The principle then lies about like a loaded weapon

Much is said of the danger to liberty from the Army program for deporting and detaining these citizens of Japanese extraction. But a judicial construction of the due process clause that will sustain this order is a far more subtle blow to liberty than the promulgation of the order itself. A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period a succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes. All who observe the work of courts are familiar with what Judge Cardozo described as ‘the tendency of a principle to expand itself to the limit of its logic.’  A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image. Nothing better illustrates this danger than does the Court’s opinion in this case.

Justice Robert Jackson, Korematsu v. U.S. (1944)

The State of the Union is Ambivalent (2013)

Last year Elias Isquith asked me to contribute a piece to a forum he did on the State of the Union speech. There was some dispute between the contributors over how they read the speech which was my jumping off point. I’m posting it again before this year’s speech because most of what I had to say is still applicable, even if some of the details have changed.

Pete Souza [Public domain], via Wikimedia Commons

The fact that people have such different readings of this speech isn’t that surprising. It reads to me like it was designed to do just that – let each of us hear what we want to hear.  Our normal way of understanding the SOTU is outward.  We tend to think of the president seeking to persuade the opposition or independents.  But there are two ways we might think of ‘us’ as the target.  First, speeches can be used to mobilize one’s own supporters to action. Second, they can be used to demobilize one’s own team. But ultimately, the impact depends on how we react.  We can use the good things that were mentioned as a resource, in making demands.  Or we can assume that the White House has the issue in hand and therefore we can stand down – at least until we get marching orders.  The latter is a losing proposition, regardless of your thoughts about the president’s own motives. I cringe at the barrage of emails about supporting the president’s agenda. We should have our own agenda, and pressure him to support us.

Of course, we all know that the president faces a hostile Republican majority in the House, and an obstructionist Republican minority in the Senate which, as a result of Harry Reid’s unwillingness to undo the filibuster, has a great deal of power.  Because of the sequester, there will likely be fiscal legislation, and because of Republicans’ fear over losing the Latino vote in perpetuity, immigration legislation will at least get a hearing.

So I thought I’d focus more on some other things, including those the White House has more control over.

Five Economic Reforms Americans are Open To

Last week, Jesse Myerson caused a major stir with a Rolling Stone piece, Five Economic Reforms Millennials Should Be Fighting For. It’s a great piece, and we should all be fighting for them.

It’s a new year, but one thing hasn’t changed: The economy still blows. Five years after Wall Street crashed, America’s banker-gamblers have only gotten richer, while huge swaths of the country are still drowning in personal debt, tens of millions of Americans remain unemployed – and the new jobs being created are largely low-wage, sub-contracted, part-time grunt work.

Millennials have been especially hard-hit by the downturn, which is probably why so many people in this generation (like myself) regard capitalism with a level of suspicion that would have been unthinkable a decade ago. But that egalitarian impulse isn’t often accompanied by concrete proposals about how to get out of this catastrophe. Here are a few things we might want to start fighting for, pronto, if we want to grow old in a just, fair society, rather than the economic hellhole our parents have handed us.

The piece did two things. First, it drove conservatives absolutely insane, and second, it led to a serious discussion of these policies that previously were largely at the margins of the agenda.

Blacks are Everyday People: Baltimore and the Drug War

[Updated below]

In a post perhaps better entitled “Official makes offensive, ludicrous claim,” but actually entitled Batts: Crime dropped for “everyday citizens” in 2013, Justin Fenton ‏points us to this statement by Baltimore top cop.

With murders, non-fatal shootings and street robberies up in 2013, Police Commissioner Anthony W. Batts emphasized in television interviews Monday that crime affecting “everyday citizens” was moving in the right direction.

“It’s not throughout the city as a whole,” Batts told WBAL-TV of the violence. “It’s very localized and unfortunately, it’s with African American men who are involved in the drug trade and 80 to 85 percent of the victims are involved in the drug trade going back and forth.”

As Fenton points out, “Batts also said that ’80 to 85 percent’ of victims of violence were African-American men involved in the drug trade. But overall, only 84 percent of city homicide victims are black men” and “police determined a drug motive in just 3 of 224.” Three.

I am outraged at David Brooks’ continuing execution of the War on Drugs

[Updated below]

[If you read my piece entitled I’m so outraged at Kim Kardashian for maintaining the 5th Fleet in a human rights violating autocracy, some of this may be familiar.]

Someone who doesn’t have any lawmaking or prosecutorial power

One of the strange things about our politics is the disconnect between what sorts of things lead us, collectively, to express outrage and what sorts of things we don’t notice.  I’m thinking specifically of how a statement can set off outrage while the background behaviors, activities or policies that the statement expresses or seeks to justify do not.  So Mitt Romney can, as the nominee of the Republican Party, run an entire campaign on policies that are designed to better distribute wealth to the wealthy while ignoring the concerns of large blocs of voters, but it takes him saying that he only cares about half of the voters to really get people outraged.

I think this dynamic is a product of two things.  First, a great deal of our politics concerns people’s motives and character, which are largely unknowable, as opposed to assessing their actions on their own terms.  So when someone says something, potentially revealing their intentions, it seems powerful.  Second, and I suspect more importantly, it’s hard to get upset about long-standing, entrenched conditions.  We do better trying to oppose some deviation from the norm, or at least, things that are understood that way.  Thus we see a great deal of arguments over precedents outside the courtroom, where they may well seem misplaced. Similarly, the nonstop efforts to paint people and positions are “extreme” without attending to the merits of the position. Politics is in many ways largely an effort to decide whose positions are considered speakable and whose are not, which is fairly antithetical to both the idea of progress and the ideal of democracy.