Racism and the Alt Right: What's a conservative to do?

I was traveling all weekend and so missed most of the news on what happened in Charlottesville with the Alt-Right protest, the counter protests, and the violence.

Charlottesville, VA

My heart breaks for the victims, my state, and the state of our country, which has created the context for this kind of thing to happen.

In the midst of a tragedy like this, I think it is important to reflect on where we are, what has happened, and what we should do about it.

First, I think most of you who have heard me speak about candidates know that for about 10 years now I have said that the two things that disqualify a candidate from having the possibility of earning my support are their endorsement or participation in two things: 1. abortion 2. racism.

The reason these two things trump all others for me are because they show how someone values people. If you do not value people, even when it is easy to marginalize them, then how can I rely on you to lead the country in a way that is best for the people?

Rosa Parks would not sit at the back of the bus.

Racism is alive in our country and it breaks my heart when I see it; it breaks my heart that so many people face it every day. As a Christian, I believe that it is my duty to show Christ's love to everyone, and to see each person as He sees them: as people made in the image of God. My mom, in particular, is a hero in this regard and has been a tremendous example to me from my earliest memories when I remember her teaching me about Martin Luther King Jr. and Rosa Parks. I can recall her explaining to little Jeremiah the ugly face of racism and how in the 1960s my friend Abigail would have to use a different water fountain than me because she had pretty dark skin and I had pale skin. She taught this to me in the context of history and we both agreed that we hoped it would never have a place in our lives.

However, the sad truth is this, there is a strong, if small, movement in the United States to legitimize racism by capitalizing and on some of the fears created by globalization. This movement must be addressed, responded to, and defeated.

This is something I am committed to doing, and I hope you will join me.

"Colored Water Fountain" 

The question is how. First, I believe that to defeat this surge of hate and bigotry, we need to respond with love. Martin Luther King put it this way: “Darkness cannot drive out darkness; only light can do that. Hate cannot drive out hate; only love can do that.” Second, I believe that we need well-crafted arguments backed by actual facts. No matter how wrong supporters of racism are, we are not doing our best to combat their view if we respond with less than logic and evidence; their ignorance can be mocked, but that doesn’t fix the problem. We need to show through reason and facts that racism and violence are contrary to what makes up a just society. Third, I believe that we need respond to whatever the evil they dish out with an even greater outpouring of good. If they target a particular community with hate, we target the same group with love and compassion. And that love and compassion should speak louder than any violence or hate. If they burn a church, we rebuild it bigger and better.

Martin Luther King Jr. 

Now for the harder question: how should we not respond? We should not in our zeal to defeat racist positions compromise our freedom. One basic thing that Americans hold dear is our love for freedom. The Founding Fathers gave us the First Amendment, filled with excellent examples of the freedom we hold dear. Included in that document is freedom to assemble, to speak, and to write. It isn’t freedom if we only allow freedom to do what we agree with and disallow what we disagree with. In other words, my freedom to speak about my hate of racism isn’t actually freedom if there isn’t also freedom for the racist. The law does not judge whose content is right. Freedom to speak and believe what you believe without the government telling you it is ok, is foundational to all our freedoms.

(Of course, actions and violence can be legally punished, and so the terrorist-style attack in Charlottesville should be punished and prosecuted with the utmost vigor of the law.)

A dark time in our history

What I am concerned about is this: that we no longer understand how to use our system to defeat evil. The law punishes actions. But ideas cannot be defeated with laws. We need to engage, each of us in our own way, to challenge those who promote hate and division in our country and respond by doing the things they hate the most, unifying and loving.

I don’t want to sound like a silly, shallow idealist. I am being pragmatic. Ideas have consequences and I am concerned that many people will embrace counterproductive strategies to “outlaw hate” that will not only erode our freedoms, but also distract us from actually dealing with the real problems in our land.

To kill bad ideas, we need good ideas and good people. Although sometimes over-quoted, I think two famous quotes are particularly appropriate for our situation. Edmund Burke: “All that is necessary for the triumph of evil is that good men do nothing.” Dietrich Bonhoeffer: “Silence in the face of evil is itself evil: God will not hold us guiltless. Not to speak is to speak. Not to act is to act.”

Dietrich Bonhoeffer

So now we need each of us, take responsibility for our actions, and actually face evil and hold ourselves, our friends, and our nation to a higher standard. Take this issue seriously. Go out of your way to challenge hate and to promote love. This is worth feeling awkward for. Don’t give into easy solutions that won’t fix the problem. Doing right often isn’t easy, but that doesn’t mean we give up.

Let us not be defined by division or hate, let us instead be defined by unity and love. That is an America worth fighting for.

Written by Jeremiah Lorrig

Unless Trump Voluntarily Drops, the Republic is Doomed: Here is Why

(NOTE from 8/15/17: I was wrong with my prediction. Several more politically astute friends pointed out flaws in my argument right after I wrote it, and it turns out they were right and I was wrong. That being said, my favorite part of this post is the end note, and I still stand by that.)

Like my hero, Mike Pence, I am a Christian, a conservative, and a Republican; in that order. Because of that prioritization, I am able to write this today:

I am asking Donald J. Trump to withdraw for the sake of our republic. 

What's at stake? 

We all know that a Clinton Presidency likely means a liberal Supreme Court majority, more Benghazi type situations, and more of the same when it comes to the sluggish economy (and that means fewer jobs, especially for young people). 

I firmly believe that someone cannot call themselves conservative and vote for Clinton. I especially believe that someone cannot call themselves pro-life and vote for her. Intentionally advancing her power and tying your name to her, and her disastrous record, her poisonous words, and her stated objectives is a betrayal of every conservative principle that I know —particularly the defense of life.  

Is Trump better? 

That is complex. Is Trump, himself better? No. It is almost impossible to say where he stands on policies because he has taken almost every side on almost every issue. He is also a vulgar man who does not respect human dignity. In short he seems to have no moral core. The moral core is especially relevant when it comes to foreign policy and national defense because that is the area where the president has the most autonomous power. 

But would Trump be a bad president? I have no idea. Domestically, I don’t think he can be worse than Clinton. And unlike Clinton, he would have people around him in power who not only would be able to influence his decisions, but also would have independent authority to advance the ball on important conservative issues. But here is the bottom line: speculating about whether Trump would be a bad president is irrelevant: he cannot win. 

Trump has failed to unite the Republican Party against Clinton. 

Yesterday we saw the largest number of elected officials in history opposing their party leader. Nixon resigned when only a fraction of the GOP senators opposed him. 

The interesting thing is that while all these people who now oppose Trump uses the language of moral outrage in their denunciations, attacking Trump’s inexcusable statements, if you draw back the curtain you can see several different reasons for the opposition. Some oppose him for electoral reasons (supporting Trump in their districts means certain defeat). Some oppose him because he is going to hurt their power (establishment types who want things done their way). Some oppose him for policy reasons. But some have no reason to oppose him except they truly believe in holding leaders to a higher moral standard. 

And even if you totally disagree with all of the above reasons for these men and women oppose Trump, the fact is that he has failed to unite the party. 

What are the consequences of a divided party? 

Two days ago, it looked like the results of the election would be this: Clinton would be elected President, the Senate would be very close—maybe Democrat controlled, maybe Republican controlled—and the House of Representatives would be a firewall strongly held by the GOP (losing a few seats, but not too much change). However, with the divided party, it is likely that the Democrats will wrest control of both the White House and the Senate—and maybe even the House. 

How would that happen? 

White House: 

Even if only 15% of likely Republican voters don’t vote for Trump, that means that every close state that swings GOP by 7% or less will go for Clinton. For context in the 2012 election 17 states were won by less than that margin. In other words, 15% less voter turnout on one side can mean a landslide victory for the other. Also, note, a flash poll last night by the Politico shows that a majority of Republicans think that Trump should stay. That is not something that should surprise anyone. What is shocking is that 39% think that Trump should end his run for president. So I think my estimate of 15% is reasonable even assuming that most still are willing to vote for the "lesser of two evils." 

Senate and House:

Although this is going to vary by district, let me paint a picture of what Republicans running for office will face if Trump stays on the ballot:

Because of her pro-family stance, a Republican woman who is running for congress will be asked: "Do you support Trump and his statements about women? And how does this line up with your pro-family rhetoric?" She (and every other candidate) will be faced with a choice: 

What do they say? 

Remember that a large segment of Republican voters like Trump and have become his partisans. If our would be congresswomen opposes Trump she risks angering the pro-Trump voters. And even if this only translates to 15% of Republican voters opposing her, that could end her career. If she says that she supports him, then even if only 15% of Republican voters oppose her, that could end her career. 

Now, you might say, “Shouldn’t she put her country before her career?” And that's a fair question. But remember: her failure in her career means success for someone else. Every Republican that loses a House or, especially, a Senate seat, means another Democrat in Congress. And more votes for a Clinton agenda. 

That is disaster. Now, I admit that I’m partisan on this, but please hear me out: 

If we lose the Senate, then we lose the Supreme Court—probably for two decades. That means that Roe v. Wade will not likely be overturned until the basically the same number of unborn die due to abortion again as have already died since the ruling that made abortion legal in the 1970s. That is moral disaster. 

If we lose the House, Paul Ryan will be ousted as Speaker, every attempt to roll back government spending will be nothing more than a wish, and Clinton will get her way on everything. 

Remember, last time Democrats controlled the White House, the Senate, and the House? What happened? Obamacare. 

In short, if Trump doesn’t withdraw, the Republican Party is likely to face the worst electoral and policy disaster since the election of FDR. And we are still smarting from the disaster that came with that. 

So, for the sake of the Republic, I am asking Donald J. Trump to please end his run for President and work to unite the party to stop Clinton and the march of politics as usual in Washington DC. The Republic can't afford another era of disastrous Democratic policies.   

Article by Jeremiah Lorrig and first published on Looking for Overland. 

End Note: 

This all being said: If you think that a Trump or Hillary presidency is the end of the world or country, you have no faith in our country.

America has withstood civil war, divisions over racism, economic depression, two world wars, famine, plague, horrible leaders, flagrant corruption, and rampant hedonism. Christians have weathered much worse at the hands of pagans bent on wiping us out and our own fellow believers trying to force good theology by executions and torture.

Perspective is key. If you have no faith in your country (I still do), have faith in the God who created something from nothing. He will pull you through this.

The Good Spy

I had never heard of Robert Ames until I received this book as a Christmas present. Yet in The Good Spy: The Life and Death of Robert Ames, Kai Bird tells the remarkable story of a remarkable man, made all the more so by his down-to-earth ordinariness.

Bob Ames joined the Army in 1956 after graduating from college. Four years later he was recruited by the CIA, where he worked until he was killed in the Beirut embassy bombing on April 18, 1983. His specialty was the Middle East. Put another way, Ames joined the CIA when Eisenhower was president and served the Kennedy, Johnson, Nixon, Ford, Carter, and Reagan administrations. And in The Good Spy, Bird elegantly captures the complexities of this highly turbulent area, and our foreign policy, in an understandable fashion.

In a moment of realization that the world is smaller than we think, Bob Ames was killed in Beirut, the same city where Kim Philby was confronted. In an even weirder twist, Bob owned a trunk that had formerly belonged to Kim's father. Yes, the world of espionage is small, and even people who belong to different eras are connected.

What Ames excelled at, and what made him such an effective spy, was his ability to make friends and understand people and cultures. Contrary to the image of the spy as a quasi-military agent, Ames used his espionage and intelligence work to promote and further peace. His detailed intelligence work, and ability to create back-channel communications to people that the US government could not publicly admit it was talking to, helped to diffuse or contain situations before they escalated to military engagements.

Peace in the Middle East may be elusive, but so far, at least for the United States, Israel/Palestine has not become another Vietnam due in part to the work of Ames and people like him. It's easy to look at conflict zones and wish they were better; more difficult, yet just as important, is realizing that they could be much worse. The Good Spy demonstrates how certain ordinary people, often acting invisibly, can bring a sense of calm to tumultuous times. Robert Ames was such a person, and his murder in 1983 was a blow to both our foreign policy and peace.

Click here for more book reviews.

Did Republicans Lose the Culture War?

Several months ago the Politico published an article called: How Republicans Lost the Culture War. I have been thinking about it and although I think the author is very right that the “Culture War” is a loss and has been doomed for at least 5 years, I do, however, think he overstates his case. I know my thoughts might be controversial, and I would be happy to dialogue in the comments, just keep it civil. 

So here are my thoughts on the "Culture War" and what the future looks like from here: 

For the last three or so decades many in the Republican base have been motivated by what has been called the "Culture War." They have trained foot soldiers to engage the enemy, they have mobilized voters on key issues, and they have rallied their troops time and time again to "defeat evil." But despite all that, the culture war has been lost. Politico is just one example of a post-mortem of the war. Long standing warriors have told me that they are tired of it; millennials are refusing to fight; and we are constantly being told that history is against us.

But there is more to it than that.

The loss of the “culture war” doesn’t equal loss on issues like abortion. The pro-life position, even with the culture war faux pas, is gaining ground. Legislators and political activists are fumbling the ball, but the hearts and minds are moving our way.

Republicans are desperately trying to figure out birth control because Santorum walked it out in front of people and believes it is all wrong and Romney didn’t know what to say because he is a bit of a squish on the topic, but that doesn’t mean the GOP is going to lose on the issue of making everyone pay for abortions.

The Politico author appeals to the “march of history” to show that the GOP is doomed on social issues. The fact is that only works if you accept the progressive approach to history where everything is marching slowly toward their socialist utopia. But they don’t know history. The fact is that slavery, racism, acceptance of various sexual practices, and even abortion have come in and out of style (and law) over the centuries. Just because a “culture war” is lost, doesn’t mean that political choices are set in stone.

The reason I believe the “culture war” is lost is not because of unartful politics, it is lost because the “foot soldiers” think it is stupid. Most rank and file conservatives (especially conservative Christians) think that politics is the wrong way to change hearts and minds. Many, like me, reject the idea that they are supposed to be soldiers in a “culture war” and would rather focus on helping real, purhaps lost, people.

Young people today are more likely to want to volunteer at a pregnancy resource center than protest at an abortion clinic. Young people are more likely to try to show the unconditional love of Jesus with gay friends than try to outlaw their lifestyle. Young people have told me that they don’t want to be bullets in a “culture war.” They would rather lose the “war” than lose sight of their real goals, caring for people and sharing unconditional love.

In the end, the “culture war” is a failed project, but not because it was defeated politically, but because it was abandoned by those expected to fight it. Those who still are trying to keep it alive are out of touch.

Does the loss of the "culture war" mean that Christians, conservatives, and Republicans (three groups that I associate myself with), are giving up on making a difference in the culture? No, it just means that the culture isn't a battleground, it is a place where we must be salt and light, where truth must be spoken in love, and where hurting people are desperately in need of hope.

How do we translate this new phenomenon into a new political world? How do we end abortion in America and save lives? Conservative stalwart Morton Blackwell has said countless times,
"people don't care how much you know until they know how much you care." I think that applies to good laws. They wont be changed until people see that we care.

I believe that abortion will be abolished in my lifetime, but it wont be because we hate abortion doctors. It will be because people see that we love people and that includes both the baby waiting to be born and the mom struggling with life.

For a Christian, if there is a conflict, it is not against flesh and blood, but against powers and principalities, beyond this world. But what is hanging in the balance? Nothing less than the lives of those who need true, unconditional, empowering love. Seeing those lives changed by love is worth losing a dozen culture wars.

Post by Jeremiah Lorrig

A Spy Among Friends

For some time Ben Macintyre has been one of my favorite history authors. With books such as Agent Zigzag: A True Story of Nazi Espionage, Love, and Betrayal (excerpt here), Operation Mincemeat: How a Dead Man and a Bizarre Plan Fooled the Nazis and Assured an Allied Victory, and Double Cross: The True Story of the D-Day Spies (review here, excerpt here), he has written several books now on the absurdity that took place during WWII British spycraft.

His most recent book takes a step forward in history. In A Spy Among Friends: Kim Philby and the Great Betrayal, Macintyre moves on to the Cold War. As highlighted in the previous books, British counterintelligence was so strong that they were able to capture every last German spy in the country. Yet during this same period, it was a virtual sieve for the Soviets.

Many of the British intelligence officers were in the pay of the Soviet Union both during and after the war. Most famous among them was Kim Philby, the agent who for a time served as the head of the division responsible for spying on the Soviet Union.

For decades, Philby lived a double life, deceiving even his closest friends, most notably MI6's Nicholas Elliot and the CIA's James J. Angleton. And that is the angle that Macintyre takes in this book: how Philby deceived his friends and, even more broadly, how the good old boys friend network within MI6 shielded him from suspicion.

These British operatives all grew up together. They went to school together. They knew each other's parents. They were all good British stock. Many were fools, most were alcoholics. But they were fellow aristocrats, and because of this, their trust for each other, and their continued employment, was based on cultural elements deeper than job performance. It was simply unthinkable that one of them could be a spy, so for a long time it was unthought regardless of the evidence. The very people Philby was deceiving provided his strongest shield.

This is what makes this book so different from the other three Macintyre has written about the British intelligence agencies. In Zigzag, Mincemeat, and Double Cross, the British are the sharp and intelligent heroes hilariously exploiting the cracks in the strict yet bumbling German hierarchical system where no one wants to be the bearer of bad news. Those stories are great fun, where the British keep pulling off greater and greater capers and the Germans keep falling for them.

A Spy Among Friends inverts that narrative. Here is an agency so welded to its aristocratic classism that it cannot see its own weaknesses. And although his writing is once again excellent, this book has a decidedly different tone. In contrast to the prior comedies, this story is a drawn out tragedy as again and again Philby escapes detection. Where the prior books exposed British culture's superiority to the German system, this one zeroes in on its weaknesses. One could almost say that the common theme through all these books is never underestimate the power of office culture. The very same loose camaraderie that helped win WWII proved to hamstring the agency during the Cold War. And that is what made Philby's betrayal so great--more than being a spy, he had been a friend.

Click here for more book reviews.

Best George Washington Quotes

George Washington by Gilbert Stuart

Today is Presidents Day and therefore George Washington's birthday. In honor of the day, I have compiled my favorite quotes attributed to America's first president. I hope you can appreciate the wisdom here and are inspired by this great man.

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“I hope I shall possess firmness and virtue enough to maintain what I consider the most enviable of all titles, the character of an honest man.” ― George Washington

Be courteous to all, but intimate with few, and let those few be well tried before you give them your confidence. - George Washington

True friendship is a plant of slow growth, and must undergo and withstand the shocks of adversity, before it is entitled to the appellation. - George Washington

Let your heart feel for the afflictions and distress of everyone, and let your hand give in proportion to your purse. - George Washington

I walk on untrodden ground. There is scarcely any part of my conduct which may not hereafter be drawn into precedent. - George Washington

Washington Crossing the Delaware by Emanuel Leutze

“To encourage literature and the arts is a duty which every good citizen owes to his country.” ― George Washington

“Real men despise battle, but will never run from it.” ― George Washington

“Be not glad at the misfortune of another, though he may be your enemy.” ― George Washington

George Washington by Robert Field

“The hour is fast approaching, on which the Honor and Success of this army, and the safety of our bleeding Country depend. Remember officers and Soldiers, that you are free men, fighting for the blessings of Liberty -- that slavery will be your portion, and that of your posterity, if you do not acquit yourselves like men.” ― George Washington

“I had rather be on my farm than be emperor of the world.” ― George Washington

“LIBERTY, when it begins to take root, is a plant of rapid growth.” ― George Washington

Truth will ultimately prevail where there is pains to bring it to light. - George Washington

It may be laid down as a primary position, and the basis of our system, that every Citizen who enjoys the protection of a Free Government, owes not only a proportion of his property, but even of his personal services to the defense of it. - George Washington

While we are contending for our own liberty, we should be very cautious not to violate the rights of conscience in others, ever considering that God alone is the judge of the hearts of men, and to him only in this case they are answerable. - George Washington

Signing of the Constitution by Howard Chandler Christy

Post by Jeremiah Lorrig

Fifty Shades of -- Oh You Know

So. Fifty Shades of Grey. If I am to believe all the Christian blog posts I see, every Christian woman in America is being tempted to go see this film. And if they do it is going to bring on the apocalypse. It all seems a bit overblown, doesn't it? I mean even if this film is as depraved and wicked as the bloggers would suggest, how is it worse than the googlebytes of pornography and erotica already created and seemingly all around us? Will seeing this one film, unless perhaps you are in that group that has never once indulged in pornography or lust, corrupt you that much more than whatever your normal life routine involves?  Let's not forget that Jesus condemned looking at a woman with lust in your heart long before the technology existed to capture that woman's image in a photographic reproduction. Lust predates the cinema by far.

Yet something about the warnings and the pleadings rings true. Unlike most pornography, which is still heavily stigmatized in our culture, Fifty Shades of Grey, especially among women, seems oddly acceptable. Partly this is because Fifty Shades was seen as made primarily for women. In our society, we primarily think of sex as a male pursuit, and not as a particularly wholesome one. In fact, much of what passes for sexual content these days is so much about men oppressing and possessing women, that any sexual content created for women that attempts to cater to their desires seems like some sort of relief. Also, since it is largely women that have stigmatized pornography, and have generally held men in contempt for using something so wasteful and self indulgent, the idea exists that anything women can enjoy must be superior, morally and spiritually,  to male-centric pornography and fantasy. This grows out of both christian fundamentalist and secular progressive assumptions about the superiority of women (when appropriately exercising their femininity) to men (when over indulging in their masculinity).  

And so, the Christian bloggers warn, don't see this film! We know you are sexually unhappy! That your husband's beer belly isn't as nice looking as Christian Grey's chiseled abs! But that's exactly why you mustn't see it! It will destroy your marriage! It will make you discontent! It will alienate you from Christ!

And I suppose it might. Anything might, really, because anything in life can become an "idol" (as the Bible would describe it) and do all those things. But that warning is misleading to those who will inevitably see it, because, to them, it may not do all those things. It might be an exciting movie and lead to an even more exciting night at home with your lover and that might be it. This might lead you to think those bloggers were full of themselves and lead you to disregard more of their beliefs. Make no mistake, some of them are hypocrites who will see the movie even though they told you not to. But overreacting to the film is a disservice to all involved.

You see, for humans, sin is like an addiction. (I can’t claim this analogy as my own, as best as I can tell, Dr. Timothy Keller originated it in a 1999 sermon, though I suppose he might say he got the imagery from the Bible). Some addicts — drug addicts, alcoholics, sex addicts — are what we call "functioning addicts," which means they can maintain their addictions while carrying on their lives in a seemingly normal and healthy fashion. I think the majority of humans are functioning "sin addicts." They have it under control. They have their indulgences but they keep them manageable so they don't interrupt their ambitions and plans in life. It's only the ones that lose control and see their life spiral into chaos and destruction that we collectively pity or otherwise condemn as a cautionary tale. The rest we usually admire.

Dominique Strauss-Kahn, the former head of the International Monetary Fund, is now an international joke, not because he is a sexually promiscuous predator, but because he lost control of his habits. He acted out one time too many and lost control of his narrative, and now, people who probably knew about his proclivities and envied him, laugh at him. Even if he survives prosecution he will never again command public respect.  

So the most dangerous thing that might happen if you see Fifty Shades of Grey is not that you might cheat on your husband; it's that you might not. It's that you might enjoy it at no harm to yourself, and that enjoyment might send you searching for other highs that maybe you'd been told would be disastrous for you, and your continued success at beating the odds would become so intoxicating that it would become its own drug. Because the worst thing about drugs is not that you might get in a car accident or hurt someone you love; the worst thing is that you give over control of your life to a substance and lose yourself. That is not a guarantee that something cataclysmic will happen to you; its just a bad way to live.

Likewise, sin is a bad way to live. Nothing in the Bible promises that your sin is going to destroy your life. It certainly can; but it is possible to sin safely. It is possible to keep it under control. But God wants you to have more than that. He wants you to have peace.

The film's stars looking... perplexed? Rumors persist that neither particularly enjoyed making the film.

Ultimately, if I'm to believe what I've read, seeing Fifty Shades of Grey probably isn't good for you. But it also isn't going to kill you. It's probably not going to destroy your life. And telling people it will do worse than it actually may is as devastating as when Eve believed she would die just from touching the fruit in the garden. She touched it, and nothing happened. Cling to what is true, and make your best judgments from there.

Jeremiah's Letter to the IRS

I finished my taxes last night and was quite frustrated with the process. So I decided to write this letter to the IRS and also send it to my elected officials to just remind them that someone is willing to say something.

This idea came from reading an article several months ago about how Donald Rumsfeld sends an incredible letter to the IRS every year. So to follow in his footsteps, I just dropped my own letter into the mail, but I thought I'd share it with you too.

What would you say to the IRS?

Post by Jeremiah Lorrig

FDR's Supreme Court

In 1933 Franklin Delano Roosevelt replaced Herbert Hoover as President of the United States. At that time, the progressive democratic movement had hit a barrier in the Supreme Court. A number of progressive legislative initiatives had been declared unconstitutional, as were significant portions of Roosevelt's first wave of New Deal legislation. To counter that, Roosevelt sought judicial appointments who were more sympathetic to his legislative ends.

This is the story Noah Feldman, professor at Harvard Law School, addresses in his book Scorpions: The Battles and Triumphs of FDR's Great Supreme Court Justices. Specifically, Feldmon focuses on four particular appointments: Hugo Black, William Douglas, Felix Frankfurter, and Robert Jackson. These four men would influence the legal system for decades--Justice Douglas served until 1975.

As Feldman shows, however, each of these four men solved the issue of disliked Supreme Court precedent in his own way--and by so doing laid the foundation for nearly the entire spectrum of what we now consider judicial philosophies. Black took an originalist route, focusing on ideas such as historical research and original intent to correct the errors that had crept into the Court's jurisprudence. Douglas ended up taking a rights-based tack, using the court to further individual rights (more liberal than libertarian, although Feldman conflates the two). Jackson (who took a break from the Court to be a prosecutor at the Nuremberg trials) took a pragmatist approach, using the balance of powers as his guide in determining disputes between the governmental branches. And finally, Frankfurther took a position of deference to the legislature--a position that guaranteed liberal outcomes when a liberal legislature was in power yet ended up affirming much more conservative outcomes as the makeup of the legislature changed (allegations that he was inconsistent reveal more about the changing political landcape than his own changes in philosophy). So although they were all appointed by Roosevelt, and although during Roosevelt's administration they were all fairly reliable votes for him, after his death their various strands of jurisprudence diverged. One of the Justices' clerks referred to them as scorpions fighting in a bottle (hence FEldman's somewhat odd title.)

What was most surprising to me (well, besides the fact that neither FDR nor Jackson graduated from law school) was that although all four were deemed "liberal" in their day, in hindsight they largely encompass the entire spectrum of judicial philosophies used today, be they liberal or conservative, activist or deferential. In this sense, then, we are all "liberals" now in our thinking about judicial philosophy at all.

Yet this reveals one of the key elements missing from the book. Although Feldman does an excellent job of tracing the constitutional legacy of these Justices, and of introducing the reader to their individual histories, he does not nearly pay enough attention to any judicial philosophies that existed prior to their appointment. One is left with the impression that Black invented originalism, or that Frankfurther was the first to view judicial review through a lens of deference to the legislature. However, as the Court was over 150 years old at the time of their appointment, there were plenty of prior Justices who had also left their interpretative mark. Yet Feldman leaves the impression that (apart from Holmes and Brandeis) FDR's Justices largely stepped into a vacuum. In short, while he is quite insightful of the downstream effects of the FDR Court, he could have spent more time developing the upstream influences.

Be that as it may, it was not the emphasis of the book, and is only a side critique. Apart from that, Feldman's book makes a good guide for anyone seeking an introduction to the constitutional thought of the FDR Court and its lasting legacy. It also reveals the individual personalities of the various Justices and lets the reader see past their judicial opinions into how they thought.

Click here for more book reviews.

Rendezvous with Destiny

I am always surprised at how easy it is to think of the outcome of historical events as somehow foregone conclusions. Of course, the Allies won WWII. Of course, the Civil Rights movement succeeded. Of course, Abraham Lincoln held the Union together. Of course, a handful of colonists successfully threw off British rule. They happened, therefore they were inevitable.

Part of that is that we look back with clearer vision. But another part is that we determine what is significant from the outcome. Those living before the outcome, however, had no such guide.

So of course, it is tempting to say that Ronald Reagan had to beat Jimmy Carter in 1980. Carter was weak, Reagan was, well, Reagan. But to say that would be to let the outcome determine how we view the campaign.

This is where Craig Shirley is helpful. His book Rendezvous with Destiny: Ronald Reagan and the Campaign That Changed America, gives a blow-by-blow of Reagan's 1980 campaign for the White House. Shirley, a former Reagan aide and campaign worker, has done extensive research into the details of the Reagan, Carter, Bush, Kennedy, Anderson, Connally, and others' campaigns for President that year. This is his second book on a Reagan campaign, the first being Reagan's Revolution: The Untold Story of the Campaign That Started It All, about Reagan's failed 1976 primary challenge to President Ford.

If detail on the politics and maneuvering of this monumental election is what you are looking for, this is probably the definitive source. Shirley captures both the high-level rhetoric and the daily grind of politicking. In fact, the level of detail is one of the greatest drawback of the book. At 600 pages, it includes so many asides and secondary stories that, at times, the overarching narrative disappears. It would have been a better book had a hundred or so pages been edited out.

Nonetheless, it is the story of what happened. The story of how an campaign that had been a toss-up all summer, and which one week before looked tilted in favor of the incumbent, ended up being a landslide the other direction. It's a story of strategies, victories, errors, and bungles on both sides. Of the confusing muddle of elections. And most of all, how little in history is a foregone conclusion. This is an important volume to add to the library of anyone seriously interested in significant historical campaigns.

In closing, I'll leave you with clips of the NBC and CBS election night coverage. Although all the networks had anticipated it being a long night, the election was called for Reagan at 8:15 p.m. EST, before the polls were even closed in the western states. Reagan went on to win the electoral college by a margin of 489 to 49. Carter only won the states of Minnesota, Georgia, West Virginia, Maryland, District of Columbia, Rhode Island, and Hawaii.

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Immigration History: The Constitutional Question

Previous: A National Policy

In this post we finally directly face the constitutional question that has been haunting this entire series. Prior to the Civil War, most constitutional discussion about immigration authority involved the commerce clause. However, and quite likely as a result of distaste with the "people as commerce" implications of such an argument in light of the slavery question, that line of thinking was largely abandoned in the second round of immigration cases.

In 1875 the Supreme Court again considered to what extent states could restrict immigration. After the Passenger Cases resulted in the invalidation of the state taxes on immigration, New York modified its laws. Instead of a tax on immigrants, New York adopted a $300.00 per-passenger bond on ship captains for the purpose of indemnifying the city for any expense the immigrants might cause during their first four years in the country. However, instead of paying the bond, the captain also had the alternative of paying a $1.50 per-passenger fee. If neither was paid, a $500 per-pauper penalty was imposed on the captain.

The Court reviewed this statute in Henderson v. Mayor of City of New York, 92 U.S. 259 (1875) and held that it was an unconstitutional because regulation of commerce and international relations were exclusive matters for the federal government. The Court explained:

A regulation which imposes onerous, perhaps impossible, conditions on those engaged in active commerce with foreign nations, must of necessity be national in its character. It is more than this, for it may properly be called international. It belongs to that class of laws which concern the exterior relation of this whole nation with other nations and governments. If our government should make the restrictions of these burdens on commerce the subject of a treaty, there could be no doubt that such a treaty would fall within the power conferred on the President and the Senate by the Constitution. It is in fact, in an eminent degree, a subject which concerns our international relations, in regard to which foreign nations ought to be considered and their rights respected, whether the rule be established by treaty or by legislation. 

It is equally clear that the matter of these statutes may be, and ought to be, the subject of a uniform system or plan. The laws which govern the right to land passengers in the United States from other countries ought to be the same in New York, Boston, New Orleans, and San Francisco. A striking evidence of the truth of this proposition is to be found in the similarity, we might almost say in the identity, of the statutes of New York, of Louisiana, and California, now before us for consideration in these three cases. 

It is apparent, therefore, that if there be a class of laws which may be valid when passed by the states until the same ground is occupied by a treaty or an act of Congress, this statute is not of that class.

 * * *

We are of opinion that this whole subject has been confided to Congress by the Constitution; that Congress can more appropriately and with more acceptance exercise it than any other body known to our law, state or national; that by providing a system of laws in these matters, applicable to all ports and to all vessels, a serious question, which has long been matter of contest and complaint, may be effectually and satisfactorily settled.

This decision was released six months after Congress adopted its first national restrictions on immigration. However, Henderson is not the case pointed to for the federal immigration authority. For that, we need to fast forward another fourteen years. This time, instead of a challenge to state policies (which only indirectly involved federal powers), the Court was squarely face with the question: are federal immigration restrictions permitted under the Constitution.

The answer was yes, but the reasoning is one that ought to bother both originalists and textualists.

As you will remember from the last post, Congress passed the first of the Chinese Exclusion Acts in 1882. In 1889, a challenge to these restrictions was decided by the Supreme Court in The Chinese Exclusion Case (Chae Chan Ping v. United States), 130 U.S. 581 (1889).

In 1884 Congress had established a system of giving licenses to certain Chinese laborers who were in the country which would grant them permission to return should they visit China. However, in 1888 Congress revoked that return privilege, resulting in the exclusion of all those who had departed the country with the expectation of an ability to return. Chae Chan Ping was one such laborer. After working in the United States for a number of years, he obtained the certificate permitting his return entry and departed for China. However, since the law was changed in his absence, he was denied reentry upon his return to the United States. He brought suit on two grounds: that the Congressional act violated a treaty with China and that it was an unconstitutional exercise of federal power. He lost on both grounds.

First the Court examined the law in light of the 1868 treaty with China which guaranteed free migration between the two countries (an 1880 modification permitted some restrictions, but not absolute prohibition) and held that treaties have no force without implementing legislation and do not bind the legislature:

The treaties were of no greater legal obligation than the act of Congress. By the Constitution, laws made in pursuance thereof, and treaties made under the authority of the United States, are both declared to be the supreme law of the land, and no paramount authority is given to one over the other. A treaty, it is true, is in its nature a contract between nations, and is often merely promissory in its character, requiring legislation to carry its stipulations into effect. Such legislation will be open to future repeal or amendment. If the treaty operates by its own force and relates to a subject within the power of Congress, it can be deemed in that particular only the equivalent of a legislative act, to be repealed or modified at the pleasure of Congress. In either case, the last expression of the sovereign will must control.

In short, the courts are not the proper mechanism for holding Congress to a treaty and Congress can follow or not follow a treaty as it sees fit.

The Court next turned to the constitutional question, holding that since immigration was a national issue, of course power to regulate it belonged to the national government:

That the government of the United States, through the action of the legislative department, can exclude aliens from its territory is a proposition which we do not think open to controversy. Jurisdiction over its own territory to that extent is an incident of every independent nation. It is a part of its independence. 

* * * 

The power of the government to exclude foreigners from the country whenever in its judgment the public interests require such exclusion has been asserted in repeated instances, and never denied by the executive or legislative departments.

* * * 

The power of exclusion of foreigners being an incident of sovereignty belonging to the government of the United States as a part of those sovereign powers delegated by the Constitution, the right to its exercise at any time when, in the judgment of the government, the interests of the country require it, cannot be granted away or restrained on behalf of anyone.

I said earlier that this analysis should be troubling to originalists and textulists. Here's why. The Constitution was intentionally written, and the federal government was intentionally structured, to not exercise all powers inherent to sovereignty. This is a primary feature, not a accidental byproduct. The national legislature does not have all powers "incident of sovereignty," but only those explicitly delegated (plus those "necessary and proper" to exercise the powers explicitly delegated). The Constitution itself states this, and were that not clear enough the Tenth Amendment states it again.

The Chae Chan Ping case involved none of this analysis. The Court did not categorize immigration restrictions under the delegated power to regulate naturalization, nor did it place them under the delegated power to regulate commerce. In fact, it tied the restrictions to no specific delegated power whatsoever. Instead, it skipped that entire analysis and simply said that as a sovereign nation, of course the legislature could adopt such an act. Yet if the federal government can act in any "incident of sovereignty," the entire separation of powers doctrine is obsolete.

And that is how the Supreme Court solved immigration's constitutional problem.


Next: The Chinese Exclusion Acts (link will be provided upon publication)


Sources:

Mary Sarah Bilder, The Struggle over Immigration: Indentured Servants, Slaves, and Articles of Commerce, 61 Missouri Law Review 4 (Fall 1996) 743-824.

Immigration History: A National Policy

Previous: Immigration and the Nomination of Abraham Lincoln

Up to this point, we have been able to move quite rapidly through American history, in large part because there was no national policy. All that changed in 1875, when Congress made it illegal for criminals or prostitutes to enter the country. This marks the first true restriction on immigration adopted by the Federal Government, but it was shortly followed by more. In 1882 a fifty cent tax was imposed in all immigrants and Congress prohibited entry by any "convict, lunatic, idiot, or any person unable to take care of himself or herself without becoming a public charge." Also in 1882, Congress pass the first of a series of Chinese Exclusion Acts, which eventually resulted in a virtual total bar on Chinese immigration. A Bureau of Immigration was established within the Department of Treasury in 1894 (previously the Commission of Immigration had operated under the Department of State per the 1864 Act to encourage Immigration). Anarchists were prohibited in 1903 (32 Stat. 1213) and the Bureau of Immigration was moved to the Department of Labor that same year. Illiterates were barred in 1917 (over President Wilson's veto).

In 1921 quotas were adopted, which was the first time an across the board numerical limit was adopted. This act attempted to preserve the then-current racial balance in the nation by limiting immigration from any country to 3% of that country's population in the United States as recorded in the 1910 Census.

Since these were an emergency measure, they were quickly replaced by the 1924 Immigration Act, which marks the first comprehensive application-based immigration system. Since it is so foundational we'll return to it in detail at a later date. In the meantime, there is still that nagging unresolved constitutional question.


Next: The Constitutional Question (link will be provided upon publication)


Sources:

Austin T. Fragomen & Steven C. Bell, Immigration Primer (1985).

Michael C. LeMay & Elliott Robert Barkan (ed.), U.S. Immigration and Naturalization Laws and Issues: A Documentary History (1999).

University of Washington-Bothell, U.S. Immigration Legislation Online.