American Crusader

Bradley Cooper as American sniper Chris Kyle

The sniper clearly sees his target.  That’s what makes him such a compelling figure.  He directly sees the impact of his actions; he knows who he kills and he knows what killing means.  The chaos of war may prevent the grunt soldier from knowing if he ever hits anyone; but the sniper knows.  He rains down death like a wrathful god and he sees who he smites.

So he must confront the question: Who is an enemy and who is not?  That’s the dilemma crouching at the center of American Sniper, the movie by director Clint Eastwood, which presents the life and career of legendary Iraq War sniper Chris Kyle.  The movie sees Kyle as an admirable, old-fashioned military hero: courageous, smart, tough, willing to sacrifice for his comrades.  He protects the good guys by killing the bad guys, and it’s quite clear to him which is which and who is who.

But from where did such old-fashioned moral clarity spring?  According to Eastwood, from the simple teachings of Kyle’s father, a Texas Sunday-school teacher and church deacon.   In an early scene the stern father illuminates for Chris the moral facts of life:

There are three types of people in this world: sheep, wolves and sheepdogs.  Some people prefer to believe that evil doesn’t exist in the world.  And if hatred ever darkened their doorstep they wouldn’t know how to protect themselves. These are the sheep. Then you got the predators. These people use violence to prey on the weak. They are the wolves.  Then there are those who are blessed with the gift of aggression and an overpowering need to protect the flock.  These men are the rare breed that live to confront the wolf.  They’re the sheepdog.  Now we’re not raising any sheep in this family and I will whoop your fucking ass if you turn into a wolf.

Strength without goodness is evil, but goodness without strength invites evil.

The rest of movie shows Chris living out his father’s creed, committed to being a strong and protective sheep dog.  He finds purpose after terrorist attacks against American embassies in Africa and, of course, after 9/11.  The determination to do good sustains him through the rigors of Navy Seal training, through his four terrifying tours in Iraq, through bitter struggles with a wife and family who resent his unending service, through the confusions of returning to civilian life.  He only wavers when he doesn’t know who he’s fighting for, when he’s home and has no sheep to protect.  Finally home for good, he tells a military doctor:

It’s the guys I couldn’t save. Those are the faces I see. That’s my regret – that I couldn’t hold on longer. That I couldn’t do more.

The doctor introduces him to his last fight: helping physically and emotionally wounded soldiers come to terms with the horrors they’ve experienced.  And like every other fight, he faces it bravely and squarely, never doubting his intentions or his ability to help his fellows.  But this is the fight that defeats him; one particularly damaged veteran, Eddie Ray Routh, slips into psychosis and murders Kyle.

The Chris Kyle portrayed in the movie is a genuine hero (though the real-life Kyle was a more ambiguous figure).  There is much to admire in someone so eager to fight the good fight, to sacrifice and risk so much to help his comrades and his country.  But it is a sad, limited heroism, a heroism with blinders on.  As a sniper he saw his victims clearly and as an American soldier he saw good and evil clearly.  But are good and evil really so clear?  To Kyle anyone who fights America must be evil, since America can’t possibly be in the wrong.  It never occurs to him that he was part of a military occupation of a foreign country that did not want him there!  Neither Kyle nor the movie ever considers the complexity of the Iraqi situation, with its wide array of insurgencies, peopled by Baathist ex-functionaries, Iraqi ex-soldiers, and Islamic militants; with Sunni groups, only a fraction of which were connected to al Qaeda; and Shiite militias aligned with Iran fighting against Sunni groups like al Qaeda.  The Iraqi hell was ignited by an American invasion against a regime that had no weapons of mass destruction and had no connection to attacks on the U.S.  Can we honor Kyle’s heroism when we face these facts?

Some of the movie’s most compelling moments come when Kyle is uncertain about a particular kill.  In the opening scene he must decide whether to shoot a mother and son who may be preparing to attack a vulnerable American column.  He hesitates, but when he’s sure of their evil intent, he shoots them down, professionally and decidedly.  In another scene a small Iraqi boy picks up a grenade launcher with great difficulty and tries to aim it at approaching American soldiers.  Kyle’s heart races as he hopes to God he won’t have to kill the boy.  But the child suddenly drops the weapon and runs away, and Kyle breaks down and cries in relief.  He’s a killer, but he’s not heartless; he’s the good guy!  But tactical doubts are as far as Kyle allows himself to go.  He may worry about killing a child, but he never worries that there’s something wrong with a situation which compels him to kill children.  He just stubbornly refuses to consider the reckless, brutal, irresponsibility of preemptively invading a country that posed no threat.  He simply will not let himself see the bigger picture.

But Eastwood’s point seems to be that Kyle could only be a hero by not seeing it.  When Kyle’s friend and fellow Navy Seal Marc Lee is killed in action, Kyle and his family attend the funeral stateside; Lee’s mother reads aloud a letter her son had written shortly before his death, a letter in which he expresses his doubts about the war.  On the drive home Kyle tells his wife what he thinks about his friend’s death and that letter:

We were operating off emotion and we walked into an ambush.  But that’s not what killed him. That letter did. That letter killed Marc Lee.  He let go and he paid the price for it.

Doubt is deadly; only rock solid faith can sustain us.  Eastwood seems to be saying that a soldier fighting a war must believe in it for his own sake.  Kyle was certain that he and his fellow soldiers were the sheep dogs, the insurgents and terrorists were the wolves and Americans back home were the sheep, and that’s all there was to that.  It may be simple-minded and foolish, but seeing his situation that way is what gave Kyle his strength.  To Eastwood, he is strong because he is good and he is good because he is simple.

And what applies to Kyle applies to America as well.  Eastwood is suggesting that this is the only way for a country to fight a war: it must believe in itself.  Since war is sometimes necessary, and therefore sometimes justified, we must believe in that justice if we are to triumph.  Could we have defeated Hitler if we had doubted ourselves? And is the determination to be a sheepdog foolish in itself?  There’s nothing wrong with committing oneself to fighting the good fight, to protecting the weak, to combating oppression.  Indeed, isn’t that the highest calling?

But Kyle’s sin, and America’s, is believing that good intentions are enough.  It was easy to justify fighting Hitler, but it’s not so easy to justify invading Iraq.  A thoughtful sheepdog – a sheepdog who wants to make sure he’s not a wolf – accepts the responsibility of understanding the meaning and consequences of his actions.  But also, more fundamentally, where both Kyle and his country – our country – go wrong is in believing that our intentions are always good.  Americans really love this movie, and we do so because it indulges our fervent wish to reclaim the conviction that we’re inherently, inescapably good.  And in that way, this movie – and every American war movie made in the last 40 years – is really about Vietnam.  Vietnam made us doubt, and we still have not come to terms with that.  Kyle’s simple faith and heroism urge us to join him in rejecting the doubt.  The farther right one goes on the political spectrum, the more one reveres that American goodness and applauds its forceful application.  But to some degree all Americans feel this Puritan instinct to save the world.

This is the tragedy of American idealism.  We ache to do good in the world, to be a force for good, to be an example of good.  But to blindly believe in our own crusading righteousness, and to deny the moral complexity of the world in order to cling to that righteousness, is to invite victimization by foolish and cynical politicians.  American idealism exploited Kyle and destroyed Routh, and through Routh, it destroyed Kyle as well.  It’s right to celebrate and admire Kyle’s courage and sacrifice, but we must overcome his limitations.  The best way to honor Kyle’s heroism is to prevent any further exploitation of the generous, eager idealism still out there. But that idealism must itself become more sophisticated and responsible.  We must absorb the lessons of Vietnam and Iraq and become less self-righteousness and more genuinely righteous.  We must become more humble about our intentions and our capabilities.  We can be both good and wise, but only if we concede that both we and the world are so much less simple than can be seen down the scope of a high-powered rifle.

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.

Stupidity, Dishonesty and Cowardice

"I cannot tell a lie"

Another video has surfaced of Jonathan Gruber saying cringe-worthy things about Obamacare.  Gruber is an MIT economist and health care expert who worked as a number cruncher for the White House during the push to enact Obamacare.  Here’s what he said last year regarding the way political pressures distorted the legislative process:

This bill was written in a tortured way to make sure CBO [Congressional Budget Office] did not score the mandate as taxes. If CBO scored the mandate as taxes, the bill dies. So it’s written to do that.

In terms of risk-rated subsidies, in a law that said health people are gonna pay in — if it made explicit that healthy people are gonna pay in, sick people get money, it would not have passed. Okay, lack of transparency is a huge political advantage. And basically, call it the stupidity of the American voter or whatever, but basically that was really, really critical to get anything to pass.

Conservatives are up in arms, particularly over the “stupidity” part, convinced that Gruber’s comments expose the dirty truth of modern liberalism:  It’s a conspiracy of snooty technocrats confident their superior brains and sociological analyses authorize them to control the everyday lives of the smelly masses, the rednecks and rubes too foolish to make the right choices, too stupid to know what’s good for them.

But let’s ignore that ridiculous argument and consider what Gruber was actually saying: that for any legislation to pass it must be politically presentable, it must not afford its opponents an easy target. And that applies to Obamacare in two ways.  First, Democrats could not allow the individual mandate to be seen – by the CBO or the public – as a tax.  Second, the essence of Obamacare is a transfer of health insurance dollars from the young, rich and healthy to the old, poor and sick; the public would never have allowed such governmental redistribution, so it had to be disguised.  And Gruber was also saying that it was easy to slip those two deceptions past an American public that doesn’t closely follow healthcare policy debates.  Charles Krauthammer charges that, “in order to get it passed, the law was made deliberately obscure and deceptive.”  Is he wrong?

It’s true, as Brian Beutler protests, that Obamacare’s legislative process was more transparent than most (compared to say Bush’s 2003 Medicare expansion or the run up to the Iraq War).  And it’s true, as Neil Irwin concedes, that certain aspects of the law itself (not the process) were deliberately obscured; and that is a “commonplace” tactic that's been employed by both parties on many occasions.  So who’s responsible for the fact that the American public does not really understand Obamacare?  Andrew Sullivan blames liberals and the administration for not making a better and clearer case for the law.  But many pundits, such as Paul Krugman, Jonathan Cohn, Ezra Klein and Jonathan Chait, have been explaining it clearly for years.  Gruber himself even wrote a comic book to make it easily understandable!  And conservatives, of course, have invested an enormous about of time and energy lying about the very law they now accuse of deceit and deception.  The national press did a bad job of covering all this, as they always do, by focusing on optics and neglecting substance.  But if any individual wanted to know more about the law, they could have quickly and easily done so – as long as they turned off Fox News.  The one actual, explicit lie used to sell Obamacare was the president’s promise that, “If you like your health plan, you can keep it.”  He knew it was a lie when he said it, but he also knew that admitting that 7 or 8 million people would have their policies regulated away – even though they’d be replaced with better ones – might have put the whole law in jeopardy.  The entire structure of American political discourse worked against an honest assessment of the law.

But let’s make the real confession.  There is one fundamental lie liberals have made and continue to make about Obamacare, and it’s a lie of omission.  The components, the details, the numbers have been endlessly examined, analyzed and debated.  But the real meaning of the law has, for the most part, not been adequately addressed.  What is its deeper significance?  What is it really about?  Redistribution.  Both Gruber’s confession and conservative complaints really boil down to this one point: Obamacare severs the connection between income and healthcare coverage; it indirectly redistributes money from the rich, young and healthy to the poor, old and sick.  The “indirectly” in that last sentence is what the current controversy is really about.  Gruber both regrets the necessity of that indirection and gloats over its devious utility.  And that gloating gives conservatives cover to deplore its dishonesty, though in reality they only lament its effectiveness.

But should we deplore its dishonesty?  Only if we care about American democracy.  Only if we wish it to be more rational and effective.  Sullivan puts it nicely:

If someone were willing to explain the ACA in simple, clear and honest terms, I think most Americans would back it . . . I refuse to believe that a democracy has to operate this way for change to occur. Gruber’s arrogance and condescension are just meta-phenomena of this deeper dysfunction. Someone needs to treat Americans as adults again before this democracy can regain the credibility it so desperately needs to endure.

But is Sullivan right that Obamacare could have withstood a thoroughly candid presentation?  Would a majority of Americans have supported it, even knowing the governmental redistribution that lay at its heart?  The answer is not clear, but I think probably not.  The idea of redistribution, explicitly promoted, would probably have been too unnerving.

We see that the distrust of Obamacare is primarily ideological.  American instincts are generally conservative: they fear centralized authority, they mistrust regulation, they insist that each person is the master of his own fate.  But American instincts constantly conflict with American interests.  Modern society would not be livable without the welfare and regulatory state that liberals have created and conservatives threaten, and Americans affirm that every time they deposit their social security checks and present their Medicare cards.  American conservatism evaporates at the door of the unemployment office.  Put more prosaically, the American people are ideologically conservative but operationally liberal, as has been noted many times.

That’s the real reason public policy is often deceptive.  Social Security pretends to give you back the money you paid in, but it actually pays more, relative to income, to those who made less.  So liberal laws must be dressed up in conservative clothing.  Many liberals, possibly including Obama himself, would have preferred single payer healthcare but considered it politically unpalatable, so they offered a market-friendly program cooked up in a right-wing think tank and instituted by a Republican governor.  Many Americans dislike Obamacare (some hate it for the evil Satanic, Islamic, Communist conspiracy it is!) while they like most Obamacare provisions.  Kentuckians, for example, hate Obamacare but love Kynect, their state’s implementation of the Obamacare exchange; but they returned to the Senate Republican Mitch McConnell, who has explicitly vowed to repeal Obamacare yet who refused to condemn Kynect when cornered in front of a Kentucky audience!  In the last election people all over the country voted for liberal policies like marijuana liberalization and minimum wage increases while voting into office conservatives staunchly opposed to those very policies.  Huh?

In effect, Americans want to be lied to.  They want it both ways: to enjoy their liberal dessert while believing it’s sturdy conservative fare.  This is the real deception at the core of this debate: the American people are kidding themselves.  They’re not stupid, as Gruber and some liberals believe, nor are they solid conservatives.  They’re inconsistent, and unaware of it.  And that encourages politicians and pundits to see what they want to see.  Conservative operatives dream of an America utterly given over to its deepest conservative instincts, but they’re woken from the dream by picketers angrily cursing any cuts to Medicare.  And liberals can never understand why Americans don’t follow them out of the laissez-faire wilderness into the social democratic Promised Land.  A consummate seduction of the American public eludes them both, though conservatives whisper sweet poetry and liberals offer alluring gifts.

But you don’t practice politics with the public you wish you had.  Ultimately, Americans want to be told the truth.  And they deserve the truth.  Liberals need to come clean.  The Democratic Party is the party of redistribution, and it should damn well act like it!  That’s not socialism or authoritarianism – conservative paranoia to the contrary – it’s the pragmatic amelioration of the worst inequities of modern society.  An economy that provides more and more to those at the top but demands more and more from everyone else does not satisfy the demands of democracy and justice.  Unfair economics is as destructive to democracy as dishonest politics.  If liberalism is not about justice for working people then it becomes little more than a loose confederation of identity groups, fighting over the scraps of a long gone shared prosperity.  It abdicates its claim to universalism, it loses its fire and its soul.  And so it has.

Gruber thought he bravely spoke the truth of American politics, that the people are so stupid that good policy must be deceitful policy.  But Gruber’s story is really one of liberal cowardice.  And there’s so much of our current misfortune that would be greatly improved with just a little more liberal courage.  Human nature being what it is, game-playing cannot be removed from politics.  But why can’t liberals successfully balance cunning and conviction?  And can they do the ceaseless, thankless work of educating the public about what they stand for and why?  And most importantly, can they learn to trust the people again?  The people are not stupid, they have as many practical instincts as conservative ones; they are amenable to prudential, fair, liberal policy that would benefit them and strengthen the country.  They’re merely waiting for leadership that both works for them and respects them.  Conservatism, in its modern incarnation as plutocratic propaganda factory, does neither.  Timid liberalism can only do the former.  Only confident and candid liberalism can do both.

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.