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Freedom! Liberty! And Being For the Little Guy. As Brought to You By the Conservative Movement.

Update appended below. (Second indented quote format also corrected.)


In the Comments thread to Dan Crawford’s post below titled “Kalamazoo County Michigan…People and Offices to Write to Protest the Stealing of a Home,” I wrote:

Dan, you don’t understand. This is freedom, see. I mean, it’s not like it’s the FEDERAL government that’s doing this. It’s a local government that is doing it, so how could this be anything other than freedom! liberty!??

A huge part of the Conservative Movement has been to simply shift the funding of government from progressive taxation to exorbitant fines and fees for traffic violations, parking tickets, misdemeanors of other sorts, property forfeitures of large amounts of money or homes or cars, home foreclosures and forfeiture of the entire proceeds from the sale of the home for failure to pay a small property tax bill (including if you didn’t know that it was due or was not paid).

This is all part of freedom! Liberty! The private contractors for government services and operations, and the police and judges whose conflict of interest ensures the more-than-adequacy of this method of government funding, have to be paid, y’know.

In the last two weeks, the Washington Post has run a slew of articles on all this. Links to some of the articles are:

In that thread, Dan linked to an Alternet article by David Morris about two Kentucky officeholders, a town mayor and a state senator, cousins both with the last name Girder, who are on opposing sides of the “Government is the problem, not the solution” slogan = policy thing.  The article explains:

On July 19, after years of complaints about local gasoline prices being higher than those in surrounding communities, the city of Somerset decided to take matters into its own hands and began selling gasoline directly to the public. Two-term state senator Chris Girdler immediately declared, “socialism is alive and well in Somerset.” Two-term mayor Eddie Girdler, a distant cousin, responded, “If government doesn’t do it to protect the public, then who does it?”

In an interview, Girdler, paraphrasing Ronald Reagan’s famous dictum insisted, “the government is not the answer—government’s the problem.” Regrettably the interviewer did not remind the readers that government laid the very foundation of Somerset’s economy. In 1950 the Army Corps of Engineers completed construction of one of the largest man-made lakes in the world. A little over 100 miles in length with an average depth of 85 feet, Lake Cumberland “transformed Somerset from a sleepy rural community into one of the largest recreation centers in Kentucky, drawing more than 1.7 million visitors annually.” It would have been instructive to discover whether Sen. Girdler would describe Lake Cumberland as a “socialist enterprise.”

Girdler wants to protect us from big government. Senator Girdler approvingly cites Ronald Reagan’s famous dictum, “You can’t be for big government, big taxes and big bureaucracy and still be for the little guy.” Mayor Girdler wants to protect us from the predations of big giant corporation and he views government as a proper vehicle for doing so. “It’s the role of government to protect us from big business,” he maintains.

So there you have it: You can’t be for big government, big taxes and big bureaucracy and still be for the little guy. Uh-uh. No, Sir.  No way.  The way to be for the little guy is to remove all government protections vis-à-vis private corporations and state and local police forces and courts.  It means privatizing traditional government operations and services, and funding government operations and services (whether already privatized, or instead still directly operated by state, local, or the federal government) entirely by huge, spiraling fines and fees for trivia, and by confiscating cash and homes and cars to resell.

Being for the little guy also means allowing banks to do whatever they please, including making billions of dollars a year in fees for tiny overdrafts—something that the Democratic-controlled House and Senate, and Obama, banned via statute in 2010—and including allowing mortgage companies to misrepresent mortgage terms.  And it means allowing monopolistic credit card companies to charge small businesses outrageous rates for small credit card purchases by their customers.  So in order to be for the little guy, we damn well better repeal the several laws that prohibit these things, enacted by Congress and signed into law by Obama in the two years before the Dems lost control of the House and lost their filibuster-proof majority in the Senate.

Yes, Sir. We’re talkin’ being for the little guy, here!

Being for the little guy also means, of course, removing Big Government—or any government—from direct involvement in, or regulation of, college-student loan programs.  Access to higher education is not an appropriate function of government. I know this for a fact, because this was an official policy of the Reagan administration, expressly stated by a member of Reagan’s cabinet.  Which explains not just the dramatic reduction of reasonable-interest-rate student loans since, y’know, 1981, but also the extreme reduction in direct state and indirect federal funding for state public universities and colleges—since, y’know, 1981.

Uh-huh. The Conservative Movement, and certainly the Conservative Legal Movement, are all about sleight-of-hand redefinitions of common terms, and rely in the extreme on the idea of government-by-slogan, government-by-cliché.

The Koch brothers are little guys.  Who knew?

This continues to work well for them so often, politically, because the Democrats have allowed it to, by failing—refusing—to address it, in particulars, head-on.

To wit: The witless campaign that Alison Lundergan Grimes, the Kentucky Dem nominee for Senate, is running in her effort to dethrone Mitch McConnell. Hey, Ms. Grimes: How’s that I’m-a-tough-Kentucky-woman-so-Kentucky-women-will-vote-for-me campaign goin’ for ya?  Might it now be time to try somethin’ different?  Like, addressing specifics of Dem public policy and recent Dem legislative achievements—and Repub votes on such things?  Nah.  You’re a tough Kentucky woman! So policy won’t matter in the outcome of the election.

Which it won’t, you can be absolutely sure, as long as you don’t deign to mention any of it. Are you really gonna allow election day to come without, like, informing the electorate that, uh, Kynect is—OMG!—Obamacare, and that McConnell has promised to defund it if the Repubs gain control of the Senate?  I mean … really?

This woman’s campaign, more than any other this year, just dismays me.  Then again, I myelf don’t give a damn that she’s a tough Kentucky woman.  (Or, for that matter, that she’s a woman.)  And apparently, either do all that many Kentucky women.  She may well be tough. But tough, it turns out, is not the same thing as gutsy.

I’m so, so, so, so, so, so tired of watching this kind of campaign—this flaccid, craven, I’m-embarrassed-that-I’m-a-Democrat genre—from Democrats.

Especially since IT DOESN’T WORK.  Really; it doesn’t work.


UPDATE:  Well, well. Our newest wingy troller, Jack, wasted only 16 minutes after I posted this post before commenting:

The standard false dichotomy fallacy — if you’re against Big Government, you must be against ALL government.

The Powers of the U.S. government is clearly spelled out in its Constitution, and the States and the people retain the rest. If you say that those who want the U.S. government to not exceed the Powers given to it by the States in the Constitution, want no U.S. government at all, then you must believe that the States, in that Constitution, ceded no Powers at all to the central government.

I, in turn, wasted only 18 minutes—I’m just not as quick as he is; I’m a liberal, after all—before replying:

Ah. That’s right, Jack. The issue isn’t what powers the Constitution–the original document, the Bill of Rights, the succeeding amendments (including the reconstruction amendments) give to the federal government vis-a-vis the states. No, the issue is cliches referencing the enumerated powers, but of course only generically.

I do understand that your brand of constitutional interpretation holds that Freedom! Liberty! means he freedom of state and local governments to violate even the most fundamental of constitutional and human rights of individuals–as long as those rights don’t involve, y’know, gun-ownership rights or one of the other select few rights that you folk hold dear.

I also understand that you and your ilk conflate laisse faire economic and fiscal policy with “the enumerated powers”. You’re Rorschach interpretation of the Constitution is tiresome and ridiculous, albeit widely recited, mantra-like, by the far right.

Ideology is not the same as fact. Nor is it the same as the enumerated powers. Except, that is, when, as now, there is an aggressive hijacking of constitutional law by five members of the Supreme Court and Federalist Society lower-level federal appellate judges.

Enough said?  No. But that’ll have to do, for now.

Conservative-Legal-Movement Law Is Really Just a Kaleidoscope

After taking a nearly-month-long hiatus from blogging here about legal issues, and blogging only very lightly about other things, I posted this controversial post last Friday and participated in a lengthy comments thread.  The final comment of mine, in reference to some of the preceding comments of others and of mine, reads:

A final point on this subject: Whatever the predominant ethnicity of the brutal “states’ rights” culture of much of the South, an important indication that its core is not ethnicity but instead the defense of the “right” of states to allow slavery, or to allow whatever brutality they want to allow, is that (as I said above) Appalachia itself, which has a very large Scots-Irish population, actually had (I believe) very few plantations.  West Virginia, after all, was not a Confederate state, and northern Kentucky had large contingents of soldiers who joined the Union army.

I don’t think this is an ethnicity legacy. I think it’s a plantation-culture political and cultural legacy—one that is at the very essence of the Conservative Legal Movement, whether its adherents are from the South or instead from, say, New Jerseyupstate New York and Northwestern Indiana, or northern California.  The attribution of the current, funhouse-bizarre states’-rights legal movement to the alleged “structure” of the Constitution is a pre-Civil War, and therefore pre-Reconstruction Amendments, construct.  It should be recognized for the machination of constitutional law that it is.

So much of Conservative Movement constitutional and statutory-interpretation law is really just a kaleidoscope—false statements of factsleight-of-hand redefinitions of standard-English words and of earlier-defined legal standards, comedy-routine-caliber the-knee-bone-is-connected-to-the-thigh-bone-which-is-connected-to-the-hip-bone (whether or not it actually is) Dictionary games, malleable-as-needed Court-created legal doctrines, and a deeply institutionalized look-the-other-way-at-everything-but-Conservative-Movement-claims ethos.

What a cesspool.

A carefully crafted one, in fact.

Enough said.  For the moment.

David Brat, et al. v. John Roberts, Anthony Kennedy, the Koch Brothers, the Chamber of Commerce, et al.

Uh-oh, hedge fund managers and Goldman Sachs partners.  Obviously, few of you are evangelical Christians.  So this guy, who wants good markets, has his sights set on you.  But, luckily not on that carried-interest tax-benefit thing y’all get to use, praise the Lord.

So maybe you hedge-fund types can skip church again this Sunday, after all.

— David Brat’s Golden Rule, me, Angry Bear, Jun. 13

I was wrong. The dust is all but settled now, six days after Brat’s highly unexpected defeat of Eric Cantor, and it looks like what defeated Cantor was not that he was too liberal for Tea Party tastes.  It was instead that he was too Establishment-Conservative for a spontaneous, makeshift coalition of Tea Partiers, liberal Democrats (it was an open primary; it was not limited to Republican voters), and others who reject the practice–and the now-formal claim by five Supreme Court justices–that it is necessary and desirable in our constitutional democracy that legislation and other government policy be dictated by those who can afford to buy it.

Call McCutcheon v. FEC the new poll tax. I do.  After all, John Roberts, in a surprising bit of honesty, described it in his opinion for the majority as pretty much that in his opinion in that case earlier this year. “Ingratiation and access . . . are not corruption,” he wrote, quoting Anthony Kennedy’s the Court’s decision in Citizens United, and then explained:

They embody a central feature of democracy—that constituents support candidates who share their beliefs and interests, and candidates who are elected can be expected to be responsive to those concerns.

But Cantor’s constituents–the ones that Roberts says should dictate Cantor’s policy positions and write legislation he proposes–couldn’t vote in Virginia’s 7th Congressional District last week. The district is too far away for them to commute to Wall Street, or to Wichita, KS, or downtown Houstonor Raleigh, NC.  And surprisingly, it turns out that Brat actually ran what was in large part a progressive economic-populist–an anti-plutocracy–campaign highlighting who exactly Cantor’s  constituents (to borrow Roberts’ term) are.  So, now that that is being widely reported and is sinking in, hedge-fund types and the Chamber of Commerce crowd apparently indeed are starting to pray.

Apart from the obvious reason for the definitional chasm between Roberts & Co. and most people embedded in that statement by Roberts–specifically, the definition of “democracy”–add to the rapidly growing list of Roberts’ casual redefinitions of common words this new definition of “constituent,” one disembodied from residency in the candidate or officeholder’s actual election jurisdiction.

Cantor was beaten, in substantial part, it certainly appears, by Citizens United and McCutcheon–by a backlash toward the political system that is now, bizarrely but expressly, institutionalized as a matter of constitutional jurisprudence.  Turnout was very heavy, far heavier than it was in the primary in that district two years ago, when apparently all the candidates were fine, thank you very much, with poll-tax democracy.

Actually, even before I wrote my post last Friday I had read an article in the Washington Post by Jia Lynn Yang, titled “Why Cantor’s loss is especially bad news for big business,” detailing Brat’s campaign and challenging the presumption that he won mainly on a  standard-issue far-right anti-immigration, Cantor-is-too-liberal-for-the-Tea-Party platform.  But because his cliche-ridden Ayn Rand, anti-tax, anti-government-regulation positions and loopy justifications for them–which were the subject of most of my Friday post–are, let’s just say, hard to reconcile with such things as, y’know, regulation of banks and hedge funds and objections to the fact of legislation being written by the Koch brothers and the Chamber of Commerce, I figured that the initial analyses were right: Cantor was defeated because he voted to end the government-shutdown and to increase the debt ceiling and wasn’t quite hard-line enough on immigration, and therefore flunked the purity test.

particularly jarring hallmark of the current Supreme Court majority’s aggressive Movement Conservative restructuring of American law in the image of 1980s Republican Party platforms is these justices’ spontaneous, unsupported declarations of fact upon which they claim to base the rulings.  These are statements of fact for which there is no support in the case record. Facts such as what motivates elected public officeholders, and also facts about people’s opinions, perceptions, conclusions concerning matters such as the effect of huge campaign contributions on the politician-beneficiaries, that are, most people recognize, contrary to actual fact.  Most people who are not a Movement Conservative Supreme Court justice and who are not named the Mad Hatter consider the idea of large campaign contributions in exchange for legislation that they offer the very essence of political corruption in a Democratic system.

And some of those people live in Virginia’s 7th Congressional District and voted in the Republican primary there last week, for Brat, entirely or largely because he campaigned against Cantor as Evidence Exhibit A belying Kennedy’s and Roberts’ weirdly loose pronouncements of fact in Citizens United and McCutcheon.  The lobbyists and big-money donors that Cantor met with for breakfast on the first Tuesday of each month and that he dined with at steakhouses were indeed his true constituents, and Roberts’ pretense that they or their corporations reside in the Richmond, VA area is not even just a syllogism like so much else Roberts claims; it’s patently, tangibly false.

Sure, the pronouncements of fact in Citizens United and McCutcheon were just window dressing, sort of a nod to the idea that they were not really overturning Supreme Court precedent, just refining it–a John Roberts routine that has become an eye-roller.  But actual people do see through it.  As long as the Tea Party was united in going along with this, all was fine.  But now something has happened: the Tea Party itself is split.  There is a growing contingent, apparently now reaching a politically significant number, that is anti-plutocracy.

I’ve thought ever since McCutcheon was released in early April that the Democratic congressional candidates should simply read two or three sentences from that opinion at their rally and include the sentences in some of their ads.  Brat himself didn’t do that, exactly, but statements made throughout his campaign directly countered the factual claims of the Supreme Court bare-majority.

Ultimately, because that part of his message can’t be reconciled with the standard Tea Party dogma or with the part of the pro-corporate Republican message that he parrots, his political message is incoherent.  And in some respects, as in the quotes from an academic paper of his that were the main subject of my post last Friday, they’re weird and flaky. I don’t know how statements like those I quoted from his academic paper manage to pass as academic research; they were overt statements of his political and religious beliefs, not the result of economic or political science research, but they were in a purported academic paper and not (apparently) repeated in his campaign. The fact is that you can’t reconcile Ayn Rand’s philosophy of little or no regulation of corporations and Wall Street, no social safety net, and extremely low taxes with Brat’s campaign promise to represent ordinary people as against the policy dictates of oligarchy and plutocracy.  And it is a fact; you can’t.

Nor can you reconcile it with the mindless states’-rights cliches, whether issued by Anthony Kennedy and John Roberts or by David Brat.  Apart from the aggressive three-decades-long states’-rights-to-violate-fundamental-constitutional-rights-of-individuals-as-long-as-those-rights-aren’t-part-of-Movement-Conservative-dogma dogma–which is now, finally, being rejected by fairly broadly by younger libertarians (read: too young to believe that it’s still the Reagan era) even of the right–the fact is that ALEC writes swaths of legislation for Republican state legislators.

In a June 12 Politico article, this one titled “Dave Brat and the Rise of Right-Wing Populism,” the writer, Geoffrey Kabaservice, points out that Laura Ingraham, “appearing on Brat’s behalf at a campaign event on June 3, even rejoiced that ‘Some people on the left are gonna work with us! I’d rather work with some people on the left today than work with some people in the GOP establishment who scorn us.’” The article’s subtitle is “Cantor’s loss isn’t about immigration or personality. There’s a bigger story.”

There certainly is.  And several similar articles make the same point, in detail. One, titled “Why Big Business Fears the Tea Party,” a June 15 Politico article by Michael Lund, says:

The primary election defeat of House majority leader Eric Cantor by the little-known Tea Party conservative David Brat has shocked business and financial elites as well as politicians and pundits. Conservative intellectuals such as Tim Carney have been arguing for a while that the right should adopt a new populism that targets “crony capitalism” and the collaboration of public and private elites at the expense of workers and small businesses. Brat is the first conservative candidate to have achieved a major electoral success by taking this line. He denounced Cantor for being too close to Wall Street and K Street, explained business support for immigration reform as a ploy for cheap labor and demonized the Chamber of Commerce and the Business Roundtable.

In his views about the minimum wage, Social Security and Medicare, Brat is a fairly conventional libertarian, but he became the first candidate to oust a sitting House majority leader since the post was created in 1899 not by speaking the libertarian argot of Ayn Rand and Friedrich von Hayek but by deploying the populist language of Thomas Jefferson, Andrew Jackson and William Jennings Bryan.

With that kind of talk, Brat and like-minded militants on the right are undermining the philosophy of market populism that has united the Main Street and Wall Street wings of the Republican party since the days of Barry Goldwater and Ronald Reagan. Market populism recycles the ideology of classic Jeffersonian populism—but expands the definition of the virtuous, self-reliant yeoman to include not only small business owners but also big business executives and capitalists.

“Sooner or later,” Lund continues, “the authentic Jeffersonians in the market populist coalition were bound to notice that the actual agenda of conservative politicians has less to do with the needs of small business owners and small farmers than with the desires of big companies and the financial industry.”  They’ve now noticed, he says, and want to swap business-friendly market populism for real populism, terrifying the business community.  And also terrifying Lund, who points out that conservative populists have the wrong answers, and that Jeffersonian populism is irrelevant in America and has been for a very long time.

Yes, for a very, very long time.  The theme that ties together the contradictory parts of Brat’s brand of populism is its inherent fallacy: the claim that what matters is not the goal or effect of the particular policy but instead whether it is the federal government that is promulgating the policy. Most people outside the rightwing bubble recognize this as ridiculous, at least when you are specific about the policy. Including so-called working-class whites under the age of about 36 (i.e., milliennials, few of whom listen to rightwing talk radio and what the national Fox News shows); a new, comprehensive poll confirms this. And also confirms that, increasingly, older Rust Belt blue-collar whites, too, recognize this.

Additional post-Cantor-defeat articles illustrate the point. In one, called “A Cantor Effect for Businesses and the G.O.P.,” published in the New York Times on June 14, the writers, Jeremy W. Peters and Shaila Dewan put together a list of similarities between what is increasingly referred to as the Elizabeth Warren wing of the Democratic Party and rightwing economic and civil-liberties populism, and a list of where the two groups diverge (very substantially) on economic issues.  The left’s economic populism isn’t libertarian.  The goals of economic populism–however much they state as their goal bringing economic power back to ordinary people–can’t be achieved through the anti-federal-government mantras of the right.

Which is a fundamental reason why we are heading, at a fast pace, into a progressive political era that is, in most respects, the very antithesis of the legislative agenda thinly disguised as constitutional law pushed so obsessively by five of the nine Supreme Court justices, for whom it will always, always, be 1988.

Only the federal government can regulate the financial industry–not only hedge funds and banks but also credit card companies, the latter two groups which were gouging small businesses as well as consumers to their heart’s content before legislation was enacted during the first two years of the Obama presidency, by a Democratic Congress, circumscribing those practices.

Only the federal government can regulate the student loan industry.  Only the federal government can provide the states with funding to support state university systems sufficiently to render those institutions once again financially accessible to the non-upscale.

Only the federal government can provide healthcare coverage to the elderly, and a secure, if small, pension benefit.

Only the federal government can provide the vast sums for extensive long-term medical and other scientific research. Or did.

On point after point–those, and many others–it is the liberal position, not the Koch position or the Brat position, that has support from vast majorities of the public.  Most people want clean drinking and bathing water and clean air, the dramatic slowing of climate change, safe consumer and food and pharmaceutical products, national parks, public walking trails, endangered species saved, public schools that are competitive with those in other advanced economies.  Most people want safe highways and bridges and modern, efficient infrastructure.  Most people believe that the federal government should play a role in enabling efficient export trade.

Most people don’t want generic clichesgibbergish banalities, and non sequiturs by public officials and candidates–a point made by Matt Bai in another post-Brat-victory analysis and, pre-election, by astute local reporters covering that campaign. So many people are so very tired of that.  But that is necessity in a political system whose real constituents are–as John Roberts said–those who play outsized roles in funding political campaigns.  Out of the mouths of Movement Conservative justices claiming to speak for the Republic’s founders.

Brat, for his part, appears to be about to run a general-election campaign consisting mainly of slogans and non sequiturs.  No surprise, of course; slogans, cliches, non sequiturs are the very essence of the current Republican Party–both factions of the Tea Party/Republican Party.  The Paul Ryan/Koch brothers/Chamber of Commerce faction and also, because of the mutual exclusivity of its premises, the (newly named) David Brat faction. That’s simply the nature of this beast.

But the divorce case originally known as Movement Conservatives v. Movement Conservatives, filed June 10, 2014 in the Richmond, Virginia Court of Public Opinion, is a class action.  I just checked the docket for the case, and it’s now called Movement Conservatives, et al. v. Movement Conservatives.  And already, there have been several amicus briefs filed on behalf of the petitioners.  And the Supreme Court may not decide the outcome of it after all.