Balkinization: Will the United States survive the 2016 election (a continuing series)

Comments:

It is odd that Gore's "gracious concession" is held up as a model for Clinton, when Gore's concession was a disgrace. It is not just the crimes that the Bush administration committed, which admittedly were not wholly predictable (nor were their effective legalization by Obama in his decision not to prosecute the criminals). It is that accepting Bush v. Gore, despite its blatantly political nature, gave the right wing justices a license to shed their pretense of being judges and to openly advance the right-wing agenda. Of course, justices' decisions have always been affected by their political views, but it seems doubtful that Citizens United or NFIB v. Sibeius's interpretation of the Commerce Clause could have occurred without Bush v. Gore.

# posted by

Henry : 5:21 AM

To put it another way, it's not clear that the US did survive the Bush "election" and the subsequent catastrophe of 9/11 and the government's responses to that event. Can there be an institutional survival of Trump, or will a Trump accession to real power require institutions retaining some rationality to side-step the law and intervene. (Which would in a way be another Bush v. Gore moment.) Can there be institutional survival under yet another stalemate between the executive branch under Clinton, and a legislative branch dominated by radicals who do not accept governance at all as their fundamental raison d'etre. Clinton may win, but I think there's likely a next Trump but without the gross incompetence slouching towards 2020, waiting to be born.

# posted by

Fiddlin Bill : 9:27 AM

Yes. We will survive.

https://www.youtube.com/watch?v=gYkACVDFmeg

As to the first comment, I personally found it disgraceful (if understandable) that Gore instructed senators not to go along with around twenty House members who protested the electoral count. The rules are (were) that at least one member of each house had to do so. It wasn't up to him. The fact every single senator went along with him, again understandable, means blame is shared.

The acceptance of Bush v. Gore is basically a recognition of the power of judicial review in this country. It need not have been the last word, especially given the electoral count in Congress provided at least a symbolic challenge to give people a chance to officially make their concerns known to Congress via their representatives. This was done in 2004 in a less blatant case. But, such is the power of the Supreme Court in today's world that their word was deemed final here.

The "political" nature of the ruling is noted. But, it was by far not the only case. So, that wouldn't to be a game changer realistically. We must also remember Gore followed the traditional line here. Also, don't think the health care ruling (which after all mostly UPHELD the law) required Bush v. Gore. If anything, that decision might have saved the law. Various major rulings many thought gravely mistaken can be cited, even if the writer may agree with some of them.

# posted by

Joe : 10:05 AM

Also, a word on "effective legalization."

On some level, this is true, though I continue to counsel focus on "Obama" here puts too much emphasis on the power of one person. He is working in a system here, one in which he isn't a magic person who can fight the wrongs and realistically prosecute George Bush and Dick Cheney along with the rest. And, charging a few minor players without doing the same for people on top is distasteful scapegoating on some level.

Consider the Civil War. A policy was set where each surrender involved a general amnesty, so we basically "effectively legalized" treason (dare not call it that to some people). This still left the political leaders, but they too were let go in part probably out of the realization that conviction by civilian trials (as would be appropriate -- the trials of the presidential assassination conspirators legally dubious; one person who escaped and came back later also got off for a similar reason) would fail. And, cause what was deemed unwarranted divisions.

Something like this was true regarding crimes of the Bush Administration, deemed a political question by many people. This had a dark side, it again in a way effectively legalized their actions. True, things like waterboarding was announced by the Obama Administration to be illegal. But, room for doubt is there if the people who waterboarded, and bragged about it, is let free. We survived this though, if with still open wounds.

# posted by

Joe : 10:16 AM

Consider the Civil War. A policy was set where each surrender involved a general amnesty, so we basically "effectively legalized" treason (dare not call it that to some people).

In retrospect it's hard to say that this policy produced any benefits. Which is not to say that a harsher policy would have.

# posted by

Mark Field : 10:35 AM

"To be clear, no one I spoke to doubted that he was dangerously narcissistic sociopath or otherwise came even close to finding him a reasonable choice for President."

And yet, the election is actually fairly close. Doesn't this tell you something? Like, maybe you live in a bubble, and are horribly out of touch?

"That then raises the question of whether Trump and his "deplorable" supporters--that is, the portion of the Trump constituency, whatever its actually percentage, accurately portrayed by Hillary Clinton as exemplar as the truly dark side of contemporary American politics, fascist, racist, and xenophobic, for starters."

Yes, I've noticed that, for decades, the left has been convinced that anyone who disagrees with them is either stupid, insane, or evil. The trend has been towards evil. An introspective man might make the connection between this, and the gulag. Understand from looking about him, and within, why so many times when the left wins full control of a society, they pile up skulls.

Look, you talk to the people about you, and none, NONE of them are Trump supporters. In fact, they all despise him. And yet, you think you have some insight into the thinking of people who support Trump? You might as well be confident that you understand Martians.

Oh, and as for secession, take a look at this map. And that's county level. If you look at the precinct level, it's even worse.

The truth is, Republicans are a majority across almost the entire landmass of the country, while Democrats totally dominate the urban centers. Are you planning to have a dozen cities secede from 95% of the country's actual land? Or were you thinking you'd drag along large areas that were in opposition, on the basis of having 95% support in a small portion of the seceding zones?

# posted by

Brett : 10:38 AM

I will grant, of course, that Obama's decision not to prosecute torturers occurred in a context of a system involving others. But Obama could have tried, as a matter of principle and also because his decision not to prosecute violated the Convention Against Torture, which removes prosecutorial discretion.

Instead, Obama said that he believed that we should look forward, which was a lie, because he knows that one purpose of prosecution is deterrence, which constitutes looking forward. Obama effectively pardoned Bush and Cheney, pardoned himself for his own torture, and pardoned all future Presidents.

Obama's decision not to prosecute may prove to be his greatest legacy in that it turned this country into one, in which, at least in theory, no one is above the law, into one in which the President is above the law. A government in which the President is above the law is known as a dictatorship, even if the President does not choose to exercise dictatorial powers in all respects.

# posted by

Henry : 11:32 AM

"In retrospect it's hard to say that this policy produced any benefits."

I wouldn't phrase it that absolutely. But, the second part plus the "in retrospect" part are big qualifiers at any rate.

As to Henry, I don't know what "could have tried" amounts to here. For instance, what exactly is required under the treaty and domestic law? A formal investigation of some sort? That was done.

Obama also did not "pardon all future Presidents." How exactly did he do that? An executive pardons based on his/her ability and the times. Different abilities and times will result in different cases. That sort of remark underlines for me the level of unrealistic sentiments some make in this context.

Obama's decision wasn't his alone. Too much is put in the hands of a President in this country and this includes this issue. Obama was voicing the sentiment of the country here, which is realistically what a President does in this scenario. A President is not a philosopher king here. Obama also did various things, such as declaring waterboarding torture, releasing materials to help show what happened (which got serious pushback from the intel community) and so on.

The decision not to prosecute -- this is one reason I cited the Civil War -- is not something that suddenly occurred in 2009. Nor did it happen only in this country. International law realizes this as well, I think. If we wish to not "lie," let us not only focus on a small portion of the facts. The imperfections of the situation are duly noted. I will end there.

# posted by

Joe : 12:03 PM

"Look, you talk to the people about you, and none, NONE of them are Trump supporters. In fact, they all despise him. And yet, you think you have some insight into the thinking of people who support Trump? You might as well be confident that you understand Martians." (Brett, above)

The implication that Trump's support derives from a general fear of "the left" seems unlikely. We have the odd historical circumstance that Trump is the only candidate Mrs. Clinton can likely defeat, and Mrs. Clinton is the only Democratic candidate Trump can possibly defeat. Necessary and sufficient arguments against supporting Trump abound. His "take the oil" idea is colonialism and imperialism on an 18th scale. His racist attitudes are obvious, and welcomed by the racist "fringe," whatever their percentage, and the success of the 8 year McConnell strategy of obstruction suggests the percentage is dangerously high in the US. He is a patent charlatan, worthy of Mark Twain: the joke that his phony book, Art of the Deal, contains 4 Chapter Elevens, is dead on the money. Trump plays the authoritarian Daddy. He's just what millions of Americans grew up with. Meanwhile, Mrs. Clinton disturbs all those unconsidered psychological models merely by being an uppity woman, and makes things much worse by being incapable of giving clear answers to simple questions. But we already elected G.W. Bush, and Ronald Reagan, and Richard Nixon. Write in votes do not count.

# posted by

Fiddlin Bill : 12:24 PM

That would be 18th Century Scale...

# posted by

Fiddlin Bill : 12:26 PM

Brett-

I think it's fair enough to say that someone like Sandy at the APSA, a professional academic organization event, is in a 'bubble' as regards someone like Trump-who is the consummate anti-intellectual and anti-professional politician. But it's always interesting how you don't seem to be the type of 'introspective' person you urge on Sandy, as so many of your comments apply with at least equal force to you and your fellow movement conservatives. Here's a bubble of people that think it's plain that Hillary Clinton is multiple committer of major felonies, that she's clearly long been corrupt, etc. And yet, as you say, half of your fellow Americans are set to vote for her. Have you ever stopped to ask yourself, are half of my neighbors, employees, employers, etc., really voting for someone they know or should full well vote for someone who is such an obvious outlaw and bad person, or is it perhaps I'm part of a partisan bubble that greatly magnifies the certainty and extent of the wrongdoings of the politicians on the other side?

"I've noticed that, for decades, the left has been convinced that anyone who disagrees with them is either stupid, insane, or evil."

Again, this is from a man who regularly here takes the most uncharitable view of those who disagree with his politics and ideology, who has likened those who disagree about fine points of constitutional analysis to bank robbers and tyrants. The lack of self awareness when you utter these kinds of things is frankly stunning.

"a majority across almost the entire landmass of the country"

Like so many conservatives these days, perhaps sensing they only do well in low turnout elections and/or gerrymandered districts, and not with the popular vote nationally, Brett thinks not in terms of 'we the people' of the United States, but rather 'landmasses.' If only dirt could vote...

It's interesting that, despite their rhetoric of 'subsidiarity' and 'de-evolution' of government power, conservatives are currently quite busy on using the power of the states to, er, 'trump' the self-determination of local governments (see, for example, anti-discrimination laws, fracking bans, concealed carry policies, etc.).

# posted by

Mista Whiskas : 12:53 PM

"Consider the Civil War. A policy was set where each surrender involved a general amnesty, so we basically "effectively legalized" treason (dare not call it that to some people).

In retrospect it's hard to say that this policy produced any benefits."

I think there was a tragic misstep in how the mass treason was dealt with. All former Confederates had committed the most serious crime one can in a nation's laws, treason. They should have all been barred from voting and political office for life-notice that Southern states embraced (and the conservative elements there still do, witness the debate in Virginia) the idea of disenfranchising criminals for much less serious crimes (especially in a political sense!), but they whined for totally different treatment when the offense was theirs. Allowing the traitors to rebuild themselves politically got us this reactionary drag on our nation with long lasting effects (see the two maps linked below for examples). We could have made a transformation as great as we did with Germany and Japan, sadly we did not.

https://twitter.com/mcimaps/status/766391768480964608/photo/1

https://en.wikipedia.org/wiki/School_segregation_in_the_United_States#/media/File:Educational_separation_in_the_US_prior_to_Brown_Map.svg

# posted by

Mista Whiskas : 12:59 PM

Henry, there's a good argument that Obama should have tried to prosecute those in the previous administration who broke the law, but I don't get fixating on his failure to prosecute the misdeeds of a recent GOP administration seemingly over and above those misdeeds themselves.

# posted by

Mista Whiskas : 1:01 PM

It was suggested to Lee that he disband his army and let as many that can roam the country-side to continue the war. He said "no," that would cause needless lost of life and destruction. Johnson was out of the range of Sherman. He could have (per the wishes of his President) rejected peace terms (particularly after the more benign terms were vetoed) and let thousands of troops to continue to fight the war.

The same to rebels, by now battle hardened and many willing to continue fighting, in other areas. Or, as they did, the Union government could have determined that the best approach was not to leave them open to treason or not able to vote even for in some cases over fifty more years. On that front, putting aside the provision in the 14A, there was a process used to bring the states back into the field. Also, the Supreme Court determined certain denial of privileges there was unconstitutional.

It is simply unrealistic to think that in 1865 (or even today -- see how the people of Germany was treated or Japan; I'll grant for argument's sake leadership ... also, loyalists during the Revolutionary War was also welcomed back ... so there was precedent) that -- once they swore an oath and agreed to new state constitutions with certain requirements that radically altered the status quo ante -- the majority of the people who aided and abetted the Confederacy could be blocked out, especially for their whole life. Merely the fighting men were a significant amount of the population & that is by far not the only "treasonous" bunch here.

The problem was the lack of will to hold them to the terms & protect the rights of blacks set forth in the Reconstruction Amendments. But, such was the state of the the U.S. government and society at the time. Assuming a rump minority, and former slaves, plus Northerners could govern for decades is unrealistic. It would be today. Yes, the result is unfortunate. Doesn't change that fact.

# posted by

Joe : 1:24 PM

"We could have made a transformation as great as we did with Germany and Japan."

We involved them in their government after a short period of time plus didn't totally defeat the rebels to a similar degree. 1865 and 1945 are quite different times. And, an occupation force with that much power on our own soil is quite different too.

A shorter response that suggests the problem.

# posted by

Joe : 1:29 PM

Mista Whiskas, perhaps I am overreacting as to the possible consequences of Obama's decision not to prosecute Bush and Cheney, and, as I said, defending his decision not on the basis that it would be impractical, but on the basis of the falsehood that to prosecute would not be looking forward. He claimed, in other words, that it would be wrong to prosecute.

My concern is with the aggrandizement of executive power. Obama himself has engaged in torture; in his first administration, he allowed renditions that resulted in torture to occur, and, in his second, he allowed the force-feeding of Guantanamo inmates in a fashion that constituted torture. He also allowed the abuse of Bradley (now Chelsea) Manning, which he stopped only when a group of law professors published a protest letter. But no one has suggested that Obama be impeached or prosecuted, as, after all, his infliction of torture was significantly less than Bush's.

Obama has also claims the power to assassinate suspected terrorists with drones, and he has allowed the no-fly list to continue, despite its being a flagrant denial of due process of law. All these powers that he has seized have become the new norm, and I find it difficult to imagine that Hillary Clinton, or any future President, will not take them for granted and expand upon them. I think that Fiddlin Bill put it well in the second comment above when he wrote that "it's not clear that the US did survive the Bush 'election' and the subsequent catastrophe of 9/11 and the government's responses to that event." The United States is not the same country that it was before 2001. Or, at least, there are reasonable grounds to fear that it is not.

# posted by

Henry : 2:05 PM

"Like so many conservatives these days, perhaps sensing they only do well in low turnout elections and/or gerrymandered districts, and not with the popular vote nationally, Brett thinks not in terms of 'we the people' of the United States, but rather 'landmasses.' If only dirt could vote..."

If you're talking secession, how to divide the territory is an unavoidable question. I'm just pointing out to Sandy that his Pacifica is not a large area, unless you include huge swaths of territory where the people on the ground aren't going to want to go with him. Why should they be dragged along, or uprooted from their homes? Secession for either side would be very messy, even if both sides agreed to in in principle; we're too intertwined.

Sadly, I don't see it being a viable answer.

# posted by

Brett : 2:52 PM

I expect this thread to dontinue for a while and look forward to more commentary. At this point I shall limit myself to the beginning of Sandy's penultimate (still my favorite word) paragraph:

"In Philadelphia I participated in a wonderful panel on the musical 'Hamilton.' The central question, as I see it, is whether it's simply a remarkably imaginative recreation of the American past, with no lessons whatsoever for the American present, or whether the theme 'Rise Up,' is in fact a message being delivered to its contemporary audiences."

The word "recreation" has several meanings. In context, I assume Sandy meant "re-creating" the past in contrast to "recreation" in a sense of enjoying a musical employing some semblance of history as interpreted by the author (although both may apply in part). The NYTimes recently reviewed an off-Broadway spoof "Spamilton" which was quite interesting with its recitals of similar spoofs of other musicals by the same author.

# posted by

Shag from Brookline : 3:39 PM

Perhaps Brett's approach on secession would serve as a counter to WWI's "How Ya Gonna Keep 'em Down on the Farm (After They've Seen Paree)."

Secession is so complex, it's a non-starter.

# posted by

Shag from Brookline : 3:47 PM

"why should they be dragged along, or uprooted from their homes?"

This is something inherent in any government, at any level. Why should the people in Charleston have to go along with the SC state government? Why do the people in the precincts in that city that voted against the most recently elected mayor have to go along with his/her decisions? At any level of government this question can be asked. The only democratic way to decide it is to have it be decided by the votes of people and not by landmasses.

# posted by

Mista Whiskas : 7:04 PM

"plus didn't totally defeat the rebels to a similar degree"

That's partly my point, Joe. The South should have been more roundly defeated, in such a decisive way that even they would have to had to shed their stubborn cultural attachment to reactionary, oppressive government. Look at the results of us not doing so: having a reactionary substantial minority of our nation out of step with our basic values for so long, keeping things like lynching, Jim Crow and the like, keeping a system denying the most basic, fundamental liberties in place until relatively recently in our nation's history. Don't get me wrong, it's understandable that a war weary North would let the South get away with their odious treason so lightly and not follow through with a program utterly breaking the back of their monstrous ideology, but in retrospect it certainly seems the wrong choice was made.

# posted by

Mista Whiskas : 7:10 PM

Henry, I don't disagree with you on the questionable nature of many of the practices you mention (I'd go further to say most are fairly indefensible) that the Obama administration carry out, and I think we seem to agree that, awful as they are, they're at least for the most part better than the previous administration in the same areas, but I think it's over-the-top hyperbole to make statements such as that these practices stemming from reaction to 9/11 mean that we stopped being the United States in some way. However bad the practices of Obama and Bush were, let's remember they pale to the governmental misdeeds and casual treatment of many more civil liberties that existed during the Vietnam conflict, WWII, WWI, etc. We're talking mass secret bombings, mass internment of tens of thousands of citizens, mass imprisonment of war dissenters...However bad certain practices are, things in this area are better than they were.

# posted by

Mista Whiskas : 7:15 PM

"Assuming a rump minority, and former slaves, plus Northerners could govern for decades is unrealistic"

Joe, don't buy into the Southern 'lost cause' reimagining of history. In much of the former Confederacy there was no need to hope for 'minority' coalitions. In 1880 blacks were a majority in South Carolina and Mississippi, 50% in Louisiana, in Alabama the same year they were 48% of the population, 47% in Georgia. Obviously these populations voted nearly unanimously Republican, all they'd need is a handful of white Southern Republican voters to dominate state politics. This would especially have been true if all former Confederate soldiers and officials who were not drafted were, would have been disenfranchised for life (this would only have been rightful, remember these same Confederates when they came to power pushed laws that disenfranchised for life people who had committed much less serious crimes). The only reason the Southern establishment came back into power was through campaigns of terror, political theft/chicanery, and a rigging of the system to disenfranchise the rightful majorities in those states. The federal government should have thrown its full strength behind these natural majorities to utterly crush the ideology and culture of the former Confederacy much like it did to Nazi Germany and Imperialist Japan.

# posted by

Mista Whiskas : 7:33 PM

This comment has been removed by the author.

# posted by

Joe : 7:59 PM

[A lot more could be said given the breadth of the issue but I'll offer this reply to Mr. W.]

The Germans were "more roundly defeated" by the Hitler committing suicide and the Hitler not giving up until the Russians were literally at his doorstep. The Japanese was "more roundly defeated" by two nuclear bombs being dropped on them.

I don't think that level of defeat was going to happen here. It was more the WWI situation when the South knew they was defeated and didn't fight to the last man or something. AND, even then, we didn't disfranchise German and Japanese citizens per your analysis. You wanted to disfranchise those who took part in the war.

Within a few years, Germany and Japanese had self-government, Japan's emperor left in and not even the 14A process set up regarding an extended process for their leaders to come back. The South had their basic system of slavery taken away. They had to pass new state constitutions that ala Germany and Japan greatly changed their system of government & in the mid-19th Century before the modern state that did such powerful things truly developed. And, it wasn't foreigners. It was fellow American citizens. Finally, the overall idea that it was acceptable to secede from the Union was generally understood to be wrong. Basic changes were accepted.

====

I'm not buying into any lost cause. Only a fraction of the Southern society did not actively in some fashion commit treason on the U.S. You said these "should have all been barred from voting and political office." Thus, you wanted a minority of locals along with outsiders and newly freed blacks [who were just handling the messiness of freedom, newly becoming citizens etc.] to rule the area for decades. This didn't even happen in Germany and Japan. The people who fought us soon was given power again. Even with the might of a modern state and foreigners.

The federal government should have thrown its full strength to deal with the extended process necessary to deal with the new birth of freedom, which would have required at least a full generation of protecting the rights of newly freed slaves & so on. There simply was not the will to do that, especially the "ideology and culture" of not letting local racist white rule overwhelm them when the North was pretty racist as is. In the 1870s, the extended national effort that would entail was just too foreign as well. The change in federalism required was not accepted, the modern federal government not in place in any complete form yet.

The Reconstruction Era approach of bringing back states as their reconstructed their local governments with new constitutions and black suffrage -- a remarkable change for a slavery society where even non-slave states were quite racist -- was appropriate. In some states, blacks by mere numbers would either have majority power or be a significant force. If their rights were proteced by the federal government.

But, EVEN THEN, we wouldn't have life time disfranchisement of the majority of the local whites who committed treason. That didn't happen in Germany or Japan in a quite different time period. The lowly Confederate private who voted accepted the new state constitution with black suffrage etc. would like the German and Japanese in a few years have some role in voting etc. If they refused to take an oath, was shown to not accept the new way, etc., it would be different. The 14th Amendment added more power to use carrots and sticks here & keep former Confederate leadership out for an extended period of time. This would have taken a lot of effort.

# posted by

Joe : 8:14 PM

This comment has been removed by the author.

# posted by

Joe : 8:20 PM

I think the North hesitated to impose a wider disenfranchisement because it feared a guerrilla war. Armies in those days had no real capacity to fight such wars (and even now it's very hard). For that reason, a wider disenfranchisement was never in the cards no matter how just it may seem to us today.

I suppose disenfranchisement of the officer and political class might have worked. However, even the lesser penalty imposed by Sec. 3 of the 14th A ended up having little effect. If Wade Fucking Hampton could end up as governor of SC, then the concept of "penalty" had no meaning.

The one penalty that might have made a difference would have been to actually enforce limits on the number of Southern Representatives based on the actual votes cast rather than some vague and never-enforced phrase. Such a clause could probably have been worded to be self-executing.

But notwithstanding all that, the fact is that the South was content to isolate itself for 60-90 years after the War. As long as nobody from the Feds interfered with their oppression of the former slaves, other issues -- economic development, income inequality, etc. -- weren't important enough for them to change.

# posted by

Mark Field : 8:49 PM

There's a limit to what you can do to the losing side in a civil war, if you want to still be a democracy afterwards. A lot of things that you can get away with in another country, that you don't mean to integrate into your own, have to be off the table. I realize this isn't good enough for the modern left, which is more into Conan's, "Crush your enemies. See them driven before you. Hear the lamentations of their women.", and thinks all victories must be total. But it's still so.

# posted by

Brett : 5:57 AM

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# posted by

Unknown : 8:07 AM

joe, a lot of what you're saying amounts to practical reasons why the North didn't do what I suggest, reasons that have to do with faults within the North (they too were racist, they were reluctant to devote the resources I'm talking about). I agree that Northern racism undercut it's will to shape the South in a way that a culture hell bent on oppressing their fellow citizens would have gone away instead of hanging around perniciously for decades after their official defeat. Since I'm talking about what I think the North *ought* to have done, in other words had they not these faults, I'm not sure they're rebuttals.

"I think the North hesitated to impose a wider disenfranchisement because it feared a guerrilla war."

Well, they got one anyway, in the form of the Klan and other coordinated terror efforts. Indeed, the got essentially 'guerrilla governments' that, for decades, undercut the official legal measures passed as a result of the war to keep the South from doing near what they were eventually bested for in the first place. What I'm saying is that it would have been better to have gone ahead and met that 'guerrilla war' head on while they were organized for war. I wonder how much 'guerrilla war' Sherman worried about in his March...

"There's a limit to what you can do to the losing side in a civil war, if you want to still be a democracy afterwards."

Here's why I find this easily dismissed and likely disingenuous: the very people and forces I'm saying the North should have been harder immediately upon their official defeat began to take away the most basic democratic rights and civil liberties from the slaves that had just been forcibly freed. So you end up saying 'well, we couldn't have taken away some rights and liberties from the former Confederate whites for their taking away the rights and liberties of the former slaves, because the former would be undemocratic!'

To me it's fairly simple as a matter of right: those who voluntarily took up arms against the United States government were guilty of treason, and under the law of the time could be deprived of life and/or liberty. Who can argue otherwise (I'm talking other than the practical and 'lack of will' arguments offered)? They would be getting off *easy* with lifetime disenfranchisement. If taking up actual arms in an actual violent attempt to overthrow the government is not treason I don't know what is. Now, one thing the former Confederates agreed on was that there should be 'civil death' for those who committed a host of felonies (of course, mainly ones they were aware blacks tended to commit more). If treason is not the kind of crime that warrants political disenfranchisement then I don't know what is! I'm only arguing what's not only legally warranted, but what the Confederates themselves wholeheartedly believed, and acted upon, in lesser cases. All those who voluntarily joined the war effort should have been disenfranchised (all those drafted or who did not and of course those too young at the time to make any other decision meaningfully should not). That, and a few other measures (such as keeping a stiff troop presence in the South while starting to preferentially recruit, train, arm and keep mustered in the South black soldiers-much of the terror unleashed on the former slaves was due to the former Confederates being recently organized and experienced in military ways while the slaves were not), should have been followed, with liberal experimentation followed until 'what worked' was found.

# posted by

Mista Whiskas : 8:09 AM

You compared it to Germany and Japan, Mr. W., and again it wasn't the same time, it wasn't the same level of defeat & it still wasn't done as harshly as you suggested.

And, what "ought" to have been done is a matter of the realities of the situation. This goes back to those upset about the Constitution compromising with slavery. The realities of the situation required that to some extent & as things go, it is striking how little explicitly there to reaffirm slavery, even some what was used not mandated by the text or (per Taney) wrongly applying it.

This is a counterfactual, of course, but to me the realistic & practical approach was something like what was done by a much more extended level of enforcement of rights & extended oversight as the great changes of the society continued. Again, this would have involved a lot of national control of the locals, a level radically different from the norm before then -- note the strong pushback of what was done (Andrew Johnson a traditionalist here).

I think historically the best approach of governments who defeated peoples was not some life time of disenfranchisement of all involved in the battle against them. The leadership was somehow defanged (though in time, even there, local leaders arose again -- not fifty years later, after that generation died) and some of the people involved are given power if they agree with the new rules. That is, swear an oath, agree to black suffrage etc.

# posted by

Joe : 9:21 AM

As a matter of justice, I also don't think some Confederate private deserved life time disenfranchisement, especially if they showed an ability to live in the new system. So, there is a difference of opinion there too.

The ultimate concern for "treason" is also notable. The South accepted that secession was no longer proper. They accepted some bare minimum (slavery) was no more. The next level of black equality was not accepted. The North in practice didn't either. So, our goals here are high too. The war is now not against treason or even slavery. It is for black equality. And, those who committed treason should not be involved in self-government for the rest of their life to put this in place.

We are stretching the goal posts there, putting aside in practice (no matter how justice might feel slighted) the practicality of the situation is important, since it is going to relate to what actually happens to the people whose interests we are concerned about. And, it will be imperfect no matter what we do. It's nice to think of some ideal situation but this is the real world.

# posted by

Joe : 9:40 AM

Well, they got one anyway, in the form of the Klan and other coordinated terror efforts.

Agreed, though at a lower level than they might have had otherwise.

Basically, I can't disagree with you on the theory. The practicalities make me less sure it would have worked, but I'd have preferred to try your way.

# posted by

Mark Field : 10:06 AM

"it wasn't the same level of defeat "

My contention is that it *should have been.* Likely, only a Sherman-esque defeat would have broken the culture of persistent reactionary oppression which permeate(d?) the South.

"what "ought" to have been done is a matter of the realities of the situation"

Well, in two different senses. There's what ought to be done in the sense of 'the North shouldn't have let it's own racism undercut it's efforts in fashioning a South which didn't oppress blacks' and there's what ought to be done in the sense of 'it would have been hard, in terms of logistical possibilities of the day, to keep up the kind of occupation that likely would have worked.' I grant the latter, but my point is squarely about the first type of 'practicality,' namely that it was a moral failing that should have been overcome, and it would have been to the nation's benefit to do so.

"I also don't think some Confederate private deserved life time disenfranchisement, especially if they showed an ability to live in the new system"

Maybe. But you know who deserved lifetime disenfranchisement even less? Some poor black ex-slave who was convicted by an all white jury of stealing a hog. The ex-Confederates when they gained power moved swiftly to disenfranchise that guy and everyone like him, for life. Whatever problems there are with the ex-Confederate private who joined the cause of treason in the defense of slavery being disenfranchised for life, they pale in comparison to what those ex-Confederates happily rushed to enact once they got the chance. My point is I'd be far less appalled at disenfranchising the ex-Confederate than the black thief, especially if doing the former would have prevented the latter!

"Andrew Johnson a traditionalist here"

Let's call a spade a spade, Johnson was only a 'traditionalist' in the sense that white supremacy was a tradition of that era and place.

"The South accepted that secession was no longer proper"

Only after defeat! Again, I feel far less sympathy for conscious traitors in the defense of slavery in that, only after they found their behinds whooped, they decided to give up explicit treason and settle for undermining the guaranteed rights of their fellow citizens in less explicitly treasonous ways.

# posted by

Mista Whiskas : 10:25 AM

Not to change the direction of this thread on justice/punishment for the "original sin" of our Constitution as it has evolved, via the Civil War, Amendments and otherwise, I'd like to introduce Matthew Sheffield's WaPo OpEd of 9/2/16 "Where did Donald Trump get his racialized rhetoric? From libertarians." I assume some of our self described libertarians at this Blog may take objection, especially those planning to vote the Libertarian Party in 2016. There are many varieties of libertarians, so Sheffield is not necessarily tar and feathering all libertarians, just some prominent ones who were politically assertive over the years pre- post-civil rights movement in the latter half of the 20th century.

# posted by

Shag from Brookline : 10:44 AM

Shaq, thanks for your comment. If you read the writings of notable libertarians from websites like Cato, Reason and Volokh you'd ask 'wtf is this talk of racism coming from, these people are far from the racist right!' But if you read the comments at the same place you'd find something quite different, racialist abound there. As a *theoretical* matter libertarianism seems quite opposed to racism, as it rejects 'collectivist' thought for judging people as individuals and would reject the kind of overt, government backed racism of (largely, but not exclusively, Southern governments). But look at it again. As a historical matter, libertarianism took off with Goldwater's campaign, a hallmark of, and a key component of geographical-political re-alignment where the South started trekking to the GOP, was his 'principled' opposition to the Civil Rights Act. If you don't like blacks, but you don't want to be labeled a racist, and you're convinced that government, especially the federal government, is a friend to blacks as opposed to the 'state's rights' racists who would do them harm, then libertarianism becomes quite attractive. After all, doesn't welfare help blacks at the expense of whites? Doesn't federal anti-discrimination law help black employees, loan seekers, housing seekers, etc., at the expense of white employers, bank officials, landlords? When you think an institution helps a group you don't like, but being for the institution actively, explicitly hurting blacks is not an option, then a philosophy of just being against the institution itself is 'the next best thing.' Read the comments sections of libertarian websites and you'll see what's going on...

# posted by

Mista Whiskas : 10:55 AM

The defeat in Germany and Japan wasn't "breaking the culture" or even laying wreckage of a strip of land.

It was a level of death and destruction of a higher magnitude. Sherman's approach worked to some degree for the lesser goals (end of the war etc.). They accepted -- after decades of always threatening it -- that secession was wrong. They accepted slavery was done. Racial equality was a whole new thing.

Yes, blacks didn't deserve to be disenfranchised. So, the feds should have continued (and done more) to protect their interests. And, in practice and to me as a matter of justice, part of the solution would be to involve those privates. It's not a matter of "what was worse" ... so that doesn't get me that far.

I'm also not defending "tradition" here -- so you can call a spade a spade. The tradition was racist and so was the effects of local rule without enough national protection of rights. And, things we do today are bad, and part of it is that realistically the alternatives are worse or not possible except as some sort of thought experiment. People pointing out such and such leaves something to be desired doesn't change that.

And, yes, they accepted secession was no longer proper after they were defeated. I was pointing out that they DID significantly alter their mindset in various ways. Plus, you singled out the treason part. Well, on that, they the culture did change. And, not just there. I'm also not trying to have "sympathy" as such though just damning "those damn rebels" would be a tad simplistic.

I do think both as a matter of "ought" and "should" we have to look at this realistically, including if we care about the interests of the victims.

# posted by

Joe : 10:59 AM

It should be noted that the Bush Administration policy of disenfranchising the Sunni Iraqi political and military establishment as part of their attempt to somehow "nation-build" in Iraq is viewed as the cause of the rise of ISIL. It's true that the Klan is or was a terrorist force backed by white supremacists in the South. It's also true that the ordinary soldiers of the Confederate Army were mostly fighting for white supremacy and slavery in the sense that their states held such policies, and started a civil war about it. The young men who suffered and died or survived the horrors then mostly struggled to survive an extremely harsh economic world for the rest of the 19th Century. You could get shot for refusing to accept conscription, and also you could get summarily shot for desertion. Some of the officers did well, but mostly they were already in the economic elite before the war. I'd guess that in such a thought experiment as an even harsher punishment for being on the Confederate side, the primary result would be more resistance, more guerilla actions, more lynchings, more political assassinations, and an even more divided United States, possibly so divided as to be unable to even react with common purpose to the world threats of Hitler and militarized Japan. In areas of Northern Ireland, even in the 1990s, there were signs posted in some neighborhoods stating "Sniper at Work." The Yugoslavian collapse into Civil War based on hatreds extending back to the 14th Century also comes to mind.

# posted by

Fiddlin Bill : 11:02 AM

As Shag notes, libertarians are a mixed bag (we have two who have labeled themselves conservatives), and part of it is their approach as a certain pragmatic quality. Concern for local government having control benefits racism in certain cases while the people accept national control in other areas including those libertarians who welcome a strong executive in the area of foreign affairs.

Jeffrey Rosen's new book on Louis Brandeis suggests a possible different approach, a person who feared "bigness," be it corporate or governmental. Book is a quick read and is recommended. He has also discussed it in various interviews including on CSPAN, so those interested can listen to it be discussed.

# posted by

Joe : 11:05 AM

As a historical matter, libertarianism took off with Goldwater's campaign, a hallmark of, and a key component of geographical-political re-alignment where the South started trekking to the GOP, was his 'principled' opposition to the Civil Rights Act. If you don't like blacks, but you don't want to be labeled a racist, and you're convinced that government, especially the federal government, is a friend to blacks as opposed to the 'state's rights' racists who would do them harm, then libertarianism becomes quite attractive.

In his biography of Willie Mays, Charles Einstein said that if Goldwater was not himself racist, he was the Typhoid Mary of racism.

# posted by

Mark Field : 11:12 AM

"So, the feds should have continued (and done more) to protect their interests."

Joe, you seem willing to say 'the feds should have done more in the area of X, but not in the area of Y, because Y would have sparked such resistance from the Southern a-hole!' But the attempt and thought of X sparked such murderous, sustained resistance, and would have if continued. That to me says all that's need to be said about such 'half measures.' In the South we were dealing with ISIS level fanatics, extreme a-holes warranting extreme countering.

# posted by

Mista Whiskas : 11:19 AM

Mark, thanks for that. I honestly don't think Goldwater was racist. I do think he was an especially useful idiot of racism. Sometimes one's abstract political philosophy can make one blind to the practical realities of how that philosophy is, in a given point and time, being nearly totally used by bad actors (racists in this case).

# posted by

Mista Whiskas : 11:22 AM

"ISIS level fanatics"

Perhaps, drone warfare? Balloons were available.

Yes, it is a matter of degree. Not just "resistance" but basic will and ability on the part of the federal government.

# posted by

Joe : 11:23 AM

Joe, I'm not asking for drone warfare equivalents. Sherman-esque tactics to illustrate to these fanatics the clear futility and failure of their reactionary cause is one starting point, simply giving those fanatics what they legally clamored for themselves as right and proper when applied to blacks, namely disenfranchisement of all felonious traitors is another.

# posted by

Mista Whiskas : 11:28 AM

"Sherman-esque tactics"

so just razing their farms or something?

If you are going to compare them to ISIS, it's fair to think we are talking about similar treatment. But, even there, denying all the people who aided and abetted ISIS from involvement in governing for decades won't work that well.

You continue to focus on "traitors" but the traitor part was handled. They realized the futility of that approach. "Felonious" is a tad redundant. Plus, the true "fanatics" here were a segment of the population. There was a wider group that went along. Just stripping the majority of voting rights in practice as I understand history is of limited value in the long run, even if the will and ability to do so was there. The thought experiment nature of all of this alone is artificial.

# posted by

Joe : 11:42 AM

Sandy Levinson's rantings are no less a symptom of Wiemarization than the rise of Trump.
The coastal elites serve only themselves; elite liberals' earnest concern for others is self-aggrandizing hypocrisy.
German liberalism in the 30s existed in an intellectual bubble economy, an imagined world beyond actual politics. Google site search found 82 uses of the phrase "connect the dots". And yet that's one thing Levinson is incapable of doing.
And he trots out Richard Hofstadter: "If only the people would listen to the Harvard Boys."

Mark Blyth teaches at Brown, but I'll let that one pass. He's pretty good
https://www.youtube.com/watch?v=nwK0jeJ8wxg

And Levinson's howling about fascism while being a staunch Zionist has always been a hoot.

# posted by

D. Ghirlandaio : 12:27 PM

Sandy: Rather, when asked what Clinton would/should do if the sociopath won, the answer seemed to be some version of "she should be a good sport--and presumably good American, like Al Gore--and concede graciously," whatever exactly that would mean. When I demurred, suggesting that his election would simply be catastrophic and that there was no reason at all to accept it graciously, the reasonable question was asked of me: what did I envision as the alternative? Taking up arms? A military coup? Or, as I have written several times, a secessionist movement led by Pacifica and New England (plus New York) that would reasonably state that they had no desire any longer to be part of a country that would place a sociopath in its highest office. All, to be sure, sound either fanciful or out-and-out dangerous (or, to some, lunatic). But exactly why is it less dangerous or lunatic to accept without question the legitimacy of a Trump presidency?

Really?

And I get a load of crap here for even suggesting that an armed revolution is a legitimate last resort when all branches of the government surrender to dictatorship.

In any case, if he and a GOP Congress win election (which is becoming more and more likely), what do you seriously believe that Trump can accomplish which would violate the Constitution and/or the laws of Congress and justify a military coup? (You progressives do not have the military experience nor are you sufficiently armed to launch a respectable secession or revolt.)

Trump can stay within the law and accomplish nearly all of his immigration promises merely by enforcing the law as written. Reversing all of Obama's dispensations from Congress's immigration law would take a single executive order. A Trump INS can deputize the willing law enforcement agencies of most states to deport many of the population of illegal aliens. FDR and Eisenhower both did this. All Trump needs to do to shut down immigration from terrorist countries is enforce a strict vetting process. The only part of Trump's plan which would require Congress is funding his wall.

Trump can also very legally withdraw from trade agreements, most easily the executive agreements and very arguably treaties as well, without a farethewell to Congress.

This is all bad policy (exceedingly so in the case of rolling back free trade) IMHO, but well founded in American tradition and law, and hardly things for which the military will agree to launch a coup d'tat to reverse.

The rest of Trump's platform, such as it is, will require passage by Congress and a supermajority of the Senate (because McConnell will not repeal the filibuster). Good luck with that. The problem with winning election without a firm platform and with only a mid 40s plurality is that you have no mandate and there is no reason for the Democrats or the establishment Republicans to fear you. This reality also applies if your ill dowager queen in waiting manages to hold on to be wheeled into the White House.

Trump could pull a Dubya and attempt to roll back some of the tidal wave of regulations imposed by the Obama bureaucracy. The problem is that the progressive bureaucrats and courts will likely thwart him the same way they did Dubya.

I am uncertain if Trump will continue the Obama expansion of the bureaucratic dictatorship as Clinton almost certainly will. The Donald definitely has the same authoritarian impulses as Obama and Clinton, but he does not appear to be a fan of regulation. Even if he followed in Obama's footsteps, I doubt that would bother most progressives and cause them to call for a real life enactment of Seven Days in May. (I wonder how many here even know the novel to which I am referring?)

# posted by

Bart DePalma : 3:31 PM

Plenty of progressives have guns and military training. We are told altogether too often that our base is filled with criminals and felons--so one must imagine if this heated gun barrel fantasy of yours really took place, a few of the criminals would find sufficient hoards of conservative guns to spread around.

If I were an egotistical authoritarian intent upon uprooting millions of human beings and shipping them across borders in a modern day take on Partition, I would be far more worried about massive walkouts, strikes, and working to rule amongst the non-political positions that answer to the executive branch.

That will be far more crippling than an upstart militia in a rural district shooting at the black helicopters.

# posted by

PMS_Chicago : 8:48 PM

Jack has now crossed the Rubicon with Obama, is openly advocating a Democrat (but not a Republican) presidential and bureaucratic dictatorship, and is calling on a Democrat judiciary to rubber stamp it.

https://balkin.blogspot.com/2016/09/presidential-governance-political.html

In doing so, Jack is not only violating his attorney's oath to support the Constitution, but is arguably committing the felony crime of advocating the overthrow of the government. 18 U.S. Code § 2385.

This is WAY beyond the pale for a professor of law.

# posted by

Bart DePalma : 9:10 PM

This comment has been removed by the author.

# posted by

Bart DePalma : 9:15 PM

PMS_Chicago said...Plenty of progressives have guns and military training. We are told altogether too often that our base is filled with criminals and felons--so one must imagine if this heated gun barrel fantasy of yours really took place, a few of the criminals would find sufficient hoards of conservative guns to spread around.

How long do you believe your revolutionary Democrat gang bangers would last against the National Guard putting down your insurrection?

If I were an egotistical authoritarian intent upon uprooting millions of human beings and shipping them across borders in a modern day take on Partition, I would be far more worried about massive walkouts, strikes, and working to rule amongst the non-political positions that answer to the executive branch.

If the progressive bureaucracy wants to go on strike, do you really think anyone would miss them apart from Democrat government dependents?

# posted by

Bart DePalma : 9:15 PM

Sandy:

It does not look like the Americans filling the stands of this Red Sox game are ready to secede.

https://youtu.be/XJLWK-ldUqg

# posted by

Bart DePalma : 10:28 PM

The military itself is a bureaucracy made up of red and blue Americans. The logistics behind the military and the hardware/software it uses are in some extremely progressive hands.

Again, quit thinking of progressives as anathema to the military--a lot of us served and still serve today. We are Americans and will fight to the death just as readily as you will to defend it and its institutions. Start with that premise and rework your notion of civil strife. Look for compromise rather than gloat about an easy assured victory in your own war fantasy pipe dream.

If Trump wants to uproot millions of people from their families and ship them across a border, how should we respond as Americans? How can we work together to minimize the damage done by such an irresponsible move? How can we thwart it within the system and preserve Republican/right-wing reputations? These are the kinds of questions you should be concerned with. Because destroying the lives of productive members of society is inherently anti-American, especially when they have been encouraged to immigrate by the commercial interests so near and dear to Congress's heart. You can't take that position without backlash, and you can't expect that backlash to split on the political divide.

# posted by

PMS_Chicago : 10:55 PM

PMS, please do keep in mind that the left's power center is in the city centers, and the right's power center is... everywhere else. Your average city center, (Chicago, for instance.) is only a few days away from starvation at any given moment; The food is all produced and stored in the Republican rural areas. It wouldn't even take deliberate action to starve the left into submission, just things getting messed up.

The left may be fond of playing around with riots, on a small scale, but large scale social disruption would not go well for you. Your only real hope of prevailing is a continuation of normal order while you subvert things. That's the left's real strength: Subverting institutions other people created, and turning them to it's own ends. Revolution would NOT be playing to your strength. It's too open and honest, lets people know they have something they need to resist.

Bart, that's my take on Jack's essay, too. And, imagine, they've worked themselves up to this point just from Trump reaching about a 1/3 chance of winning. If he draws into the lead, what are they going to do?

I think a lot of people on the right fall into the habit of thinking that the left are just normal competitors in the political system, in game theory parlance, repeat players. When they're really playing to end the game, working towards final victory.

If they can't achieve it by convincing people to vote for them, they're open to other means. Democracy is only a legitimate form of government so long as they win the elections, after all.

# posted by

Brett : 5:32 AM

Perhaps SPAM I AM! should be more personally concerned with whether he hasn't been violating his oath as an attorney regarding the Constitution. The Archives of this Blog are replete with his views, including from time to time armed revolution as an alternative to governance he doesn't like. Such armed revolution is not set forth as a right in the Constitution. Keep in mind that in SPAM I AM!'s mountaintop community he's just another pisshole in the snow, descriptive of the color of his character.

# posted by

Shag from Brookline : 8:39 AM

"Reversing all of Obama's dispensations from Congress's immigration law would take a single executive order."

That the same man that can argue till he's blue (well, in his case red no doubt) that Obama's administrative decrees constitute TYRANNY and DICTATORSHIP can then turn around and concede that this iron fist can be forced open by the extra-ordinary measure of...simply electing another executive in one of our regular, periodic elections who can then easily reverse it all, is really quite something in the Annals of Lack of Self-Awareness, isn't it?

"In doing so, Jack is not only violating his attorney's oath to support the Constitution, but is arguably committing the felony crime of advocating the overthrow of the government. 18 U.S. Code § 2385."

Please, a stronger case can be made that you, with such a clue-less reading of JB's writing, should be disbarred for incompetence and/or disability.

# posted by

Mista Whiskas : 6:33 PM

"If they can't achieve it by convincing people to vote for them, they're open to other means..." Brett above.

See, e.g., NC's new restrictions on voting rights, and similar GOP backed restrictions in many other GOP governed states. Oh wait....

# posted by

Fiddlin Bill : 12:04 PM

"a lot of people on the right fall into the habit of thinking that the left are just normal competitors in the political system"

Of the two sides these days, "the right" doesn't seem the one more likely to assume the other side is merely "normal competition." They are more likely, all things being equal, to think the other side is illegitimate.

The Right in recent years are the one "subverting" things -- see, e.g., the Tea Party, which is not to say in illegitimate ways as such (sometimes, they leave something to be desired). Credit where due and all that. For instance, various means to restrict voting numbers. Or, have a minority in the legislature to block a majority (filibuster). It has been pointed out "the left" uses judicial review. Ditto the Right, with various successes that overrule popularly passed legislation.

Also in principle argued -- e.g., land over people should be more important.

# posted by

Joe : 5:18 PM

Fiddlin, it's an insult to the memory of the voting rights movement, to describe small reductions in early voting as "new restrictions on voting rights". To so describe them while passing on, for instance, NY having NO early voting, is blatant hypocrisy.

# posted by

Brett : 6:19 AM

This one's for you Bart

https://www.youtube.com/watch?v=93n-EmGknEU

"Members of the corps
All hate the thought of war;
They'd rather kill them off by peaceful means."

# posted by

D. Ghirlandaio : 3:49 PM