A Different Washington: 2021

Monday, December 27, 2021

December 21, 2021
The elusive true conservatism
1. The present situation

   Last year Andrew Bacevich published a book entitled American Conservatism: Reclaiming an Intellectual Tradition. It is a collection of essays which seek to describe and to define conservatism as practiced in this country. His thesis is that “in the crisis that has enveloped twenty-first century America — a crisis made starkly manifest by Donald Trump’s election as U.S. president in 2016 — conservative principles deserve a second look. . . .” Some might say that we “already have more than ample exposure to conservative principles, whether coming directly from Trump’s White House, from megaphone-wielding House and Senate Republicans, or from outlets such as Fox news, AM radio talk radio, and right-wing websites.” However, that is not real conservatism.
   “Donald Trump is not a conservative. Nor are the leaders of the Republican Party over which Trump presides. Prominent GOP figures such as Kentucky senator Mitch McConnell seem to adhere to no worldview worthy of the name.” The provocateurs in right-wing media don’t aim to promote conservative values, but to rabble-rouse. “Indeed, allowing Trump, McConnell, Sean Hannity, Laura Ingraham and Rush Limbaugh, et al, to present themselves as exemplary conservatives testifies to the pervasive corruption of contemporary American political discourse.”[1] More to the point, it reveals the state of politics on the right.
   Bacevich states that, in assembling the collection, he “excluded altogether anyone associated with “what in the last quarter of the twentieth century became known as neoconservatism,” because its adherents “were never genuinely conservative.”[2] Seemingly in contradiction, American Conservatism includes a contribution by Irving Kristol. As the editorial preface to Kristol’s essay notes, he was called the “godfather of neoconservatism.”
   2. Origins
   In reaching back as far as 1899 for material, Bacevich rejects one theory of modern conservatism, that it is, or began, as a reaction to the New Deal. One of his contributors, Frank S. Meyer, writing in 1965, set forth that argument: “The crystallization in the past dozen years or so of an American conservative movement is a delayed reaction to revolutionary transformation of America that began with the election of Franklin Roosevelt in 1932.”[3] (It also is one of George Will’s theories in The Conservative Sensibility: “Contemporary conservatism was born in reaction to the New Deal and subsequent excessive enlargement of the state.”)[4] Bacevich recognizes that reaction, although he doesn’t regard it as a new departure, let alone anything to build upon. Referring to the New Deal and to the rise of Nazi Germany, he observes: “Broadly speaking, in each case, the analysis and prescriptions offered by leading conservatives proved at least inadequate where not downright misguided.”[5]
   He adds: “What little most Americans know about conservatives after World War II does not make for a flattering or reassuring record.” He mentions Senator McCarthy’s “reckless crusade” as an example.   However, that dismal record was the result of “self-described conservatives violating genuine conservative precepts.”[6]
   American Conservatism takes this position as to origins: ”The modern American conservative tradition — roughly dating from the dawn of the twentieth century — emerged as a reaction to modernity itself.”

. . . Modernity meant machines, speed, and radical change — taboos lifted, bonds loosened, and, according to Max Weber, “the disenchantment of the world.” [The last, presumably, refers to the decline in religious belief]. It induced, and perhaps required, centralization. States acquired power. Bureaucracies thickened. Banks, corporations, rail systems, and industrial enterprises grew to mammoth proportions. War became more destructive.
Modernity promised liberation and for many did improve the quality of everyday life. Yet it subjected the individual to immense and only dimly comprehended forces. In exchange for choice, it demanded conformity. Modernity demolished tradition, or rendered it irrelevant. What remained of the past . . was drained of substantive relevance.[7]

   Perhaps because of this theory of early origins, or perhaps because of the condition of recent conservative thought, of the forty-four essays only four are from this century.
     Whichever starting point is chosen, one might ask why we should seek to reinstate political principles so reactive and, in the case of this version, reactive to developments more than a century old.
   Another attempt to define conservatism, Russell Kirk’s The Conservative Mind: from Burke to Eliot, goes back still further, to the eighteenth century, in finding conservatism’s roots in the writings of Edmund Burke. However, both Bacevich and Kirk present conservatism as an enduring political position, not merely a reaction, and not the object of an antiquarian study, so let’s look at their attempts to define it.
   3. Principles of conservatism
   Section headings in American Conservatism provide one list: “The Fundamentals: Tradition, Religion, Morality and the Individual;” ”Liberty and Power: the State and the Free Market;” “The Ties That Bind: the Local and Familiar;” and “The Exceptional Nation: America and the World.”
   Bacevich offers another list in his Introduction. He acknowledges that “the thinkers featured in these pages frequently disagree with one another,” but “most American conservatives, most of the time, subscribe to a common set or propositions. . .” They “center on” the following:

        * a commitment to individual liberty, tempered by the conviction that true freedom entails more than simply an absence of restraint;
        * a belief in limited government, fiscal responsibility, and the rule of law;
        * veneration of our cultural inheritance combined with a sense of stewardship for Creation;
        * a reluctance to discard or tamper with traditional social arrangements;
        * respect for the market as the generator of wealth combined with a wariness of the market’s corrosive impact on human values;
        * a deep suspicion of utopian promises, rooted in an appreciation of the recalcitrance of history and humankind’s recurring susceptibility to hubris.[8]

   Whether most conservatives subscribe to that list seems to me to be doubtful. The first part of the third item is certainly a core conservative attitude, but where are the conservatives who display a “stewardship for Creation,” i.e., a concern about climate change? The fifth declares that conservatives believe in the market, which certainly is true, but where is their “wariness of the market’s corrosive impact on human values?” The inherent tendency of the market to ignore such impacts calls into question whether it should be considered a core conservative principle.
   Although that list refers only to “the market,” the usual reference, as reflected in one of the section headings, is to the “free market,” emphasizing absence of regulation. (The index to American Conservatism has no entries for “market” or “the market,” and none for”regulation,” but many for “free market,” reflecting the typical conservative formulation). I think we can agree that, in general, a market system works well — that is an empirical conclusion, not a political principle — but only if properly regulated.
   American Conservatism includes a 1982 essay by Russell Kirk, which offers this definition of conservatism:

            First, co nservatives generally believe that there exists a transcendent moral order, to which we ought to try to conform the ways of society. . .
            Second, conservatives uphold the principle of social continuity. . . . Order and justice and freedom, they believe, are the artificial products of a long and painful social experience, the results of centuries of trial and reflection and sacrifice. . . . Burke’s reminder of the social necessity for prudent change is in the minds of conservatives. But necessary change, they argue, ought to be gradual . .
            Third, conservatives believe in what may be called the principle of prescription. . . that is, of things established by immemorial usage . . . . There exist rights of which the chief sanction is their antiquity — including rights in property, often. Similarly, morals are prescriptive in great part. . . . In politics we do well to abide by precedent and precept and even prejudice, for “the great, mysterious incorporation of the human race” has acquired habits, customs and conventions of remote origin which are woven into the fabric of our social being . . .
            Fourth, conservatives are guided by their principles of prudence. . . . Any public measure ought to be judged by its probable long run consequences, not merely by temporary advantage or popularity. . . .
            Fifth, conservatives pay attention to the principle of variety. They feel affection for the proliferating intricacy of long-established social institutions and modes of life, as distinguished from the narrowing uniformity and deadening egalitarianism of radical systems. For the preservation of a healthy diversity in any civilization, there must survive orders and classes, differences in material condition, and many sorts of inequality. . . .
            Sixth, . . To aim for utopia is to end in disaster . . . All that we reasonably can expect is a tolerably ordered, just and free society in which some evils, maladjustments and suffering continue to lurk. . . .[9]

   It seems odd that Kirk’s formula is included in this collection. True, American Conservatism is designed to describe a long tradition but also, presumably, is designed to persuade us that conservative thought is useful and constructive today. As Bacevich puts it, “My firm conviction is this: to understand how the United States arrived at its present confused and divided straits — and perhaps even to begin navigating back to less troubled waters — the American conservative tradition offers insights worth considering. I invite readers of this volume to consider that proposition.”[10]
   Kirk’s list of characteristics was a serious attempt to define conservatism, and some of it deserves attention, but its sanction of prejudice under item Third, its defense of “orders and classes, differences in material condition, and many sorts of inequality” under item Fifth, and even its casual attitude toward “evils, maladjustments and suffering” in item Sixth make it suspect as support for contemporary conservatism.
    Kirk reiterated his defense of social classes in The Conservative Mind. There he set forth another six-part list, one described as the “six canons of conservative thought.” The third is: “Conviction that civilized society requires orders and classes as against the notion of a ‘classless society’. . . . If natural distinctions are effaced among men, oligarchs fill the vacuum. ” To conservatives, “equality of condition. . . means servitude and boredom.”[11]
   Contrast Kirk’s defense of orders and classes with this passage from an essay by Herbert Hoover: the American form of individualism requires that “we keep the social solution free from frozen strata of classes.”[12]
   4. Inherent problems with the proposed definitions
   Kirk’s comments seem to reveal what many of us suspect about “conservatism” as often practiced, that it is a defense of privilege, influence and wealth. “Liberty” or “freedom” appear over and over again in American Conservatism, and can be a excuses for that defense. One of the essays notes the risk: Liberty “should always be associated with progress, never with stagnation and the mere maintenance of the social and economic status quo, It will be a bad day for any country when the idea of liberty can be plausibly represented as a screen for wealth and special privilege.”[13]
   American Conservatism presents a variety of views. As noted, and as Bacevich concedes, they sometimes are inconsistent with one another. In a history of conservatism, that would pose no problem, but in argument in favor of adopting conservative policies, it seems self-defeating. Some of the opinions are in direct opposition to one another. For example the collection includes an essay by Murray Rothbard which is a libertarian attack on the state,[14] but William Buckley dismissively refers to “Dr. Rothbard and his merry anarchists” and “their fanatical antistatism.”[15]
     Milton Friedman’s essay presents an idyllic view of the free market: “coordination through the markets is a system of voluntary co-operation in which all parties to the bargain gain.”[16] By contrast, Wendell Berry, discussing political “centers” and “peripheries,” says this: “above all, now, as a sort of center of centers, is the global ‘free market’ economy of the great corporations, the periphery of which is everywhere, and for its periphery this center expresses no concern and acknowledges no responsibility.”[17] Here is Irving Kristol, commenting on the views of Friedrich von Hayak: “I conclude, despite Professor Hayak’s ingenious analysis, that men cannot accept the historical accidents of the marketplace — seen merely as accidents — as the basis for an enduring and legitimate entitlement to power, privilege and property.”[18]
   The last section of the book offers another example of inconsistency, presenting opposing views on United States involvement in foreign affairs. The editorial prefaces to the essays describe Theodore Roosevelt as “an unapologetic imperialist,” label Charles Beard’s position as “anti-interventionist,” describe James Burnham as a “stalwart Cold Warrior,” and note William Pfaff’s “skepticism toward our nation’s enthusiasm for foreign entanglements.” The age of the selections there is especially striking; of eight essays, only one is later than 1982, only two after 1957.
   An earlier book by Bacevich provides further inconsistency on this topic. The last section of American Conservatism is captioned “The Exceptional Nation: America and the World,” but his earlier work, The Limits of Power, is subtitled The End of American Exceptionalism. Do we then take the section heading in the current book merely to describe an earlier era? The age of most of the essays might suggest that, but again: what becomes of the intent to persuade us that conservatism has any present application?
   Also, one of the contributors to the last section is Ronald Reagan. In The Limits of Power, Bacevich describes him as a faux-conservative. That comment is in the context of Reagan’s domestic views, but there follows an extended criticism of his views on foreign affairs, culminating in this: “In Washington, confidence that a high-quality military establishment, dexterously employed, could enable the United States, always with high-minded intentions, to organize the world to its liking had essentially become a self-evident truth. In this malignant expectation — not in any of the conservative ideals for which he is retrospectively venerated — lies the essence of the Reagan legacy.”[19]
   5. Another way of looking at conservatism
   Difficulty in defining conservatism and inconsistency of policy positions supports the conclusion that it ought not to be regarded as a political platform but rather as a general way of looking at public issues. Rather than a program with specific aims, it would be more usefully regarded as an attitude toward values, standards, traditions, social structures, continuity and the pace of change.
   Bacevich more or less acknowledges this, one page before his list of conservative propositions: “Conservatism is more akin to an ethos or a disposition than to a fixed ideology.”[20] Even Kirk did so: “conservatism is not an ideology, but instead a mode of looking at human nature and society.”[21] However, Frank S. Meyer took the opposite view: “This essay is concerned with conservatism as a social and political movement — not as a cast of mind or a temperamental inclination.”[22]
   An extreme form of conservatism as an attitude is William F. Buckley’s motto for his publication, The National Review, that it “stands athwart history, yelling Stop.” However, Bacevich notes that the actual aim of the magazine was “not to stop history, but to nudge it in a positive direction. Much the same can be said about conservatism itself.”[23] That, and not a dubious list of policies to be imposed on society, should be its contribution.
   A realistic conservatism necessarily involves the acceptance of change. Kirk acknowledged that: “Burke . . . knew that change in society is natural, inevitable, and beneficial . . .” The statesman’s duty “is to reconcile innovation and prescriptive truth, to lead the waters of novelty into the canals of custom.”[24] More simply, he refers to Burke’s principle that “the able statesman is one who combines with a disposition to preserve an ability to reform.”[25]   This too militates against a list of political aims such as limited government.
   Criticizing conservative thought does not lead to an acceptance of liberalism or progressivism, as currently practiced. The present political situation in this country overwhelmingly is the fault of those on the right, but our general state of decadence and confusion is the result of attitudes across the spectrum. As to the right, the replacement of its anarchic behavior by genuinely conservative principles and attitudes certainly would be a step forward.

_______________________
 1. American Conservatism, Introduction, p. xiv
 2. Introduction, p. xx
 3. “The Recrudescent American Conservatism” in American Conservatism p. 31
 4. The Conservative Sensibility, p.296
 5. Introduction, p. xv
 6. Introduction, p. xvii-xviii
 7. Introduction, p. xiii. The first paragraph offers a somewhat puzzling list. Was expanded rail a bad thing? Did opposition to large corporations become a core conservative principle?
 8. Introduction, p. xviii-xix
 9. “Conservatism Defined,” from The Portable Conservative Reader, (1982), in American Conservatism, pp. 9-11
 10. Introduction, p. xxi
 11. The Conservative Mind, Seventh Edition (1985). pp. 8-9. His comments on orders and classes, differences in material condition, many sorts of inequality, and the lurking of evils, maladjustments and suffering, taken from his book The Politics of Prudence (1993), are set forth again at https://kirkcenter.org/ conservatism/ten-conservative-principles/.
 12. “American Individualism” in American Conservatism, p. 78
 13. William Henry Chambering, “The Choice Before Civilization,” in American Conservatism, p.117
 14. “From For a New Liberty, in American Conservatism, p 397
 15. “Notes Toward an Empirical Definition of Conservatism” in American Conservatism, p 18
 16. “Capitalism and Freedom” in American Conservatism pp.369-82
 17. “Local Knowledge in the Age of Information” in American Conservatism, p.481
 18. ” When Virtue Loses All Her Loveliness’: Some Reflections on Capitalism and ‘the Free Society’ “ in American Conservatism, p. 390
 19. The Limits of Power (2008), pp. 36. 43
 20. Introduction, p. xviii
 21. The Conservative Mind, p. 490
 22. “The Recrudescent American Conservatism” in American Conservatism, p. 28
 23. Introduction, p. xvii
 24. The Conservative Mind, p. 130
 25. “Conservatism Defined: in American Conservatism, p. 7

Saturday, November 6, 2021

November 5, 2021

A misguided defense of the filibuster

I’ve been hoping that prominent Republicans would come forward, denounce Trumpism and McConnell-style obstructionism. Mitt Romney’s recent opinion piece,[1] devoted to defending the filibuster, is a disappointment, especially as it tends to support the latter practice. He recites a familiar but erroneous story that the filibuster was somehow part of Senate rules from the beginning, but bases his defense primarily on an argument that its effect is to require bipartisan support for legislation. There is merit in his claim that the best legislation is that which commands support by both parties, although he overstates the case: “Anytime [sic] legislation is crafted and sponsored exclusively by one party, it is obviously an unserious partisan effort aimed at messaging and energizing that party’s base.” To the contrary, Democrats are, ineptly but seriously, advocating important legislation for the good of the country.

The Senator points out that Democrats have defended the filibuster when it served their purposes, and might regret abandoning it now. “There is a reasonable chance that Republicans could win both houses of Congress in the next election cycle and, further, that Donald Trump could be elected president once again in 2024. Have Democrats thought through what it would mean for them for Trump to be entirely unrestrained, with the Democratic minority having no power whatsoever? If Democrats eliminate the filibuster now, they — and the country — may soon regret it very much.” That observation seems to be an admission that Republicans can’t be trusted with power.

Four other considerations are missing from his analysis. First, the filibuster once required a Senator to be serious enough in his opposition to a bill to be willing to speak at length; now the phantom filibuster is invoked virtually by saying the word, creating a situation in which much legislation requires sixty votes to pass. The Senate was not so designed. The second issue is that the filibuster is overused, used almost routinely: “There have been more than 2,000 filibusters since 1917; about half have been in just the last 12 years.”[2] This so impedes the work of the Senate that “161 exceptions to the filibuster’s supermajority requirement have been created between 1969 and 2014, according to an analysis by the Brookings Institution’s Molly Reynolds.”[3]

The third problem is the unprincipled use of the filibuster by the Republicans, not in search of negotiation or compromise, or in pursuit of principle, but simply to obstruct. An apt description of the minority leader makes the point: “Of course, this is the same Mitch McConnell who said of Mr. Biden, ‘100 percent of our focus is on stopping this new administration.’ . . . And the same Mr. McConnell who said that he would not confirm a Biden nominee to the Supreme Court if Republicans recaptured the Senate in 2022.”[4]

Finally, requiring a supermajority in the Senate exacerbates its undemocratic structure. Each State has two Senators regardless of population. The GOP’s ability to win senatorial elections in small states gives it numbers in the Senate far out of proportion to the number of people it represents. As one study put it, referring to the recent election, “[T]he Senate will be split 50-50, but the Democratic half will represent 41,549,808 more people than the Republican half.”[5] Another source estimates the current discrepancy at between “nearly 40 million" and 42 million.[6] This means that legislation can be blocked not only by a minority of Senators but by Senators representing an even smaller minority of the people.

Senator Romney is a good man and is not a blind follower of the GOP agenda, but his essay tends to give that agenda aid and comfort.

____________

1. https://www.washingtonpost.com/opinions/2021/10/31/mitt-romney-filibuster-senate-democratic- institution/

2. https://www.brennancenter.org/our-work/research-reports/filibuster-explained

3. Ibid.

4. https://www.nytimes.com/2021/08/06/opinion/senate-mcconnell-democrats.html

5. https://www.vox.com/2020/11/6/21550979/senate-malapportionment-20-million-democrats- republicans-supreme-court

6. https://www.theguardian.com/us-news/2021/mar/12/us-senate-system-white-conservative-minority

Sunday, October 10, 2021

October 10, 2021

Irrationality rampant

Will Rogers captured the enduring character of our politicians on the left: “I belong to no organized party. I am a Democrat.” There may be more potent prescriptions for failure and defeat than disarray and internal squabbling, but those will suffice. The Democrats have those traits in abundance and, irrational as it would be, if they don’t get their act together, the voters may decide to put the party that hates government in charge of it next year. Another of Rogers’ quips applies today: “Democrats never agree on anything, that's why they're Democrats. If they agreed with each other, they would be Republicans.” Voters may prefer unified action, regardless of direction, to dithering accompanied by pompous declarations of high principle. The return to sanity, responsibility and constructive policies promised by Biden’s election is in danger.

Democrats’ squabbling reveals a lack of clear thinking, but they are a model of intellect compared to the right. There are many examples of truly idiotic statements by Republican leaders and hangers-on However, much of the blather is tactical, designed to stir up the base. Many theories have been advanced to explain how so many people could believe, or at least swallow, the nonsense and patent lies that pass for Republican policy. None of the various analyses of the behavior of the base, for example reference to authoritarian personalities, seems to me to fully explain it. However, whatever the mechanism, there is a striking, and frightening, resemblance to the behavior of followers of dictators, notably Mussolini and Hitler.

I’ve discounted comparisons of the American right to fascism because it seemed to me that the term was being used too loosely. However, a recent book[1] offers this brief description of politics in Germany and Italy, and the rise of dictators, which applies all too well: “Out of the crucible of these years,” the early 1920s, “came the cult of victimhood that turned emotions like resentment and humiliation into positive elements of party platforms.” In this mind set, Germany lost the war not because it was defeated on the battlefield but because it was “stabbed in the back” by leftist elements at home; the Versailles Treaty cheated Italy out of territory it was entitled to for its minimal efforts in the war. Similarly, white Americans are being displaced, the government has been taken over by liberals who despise ordinary, hardworking people, other countries are stealing our jobs, and Trump lost the election because of massive fraud. The politics of victimhood redux.

I’m back to where I always seem to end up. With a populace as resentful, foolish and gullible as ours, we can be saved only by leadership, and some of it must come from conservatives.

___________________

1. Ruth Ben-Ghiat, Strongmen, Mussolini to the Present, pp. 21-22

Wednesday, September 22, 2021

September 20, 2021
Another factor in our decline

I’ve speculated on the contributions of the people, leaders and institutions to the condition of the nation.[1] It would be easy to focus on the people, as there are so many examples of irrational behavior, resistance to vaccination being the most recent. I’ve mentioned the culture in passing, but it occurs to me now that it is a separate, fourth, factor. In this context, I’m referring to the aspect of culture dealing with standards of behavior and restraints on antisocial actions. If people are not individually responsible — many Americans today clearly are not — and therefore unable to exercise appropriate self-control, there should be commonly accepted rules which will discourage misconduct and reenforce positive behavior. Laws and prosecution are blunt instruments, useful only in extreme cases. There must be ethical and moral restraints. However, those must be accepted, at least in general outline, by a majority of people, or by enough influential people to bring the rest along. (I’ve just invoked the leadership factor).

It could be argued that culture is not separate category, merely another institution. or that it is simply an aspect of the people. However, I’ve used “institution” to mean something formally organized, such as the Supreme Court, the electoral system or political parties; culture, as I’m using the concept, is a set of standards and controls, not an organizational structure. At least functionally it is distinct from the people as well, as it describes principles, not behavior.

However, culture, in the sense of anything binding all of us, virtually has evaporated; standards have been repudiated and social control has been weakened. Individualism has triumphed. True, there are tribal loyalties, and one could posit a tribal culture, but so many of those tribal impulses stem from rejection of controls that the tribes fundamentally are collections of rebellious individuals. The movement toward individualism began in the Enlightenment and it is to some degree enshrined in the Constitution. However, in recent decades it has moved to the point that it threatens democratic government. This development is by no means peculiar to the right; liberals have made a major contribution to the abandonment of social standards. However, the present assault comes from the right.

An interesting irony is the reaction, years ago, among conservatives to perceived excesses of behavior by liberals. The Death of Outrage, William J. Bennett’s 1998 attack on President Clinton, exemplifies that righteous indignation: “What we need in our president is one who stands against destructive cultural norms, not one who embodies, manipulates, and exploits them.”[2] Where is the outrage at Trumpish behavior, which is far more destructive? He concluded: “Our commitment to long-standing American ideals has been enervated. We desperately need to recover them, and soon.”[3] We could start by supporting and accepting fair elections.

Another conservative critic, Robert Bork, offered these pronouncements in 1996, in a book subtitled Modern Liberalism and American Decline: “What liberalism has constantly moved away from are the constraints on personal liberty imposed by religion, morality, law, family, and community. Liberalism moves, therefore, toward radical individualism and the corruption of standards that movement entails.”[4]

Also: “Modern liberals employ the rhetoric of ‘rights’ incessantly not only to deligitimize the idea of restraints on individuals by communities but to prevent discussion of the topic.”[5] What a perfect appraisal of those who refuse to wear masks or be vaccinated because it interferes with their freedom, who assert their right to carry guns. “The idea that men are naturally rational, moral creatures without the need for strong external restraints has been exploded by experience,”[6] Indeed.

I return to the conclusion to which these ramblings has led me: faced by ignorant and irresponsible people, flawed institutions, and a culture in decline, the way out is dependent on leadership, but that is a complicated issue. Not only must my hypothetical leaders show the right path, they must denounce and destroy the credibility of many of those now in positions of influence: Trump, McCarthy, DeSantis, Abbott, et al. Leaders, in other words, are both the solution and part of the problem. Still, it might take only a relatively few prominent Republicans to turn the tide.
_____________________
1. My comments are in these posts: 1/14/19, 3/15/19, 1/17/20, 9/11/20, 9/22/20, 11/1/20, 1/25/21.
2. The Death of Outrage, p. 42 (emphasis in the original)
3. Id., at 129
4. Slouching Towards Gomorrah pp. 61-62
5. Id., at 150-51
6. Id., at 139

Thursday, July 8, 2021

July 8, 2021

A limited approach to the gun menace

As noted, the legislature did much to address the issue of the use of force by police. It took a more cautious approach to the proliferation of guns in part, no doubt, because the state constitution, like the federal, contains unfortunate language regarding weapons. The state version is worse; it took a misreading of the Second Amendment to convert it into a broad declaration of an individual right to be armed, but the state provision clearly separates the individual right from a collective one:

RIGHT TO BEAR ARMS. The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men.^[56]

Despite that sweeping grant, Senate Bill 5038, recently passed by the legislature and signed by the Governor, establishes some limits as to where guns and other weapons may be carried. Omitting some details and qualifications, it provides as follows:

Section 1, subsection (1) declares that

It is unlawful for any person to enter the following places when he or she knowingly possesses or knowingly has under his or her control a weapon:

(a) The restricted access areas of a jail or of a law enforcement facility . . . ;

(b) Those areas in any building which are used in connection with court proceedings . . .;

(c) The restricted access areas of a public mental health facility . . . and state institutions for the care of the mentally ill . . . ;

(d) That portion of an establishment classified by the state liquor and cannabis board as off-limits to persons under 21 years of age; or

(e) The restricted access areas of a commercial service airport . . . .

Subsection (1) does not apply to:

(a) A person engaged in military activities sponsored by the federal or state governments, while engaged in official duties;

(b) Law enforcement personnel . . .;

There is appended a definition of “weapon” but, for no obvious reason, it applies only to (b) above, where it means “any firearm, explosive as defined [by a statute], or any weapon of the kind usually known as slungshot, sand club, or metal knuckles, or any knife, dagger, dirk, or other similar weapon that is capable of causing death or bodily injury and is commonly used with the intent to cause death or bodily injury.”

To confuse matters further, the following definition appears later, and is applied to all of Section 1: “ ‘Weapon’ as used in this section means any firearm, explosive as defined [by the same statute], or instrument or weapon listed in RCW 9.41.250.” That statute, in one subsection, lists the following: “slungshot, sand club, metal knuckles and spring blade knife,” and in another subsection “any dagger, dirk, pistol or other dangerous weapon.” Yet another subsection refers to silencers. RCW 9.41.250 defines “spring blade knife,” but we are left to wonder what slungshots and sand clubs are.

Section 1, subsection (2) provides that, except for law enforcement or military personnel, “it is unlawful for any person to knowingly open carry a firearm or other weapon while knowingly at any permitted demonstration. . . .” The ban applies whether the firearm or other weapon is carried on the person or in a vehicle. “Weapon” has the same meaning as in subsection (1)(b) above.

The ban in subsection (2) does not apply “to the lawful concealed carry of a firearm by a person who has a valid concealed pistol license.” The reference to “firearm” is confusing, as the license would authorize only a pistol. There is a similar, qualified exemption under Section 1, subsection (1)(a) above, in which “pistol,” “firearm” and “weapon” are mixed.

Section 1, subsection (3), continuing the baffling application of conditions and restrictions, provides that, cities, towns, counties, and other municipalities may enact laws

(a) Restricting the discharge of firearms in any portion of their respective jurisdictions . . . . Such laws and ordinances shall not abridge the right of the individual guaranteed by Article I, section 24 of the state Constitution . . . ; and

(b) Restricting the possession of firearms in any stadium or convention center, operated by a . . . municipality, except that such restrictions shall not apply to:

(i) Any pistol in the possession of a person licensed under [state law] or exempt from the licensing requirement . . . ; or

(ii) Any showing, demonstration, or lecture involving the exhibition of firearms.

Cities, towns, and counties [why not “other municipalities?”] “may enact ordinances restricting the areas in their respective jurisdictions in which firearms may be sold, but, except as [to school zones], a business selling firearms may not be treated more restrictively than other businesses located within the same zone.”

Section 2, perhaps exhibiting a degree of self-interest by legislators, makes it “unlawful for any person to knowingly open carry a firearm or other weapon” on the “west state capitol campus grounds; any buildings on the state capitol grounds; any state legislative office; or any location of a public legislative hearing or meeting during the hearing or meeting.” "Weapon" is, in somewhat confusing fashion, given the same definition as in subsection (1)(b) above.

However, self-protection and protection of others can go only so far: “Nothing in this section applies to the lawful concealed carry of a firearm by a person who has a valid concealed pistol license.” (Again, the odd combination of pistol and firearm). Apparently, it’s acceptable to be a menace if the gun isn’t brandished before use.

The statute is a drafting mess, but the more serious problem is that we are limited to half-measures by the self-destructive gun culture, which never will be eliminated until we expunge gun-rights provisions, or those interpreted to grant gun rights, from our constitutions or, as to the Second Amendment, until the Supreme Court recognizes the error it made in Heller and McDonald.

^56. Constitution of the State of Washington, Article I, Section 24.

Tuesday, July 6, 2021

July 6, 2021

Policing the Police

The excessive use of force by police has been a problem here in Washington, as elsewhere. Two developments provide some hope of progress.

The first is the filing by the State Attorney General of criminal charges against three police officers involved in the death of Manuel Ellis, an African American, in March, 2020. According to the charges, he was subjected to various kinds of force, including a “lateral vascular neck restraint” from behind — in other words a choke hold — repeated Taser bursts, hogtying (handcuffed and legs trussed behind his back) and an officer kneeling on his back and pushing his face into the pavement. Ellis was heard to cry out “Can’t breathe, sir, can’t breathe.” We have heard that too often. Despite that plea, a “spit hood,” in effect a mask, was put over his face.

He died at the scene. The Medical Examiner concluded that the cause of death was “hypoxia (a lack of oxygen) due to physical restraint,” and that “the manner in which Ellis was restrained by officers and the application of the spit hood prevented Ellis from breathing properly and caused respiratory arrest and death.” He determined Ellis’s death to be a homicide.[53]

After a bungled investigation by the Pierce County Sheriff, the matter was referred by the Governor to the Washington State Patrol for a further investigation, and ultimately the State Attorney General intervened, resulting in the charges. The Tacoma Police Union issued a statement, Trump-like in its inanity and irresponsibility, calling the charges “a politically motivated witch hunt.”[54]

The second development is a package of bills passed by the Legislature, recently signed by the Governor, which address issues surrounding policing. Briefly — and assuming that I have accurately untangled the unnecessarily opaque way in which bills are presented —they provide as follows:

Senate Bill 5051 amends a statute pertaining to the Washington State Criminal Justice Training Commission, directing it to “establish and administer standards and processes for certification, suspension, and decertification of peace officers and corrections officers.” It also will ”provide programs and training that enhance the integrity, effectiveness, and professionalism of peace officers and corrections officers while helping to ensure that law enforcement and correctional services are delivered to the people of Washington in a manner that fully complies with the Constitutions and laws of this state and United States.” The Commission will include seven “community members who are not employed in law enforcement,” up from two; of the seven, three will be “from a historically underrepresented community.”

In a somewhat convoluted section, SB 5051 broadens the list of offenses that can cause officers to lose certification, the loss of which will prevent their moving to other police departments.

House Bill 1001 provides that the Commission “shall develop and implement a law enforcement professional development outreach grant program for the purpose of encouraging a broader diversity of candidates from under represented groups and communities to seek careers in law enforcement.”

House Bill 1310 deals with the use of force. Subject to certain limitations, a peace officer may use physical force when necessary to “[p]rotect against criminal conduct where there is probable cause to make an arrest; effect an arrest; prevent an escape . . . ; or protect against an imminent threat of bodily injury to the peace officer, another person, or the person against whom force is being used.” Deadly force may be used “only when necessary to protect against an imminent threat of serious physical injury or death to the officer or another person.”

In determining whether to use force, a peace officer shall, when possible, “exhaust available and appropriate de-escalation tactics,” some of which are listed. Also, when using physical force, the officer shall “use the least amount of physical force necessary to overcome resistance under the circumstances.”

One of the aspects of police shootings that I have found puzzling and disturbing is that, so often, someone is fatally shot who could have been controlled by wounding (assuming that any shooting was required). The foregoing provisions may have been intended to deal with that issue, but it should be addressed directly.

House Bill 1054 bars police from using choke holds or neck restraints. It bans the use of tear gas “unless necessary to alleviate a present risk of serious harm” posed by “[r]iot, barricaded subject, or hostage situation.” It also establishes limits on the use of vehicular pursuit.

Addressing the militarization of police departments, HB 1054 provides that “A law enforcement agency may not acquire or use any military equipment.” Any law enforcement agency possessing military equipment “shall return the equipment to the federal agency from which it was acquired, if applicable, or destroy the equipment by December 31, 2022.“

Finally, 1054 provides as follows: “An officer may not seek and a court may not issue a search or arrest warrant granting an express exception to the requirement for the officer to provide notice of his or her office and purpose when executing the warrant.” In other words, no-knock warrants are out.

Senate Bill 5066 requires officers to intervene when they see other officers using excessive force:

Any identifiable on-duty peace officer who witnesses another peace officer engaging or attempting to engage in the use of excessive force against another person shall intervene when in a position to do so to end the use of excessive force. . . . A peace officer shall also render aid at the earliest safe opportunity. . . to any person injured as a result of the use of force.

There is a reporting requirement which seems to go beyond the issue of excessive force.

Any identifiable on-duty peace officer who witnesses any wrongdoing committed by another peace officer, or has a good faith reasonable belief that another peace officer committed wrongdoing, shall report such wrongdoing to the witnessing officer's supervisor or other supervisory peace officer . . . .

It’s odd that the duty to report is limited to on-duty officers.

To protect the reporting officer, the act provides: “A member of a law enforcement agency shall not discipline or retaliate in any way against a peace officer for intervening in good faith or for reporting wrongdoing in good faith as required by this section.”

Senate Bill 5259 provides that a “contractor,” to be named, will “implement a statewide use of force data program as provided in this chapter.” The contractor will be an “institution of higher education.” The statute is a maze of bureaucratic provisions pertaining to rules to be established and to an advisory body which will help draft them.

If the program comes into being, it would operate as follows: “Each law enforcement agency in the state is required to report each incident where a law enforcement officer employed by the agency used force” and where a fatality or “great bodily harm” or “substantial bodily harm”occurred; or the officer used a choke hold or vascular neck restraint; or, “against a person,” the officer pointed or discharged a firearm; used “an electronic control weapon including, but not limited to, a taser;” used “oleoresin capsicum [pepper] spray;” discharged ”a less lethal shotgun or other impact munitions;” struck, “using an impact weapon or instrument including, but not limited to, a club, baton, or flashlight;” kicked, punched or slapped; struck with a vehicle; or released a dog which then bit.

Accumulation of this information would be useful to the state, and also to the FBI, which has struggled to obtain use-of-force data from police departments.[55] Although the data collected under SB 5051 could help fill that gap, there is nothing in the bill about sharing the information gathered. The closest it comes is a provision that the advisory group should “[r]ecommend practices for public, law enforcement, and academic access and use of program data.”

House Bill 1267 contains this recital:

The legislature finds that there has been an outpouring of frustration, anger, and demand for change from many members of the public over the deaths of people of color resulting from encounters with police. The most recent deaths in the United States and within Washington are a call to lead our state to a new system for investigating deaths and other serious incidents involving law enforcement officers.

The bill creates an Office of Independent Investigations within the Office of the Governor. The new agency will “[c]onduct fair, thorough, transparent, and competent investigations of police use of force and other incidents involving law enforcement. . . .” Although that refers generally to “force,” the specific provisions focus on deadly force, The Office shall:

(1) Conduct fair, thorough, transparent, and competent investigations of police use of force and other incidents involving law enforcement as authorized in this chapter . . . . The office shall commence investigations as follows:

(1)(a) Beginning no later than July 1, 2022, the office is authorized to conduct investigations of deadly force cases occurring after July 1, 2022, including any incident involving use of deadly force by an involved officer . . . and

(b) Beginning no later than July 1, 2023, the office is authorized to review, and may investigate, prior investigations of deadly force by an involved officer if new evidence is brought forth that was not included in the initial investigation.

Subsection (a) is puzzling; it isn’t clear what the Office would have to do with deadly force cases not pertaining to an involved officer.

The statutes need review, in part because they overlap, but they and the prosecution by the AG should help to put us on the right path. Neither the reaction of the police union nor calls for defunding the police is a useful response to allegations of police misconduct.

______________________

53.Attorney General’s press release:

https://www.atg.wa.gov/news/news-releases/ag-ferguson-charges-three-officers-killing-manuel-ellis.

The Declaration for Determination of Probable Cause included in the release is a copy of a document of that title filed in Pierce County Superior Court as part of the prosecution:

https://agportal-s3bucket.s3.amazonaws.com/uploadedfiles/Another/News/Press_Releases/Dec_ProbableCause_Burbank-05272021081756.pdf

54. https://www.seattletimes.com/seattle-news/times-watchdog/state-attorney-general-charging-decision- on-manuel-ellis-death/

55. https://www.washingtonpost.com/nation/2021/06/09/police-use-of-force-data/?utm_campaign=wp_ post_most&utm_medium=email&utm_source=newsletter&wpisrc=nl_most&carta-url=https%3A%2F%2Fs2.washingtonpost.com%2Fcar-ln-tr%2F33690b2%2F60c0ec059d2fdae3027672c7%2F5b65de00ade4e 2779564ed94%2 F24%2F72%2 F60c0ec059d2fdae3027672c7

¹ Attorney General’s press release:

https://www.atg.wa.gov/news/news-releases/ag-ferguson-charges-three-officers-killing-manuel-ellis.

The Declaration for Determination of Probable Cause included in the release is a copy of a document of that title filed in Pierce County Superior Court as part of the prosecution:

https://agportal-s3bucket.s3.amazonaws.com/uploadedfiles/Another/News/Press_Releases/Dec_ProbableCause_Burbank-05272021081756.pdf

² https://www.seattletimes.com/seattle-news/times-watchdog/state-attorney-general-charging-decision-on- manuel-ellis-death/.

³ https://www.washingtonpost.com/nation/2021/06/09/police-use-of-force-data/?utm_campaign=wp_ post_most&utm_medium=email&utm_source=newsletter&wpisrc=nl_most&carta-url=https%3A%2F%2Fs2.washingtonpost.com%2Fcar-ln-tr%2F33690b2%2F60c0ec059d2fdae3027672c7%2F5b65de00ade4e2779564ed94%2F24%2F72%2F60c0ec059d2fdae3027672c7