JB

Protesting Government Foreign Policy During Time of War is as American as Apple Pie

As David Greenburg explains:

In American history in particular, wartime dissent has a venerable lineage. Even during that most mythic of causes, the Revolution, fully one third of Americans opposed independence, in John Adams' famous estimate, while an equal third favored it. Only in retrospect did the Revolution become an unambiguously glorious endeavor.

Dissenters spoke out against virtually every subsequent conflict. The humiliating defeats of the War of 1812 made that fight so unpopular that the states of New England considered seceding from the Union. A generation later, many Americans viewed the Mexican-American War (not unreasonably) as an act of naked U.S. aggression. In 1848, shortly after the war's conclusion, Congress censured President James Polk for "unnecessarily and unconstitutionally" commencing hostilities. Supporting the rebuke was Illinois Rep. Abraham Lincoln, who attacked Polk as "a bewildered, confounded and miserably perplexed man."

Well, we all know what a traitor Abraham Lincoln was.

Not only have anti-war movements caused the nation little direct injury; they've made positive contributions. Dissent has produced important works of American political and social thought. Henry David Thoreau wrote his classic Civil Disobedience as a cri de coeur against the Mexican-American War ("the work of comparatively a few individuals using the standing government as their tool"). Randolph Bourne wrote his greatest essays protesting World War I.

Anti-war efforts have given rise, too, to valuable institutions and movements. From the War of 1812 emerged the first full-fledged peace organizations, a key part of the ensuing reform wave that brought penal reform, new opportunities for women, public education, and, in some states, the abolition of slavery. The aftermath of World War I saw the formation of the American Civil Liberties Union (headed by Roger Baldwin, who had been jailed for his dissent) and increasing protections for free speech.
. . . . .

If the doves were [to] give in to their critics and shut up, then we would all have to trust the Bush administration completely to decide whether to continue, escalate, or end the war. The government would have a free hand to do as it likes. Far from showing their patriotism, critics who muzzle themselves in wartime are abdicating a democratic responsibility.

Greenberg is correct to suggest that something good might well come out of the present anti-war movements. A key question for our country is whether the Perle/Wolfowitz strategy of dominating and overthrowing countries like Iraq, and possibly Iran and North Korea makes sense, or whether this course is an arrogant overreaching that will destroy our security abroad and corrupt our democracy at home. The larger strategic interests of the United States, and the path that the country will follow in the decades to come, are very much at stake in what we do now. This is the worst possible time to shut off discussion.

Posted 11:52 AM by JB [link] (2) comments

JB

Sucking the Air Out of Democracy

The coverage of the Iraqi war has all but swallowed up every other subject in the mass media, particularly on cable networks like CNN and Fox News. The tendencies that were so pronounced in the first Gulf War have now become dominant in the coverage of this conflict. The major networks and cable outlets have seized upon the war as a "big story" and pursued it relentlessly to the discussion of virtually everything else. There is no doubt that this is the most important story right now, and deserves the most coverage. My criticism is that it has become the only story. That is not good for democratic self-governance.

The form of media coverage I am criticizing is not new. It evolved over many years, but it was perfected in response to scandals like the O.J. Simpson Trial and public events like the death of Princess Diana. It is part of a more general cultural phenomenon, in which the news media rush from ‘big story’ to ‘big story.’ rather than offering a wider array of issues as part of the relevant public agenda. Because the media expect that their viewers want round the clock coverage, they give them round the clock coverage, and they find every new ways to fill the time to prevent boredom and loss of audience.

This is not simply the familiar criticism that coverage of news-- and in this case of war-- has become a species of entertainment. That is a worrisome aspect of current war coverage. Rather, my point is that media coverage of the "big story" proliferates discussion about itself and pushes aside most other public discourse and most other items that might be on the public agenda of attention.

During coverage of such a "big story," the mass media does not simply repeat the same stories over and over again. Rather, to avoid boredom, the media find ever new angles to discuss. They chew over the events repeatedly, generating new lines of inquiry and new ways to cover the events. Experts are called in; maps are displayed, argument and counterargument are arranged, quarrels are produced, subsidiary controversies are stoked and relished. In this way the media coverage produces every new aspects to discuss. The culture of the big story, in short, proliferates discourse about itself.

Proliferating discussion in this way does not increasingly get to the truth – rather it approaches the question of what is true from increasingly diverse angles of inquiry. A big story's natural trajectory is not towards depth but rather breadth of coverage – it ceaselessly expands its agenda for discussion outward, capturing more and more subjects, experts, political players and other individuals as possible topics of discourse.

The problem for democracy arises because a Darwinian logic is at work. Audience attention is a scare commodity. More time spent on covering the big story and its mushrooming concerns means less time for coverage of other events. What starts as a demand for transparency – for more information and for more accountability – ends up as a form of diversion that crowds out other information and other public concerns.

While all attention is focused on the big story, government is still operating and government officials are still laying plans and hatching schemes. But nobody is watching them or paying attention to what they are doing. Public choice theory teaches us that interest groups are best able to dominate government policy making when they have concentrated interests and when the political system offers them "slack"-- that is, when public attention and the public agenda is diverted elsewhere. Similarly, government oficials are most likely to engage in self-dealing or enact unwise policies when no one is paying attention. That is precisely why the culture of the big story is so dangerous. By diverting public attention to a single story, endlessly reported and discussed, the mass media effectively increase the amount of slack available in the political system. This allows politically powerful interest groups to push their favored agendas and politicians to make unwise decisions and promulgate unwise laws without democratic oversight.

Slack has always existed in democratic political systems, but the media has played an important role in combatting this slack. But the way that media coverage has evolved has produced precisely the opposite effect-- instead of the mass media shining more light on government abuses of power; it how helps to conceal them through its obsessive focus on a single "big story." As a result, we are now going through a particularly dangerous time for American democracy. A great deal of undesireable legislation and executive decisionmaking is going to happen during this period, hiding in plain sight. It is incumbent on the media to tear themselves away from their obsessive compulsion to cover it. Increasingly, I fear that they will not.

Posted 6:09 PM by JB [link] (2) comments

JB

Originalism and Consistency

David Wagner, who runs Ninomania, has pointed out that there is evidence that the First Congress that drafted the Establishment Clause and the Congress that framed the Fourteenth Amendment engaged in support of religion in ways that many scholars today think would violate the Establishment Clause:

But then surely Prof. Balkin can see (perhaps he has never denied it -- I don't know) that the accommodations of public religiosity undertaken by the federal government in the 18th and 19th centuries, as detailed by Justice Rehnquist in his Jaffree dissent, must have been perfectly in keeping with the Establishment Clause.

Some of Rehnquist's exhibits, it must be noted, antedate the ratification, though not the enactment by Congress, of the 1st Amendment. Does that mean Congress was hastening to enact financial and symbolic support for religion (e.g. reenactment of the Northwest Ordinance; resolution requesting a Thanksgiving Day proclamation) that it knew perfectly well was about to become unconstitutional? Does it not seem (quoting Rehnquist) "highly unlikely that the House of Representatives would simultaneously consider proposed amendments to the Constitution and enact an important piece of territorial legislation which conflicted with the intent of those proposals"?

David points out that I have criticized Justice Antonin Scalia on the grounds that affirmative action is consistent with the original understanding of the Fourteenth Amendment. If so, David argues, am I not committed to the view that nonpreferential aid to religion is permissible under the Establishment Clause?

David's argument rests on a confusion about my views and about the nature of the criticism I was making against Justice Scalia. I myself am not an originalist, nor do I regard original intention or original understanding as the touchstone to all legitimate constitutional interpretation. I think that there are many modalities of constitutional interpretation, of equal validity, including text, history, original understandings, original intentions, consequences, structure, and narrative ethos. Moreover, I am a constitutional historicist. My view is that what the Constitution means changes over time, in response to constitutional politics and social movement contestation. Thus, you can see my views are quite different from Justice Scalia's.

My criticism of Scalia is that he states that original understanding is the touchstone of all legitimate constitutional interpretation (a view I do not hold) but he nevertheless picks and chooses the occaisions under which he will invoke original understandings, based on his substantive views about the Constitution. Pointing this fact out does not commit me to acceptance of the philosophy of original understanding as the touchstone of all legitimate constitutional interpretation. Rather, it suggests that Scalia isn't being entirely honest about what his views on constitutional interpretation are.

Indeed, my view is that people who think that original understanding is the touchstone of all legitimate constitutional interpretation often (1) don't know enough of the relevant history; (2) conveniently fail to invoke originalist arguments when they collide with their substantive views about the Constitution; or (3) fall back on various forms of prudential argument-- like reliance on previous decisions and stare decisis, to avoid unpalatable results. However, the argument for reliance on stare decisis is itself applied inconsistently, since originalists do not think that all previous decisions are immune to originalist attack, just the ones that they think aren't too bad or that they actively support. As a result, originalists generally produce constitutional interpretations that are largely (if imperfectly) consonant with their substantive views about the Constitution. This fact completely undermines the justification given for originalist interpretation-- that it restrains judges from imposing their own substantive political and policy views into constitutional law. In theory originalism does so, but in practice the interpretations of originalist judges are often tethered to their preexisting political views, and this is as true of originalists on the left like Justice Hugo Black as it is with originalists on the right, like Antonin Scalia. Both Black and Scalia have many fine qualities, but neither is (or was, in the case of Black) a particularly good historian and neither is or was really consistent about their originalism.

Now, back to David's point about the Establishment Clause. My understanding of the original understanding of the Establishment Clause was that it was a rule of federalism, allowing the states to have their own established churches, but denying an established church to the federal government. Nevertheless the antebellum Congress did a lot of things that we today would think violated separation of church and state; they supported Protestant Christianity nonpreferentially. It is mistake to think that they supported all religions equally, or even all Christian denominations equally. Rather, they tried as best they could to be neutral as between Protestant sects, much to the chagrin of Catholic immigrants who began entering the country in large numbers in the 1830's. Nobody thought there was any obligation to be even handed with respect to Judaism or Islam. So the practices of the antebellum Congress are hardly an appropriate model for constitutional conduct today. (Again, this is part of the problem of invoking original understanding as a justification without knowing how deeply embarassing the actual history often is).

After the Civil War, the Establishment Clause could not coherently be understood as a federalism principle, precisely because if one believed that it was incorporated into the Fourteenth Amendment, it would apply to the states as well. And for many years after the Civil War, the states, I might point out, were perfectly happy to impose Protestantism on their citizens, again, to the chagrin of Catholic immigrants.

The contemporary notion of nonpreferentialism as between all religions is a product of the twentieth century, and the notion that atheists and agnostics are also protected by the Establishment Clause is a product of the second part of the twentieth century. Today many religious conservatives argue that government should be permitted to promote religion (as opposed to atheism and agnosticism), as long as the govenrment promotes all religions equally. But it is a fantasy to think that this position is the same as that of the original understanding. Every originalist today who argues for nonpreferentialism between different religions is actually arguing for a position that developed at least a century after the Establishment Clause was framed. Once again this is bad history in the service of a particular substantive agenda, not devotion to the Framers' original understandings.

Posted 10:04 AM by JB [link] (1) comments

JB

The Role of the Press in the Debate Over War

An article in today's New York Times discusses the reasons why the press did not push the Bush Administration harder to justify its plans for war against Iraq. One important reason is Congress's abdication of opposition last fall:

Experts say the news media's role was particularly
important this time because Congress offered such a muted
challenge until the final weeks of the buildup to war. With
leading Democrats signing off on the use of military force
last fall, these experts say, the burden fell more heavily
on the news media to examine and analyze the
administration's rationale for war.

"Washington bureaus couldn't see the argument about the war
as the political conflict they're always looking for," said
Todd Gitlin, a professor of journalism and sociology at
Columbia University. "It would have had to be put on the
agenda by themselves - as something they cared about -
which is something they are loathe to do."

We can see this problem in constitutional terms. A free press is generally regarded as an essential feature of democratic politics. But the press often needs political conflict to play off of, and that conflict usually has to come from the political ambition of some checking the political ambitions of others. The example of Woodward and Bernstein doggedly pursuing the Watergate story when no one else would is the exception rather than the rule. If politicians aren't willing to debate issues fully and fairly, the press will feel less comfortable in going against what appears to be the received wisdom and common consensus.

The natural source of partisan opposition to the war would have been the Democratic Party in Congress. But the Democrats were largely feckless during the period leading up to the war, afraid of being cast as soft on security and defense. Moreover, the Democratic leadership and a large number of Democrats joined Republicans in giving the President essentially unchecked authority to attack Iraq whenever he wanted. This mean that Congress had abidicated its fundamental role as a check on Executive adventures. Without the separation of powers to spur serious political debate, the quality of public debate suffered accordingly.

The supine nature of Congress, however, is only part of the story. Another element is the way in which press coverage has suffered from cutbacks in news organizations due to increasing media concentration and the increasing tendency of reporters to wait to be fed information from official briefings rather than going out to get it themselves.

A third element was the press's inability to rebut misleading statements by Administration officials:

The Bush administration's assertion of a connection between
Iraq and Al Qaeda was an important part of its case for
military action against Saddam Hussein, but that link was a
matter of some dispute.

Still, a recent New York Times/CBS News Poll showed that
nearly half of Americans said they believed that Saddam
Hussein was personally involved in the Sept. 11 attacks. A
Knight Ridder poll taken in early January showed that half
said they believed at least some of the 19 hijackers on
Sept. 11 were Iraqis. None were.

The Administration's policy, as I have noted in a previous post, is to say things that are simply not true or are highly misleading and dare the press to rebut them or prove them wrong, and when rebuttal is offered, to deny the charge and repeat the same misleading information again.

Some reporters based in the White House say it is hard to
compete against an administration that sticks to its
message and make its arguments at daily news briefings that
are carried live on the major cable networks, often in
their entirety. The most penetrating questions, they said,
are met only with the answers the White House wants viewers
to hear, a point of pride among administration officials.

"The questions do get asked, but they don't get answered
and that's what drives people nuts," said Bill Plante, a
CBS News White House correspondent. "The president uses his
public appearances very artfully to advance his message; he
says the same thing over and over. What I'm not convinced
of is whether that should change how we work."

White House reporters also said they were left with the
administration's assertions until investigative reporters
could check them out, which takes time.

This Administration is handling the press quite well for its own short term political purposes, but the techniques of diversion and disinformation it has perfected are not good for the long term health of a free press in this country. The blogosphere, of course, has been full of hard hitting discussion and debate about the Administration's policies, but the institutional press has fallen short. This is a very worrisome development, and I fear things are going to get much worse before they start to get better.

Posted 9:32 PM by JB [link] (2) comments