1st and Five: The Weekly Tendown, May 16-22 2010 Special Halfdown!

Sunday, May 23, 2010

Dear Internet:

I'm so high right now.  Wooooooooo.

My brain, which even in good stretches of my life where I'm not bombarded with monumental events, seemingly one on top of the other until I'm buried under crashing waves of pressure, generally feels like a clenched fist.

Today it is unclenched.  'Cause of drugs.  I'm on Drugs!  Wooooooo!

Granted, it's literally the lowest possible dosage of the weakest possible legally prescribed mood elevator, which given my size shouldn't have much physiological impact on me at all - but nonetheless, I'm trippin' balls, son.  Woooooooo!

See, the thing of it is this - I've had maybe five drinks in the past dozen years and I've never inhaled, not even as a troubled teen or an artistic youth so this really is my virgin experience with better living through chemistry, and I have to tell you, I'm never going back.  As with all matters, there is, presumably, a tradeoff which has not yet revealed itself to me (perhaps through magiks?  Is that my next thing?  Will there be chanting and bloodletting and Pink Floyd records?  How does this work?) but presently, I cannot think of a reason not to spend whatever days I have remaining totally stoned out of my mind. 

Legally prescribed drugs!  Woooooooo!

I've always been a free to be you and me sort of a cat, so even in school I didn't hold myself up as some sort of boy scout while others were passing the dutchie from the left hand side, but I just wasn't down; first and foremost because I had work to do.  I took the LSAT at 20, started law school at 21, passed the California Bar at 24; I'm a churner - I was not the guy in college in a dorm room hanging out to three in the morning, I was by myself waking up at 7 to go read in the library.  I've written before about my coin flip belief that I have an undiagnosed Aspberger's Syndrome; and maybe it's that or maybe it's something else, but no one would have had the vocabulary to uncover that when I was young.  I was a kid in the 70s, let's say when those traits would have been apparent is...1979, the distance between now and then is the same as the distance between then and Truman desegregating the military; in Chuck Klosterman's recent book he premised that the distance between past and present is shortening...can I use shortening like that or am I just talking about Crisco right now - and that I've gone only two steps between Aspberger's and Crisco is either evidence that I'm so high right now or evidence, perhaps of an undiagnosed link between the two!  I've cracked the reason for the rise in autism!  Call Jenny McCarthy!  Seriously, google "autism" + "Crisco" and see if there are hits.  Klosterman, in a footnote, talked about the distance between Back to the Future and now being the same as the distance between the fictional Enchantment Under the Sea dance that Marty McFly went back in time to attend, powered by the 1.21 gigowatts necessary to fuel the flux capacitor - and his argument was back then, back in 1985 when he and I both went to the theater as tender teens, him probably high, me, only interested in the giant tub of popcorn and Lea Thompson, that the 1950s felt as far removed from our experience as the 1850s - but if you were 14 years old today and you were watching Back to the Future on HBO7 at one in the afternoon, it would not seem nearly as distant as The Enchantment Under the Sea Dance seemed to us.  I think that's probably a middle aged man's lament, coming from the same place that that inspid phrase "40 is the new 30" designed to pacify us as we slide into cultural irrelevance.  I'd argue a 14 year old watching St. Elmo's Fire, which I saw at the theater the very same day I saw Back to the Future, would think it as ridiculous as a 14 year old Jim Jividen would have found Rin Tin Tin.  Objects in Chuck Klosterman's rear view mirror may appear closer than they are.  No one in 1979 would have ever looked at me, reading at a half dozen grade levels above my station and thought "his brain feels like a clenched fist inside his head" anymore than anyone in Truman's inner circle in the late 40s would have looked at his desegregating the military and said "this is a quarter measure, unless we go the next step and get legislation passed to end discrimination in private businesses, we really aren't sufficiently impacting American life."  The wheel of time must be allowed to turn.

So, when others may have been dabbling in Big Lebowski like recreation, I was reading.  Reading about Truman.  Reading about race.  Reading about how we get from Truman desegregating the military to LBJ signing the law which ended discrimination by business. 

That law - the Civil Rights Act of 1964. 

Which, curiously enough, leads to the most interesting thing that happened this week. 

It's Tendown 27.  Let's get it poppin'!

First:  Thank You Rand Paul

INTERVIEWER: But under your philosophy, it would be okay for Dr. King not to be served at the counter at Woolworths?

PAUL: I would not go to that Woolworths, and I would stand up in my community and say that it is abhorrent, um, but, the hard part—and this is the hard part about believing in freedom—is, if you believe in the First Amendment, for example—you have too, for example, most good defenders of the First Amendment will believe in abhorrent groups standing up and saying awful things. . . . It’s the same way with other behaviors. In a free society, we will tolerate boorish people, who have abhorrent behavior.

That's the Republican nominee for US Senate in Kentucky coming out against the Civil Rights Act of 1964 in an interview with the Louisville newspaper.  And here's Paul on Rachel Maddow doing all he can to avoid saying that, while still, eventually, saying that. 

This is really the only thing that mattered to me this week, the rest of the Tendown will just be links, I want to talk about this, because, while to most of the country, this discussion of the Civil Rights Act of 1964 in connection with the Tea Party movement of 2010 came out of nowhere - you who regularly read my stuff have heard me make this connection over and over again. 

Here's me from August, 2009.

I just finished teaching the Civil Rights Act of 1964, and it's hard to express to students that federal laws prohibiting racial discrimination by business were enormously controversial, that they sparked protest - that they drove the southern Democrats to switch political parties (and become the backbone of the modern day Republicans, the reason why the south is politically awash in red for the past 40 years, why we've gotten to this place in our history where people think Obama must be a secret terrorist). But really they just have to watch the news today. If the Civil Rights Act of 2009 came up for a vote - with exactly the same language that passed 45 years ago, what would be the reaction?

My money says this - right wing talk radio and Fox News (and Michele Bachmann and Sarah Palin) would say it was a plan to give black people your business. "This bill will establish Obama/Acorn style affirmative action panels where your business can be seized by the federal government if you don't employ a sufficient percentage (except they'd use the word quota) of blacks or women or Hispanics. The appointment of Justice Sotomayor is a way to get the Supreme Court to go along. If you don't have enough blacks in management, your business will be foreclosed and it will be turned over to "the community". Vote no on the Civil Rights Act of It's a Nazi Bill! Read your Bible!"

And here I was later that month.

Further, over the weekend, the Washington Post picked up on my contextualizing this debate with previous conservative blockades to social justice, such as the Civil Rights Act of 1964. The right wing position on social security, on unions, on the minimum wage, on civil rights has long been relegated to the dustbin of history - we don't look at George Wallace standing in the schoolhouse door in 1963 and think he was one side of a vibrant debate over federalism. If we had cable news when Wallace tried to stop the desegregation of elementary schools or had his candidacy for President supported by the John Birch society, or became Alabama's governor while saying "segregation now, segregation tomorrow, segregation forever" the take would be about how passionate the opposition to civil rights is and how the Democrats needed to abandon their liberal base and reach across the Mason-Dixon line to accomodate the very understandable fears of the south. Too much change after all. Why does it need to happen so fast? It took LBJ 6 months to pick out a dog but yet he has to rush civil rights legislation?

I'm going to assume the very best of intentions about Rand Paul, that he is being intellectually honest.

When Rand Paul says he opposes government discrimination based on race, he means he believes Brown v. Board of Ed. was correctly decided - that the Equal Protection Clause of the 14th Amendment must be read as prohibiting Jim Crow like policies by state governments.  There are those principled conservatives who disagree with Paul - including the former Chief Justice of the United States Supreme Court, William Rehnquist, who as a Supreme Court law clerk argued that Plessy v. Ferguson should be affirmed.

I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by my 'liberal' colleagues, but I think Plessy v. Ferguson was right and should be reaffirmed.

Consider that memo, by the way, by a former Chief Justice written while he was a Supreme Court law clerk when a Republican brings up Elena Kagan's undergraduate thesis about the history of American socialism as evidence she's unfit to join the Court.  Rehnquist also had never been a judge before joining the Court, by the way. 

Rehnquist was making a state's rights argument.  If the democratically elected legislature in the state of Kansas believed that elementary schools should be segregated in the basis of race, then the federal courts should not, in an activist way, substitute their judgment for the legislature.  The proper remedy should be the ballot box. 

This was accepted conservative (not solely Republican, but solely conservative) dogma at the time. 

Rehqnuist lost that fight.  Conservatives lost that fight.  And the liberal position that an appropriate use of the federal government was to remedy social injustices such as this won and became accepted not only by the vast, vast majority of Americans, but the vast, vast majority of the advanced world.  Literacy tests, poll taxes, grandfather clauses, separate but equal, all wrong - all illegal - all unconstitutional - even when supported by the majority. 

In another memo, Rehnquist wrote this.

I take a dim view of this pathological search for discrimination. . . and as a result I now have a mental block against the case." In a second memo he wrote: "The Constitution does not prevent the majority from banding together, nor does it attaint success in the effort. It is about time the Court faced the fact that the white people of the south don't like the colored people: the constitution restrains them from effecting thru (sic) state action but it most assuredly did not appoint the Court as a sociological watchdog to rear up every time private discrimination raises its admittedly ugly head.

And that's where we were this week.

Because once we decided that government couldn't discriminate based on race, the next step was the decision that business could not either, the important legislation codifying that value being the Civil Rights Act of 1964.

Rehnquist's argument was accepted conservative (not solely Republican, but conservative) dogma at the time.  It was Goldwater's position.  It is Rand Paul's position.  Or was at the beginning of the week.  Racism is wrong, but a person's business belongs to him, and if he wants to discriminate in that business, he should be permitted to do so. 

That argument lost.  Lost to the liberal position that the federal government was the appropriate tool to deal with even private discrimination by business.  That just as a previous generation had found the federal government was the appropriate tool to require private business to pay a minimum wage, to negotiate with unionized workers, to contribute to unemployment insurance and workman's compensation pools, to install in their places and business and guarantee in their products a minimum level of health and safety protections - that now, the federal government was also the appropriate mechanism to tell the owner of an Atlanta motel that although he was the owner of a business, and although he was not the government and therefore not subject to the 14th Amendment's Equal Protection Clause, that his business was not the equivalent of a private home - and therefore he could not refuse to serve African-American patrons (or refuse to hire African- Americans).  And it was that liberal position which Lyndon Johnson recognized was so unpopular among conservative southern Democrats that it was going to cost the Democrats electorally for generations.

Here's Nixon strategist Kevin Phillips in 1970:

From now on, the Republicans are never going to get more than 10 to 20 percent of the Negro vote and they don't need any more than that ... but Republicans would be shortsighted if they weakened enforcement of the Voting Rights Act. The more Negroes who register as Democrats in the South, the sooner the Negrophobe whites will quit the Democrats and become Republicans. That's where the votes are. Without that prodding from the blacks, the whites will backslide into their old comfortable arrangement with the local Democrats.

It's the Southern Strategy and here's what it led to.

From 1932-1968 - that's 36 years, there was one Republican elected President.  And that Republican was Eisenhower, who not only had the benefit of being a war hero, his creation of the term "military industrial complex" would have him branded as a communist by Fox News today. 

But from '68-2008, the next 40 years - there were only two Democrats elected President.  And they were both from the south, and therefore able to help mitigate against the "southern strategy" with their regional popularity.

Barack Obama's the first northern Democrat elected President since the passage of the Civil Rights Act.

And 40 years from now, the viciousness of the reaction to him will entirely - and I mean entirely be understood through the prism of America's historic racial struggle.  40 years from now, the claims by Glenn Beck and Rush Limbaugh that the first African-American President in US history was, in amazing twist of fate - a "racist" will seem as ridiculous and outdated as an '85 Delorean.


Okay, the DeLorean was sort of cool, but you get my point.

I'll take Rand Paul at his word, he's not a racist. 

But this view that the marketplace would have, somehow, magically, fixed the problem of institutional racism in southern businesses, a view that had seemingly been relegated to the dustbin of history until re-argued this week by Paul and then by John Stossel is a view that not only has seemingly been disproven but, among virtually - among virtually everyone along the political spectrum of the entire western world had been abandoned.

Except that it hasn't.  Because ideas have consequences.  The reason I talked about the Civil Rights Act last year because it was in context to opposition to health care reform.  Conservatives, loudly and angrily, said "it's not the role of the federal government to involve itself in health care"  And as opposed to putting that argument in the context of the exact same argument conservatives had made on the Civil Rights Act (and all the rest) media treated it as a vibrant, living debate.  The idea of damage caps (how's that 75 million dollar cap of BP's liability working out) the idea of tort reform pushed by conservatives (including John Stossel, who has made it the focus of his journalistic career) for decades is that we don't need some type of intervention by the force of government into business - that market forces will take care of it.

They're wrong.  They keep making the same arguments.  On social security, on health and safety regulations, on race, on health care - the essential conservative argument - that government should allow business full freedom to make these decisions - that the federal government is overstepping in areas of the marketplace - that essential conservative argument has been proven wrong time and time and time again. 

And this week, we got to go Back to the Future, back to the 1960s, to once again re-learn how wrong they always are. 

Thanks, Rand Paul. 

After the jump - the rest of the Tendown

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