Monday, September 17, 2018

The Lost Summer of William Jennings Bryan-on 3Quarksdaily


He flew so fast and so close to the sun that it took an entire lifetime to fall back to Earth.
William Jennings Bryan was just 36 years old when, on July 9, 1896, he seized the Democratic Party’s Presidential nomination on the back of a single, electrifying speech, “Cross of Gold. Twenty-nine years later almost to the day, a haunted shell of his former self, he sat at the prosecution’s table, waiting for opening arguments in the Scopes Monkey Trial, unaware it would lead to his humiliation and ultimately hasten his tragic end.
In between, “The Great Commoner” was nominated twice more by his party, in 1900 and 1908, and served as Woodrow Wilson’s Secretary of State from 1913 to 1915. He then threw himself into efforts for causes as diverse as women’s suffrage, direct elections for Senators, and Prohibition. In the 1920s, he shifted his primary focus to his faith, but remained a prominent figure among Democrats through the 1924 Convention, when he was literally heckled off the stage in tears while trying to broker a compromise on an anti-KKK platform plank.
Bryan is an enigma. He failed frequently, but got multiple chances where abler men were passed over. Contemporaries questioned his intelligence and the scope of his interests, yet the exacting, often arrogant Wilson put him in his Cabinet and gave him a free hand with Latin American policy. His durability might best be ascribed to his possession of two tremendous assets: First, he was arguably the best orator of his time, compelling almost whenever and wherever he spoke, and, second, he seemed to have a psychic bond with his base. As the historian Richard Hofstadter noted, while other politicians of that era may have sensed the feelings of the people, Bryan embodied them. His people stayed with him through his successes and his disappointments.
There is no modern politician to compare to Bryan, at least no one who would fit into any recognizable political species. But to understand him, even a bit, it’s worth examining a single six-week-long journey he took from Chicago’s Colosseum to New York’s Madison Square Garden in the summer of 1896.
You have to start with The Speech. Myth has it that “The Boy Orator of the Platte” emerged from complete obscurity. This is not true. He had been a Congressman, and a player in the Democratic Party for several years. His allies had been quietly organizing behind the scenes and gathering delegate pledges well before Chicago. But there’s no arguing that he could never have launched his candidacy without the extraordinary performance he gave.

The Speech is worth reading on its own. Theatrics aside, there are potent themes in there. Bryan hammered away at the moral, intellectual, and economic conflicts between labor and capital, and between Wall Street and Main Street. And, as virtually every listener in the hall that day knew, he was right. The deck was stacked against the common man. Unbridled capitalism, turbocharged by abundant political corruption, had ushered in a Gilded Age of huge personal fortunes. Steel, chemicals, railroads, oil and coal, zinc and nickel, meatpacking and banking—if there was money to be made, there were tough men to make it. There was an attitude amongst them that they were the winners in the Social Darwinism race and should therefore be exempt from living by any other man’s rules. Elected officials (properly compensated of course) largely agreed.
The humbler (and virtually everyone was humbler than Vanderbilt, Carnegie, Rockefeller, Stanford, Frick, etc.) didn’t merit quite so many friends in high places. Labor found government willing and even eager to use (or let business use) muscle to keep them in line, and deaf to initiatives like workplace safety regulations, minimum wage, and child-labor laws. Farmers had an entirely different set of challenges: During a time of extended declines in commodity prices and land values, they found themselves hemmed in on one side by tariffs meant to protect domestic manufacturers, and squeezed by monopolistic pricing for machinery, storage, and shipping on the other. The scarcity of hard currency at a time where a bushel of anything bought less each year enhanced the appeal of Bryan’s Free Silver crusade.

The short-lived Populist Party had highlighted some of these issues in 1892, with some modest successes. Their candidate, James Weaver, carried five Western states and received Electoral College votes in a sixth, but there wasn’t yet a critical mass to take the movement national. Then, the Panic of 1893 intensified the hardships of the worker and farmer. Unemployment across the country shot up to crippling levels and farm prices fell yet again. Banks failed, and, with them, the deposits of working and middle-class families evaporated.

Opportunity was there for the right man with the right message, and, when Bryant walked onto that podium in Chicago, he knew it. Using words that are eerily modern, he defined the political universe: “There are two ideas of government. There are those who believe that if you just legislate to make the well-to-do prosperous, that their prosperity will leak through on those below. The Democratic idea has been that if you legislate to make the masses prosperous their prosperity will find its way up and through every class that rests upon it.”

Bryan insisted those masses occupied the same plane as the moguls. He professed to see no difference between the wage earner and his employer, the farmer and the grain trader, and the miner and “the few financial magnates who in a backroom corner the money of the world”—all were businessmen. All were worthy of equal treatment.

If he had built on that, he might very well have stitched together a winning coalition. But, operating with the peculiar myopia that was always to hamper his ambitions, he stumbled. First, he made a tactical mistake—having laid the groundwork for a broad-based attack on inequality, in the next breath he essentially abandoned every other idea to focus on silver as the magic bullet. He then compounded the error by blocking the Vice-Presidential candidacy of a moderate running mate, John W. McLean, who might have brought gravitas (and money) to the ticket. This alienated “Gold” Democrats (roughly one-third of the delegates) who were already a bit dubious about the rest of the platform. Back in William McKinley headquarters, there was considerable celebration.

His second mistake probably came from his gut. Bryan wasn’t really a coalition-builder—he was a man with a messianic sense of purpose and very distinct set of preferences. His heart was with the farmers: “You come to us and tell us that the great cities are in favor of the gold standard. I tell you that the great cities rest upon these broad and fertile prairies. Burn down your cities and leave our farms, and your cities will spring up again as if by magic. But destroy our farms and the grass will grow in the streets of every city in the country.”

It’s the appeal of a purely sectional candidate, made all the more curious because Bryan had planned a whistle-stop rail trip to New York immediately after the Convention to accept his nomination, followed by a swing through New England.

Gaffe followed gaffe. He’s quoted as saying he was traveling East “in order that our cause might be presented first in the heart of what now seems to be the enemy’s country, but what we hope to be our country before the campaign is over.” His opponents pounced, and as much as his defenders (including some historians) claim that “enemy country” was “ripped out of context,” it sticks, particularly because he repeated it.

What happened next were even more unforeseen consequences, unanticipated disasters, and missed opportunities. Bryan’s rail route took him to dozens of cities and towns along the way, and in each one he was expected to give a speech and meet and greet. His voice, that magnificent Gideon’s Trumpet, weakened to barely a whisper. He and his wife Mary’s hands grew so swollen from being grabbed that eventually well-wishers were told not to touch the couple. And, to accentuate the misery, a massive heat wave gripped the country.

Bryan and retinue arrived in Manhattan on August 11th. The city was in no mood to celebrate; rather, it was in the grip of an epic human disaster. Nearly 1500 people died over a 10-day stretch, many small children. The tenements, crammed with immigrants and the working poor, without reliable indoor plumbing, many rooms without windows, without light or air, baked in the sun each day, making them virtually uninhabitable. People fled to fire escapes and roofs, some died in falls when they rolled over in their sleep, or when iron or masonry gave way. The streets were filled with dead horses, too numerous to be carted away before they started to decompose.

In this monumental catastrophe, official New York, in the thrall of Tammany and the monied interests, did virtually nothing. The idea of government intervention on behalf of the suffering poor and working classes seemed ludicrous to them. For days, their only visible presence was that of police shooting dogs and preventing people from sleeping in parks. Two men did jump in, Commissioner of Public Works Charles Collis, who instituted a plan of widespread hosing down of blocks in the poorest neighborhoods, and then-Police Commissioner Theodore Roosevelt, who arranged for the purchase and distribution of blocks of ice to the desperate. But that was it.

It was an astounding example of the very excesses of Capitalism that Bryan had been inveighing against, and an incredible opportunity. But he failed to seize it. Where was he? Giving what was certainly the worst major speech of his life. On August 12th, an estimated 12,000 New Yorkers trooped into sweltering Madison Square Garden to take his measure, and hear him demolish the defenders of the gold standard. They were quickly disappointed. Perhaps it was because of his weakened voice, perhaps it was for tactical reasons (he later said he was convinced the New York newspapers would refuse to report accurately what he said), but he decided to skip his usual extemporaneous, dramatic style, and read something prepared.

Whatever the motivation, it bombed, and after a few minutes, people started filing out. By the time he had finished droning, the Garden was mostly empty. The speech was panned by virtually every newspaper except the Hearst organ New York Journal, which, for business reasons, was an unabashed Bryan supporter. The after-effects were almost immediate. Few people came to the several receptions to meet the nominee—and even fewer of those were people of influence.

Bryan had squandered his best opportunity to convert the doubters, and his team of advisers quickly cancelled the rest of his Northeastern/New England swing. Curiously, no one seemed willing to use the extra time to regain the initiative, have Bryan and Mary visit some of hardest-hit neighborhoods, show compassion for those who official, monied New York seemed all too willing to ignore.

The couple left town for a visit with an old friend of Mary’s, and the moment passed. Bryan’s candidacy never really recovered. Between the “enemy country” remark, his forgettable speech, and his obsession with the Silver issue, he had defined himself as a parochial candidate without a strategy to appeal beyond his base. In November, McKinley swept the Northeast, and won decisively. In a rematch four years later, McKinley would expand his margin, including taking Bryan’s home state of Nebraska. 

Progressivism would have to wait for abler champions with broader visions—people like Robert La Follette and TR. If there was consolation for Bryan, it may have finally come from the tens of thousands of his brethren who lined the funeral train route that brought his body from Tennessee to Arlington Cemetery. He never left his base, and they never left him.

The Lost Summer of William Jennings Bryan, first appeared on 3quarksdaily.com, where it was published on September 17, 2018
https://www.3quarksdaily.com/3quarksdaily/2018/09/the-lost-summer-of-william-jennings-bryan.html 
Michael Liss (Moderate Moderator)
Follow Syncopated Politics on Twitter:  https://twitter.com/SyncPol



Monday, August 20, 2018

Return to The Atomic Cafe--On 3Quarks


Will you know what to do when the atomic bomb drops? 

This question, and others like it, are vividly on display in the 4K restoration of Jayne Loader, Kevin Rafferty, and Pierce Rafferty’s 1982 documentary, The Atomic Café. Having seen the movie when it was first released (my kids’ reaction to this information was “of course you did”) I was determined to return to my roots. But, this being 2018, I took full advantage of technologies not available in the Neolithic Age: I quickly went online and bought two tickets for a night when the filmmakers themselves would be there for a Q&A. Then I fired off a few text messages to friendly liberals of a similar vintage to see who else was going, because you really don’t go to one of these things without a posse.  

I was not to be disappointed.  Six of us converged on the newly renovated, but still decidedly funky Film Forum.  First, my 26-year old son, who spared me the dubious honor of being the only person in the audience in a suit, white shirt, and dark tie (we looked like refugees from a Book of Mormon casting call). Then four of the like-minded, three of whom could be described as gracefully aging hipsters (wearing, respectively, a pair of gray braids, a great-looking gray Van Dyke, and a graying inside out T-shirt) and finally, my pal (and liberal conscience) Melinda.  

I could write books about Melinda, and I should, because there aren’t enough Melindas in the world.  She’s a Yellow Dog Texas Democrat who brought with her to New York an indestructible accent, an odd affinity for driving minivans as basic transportation in a car-unfriendly city, and an inexhaustible capacity for good works. If there was a protest anywhere, Melinda knew about it, probably organized it, and occasionally got arrested for it. There are still places that are off-limits to her, for a variety of Deep State-ish reasons. Greenwich Village, of course, is not one of them. Melinda is the genuine article.

But I digress. The movie is the thing you came to see, and the movie is what you should get.

It opens with the first A-bomb tests in the New Mexico desert, and, with those blasts, you notice something different: No narration. The filmmakers spent five years reviewing material at the National Archives, and one of the very smart choices they made was to let the original footage speak for itself. This isn’t some Comedy Central mashup. It’s a serious film that trusts itself.


Next, the Enola Gay flies unopposed over Hiroshima, “Little Boy” drops, and the unimaginable occurs. Paul Tibbets, the captain and leader of the mission appears on screen, speaking directly into the camera. Tibbets is calm and authoritative, and the use of him, and his presence, so early, helps to frame one of the central moral ambiguities about the dawning of the Atomic Age: Are there circumstances in which the use of nuclear weapons is morally acceptable?

This is a more complex question than it appears at first, and the answer isn’t forced on you. To Tibbetts, it’s a clear yes, and, as uncomfortable as that may make many feel now, he was voicing the prevailing opinion of the time. My father, drafted in 1944 and deployed to the Philippines,  was unquestionably a life-long liberal, and an early and vocal opponent of Vietnam. But when it came to Hiroshima, he really didn’t have doubts. The Japanese were extraordinarily stubborn and courageous fighters, and he saw the first bomb as an awful, but justified alternative to a D-Day-like invasion of the mainland. He did question the second strike, at Nagasaki: having demonstrated the power of what Emperor Hirohito called “a new and most cruel bomb,” couldn’t we have waited a bit longer than three days for Japan to surrender? But I never heard him waver on Hiroshima, even several decades afterwards, when the full impact of all of the consequences of the bomb became clear.  

Reasonable people might disagree with Tibbets and Dad, and it’s more than likely that the filmmakers do, but I think it’s a sign of their sophistication and discipline that the movie doesn’t dwell on it. The heart of The Atomic Café is what happens after the genie is let out of the bottle: the jaw-dropping efforts by our government to shape public opinion through a staged combination of Doomsday and Pollyanna.

Americans in the 1950s and 60s believed, simultaneously, in three somewhat conflicting things: The first was that we were the most powerful country in the world, all the more so because we had this absolutely wonderful nuclear arsenal. The second was that we were in mortal danger from the Communists, who were trying to undermine us from within, while planning for our mass destruction from without.  And the third was that, while the danger was real, proper preparation would save most of us, so, preparation was both prudent and patriotic.

The Atomic Café takes us back to the first years of living under the threat of mass annihilation. A lot of it looks like it could have been written for an early version of The Onion, so absurd is the footage to modern eyes. There are cartoons, portentous voice-overs, silly songs, school kids “ducking and covering,” and Moms in pearls making themselves comfortable in fallout shelters. Add an exceptionally humorless and unappealing American Communist woman (in shawl and tortoiseshell glasses!) gesticulating wildly, an absolutely excruciating clip of two girls who look like they belonged at a 4-H meeting describing the canned goods they’ve set aside in case of attack, and a variety of politicians making bat-shit crazy statements, more than a few of whom should have known better (Lloyd Bentsen, looking at you here).  There’s even Hugh Beaumont (Beaver Cleaver’s Dad) projecting manly, but comforting confidence.

What is fairly clear is that the policy-makers in Washington didn’t have much different a strategy then that of the fictional General Buck Turgidson in Dr. Strangelove—a nuclear war was bad, but winnable. “Mr. President, I’m not saying we wouldn’t get our hair mussed. But I do say no more than ten to twenty million killed, tops. Uh, depending on the breaks.”  All provided, of course, that we had the will to prepare. “Mr. President, we must not allow a mineshaft gap!”

But this isn’t fiction, and the unreality of what unspools in front of you (a family at a picnic seeing the blast, and then covering themselves with a sheet?) leads you back to a very contemporary feeling: Government sees the public as something to be manipulated, not as something to be served.

I don’t think there’s a more stunning example of this than a bit of footage that had stayed with me since I first saw the movie in 1982—American troops, seen in a training exercise, first sitting in trenches, waiting for a small tactical nuclear weapon to be exploded. A Chaplain comforts them by saying it would be ”one of the most beautiful sights ever seen by man.” The soldiers are all given little badges to wear to register their exposure to radiation—it should be safe, they are reassured, but if it’s too much, well, they might die, but don’t worry about it. Several are interviewed as they calmly discuss what’s about to happen. Then, detonation, the men emerge, and march straight into the mushroom cloud.

One of the most striking aspects of seeing the movie again, 36 years later, is that, even though I remembered it almost frame by frame, my emotional reaction was significantly different. It turned out that experience was common to the room. In the Q&A afterwards with the filmmakers, it was clear that much of the audience was like me—former duck-and-cover kids who roared the first time, but were now laughing nervously, if they were laughing at all. My friends felt the same way, and my son, not generally given to overstatement, called the movie “terrifying.”

Same film, why the difference? The world has changed. In 1982, the USA, the Soviet Union, and China understood that nuclear war meant mutual assured destruction, and, notwithstanding the rhetoric, none of them wanted it. Strategic arms reduction talks had begun in 1969, during Nixon’s first term, and led to SALT I and SALT II. While most people realized that the agreements merely blunted the arc of nuclear proliferation, at least there was a consensus that we should step back from the abyss. The danger, many thought, came not from the superpowers, but from two newer members of the nuclear club, India and Pakistan, who, for tribal reasons, might not necessarily be rational actors. That was then. Now, we just seem to surrounded by a dangerous entropy and implacable hostility: Not only are there rogue states like North Korea and Iran, but also stateless threats and random kooks, hopped up on a bizarre ideology or just a desire to be destructive. The bomb could drop at any time.

With that as perspective, you again have to acknowledge the skill of Loader and the Raffertys: while the material is old, the movie isn’t in the least bit dated. As you watch, time speeds up and the surreal kaleidoscope tells the story: The Bomb as savior, The Bomb as part of competitive nationalism, The Bomb as described by J. Robert Oppenheimer: “Now I am become Death, the destroyer of worlds.”

Then, it’s over. The lights come on, and you sit back in your chair and wonder at the cosmic irony of we humans flailing helplessly against the Golem we birthed.

The Atomic Café. It’s worth the trip. 


Return to The Atomic Cafe first appeared on 3quarksdaily.com on August 20, 2018
https://www.3quarksdaily.com/3quarksdaily/2018/08/return-to-the-atomic-cafe.html






Monday, July 23, 2018

Your Rights, If You Can Keep Them Part II-On 3Quarks

by Michael Liss

The other shoe dropped.  
Anthony Kennedy’s idiosyncratic role as a Justice of the United State Supreme Court will come to an end a mere week from now. A lot of things are going to change.
Let’s start with the politics. Kennedy’s leaving cinches the conservative revolution (or counter-revolution) for at least a generation. For the first time in living memory, a conservative Supreme Court will be in position to review and bless the acts of a like-minded Congress and President.
This will occur regardless of who is confirmed (Trump’s list is one to which moderates need not apply), but, unless a bolt of lightning strikes, it’s going to be Brett Kavanaugh. Yes, there will be plenty of Kabuki before he gets measured for a new robe, but Kavanaugh is the one who rings every bell for both Republicans and Trump. He’s a Federalist Society member, reliably conservative on all the big issues, not afraid to advance his interpretation of the law even when it conflicts with precedent, and has a past history of partisan politics. His nomination even offers a prize in the Cracker Jack box—the unique, magnificent straddle of having worked aggressively for Ken Starr, but now being deeply committed to the idea that sitting Presidents should be immune from prosecution.
Don’t Democrats have something to say about this? Of course not. Filibusters are dead, following an idiotic series of one-upmanship games between Harry Reid and Mitch McConnell. So, pay no attention to the hand-waving, heavily-accented man from Queens in the donkey suit. Chuck Schumer knows Kavanaugh (or someone just like Kavanaugh) is going to be confirmed, and he knows the confirmation battle is both a risk, and an opportunity, that he has to navigate carefully.

First, Schumer has to let the activists in the Democratic Party vent. There is an unhealed wound from McConnell’s brilliantly evil stonewalling of the Merrick Garland nomination that needs a little more sunlight. Second, he needs to worry about the size of his own caucus in 2019. Everyone knows that there are 10 Democratic Senators up for reelection in states that voted Trump—several of those races are likely to be cliff-hangers at best. If I had to bet, the Democrats will have a net loss of at least three seats, and it could be significantly worse. Third is more existential. Schumer also has to worry about 2020, as a loss there will basically end the two-party system. Several Democratic Senators, including Elizabeth Warren, Kamala Harris (who is actually on the Judiciary Committee), Kirsten Gillibrand, and, of course, Bernie, are likely to look to use the proceedings as a showcase. That’s fine—there is no particular reason to get in the way of them, if they focus on issues people care about. But the Trump reelection team (including affiliated media) will be thrilled beyond all measure if the main Democratic contenders use the hearings as a rerun of Hillary’s 2016 campaign, which lacked ideas and often devolved into identity politics. No one beats Trump at identity politics. 

How does Schumer deal with this stew? By accepting reality (which I suspect he already has). First, do the math. There is no way Lisa Murkowski and Susan Collins will be the votes to kill Kavanaugh’s nomination. We know this because they already are making cooing noises, notwithstanding their expressed concerns about SCOTUS overturning Roe v. Wade. We also know it for another reason. They can do the same math. There are 49 yes votes right now (assuming McCain votes) without them. One more makes 50, and Pence breaks the tie. Neither of them wants to force McCain to come to Washington. And neither wants to take responsibility for killing this nomination—what’s the point when Trump will just follow up with the next Roe opponent? A lot of people look to Murkowski and Collins to be independent/mavericks, but a closer examination of their voting records doesn’t really support that. Rarely do they use the leverage one would assume they have. Both have a few issues where they will break from party orthodoxy, but, almost all of the time, those are “safe” votes—ones that don’t swing the results. McConnell is smart enough to know that, not to press them to take the hard ones except when absolutely necessary, and not to jeopardize their standing at home.

Schumer is just as smart (and remember he’s the guy who, in 2012, recruited many of the now-endangered Democratic Senators from some of those unlikely Red and Purple States). He also knows his New Yawk accent and mug is just as easy a target as Nancy Pelosi’s well-groomed coastal elitist granny look. It’s not going to sell well in places like West Virginia (Joe Manchin), Montana (Jon Tester), North Dakota (Heidi Heitkamp) or Indiana, (Joe Donnelly). That’s actually a plus, because those folks can show their independence and adherence to local values of community, fair play, and moderation by voting for the “qualified” nominee. Schumer is not twisting their arms in a lost cause—rather, he’s privately going to give them the thumbs up to use him as a foil. And they already are. Manchin just said Schumer “can kiss my ____,” and I seriously doubt it didn’t get a secret grin from the Minority Leader.

So, if it’s already over but for the speechifying and play-acting, what does this really mean to most Americans? On many things, practically nothing. The majority of SCOTUS decisions are actually unanimous. Only about a sixth are 5-4 or 5-3. Of course, the close ones have often been the intensely controversial ones—the ones in which we, and activists on both sides, are most interested. So, let’s talk about how swapping out Justice Kennedy for Justice Kavanaugh changes things, with the given that hard-core conservatives are positively swooning with ecstasy at the opportunity.

Three things to keep in mind:

First, Justice Kennedy wasn’t the centrist on the Court, he was the Median. The Median has now moved to Chief Justice Roberts, and he is substantially more conservative than the already conservative Kennedy. But if Kennedy was basically conservative, meaning aligned with Thomas, Alito, Gorsuch, and Roberts on all virtually all close votes, which he was, particularly in the Term that just concluded, does it really matter? The short answer…it matters, a lot, and for two major reasons: what I’ll call the Obscure Structural One, and the Practical One.

Let’s start with Obscure. Not every case “goes all the way to the Supreme Court.” Rather, except in the comparatively rare “Original Jurisdiction” matters, SCOTUS chooses what cases to hear by “granting certiorari” to consider appeals from lower court rulings. Granting cert must be done on the votes of four Justices, and, beyond matters that may simply not merit their attention, sometimes the granting of cert is tactical: They don’t want to disturb the lower court rulings on potentially controversial issues because they don’t think the time is ripe to reconsider, or because they have uncertainty as to the result (and therefore don’t want to reaffirm or set a precedent). But if they thought they could convince a fifth (let’s say, our new “Median,” Roberts) they might. Granting cert can be a big deal—it means there is a potential that SCOTUS might make a major, controversial ruling, either making new law, or overturning existing precedent.

Now, the Practical One: The farther the Median moves towards one pole or the other, the broader the potential rulings. If we assume Kennedy was more centrist, then the two ideological sides had to “bid” for his favor—and this coalition-building is far more important than many people realize. The public looks for binary rulings—yes or no—but many Supreme Court decisions reach yes or no in a manner reflecting a preference for “Judicial Restraint”—seeking narrow grounds, and, respecting existing precedent as much as possible. Go too far, and you risk the fifth vote leaving the coalition. This doesn’t stop individual Justices from joining in the Decision and then indulging themselves in a Concurrence (Justice Thomas, for example, has suggested that the Establishment Clause does not apply to the States), but the core ruling of the Court is a function of the maximum the deciding vote(s) can accept. If Roberts is the new Median, and Roberts is more conservative than Kennedy, those 5-4 votes will now tend to be more conservative, in the sense that they will go further because the extremely conservative Justices will have to “give” less to Roberts.

This is a problem, and more than just for centrists and liberals. An unrestrained Court can be a dangerous one, both to the country and to its own legitimacy. This is particularly true when it indulges a preference for self-defined truths as a justification for significantly exceeding what the public wants. The more liberal Warren Court lost some of the public’s confidence with a string of criminal procedure cases. The Roberts Court may do the same, if, to use the Chief Justice’s analogy about being an umpire, it seems to make the call even before the ball is out of the pitcher’s hand.

As we move ever-harder Right, on the business/labor balance, on regulation, on voting rights and fair representation, on Executive Power, we are also coming to realize that true limited government conservatives barely exist anymore. They have been replaced by opportunistic conservatives who have no problem using the power of the State situationally to achieve political ends. SCOTUS, even if it were motivated that way, can’t do that on its own—SCOTUS doesn’t enact or execute laws, rather, it sets the ground rules for what can be enacted or executed. But, when what is left of the astringent, selective variant of limited-government judicial conservatism comes together with opportunistic political conservatism, you can get a maximalist result—one that can vastly outstrip where the public is or wants to go. So it will be with reproductive rights and, to an as-yet-undetermined extent, privacy rights, as well.

We don’t need a lot of granular legal analysis when SCOTUS decides to take down Roe v. Wade. The new majority clearly opposes reproductive rights, even as a substantial majority of the public supports access to abortion. But SCOTUS gets to make the rules, so Roe v. Wade is as good as gone. It won’t happen immediately—Justice Thomas will not go running out into the street on the First Monday in October looking for church bells to ring, but, after the process—a ripe case, the granting of cert, briefing and oral arguments, and then a decision, Roe will end, probably by June 2019.

This is as much a certainty as Trump tweeting in the early morning hours. What we don’t know is what logic the Opinion will adopt and how far it will go. Roe doesn’t exist without the Court’s recognition of a right of privacy emanating from a “penumbra” of enumerated (as in, “written down in the Constitution”) rights (Griswold v. Connecticut, an earlier contraception case, laid the groundwork). But a generalized right of privacy, the type that seems intuitive to most Americans, is anathema to many “Originalists” precisely for that reason—it may be intuitive, but that’s all it is. I suspect that at least two of the Justices, if given a blank slate, would happily discard most or all privacy rights, and one or two more might significantly limit their application. Is there a fifth (Roberts) to take a wrecking ball to the entire concept?

I am going to assume (and hope) not yet, and SCOTUS will limit itself to a surgical strike on abortion. What are the practical implications? After all, overturning Roe does not bar the procedure, it merely eliminates the Constitutional restraints on individual States in their ability to regulate, restrict, and criminalize abortions. Superficially, that sounds somewhat calming—a Tenth Amendment solution where the Bible Belt and uber-conservative states do their thing, and the rest of the country goes its own way.

Ah, not so fast. According to the Guttmacher Institute, 45 states have some restrictions on their books. Ten have what we could call legacy bans—statutes that predate the original Roe decision and were never formally repealed. Here are the 10: Alabama, Arizona, Arkansas, Mississippi, Oklahoma and West Virginia—all good conservative states where no one ever wants or needs an abortion—and (brace yourself) Massachusetts, Michigan, New Mexico, and Wisconsin. What’s the over-under on ambitious Attorney Generals and local District Attorneys who will be looking to make a name for themselves by trying to enforce laws that the general public didn’t even know existed?

If the last 18 months have shown anything, it’s just how effective Republicans have been in exercising strict and sweeping one-party government, even with narrow majorities. Does anyone doubt that, once the Supreme Court rules that reproductive rights no longer exist, Paul Ryan’s successor (assuming the GOP retains the House) and Mitch McConnell will quickly roll out federally preemptive legislation with severe limitations or even a nationwide ban? Any doubts that the pressure on moderate Republicans would be intense to take one for the team, even at the potential cost of their seats? Any doubts our deeply religious President would sign it, if it could make its way through Congress, and direct Jeff Sessions to do whatever it took to enforce it before enactment?

In a painful and even perverse way, the post-Roe-repeal trench warfare may actually do some good. It will bring focus to the bigger question: What other liberties will draw the unfriendly attention of “limited government” conservatives as they look to terraform a nation more to their liking?

The next battle about rights is perhaps the ultimate one: Who really owns your life? What should be subject to unbridled scrutiny and regulation, and what should really be private, yours to keep or voluntarily cede, as you choose, to be invaded only under very limited circumstances?

Let me end with one deeply conservative idea: the more power the government has to regulate your life and the lives of your fellow citizens—even if you agree with a particular application of that power—the less liberty, you, as an individual, retain.

That is why you should always vote as if your rights depended on it. Because they will.

The original of Your Rights, If You Can Keep Them Part II first appeared on 3Quarksdaily.com on July 23, 2018
https://www.3quarksdaily.com/3quarksdaily/2018/07/your-rights-if-you-can-keep-them-part-ii.html

And please follow us on Twitter at https://twitter.com/SyncPol