No, the Second Amendment Does Not Guarantee a Right to Armed Revolution

In the contemporary debate on the meaning of the Second Amendment, proponents of gun ownership rights refer to two fundamental natural rights arguments to justify the ownership of firearms: 1) the natural right to self-defense; 2) the natural right of revolution. The former has been endorsed by the Supreme Court in District of Columbia v. Heller and McDonald v. Chicago. The latter is merely hyperbolic rhetoric in the real debate on gun control which must be put to rest once and for all.    

You can see only the first of these two natural law justifications in the prefatory clause of the Second Amendment: “[a] well regulated militia being necessary to the security of a free state” and the operative clause: “the right of the people to keep and bear arms shall not be infringed.” The Second Amendment articulates a right to self-defense and preservation of life and liberty both as a collective and an individual sense, both as a member of a "well regulated militia" and as "a people." A person has a constitutional right to bear arms for the common defense as a member of a well regulated militia, and post-Heller and McDonald, as an individual.

              To understand the Second Amendment, one must look to the Constitution's other references to the regulation of militias in Article I and Article II. The states ratified the Second Amendment and its guarantee for the people to “to keep and bear arms” and raise a “well regulated militia” only four years after the Constitutional Convention authored Article I – which gave Congress the authority to “raise and support Armies” and to “provide and maintain a Navy.” Article I § 8, also authorized Congress “[t]o provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions” and 

“[t]o provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.”

In the Commander in Chief Clause Article II, the Constitution authorized the President as “Commander in Chief of the Army and Navy of the United States, and of the Militias of the several States, when called into the actual Service of the United States.” 

            In each and every one of the references to the “Militia” or “Militias” in Articles I and II, the plain meaning of the text of the Constitution is that the Founders envisioned a concomitant regulation of the militias. The states would be able to train their own militias and appoint their own officers to maintain law and order in their respective states, but Congress and the President would be able to call upon the militias to maintain federal laws, suppress insurrections and repel invasions. Surely the Second Amendment forbids the militias or the people from engaging in insurrection or invasion of the United States, because the Second Amendment right to form a state militia exists so that the militias can quell insurgencies and invasions.

Read the Second Amendment again. Nowhere in the Second Amendment does it say that  the the well regulated Militias of the several states – let alone each the people – have a constitutional right to take up arms against the United States government.

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. 

            Clearly, the Founders wanted to explicitly protect the states’ rights to field their own militias as central to the defense of the Republic. Historians attribute James Madison’s inclusion of the Second Amendment in the Bill of Rights as an overture to the Anti-Federalists who were concerned that the new federal government would disband the state militias – concentrating all military power in the hands of the federal Army and Navy. The Second Amendment was written in the aftermath of the American Revolutionary War, at a time when the Articles of Confederation was incapable of preserving the security of the Republic from British, French, or Spanish invasion, the Massachusetts militia was incompetent to quell Shay's Rebellion (1786-87), and white settlers in the Virginia frontier and Ohio Territory were engaging in low-level warfare with the Native American tribes.

           Massachusetts needed a militia because when Daniel Shays and his fellow agrarian revolters shut down the Commonwealth courthouses in Northampton and Springfield, the Boston mercantile class could not count on the toothless Articles of Confederation government to maintain law and order. Governor John Bowdoin had to organize a private militia. Just a few years after the ratification of the Second Amendment, President Washington would quell the Whiskey Rebellion (1791-94) by commanding militias from Pennsylvania, Maryland, Virginia, and New Jersey. States on the border needed to have militias because the Commonwealth of Massachusetts and the British Colony of New Brunswick both claimed parts of what is now Northern Maine, Georgia and Spanish West Florida both claimed what is now Alabama and Mississippi. The settlers needed to keep muskets to defend their outposts from Lenapee and Kickapoo raiders. The right to bear arms as a member of a militia - if not as an individual - was “necessary for the security of a free state” because there was still an impending fear of subversion of the fledgling Republic to foreign monarchs and domestic insurrections, and the Founders wrote the Second Amendment to protect the right to self-defense independent of the United States Army and Navy.           

            However, the natural law Second Amendment-thumpers must dispense with the notion that the “right of the people to keep and bear arms” was ratified as an additional layer of checks and balances; i.e. the right of the people to defend their natural liberties from an overbearing United States government. Such an argument is directly contradicted in the text of the Constitution itself. Article I gives Congress the authority to federalize the state militias to “suppress Insurrections and repel Invasions.” Article II gives the Commander in Chief supreme command over the Army and the Navy as well as the militias when called to service. The difference between the Army, the Navy and the militias is that Governors can call the militias into service too to quell riots and fight forest fires, they are only federalized with explicit Congressional or Presidential invocation of their Article I and Article II powers. Nowhere in the Constitution or anywhere in the minutes of the Convention or the correspondence between Jefferson and Madison and Adams and Hamilton is there any inkling of an idea that the state militias can check the authority of the federal courts or the U.S. Army or Navy.

             Moreover, the Constitution explicitly prohibits any U.S. citizen from bearing arms against the United States. The Treason Clause in Article III defines the crimes: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” Without a doubt, the Second Amendment prohibits the people or the militias from levying war against the United States - the rare federal crime actually codified in the text of the Constitution. The Confederates who took up arms against the Union seven decades later were traitors, they were guilty of a crime which could be punishable by death upon the testimony of two witnesses or confession, and conviction in a federal court of law. If the Michigan Militia were to use their arsenal of AK-47 and M16s and seize an armory from the Michigan National Guard, that would be an act of treason. 

            Conversely, the notion that Madison included the Second Amendment in the Bill of Rights as a last layer of defense of civil liberty in case the federal government exceeded its authority is without sufficient corroboration. There are some fragments of quotations from Jefferson and the New Hampshire Constitution which might seem to convey such a natural right to revolution against governmental power, but even the most committed Originalist cannot possibly argue that a bloodthirsty quote from Thomas Jefferson unincluded in the text of the U.S. Constitution trumps the text of the Treason Clause in Article III. The Founders were concerned about the risk of consolidated federal power, but they were even more worried about mob rule.

So what if there is a natural right to revolution against tyrannical governments more fundamental than the Second Amendment? The Declaration of Independence surely espouses this radical notion, and this is why so many Americans tend to smile upon decolonization movements and armed uprisings against brutal dictatorships in Kosovo, South Sudan, Libya, Syria, et al. In instances where a genocidal regime wages war against its own people and threatens the very existence of an entire nation, most Americans look to the universal promise of the Declaration of Independence and sympathize with the inherent right of the people to rebel against an oppressive government.              

            But that has no bearing on perceived slights to liberty within the realm of the U.S. Constitution. If you think that income tax rates are too high or that the Affordable Care Act takes away your right to not have health insurance, you can agitate for change within the proper channels: you can run for office, you can vote in state and federal elections, you can mount a challenge in a federal court. But the Second Amendment does not give you a means to redress your grievances by armed force. No matter how much you disagree with a law, the Constitution provides for avenues to peacefully challenge the laws within the institutions of law and democracy – not by brute force. The Second Amendment says that a well regulated militia and the right of the people to bear arms is “necessary to the security of a free state” – but that free state is the United States of America.

Are the Proposition 8 Challengers Overplaying their Hand?

 

With the recent news that the Supreme Court has granted certiorari to a bevy of same-sex marriage cases; including Hollingsworth v. Perry, it looks like 2013 is already promising to be a landmark year, politically and doctrinally. With the cases before it, the highest court has the potential to entirely do away with all civil marriage laws in every state and the federal government which discriminate against gay, lesbian, bisexual, and transgender Americans. However, many same-sex marriage proponents remain fearful that it might be too soon to go to the courts because if any or all of these cases backfire and the Court upholds any one of those laws, America might be stuck with a noxious Bowers v. Hardwick-like precedent for a generation. If the Supreme Court were to write an opinion considering and rejecting a constitutional right to same-sex marriage, that could prove calamitous to any future suits challenging state marriage laws in the federal courts.

To understand where the marriage equality movement now stands, now, at the end of the year 2012, same-sex marriage is the law of the land in 9 states and the District of Columbia. A lesbian couple can walk into any City Hall in Massachusetts, Connecticut, Iowa, Vermont, New Hampshire, New York, Maine, Maryland, Washington State, and Washington, D.C. and successfully apply for a marriage license, their marriage is recognized as valid according to their state agencies and those of some (but not all) other states.  

 However, despite the gay marriage insurgency over the past eight years, there is still plenty of work to be done. In 41 states, LGBT Americans are still denied the right to marry, in 36 states they can’t even get a civil union. According to federal government agencies like the IRS, the Federal Housing Administration, and the Veterans Administration, all those marriages in Boston and Seattle and Des Moines have never happened. Thanks to the federal Defense of Marriage Act, the federal government treats a married couple like legal strangers, and uses it to deny the approximately 1,100 federal rights and responsibilities afforded to couples in civil marriage.

Enter Hollingsworth v. Perry. Originally Perry v. Schwarzenegger, then Perry v. Brown, this is the celebrated case by brought by Ted Olson and David Boies challenging California’s Proposition 8, the 2008 ballot initiative which California voters approved to ban same-sex marriage by constitutional amendment. Olson and Boies consider this to be the civil rights issue of our time (rightly so), and they see the potential for this case to result in a Supreme Court decision establishing a constitutional right to same-sex marriage, striking down each and every Defense of Marriage Act in every state in the Union. Judging by their prior writings and public pronouncements, it seems that there might be four Justices (Ginsburg, Breyer, Kagan and Sotomayor) who might be likely to support such a bold declaration for gay marriage rights. Though Justice Kennedy waxed eloquently in his majority opinions in Romer v. Evans and Lawrence v. Texas about the “dignity deserved by gay men and women”, it is unlikely that Kennedy might take such a striking pronouncement in this case because there are plenty of ways that the Court can make a decision leading to the nullification of this repugnant amendment without answering the fundamental question. 

First of all, the Court can deny the defendants standing, because Governor Jerry Brown and Attorney General Kamala Harris refuse to defend Prop. 8 – it is being defended by the coalition of anti-gay activists who organized the ballot number. Generally speaking, this is not very kosher – states have to defend their laws if they are going to appeal to the Supreme Court. If SCOTUS decides to reject the appeal on these grounds, or remand it back to a lower court and allow only the State of California to appeal, and the State refuses, then Prop 8 has already been struck down by the federal district court and the Ninth Circuit Court of Appeals. The effect would be that gay marriage is legal in California once again.  

More likely, the Court might make a very narrow ruling overturning Prop 8 essentially echoing Judge Stephen Reinhardt’s opinion in the Ninth Circuit decision. Judge Reinhardt, ever cognizant of the politics of the Court and the fact that Justice Anthony Kennedy is the swing vote, wrote a decision which took pains to invoke Kennedy’s prior opinions in Romer v. Evans and Lawrence v. Texas. According to Reinhardt, the facts of this case mirror that in Romer; after some municipalities enacted ordinances banning discrimination against homosexuals, Colorado voters approved a ballot initiative which would prohibit any such anti-discrimination ordinances protecting the civil rights of homosexuals. In that landmark decision, Kennedy wrote that there was no basis for this referendum other than sheer “animus” against gay people; therefore, it failed basic rational basis review and was unconstitutional. Reinhardt also reiterated Kennedy’s emphasis on the fact that Coloradans had given gay people a civil right and then taken it away for no rational purpose – much like the present case in California. If consistency is a virtue, it appears most likely that Justice Kennedy would write the majority opinion or at least a controlling opinion along these lines. 

It is also possible that the four liberal Justices plus Kennedy might accept Olson and Boies’ argument that, lurking somewhere in the penumbras of the Fourth, Fifth, Ninth, and Fourteenth Amendments, the Constitution protects the individual’s fundamental right to same-sex marriage. Especially if you read Kennedy’s opinion in Lawrencev. Texas, which stressed that “[t]he petitioners are entitled to respect for their private lives” and that, therefore, “[t]he State cannot demean their existence or control their destiny”, it appears that Kennedy feels quite sympathetic to the fundamental injustice that is perpetrated against same-sex couples nationwide by governmental denial of their intimate relationships. If you read Justice Kennedy’s opinions in Romer and Lawrence, you cannot help but think that if it came down to it, he would gladly write the decision that establishes a constitutional right to same-sex marriage. 

 However, to do this would mean that – in one fell swoop – the Supreme Court would establish gay marriage across the entire United States, ordering the legislatures of every state and jurisdiction which has not already enacted such a law – i.e. Alabama, Alaska, Arkansas, Arizona, Colorado, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Jersey, New Mexico, North Carolina, North Dakota, Oklahoma, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Virginia, Texas, West Virginia, Wisconsin, Wyoming, and also Puerto Rico, the U.S. Virgin Islands, Guam, the Northern Marianas Islands, American Samoa, the Tribal nations, the U.S. Armed Forces, and the federal government to amend their family codes immediately. Marriage equality would reign supreme from sea to shining sea.  

However, there are reasons for such a bold move, both jurisprudential and political at this point in time. First of all, it seems that SCOTUS can affirm the Ninth Circuit’s theory as to why Prop 8 is unconstitutional without addressing the broader issue of whether or not the Constitution provides a fundamental right to same-sex marriage. According to the Doctrine of Ripening, the Court is an inherently conservative institution which ought to avoid constitutional issues if at all possible and to only address those constitutional questions which are absolutely necessary to the judicial review of a given law. In other words, the Court picks the lowest-hanging fruit. So long as the Court can strike down Proposition 8 for lack of standing or on the narrow Romer precedent, there is no need to reach for the lofty firmament of fundamental constitutional rights. 

Moreover, just imagine the political fallout if five (maybe six) Justices on the Supreme Court issue such a sweeping decision that allows LGBT Americans nationwide the right to marry.

For comparison, let’s compare status of legal same-sex marriage in 2013 to the status of legal abortion in 1973 – the year that the Court decided Roe v. Wade. When Justice Blackmun wrote that landmark decision, finding a fundamental right to abortion in the penumbras of the Third, Fourth, Fifth, Ninth, and Fourteenth Amendments, states had just begun to liberalize their abortion laws. In 1967, Colorado, Oregon, and North Carolina had paved the way for liberalizing the ban on abortion and allowing doctors to carry out the procedure in the case of rape, incest, and medical emergencies threatening the life and health of the mother. Only in four states – New York, Washington, Hawaii, and Alaska – was abortion outright legal.

 

So in 1973 when Justice Blackmun, by judicial fiat, declared abortion to be a fundamental right across the land, it energized the pro-life movement into a political behemoth not just in the Heartland but even in highly-Catholic, highly-Democratic states like Massachusetts, New Jersey, Illinois and Pennsylvania. Historians credit this decision with splintering the New Deal coalition, giving rise to organizations like the Christian Coalition and the Moral Majority, and the Christian Right’s takeover of the Republican Party. Roe v. Wade indirectly gave rise to 12 years of Reagan and Bush and the appointment of four conservative Supreme Court Justices – Scalia, Thomas, O’Connor, Kennedy – who tapered back Roe as far as they could. What was a stunningly progressive movement of liberalized abortion laws in the late 1960s and early 1970s – even in states like Kansas, Arkansas, Alabama, and Mississippi – stopped dead in its tracks. The pro-life movement and the growth of the Christian Right swung the politics of those same states swung so far to the right that, almost half a century later, it would be almost unthinkable that the legislatures in Topeka, Little Rock, Birmingham and Jackson could ever take such steps to advance human rights and the dignity of women on their own volition today as they did 40 years ago. 

So what would a sweeping decision in Hollingsworth v. Perry do to the movement for marriage equality? There are two schools of thought. 

The first hypothesis is that, like Brown v. Board of Education, Hollingsworth could establish a resounding opinion affirming the rights of same-sex couples that resolves this question once and for all. Every loving couple in not just San Francisco and West Hollywood but also Wichita, Caspar, Baton Rouge and Chattanooga would be able to go to City Hall and get their marriage license and live happily ever after. The End. 

The second hypothesis, which I fear is more likely, is that such a sweeping decision which changes the marriage laws of 41 states in one fell swoop creates an enormous backlash which sets back the cause of marriage equality, gay rights in a broader context – let alone liberal politics. Adam and Steve would be able to get their marriage license at the Montgomery City Hall, but there would be riots and lynch mobs outside. Maggie Gallagher and Brian Brown and Phyllis Schlafly would hold rallies denouncing “judicial activism” at the courthouse steps of every county seat in every Congressional district in the country. It would look like this all over Florida, Ohio, Michigan, Wisconsin, and Pennsylvania. Republicans would take back the Senate in 2014, in 2016 Marco Rubio would win much of the heavily Catholic industrial Midwest and Southwest, and President Rubio would nominate replacements for Justices Breyer, Kennedy, Scalia and Thomas who would make Robert Bork look like Leon Trotsky.  

In so many words, for Hollingsworth v. Perry  to establish a constitutional right to same-sex marriage nationwide, at this juncture in time, might counterintuitively be very, very bad for the marriage equality movement in the long run.

When it is most successful, social progress is a gradual process which reaps one small victory at a time until, eventually, one day people look up and realize that that once crazy radical idea has become the mainstream consensus. That is why this student of law and politics hopes that the Court makes a decision in Hollingsworth which finds Proposition 8 to be unconstitutional – though along the narrow Romer v. Evans-like grounds that applies only to California. Mince no words – Hollingsworth v. Perry would go down down in American history as one of the greatest – if not the greatest – courthouse victory for the gay rights movement thusfar. The population of the United States able to marry a person of the same sex would instantly double.

2013 might yet be the most fruitful year in the history of the marriage equality movement. It looks like marriage equality statutes will be victorious at the statehouses in Illinois, Hawaii, Rhode Island, and Delaware. The Colorado and Minnesota legislatures also appear to be poised to pass civil union laws. 2013  might end with a total of 14 states plus the District of Columbia with marriage equality, and civil union or strong domestic partnership laws in 5 others.

 

With the wind to its back, this is how the marriage equality movement has to turn the map purple: activists have to lobby their state senates, houses of representatives, and general assemblies to enact new laws and overturn state Defense of Marriage Acts one at a time, one by one until there’s something like 25 of them. At this rate, sometime around 2020 or 2025 there will probably be a majority of states, representing a clear majority of the population, with some form of either same-sex marriage or civil unions on the books. It’s only a matter of time.

 

When that time comes that the facts on the ground have shown that there is a consensus among the states and among the American people that allowing same-sex couples to marry is a matter of fundamental rights, and that those holdout states who are the outliers, then would be the proper time to go in for the kill. Only when it’s apparent that this new concept of a constitutional right to same-sex marriage has ripened and is ready to be picked will it be time for Ted Olson and David Boies to argue before the Supreme Court that a cute lesbian couple in Chattanooga denied a civil marriage license are being denied their fundamental rights guaranteed by the penumbras of the Third, Fourth, Fifth, Ninth, and Fourteenth Amendments. At that point, what is indeed a somewhat radical interpretation of the Constitution might look rather matter-of-fact.

Marriage rights advocates have their heart in the right place, but they (we) all have to be patient. As Dr. King once said, “the arc of history is long, but it bends toward justice.”

It’s only a matter of time until the map looks like this:

 

Some Constructive Criticism for the GOP in 2016

To: The Republican Party

From: A Liberal Democrat from New York

Subject: Some Constructive Criticism for 2016

As the Grand Ol’ Party is still smarting from last week’s Election Day whipping, trying to figure out just what went so horribly wrong, optimists ought to set their sights on put together a better campaign in 2016. As a rabidly liberal Jewish Democrat from New York, I might be the last person whom the RNC might look to for advice; I am not from a swing state, and I’m the kind of person the RNC has completely written off. But since I respect some conservative principles, and I see some inherent worth in the health of our democracy by having a viable Republican Party, I feel obligated to lend some frank advice. Judging by the extent of Republican losses last week, I might be the best kind of person to listen to.

New York is now taken for granted in the blue column, and Democrats control every statewide office in Albany. This one-party regime is a creation not so much because New York Democrats run a flawless operation - boy, are we flawed – as because the New York Republican Party has, as a whole, proven themselves to be a complete and total joke.

But it wasn’t always that way. For years, New York state politics was dominated by Nelson Rockefeller, the ultimate Establishment Republican, and we elected Peekskill Republican George Pataki to the Governor’s office three times. We sent moderate Republicans like Alfonse D’Amato and Jacob Javits to the Senate, Hamilton Fish and Sherwood Boehlert to the House. Even in New York City, the large majorities voted for Rudy Giuliani twice and Mike Bloomberg thrice. We liked these moderate Republicans because they promised to keep business booming and Wall Street roaring, to maintain law and order and make sure the trains ran on time. College-educated, socially liberal suburbanites felt comfortable pulling the lever for a Republican who would promise to advance civil rights laws, protect our water and air from pollution, and reform government from the taint of corruption. They were conservative – but not reactionary. There's a big difference.

But something went awry in the mid-2000s, when the New York GOP all but conceded statewide races to the Democratic Party. The breaking point came in the 2010 GOP gubernatorial race when New York Republicans were given a choice between Rick Lazio – a telegenic former Congressman from Long Island – and Carl Paladino – a Buffalo-area developer who reminded many people of their inexplicably petulant, kinda racist father-in-law with whom they struggle at every Thanksgiving to make pleasant small talk. Paladino railed against the “Mosque at Ground Zero”, chastised Andrew Cuomo for attending the Gay Pride Parade, proudly brandished his handgun in public and vowed to repeal the assault weapons ban. Paladino was a running punch line to jokes that didn't even need a set-up. But given the choice between Lazio and Paladino, GOP primary voters inexplicably gave their nomination to the right wing clown. Paladino was trounced 34% to Cuomo’s 61%; his showing was so bad that the Democratic candidate even prevailed in almost every Upstate county. The walking, talking fiasco that was Carl Paladino was an omen of the GOP’s nation-wide ills in 2012. You didn't heed it.

So what does that mean for the national Republican Party if they want to have a chance at the White House in 2016? Well, first of all, try fielding a candidate that could actually campaign in states like New York, New Jersey, Massachusetts, Illinois, and California. It's not that we're self-centered, it's just that we're almost half the population of the United States. So long as you give the Democratic Party 196 electoral votes for granted, you’re putting your party at a monumental disadvantage. Stop fielding such total losers.  

Speaking of total losers, fuhgettabout Paul Ryan. Mitt Romney didn’t lose this election alone – Paul Ryan lost it too. Though subscribers to The National Review might ogle and fantasize at centerfolds of the Ryan Budget Plan, its draconian cuts to popular social programs were anathema to just about each and every swing voter. Ryan was a drag on the ticket even more so because the “legitimate rape” fiasco extended to the Congressman – who had co-sponsored legislation with Todd Akin to narrow the definition of rape to only cases where violent force was used. This was not just a campaign “gotcha!” moment or guilt-by-association. Paul Ryan is a man who wants to deny victims of rape legal protections if their rapist subdued them with Roofies or psychological coercion - but didn't actually use violent force against them - because that wouldn't be a legitimate rape, in his co-sponsors words. Paul Ryan will never be able to disown this. Besides, Ryan went to lose his home state of Wisconsin by 4.6 points. Putting this loser on the top of the ticket in 2016 would be as bone-headed a decision as the Democrats choice to nominate Walter Mondale in 1984 after he and Carter got creamed four years’ prior. Why put yourself through this again?

Republicans are famous for giving their presidential nominations to the candidate who has waited patiently for his turn, usually the Vice President of two-term Republican administration (Nixon, Bush I) or the runner-up in the last primary campaign (McCain, Romney). According to that standard, the GOP’s 2016 nominee would be... (drumroll please)... Rick Santorum. Chew on that for a moment.

If you thought that this election was a disappointment, imagine how bad this day will be four years from now with Rick Santorum – or Rick Perry, or Newt Gingrich, or Michele Bachmann at the top of the ticket. It would be a 20-point washout. Hillary Clinton or Joe Biden would win Georgia, Arizona, Missouri, Montana, maybe even make competitive races in Alabama and Utah, Democrats down the ticket would win filibuster proof supermajorities in the Senate and House that would reign for a generation. If the GOP nominates any of 2012’s fire-breathing runners-up, they would be committing hari-kari and might as well just declare their retirement from electoral politics. Republicans had a real chance to win the White House and the Senate, and this band of nincompoops, through their own humiliatingly stupid, piggish conduct and - I'm sorry - their kooky beliefs about penises and vaginas, just cost you a perfectly winnable election. You do not owe them anything.

If the 2012 elections stand for anything, it is that Republicans who espouse retrograde views on race, ethnicity, gender, and sexual orientation are now forever doomed – even in Bible Belt states like Indiana and Missouri. If they have ever tried to minimize the pain and suffering of victims of rape, they're done. Toast. If the GOP puts up a “fresh face” like John Thune or Bob “transvaginal ultrasound” McDonnell, it will make little to no difference. Most swing voters, especially in Colorado, Nevada, and New Hampshire, are thoroughly libertarian on social issues. The Chamber of Commerce, laissez faire wing of the Republican Party needs to acknowledge that the Christian Right’s influence over a GOP candidate is now a veritable kiss of death in these pivotal states and that the nominating committees ought to heed the Scriptural admonition about putting new wine in old bottles.

It’s a good thing that smart conservatives were able to acknowledge that Romney ticket lost so badly in no small part because they had an abjectly awful showing amongst Hispanics, Asians, and – no surprise here – African-Americans. Take this moment to approach the Birthers and the Minutemen and Sheriff Joe Arpaio and other racists hiding in plain view and promptly throw them under the bus. The enormous turnout among racial minorities for Obama was not just because they were enamored with the first biracial President – it’s because they were also thoroughly turned off by the Romney campaign’s blatantly race-baiting tactics and much of the Republican platform. Seriously, for your own good, cut it out.

However, fielding a token member of a racial minority group such as Bobby Jindal, Nikki Haley, or Susana Martinez is no silver bullet to the Republican Party’s gaping, festering sore on matters of race. Some of the most hateful, bigoted comments in the 2012 campaign season came from none other than Herman Cain. People aren’t stupid, and we understand that for the RNC to go search for a dark-skinned candidate committed to spewing derogatory bile on illegal immigrants and food stamp recipients is just playing a game of tokenism. Voters can see through this charade. See, e.g., the electoral fate of Allen West, Mia Love. See, also, Alberto Gonzalez.

So if the Republican Party ever wants to see the inside of the White House again, they have to elect a moderate-to-libertarian conservative who promises competence, strong leadership, and greater fealty to working across party lines to solve America’s problems than to Tea Party ideology. A successful candidate must have some experience working in foreign policy or at least demonstrate enough interest in global affairs so as to go toe-to-toe with Hillary Clinton or Joe Biden for the title of Commander in Chief. A successful candidate pitching to professionals anywhere within commuting distance of a metropolitan area must be able to express genuine interest in improving public transit and not bash those who use it as some "subway-riding elite." He or she must be able to relate with families who are working their butts off to send their kids through college or young professionals struggling to pay off their student loans without deriding us as "snobs." It would help if that candidate hails from a fairly cosmopolitan state or at least has experience working together with racial minorities and immigrant communities with cultures unlike his or her own. It would help if that candidate is able to negotiate with union groups in a decidedly non-antagonistic manner, or at least show some sensitivity to working class concerns. The candidate must acknowledge that global warming is quite real, that it is man-made, that it is a threat to national security and that America needs to drastically overhaul our energy infrastructure to mitigate the threat of future Sandys and Katrinas. Unless the GOP can mature enough to satisfy the above, they will slowly atrophy into a regional minority party that can only win elections in the former Confederacy, the Mormon West, and the depopulating Great Plains.

¡Viva la Estadidad de Puerto Rico!

         

            Now that the long, drawn out 2012 campaign season has come and gone, we partisans have taken down our lawn signs and recovered from our Election Night hangovers, it’s time for the members of our democratic government to come together and implement the expressed will of the people.

First order of business: Puerto Rico. Yes, Puerto Rico.

 On Election Day, Puerto Rican voters addressed a two-part referendum on the unincorporated territory’s relationship with the United States government. On the first question, the voters first voted as to whether to keep the current status as an unincorporated U.S. territory, and then in the second question, whether to retain their status as a territory of the U.S., whether to declare independence, or to join the Union as a full-fledged state. It appears that more than 937,955, or 54 percent of the voters said “No” on the first question – indicating that they were discontent with the present territory status. Almost 500,000 voters chose to leave the second question blank, but of those who did vote, 805,155, or 61 percent of the electorate, chose statehood. For comparison’s sake, President Obama won 50 percent of the popular vote in the presidential election, and this has been interpreted as a broad electoral mandate. So 54 percent of the Puerto Rican electorate voting against the status quo, and 61 percent voting for statehood should be interpreted as nothing less than an unambiguous mandate for change.

Likewise, the voting returns showed another unambiguous mandate for change: Latino voters showed that they are abandoning the Republican Party in droves, not the least because they are alienated by the GOP’s increasingly vocal disdain for Latino voters. In the past three election cycles, the GOP standard-bearers have suffered in the past two presidential elections as their share of the Latino vote dropped from 40% for George W. Bush in 2004 to 31% for John McCain and 27% for Mitt Romney – all the while the Latino share of the electorate has soared. This cannot be explained away because law-and-order Republicans want to enforce immigration laws. Over the past few years, Republican demagoguery on this issue has taken a turn for the shrill and patently offensive; i.e. Arizona’s racial-profiling SB1070, even worse copycat statutes in Alabama, Georgia, and South Carolina, English-Only resolutions, calls for a Constitutional amendment to end birthright citizenship, “anchor babies”, Sheriff Joe Arpaio's prominent role at the Republican National Convention, etc. Latino alienation extended to GOP standad bearer Mitt Romney because he unabashedly pandered to these xenophobic forces to win his party's nomination. Exit polling data evinces that the GOP's alienation of Latino voters has not just been a phenomenon confined to immigrant communities; this trend has led thoroughly-assimilated Latino-Americans, and even Puerto Ricans – who are unquestionably U.S. citizens – to by and large reject the Republican brand.

Enter Puerto Rico. What with the Grand Ol’ Party’s post mortem soul searching, the Puerto Rican statehood plebiscite offers an opportunity for President Obama to work together with the Party of Lincoln on a major issue in what could be a rare moment of bipartisanship, and perhaps set a reconciliatory tone for a productive second term. The GOP ought to jump at the chance, not only because it is the right thing to do, but because supporting Puerto Rican statehood is the least that Republicans can do to set the record straight and demonstrate that they do support at least one Latino community’s quest to expand their rights as U.S. citizens.

            This is where all of the rest of us Americans come in. In order for Puerto Rico to join the Union and become the 51st state, the other 50 have to agree to that – not as individual states, but as a nation. According to Article IV of the Constitution, Congress has the power to admit new states the Union; Congress doesn’t have to admit states to the Union. It can, and it has rarely declined. Though America hasn’t admitted a new state to the Union since the admission of Alaska and Hawaii in 1959, the framework for doing so would be the Enabling Act of 1802, by which Ohio became a state. In order to admit a new state, Congress would likewise pass an Enabling Act which authorizes the people of a given territory to frame a constitution. There would also be some requirements for a successful candidate for admission: the people of the would-be state have to hold a constitutional convention to decide by majority whether to form a state constitution and a state government, and the state constitution must be republican (lower case R) in nature. Upon Congress’ acceptance of that constitution, the territory would be admitted to the Union as a new state, and its residents would gain all of the rights and responsibilities that his newfound status entails.

            Upon the official certification of the results of the Puerto Rican referendum, the ball will be in Congress’ court. This should really be a no-brainer. Congress ought to pass an Enabling Act immediately and unanimously. There is no question about population; with roughly 3,706,690 permanent residents, Puerto Rico would be the 29^th-most populous state – with more people than Iowa, Kansas, Mississippi or Connecticut. Unlike statehood for the District of Columbia, there is no suggestion that statehood would thwart the intent of the Founding Fathers. There is no question of loyalty; Puerto Ricans are already American citizens, they already serve in the military, and they vote in primary elections. Most importantly, a clear majority of Puerto Ricans have now exercised their franchise to signify that they want to be full-fledged members of the American experience.

            So far, the cause of Puerto Rican statehood has been most publicly championed by liberal Democrats like President Obama, and some of the very most populist members of the House: Bronx Representatives José Serrano and Nydia Velázquez, and Chicago Congressman Luis Gutíerrez. The onus is now on the Party of Lincoln to follow suite. When the House of Representatives voted on Serrano’s Puerto Rico Democracy Act in the 110^th Congress – essentially a symbolic resolution which supported the holding of the Puerto Rican plebiscite, it passed 223 to 189, with Democrats voting 184 “yeas” and 40 “nays”, and Republicans voting almost inversely, 39 “yeas”  and 129 “nays.” This was a grave mistake, and it ought not be repeated. This time, with Puertorriqueños awaiting an Enabling Act so that they can hold a statehood convention, the whole world is watching.            

The second island state could even be a fertile ground for Republican voters. Much of the predominantly Catholic population holds traditional views on marriage, sexuality, and abortion, and one of the main reasons why Puerto Ricans oppose statehood is that they do not want to pay federal income taxes. For the past four years, the office of gobernador was held by Luis Fortuño – a Scott Walker-type conservative who cut government spending, privatized public employee pensions, slashed personal income taxes by a half and corporate income taxes by a third, and joined Republican governors in calling for the repeal of Obamacare. Puerto Rico could be a real swing state – that is, so long as Congressional Republicans join their Democratic colleagues in passing an Enabling Act. If there is any meaningful GOP opposition to any votes on Puerto Rican statehood, expect it to create an indelible memory in Puerto Rican politics for generations.

What with the explicitly non-partisan nature of Puerto Rican statehood, this is truly Republican’s opportunity to lose. Unlike Serrano’s bill – which was really just a non-binding resolution – an Enabling Act in this next session of Congress would in fact pave the way for Puerto Rico to embark on the road to statehood. This is a roll call vote which will be watched very closely; it might very well be one of the most consequential votes for the political future of individual lawmakers’ careers but also for the viability of the Republican Party among Latino voters.

There simply is no viable rationale for any U.S. lawmaker to defy the express will of the Puerto Rican electorate. Even if lawmakers condition their support for statehood on the adoption of English as the official language, they indicate their latent prejudice against the Spanish-speaking population as being somehow un-American. See, e.g., Rick Santorum's ill-advised reservation that Puerto Rico “should comply with this and every other federal law – and that is that English must be the main language"; Rep. Dan Burton's insertion of language into the Puerto Rico Democracy Act expressing that “any official language requirements of the Federal Government shall apply to Puerto Rico”. Such insistence that Puerto Ricans speak English indicates these lawmakers’ ignorance of the fact that Puerto Ricans study English in every grade of public school. It also indicates such politicians' ignorance of the law; there is no official language of the United States, let alone a linguistic prerequisite for states’ admission to the Union. Louisiana became the 18th state in the Union as a bilingual Anglophone-Francophone state, and Hawaii became the 50th with English and Hawaiian as official state languages.

Any other argument for suppressing the will of this Election Day’s referendum would simply be grasping at straws. Because Puerto Ricans are already American citizens through and through, there is no question whatsoever about illegal immigration. Many Puerto Rican residents do not want to have to pay federal income taxes – but a clear majority of voters have expressed their consent to do so. With the next wave of reapportionment in 2022, some states will lose House seats and electoral votes to make way for Puerto Rico’s Congressional delegation – but those states would already be losing House seats and electoral votes to other states with faster-growing populations. Some mainland Americans have even expressed concern with violating the present symmetry of the 50 stars on the American flag – such a lame rationale for denying 3 million U.S. citizens their civil rights isn’t even worth a serious response.

So when the referendum votes are officially certified, and President Obama and Senate leader Harry Reid call for a Puerto Rican Statehood Enabling Act – and you can bet that Democratic Congressmen will be tripping over each other trying to be the original sponsor of this bill – the Republican Caucus in the House and Senate ought to follow suite. The GOP has to support Puerto Rican statehood not just because it’s the right thing to do, but it might be the first best opportunity for Republican officeholders to demonstrate that they are for expanding the rights of citizenship to a rapidly-growing Latino constituency. And once that door is open, perhaps the open-minded members of the Party of Lincoln might put bipartisanship and compromise back in their vocabulary and realize just how great it feels to be on the right side of progress on civil rights. This could be the harbinger of even greater legislative efforts to come. Maybe, just maybe, working together on Puerto Rican statehood might inspire enough Republicans to reach across the aisle and work with the President to pass an immigration reform bill that allows another huge swath of Latinos living and working in our country to realize their full potential as American citizens.  

 

Ought there be a Limit on Free Speech in the Subway?

The subway is a public forum of sorts; it is a place where people of all races, religions, and classes intermingle, where commuters read their newspapers, gripe about the weather, and sometimes even wade into vigorous debate about the grand issues of the day. Without a doubt, the subway is a part of the public sphere where speech is protected by the First Amendment – to a reasonable degree.  

        However, subway cars, platforms, stairwells and tunnels were built by cities to move people from point A to point B as quickly and safely as possible. Speech activities are not as protected on the subway to the degree that they are in the public square. Likewise, the New York MTA prohibits canvassing, soliciting, leafleting, blasting loud music, and any other sort of disorderly conduct “which may cause or tend to cause annoyance, alarm, or inconvenience to a reasonable person or create a breach of the peace.” And the unwritten rules of subway etiquette include that one ought to refrain from giving co-riders eye contact – let alone get up in peoples’ faces and egg on a fight.

Enter stage right the ‘American Freedom Defense Initiative' (i.e. professional Islamophobe author Pamela Geller) and (her) now-infamous “Civilized Man” ad hanging in certain New York, San Francisco, and Washington public transit stations specifically selected for their proximity to Jewish and Muslim communities.

 

              You don’t have to try very hard to connect the dots in Geller’s crude analysis. Geller all but explicitly proclaims: “Muslims are a bunch of savages”, or “Palestinians are a bunch of uncivilized sub-humans”; “Israeli Civilization is at war with them, so you should fight them too.” Why does she want to do this? Pamela Geller runs a blog Atlas Shrugs where she documents her thesis that all Muslims are violent “savages” and that Judeo-Christian White America ought to take the offensive against these undermenschen in a Clash of Civilizations. There is not enough sectarian warfare in the United States for Geller to make a convincing argument, so Geller stitched together a message unarguably intended to offend, to provoke vandalism, and to create for herself more opportunities to find photos of Muslims standing around, looking angry and menacing in your subway! Like the “Innocence of Muslims” YouTube video, this is a perfect example of trolling – the “Civilized Man” poster was made for the express purpose of pushing people to commit acts of violence.  

Not without ample justification, the New York MTA originally rejected Geller’s “Civilized Man” ads, citing the agency’s advertising policy which prohibits any advertisement “that demean(s) an individual or group of individuals on account of race, color, religion, national origin, ancestry, gender, age, disability, or sexual orientation.” However, Geller’s AFDI sued the MTA, pleading for a preliminary injunction to strike down the “no demeaning” standard.

               Quite consequently, the MTA had already been in the business of selling ad space to groups - including Geller's - advocating certain positions on the Israeli-Palestinian conflict. Witness the progress of the spillover of the Israeli-Palestinian conflict on US metro transit authorities over the past few years:

A pro-Palestinian group put this poster went up in Washington-area trains and buses in 2011. The policy objective of the above is radical by any standard. But of course this is political speech protected by the First Amendment. It’s even gosh darn polite.

Another pro-Palestinian group decided to push the envelope a little further.

This ad generated plenty of controversy in the New York metro region; the MTA received thousands of complaints, my local Assemblyman Robert Castelli made a push to get the MTA to take the posters down from Metro-North stations, reasoning that though “there is no offensive language in the message”, “by its very nature, it is inflammatory an directs a negative message toward Israel and her people.” The MTA didn’t budge. Some Zionist groups went berserk.

                Just like the legitimate debate over Israel and Palestine’s borders has been hijacked by racial extremists on both sides, Pamela Geller sought to throw a Molotov cocktail into the debate to extinguish all civil discussion. Completely bypassing reasonable dialogue on U.S. foreign policy, Geller appealed to the vilest of strategies in political rhetoric:thinly-veiled white supremacy.
 

Surely there is a difference between Geller’s ad and the prior two not just in perspective but also in tone and substance. The first two might be thought-provoking, particularly controversial. But the “Civilized Man” ad went out of its way to be offensive. Unfortunately/fortunately (depending on your perspective), that's not a distinction that the First Amendment permits the government to make.

 In American Freedom Defense Initiative v. MTA, U.S. District Judge Paul Engelmayer ruled for Geller, reasoning that the MTA had created a public forum, the MTA had sold ad space to pro-Palestinian groups, the MTA can’t engage in viewpoint discrimination and allow ads espousing one opinion and rejecting those of another. If the MTA is going to sell ad space, the state may not put its thumb on the scale of the free marketplace of ideas and allow one viewpoint but prohibit another. The majesty of the First Amendment entails that if the city is going to grant the NAACP a permit to parade in Central Park, it has to also grant a permit to the Aryan Nation.

                Moreover, the MTA “no-demeaning” rule was only applicable to language demeaning of members of the enumerated groups, and thus it was not narrowly-tailored to meet any justifiable end. As Engelmayer reasoned, according to the MTA rule an advertiser would be perfectly free to state “Southerners are bigots”; “Upper West Siders are elitist snobs”; “Fat people are slobs”; “Blondes are bimbos” or “Lawyers are sleazebags” – language demeaning of certain classes of people – so long as it did not demean classes of people on the basis of race, religion, gender, sexual orientation, etc. The MTA policy regulated the content of speech in a way that was not inconsistent with the First Amendment. The ads went up last month.

              In American Freedom Defense Institute v. WMATA,Pamela Geller waged a slightly different lawsuit against the Washington-area public transit authority, which refused to put up her “Savage” ads not for demeaning language but for security reasons. WMATA lawyer Philip Straub invoked the then-still-ongoing mob violence and terrorist attacks on U.S. diplomatic personnel aroused by the “Innocence of Muslims” YouTube video. He even cited the Department of Homeland Security, which had notified the transit authorities that such an ad could increase the threat of terrorism in the Washington metro. According to Straub, DHS advised WMATA that the “Savage” ad “could not be displayed in our system until passions have cooled somewhat.”

Straub also argued that they agency could reject the “Civilized Man” ad under the “fighting words” doctrine. It is not difficult to see how Geller’s ad can be interpreted as falling into this category of “fighting words.” As Justice Frank Murphy articulated the exception to the First Amendment in the classic case Chaplinsky v. New Hampshire:

There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words which by their very utterance inflict injury or tend to incite an immediate breach of the peace.

Referring to Palestinians/Arabs/Muslims as “savages” is unarguably insulting, profane and libelous. But Geller did much more than that – but she called for subway passengers to side with Israel in the war against those “savages”. How ought we engage in such ethno-sectarian warfare against the “savages”? The AFDI’s innuendo-filled call to arms is reminiscent of the anti-Tutsi propaganda Radio Mille Collines’ broadcast during the Rwandan genocide; it came in coded phrases; “Cut down the tall trees!” and “Exterminate the cockroaches!” The ad doesn’t give explicit instructions – it doesn't say "Punch a Muslim!" or "Graffiti a mosque!" it lets its readers come to their own conclusions.  

In the end, U.S. District Court Judge Rosemary Collyer granted the American Freedom Defense Institute’s request for a preliminary injunction on the grounds that the WMATA’s fear of mob violence in the DC Metro was too vague and speculative. According to the Brandenburg Test, the government cannot restrict speech unless it carries:
1. the intent to incite violence;
2. the violence must be imminent; and
3. there must be a distinct likelihood that the speech will proximately cause violence.

Geller’s ad fulfills the Intent element, but even though the Department of Homeland Security had feared the possibility of terrorist reprisals, the mere fact that that the transit authority feared that someone could be whipped into violence was insufficient grounds for censorship.  

In the wake of these rulings, the transit authorities of New York, DC, and elsewhere are posed with a quandary; so long as they sell ad space along subway tunnels and the sides of buses, is there any way or the state agencies to regulate content without running afoul of the Constitution? According to Judge Engelmayer and Collyer’s decisions, say the local Neo-Nazi organization wants to put up a recruitment poster saying “Those greedy, hook-nosed shysters took your job and took your house. Take one of their silly hats!” Suppose the Klu Klux Klan wants to put up ads saying: “Those lazy bums are mugging you and stealing your hard-earned tax dollars to buy crack and grape soda. Fight back!” Is the MTA powerless to resist?  Must our trains and buses become receptacles for the absolutely most scurrilous vitriol? Do we subway commuters have to participate in this sociological experiment against our will?

In response to the federal court decision, the New York MTA board adopted by a vote of 8-0 a new policy banning any advertisement that the MTA board “reasonably foresees would imminently incite or provoke violence or other immediate breach of the peace.” Essentially, the new rule would ban “trolling” in the limited public forums of subway ad space.  

But when is speech “trolling”? It’s hard to lay out scientific parameters, but society has caught wind of the subset which gets its perverse kicks by throwing out incendiary words just short of being “fighting words” per se. Indeed, the sine qua non of trolling is that it doesn’t explicitly exhort the masses to commit murder and mayhem, but it drives right up to that line of sowing hatred and provoking violence with full knowledge that that is enough to achieve the intended result. And just before a troller actually becomes a co-conspirator in the violence which will foreseeably ensue, the yellow-bellied bastards tweak their speech just enough so that it is protected speech and they can hide behind the aegis of the First Amendment. Trolling is rather amorphous, inherently vague and difficult to define – but it is certainly identifiable on a case by case basis. Like how Justice Potter Stewart defined pornography, “I know it when I see it.”

Harvard Law Professor Alan Dershowitz immediately cried foul at the MTA’s new anti-trolling rule.  “A. it’s clearly unconstitutional” he said, and “B. it incentivizes people to engage in violence. What it says to people, is that if they don’t like ads, just engage in violence and then we’ll take the ads down.”

I’m afraid that Dershowitz might be right on this one. According to Brandenburg v. Ohio, the government cannot punish even inflammatory speech unless that speech is directed to inciting, and is likely to incite, imminent lawless action. Even if Geller’s“Civilized Man” ad or Bacile’s “The Innocence of Muslims” were created with the express intent of inciting Muslims to violence, even if a violent reprisal is reasonably foreseeable, it’s very difficult burden for the state to prove that any such violence is both likely and imminent. Because it is indeed carefully threaded so as to comply with constitutional law, trolling might be just as much protected speech as is picketing a military funeral or burning an American flag.

So the sad fact of the matter is that Pamela Geller is like a bad case of anal warts – polite society might not have any effective remedy to make her go away, and we’re going to have to learn to live with her uncomfortable, obnoxious presence. Part of the deal of living in a free society is that we have to tolerate ideologues of intolerance, whether they be the Klu Klux Klan, the Aryan Nation, the Thirteenth Tribe, or the American Freedom Defense Initiative.

The silver lining is that even though Pamela Geller and her cohorts of hatemongers may have won their First Amendment case, it’s a very Pyrrhic victory. In winning the right to put up the “Civilized Man” poster, now the ‘American Freedom Defense Initiative’ has only won the opportunity to compete in the marketplace of ideas. And their ideas are losing. Big time. Mainstream liberal and even conservative Jewish voices including Rabbi Richard Jacobs – the leader of the Reform movement, the Jewish Federation, the Anti-Defamation League, et al., are unanimously horrified by how low Geller has stooped in her so-called “pro-Israel” advocacy. Pamela Geller may have won the battle to put up her racist placards, but in doing so, she’s really helping the Jewish Right lose the war for the hearts and minds of America’s Jewish youth. When self-proclaimed defenders of Israel denigrate Palestinians as “savages”, and make crude appeals to “civilization” i.e. white solidarity, they have lost an entire generation of American Jews. Thanks to this “Civilized Man” ad, showing just how race-baiting and fear-mongering “pro-Israel” advocacy can be, many Jews are probably going to be much more wary of the Jewish Right and its Willie Horton-like scare tactics.
 

When the dust has settled, it looks like Geller’s foray into the marketplace of ideas may just completely backfire. The ruckus over the despicable “Savage” ads are encouraging fair-minded Jews to speak up, to call out Islamophobia and racism amongst our own ranks, and we're much less scared of advocating for for a sane, peaceful diplomatic policy in the Levant for fear of being labeled "anti-Israel." When I read the literature of America’s new voices, I hear calls for a new identity of Jewish Americans based on tolerance, reconciliation and peaceful relations with other faiths and cultures. Most important of all, Pamela Geller may have inadvertently highlighted the imperative for civil negotiations over the Mideast conflict, leading to an independent Israel and Palestine, living together, side by side, in security and in peace. 

Renegade Mali Soldiers Pledge to Step Down, Feign Magnanimity

         

It appears that the Malian political crisis has come to a crest.

The AP reports:

     Capt. Amadou Haya Sanogo emerged from his office inside the military barracks that has served the de facto seat of government for the past 16 days, ever since he and his men stormed the presidential palace, reversing over two decades of democratic rule.

Flanked by the ministers of neighboring nations, he read out the accord, which states that under Article 36 of Mali's constitution the head of the national assembly becomes interim president in the event of a vacancy of power.

"In the event of the vacancy of the president of the republic for whatever reason, or due to any absolute and definitive impediment," Sanogo said, "the functions of the president of the republic will be exercised by the president of the National Assembly."

In theory, Sanogo will abdicate to Dioncounda Traoré – the National Assembly President who fled Mali when the coup began, and until now was hiding in Burkina Faso.

            Insofar as resolving the political crisis of existential proportions, this development is certainly a welcome one. If Sanogo actually lives up to this agreement and abdicates power, it appears that Mali’s democratic government, as established in the 1992 Constitution, will hold at least titular power. It appears that ECOWAS will drop the total embargo on land-locked Mali, and the economic situation might not hurtle towards the famine it was heading towards only last week. Now the Malian people might only suffer a merely terrible food crisis.

As Malians can describe the (relatively) good news, “doni doni”; literally, “little by little.” As Dr. Leo Marvin advised his patient in What About Bob?, “baby steps.”

However, there are still a number of caveats to this welcome turn of events. First and foremost is the fact that Capt. Sanogo and his CNRDRE henchman have demonstrated to the world that any written agreement they stamp is not worth the paper it’s printed on. CNRDRE announced a new Constitution on March 28th, only to repeal it on April 1st. Sanogo announced a constitutional convention, only to cancel it a few days later. Thusfar, it appears that not one of Sanogo’s public statements has contained an iota of veracity. The default assumption should be that Sanogo is lying through his teeth at all times.

So, let’s assume that this one time is the exception to the rule, and Capt. Sanogo does in fact abdicate power in favor of the former leader of the Malian National Assembly. There still remain a number of fundamental matters which must be resolved in order to determine whether this return to democracy is in fact genuine or merely the application of lipstick on a pig. After all, more than a year out since the world-historical protests in Tahrir Square, Mubarak stepped down but Egyptians are still ruled by an unelected military regime.

First and foremost, Amadou Haya Sanogo has not announced the exact date of the proposed transition of power. He could postpone this transition indefinitely. As riders on the Malian bus system know too well, one can pay for bus fare at 6:00 AM and be told the bus leaves “soni” (soon), “peut-êti” 7:00, and the bus handlers will push back the departure time until 8:00, then 12:00. The bus might leave the station at 6:00 PM, but it might break down after an hour on the road, and the passengers might spend the night on the curb.

            It remains uncertain whether the Traoré presidency will be a clean break with the CNRDRE junta. It is quite possible that the mutineers in the Kati barracks see this as is a power-sharing agreement rather than an unconditional surrender. Mali is a haggling culture, and a merchant with the goods in hand would be considered a fool to simply accede to his bargaining partner’s price without getting anything in return. Capt. Sanogo has the keys to the ship of state, and he is almost certainly angling for what he must regard as just compensation; perhaps a big wad of cash, a plum job in the military command, and a number of CNRDRE soldiers in the interregnum and the next democratically-elected administration – that is, if there is another democratically-elected administration. An administration composed of Dioncounda Traoré as the titular head of state but CNRDRE toadies calling the shots from behind the curtain would  constitute only superficial change.

Sanogo has not announced when the next presidential election will take place. Sanogo & Co. created a crisis just before the planned elections. As of three weeks ago, the election was scheduled for April 29th. Amadou Toumani Touré was a lame duck on his swan song. Democracy was just about to function right on schedule before CNRDRE somehow contrived a way to gum up the works. One cannot reiterate too many times just how much the March 21st coup was completely useless and absolutely unnecessary for any purpose whatsoever. It has achieved nothing.

Even if Mali were to hold presidential elections, the questions remains as to what kind of Mali the president would govern. It appears that the Malian government exercises sovereignty over a rump state consisting of Koulikoro, Kayes, Sikasso, Ségou and part of Mopti province – in which 13 million Malians live. The Tuaregs have unquestioned control over Kidal, Gao, Timbuktu and the other swath of Mopti province – home to only 1.3 million. Likewise, if there is to be a presidential election, it remains unclear whether those 1.3 million in Tuareg Country would be eligible to vote. Would Mali extend absentee ballots to loyalist Songraï, Tuareg, Fula and Moor citizens in the Azawad – effectively claiming sovereignty over these territories? Or would the MNLA disenfranchise their newfound subjects from the Malian elections? It is also quite conceivable that Ansar al-Din could commit mass atrocities Sierra Leone-style against Malian loyalists if they do try to vote. The folks who have instituted Sharia law in Azawad territory have already abducted and raped girls, it’s not far-fetched that they might use the threat of slavery to extort submission and dissuade participation in the vote.

The ECOWAS/CNRDRE agreement remains unsettled the role of the Malian military in the provisional and future government. The March 21 putschists have dealt democracy a permanent wound by demonstrating that a few disgruntled junior offices can bring down an elected administration by seizing the Presidential Palace, the airport, and the TV station. If there is to be another Malian president in the future, it appears that he or she might have to govern in the shadow of the Kati Army barracks, the fear of another coup d’état always hanging over the presidency’s head like the Sword of Damocles. After the CNRDRE mutiny forced President Touré into hiding, the power of the presidency has been severely diminished. 

Malian democrats now have every reason to remain wary of the Malian military and what it really stands for. It appears that some of the Army corps remains at least facially committed to the territorial integrity of the Republic of Mali. But are they genuinely committed to the Republic of Mali under a bona fide republican government? It looks like Sanogo & Co. would opt for a military regime which governs the Northern territories over a stable, sustainable democracy in the lower four and ½ provinces. Since the political crisis erupted, Malian militaires have demonstrated more interest for political jockeying and looting than they have for defending any segment of the civilian population. Even after they had carte blanche from Kati, the soldiers in the North crumbled like dust before MNLA and Ansar al-Din and gave up Kidal, Gao and Timbuktu without putting up a fight.

I hate to say it, but one should also be genuinely concerned about the status of democracy amongst the Malian people. There appears to be a significant swath of Malian public opinion, disproportionately Sanogos and other Senaful clans, who supported the coup as a matter of tribal fidelity, disillusionment with ATT, and general dissatisfaction with the government. Democracy is not getting everything you want when you want it. Using violent force to effect change might be popular, it might be excusable to resist a foreign military occupation, but it's not democratic. Democracy is a system of elections, legislatures, courts, and other constitutional institutions through which citizens can effect change, often over the course of years and decades. So long as there remains a significant bloc of the electorate that can’t wait 39 days, and could willingly sacrifice a constitutional government in order to depose a president whom they don’t like, one must question those persons’ commitment to democracy and the rule of law. 

Mali is not going to be a democratic regime again until it is governed by a civilian administration brought to office by free and fair elections. So long as Capt. Sanogo and CNRDRE are anywhere near the halls of power, Malian democracy will remain compromised by the fear of a renegade military and the politics of extortion. Sanogo must step down as soon as possible, and the CNRDRE ought to disband root and branch. Though CNRDRE insisted upon an amnesty stipulation in the agreement with ECOWAS, these renegade soldiers committed amongst the greatest crimes that soldiers can commit: mutiny, treason, dereliction of duty, holding political prisoners, orchestrating violence against critics, looting and pillaging government buildings and civilian merchants. Note that the ECOWAS/CNRDRE agreement was signed between some mutineering Malian soldiers and neighboring West African states; the legitimate government of Mali was not party to this agreement, and it appears dubious whether ECOWAS has the power to grant amnesty to Malian soldiers for crimes committed exclusively on Malian soil. If future Malian governments never prosecute these outlaw soldiers for their wanton crimes, it will send the message that members of the military can subvert the law and desecrate the Constitution with impunity - and Malian democracy will long remain in a precarious position.