Insanity, Execution, and the US Supreme Court

The Story:

The US Supreme Court will begin hearing arguments again on the first Monday in October. This year that falls on October 7.  Some fascinating and politically sensitive cases sit on the docket for the forthcoming session, including a controversy over the constitutional status of the insanity defense, which the Justices will hear on that first day back from their break.

Background:

The 14th amendment to the US Constitution provides that “no state shall … deprive any person of life, liberty, or property, without due process of law.”

The Supreme Court has long held that the due process requirement is most stringent for the first of those threats, a proposed deprivation of life: that is, there is a “super due process” required for application of the death penalty.

In a matter that the Court will hear Monday, lawyers for a death row inmate will argue that a Kansas law abolishing the insanity defense in a capital matter deprived their client of this necessary super due process of law, and they will ask that his sentence be overturned.

The Thing to Know: 

The Supreme Court’s capital-punishment jurisprudence has always been unpredictable, and the addition of two Donald Trump nominees to the bench over the last two years has not by any means made this case a ‘slam dunk’ for Kansas.

New Mexico Gets a Splashy Campaign Ad

The Story:

Valerie Plame, the former CIA agent, now a candidate for a US House seat from New Mexico’s 3d district, has a television ad out that shows off her CIA-trained driving skills and that ends with her saying, “Mr. President, I’ve got a few scores to settle.”

Background:

Plame is one of nine already-declared candidates on the Democratic side of the race for that seat, and she is seeking to stand out from the field by reminding people of a 2003 scandal, the “Plame affair.” Her ad shows Plame driving a car rapidly backwards through a stretch of New Mexico desert, then pulling a quick J-turn, presumably a CIA agent’s learned survival-driving skill.

In the voiceover, Plame reminds people that in the lead-up to the Bush administration’s war on Iraq, she was outed as an agent apparently in revenge for her husband’s public contradiction of one of the justifications for war that the administration was promoting.

An aide to the then Vice President, [Scooter Libby, aide to Dick Cheney] was later convicted of lying to investigators about that leak, and Libby was pardoned in 2018 by the current President, Donald Trump.

The Thing to Know: 

Immediately upon broadcast the ad encountered pushback from fact checkers. The voice over identifies Libby as the source of the leak of her identity as an agent. Actually, Dick Armitage, Deputy Secretary of State, was the source of the leak at the time (as he has acknowledged). Libby apparently did talk to a reporter, Judith Miller, about the weapons of mass destruction Iraq was allegedly developing and may have mentioned Plame in that context, but Miller published no story on the subject. Libby was convicted  — and pardoned — with regard to the cover-up, not the leak itself.

 

US-Ukraine Relations and Renewed Impeachment Talk

Joe Biden receives flak for controversial comments about 'the hood'

The Story:

President Donald Trump has acknowledged that, in a conversation with the President of the Ukraine, Volodymyr Selenskiy, in July,  he asked Selenskiy  about former Vice President Joseph Biden and about his son Hunter, who has business interests in Ukraine. The acknowledgement has fueled demands for more information about that conversation and has racketed up expectations of an impeachment move in the House of Representatives.

Why It Matters:

Bribery is quite explicitly listed in the US Constitution as a grounds for the impeachment of a President of the United States.

Trump has said that earlier this year he withheld nearly $400 million in aid to the Ukraine.

The Thing to Know:

It has been suggested that there was at least an implicit quid-pro-quo here: Trump might have been suggesting that he would allow the $400 million to go through to the Ukraine if Zelenskiy would help him undermine a likely Democratic Party nominee for President by way of an investigation into the Bidens, father and son.  Such a deal would seem to meet the meaning of the word “bribery.”

Accordingly, on September 25, 2019, House Speaker Nancy Pelosi announced a formal impeachment inquiry that will involve several House Committees.

De Blasio is Out of the Running for POTUS

de Blasio: Kids have lice, bed bugs, and chickenpox

The Story: 

Bill de Blasio, the Mayor of New York City, announced Friday morning the suspension of his campaign for the Democratic Party’s nomination for President of the United States. He has been in the race since May 16, but his efforts never really gained traction.

Background:

Despite the size of the City (and the State) of New York, high office and political prominence in the one or the other has not been a successful launchpad for a Presidential run since the days of the Roosevelts, in the first half of the 20th century.

Nelson Rockefeller, the State’s Governor throughout the 1960s, repeatedly sought the Republican nomination for President. He was defeated in that quest by Nixon, then by Goldwater, and then by Nixon again.

The last person to attempt a serious run for the Presidency directly from the office of NYC Mayor was John Lindsay, who briefly sought the Democratic Party nomination in 1972. Lindsay’s campaign, like de Blasio’s, never took off.

The Thing to Know: 

De Blasio is now the sixth to drop out of the Democratic primary contest within three months: after Swalwell, Hickenlooper, Inslee, Moulton, and Gillibrand.  The field is narrowing to the core candidates.

 

Justice Ginsburg’s Fight with Cancer

White House preparing for possible Justice Ginsburg departure, reports say

The Story: 

Ruth Bader Ginsburg, an Associate Justice, on the US Supreme Court since 1993, received treatment for pancreatic cancer this summer.  The radiation treatments, at Memorial Sloan Kettering Cancer Center, are said to have gone well, but they are simply the latest battles in a long-running war. Justice Ginsburg has been treated with cancer in various organs over a period of twenty years now.

Background:

One of the many memorable opinions of Justice Ginsburg was her separate opinion (concurring in part and dissenting in part) in the big Obamacare case, NFIB v. Sebelius (2012).

The opinion of the Court in that case found for the plaintiffs on the issue of the extent of the commerce clause power. That is: it found that Congress cannot assume the power to re-wire the entire health care insurance market simply because insurance has an impact on interstate commerce. But the Court also found that most of the challenged features of the statute was constitutional regardless, because Congress was working under the authority of its taxing power.

Ginsburg went further. She concurred as to the taxing power, but she also thought that the commerce power is broad enough to have been used as an alternative source of authority.  She praised Congress for having produced what she called a “practical, altogether reasonable, solution” to the national problems posed by uninsured medical patients and the costs they impose.

The Thing to Know:

Any disclosure of serious illness in a Justice inevitably produces speculation, sometimes ghoulish, over whether a vacancy is about to open and how, if it does, the President will fill that vacancy.

Often this speculation is accompanied by rather simplistic talk of the “balance” on the Court, in left-right terms, and of how the next appointment will decisively “tilt” that balance with revolutionary results.  The balance of the Court is never what the simple account says it is, so people are always disappointed (or relieved) when the supposedly ’tilting’ appointment occurs yet jurisprudence developments proceed on an undramatic evolutionary course.

 

Gun Control after Three Mass Shootings

Liberal Democrats set their sights on gun control

The Story:

Three gun massacres in quick succession — at a garlic festival in California (July 28), at a Walmart in El Paso, Texas (August 3), and on a busy downtown street in Dayton, Ohio (August 4) — have pressed the issue of gun control to the front of US politics at every level.

Background:

Every mass shooting has its own profile and raises a number of distinct questions. For example, the shooting at the Sandy Hook Elementary School in Newtown, Connecticut in December 2012 raised issues not only about the shooter’s possession of several firearms, but about his developmental and mental health problems, the reasons he may have targeted Sandy Hook, and school security needs in general.

In the unique case of the July-August cluster of killings, the rapid sequence has caused other elements in each of the three cases to fade into the background, so that public discussion is more focused than usual on one point: the easy availability of firepower to civilians in the United States.

The Thing to Know:

Ohio’s Governor, Mike DeWine (R), who has a reputation as an opponent of gun control, sought to address a vigil after the Dayton shooting. The crowd picked up on a chant, “Do something! do something!” The following day, DeWine announced his support for a universal background check system. The chant may well represent the attitude of the contemporary electorate broadly.

Mike Gravel Suspends His Campaign for President

Live: Senate debates bringing Kavanaugh confirmation to a vote

The Story:

Mike Gravel, a former US Senator who was for much of this year waging a long-shot campaign for the Democratic Party’s nomination for President, suspended that campaign last week, and as he left the field he sharply criticized the Democratic National Committee for keeping him out of the televised debates.

Background:

Gravel, an Alaskan, became well-known during the Vietnam War period, first for his outspoken opposition to the draft of young men into the military; later for his enthusiastic support of the publication of the so-called “Pentagon Papers.”

Gravel lost his seat in the US Senate in 1980 and has been out of the public eye for most of the time since. But this year two young (teenager) admirers effectively ran a Presidential campaign on his behalf and with his blessing. It is that campaign that Gravel suspended on August 2.

Although Gravel met the criteria for a spot in the debates, the DNC had also set a limit on the number of candidates who could participate, putting the ceiling at 20. Since 20 other candidates crossed the necessary thresholds before he did, Gravel was not allowed in.

The Thing to Know:

Gravel’s distinction in the campaign was to be its foremost advocate of a non-interventionist (opponents might even call it an isolationist) foreign policy. Gravel has demanded that both former President George W. Bush and former President Barack Obama be tried by the International Court of Justice for “the crimes and murders they’ve committed” by way of overseas military actions.

Imagined Communities in Review: A Postcolonial and Modern Revisitation

 Benedict Anderson’s Imagined Communities: Reflections on the Origin and Spread of Nationalism is one of the most celebrated and debated intellectual works of the 20th century. In this seminal piece, Anderson lays out his own theoretical definition of the nation, which is informed by the work of other thinkers such as Renan and Gellner, as well as a robust analysis of modern history centered on the Americas, Europe and several colonial territories. Having concluded that the nation is, as the title suggests, imagined, Anderson examines the cultural process of its creation. In doing so, he hopes to clarify why such abstract denominations of humanity can command such profound emotional followings and inspire sacrifice as they do.

    There are several key features of Anderson’s definition that contrast with other theorists’ understandings of nationality. His particular theory of nationalism is centered around the contention that the nation is “an imagined political community– and imagined as both inherently limited and sovereign.” He considers nations ‘limited’ because no matter how large, they are always defined as finite and exclusive, in relation to others that lie beyond their perceived boundaries. ‘Sovereign’ has to do the with the historical definition of nations as a departure from other forms of dominion, principally the religious hold of the Catholic Church over European kingdoms. The use of the term ‘community’ is derived from Anderson’s view of the nation as a “deep, horizontal comradeship” which commands an emotional allegiance from those who belong to it.

In this understanding of the nation, Anderson seeks to explain its seemingly paradoxical nature, which he describes as “the objective modernity of nations to the historian’s eye vs. their subjective antiquity in the eyes of nationalists” and “the political power of nationalisms vs. their philosophical poverty and even incoherence.” He often refers to the nation as a ‘cultural artefact’ which is capable of changing over time and being transposed across distance. Ultimately Anderson diverges from other prominent scholars and summarizes his thesis in the claim that “the creation of these artefacts towards the end of the eighteenth century was the spontaneous distillation of a complex ‘crossing’ of discrete historical forces; but that, once created, they became ‘modular,’ capable of being transplanted […] to a great variety of social terrains.” Anderson spends the remainder of the text explaining the role of these historical forces and how they intersected in various cases, resulting in the multitude of mature and emerging nationalities present in the modern world. He focuses on the development of vernacular languages that wrested power from elites, and print-as-commodity facilitating the spread of information and notions of simultaneity, as key historical forces which intersected to spark the development of nation-states.

    To better understand the reasoning behind Anderson’s convictions about nationalism, it is informative to contextualize Imagine Communities in the time period during which it was produced. As Anderson’s work was first published in 1983, there was a sizable sample of regional decolonization movements in the preceding fifty years that had resulted in the formation of new African and Asian nations. This left the major powers with a host of new states to contend with, especially as the Cold War’s bipolar international system led into the negotiation of alliances and fortification. Thinkers such as Anderson wrote for an intellectual audience– in his case, the English intelligentsia– who sought to inform their opinions about foreign policy in a theoretical rather than strategic decision-making capacity. In short, they were the educated non-military elite with time for cerebral reflection on the historical roots of revolutions seen in the paper.

Marxism was also a topic of more practical scholarly discussion during the Cold War period; particularly its hotly contested claim that capitalist class struggle was the root of all modern war. This would logically preclude the possibility of warfare between Marxist states. Why, then, did the Red Army often find itself at war with revolutionary ethnic minorities of its own realm? Such internal strife seemed to suggest that there was some other, more visceral force at work than a shared class struggle that unifies the transnational Marxism. Anderson’s theory applied to this question provides a far more convincing alternative, explaining the Soviet Bloc’s membership as a projection of an imagined Russian cultural identity over surrounding nationalities, rather than a universalist Marxist ideology. Given the eventual worsening of the subdivisions of the Soviet Union, and continual splintering over ethnoracial lines, nationalism seems to have been at the root of conflict even within (not just between) the bipolar system’s two major players.

    A major strength of how Anderson supports his theory of nationalism is that he credibly demonstrates an understanding of social structures in the diverse areas and periods he writes about. Anderson uses this base of knowledge to broaden the discussion of nationalism beyond the Eurocentric view of other authorities on the subject. One of his most compelling and unique additions to the study of nationalism is the claim that North and South American Creoles were the first pioneers of the imagined community, providing a model for the development of the nation which was later paralleled in the European cultural revolutions of the 19th century. His knowledge of Spanish American demographic nuances and early nationalist rhetoric from Mexico suggest that Anderson has a level of insight which Europe-focused provincialism has missed by viewing early America as a monolithic colonial frontier. Drawing heavily on firsthand accounts by Jesuit missionaries, as well as early examples of vernacular journalism that united disparate areas of Spanish America, Anderson effectively captures popular sentiments that suggest a deep identification with a shared Creole ancestry.

Though he does well to acknowledge the agency of postcolonial territories in developing national identities via language, print capitalism and education, the Englishman Anderson occasionally falls into the trap of ignoring his own nation’s historical tendency to suppress such efforts. In many cases, colonies were not simply awaiting the organic alignment of factors to sprout nationalist ideology, but were victim to deliberate national suppression by their imperial conquerors. Particularly in Chapter 5, where he uses the development of Ireland as a case study, Anderson conveniently glosses over the role that the English played in attempting to eradicate Irish nationalism through colonial homogenization. He paints this as more of an inadvertent byproduct of English nationality being established through language. But in “The Politics of the Irish Language,” NYU’s Sean Cahill highlights the historic importance of Gaelic as a politically symbolic issue of Ireland’s claim to nationhood, and forced Anglicanization as a tactic of English suppression. Banning Gaelic language instruction in public education, as well as targeting Gaelic activists in internment, is a clear case of English hegemony combating the vernacular linguistic aspect of nationalism– which Anderson himself emphasizes earlier in the book as a key force in Western European nations’ individuation from a larger body, in that case the Catholic Church.

    Imagined Communities’ publication has prompted a wide variety of reactions, ranging from theoretical critiques to case studies of emerging imagined national identities.

In Itzigsohn and vom Hau’s “Unfinished Imagined Communities: States, Social Movements, And Nationalism in Latin America,” the sociology researchers use Anderson’s model to analyze trajectories in the development of postcolonial Latin American nations, giving particular attention to the role of modernization. The article recognizes Anderson for filling a gap in the literature regarding nationalism by exploring its origins in the aforementioned chapter on Creole nationalism. “Most theories of nationalism are grounded in European case studies. One of the few notable exceptions is Benedict Anderson’s highly acclaimed Imagined Communities, which argues that early nineteenth-century “creole pioneers” invented nations in the struggle for Independence from Spain, thereby establishing a “blueprint” for nationalism around the globe.”The article also highlights key criticisms that Imagined Communities received from the academic community. Foremost among these is the postmodern view that Anderson mainly focuses on the intellectual elite, failing to fully account for the role of ‘subaltern’ actors in the development of Creole national identity. Nevertheless, the study largely confirms the validity of his analysis concerning Latin-American nations’ development, even as they progressed into the early 20th century.

In a 2006 piece published in the London Review of Books, T.J. Clark poses the question of how technological developments of modernity might influence the formation or reformation of imagined communities since Anderson’s initial publication. He proposes that new ‘technics of representation’ might play a role in reshaping or even subverting established national identities across the world. Clark describes the rapid expansion of visual media such as television as having a potential impact in the development of new transnational citizenries, likening the impact of ‘screen capitalism’ to that of the advent of print capitalism in Anderson’s argument. Interestingly, it is unclear whether he believes modernization has resulting in new nationalisms or the rehashing of old ones, as the main example he uses is religious in nature. “It seems to me that a complex rejigging of the balance of forces between nation and ummah, nation and congregation, nation and jihad, nation and chosen people, is underway in many parts of the world – and not only under the banner of Islam. And this has something to do with the new opportunities offered by screen capitalism.” He later states more explicitly the relevance of Imagined Communities and the parallels to print capitalism in modern technology’s impact: “A shuffling and grating of imagined communities is taking place. And this is connected, as I say, with the arrival of new technics of representation. Imagined Communities gives us the beginning of a way to think about just such matters, in its treatment of the effect of print capitalism on the day-to-day imagining of those things called ‘languages’, and its reflections on the role of the newspaper and the novel.” Clark makes a compelling argument that even as new modes of cultural expression and communication (‘technics of representation’) have developed, Anderson provides a historical model that is suggestive of their implications for present-day nations.

At a point in history where liberal internationalism has fallen out of favor and perceptions of national identity are again the focus of domestic politics, it is critical for academics to have a coherent explanation for the phenomenon of nationality. Anderson adds to this conversation by providing an exhaustive theory, grounded in multiple national histories and extraordinarily deep evidence, that pushes back on the primordialist viewpoint. Most importantly, he reorients the entire debate by explaining nationalism as a human construction centered around often-shaky perceptions of a shared past. Thus, he shows nationalism not to be uniquely modern nor rooted firmly in the past; rather, it resides in present reimaginings of a cultural past, which become more important to nationalists than the actual events which transpired.

Considering the significant political power that nationalist agendas still command in major states, Imagined Communities is surely relevant to the current world. But perhaps it needs to be revised in light of new levels of global interconnectivity. Humanity has developed technologies that make geography less relevant and language more universal, allowing for the conception of communities Anderson could not have anticipated in 1983. To build on his work, further research on nationalism in the modern age should seek to incorporate developments such as Clark’s ‘screen capitalism’ and, in some cases, lingering disputes over language. Newly produced works dealing with the EU or USA might seek to address the question: if Anderson correctly characterizes the nation as a mutable but finite category, what developments could prompt today’s nationalist ideologues to tighten or expand their definitions of national belonging?

Bibliography

Anderson, Benedict R. O’G. Imagined Communities: Reflections on the Origin and Spread of

Nationalism. New York: Verso, 2016.

 

Cahill, Sean. 2007. “The Politics Of The Irish Language”. New York University.

https://as.nyu.edu/content/dam/nyu-as/irelandHouse/documents/0111-0126_PoliticsOfTheIrishLanguage.pdf.

 

Clark, T.J. 2006. “In A Pomegranate Chandelier: Benedict Anderson”. London Review Of Books.

https://www.lrb.co.uk/v28/n18/tj-clark/in-a-pomegranate-chandelier.

 

Itzigsohn, José, and Matthias vom Hau. 2006. “Unfinished Imagined Communities: States,

Social Movements, And Nationalism in Latin America”. Theory And Society 35 (2): 193-212. doi:10.1007/s11186-006-9001-1.

-Omar Essa

An Unlikely Partnership: Koch and Soros

Is Soros playing a role in anti-Kavanaugh protests?

The Story:

Both George Soros and Charles Koch believe that the foreign policy of the United States has become unhinged from any defensible conception of national interest or human rights, and together they hope to use their vast fortunes to move the US toward diplomacy and peace, away from the endless war to which it now seems committed.

The Background:

Their new partnership is unlikely. Charles Koch is one of the “Koch Brothers,” renowned as the offerers of financial assistance to Republican and conservative candidates for public office over decades now. Soros is the Hungary-born financier who notoriously said in 2003 that removing President George W. Bush from office would be the “central focus of my life” over the following year, as it was “a matter of life and death.”

A headline in the Boston Globe has called it an “astonishing turn” that these two men have teamed up.

The Thing to Know:

Koch and Soros are combining to endow a new foreign-policy think tank, called the “Quincy Institute for Responsible Statecraft.” The name is in homage to the sixth President of the United States, John Quincy Adams, who said that though the United States is  a well-wisher to freedom around the world, “she is the champion and vindicator only of her own.”

Senator Harris has a big Debate Moment

Kamala Harris: 'Voters Are Able To Distinguish Who Can Best Do The Job' | Andrea Mitchell | MSNBC

The Story:

On Wednesday and Thursday of this week, the campaign to determine who the Democratic Party shall nominate to be the next President of the United States kicked into a higher gear with a two-part debate in Miami, Florida, broadcast on NBC, MSNBC, and Telemundo.

Important Takeaways:

Early in the first round of the debate, moderator Savannah Guthrie asked Rep. Robert “Beto” O’Rourke whether he would support a reform of the personal income tax that would put the highest marginal tax rate at 70%, a change favored by some of the other candidates. This was a “yes/no” question and O’Rourke drew unfavorable attention by repeatedly refusing to give it a yes or no.

O’Rourke switched back and forth between English and Spanish at this time, but he wasn’t giving Guthrie’s question a straight answer in either language.

Early in the second night’s proceedings, Marianne Williamson, best known as an author and lecturer on spirituality and love, made a forceful case that the United States does not have a “health care system” at all: that what we have is a “sickness care system” merely designed to maintain ill people in their illnesses.

Both of those are moments worth remembering. But neither is the one moment that stands out.

The Thing to Know:

The one moment that does stand out from the two proceedings comes from later on in the second night, when Senator Kamala Harris confronted former Vice President Biden about his record in the US Senate in the 1970s.

“Do you agree today that you were wrong to oppose busing in America?” she asked, referring to the use of school busing to desegregate educational patterns.

Biden replied that he had not opposed busing, only “busing ordered by the Department of Education.” The echo of those old 1970s controversies in 2019 was striking, and may have been a breakthrough moment for Senator Harris.