The Supreme Court and “Playing Politics:” The Upper Upper House of the U.S. Legislature

By STEVEN JONAS, MD, MPH
Simulpost with BuzzFlash

 Ah yes, now the Grand Old Tea Party is screaming about “politics” and the Supreme Court. How could Chief Justice Roberts betray them on the “man from Kenya’s” health care reform act? (Actually, as a number of observers have pointed out, there is a poison pill on the Commerce Clause in Justice Roberts’ supposedly “liberal” majority opinion, but that is another matter.)  At first blush, according to the Right (and they often don’t go any farther than first bluish) he was just “playing politics” and that was a terrible thing.

Oh really? So you think that the functions of the US Supreme Court really follow the prescripts of Article III, Section 2 of the US Constitution, or should do so:

“Section. 2.

“The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;–to all Cases affecting Ambassadors, other public Ministers and Consuls;–to all Cases of admiralty and maritime Jurisdiction;–to Controversies to which the United States shall be a Party;–to Controversies between two or more States;– between a State and Citizens of another State,–between Citizens of different States,–between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

“In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”

Well, no, they don’t really follow these prescripts. The Right screams about the Court “playing politics” only when they lose one (which historically hasn’t happened that often). As we know, the Supreme Court’s functions-in-fact go well beyond those stated above. The Constitution was amended in fact if not in the law by a series of decisions made under the leadership of a Chief Justice, John Marshall, whose appointment itself was entirely political. From the time that John Marshall wrote his first ruling that claimed that the Court had the power to review and declare “unconstitutional” actions of both the legislative and executive branches of the US government, a power nowhere to be found in the Constitution, it has been political in a major way, as Professor Fred Rodell of the Yale Law School documented in a book published as long ago as 1955 (1).  That was well before the Court made several very important decisions, like Roe v. Wade, that the Right likes to scream about as being “political.”  Indeed, the most important decisions that it has made since Marshall’s time have been entirely political, following along, not with juridical or legal considerations, but with the politics and the political considerations (very important in Roberts’ decision in the Affordable Care Act [ACA] case) of the majority of the justices sitting at the time. How did that happen?

In 1776 Thomas Jefferson and John Adams were allies in leading what was to become the American Revolution. But by the time the election of 1800 rolled around they had become bitter political enemies. The founders had not contemplated a two-party system, but by golly, there it was. Jefferson won. Attempting to continue his Federalist party’s influence/participation/control in/of the successor government, in a political stratagem Adams got his holdover Congress to create a whole set of new courts (2). Then, in the first attempt at “court-packing,” just before Jefferson’s inauguration on March 4, 1801, he appointed a whole set of Federalist “Midnight” judges and justices. Among them was one William Marbury, a wealthy Federalist from Maryland, appointed to be Justice of the Peace for the District of Columbia (a position that carried with it rather more power than it does now).

Shortly before that time, Adams had appointed his then-Secretary of State (at that time considered the number two power in the government), one John Marshall, as Chief Justice of the Supreme Court. Thus a political decision made by Adams led to the most important amendment to the U.S. Constitution other than the XIIIth, XIVth, and XVth which followed the conclusion of the First Civil War. Of course it was not a written amendment. It was not approved by two-thirds votes in each House of Congress. Nor was it ratified by three-fourths of the states. Nevertheless, the establishment of the system of “judicial review” by the Supreme Court of Acts of Congress and actions of the Executive Branch was an amendment to the Constitution. As noted, and as you can read for yourself above, there is nothing in Article III which comes close to giving it such powers.

So how did this happen? By two accidents of history. One was that Mr. Marbury really, really, really wanted that appointment. The other was the slowness of communications of the time (slow horse, broken wagon wheel, bad roads?) The appointment notice did not reach him before Jefferson’s inauguration. The new President, furious with Adams’ machinations, told his new acting Secretary of State, Levi Lincoln, not to deliver the original notice. James Madison (who happened to have been one of the main drafters of the Constitution as well as the Bill of Rights) would soon come in as Secretary of State. Marbury then sued Madison to have the commission delivered, and so the most important case in the judicial history of the United States, Marbury v. Madison, was created.

Without getting into the nitty-gritty of the case, in his writing for the majority John Marshall, a political appointee, made a political decision, although he couched it in judicial terms. He claimed that in order to decide the case, the Court would have to consider the legality of the law which created the position to which Adams had appointed Marbury. He then concluded that if the law were a proper one, Marbury was entitled to the position, despite the technicality of the non-delivery of the notice. BUT, he then concluded that that particular law, the Judiciary Act of 1789, was not in accord with the provisions of Article III of the Constitution and was therefore null and void, that is “unconstitutional.” Thus Marbury was NOT entitled to the position, whatever the technicalities of the non-delivery.

Thus the irony of Marbury v. Madison: it unconstitutionally created a power for the Supreme Court that nowhere appears on the Constitution. Jefferson complained (1):

“You seem to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps…. Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.”

Jefferson had it right, even though little did he know what was to come of the establishment of such a “despotic” power. But neither he nor any of his allies went further than that, politically, and the custom/system, whatever you want to call it, was gradually accepted. Under Marshall’s leadership, over time, in a series of cases, McColluch v. Maryland being the most important one, the power of the Supreme Court in this regard was gradually expanded and, among other things, extended to the states.

Thus the Supreme Court’s powers grew out of political infighting between Adams and Jefferson, as of course did its political role. Yes, the Court has heard and still hears tons of cases under its powers as spelled out in Article III but we never hear about those.  The cases we do hear about are the political ones: Dred Scott, Plessy v. Ferguson, all of the New Deal decisions pro and con, Brown v. Board of Education, Roe v. Wade, Bush v. Gore, Citizens United, and etc. Just looking at the politics of the membership of the Court for any of the major cases over time tells you how they went.

Was Chief Justice John Roberts taking politics into account with his decision for the ACA case (and he apparently changed his mind late in the game on it)? You betcha. Was his namesake Justice Owen Roberts (no relation) taking politics into account in 1938 when, at the height of the Second Court-Packing controversy, FDR’s, he suddenly switched sides from anti-New Deal to pro- and all of a sudden a whole bunch of New Deal programs became constitutional? You betcha! The first Roberts’ switch was immediately called “the switch in time that saved nine.” One wonders how long it will be before the second Roberts’ switch is so called as well. When the Court rules an act of Congress or an action of the Executive Branch unconstitutional it is acting politically. Certainly in the former case it is acting as the Upper Upper House of the U.S. legislature, in the latter simply as an extra-Constitutional umpire: “You’re outta here!”

The nature of the Court over time is the result of the political process of Presidential and Senatorial elections. For most of our history we have been ruled by right-wing or “center-right” Presidents who have made the bulk of the Supreme Court appointments. It is no mystery why most Supreme Court decisions, except during very limited periods of time, have been reactionary ones. During those relatively short historical periods when the Court has had a liberal majority and has made liberal political decisions, the Right has screamed “judicial self-restraint” and “states’ rights.” But what they are really concerned about is the politics of those decisions.

Consider, for example, Bush v. Gore. In it the Court over-ruled the Supreme Court of the State of Florida on the matter of how to (re-)count votes in the state. One would think that that would be a matter of “states’ rights” and that the Court should “restrain itself.” But no such screams were heard. That’s because the screams of the Right have nothing to do with the process, as much as they would like to convince us that it does. They have everything to do with the political nature of decisions they don’t like. But now, all of a sudden with a firm right-wing majority (except for this one decision, and the ACA is hardly revolutionary) one of the leading reactionary voices in the country, George Will, is calling for “judicial activism” to overturn a bunch of those occasional liberal precedents that go back a century (3), just as did happen in Citizens United.

And so, this Roberts’ decision was made on narrow legal grounds. It was made for political reasons having to do with an attempt to maintain the legitimacy of the Court for a whole bunch of reactionary decisions that it will be making in the future (always 5-4, one can be virtually sure — and Roberts will not be on the liberal side for a very long time to come), such as over-turning Roe v. Wade when it can get its mitts on that case. It is just another in a long line of such decisions made by an institution whose powers grew, not out of the Constitution, but out of a clash between the first two political parties of the United States. One must wonder how US history might have been different if Mr. Marbury had not wanted that appointment so badly or if that notice of his appointment had gotten through to him before March 4, 1801.

STEVE JONAS serves as senior editor with The Greanville Post. He is also a senior contributing editor for BuzzFlash and other leading progressive venues.

——————————————————————————————————-

References:

1. Rodell, Fred, Nine Men: A Political History of the Supreme Court of the United States from 1790 to 1955, New York: Random House, 1955.

http://www.rgj.com/article/20120618/COL01/306180006

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PSA: Stop Internet interference on behalf of fat cats.

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TVShack.net – which linked (similarly to a search-engine) to places to watch TV and movies online.

O’Dwyer is not a US citizen, he’s lived in the UK all his life, his site was not hosted there, and most of his users were not from the US. America is trying to prosecute a UK citizen for an alleged crime which took place on UK soil.

The Internet as a whole must not tolerate censorship in response to mere allegations of copyright infringement. As citizens we must stand up for our rights online.

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When operating his site, Richard O’Dwyer always did his best to play by the rules: on the few occasions he received requests to remove content from copyright holders, he complied. His site hosted links, not copyrighted content, and these were submitted by users.

Copyright is an important institution, serving a beneficial moral and economic purpose. But that does not mean that copyright can or should be unlimited.

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Richard O’Dwyer is the human face of the battle between the content industry and the interests of the general public.

Earlier this year, in the fight against SOPA and PIPA, the public won its first big victory. This could be our second.

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5 States Where “Living in Sin” Is Illegal? America’s Irrational Love Affair With the Institution of Marriage

By Thomas Rogers, Salon
Crossposted with Alternet

For most people living in major American cities these days, the idea of an unmarried couple living together is as controversial as toasted bread. Since the 1990s, more than half of married couples in the United States live in sin before getting married. The percentage of people who disapproved of unmarried cohabitation has dropped from 86 percent in 1977 to 27 percent in 2007. In fact, for most of us, it seems far more suspicious to see a couple moving in together after they’ve gotten hitched than before. So how is it possible that living with your boyfriend or girlfriend is still against the law in Michigan and several Southern states?

As Elizabeth H. Pleck details in her fascinating new book,“Not Just Roommates: Cohabitation After the Sexual Revolution,” unmarried cohabitation has had a rocky path toward cultural acceptance — and, unbeknownst to many of us, is still held back by widespread retrograde legal policies. For much of the 20th century, couples were dragged to jail, had their social benefits revoked or lost custody of their children because they decided to live with the person they loved. And even as the civil rights, feminist and gay rights movements gradually won more rights for cohabitators, the law has continued to place an irrational importance on marriage, especially when it comes to Social Security. Pleck’s book focuses on a series of key legal cases from the past half-century, but manages to make a convincing argument about the misguidedness of our country’s continued, irrational love affair with the institution of marriage — and why it’s high time the law caught up with our hearts.

Salon spoke to Pleck over the phone about the importance of gay marriage, the New York Times’ bad science and why America is still so obsessed with matrimony.

For someone like me who lives in New York, the idea that there is still a stigma or a legal case against unmarried people living together is really surprising.

There’s the cultural stigma and the legal stigma, but it’s the legal stigma that is more interesting to me. How come the law and our policies haven’t caught up to the fact it’s no big deal anymore? Cohabitation is still a crime in five states — the four Southern states and Michigan. Yes, no one has been arrested for cohabitation in recent years but there are a few situations in which the fact that it’s criminal can be used against people. There’s the example of Michael Schiavo, Terri Schiavo’s husband, who was denied guardianship of his wife because her parents went to court saying he broke the law of Florida because he was living with his girlfriend.

Like many other aspects of the sexual revolution, [the rise of cohabitation] appeared first and had its greatest effects on the two coasts and while it has affected the entire country, there are holdouts. You find lower rates of cohabitation and more opposition in the non-coastal and rural areas of the country.

How does this current state of affairs compare to the early 1960s and before?

The numbers of cohabitators are estimates, but to the extent they are accurate, the increase is absolutely off the charts. This is one of the huge trends of family and sexual history where you just find the arrow going almost straight up at an incredibly rapid rate. In the early ’50s and ’60s it was confined to cosmopolitan areas, bohemians, student neighborhoods, interracial couples and poor people because of poor people’s flexible relationship status. What we’ve found since then is that it’s become more common, more frequent, more acceptable, and spread in terms of regions, age profiles of the people and so forth. The majority of people, in the 70 percent range, now live together before they marry — about 12-15 million people right now.

If these laws aren’t being enforced, why should we care?

The criminal laws are just the tip of the iceberg. It’s one of a variety of ways we don’t honor the idea that every person is the same or that everybody can be just left alone as an adult to do what they want. The law makes a symbolic stand in favor of legal marriage and promoting marriage, and major entitlement programs — both private and public — are based on this idea, and on the benefits side there are many important points of social insurance, personal insurance, that have to do with being married. Cohabitators, for example, are two or three times more likely not to have health insurance than married people. A lot of social insurance goes to people who are legally married and their dependents. You find many people on the Internet discussing how they only got married to get health coverage, and many who are engaged don’t understand their fiancés aren’t covered by this. Same with Social Security benefits, they are based on marriage. This is about something I call the right to not have to marry.

It’s funny, I’m Canadian and in a relationship with a man and I’m very conscious of the fact that, because of DOMA, I don’t have that option to marry my boyfriend if I want to stay in the United States. It’s something that I’ve had a lot of conversations with people about.

Yes, immigration policy favors legal marriage and punishes people who are not married. Cohabitation used to be thought of as immoral and one of the reasons for deportations was that people were engaged in immoral conduct.

Where does America’s extraordinary love of marriage come from?

I’m extremely interested in the exceptional nature of the American nation. The idea of promoting marriage and marriage policy goes way back. America is a very religious nation. Cohabitation [is seen by many as] a religious sin and a sin against God whereas marriage is not sinful. People think it has to do with 19thcentury and Victorian ideas, but the truth is that there has been an active fight going on in various states on cohabitation since the 1970s, in Florida and Wisconsin and different states. The growth of the New Right in the late ’60s and early ’70s added on new layers of emotional maneuvering.

So how did our attitudes change?

The first big turning point was when the Supreme Court struck down laws against interracial cohabitation in 1964. Florida had a law saying a black man and a white women or a black woman and white man could not legally cohabit at nighttime. It was a major victory for cohabitation but they still said it’s fine for states to have those laws; they just couldn’t use race as a classification in making punishments. You can’t punish black and white couples for cohabitation but it’s still a crime on the books for a couple to live together.

The No. 1 most important change was the domestic partnership movement. The gay liberation movement fought for it especially in the ’80s and ’90s and cohabitators — straight and gay — ended up being the major beneficiaries of it. It’s a huge shift because it took cohabitation from the shadowy world and made it be recognized. You can use it to receive benefits from private or public employers and you can register this status with a municipality and a state government to get favorable tax treatment and some benefits.

How important was pop culture’s role in making Americans more accepting of cohabitation?

Cohabitation is actually very visible in popular music, because popular music is music of young people and young people were doing it. There’s a Bon Jovi song about it and Joni Mitchell sang about it. It was on “Soul Train.” A few movies by liberal filmmakers in the early ’70s showed countercultural people living together. In the late ’70s there were movies like “Rocky” and “Annie Hall” where it was taken for granted. TV is another story because in the late ’60s or early ’70s series would show an age gap where the parents were offended and the parents’ values were eventually affirmed. It was only in the middle ’70s with this Norman Lear TV show “All’s Fair,” that we got a positive view of cohabitation.

People that you quote in the book talk about the “marriage cure,” the widespread belief among lawmakers that marriage is the solution to a variety of social ills. Does the marriage cure work?

So, for example, a judge will have a young couple coming to him. They’re living together and the guy is unemployed or on probation and he’ll say he won’t punish them in any way if they get married. The state is coercing couples to get married with the idea that then you have cured the problem. Some people want to cure poverty by doing this, others want to cure crime, some immorality. But it turns out you can’t cure these things in these ways. One major reason is you can’t make people stay put once you marry them off; they often don’t stay married.

The marriage promotion movement — which consists of conservative social scientists, especially in the ’90s, engaging in anti-poverty policy, welfare reform, abstinence education at schools — has a very strong belief in this. The idea is that marriage is the ultimate poverty program. I quote extensively from the research in the book to show there’s very little evidence that this works.

It’s very interesting that marriage is seen in the U.S., unlike in Western Europe, as the magic bullet that’s going to cure all kinds of ills. Why are their attitudes so different over there?

[In Western Europe, their ideas are] based on recognizing reality: “This is the way people are living, and we’re not going to be able to change it very much so we should be able to recognize this is what’s going on and treat people fairly given that.” In the U.S. it’s, “This is what’s going on, and this is something we don’t approve of, and maybe we can’t really stop it but we should use our law and our policy to make a broad statement that we believe in marriage and stand behind it even if we know in our hearts that it might not be able to work.”

It’s an expression of these very schizophrenic elements of American culture. On one hand the U.S. celebrates individualism and on the other hand it has these moral policies that are very paternalistic.

That’s a great way of putting it. I think there is a schizophrenia or a divide and some people tend to emphasize one and not the other but they’re both there and tugging at each other — I think that’s called the culture war. It’s a very important part of American history especially since the 1970s.

There was a recent, very popular New York Times articlethat argued that premarital cohabitation was bad news for marriages. What did you make of it?

I actually wrote a letter to the editor in response to this. First of all, that writer quoted social science as if it is the bible on this. The various statistics about cohabitation on the whole tend to show that engagement cohabitation is more likely to lead to a marriage that does not end in divorce. But all studies of cohabitation are studying a moving target; last year’s findings are not this year’s findings. But the reason the article is interesting to me is that it became a cultural phenomenon. It was the most emailed article of that week, I believe, as it seemed to be for all “what leads to divorce” articles.

Those kinds of articles actually go way back in American history, but they tap into tremendous anxiety and fear with the assumption that correlation is causation. I sense that isn’t just because we have lots of children of divorce but because when the country is unstable and the economy is still recovering and our country’s national greatness is not what it was, marriage and divorce become the symbol of the nation. They pick that anxiety and mirror it. My opinion is you’re pretty much going to have to do what is best for you and what accords with your beliefs. Dear Abby had to change her views on cohabitation; she was advising people not to do it until the ’90s, and then she capitulated and said it seems to be OK. I just don’t think that it’s very beneficial to engage in fear-mongering about cohabitation and fears of divorce.

I’ve never been terribly fond of the idea of marriage, and it’s interesting to me that the gay community has increasingly moved from this idea of abolishing marriage to making marriage the central part of the movement. Why do you think that change occurred?

The No. 1 reason was the AIDS epidemic. It showed the fragility of life and the fragility of non-legally recognized relationships and the need for social benefits associated with legal marriage. On top of that, there was the lesbian baby boom and, in general, a new generation of gay liberationists who were not coming out of ’60s critique of the nuclear family.

Cohabitation is not a social movement, but it gets a huge amount of energy from gay civil rights. So when gay civil rights moved in the direction of legal marriage the issue of non-marriage benefits seemed to take a back seat. There was the potential at one point that there would be a both-and strategy — that people would be for the right to marry and the right to not have to marry — but it hasn’t been the case. Now it seems like all the energy goes into the right to marry.

For me the ideal future outcome is something close to the Scandinavian model in which many of our rights toward hospital visitation, inheritance, healthcare and so forth are disentangled from the institution of marriage. How realistic is this in the U.S.?

I don’t think it’s very realistic to expect that outcome. I have been absolutely surprised by the success of the legal same-sex marriage movement and that we are on the verge of declaring DOMA null and void. This is a positive movement in same-sex marriage but my calculation is same-sex marriage has to happen first then cohabitation after that, so it’s kind of at the end of the train. I see the train is picking up and moving faster but that end point doesn’t seem to be coming any time soon.

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Conservative Southern Values Revived: How a Brutal Strain of American Aristocrats Have Come to Rule America

Editor’s Note

Ah, Tara, Tara! Behind all that glitter, elegance, and fun, an ugly reality of brutal social exploitation and ignorance supported the plantation way of life. What else could we expect from a bunch of transplanted feudals?

Although it’s obvious this is very interesting and highly didactic article, and we commend the author for it, we disagree somewhat with Ms. Robinson’s analysis on a few areas.  Call it matters of nuance, and then a bit of structure. First, I too subscribe to Hackett Fischer’s thesis that America is largely the result of the fusion or evolving clash between four different cultural strains, among which the Cavaliers, mostly from London and South and Southwest England, who set the rules for the South, and the Puritans, mostly descendants of people from East Anglia, quickly became predominant. Their approaches to labor (and even food—Southern England likes a lot of things fried) reflected their marching values. The Cavaliers were essentially defeated nobility, feudalists with remnants and pretensions to absolutism in the new land; the Northern Puritan elites an offshoot of a more modern way of looking at social life, essentially mercantilistic and pre-capitalist in their ways. The latter were bound to prevail. Indeed, it was not an accident that such people had few qualms in incorporating and seeking technological improvements.  The Puritans—with whom we readily associate Cromwell and the English Civil War—were the rising English “middle class” (the future bourgeois). Their sense of order and self-discipline was a distinct advantage over a way of life based on the perfecting of hedonism and privilege at the expense of just about everyone outside the charmed inner circle. But while it is probably demonstrably true that, as Ms. Robinson adduces, the Yankee elites were better than their Southern counterparts, they were better in the same sense in which Obama is said today to be “better” than Romney, he supposedly represents the lesser evil. At the end of the day there is no reason to suppose that all complex societies must remain imprisoned within this false dualism. Other choices exist that can and should transcend the lesser evil dilemma. 

I also suspect Ms. Robinson makes too much out of these putative chasms between the elites.  Modern capitalism is global; its flows are profoundly internationalist. At home, many factories and other businesses in Texas and Alabama, for example, are owned and managed at the pleasure of Yankee capital.  Southern capital flows can be found in Canada and Chicago as well as Oklahoma. Cash is fungible after all; people in most latitudes don’t ask for a passport nor do they make too much of a fuss if someone with the wrong accent drops a bundle on the counter.  And profit has little or no morality.  Ask Mr Gates where those wonderful Microsoft products are made and you’ll find most originate in cheap labor zones. My point is that the ruling circles of the United States, among whom intermarriages and business deals are common, are far more integrated in social and political values, outlooks, and purposes than superficial cultural distinctions, accents, and customs might lead us to believe. If the brutality Ms. Robinson so properly illustrates is real, it is coming not so much from a Southern cultural tradition —which doubtless contributes cynical ruthlessness to the equation—as from the decrepit imperialist stage of capital that imprisons the vast majority of humanity today.  That is the beast that confronts us, and which we must now defeat.

Enjoy the article!
PG

AND NOW THE MAIN COURSE…

Conservative Southern Values Revived: How a Brutal Strain of American Aristocrats Have Come to Rule America

By Sara Robinson, AlterNet

It’s been said that the rich are different than you and me. What most Americans don’t know is that they’re also quite different from each other, and that which faction is currently running the show ultimately makes a vast difference in the kind of country we are.

Right now, a lot of our problems stem directly from the fact that the wrong sort has finally gotten the upper hand; a particularly brutal and anti-democratic strain of American aristocrat that the other elites have mostly managed to keep away from the levers of power since the Revolution. Worse: this bunch has set a very ugly tone that’s corrupted how people with power and money behave in every corner of our culture. Here’s what happened, and how it happened, and what it means for America now.

North versus South: Two Definitions of Liberty

Michael Lind first called out the existence of this conflict in his 2006 book, Made In Texas: George W. Bush and the Southern Takeover of American Politics. He argued that much of American history has been characterized by a struggle between two historical factions among the American elite — and that the election of George W. Bush was a definitive sign that the wrong side was winning.

For most of our history, American economics, culture and politics have been dominated by a New England-based Yankee aristocracy that was rooted in Puritan communitarian values, educated at the Ivies and marinated in an ethic of noblesse oblige (the conviction that those who possess wealth and power are morally bound to use it for the betterment of society). While they’ve done their share of damage to the notion of democracy in the name of profit (as all financial elites inevitably do), this group has, for the most part, tempered its predatory instincts with a code that valued mass education and human rights; held up public service as both a duty and an honor; and imbued them with the belief that once you made your nut, you had a moral duty to do something positive with it for the betterment of mankind. Your own legacy depended on this.

Among the presidents, this strain gave us both Roosevelts, Woodrow Wilson, John F. Kennedy, and Poppy Bush — nerdy, wonky intellectuals who, for all their faults, at least took the business of good government seriously. Among financial elites, Bill Gates and Warren Buffet still both partake strongly of this traditional view of wealth as power to be used for good. Even if we don’t like their specific choices, the core impulse to improve the world is a good one — and one that’s been conspicuously absent in other aristocratic cultures.

Which brings us to that other great historical American nobility — the plantation aristocracy of the lowland South, which has been notable throughout its 400-year history for its utter lack of civic interest, its hostility to the very ideas of democracy and human rights, its love of hierarchy, its fear of technology and progress, its reliance on brutality and violence to maintain “order,” and its outright celebration of inequality as an order divinely ordained by God.

As described by Colin Woodard in American Nations: The Eleven Rival Regional Cultures of North America, the elites of the Deep South are descended mainly from the owners of sugar, rum and cotton plantations from Barbados — the younger sons of the British nobility who’d farmed up the Caribbean islands, and then came ashore to the southern coasts seeking more land. Woodward described the culture they created in the crescent stretching from Charleston, SC around to New Orleans this way:

It was a near-carbon copy of the West Indian slave state these Barbadians had left behind, a place notorious even then for its inhumanity….From the outset, Deep Southern culture was based on radical disparities in wealth and power, with a tiny elite commanding total obedience and enforcing it with state-sponsored terror. Its expansionist ambitions would put it on a collision course with its Yankee rivals, triggering military, social, and political conflicts that continue to plague the United States to this day.

David Hackett Fischer, whose Albion’s Seed: Four British Folkways In America informs both Lind’s and Woodard’s work, described just how deeply undemocratic the Southern aristocracy was, and still is. He documents how these elites have always feared and opposed universal literacy, public schools and libraries, and a free press. (Lind adds that they have historically been profoundly anti-technology as well, far preferring solutions that involve finding more serfs and throwing them at a problem whenever possible. Why buy a bulldozer when 150 convicts on a chain gang can grade your road instead?) Unlike the Puritan elites, who wore their wealth modestly and dedicated themselves to the common good, Southern elites sank their money into ostentatious homes and clothing and the pursuit of pleasure — including lavish parties, games of fortune, predatory sexual conquests, and blood sports involving ritualized animal abuse spectacles.

But perhaps the most destructive piece of the Southern elites’ worldview is the extremely anti-democratic way it defined the very idea of liberty. In Yankee Puritan culture, both liberty and authority resided mostly with the community, and not so much with individuals. Communities had both the freedom and the duty to govern themselves as they wished (through town meetings and so on), to invest in their collective good, and to favor or punish individuals whose behavior enhanced or threatened the whole (historically, through community rewards such as elevation to positions of public authority and trust; or community punishments like shaming, shunning or banishing).

Individuals were expected to balance their personal needs and desires against the greater good of the collective — and, occasionally, to make sacrifices for the betterment of everyone. (This is why the Puritan wealthy tended to dutifully pay their taxes, tithe in their churches and donate generously to create hospitals, parks and universities.) In return, the community had a solemn and inescapable moral duty to care for its sick, educate its young and provide for its needy — the kind of support that maximizes each person’s liberty to live in dignity and achieve his or her potential. A Yankee community that failed to provide such support brought shame upon itself. To this day, our progressive politics are deeply informed by this Puritan view of ordered liberty.

In the old South, on the other hand, the degree of liberty you enjoyed was a direct function of your God-given place in the social hierarchy. The higher your status, the more authority you had, and the more “liberty” you could exercise — which meant, in practical terms, that you had the right to take more “liberties” with the lives, rights and property of other people. Like an English lord unfettered from the Magna Carta, nobody had the authority to tell a Southern gentleman what to do with resources under his control. In this model, that’s what liberty is. If you don’t have the freedom to rape, beat, torture, kill, enslave, or exploit your underlings (including your wife and children) with impunity — or abuse the land, or enforce rules on others that you will never have to answer to yourself — then you can’t really call yourself a free man.

When a Southern conservative talks about “losing his liberty,” the loss of this absolute domination over the people and property under his control — and, worse, the loss of status and the resulting risk of being held accountable for laws that he was once exempt from — is what he’s really talking about. In this view, freedom is a zero-sum game. Anything that gives more freedom and rights to lower-status people can’t help but put serious limits on the freedom of the upper classes to use those people as they please. It cannot be any other way. So they find Yankee-style rights expansions absolutely intolerable, to the point where they’re willing to fight and die to preserve their divine right to rule.

Once we understand the two different definitions of “liberty” at work here, a lot of other things suddenly make much more sense. We can understand the traditional Southern antipathy to education, progress, public investment, unionization, equal opportunity, and civil rights. The fervent belief among these elites that they should completely escape any legal or social accountability for any harm they cause. Their obsessive attention to where they fall in the status hierarchies. And, most of all — the unremitting and unapologetic brutality with which they’ve defended these “liberties” across the length of their history.

When Southerners quote Patrick Henry — “Give me liberty or give me death” — what they’re really demanding is the unquestioned, unrestrained right to turn their fellow citizens into supplicants and subjects. The Yankee elites have always known this — and feared what would happen if that kind of aristocracy took control of the country. And that tension between these two very different views of what it means to be “elite” has inflected our history for over 400 years.

The Battle Between the Elites

Since shortly after the Revolution, the Yankee elites have worked hard to keep the upper hand on America’s culture, economy and politics — and much of our success as a nation rests on their success at keeping plantation culture sequestered in the South, and its scions largely away from the levers of power. If we have to have an elite — and there’s never been a society as complex as ours that didn’t have some kind of upper class maintaining social order — we’re far better off in the hands of one that’s essentially meritocratic, civic-minded and generally believes that it will do better when everybody else does better, too.

The Civil War was, at its core, a military battle between these two elites for the soul of the country. It pitted the more communalist, democratic and industrialized Northern vision of the American future against the hierarchical, aristocratic, agrarian Southern one. Though the Union won the war, the fundamental conflict at its root still hasn’t been resolved to this day. (The current conservative culture war is the Civil War still being re-fought by other means.) After the war, the rise of Northern industrialists and the dominance of Northern universities and media ensured that subsequent generations of the American power elite continued to subscribe to the Northern worldview — even when the individual leaders came from other parts of the country.

Ironically, though: it was that old Yankee commitment to national betterment that ultimately gave the Southern aristocracy its big chance to break out and go national. According to Lind, it was easy for the Northeast to hold onto cultural, political and economic power as long as all the country’s major banks, businesses, universities, and industries were headquartered there. But the New Deal — and, especially, the post-war interstate highways, dams, power grids, and other infrastructure investments that gave rise to the Sun Belt — fatally loosened the Yankees’ stranglehold on national power. The gleaming new cities of the South and West shifted the American population centers westward, unleashing new political and economic forces with real power to challenge the Yankee consensus. And because a vast number of these westward migrants came out of the South, the elites that rose along with these cities tended to hew to the old Southern code, and either tacitly or openly resist the moral imperatives of the Yankee canon. The soaring postwar fortunes of cities like Los Angeles, Las Vegas, Phoenix, Houston, Dallas, and Atlanta fed that ancient Barbadian slaveholder model of power with plenty of room and resources to launch a fresh and unexpected 20th-century revival.

According to historian Darren Dochuk, the author of From Bible Belt to Sunbelt: Plain-Folk Religion, Grassroots Politics, and the Rise of Evangelical Conservatism, these post-war Southerners and Westerners drew their power from the new wealth provided by the defense, energy, real estate, and other economic booms in their regions. They also had a profound evangelical conviction, brought with them out of the South, that God wanted them to take America back from the Yankee liberals — a conviction that expressed itself simultaneously in both the formation of the vast post-war evangelical churches (which were major disseminators of Southern culture around the country); and in their takeover of the GOP, starting with Barry Goldwater’s campaign in 1964 and culminating with Ronald Reagan’s election in 1980.

They countered Yankee hegemony by building their own universities, grooming their own leaders and creating their own media. By the 1990s, they were staging the RINO hunts that drove the last Republican moderates (almost all of them Yankees, by either geography or cultural background) and the meritocratic order they represented to total extinction within the GOP. A decade later, the Tea Party became the voice of the unleashed id of the old Southern order, bringing it forward into the 21st century with its full measure of selfishness, racism, superstition, and brutality intact.

Plantation America

From its origins in the fever swamps of the lowland south, the worldview of the old Southern aristocracy can now be found nationwide. Buttressed by the arguments of Ayn Rand — who updated the ancient slaveholder ethic for the modern age — it has been exported to every corner of the culture, infected most of our other elite communities and killed off all but the very last vestiges of noblesse oblige.

It’s not an overstatement to say that we’re now living in Plantation America. As Lind points out: to the horror of his Yankee father, George W. Bush proceeded to run the country exactly like Woodard’s description of a Barbadian slavelord. And Barack Obama has done almost nothing to roll this victory back. We’re now living in an America where rampant inequality is accepted, and even celebrated.

Torture and extrajudicial killing have been reinstated, with no due process required.

The wealthy and powerful are free to abuse employees, break laws, destroy the commons, and crash the economy — without ever being held to account.

The rich flaunt their ostentatious wealth without even the pretense of humility, modesty, generosity, or gratitude. 

The military — always a Southern-dominated institution — sucks down 60% of our federal discretionary spending, and is undergoing a rapid evangelical takeover as well.

Our police are being given paramilitary training and powers that are completely out of line with their duty to serve and protect, but much more in keeping with a mission to subdue and suppress. Even liberal cities like Seattle are now home to the kind of local justice that used to be the hallmark of small-town Alabama sheriffs.

Segregation is increasing everywhere. The rights of women and people of color are under assault. Violence against leaders who agitate for progressive change is up. Racist organizations are undergoing a renaissance nationwide.

We are withdrawing government investments in public education, libraries, infrastructure, health care, and technological innovation — in many areas, to the point where we are falling behind the standards that prevail in every other developed country.

Elites who dare to argue for increased investment in the common good, and believe that we should lay the groundwork for a better future, are regarded as not just silly and soft-headed, but also inviting underclass revolt. The Yankees thought that government’s job was to better the lot of the lower classes. The Southern aristocrats know that its real purpose is to deprive them of all possible means of rising up against their betters.

The rich are different now because the elites who spent four centuries sucking the South dry and turning it into an economic and political backwater have now vanquished the more forward-thinking, democratic Northern elites. Their attitudes towards freedom, authority, community, government, and the social contract aren’t just confined to the country clubs of the Gulf Coast; they can now be found on the ground from Hollywood and Silicon Valley to Wall Street. And because of that quiet coup, the entire US is now turning into the global equivalent of a Deep South state. 

As long as America runs according to the rules of Southern politics, economics and culture, we’re no longer free citizens exercising our rights to life, liberty and the pursuit of happiness as we’ve always understood them. Instead, we’re being treated like serfs on Massa’s plantation — and increasingly, we’re being granted our liberties only at Massa’s pleasure. Welcome to Plantation America. 

Sara Robinson, MS, APF is a social futurist and the editor of AlterNet’s Vision page. Follow her on Twitter, or subscribe to AlterNet’s Vision newsletter for weekly updates.

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Swedish racism: it’s real, alright

 

Swedish racism? To many—especially those who have missed the dispatches by political investigative journalist Ritt Goldstein—that will surely sound like an oxymoron.  Unfortunately, it isn’t, as the video below so eloquently confirms.

See also:

Sweden: When a Progressive icon becomes the darling
of the Right

Ritt Goldstein reports: The new face of Sweden may not be so pretty:
Living in Sweden, a place where injustice may be just the new way of life

Other episodes on YouTube: http://www.youtube.com/watch?v=LZWsZyShR_s&feature=related

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