Trapped in the Palace of Cows – Who Killed the GOP?

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Trapped in the Palace of Cows (8:02)

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All eyes are on California. The Republican establishment struggles to keep the Presidential nomination from the most extreme candidate in a generation. A win on the west coast will put him over the top, but he can’t quite put a majority together in that state. For most of the primary season a cadre of moderate candidates has divided the opposition. But now there is only one left, and California looks like it will go for establishment moderation.

That is, until voters are reminded of the long simmering scandal about sex, marriage, and adultery.

The nomination will be decided before the opening of the Republican convention at the famous San Francisco Cow Palace.

It was 1964 and the primary campaign was a little meaner than most of us, even those of us who had been born in time to remember anything, remember about those days. Analogies with that campaign may be easier for some in my generation. Most of today’s voters think of Henry Cabot Lodge as a motel chain.

By June of 1964, everyone had known for a long time that Happy and Nelson Rockefeller had divorced in order to marry each other. But scandals sometimes dim with time. The announcement that Happy was now pregnant was a vivid reminder, and it all came back. Barry Goldwater did not need to press the issue. He went from substantially behind among California Republicans to a resounding victory.

The most conservative of conservatives loved the Senator from Arizona. Voters not in that camp had a different view.

The harsh judgement most Americans formed about Senator Goldwater and his supporters has mellowed since those days. He is now viewed as a principled conservative with moral objections as Soviet hegemony went to brutal dominance. His leadership against civil rights laws is now seen as libertarian opposition to federal statism, not as anything approaching race hatred.

But in those days, he was seen as simply extremist. His opponents were moderates. Extremists are thought of as irrational, moderates are reasonable.

I would remind you that extremism in the defense of liberty is no vice. And let me remind you also that moderation in the pursuit of justice is no virtue.

Senator Barry Goldwater, July 16, 1964

His intemperant statements about nuclear weapons were scary just two years following the Cuban Missile Crisis. Americans were mindful of how close the world had come to thermal nuclear destruction. Goldwater campaigned against American tolerance of Iron Curtain tyranny. The nuclear threat had clouded American morality. Americans, he felt, had an unhealthy fear of death, when the freedom of others was at stake.

It wasn’t just about war and peace. The Republican candidate did not seem to mind the excesses of his supporters.

1964 was the year black Republicans were forced out of the party of Lincoln in Georgia and Tennessee. It had been less than a century since President Lincoln had been killed. For the last half of that century, Tennessee had included black members in every delegation to every national convention. There were no exceptions until the anti-black purge of 1964. The convention accepted an all white delegation from Tennessee.

After the Goldwater defeat in 1964, Republicans underwent a painful reassessment. How could they maintain a principled conservatism without scaring the hell out of Americans, without appearing to be the willing accomplices of the worst parts of the white hooded underside of American history?

Richard Nixon was the unfortunate choice to carry the new banner of reason. Watergate has pretty much overcome any other role Republicans imagined for him. But Nixon’s Southern strategy, his alliance with Dixiecrat Strom Thurmond, began a muted sort of racial politics. An international policy of death squads and overthrow became a semi-open secret, easily denied.

Nixon was a sort of precursor to Ronald Reagan’s more artful adaptation of the same strategy. Much of white America was resentful of the sudden advancement of minority rights. The conservative lexicon had adapted. Racial code words combined with interracial handshakes. Death squads went below radar as nuclear deals dominated headlines.

Democrats faced their own crises after the McGovern wipeout in 1972. How could they hold to a principled line on equal rights and international peace in the face of an angry white electorate frightened by both?

And so it went as it had always gone through history. Political parties strayed away from the electoral center at the cost of votes. Election defeat brought a painful introspection as those at the helm reconciled core principle with core strategy.

Facing the abyss is nature’s way of focusing attention. Political parties pretty much always found their way back toward the center of public opinion.

That historical pattern seemed to stop in 1992, at least for the Republican party. It is worth asking why.

  • Was it the Southern Strategy of President Nixon that set the party on the slow decline into the irresistable whirlpool of racial anger?
     
  • Was it the result of careless elites stoking religious paranoia, as the faithful saw themselves surrounded by an increasingly secular society?
     
  • Was it a conservative elite more loyal to abstraction than the real economic decline of its constituency?
     
  • Or were the undercurrents of xenophobia and tribalism always there, ready to rise like some monster lurking in the depths?

All may be true, to a point. I suggest a neglected answer is simpler.

It was not strategic error, although mistakes were profound. It was not simple religious, racial, and ethnic bigotry, although lost souls do seem incapable of escape from the dark underbelly of American hate.

The Republican Party is caught in a new sociological vortex. It began when non-liberals forced out liberal Republicans. So the party shrank and grew more conservative. The new conservatism meant that conservatives could make life unbearable for moderates. And so the party shrank a little more, and grew yet more conservative. Conservatives who were not extreme enough followed, and now extreme conservatives who consider even talking to Supreme Court nominees have reason to worry. Some will eventually leave voluntarily. Some will hang from electoral scaffolds.

Why now?

Republicans have lost the majority of voters in 5 of the last 6 Presidential elections. Next November does not look promising.

Donald Trump and his sibling rivals differ only in how explicit they choose to be in articulating the same baseline of resentment and hatred. Why is the party not returning to the center?

This generation of conservatives has encountered a new and deadly addiction. It is the comfortable cocoon of technology. Internet and cable alternatives combine with our old friend, talk radio, to offer a new virtual reality. The message is no longer the necessity of reexamination. It doesn’t have to be.

The restraint that was once forced by approaching political abyss is no longer scary. The message of choice is one of comfort. You need not change. You need not even consider changing. Except to become more like you are.

The Republican party will soon be a regional force that will keep shrinking, will keep diving to new extreme depths.

The culprit is hidden in plain sight.
We see it on our desks. We watch it after hours. We hold it while we talk and text.

The Republican Party is dying.
The microchip is the killer.

Resurrection, Brussels, Che, Trump

Listen to the Voices – This Week’s Radio Podcast – 3/26/2016

The Scalia Temptation (7:29)

In interpreting the law, Antonin Scalia followed a rigid version of Original Intent. That version presents a predictable legal temptation, a temptation that eventually swallowed the Supreme court Justice.


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The Scalia Temptation

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In his own words:

Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant.

Justice Antonin Scalia, September 2010

When Supreme Court Justice Antonin Scalia spoke with law professor Calvin Massey about the 14th Amendment, he was still respected as a Constitutional originalist. The Constitution does not change.

There are other ways to interpret the foundation of American law.

The of idea of a “Living Document” is not new. Abraham Lincoln argued that the Constitution was an instrument of national spirit, that it was a codification of the ideals contained in the Declaration of Independence. He held that the Constitution protected certain rights of all people, even if the founders did not see the implication of what they were ratifying.

The 14th Amendment to the Constitution contains a fairly straightforward prohibition. Government at any level is told that it cannot “deny to any person within its jurisdiction the equal protection of the laws.”

Today, most of us would regard that plainest of plain language to be plainly understandable. “Any person” means … well … any and all individuals. Those who in 1868 thought of women as other than persons were, not to put too fine a point on it, mistaken. History and the arc of the moral universe taught us long ago that equal protection of the law includes, for example, the right to own property, a right occasionally denied to women in the nineteenth century.

Conservatives almost uniformly hate the liberal idea of a “Living Constitution,” a framework for which settled principles are applied to new and modern views.

For many years, conservatives held that applying equal protection to women was a modern construct. You might privately think that “any person” would include women and that “equal protection” would include such liberties as the right to own property. And you might be right by today’s standards. But that can be considered by conservatives as an expansion of those words beyond their original meaning.

Those who believe in “Original Intent” might object to that expansion. According to this strain of conservatism, lawmakers who wrote and passed the 14th Amendment to the Constitution intended the words “any person” to mean “any men,” no more no less. And you could discover that intention by carefully examining old transcripts of legislative debate.

Justice Scalia went even a little beyond that. He was not only an originalist, he was a textual originalist. He was not interested in what those who wrote an amendment, or a law, or the Constitution itself, meant by their own words. He would not consider what those who voted for those documents thought they were ratifying. He was interested only in what the text said, and what the words in that text would mean to a reasonable person at the time the Constitution was ratified and, later, when it was amended, or when a law was passed.

According to this logic, reasonable people in 1868 did not think of equality for women as reasonable, and so “equal protection of the laws” for “any person” did not mean that women were equal under the law. And since it did not mean that then, it does not mean that now. At least not as it pertains to the Constitution and its Amendments.

This is a comfortable way of thinking for conservatives. If words and ideas only mean what they meant in centuries past, the law will never serve as a guiding light for the future. Rather it will remain a strong bulwark against progress.

Thus, Justice Scalia could argue against equal protection for gay people with a simple question.

When did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868? When the Fourteenth Amendment was adopted?

But the Scalia standard, how reasonable people at the time of passage would view the text of any law, devolved in his later years.

  • Women who had suffered blatant discrimination on the orders of the top executives of a large corporation sued as a group. The law allowed a group to sue as a class in cases of corporate discriminatory policies. They were told by Justice Scalia that they could not sue collectively. The corporate discrimination was based on verbal instructions. Since there were no written instructions, there was no policy.

    No policy, no suit. Case dismissed.

  • He rejected voting rights as racial entitlement. He reasoned that voting rights protections had been passed by large majorities in Congress. That passage proved racism was no longer a significant threat to voting rights. Therefore the law was not needed and was unconstitutional.

    Passage of the law invalidated the law.

  • He argued that the 8th Amendment prohibition against cruel and unusual punishment did not prohibit torture itself if it was inflicted on someone who was not actually convicted of a crime. If the victim of cruel and unusual treatment had simply been arrested, detained, then there was no violation.

    When he’s hurting you in order to get information from you, you don’t say he’s punishing you. What’s he punishing you for?

    Justice Antonin Scalia,    interviewed by Lesley Stahl April 27, 2008

  • A man who had been falsely accused, then convicted, and who had come within days of execution, was eventually released. He sued the prosecutor for deliberately concealing evidence that would have proven his innocence. If that sort of concealment was a pattern, the prosecutor would be personally liable for his misconduct. In fact, the prosecutor was eventually shown to have concealed evidence in other cases against other innocent people, many people, as well. A lot of innocent folks were sent to prison as a result.

    Antonin Scalia voted against the innocent man, and in favor of prosecutor. You see the prosecutor had concealed different kinds of evidence in each case. So the pattern of concealing evidence was not actually a pattern at all.

There was, however, a discernible pattern in the trajectory of Antonin Scalia’s legal reasoning.

He rejected the modern meaning of old texts, even when that meaning seemed clear, since he thought of modern views as a distortion. He rejected efforts to see what those who wrote and ratified the law meant by the law. He preferred to examine how a reasonable person living at the time would see the law.

Over time, the word “reasonable” evolved into a conservative living word, as Justice Scalia’s reasoning became an endless search for misplaced commas and double entendres.

The inevitable legal temptation proved irresistible.

Antonin Scalia was himself the most reasonable person he had ever known. “Reasonable” became, as it had to become, identical with Scalia’s image of a time-transplanted version of himself. How would he have considered the words contained in legal text, had he lived when laws and amendments were passed?

He was generous in his interpretation, as he searched diligently for the most reasonable way to see the law. He eventually discovered the simplest, most effective way of finding that reasonable view.

He simply consulted the darkest corners of his own soul.