John Rachal's Blog

The formula for polemical writing typically advises beginning with acknowledgments of the valid or at least arguable points of the other side. These acknowledgments are typically rather perfunctory, though well meant. But I really mean them: any targeting by the IRS of a group solely on the basis of political ideology, while giving a pass to groups with the opposite ideology, is wrong. Richard Nixon should not have done it when he sought to have the IRS target specific individuals known in his circle as his enemies list. The IRS should not have implied that the NAACP was treading on dangerous ground relative to its tax-exempt status in George W. Bush’s administration, nor should it have attempted to intimidate a church that had a speaker—not a church employee—advocating some political point not friendly to the Bush administration. The Nixon case had nothing to do with tax-exempt, non-profit status, unlike the Bush cases and now the Obama case.

I remember no particular outrage in either of the Bush cases. Now, however, we have a full-blown ersatz scandal, with both Republicans and Democrats preening in high dudgeon. But there are some specifics to this case that I have heard nowhere else other than from Lawrence O’Donnell’s show, The Last Word. These include: (a) the actual law states that organizations should be denied tax-exempt status unless their activities are “exclusively” devoted to “social welfare” and thus not even a little bit political; and (b) as early as 1959 the IRS essentially ignored the law Congress wrote and passed, and substituted the word primarily for Congress’s exclusively. That one change in wording means that organizations which claim that their primary purpose is social welfare, but which allow up to 49% of their purpose to be devoted to political advocacy, would be approved for tax-exempt status. But by the law, as actually written, the IRS could not approve their tax-exempt status since any political activity would bar that status being granted. So, by law, only an organization that is exclusively a social welfare organization—which is to say, an organization without any political action activity at all—can be granted tax-exempt status.

Democrat Carl Levin in 1994 inquired of the IRS about the use of these two mutually exclusive terms, exclusively and primarily. The IRS replied in a letter obtained by O’Donnell that the IRS interpreted the word exclusively to mean primarily. This is the point that should make us mad with the IRS—that somewhere, at least by 1959, it was violating the law by rendering one critical word (exclusively) in the law null and void, and all on its own substituting for that word another word (primarily) that was totally incompatible with the word Congress wrote. The difference between exclusively and primarily is the difference between dog and cat or often and never—they are not exactly opposites, but they do not overlap since they each exclude the other. They are not subject to possible misinterpretation by being roughly synonymous like sometimes and occasionally. They mean very different things, and the IRS had no business changing the meaning of the law by changing those words. The IRS doesn’t tell us that we should “primarily” or generally not cheat on our taxes, but that we should “exclusively” or never cheat on our taxes. They would not be happy if we “primarily” didn’t cheat. God didn’t tell Adam and Eve to try not to eat the apple, or not to eat much of it, or not to eat it unless it looked like it was about to rot. He told them, quite unambiguously, Don’t eat the apple. There was no room for interpretation. When the IRS changed that one word, they committed their original sin.

So since the IRS should all along have been following the law and rejecting applications for non-profit, tax-exempt status for groups engaged in any political activity at all, it was actually right to be questioning or rejecting applications for groups with Tea Party in the name, just as it would have been right had it received applications from groups with Democratic Party, Republican Party, Communist Party or other groups who are obviously engaged in politics, and not just primarily, but exclusively. But even by the lesser standard of the word primarily, they should have been rejected, or at least questioned, since an organization which included in its name a well-known political group could reasonably be assumed to be primarily devoted to political activity rather than social welfare. What we don’t know is how many liberal groups with red flag words in their names were applying and, equally important, being accepted for tax-exempt status. We do know that many conservative groups were applying, but without knowing about the number of liberal groups applying and being approved, the notion of “targeting” is itself misplaced. And if the number applying is small, then the word targeting is simply wrong. You just can’t compare fifty to two. We don’t know the numbers, and we should know them before passing judgment. If, on the other hand, the fictitious Tea Party for American Progress and many similarly named groups were being stalled or rejected, while a roughly equal number of the equally fictitious Radical Leftists for Radical Change and other similarly named groups were not, then we have targeting. Either way, it is reasonable to infer orientation from such names. They tell us their purpose; we know what Tea Party means these days, just as we know what Occupy Wall Street means. When the name itself bespeaks political action, whether left or right, the IRS employees asking for more information before granting tax-exempt status were not stalling but doing their job. And their boss, Ms. Lerner, was apparently doing hers. Nor should we forget that many conservative Republicans would love to see the IRS dismantled, so it seems no huge stretch to conclude that many conservative groups took the opportunity to exploit the IRS misinterpretation of the law that allowed them to conduct political fund-raising and advocacy behind a charade of “primarily” social welfare fronts, all while mooning the very organization they loathe. By contrast, and presuming their applications were comparatively few in number, liberal groups were either too honest or too dumb to exploit that same misinterpretation.

So the IRS is guilty, but not of what it is currently being accused. It is guilty of changing the meaning of the law decades ago, and continuing to ignore the original meaning to this day with impunity. I have not heard a single legislator berate the IRS because of that. Why has no Congressman hurled thunderbolts at the IRS for unilaterally changing the law that Congress itself wrote and passed? That change has led us to this: judgment calls as to what is 49% political and what is 51% political. Returning to the law as written, with that unambiguous word exclusively, would get us away from that by eliminating from tax-exempt status any group doing any politics at all. In so doing, it probably would make most Americans happier knowing that the tax system is not effectively subsidizing numerous political groups whether of the left or the right.

Perennial blowhard Rush Limbaugh bewails the state of American democracy, given its recent re-election of a moderately liberal black man—a deplorable state of affairs due, in Mr. Limbaugh’s view, to the empty-headed hordes of “low information voters.” These poor saps are, by right wing definition, liberal voters, or even those with middle-of-the-road political dispositions. Certainly any Obama voter must ipso facto be low information, and almost any supporter of a Democrat. But Limbaugh is wrong forty-two percent of the time, and he lies fifty-eight percent of the time, which means that his caterwauling should be ignored one hundred percent of the time.

A more accurate definition of a low information voter is the modern descendant of a species discovered by H. L. Mencken: the knuckle-dragging boobus americanus, who, squatting beside the radio, listens raptly to Limbaugh’s mummery and mistakes the sputum dribbling from his mouth as actual reality. This pitiable cretin bears, as Mencken once noted in a slightly different context, “all the stigmata of inferiority—moral certainty, cruelty, suspicion of ideas, fear.” In other words, the true low information voter is the Limbaugh fan, first cousin to Faulkner’s Flem Snopes, but even further debauched. In addition to the stigmata, and since reality is an insufficient explanation for the menacing forces presumed to be surrounding him, Rush’s typical listener leaps to conspiracy theories, filters out any tincture of rationality, and sees himself as the hapless and innocent victim of the vast and bellicose armies of radical leftists seeking to dispossess him of his guns and his lesser constitutional freedoms. Not that he has ever read the Constitution or would actually agree with any of its sentiments, other than the second amendment. In short, he is as ignorant as a housefly. This constellation of unenviable traits makes him the perfect gull for Rush, who has slopped at the trough of public stupidity and paranoia for years and made a fine living at it. Rush’s overriding message is akin to a gigantic, engorged, suppurating boil on the end of his nose waiting for the scalpel, and when its blade pricks, the fetid ejecta splatters over all of those within earshot, anointing them with his imbecilities and lies, and leaving them feeling as if they have been bathed by John the Baptist himself. But in truth, their low information status has just been lowered into negative digits, their fragile hold on reality further loosened, their panic heightened, and their fact-free anger stoked. They rush, so to speak, headlong into the darkness, girded for the Apocalypse, oblivious.

The Senate’s astonishing pusillanimity this past Wednesday, April 17, 2013, could serve as the core of an argument to adopt enlightened monarchy as the preferred form of American government. By a vote of 54 yes and 46 no, the 46 Noes of the Senate rejected the tiniest, most conservative, least offensive possible measure for sanity and safety in favor of prostrating themselves before the National Rifle Association as the only god to whom their unshakable obeisance is due. Joined by four Democrats who also had their spines removed prior to the vote, 42 Republicans chose to spit in the faces of the 89% of Americans who favor universal background checks prior to gun purchases, and instead offer a blood sacrifice in the form of a No vote to their new god. This Vengeance-is-Mine NRA god does frighten them with Calvinist retribution and ayatollah fatwas should they waver, and so perhaps we should, in good conscience, look upon them with almost as much charitable pity as with revulsion as they bow and scrape. But while we may pity them, and are unquestionably revolted by them for their No votes, Democratic Senator Harry Reid should have subjected them to the consequences of their threatened filibuster: He should have made them come to the well of the Senate and actually filibuster the proposed law, forcing them to expose their craven and spurious arguments until each dropped, exhausted, drained of their venal, self-congratulating excuses and their squalid sophistries. For the Yes voters, it was an opportunity to challenge the filibuster-loving Republican hostage takers, and yet again, it was an opportunity lost.

One might think that that 89% of Americans who support background checks, and whom the Shameful 46 presume to represent, might be their constituency. Representing that great majority would be reasonable, political, even moral. It was what they were in fact elected to do. Instead they chose their new god and the other 11%, who are presumably the felons and mentally disturbed the law was designed to prohibit from having guns in the first place. In effect, the Shameful 46 chose to protect the criminals and advocate, in this one single instance, for what they consider the absolute, unconstrainable Constitutional right—that is to say, the gun right, the only right that matters—of the mentally disturbed. Of course the second amendment is no more absolute than the first amendment. Just as we cannot commit libel or perjury or yell “fire!” in a crowded theatre, we already have background checks for gun store sales; guns cannot be carried on school grounds, in courtrooms, in prisons, or (tellingly) in the visitor galleries of congress; most states prohibit openly wearing guns; and so far ownership of howitzers is not permitted. So the absolutism argument, namely that any constraint at all on the second amendment would be unconstitutional, is simply wrong on its face.

Perhaps instead of decrying the appalling cowardice of the 46, we should be praising the courage of the 54. It is part of the sad commentary on American gun politics that their votes were, in many cases, considered real acts of courage. But can that really be so if 89% of us already believe in universal background checks? Was it that tough a vote to say “yes” both to the people and to simple common sense and “no” to the new god? Was it that tough to say that we should do something that preserves the second amendment while maybe, just possibly, making society a tiny bit safer to boot? Was it that tough to cast a vote FOR twenty first-graders and six of their teachers and their families? Aren’t those grieving parents, in some attenuated way, also US? The relatively small amount of real courage that it took to vote yes on Wednesday only accentuates the profound cowardice of those who voted no. From April 17, 2013 forward, anyone victimized by gun violence that can be traced to a gun sold without a background check at a gun show to a convicted felon or an adjudicated mentally disturbed individual can blame not only the perpetrator, but also his forty-six co-conspirators in the U. S. Senate.

The intense hatred of Barack Obama by so many Republicans is so fervid as to deserve thoughtful scrutiny. This hatred far exceeds normal political distaste for the opposition candidate. Obama, at least to his supporters and even some Republicans, is not some sort of far-left fanatic bent on turning America into a socialist state, though that is at least part of the charge against him. Despairing Republican voters such as a Navy veteran accuse him, for example, of “knowing nothing about the economy” and having spent four years doing “nothing.” A friend of mine attacked his foreign policy in vague terms, but I could not help but wonder if he was in fact attacking the very idea of a youthful, non-military president having sufficient gravitas and understanding of Realpolitik to make credible foreign policy decisions at all. The fact that former Secretary of State and four star general Colin Powell endorsed Obama, and specifically his foreign policy, surely set back many Republicans, for whom Powell is the embodiment of honor as a military hero—a black man to whom they can point with pride and simultaneously burnish their own claims of racial blindness. How, they must have privately asked, could he endorse Obama’s multitudinous failures, unless it was simply an act of racial solidarity? The fact that Powell endorsed McCain against Obama in 2008 just makes it more puzzling.

I confess to a degree of partisanship that sometimes makes me uncomfortable. But the hatred of conservatives towards Obama outstrips my dislike for Bush, or even for Romney, whose mendacities and perpetual flip-flopping could only leave a neutral observer aghast. There certainly must be more to it than the mere fact of Obama being a Democrat in the White House. Right wing radio has been apoplectic since the election, alternately brooding and braying, filling their rhetoric with secession, implied violence, and racist screeds. One long-bearded truck driver interviewed by USA Today was “prepping” for the apocalypse and could only lament that he now needed to buy more guns before doing so became illegal. His was the face of the paranoid far right-wing, and not reflective of the GOP at large. Even so, how far is his extreme view from that of Donald Trump, who tweeted that Obama’s re-election was a call to “revolution”? Nor do we see the Republican Party repudiating its primitivist Tea Party wing, which has done nothing to disguise its vicious contempt for Obama, including signs at rallies portraying him alternately as Hitler and as an ape.

The ape imagery is, of course, a familiar racist trope. Few Republicans would admit a racist element in the mainstream of the Party, but that element embedded in the virulent anti-Obama animus is simply unmistakable among the Republican right. Here in Mississippi over 200 Ole Miss students protested the election results in racist terms on election night, and a similar rally occurred at Hampden-Sydney College in Virginia. The thirty-somethings down the street from me who stole my Obama signs three different times left a note deriding the “HNIC”—an apparently well-known acronym in redneck circles meaning “Head Nigger in Charge.” Much of what passes for general anti-Obama sentiment based on his policies and alleged liberalism is in fact covert racism intertwined with a profound and unalterable resentment. What Obama represents is the source of this resentment: a presumed multi-racial tide of black and Hispanic Americans inundating and submerging white America. Not only is white America under assault in this view, but it has a moral and patriotic obligation to “take back” our country, a phrase common among the Tea Party radical right but also among regular Republicans. Hispanics and Asians, though still part of “the Other,” are reluctantly acknowledged by the far right at least to be hard-working; but in our long, race-conscious history, African Americans have always been seen by innumerable whites as lazy. This stereotype was recently employed by Republican hardliner John Sununu, who used the word in reference to the President and refused to recant it when a shocked Andrea Mitchell offered him the opportunity.

The laziness charge flows perfectly into a larger white Republican narrative of a runaway culture of entitlement which benefits blacks in particular, and thus becomes a central tenet of the politics of resentment. The fusion of a white Republican perception of blacks inordinately benefiting from the “gifts” of an entitlement-drenched government, coupled with a smoldering bitterness toward the government for its extortionate over-taxing of whites to support the socialist, entitlement bureaucracy, is the jet fuel of the Republican narrative centered on and animated by resentment. Their shorthand is We (patriotic, white America) pay; They (mostly minority freeloaders) play. A construction worker working next door told a friend and my wife that he had to keep working so that he could pay all of his income to the government. Though he smiled, the comment reflected his resentment-inspired politics. Romney tapped into the resentment in his infamous, secretly recorded comment about the 47% who did not take responsibility for their own lives and depended on the government (including veterans, retirees, and the disabled) for their livelihood. Ryan expressed the same sentiment with his overly simplistic comment about “makers and takers.” The fact of Obama’s race hugely exacerbates the politics of resentment, since from the white Republican perspective he won only because of minority support. Certainly he would have lost without minority support, just as Romney would not have been in contention without a majority of white support. But that is sort of the right wing’s point: We’re supposed to be a white, Christian nation, and so it is nothing short of galling to have that nation run not only by a black man, but a likely Muslim and, at least in Trump-world, a black man not even born in the United States. The whole “birther” obsession is both an attempt to de-legitimize Obama’s presidency as well as an appeal to the politics of resentment. Informed Republicans may scorn the birther and Muslim absurdities, but even for them those absurdities are part of the background noise and are rarely disavowed.

For Republicans, especially but by no means exclusively those born to wealth, “entitlement” evokes connotations of lower classes receiving unearned benefits, benefits which they also see themselves paying for. This perceived transfer of wealth is the centerpiece of the virulent attacks on “socialism,” and it is at the heart of their resentment. Of course entitlements also redound to veterans, retirees who have worked their entire lives, and the disabled—not just Ronald Reagan’s “welfare queens.” But for the well off, and many in the middle class, entitlement also has another meaning, though one not acknowledged: it is one rooted in wealth, heritage, race, and class, in addition to personal accomplishment. This sort of entitlement is the opposite of “noblesse oblige”—namely “le droit de seigneur,” the right of the upper class, the presumed duly earned privilege of the doers and makers. In its most naked form, it is the privilege of race. Like good health, it is barely recognized unless lost; and Republicans’ dual perception of its loss to the undeserving masses, coupled with the unearned, socialistic “gifts” and entitlements for the “takers,” drives the resentment. For the underclass far right, this unacknowledged upper class- and race-based entitlement takes the form of racial heritage and race pride, again coupled with the anger and resentment toward the 47% unwilling, according to Romney, to take responsibility for their own lives. Any parsing of American politics, in particular invidious attitudes toward the current president, can hardly avoid examining the politics of resentment as a central animating force.

Sometimes you just spit right into the wind, knowing perfectly well the result. Even so, the spitting can still be a little fun, even if, as in the case with the following letter, you know that it is dead on arrival and probably culled by some stern and highly offended secretary so that it never soils the hands of its intended public servant.

September 21, 2009

Dear Senator Wicker,

I have, with the passing of the decades, learned to refrain from the common temptation to write one’s elected representatives with a view to dissuading them from what I might consider to be a perilous course, largely because I have found such letters to be ineffective. No doubt this ineffectiveness is due to my peculiar views generally favoring democracy and the commonweal rather than oligarchy and plutocracy, wedded to what I perhaps erroneously consider the morally proper thing to do; the consequent result being that those views are received as the misguided, pernicious, or naïve bleating of the pinko left and thus relegated to the only suitable place—the round file.  But I do not mean to bore you or to waste your time. I merely meant to establish what you might consider my “reverse” bonafides: to wit, that I am a member of what to your party would be the loyal opposition.

But I am in receipt of your recent “Report on Health Care,” and the bonds that usually keep me silent were loosed. I believe that you are an honorable man, despite a senatorial campaign that on both sides was remarkable only for its lack of civility, truth, and candor. (I had thought to write a letter prior to election day and send it to whomever proved to be the victor; its theme was to be simply that you—or Governor Musgrove—should be ashamed of the campaign for its near total incapacity to run more than a single advertisement that did anything other than to recite, usually with no small degree of hyperbole, the multifarious irregularities and digressions from integrity of your respective opponent. How refreshing it would be if our campaign discourse could emerge from the slums and gutters which have become its natural element; but that forlorn hope has been nearly abandoned by most Americans, I suspect. But in compliance with the view expressed in my opening, and despite my repugnance at the scurrilous nature of the campaign, I kept my own counsel.) But I do believe that it is a blotch on your honor to continue uttering the shibboleth that, regarding health care, anything other than some minor tinkering with the status quo constitutes a “government takeover.” It is—and I am totally sincere in asserting this—truly difficult for me to believe that a man of your gifts and accomplishments actually believes this; but it is equally difficult for me to accept that you would knowingly engage, by using this loaded refrain, in the flagrant demagoguery and seemingly unashamed mendacity that the phrase represents. A public option would no more represent a government takeover of health care any more than the existence of The University of Southern Mississippi and its sister public institutions takes over higher education, as the success of Millsaps, William Carey, Tougaloo, and Mississippi College testifies. Nor does the existence of the U. S. Postal Service seem to imperil FedEx or UPS. Would you have opposed state-sponsored elementary public education in the nineteenth century on the ground that it would eliminate the cobbled-together private venues in which readin’, ‘ritin’, and ‘rithmetic were taught? Wouldn’t the success of Presbyterian Christian School and Sacred Heart here in Hattiesburg belie that opposition?

I have a close friend and colleague of 29 years who votes Republican; another who with her husband daunted me in taking into her home after Katrina a total stranger, an elderly black refugee from New Orleans, and following through by finding local housing for him and assisting in a thousand ways up through his funeral about a year ago. It was an example of being your brother’s keeper that illustrated for me how far I fall short of that Biblical admonition. And yet, when it comes to national policy, it seems to me that the Republicans (the Civil War being excepted) and the most conservative Democrats are far too often on the wrong side of history, and act in the interest of the corporate, the powerful, and the well-heeled. How many Republican congressmen voted for Social Security, the Civil Rights Act, or Medicare? And yet despite their actuarial problems, aren’t Social Security and Medicare now acknowledged by Republicans to be public goods? And would we do away with the government-run Veterans Administration?

I must lastly tire you with a comment in response to your observations about waiting lists in Canada and Great Britain. It is the nature, of course, of politics and polemics to articulate only those sides of an issue which support one’s position, disingenuously ignoring, as if they did not exist, any aspects uncongenial to that position. But I am sure that you are aware that both of those countries provide coverage for ALL of their citizens; that their health care is far less expensive per capita than ours, even though the physicians and hospitals are actually private; and that in general their people are healthier than we are. Though I am not proposing copying their systems, it is certainly less than honest to suggest that the mere existence of a public option represents a “government takeover” duplication of Canada’s system, and equally less than honest to neglect to mention those significant superiorities of their system, while only endlessly bemoaning their waiting lists.

After 157 years as slave-holding colonies, and another 87 years from the day we proclaimed that we were a nation, we abolished that “peculiar institution.” While health care is not the moral touchstone that slavery was, it is not a passing issue, and it has its own moral imperatives (I pass over entirely the current unsustainable fiscal imperatives). Eventually we will have universal coverage, and that coverage’s cost will not forever spiral upward, far outpacing inflation. I invite you to break ranks and represent your fellow Mississippians on the right side of history—not as a politician, but as a statesman, perhaps even with a touch of Genesis 4:9 in mind. If you cannot, I do at least ask you to forego misleading us further with hand-wringing, fear-mongering, and utterly false pronouncements about “government takeovers.”

Respectfully and cordially,

John R. Rachal

Just when we thought it was safe to conclude that the Supreme Court is hopelessly partisan, Chief Justice Roberts deftly throws a few morsels to the Right but manages to defend the healthcare mandate as constitutional, not on the four liberal justices’ ground of Congress’s right to control commerce, but rather on the ground that the mandate is effectively a tax and Congress does have the right to tax. Thus the centerpiece of the law was preserved, and not by the vote of the usual swing-voter, Anthony Kennedy, but by the conservative, George Bush-appointed Chief Justice, John Roberts. This outcome, particularly with this unexpected alliance of Roberts and the four liberal justices, was predicted by virtually no one, least of all me, who assumed the usual politically dictated outcome of 5-4 against.

It was certainly refreshing to see the Court tack counter to expectation. The 2000 Bush v. Gore decision broke perfectly along party lines, giving the election to Bush despite—though this was outside the Court’s consideration—the election being the country’s fourth in which the fellow with the most votes did not become president. The execrable Citizens United case also broke along party lines, allowing elections to be determined by train loads of one hundred dollar bills collected from mega-rich anonymous donors seeking to buy an election, all on the specious ground that a corporation is a person, a citizen, and thus entitled to free speech. Wealthy people generally being Republicans, the decision has rightly been interpreted as more favorable to the GOP, and already in this election cycle millions upon millions have slipped in to Superpacs, mostly favoring Romney. Even John McCain excoriated this decision, a decision allowing democracy to come perilously close to simply being bought, particularly in elections below the presidential level.

But the healthcare decision went, in general, liberals’—and one might even say moderates’—way. The four liberals of the Court (Ginzburg, Breyer, Kagan, and Sotomayor) voted predictably. Three of the five dependable conservatives (Thomas, Alito, and Scalia) did also. Kennedy, as usual, leaned right, though he does not always do so. The surprise was Roberts, always heretofore conservative. Among the plenitude of questions and implications the decision has for healthcare, it also raises the question of the influence of political affinity as the determiner of Court decisions. The healthcare decision notwithstanding, most decisions do seem to reflect the political orientations of the justices, however much we might wish otherwise. In all but the most obvious cases, a law’s constitutionality often evades the actual language of the Constitution, and depends instead upon the politically infused interpretations the justices offer of the Constitution. If this were not so, presumably it would be a total mystery to observers and commentators as to whether a controversial and especially politically-charged decision might be 9-0 for, or 9-0 against. Instead, we can generally predict eight of the votes. We know the political leanings of the justices, and on that basis we can with some likelihood determine how they will interpret the Constitution to arrive at the decision that comports with their politics.

What is interesting is that one of the justices, Antonin Scalia, takes strong exception to that, at least concerning his own decisions. I have now seen Scalia, the current Court’s longest serving justice, give two speeches. He is a charming and forceful speaker, devoted to the idea of “originalism,” a doctrine asserting that the only way to interpret the Constitution was by its “original intent,” which presumably can always be ascertained by a close reading. Scalia suggests that there are no legal questions—which he differentiates from moral questions—which cannot be interpreted within the purview of the Constitution; its principles are immutable whatever the ephemeral facts of any particular modern case might be. In contrast to originalism, he opposes the doctrine of the Constitution as a “living document,” a view he reviles on the premise that such a constitutional philosophy allows the meaning of the Constitution to change every few decades as social values evolve. Reasonably explicit in this argument is Scalia’s objection that the “living document” view inevitably invites politics into Court decisions, whereas originalism insures that decisions are safely insulated from politics since justices would rely only on the original intent of the framers.

Even aside from the highly suspect perspective that modern justices can derive the framers’ collective intent, the Scalia presumption that such derivations are immune to the political leanings of the interpreter is both naive and self-deceptive. Between the Constitution and a particular justice’s opinion is a layer of personal political conviction, a fact which every president nominating a justice and every senator voting on a nominee well knows. The most obvious evidence for this is found within Scalia’s own decisions—almost invariably conservative, at least when there is a conservative-liberal angle to the decision. Would, for example, the framers have endorsed the execution of child criminals—an issue the Supreme Court decided against a few years ago? How are we to decipher the framers’ intent on such a question? And in the absence of a clear constitutional prescription on a question, i.e., constitutional silence, isn’t trying to get into the minds of the framers and determine their intent at least as hazardous as relying on prevailing, rationally argued, ethical views? And by what consensus do we apotheosize the framers to such an extent that we assume their values and prescriptions, which were influenced by their cultural milieu just as ours are, to be infallible? The “father” of the Constitution, James Madison, apparently did not lose an excess of sleep over slavery, nor did he seem much troubled by excluding half the white population—women—from voting. So much for original intent of the framers. Those shortcomings were eventually “corrected” by amendments, and thus became constitutional, but those amendments were political products of their time and consequently clear evidence of an evolving, “living,” document. Why would the framers have inserted a mechanism for amendments if they did not wish to acknowledge the possibility of need for change, modification, or addition over time? The very fact that the framers provided that mechanism is itself evidence of their “original intent” that the document was a living document, to be amended as future generations saw fit.

Senator Chuck Grassley of Iowa strains to find his artistic métier, and has succeeded wondrously in the art of hypocrisy. In his Valentine’s Day editorial in USA Today, he rails against the health care law and in particular the individual mandate requiring all Americans to have health care insurance through their jobs or by purchasing it if necessary. What he conveniently omits is his support of the mandate in the 90s, when it was a Republican idea. But now that it is a Democratic idea, somehow it is a threat to the very foundation of American ideals, which back then he somehow did not notice. Then, when it earned his support, it was a way to prevent all taxpayers from having to bear the burden of the uninsured running to emergency rooms. Now, having earned his contempt, it is the first installment of the Stalinist State. He doesn’t really believe that, of course; it’s just one more Republican example of the Great Lie aimed at garnering public support for the insurance industry in the guise of Constitutional principles. If we can frighten enough Americans and take down the mandate, the whole of healthcare reform will fall, like a house of cards. Had he simply acknowledged that he previously had supported the mandate when it was a Republican idea, one might write him off as just your average beltway hypocrite, or possibly even a fellow who just changed his mind when the political breeze shifted. But no, that would have almost approached having real principles—and would have required actually attempting to explain why what was good as a Republican idea is now bad as a Democratic one. But where Grassley rises above the common masses of political hypocrisy—rises to Olympian heights of hypocrisy deserving of admiration and almost defying ridicule—is in his gnashing of teeth that “the new law rewards insurance companies with a massive new captive market.” His concern over rewarding insurance companies is marvelous. It is transcendent. It is Rembrandt-esque in its artistry.

John R. Rachal
February 17, 2011

House Republicans, deterred briefly by the Tucson massacre, can now check off pandering to our base as their second action as the majority party in the new congress. Obamacare is now safely repealed—only it isn’t, if repeal means the actual law has changed. It will go nowhere in the Senate, where Democrats are still barely in charge. Even if Senate Democrats were all sick on voting day and it did pass, the President would simply pull out his veto pen, and there are certainly not 67 Senate votes to override him. But House Republicans can now say, as Speaker John Boehner did, “we listened to the people,” though he should have added, sotto voce, “but really to the insurance companies.” Thus the new majority played a little fiddle tune as Rome warms up, the fire on the horizon being the national debt and an unsustainable budget, with no current officeholder of any stripe having a serious plan to rein it in.

So what is it exactly about healthcare reform that the Republicans so want to repeal? The prohibition against insurance companies cherry-picking their customers? The prohibition against insurance companies dropping customers if they inconveniently get a little too sick? The prohibition against companies’ refusal to cover people with pre-existing conditions? The right of children up to age 26 to stay on their parents’ insurance? The closing of the doughnut hole for seniors? The expansion of health coverage to 30 million more Americans? The greater scrutiny of fraudulent Medicare claims? No, they claim to want to keep these things; it’s just that darned freedom-killing requirement that everyone have insurance, by buying it if necessary, that’s standing in their way. This, they say, is an infringement of a citizen’s rights, ignoring altogether the fact that governments require people to pay taxes to support things they may not advocate, and they require drivers to buy insurance. But that’s different—you don’t have to drive. For most people between 20 and 80, driving is not a choice. Well it’s just wrong, so Boehner et al. say, unconstitutional even, to require folks to buy health insurance, even though they inevitably are in the healthcare system from the day they are inoculated until their last visit to the emergency room. To make the case against the mandate, they drop their usual concern about the uninsured having their health problems paid for or subsidized by other taxpayers through Medicaid and visits to emergency rooms—the socialism thing.

It is hard to put much credence in their protestations that all those good things about healthcare reform are things they want too—their backers in the insurance industry certainly don’t. If it just were not for that pesky mandate that everyone must buy insurance, they would be healthcare reform’s biggest champions. All those mysterious lost jobs is a problem too, but never mind the Congressional Budget Office’s estimated $230 billion addition to the debt that repeal would cost over the next several years. Not coincidentally, the mandate is the linchpin of the whole plan, the mechanism by which it is funded, and if they could kill that, healthcare reform would just go away. And if they can say “job killing” enough times, that might, they hope, just put them and their insurance company pals over the top, before Americans discover that they actually like Obamacare, and that the Republicans tried yet again to sell them a bill of goods.

So now Newt Gingrich, desperately trying to raise his visibility for a possible presidential run, attacks Obama for his perfectly sensible views on “American Exceptionalism.” Even Sarah Palin, who likely had never heard of the term before this month, weighs in by suggesting that Obama is somehow not American enough, given his willingness to acknowledge that other countries may likely see themselves as exceptional as well.

The term American exceptionalism suggests that America has been divinely assigned a role of unique greatness, a superiority to all other nations and peoples, and a corresponding responsibility to be the moral exemplar of the world. It is certainly true that we are the most powerful country; many other countries do look to us for moral and political leadership; many people from around the world want to come here; we are a democracy; our standard of living is high; we regard autocracies with a jaundiced eye. Moreover, our first national war was to achieve the laudable aim of independence and representative government; we fought another just war to cleanse ourselves of the crime of slavery; and we fought a third just war to eliminate the threats of two other self-perceived “exceptional” nations, Germany and Japan. But German exceptionalism, in the form of a purified racial superiority and the thousand year Reich, and Japanese exceptionalism, in the form of a divine emperor at the head of his divinely endowed empire, should give American exceptionalists some pause. One can be proud of one’s country, as I am, without crossing into exceptionalism. The danger of the exceptionalist view, even when divested of bellicosity, is its hubris. Despite the longings of the Old Testament, God does not “choose” peoples and the nations they comprise, and if he did, he probably would not go with the rich and powerful. And those Greek tragedians did have it right: an excess of hubris precedes a fall, as Germany and Japan discovered in the recently concluded bloody century, and as the Southern Confederate aristocracy did in the previous one. Whether we are in the morning of America, or the mid-afternoon, I cannot tell. As Egyptians, Greeks, and Britons will remind us, however, no empire reigns forever. And on that point at least—despite our many virtues—we are not likely to be an exception.