Drive by the world’s greatest medical research facility, the National Institutes of Health in Bethesda, Maryland, and you see trouble. The bumper stickers say “Liberate Laboratory Animals,” and the signs say “Honk for the Silver Spring Monkeys.” The animal liberation front has arrived.
The issue is no longer freeing 15 monkeys from a Silver Spring lab, where, for the sake of understanding strokes in humans, they were subjected to brain-damaging injuries. That fight was won years ago. The monkeys were freed and the research terminated.
This fight is over the proper rest home for these monkeys. NIH first housed them in cages in Poolesville. Under pressure, it then sent them to a more open environment in Louisiana. People for the Ethical Treatment of Animals demands that the monkeys live out their days at a “primate park” (Primarily Primates, Inc.) in Texas. One demonstrator—“prepared to die”—went on a 64-day hunger strike over the issue.
I am no expert on retirement homes for monkeys, but this seems to me to be going a bit far. But then again, the animal rights crusade is about going far. Its soldiers want not just to stop the abuse of animals in the laboratory. They want to stop the use of animals in the laboratory. That is what “Liberate Laboratory Animals” means. If they had their way, the labs would be shut down, the animals freed and—a side effect—medical science devastated.
The animal rights cause is a form of fanaticism. It places one value, admittedly an important one, above all others. But there are values other than the prevention of animal suffering. One of these is the prevention of human suffering through medical advances, many of which rest indispensably on animal experimentation.
And yet we owe these fanatics a great debt. A scientific lab is a place of romance and power. Even for the best-intentioned, it is an easy place to forget about the value of lesser creatures. The extremists have had a salutary effect. If you work in an animal lab you know that they are outside demonstrating and sometimes inside infiltrating. (That is how the Silver Spring monkeys were discovered.) It makes you doubly careful about how you treat your animals.
“Extremism in the defense of liberty is no vice,” said Barry Goldwater in 1964. It will probably be his epitaph, and it is certainly wrong. Extremism in the defense of anything is a vice. A personal vice. Yet for a society, the presence of extremism—or rather, a mass of contending extremisms—is a virtue. It helps produce a moderation that would otherwise be impossible.
Madison, of course, was the great theorizer of such a system of contending factions. (“By a faction I understand a number of citizens…actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”) As he thought, factions do indeed constrain and moderate each other, and restrain the headlong plunges of majority enthusiasms.
Enthusiasm for nuclear power, for example. Chernobyl is the latest example of Madison’s wisdom. Societies where contending extremisms—i.e., pluralism—are not permitted are subject to catastrophic headlong plunges, such as the Soviets’ crash nuclear power program. Where the nuclear imperative is not constrained by busloads of Diablo Canyon anti-nuclear fanatics, safety can be ignored.
During Chernobyl, there was much self-congratulation here about American nuclear safety. Yet that was not something that those who believe (as I do) in the nuclear imperative could take credit for. Credit was due to anti-nuclear fanatics, who have argued and demonstrated and litigated and cajoled this society into nuclear safety.
Of course, if they had their way, we would have not safer nuclear power, but no nuclear power. It would be disastrous if they ever won. It would be only mildly less disastrous if they went home. The paradox for a pluralist society is that extremists must be resisted, while at the same time welcomed, even celebrated.
The same is true, for example, of the anti-pornography fanatics, feminist and bluenose alike. They are a threat to free speech. And yet their critique of pornography (particularly the feminist critique) is a valuable one. It makes us rethink perhaps not what ought to be legally permitted but what ought to be socially sanctioned.
The point is that an extremist is the last person to whom you want to give power, but the first to whom you might want to give the floor. Such is the project of political pluralism. Every fanatic—whether for monkeys or motherhood—is granted the power of petition and contention. The result is a brilliant scheme for harnessing the energy that lies at the political extremes and deflecting it to produce, paradoxically, a moderating effect.
Banning experimentation or nuclear power or pornography is a terrible idea. But we need the extremists who believe in them. They keep the rest of us honest.
The Washington Post, July 18, 1986
The Supreme Court has just decided that if a state wants to strap a 16-year-old or a mentally retarded murderer into the electric chair and throw the switch, the Constitution does not stand in the way. The ruling was only five to four. But it was, on any plain reading of the Constitution, correct.
The Eighth Amendment bans punishments that are “cruel and unusual.” Had it just said “cruel,” the justices could arbitrarily pick and choose what punishments they in their robed wisdom consider humane. But by adding “unusual,” the Constitution permitted the striking down of only those punishments that, in Justice Antonin Scalia’s words, “society has set its face against,” that are so universally abominated that only a few recalcitrant and benighted jurisdictions still practice them.
In this case, the court found that there were 22 states that permit the execution of 16-year-olds for heinous crimes. And it found that only one death penalty state (out of 37) explicitly prohibits execution of the retarded.
Critics counter by citing public opinion polls showing that a majority of Americans oppose the death penalty for juvenile offenders and for the retarded. But apart from the fact that public opinion polls are the most ephemeral, manipulable and unserious of all expressions of public sentiment, the Constitution speaks only to unusual punishment. It says nothing about unpopular punishment. Polls may tell you what is unpopular. But it is legislative practice that tells you what is unusual.
To say that the court ruled correctly, however, is not to deny that execution of the retarded is an abomination. (The age issue seems to me less urgent: If execution is going to be permitted, fixing the minimum age at 16 rather than 18 seems no more than an exercise in line drawing.) Indeed, in my view, the death penalty itself is a cruel anachronism worthy of abolition.
There are only two possible justifications for the death penalty. The first is deterrence, an argument rarely heard these days, since it is so clearly unsupported by the evidence. Death penalty states and death penalty countries do not have lower murder rates than their neighbors. West Virginia does not have the death penalty. It is surrounded by Virginia, Kentucky, Ohio and Maryland. All have the death penalty and all have higher murder rates. The United States as a whole has a murder rate 50% higher than that of abolitionist Canada and five times that of abolitionist Britain.
If not deterrence, then what? The most powerful case in favor of capital punishment is the claim of justice: Some crimes are so heinous that the only proportionate punishment, the only fitting retribution, is death. This is not a claim to be taken lightly. One purpose of the law is that it ensure that evil be appropriately repaid, that justice be done.
The death penalty is not unjust. But it is unnecessary, and that is the key argument against it. The experience of abolitionist states and countries clearly shows that it is quite possible to maintain order without the threat and practice of execution. And one of the marks of a civilized society is that it maintain order at the lowest possible level of official violence. It is in that sense that capital punishment is uncivilized.
It is considered unfashionable, if not racist, to speak of higher or lower civilizations. But few Americans would deny the proposition that a society that cuts off the hands of thieves is less civilized than a society that deals with thievery in a less brutal and violent manner. So with murder. The end of electrocution marks an advance for any civilization.
The Supreme Court, however, is a judicial not a civilizing body. Justice Scalia was right to tell abolitionists (in Stanford) that “the audience for these arguments…is not this court but the citizenry of the United States.” In a democracy, it is not the function of the Supreme Court to create new standards of decency. That is a job for the people.
If the people want to abolish capital punishment, they have only to go to their legislatures and do it. If they want to keep capital punishment but ban it for the mentally retarded, they can do that too. Georgia did.
The director of the National Coalition to Abolish the Death Penalty complained that the justices “are clearly not taking the lead on this issue; they are following.” Precisely. The purpose of the court is to interpret the law, not lead the people. Its last great experience with leading—i.e., legislating—was Roe v. Wade. The court and the country have yet to recover.
The Washington Post, June 30, 1989
Every once in a while a great, conflicted country gets an insoluble problem exactly right. Such is the Supreme Court’s ruling this week on affirmative action. It upheld a Michigan referendum prohibiting the state from discriminating either for or against any citizen on the basis of race.
The Schuette ruling is highly significant for two reasons: its lopsided majority of six to two, including a crucial concurrence from liberal Justice Stephen Breyer, and, even more important, Breyer’s rationale. It couldn’t be simpler. “The Constitution foresees the ballot box, not the courts, as the normal instrument for resolving differences and debates about the merits of these programs.”
Finally. After 36 years since the Bakke case, years of endless pettifoggery—parsing exactly how many spoonfuls of racial discrimination are permitted in exactly which circumstance—the court has its epiphany: Let the people decide. Not our business. We will not ban affirmative action. But we will not impose it, as the Schuette plaintiffs would have us do by ruling that no state is permitted to ban affirmative action.
The path to this happy place has been characteristically crooked. Eleven years ago, the court rejected an attempt to strike down affirmative action at the University of Michigan law school. The 2003 Grutter decision, as I wrote at the time, was “incoherent, disingenuous, intellectually muddled and morally confused”—and exactly what the country needed.
The reasoning was a mess because, given the very wording of the Equal Protection Clause (and of the Civil Rights Act), justifying any kind of racial preference requires absurd, often comical linguistic contortions. As Justice Antonin Scalia put it in his Schuette concurrence, even the question is absurd: “Does the Equal Protection Clause…forbid what its text plainly requires?” (i.e., colorblindness).
Indeed, over these four decades, how was “equal protection” transformed into a mandate for race discrimination? By morphing affirmative action into diversity and declaring diversity a state purpose important enough to justify racial preferences.
This is pretty weak gruel when compared with the social harm inherent in discriminating by race: exacerbating group antagonisms, stigmatizing minority achievement and, as documented by Thomas Sowell, Stuart Taylor and many others, needlessly and tragically damaging promising minority students by turning them disproportionately into failures at institutions for which they are unprepared.
So why did I celebrate the hopelessly muddled Grutter decision, which left affirmative action standing?
Because much as I believe the harm of affirmative action outweighs the good, the courts are not the place to decide the question. At its core, affirmative action is an attempt—noble but terribly flawed, in my view—at racial restitution. The issue is too neuralgic, the history too troubled, the ramifications too deep to be decided on high by nine robes. As with all great national questions, the only path to an enduring, legitimate resolution is by the democratic process.
That was the lesson of Roe v. Wade. It created a great societal rupture because, as Ruth Bader Ginsburg once explained, it “halted a political process that was moving in a reform direction and thereby, I believe, prolonged divisiveness and deferred stable settlement of the [abortion] issue.” It is never a good idea to take these profound political questions out of the political arena. (Regrettably, Ginsburg supported the dissent in Schuette, which would have done exactly that to affirmative action, recapitulating Roe.)
Which is why the 2003 Grutter decision was right. Asked to abolish affirmative action—and thus remove it from the democratic process—the court said no.
The implication? The people should decide.
The people responded accordingly. Three years later, they crafted a referendum to abolish race consciousness in government action. It passed overwhelmingly, 58% to 42%.
Schuette completes the circle by respecting the constitutionality of that democratic decision. As Justice Anthony Kennedy wrote in the controlling opinion: “This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it.”
And as Breyer wrote: “The Constitution permits, though it does not require…race-conscious programs.” Liberal as he is, Breyer could not accept the radical proposition of the Schuette plaintiffs that the Constitution demands—and cannot countenance a democratically voted abolition of—racial preferences.
This gives us, finally, the basis for a new national consensus. Two-thirds of the court has just said to the nation: For those of you who wish to continue to judge by race, we’ll keep making Jesuitical distinctions to keep the discrimination from getting too obvious or outrageous. If, however, you wish to be rid of this baleful legacy and banish race preferences once and for all, do what Michigan did. You have our blessing.
The Washington Post, April 25, 2014
For all the fury and fistfights outside the Lansing Capitol, what happened in Michigan this week was a simple accommodation to reality. The most famously unionized state, birthplace of the United Auto Workers, royalty of the American working class, became right-to-work.
It’s shocking, except that it was inevitable. Indiana went that way earlier this year. The entire Rust Belt will eventually follow because the heyday of the sovereign private-sector union is gone. Globalization has made splendid isolation impossible.
The nostalgics look back to the immediate postwar years when the UAW was all-powerful, the auto companies were highly profitable and the world was flooded with American cars. In that Golden Age, the UAW won wages, benefits and protections that were the envy of the world.
Today’s angry protesters demand a return to that norm. Except that it was not a norm but a historical anomaly. America, alone among the great industrial powers, emerged unscathed from World War II. Japan was a cinder, Germany rubble and the allies—beginning with Britain and France—an exhausted shell of their former imperial selves.
For a generation, America had the run of the world. Then the others recovered. Soon global competition—from Volkswagen to Samsung—began to overtake American industry that was saddled with protected, inflated, relatively uncompetitive wages, benefits and work rules.
There’s a reason Detroit went bankrupt while the southern auto transplants did not. This is not to exonerate incompetent overpaid management that contributed to the fall. But clearly the wage, benefit and work-rule gap between the unionized North and the right-to-work South was a major factor.
President Obama railed against the Michigan legislation, calling right-to-work “giving you the right to work for less money.” Well, there is a principle at stake here: A free country should allow its workers to choose whether to join a union. Moreover, it is more than slightly ironic that Democrats, the fiercely pro-choice party, reserve free choice for aborting a fetus while denying it for such matters as choosing your child’s school or joining a union.
Principle and hypocrisy aside, however, the president’s statement has some validity. Let’s be honest: Right-to-work laws do weaken unions. And de-unionization can lead to lower wages.
But there is another factor at play: having a job in the first place. In right-to-work states, the average wage is about 10% lower. But in right-to-work states, unemployment also is about 10% lower.
Higher wages or lower unemployment? It is a wrenching choice. Although, you would think that liberals would be more inclined to spread the wealth—i.e., the jobs—around, preferring somewhat lower pay in order to leave fewer fellow workers mired in unemployment.
Think of the moral calculus. Lower wages cause an incremental decline in one’s well-being. No doubt. But for the unemployed, the decline is categorical, sometimes catastrophic—a loss not just of income but of independence and dignity.
Nor does protectionism offer escape from this dilemma. Shutting out China and the others deprives less well-off Americans of access to the kinds of goods once reserved for the upper classes: quality clothing, furnishings, electronics, durable goods—from the Taiwanese-manufactured smartphone to the affordable, highly functional Kia.
Globalization taketh away. But it giveth more. The net benefit of free trade has been known since, oh, 1817. (See David Ricardo and the Law of Comparative Advantage.) There is no easy parachute from reality.
Obama calls this a race to the bottom. No, it’s a race to a new equilibrium that tries to maintain employment levels, albeit at the price of some modest wage decline. It is a choice not to be despised.
I have great admiration for the dignity and protections trade unionism has brought to American workers. I have no great desire to see the private-sector unions defenestrated. (Like FDR, Fiorello La Guardia and George Meany, however, I don’t extend that sympathy to public-sector unions.)
But rigidity and nostalgia have a price. The industrial Midwest is littered with the resulting wreckage. Michigan most notably, where its formerly great metropolis of Detroit is reduced to boarded-up bankruptcy by its inability and unwillingness to adapt to global change.
It’s easy to understand why a state such as Michigan would seek to recover its competitiveness by emulating the success of Indiana. One can sympathize with those who pine for the union glory days, while at the same time welcoming the new realism that promises not an impossible restoration but desperately needed—and doable—recalibration and recovery.
The Washington Post, December 14, 2012
Given their arrogance, pomposity and habitual absurdities, it is hard not to feel a certain satisfaction with the comeuppance that Brexit has delivered to the unaccountable European Union bureaucrats in Brussels.
Nonetheless, we would do well to refrain from smug condescension. Unity is not easy. What began in 1951 as a six-member European Coal and Steel Community was grounded in a larger conception of a united Europe born from the ashes of World War II. Seven decades into the postwar era, Britain wants out and the EU is facing an existential crisis.
Yet where were we Americans seven decades into our great experiment in continental confederation, our “more perfect union” contracted under the Constitution of 1787? At Fort Sumter.
The failure of our federal idea gave us civil war and 600,000 dead. And we had the advantage of a common language, common heritage and common memory of heroic revolutionary struggle against a common (British) foe. Europe had none of this. The European project tries to forge the union of dozens of disparate peoples, ethnicities, languages and cultures, amid the searing memories of the two most destructive wars in history fought among and against each other.
The result is the EU, a great idea badly executed. The founding motive was obvious and noble: to reconcile the combatants of World War II, most especially France and Germany, and create conditions that would ensure there could be no repetition. Onto that was appended the more utopian vision of a continental superstate that would once and for all transcend parochial nationalism.
That vision blew up with Brexit on June 23. But we mustn’t underestimate the significance, and improbability, of the project’s more narrow, but still singular, achievement—peace. It has given Europe the most extended period of internal tranquility since the Roman Empire. (In conjunction, of course, with NATO, which provided Europe with its American umbrella against external threat.)
Not only is there no armed conflict among European states. The very idea is inconceivable. (Fighting among the various nations has been subcontracted to soccer hooligans.) This on a continent where war had been the norm for a millennium.
Give the EU its due. Despite its comical faux-national paraphernalia of flag, anthem and useless parliament, it has championed and advanced a transnational idea that has helped curb the nationalist excesses that culminated in two world wars.
Advanced not quite enough, however. Certainly not enough to support its disdainful, often dismissive, treatment of residual nationalisms and their democratic expressions. Despite numerous objections by referendums and parliaments, which it routinely either ignored or circumvented, the EU continued its relentless drive for more centralization, more regulation and thus more power for its unelected self.
Such high-handed overriding of popular sentiment could go on only so long. Until June 23, 2016, to be precise.
To be sure, popular sentiment was rather narrowly divided. The most prominent disparity in the British vote was generational. The young, having grown up in the new Europe, are more comfortable with its cosmopolitanism and have come to expect open borders, open commerce and open movement of people. They voted overwhelmingly—by three to one—to Remain. Leave was mainly the position of an older generation no longer willing to tolerate European assaults on British autonomy and sovereignty.
Understandably so. Here is Britain, inventor of the liberal idea and home to the mother of parliaments, being instructed by a bunch of pastry-eating Brussels bureaucrats on everything from the proper size of pomegranates to the human rights of terrorists.
Widely mentioned, and resented, was the immigration directive to admit other EU citizens near-automatically. But what pushed the Leave side over the top was less policy than primacy. Who runs Britain? Amazingly, about half of the laws and regulations that govern British life today come not from Westminster but from Brussels.
Brexit was an assertion of national sovereignty and an attempt, in one fell swoop, to recover it.
There is much to admire in that impulse. But at what cost? Among its casualties may be not just the European project (other exit referendums are already being proposed) but possibly the United Kingdom itself. The Scots are already talking about another vote for independence. And Northern Ireland, which voted to remain in the EU, might well seek to unite with the Republic.
Talk about a great idea executed badly. In seeking a newly sovereign United Kingdom, the Brits might well find themselves having produced a little England.
The Washington Post, July 1, 2016
Having coined Bush Derangement Syndrome more than a decade ago, I feel authorized to weigh in on its most recent offshoot. What distinguishes Trump Derangement Syndrome is not just general hysteria about the subject, but additionally the inability to distinguish between legitimate policy differences on the one hand and signs of psychic pathology on the other.
Take President Trump’s climate-change decision. The hyperbole that met his withdrawal from the Paris agreement—a traitorous act of war against the American people, America just resigned as leader of the free world, etc.—was astonishing, though hardly unusual, this being Trump.
What the critics don’t seem to recognize is that the Paris agreement itself was a huge failure. It contained no uniform commitments and no enforcement provisions. Sure, the whole world signed. But onto what? A voluntary set of vaporous promises. China pledged to “achieve the peaking of [carbon dioxide] emissions around 2030.” Meaning that they rise for another 13 years.
The rationale, I suppose, is that developing countries like India and China should be given a pass because the West had a two-century head start on industrialization.
I don’t think the West needs to apologize—or pay—for having invented the steam engine. In fact, I’ve long favored a real climate-change pact, strong and enforceable, that would impose relatively uniform demands on China, India, the United States, the European Union and any others willing to join.
Paris was nothing but hot air. Withdrawing was a perfectly plausible policy choice (the other being remaining but trying to reduce our carbon dioxide-cutting commitments). The subsequent attacks on Trump were all the more unhinged because the president’s other behavior over the past several weeks provided ample opportunity for shock and dismay.
It’s the tweets, of course. Trump sees them as a direct, “unfiltered” conduit to the public. What he doesn’t quite understand is that for him—indeed, for anyone—they are a direct conduit from the unfiltered id. They erase whatever membrane normally exists between one’s internal disturbances and their external manifestations.
For most people, who cares? For the president of the United States, there are consequences. When the president’s id speaks, the world listens.
Consider his tweets mocking the mayor of London after the most recent terrorist attack. They were appalling. This is a time when a president expresses sympathy and solidarity—and stops there. Trump can’t stop, ever. He used the atrocity to renew an old feud with a minor official of another country. Petty in the extreme.
As was his using London to support his misbegotten travel ban, to attack his own Justice Department for having “watered down” the original executive order (ignoring the fact that Trump himself signed it) and to undermine the case for it just as it goes to the Supreme Court.
As when he boasted by tweet that the administration was already doing “extreme vetting.” But that explodes the whole rationale for the travel ban—that a 90-day moratorium on entry was needed while new vetting procedures were developed. If the vetting is already in place, the ban has no purpose. The rationale evaporates.
And if that wasn’t mischief enough, he then credited his own interventions in Saudi Arabia for the sudden squeeze that the Saudis, the UAE, Egypt and other Sunni-run states are putting on Qatar for its long-running dirty game of supporting and arming terrorists (such as the Muslim Brotherhood and Hamas) and playing footsie with Iran.
It’s good to see our Sunni allies confront Qatar and try to bring it into line. But why make it personal—other than to feed the presidential id? Gratuitously injecting the US into the crisis taints the endeavor by making it seem an American rather than an Arab initiative and turns our allies into instruments of American designs rather than defenders of their own region from a double agent in their midst.
And this is just four days’ worth of tweets, all vainglorious and self-injurious. Where does it end?
The economist Herb Stein once quipped that “if something cannot go on forever, it will stop.” This really can’t go on, can it? But it’s hard to see what, short of a smoking gun produced by the Russia inquiry, actually does stop him.
Trump was elected to do politically incorrect—and needed—things like withdrawing from Paris. He was not elected to do crazy things, starting with his tweets. If he cannot distinguish between the two, Trump Derangement Syndrome will only become epidemic.
The Washington Post, June 9, 2017
Among the many unintended legacies of Barack Obama, one has gone largely unnoticed: the emergence of a novel form of resistance to executive overreach, a check and balance improvised in reaction to his various presidential power grabs.
It’s the revolt of the state attorneys general, banding together to sue and curb the executive. And it has outlived Obama.
Normally one would expect Congress to be the instrument of resistance to presidential trespass. But Congress has been supine. The Democrats in particular, approving of Obama’s policy preferences, allowed him free rein over Congress’ constitutional prerogatives.
Into that vacuum stepped the states. Florida and 12 others filed suit against Obamacare the day it was signed. They were later joined by 13 more, making their challenge the first in which a majority of states banded together to try to stop anything.
They did not always succeed, but they succeeded a lot. They got Obamacare’s forced Medicaid expansion struck down, though Obamacare as a whole was upheld. Later, a majority of states secured stays for two egregious EPA measures. One had given the feds sovereignty over the generation and distribution of electricity (the Clean Power Plan), the other over practically every ditch and pond in America (the waters of the United States rule).
Their most notable success was blocking Obama’s executive order that essentially would have legalized four million illegal immigrants. “If Congress will not do their job, at least we can do ours,” said Obama. Not your job, said the courts.
Democrats noticed. And now with a Republican in the White House, they’ve adopted the technique. Having lost control of Congress, they realize that one way to curb presidential power is to go through the states. They just did on President Trump’s immigration ban. Taking advantage of the courts’ increased willingness to grant standing to the states, Washington and Minnesota got a district court to issue an injunction against Trump’s executive order and got it upheld by the Ninth Circuit. Where the ban died.
A singular victory. Democratic-run states will be emboldened to join together in opposing Trump administration measures issuing from both the agency rulings (especially EPA and the Education Department) and presidential executive orders.
Is this a good thing? Regardless of your party or policy preferences, you must admit we are witnessing a remarkable phenomenon: the organic response of a constitutional system in which the traditional barriers to overreach have atrophied and a new check and balance emerges almost ex nihilo.
Congress has allowed itself to become an increasingly subordinate branch. Look at how reluctant Congress has been to even consider a new authorization for the use of force abroad, an area in which, constitutionally, it should be dominant. Look at today’s GOP Congress, having had years to prepare to govern, now appearing so tentative, almost paralyzed. “Many Republican members,” reports the Washington Post, “are eager for Trump to provide clear marching orders.” The president orders, Congress marches—that is not how the Founders drew it up.
Hence the state attorneys general rise to check the president and his functionaries. This is good.
Not because it necessarily produces the best policy outcomes. It often doesn’t.
Not because judicial grants of standing are always correct. The Ninth Circuit, in effect, granted Minnesota and Washington standing to represent the due process rights of Yemeni nationals who’ve never set foot in the United States—an imaginary harm to states that presupposes imaginary rights for Yemenis.
And not because it’s necessarily good for the judicial system to acquire, through this process, yet more power. This really should be adjudicated by the elected branches. Problem is: Congress has abdicated.
Nonetheless, the revolt of the attorneys general is to be celebrated. It is a reassuring sign of the creativity and suppleness of the American Constitution, of its amphibian capacity to grow a new limb when an old one atrophies.
This is, of course, not the first time the states have asserted themselves against federal power. There was Fort Sumter, 1861, when the instruments employed were rather more blunt than the multistate lawsuit. All the more reason to celebrate this modern device.
I’m sure conservatives won’t like many of the outcomes over the next four years, just as many liberals deeply disapproved of the Obama-blocking outcomes of the recent past.
The point, however, is not outcome but process. Remarkably, we have spontaneously developed a new one—to counter executive willfulness. There’s a reason that after two and a half centuries the French are on their Fifth Republic and we are still on our first.
The Washington Post, March 3, 2017
Under the big gray cloud, amid the general gloom, allow me to offer a ray of sunshine. The last two months have brought a pleasant surprise: Turns out the much feared, much predicted withering of our democratic institutions has been grossly exaggerated. The system lives.
Let me explain. Donald Trump’s triumph last year was based on a frontal attack on the Washington “establishment,” that all-powerful, all-seeing, supremely cynical, bipartisan “cartel” (as Ted Cruz would have it) that allegedly runs everything. Yet the establishment proved to be Potemkin empty. In 2016, it folded pitifully, surrendering with barely a fight to a lightweight outsider.
At which point, fear of the vaunted behemoth turned to contempt for its now-exposed lassitude and decadence. Compounding the confusion were Trump’s intimations of authoritarianism. He declared “I alone can fix it” and “I am your voice,” the classic tropes of the demagogue. He unabashedly expressed admiration for strongmen (most notably, Vladimir Putin).
Trump had just cut through the grandees like a hot knife through butter. Who would now prevent him from trampling, caudillo-like, over a Washington grown weak and decadent? A Washington, moreover, that had declined markedly in public esteem, as confidence in our traditional institutions—from the political parties to Congress—fell to new lows.
The strongman cometh, it was feared. Who and what would stop him?
Two months into the Trumpian era, we have our answer. Our checks and balances have turned out to be quite vibrant. Consider:
1. The courts.
Trump rolls out not one but two immigration bans, and is stopped dead in his tracks by the courts. However you feel about the merits of the policy itself (in my view, execrable and useless but legal) or the merits of the constitutional reasoning of the Ninth Circuit Court of Appeals (embarrassingly weak, transparently political), the fact remains: The president proposed and the courts disposed.
Trump’s pushback? A plaintive tweet or two complaining about the judges—that his own Supreme Court nominee denounced (if obliquely) as “disheartening” and “demoralizing.”
2. The states.
Federalism lives. The first immigration challenge to Trump was brought by the attorneys general of two states (Washington and Minnesota) picking up on a trend begun during the Barack Obama years when state attorneys general banded together to kill his immigration overreach and the more egregious trespasses of his Environmental Protection Agency.
And beyond working through the courts, state governors—Republicans, no less—have been exerting pressure on members of Congress to oppose a Republican president’s signature health-care reform. Institutional exigency still trumps party loyalty.
3. Congress.
The Republican-controlled Congress (House and Senate) is putting up epic resistance to a Republican administration’s health-care reform. True, that’s because of ideological and tactical disagreements rather than any particular desire to hem in Trump. But it does demonstrate that Congress is no rubber stamp.
And its independence extends beyond the perennially divisive health-care conundrums. Trump’s budget, for example, was instantly declared dead on arrival in Congress, as it almost invariably is regardless of which party is in power.
4. The media.
Trump is right. It is the opposition party. Indeed, furiously so, often indulging in appalling overkill. It’s sometimes embarrassing to read the front pages of the major newspapers, festooned as they are with anti-Trump editorializing masquerading as news.
Nonetheless, if you take the view from 30,000 feet, better this than a press acquiescing on bended knee, where it spent most of the Obama years in a slavish Pravda-like thrall. Every democracy needs an opposition press. We damn well have one now.
Taken together—and suspending judgment on which side is right on any particular issue—it is deeply encouraging that the sinews of institutional resistance to a potentially threatening executive remain quite resilient.
Madison’s genius was to understand that the best bulwark against tyranny was not virtue—virtue helps, but should never be relied upon—but ambition counteracting ambition, faction counteracting faction.
You see it even in the confirmation process for Neil Gorsuch, Trump’s supremely qualified and measured Supreme Court nominee. He’s a slam dunk, yet some factions have scraped together a campaign to block him. Their ads are plaintive and pathetic. Yet I find them warmly reassuring. What a country—where even the vacuous have a voice.
The anti-Trump opposition flatters itself as “the resistance.” As if this is Vichy France. It’s not. It’s 21st-century America. And the good news is that the checks and balances are working just fine.
The Washington Post, March 24, 2017