Why do we even HAVE that lever?

We are six state legislatures away from triggering an Article V constitutional convention, and hardly anybody is paying attention.

For anyone who needs a refresher, Article V is as follows:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

Congress must call a convention if the threshhold is met.  Once the convention is assembled, the delegates themselves have to establish procedures.  The convention is not constitutionally required to stay on topic and there is no higher authority than can intervene to mediate disputes.  The proponents of the convention, a rogues’ gallery of omnicidally insane budget hawks lead by ALEC and The Convention Of States, are currently trying to introduce legislation in Congress that will bring the proposals out of congressional records and into Archives’ jurisdiction where they can be catalogued, so that the convention will be triggered promptly if or perhaps when they pass the threshhold.

The convention provision has so far never been triggered because legal scholars agree that there’s no way to control an Article V convention.  This may well be what Gödel saw.  The constitution is the highest authority right up until a convention is called: after that, the Framers did not see fit to give us instructions, no precedent exists, and nothing can be assumed.  The last one turned out happily in the end, but we must remember that in 1787 the delegates ignored both their instructions from the state legislatures and the ratification procedures laid out in the Articles of Confederation, and we ended up with a totally new system of government.  This time Hamilton, Madison, and Jay are not coming to save us.

And, of course, our present situation doesn’t resemble 1787: the early republic was only six years out from complete regime change, and the convention was called to reform an ad-hoc system that everyone knew wasn’t working, even when they didn’t agree on what should be done about it.  We, on the other hand, have enjoyed a hundred and fifty-two years of a continuously functioning constitutional system, the only amendment in the national discourse is the abolition of the electoral college, and the last thing standing between us and the authoritarian populist maniac in the White House is those four pieces of parchment in a glass case down the street.  The state legislatures won’t send judges and political scientists and constitutional scholars: they will send politicians.  There are no rules to rein in the influence of moneyed interests.  This will not go well for us.

The lack of national news coverage is troubling.  It is a general truth of the internet that when people demand to know why the media aren’t talking about Thing, the media are, in fact, talking about Thing, which is why the morons demanding discussion of Thing know about Thing in the first place.  That isn’t the case here.  I consume a frankly unhealthy amount of news.  I found out about this while following up on a debate going on at Balkinization, and went looking for reporting afterward.  There’s some coverage in state-capital papers, and a single Washington Post editorial from a few weeks ago.  That’s all.  This advance has been going on unnoticed since 2010.  If the initiative reaches the threshhold, it will blindside the American people.

Between the regime and growing polarization, I don’t think we would survive this.

Everyone needs to take several deep breaths and read a book about the Spanish Civil War.

Swear to God this is how you get masked centrists storming a building and threatening to shoot a hostage an hour until everyone sits down and has a civilized cross-factional dialogue.

I did my civic duty and went to Tax March DC yesterday, because lord knows il Douche needs to see yelling hordes demanding to see his taxes.  I went to Tax March DC expecting to march about the tax returns.  I had a flag and a sign and a snarky t-shirt and everything.  In retrospect this was foolish of me and I never should have allowed myself to be taken in.

There are many more people angry about the lack of tax returns than there are people who happen to share the specific economic agenda of some of the organizers of the event.  If the priority here is getting Congress and OGE to do something about creeping kleptocracy, the best tactic is to make the march as non-ideological and broadly appealing as possible.  This is not what they did.  Instead, they mixed in a menu of progressive economic policy items which alienated a lot of people who despise corruption but hold different policy positions.  There were also a series of identity-based non-sequiturs: there’s a prize for anyone who can tell me what his tax returns have to do with intersectional feminism.

We need to get back to a place where we can have a normal policy debate.  That is not possible right now.  The authoritarian populist thrives on polarization: he needs an internal enemy to demonize, or everyone will notice that he has no clothes.  When progressives rightly demand that Republicans denounce and oppose Trump, and then shut them out of the resistance on other policy grounds when they do, they are playing directly into his tiny tiny hands.  A resistance that apparently goes out of its way to alienate opponents of the populist who do not share their policy goals will drive those potential allies back towards the populist in the end.  Take alliances where you can get them.  An opposition party adequately alarmed by the threat that the populist poses in himself should try to build as broad a coalition as possible, rather than attempting to hitch their own economic wagon to the fortunes of the opposition.  This is going to end in the failure of both of their goals.  There are many people with substantial policy disagreements who share a determination to stand up against authoritarian populist horseshit.  Americans hate corruption and tax cheaters: we threw the British out and bonded into a nation over our shared hatred of unfair taxation.  It’s sort of our hat.  If you seek alliances, they will join you.  If you demand ideological purity, you might still get Evan McMullin and Country Over Party to show up, but you won’t get a coalition.

Instead I’m left with the impression that certain progressive factions are trying to use warranted alarm over the regime to mobilize the base, when they should be panicking about democracy and seeking alliances wherever they can find them.  Certainly economic solutions are part of the strategy to crowbar some support away from the populist, but that’s for the campaign trail, not for an anti-corruption demonstration.  The insistence on ideological purity suggests that either progressive organizers aren’t aware of the scope of the threat or even that in some cases they don’t believe their own rhetoric.  Perhaps they’ve managed to cry wolf on themselves: when you’ve been telling yourself and your supporters for years that your opponent is a wannabe tyrant and an existential threat, you find you’ve lost your sense of urgency when that turns out to finally be true.  Or perhaps it’s cynical political calculus combined with failure of imagination.  Or maybe they’re just short-sighted and strategically illiterate.

No one ever got into a position of authority by gleefully celebrating ideological impurity, however, so I’ll probably have to content myself with grumbling in cheap kabob restaurants after protests and yelling on the internet.  We’re all fucked.

Anyway Happy Easter.

Generalized Anxiety

Apropos of Not Talking About Coups, there is a second, related category of Pentagon-White House relations article that needs to cease immediately.  This specimen at Politico by Patrick Granfield is textbook.  To write one of these articles, one looks at the generals who infest il Presidente’s cabinet, thinks to oneself “These men are not criminally insane/are against torture/know that the State Department performs a number of necessary functions” according to one’s inclinations, decides that the military is one’s best hope for a check on the Annoying Orange’s worst impulses, and finally one winds it all up with a vague invocation of the clause in the oath about defending the constitution from enemies foreign and domestic.

Now correct me if I’m wrong, but I believe Mustafa Kemal Atatürk is not in fact one of the Framers.

This is not to say that the Pentagon doesn’t have a responsibility to refuse or otherwise push back on illegal and unconstitutional orders.  They do.  But all that means practically speaking is that if il Presidente orders you to invade California in blatant violation of Posse Comitatus or to blow up al-Baghdadi’s grandma’s house just to show we mean business, you tell him with all due respect to shove it up his ass.  If he tries to take some sort of military action that’s insane but technically legal, you can resign.  If he Caligulates around solely in the domestic sphere, you are up a certain creek.  The oath says nothing whatever about “democracy,” thank god: it’s much more concrete.

Admittedly one expects this sort of thing from the neocon-infested right wing of the opposition— they’re prone to Pentagon-worship at the best of times, which these are certainly not— but as is clear from the above Mr Granfield, it is rapidly creeping across the aisle.  Quit it.  As has been observed elsewhere and at length, if some bastard is chipping away at the customs underpinning liberal democracy, do not help him.

As the most pessimistic person in any given room, I’m still expecting either scrambled-egg-encrusted MAGA hats, or, if this goes doubleplus verybad, a bizarre push to change the blue ground of the flag’s canton to a slightly darker shade.  In the meantime, stop writing these damn fool articles.  It might not help, but it at least won’t hurt.

Coup Coup Kachoup

In the last week or so there has been a lot of loose— if mostly somewhat deniable— talk about coups flying around in both the blogosphere and parts of the mainstream press.  Some of it has been Kremlinological divination of the worst sort, as in the case of this post from Yonatan Zunger on Medium, which later was justly mocked by Politico.  The rest of it has been apparently neutral speculation: for example, the textbook example of apophasis at the end of this piece by David A. Graham at the Atlantic, a throat-clearing Morsi analogy from Ross Douthat (who should certainly know better), and this here bit of pseudonymous blatancy at the Daily Kos.  There are certainly other examples out there for the finding.

First off, not only is this sort of talk almost cartoonishly antidemocratic, but a coup is invariably at least as bad as the disease, and a failed coup is always worse.  However, I’m not particularly interested in the chances of actual tanks rolling any time soon when no one should even be talking about this in the first place.

Not that it hasn’t been making the rounds: in fact I’ve been waiting for coup talk to jump the air gap between the infrasonic Beltway buzz and the press for about two months now.  Up until this point it’s mostly been confined to the realm of whispered conversations between panicking political scientists in the darker corners of the more dimly-lit U Street bars on Thursday nights, where it tends to be brought up in the course of a worst case risk-assessment exercise, alongside the much more plausible horrors of il Douche and Bannon with technically-constitutional emergency powers (the only person I’ve heard speak of the idea favorably was my Uber driver on New Years Eve, who suggested it as a solution to the emergency powers problem, clearly under the impression that I was much drunker than I actually was).

But troubled wonks may say things in private that no responsible citizen committed to the Constitution or even, at bare minimum, representative democracy should ever release into the national discourse.  If we’re worried about the regime’s erosion of the rule of law, we shouldn’t indulge anti-democratic fantasies about throwing the bums out at helicopterpoint.  This sort of preposterous chatter serves nothing but democratic deconsolidation.  Knock it off.

Staying a step ahead of Korematsu

Or, In Which Auntie Weasels Channels Her Inner FEMA Camp Conspiracist

The ongoing centrist wrangling over whether or not we need to worry about the Muslim registry and a slippery slope to Japanese Internment Redux strikes me as painfully naïve.  The idea is thoroughly implanted in the national discourse now: it is unwise to dismiss it out of hand on the grounds of norms or institutions or whatever the latest it-can’t-happen-here talking point is.  It has happened here, and it may happen again.  If we continue to remain head-in-sand about this, we’ll be ill-prepared should another major Islamist terror attack provide the bastards an opportunity.

This is particularly irritating because the question of Muslims being required to register with the government is the wrong question.  With the rise of big data, that cat is out of the bag.  America’s Muslims are registered with Facebook, Google, and other mass aggregators of data.  Thanks to poor security hygiene, much of that information is publicly discoverable.  Furthermore, most data companies have already participated in dubiously-legal electronic mass surveillance programs in the past and may participate again in the future.  Likely the NSA and the rest of our SIGINT apparatus still has access to most of that data, and with that access it would be trivial to assemble a comprehensive list of Muslims in the US.  Such a list may already exist.  Some might slip through the cracks, but not enough.

With personal data more accessible than ever before and with Muslims already receiving disproportionate attention from law enforcement, the important question then is not “Will there be a registry?”: it is “What would such a registry be for?”  A registry is never an end in itself: a neutral example is the census, which exists for the purpose of congressional districting and demographic research.  Since Muslims are singled out with distressing efficiency for surveillance both electronic and physical, it must be for something beyond that.  But what?  This is why Muslims and civil liberties advocates are talking about Korematsu v. United States, and why the Beltway buzz is full of dark rumors about a purge of Muslims from the civil service.

If this should end somewhere as dark as an attempt at internment, it will be important to understand the bureaucratic measures and infrastructure needed for mass internment in the US, so as to frustrate them more efficiently.  The National Archives has a database of primary-source documents related to Japanese internment (to which they insist on giving the rather Orwellian label “relocation”).  The testimony in Korematsu v. United States itself will also offer some research hooks.  We can also imagine that pre-existing infrastructure related to immigration enforcement might be repurposed, and that census data may be abused.  Meanwhile, if this looks like it’s going to go all unconstitutional, tech companies should deep-six all personally-identifiable data before it can be used for evil, however contrary to the business model it might be.

Obligatory Post-Electoral Denunciation of Identity Politics

All the cool kids are doing it.

I understand the temptation for marginalized groups to take up identity politics as a tool: when the problem you’re facing comes from the category society places you in, it makes sense, on the face of it, to push back as members of that category.  However, it is important before using any political tool to consider whether it’s safe to bring it out of the box where the other guy can get at it.  Liberalism and leftism both had historically distanced themselves from identity politics because, while it is often useful for mobilizing people and creating solidarity, it is extremely dangerous in the hands of a demographic majority.

Unfortunately this inversion isn’t merely academic.  For years now, popular wisdom on the American not-right held that the demographic clock was ticking for the right.  This in its turn lead many dumb sods (including me) to count the days until whites were a minority and their power as a voting bloc was broken.  The problem with this, in hindsight, is that the left focused their message heavily on minorities while also gloating over apparently-favorable racial demographic trends, just as the the right realized that they could start playing this game again, with sneakier racism this time.  As the grassroots right began to see their culture and social position as threatened primarily by changing demographics, their rhetoric became more racialized.  This is not to absolve American whites of responsibility. There were two choices available to them: the better road was at least hinted at in the 2013 autopsy report, which urged party leadership to work to make the Republican party more racially inclusive.

Now that the Yam has prevailed, it looks as though the transfer of identity politics from the center left to the racial majority on the hard right is complete, according to the ancient principle by which What Is Good For The Goose Is Good For The Gander.  Minoritarian identity politics is typically less disastrous for a society insofar as for practical reasons it tends more towards separatism than towards eliminationism.  Majoritarian identity politics always turns nasty sooner or later.

TL;DR:  Eventually white people steal everything.

If You Can Keep It

“The political doctrine which has represented the loftiest endeavour towards common life is liberal democracy. It carries to the extreme the determination to have consideration for one’s neighbour and is the prototype of ‘indirect action.’ Liberalism is that principle of political rights, according to which the public authority, in spite of being all-powerful, limits itself and attempts, even at its own expense, to leave room in the State over which it rules for those to live who neither think nor feel as it does, that is to say as do the stronger, the majority. Liberalism— it is well to recall this to-day— is the supreme form of generosity; it is the right which the majority concedes to minorities and hence it is the noblest cry that has ever resounded in this planet. It announces the determination to share existence with the enemy; more than that, with an enemy which is weak. It was incredible that the human species should have arrived at so noble an attitude, so paradoxical, so refined, so acrobatic, so anti-natural. Hence, it is not to be wondered at that this same humanity should soon appear anxious to get rid of it. It is a discipline too difficult and complex to take firm root on earth. Share our existence with the enemy! Govern with the opposition! Is not such a form of tenderness beginning to seem incomprehensible? Nothing indicates more clearly the characteristics of the day than the fact that there are so few countries where an opposition exists. In almost all, a homogeneous mass weighs on public authority and crushes down, annihilates every opposing group. The mass— who would credit it as one sees its compact, multitudinous appearance?-—does not wish to share life with those who are not of it. It has a deadly hatred of all that is not itself.”

— José Ortega y Gasset, The Revolt of the Masses, 1932