We leave the door of Destiny ajar

14 12 2015

Superficially, one might see the resemblances between Weimar and the US:

  • the concern, even hysteria, over supposedly inhuman enemies
  • polarization in society
  • economic insecurity
  • sense of wounded nationalism
  • dizzying movements within the culture
  • distrust of government
  • violence

But even more apparent is the crucial difference between the two:

  • the acceptance of Constitution itself

This is crucial because, in Weimar, large portions of the polity never accepted the constitution, never accepted the republic.

Part of this was due to, as I mentioned, the post-abdication government’s acceptance of the Armistice, and of the signing of the hated Treaty of Versailles: the German public couldn’t believe it had lost, and considered the harsh terms of the Treaty unjust. That the loss of territory, control over industrial regions, and, of course, reparations, made economic recovery difficult only heightened the skepticism toward a government which had apparently allowed all of this to happen.

Not everyone felt this way, of course. While liberal parties never managed to hold a majority in the Reichstag after 1920, the Social Democrats, the German Democratic Party, and the Catholic Center Party did hold significant chunks of parliament throughout this period, with various liberals holding the chancellorship as well.

But even had the Constitution been configured differently—the chancellor was appointed by an elected president, he was not simply the leader of the majority party or majority coalition in the Reichstag—it’s difficult to see how the republic could have overcome the irreconcilable differences in the polity itself.

Germany was divided between the reactionaries (those who wanted to restore the monarchy), the conservatives (ranging from nationalist-bourgeoisie to militarists), and liberals (social democrats, liberal-bourgeoisie); tucked in amongst these were Catholic interests, which tended toward conservatism (fear and loathing of the left) but which also appreciated the chance to participate in governance; the Communists, which by the 1920s subordinated themselves to Moscow; and various fascist groups, which had almost no role in government but which fought and killed in the streets throughout the decade.

Finally, after 1925 and with the election of Hindenburg, the republic’s president was a man who loathed the republic.

But it wasn’t just the politicians and the parties (many of which had paramilitary arms which regularly engaged in violence), but the institutions of the state itself were cool to the republic. The civil service was thoroughly conservative, as was the judiciary as well as the army. Bureaucrats, judges, and military officials rarely attacked the republic directly, but they never accepted it as legitimate; in the case of the judiciary, they would often sympathize with rightists who were brought before the bench, and raising a “patriotic” defense was often the ticket to either acquittal or a lenient sentence.

So, for example, none of the surviving conspirators in the assassination of Foreign Minister Walther Rathenau served more than five years, and only one of the conspirators involved in the Kapp putsch served any time at all.

And, most famously, the man at the head of the beer-hall putsch in Munich, one Austrian corporal named Adolph Hitler (he didn’t become a German citizen until 1932), not only wasn’t deported, he was given free rein to speechify in court, and given only a five-year sentence in ‘fortress incarceration’—of which he served only a year.

The US polity is at least somewhat polarized (there is some controversy as to how much), but one touchstone for pretty much everyone is the Constitution: everybody who is anybody says they love it.

We don’t all love it the same way, of course, but does anyone think that the assassination of the Secretary State would lead to a sentence of less than 10 years? That the attempted armed overthrow of a state government (with the announced intention to overthrow the federal government) by a non-citizen would lead to prison term of merely 5 years? and that he’d be out after a year? and not deported?

In fact, for as violent a society as the US is, our violence is, largely, non-political. This hardly makes it benign (especially when perpetrated by officials of the state, i.e., the police), but neither the Democrats nor the Republicans have paramilitary wings and their members tend not to participate in assassination attempts of political figures.

Furthermore, when someone is killed for political reasons—say, a doctor who performs abortions—most political leaders will distance themselves from the act itself (even if they do express sympathy for the motive). Just as if not more importantly, prosecutors, juries, and judges tend not to wave away such murders.

In other words, whatever the problems with our republic, most citizens, most elected officials, and most of the members filling the institutions of government, nonetheless accept the structure of the government.

I am very critical of elected officials (say, some Republicans) who suggest that other elected officials (say, some Democrats) are illegitimate, in no small part because attacks on the existence of the opposition in government is an attack on the legitimacy of the government itself—a dangerous proposition for any member of government to take. But even with Joe Wilson’s “You lie!” and the birther conspiracies and Mike Huckabee’s intimations that the president is some kind of traitor  (Jesus FUCK, Huckabee!), I have no doubt that any attempt on the life of the president, members of his Cabinet, or of anyone running for president would be met by near-universal condemnation.

(Yeah, near-universal: there will always be those who celebrate assassination, and some of the public condemners might be private celebrators, but it would be understood by all that public glee at the murder of a public official punches one’s ticket to the fringe.)

Which is to say, as much as folks may dislike the government, it’s probably not going too far to say they’d dislike the violent overthrow of that government even more.

To be continued.

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Whisper to a scream

6 06 2013

Why aren’t I screaming?

After all, one guy points his camera at the windows of a nearby building and I rant about privacy and presumption; Google wants to equip people with awkward glass and I grouch about techno-coercion; and surveillance drones? Oy, don’t get me started.

So you’d think the revelations of NSA scooping up basic phone information on everyone as well as everything that’s posted online, would cause my ears to blow clean off of my head.

Except, nope.

Not because I don’t think it’s a big deal—I think it’s a very big deal—but because this is all completely unfuckingsurprising.

This isn’t about Obama or Bush, but about a dynamic of presidential politics wherein the executive will grab as much power as he can, especially when the Congress orders him to do so. Some constitutional scholars have speculated that the Obama administration’s actions are unconstitutional, but it’s not at all clear that a Supreme Court which thinks swiping some DNA from every arrested person is okey-dokey by the Fourth Amendment is going to push back against both the president and Congress on NATIONALSECURITY!!!! matters.

Will Congress do anything? Ha. Rep. James Sensenbrenner (R-WI) might now be ‘extremely troubled’ by revelations over the extent of data-hoovering, but just what the fuck did an author of the execrable PATRIOT Act think would happen when said Act howled ‘AAAARRGGHH! SAAAAVE US!’ to the president.

And We the People? We want to be safe and secure, so if we have to take off our shoes at airports or belts before entering federal buildings or open our bags before getting on trains, then that’s what we’ll do. Oh, sure, we might grumble, but will we press our representatives and our senators to chop back the national security apparatus or reign in the president? We will not.

In fact, if, say, two young men happen to set off two bombs at a city celebration we’ll wonder where was the FBI and the CIA and the Dept of Homeland Security and what more can be done to keep this from ever happening again.

This is overstatement, of course: many of us will say, Hey, this couldn’t have been prevented, there are limits as to what can or should be done. But this shrug (or stoicism, if you prefer) won’t go much further than our living rooms, and those motivated to take their security-skepticism to the halls of Congress might meet a few sympathetic legislators, but not enough to change anything.

Maybe the courts will manage to rouse themselves from the stupor induced by NATIONALSECURITY!!! hypnosis and remember that the Constitution also has something to say about liberty and due process and, oh yes, ‘the right of the people to be secure in their own person‘—but I ain’t counting on it.

This, then, is why I’m not screaming: It would be a waste of perfectly good breath.

~~~

h/t for Joshua Foust link: James Fallows





You put the load right on me

27 03 2013

I don’t believe in rights.

No, no, that’s not, mm, right. I don’t believe in natural rights, inalienable rights, rights granted by the Creator. . . you know Imma ’bout to tag-team this off to Bentham, don’t you?

Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense — nonsense upon stilts.

Rights are, instead, rhetorical artifacts, crafted out of history and philosophy and given heft in political culture. They haven’t always existed; they may not always exist. But, for now, we act as if they do, and grant them such privileged status in our theories of liberty (another rhetorical artifact) that a claim of right serves to silence alternate claims of expedience and desire.

(Or, y’know, start a fight  if one’s rights claim is countered with another. Then Mill is invoked: The liberty of the individual must be thus far limited; he must not make himself a nuisance to other people, i.e., my right to swing my arms ends at your nose. And when that doesn’t work, well, that’s another post.)

Where was I? Ah, yes: the durability and privileged status granted to rights.

Which brings me to Prop 8 and DOMA and Constitutional rights and democracy.

I’m not a Constitutional scholar, nor even a dedicated Court-watcher (more of a Court-peeper, actually), so I have nothing to say regarding the juridical strength and weaknesses of the petitioners arguments before the Court. I do find issues of Constitutional interpretation interesting, mainly because I find issues of interpretation interesting (and will blow a gasket at Scalia’s claims regarding originalism), but, today, I don’t have anything to say on what the justices may or ought to say about the Constituion vis-a-vis same-sex marriage.

This doesn’t mean I have nothing to say, of course. (D’oh!) Let’s talk politics! Yay! More specifically, let’s talk about the politics of rights-claims versus majoritarianism, and which is the better way to cement a political victory.

Ruth Bader Ginsberg has famously argued that Roe v. Wade was decided too broadly, that more and more states were moving to relax their abortion laws, and that by creating a federal right to abortion, the Court simultaneously energized the anti-abortion opposition and imperiled reproductive rights.

It is a plausible interpretation of events. I am not at all sure, however, that it is the correct one.

Which, roughly, brings us to the question: When ought claims be treated as preferences and run through majoritarian processes, and when ought they be treated as rights and granted (near) absolute status, safe from majority preferences?

I don’t know that there’s any good answer to this. On the one hand, I prize liberty, for which rights are a if not the crucial component, but I also prize representative democracy, in which majorities may legitimately impose their preferences on minorities. Turn everything into a right, and the collective may do nothing; disregard rights, and majorities become tyrannies.

It is demonstrably the case that majorities (or the fervent sub-majority among them) can get irritated when they are prevented from imposing their views on others, and, sometimes, may so strongly react against such prevention that the backlash may be worse than and last longer than would have the original situation.

So what’s a minority to do?

The Ginsberg approach argues in favor of the slog: get in and chip away, chip away, chip away, until the mountain pressing down upon you crumbles away. Once it’s gone, it’s damned well gone.

There’s a lot to recommend to this approach, and, on the whole, I favor it.

But that doesn’t mean one can’t or shouldn’t occasionally stick some dynamite into that mountain, yell FIRE IN THE HOLE! and blow that sucker to smithereens. Sometimes justice—oh, yeah, justice!—demands the weight removed in all due haste.

Sometimes justice says to hell with the backlash.

Justice, too, sits alongside and occasionally jostles rights and liberties in a democratic society. Minorities must have justice, but so, too, must majorities; is there any way to determine ahead of time who must carry the weight?

No, there isn’t. You go with what you’ve got, and if you lose in one arena, you try for the win in the other. If you think you’re right, if you believe your claim is a matter of liberty and justice for all, then you fight in every way possible.

That’s politics.

And a right to marry? I honestly don’t know if there is a right to marry, for anyone. But it seems that if that right is granted to some, then—liberty and justice for all—it should be granted to all.

~~~

h/t for that fantastic Michael Bérubé link—go ahead, click on it!—to Scott Lemieux, LGM





Give me the gun

21 12 2012

Christ, is it even worth posting this?

I’m tired and crabby and have grading and have to get up early to work the second job tomorrow and do I really want to write—more to the point, do you really want to read what I write—about guns?

What the hell.

My views about guns haven’t much shifted from where I landed a decade or so ago: I’m not crazy about them, don’t hate them, and if I lived out in the boonies I’d have a shotgun, if only to scare off any big critters trying to get at my little critters. And the next time I go back to Wisconsin I’d like to try trap shooting or target shooting with my hunting-rifle-owning brother and brother-in-law.

So, guns: dangerous tools, useful in some circumstances, nothing more.

Except, of course, culturally they are so much more: Totems of freedom, penis-substitutes, toys for the uncivilized, power, markers of Real Americans, manly, gangster, and on and on and on.

That’s a big part of the problem, that instead of treating guns as dangerous tools, we polemicize them into ontological signifiers: To be or not to be, with guns.

Actually, that’s wrong: Most of us probably don’t polemicize them into ontological signifiers; most of us probably seem them as dangerous tools which it is okay to own and use in a properly regulated fashion. Go on and on about guns and you’ll be given the side-eye, but if you hunt or like to target shoot at the range, well, okay. And if you won’t buy your kid a Nerf gun because you think it promotes aggression, you might get an eye-roll, but, well, okay.

Honestly, I’m closer to the gun-control folks than the NRA (no kidding. . . ), but if you want to collect an armory in your basement in preparation for the apocalypse, well, it’s your dime.

There are a few steps you should have to follow, however: Every single person who owns a gun should have a background check, and perhaps should be licensed. Every single gun you own should be registered, and any gun you own which is not registered should be confiscated and you should pay a huge-ass fine for not registering it.

At the time of registration, you should have to take it to a licensed instructor and demonstrate that you know how to load, unload, fire, lock, and safely store the gun. And maybe when you fire the gun, the bullet should be collected and entered into one of the those nifty CSI-type databases.

(And for those, like me, concerned about civil liberties: Make the registration system dual key, i.e., the registrant is assigned a number, and that number is entered into the gun-owning database. In order to access the name behind the number, a search warrant would be required.)

If you sell your gun, you must file a transfer form with the gun registry. The new owner would then be required to file a preliminary registration application before the actual gun could be transferred. A background check would be performed in the interim, and once it comes back clean, the gun may be transferred, at which point the new owner would be required to complete the registration process. A reasonable fee—one which would cover the costs of the registry and the registration process—would be required.

If you sell your gun or give it away and don’t file a transfer form, if you lose it or it’s stole and you don’t inform the police, you would be open to large, large fines, and holds on any future firearms registration. If you are convicted of crimes which, if turned up in a background check would prevent you from owning a gun [for whatever period of time], you either have to surrender your guns to a licensed dealer for the duration of the n0-gun period, or you have to sell them. You’ll retain the right to petition the court for restoration of your gun rights, although further restrictions may be attached to them.

And tough laws for any crimes committed with guns? Yep, as well as laws for negligence, brandishing, and general stupidity. (For the latter I prefer those huge-ass fines, largely because I think we already lock up too many people, but short jail, as opposed to prison, terms might be warranted.)

States and localities will retain the right to impose further restrictions on ownership, and while I think concealed-carry laws are a menace, I don’t know that there’s any constitutional way for the federal government to override them.

The feds can and should ban certain types of weapons—as they already do with automatic weapons—as well as certain types of bullets. They might also retain the right to impose stricter licensing requirements for various types of weaponry.

Oh, and ban large-capacity magazines—anything over 10 bullets.

Others have mentioned insurance requirements for gun-owners, which some states might wish to implement or at least allow insurers to ask before offering home or life-insurance. Let the insurers add their own (reasonable) licensing requirements. Tax the shit out of bullets.

[Edited to add: And that law Congress passed awhile ago shielding gun manufacturers from lawsuits? Repeal it.]

The upshot of all of this: Recognize the existence of the [current interpretation of the] Second Amendment which allows for both gun ownership and gun regulation, and go from there. Recognize in law the difference between a bolt-action hunting rifle and a semi-automatic handgun or rifle, and recognize in culture the line between use of guns for one’s own enjoyment and that based on anti-social contempt.

It’s not enough, of course, to stop the gun violence in both our streets and our homes, nor is it enough to stop suicides or, maddeningly and sadly, periodic massacres. I think we’d all be better off if there were fewer guns—especially handguns—in this country, and I’m offended by arguments that we can’t live with one another without guns.

But I also believe if things are to get better—if we’re to kill fewer of us—we need to start where we are, and where we are is in a gun-laden and gun-positive place. We need to start treating guns as dangerous tools, and maybe, just maybe, down the line that’s all they’ll be.

Then maybe, just maybe, we’ll want fewer of them.





Indict! Indict! Indict!

11 03 2009

Tenured radical, indeed: former Office of Legal Council/current professor of law John Yoo.

Ap photo/Susan Walsh (via Salon)

Ap photo/Susan Walsh (via Salon)

Here’s a link to Yoo’s infamous torture memo; a key argument regarding the lawfulness of various forms of ‘aggressive interrogation’ can be found on pp. 26-31. The most famous excerpt can be found at the bottom of p. 27:

In defining substantial bodily injury, for example, the statute speaks in terms of disfigurement, or loss of function of some bodily member or organ. In case of serious bodily injury, the statute reaches more serious injuries to include those injuries that bear a substantial risk of death, result in extreme pain, as well as protacted  disfigurement or the impairment of a bodily member or organ.

Here’s the DOJ site which lists the nine recently released Bush-era memos on presidential power; these were apparently written by Yoo and now federal judge (!) Jay Bybee.

Photo via Slate

Photo via Slate

Impeach, then indict, this moral and political cretin, as well.

And all the rest of those who enabled this evisceration of the Constitution and the brutalization of human beings: Indict! Indict! Indict!