Roe versus Ferguson 19 May 2019.

Almost a third (32 percent) of Americans want the Supreme Court to overturn Roe v. Wade, while almost two-thirds don’t want the Supreme Court to overturn Roe v. Wade.  Seems clear enough as a democratic policy preference.[1]

However, there are intricacies.

First, does life begin at the moment of conception?  If it does, then do those lives deserve legal protection from harm?  If it, doesn’t, then why do women want abortions?  Is there some definable moment when not-life turns to life?  When it gets its own insurance and phone plan?

Plessy v. Ferguson (1896) was “stare decisis” (settled law—just to show I’ve been reading the newspapers, if not law books).  All the same, the Supreme Court overturned this settled law in Brown v. Board of Education (1954).  In the common understanding (which is different from a lawyer’s explanation), the Supreme Court overturned Plessy on the grounds that it did a moral wrong.

If life does begin at the moment of conception, then abortion is a moral wrong disguised as an elective medical procedure.  The Supreme Court could overturn Roe on the same moral grounds that it overturned Plessy.  (Yes, a bunch of judges appointed by Republican presidents would be accused of having wormed and slimed their ways through Senate confirmation votes in order to achieve this end.  Many reasonable people will find that accusation credible.)

Second, what exactly would the Supreme Court overturning Roe v. Wade mean for the law?  Would it return abortion to the pre-Roe status where it was regulated by the states?  Or would it replace the nation-wide right to “choice” with a nation-wide ban on abortions?  If a Supreme Court decision led to a nation-wide ban on abortion, then would the best analogy be to “Scott v. Sandford” (1857)?  That decision held two things.  First, that African-Americans could not be citizens.  Second, that the division of the country into “slave” and “free” areas was unconstitutional.[2]  Slave-holders could go anywhere they wanted, establish their “peculiar institution” anywhere they wanted.  Majority opinion in a democracy (by the standards of that time, not ours) be damned.

Third, ignorance of facts plays a role in current discussions.  Half (50 percent) of Americans are open to curtailing abortion rights to some degree, while 44 percent support at least an integral defense of Roe as it now stands.  “Right to life” advocates appear to have played upon this willingness to curtail, rather than ban, abortions.  The state of Alabama has recently passed a law banning abortions once a heartbeat is detected in a fetus.  Nationally, 50 percent support such a ban.  However, that support dropped to 38 percent when the people being polled are told that physicians’ modern technology can detect a heartbeat at six weeks.  That 12 percent change undoubtedly comes from men who aren’t too familiar with the menstrual cycle and its vagaries or with the psychology of women facing the possibility of an unwanted pregnancy.[3]  When they figure out they’ve been played, they shift position.

A Supreme Court decision endorsed by only one-third of the people and opposed by two-thirds of the people is going to be a problem.

[1] “Poll Watch,” The Week, 24 May 2019, p. 17.

[2] This referred to the “Missouri Compromise” (1821).

[3] Me neither, but I recognize that I’m not.

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The Boston Massacre.

In 1768, the British government sent army troops to Boston, Massachusetts, to support the civil authorities in enforcing unpopular new laws.  The troops were equally unpopular as the laws.  On 5 March 1770, a crowd harassed a lone British sentry posted in the street before Boston’s Old State House.  An officer brought other soldiers to his support.  The crowd grew in size and emotional mobilization.  Long story short: the soldiers fired into the crowd, killing five.  We remember this tragedy as “The Boston Massacre.”

The bloody events came at a moment of intense political polarization in Massachusetts.  The political middle ground had disappeared as the people of Massachusetts divided into a large majority opposed to the policies of the Crown and a minority who supported those policies.  By the end of March, the British soldiers and four civilian employees of the Customs House—who were alleged to have fired into the crowd from the windows of the building—were indicted for murder.

A pamphlet campaign—part of the larger pamphlet war that preceded the American Revolution—told strikingly different stories about the Boston Massacre.  That media war was full of curiosities.  For example, one of the most inflammatory—and untrue—portrayals of the events came in an illustration by Henry Pelham.  The illustration showed the British officer ordering his men to fire into the crowd and a musket fired from a window.  Paul Revere copied that illustration and presented it as his own.  Pelham himself turned into a Loyalist who left Boston with the British troops and the other Loyalists in March 1776.

John Adams, a future signer of the Declaration of Independence and future President of the United States, defended the British soldiers when they were tried for murder.  Adams argued that the soldiers had the right to fight to defend themselves against the mob.  If any of the soldiers were provoked but not actually in danger, then they were guilty of manslaughter.  His argument persuaded the jury.  The officer commanding and six of his men were acquitted; two soldiers were convicted of manslaughter.  They escaped the death penalty by pleading “benefit of clergy” (i.e. they could read and write, which was enough to escape the gallows in literate-deficient colonial America.)  Instead, they were branded.  On the thumb.

The four civilians who were alleged to have fired from within the building were tried later.  All were acquitted and the man who had testified against them was later convicted of perjury.

In retrospect, Adams concluded that “The Part I took in Defence of Cptn. Preston and the Soldiers, procured me Anxiety, and Obloquy enough. It was, however, one of the most gallant, generous, manly and disinterested Actions of my whole Life, and one of the best Pieces of Service I ever rendered my Country. Judgment of Death against those Soldiers would have been as foul a Stain upon this Country as the Executions of the Quakers[1] or Witches[2] anciently.”

I butcher History in this fashion because Deputy Attorney General Rod Rosenstein recently analogized his handling of the Trump-Russia investigation to John Adams’ defending the British soldiers.[3]    The related analogies will suggest themselves.

[1] See: https://en.wikipedia.org/wiki/Boston_martyrs

[2] See: https://en.wikipedia.org/wiki/Salem_witch_trials

[3] Katie Benner, “Rosenstein Answers Critics In an Impassioned Speech,” NYT, 27 April 2019.

My Weekly Reader 6 May 2019.

Surveying the current “winter of our discontent,” one cannot but wonder what turned political differences into polarization.[1]  If we take the Sixties as the starting point, then the story might run something like the following.  John F. Kennedy beat Richard Nixon in the presidential election of 1960 by a razor thin majority.  However, the Kennedy Administration pursued no divisive polices.  Abroad it remained within the mainstream of Cold War foreign policy.  At home, it kept the Civil Rights movement at arm’s length and could not muster legislative support for any other major initiatives.

The assassination of Kennedy brought Lyndon Johnson to the White House.  Johnson seized the opportunity to shift government policy at home and abroad.  Formed by his youthful encounter with poverty and injustice, and a determined supporter of the New Deal, Johnson sought to “complete” the New Deal to address the needs of a different time.  Johnson won passage of the Civil Rights Act (1964), then crushed his Republican rival in the 1964 election.  Secure in victory and backed by a powerful shift to the left in Congress, Johnson’s legislative program created the “Great Society” structures.  Many of these are with us still.[2]

Catastrophically, however, to win election, Johnson had closed off Republican charges that Democrats were soft on Communism by using the Tonkin Gulf incident (or non-cident) to begin committing American ground troops to combat roles in South Vietnam.

Furthermore, no one in Washington foresaw the huge social upheaval when the “Baby Boom” passed through the Sixties.  “Sex and drugs and rock-and-roll,” demonstrations in the streets and on campuses, and the further development of the Civil Rights movement demanded a response.  Many Democrats embraced these causes, while many Republicans reacted against them.  (In California, the backlash made Ronald Reagan—a former Goldwater supporter—governor and a polarizing national political figure.)  The Vietnam War poured fuel on the fire.  Then the Pentagon Papers (1971) and Watergate (1972-1974) created a distrust of Washington.  That distrust fed a longing for “outsiders”: Carter, Reagan, Clinton, Obama, Trump.

These events set the pattern as policy issues have divided Americans.  Abortion, gun control, gay rights and marriage equality, forced busing for school integration and affirmative action, drug policy, taxation, and welfare all became embattled.[3]  There is something to be said on both sides of most of these issues, but now no one is listening to the other side.

What made each of these issues so bitterly divisive has been the conflict between federal and state power.  Most of the Bill of Rights was “incorporated” during the Sixties, while the Warren Court delivered a series of other decisions that rocked state preferences.  Republicans have opposed this universalizing of rights on the grounds that it amounts to an imposition of Democratic beliefs on Republicans by court decisions and executive actions.  The courts themselves are as embattled as the rest of us.  Except those who have checked out in disgust.

[1] For a contrary view to what follows, see: Kevin Kruse and Julian Zelizer, Fault Lines: A History of the United States since 1974 (2019).

[2] Julian Zelizer, “The Fierce Urgency of Now”: Lyndon Johnson, Congress, and the Battle for the Great Society (2015).  Marvelous book.  Excellent scholarship, but written for the “intelligent general public.”

[3] The case of Roy Moore in Alabama is illustrative.  Allegations of sexual misconduct dogged Moore and caused many Republicans to sit out the election, but many other Republicans voted for Moore because his opponent supported “choice”—which is, in their minds, “baby murder.”

Rising Tide.

In the 1840s, two republics contended for power in the southwestern quadrant of North America.  In 1846, Mexico and the United States went to war over the issue.  The United States inflicted a catastrophic defeat on Mexico.  As prize of war, the United States got California, Nevada, Arizona, and New Mexico.  Plus the Republic of Texas was allowed to join the United States.  In 1853, the United States “purchased” the Gadsden Strip from a chastened Mexico.

Until 1924, the United States pursued a policy of “open borders.”[1]  That meant millions of Southern and Eastern Europeans could migrate to the USA.  Big industrial cities in the East and the Midwest filled up.  It also meant that there were no restriction on cross-border movements in the Southwest.  Many Mexicans migrated northward toward the more dynamic economy of the United States.

Then came the Depression, which decreased wages in both Mexico and the United States.[2]  When the United States entered the Second World War, the American economy began a long boom.  Between 1944 and 1966, 5 million “braceros” (Mexican temporary workers) came to the United States.  Not all of them went back.  By 1969 an estimated 540,000 illegal immigrants were working in the United States.  That number increased markedly in the 1970s and 1980s.  The economy of Mexico slumped far more than did that of the neighboring United States.  By 1986, perhaps 3.2 million illegals were living in the United States.  Mostly they were doing work that ordinary American citizens would not do.  Hard, dirty, and for long hours.

In 1979, the Carter Administration (1977-1981) proposed building a border wall.  In contrast, inn1986, the Reagan Administration supported an Immigration Reform and Control Act that granted amnesty to 2.7 million of the illegals.

Under the Bill Clinton and George W. Bush Administrations, it was back to “get tough.”  From a dozen miles of fence between San Diego and Tijuana, the amount of fence grew to 560 miles after 9/11.  In 2000, 1.6 million illegals were caught at or near the border.  Then the Obama Administration added 137 miles of fence for a total of 697 miles of fence on the 1,954 mile-long Mexican-American border.  Purportedly, improvements in the Mexican economy then reduced the migration of Mexicans.[3]  In 2017, the Border Control arrested only 310,000 illegals.   So, triumph without a—full–wall!

The recent border “crisis” arises from different sources.  Many Central American countries are collapsing under the weight of gang violence and mis-government.  Whole families are migrating and presenting themselves as “refugees” at US points-of-entry.

However, people crossing the Sonoran desert is a peripheral issue in so far as illegal immigration is concerned.  In 2017 alone, 700,000 people obtained US tourist visas and then over-stayed their visas.  They just disappeared into the American hinterland.[4]  That is better than half of all the illegals.

Why should Central Americans get priority while Asians, Africans, and Muslims wait?  “It’s a serious question.”  https://www.youtube.com/watch?v=vInFuLgwR1U

[1] From 1882, the United States did try to limit immigration by Asians to the Pacific Coast.

[2] “A history of the southern border,” The Week, 8 February 2019, p. 11.

[3] The huge slump in the American economy—the “Great Recession”—may also have had something to do with it.

[4] This was basically the story with the 9/11 hijackers.

Bus Station.

Back in the day (as my undergrads used to say back in the day) I was in the head in the Greyhound station in like, IDK, Winnemucca, Nevada?  Cold as all get-out.  Riding the bus east from Seattle to Boston after Christmas break.  See: https://www.youtube.com/watch?v=GONmFCkCGCc   Black kid is using the head also.  Then this cowboy staggers in through the swing-door.  Older guy in jeans, boots, sheep-skin lined  jacket, real Stetson.  So, a real cowboy.  His saddle is probably in the luggage compartment under a bus bound for Casper.  He’s holding a fifth of some amber colored fluid and I don’t think it was green tea full of whatever green tea is full of that’s supposed to be good for your health.  OTOH, it’s in a regular “factory whiskey”–as Henry Fonda said in “Grapes of Wrath”–bottle instead of a Mason jar, so you probably won’t wake up two days later, blind and in a culvert.  Anyway, who was I?  Oh, yea.  The cowboy sees the black guy and says “Hey darky, help me get this thing whipped” and holds out his jug.  Black kid is just frozen.  He knows the guy meant it in a friendly way.  He knows that he isn’t going to do some Man-Tan “Nossuh, Ah don’t drink no whiskey” routine.  He knows that he should fight for being called “darky.”  He knows that there isn’t another black person around for 250 miles—unless there’s a train stop and some old porter named Ulysses Grant Weems is aboard.

Once every five years or so, I think about those two guys and wonder how it shook out after I left in embarrassment for all three of us.

 

Curmudgeon Me.

Il y a etait un fois, America had the best democratic public school system in the world, AND the greatest college and university system in the world.  More Americans went farther in education than did people in any other country.  In percentage terms, America had more and better “human capital” than did any other country in the world.  “We cultivated the world’s greatest artists AND the world’s greatest economy.”  https://www.youtube.com/watch?v=q49NOyJ8fNA&t=16s

Then, standardized tests revealed a terrifying decline in American educational attainment.  The generally-accepted, state-mandated, and Federally-funded response took the form of more standardized testing, accountability through assessment, the standardization of delivery models, and the proliferation of rubrics.

Here’s the thing.  When American education led the world, nobody did much standardized testing, nobody did much formal assessment[1], nobody insisted on standardized delivery, and no truly-educated person knew what the word “rubric” meant.  Schools and teachers didn’t do ANY of the things that now are supposed to cure “the prince of our disorders.”  This suggests that the origin of American educational problems lies elsewhere than in the educational system itself.

This applies to the American education reform experience of the last several decades.  Has anyone—other than me—ever been lost in the woods?  The hard-won lessons of millennia in this matter counsel certain behaviors.  First, Stop where you are!  Do not keep going forward!  Do not turn aside to the left hand or to the right to go bush-whacking through the brush!  You will fall over the edge of a cliff, bust your leg, and end up being mauled by some aggrieved Momma-bear.  Second, turn around and head back down the trail that you came up.  Eventually, you will come upon the place where you last knew where you were.  Third, stop in that place, consult your map and compass, and discern where you went wrong.  Fourth, get back on the trail you were supposed to be on before you missed the way-mark because you were looking down at your boots, trying not to trip over roots, when you should have been looking up to notice the white-painted blaze in a tree.

Thus, we need to stop bush-whacking through the educational underbrush.  We need to stop, turn around, and go back to whatever it is we were doing right before the wheels came off.

What was it we used to do when “once we were warrior kings”?  Historians have begun to explore what went wrong since the 1970s.  The early evidence suggests that complex social, economic, and cultural forces combined to wreck the foundations of American educational achievement.  The oil shocks of the 1970s put an end to an already troubled economic boom.  Families stopped valuing education as the pathway to success and stopped supporting the teachers who provided it.  Women’s Liberation took a lot of smart women out of career ghettos in teaching school (and nursing and bank-tellers and secetaries in offices), then replaced them with inferior substitutes.  They stopped buying encyclopedias and stopped subscribing to newspapers and magazines, and stopped taking their children to public libraries.  (Which have now become “social centers” with Ute and yentas grumbling at the top of their lungs.)  Divorces and re-marriages multiplied even though that meant that children had fewer resources and less family-support structures in challenging circumstances.  Trust in any and all institutions (understandably) declined.  (Hard to appreciate where those idiot anti-vaxxers come from otherwise.)  In short, the bourgeois social norms that had raised up individual “achievement” and collective “civilization” (along with its many injustices) went into a death spiral.

It would be un-fair to ask college administrators and faculty leaders at any one college or university to have the testicular fortitude to “rage, rage against the dying of the light.”  So, I’m doing it.

That’s my straw-man.  Knock it to bits.

[1] Although teachers and professors wrote a good deal of commentary in the margins of blue-books and essays.  Less common now because many people just score a rubric.  Leave the student to figure it out on their own.

Just the Facts, Ma’am 2 11 February 2019.

Second, three tax proposals have been offered to raise more revenue from the rich.[1]  Congresswoman Alexandria Ocasio-Cortez has suggested raising the tax on incomes above $10 million from the current 37 percent to 60 or 70 percent.  This would return upper-income tax rates to the level that prevailed during the 1970s.  In the regime of the 1970s, many deductions and exemptions existed which do not exist today.  The effective tax rate on high incomes under the Ocasio-Cortez proposal would be much higher than the one of the 1970s.  However, the top rate in the 1970s applied to the contemporary equivalent of $800,000.

Senator Elizabeth Warren has proposed a “wealth tax,” not merely an income tax.[2]  People with a net worth between $50 million and $1 billion would pay 2 percent per year[3]; people worth more than $1 billion would pay 3 percent per year.[4]  According to the calculations underlying Senator Warren’s proposal, this tax would generate $2.75 trillion over ten years.

The Warren proposal may not be constitutional.  The 16th Amendment to the Constitution created a tax on income, not a tax on all assets.  Apparently, the courts have held that taxes on estates and gifts are excise taxes on the transfer of assets, rather than a tax on the assets themselves.  The tax also might be a logistical nightmare to apply.

Senator Bernie Sanders has proposed revising the estate tax.  Until 2009, the tax applied to estates of more than $3.5 million.  A 2017 tax change raised the threshold for individuals to about $11 million and the threshold for couples to about $22 million, with a standard tax rate of 40 percent.  Senator Sanders would return to the 2009 level of $3.5 million.  In addition, he replaces a single tax rate with multiple rates.  From $3.5 million to $10 million, the rate would be 45 percent; on estates of $1 billion or more, the rate would be 77 percent.

[1] Paul Sullivan, “Taxing the Rich Sounds Easy.  But It’s Not,” NYT, 2 February 2019; Sydney Ember, “Sanders Unveils a Plan To Increase Estate Taxes,” NYT, 1 February 2019.

[2] Senator Bernie Sanders also supports the idea of a wealth tax, if not necessarily Senator Warren’s version of such a tax.

[3] Apparently, there are 39,735 people worth between $50 million and $1 billion in the United States today.

[4] Apparently, there are 680 billionaires in the United States today.