The Liberating Tyrant

President Obama has dramatically reduced the federal government’s infringement of individual freedom – and conservatives are furious!  Yes, that’s right.  He has issued an executive order that directs the Department of Homeland Security to stop the prosecution and deportation of an enormous number of undocumented immigrants; that is, he’s freed millions of people from governmental oppression.  Before Obama’s order, they were afraid of arrest, detention, punishment and deportation; they feared the power of the state, and they no longer do.

Because of their respective positions on immigration, liberals are quite happy about this broad almost-amnesty and conservatives are quite upset about it.  But conservatives are also quite upset over Obama’s methods, calling them “impeachable” and “tyrannical”, claiming that by ignoring Congress and changing policy by executive order he is acting illegally and unconstitutionally.  On a technical level those questions remain murky, particularly since immigration law does allow the executive a fair amount of latitude regarding whom to prosecute.  There are over 11 million undocumented people living in the United States, but Congress only allocates enough funding to detain and deport 400,000 a year.  The executive branch is obligated to prosecute as many illegal immigrants as its funding allows; liberals claim that all Obama has done is to indicate which categories of immigrants those will be.  But publicly announcing that entire classes of previously illegal immigrants are now free from prosecution is to de facto make those classes legal (temporarily, at least).  In a very real way, the president has done something only Congress is authorized to do: change the law.  Even if he isn’t violating the letter of the Constitution, he is in direct violation of its spirit.

That is, he’s clearly defying some very important democratic norms.  Both Democratic and Republican Congresses have failed to enact any comprehensive immigration reform for years and the public just elected an explicitly anti-immigrant Republican Congressional majority.  Arguments about technical legality and constitutionality don’t address normative concerns since the whole point of norms is to sustain the environment that allows politics and law to succeed.  Consider that there was nothing illegal or unconstitutional about the unprecedented and ruthless Republican debt ceiling threats of recent years.  Dramatic increases in partisan polarization plus the dysfunction lurking within the separation of powers mean reliable norms are needed now more than ever.  It also means they’re more threatened than ever.

Of course, the general destruction of the norms didn’t start in the Obama years.  It’s been going on for about five presidents now.  But that doesn’t make it right.  And that doesn’t make it fair to the millions of recent voters whose wishes Obama just explicitly disregarded.  And, of course, liberals should worry that the next Republican president – and there will be one at some point – will also engage in such unilateral action.  Although he certainly would have even if Obama had never done any of this.  But why give him the excuse?  Why open the door for him?  Some Republicans are gleefully planning how their president should employ the “Obama Rule” (though more scrupulous ones argue against it).  By supporting Obama now, liberals undercut any normative argument they’ll make against that future “tyranny.”

But it’s an unusual tyranny that frees individuals from state oppression.  How does it happen that an over-reaching executive ignores the popular will, twists the law, arrogates power to himself, and then uses that power to liberate millions of people?  Prosecutorial discretion, that’s how.  Obama’s brand of tyranny seems so strange because it’s so limited; all it can do is explicitly decline to enforce the law.  But using prosecutorial discretion to – in effect – abolish laws is an inherently conservative enterprise.  Why?  Because it’s a negative action, it inhibits government.  Eric A. Posner explains:

The point is not just that Republican presidents can do what Obama has done. It is that enforcement discretion creates an advantage for Republicans—it favors conservative governance and hurts liberal governance. The reason for this asymmetric effect is that the great bulk of federal law is liberal economic regulation, not conservative morals regulation. A conservative president can refuse to enforce laws, but a liberal president can’t enforce laws that don’t exist.

Immigration is an atypical case in which conservatives want more government and liberals want less, so it lends itself to liberal executive discretion.  But the pseudo-Constitutional powers that President Obama has unearthed can easily become the broad weapon of choice for President Christie or President Paul, and that’s because those powers have a libertarian bias.  Imagine a GOP president announcing that he’s directing the IRS not to prosecute anyone who fails to pay income taxes above 20%; he will have unilaterally flattened income tax rates.  But a liberal president can’t unilaterally raise rates, since prosecutorial discretion only allows the president to do less than the law specifies, not more.  Liberals applaud the substance of Obama’s action and overlook the method, but they don’t realize that in this case, method is substance.

What liberals are missing is that Obama is violating democratic norms, not libertarian ones.  He’s not violating individual rights, he’s ignoring his obligations as defined by acts of Congress and he’s ignoring the will of people as expressed in the recent election.  But the people can restrict freedom and a dictator can enhance it.  The liberal welfare-regulatory state that has constrained the power of oppressive social actors – corporations, the rich, racists – was created by popular determination.  But if it is to be dismantled, it should be by popular determination as well, not by an unscrupulous conservative president armed with the super-power of broad prosecutorial discretion thoughtlessly provided him by liberal apologists.  Liberalism could not arise and cannot succeed without the will of the people; but the libertarian destruction of the welfare state can now more easily happen without popular consent.  It won’t need to remove existing law, just ignore it.

The norms fall, and the more norms fall, the more they fall.  Winning becomes all; compromise, comity, playing fair, playing by the rules – those are for suckers.  Obama, with this one stroke of his pen, has made his greatest contribution toward turning our politics into open warfare, and for that alone he deserves our censure.  But, from a liberal point of view, he’s done much more than that, much worse than that.  In his rush to extend the blessings of liberty to millions of marginalized people, in his reckless expediency, he may have helped seal the fate of the liberal welfare state itself.  Conservatives are wrong to decry Obama’s methods, instead they should celebrate.  Even though they’ve lost this particular battle, Obama has given them the perfect weapon for winning the entire war.

Liberals, Liberal and Otherwise

When liberals go to extremes they typically become either too expedient and pragmatic – sacrificing means to ends – or they become egalitarian heroes, knights in armor slaying dragons of power and privilege.  The pragmatism is adopted from a certain strain of conservatism (consider Aristotle celebrating prudence as the highest political virtue and Burke objecting to policy based upon mere rational principle).  But the heart and soul of the liberal project has always been egalitarianism, the freeing of individuals from inequitable distributions of power.  At first it was fighting for religious dissenters against established churches; then the common man against aristocratic privilege; the individual against the state; the slave against the slave-master; the worker against the capitalist; blacks and other racial minorities against white supremacy; women against patriarchy; gays against homophobia.  In each case, liberals have been on the side of the down-trodden against entrenched interest.  And that’s how they always see themselves, even when they’re the ones wielding power.  But put expediency and egalitarian righteousness together and you have a very potent – and potentially very dangerous – combination. 

And that combination is the driving force behind the new rules and laws addressing sexual assault on college campuses.  No reasonable person denies such assault is a very real, widespread and terrible problem.  According to the Centers for Disease Control, 19% of undergraduate women have “experienced attempted or completed sexual assault since entering college.”  But19% cannot possibly be the work of a few deliberate criminals.  There must be something profoundly wrong with the sexual culture itself.  Clearly, it happens much too often that the woman feels coerced and the man either doesn’t realize or doesn’t care.  The latter case is clearly rape.  The former is not what we would normally call rape, and at least some of the time it represents little more than male inexperience and cluelessness.  But much of the time it represents something much darker, something deeply dysfunctional and destructive: egregious male narcissism and privilege.  This is male sexual power maintained through sheer physical strength, and it engenders female fear and diminishes female options.  It’s hard not to see all of this as part of the broader social problem of male domination of women.

The new rules and laws are designed to combat that privilege and domination, and they mostly do so by implementing “affirmative consent”, which defines sexual consent as ongoing, explicit agreement, not the mere absence of explicit refusal.  “Yes means yes” supersedes “No means no.” The state of California recently enacted a law mandating that all its colleges enforce sexual assault guidelines using the new, stricter definition of consent.  And many colleges across the country have instituted new procedures based upon the yes-means-yes standard. 

But many conservatives (who generally oppose feminist-inspired change) and libertarians (who generally oppose government intervention) find them objectionable, as do many liberals, some of whom have characterized the new policies as “illiberal.”  Twenty-eight members of the Harvard Law faculty recently protested against the procedures Harvard uses, complaining they “lack the most basic elements of fairness and due process [and] are overwhelmingly stacked against the accused.” Feminist lawyer Robin Steinberg worries – as reported by Judith Shulevitz in a piece titled “Accused College Rapists Have Rights, Too” – that these new types of rules “reveal a cavalier disregard for the civil rights of people accused of rape, assault, and other gender-based crimes.” 

Some supporters of the new rules deny they endanger anyone’s legal or procedural rights.  Ezra Klein, editor-in-chief of the liberal website vox.com, writes “there’s no contradiction between a fair and clear process, real protections for the accused, and an affirmative consent standard — and there's no reason one shouldn't support all of them simultaneously, as I do.”  In theory, of course, that’s true; changing the standard of sexual consent doesn’t necessarily infringe anyone’s rights.  But trying to legislate such a strict standard for an activity so inherently full of subtleties and ambiguities is asking for trouble.  And, unlike the rules for actual criminal courts, where guilt must be proven beyond a reasonable doubt, a college panel can find a student guilty – and expel him and ruin his life – based upon only the preponderance of evidence.  The combination of a very high standard for consent plus a very low one for guilt moves the onus of proof from the accuser to the accused; it amounts in practice to the elimination of the presumption of innocence.  California’s new law mandates that even sex within a healthy relationship requires “affirmative consent” every time, in effect re-labeling almost all present-day sex as assault.  But the law’s defenders say not to worry, since it will only be enforced when a woman has been genuinely coerced and not in those countless everyday cases in which it legally applies.  Well, how reassuring!

But some defenders of the new law argue that such excess is necessary to effectively address the problem.  Klein is eager to put the fear of God into all men:

If the Yes Means Yes law is taken even remotely seriously it will settle like a cold winter on college campuses, throwing everyday sexual practice into doubt and creating a haze of fear and confusion over what counts as consent. This is the case against it, and also the case for it. Because for one in five women to report an attempted or completed sexual assault means that everyday sexual practices on college campuses need to be upended, and men need to feel a cold spike of fear when they begin a sexual encounter.

Klein is right that something must be done to address our dysfunctional, patriarchal sexual culture, but is suffocating all sexual relations with fear of juridical authority a constructive way to do so?  Even our rather damning analysis of that undeniable dysfunction concedes that ambiguous situations can arise innocently.  But Klein’s perfectly OK with criminalizing that ambiguity:

Critics worry that colleges will fill with cases in which campus boards convict young men (and, occasionally, young women) of sexual assault for genuinely ambiguous situations. Sadly, that's necessary for the law's success. It's those cases — particularly the ones that feel genuinely unclear and maybe even unfair, the ones that become lore in frats and cautionary tales that fathers e-mail to their sons — that will convince men that they better Be Pretty Damn Sure.

It is indeed “sad” that legislating such a strict, unprecedented, unfamiliar, confusing, dangerously broad standard could harm what are essentially innocent young men, but “it’s necessary for the law’s success.”

This is the grim face of authoritarian expediency, all the more alarming for its heedlessness.  According to Klein, et al, all women are justifiably afraid of all men, and that situation must be replaced by one in which all men are afraid of legal or semi-legal punishment, even unjustified punishment.  The pro-affirmative-consent crowd may dispute it, but their position in effect is that our normal understandings of due process, presumption of innocence, and sexual ambiguity stand in the way of protecting women from the most violent and reprehensible expressions of patriarchy, and therefore must be discarded.  According to Amanda Taub, female fear of men “reinforces power imbalances that keep women out of positions of success and authority.”  And here’s Klein with the answer: “Ugly problems don't always have pretty solutions.”  Egalitarian righteousness plus thoughtless pragmatism equals liberals doing quite illiberal things.

But the point, of course, is that it’s not illiberal, not when you remember that the animating purpose of liberalism is the fight for the oppressed against the powerful.  To affirmative consent supporters, women are the oppressed and men are the powerful and anything is justified in the service of female liberation.  How can weakening the rights of oppressors itself be an act of oppression?  Habitual identification with the oppressed seems to prevent liberals from realizing that they’re actually winning the culture wars, or that they have achieved genuine social and legal power.  In this view, the state and the university are not capable of oppression, since they fight for the oppressed against the oppressors.  How can agents of liberation themselves be oppressors?  We see the same dynamic play out in liberal intolerance toward opponents of same-sex marriage.  And we should note, as does Andrew Sullivan, the heavy influence on campus culture of post-modernism, with its insistence that there is no truth independent of some political agenda, and that, as Michel Foucault put it, “politics is war by other means”; such views do not exactly make one conciliatory toward any oppressive class.  And we see why the affirmative consent doctrine has so far only been applied to academia: it’s the only place where illiberal liberals are powerful enough to get away with it.  For now.

But if self-righteous identification with the down-trodden is so inherent in liberalism then why don’t all liberals support the affirmative consent movement?  What is it that makes some liberals resist?  There are two countervailing principals at play. The first is a broader pragmatism, understood not as mere expediency, but as something more like humility, as appreciation for the limits of human action in the face of the unimaginable complexity and intransigence of human existence.  This amounts to a more tragic view of life, one in which there are no perfect solutions, no set of principles that would solve all our problems if only we applied them more thoroughly.  The more liberal liberal understands that some of our most important and desirable goals – such as liberating women from patriarchy – can conflict with others equally or more important – such as protecting individuals from authoritarian abuse.  And secondly, the wise liberal understands how particularly important it is to fight that authoritarianism, even the liberal version.  With power comes responsibility and that responsibility does not disappear simply because your goals are noble and your cause is just.  Virtuous intentions are meager protection against an overzealous or unscrupulous prosecutor armed with an ill-conceived and over-reaching law.

The broader, wiser pragmatism is – like the expediency itself – a borrowing from conservatism.  But the skepticism of juridical authority is essential to liberal thought and liberal political culture.  Go back and look at that list of historical liberal fights for the oppressed.  One of the very first is the protection of the individual against misuse by the state, which primarily takes the form of individual legal, political and civil rights.  Those rights are typically seen as inherent and inalienable, but we can understand them better as protectors of individual interest.  Libertarians typically treat them as absolutes and fail to see their instrumental nature.  And libertarians fail to perceive any oppression beyond state oppression.  Modern liberals understand how limited that view is.  They’re wise enough to see the iniquitous power relations that surround us: in capitalism, in culture, in patriarchy, in religion, in the family.  But they must insistently remember the special case of oppression that is legal oppression, the special danger of a state or a university with the power to punish and destroy.  This is how we keep liberalism honest and beneficent. Wisdom demands that we respect the destructive power of all those oppressions, while humility demands we acknowledge the limits of liberation.  But crucially, the earnest, passionate liberal hatred of oppression demands we never sacrifice the most important liberation for any other.

My Family, My Country, My Self

The Tower of Babel by Pieter Bruegel the Elder (1563)

The Open Borders movement, which seeks to remove all barriers to immigration, has recently been working hard to gain attention and credibility.  Consider this argument from economist Bryan Caplan:

What would you think about a law that said that blacks couldn’t get a job without government’s permission, or women couldn’t get a job without the government’s permission, or gays or Christians or anyone else? So why, exactly, is it that people who are born on the wrong side of the border have to get government permission just to get a job?

He’s saying, of course, that denying someone a job because they’re from another country is as unjustifiable as rejecting them because of their race, gender, religion or orientation.  At first glance, it almost seems plausible.  There are plenty of practical arguments in favor of increased immigration – for example, that it would raise both American and world GDP – and some seem persuasive, though some are controversial.  But what’s fascinating about Caplan’s pitch – and what makes it representative of much Open Border thought – is that it makes a moral case against restricting the flow of individuals across borders: it calls any such restriction unjustifiable coercion.  The University of Colorado's Michael Huemer claims that border control clearly violates every would-be immigrant’s human rights; it represents the violent power of the state infringing the right to sell one’s labor wherever there’s an employer willing to pay for it.  According to Caplan, Huemer and others, no country anywhere on Earth has the right to restrict immigration at all.  It sounds quite implausible, even ridiculous, right?  It completely violates our normal intuitions about the nature of sovereign states.  Well, in this case, intuition is correct.

Imagine an extended family that, through a somewhat unusual set of events, includes both whites and blacks, Christians and Jews, men and women (of course), straights and gays.  Now imagine the rich patriarch of this family is a terrible bigot and distributes his largesse (in gifts, in cash, in jobs, etc.) only to the straight, white, Christian men of the family.   Obviously, he’s being unfair to the others.  It’s immoral to discriminate against anyone simply because they’re black, Jewish, female, or gay.  Now imagine the patriarch has a change of heart, discards his bigotry and gives freely to everyone in the family, regardless of race, religion, gender or orientation.  Yea, fairness is achieved!  Oh, but he never gives to anyone outside the family.  Is that immoral?  It might be a little stingy, a little ungenerous, but is he violating the rights of non-family-members?  Clearly not.  Here’s the point: there’s nothing wrong with favoring those with whom you have a special bond.  Being outside the family is different than being black, Jewish, female or gay.  You’re allowed to love and nurture family members more than non-family members.  You’re not just allowed to love them more, of course, you’re required to.  Isn’t that the point of a family?  To love everyone the same is to not really love anyone.  Generosity can be global, but commitment must be local.

And what applies to families applies to countries, too.  Imagine a remote, undeveloped country, call it Aggressia, ruled by a belligerent tyrant who invades and terrorizes his small, poor, defenseless neighbor, Miseria.  Let’s stipulate that the invasion will not affect the rest of the world in any substantial way: neither country has any important natural resource, there’s every reason to believe that the tyrant won’t invade any other countries, etc.  Would you advocate sending the American military to kick Aggressia out of Miseria?  Almost certainly not.  You would feel terrible for the people of Miseria, you would probably applaud if America sanctioned the invaders or isolated them diplomatically, but you would strenuously resist placing Americans in harm’s way for sake of Miseria.  The world is a messy place and we can’t fix every problem (neo-conservatism notwithstanding).

Now imagine that Aggressia hasn’t invaded Miseria but instead manages somehow to invade and occupy the state of Maine.  But you live in Arizona, and let’s stipulate that the occupation of Maine doesn’t affect you or anyone you know in any material way; we have good reason to believe they won’t invade any other states or hurt the United States in any other way.  Let’s say you’ve never been to Maine or ever even met anyone from Maine.  From your point of view the invasion might as well not have happened.  Now, in this scenario would you advocate American military action to expel the invaders?  Hell, yes!  You might even grab your firearms (you do live in Arizona) and drive to Maine as quickly as possible to join in the fight!  But why?  Why would you be willing to risk your life for Maine but not for Miseria?

The answer is obvious: you love your country, and you love it more than other countries.  You are committed to it in a way you’re not committed to any other.  It’s yours.  The people in Maine matter more to you than the people in Miseria.  Your concern, your tax money, and your protectiveness flow to your fellow Americans more generously than they do to those in other countries.  There’s nothing immoral about that.  Some people take it too far, of course.  They turn patriotism into chauvinism or jingoism or nativism.  They consider America politically and morally superior to other countries in some essential way.  They care about foreigners very little or not at all.  Such people give patriotism a bad name.  But you can be a patriot and still be a generous humanitarian, just as you can love your family more without loving humanity less. You can care about all your fellow humans, you can feel you owe all of them your sympathy and your material help (when practical), but still feel a special bond and obligation toward America and Americans.  Despite what cosmopolitans and pacifists think, patriotism is not a species of immorality.  How can you call that Arizonan immoral when he’s rushing off to Maine to fight for strangers?

But the Open Borderers ask:  If there’s nothing wrong with being choosy with one’s loyalties then why was it wrong in the bad old days for white employers to favor white workers over black ones?  Why are patriotic special considerations justifiable when racial ones are not?  Here’s Huemer again:

We do not cringe to hear that American businesses should hire native-born Americans rather than immigrants, any more than Americans three generations ago would have cringed to hear that white-owned businesses should hire white people in preference to blacks. Naturally, nationalists may attempt to devise explanations for why nationality is different from race, and why nationalism is really justified. This is not the place to attempt to argue that point. I would like simply to put forward for consideration the thought that perhaps we have no right to feel ashamed of our ancestors, and that our descendants may feel about us the way we feel about our ancestors.

(Actually, no one today would defend hiring a native over a legal immigrant, but Huemer seems to mean that no one objects to favoring American workers and products over foreign ones.)   To Huemer, attaching one’s primary social loyalty to one’s country is arbitrary.  How is it any better than attaching it to one’s town, or one’s profession, or one’s race?  Wouldn’t it be much better if we attached it to humanity as a whole and avoided all this petty squabbling?

The answer is that some distinctions between people are arbitrary and some are not.  If a group of people share the same physical and social space with a dominant majority, are citizens of the same state, are part of the same national culture, but differ only in skin color, then it’s not morally justifiable to discriminate against them.  Racial differences are not relevant to loyalty.  National ones are, mostly for practical reasons.  Democracy, individual liberty and broad affluence need something like a culturally homogenous modern polity to nurture them.  Modern individualism requires state protection.  Moderation of capitalist excess requires a reasonably robust regulatory and social insurance state.  Modern capitalism itself requires a reliably enforced legal framework.  And modern politics demands national loyalty, as does the common defense.  Part of the problem with those old-time racists was that they wanted it both ways: they expected blacks to fight equally in war for a country that didn’t otherwise treat them equally.  They embraced patriotism when it benefitted themselves but not when it benefitted the racial other.  Eventually America expanded patriotic blessings to include blacks; that seems a happier ending then if they had abandoned patriotism and group loyalty altogether.

But all of this is fairly obvious.  So why don’t the Open Borderers see it?  Mostly, it seems, because of their general animosity toward the sovereign state.  They tend to be extreme libertarians and anarcho-capitalists; they oppose almost every intrusion of the state into economic affairs, or any affairs.  To them, borders between sovereign states are merely artificial constrictions on the flow of goods and labor.  If a poor man from Tijuana wants to work in San Diego for wages lower than the American minimum wage but higher than his wages at home, then stopping him at the border is a cruel deprivation of his human rights.  And if more immigration brings down the wages of some Americans (how much is unclear) then that’s too bad, that’s just how the free market works:

The Americans who lose from immigration are those who are very low-skilled, who also don’t speak very good English to begin with, and also don’t own real estate. It's a quite small group. If you’re a real nationalist who cares about all Americans, then you should favor immigration because only like 5 or 10 percent of Americans are losing.

Oh well, only 15 to 30 million Americans would be screwed by open borders; that’s OK because they’re the poorest and least educated, so we shouldn’t feel so bad.  It’s not like we as a people have any responsibility to them.  Besides, the state has no collective authority; state regulation of the marketplace is no different than inhuman barbarism:

If we rely on the analogy between states and clubs, then the state could require citizens to cut off their left arms, refrain from expressing political opinions, refrain from voting if they are female, and so on. Whatever the law requires, one could propose that abiding by that law is a condition on membership in the civil society. Thus, the state may demand that anyone who wishes to retain their citizenship should follow these laws.

That’s right, there’s no philosophical middle ground between stateless freedom and abject totalitarianism.  The Open Borderers do get points for ideological consistency; they drive their libertarian principles to the farthest logical conclusions, undisturbed by pragmatism, charity, or any other apparent consideration.  Put another way, they’re fanatics. Only under the strain of such ideological extremism is imposing a minimum wage equal to forced amputation and a nation protecting its demographic integrity equal to immoral coercion.

Such a radical stance makes the Open Borders movement a natural ally for the Global Citizen movement, which seeks to neuter or abolish the sovereign state altogether. Both groups make dubious arguments against patriotism, and both would radically weaken the state (though some Open Borderers do maintain some minimal commitment to the state).  And both groups think of citizenship as little more than an easily acquired and easily surrendered legal contract; here’s Nathan Smith of openborders.info:

As for “the view that citizenship in an actual country is merely arbitrary or contingent,” this isn’t so much a “view” as a plain fact. I’m a US citizen because, by accident of birth, I was born a US citizen.

Actually no, that’s wrong.  Citizenship is a legal status, of course, and therefore can be changed; but it’s a superficiality, a technical legal expression of an existential fact.  Smith is an American, not because he was a person who could have been born anywhere but just happened to be born here; he is an American because he is the person that America created.  America forged Smith.  To confuse citizenship with national identity is to confuse a marriage license with a marriage.  Post-modern life sees all social relationships as incidental choices, but such a view leaves no room for real connection. But we are all born with commitments, connections and obligations and these are not so easily abandoned or absolved, nor so easily acquired.  It is this unavoidable condition of human existence – that we are products of unchosen social contexts – that is the source and justification for all group loyalty, for better or worse.  I love my country because I love myself.

But the constricted ideology of the Open Borders movement essentially misunderstands the sovereign state and its constituents; it sees patriotism as meaningless, economic regulation as totalitarian, and national belonging as just one of many contingent, arbitrary choices one may tenuously adopt.  To be honest, though, there is definite appeal to that libertarian vision of a world without borders or states.  In many ways it’s a world to be devoutly hoped for.  It would presumably have no widespread wars, less poverty, more education, less irrational hatred.  Imagine there’s no countries.  But it doesn’t withstand closer scrutiny.  A world where countries have been replaced by many diffuse loyalties is one without any real commitment or sense of community.  It’s a world without any protection against capitalist exploitation.  It’s a world with no protections for workers, consumers or the environment.  It’s a world where cultural and local and individual distinction all blur into the broad materialist, consumerist haze.  And it’s quite possibly the world toward which we are heading.  You may rejoice in its arrival or you may grieve, or both.  But what you cannot do is deny the right of nations to resist its dull triumph.

Red October

Backward to utopia!

For 16 days this month, conservatives in Congress deliberately shut down the federal government and threatened to default on the national debt, thereby destroying the world economy, in an attempt to force Democrats to repeal Obamacare and accede to their entire economic agenda.  How do conservatives justify such shockingly irresponsible and ruthless tactics?  There are three basic defenses they give and, like so much of American discourse, they revolve around the question of the proper relationship between the citizenry and the political elite.  That is, who really represents the people?

Conservatives loudly answer, “We do!”  In the first defense of their tactical radicalism conservatives claim to represent a majority of American opinion, a majority that hates Obamacare, big government and the size of the federal debt.  Call this the populist defense.  Conservatives represent the people against a governing elite that has become an unresponsive ruling class, a technocratic, snobbish, culturally alien aristocracy, imposing heavy regulations and stiff taxes on a public it disdains, while exempting its cronies and contributors.  In this view the American people are noble and the government, captive to special interests, fails to channel that nobility.  Obamacare is merely the most recent and most egregious liberal imposition.  In fact, it’s so onerous and so indicative of the further horrors waiting to leap out of the liberal imagination onto the backs of the American people that anything is justified in trying to stop it.

But the populist defense just fails.  Public opinion polls do show a majority opposed to Obamacare, but it’s a slim majority, and a sizeable part of the opposition comes from the left, from those who wish the government was more involved in health care, either through a public option or a single payer plan.  Also, individual parts of the law are quite popular.  Most Americans do agree in theory that both the federal government and the federal debt are too big.  But those anti-government convictions evaporate in the harsh sun of majority support for particular government programs like Social Security and Medicare, programs so popular that most Americans would rather raise taxes than modify them or reduce their benefits.  The 2012 Republican candidate for president promised to cancel Obamacare on his first day in office; he lost decisively.  Democrats retained control of the Senate, and Republicans lost the national popular vote for the House of Representatives (but held the House because of misrepresentative districting).  And most importantly, most Americans explicitly condemn the confrontational tactics conservative have employed.  The majority supports neither conservative ends nor conservative means.  Indeed, conservatives know this all too well; it was recognition of public disfavor that convinced GOP leaders to surrender.

The second conservative defense is less easily dismissed.  It admits that conservatives are a minority (albeit a sizeable one) and that conservatives did in fact lose last year’s elections.  But, it demands relief from the impositions of big government – Obamacare in particular – on the basis of respect for minority rights.  Call this the libertarian defense.  Conservatives bravely stand for the principle that no one, conservative or otherwise, should be coerced with individual mandates, excessive regulations, high taxes, or any other unwelcome control from the government, even a majority controlled one.  John Hayward of RedState.com (his italics):

The only way to prevent power from building to a dangerously explosive pressure is to install a relief valve in the political system: the right of meaningful dissent, which means the right of refusal.  The majority wants to do something I disagree with?  Fine, knock yourselves out.  Let me know how it goes.  You might even persuade me to get on board, one of these days.

The populist defense claims that the people want to be left alone.  The libertarian defense claims they have a right to be left alone.  In the libertarian view the American people are something of a menace, a thoughtless mob using the blunt instrument of the federal government to oppress resistant minorities.  Government fails because it’s too expansive; it interferes and intrudes more than it should, much more, definitely, than the Founders wished, more than the Constitution allows.  The Constitution was explicitly created to preclude modern liberal paternalism and conservatives are therefore permitted to override it (for example, by putting the national credit in question or enforcing Senatorial supermajorities) in order to protect it.  They’re also justified in generously amending it to return it to its original purpose of outlawing modern liberalism.  Radicalism in the service of tradition seems to be a way of life for this crop of conservatives.

Does the Constitution prohibit the welfare/regulatory state?  This is much too big a question for this small essay, but decades of Supreme Court decisions, going back to 1937, answer in the negative.  Even Obamacare’s mandate that individuals purchase health insurance under threat of a tax penalty has been deemed constitutional by a conservative Supreme Court presided over by a conservative Chief Justice.  The libertarian principle, that there are individual rights which no legislature may infringe, is a vitally important principle, one which we violate at our peril.  But it’s not obvious that one shouldn’t be coerced into supporting a health insurance system that sooner or later one will come to rely upon.  Everyone pays taxes for public schools, even people without children.  The libertarian defense is not an obvious sham like the populist defense, but unless one is an anarchist absolutist who believes no coercion is ever justified, it’s not so self-evidently compelling as to justify the radical confrontationalism of early October.

The third conservative defense is similar to the populist defense, in that it sees Obamacare as the imposition of a non-representative ruling class, but it makes no pretense of speaking for a majority.  It charges that Obamacare lacks moral legitimacy because of how it was passed.  For one thing, it was passed without any Republican votes; as noted conservative writer Charles Krauthammer puts it:

From Social Security to civil rights to Medicaid to Medicare, never in the modern history of the country has major social legislation been enacted on a straight party-line vote.  Never.

And it was passed through non-standard legislative procedures, using budgetary rules to avoid a Republican filibuster.  Red State columnist Daniel Horowitz wrote on October 4th:

Obamacare was passed through budget reconciliation.  So when they felt it was convenient for them to inject Obamacare into the budget process; namely, for the purpose of avoiding the 60-vote threshold, they were more than happy to do so.  Well, what’s good for the goose is good for the gander.  Now that we have approached the implementation date, which coincides with the budget deadline, it’s time to use that same process to uproot a law that is unworkable and unpopular.

When in the middle of the 2010 Congressional healthcare debate, the very blue state of Massachusetts sent a Republican to the Senate expressly to stop Obamacare, Democrats overrode this “unmistakable message of popular opposition.”  Democrats started this game of flouting legislative and democratic norms; when Republicans play grand obstructionists they are just responding in kind.  Call this the hardball defense.  In the hardball view the parties are ruthless gangs and the American people are the turf they fight over.  (The hardball defense, of course, does nothing to defend the conservative debt ceiling demand to enact their entire economic program; it can, at best, justify extraordinary measures only for stopping Obamacare itself.)  To Krauthammer, Democratic legislative chicanery was so dismissive of dissident views and so ruthless in its determination that it more that justifies the angry, combative Tea Party response it provoked:

It’s the Democrats who gave life to a spontaneous, authentic, small-government opposition — a.k.a. the tea party — with their unilateral imposition of a transformational agenda during the brief interval when they held a monopoly of power.  That interval is over. The current unrest is the residue of that hubris.

The hardball defense, in effect, accuses Democrats of acting like Leninists.  Yes, Leninists; but in a particular way.  Vladimir Lenin redirected Russian Marxism from a broad-based, democratic, trade union movement into a small, dedicated, aggressive vanguard party which alone perceived and expressed true proletarian class consciousness.  He believed the workers as a whole could never fully grasp their objective situation and could not become the basis of the coming socialist utopia without the strict direction of such a vanguard.  Lenin’s primary contribution to political theory is the notion that an ideologically enlightened cadre can understand and represent the people better than they can themselves.  And when an unlikely procession of historical events led to the October 1917 Bolshevik Revolution and the raising of the red flag over St. Petersburg, Lenin used that seizure of state power to impose a Communist transformation upon an unwilling society.  What Krauthammer, Horowitz, etc. are saying is that modern liberals feel justified in imposing Obamacare and other big government social programs because they believe they understand the economic interests of working people better than those working people themselves.  The Democrats won complete control of the federal government in 2009 and 2010 only because of the unlikely combination of revulsion against the outgoing Republican president plus the celebratory appeal of a black presidential candidate plus a terrible financial collapse; they used that power to force their centrally-controlled medical insurance scheme upon a people who’d made it clear they didn’t want it.  Liberals are convinced, because of their technocratic arrogance and their over-educated sanctimony, of their right to act in the interests of the little people.

Of the three defenses, this is the only compelling one.  After all, Democratic criticism of recent Republican brinksmanship is procedural; no one disputes their right to oppose Obamacare or negotiate over the budget, only whether they should do so by shutting down the government or threatening a default.  And Democratic procedures for enacting Obamacare would not make a shining example for a civics textbook.  But neither were they as unsavory as conservatives portray.  Obamacare was one of the main planks of Obama’s 2008 election platform, an election he won by a substantial 7 point margin.  That same year, Democrats increased their Senate majority to 59 out of 100 seats and their House majority to 257 out 435 seats (having received 56% of the vote).  After passing economic stimulus in February of 2009, Democrats turned to healthcare.  And Krauthammer dismisses the notion that Democrats genuinely tried to be bipartisan about it:

The Democrats insist they welcomed contributing ideas from Republicans. Rubbish. Republicans proposed that insurance be purchasable across state lines. They got nothing. They sought serious tort reform. They got nothing.

But failure to include two (seriously flawed) policy proposals does not constitute Leninism.  Democrats spent months negotiating with more tractable Republicans Senators like Mike Enzi, Charles Grassley, Orrin Hatch and Olympia Snowe, trying to get them on board by suggesting less generous and more market-centered plans.  Many Democrats, possibly including Obama, might have preferred Medicare for all, but they refrained from pushing that because of resistance from within their own caucus (not much of a Leninist monolith there), even though single payer has garnered majority support in some polls.  And yes, only Democrats voted for Obamacare, but that was because Republicans boycotted it as part of a deliberate political ploy to deny it bipartisan legitimacy. They did negotiate with Democrats at first, but it’s hard not to conclude they did so in simple bad faith with the deliberate intention of delaying the bill’s passage in order to discredit it in the public mind.  Historically, major social legislation won support in both parties because historically the parties were not ideologically consistent.  Before the great post-60’s political realignment there were liberals and conservatives in both parties.  Consider Krauthammer’s list of major social legislation: Social Security, Civil Rights, Medicare, Medicaid.  He seems to celebrate them, but he neglects one very interesting point: they were all liberal initiatives that are tremendously popular now that were strenuously opposed by conservatives at the time.  Indeed, opposition to such initiatives was what defined them as conservative!  In 1961 Ronald Reagan, then a famous actor and aspiring conservative activist, famously predicted the enactment of Medicare would mean the death of freedom, a stance that might deepen the confusion of present-day Tea Partiers holding signs reading “Keep government out of my Medicare!”  If liberals waited for conservative support no important social legislation would ever be passed.

And why should Democrats have been forced to reach Horowitz’s 60 vote threshold?  He’s referring to the filibuster, a Senate rule which requires 60 or more Senators to allow a bill to come to a vote.  (Forgive the following short walk through the weeds of legislative process, but it’s necessary to clarify a point important enough that Tea Partiers claim it justifies their aggressive tactics.)  Historically the filibuster was invoked infrequently, but after 2000 it began to be used more and more until now it has almost come to be considered part of the normal functioning of the Senate.  This violates the spirit (if not the letter) of the Constitution, which demands super-majorities for specific votes (such as ratification of foreign treaties) and requires nothing more than simple majorities for most votes.  The Democrats had 60 votes after the defection of Arlen Specter in April of 2009 and passed their version of Obamacare in the Senate in December.  But they lost the 60^th vote on January 19, 2010 when Republican Scott Brown won the special election to fill the seat emptied by the death of Ted Kennedy, the liberal lion.  Brown had indeed campaigned with the promise of maintaining the filibuster against Obamacare and thereby preventing its passage.  The House of Representatives had passed its own version in November, but Brown’s election and promise of filibuster meant the House and Senate bills could not be negotiated through normal procedure.  Democrats, determined to pass universal health care after decades of effort, decided the House would simply pass the Senate bill as it was and make any desired changes through supplementary legislation passed in the Senate via the budget reconciliation process, which doesn’t require 60 votes.  It’s only the passing of this smaller accompanying act (which contained only budgetary changes to the main bill) that Horowitz is complaining about, not the passage of Obamacare itself.  If conservatives were justified in using an extra-Constitutional device like the filibuster to block Obamacare in a repudiation of huge Democratic electoral victories, why were Democrats so unjustified in using budget reconciliation to pass minor changes?

There’s a word for ruthlessly using technicalities to win on policy: hardball.  But hardball is not the same as Leninism.  On the other hand, parties tend to employ hardball when they lack broad popular support.  Was that true of Democrats and Obamacare?  The Democrats had won the presidency and large majorities in both houses of Congress by running on – among other things – universal healthcare.  But wait: “among other things.”  People vote for all sorts of reasons and not everyone that voted Democrat did so to enact Obamacare; though, by the same token, probably not everyone who voted Republican did so to block it.  If there was overwhelming popular support for Obamacare – as there had been for Social Security, Medicare, etc. – it would have been quite hard for Republican members of Congress to vote against it.  The final Senate version passed in the House by only 219 to 212; 34 Democrats voted no, hardly an overwhelming acclamation.  This is where Krauthammer’s charge of Democratic partisanship has some validity. 

The last decades have seen increasing polarization, and a relatively small majority supported universal healthcare while a sizeable minority vehemently opposed it.  Democrats did try to mollify that polarization by modeling their healthcare legislation upon moderate proposals by the two most important conservative think tanks, the Heritage Foundation and the American Enterprise Institute, and touted by Newt Gingrich and other Congressional conservatives, and passed into law by the Republican governor of Massachusetts.  Conservatives responded with legislative stonewalling, some even conceding that they had never seriously meant their own proposals but only pretended so to undercut liberal plans.  Indeed, over the course of the healthcare debate, liberals reached out to conservatives and were repeatedly rebuffed.  Most of that rebuff was political and cynical – more hardball – but some of it was based upon honest differences over the role of government in a free society.  That is, by 2009 polarization had grown to the point that, reasonably or not, conservatives honestly wanted no universal healthcare to pass.  When the Democrats passed genuinely contentious legislation in such a polarized atmosphere and through such unorthodox methods it was bound to exacerbate polarization and partisan bitterness.  It’s true that much of that polarization before the passage of Obamacare was part of a deliberate conservative strategy designed to increase polarization, but Democrats need not have responded in kind.  Hardball against your opponents may be appropriate revenge for the hardball you’ve endured, but, contra Krauthammer, Leninism as retribution for Leninism is not so glibly justified.  And when Democrats used hardball to overcome lack of popular support it was a genuine example of the Leninist attitude.  But the most objectionable example of Democratic Leninism was the dismissal of Scott Brown’s election.  When such a blue state replaced its longtime very liberal Senator with a Republican expressly for the purpose of blocking Democratic legislation, it constituted an unmistakable loss of popular confidence.  When Democrats determined to pass Obamacare anyway it expressed greater trust in its own ideological analysis than in public opinion.

But Republicans have been guilty of the Leninist attitude as well, and more systematically and to a greater degree.  George W. Bush acquired the presidency with less than 48% of the popular vote, but he governed as if he’d won a broad conservative mandate.  From the Bush era to the present, conservatives have consistently pushed for upper end tax cuts, claiming to represent widespread populist demand for them; there isn’t any. Even during the Great Recession, conservatives have anguished over the debt in the name of a public that is actually much more concerned about jobs.  But the real problem of conservative Leninism is that it’s baked right into the cake of conservative populism.  Consider again the conservative defenses of this month’s confrontationalism.  The populist defense claims conservatives represent a majority when they clearly don’t.  Seems like everyday political deceit; but is there something more?  The libertarian defense claims, in effect, that conservatives should be exempt from certain government actions, even those democratically passed and duly adjudicated.  And as we saw, hardball tactics typically indicate lack of popular support, and October’s hardball conservatism seems to lack all scruples about thwarting popular will.  Do conservatives feel themselves in possession of some alternative to a numerical majority that conveys comparable, or even superior, authority?

It’s a mainstay of conservative folklore that Republicans loose presidential elections when they nominate mushy moderates, like John McCain and Mitt Romney, and win with full-fledged, reliable conservatives, like Ronald Reagan (he may constitute that entire list).  They really seem to believe, against all evidence, that the American heart belongs to them and can be made to beat vibrantly again at the entreaties of a true-blue conservative savior-statesman.  That is, conservatives believe they understand the American essence in a way non-conservatives just cannot.  Only they appreciate the almost perfect constellation of cultural and political institutions – a free market, a religious and temperate populace, and divided and limited government – bequeathed by the Founders; and only they feel the appropriate urgency of freeing ourselves of liberal corruption and returning to that original bliss.  That’s what it means to be conservative!   This inside knowledge of the true American cultural essence is what endows conservatives with the moral-political authority to override mere numerical majorities.  This is conservative cultural Leninism: the belief that all true Americans are conservative beneath the skin, and if not, then they aren’t true Americans and they’re views need not be respected.  This attitude is widespread, habitual and fundamental on the American right.  And it’s this minority populist arrogance which is the true justification for the shockingly hardball conservative strategy of shutdown and debt threat, a strategy that constitutes the single most egregious act of Leninism in generations.

All political movements, even democratic ones, must have leaders and experts; in a word: elites.  There are subtle and complex issues that much of the public – actually living private lives detached from the inside baseball of modern government – simply doesn’t appreciate.  Consider that the citizenry wishes to not raise the debt ceiling.  They are correct in thinking that raising it allows the government to acquire more debt, but they don’t seem to understand that it allows the government to acquire more debt in order to pay for government spending that Congress and the president have already agreed upon and are legally committed to spend.  Failure to raise it would prevent the government from paying its already existing debts, which the world financial system rests upon; such failure would likely lead to global economic Armageddon.   This is a simple matter of fact upon which the public is simply wrong.  Congressmen, Federal Reserve governors, department heads, news professionals, academics, advisors and bureaucrats understand this issue in ways that much of the public does not and probably never will.  That’s not a slam against anyone.  The American people generally display reasonable and balanced judgment; they have good instincts.  Consider their reaction to recent Republican extremist tactics.  But it’s not the job of private citizens to be informed on every aspect of fiscal policy.  Responsible, informed, prudent elites are as necessary to a functioning democracy as is a free and responsible populace.

Of course, not all elites are responsible.  During the debate over Obamacare, Republicans filled the public discourse will all sorts of dishonest accusations: death panels, socialized medicine, government takeover, etc.; such lies continue now in the implementation phase. The public, with its own ideological inclinations and its less-than-perfect knowledge of the issues can be too susceptible to propaganda and obfuscation.  That susceptibility helps explain much of the change in opinion on healthcare between Obama’s election and Scott Brown’s.  This is one of the inescapable limitations of democracy.  (Sometimes the elite falls prey to its own propaganda: apparently several Republican Congressmen seem to think a default would actually be beneficial!  But what’s forgivable in the general public is unbearably shameful in a public servant.) 

Acknowledging the people’s imperfections opens one up to the very charge of Leninism, a charge that can be quite powerful in a country with such a deep populist tradition.  Such accusations arise, for example, whenever a party tries to explain its own electoral failure.  In a democracy you’re obligated to believe that your side loses (either from messaging failure, but that’s the lamest copout there is, or) out of ignorance; i.e. the people don’t realize how wrong they are.  Conservatives believe people vote liberal for the free government goodies; they are morally weak and don’t appreciate the moral satisfaction of economic independence and personal responsibility.  Liberals believe people vote conservative out of mistaken beliefs about the moral nature of capitalist outcomes.  They believe that big government humanizes capitalism and makes it work for everyone rather than just the rich; when working people vote against liberalism it must be that devious conservatives are manipulating their cultural and racial fears.  Obama famously said in 2008 (in a closed-door meeting) that when working people feel the economic squeeze, “it’s not surprising then they get bitter, they cling to guns or religion or antipathy toward people who aren't like them or anti-immigrant sentiment or anti-trade sentiment as a way to explain their frustrations.”  But Leninism does not consist in believing the people are mistaken or limited; it consists in believing one is justified, based upon one’s possession of special ideological truth, to act on important issues against the public’s clear wishes.  Democracy is necessary because without accountability elites run the system for their own benefit.  If democracy without elites becomes a mob ripe for demagoguery, elites without popular control become an aristocracy.  Leninism is an alibi for an aspiring aristocracy.

But even liberals at their Leninist worst, as when passing unpopular transformational legislation, or conservatives at their even worse Leninist worst, as when threatening to blow up the world economy unless their losing economic agenda is enacted in full, are radically different from historical Marxist-Leninists in one very important way: neither one is a small, purely intellectual movement.  Both liberalism and conservatism are broad-based popular movements.  Both the Democratic and Republican parties are small “d” democratic parties in that the grass roots of each party has enormous influence over its policy.  Indeed, the Republican establishment and business leaders lament how powerful the Tea Party insurgency has become within the GOP.  The actual Lenin led his vanguard party to violent revolution and totalitarian control and no reasonable person fears those things in America in the foreseeable future.  But the Leninist attitude is a serious threat to national comity and unity; it exacerbates polarization; it makes people angry; it robs them of their pragmatism and generosity; it makes them less receptive to reason and compromise and more susceptible to propaganda and demagoguery.  And there is one other very important and quite fortunate difference between Lenin’s red October of 1917 and the red state Tea Party insurrection we just endured:  Our red October failed.  Thank goodness.  And thank the good sense of the America people.