THE RIGHT TO SAY NO

In the wake of Walker’s Wednesday maneuver, National Review‘s Daniel Foster mourned the extent to which Americans still (or maybe more so now) recognize union rights as democratic rights, or as any kind of right at all:

To hear all the talk of the “rights” — even “civil rights”(!) — that have been stripped from public sector workers in this bill by the “far right wing” is to see Stockholm Syndrome on a massive scale…The fact is that no individual human being lost a single right in Wisconsin tonight.

The right that Scott Walker and company are desperate to deny is this: the right of a worker to sit across the table from her boss as an equal, with the security of solidarity and the leverage of collective action, and say “No.” It’s the right to say safety rules are too weak or healthcare is too expensive and to exercise voice with strength rather than to exit in hopes of finding a charitable boss somewhere else. And with it goes the right – also attacked by Walker – to act together to move your boss.

There are no workers that conservatives believe should exercise these rights -unless, maybe, they’re in a history book. Either the job you do is too important to be subject to your needs (like TSA screeners), or the business you work for is too small (like a store), or your company is too generous already (like Starbucks), or you’re not really a worker (like domestic workers), or your job requires too much independent thinking (like graduate teachers), or your job should be done by a teenager and you should go to college (like fast food), or – like public workers in Wisconsin – you don’t need an organized voice on the job because you get to vote on who runs the government.

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A PRAYER FOR THE CITY

Just finished Buzz Bissinger’s A Prayer for the City, which he wrote after shadowing Ed Rendell (and staff) through his first term as Mayor. It’s a compelling read and gives an interesting sense of the politics of early ’90s Philadelphia and, more than that, of how folks in City Hall go about their jobs and why. The book suffers, though, from the blinders of ideology in a way that maybe only a book by a zealously pragmatic journalist about a zealously pragmatic technocrat can.

In the Philadelphia of Bissinger’s book, there is no public policy argument for raising taxes to maintain public services – only the weakness of previous politicians who indulge in tax hikes like heroin. Disability rights activists get a dismissive sentence about how they unreasonably expect the city to spend “money that isn’t there” on public services. In Bissinger’s Philadelphia, there’s little grounds for the skepticism Ed Rendell and his crew face from people in the “Black establishment” or “Hispanic interest groups” – you wouldn’t think from the way such folks are described that they really represented anybody, except when Rendell worries if they turn on him they could summon thousands to vote him out of office. The most prolonged, serious engagement with the reality of racism (as supposed to the evils of racial politics) is a discussion of the the devastating legacy of explicitly racist New Deal redlining on the city’s neighborhoods, and it segues back into why urban citizens don’t trust the federal government rather than why racial distrust might still persist. Bissinger’s narrative of the life of an African-American great-grandmother struggling to raise her great-grandkids, like the redlining discussion, is compelling, but essentially divorced from the discussion of racial politics and the book’s scorned “Black leaders.”

And while a good chunk of the book is built around Rendell’s successful campaign to force takeaways in negotiations with the public sector unions, we never get a sympathetic – or even much better than contemptuous – portrayal of anyone who works in one. Bissinger repeatedly mourns, in vividly anthropomorphic terms, the death of middle class manufacturing jobs in Philadelphia (and he talks about service jobs as though they’re inherently undignified and inevitably sub-middle class). But he never gives the reader any reason beyond greed that the city’s employees, some middle class and some aspiring towards it, might zealously defend the standard they’ve won. He gives no reason beyond ambition and self-protection that Union leaders would go to the ramparts in that fight. Bissinger is super sympathetic, on the other hand, in describing a fervently anti-government libertarian who comes to work for Rendell on subcontracting out city jobs and ultimately moves first from downtown to gentrified pricey Chestnut Hill and then out to suburbs because of crime and schools. In Philadelphia, Bissinger states flatly, she had “no choice” but to pay for private school education.

SYMPATHY FOR THE SATYR?

Our right-wing friends have made outrageous attempts to claim the mantle of MLK an MLK Day tradition. But this attempt by Ron Paul’s supporters should still make your blood boil.

Makes you wonder whether Ron Paul’s 10,000+ MLK Day donors are ignorant that MLK was gunned down marching with sanitation workers striking to demanding a union to win safety on the job when libertarians would tell them to suck it up or go work somewhere else. Makes you wonder whether they’re indifferent that MLK faced death threats because he demanded government intervention against bigotry while good libertarians decried civil rights laws as tyranny.

It also makes you wonder whether they missed that issue of Ron Paul’s newsletter describing Martin Luther King as

the man who replaced the evil of forced segregation with the evil of forced integration…not only a world-class adulterer, he also seduced underage girls and boys…lying socialist satyr…

YES WE CAN

Considering the amount of money Ron Paul has raised, Glenn Reynolds asks

CAN YOU STILL CALL HIM A MINOR CANDIDATE?

The answer is yes.

But apparently libertarians have a lot of money. Go figure. Good thing that, for all the distorting undemocratic influence of money in politics, you can’t get elected in America without a bunch of people voting for you.

WORLD’S SHORTEST POLITICAL QUIZ

Guess where you can read the following political history:

You know, it is a word that originally meant that you were for freedom, that you were for the freedom to achieve, that you were willing to stand against big power and on behalf of the individual. Unfortunately, in the last 30, 40 years, it has been turned up on its head and it’s been made to seem as though it is a word that describes big government, totally contrary to what its meaning was in the 19th and early 20th century.

Is it the pages of Reason Magazine? The declaration of some self-described “classicaly liberal” professor? Nope. Those words were spoken at last night’s Democratic Debate by the party’s frontrunner.

This is what people mean when they complain about the Clintons’ much-vaunted triangulation – although this particular argument is really worse than triangulation, in that rather than positioning herself between two bad boogeymen of the hard left and hard right, she’s just defining her politics against left-wing “big government” (didn’t her husband already declare it over?). And she’s defining “individual freedom” against “big government” too.

It’s not a mystery why she would do this. Conservatives have done an impressive job of convincing people over the past decades that more government means less freedom. That’s how they’ve peddled their attacks on the majority’s ability to legislate against plutocracy. It’s how they’ve pushed forward an agenda that leaves Americans less free – prisoners of fear of disaster, dislocation, and disintegration of their communities and their hopes for their families.

Democrats have not done a great job over the past few decades of framing the debate in a way that elevates freedom from want and freedom from fear and challenges the idea that we are more economically free if your boss can fire you for being gay or fighting for more money. Right-wing frames are powerful. That means contemporary candidates need to either co-opt them or challenge them. Which choice they make is telling.

"ANATHEMA TO FREE-MARKET SUPPORTERS"? I’M QUAKING IN MY BOOTS

From Jon Chait’s rebuttal of the aforementioned indecent proposal:

If I understand Lindsey, he is proposing the following bargain: Libertarians will give up their politically hopeless goal of eliminating two wildly popular social programs that represent the core of liberalism’s domestic achievements. Liberals, in turn, will agree to simply eviscerate these programs, leaving perhaps some rump version targeted at the poorest of the poor. To be fair, Lindsey offers these ideas only as the basis for negotiation, but the prospects of bridging this gulf seem less than promising.

It’s worth noting that even the libertarians at the Cato Institute, in a study Lindsey touts and Chait pokes some holes in, could only come up with 13% of the population to label libertarian. And half of them are already voting for Democrats, despite the “anti-nafta, Wal-Mart-bashing economic populism” that Lindsey warns will be the party’s undoing. You wouldn’t know it from visiting most elite universities, but libertarianism is not a big hit. That’s why Bill Kristol urged congressional Republicans not to go wobbly against the Clinton healthcare plan: Not because an expansion (insufficient and needlessly complex though it was) of the government’s role in the healthcare system was contrary to the will of voters, but because if it passed it would cement the popularity of the party that passed it.

STOP STEPPING ON MY BREAKTHROUGH

Doing his best to sweet-talk electorally-ascendent liberals into hitching their wagon to the libertarian rickshaw, Brink Lindsey offers a list of shared victories in which liberals and libertarians can revel together:

an honest survey of the past half-century shows a much better match between libertarian means and progressive ends. Most obviously, many of the great libertarian breakthroughs of the era–the fall of Jim Crow, the end of censorship, the legalization of abortion, the liberalization of divorce laws, the increased protection of the rights of the accused, the reopening of immigration–were championed by the political left.

If these are victories for libertarians, then this is a better argument for why libertarians should support liberals and leftists – the people who actually won each of these victories – than for why the left should turn libertarian. But it’s worth asking whether these markers of social progress even qualify as “libertarian breakthroughs” or “libertarian ends.”

The Jim Crow regime was undone in part by the elimination of the poll tax, a nasty law which restricts access to a government function to those able to pay for it and rewards those with more money to spend on their politics with more voice in them. What about undoing those laws qualifies as libertarian? The Jim Crow regime was undone in part by anti-discrimination laws that empower government to use regulation to limit the freedom of employers to employ a workforce that looks like themselves. Inflicting government intervention on market transactions is not exactly the libertarian m.o. Neither is government-mandated busing to integrate a public school system that if libertarians had their way wouldn’t exist in the first place.

Many libertarians no doubt break with Barry Goldwater and support the Civil Rights legislation of 1964 and 1965. But their support for good progressive law doesn’t demonstrate a fundamental affinity between liberalism and libertarianism. It simply demonstrates that even its devotees sometimes reject the maxim that “the government is best which governs least” when faced with the liberty-denying consequences of the “free market” whose “relentless dynamism” Lindsey urges liberals to recognize.

Libertarians may support freedom of the press from censorship, but they’re more likely to fret over how to sell off our publically-owned airwaves than how to ensure airtime for grassroots candidates. They may support a woman’s right to choose, but I wouldn’t count on their assistance in ensuring that women have the economic means to choose abortion or childbirth, or the educational resources to make informed choices. They may support the rights of the accused to a trial, but they’re not the first to line up to be taxed to pay for decent lawyers to represent them (then there are the ones who would like to replace the criminal justice system with a system of private torts). They may support allowing more immigrants into this country, but if you expect them to face down employers who exploit the fear of deportation to suppress the right to organize, you’ve got another think coming.

And though the Cato Institute won’t be joining Rick Santorum’s crusade against no-fault divorce any time soon, there’s no need for an earnest Ayn Rand devotee to support a right to divorce at all. After all, isn’t marriage a binding contract that the parties should know better than to get into lightly? Aside from the reality that it presides over marriage in the first place, why should government have any more right to stop consenting adults from entering contracts for lifelong marriage than it does to bar contracts for human organ sales or pennies-an-hour employment?

WHERE ARE THE CATHOLIC WORKER POLS?

As Matt Yglesias observes, the relative absence of economically liberal social conservative politicians isn’t based on any lack of voters with that set of views. Michael Lind has an interesting take on it in Up From Conservatism. I still don’t know where he got the idea that the number of Americans “who sincerely believe both that abortions should be outlawed and that there should be further massive tax cuts for the rich – is quite small” (maybe he’ll explain it over at TPMCafe). But setting aside Lind’s questionable demographic premises, I think there’s some truth to his argument that the scarcity of politicians who are socially conservative and economically liberal is related to the scarcity of members of the American elite, however defined, who are what Europeans would call “Catholic workers,” libertarians would call “authoritarians,” and Lind would call “national liberals.” Self-identified libertarians, on the other hand, are much better represented amongst the elite than amongst the American public.

UNION RIGHTS ARE SPEECH RIGHTS

While I don’t at all agree with Thomas Geoghegan’s contention in Which Side Are You On that the ACLU’s agenda, while noble, wouldn’t “cost anyone anything” to implement, he does speak to a well-justified frustration many “labor liberals” feel at the difficulty of stirring certain civil libertarians to get up in arms about the civil liberties of workers on and off the job. Not only are positive rights (like economic security) crucial to the meaningful exercise of negative rights (like free speech), positive and negative rights frequently and fundamentally intersect, perhaps nowhere moreso than the workplaces in which millons spend the majority of their waking hours. Opposition to civil liberties comes not only from those who see in others’ exercise of their rights a threat to their values but also from those who see in others’ exercise of their rights a threat to their economic interests. That’s why the right of workers to speak, assemble, and organize on and off the job has always been threatened in this country. And that’s why it’s so often fallen to unions, in Nathan Newman’s words, to “bring the first Amendment to the workplace.” It’s worth asking (as Geoghegan was trying, though through a troubling turn of phrase, to do) why the idea of deprivation of civil liberties affects many of us more viscerally than the idea of economic deprivation. But even those who only get up in arms over the former should be disturbed that, as Geoghegan has been reminding us for years, American law offers you no protection against being fired for expressing your political beliefs, and promises the weakest of responses to employers who threaten, punish, or fire workers seeking to bargain collectively.

What are the stakes? The Bush-appointed majority on the National Labor Relations Board provided a reminder last month when it upheld a security firm’s rule that bars its employees from “fraternizing” with each other on or off the job. Guardsmark insisted that its employees give up their right to associate with each other socially on their own time as a condition of employment, and the NLRB blessed the company to keep the rule in place.

START YOUR ENGINES

News is that the Supreme Court nominee will be announced tonight at 9 PM, and the buzz is that it’s Edith Brown Clement. She seems like a likely choice: she’s a woman, has avoided drawing as much controversy to herself as a Janice Rogers Brown, and has a far right-wing vision for the court and this country (it always seemed to me that the Gonzales trial balloon was just about getting credit from Latinos for considering him and getting credit from evangelicals for not nominating him).

Brown Clement’s opaque views on abortion will likely continue to dominate news coverage; apparently she refers to Roe as “settled” but not made particularly clear whether she would be interested in unsettling it. The bad news there is, anti-choice leader Hadley Arkes is optimistic:

Just whether or when Roe v. Wade is actually, explicitly overturned may cease to matter quite as much. For in the meantime, the public would have the chance to get used to a continuing train of laws restricting and regulating abortion.

As for the Lochner litmus test, however Brown Clement feels about judicial activism to protect privacy, she seems all-too comfortable with judicial activism to strike down progressive regulations. As Nathan observes, she supported a challenge to the constitutionality of the Endangered Species Act, denied ADA protection to employees discriminated against for having HIV, and argued for making it harder for the poor to get legal representation by cutting legal fees when clients win small awards. As Jeffrey Rosen wrote last year:

How would a stealth candidate like Clement perform on the Supreme Court? Everything about her record suggests she would enthusiastically support the federalism revolution…Taken to its logical limits, the Constitution in Exile would call into question not only environmental protections but workplace regulations like the Occupational Safety and Health Act.

SPEAKING OF LOCHNER…

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.

THE LOCHNER LITMUS TEST

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.