Author Archives: Josh Eidelson

SOME OF HER BEST FRIENDS ARE LIBERALS

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Reading this defense of FOX News (pasted here from Susan Estrich (via Dan, er, Finnegan), you would get the idea that she bears the cross and marches into work every day to get out a progressive message in a hostile environment.  If only.  Susan Estrich serves the same purpose as Alan Colmes: To provide a bipartisan veneer for the channel’s ideological assumptions and strengthen the contention that they represent not right-wing talking points but universally acknowledged common sense.  She revels in heaping scorn on Fox’s liberal target of the day as much as she revels in self-righteous claptrap about how open-minded she is and how much abuse she takes from all her liberal friends for it.  Her role on that show is as a fig leaf posing as an olive branch.

SPEAKING OF LOCHNER…

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Kevin LoVecchio is right to argue over at TPMCafe that the libertarian faith in free contracts willfully ignores to extent to which many of the contracts Americans are coerced into on a daily basis are “not about negotiations, but instead are about tricks and traps.”

The conservatives’ ironclad, reality-be-damned faith in the absolute inviolability of contract has an ugly historical pedigree, going back to Congress’ refusal, on “free contract” grounds, in the wake of the Civil War to punish industrialists who knowingly sold defective weapons to the US Army. It’s philisophical pedigree is fraught as well. Hobbes, for example, insists that “Covenants entered into by fear, in the condition of meer nature, are obligatory” lest collective irrationality in the absence of contract fundamentalism drive societies into the war of all against all whose avoidance Leviathan sets forth as the major task of political philosophy.

Such an argument begs the question of whether human desires can really be inferred from contractual behavior in absence of full information or meaningful alternatives, and of whether human beings have any inalienable rights which they are themselves unable to contract away.

Modern conservatives would do well to remember that even Hobbes is forced later in Leviathan to recognize that there are indeed limits on the individual’s freedom to contract freedoms away. “A Covenant not to defend my selfe from force, by force,” he writes, “is alwayes void.” No human being, Hobbes argues, would knowingly trade away the fundamental right to self-defense, nor should an attempt to do so be recognized as valid. Hobbes thus qualifies his faith in contracts as guardians of collective peace and individual liberty with a nod to inalienable rights. What Hobbes does not or cannot set forth is what should distinguish a promise not to defend oneself from violence from a range of other contractual promises – from mortgaging your home to renouncing union membership – which men and women are coerced into making every day, and which many experience as threats to their bodily integrity or that of their families. None of the free contract fundamentalists, most of them members like Hobbes of a class with little reason to fear for their economic security, has come up with a convincing answer since then either.

YASHER KOACH

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Many thanks to our great team of guest bloggers for their contributions over the past six weeks. Ruth, Alyssa, and Matt each brought a great deal of wit and insight to the site, even in the face of significant commitments of their own. We were lucky to have them here, and I hope they’ll each return to the “blogosphere” in a more permanent way in the not-so distant future. If any of them should, you’ll hear about it as soon as I do. In the meantime, thanks again.

THE LOCHNER LITMUS TEST

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Finally made it into the Philadelphia Airport late last night, after several hours delayed in George Herbert Walker Bush Airport in Texas, a real monument to small government if ever there was one. It was long enough to read a good chunk of Ed Klein’s anti-Clinton screed, and yes, it’s as bad as they say, and certainly libelous – though I’m not convinced that should be illegal. And it was a chance to watch the same couple minute CNN piece on O’Connor’s resignation several times.

Not being a Democratic Senator, I have the freedom to go off message and say that O’Connor’s resignation is unfortunate not because she was the linchpin in some sort of divine cosmic balance on the court that’s best for the country, but simply because her replacement will almost certainly be even more conservative than her, and conservative jurisprudence is bad for our country. Of course, if she herself didn’t want that to happen, she shouldn’t have presided over the theft of the 2000 election.

As for who comes next, my sense is that the Alberto Gonzales trial balloon is a red herring. It wins Bush credit from some moderates and Latinos for having an ostensibly moderate Latino on the “short list,” and when he goes with a Janice Rogers Brown instead, he’ll win that much more credit from right-wing extremists for having “listened” to their concerns about Gonzales.

The good news is that there are still five votes on the Court for upholding Roe (Casey was 5-4, but since then Justice Ginsberg replaced Justice White, who was one of the four), though not Steinberg v. Carnhart, which the federal late-term abortion ban seems to have navigated around anyway. That said, support for the right to autonomy in intimate spaces and decisions long recognized by the court is absolutely a standard for just jurisprudence.

At least as important as support for Roe in the coming controversy, though, should be opposition to Lochner, the court’s atrocious 1905 decision overturning New York’s minimum wage statute on the grounds that the absolute right of contract including a “right to work” for poverty wages. Lochner was overturned in West Coast Hotel, which rightly upheld the power of the people, through the legislature, to foster justice in the face of collective action problems and asymetrical bargaining relationships by enforcing universal labor standards.

Since Justice Black’s dissent in Griswold, opponents of privacy rights have made the perversely labelled the cases protecting them as “Lochner”-like, ignoring the differences between legislation regulating the relationship between employers, employees, and consumers, one which is by definition public, and legislation which regulates the private choices of individuals. Much as Footnote IV in Carolene Products suggests that judicial review is more justified when exercised to protect the rights of “discrete and insular minorities” who face more obstacles in protecting themselves in the legislative process, legislation itself is that much more justified when it achieves collective ends a majority of individuals might prefer but be unable to enact individually due to collective action problems. The law wrongfully overturned in Lochner achieved majority support despite employer opposition because most workers preferred to work less than 60 hours a week but could not unilaterally refuse to work more without threatening their livelihood. It is far less credible to argue that the legislation barring contraceptive use rightfully overturned in Griswold solved a collective action problem shared by a majority of couples who did not want to use contraception themselves but were somehow unable to decide for themselves not to use them. This illustrates the distinction between private and public interaction, and why privacy rights, which protect the former from the kind of regulation appropriate for the latter, preserve personal freedom, while the absolute “right to work” suggested in Lochner diminishes it.

While Justice Black makes equivalence between Lochner’s invocation of substantive due process and that in Justice White’s concurrence, the relationship between the fourteenth amendment and absolute laissez-faire contract rights is far more tenuous than the relationship between the Bill of Rights and privacy. The laissez-faire hostility to so-called “class legislation” was also explicitly rejected as constitutional law by the people through the sixteenth amendment, which in imposing an income tax recognizes the right and responsibility of government to pursue economic justice and equal opportunity through law. The American people, whose prosperity has been fostered and protected by many of those laws, deserve a new Supreme Court Justice who recognizes that right and that responsibility as well.

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This is what we’ve been reduced to? Osama bin Laden cares what happens in Iraq, and so those of us who aren’t fans of Osama bin Laden should support the continuation of the same broken policy? If Bush is going to quote bin Laden as the man best suited to explain why we should stay in Iraq, he could at least offer the whole quote:

I now address my speech to the whole of the Islamic nation: Listen and understand. The issue is big and the misfortune is momentous. The most important and serious issue today for the whole world is this Third World War, which the Crusader-Zionist coalition began against the Islamic nation. It is raging in the land of the two rivers. The world’s millstone and pillar is in Baghdad, the capital of the caliphate. The whole world is watching this war and the two adversaries; the Islamic nation, on the one hand, and the United States and its allies on the other. It is either victory and glory or misery and humiliation. The nation today has a very rare opportunity to come out of the subservience and enslavement to the West and to smash the chains with which the Crusaders have fettered it.

Shouldn’t be a surprise, even to the folks in the Pentagon and the think tanks who planned this war, that Osama bin Laden sees it as a fantastic opportunity to divide the world between Muslims and non-Muslims and recruit more jihadists. The question is why we gave it to him. And to answer by quoting bin Laden, with the implication that the world, or at least the American political scene is divided between backers of Bush and backers of bin Laden, only compounds the outrageousness.

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The LA Daily News reports that a few more congressmen have joined up with a bid to repeal the 22nd Amendment’s two-term limit for presidents. Doesn’t seem to have a chance, and it’s hard to get worked up over one way or the other, but I do think the country would be a hair more democratic without the amendment. I generally think it’s a good thing for us to have social norms against third terms of the kind that already existed before 1947, but that’s a decision for primary and general election voters to make for themselves (or, in the case of FDR, not to) in each election year, not one for another generation to make for us. And it’s a norm individual voters should each decide to uphold or reject in their own selections, not grounds for a current or past majority to deny members of a minority or future majority the chance to vote for the candidate of their choice (same goes for the far less sympathetic ban on foreign candidates, especially in an era when the ostensible threat some English prince using his wealth and residual pro-British-empire sympathies as a springboard to the Presidency is that much less of a reasonable concern…). As Aaron Sorkin once wrote, when the system works, “we have term limits in this country: they’re called elections.”

The real implications of term limits are far greater here in Mexico, where elected officials at all levels are government are limited to single terms. I heard a convincing lecture here at UDLA last week echoing what some political scientists in the US have warned about term limits: they shatter the already-fragile subject-agent relationship between voters and candidates, in which voters do their best to evaluate the performance of their representatives and reward or punish them at the voting booth. That’s why the conventional wisdom we’ve heard repeated non-stop recently is that your first term as President is for re-election, and the second is for history – a charming idea, maybe, but not a very democratic one. And it becomes much worse when no one’s term at anything is concerned with getting elected again. Defenders of the term limits I spoken to here argue that in a parliamentary system where voters are choosing parties rather than candidates (a set-up the lecturer is opposed to as well, though I’m not), this makes little difference, even holding voting based on parties constant, in a scenario without term limits voters have the chance in party elections to reward or punish incumbents, and if those incumbents make it to the top of the party’s list, then all voters get the chance to take performance into account. This professor isn’t the only Mexican I’ve spoken to here who identifies term limits as one of the reasons they feel ignored by their elected leaders, who are looking ahead not to re-election but to currying favor with party elites to make it onto the ballot for a different office (Mexico also seems to provide support, incidentally, for another hypothesis about term limits: that they reduce institutional conflict between different branches of government as you see more of the same people cycling through different offices). Of course that concern is also heightened by the overwhelming perception of party corruption, which is itself the main argument I’ve heard from Mexicans for keeping term limits in place. So earning faith that the system works seems the first step here towards convincing voters here that elections are term limits enough.

From Alyssa

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I really don’t want to be terribly intemperate, but after several weeks of being very serious as I research the Bush administration’s moronic approach to fiscal policy, I feel the need to sound off for just a moment about how moronic this attempt to ban flag-burning is. Joe Klein wrote in The Running Mate, his excellent companion novel to Primary Colors, that the House used to be “wall-to-wall constituent service” because of how frequently Representatives faced reelection. It is insane to think that a flag-burning fight will best serve the urgent needs of many Americans. It is insane to think that such an amendment, regardless of how you feel about flag desecration and free speech, is more urgent a priority than hunger and poverty and homelessness and war. These so-called protectors of patriotism should be spending their time calling for a reasonable stablization plan and exit strategy for Iraq instead of engaging in cyncial, cheap, and dishonorable political manuvering.

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The right has been heaping outrage on Senator Durbin for saying this Tuesday night about an FBI account of torture at Guantanamo Bay:

If I read this to you and did not tell you that it was an FBI agent describing what Americans had done to prisoners in their control, you would most certainly believe this must have been done by Nazis, Soviets in their gulags, or some mad regime – Pol Pot or others – that had no concern for human beings. Sadly, this is not the case. This was the action of Americans in the treatment of their prisoners. It is not too late. I hope we will learn from history. I hope we will change course. The President could declare the United States will apply the Geneva Conventions to the war on terrorism. He could declare, as he should that the United States will not, under any circumstances, subject any detainee to torture, or cruel, inhuman, or degrading treatment.

It’s a shame that President Bush, Senator Frist, and the Right-Wing Blogospheric Noise Machine can’t summon the same level of outrage they’ve mustered over Durbin’s comments over the account he read in the paragraph before – or the countless others like it:

On a couple of occasions, I entered interview rooms to find a detainee chained hand and foot in a fetal position to the floor, with no chair, food, or water. Most times they urinated or defecated on themselves, and had been left there for 18-24 hours or more. On one occasion, the air conditioning had been turned down so far and the temperature was so cold in the room, that the barefooted detainee was shaking with cold…On another occasion, the [air conditioner] had been turned off, making the temperature in the unventilated room well over 100 degrees. The detainee was almost unconscious on the floor, with a pile of hair next to him. He had apparently been literally pulling his hair out throughout the night. On another occasion, not only was the temperature unbearably hot, but extremely loud rap music was being played in the room, and had been ssince the day before, with the detainee chained hand and foot in the fetal position on the tile floor.

You won’t find that paragraph, unfortunately, in the news accounts of the latest from the GOP’s manufactured outrage machine. And don’t hold your breath for a word from Bush or Frist this week to condemn the use of starving and freezing as interrogation techniques.

Instead, they’re accusing Senator Durbin of comparing all of America’s servicemen and servicewomen to Nazis, a charge as willfully inaccurate as Frist’s claim that Durbin called Guanatanamo a “death camp” (that’s what happens when you get all of your news from the (Washington Times). While Durbin’s phrasing is awkward, his plain meaning is clearly not that America is a Nazi state but rather that torture is a practice which better befits an oppressive regime than the United States. Leaving people restrained without water in oppressive heat to defecate on themselves, Durbin reminds us, is a violation of the values of this country. The obvious question, then, for Durbin’s critics is this: Do you see leaving people restrained without water in oppressive heat to defecate on themselves as as expression of the values of this country. Only a truly perverse definition of patriotism would demand, when we see unamerican crimes perpetrated under the American flag, that we change our values as a country to justify our behavior rather than the other way around. There’s no need to mention Nazis in order to make this point. But there’s no justification for reading it as a smear of the US as Nazi Germany or men and women in the service as Nazis.

The latter – the accusation that Durbin attacked Americans in the military – is even more insidious than the accusation that he attacked America itself. The implication is that anyone who criticizes a policy military personnel carry out is expressing scorn, distrust, or murderous rage towards every American in the service (this is analagous to the strategy Thomas Frank documents in One Market Under God of dismissing criticisms of business as expressions of elitism towards the American consumer). It’s a strategy we saw in the Presidential debates, as Bush implied that criticism of our Iraq policy showed a lack of faith in our troops in Iraq. It’s a strikingly tendentious rhetorical move and a pox on a discourse we desperately need to be having as a nation.

Most of all, pretending to hear criticism of the policy as an attack on the troops is a show of incredible cowardice. Faced with much-deserved rhetorical volleys, George Bush is essentially dragging American soldiers in front of him as an unwitting buffer between himself and the rest of the American people. In this rhetorical draft, American soldiers are called to act as a symbolic first line of defense against justified outrage over the administration. Never mind the number of those soldiers and their families who share that outrage, or who have no interest in being drafted -voiceless – into ideological warfare on behalf of the chickenhawks and policies which lead to needless death. Critics of torture and critics of war are taking on our leaders, not our troops. That those leaders, rather than defending their choices, make a show of rising to defend the honor of the troops just shows how little shame they have.

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Today’s press release from Change to Win, the dissident unions’ alternative vehicle for their agenda to revive the American labor movement:

At a meeting this morning with 50 top officials from the unions, the Coalition approved a Constitution and Bylaws that would promote the coordination, cooperation and collective action of their affiliated organizations to boost union strength and improve workers’ lives. “Our goal is to empower the tens of millions of American workers who face the daily challenge of making ends meet and whose voice has been silenced by the overwhelming power of large global corporations and their representatives in Washington,” the five Presidents said in a joint statement. “The basic principle that brings us here today is that American workers cannot win a better life unless more workers belong to unions, and unless those unions have the focus, strategy, and resources to unite workers in their industry and raise standards for pay, health care, pensions, and working conditions,” they continued.

While the founding unions hope their proposals are passed by the delegates to the AFL-CIO Convention, it will put them into practice immediately through the structure and activities of the Change to Win Coalition. Regardless of the agenda adopted in Chicago by the AFL-CIO, the Coalition will move forward with its reform program after the Convention. The union leaders said today that they welcome other labor organizations into the Coalition. They said, “In the Constitution and Bylaws we adopted today, we pledged mutual support and solidarity, no raiding, and no retaliation for those who may choose to leave the AFL-CIO. We seek to change the face not only of what organized labor does, but how it does it.” The Coalition unions have pioneered new organizing techniques. Each member union is contributing funds to the Coalition to take those techniques to a new level by cooperatively organizing non-union workers in key areas of the private sector.

Whether this portends a split or simply a consolidation of the dissidents’ power within the AFL-CIO remains to be seen. Either way, they have a program that works at a time when the federation isn’t working, and they’re right, as they were back when they formed the New Unity Partnership, to work together to push that vision forward aggressively. And they’re right, even as they push the AFL-CIO, not to wait for the AFL-CIO.

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Even after last summer’s daily voter registration rejections in Tampa, the level of cynicism about Mexican electoral politics manifested in the limited number of conversations I’ve had about it with folks in Cholula is pretty striking. Students and others here have told me they weren’t planning to vote next July, that they didn’t care who won, or that that they were planning to cast blank ballots. Even the few people I talked to who were firmly behind a candidate were fairly resigned about future prospects. One thirty-something public employee in Fox’s PAN acknowledged significant disappointment with Fox’s term but blamed it on PRI obstructionism and union intransigence, and called the PRI’s Madrazo a selfish egomaniac and the PRD’s Lopez Obrador a corrupt socialist encouraging dependency. A student who wants to work as an engineer for Pemex (Mexico’s national oil company) told me Fox is criminally corrupt, Madrazo is out for his own power, and only Lopez Obrador seems to care about the Mexicans who are struggling – though his populism scares her. She was dubious about whether Fox and the Mexican elites supporting him would make it possible for Lopez Obrador to take office.

There’s certainly plenty to be cynical about. On the other hand, here the front-runner in next year’s election is a self-identified “humanist” who’s overcome the majority party’s legal bid to eject him from the race and seems to be gaining despite the opposition of economic elites throughout the country and abroad. Which certainly wasn’t the kind of pitch I was able to make last summer.

From Ruth

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Let’s do the world news. First – Bolivia – now there’s a 2005 popular uprising I can get behind. This stuff makes Kyrgyzstan look like t-ball. From WaPo, this is how we do it:

LA PAZ, Bolivia — Bolivia’s interim president vowed to hold elections as he took office Friday, leading indigenous groups to start lifting roadblocks after weeks of massive protests.

Eduardo Rodriguez, the former Supreme Court chief, was sworn in as interim president late Thursday, taking the place of President Carlos Mesa, who resigned in an effort to halt protests he feared could push Bolivia toward civil war.

Protesters from the indigenous majority have been clamoring for more political power and gas and oil nationalization — in opposition to a European-descended elite.

“One of my capacities will be to call for an electoral process,” Rodriguez said after he was sworn in. “I am offering a short mandate with the help of Congress.”

The crisis has shown the increasing power of Indian groups, which could determine the next presidency. That would herald another shift to the left in Latin America, where there is growing opposition to U.S. diplomatic and economic influence.

Both the political mobilization of the Indians and the peaceful, democratic, pretty much successful resolution of the massive protests are quite heartening for a nation with a lot of democracy problems and a lot of race problems. There’s no telling yet where Rodriguez will end up but elections are the right way to start. A-.
Next up, Canada, where bad things are happening in high places. NYT:

TORONTO, June 9 – The Supreme Court on Thursday struck down a Quebec law banning private medical insurance in a decision that represents an acute blow to the publicly financed national health care system.

The high court stopped short of striking down the constitutionality of the country’s vaunted health care system nationwide, but specialists across the legal spectrum said they expected the decision to lead to sweeping changes in the Canadian health care system…

The Canadian health care system provides free doctor’s services that are paid for by taxes. The system has generally been strongly supported by the public, and is broadly identified with the Canadian national character. Canada is the only industrialized county that outlaws privately financed purchases of core medical services.

But in recent years patients have been forced to wait longer for diagnostic tests and elective surgery, while the wealthy and well connected either sought care in the United States or used influence to jump medical lines.

The court ruled that the waiting lists had become so long that they violated patients’ “life and personal security, inviolability and freedom” under the Quebec charter of human rights and freedoms, which covers about one-quarter of Canada’s population.

Medicare waiting times are undeniably ridiculous in Canada. (The province of Newfoundland has only one MRI machine.) But that these health crises threaten equally the rights and freedoms of those Canadians who cannot afford private care, either currently abroad or apparently soon in Quebec, should have been the foremost concern for a high court mandating solutions. This is bad news for Quebecers and, by precedent, soon enough for residents of every province. The good news is that the vast majority of Canadians know it stinks and willfight it, and consequently so will the obsessively poll-reading Liberals. The Globe:

Prime Minister Paul Martin vowed Thursday that Canada’s public health-care system would remain intact, despite a Supreme Court of Canada ruling opening the door for private care in Quebec.

“We’re not going to have a two-tier health-care system in this country,” he told reporters following Thursday’s ruling.

Would that Bush were making such utterances. Canadian health care is strong and deeply embedded in the national culture, but in the mean time, things are going to get worse for the middle and lower classes in Quebec – with doctors and money fleeing the public system – before they better. D.

Lastly, something seems to be going down at the G8:

WASHINGTON, June 9 – The United States and Britain have reached an agreement on how the billions of dollars that the world’s poorest nations owe to international lenders can be erased, removing the last impediment to an accord long sought by the richest nations, a senior official involved in the negotiations said Thursday.

Treasury Secretary John W. Snow and his British counterpart, Gordon Brown, the chancellor of the exchequer, will present their proposal to a meeting of the finance ministers of seven of the Group of 8 industrial nations on Friday in London, the official said.

Apparently, the richest nation in the history of the world has been convinced by a fast-talking Brit to cancel some debt for some desperately poor countries. From a greater good standpoint, I would like to extend a mazal tov and yasher koach to the President for finally getting on the not-evil train. From a political standpoint, I think Blair should have taken that I-screwed-myself-in-Iraq-for-you thing a whole lot of miles further. And let’s not all get out the party hats and streamers just yet because it doesn’t seem like the debt is going soooo far away, and we still have AIDS and malnutrition and diarrhea and war and stuff. All being stops on the aforementioned train that Bush and the US could do some serious image upgrading and, you know, serious moral good by perhaps visiting at some point. In the meantime, B for this class and a B overall for the week.

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My nomination for most bizarre use of a violent piece of art in an advertising context has to be the one we drove by recently with several images from Guernica. It was only on the way back that I was able to catch the text: (roughly translated) We sell the largest burgers of all. That’s right. The advertising pitch is essentially, remember all those cattle massacred (representing humans massacred) when they bombed the city in the Spanish Civil War? Well we scraped them up and put them on your plate.

Any of our meat-eating readers find that appealing?