OF CIVILITY

Voltaire

Who would have ever expected that civility in political participation would become a matter of debate ? Yet this is where we are in a nation where many political people are fast losing — have already lost — their composure.

It is easy to blame the President for what has happened. That would be a mistake. The current incivility began during President Obama’s years. It reached a fever pitch there, both from his opposition, which refused him even basic legitimacy, and from Congress, which refused to work with him on anything significant. The reforms that Obama and his party achieved were enacted with zero Republican support. Republicans not only shunned Obama’s policy moves, regardless of their utility, they did everything they could to repeal them once enacted. Then came the gravest move of all, Senate leader Mitch McConnell’s refusal to accord Obama’s Supreme Court nominee the “advice and consent” predicated in the Constitution.

Here is the language that McConnell spat upon:

“He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law…”

McConnell decided that the grant of consent power to the Senate gave the senate authority to refuse to even entertain a nomination. I doubt that is how any normal person would read that language. The list of appointments to which consent applies is a long one. If the Senate had the power, by the grant of consent, to deny consent to all of that list the Presidency could not operate. By what argument could McConnell assert that Article 2, Clause 2 vests in the Senate a power to prevent the Executive from operating ? Common sense reads the consent language as including an implied phrase ” which consent shall not be unreasonably withheld.” One sees this language in contracts and Leases drafted today. It’s there precisely to avoid the bad faith consequence that McConnell applied because of its absence in Article 2, Clause 2.

McConnell’s move broke the Constitution. It is unlikely that the “advise and consent” clause of it will ever recover. This was an act of gross incivility. None of the anger that it aroused went beyond the incivility of McConnell’s destructive act.

McConnell crossed a Constitutional Rubicon. (the phrase comes from Caesar’s bringing a field army into Roman territory, in contravention of the Republic’s firm policy, by crossing the Rubicon River, in northern Italy, that served as the Roman Republic’s northern boundary.) The anger of activists over McConnell’s act was fully justified.

Caesar’s act initiated a generation of civil war in Rome in which thousands of activists died or were judicially murdered, the Republic was destroyed, and a dictatorship ensued. (a benign dictatorship, to be sure, thanks to the political wisdom  and caution of Octavian Augustus, but a dictatorship nonetheless.) Might something of the same soon befall our nation ? We’re well on the way. We don’t have actual civil war — yet — but the anger and intimidations, threats, conspiracy hallucinations, radical utopianisms, and downright race, anti-immigrant, and gender bigotries brick-batting every square inch of social media — not to mention flash points in the brick and mortar world — are dragging the rest of us into an arena we justifiably don’t want to die or be tortured in.

The Red Hen restaurant flap; the vitriol spoken by Congresswoman Maxine waters — and thrown back at her even more criminally; the harassment of DHS executives in a Washington restaurant; the constant foulness voiced by unhinged followers of Mr. Trump; the almost daily barrage of mass shootings by disgruntled jerks; the criminal, frightening, warrant-less, unConstitutional actions of DHS and the ICE, occurring daily and in many, many locations — all of these and more have shoved civility aside and taken us to the brink. The tearing apart of migrant and asylum-seeking families at our borders, and resultant incarceration of kids and parents — much of it in for profit prisons and tent camps, and paid for by transport companies given no-bid, multi-million dollar contracts — has created an entire industry of persecution. Scant wonder that citizens are angry, are losing their civil habits.

I see no good outcome for this torrent of anger, this combat of shout versus shout. You can’t shout a person into agreeing with you, can’t intimidate her into discussing anything with you. “A man convinced against his will, is of the same opinion still.” Ben Franklin.

Assuming that the wise reform policies of mainstream Democrats and a few Republicans deserve to become law — and I do assume it, what is the best course for achieving such an outcome ? You know t.he drill : vote. Organize, persuade, urge ordinary citizens to vote common sense. Do not shout. Do not talk At people. Listen TO them. Maybe you will learn something ! Listen to everyone; find policy suggestions that most of those you talk with can buy into. We do it here in Massachusetts,. where our electeds, of many policy persuasions, negotiate with one another and enact compromise legislation that advances a just and workable state. If we can do it here, in State, we can do it nationally.

Of course the nation is not like a State. Our Federal set up is infinitely complicated. It encompasses 55 jurisdictions: states, territories, the District of Columbia, Congress. To govern it, compromise and consensus are required. The Constitution itself was a compromise. (Today many utopians decry the Constitution for countenancing slavery, as if the Civil War and its aftermath did not correct that acceptance; as if progress is somehow illegitimate because its predecessor accommodated injustices.) Almost every legislative reform we live with was a compromise, a result of many discrete factions agreeing on what they could agree about.That is how civic progress is achieved. As the great Athenian lawmaker Solon (from whose name we now call legislators “Solons”)  is reputed to have answered when he was asked, “Did you give the Athenians the best laws ? “No,” he responded, “I gave them the best laws they would accept.”

The radicalism of Mr. Trump AND the opposite radicalism of his angriest political opponents are themselves a kind of incivility. With good and solid reasons, Ted Kennedy said, “the perfect is the enemy of the good,” updating Voltaire’s aphorism Dans ses écrits, un sage Italien Dit que le mieux est l’ennemi du bien. Both Voltaire and Kennedy understood that perfection is lethal to human beings and that seeking it is inimical to progress. Voltaire had seen the persecutions and illiberalisms that religious perfectionists imposed on his country (and to avoid which he had to go ito exile in Ferney, Switzerland, outside Geneva.) Ted Kennedy, who achieved so much reform, knew, too, that no progress would have resulted had he refused to yield to opponents.

We live these days in an arena of clashing insistences. What are we to do about it ? All around us is noise and inflammation.

—- Mike Freedberg / Here and Sphere

 

 

 

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