Images of America

March 6, 2018

When the Metropolitan Opera came on with Madame Butterfly recently, I began to puzzle about why the opera is so strongly anti-American. In Butterfly, an American naval lieutenant trifles with the heart of a young Japanese woman ending with her ritual suicide, leaving their baby to him and his new American wife.

It turns out that the story originated with a French officer about his own experiences but Puccini, who wrote the opera, saw a rewritten version, the version that became the basis of the magnificent and tragic love story he was to immortalize in music.

My students never like to be confronted with dates but dates are telling. The original version of Madame Butterfly was finished and performed in 1904. That was shortly after the end of what we call the Spanish-American war, the war that left us with Puerto Rico and, until we gave them independence, the Philippines.

America has come to think of itself as Franklin Delano Roosevelt left it, decent and triumphant in the cause of freedom and democracy. The symbols of our battle were drawn by Norman Rockwell – freedom of speech and religion, freedom from want and fear. It was a war for self-preservation – we had been attacked at Pearl Harbor. It was also a moral crusade, for democracy, freedom and the welfare of mankind. Soon after the war, President Truman and Secretary of State George Marshall sprang to the aid of refugees and impoverished people all over Europe with aid and redevelopment. America was a beacon of hope and decency for the world.

But more recently our military involvement in the Middle East and Asia has forced us to look back at our behavior, particularly in the Philippines. After World War II, some Philippinos told me they often thought of the U.S. like the cavalry in a western movie, massed on a ridge ready to save them from disaster. That may be a fair portrayal of our role there in World War II. But our part in the Spanish-American War is much less fondly remembered, in this country as well as abroad. American troops there pioneered methods of torture that we used later in Iraq. America’s great humorist, Mark Twain, wrote a searing short story about our part in the Spanish-American war – and, understanding how hard it would be for Americans to face that reality, dictated that it could not be published in his lifetime. During the war in Vietnam, we drove over to Mark Twain’s home town in Missouri and found that his War Prayer was his best selling work in the book store, but in the Mark Twain museum, The War Prayer was not to be found – it was still too upsetting for the townspeople.

The Founders of our country liked to refer to what they called the “genius of the people.” But the American people have stood for very different things at different times. Maybe it’s just that different people had more power or maybe it’s that the same people are driven by different motives. The Founders had a different thought – there’s evil in all of us.

But the wages of moral behavior are significant. The America that came off World War II leading the defense and reconstruction of the free world is not automatically the America that is closing itself off from the destinies of everyone we choose not to care about. And the international repercussions will be significant.

— This commentary was broadcast on WAMC Northeast Report, March 6, 2018.

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Polarizing America

January 31, 2017

I’d like to give my spleen a break for a week and talk about some of the dynamics that are polarizing  America, that neither side can solve because the problem is structural. Law has contributed with crucial changes regarding political parties, the media, the draft and residential segregation (which Brown did not prevent). I’d love to hear good suggestions for countering the polarizing effects of those legal changes.[i]

Primaries originally broke up state monopoly parties. We’ve long known that primary elections push candidates apart to appeal to their parties’ most committed voters. After 1968 the primary system became the exclusive method for nominating presidents, pushing the parties further apart.

In broadcasting, three networks controlled radio and television until Congress changed copyright rules, allowing cable television expansion to over a hundred channels, and niche broadcasting to separate audiences. The courts and Federal Communications Commission also killed the Fairness Doctrine, which required broadcasters to present a balanced presentation of controversial issues of public importance. Then Congress made it almost impossible to hold any internet company responsible for even the most outrageous falsehoods published on their systems. Those media law changes made it unnecessary to pay any attention to opposing views. Plus, instead of limiting damages for defamation, as Justice Marshall suggested, the Court gave media much more complete protection.

At the Federal Housing Administration, officials long refused to insure mortgages to African-Americans, regardless of income. That prevented African-Americans from joining the march to the suburbs, drove disinvestment in their existing neighborhoods, and pushed us apart.

The end of the draft has been huge. The military had drafted people without regard to wealth, class, or geography. President Teddy Roosevelt said “the military tent, where all sleep side-by-side, will rank next to the public school among the great agents of democratization.”[2] And indeed the soldiers came home with lifelong buddies from all over America. Arguments about the Vietnam war ended the draft and led to the so-called volunteer army, which doesn’t reach the same cross-section of America. That changed our attitudes toward each other, and how polarized we’ve become.

There were good reasons for the changes to the nominating system, the media, and the draft but the combined price has been to polarize us. Polarization matters. It blocks our ability to listen to each other, even to care about each other. And if we can’t care, the very notion of public welfare, what’s good for all of us, seems like self-pleading.

The market can’t pick up the slack; it fails in many ways. Worse, for market ideologues, democracy, the major counterforce to the market, seems illegitimate. In other words, the stakes are huge – the legacy of our Revolution, our Constitution, and our collective welfare. Somehow, we have to break down polarization, and restore what used to bring us together or find substitutes – for public schools, military service, media that reached across aisles, and integrated housing and communities.

I doubt the cat can be put back in the bag, especially in this polarized environment, but I’d love to hear good suggestions.

— This commentary was broadcast on WAMC Northeast Report, January 31, 2017. For a more extensive treatment, see my Unfit For Democracy: The Roberts Court and the Breakdown of American Politics at 153-67 (NYU Press 2016) or Law and the Polarization of American Politics, 25 Georgia State L. Rev. 339 (2008).

[1] For a more extensive treatment, see my Unfit For Democracy: The Roberts Court and the Breakdown of American Politics at 153-67 (NYU Press 2016) or Law and the Polarization of American Politics, 25 Georgia State L. Rev. 339 (2008).

[2] Quoted in John Whiteclay Chambers, II, Conscripting for Colossus: The Progressive Era and the Origin of the Modern Military Draft in the United States in World War I, in The Military in America from the Colonial Era to the Present 302 (Free Press, Peter Karsten, ed., rev. ed. 1986).


The Legacy of Barack Obama

January 3, 2017

Barack Obama has been one of our most decent and intelligent presidents. I’ll miss him. Instead of simplification and slogans, Obama explained the complexities of everything from medical treatment to foreign policy. Instead of shooting from the hip, he studied problems carefully and reached mature, intelligent decisions.

But what will stick?

Starting with foreign affairs, Obama got most of the boots off Muslim lands. When Obama took office in 2008 we had close to 200,000 soldiers in Iraq and Afghanistan. Now we have about 15,000 troops, combined, there and in Syria.

ISIS seems to have refocused on Europe but that’s still a problem for us. Europeans’ objectives are compatible with our own, so they are crucial allies, unlike the Russians. But Europe confronts many times more refugees than we do, with backlash and threats to democracy in several countries. American action in Syria added to the refugee flow, but much resulted from revolutions independent of us. More American militarization in the Arab world would inflame the refugee crisis and increase the terrorism directed at us.

Terrorists are fueled by militarization; nations are much more vulnerable to our military – that’s the difference between defeating Saddam Hussein, having him executed and trying to remain there. Trump may talk tough, but will he be fool enough to wade back into those trouble waters?

In Guantanamo, fewer than 60 prisoners remain of the nearly 800 who were imprisoned there.

Republicans dislike the Iran nuclear deal but so far they’ve nothing to show for their fears. Objections from the other signatories may prevent Trump from disavowing it. This may be the first real test of whether Trump has any grip on reality.

At home, Republicans have been yelling for years that they will tear Obamacare down the first chance they get. But their friends in the insurance industry will howl if they do, especially if Republicans leave features Americans like – a guarantee that you can get insurance, coverage for pre-existing conditions, tax credits for small businesses, etc. So it’s not clear what they’ll actually do. Obama took his health care plan from Mitt Romney’s Republican plan. I can think of improvements to the left of Obamacare, but not any that are more consistent with Republican free-market philosophy. Republicans are in a pickle.

Obama got a small stimulus soon after taking office. Terrified it might actually work, Republicans fought to keep it small. Obama’s stimulus worked, slowly, satisfying the cynicism of Congressional Republicans willing to hurt the country in order to make Obama look bad.

Dodd-Frank financial regulation still stands, reigning in a financial system that gambled with everyone else’s money and made a large number of us much worse off.

Obama nominated Sonia Sotomayor and Elena Kagan to the Supreme Court. One has become the conscience of the Court, the other quieter and more conciliatory. Together, they’ve made a the Court much more fair. The future depends on how long Ginsburg lives and how long Trump is in office. The difference Ginsburg, Breyer, Sotomayor and Kagan made could disappear in a heartbeat.

So, there’s a lot to celebrate in what Obama did or tried to accomplish. But I have real fears of what could be done in the effort to discredit him instead of making things better for the people of America.

— This commentary was broadcast on WAMC Northeast Report, January 3, 2017.


Good soldiers know how to play chess

October 20, 2015

I’d like to start by stating my pride in WAMC and admiration of you, the listeners and members, who not only raised funds to keep the station on the air but also raised funds during the pledge break for the food bank, to help refugees and to retire pollution from the environment. That’s a lot to be proud of.

Turning to the Middle East, Russia wants to beef up Assad in Syria. And Putin seems to have confronted us with a fait accompli as it conducts bombing raids. No one wants war with Russia. So what to do?

Lots of people have their eyes focused on the Middle East, on Syria and its immediate neighbors. I think that reveals inexperience. Foreign affairs is a chess game. Chess was invented to train the mind for combat.

Now I’m no champion chess player. Oh I like to brag that I once beat someone who beat Bobby Fisher, which is true, but my friend hadn’t played in years and I have no idea how old Fisher was when my friend beat him. But just the same I do understand some things about chess. And one of them is that if the other guy attacks one of my pieces where it’s hard to defend, I can look for ways to take advantage of the position somewhere else on the board. Sometimes that forces my opponent to release his grip while dealing with my counter threat, or provide me with a counter-balancing advantage. Chess is often described as a game of position, but rarely is it all about one square or even one piece.

So I’m wondering what candidates you might have for places to put pressure on Russia? Ukraine anyone? Or posting troops in Poland? And how about recalculating the effects of Putin’s moves? The EU has been falling apart but a resurgent Russian bear may help put the EU back together. Arab anger has been directed against home grown Sunni regimes and against the U.S., but a resurgent Russian bear may put them in a war with ISIS and could inflame Muslims within Russia. Conservatives want America to be a player in world politics. But being a player is hardly a purpose. I’m more focused on the consequences.

People who only keep their eyes on one spot may be experts on that spot, or just naïve. But real foreign policy is global. Russia is not invincible. Putin is not a magician. The games he has been playing have answers. Keep cool.

But don’t look for lots of loud talk back. Real warriors don’t scream their intentions. Intentions become known after the fact. That’s what I expect from Obama or any president who is competent in foreign policy and not a big gasbag. As Teddy Roosevelt once said, we need to speak softly and carry a big stick. But it’s also important to remember that big sticks aren’t best wielded in frontal attacks – Picket’s charge lost at Gettysburg. Grant, by contrast, was happy to lay siege at Vicksburg and Richmond, and the soldiers under Sherman rarely fired a shot through a long campaign across Tennessee and then Georgia – except when Jefferson Davis replaced one of his best generals and his replacement immediately attacked the portion of Sherman’s Army he had left behind at Chattanooga. The Confederate Army was then promply defeated by that half of Sherman’s Army.

Good soldiers know how to play chess.

— This commentary was broadcast on WAMC Northeast Report, October 20, 2015.


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