Friday, May 12, 2023

Disquieting Reflections On Jeffrey Toobin’s Homegrown: Timothy Mcveigh and the Rise of Right-Wing Extremism

Sandy Levinson

The principal thesis of Jeffery Toobin's excellent new book Homegrown: Timothy McVeigh and the Rise of Right-Wing Extremism is contained in the subtitle.  Toobin aims to show that the kind of crazed animosity against the national government--and the legitimation of violence as a means of resisting what its adherents call "tyranny"—directly links McVeigh, executed for the Oklahoma City bombing that killed 168 people in 1995, and the January 6, 2021 attempted takeover of the Capitol as part of an effort to overturn the election of Joe Biden.  Toobin objects to the extensive portrayal of McVeigh as a "lone wolf."  Toobin argues that this is misleading, that he was really quite integrated into various insurrectionist movements at the time.  “McVeigh,” Toobin writes, “belonged to a thriving and enduring political movement in the United States” (p. 208), organized around both the belief in the malignity of the United States government and the overwhelming importance of guns (and the fear that the government would take away guns).  Toobin is unfortunately correct in suggesting that much of McVeigh’s view of the world has now become close to GOP orthodoxy, not to mention the capture of the Supreme Court by gun-rights zealots.  It was the lack of the modern internet and social media that made him appear more of a lone wolf than was in fact the case. 

This did not mean that he was part of a large conspiracy that carried out the bombing.  Toobin presents overwhelming evidence that McVeigh and Terry Nichols really did it by themselves, but, crucially, they were stimulated in their anger and belief as to what might be acceptable, even "necessary," violence by such writings as The Turner Diaries and the shortwave radio broadcasts, to which McVeigh listened fanatically, of Bill Cooper and others.  Toobin also gives a lot of “credit” to the late Rush Limbaugh for providing a constant source of scurrilous attacks on anyone he disagreed, often accompanied by a rhetoric of suggested violence.  Nothing conveys Donald Trump’s corruption of what we might still like to think of as central American valuss than his having awarded Limbaugh the Presidential Medal of Freedom during his dying days. 

An important part of Toobin's argument has to do with the extraordinarily narrow prosecutorial focus of Merrick Garland, who directed the prosecution from Washington.  "Because his job was to win a conviction, not to enlighten the public, Garland wanted a trial devoid of the 'clutter' of ideological context" (pp. 309-310).  Almost needless to say (though Toobin in fact says it), the same kind of devotion to a single conception of prosecutorial duty seems to describe Garland's behavior, now as Attorney General, concerning the prosecutions regarding January 6.  One can still believe that Garland would have made a fine justice of the Supreme Court.  By all accounts, he is an unusually decent man as well as dedicated jurist, but one can also believe that his narrow conception of duty has not, overall, served the country well.  Bill Clinton, who was President at the time, did try to connect the dots between McVeigh and wider movements, including the so-called "militia" movement, but he obviously had many other things on his plate as well, and the "lone wolf" portrayal of McVeigh ended up as dominant.

Toobin is also caustic in his criticism of “the willful blindness” of Barack Obama for his failure to support a report in 2009 by the Department of Homeland Security that pointed to homegrown right-wing terrorism as a major threat.  Not surprisingly, Republicans protested, and Obama “surrendered without a fight,” with Homeland Security Secretary Janet Napolitano apologizing for the report and withdrawing it.  For whatever reason, Obama was reluctant to lead a national discussion of the trend toward right-wing violence, even if he did memorably sing “Amazing Grace” in Charleston after the massacre there.

These are all important arguments, obviously relevant to the current political scene.  However, I want to focus on another aspect of Toobin's book that should be of special interest to those readers of Balkinization who are legal academics or interested in the cultural role played by "the Constitution" both in public discourse and in the minds of individual American citizens.  For obvious reasons, Toobin condemns McVeigh as a homegrown terrorist whose views, if widely accepted, constitute a clear and present danger to the maintenance of the American republic.  I do not disagree.  Though I am opposed to capital punishment, I would have found it hard to support sparing his life.  Not only was it clear beyond any reasonable doubt that he did it; he was also completely unrepentant and viewed the murder of children in a day-care center located in the Murrah Building as simple “collateral damage” that is part of all military operations (such as those he had engaged in while serving in Iraq, where he won awards for bravery). 

That being said, I think it is important to focus more closely on McVeigh's particular form of genuine dedication to "the Constitution" as he perceived it.  Quite frankly, he is altogether different from Donald J. Trump, portrayed by Toobin, accurately I believed, as the dominant architect of the actual events of January 6 by virtue of his lies about the 2020 election and, even more to the point, by summoning his followers to Washington and encouraging them to "fight" to save the republic by rallying behind Trump himself.  Trump, though, offers nothing of interest to the constitutional theorist save as a baleful reminder of the failure, contrary to the assurances set out in Federalist 68, that the Electoral College would serve as a guardrail against the election of a terrible demagogue to our highest office.  He has no genuine knowledge of the Constitution, and it is doubtful that he has ever spent a waking minute thinking about American history or the Constitution as it emerged in 1787 and thereafter.  He is a true ignoramus in every sense of the word, not least because all of his energies are devoted to narcissistic gratification.  That was not true of McVeigh.  To be sure, he lacked formal education in constitutional niceties, but that does not mean that he did not, in his own way, study our history and the role of the Constitution in it.  So, as Arthur Miller reminded us about Willy Loman, another lost soul, "attention must be paid" to McVeigh's particular views.

So consider in this context a letter mentioned by Toobin, but not, I think, quoted at sufficient length.  It can be found in a superb book (that Toobin cites), by Jared Goldstein, REAL AMERICANS:  NATIONAL IDENTITY, VIOLENCE AND THE CONSTITUTION at p. 199: 

Those who betray or subvert the Constitution are guilty of sedition and/or treason, are domestic enemies and should and will be punished accordingly… I have sworn [when entering service in the U.S. armed forces] to uphold and defend the Constitution against all enemies, foreign and domestic and I will. And I will because not only did I swear to, but I believe in what it stands for in every bit of my heart, soul and being.  [Violence is necessary to] put a check on government abuse of power where others have failed in stopping the federal juggernaut run amok.  (emphasis added) 

We make a mistake, I believe, simply to ignore this, and many other statements that Toobin quotes throughout the book that testify to McVeigh’s deep identification with the patriots of the American past.  The Constitution requires that every public official take an oath of loyalty to the Constitution.  McVeigh did so upon joining the United States Army.  One might believe that most people treat the oath as a mere ritualistic formality.  What, after all, does it really mean?  To answer it requires proffering a full-fledged theory of the Constitution, which is obviously no small task.  One temptation is to say that we are fortunate to have an institution—the Supreme Court—that takes upon itself the task of developing such a theory, so that our task, as loyal citizens, is simply adhering to whatever the Court says.  In my first book, Constitutional Faith, I compared this institutional theory to that of the Roman Catholic Church’s assignment of authority to the Pope, who in certain circumstances is indeed regarded as “infallible.”  I contrasted this with a more “protestant” notion of authority—one I happen to share—that allows each of us to participate in the task of attempting to give meaning to the United States Constitution.  If Martin Luther called for “the priesthood of all believers,” then I am tempted to endorse “the lawyerhood of all citizens.”  One of the points that Jack Balkin and I make in the casebook we edit, along with Akhil Reed Amar, Reva Siegel, and Christina Rodriguez, is that much valuable discussion of the Constitution occurs outside the judiciary, whether in other institutions like the presidency or Congress, in mass social movements such as the “New Departure” advocated by many women after the passage of the Fourteenth Amendment, or individuals such as Frederick Douglass. 

To assert a given theory of the Constitution is not, of course, to justify it.  But, as already suggested, it does require arguments as to why exactly it is wrong, even pernicious.  McVeigh’s arguments were most certainly pernicious, and one can easily argue that they were wrong in many respects.  But he did have a developed notion of what it meant to take the Constitution seriously and, therefore, what might be required to defend it against all enemies, whether foreign (as in Iraq) or domestic (as in Oklahoma City).  Lest one focus too much on the fact that he was obviously uneducated, think of Stewart Rhodes, probably the most prominent leader of the Oath Keepers, who was recently convicted of seditious conspiracy for his actions on January 6.  A graduate of the University of Nevada at Las Vegas, he also received a law degree from the Yale Law School.  Think for a moment of what is conveyed by the term “Oath Keepers.”  And then read Rhodes’s statement that “[y]ou get pissed off patriots that are not going to accept their form of government being stolen.  We’re walking down the same exactly path of the Founding Fathers.”  Josh Hawley received first-rate education at Stanford and then the Yale Law School, but that did not prevent him from offering a high-five to the insurrectionists on January 6.  The Harvard Law School, of course, can claim Ted Cruz, who joined Hawley in voting against certification of Biden’s election on January 6.  It was Cruz who told a national convention of the National Rifle Association that “When the Second Amendment says ‘shall not be infringed’ it means exactly that.” There are, apparently, no “compelling interests” that justify even a scintilla of infringement.  Let the extreme reading of the Second Amendment be honored though the heavens fall!  McVeigh certainly would be gratified to know that many of his views are now thoroughly mainstream.  Indeed, Toobin notes that the crime for which McVeigh was actually stopped and arrested by an unknowing police officer, “unlicensed possession of firearms,” is no longer a crime in Oklahoma.  Like Texas, Oklahoma has legitimized the carrying of firearms by practically anyone anywhere.  Perhaps McVeigh could have been given a ticket for a defective license plate on his car when he was stopped, but he could not have been arrested and brought to the court for further processing. 

Barbara Jordan electrified the country in 1973 when, during the Nixon Impeachment hearings in the House of representatives, she declared that her “faith in the Constitution is whole; it is complete; it is total.”  That quotation provided the basis for my book Constitutional Faith, which was partly organized around the debate between Thomas Jefferson and James Madison about what one’s attitude should be toward the Constitution.  As Jefferson put it in an 1816 letter to Samuel Kercheval, “Some men look at constitutions with sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched.”  That, to put it mildly, was not Jefferson’s view. Although he thought that “moderate imperfections had better be borne with,” that did not counsel a general submission to the constitutional status quo.   “[A]s new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors…. [L]et us provide in our constitution for its revision at stated periods.” 

Madison disagreed.  In Federalist 49, he responded to earlier versions of Jefferson’s call for frequent scrutiny and “revision at stated periods.”  “[E]very appeal to the people," he warned, "would carry an implication of some defect in the government, frequent appeals would, in a great measure, deprive the government of that veneration which time bestows on every thing, and without which perhaps the wisest and freest governments would not possess the requisite stability.”  Madison, far more than Jefferson, sacralized the Constitution and encouraged a religious-like devotion to it, as illustrated in Jordan’s remarks. (To be sure, one might think that the Constitution she so venerated was the Constitution of 1868, with its amendment abolishing slavery and the Fourteenth Amendment rather than the Constitution of 1787), but perhaps that is only a modest detail.  So what do we do with McVeigh’s letter as quoted above?  Or how exactly does one respond to Marjorie Taylor Greene’s comment that “if you think about what our Declaration of Independence says, it says to overthrow tyranny”?  Can one say that she is wrong per se, or, instead, that she has a crazed notion of what counts as “tyranny”? 

We might celebrate Lincoln’s statement that the United States was “conceived in liberty,” but the birth process required extraordinary violence, and we honor George Washington, say, not merely as our first president, but, also and perhaps even instead, as the leader of a years-long national liberation struggle justified in the name of overthrowing the purported tyranny of King George III.  We are more inclined as a culture simply to assume that Washington and his fellow “patriots” were correct than to examine closely on their merits the “long train of abuses” set out in the Declaration that justified the violent secession of the American colonies from the British Empire.  Who exactly gets to say what counts as “tyranny” and what measures may become justified in response? 

Toobin emphasizes that April 19, 1995 was chosen as the day to destroy the Murrah Building in Oklahoma City because it was the second anniversary the disastrous attack on David Koresh and his highly armed adherents in Waco, Texas that killed 76 Branch Davidians, including a number of children.  From McVeigh’s perspective, the United States government showed little or no restraint in using armed might against those it considered its enemies.  So consider yet another almost bizarre detail of Toobin’s comprehensive narrative.  When McVeigh was given the opportunity to speak to the judge just before being sentenced to death, his statement in toto was as follows:  “If the Court please, I wish to use the words of Justice Brandeis dissenting in Olmstead to speak for me.  He wrote, ‘Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example.’  That’s all I have.” 

One can be absolutely confident that Brandeis did not intend his words to be proffered by an unrepentant mass murderer.  But in his own way McVeigh directs our attention to pondering exactly what the government does “teach the whole people by its example,” just as we can wonder even more broadly about what exactly we are supposed to take from a pledge that one will even give one’s life in order to support, protect and defend the Constitution from all of its enemies. 

Socrates, as reported in Plato’s Apology, famously said that “the unexamined life is not worth living,” but, as Janet Malcolm once quipped, one cannot engage in completely rigorous self-examination for more than minutes, perhaps even only seconds, at a time.  We spend our lives going about our mundane affairs and not torturing ourselves with Socratic questions about what indeed constitutes an admirable life.  So it is, I suspect, with regard to examining the full implications of “constitutional faith.”  To take its demands too seriously might quite literally drive one crazy, over the edge into who knows what.  Better to assume that the notion presents no deep difficulties.  Better ultimately, perhaps, that we tend our gardens and assume that things will work out for the best. 

Jeffrey Toobin has written a powerful book that should elicit much discussion.  It upends the views we might have about such individuals as Merrick Garland or Barack Obama, even as Toobin, perhaps acting as a modern Paul Revere, warns us that the Marjorie Taylor Greenes are becoming an ever-more-important part of American politics.  Who can say what the future will bring as far as the United States is concerned?  But Toobin’s book, perhaps more than he realizes, turns out to be essential reading for anyone unafraid to leave the comforts of the garden and confront the implications of at least one form of constitutional veneration.

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