evils, which are the "real" problem - when, really, the business about promoting murder was kind of the real problem, wasn't it? In the same way, the problem with Islamism's cult of violence is Islamism's cult of violence, not its lack of a Pope or its lack of a Luther.
I was never a fan of the "Islam needs a Luther" school of thought - promoted by, among others, purported Catholic Andrew Sullivan (who, embracing contradiction like an old friend, also has called Oliver Cromwell's Roundheads England's Taliban and Cromwell its Osama bin Laden - but then, he is large; he contains multitudes). I thought the argument lacked appreciation for the structure and history of Islam and advanced a very simplistic understanding of the history of the Reformation. But the "Islam needs a Pope" argument is just as bad.
Apologies if the foregoing was not up to my usual standards of argumentation; time is short, unfortunately.