Bloodless Coup

If you read through the comments following Drum's post, a theme emerges about the courts. It's a theme that I have had a half formed blog about for some time now. There are two things there that strike me. One, that on the right, there is a widespread view that the courts are illegitimate and two, that this election is the "biting in the butt" of liberals that comes from them trying to legislate from the bench. There are so many things wrong with this it's hard to prioritize, and I really do want to write the post, so I won't completely tip my hand here. But, with all the discussion of whether "this" issue (gay marriage) or "that" issue (evangelicals) was responsible, I cannot believe that more people on the left have not recognized the (successful) widespread grassroots campaign to undermine the courts of the United States. I think we might be missing the forest for the trees on a very fundamental shift in views about checks and balances, as well as the legitimacy of the United States government.

Well, yeah, but that's been true ever since all the anti-Warren Court stuff went down decades ago. It's no coicidence that the two US Appeals Court judges Bush gave recess appointements to were from Mississippi and Alabama. Which isn't to say it's a good thing. But it was going on long before Zell Miller's speech in New York.

Hmmm, I'm thinking more than this, and wasn't even thinking about Zell. Not that I disagree with you.

binky, i'll await your post with bated breath, and observe only that i was terribly irritated and somewhat surprised by volokh's post on this topic. whether and how to read a state constitution is a prerogative solely of the supreme court of that state. whether what massachussets found in its constitution is express or implied has nothing to do with it. indeed, one might hold that textualism or originalism is the right approach to the united states constitution -- which creates a government of enumerated and thus limited powers -- and still express no opinion about whether a state court also should apply a rigidly formal approach to interpretation of its own constitution. textualism is not a god-conferred principle of jurisprudence, and indeed it's not itself articulated in the very document to which it's supposed to apply (an irony that's lost on many); it's one option among myriad possibilities, from among which each state gets to choose without interference from those outside the state. as knowledgeable as volokh is, i question his, and many other commentators' (and especially the bush administration's) arrogating the authority to speak to a matter that concerns only the people of massachussets and their government. their state government.

a further non sequitur in all of this is that the united states supreme court often refers to the states as 'laboratories of democracy' -- either literally or by implication. thus, for example, the evolving standards of decency approach to eighth amendment questions which led to permitting the execution of the mentally disabled in the eighties, but then led the court to bar it when, over two decades, a strong majority trend emerged in the states against the practice. standards of decency evolved, in short, and the court felt duty-bound to recognize this change. but you can't have a laboratory of democracy in the states if you're constantly sneaking in in the dead of night stealing their erlenmeyer flasks and bunsen burners. that's why amendments institutionalizing negative rights -- as expressed in the FMA -- should be anathema to a free people and to a republic; and that it's anathemic is why our government has never ratified an anti-right amendment before, except debatably with prohibition, and we know how that ended.

i would expect from volokh a more nuanced recognition of the various powers in play in the rhetoric of the right that are largely unacknowledged by its most outspoken avatars.

anyway, i'm intrigued by your idea, binky, and i'll reserve further comment until you've turned it into a robust post.

I'm a bit confused about the subject on this post. Are we arguing about what cost Kerry the election, or are we discussing what role the courts have in this government? The two are more-or-less separate issues. While I agree that the gay marriage issue was an issue in the election, I don't really think you can reduce $1 billion in spending and 120 million votes down to a single point. Bush ran a fairly dirty campaign, painting Kerry as weak on values and leadership - those are where Bush got his votes. Gay marriage was one part of that, but not the only, and I don't think even the most part of that.

A better question is: why is it that presidential elections are always fought on Republican terms (values, leadership, vision) and never on Democratic terms (rich/poor divide, rights, diversity). The Republicans have generally won because the elections have generally been "about" issues they are strong on. Why does the electorate ignore the Democratic issues?

at least as the debate has been framed during my political memory, values and vision have been paper to "democrat" issues' rock.

this country is suspicious of intellectual elites, but envious of financial and entertainment elites. everybody wants to be rich; not everyone wants to be a senator.

people think in simple terms about complex issues beyond their ken, and who can blame them -- they work more hours than ever for relatively less remuneration than in decades while the expense of raising their families simply increases. keep it simple is what republicans have done, by appealing to the electorate's gut, while democrats continue to try to reason their way into america's heart.

in that sense, the scandalous discussion in suskind's send-up of the bush admin regarding the "reality-based community" makes sense; you don't need members of the educated and empirically minded to win, as this election made clear.

the bottom line is this country is profoundly religious, for better or worse, and it's odd that democrats haven't figured out that the faithful who lack a background in constitutional law don't separate church and state in their minds, anymore than they do religion and family. here's the emblematic question: have you ever reasoned your way to victory, one on one, with a truly religious person on a topic on which his or her religion bears?

and yet on a national level that's what democrats keep trying to do. that was fine 30 years ago, during a surge in secularism, but it's not fine now with the electorate trending the other way.

(this all is very tendentious, i know. i'm sure i've left myself vulnerable to attack on any number of hidden premises. i look forward to losing.)

"Are we arguing about what cost Kerry the election, or are we discussing what role the courts have in this government? The two are more-or-less separate issues."

We were arguing about what cost Kerry the election, and I was trying to make the point that all this business about values and gay marriage has a root to a fundamental value shift about US democracy. I commented about it a little here, but I also think that at the grassroots, especially among the conservative base, there has been a substantial amount of preaching about the evils of the courts. Rather than being seen as part of checks and balances, etc (I can let Joshua fill in the blanks here about all the good stuff the courts are supposed to do) there is a message out there, that I believe has a stronger hold than a lot of people even recognize (because they don't go into red america? because they don't listen to evangelical sermons?). And i think this message is tied more closely to these key election issues than we think. It's flaming up around gay marriage, but I think it broader and deeper, and more threatening.

it makes sense, if you think about it. courts are constitutional, and instrumental in a working democracy, but they are themselves anti-democratic, just as the anti-majoritarian aspects of a constitution are, in principle, instrumental but anti-democratic.

a triumphant majority with core beliefs that are evangelical and prescriptive in nature is bound to dislike anything that precludes its imposition of its beliefs through majoritarian means. that means it must be anti-constitutional (albeit tacitly), especially insofar as the group's core beliefs are theological and the constitution expressly calls for separation of church and state. while this outspoken and prescriptive majority can on its own see to the installation of a friendly, or at least cowed, legislature, it can't directly impact the courts, at least not with the same alacrity and uniform success. so instead, it attempts to impose its will by shaming, through rhetoric, by undermining and thus emasculating the courts in the eyes of the public (because while there's little in the way of direct means an electorate can do to change the courts, the idea that judges are unaware of the degree of legitimacy they are thought to possess by the population is absurd on its face and defied by history).

don't forget that in marbury v. madison, where the Court affirmed its role as the interpreter of the law, it reached a verdict that was fundamentally diplomatic (in effect, saying, we can do all sorts of crazy stuff here, but don't worry, we won't, not this time), because it knew to do otherwise might lead to a reflexive rejection of its authority. and the preservation, and longevity, of that authority was more important to it, and to the country, than the outcome of any one case.

but to simplify what i'm getting at, legislatures can't be trusted to protect minorities. if they could, there wouldn't be any need for constitutions. but constitutions that protect against tyrannical majorities need arbiters and interpreters to have life, hence the courts. in the face of an evangelical and prescriptive majority, courts are the enemy, because when 60% of the electorate is, e.g., clamoring to deny the right to interracial marriage, only the courts are sufficiently insulated from partisan pressure to say, "you can't do that."

Lest we forget, as the right was so helpful in reminding us about Clinton, Bush does not have a mandate of the majority of the American people. 51% of 60% of eligible voters round up to 31% of eligible voters. [Here is where the pop-up says "but if you don't vote, you can't complain, so that other 40% doesn't count."] This is why I think it is important not to roll over for those calling for unity behind a conservative revolution (did you see Dr. Dobson quoted in the NYT today?):

"Now comes the revolution," Richard Viguerie, the dean of conservative direct mail, told about a dozen fellow movement stalwarts gathered around a television here, tallying up their Senate seats in the earliest hours of the morning. "If you don't implement a conservative agenda now, when do you?"

and

Dr. James C. Dobson, the founder of Focus on the Family and an influential evangelical Protestant, said he had issued a warning to a "White House operative" who called yesterday morning to thank him for his help.

Dr. Dobson said he told the caller that many Christians believed the country "on the verge of self-destruction" as it abandoned traditional family roles. He argued that "through prayer and the involvement of millions of evangelicals, and mainline Protestants and Catholics, God has given us a reprieve."

"But I believe it is a short reprieve," he continued, adding that conservatives now had four years to pass an amendment banning same-sex marriage, to stop abortion and embryonic stem-cell research, and most of all to remake the Supreme Court. "I believe that the Bush administration now needs to be more aggressive in pursuing those values, and if they don't do it I believe they will pay a price in four years," he said.

yeah, but a supermajority of the population are christian. while only a third identify themselves as evangelical, i'd dare suggest that of the remaining 40% or so non-evangelical christian americans, there are more than a few -- enough to bring evangelicals close to a majority -- who, while themselves not so adamant, sufficiently empathize with evangelical goals to stand by while those goals are pursued by the more outspoken segment of the christian right.

Maybe, but maybe not. If you look at the number you cited from that CNN poll on support for some kind of abortion, etc, that doesn't look like a majority lined up behind the evangelicals. Like Stalin argued about the GOP, the moderate Christians risk getting hijacked by the conservative agenda. But it sounds to me like you think they will go along. I don't know...

i think they did go along.

Will they continue to do so while a "revolutionary" agenda is pursued? Guess it's hopefullness that they won't, but you're probably right.

meet the new boss, same as the old boss.

thing is, the "revolutionary" agenda of tomorrow looks like the agenda of yesterday, which was just ringingly endorsed. yes, i know, 51% and so on, but it's a more ringing endorsement than they received in 2000, especially in the house and senate, and not only does that speak prospectively to what they can do, it speaks retrospectively regarding the nation's majority approbation of what has been done.

since i see in the next four years at most a greater degree of aggressiveness in pursuing what the administration and well-heeled congress pursued for the past four years with a great deal of success, i can only imagine that the path of least resistance will be to keep on keeping on.

i do think there's a chance that after a year or two the free-for-all of the republican primary campaign will informally begin, which will encourage a division between those pretenders with evangelical leanings and those with a memory of what republicanism used to be about. i don't think it's a given that the evangelical wing will win out; it depends on who the candidates are and how they begin to sell themselves. but in two years a lot can happen, and probably will.

to tie this to our prior discussion, i think the irreverent approach to the courts is particularly disturbing given the blurring of the line between executive and legislative prerogatives that is perhaps the most signature and frightening feature of these past two, and probably the next four, years.

on that topic, a new question occurs to me: has any president so cowed the legislature? i mean, it's not like a huge number of republican legislators would actually themselves sponsor the sorts of initiatives and policies spearheaded by the administration; many of them are forced on board because of the blatant arm-twisting and indeed extortionate behavior of the bush admin. i mean, the bushies aren't much more respectful of the partymen and -women than they are of the opposition, when you get right down to it. they've simply beaten many of them into submission with the threat of vicious reprisals, the evidence of which is everywhere (ahem, Valerie Plame, anyone?).

Heaven forbid, but Tom Friedman said something today that I think summarizes some of the discussion we've been having:

Answer: whatever differences I felt with the elder Bush were over what was the right policy. There was much he ultimately did that I ended up admiring. And when George W. Bush was elected four years ago on a platform of compassionate conservatism, after running from the middle, I assumed the same would be true with him. (Wrong.) But what troubled me yesterday was my feeling that this election was tipped because of an outpouring of support for George Bush by people who don't just favor different policies than I do - they favor a whole different kind of America. We don't just disagree on what America should be doing; we disagree on what America is.

I think that one of the signs of the apocalypse is when Friedman says something intelligent. If he is right, that debate is likely to be more divisive than the last four years have seen. Neither side has reached out to the other yet (though it has only been 24 hours since Kerry conceded), but I'll be curious to see whether Bush pushes for reconciliation or compromise. Bush is up against what every other second term President faces: his legacy. He is not runnnig to win in 2008, but running to see that he is remembered well by the country. Pushing the agendy of the evangelicals that elected him is unlikely to get him the legacy, I think. Who leaves the cabinet, and who replaces them, is key, I think.

Well, read between the lines on this:

A day after declaring victory in an especially divisive election, President Bush said at a news conference that "I'll reach out to everyone who shares our goals,'' adding that "I earned capital in this election, and I'm going to spend it.''

i just got the weirdest chill.

Got a link to warm you up, Joshua:

"Montana, one of the reddest states, has a new Democratic governor.

First-time candidates for state legislatures from Hawaii to Connecticut beat incumbent Republicans.

And a record number of us voted to change course—more Americans voted against George Bush than any sitting president in history."

Feeling a little brain-dead today, surfing around and found this in a comment on Crooked Timber:

I would like to suggest that the “current flourishing” has lacked a social justice element because it has been largely driven by individuals—-like Jerry Falwell and Pat Robertson—-who have strongly identified with the Republican Party’s economic agenda. In other words, Christianity—-in the hands of Republicans—-has developed a “moral focus” that selectively ignores the teachings of Jesus that they find…well, a bit unwelcome.

After all, Jesus urged his followers to not concern themselves with their wealth (“…sell all you have…”) and to be wimps when confronting bullies. Republicans find themselves not wanting to follow such teachings because they sense that obeying them could end up threatening their privileged positions in society. So they’ve tended to focus attention on moral “issues” that do not threaten their economic fortunes in any way, like abortion and homosexuality. Republican strategists who have felt some identification with Christianity have simply turned this intuitively sensed “interest” into a weapon that they’ve been able to use in the political arena to advance their economic agenda.

The time has come for Democrats to put Republican Christians on the defensive. The first thing we need to do is accuse them of wrongly suggesting that Jesus would be a Republican if he were a United States citizen today, instead of a Democrat. It is easy to point to specific teachings by Jesus that would clearly define him as a bleeding-heart liberal. Indeed, most Republicans would be quick to describe him as “far to the left” of the majority of Democrats. Did he not teach his followers to give freely of their possessions to others, and to respond to any attack by an enemy from another country with acts of loving kindness? Can there be any doubt that Arnold Schwarzenegger would call him a “Girly Man?”

When the arguments start, Democrats need to point out that it is only logical for us to conclude that Jesus told us which moral issues were the most important to him by the amount of time he spent commenting on them. Which moral issues did he emphasize the most? There is little doubt that he thought it was especially important for his followers to be willing to deny themselves materially if that was what was required in order to obtain the benefit others. He repeated this theme more than once.

We might then want to point out that neither abortion nor homosexuality were addressed by Jesus. Does that omission mean that neither of those practices is wrong? Of course not. But it does strongly suggest that even if it seems obvious to us that Jesus thought homosexuality and abortion were sinful practices, it should also be obvious to us that he didn’t perceive them to be as alarming as the other imperfections he saw within human souls.

If he did think that abortion and homosexuality were more serious “crimes” than failing to love your enemy, then why did he not mention them when he had the chance?

If one examines closely the words that were attributed to Jesus by the authors of the Gospels, there is no evidence that he believed abortion and homosexuality were more offensive than the failure of a rich man to deny himself for the benefit of others. Democrats are clearly justified in believing that they have a stronger claim to a true identification with Jesus than Republicans do.

Doing this would immediately put Republican Christians on the defensive. Whenever they try to defend themselves from the charge of hypocrisy, all Democrats need to do is ask them why it is that they can’t follow Jesus’ teaching re: social justice? Why is it that they are concerning themselves with the motes they see in the eyes of others when they have beams in their own?

Is it because they like to willfully ignore Jesus’ teaching? We need to start publicly pressuring Republican Christians to agree with us that Jesus’ specific teachings on moral issues should be taken more seriously than any advice on other moral topics that followers or predecessors might have expressed at other times.

If we do this in good faith, we will be able to bleed away some of the support that Republican Christians have enjoyed because we will have made it safe for many devout followers to see that one can be a good Christian and also a Good Democrat at the same time. After all, Jesus was just such a man.

Somehow, I am very amused with this whole line of discussion. I mean, on the one hand, this echoes some of our conversations and the ideas that 1) it's OK not to be an evangelical christian republican and 2)such folks do not have a monopoly on Jesus and 3) there is support for non-Republican things in the bible. But, arguing over whether Jesus would be a democrat, well, *sigh*.

i've been thoroughly enjoying a friend's blog and a propos this discussion i recommend you pay it a visit.

he's a reform(ed?) protestant with a thoroughly measured, somewhat left perspective, complemented by a very sober view of the distinction between faith and politics. lately, he has commented relatively often regarding the relevance of his faith -- and of others' faiths -- to the political season, decisions about voting, etc.

unfortunately, he doesn't provide permanent links to his posts, so you just have to visit the above-linked URL and scroll down. among the most interesting posts are the following:

10/27/04 "Bush's Anti-Intellectual Faith"

10/28 "More on Religion and Politics . . ."

10/30/04 both "Freedom and Decency" and "Single Issue Voters"

11/1/04 "Christians and the Environment"

11/5/04 "How Bush Won"