Monday, December 27, 2010

The Repeal of DADT

"Don't Ask Don't Tell" has finally been repealed. It is time now to look back on the hypocrisy of those who maintained a "separate but equal" philosophy regarding gays and lesbians serving in the military.

Remember the "unit cohesion" argument? That was a popular and prevailing argument in the 1990s. It appears ridiculous to most people today, but it is worth reminding ourselves that we have had our fair share of ridiculous convictions in our past. Consider "separate but equal," the jurisprudential doctrine that upheld Jim Crow laws in the South for over half a century. There is actually a common thread linking "separate but equal" of the 1890s with the "unit cohesion” argument of the 1990s. Those arguing for racial segregation a century ago believed that people of different races should not interact with each other, and the nation's highest court codified this belief. Writing for the majority, Justice Henry Billings Brown argued that Louisiana's Separate Car Act (which provided for separate railway carriages for the "white" and "colored" races) was intended to preserve “public peace and good order” and was therefore a “reasonable” exercise of the legislature’s police power.

The argument in the 1890s was that the races should be kept in separate facilities to preserve "good order." That's not too different from the argument of the 1990s that homosexuals who are out of the closet should not serve in the military so that "unit cohesion" is preserved. In both cases, a specter of chaos and disaster was invoked to justify inequality. In both cases, what fueled this fear wasn't just ignorance and fear of the unknown, but obstinate ignorance - ignorance so virulent and shameless that its army was able to codify irrationality into public law.

It would be remiss, then, to not point out the hypocrisy of those who defended "Don't Ask Don't Tell" based on the "unit cohesion" argument. It would appear the only people whose morale were affected by the repeal of DADT are people who just aren't comfortable being around gays and lesbians. This is a classic example of psychological transference. The unit cohesion argument is too often, a smokescreen for unreflective bigotry, as if a concern for military readiness was really what was at stake in the debate. The fact is that gay men and women have served in the military since the revolutionary war without incident, and openly serving gay men and women have served in militaries around the world, also without incident.

If someone feels that they cannot serve their country well because they are serving alongside somebody with whom they cannot "socially cohere," this person should just get over it. It's called an education. Too often in our history, even though the problem does not reside in disaffected members of the in-group, members of the out-group are the ones who have found themselves legally marginalized. Consider the callousness with which the Supreme Court opined in 1896, "If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane." In effect, the racist majority in the Court had decided that if there was an "inferior" race, it wasn't the fault of the "superior" race that the world is just as it is. Just like that, racial segregation was deemed constitutional and morally legitimate.

The history of "Separate but Equal" and "Don't Ask Don't Tell" teaches us that when we fail to ask, or to interrogate the spuriousness of reasons offered in defense of irrational public policies, then irrationality prevails and it can continue to do so for decades. When we ask, we invite fellow citizens to consider their unspoken premises and their unreflective fears. That has always been how America, a country born during the Enlightenment, managed to emerge from our dark ages.

Monday, December 20, 2010

Obama's Silent Reset

President Barack Obama, who had taken a backseat to allow the First Branch to set the health-care reform legislative agenda last year, has now moved into the driver's seat of American government. An electoral shellacking was all it took to for a former constitutional law professor who once espoused the separateness and equality of branches to stop practicing what he once taught.

The irony is that it was united Democratic party control of all branches of government that allowed Obama the luxury of taking the back seat. When before, he could have relied on Pelosi and Reid, Obama has recently learnt that he can only rely on himself. The Oval Office is a lonely place, but he who realizes it quickly learns that as a result, it is also a powerful place.

So a lame-duck Congress was reborn like a phoenix last week with the ashes of presidential leadership. Obama unilaterally stepped in to negotiate a deal with the Republicans to extend the Bush tax cuts, without consulting the Democratic leadership. Some say he sold out, but all that matters is that he cut a deal. And whenever a president can put his signature to a piece of legislation, he wins.

Nancy Pelosi did not even turn out for the signing of the $858 billion tax bill. Granted that she is about to turn over her gavel to John Boehner as Speaker of the House, but her absence gives us a preview of what the next two years of the Obama presidency will look like. No, not that Obama would be sharing photo-ops in with Republicans (which to be sure, he would), but that he would be at the center of every picture.

Divided party control of White House and Congress invariably summons the imperial presidency. Whenever there is gridlock, the president becomes the Great Negotiator - he who enjoys the discretion to cut deals and to give concessions. Now, the bad cop can turn to his liberal base to say, "what did you expect me to do?" and the good cop and turn to his conservative allies to say, "see how much I've sacrificed for you?" When the president performs this strategic pirouette, he invokes the ancient power of monarchs, prerogative. And, as presidents have learnt to say, only ideologues and knaves stand in prerogatives' way. People say gridlock is going to weaken the Obama presidency; I say gridlock was his godsend.

Not that I think this is a good thing for constitutional government. For better or (mostly) for worse, the president has become the face of American government. He has become the font of our hopes and dreams because when nothing else works, Republicans and Democrats alike wait for our political messiah to signal an answer. And so the Founding logic has been inverted. Today, even as the Congress proposeth, it is the president who disposeth -- Article 2 now leads Article 1. As Obama has learnt on health-care, a president who takes the back seat means a leaderless party and a disheveled Congress. Conversely, when a president wins, so does his party. And so a republic has become a personal presidency. This is one of the unfortunate structural realities of modern American politics. The more divided we have become, the more power we send to the only person in the entire constitutional constellation who is uniquely in a position to negotiate a deal.

Some Republicans are now cheering that they got a relatively good deal from the president on the tax bill. What they might not realize is that Obama is already positioning himself for 2012. Look at any head-to-head poll between Obama and either a primary challenger or a Republican contender. For all the missteps of his last two years, the president's approval ratings are still hovering in the mid-40s. The president remains fairly likeable; or at least no less likeable than Reagan or Clinton were in their second years in office. Certainly, the approval ratings for the 112th Congress will rise a little at the start of next year, but it will soon fall back to its paltry equilibrium when the bickering invariably begins. All Obama would have to do then, is to preside "presidentially" over the gridlock and surreptitiously advance his own agenda in the name of compromise and bipartisanship, positioning himself as peacemaker and defender of the American people. Liberals will gripe, but Independents will swoon, and Obama would be well on his way to a second term.

Thursday, December 9, 2010

Obama's Deal with Jon Kyl

Obama is a politician, and that's why he's made an estate tax deal with Jon Kyl in return for Kyl's support for ratifying the START treaty.

As Senator Chuck Schumer has suggested, the Democratic party would probably benefit by allowing the Bush era tax cuts to expire, but this is not what Obama is proposing because he has something up his sleeve.

Consider if Democrats allowed the Bush tax cuts to expire. People would be angry for a few days, but then come 2011, Democrats would be in a better bargaining position to play chicken with Republicans. Democrats would then be able to dare Republicans to stand against tax cuts for the middle class just so that these tax cuts could also be extended to the rich. Democrats are likely to win with themselves framed as the defenders of middle-class tax cuts, and not, as they are now, opponents of tax cuts for the rich.

Consider if Democrats insist on getting a deal before the year ends. Then Republican obstructionism becomes more powerful, and Democrats are more likely to have to blink in a game of chicken. Republicans today are wisely saying that the tax cuts should be extended, and it is not they who are obstructionist, but Democrats. This frame is so powerful that even majority public opinion, which is against the extension of the tax cuts for the rich, has been massaged into oblivion.

In American politics, whoever looks obstructionist ends up looking worst. Right now, it is the Democrats who appear obstructionist, and the frame is in the Republicans' favor. After the tax cuts expire, it would be Republicans who would look obstructionist, and the frame would be in Democrats' favor. Put another way: whatever passes in Congress next year would then be called the Obama tax cuts, not the Bush tax cuts and the Democrats would have begun to take back control of the tax issue from the Republicans.

So most Democrats are not in a hurry to pass the tax cuts - that is why they waited so late to even consider the issue, even though they have known for a decade that the Bush tax cuts will expire this year. Indeed, the only reason why Democrats are considering the issue now at the 11th hour is because the president is caving in to Republican requests to do so, for a reason that is entirely his own. This reason is much less noble, and entirely political.

It's about START. Obama is ceding ground on the tax cuts because he doesn't really get much credit for revising the tax regime. Other Democrats will share the accolade, and whatever benefits that redound to the economy will come slow and in the future. But if he gets something passed on foreign policy, the benefits accrue almost entirely to him, immediately. For a president worried that unemployment may still be around 9 percent in 2012, a foreign policy achievement would be the fitting antidote.

Who's against START? Senator Jon Kyl. And who was it that struck a deal with Obama about lowering the estate tax exemption to 3.5 million per individual (and not 5 million) and the tax rate to 35 percent (and not 45 percent), much to the chagrin of House Democrats? Senator Jon Kyl. Indeed, House Democrats are so outraged about this particular provision that they are refusing to even vote on the compromise bill until it is revised. This is the political deal of the year if ever there was a hustle. And it would appear, from the House's defiance, that some congressional Democrats are not pleased that the president has sold them out.

Is Obama's commitment to START about national security? In part but not entirely, because the deal with the Russians was made as far back as April this year. The administration had all year to hurry the process up; but it was only after the mid-term "shellacking" that they realized that they better try to achieve something while they can because the next two years look very bleak indeed in terms of securing a positive presidential report card. The political gurus in the White House decided that this was a winnable issue and that it is better to secure something in the bag for which the president could take full credit for than to fight another drawn-out legislative battle (as health-care reform was) for a potential political gain that would have to be shared and diluted among fellow congressional Democrats.

Most Democrats are still giving Obama the benefit of the doubt that he is with them and not for himself, but this deal with Kyl will put this faith to serious test.

Sunday, December 5, 2010

WikiLeaks, Anarchism, and the State

WikiLeaks affirms on its website that "democracy and transparency go hand in hand." This may be true in the abstract, but in the world in which we live, it is not, because the only democracies we know of operate within the confines of the nation-state and nation-states are not comfortable with transparency. That is why the campaign by the nation-states of the world to shut the site down is proceeding with such ferocity.

Individuals - at least those who live in states committed to the rule of law - enjoy a presumptive respect for our privacy. There is no reason why anyone or any institution should have access to details of our private life. We do not owe anyone a transparent account of our lives.

WikiLeaks believes that nation-states should not enjoy a similar presumption because it believes that under the cover of secrecy, states are more likely than not to engage in nefarious activity. WikiLeaks rejects the "need-to-know" operational norm of the nation-state because it rejects its monopolization of the legitimate use of force and therefore its monopolization of the legitimate use of information.

And this is the disagreement between anarchists and realists. Realists believe that nation-states are the way to run what would otherwise be an even more anarchic world. If it weren't the American, German or any other government dealing with each other, it would be multinational corporations, sub-national groups, and transnational organizations (some of which are terrorist groups) determining the agenda and contours of global politics. Realists assume that the disorder between entities other than nation-states would far exceed the disorder between nation-states. Anarchists believe that the disorder between nation-states - most notably, war - is the source of global friction, not its solution.

The anarchism of Julian Assange (WikiLeak's public face) is not so far removed from other strands of anti-statism. Assange rejects all nation-states in a plenary fashion. The American Tea Party movement does not challenge the American nation, but it does reject the American state when its focus is directed internally (rather than externally). Like Assange, the movement believes that whereas individuals do not owe to others a duty to be transparent about ourselves, states owe a duty of transparency to those who are burdened by their authority. Osama Bin Laden rejects only Western nation-states and their support of the Jewish nation-state, but he is no anarchist because he wants to create a Palestinian state. Bin Laden believes in transparency too - just not his own. The interesting point that emerges from these comparisons is that whereas the anarchist is universally and without exception against the state (and believes that all nation-states, if they exist, should be transparent in their dealings with each other), both non-state actors like Al Qaeda and sub-state actors, like the Tea Party movement, are only selectively in support of the state and the virtue of transparency when they further their perceived interests but not otherwise.

What the last three examples force is a question that will come under increasing scrutiny in the decades to come: under what conditions do we need the state? Reasonable people can and will disagree, but what is clear is that very few people are completely against the state without reservation or exceptions. Anarchists, like all purists, are a lonely breed. While it is true that we now live in a world where one hacker or one terrorist master-mind can take on a superpower (and indeed Americans like in a country in which a nascent political movement can take on a state that was a century in the making), states will fight back. The enemies of WikiLeaks are powerful entities. They control the issuance of passports, the banking systems, legal systems, and the legitimate use of force. If for centuries, they have commanded the course of global and national politics; their grip on power will not be easily loosened.