Reinvigorating Majority Rule

For brief descriptions of and links to recent posts, click here. For an inverse-chronological list with links to all posts after January 23, 2017, click here. For a subject-matter index to posts before that date, click here.

“Democracy is on the ballot.” — Joe Biden, August 20, 2020

In 2014, two professors made an exhaustive study of 1,779 public issues and how the US decided them. It concluded that the US is an oligarchy of the wealthy and of business interests, which decides vital questions like gun control, health insurance, abortion and taxation as the oligarchs want, not the people. That was six years ago, before Donald Trump ever threw his hat in the ring.

“Democracy,” of course, means rule by the majority. In this 2020 election, pundits have catalogued many ways in which our system deviates from democracy.

The worst legislative offender, of course, is our Senate. Our Founders designed it to empower less populated, rural, agrarian states so they could preserve slavery.

Let me count the ways our Senate contravenes majority rule. First and foremost is sheer malapportionment. Today nine states with a simple majority of our entire population have eighteen senators, or 18% of the Senate’s political power.

Think about that: any combination of nine of the other 41 states can match the senatorial power of the majority of our people; any combination of ten of the 41 can outvote them in the Senate. In the most extreme case, the ten least populated states, comprising less than 2.9% of our total population, could outvote the nine states comprising a popular majority. (In order of decreasing population, the ten least populated states are: New Hampshire, Maine, Montana, Rhode Island, Delaware, South Dakota, North Dakota, Alaska, Vermont and Wyoming.)

The ancient Greeks and Romans, who invented democracy (including representative or “republican” democracy), would consider our Senate an abomination spawned to perpetuate slavery. Yet its gross malapportionment by population has practical consequences today. In one of many, the senators who just confirmed conservative “originalist” Amy Coney Barrett to the Supreme Court represent 48% of our population.

And that’s just the beginning. The Senate’s filibuster is nowhere in our Constitution. Yet today it has morphed from its original purposes—delay and deliberation—into a permanent minority veto of both legislation and Executive appointments. If that weren’t bad enough, the custom of Senate “holds” allows a single senator to block legislation and Executive appointments without even the inconvenience of holding the Senate floor for hours.

Next to this, the Electoral College’s malapportionment is relatively benign. It skews majoritarian political power not by multiples, but only by about five percent. Yet in our history it has produced five presidents [scroll to end for list] who failed to attract a popular majority or plurality. The most recent two were controversial Republicans: George W. Bush and Donald J. Trump, who lost the national popular vote by over half a million votes and nearly 2.8 million votes, respectively.

Notwithstanding these big hits to democracy at the legislative and executive levels, the most egregious departure from democracy may be hiding in plain sight. It’s our Supreme Court.

What could possibly be less democratic than nine people, each appointed and unelected, for life, deciding the most fundamental principles of our Republic for all time? And what could possibly be less conducive to popular rule, and more conducive to hardening of the cerebral arteries, than letting them rule until the days of their deaths—unless and until impeached and removed by a two-thirds supermajority of our grossly malapportioned Senate?

Truly the Supreme Court is the high citadel of minority rule in our system. No wonder the Republican Party sees it as its savior. The Party has a calculated plan to use the Court to entrench its oligarchic rule for generations, even as it becomes a permanent minority party nationwide. Short of a second civil war or a new constitutional convention, there’s no legal way to shake the Court’s rulings—no matter how impractical or contrary to the people’s will they may be.

I know, I know. Our Founders hoped the Supreme Court would provide a refuge of Reason, apart from the hurly-burly of politics, that would protect the fundamental principles of our government in times of stress. But it hasn’t turned out that way, has it? If Justice Roberts still believes that justices only “call balls and strikes” like good umpires, he must be the only one in our country who does. Everyone else seems to see the Supreme Court as a juicy political prize, and all are acting accordingly.

And why not? In the past ten years the Supreme Court has unleashed the Hounds of Political Hell in four ways. First and most important, it has let money not just talk, but rule. By likening money to “speech”—an analogy specious, impractical and anti-democratic on its face—its 2010 decision in Citizens United has given wealthy people and big corporations leeway to tilt the political playing field through “soft” bribery and propaganda.

So in a closely divided nation, money has displaced Reason in politics. Even ActBlue—the Democrats’ online vehicle for small contributions—reports raising over $7.5 billion since 2004. And no one appears to be keeping track of the big, dark money that flows offline.

In its second most consequential act against democracy, the Court in Shelby County v. Holder (2013), struck down key sections of the Voting Rights Act of 1965, which helped end Jim Crow. The Court killed those provisions on the basis of general principles of “federalism” and “states’ rights.” As a result, the Southern States, which had been the law’s target, began almost immediately to suppress the votes of Democrats and minorities. They used such means as voter-roll purges, identification requirements, witness requirements for absentee ballots, and limiting polling places. These tactics continue today, and they have spread beyond the South.

The Court’s third most consequential sin against democracy involved another error of commission. Just days ago, it affirmatively allowed Texas to proceed with mail-in voting while providing only one drop box per county. Harris County, containing Houston, has 4,713,325 people. Loving County has 169 people. So voters in Loving County have 7,713,325/169 = 27,880 as much time, on average, as voters in Harris County to drop in their ballots. Is this “equal protection of the law,” or is it geographical discrimination? Does it matter that Harris County is one of the most racially and ethnically diverse counties in America?

The Court’s fourth and final sin against democracy was an error of omission. In three companion cases decided last year, the Court refused to intervene in what it called “[e]xcessive partisanship in districting [whose] results . . . reasonably seem unjust,” i.e., extreme gerrymandering. In so doing, it gave partisan pols permission under our Constitution to arrange things so some voters matter more than others.

Does anyone seriously think that our Founders—who worked so hard to create checks and balances at the federal level—would have done nothing about today’s Wisconsin, in which Republicans can win 60% of the statehouse seats with 48% of the vote? So much for “originalism.” (Our Founders foresaw the advent of political parties, but most of them feared parties only for fomenting “faction” and neglecting the general welfare.)

One question in this election is not just whether the Supreme Court’s recent rulings have injured democracy—at least if democracy means one person, one vote. The evidence against the Court on that point is overwhelming. The question is what we can do about it, and about our other structural impediments to democracy.

Short of a second civil war or a new constitutional convention, there’s no general remedy for our grossly malapportioned Senate. Our Constitution explicitly states, in Article V, that “no State, without its consent, shall be deprived of its equal Suffrage in the Senate.” But a simple majority in the Senate can, at least, dispose of the gross assaults on democracy made by the filibuster and individual senators’ “holds.” Our constitution’s Article I, Section 5, says that “Each House may determine the Rules of its Proceedings[.]” So a Democratic majority in the Senate could change those rules, as a first step in restoring legislative democracy.

The Electoral College is a tougher nut to crack. Eliminating it would require a constitutional amendment, which three-fourths of the states must ratify. A quicker expedient might be the National Popular Vote compact, under which individual states’ legislatures agree to cast their Electoral College votes in accordance with the national popular vote.

The advantage of this approach is that it avoids involvement of the federal Congress and its malapportioned Senate. Already 16 states with 196 electoral votes have signed up; by its terms, the compact becomes effective when states with 74 more electoral votes sign up. (The 270 resulting electoral votes are the minimum necessary to elect a president, so no president could be elected without the support of the compact, i.e., without winning the national popular vote.) As the compact comes close to self-triggering, perhaps targeted economic boycotts of small, recalcitrant states could push it over the top.

Yet besides the Senate, our biggest obstacle to democracy is our own Supreme Court. While striking down vital provisions of the Voting Right Act of 1965, it left Congress free to re-enact them, or something like them. Congress should do that ASAP, leaving it to the Justice Department to review and countermand all the myriad unforeseeable ways that bigots and Republicans may concoct to suppress the vote.

But what about the cases like Citizens United, which hobbled Congress’ power to keep money out of politics? More generally, what can be done to force the Supreme Court to let our political branches protect and renew the most basic rules of democracy since ancient Greece and Rome: majority rule and one person, one vote?

In the hope of taking the White House and both Houses of Congress, Democrats recently have discussed a number of proposals. They include: (1) expanding the Court, (2) eliminating life tenure, (3) restricting the Court’s appellate jurisdiction, and (4) restricting the Court’s subject-matter jurisdiction.

Of these expedients, only (2) would require amending the Constitution. Article III, Section 1, says that “Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour[.]” This means essentially life tenure, except if judges are impeached and removed. The Founders suggested that life tenure would make judges free from improper influence, including political influence.

In contrast, expanding or contracting the Court or limiting its jurisdiction would not require a constitutional amendment. There is actual historical precedent for changing the number of judges. And Except for “Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party,” our Constitution gives “the supreme Court . . . Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” Article III, Section 2 (emphasis added). So Congress can, by making exceptions, whittle down the Supreme Court’s jurisdiction at will.

In comparison, eliminating or adding judges is a bad idea. Cutting one or more would inevitably become personal. It would arouse champions or accusers whether judges are eliminated by name or by some other, supposedly neutral criterion. The resulting brouhaha would take everyone’s eyes off the ball: the issue is not particular judges’ transgressions against democracy, but the Court’s. As for adding judges, its effect could be reversed by the next Congress adding yet more, if captured by the opposing party. The resulting expansion after expansion would not just be unseemly; it could quickly get out of hand.

The crux of the issue is not personal political or ideological biases, although they surely exist and the Republicans seem to be counting on them. The issue is simply that the Court ought not to meddle in the structure of our democracy or our political branches’ attempts to expand or protect the franchise. And it certainly oughtn’t to do so in a way that makes it harder for anyone, or any class of people, to vote. Congress could stop the Court from doing that simply by limiting its subject-matter jurisdiction.

The alternative of regulating appellate jurisdiction also deserves some discussion. A recent op-ed by a law student raised it. At present, the Supreme Court decides what few cases out of many it will hear, by granting review in a process called “certiorari (Latin for “to be made more certain.”) This procedure allows the Court to determine its own jurisdiction by picking the few cases each year it deigns to decide. An alternative is to let panels of lower appellate court judges pick those cases, thereby broadening the decision makers and diluting any ideological bias on the Court.

Yet this would be a solution to an entirely different problem: that many important cases never get the attention they deserve from the Supreme Court. The crying problem today is different. First, the Supreme Court is meddling in the basic structure of our democracy, i.e., how, when and whether can people vote. These questions are essentially political and practical, not legal, and therefore outside the Court’s proper purview. Second, when the Supreme Court cites the Constitution in making a political and practical decision, such as about money in politics, it can leave no room for reversal or change by the people’s representatives. In those cases the Court literally usurps the political and democratic process—and potentially for all time. That’s a power for which its judges are neither elected nor trained.

At the end of the day, the Constitution is not the exclusive purview of the Supreme Court. Its preservation involves all three branches of our government. Before assuming office, our president and every member of Congress take an oath to preserve, protect and defend it.

One of the strongest Supreme Court precedents on this very point doesn’t get much press nowadays. But it should. In the middle of our bloody part in the Korean War, an impending strike of steelworkers threatened to shut down our war effort. President Harry Truman ordered his Secretary of Commerce to seize and operate the steel mills in order to stop the strike and protect our war effort. The issue reached our Supreme Court in the case of Youngstown Sheet & Tube Co. v. Sawyer.

The Court ruled 6-3 that, without authorizing legislation by Congress, President Truman lacked legal authority to seize private property, however noble or important his purpose may have been. But today’s jurists don’t focus on the rather conclusory majority opinion. Instead they focus on the concurring opinion of then Justice Robert H. Jackson—the same judge who had presided over the Nuremberg Trials of Nazi war criminals. He was a modern-day King Solomon.

Justice Jackson’s concurrence was about presidential power. But his words are worth quoting verbatim, as innumerable jurists have done for three generations:

“When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth), to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power.” [Footnote omitted.]

This was precisely the situation in Shelby County v. Holder. Congress had, through the Voting Rights Act of 1965, expressly delegated authority to the Executive Branch to review changes in voting rights and procedures in Southern states with a long history of disenfranchising Black people. Executive power was, in Justice Jackson’s language, “at its maximum.” Yet the Supreme Court, citing the passage of time and finding changes in circumstances and the assumed rights of states, presumed to strike down key sections of the Voting Rights Act as having outlived their usefulness. Not only did the Court disempower both the Executive Branch and Congress, it presumed to usurp the fact-finding and its prescriptive functions of both political branches.

This was not just a gross abuse of judicial authority—the elevation of nine unelected jurists over our entire Congress and Executive Branch. For a Court on which some members had consistently attacked so-called “judicial activism,” it was a case of breathtaking hypocrisy.

Yet another thing made this particular transgression and hypocrisy especially egregious. We Americans had fought a four-year war—the bloodiest in our entire history—to make Black people full citizens with voting rights. The Fourteenth Amendment came out of that war. Under its first section, “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” The broad phrase “any person” of course includes Black people, who were its original and primary beneficiaries.

If all this were not enough, Section 5 of the Fourteenth Amendment gives Congress the power to enforce it “by appropriate legislation.” So not only did the Shelby County v. Holder Court usurp both Congress’ and the Executive’s fact-finding functions, for which both branches are more expert, have more staff and have stronger constitutional authorization than the Supreme Court. Not only did the Court presume to countermand Executive action that had general congressional authorization in the Voting Rights Act of 1965. It also presumed to countermand specific congressional authorization under the Fourteenth Amendment, which Congress had adopted before the States ratified it, and which passed for the very same purpose (Black people’s voting rights) that Congress reinforced a century later. To paraphrase Nobel Laureate Bob Dylan, how many times must Congress act before they call it a law?

For this mind-boggling transgression of Executive and congressional authority, the proper remedy is not tinkering with Supreme Court’s membership. The proper remedy is depriving it of subject-matter jurisdiction over voting-rights cases.

That’s what a Democratic Congress should do if elected this November. There is no more sacred duty of a democratic government than protecting the people’s right to vote, and the Court has shown itself entirely unable or unwilling to fulfill that duty. All the applicable law supported widening the franchise. Yet the Court used facile and specious reasoning, plus its very own fact-finding, to permit states to narrow it, contravening congressional legislative and constitutional acts over more than a century.

Another chunk of subject-matter jurisdiction that ought to be removed is abortion. I have written an entire essay on the issue’s near-infinite complexities, which I won’t review here. But four practical points are worth making. First, our Constitution does not mention abortion, nor (to my knowledge) do our Federalist Papers. So there is little but imagination and fantasy on which an honest “originalist” can base a judicial opinion on the subject. Our Founders simply didn’t think about it.

Second, the entire effect of the Supreme Court’s treatment of the subject since Roe v. Wade in 1973 can be summed up as follows: the nation is now divided into states that permit abortion with few restrictions and those that criminalize only certain kinds of abortion. So we have a patchwork of state laws, but nowhere is abortion entirely criminalized. Third, the issue has, for over two generations, provided an enormous electoral distraction, while so-called “conservatives” have crushed the American working class, busted its unions, allowed its incomes to stagnate, allowed its jobs and factories to be shipped abroad, and let economic inequality overgrow heights attained only in our First Gilded Age.

In other words, abortion has been one of the chief means by which the oligarchs and their political party have kept workers’ eyes off the ball and have stolen the substance of this nation from under their noses. Enough already! Nearly half a century of fighting over Roe v. Wade has produced enormous heat, relentless distraction, and little practical change in its principal subject, the availability of a medical procedure. Progress has been minimal and pyrrhic for both the “pro choice” and “pro life” sides (both of which are misnomers). So let Roe v. Wade, with all its existing exceptions and caveats, continue as precedent, but get the Supreme Court out of the abortion business. Let the patchwork continue, if at all, in the state legislatures, subject to the existing command that women have some right to an abortion in some poorly defined way. Congress can do that with simple majority legislation, if it chooses.

No doubt there will be other subject matter on which the Supreme Court ought not to tread. But that—not personnel or size—is where its correction should lie. We have a nine-member Court: a nice odd number to avoid indecision in most cases (except where one or more members is absent or recused). Nine is a large enough number to encourage a variety of thinking while not too large to foster collegiality. In contrast to changing the Court’s membership, narrowing its subject matter is easily reversible, without the need for dismissing justices or confirming new ones.

The Supreme Court is supposed to be our “least dangerous branch.” But it is also our least expert. It has no staff but its judicial and administrative clerks. By and large, it knows no science, except what litigants recite to it in briefs. It knows only the law and the limited means of textual interpretation taught in law schools and used in courtrooms.

So the Court is an ivory-tower institution dealing in verbal abstractions. It’s the farthest of our three branches from the vicissitudes of daily life and politics. Its justices’ life tenure only makes them more removed from daily life. When it strays beyond its proper competence, we should not change its basic structure nor its role in our constitutional system. Instead, we should chastise and correct it by narrowing its jurisdiction.

As intelligent men and women, its members will no doubt take the hint. The narrowing is easily reversible by legislation if they do. Then majority rule can prevail in Congress and (by election) our executive, leaving the Court to its narrow task of determining what the law that elected officials make says and (rarely) when that law contravenes clear and non-controversial constitutional norms.

Endnote on Gerrymandering. Careful readers will note that the foregoing post has not yet provided a solution for the Supreme Court’s refusal to correct even extreme gerrymandering. If left unchecked, both parties’ temptation to gerrymander could ultimately foster deviation from majority rule as much or more than voter suppression. Failure to recognize this slippery slope is yet one more example of the current Court’s refusal to see real cause and effect as wise judges ought.

There are possible remedies for gerrymandering, but they are necessarily more complicated than depriving the Supreme Court of subject matter jurisdicition. The reason is that, in allowing even extreme gerrymandering, the Supreme Court has failed by refusing to act, rather than by acting badly. Nothing in the Constitution allows Congress to dictate the Court’s decisions in cases that come before it; that would violate the separation of powers.

Nevertheless, Congress itself could provide a solution in three steps. First, it could use its general Article III authority to create specialized inferior courts to handle cases of gerrymandering. Second, it could deprive the Supreme Court of appellate jurisdiction over those cases. Third, it could use its constitutional authority under Section 1 of the Fourteenth Amendment to keep States from depriving “any person” of equal protection under the law. Specifically, it could promulgate general legal standards for states’ congressional and local districts to insure a reasonable approximation of “one person, one vote.“ Alternatively, Congress could set up a national, nonpartisan commission to govern redistricting and subject its work to judicial review only by special courts that Congress established for that purpose.

The sad thing is that all this is really deva vu. Section 2 of the Fourteenth Amendment, ratified in 1868, anticipated that Southern and other states might play tricks in disenfranchising voters in both state and federal elections. It even provided a remedy: reducing the “basis of representation” by the ratio of the disenfranchised to the enfranchised.

Section 2 covers disenfranchisement of “any male inhabitant” of a state over the age of 21. It is backed up by Section 5, which gives Congress general power to “enforce, by appropriate legislation, the provisions” of the Fourteenth Amendment, including Section 1 and Section 2. Congress could thus cite the Fourteenth Amendment as empowering it to reduce both a state’s representation in the federal House, and unfairly advantaged districts’ representation in the state legislature, in proportion to the disenfranchisement of “inhabitants” of the state. (Although its language is not entirely clear, Section 2 arguably falls short of a remedy by reducing a state’s inalienable representation in the federal Senate.)

The point here is not that the Fourteenth Amendment’s Section 2 is the best way to proceed. The point is that the Fourteenth Amendment, whose Section 1 categorically prohibits any state from denying equal protection to “any person,” provides alternative ways to remedy disenfranchisement by any means, including gerrymandering. (The Nineteenth Amendment, which gave women suffrage, and the Twenty-Sixth, which lowered the voting age to 18 in both federal and state elections, ought to erase the age and gender limitations of Section 2 as originally adopted.) Today’s Democrats, who have every reason in morality and politics to provide a remedy for both disenfranchisement and gerrymandering, ought to make doing so one of their first priorities if this election goes well for them.

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Come Home! (An Open Letter to American Workers)

For brief descriptions of and links to recent posts, click here. For an inverse-chronological list with links to all posts after January 23, 2017, click here. For a subject-matter index to posts before that date, click here.

Dear Working Americans,

I’m a guy who’s been self-supporting ever since his sophomore year at university at age 18. I installed towel bars in dormitories until I got a break from someone who saw my talent and let me work with my head. On scholarships and fellowships, and working besides, I ended up with a Ph.D. in physics, no debt, and money in the bank.

Few like me could do that today. Why? Republicans have taken away free higher education and “privatized” our safety net. Most of the head-starts I had in life they’ve converted into for-profit businesses to make some oligarch rich. And they tell us this generational theft is all for our own good.

After a lifetime of hard work, I’m comfortable and secure in retirement. I’m a paid consultant to nobody. The only axe I have to grind is hating to see them deprive you and your kids of the chances I had to build a good life. That’s just not right. It’s not American.

I can’t stand to see how shrunken and battered our middle class has become. I can’t stand to see the country I love divided more bitterly than ever since our Civil and Vietnam Wars. I can’t stand to see you fighting among yourselves and cheering and voting for a party that has hung you out to dry for forty years.

Just like the Democratic Party, I’ve always understood that this nation rose to greatness on the backs of workers like you. But in my 75 years, I’ve seen you become an ideological punching bag. I’ve watched bosses and their Republican backers strip you of unions, worker solidarity, basic legal protection, the “safety net,” and the good jobs with dignity that you deserve. I’ve watched them push relentlessly to kill Social Security, Medicare and Medicaid, for no good reasons but that these things cost the bosses money and reduce their power over you.

Then, in a final blow, I’ve watched you forced to compete with desperate peasants from China and Mexico. Our country has left you to rot like peons in the third world, and it did so deliberately. (We’ll get to how later.) But isn’t the real question who’s going to fix all this?

The superb free education I got from a once-great nation gave me some insight. I can see how we got here from there. I want to tell you how and how I think we can get back.

Unions. Say you want a raise, a few weeks’ paid break to bond with a newborn, or some masks or plexiglas shields at work to protect you from Covid-19. How do you get them? You’ve got to ask the boss.

And what will the boss say? He’ll say he’s so sorry, but he can’t do it. If he does what you ask, he’ll have to do it for others. That will raise costs. And competition is sooo, sooo fierce out there that raising costs will kill his business or cut his profit.

Suppose you ask someone like Jeff Bezos, the boss of Amazon. His managers will tell you that Amazon has well over a million employees like you. His shareholders will begrudge you every dollar you ask for, which will end up costing them more than a million. They’ll make you feel small and insignificant and sorry for asking.

So how can you improve your lot? There’s only one way. You can band together with others like you. You can form unions. You can make your just and sensible demands together. And the bosses will have to listen, suffer strikes or slowdowns, or replace their entire labor force at once, as Reagan did so disastrously with the Air Traffic Controllers.

That’s what things were like in my youth. Every few years, our whole nation held its breath while the United Auto Workers sat down with the “Big Three” car makers and worked out a deal. After these talks, auto workers improved their pay and working conditions as auto sales and profits grew. Their success bled over to other industries and other workers.

Those were great days for workers. Most had good homes, two weeks or more of vacation, good and steady jobs, and a middle class life. Many even had a boat to enjoy on a nearby lake or the ocean on weekends and holidays.

Now all that’s gone because the bosses busted the unions. Union membership, achieved at great pain through decades of struggle, is at a postwar low. Private-sector union membership has declined steadily, from its peak of 35.5% in 1945 to a rate of 6.6% in 2012. [Click on “Read Full Report” and scroll down to graph.] It’s even lower now.

How did the bosses do it? Their first trick was moving their plants to so-called “right-to-work” states in the South. There bosses had gotten used to abusing workers since slavery. Southern “red” states have been making it harder and harder to organize and finance unions for decades. Then they invited foreign bosses to build new plants that would hire only non-union workers.

Not surprisingly, the non-union plants had lower costs. So car plants and other factories started moving South, big time. It was a great regional development plan. But it rode on your backs. It left company towns in the upper Midwest reeling, with leaves blowing through empty factories. And it left workers in the South standing naked against their bosses, as union membership plunged nationwide.

Globalization. The second way the bosses busted unions was so-called “globalization.” When they thought that workers here were asking too much, they simply moved their plants abroad, to China or to Mexico. There workers are much poorer and more desperate. They’re eager to work for less pay and under harsher conditions. To put it plainly, the bosses sold your jobs to foreign peasants and your factories to foreign lands for greater profit.

At the same time, the bosses also “imported” millions of workers from Mexico. They did so to fill backbreaking, undesirable, low-paid jobs on farms and in slaughterhouses, restaurants and hotels.

Illegal immigration. Many, if not most, of these immigrants were and are undocumented. Eleven million still are today. Ronald Reagan wanted to give them “amnesty,” using that very word, and eventually to make them legal.

Although Ronald Reagan wasn’t with the bosses’ program, eventually the bosses got the Republicans under control. Keeping low-wage workers undocumented is a way to dominate them totally. If José even starts talking about unions, his boss picks up the phone, calls ICE, and has him deported. He’ll be gone in a day. If Maria picks up a picket sign, the same.

Keep these scut-workers undocumented, and they’ll never make trouble or ask for a raise. If they do, ICE will deport them and solve the “problem.”

How do we know it works this way? Have you ever thought how easy it would be to stop illegal immigration cold in its tracks? Just fine the bosses five times their annual wage savings for every undocumented worker they hire, and then raid their plants to find and remove workers without papers. The job magnet would disappear overnight, and so would most illegal immigration. Undocumented immigrants don’t come here for fun or to disrupt American commerce; they come here for jobs.

But the bosses don’t want any such easy solution. The party they control just wants you to hate these poor workers, whom the bosses utterly dominate for fear of instant deportation any day.

There’s another reason we know this picture is true. Ever hear of César Chávez? He organized the United Farmworkers Union and got immigrant farm workers some relief. But he did it at a time when farm workers had a bracero program. They couldn’t become citizens or permanent residents. But they had temporary legal status to come into our country and harvest our crops.

As weak and temporary as it was, that legal status was enough to let the farm workers organize unions and improve their lives. The Republicans—the party of the bosses—didn’t like that. So the bracero program is history, never to be replaced. Republicans want these workers to be “illegal” so they are forever under their bosses’ thumbs. And they want you to hate these immigrants so you forget that they’re oppressed and forgotten just like you. Do you get it now?

Trump. And so we come to Donald J. Trump, our current president. What’s he done to improve your families’ lives? Nothing. He’s made a lot of noise, but what’s he actually done? See if you can name one simple, solitary big thing.

The Republican-led union-busting movement, aka “right to work,” had already moved your Midwestern plants and jobs South. Globalization had moved them abroad. These trends took decades to ripen, but now you’re really feeling the pain.

Unfortunately, these decade-long trends are not going to reverse overnight. It takes years to plan, build and open a new plant. And the bosses’ incentives are still all in the wrong direction. You know, or ought to know, about Lordstown and the Carrier plants, which took millions in government subsidies and yet moved net jobs to Mexico.

They’re just two among many. The job drain continues, now pushed to warp speed by businesses closing in the pandemic.

There is one way to create millions of new, good jobs in months, not years. That’s reworking our nation’s crumbling infrastructure. That means repairing, rebuilding and improving our roads, bridges, sewer systems, water systems, railways, air traffic control, and Internet backbone.

Most of this work can be done in the open air, with better protection against Covid-19. The engineers who know this stuff say we’ve got to invest 4.5 trillion dollars just to bring our infrastructure back to international standards, which we used to set.

Think of all the good jobs that money would create! Infrastructure rebuilding is an obvious, easy, quick and necessary way to create millions of good jobs, which can’t be offshored. It’s such a “no-brainer” solution to the job drain that I touted it in early 2017, two months after Trump’s inauguration.

But what’s he done about it, in nearly four years? Nothing. Talk and promises are cheap, but action counts. Trump could have put millions to work by mid-2017. Both parties would have jumped on board. But he squandered $1.5 trillion on tax cuts, which let billionaires pay a lower tax rate than workers for the first time in US history. So Trump spent his political capital and your tax money on the bosses and his cronies, because that’s where his heart lies.

Hate. As far as you are concerned, Trump’s all about hate. He wants you to hate undocumented immigrants, who live in poverty and fear instant deportation every day. He wants you to hate Black people, who are just trying to stop police killing them for little or no reason. He wants you to hate Dems and “libtards,” who’ve been friends of workers since the Great Depression, and who still stand for strong unions, a high minimum wage, and lower-cost health insurance and higher education for your kids.

But answer me this: does hate put food on your table? Does it create good, secure jobs? Does it improve school or day care for your kids? Does it get you better health care? Does it protect you from Covid-19?

Deep down, you know the answers. You’ve been conned. You’ve been tricked. Hate gets you nowhere, except deeper into the pockets of Trump and his oligarch friends.

And what about China? Whatever did China do to your jobs? Our bosses offered China your jobs, your factories and our technology on a silver platter, and China took them. Who wouldn’t?

Economists love to brag that globalization raised nearly a billion people out of extreme poverty, mostly in China. So China gained, big time, and our bosses made it possible. Our bosses also made it rich, big time. But everyone seems to have forgotten about you.

Even Trump. His across-the-board tariffs on steel, aluminum and cars won’t bring back your jobs. All they’ll do is increase the prices you pay for cars and anything that has imported steel or aluminum.

Trump thinks you’re stupid. He tells you China pays the tariffs. But China doesn’t. You pay them, in the form of increased prices for cars and things that use steel and aluminum. The tariffs go right into our Treasury, where they help reduce the national debt that Trump raised by giving tax breaks to himself and his buddies. Get the picture now? (There are some ways that finely calibrated “rifle shot” tariffs might help bring back jobs—in years, not months. But they would have to be much cleverer and more complex than Trump’s tariffs, and they’d require close cooperation from American investors, i.e., the oligarchs.)

The Dems. Trump and Fox have made you hate the Dems and your fellow workers. They’ve gotten you to want to “own the libs” and trash the Dems.

How have they done it? Well, Trump has told over twenty thousand lies in his not-quite four years in office. And Fox has entertaining blowhards like Tucker Carlson, who make you think you’re in the know and in the in-group.

But are you really? Fox is a private, for profit, money-making business. Its paid blowhards like Carlson make millions, in part by making you angry. That’s their job. Its owners are the Murdochs, a family of Australians, who became billionaires after their patriarch, Rupert, got Congress to make him a US citizen in a so-called “private bill.”

So Fox has given you lots of anger and lots of pride. But where are your jobs? Where are your factories? Where is your health care? Where is your coverage of pre-existing conditions? Where is your kids’ affordable college? Where are the unions that made you strong?

All these things are gone or, in the case of health care, going. They are nowhere on Republicans’ radar screen. Republicans offer you nothing but promises and lies. Carlson and his fellow blowhards are laughing at you, all the way to the bank. They’re laughing at you the same way Trump scorned the men and women who died securing our freedom, calling them “losers” and “suckers.” Think they might be misleading you?

Ever since FDR, the Dems have stood for things all workers need. They’ve stood for good pensions, Social Security, Medicare, Medicaid, and health care as a right, not a privilege of the well-off. They’ve stood for higher minimum wages, and more affordable public education. Most of all, they’ve stood for strong unions so that you and all workers can help yourselves. That’s why your parents and grandparents mostly voted Democratic, in a “straight ticket,” as a matter of reflex.

Dems have been the workers’ party since FDR’s New Deal. Republicans have been the party of bosses ever since Reconstruction turned into lynching and Richard Nixon’s “southern strategy” plunged the “party of Lincoln” into Southern bossism. Nothing about this has changed in the last four years. Only Trump has changed, becoming the trickiest con-man ever to set foot in American politics.

The Clintons. The Dems’ dirty little secret is that the Clintons sold you out. Bill drank the Kool-Aid of globalization, and he drank it deeply. He gleefully promoted and signed the banking bill that led directly to the Crash of 2008. He did so even after a real Democrat, Byron Dorgan of North Dakota, warned of exactly what could and did happen. Hillary gave secret speeches to Wall Street for big bucks and called many of you “deplorables.”

But the Clintons are gone. They are history. Joe’s last name is not “Clinton.” Nor is Kamala’s.

Joe is a working-class pol who rode the train from D.C. to his home in Delaware every night so he could put his kids to bed. He never commuted by limousine. You can trust him, and you can trust Kamala, who rose from modest beginnings fighting sexism and racism every step of the way.

Conclusion. The Dems are baaaack! They are real Dems once again. So come home, workers! Come home to the party that cares for you and has stood on your side for nearly a century.

Dems stand for stronger unions, good, secure jobs, better wages, and universal health insurance. They stand for covering pre-existing conditions, with no extra cost, and they have a plan to do that. It’s called “Obamacare,” aka the “Affordable Care Act.” It’s also called “Medicare,” which Joe and Kamala want to make available at age 60, then lower.

Dems stand for bringing good jobs back. Unlike Trump and the GOP, they have plans to do that, which they won’t just talk about. The plans are infrastructure rebuilding and energy conversion.

If Dems have to go into deficit, the loans will create millions of jobs for workers like you, rebuilding and improving roads, bridges, and air traffic control. It won’t go for tax cuts for billionaires.

Other money will pay you to install solar arrays and windmills, and to connect them in a smart grid to make their power less intermittent. This work will bring control of electric power back down from big corporations right into your neighborhoods. Renewables don’t use huge, pollution-belching plants: solar arrays and windmills are local.

So wise up. Dems and “libtards” are not your enemies. They’re on your side. They don’t want to trick you into hating anybody, far less even people hurting more than you. They just want to make your jobs and lives better, your families stronger and our country more united.

The choice in this election is clear. You can go on believing the garbage that Fox and the GOP spew because it makes you feel stronger and in control. You can go on hating people who have done you no harm, are fellow sufferers and even have your best interests in mind. Or you can follow the Dems and their policies, which will make you be stronger and better off, and our nation more united.

Your choice. But whatever you choose, be sure to vote. Our nation will never get better or more equal with close to a third of us sitting on the sidelines. The more workers vote, the more we all win.

Yours in solidarity,

Jay

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Mano a Mano Won’t Improve Your Life: the Last 2020 Debate

For brief descriptions of and links to recent posts, click here. For an inverse-chronological list with links to all posts after January 23, 2017, click here. For a subject-matter index to posts before that date, click here.

This godawful campaign seems to drag on forever. Trump is like a bad knee or hip that has delivered nothing but pain for years. Just put me to sleep and replace it! Please!

So let’s cut to the chase. The last Biden-Trump debate was much better than the first and only one, which could hardly have been worse. Trump showed some uncharacteristic self-discipline—something he’s almost never shown in his presidential “leadership.” You could even conclude, if you cut Trump some slack, that last night he stuck to the rules. The young moderator, Kristen Welker, did a great job of keeping things mostly fair and civilized, with the help of a “microphone kill switch,” at least for some longer statements.

Who won? No one won on fact-based points. As is his wont, Trump was more aggressive, but he also lied more. He put Biden on the defensive for his long-ago support for minimum sentencing for drug offenses. But Trump lied about his own performance in the pandemic, the value and cost of windmills and solar arrays, Trump’s supposed beneficence to Black people, and the effects of his romance with Kim Jung Il. As always, his self-praise came in the form of gilded generalities, like his claim that no one since Lincoln had done more for Black people.

Biden made no major errors. When the moderator so directed (twice), Biden addressed his answers to the audience, while Trump stayed on the attack. Biden scored big points in understanding “the talk” that Black people give their kids to make them less likely to be killed by police, and again in emphasizing his working-class Scranton roots and concern for kitchen-table issues. But late in the debate, Biden also pulled an Al Gore by glancing at his watch; God help us all if that small, futile gesture has the same effect as for Al Gore.

All in all, I doubt the debate will make a difference. Biden outshined on empathy and character, and no voter who values those attributes will budge. Trump performed his cultivated role of attack-dog-in-chief. His devotees who crave a crude champion are not renowned for fact-checking. So insofar as concerns the actual election, the debate was probably a draw.

But the debate did raise an existential question for American democracy. Is this any way to run an election in the twenty-first century? How much of what a president actually does while in office consists of making and answering oversimplified charges, under tiny, completely artificial time limits, all alone on a stage with no advisers, background, briefing papers or reasoned discussion?

Nothing a president does in office is anything like that. Making policy, whether by legislation or regulation, takes months or years. A whole phalanx of cabinet members, advisors, legislators, experts and lobbyists considers the questions from every angle, writes reports and analyses, and delivers oral advice in endless meetings. Even in the Situation Room, with monitor screens showing hundreds of Russian nuclear missiles incoming, the President has his Joint Chiefs, his Secretary of State, and many other officials to advise him and correct errors. And even then he has up to fifteen minutes to respond.

No, the debate format is an obsolete verbal form of jousting, a holdover from the medieval days of knighthood, when peronal valor, aggression and trickery actually mattered because the king often led battles in person. It has about as much relevance to skill in actually running a modern government as putting the candidates in a boxing ring would.

It’s long past time to find better ways for voters to inform themselves and decide. How candidates fare in a verbal mano a mano has little or no relevance to their ability to improve your life if they win. If nothing else, the four-year agony of Trump’s presidency so proves.

That said, some of Trump’s lies may have hit home with his base, or even with the rare-as-a-unicorn undecided voter. So they merit a quick and steady response from Biden’s campaign.

First and most important, Trump lied profusely about energy. He lied about Biden’s stance on fracking and natural gas and about the benefits and problems of solar arrays and windmills. Biden’s campaign must refute these lies as often and as vigorously as it takes.

In particular, Biden’s campaign must convince voters that: (1) Biden supports fracking everywhere but on federal lands (to preserve our parks and wilderness there); (2) he knows that natural gas is the best and least polluting transitional fuel; (3) we are solving the intermittency of wind and sun with regional power grids, batteries and other energy-storage devices; and (4) all of the above, without exception, will provide new, good jobs that pay as much or more than extracting fossil fuels and that are infinitely cleaner and safer than drilling for oil or digging for coal. In Texas, for example, Biden could do worse than quote the late oil buccaneer T. Bone Pickens, who wanted to invest a trillion dollars in Texas wind and said, “I have the same feelings about wind as I had about the best oil field I ever found.”

Making these points is job one if Biden hopes to win Texas, Pennsylvania, and Ohio, let alone North Dakota or West Virginia. His campaign must acquaint voters with the realities of our age: (1) fossil fuels are obsolescent and running out; (2) natural gas is by far the cleanest and best transition fuel; (3) both natural gas and renewable energy will provide millions of good-paying, clean and safe jobs for the foreseeable future; and (4) all of the above will spread the good jobs around, including to small towns and rural areas, because natural gas and renewable energy are scalable and local or easily distributed.

Second, Biden must have better answers to Trump’s bogus charges that he and Obama did nothing for eight years, especially on health care and pandemics. A large part of the reason for inaction was scorched-earth obstruction on Republicans’ part. Another big part was the extreme-libertarian philosophy among Trump’s GOP. Do you really want to give your aunt, uncle, grandparents, teachers and co-workers Covid just to show how macho and “free” you are?

If Biden wants to avoid the same obstruction again, he must win the Senate on his coattails. So he’d better start showing, with chapter and verse, how Republican ideology has killed jobs, undermined our national competitiveness, and created an atmosphere in which wearing something as simple and cheap as a mask is anathema. Tell that to China, Japan, Singapore, South Korea, and Taiwan, all of which have fought Covid far more successfully than we, and with little more than masks, testing, good leadership and good citizenship.

Joe Biden is a good, smart and decent man. Unlike Trump, he will read his briefing papers, trust his Cabinet and his experts and govern by consensus, except when the experts are closely divided and he alone must decide. He knows what he doesn’t know, which is far more than Trump knows. Biden also understands from long experience how complex and potentially divisive are all the huge problems will still must solve.

But in piling up an unquestionable lead, Biden may have lost ground last night. Mano a mano is not his forte: he’s a problem solver, not a fighter. Nor should fighting be a requirement for any president of a nation and an economy as minutely diversified and specialized as ours.

Twitter has accustomed our voters to making life-or-death decisions based on one-liners. So the Biden campaign has some work to do to win over states like Arizona, Florida, Georgia, North Carolina, South Carolina, and Texas, let alone the upper-midwestern states that narrowly put Trump in the White House.

That work is vital if Biden is to win the 400+ electoral votes that he and Trump’s gross unfitness deserve, and that our nation needs to see to real change and to heal its wounds. This battle won’t be over unless and until Trump concedes (and probably flees abroad to avoid the noose inexorably closing around him.) So let the good work accelerate relentlessly until he hollers uncle.

Personal Endnote: I was actually recovering from a shoulder replacement on election day 2016. I awoke from anesthesia only to find that Trump was president-elect. I had considered scheduling replacing my other shoulder this election day, so I could awaken to the nightmare’s conclusion, but I’ve already missed that cutoff.

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Tipping Points

For brief descriptions of and links to recent posts, click here. For an inverse-chronological list with links to all posts after January 23, 2017, click here. For a subject-matter index to posts before that date, click here.

“At cusp, choice is. With choice, spirit grows.”—Robert A. Heinlein, Stranger in a Strange Land (1961).

Global warming
Mass extinction
The pandemic
Gender awakening
Nondiscrimination
Conclusion

Human life has many tipping points. All in unison, they are rising to meet us now—a phalanx of phantoms challenging us to tip in the right direction before it’s too late.

There’s a tipping point in global warming, past which our planet’s climate may become unrecognizable and partly uninhabitable. There’s a tipping point in global biology. Past it, our current “Holocene” geological period could slide into a mass extinction caused not by a big meteor, but by our own species’ acts. There’s a tipping point in fighting the pandemic, past which it can rage unchecked, at least until the next tipping point. As I write this, the United States is entering the third such tipping point.

There’s a tipping point in gender relations. Tip one way, and our “weaker” sex goads us to get more cooperative and civilized. Tip the other, and we slide down toward the sort of macho male tyranny that has dumped every human civilization, so far, into history’s dustbin. In the nuclear age, that slide could end in self-extinction, as almost happened once already, in 1962.

There’s a tipping point in humanity. Tip one way, and our nation’s “prime directive” of nondiscrimination gets more real. Tip the other, and we Americans slide further down our present slippery slope toward split-up or national self-destruction.

With differing time scales, all these tipping points are at issue in our presidential election. The choice, if not the actual direction to tip, is just two weeks away. Let’s analyze.

Global warming. The tipping point here is real and ominous. We just don’t know precisely when it will come.

The cause is a phenomenon well-known to scientists and engineers: positive feedback. Melting ice removes a big heat sink: it takes eighty times the energy to melt ice as to raise the resulting water’s temperature a single degree Centigrade. Once the melting has happened, the heating accelerates. Melting ice also reduces our planet’s reflectivity (albedo), causing solar radiation to heat us more quickly. Melting permafrost releases methane from ancient decayed forests into our atmosphere, with a greenhouse effect over twenty times that of carbon dioxide. Warming oceans cause deep-sea methane hydrates to dissociate, also releasing methane.

All these phenomena are real and happening. We just don’t know exactly how fast. Positive feedback is nonlinear, like the “amplifier screech” that comes too fast even to cover your ears.

We can measure melting ice with satellite photos. But the rest we can only guess at. Our planet is a huge, complex place. Nearly all the permafrost is in sparsely populated areas that are hard to reach and even harder to work in. And the deep-sea methane hydrates are in the least accessible and least-studied places on our planet—the deep oceans. We may be able to reach every part of the Earth’s surface, but there are still many important parts we just don’t know.

Our scientists are ever cautious, ever humble. They don’t speak unless and until they have good measurements. But measurements of the effects of feedback—global average temperatures rising—all show an exponential rise. And recent experience confirms it.

The unknown is not the exponential rise, but the exponent. Analogies are scary. A similar vicious cycle of carbon-dioxide and methane release—this one triggered by nature, not human causes—may have ended the last ice age with a 30 degree Fahrenheit rise in global average temperature, in mere decades.

We don’t yet know when, whether and precisely how that might happen to us. But it’s entirely possible. Yet this time it’s not volcanoes and other geological forces that are the trigger: it’s stuff under our collective control. This time we have time, but not much, to choose which way to tip.

Mass extinction. You can learn all about the coming mass extinction in a recent Netflix film by David Attenborough, the British explorer, naturalist and public intellectual. He’s 93 years old, and he published the film as his life’s “witness statement.” It documents the coming mass extinction of species that our own species is starting to cause even now.

The mass extinction is deeply intertwined with global warming as cause and effect. But our profligate burning of fossil fuels is only one of many causes. There are also the destruction of habitat, the razing of forests, the draining of wetlands, the exhaustion of surface water, poisoning by pesticide and herbicide, and the positive feedback of these and other phenomena on global warming.

Then there are subtler adverse effects. One is replacing the glorious diversity of nature with the monocultures of plants and animals that we grow to eat. Here the Irish Potato Famine of the mid-nineteenth century is instructive: a monoculture of potatoes for food decimated Ireland, causing a famine and a mass exodus, after a lowly potato-killing fungus struck.

As the Irish Potato Famine shows, the coming human-caused mass extinction could affect us. Some—even many—of us might survive. But our biosphere would be irreplaceably less diverse, nutritious, resilient to shocks of climate and disease, and glorious.

A world with nothing but us, wheat, rice, beans, cattle, chickens, pigs and edible fish would be a sordid and dreary planet. But that’s precisely where we’re headed if we don’t turn back soon.

The pandemic. By now, the trend is crystal clear. The most disciplined cultures are beating the disease: China, Germany, Japan, Singapore, and South Korea—even tiny New Zealand. The “freer” cultures are lagging, even Britain, France and Spain. The most macho cultures—Brazil, the US, and Mexico—are doing the worst of all.

The reasons are also clear. We have no cure. We have no vaccine. Some drugs help keep sick people from dying or shorten their hospital stays and delay their deaths. That’s all.

So the only way we can fight the pandemic now is with common-sense practical measures. They include Tom Frieden’s “three Ws”: wear a mask, watch your distance from others, and wash your hands. Each step requires discipline. Yet discipline is in short supply in cultures where “freedom” approaches license and often devolves into anarchy.

What about coordination and cooperation?

Once, as a seismologist, I had to remove salamanders from a cave containing a delicate instrument. My technician and I had only a bucket at hand. So we loaded the salamanders into the bucket and carried them outside, bucket by bucket, trying not to hurt them in the process.

Whether through temperature or temperament, the salamanders stayed passive during this process. They didn’t run. They just crawled slowly over each other, trying to rise to the top of the bucket and out. Occasionally, when hurt, one cried out.

While watching our nation respond to the pandemic, I thought of those salamanders. I thought of them as our fifty states crawled over each other to procure PPE, test kits and ventilators. I thought of them again as private companies crawled over each other to hawk their research projects and their incipient drugs—not just to fight a deadly disease in concert and save their neighbors, but for profit. Sometimes I also recalled that marvelous chorus from Handel’s “Messiah,” the one whose text is “We, like sheep, have gone astray -ay -ay, every one to his own way.”

None of what we need right now is rocket science. It’s not even advanced medicine or biology. While we wait for advanced science to take the time to do things right, what we need is simple discipline to follow through with practical measures. We need leadership, and we need people willing to follow a good leader.

Of all the tipping points in this essay, this is by far the easiest one to tip right. But it will take more than just electing Joe Biden. It’ll take a national epiphany.

We don’t need premature “herd immunity,” which the experts tell us will take half a million deaths to achieve. We just need to understand that this is not a political game, and that we are all in it together. It really is that simple: are we a nation, or are we salamanders in a bucket?

Gender awakening. Not all tipping points threaten catastrophe. Some promise progress or enlightenment. Our gender awakening is one of those.

Last Sunday the New York Times devoted its entire Sunday Review to the case against Donald Trump. Under the heading of “End Our National Crisis,” the Times’ Editorial Board catalogued Trump’s feats of corruption, lawbreaking, norm-breaking, incompetence, malfeasance, obstruction, treason, vengeance and retaliation. Although at much greater length, the enumeration resembled the “whereases” in our Declaration of Independence, which recited the sins of King George III against American colonists. It was the first time that the venerable “gray lady” of journalism had published anything of the like about a sitting president.

Funny thing about that. If it weren’t for women—if it weren’t for our huge and growing “gender gap”—Trump would most likely win again. He might go right on doing what he’s been doing, with even less discipline and greater abandon. After almost precisely a century, women’s suffrage may be our best or only bulwark against tyranny and losing our Republic.

Why now? Why not sooner? Why did it take a-near collapse of decency, competence and democracy, plus 215,000 unnecessary deaths (and counting), with much more of the same on offer, to bring our women into their own politically? Why does Angela Merkel’s Germany just now lead the world in national contrition for past atrocities and practical solutions to global warming (with Germany’s globe-leading “Energiewende”)? Did it take the horrors of history’s most terrible aggression and most devastating loss, plus the Holocaust, for Germany to recognize the virtues of our “weaker sex”?

Today testosterone, not enriched uranium, is the most dangerous substance in the Universe. It promotes aggression and risk taking. On the African savannah of our species’ birthplace, those were important attributes. They let the strongest male and the strongest tribe survive to pass on their genes. They led, ultimately, to our species’ domination of our small planet.

But what now? We humans have outrun our biological evolution. The things that most threaten us are not things that aggression and risk-taking can solve. To face global warming, mass extinction, nuclear proliferation, and the worst (so far) in a chain of modern pandemics, we need cooperation, empathy, solidarity, and good planning.

Although not exclusively, those are largely female traits. So the rise of female leaders is no longer just a matter of equality and equal treatment: it’s a subconscious recognition among our entire species that female attributes have survival value, now more than ever before.

Our much faster social evolution must adopt those values at warp speed if we are to survive and preserve the biosphere in which we evolved biologically. More to the point, the immediate survival of American democracy, and perhaps of democracy globally, depends on female leadership and female awakening. It depends on women awakening to their power and their duty to their species and on men awakening to their value as leaders.

That awakening may become a tipping point in the dismal story of incessant human conflict and resulting misery. It can’t happen fast enough.

Nondiscrimination. Another tipping point with positive effect involves our national credo. That’s the simple notion that we should treat all our species equally.

This notion is truly revolutionary. It directly contravenes our biological evolution, which involved small tribes and clans fighting on the African savannah. With few important exceptions—our Civil War, for one—every war in human history has been a tribal conflict. Every genocide or attempted genocide, including the Holocaust and the genocides in Armenia and Rwanda, has been a tribal atrocity.

As our weapons and technology reach toward self-extinction, the part of our biological evolution in which clans fought each other for territory, food and females to procreate has outlived its usefulness. It threatens to destroy us now.

Why is the United States the “shining city on the hill” and a super-magnet for immigrants? Sure, it’s big, relatively new and powerful. But why aren’t global migrants now flocking to China, which is bigger, nearly as powerful and rising more rapidly? Maybe it’s because the Chinese, like the fictional Borg, don’t respect minorities but try to “assimilate” them by force and cultural domination.

The US’ secret of success is different and very, very simple. We’re the first nation to make forsaking tribalism a national policy and to put it in writing.

Our Civil War was practically unique in human history. It was a major war within a tribe, of mostly Anglo-Saxon whites, to recognize another tribe, that of Black slaves, as equal human beings. It was a war to end tribalism in the form of extreme racism.

Along with our War of Independence, which was also an intra-tribal war, our Civil War was fought almost entirely on our own territory. Even today, with World War II and Vietnam fading in our rear-view mirror, combat deaths in our Civil War are comparable in number to those of all our other wars put together. We Americans have literally bled for equality.

But that’s not all. Following our American penchant for putting things in writing, we did so with our rejection of tribalism after our Civil War. We adopted our Fourteenth Amendment in 1866, shortly after the Civil War, and ratified it in 1868. Its Section 1 reads in part as follows: “No state shall . . . deny to any person within its jurisdiction the equal protection of the laws.”

The phrase “any person” is very broad. It contrasts with a more limited reference to “citizens” in preceding clauses. It’s broad enough to exclude every limitation by tribe. (Note that our Senate’s official summary is simply wrong on this point. Whether this is an honest mistake or Republican propaganda I leave to the reader to decide.)

So our Fourteenth Amendment—enacted as a result of our most horrific war—is a commandment not to discriminate. Full stop. Its text is broad enough to abjure discrimination not only on the basis of race, but also on the basis of gender, national origin, religion, and sexual preference or identity. It is our national credo. Its promise and its mere partial realization are what keeps migrants coming to us, despite all the horrors and lawlessness that Trump can throw at them.

Unfortunately, the spirit is willing, but the flesh is weak. Even the letter of our supreme law doesn’t always make it into practice. One Founder wrote that “all men are created equal” but owned slaves. Apparently he didn’t see females as worthy of equal treatment.

So we have spent the last century and a half drifting and backsliding. Except for Lyndon Johnson’s civil rights laws and the election President Obama, we have let the Old South’s “lost cause” myth beguile us. We still have an east coast highway named after Jefferson Davis, the Confederacy’s traitorous president. We still have monuments to traitors who fought to break up the Union so they could keep slaves. And we still have police who treat—and even kill—Black citizens as if they were slaves.

Does Germany have avenues labeled “Adolf Hitler Strasse”? It did, but as far as I can tell from a quick Google search, they all have new names. Their signs are museum pieces and memorabilia. So modern Germany seems to have done, in less than eighty years, what we Americans have failed to complete in over 150—throw out the symbols of tribalism and expunge the vestiges of discrimination.

Yet our own awakening has begun. It started with the Women’s March in 2017, reportedly one of the biggest mass demonstrations in US history (and also third biggest in global history). It exploded after the murder of George Floyd, following a dozen earlier unjustified killings. The resulting demonstrations, which included millions of outraged white people, show a universal urge to make our national credo real. Truly, it is time.

Conclusion. Body surfers know about timing. You stand or float in the water, facing offshore, watching and waiting. If you’re too late to swim furiously, the wave will pass you by. If you catch it badly, a roller may flip you over, pummel you, and hold you down on the sea bottom until the force of its crashing subsides. But if you catch it just right—even a roller—you can enjoy the drop down just ahead of its might. Then you can ride the “soup” all the way to shore. Timing is everything.

Our tipping points all have different time scales, wildly different causes, and different menaces and/or opportunities. But they all have one thing in common: they all come to a head in the narcissism, obstinacy, ignorance, incompetence, hate and lunacy of one man: Donald Trump. Defeating him decisively will not stop the tipping. But it’s the right time to catch the wave of revulsion against him so we can all do what’s right.

Republicans are clever. Just like Donald Trump, they’re out for themselves. But they’ll tell you—with an oh-so-serious face—that cutting their taxes will get you jobs. They’ll say that cutting the rules that make your workplace, food and drugs safe and your air, water, and soil clean will make everybody better off. They’ll tell you that throwing Obamacare away will be good for you, and that they’ll insure your pre-existing conditions some time, some way, in the great by-and-by.

They’ll tell you, just like Trump, that they’ll make America great again and bring your old jobs back. But they haven’t and they won’t. They waved the flag and blandished promises of infrastructure building, which can’t be done in China or Mexico and could bring good jobs back home. But then they spent the infrastructure money on tax breaks for themselves and stock buybacks for their corporations, throwing a few pre-gnawed bones to working families as “proof” of their sincerity. Their promise of infrastructure building remains unfulfilled and even unplanned.

They even built private media empires to propagandize workers. They made workers pay to be propagandized, through advertising that increases the prices of what workers buy. They put on blowhards like Rush and Tucker to entertain workers while brainwashing them. And they’ll shake workers down for every penny in their pockets, their kids’ pockets, and their grandkids’ pockets.

They’ve done this for forty years, making greed a national value. And they’re much better at being greedy and sneaky than the average worker.

But this time they overreached. This time, they put up and stood behind the crookedest, greediest, most corrupt, meanest, craziest, most bigoted and dumbest national capo in our entire history.

While trying to boost “his” stock market, he downplayed the pandemic. In the process, he helped kill 215,000 of us and counting. He has yet to show us any way out but letting the disease rip. Yet when he got the plague himself, he took a cocktail of experimental cures that only he could get. Meanwhile, he has cursed, insulted and belittled almost everyone who isn’t a white, male Christian from Norway, or who hasn’t swallowed his excrement whole.

The resulting wave of revulsion, disgust and outrage can take them all down.

We don’t want to miss that wave. We don’t want to stand in the receding, polluted water, waiting and hoping for another wave to take us home. We want to ride this wave all the way to shore, where we can face our physical challenges, invest in our women’s wisdom, fairness and sense of decency, and make our national credo real at last. The only way to do that is for everyone who can to vote for Joe Biden, Kamala Harris and every Democrat as if life, livelihood, liberty, equality, and our species’ future depended on it. They do.

Endnote: the Breadth of American Equality. There has been some controversy. about our Fourteenth Amendment, but its language is crystal clear. Here is the entire text of its key Section 1:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The last clause, prohibiting discrimination by any state, applies to “any person within its jurisdiction.” Its coverage is self-evidently broader than “citizens” as defined in the first clause and protected in the second. There is no hint at any limitation, other than being human and within a state’s legal power.

This is where “textualists” ought to diverge from “originalists.” A strict textualist ought to be conscious of the drafters’ care with language. Since the phrase “any person” contains no hint of limitation by race, gender, national origin, religion or sexual preference or identity, a strict textualist ought to conclude that the Fourteenth Amendment protects everyone from discrimination under state law.

An “originalist” like the late Justice Scalia and Judge Barrett might say that’s not what the Fourteenth Amendment’s drafters “intended.” Their target, like that of the Civil War, was race alone. But that’s not what they wrote, and that’s not what Congress passed and three-fourths of the States ratified. As the rest of Section 1 suggests, the drafters were perfectly capable of writing “a person of any race” instead of “any person within its jurisdiction.” But they didn’t. (Section 2 of the Fourteenth Amendment, an apparently toothless attempt to reduce representation by the proportion of freed male slaves deprived of their franchises, did, by implication, limit voting rights to males, as was customary at that time, long before women’s suffrage.)

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The Perils of “Originalism”

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“[I]f our Constitution embalms inflexibly the habits of 1789 there may be something in [the litigant’s] point. But it does not; its grants of power to Congress comprise, not only what was then known, but what the ingenuity of men should devise thereafter. . . . [W]e interpret it by the general practices of civilized peoples in similar fields, for it is not a strait-jacket, but a charter for a living people.” — Judge Learned Hand, Reiss v. National Quotation Bureau, 276 F. 717, 719 (1921). [Many law professors revere Learned Hand as one of the wisest judges ever not to ascend to the Supreme Court.]

Like most modern Supreme-Court nominees, Judge Amy Coney Barrett is expert at ducking questions on how she might rule. She even ducked a question about climate change, saying it’s “politically controversial.”

Note that qualifier, “politically.” That’s an expert hedge from an expert in dodging.

Without that qualifier Judge Barrett would have been telling a bald lie. To a constitutional scholar, which she purports to be, it would have been a super lie. Why? The largest supermajority in our Constitution is three-quarters—the fraction of states that must ratify a constitutional amendment. But the consensus among scientists that global warming is real and caused by burning fossil fuels is much bigger. As our own NASA summarizes online, that consensus exceeds 97%.

So there’s no “controversy” among scientists. They invented the terms climate change and global warming to summarize the consensus among literally thousands of separate scientific studies. The only “controversy” arises from the vested monetary interests of Big Fossil and its owners and users. In refusing to answer a question directly, while self-evidently relying on those vested interests to generate “controversy,” Judge Barrett was in fact giving us all a strong hint of her personal predilections.

But that’s not what scares me most about her. It’s her absolute commitment to “originalism” as the way to apply our Constitution. What does “originalism” mean? It means interpreting our Constitution according to our Founders’ “original intent.”

Even in the abstract, there are enormous problems with this conception. They run the gamut from epistemological, through logical and moral, to practical.

First and foremost, how can we possibly “know” our Founders’ intent? All the things that make our lives infinitely easier, richer, safer and more secure than theirs did not exist in 1791, when they ratified our Constitution. They include the obvious, like cars, airplanes, trains, computers, radios, television, and the Internet. But they also include the less obvious necessities of public health, including antibiotics, flush toilets, running water and (in the US) modern sewer systems. The very first vaccination took place in England in 1796, five years after our Constitution became our Supreme Law.

Then there are the things that threaten our lives and safety, such as nuclear weapons, chemical and biological weapons, automatic and semi-automatic firearms, and accidents involving cars, trucks, planes, trains and modern industrial machinery, including Amazon’s warehouse robots. Today we are suffering a global pandemic which could not have occurred without the speed and ubiquity of planes, cars, trains, etc.

How can we “know” what our Founders “intended” about these things? None of them existed in their times. For some—including nuclear weapons, radio, television, automatic weapons and the Internet—their very conception lay centuries ahead.

The honest answer is that we can’t know what our Founders thought about them because they didn’t think and couldn’t have thought about them. They simply didn’t exist.

“Originalists” say it’s enough to know the Founders’ values, i.e., their morality, from their writings inside and outside the Constitution. But here originalists are being inconsistent with the rules of their profession.

Context is everything in the law. By explicit constitutional command, judges don’t make law in the abstract, i.e., legislate. They decide “Cases and Controversies.” That means they “rule” only against a background of specific facts and circumstances established at great length in a trial.

That’s why, as Barrett repeatedly ducks questions, she refers to all the facts and evidence that she would have at hand as a Justice, after reading records of the trial below and decisions of lower appellate courts. So how can we “know” how our Founders would have thought about all these things in the absence of any possible directly relevant facts?

That’s the epistemological rap against “originalism.” But it gets worse. Our Founders lived at a time when breech-loading a musket or pistol took the better part of a minute. What would they think about then-unimaginable automatic weapons that can kill dozens of people in that same short time? How can we possibly know now?

A modern soldier in a kevlar vest and helmet, bearing a modern automatic weapon with a high-capacity magazine, could have slaughtered a whole platoon of our Founders’ “irregulars” in the time it took them to load and fire a second round. Would the Founders have written the Second Amendment the same way if they knew what was coming over two centuries later? How can anyone even ask that question with a straight face, unless they believe in seances or otherwise communicating with the dead?

Here we transition to the logical and moral. Yes, our Founders enshrined important values in our Constitution. But they didn’t tell us how to balance them when they conflict.

Our First Amendment says that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .” But our Fourteenth Amendment, adopted after our bloodiest war, says that “No State shall . . . . deny to any person within its jurisdiction the equal protection of the laws.” This is a straightforward nondiscrimination principle. Note that it applies to “any person,” not just citizens, apparently regardless of gender, race, ethnicity, national origin or sexual preference/identity.

How do we reconcile these two seemingly unambiguous commands when a state official claims her religion requires her to discriminate, for example, against homosexuals who want to marry?

If we go by common rules of statutory construction, nondiscrimination would trump free exercise. Why? The Fourteenth Amendment was adopted later, i.e., more recently. It also helped resolve the bloodiest war in our entire history—and the biggest war ever fought predominantly on our own territory—so it ought to have extraordinary force.

Perhaps these simple rules should not apply to a conflict of values so fraught with social, political and religious discord. But then what? Do we really want to probe the “intent” of our long-dead Founders, in whose time same-sex marriage lay as far in the future, even in concept, as nuclear and automatic weapons, gene sequencing and kevlar vests?

“Originalists” claim that searching for “original intent,” however elusive its expression may be, is better than judges applying their own personal policy preferences. Maybe.

But that’s a false dichotomy. There’s a better third way. How about simply considering cause and effect, and whether the likely effects of a decision are, on balance, more positive or negative?

Again, take letting homosexuals marry. Letting them marry may affront others’ religious beliefs. But that’s a purely abstract, mental harm. It’s largely in the eyes of the beholders. Same-sex marriages don’t directly affect anyone else’s lifestyle, income, welfare or health. Others can still believe that homosexuality is voluntary and immoral. They can still think, speak and preach that way. They can still run their families that way, even disowning homosexual progeny. So direct “harm” to them, if any, is all in their minds.

On the other hand, allowing same-sex marriage has a number of positive benefits to the people directly involved. It leads to happier, more stable, loving relationships. It allows same-sex couples the same hospital visitation rights and the same rights to pass on their property after they die as everyone else who is married. It thus makes property disposition at death simpler and more efficient. In so doing, it relieves an entire class of people of unnecessary anxiety and worry. It signals their acceptance as people by their government and their communities. And it eliminates the cost, delay and expense of a lot of otherwise unnecessary lawsuits over inheritances.

Another practical benefit of same-sex marriage relates to the population bomb. At a time when an exploding global population threatens not just our environment, but (through global warming) our entire civilization, same-sex marriage doesn’t usually create more children and thus more mouths to feed. Instead, it absorbs otherwise unwanted children, through adoption by stable, two-parent, same-sex couples. (It’s always puzzled me that much the same people who abhor abortion also abhor same-sex marriage. Doesn’t adoption by happily married same-sex couples solve at least some of the problem of unwanted children without aborting them?)

We can decide which of two conflicting constitutional values prevails by projecting cause and effect intelligently. Of course that method is not infallible; nothing in human reasoning is. But it deals with real life in the here and now, and in the likely future, not back in the eighteenth century. Our alternative is to scour the historical records for scraps of Founders’ letters and excerpts torn from the Federalist Papers that push one way or the other, thereby trying to squeeze modern thoughts about then-non-existent realities into long-dead Founders’ heads.

Which method is more practical? Which is likely to lead to greater collective happiness, John Start Mill’s “greatest good for the greatest number”? Which method gives judges more ways to hide their own personal policy preferences? You decide.

For me, the essence of “originalism” is complete faith in Scripture. It’s the notion that what “Special People”—in this case our Founders—said or wrote long ago is the last word, and all else must follow from the surviving traces of their long-dead minds. It’s the odd notion that “serious thinking stopped there.” It applies the same methods to our most fundamental law that fundamentalist Christians apply to the Bible, or the Taliban to the Q’uran. It looks backward to a dead scene held in stasis in the vain hope of avoiding the most salient reality of human life: constant change.

Of course the Constitution’s words matter. When they alone are decisive, there can be no argument. But cases don’t reach the Supreme Court if the Constitution’s text is clear and decisive. When they do, there is usually a conflict between fundamental constitutional values, like the freedom of religion and nondiscrimination in our example above. When that happens, the most honest and effective way to balance the values is to assess cause and effect for each alternative against the specific background of facts in the case or controversy before the Court.

When King Solomon raised his sword to split the baby, he wasn’t looking backward toward Scripture. He was looking forward to the baby’s life. He had conceived a neat psychological trick to determine who the real mother was, after concluding that the baby would be happiest in her family. Even today, our family courts honor that sort of practical reasoning in assessing “the best interests of the child.”

That’s the kind of wise practicality we should expect from those who sit on our Supreme Court. “Originalists” won’t produce it. Instead, they’ll pass the buck to long-dead Founders and an earlier age, reserving every chance to hide their own conscious and unconscious biases among the minutiae of history. The best you can say about that approach is that it will provide full employment for judicial clerks whose forte is historical research, rather than practical cause and effect and the needs of real people.

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