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Mattie Ross and America
Wednesday, March 27, 2013, 1:18 PM

My take on Mattie is a bit different than Peter’s, but the main difference is that I work more with the Coen brothers’ film–it really is an adaptation, nearly different from the original Portis as a classic poet’s adaptation of Homer might be. They add and subtract quite a bit.

So here’s a tid-bit from the paper, “Cowboys and Corpses: The Moral Perils of the State of Nature in the Coen Brothers’ True Grit” I’ll be delivering tomorrow at WPSA. You can find the stuff I say about corpses in by search FT for “True Grit Studies”:

We can see that Mattie Ross nurtures three tendencies characteristic of or at least treasured by Americans: 1) commercial/legal acumen, 2) Protestant Christianity, and 3) western heroic manliness. Obviously, she is more suited to the first of these than the latter two, and her story illustrates the tensions between the three. However, the story does not set-up a major tragic clash or choice between these. Mattie never has to directly choose between horse or horse-flesh, book-keeping or the Good Book, Calvin or Achilles. Indeed, her ignorance of these tragic tensions is the essence of her childishness, we might say of her peculiarly 19th-century and American-Southern sort of childishness, that she arguably carries on into adulthood. Rather, her story enacts a tragic conflict between the state of nature and the 2) Christian and 3) heroic tendencies: entering the wild west eventually sends her into a hell-pit, and the enabler and emblem of her heroic desires, Blackie, must die to get her out from it. If the American can only cultivate the heroic qualities if America has a zone of lawlessness that he (or she) can periodically enter, then this zone’s being poisonous to the soul’s salvation and to virtue generally really is a tragic situation.

But notice, the story presents no tragic conflict between American commercial/legal acumen and the state of nature. If in Ft. Smith we are struck by the unseemliness of everyone always deal-negotiating, perhaps most notably when the mistress of the boarding house tells Mattie she will give her a used sugar-sack to carry her father’s gun in “for a nickel,” it is even more prominent and unseemly in the state of nature, where corpses, parts of them, and human lives themselves become objects of trade. The state of nature can be inconvenient to commerce, as the owners and riders of the Katy Flyer find when robbed by Ned Pepper’s gang, but can readily accommodate it. Indeed, when captured by Pepper’s gang, Mattie seems to expect that she can cut bargains with the outlaws, offering the services of her lawyer as exchange…if one could find a Mattie unconcerned about Biblical right and heroic virtue, she would prove a valuable member for any band of robbers.

Let us say by “cowboy” we simply mean the person who can survive and thrive in the wild west, who can ride the trail and defend themselves in gunplay; if so, we can see that the Christian cowboy and the heroic cowboy are combinations difficult to achieve. In True Grit, both combinations prove impossible for Mattie, and the Coens’ version makes us wonder whether they may be inherently impossible. But a Hobbesian cowboy, a Scrooge-ish, mercenary, lawyering-up cowboy, that is a combination entirely possible. And indeed, if one has Mattie’s skills, Ned-Pepper-like Hobbesian practices can be employed in civilization itself, via litigation and predatory business practices. This is why being in the state of nature poses such a moral danger to her: she is both young and already inclined to the civilized versions of state-of-nature ruthlessness. Interestingly, it does not pose such a danger, or poses much less of one, to Rooster. Since in Mattie we have such a striking combination of key American tendencies, what her poisoning represents is the danger the state of nature, as an idea and an actual experience, poses to America. …

Civilization has three or four locales in the film: Ft. Smith, Memphis, and the Ross family graveyard in Yell County. The fourth is the Indian settlement Rooster carries Mattie to… Obviously, little action is set in any of these locales except Ft. Smith. It comes off very poorly. A widow’s child and wayfarer is not cared for, but must arrange to sleep amid the dead. And while there may be a lot of “talk” of justice and such at the Monarch Boarding House, its king is money and self-preservation. If there is any other “monarch” in Ft. Smith, it is Law, represented by the goings on of Parker’s court and gallows, but if we can judge by the (fairly transient) residents of Ft. Smith, it does not seem to be the sort of law that is educating them in virtue. The occupants of the Monarch Boarding House pay their bills, obey the laws, and refuse to take any risk to themselves upon Chaney’s crime. Nor, prior to it, do they seek, unlike Frank Ross, to redirect Chaney from his drunken crime-tending rage—rather, they mind their own business. Family and community seem absent in Ft. Smith, and what we see is instead is boarding, haggling, lawyering, and hanging,… We also see cowboys… So, state-of-nature thinking, bound of course by the rules of the social contract, governs all in Ft. Smith, despite weaker Christian tendencies brought to it by characters like Mattie (and in the novel, by Stonehill and Parker also) or the weaker heroic/Southern ones brought to it by characters like Cogburn and LaBoeuf, and Mattie also. Ft. Smith represents a civilization that will turn its gaze away from a good man shot down, and that because it will treat animals as “horse-flesh,” will ultimately accept that the logic of economic calculation leads to what Péguy called a ‘world universally prostituted because universally interchangeable.’”

Another facet of American civilization, however, is its rural life, represented by Yell County. It is the place where dignified burial can happen, and where a natural aristocrat, Frank Ross, the combiner of virtues mercantile, Christian, and Southern, could thrive and raise his remarkable daughter. …But obviously, the problem with Mattie is that the hard Hobbesian side of the commercial and legal practices, practices presumably necessary for the Ross family to secure their thriving Yell County life, seems to be taking over, eclipsing the familial, Christian, and the Southern virtues she was also raised in. Frank Ross’s balancing of the American tendencies seems to be becoming undermined by the civilized application of state-of-nature thinking. …we can say that Ft. Smith, the product of America’s commerce and frontier, proves fatal to him…

Portis does not permit us to put things as starkly, to imply that the American virtues represented by Frank Ross, Yell County, and Rooster Cogburn, are doomed before the Juggernaut of Modernity, of state-of-nature thinking fully applied, even if he does present those virtues as diminishing and endangered. We should note, for one, that his wild west zone has subtler degrees than that of the Coens: there is a semi-civilized area around the Indian settlements, and the truly wild area beyond Bagby’s store. His Ft. Smith and his Mattie likewise contain subtler degrees: Stonehill and Mattie have a brief conversation about true Christian virtue at one point, and there is curious moment when Mattie notes to herself that she was less thrilled than she thought she would be when she got the money for the pony sale. Both she and Stonehill are more Christian, and potentially more reflective about their love of money, than meets the eye. Likewise America.

…contrary to what the Coens’ ambiguous portrayal of him might suggest, Rooster limits his own killing to what he calculates is necessary to help the U.S. enforce justice, i.e., to what Locke would call the second part of the “law of nature,” to aid in the preservation of others, insofar this does not come into stark competition with his first obligation to preserve his own life. To speak again with some crude—but very American–contrasting of Locke and Hobbes at the latter’s expense, Rooster is a good Lockean, but what is more, he risks his life in self-sacrificial ways that go beyond what Locke would demand, ways that point towards heroic virtues more Southern (and Christ-like) than the putatively Yankee ones. Portis holds that America needed, and will continue to need, those virtues to protect it from its tendencies most starkly revealed by the wild west situation, a situation that can never entirely disappear given the way crime, murder, and war will always be with us. For Portis, the moral poison Mattie Ross is subjected to has mainly to do with her approach to justice, and to whatever extent it is also a function of the state of nature, her succumbing to it must be contrasted with the fact that Rueben Cogburn does not.

The advantage of the Coens’ approach is…[that]…it drives us towards a more radical consideration of the elements that make up the American character. Students of political philosophy can thus learn more readily from it….

The disadvantage, however, is that it makes the American situation more tragic than it may really be. If it takes a man like Rooster, one on the edge-point of criminality himself, to protect American civilization from its frontier and (especially later on) its in-civilization criminality, and if the intrusions into the state of nature by more civilized folks like Mattie Ross, via their passions for justice and heroics, can only morally poison them, and finally if the traits of the outlaw and the “sharp trader” will tend to be combined, then America is ultimately defenseless against its state-of-nature tendencies, and will eventually be overcome by them, at the hands of ruthless criminals on one hand, and ruthless agents of commerce on the other. The distinction, always tenuous, between America’s state-of-nature and its civilization will disappear entirely, even as the frontier is closed. Because the foundation of the American regime rests upon state-of-nature thinking, America’s wild west will “colonize” and take over its civilization. The way Mattie is poisoned by it reflects the way America will be also.

So say the Coens.


Shay Riley: OF COURSE Hip Hop Has Been Bad for Black America
Monday, March 25, 2013, 3:59 PM

So in my series of posts on rap, I’ve tried be somewhat complimentary before laying out the critiques, fair and balanced, appreciative of a few of the classics, etc…

…and then here comes Shay Riley of the black center-right site Booker Rising, who answers the above question as follows:

This is a no-brainer. Oh, let me count the ways! A very shallow, coontastic musical genre (95% of it, at least) which utterly runs the once-rich black American culture into the gutter, taken a group of people from being America’s best dressers to grown men showing their underwear as a prison homage, promotes ghetto thuggery/murder/drug dealing/hoing as “quintessential” blackness, is misogynistic and objectifies women, influenced so many kids that now their every third word is a cuss word or the N-word, promotes rabid colorism and anti-black-women views in its videos, rampantly steals the beats of real entertainers, serving prison time is considered a badge of honor among rappers, and it lyrically has virtually nothing to offer except the same retarded ignorance. Besides, virtually all of the “rappers” (Kanye, Drake, Minaj, etc.) out now can’t even rap. Did I miss anything?

He begins by linking to a more balanced and extensive article, one that posed the question, by Courtney Garcia, but maybe the real bonus is that he links to a video by a 9-year old rapper named ‘Lil Poopy! Here at pomocon we strive to keep you all up-to-date on pop-culture matters.

In my posts I eventually do get around to saying that the mainstreaming of self-referential N-word use by blacks has been the spiritual heart of the overall impact of rap, so I’m not exactly afraid to put it on the line, but still, it’s good to see the more blunt articulation.


A You-Tube Milestone: Jack Teagarden’s “Stars Fell on Alabama”
Monday, March 25, 2013, 10:46 AM

The sociologists next door to my office were talking kinda loudly about race/class/gender, race/class/gender, etc., and I just had to get some other sounds goin’ in my head.  Via you-tube surfin’ I learned, lo and behold, that on October 10, last year, THE MOST ROMANTIC RECORD EVER, the very early 30s version by Jack Teagarden of “Stars Fell on Alabama,” the one with the harp, was finally posted.

Our heartfelt thanks must go out to one auguzto from somewhere in the Spanish speaking world. No professor can really teach the Symposium and such without playing his students this…

There are some other good versions of it—many would understandably swear by Billie Holiday’s (she also has an earlier 30s version, perhaps even better).

I also think the hit British version by Vera Lynn is very solid.

Tara Nevins’ recent country version kinda excludes the central feeling of the song, but it remains decent for those who haven’t heard the original. On a much less critical note, I don’t think the well-known Ella Fitzgerald and Louis Armstrong duet really gets the song either, but it’s of course fun. Other versions we should mention?

Now I got goin’ on this due to a throwaway, but quite good, version from She & Him. I was thinkin’ of California, and learned that they have a new single, one that doesn’t sound special on first listen, but I’ll be giving it more chances based on the way their songs have had a track record of growing on me.

As for other contenders for most the romantic song ever, you could turn to this Love Spins at 78 RPM post of mine from Valentine’s Day a year ago.

Ears cleansed. Back to work.


The Coen Brothers’ TRUE GRIT and the Western
Monday, March 25, 2013, 7:30 AM

This week I am appropriately traveling to Hollywood, a town that owes its fortune to the Western more than to any other genre, for the Western Political Science Association meeting, where I will be presenting a paper titled “Cowboys and Corpses: The Moral Perils of the State of Nature in the Coen Brothers’ True Grit.”

Let me begin here by listing my favorite Westerns. Beyond having studied True Grit and having learned a thing or two from David and Mary Nichols, I am a neophyte to Western studies, and so am quite open to gentle correction, or, if you must, outraged correction of my list:

1) Stagecoach
2) My Darling Clementine
3) High Noon
4) The Magnificent Seven
5) The Man Who Shot Liberty Valance
6) The Good, the Bad, and the Ugly
7) Pale Rider
8) True Grit (Coen Brother’s version)
9) The Big Country
10) Treasure of Sierra Madre

Not sure if that last one should be in the Western Category, but the Rotten Tomatoes list includes it, so what the heck. I don’t include The Searchers or The Unforgiven, because both of them, the latter especially, just feel too grim. The real Western’s got to have some lighten-ning glimmer of heroism, humor, or freedom in it. And good scenery, so as to stir the moviegoer’s “Don’t Fence Me In” desire for ridin’ over land, lots of land.

So what is the key to the Western as a form? I know books I haven’t read have been written on this, so what do I need to know before I shoot my trap off about the subject? Well of course, I’ve already shot it off a bit–here’s a couple snippets from my paper:

“What an audience expects of a contemporary Western is that it will either largely conform to the classic pattern of extolling the heroism of the cowboy, often a lawman cowboy, who has to defend the right in a wild setting, or, that the film will seek to undermine this pattern by means comedic or serious. The impression given by the Coens’ film is that it takes the first path. Yes, along the lines of Pale Rider, it gives us a picture of the west that is more hard-bitten and less simplistically open to heroic adventure than typically provided in the golden era of the Western, but the classic plot of the cowboy serving the cause of justice is nonetheless there.”

True Grit poster

“This is a common American perception of the frontier. It can be thought of as the purest example of the state of nature, but it can also be imagined as the place of freedom, the “territory” that the likes of Huck Finn take off to, or the place of heroism, where the sorts of men extolled by Teddy Roosevelt can thrive. Indeed, the western, particularly in its classic Hollywood form, has been all about celebrating the freedom and heroism the state of nature supposedly makes possible. It has romanticized Hobbes. The Coens’ True Grit makes some necessary room for the heroism the west really did call forth, but is otherwise all about revealing the “nasty and brutish” features of the truly wild west.”

Romanticized Hobbes…does that seem right?


Carl’s Rock Songbook #78: Martha Bayles and I on Rap, Part 1
Saturday, March 23, 2013, 11:14 AM

Again, apologies for this getting put on hold a while…

Martha Bayles wrote Hole in our Soul in 1994, but most of the key elements of the rap story were in place by that point. That is, as we saw in the previous post, critics admit that rap’s “golden age” was over by then, and what remained ahead were developments of refinement, diversification, or “homogenization.” The developments emphasized will depend on the rap critic’s point of view, but most would admit that no game-changing twists to the genre occurred.

Indeed, it’s looking more and more like 1994 might have been the year to write the authoritative book on American popular music, since it was right around then that the recycle-ment pattern that characterizes our era began to make itself felt.

Good music-sense in our era requires one to discern the basic outlines of the regnant pop music genres, even amid the shifts and alterations of recipe highlighted by the typical critics and publicists, and then with each genre to say, “Here it is, and by and large, it will remain this way. What is it up to? What does it, intentionally or not, do to us? Do we still want that done to us? Or should we?” Of course, most critics and fans have remained caught up, at least in the terms they use, in the old Hegelian-in-spirit expectation for pop music bringing us social/spiritual progress, and the concomitant refusal to admit the reality of genre.

Bayles’s approach to rap is to consider Where It’s From, musically, sociologically, etc. And this of course raises the question of Where It’s Going, or at least, Where It Was Expected to Go. Let’s follow her in that, and then say a few more words about What It Does to Us. This will take two or three parts.

She begins by discussing how hip-hop grew out of the situation of the 70s Bronx. It was an attempt to get past the predictability of disco, and more importantly, a development out of two potentially positive things. The first of those two is funk. Given its provenance in James Brown’s work, and more widely in that of a variety of jazz musicians of the late 60s, such as Grant Green, Jack McDuff, Lou Donaldson, etc., there is of course reason for Bayles to be quite positive. She does note some of the sour Frank-Zappa-like cynicism that was expressed lyrically and otherwise by the George Clinton bands, but always with Bayles it’s the state of the music that matters more than the lyrics. IMO she might have been more critical here of the music itself—there’s a certain addictiveness and single-mindedness about the funk groove that I find troubling in some way. There can be something of a stoner aura to that, but there’s something else I can’t quite put my finger on. No-one can deny the towering greatness of James Brown—Bayles wrote a not-to-be-missed article on his career and its relation to rap back in 2005—but my sense is that funk’s downplaying of, and even hostility to, melody and song-structure needs more critical comment and exploration.

Rap’s second more-or-less positive source was the Caribbean DJ-tradition. Hip-hop pioneers Kool DJ Herc and Grandmaster Flash were from Jamaica and Barbados, respectively, and they brought something particular to the Bronx:

…the Caribbean DJ has been much more of a celebrity-performer than in the U.S. Since most islanders were too poor to buy records or record players, and most radio stations were controlled by the upper classes with a highbrow fastidiousness worthy of the BBC, DJs travelled the countryside with their record collections…and their souped-up “sound systems,” competing for the trade of outdoor celebrations and dance halls. …from Jamaica came the practice of remixing “break” versions of American soul and R&B hits, twelve-inch records on which the favored instrumental part would be prolonged…also from Jamaica came “dubbing,” the practice of removing the vocal part, so the DJ could substitute his own vocal presence…in the stylized manner known as “toasting.”

The story of how Flash and others in the Bronx developed these techniques further, discovering “punch phrasing,” and scratching, is pretty fascinating and inspiring, really.

image early rap poster

But there are also some negative elements to the development and reception of the new style. The first is that the music, i.e., early hip-hop, in certain aspects reflected what I will call musical poverty, or more specifically, it reflected technological shortcuts substituting for musicianship in an era increasingly afflicted by the latter’s absence. In my main Songbook post on Bayles, I noted that

…our society has fewer musicians who really have the “Afro-Americana” chops, the swing and such, and fewer opportunities for apprenticeship in those traditions. What is undeniable is that by the late 70s, and becoming ever-more obvious through the 80s, 90s, and aughts, is that…those musicians became scarcer, as did the audiences who could appreciate them.

As James Brown notes, records and DJs are just cheaper and easier to deal with than musicians, even though one’s dancing needs could be met by them, in a pinch. And, I would add, the pinch might become permanent. The DJ-centered sound might become what one expects and develops a taste for.

Inner-cities are not the best places to receive music education, especially when the programs are cut, and disorder frightens away the better teachers and makes music-room security impossible. We should also note other 1970s/1980s factors: decreased church-going, decreased black migration from the blues-and-gospel-drenched-South, and as the Specials put it (sure, with immediate respect to the UK context), increased crime and violence perhaps making it so that Bands won’t play no more (too much fighting on the dance floor). So the musical-skill poverty that began to descend upon all classes and sectors of America during the 70s, was experienced nowhere so starkly as in urban ghettos like the Bronx. Horn-sections and such were not at the disposal of the hip-hop pioneers, and the initial result was a pretty spare sound, however complex their rhythmic landscapes were compared to disco’s. The contrast to the “resources,” i.e., the swingin’ musicians, that labels like Motown, Stax, and such regularly brought into the studio could not be more vivid. Bayles says

…hip-hop was low-tech by necessity, not choice. The pioneers’ objection to disco was not that it was made by high-tech methods, but that it was vapid and repetitive. So as soon as they arrived in the studio, they embraced sampling as the easiest way to incorporate great rhythm “breaks” into their own records.

I.e., the enrichment of the hip-hop sound took place not by bringing contemporary musicians in, but by using the sound-bank built up by older musicians. A technological short-cut. Bayles is not against hi-tech sounds per se, as she points out that Stevie Wonder was one of the first to adopt synthesizers, and that his employment of them never sounded robotic. Her point with rap is that while its sound did not remain spare, the flexibility that had been second nature to the funk, soul, and R&B groups, was not recovered. And this reliance on sampling thus also posed a peculiar problem for any protective and possessive attitude towards black musical identity:

…contemporary “black” styles are easier than ever to steal: Instead of spending years singing in church or performing on the chitlin circuit, the white appropriator need only master the studio.

“Only master the studio” is putting it too strongly, but it does seem likely that it was easier for, say, Marshall Mathers to become Eminem than it was for Eric Clapton to become Eric Clapton. As far as my non-expert ears could discern, the beats and sounds laid down by the likes of the Beastie Boys or the Chemical Brothers in the late 90s were as solid as anything black hip-hop groups or mix-masters delivered. That is, the argument is that with hip-hop, less apprenticeship is required to obtain the standard level of competence. And if that’s right, beyond whatever pressure that puts on black identity maintenance, it points to a deeper inferiority compared to the older genres of Afro-American music.

So hip-hop was a heartening response to, but also a dismaying reflection of, musical poverty. What is not at all heartening is that its fans increasingly remained content with, and even became addicted to, key aspects of that poverty. Rapping and scratching are types of musicianship, sure, and there is a type of composition going on when a rapper develops his rhymes with a certain rhythm and timbre in mind, but beyond that, the musician’s place in hip-hop remains a tenuous one. Singers or horn-players, when brought into the mix, are usually more of an ornament than an essential element. They are not integral to the conception and development of a piece, the way they often were with older forms. Moreover, if my wish to be proved wrong on this by way of future development is ever granted (scroll about 2/3 of the way down in my disco essay), I am sure that many will dub the resulting style with a label distinct from hip-hop.

**********************************************************************************

But back to the origins. We have remained silent so far about, alas, what might be the biggest thing. There is no avoiding the fact that over time, hip-hop increasingly became a reflection of a more serious sort of poverty, an inner-city pathology of the soul in some ways unique to the American experience, because it was at bottom a black-identity pathology, one of the “hates that hate bred.” And hip-hop’s willingness to stylize this anger, against self and other, meant it could be sold to folks outside black America to be used for their own purposes. So that’s next.


The Conservative Pop Culture Gap
Friday, March 22, 2013, 9:32 AM

Over at Powerline, an interesting post and a more interesting thread on whether conservatives can close the “Pop Culture Gap.” One guy even laments that the Republicans blew by not taking the book South Park Conservatives to heart! So, apparently the day of vindication of Paul Cantor, Brian Anderson, and our Peter Lawler, not to mention my Carl’s Rock Songbook is at hand, right? Let us all turn to sites like Acculturated, and if we’re Catholic, let’s join Mark Judge in holding that pop culture saavy ought to be one of the key criteria for choosing a pope, correct?

Well, I think all the stuff in the Powerline post about the need to stay somewhat up-to-speed with the latest marketing techniques that Obama employs is right. I say “somewhat,” because trying to hard too be hip is lame, and can easily backfire if you don’t have the MSM and Daily Show in your pocket the way our supposedly-hip president does. But some strategies to counteract what the dirt the Dems are doing to us with things like Upworthy do have to be devised.

That said, I think the full-speed ahead into hip-with-the-millenials pop culture knowingness approach that some seem to be implicitly recommending is fraught with problems. With contradictions. Recent essays of mine here have tried to highlight certain Paradoxes of Conservative Pop Culture Studies, and questioned the burning need for, to take one specific example, More Conservative Rap Critics.

P.S. Apologies that the songbook has been on hold again…busy-ness simply…but I’ll be returning to the series on rap with a post or two this weekend, I promise.


From President Obama to Sheriff Cooke: Executive Non-Enforcement Spreads
Wednesday, March 20, 2013, 8:02 AM

Why might an executive officer not enforce a law?

1) They lack the resources or capabilities to do so.

2) They are exercising a type of “non-judicial constitutional interpretation,” that our system allows for. Sworn to uphold the Constitution, they do not have to wait to hear what the highest court says about a law. This especially applies to elected executives.

There are legitimate debates about how and when 1) and 2) may be applied. But recent news shows us two clear examples of abuse.

Our president has said he won’t enforce aspects of current immigration law, which amounts to a de facto alteration of it. As the Claremont Institute brief I link to below explains, our president won’t permit his Justice Department to defend DOMA when it is challenged in court, and while it is not exactly occurring with DOMA (see the brief for the complexities here), the basic precedent set could establish a new way for a President to elude the “Take Care” clause, and thus arm presidents with a de facto super-veto.

And in Colorado, an elected sheriff named John Cooke says he won’t enforce a new state gun-control law.

There are complexities in both cases, and I invite others to weigh in on my basic judgment of them here, but I say BOTH executives are being very irresponsible. I say that all Forthright Supporters of our constitutional order, whether Republican or Democrat, should condemn both men.

I saw this via Gateway Pundit, and and here’s the rationale of a commenter there backing Cooke’s action:

And why not? The federal government is leading the way by refusing to enforce our immigration and border control laws, and has actively engaged in gun trafficking across our national border. Our president has refused to submit a legally required budget four years in a row. Our Attorney General has apparently committed perjury under oath during Congressional testimony.

See the pattern?

Even if you think the Gateway Pundit commenter’s account of Obama is largely wrong, you cannot deny the reality of how Obama’s pushing the constitutional envelope is perceived, nor the response his insouciance about that perception invites.

I’m not that worried about a spread of Executive Non-enforcement as a short-term, next few years, trend. But give us another ten to twenty years of Democratic governance in the Federal Executive that follows the precedents set by Obama, and this Cooke incident provides you with a glimpse of the civil dissolution that will occur on a very wide basis. The elected officials of Red States and localities will increasingly “go Cooke.” Basic lines of authority and the status of the law itself will become unclear. Add to that a Supreme Court decisively dominated by living constitutionalists, and the stage will be set for breakdown.

Truly moderate Democrats, hear me!

The likes of me and other rule-of-law conservatives will not be able to win many arguments with the likes of Cooke if you continue to elect and not denounce Democrat Leaders who are only So-to-Speak-Supporters of the Constitution. For a host of reasons, many of them connected to the MSM and universities refusing to reform themselves when confronted over the past two decades with undeniable evidence of bias, Red State America now distrusts the Democrats nearly completely. And to the extent that distrust extends even to basic Democratic adherence to the Constitution, it will unravel the very fabric of our nation. Yes, perhaps for a long time, various Cookes and “kooks” can be squelched and defeated by a more vigorous assertion of federal power.

But Democrats, is that the sort of nation you want? Will that really be “Winning?” Sheriff Cooke and his supporters may be, in your honest judgment, wrong on gun issues and even a bit nutty and hateful about them. But they are your brothers and sisters!!! And I am asking you to meet them at least on the ground of the Constitution, and to DEMAND that your leaders regularly demonstrate their Forthright Support of it. Democrat politicians like Obama there will always be, I understand that, but if the pattern of his behavior becomes the standard template, then only the decisive defeat of the Democrats over several elections can save our nation.

I no longer assume that will happen. I am therefore increasingly led to the conclusion that unless new (and in many ways old) patterns of Democrat Leadership rise to compete with the one being set by Obama, the dissolution is coming. Obama v. Cooke is our future.

So moderates, perhaps it’s up to you.


The Indefensibility of Refusing to Defend the Defense of Marriage Act
Tuesday, March 19, 2013, 3:57 PM

That’s what the Amicus Brief filed by the Claremont Institute in the case United States v. Windsor is claiming.

It touches on this admittedly interesting question:

Whether the President can deprive this Court of jurisdiction to consider the constitutionality of an act of Congress by refusing to defend the act when it is challenged?

A strange situation useful perhaps to consider in certain con-law classes focused on issues like “standing”, but note well. In my essay below calling for Democrat Leaders who are Forthright Supporters of the Constitution, I said that such leaders “will shy away from acts of questionable constitutionality.” Well, that’s not Obama.

And I said that the bad So-to-Speak-Supporters of the Constitution “take… dubiously constitutional actions…that are difficult or impossible to apply a “check or balance” to, and…difficult or impossible to successfully challenge in court.”

Well, that is.

The Claremont brief reminds us at one point of what is at stake:

The Bipartisan Legal Advisory Group, as the duly authorized representative of the House of Representatives, also has standing to intervene as a party to defend statutes adopted by Congress, particularly when the President abrogates his duty to “take care that the laws be faithfully executed.” To hold otherwise would give the President a de facto authority to suspend the law, the very concern that the Take Care Clause was designed to protect against.


WANTED: Democrat Leaders Who Forthrightly Support the Constitution
Monday, March 18, 2013, 2:57 PM

At the end of the day, there are three, and only three, types of Democrat Leaders when it comes to the Constitution. There are first, Open Opponents of the Constitution, second, “So-to-Speak” Supporters of the Constitution, and third, Forthright Supporters of the Constitution.

By “Democrat Leaders” I refer most obviously to the politicians who run as Democrats and the officials that run the Party, but also to the de facto opinion leaders for Democrats, even the ones who prefer to identify themselves as liberals, progressives, or leftists.

We have far more of the second type of Democrat Leader today than of either the first or the third. For example, President Barack Obama is a leader of the second type. And while in this essay I call for more Democrat Leaders to become the third type, or to more clearly declare themselves as such, I must indicate up front that I judge the first type of Democrat Leader to be much less morally compromised in their practice of politics than the second, and less essentially corrosive to our basic political order.

Here I will outline the basic features of the three types, with subsequent posts fleshing them out.

Open Opponents of the Constitution

The attempts by Louis Seidman, a professor of con-law at Georgetown University, to explain why we need to “give up on the Constitution,” and the far-more intellectually serious attempts of the key Progressive-era opinion leader Herbert Croly, founding editor of The New Republic, to explain why we should seek to eventually move beyond it, primarily by means of an easier amendment process, are the best examples.

Croly book image

Open Opponents think the U.S. Constitution is an obstacle to our natural political development. It is insufficiently democratic, far too federalist, and impedes the employment of scientific management in policy areas where its use is needed. In many areas it makes us an embarrassing exception to the more typical liberal democratic practices seen in nations like Britain, Germany, France, and Canada, as certain Open Opponent political scientists like Robert Dahl never tire of pointing out. Its separation of powers lends itself to special-interest obstruction. The reverence it commands lends itself to demagogic scare-mongering and posturing. Yes, there are aspects of the Constitution that Open Opponents typically like and even idolize, such as most of the Bill of Rights, but overall, they want to amend, ignore, or otherwise get beyond large portions of the document. They detest the common reverence given its mere words as servile, cultish, and unschooled. Regardless of how various Open Opponents might differ on the specifics of what to junk from the Constitution, or how one goes about such junking, they all want to move America’s regime beyond the basic shape given it the Constitution, and to decisively rid Americans of their habit of reverencing its text.

So-to-Speak Supporters of the Constitution

These could be called Faux Supporters of the Constitution, for they believe just what the first set of Democrat Leaders do, or pretty large portions of it, but think that opposition to the Constitution has to be cloaked, mantled in a celebration of the Founders and a reverence for all things Constitution-evoking. Fundamental change of the constitutional order remains a basic goal, but it must only be obtained in a manner that the public can regard as consonant with the American political tradition, or, in a manner too subtle for the public to notice. The first and probably most effective practitioner of this strategy was Franklin D. Roosevelt, the president who tellingly built the DC monument to Jefferson, and claimed in his Commonwealth Club Address to seek an updating of his individualism to modern conditions. When FDR was introducing what he called the “Second Bill of Rights,” a list that included rights to “a decent home,” “a good education,” and to “earn enough to provide adequate food and clothing and recreation,” he said this:

[the first Bill of Rights’] …political rights…proved inadequate to assure equality in the pursuit of happiness. We have come to a clear realization of the fact that true individual freedom cannot exist without economic security and independence. …in our day these economic truths have become accepted as self-evident. We have accepted, so to speak, a second Bill of Rights under which a new basis of security and prosperity can be established for all. …(emphasis added)

So-to-speak Supporters of the Constitution sound like they are very much for the Constitution, but in fact they play fast and loose with it in their rhetoric in ways that mis-educate the public. Just as Obama did in his second inaugural, FDR conflates the words of the Declaration and Constitution. Such blending is poetically impressive, but it ultimately serves to convince Americans that both documents contain little but noble aspirations and “majestic generalities,” to use the words favored by the dean of living constitutionalist theory, Justice William Brennan. And it thus also serves to paper over the serious differences between the Founders’ basic vision of rights-securing government, and that assumed by many of the new programs being advocated.

Croly, and to large extent Woodrow Wilson also, admitted the differences openly, and said that while the Founders were great for their time, we’ve learned new lessons. FDR and Obama prefer to suggest that the Founders themselves would have expected us to expand, or build upon, their understandings of liberty, rights, and constitutionalism. If the spirit of that suggestion is marginally true for a few of the Founders, it is basically false. While Jefferson, for example, was a great believer in progress, and contrary to Madison wanted our constitutionalism to be more inviting of change and less demanding of public reverence, he had a definite theory of natural rights, and wound up making strict construction of at least the Federal Constitution a key dogma of the Democratic-Republican creed. He would have shook his head to have heard FDR’s “economic truths” described as “self-evident” in manner of the principles of the Declaration, and arched his brows at the half-suggestion that a Bill of Rights could be adopted by some So-to-Speak, outside the provisions of Article V, process.

FDR TJ memorial image

Behind the scenes and their reverent rhetoric, So-to-Speak Supporters regularly work to alter the Constitution apart from using its own provided method of amendment. They take unconstitutional or only-dubiously-constitutional actions, particularly in the Executive branch and the bureaucracy. During periods of divided government, they try to make sure these actions are ones that are difficult or impossible to apply a “check or balance” to, and they generally seek (especially since FDR’s early tactical mistakes with respect to the National Recovery Administration) to make sure they are actions difficult or impossible to successfully challenge in court. The gradual, brick-by-brick effect of these actions establishes de facto alterations of the constitutional order which they can later claim were so-to-speak approved by the people.

Additionally, and particularly since FDR’s time, they have come to rely upon the Judicial Branch to legally alter the constitutional order by means of various novel theories of interpretation, the most fundamental of which is that of the living constitution. This has become their most important tool, and it results in our having to pack American Government 101 textbooks with references to Supreme Court decisions made since 1960, often with more of these than with references to the Constitution itself. None of these de facto nor jurisprudential alterations of the constitutional order are formally submitted to the people for their consideration.

So FDR’s speech did not really call for the “Second Bill of Rights” to be put into the Constitution. That might seem to make him more moderate, as he intended, but in certain respects it made his example to the Democratic Party even more dangerous to our constitutional order; I will flesh this out next time.

Forthright Supporters of the Constitution

In describing this class of Democratic Leader, I speak more of what is possible than of what there are many present-day examples of. In a nutshell, these are Democrat Leaders that the “conservative half” of our citizenry can trust to remain bound to the Constitution no matter what, and most especially, no matter what opportunities might present themselves to alter the actual constitutional order in ways seemingly advantageous to the progressive cause.

Forthright Supporters obviously will continue to have serious disagreements with conservatives if they are to remain Democrats. These will extend to the Constitution itself. But Forthright Supporters will nonetheless have the following traits:

1) They will understand and accept the basic arguments of the Federalist Papers and have a Lincoln-like respect for the Founding Fathers generally and the doctrine of natural rights specifically.

2) They will want the development of our Constitution to occur openly and with broad approval. To whatever extent they think that some major institutional change is necessary, they will call for these changes to take place by amendment, and only by amendment. (This might mean they also come to call for an amendment of the amendment process contained in Article V, to diminish somewhat the 2/3 and ¾ requirements. I would fine with that in principle, and you should be too.)

3) They will not suggest that it is only the Supreme Court’s duty to assess the constitutionality of a law.
4) When in executive or administrative office, they will shy away from acts of questionable constitutionality, and will demand the same of all presidents, governors, and administrative heads, regardless of party.

5) They will affirm what I say to all my American politics classes: The constitutionality of a law, and the justice and/or wisdom of a law can be fundamentally distinct questions.

6) They will accept constitutional law as a meaningful discipline. Contrary to the examples set by the Bork hearings and Justice Brennan’s Georgetown speech(linked above), they will accept that originalism is a plausible approach to the discipline. They will likely think it is at bottom wrong, but they will not dismiss it out of hand, and they will agree that law schools that have no professors of it are doing a grave disservice to their students and to the nation. Put it this way:  for Forthright Supporters originalism “is here, is queer,” but they will have “gotten themselves used to it.”

7) They will be careful with their rhetoric about constitutional matters, for example not conflating the Declaration and the Constitution. They will accept the inevitability of aspirational talk, such as that present in Obama’s or FDR’s speeches, but they will generally avoid describing the Constitution (beyond the Preamble) as aspirational. They will detest it when someone like Louis Seidman says that In his Constitution Day speech in 1937, Franklin D. Roosevelt professed devotion to the document, but as a statement of aspirations rather than obligations. Whatever their opinion about where FDR stood on that question—and one can defend that speech from at least those charges — they will insist that such an attitude towards the Constitution is not their own and is no longer an acceptable one for liberal public servants.

8) They will understand that given the deep and possibly growing culture war divisions, an agreed-upon allegiance to the Constitution is the ultimate glue holding the nation together. They will agree with LSU professor James Stoner that this wide agreement to abide by the Constitution cannot be maintained if judges interpret that constitution according to what only some hold to be its “fundamental principles,” such as in the way William Brennan suggested.

That is, they will agree with the following statement Stoner made in a talk presented to UVA’s Program on Constitutionalism and Democracy:

But freedom of conscience means that people can’t be forced, by virtue of their agreement to certain constitutional principles, to profess certain fundamental principles. American constitutionalism holds that it is possible for people to live together as loyal citizens of a common constitutional order even though they differ on fundamental things.

So that’s the vision. The big rub, of course, is that I do not see how one can remain a Democrat Leader of any sort if one feels that the Roe v. Wade decision is a bad interpretation that should be struck down. And make no mistake, it, along with the Griswold decision it was built upon, are among the most egregiously text-abusing/ignoring decisions in our history. The only position here I could fully respect would be one that said: I understand that it was an error of constitutional interpretation to find the contraception-and-abortion-guaranteeing right-to-privacy in the 14th amendment. However, I hold that such a right-to-privacy really is a natural right, and that we ought to formally affirm it as a constitutional right by passing an amendment. Meantime, I will support judges who uphold Roe, so long as they don’t try to extend the right-to-privacy into other areas.

In other words, Democrat Leaders who are Forthright Supporters will have to be either somewhat inconsistent in this area (and a few others), or somewhat muddled. I may say more later about this, about what a more consistent Roe-opposing but nonetheless pro-choice stance might consist of.

But the main point is that moderate and conservative Americans could trust Forthright Supporters to not appoint judges who would push constitutional evolution on all fronts, or to through any branch otherwise “steal” the development of the constitutional order. Democratic Forthright Supporters might even say that the “rights revolution” in constitutional law is largely completed, with a few changes here and there remaining, some of them corrections of the over-reach. On a more mundane level, Democratic Forthright Supporters would almost certainly be for gay marriage, but usually Jonathan Rauch-style, i.e., only via legislative victory. On perhaps the most explosive issue for the future, that of religious liberty, they would tread with particular care.

Is this really too much to ask? I suspect, without yet having done the textual spadework, that the basic stance I have described is pretty much the one Stevenson, JFK, LBJ, and Tip O’Neill held not so long ago, granting certain muddles and inconsistencies, and making allowances for different times. The biggest qualification is that I think some of those leaders were fooled by the So-to-Speak talk of many of their Democrat peers, and were thus never troubled by facing how far in principle they were prepared to alter the Constitution. The divide I have sketched never mattered to the political issues that most concerned them.

The divide is clearer today. We are in a time when FDR-style vagueness, whatever worthy goals it may have been used for in the past, is being used to distract decent Democrats from the fact that we have a pattern of Democrat Leadership that is on a direct collision course with 40% of the population.

Unless enough future Democrat Leaders learn to reassure their fellow Americans who vote for the other party that they really are Forthright Supporters of the Constitution, and not merely So-to-Speak ones, future Democrat-led governments really could, in certain situations, find themselves up against a trust gap that threatens civil disorder and dissolution. Such leaders can only reassure the 40% by picking certain fights within their own party or opinion circles. Until conservatives see Democrats who display a certain eagerness to denounce the likes of Louis Seidman, to distance themselves from the likes of Cass Sunstein, and to mock the “glittering generality” talk of today’s Obama the way Lincoln once did that of Rufus Choate (thereby entering that phrase into our lexicon), they have little reason to think that Democrat Leaders really support the Constitution.

consitution image

Moderates, fight! For the soul of the Democratic Party! Make of your moderation a real service, a real peace-making, and not a muddled mix that lazily casts a pox on both houses.


FDR (and much more) on the Brain
Sunday, March 17, 2013, 8:31 PM

Peter’s correct that the fear that a future Supreme Court making FDR’s Second Bill of Rights a real part of our Constitution isn’t terribly relevant right now. Commenter djf is right that it’s still possible, but I think what Peter has in mind is that any future Court liberal enough to follow the likes of Cass Sunstein on that matter will have already done worse damage on the culture war front, perhaps even civil-peace-endangering damage.

It of course remains the case that all Americans should be very worried about the Court. If the Dems of today’s mold get to pick the future justices from now until, say, 2024, which given the last election is apparently a real possibility, then the U.S.A. will… …well, you fill in the blank.

And of course, FDR matters in all times, and I linked to Sid Milkis’s FDR talk mainly because I wanted to share the Christopher Newport University conference goods here.

But I will confess that FDR’s Bill has been on my mind lately, even if not for the reasons Peter thinks. I am about to post an essay here that is not primarily about FDR, which in passing will suggest why that speech does matter for us nearly 70 years later. The most dangerous part of that speech—the 1944 State of the Union Address–was not the list of rights itself, which said all should have a …right to a useful and remunerative job… a …right to earn enough to provide adequate food and clothing… and a right to adequate protection from the economic fears of old age, sickness, accident, and unemployment… all of them proper goals for good democratic government that I would have no qualms with if they were expressed as such, and not as rights. No, the most dangerous part is where FDR says:

We have accepted, so to speak, a second Bill of Rights…

I will explain why this is so dangerous, and why So-to-Speakism has become the standard constitutional stance and rhetoric of the Democratic Party, on all issues, economic or not. I will argue that until we again have Democrat Party Leaders who are Forthright Supporters of the Constitution, the republic is in peril. This is not a matter of my feeling that most Democrat Leaders, let alone their followers, are “evil,” as Peter suggested I felt, but of my thinking they are self-deceivingly, and therefore largely blindly, leading us all into a situation that could provoke civil dissolution.

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