Fascism and Failures of Democracy

One of the subjects I intend to give a lot of emphasis is fascism.  Famously, fascism is one of the ways that democracy can fail, but only one.  One of my great inspirations here is a comment to one of my blog posts on the Tea Party and fascism.  The commenter said that just because the Tea Party is not fascist does not mean that it is not dangerous.  Why can't American fascism be different from classic European fascism.  So I intend to compare a lot of failures of democracy to that great iconic failure in fascism and see -- how many traits of fascism are generally common to failures of democracy in general and how many are unique.  Or put differently, have there been other, semi-fascist movements that usually go unnoted.

So what is fascism?  I intend to go over its traits as set forth by professionals, but also to address some of its other traits as well.

Fascism is a middle class populist movement.  Like populist movements in general, it does not fit easily on the right-left spectrum.  It both punches up and kicks down.  But like middle class populist movements in general, it was driven first and foremost by fear of displacement from below, and therefore focused more on the kicking down.  Furthermore, in no country did a fascist party ever gather enough votes to win a majority and come to power entirely on its own.  In most countries, this prevented true fascists (as opposed to more broadly generic right wing dictatorships) from coming to power.  When fascism did come to power, it was by cutting a deal with entrenched, powerful interests to protect them from revolution from the Left.  As such, it had to curtail the punching up.

Fascism is driven by both fear and ambition, but fear predominates.  This is closely related to the previous point.  Clearly, Mussolini and Hitler were charismatic leaders of overweening ambition.  They also attracted some lower class followers (particularly as street thugs) by appealing to their ambition for a better life, and an opportunity to tear down people above them.  But first and foremost, they appealed to middle class fear of revolution from the Left.  Ambition gave fascism its leaders and its street followers, but its success as a mass movement and at the ballot box came from fear.  All of this should point up something important.  The middle class is typically fairly content with the social order and not driven by ambition to pull down the class above them and take their place.  It is driven far more by the fear of being pulled down from below.  This is (presumably) why the danger lies mostly on the right.

As for professional historians, this one describes the concrete institutions of fascism as, "a paramilitary party that has taken over the state and claimed an effective monopoly of political activity, the abrogation of the procedures of liberal democracy, the actual militarization of society, the successful penetration of the state into the everyday life of the individual, and a very significant degree of actual state regulatory control over the economy."  All but the first are traits of fascism after it has seized power, and I am more interested in how fascism seizes power than what it does when it gets there (except as a continuation of how it seized power).  Even before fascism comes to power, it is characterized by a paramilitary party that aspires to take over the state and claim an effective monopoly of political activity.  But an out-of-power fascist party is not just any paramilitary.  It is an association between a paramilitary and a political party.  In other words, the rebels in the hills seeking to overthrow the government outright are not fascists.  A fascist paramilitary is associated with a political party that competes in a democratic process.  But it does not play fair.  It uses violence to intimidate its opponents.  Nor paramilitaries that are simply hired guns for the powerful fascists.  The Pinkerton Detectives or a Latin American death squad are not fascists.  A fascist paramilitary is a populist paramilitary outside the control of either the state or the powerful.  This understandably makes powerful interests extremely leery of fascists unless they are able to cut a deal behind the scenes.

So, middle class populist movement, driven primarily by fear, but also by ambition, and a combination of political party and populist paramilitary.  These are traits I will hold up for comparison in seeing how much various anti-democratic movements resemble true classical fascism.

And now for the old standbys.

From Stanley Payne, in Fascism: Comparison and Definition (1980):

A. The Fascist Negations:
-- Anticommunism.  I will amend this to anti radicals who threaten the social order.  This is something I expect to see very commonly in right wing anti-democratic movements in all times and places.
-- Antiliberalism.  I will amend to add inability to distinguish between radicals and liberals, and as a result, gross exaggeration of the dangers posed by even moderate reformers.  This is another trait I expect to see a lot of in right wing anti-democratic movements.
-- Anticonservatism (though with the understanding that fascist groups were willing to undertake temporary alliances with groups from any other sector, most commonly with the right).  I do not expect to see this in most right wing anti-democratic movements.  I expect most to range somewhere from conservative to reactionary.

B. Ideology and Goals:
-- Creation of a new nationalist authoritarian state based not merely on traditional principles or models
-- Organization of some new kind of regulated, multiclass, integrated national economic structure, whether called national corporatist, national socialist, or national syndicalist
-- The goal of empire or a radical change in the nation’s relationship with other powers
-- Specific espousal of an idealist, voluntarist creed, normally involving the attempt to realize a new form of modern, self-determined, secular culture.
Based on what I have seen of dangerous right wing movements in the US and (to a lesser extent) in other countries, I do not expect to see these traits very often.  Most right wing anti-democratic movements are driven by a desire to protect existing structures of power and privilege.  Most left-wing anti-democratic movements are driven by a desire to pull down the powerful and rise up to take their place.  These (rather vague) goals may very well prove to be unique to classical fascism.

C. Style and Organization:
-- Emphasis on esthetic structure of meetings, symbols, and political choreography, stressing romantic and mystical aspects.  No idea whatever how common this will be.
-- Attempted mass mobilization with militarization of political relationships and style and with the goal of a mass party militia.   I expect to see a lot of this in anti-democratic movements, right and left, overall.
-- Positive evaluation and use of, or willingness to use, violence.  Ditto.  I fully expect private armies and political violence to be a major symptom of failure.
-- Extreme stress on the masculine principle and male dominance, while espousing the organic view of society.  I don't have a good sense of this one.
-- Exaltation of youth above other phases of life, emphasizing the conflict of generations, at least in effecting the initial political transformation.  This, I suspect, will be a trait mostly limited to classical fascism and not much seen in any other anti-democratic movement.
-- Specific tendency toward an authoritarian, charismatic, personal style of command, whether or not the command is to some degree initially elective.  Well, yes authoritarianism is sort of inherent in all anti-democratic movements and I expect to see it quite regularly.  As I have said before, the charismatic, personal style is something I expect to see primarily on the left, though it may exist somewhat on the right as well.


Robert O. Paxton, The Anatomy of Fascism, and the "nine mobilizing passions":

-- a sense of overwhelming crisis beyond the reach of any traditional solutions;  I expect to see this in all anti-democratic movements, but would expect it to be stronger on the right than the left, because the right is apt to be more fear-based.

-- the primacy of the group, toward which one has duties superior to every right, whether universal or individual, and the subordination of the individual to it;  to be honest, I don't have any sense how often we will see this.

-- the belief that one's group is a victim, a sentiment which justifies any action, without legal or moral limits, against the group's enemies, both internal and external; this is another one I expect to see a lot of, right and left.  The difference will be that it will be more justified  in a situation of punching up than one of kicking down.

-- dread of the group's decline under the corrosive effect of individualistic liberalism, class conflict, and alien influences; ignore the part about "individualistic liberalism, class conflict and alien influences."  I don't know how much we will see of this.  But dread of one's group's decline, like the sense of overwhelming crisis, is something I expect to see a lot of in right wing anti-democratic movements.  Fear, often grossly exaggerated, will be their defining trait.

-- the need for closer integration of a purer community, by consent if possible, or by exclusionary violence if necessary; tough to say.  On the one hand, this sounds like a sort of reactionary desire to turn back change that one would commonly see in right wing movements.  On the other hand, it sounds a lot like Payne's ideology and goals of fascism -- a trait largely restricted to classical fascism.  I guess we will see.

-- the need for authority by natural leaders (always male), culminating in a national chief who alone is capable of incarnating the group's destiny;  I expect the emphasis on charismatic leaders to be more characteristic of left-wing anti-democratic movements than right wing.

-- the superiority of the leader's instincts over abstract and universal reason; ditto.

-- the beauty of violence and the efficacy of will, when they are devoted to the group's success; yep, I imagine we will be seeing a whole lot of this from all sides.

-- the right of the chosen people to dominate others without restraint from any kind of human or divine law, right being decided by the sole criterion of the group's prowess in a Darwinian struggle.  This is a bit extreme, and I don't expect to see it much outside of true classical fascism.  But I do believe that there is a strong tendency among right wing anti-democratic movements to confuse the interests of the elite with the common interest, and threats to their domination (seen as natural and right) with madness, anarchy, Bolshevism, or whatever.  In other words, I expect to see a lot more of this when driven by fear than when driven by ambition.

In short, while I emphatically do not accept the Liberal Fascism hypothesis that fascism is a movement of the left, I do expect it to differ in a number of ways from the typical right wing anti-democratic movement and even to have traits more typically characteristic of the anti-democratic left.  Typical right-wing traits of fascism are its deep-seated basis in fear, especially middle class fear of displacement from below, its fondness for kicking down, and its hatred and fear of radicals and liberals and inability to distinguish between them.  But it also has some traits more characteristic of the anti-democratic left, particularly its dependence on charismatic leaders of insatiable ambition, its willingness to punch up, and its desire to transform society, albeit not in the way the left would wish to transform it.  

So, I will be running the various anti-democratic movements through these criteria to see how much they resemble classical fascism.

A Note on Terminology

So, in my last post, I made extensive use of the terms "right wing," "left wing," and "populist."  These terms get used a lot, but they are sufficiently vague and abstract that they need definition.  So here goes.

On economic issues, right wing can roughly be defined as meaning upholding the status quo of power, while left wing would mean opposing the status quo of power.  Obviously, opposition to the status quo of power can cover a wide range, from moderate reform to all-out revolution.  In one way, these are very important distinctions -- they are the distinction between the reformist left and the revolutionary left, the loyal left and the disloyal left.  But if my hypothesis is correct, in another way the distinction may not be so important. One sign that the right wing has become dangerous is that it loses its ability to distinguish between the radical and the moderate left and starts panicking over even moderate reformers.  On social issues, the right upholds traditional values while the left is critical of them (again, to varying degrees).  The right is often driven by fear of change; the left by ambition for something better.

But above all else, and central to the definition I expect to use here, the left wing punches up; the right wing kicks down.  I don't mean that either does so exclusively.  Any John Birch Society, Austrian School, or Mises Institute site is rife with punching up against evil banks (and government, of course).  And the history of the labor movement has plenty of kicking down against immigrants and minorities who threaten to undercut unions.  But right wing fulmination against evil bankers is balanced by anger at anyone who would infringe on the freedom of non-financial capitalists to pursue profit as they wish.  And militant unions never forget that the boss is their primary enemy.

I should add here that I think we liberals are a little to quick to romanticize punching up.  Inciting anger against the powerful appeals to the same base instincts as inciting anger against the powerless.  There can be no doubt that powerful are often corrupt and abuse their power, that reforms are sometimes needed, or that punching up can be appropriate.  But some reforms are ill-advised or dangerous, and punching up can bring on a terrible confrontation.  We liberals should be cautious with it.  But we are absolutely right to condemn kicking down.

Populists movements are ones that claim to be the voice of the people.  The term is often used as a pejorative to suggest that populist movements appeal to the people's resentments rather than their hopes, or that they appeal to base instincts.  I hope to look at the degree to which that is true.  But for right now, I would say that populism does not fit easily of a right-left spectrum.  On economic issues, it opposes the status quo of power.  On social issues, it upholds traditional values.  It both punches up and kicks down.  Whether a populist movement gets classified as right or left is a matter of emphasis.  What does it emphasize more, criticism of the economic status quo of power, or calls up uphold traditional values?  Does emphasize punching up or kicking down?

My next post will be on fascism, the most slippery concept of all.

PS:  And then there is the nebulous matter of scapegoating a wealthy but politically powerless minority.  Is this punching up or kicking down?  It has elements of both.

PPS:  I should add two more thoughts.  First, one of the great evils of punching up is not just that it can bring on a terrible confrontation, but that it can unleash a mad frenzy of nihilistic destruction -- think peasant revolts, slave revolts, Communism, etc.  It is too often driven, not by people's aspirations for something better, but by people's hatred and desire to tear down the people above them, not a desire to raise themselves up.  So punching up is a thing that can be necessary and useful, but must be very carefully controlled, and not romanticized.

The other is a note on terminology.  I have already said that I define left wing populism as one that primarily punches up, even if it also kicks down, and right wing populism as one that primarily kicks down, even if it also punches up.  I will speak of "pure" left wing populism as one that punches up only and does not kick down.  Thus by my definition a "pure" left wing populism may be socially conservative.  It may have its primary base among people who are not at the very bottom of the social ladder, and it may do little or nothing for people below its primary constituency.  But it does not kick down, that is it does not treat people below its primary constituency as scapegoats, or incite hostility toward them, or seek to lower their status even further.  "Pure" left wing populism exists, or at least has existed, but it generally has limited appeal because the seductive allure of kicking down is just too great.  A "pure" right wing populist is one who kicks down only and does not punch up.  They may exist, but if so, they can't be very common.  The basic desire to be a scrappy underdog fighting the mighty powers arraigned against one is simply too important a part of populist psychology for a "pure" right wing populism to work very well.  So most populist movements will both punch up and kick down, and the important distinction will be on the emphasis.

PPPS:  This is perhaps the ultimate description of the psychology of right wing populism:

The salient fact of American politics is that there are fifty to seventy million voters each of who will volunteer to live, with his family, in a cardboard box under an overpass, and cook sparrows on an old curtain rod, if someone would only guarantee that the black, gay, Hispanic, liberal, whatever, in the next box over doesn’t even have a curtain rod, or a sparrow to put on it.

Just fill in any other nationality and whatever groups they prefer to kick down on, and it will fit just as well.

PPPPS:  And punching up at its worst means living in a cardboard box under an overpass without sparrows or a curtain rod and wanting only to destroy your neighbors sparrows and curtain rod instead of to have one's own.

Preliminary Hypotheses

I am not ready yet to bring any specifics to my proposed series looking at how various democratically elective governments have failed. But I do have some more general predictions to add to it. Previously I proposed four preliminary hypotheses:

1. Democracies fail as a result of extreme, out-of-control polarization and strife;
2. Simultaneous a cause and a symptom of such polarization are parties that abandon all respect for the rules of the game and democratic fair play and pursue victor at all costs;
3. Political violence is a very bad sign;
4. Although violent revolution from the Left is a real danger under authoritarian governments, the danger to democracy is usually from the Right.  This is not to deny that left wing parties often contribute to the polarization, but the right wing is usually the one that prevails.  The main exception is in the case of formally democratic government that have degenerated into cozy little oligarchies.  In that case, left wing populist dictators are a real danger.

To these four hypotheses, I would add the following:

Understanding the need for political parties and a loyal opposition is essential to the success of democracy.  Democracy calls for difficult skills that require learning -- accepting disagreement and dissent as normal, and learning to be a gracious loser (or winner).  Everyone loves freedom in the sense of not being constrained.  Not everyone is willing to respect the freedom of others.  Everyone is eager for the opportunity to choose their own leader.  Not everyone is willing to accept defeat.  People untrained in the habits of democracy and dissent (and even many who are so trained) tend to assume that everyone agrees with them, or at least should, and that a leader lacks popular legitimacy unless elected by near-unanimity.  For democracy to succeed, people have to accept large amounts of disagreement as a normal condition.  Losers have to learn to yield to the winners and winners to respect the rights of the losers.  Without these things, any attempt at democracy will fail.  One thing I hope to learn is how many failures of democracy were failures to overcome this most basic obstacle, and how many were something else at stake.  Because even when these rules are understood, democracy can fail.  Which leads to my next point.

Democratic governments are ill-suited for radical reforms that endanger important, entrenched interests.  This is a disturbing hypothesis for me because I goes against what I had been taught to believe -- that democracy is to be valued precisely because it has open avenues for reform and therefore is protected from violent revolution.  That appears to be only half-true.  Democracy does, indeed, appear to be a good preventive against violent revolution from the Left.  But it provides powerful interest with the tools to block major reforms, even necessary ones.  Major social transformations my occur under democratically elective governments, and sometimes democracy may facilitate dealing with the change.  But a fierce reaction invariably ensues when people start to press major reforms.  Indeed, a major catalyst for the failure of democracy is resistance to proposed reforms that threaten an important interest.

Democracy is more likely to fall as a result of fear than ambition.  This is a closely related point, and closely related to my point that the danger usually resides on the Right. Anti-democratic movements within a democracy tend to be motivated by fear, particularly fear of change and fear of displacement from below. These fears are oft-defining traits of the right wing.  The fears may or may not be justified.  When powerful interests are threatened, fears very often run riot far out of proportion to the facts.  That is part of my point from my previous post, that one of the biggest danger signs is when the right wing loses its ability to distinguish moderate reformers from true radicals.

The support of a strong middle class is essential to the health of democracy.  This is not, as some people flatter the middle class, because it is inherently more democratic than any other sector of society. Rather, it is because the middle class is strong enough to make or break democracy.  When the middle class turns against democracy, democracy's prospects are not good. When the middle class is not large enough to carry much political weight, there is nothing to buffer class struggle, and again the prospects of democracy are not good.  When the middle class turns against democracy, it is usually because it fears displacement from below.  This is the perfect set-up for a right-wing anti-democratic movement.

I expect the pattern of the minority of democracies that fall to the left to differ from the ones that fall to the right.  My predictions based on some very preliminary reading would be as follows:

1. Left-wing failures of democracy are more likely to depend on a charismatic leader than right-wing ones.
2. Left-wing failures of democracy are less likely to be driven by fear than right-wing ones and more likely to be driven by ambition.  This means both the ambition of the charismatic leader for power and of the followers for a better life.
3. Left-wings failures of democracy are more likely to occur when the middle class is too small to carry much weight.
4. Left-wing populist dictators are most likely to succeed when they are aligned with broad historic trends and are simply overcoming resistance by a hidebound elite.  In such cases their rule can be benign and even constructive, though undemocratic.  But when they are fighting against broad historic trends, they are unlikely to succeed except through the most fearsome means, and the choices are limited to maintaining the status quo and enduring the horrors of revolution from the left.  That latter does not seem to happen in democratic countries, at least not in modern times.

Some democracies fall to foreign conquest.  When it is simply a matter of being overcome by military force, it is a mere misfortune and need not concern us.  But sometimes factions may place their triumph in domestic politics ahead of patriotic loyalty.  In those cases, there is widespread collaboration with foreign conquerors to achieve domestic political goals.  In these cases, the failure of democracy is at least partly due to internal failings.

When democracy fails it can fail in different ways.  Sometimes it is subverted from within by anti-democratic parties.  (That was the case under classical fascism).  Sometimes it is overthrown in a military coup.  Sometimes it dissolves into civil war.  (That was our experience, and it must be accounted a failing of democracy, even though both sided maintained democratically elective government throughout). There may be other forms of failure as well that I will discover along the way.  And perhaps there will be patterns that can predict which of these is most likely.  As of yet I do not have a sense of it.

Finally, I want to learn about the role of paramilitaries.  Certainly Mussolini and Hitler subverted democracy with their paramilitaries (although there were plenty of other paramilitaries floating around).  The Roman Republic was brought down largely by the rise of private armies.  But I do not know how commonly paramilitaries play a role.  Another thing to learn.

Very well, then.  Let me do as I have done in law school -- draw an outline of all this and plug in each example to see how well it fits.  Here is my outline:

FAILURES OF DEMOCRACY

I.       General traits of failing democracy

             A.    Extreme polarization

             B.     Abandonment of procedural norms

             C.     Frequently

                      1.            Political violence

                      2.            Private or partisan paramilitaries

            D.    Usually the danger is on the right

II.    Sub-categories of democratic failure

            A.    Failure to understand parties and a loyal opposition

                    1.            Traits unknown

            B.     Right wing (major category)

                      1.            Driven by fear

a.       Elite fear of reforms threatening power

b.      Middle class fear of displacement from below

                     2.            Failure to distinguish between radicals and moderate reformers

                     3.            Not usually dependent on a charismatic leader

                     4.            Middle class in danger of being squeezed out
          *5.     Most common triggers
                    a.  Economic crisis (major category)
                    b.  Past or present loss of a war (minor category)

           C.     Left wing (minor category)

                    1.            Driven by ambition

a.       Of leader for power

b.      Of followers for a better life

                    2.            Dependent on a charismatic leader

                    3.            Middle class usually weak

                    4.            Most likely to succeed if it follows broad historic trends  
         *5.     Most common triggers -- unknown

          D.    Foreign invasion

                  1.            Faction places triumph in domestic politics over patriotism

                  2.            Widespread collaboration to promote domestic goals

III.  Types of failure
       A.  Subversion from within
       B.  Military coup
       C.  Civil war
       D.  ????

Right now I am beginning on classical Greece.

*Update:  I add this last based an earlier hypothesis: that two that the two things most likely to bring down any government, democratic or non-democratic, were losing a war, and economic crisis.  I further hypothesized that democratic governments are usually resilient to losing a war, possibly because they have a peaceful method of getting rid of the people to be blamed for losing.  Nonetheless, democratic governments formed in the wake of military defeat can be fragile.  The threat in such cases comes almost entirely from the right.  By contrast, democratic governments (both in the 1930's and now) do not seem good at handling economic crises.  Granted, they seem good at asking people for ever greater sacrifices and inflicting pain.  But they do not seem to be able to push past people's intuitions and and take the real, painless but counterintuitive, measures needed to defeat an economic crisis.  I further hypothesized that economic crisis normally turns politics to the right, unless the right has been discredited, in which case it turns politics to the left.  So in economic crises, the threat to democracy will come predominantly from the right, though there may be danger on the left as well.  So if the two things most likely to bring down democratically elective government are the shadow of a lost war and economic crisis, and if the danger in both these cases lies mostly on the right, what triggers the crisis that makes democratic governments fall to the left?  I don't know, so far.  But I hope to find out.

A Brief Message to My Side on Same Sex Marriage

Could you please drop the obsession.  Same sex marriage is not the be-all and end-all of all issues out there. There are plenty of others at least as important and probably more.  And stop being so damn self-righteous about it.  People's views on same sex marriage are not the one and only measure of their status as good people.  Plenty of honorable, decent people disagree in good faith.  Do not write people out of all decent company because they disagree with you on this one issue.

PS:  The same message applies to the other side as well.

If Republicans Do Win the Triple Crown

Right now, Republicans winning all three branches of government in 2016 is being treated as almost a foregone conclusion.  I think that prediction is a bit premature, but let us suppose that it turns out that way. What would I think?

Well, on the plus side, presumably the fever would finally break.  Republicans would be forced to come up with a governing strategy and would presumably recognize that insanity is not a good governing strategy and would hurt their future prospects.  I could even hope that once a Democrat is no longer in the White House, Republicans might even rediscovery the value of sanity at the state and local levels and stop trying to destroy the public school systems and so forth.  Why, it is even possible private armies in the woods would disband and seeking the violent overthrow of the federal government would stop seeming patriotic.

But I can think of at least two really bad things that would result.  One would be that Republicans would now have their perfect hostage strategy -- give us control of the government or we will go insane and make the country ungovernable.  I don't want to encourage hostage taking, so as long as Republicans remain unwilling to recognize the legitimacy of a Democratic President, I want them kept out of power.

The other is the matter of civil liberties.  Their current outrage about NSA snooping is a bit rich, considering how quick they were to defend such things when George Bush was in the White House.  People even warned them at the time that sooner or later the spy apparatus they were creating would end up in the hands of a Democrat and then what would they think.  At the time they dismissed such fears as foolish.  We are hearing a different tune now.  But make no mistake.  As soon as a Republican returns to the White House, Republicans will lose all interest in curbing the national security state.  I want a Democrat in the White House to keep the right wing in a lather of paranoia until that goal is achieved.

Second Amendment and the First in the 18th Century

And now back to the topic of armed rebellion and one I have touched on before -- the relationship between the First Amendment and the Second.  There is relatively little formal interpretation of the Second Amendment compared with the First.  Obviously, the two are not connected.  But people's attitude toward freedom of the press, especially when it criticized the government tells us something about how people see the relationship between the individual and the state.  In turn, how people see the relationship between the individual and the state may tell us something about their opinion on forming private armies dedicated to the possible violent overthrow of the government.

The outstanding historian I know of the First Amendment is Leonard Levy. This is probably the best linkable form I have for his writing, although of course it is only an abbreviation.  In brief, our principle of freedom of the press began with John Milton's Areopagitica. Its arguments are much the same as the arguments for freedom of speech and the press today -- no one can be trusted with the power of deciding what is legitimate to be read, even the worst books can be useful in demonstrating their error, people must be trusted to decide for themselves what is worth reading and believing, and there is always more truth to be learned. But if the arguments are similar to ours, the underlying concept of freedom of the press is not.  To Milton, freedom of the press only meant freedom from prior restraints, i.e., from licensing and censorship.  It did not place any constraints on prosecution after publication.  The boldest thinkers of the 17th Century did not move beyond Milton.  Roger Williams, champion of that radical notion that no religious ideas were dangerous enough to suppress, hastened to add that this rule did not extend to criticisms of the civil magistrate.  John Locke likewise saw freedom of the press in terms of freedom from prior restraint. Freedom of the press was considered compatible with seditious libel laws, criminalizing any publication tending to bring government into "hatred or contempt."  Truth was not a defense.  Quite the contrary, the accepted rule was, "the greater the truth, the greater the libel" because because a statement proven true would bring greater hatred or contempt on the government than one proven false.  Furthermore, the judge decided whether the publication was libelous or not.  The jury only determined publication (an issue usually not in much dispute).
This was also the law in the American colonies in the 18th Century, although it was often not enforced.  The famous Peter Zenger trial established truth as a defense to seditious libel, and allowed the jury to determine whether the publication was libelous.

Such was the state of affairs when the First Amendment was enacted.  As everyone knows, the First Amendment begins, "Congress shall make no law."  This limited the scope of the Amendment in one obvious way and another way that was less clear.  Most obviously, the First Amendment did not apply to the states, which were free to restrict the press as they pleased.  The other, less clear limit on the scope was that, although it forbade Congress from passing a statute limiting freedom of the press, it was not clear whether common law (judge-made) restrictions, such as the common law of seditious libel, still applied.  But the general assumption appears to have been that "Congress" could be treated as roughly synonymous with the federal government and that what was forbidden to Congress was forbidden to the federal government in general.

The article I linked prefers to leave it at that.  Since the First Amendment did not apply to states, one should leave that as decisive and simply assume that anything was allowed to the states.  They dismiss as irrelevant Levy's attempt to determine what was allowed the states.  But Levy's point is sound.  Although under the Constitution anything was allowed to the states, even prior restraints, in the eyes of elite and public opinion (and in many state constitutions), there was a range of opinion on what was appropriate.  Everyone agreed that prior restraints were not to be allowed.  Everyone agreed that prosecution after the fact was allowed, including for seditious libel.  What was not agreed upon was whether truth should be a defense to seditious libel, and whether the jury should be allowed to determine truth.

Consider the language of state bills or rights on the subject (following the contemporary practice of listing states geographically from north to south):

New Hampshire:  XXII. The Liberty of the Press is essential to the security of freedom in a state; it ought, therefore, to be inviolably preserved.
Massachusetts:  XVI.--The liberty of the press is essential to the security of freedom in a state: it ought not, therefore, to be restrained in this Commonwealth.
[Connecticut and Rhode Island were still operating under their colonial charters and are therefore excluded].
New York:  Not addressed.
New Jersey:  Not addressed.
Pennsylvania, 1776 Constitution:  XII. That the people have a right to freedom of speech, and of writing, and publishing their sentiments; therefore the freedom of the press ought not to be restrained.  A new Constitution was adopted in 1790 that provided:  

Sect. VII. That the printing presses shall be free to every person who undertakes to examine the proceedings of the legislature, or any branch of government: And no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions is one of the invaluable rights of man; and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty. In prosecutions for the publication of papers, investigating the official conduct of officers, or men in a public capacity, or where the matter published is proper for public information, the truth thereof may be given in evidence: And, in all indictments for libels, the jury shall have a right to determine the law and the facts, under the direction of the court, as in other cases.

Delaware: Sect. 23. That the liberty of the press ought to be inviolably preserved.
Maryland:  Art. 40. That the liberty of the press ought to be inviolably preserved; that every citizen of the State ought to be allowed to speak, write and publish his sentiments on all subjects, being responsible for the abuse of that privilege.
Virginia:  Section 12. That the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotic governments.
North Carolina: XV. That the freedom of the press is one of the great bulwarks of liberty, and therefore ought never to he restrained.
South Carolina Constitution of 1776:  No bill of rights.
South Carolina Constitution of 1778:  XLIII. That the liberty of the press be inviolably preserved.
Georgia:  ART. LXI. Freedom of the press and trial by jury to remain inviolate forever.

Clearly, then, although most states guaranteed freedom of the press, they were notably vague in their language whether anything was promised except for freedom from prior restraint.  Maryland expressly reserved the authority to prosecute after the fact.  Only Pennsylvania (after 1790) guaranteed the defense of truth in public matters, and the right of the jury to decide truth.

Although not among the original 13 states, two others had been admitted at the time the Alien and Sedition Acts brought the issue to a head.

Vermont Constitution of 1777:  XIV. That the people have a right to freedom of speech, and of writing and publishing their sentiments, therefore, the freedom of the press ought not to be restrained.
Vermont Constitution of 1793:  That the people have a right to freedom of speech, and of writing and publishing their sentiments, concerning the transactions of government, and therefore the freedom of the press ought not to be restrained.
Kentucky: Printing presses shall be free to every person who undertakes to examine the proceedings of the General Assembly or any branch of government, and no law shall ever be made to restrain the right thereof. Every person may freely and fully speak, write and print on any subject, being responsible for the abuse of that liberty.
Tennessee:

Section 19. That the printing press shall be free to every person to examine the proceedings of the Legislature; or of any branch or officer of the government, and no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions, is one of the invaluable rights of man and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty. But in prosecutions for the publication of papers investigating the official conduct of officers, or men in public capacity, the truth thereof may be given in evidence; and in all indictments for libel, the jury shall have a right to determine the law and the facts, under the direction of the court, as in other criminal cases.

Of these other three states, then, Vermont is hopelessly vague, Kentucky, like Maryland, expressly reserves the right to prosecute after the fact, and Tennessee, like Pennsylvania, expressly allows truth as a defense to seditious libel and the jury to determine truth.

Such was the state of affairs in 1798, when the Alien and Sedition Acts were passed.  These federal statutes outlawed the publication of any "false, scandalous and malicious" writing against the government.  In this, Levy emphasizes, the Alien and Sedition Acts allowed considerably greater latitude than the common law. The writing must be "false, scandalous and [not or] malicious."  Truth was thus a defense, and some sort of evil motive had to be shown. In short, as Levy comments, the Alien and Sedition Acts were considerably less harsh than the common law of seditious libel.  They met the strongest standards of protection of press freedom up to that date.  And they were seen as outrages.

It is certainly possible that one reason the Alien and Sedition Acts were seen as outrages was not that criticisms of government were being prosecuted, but that the federal government, rather than the states,
was doing the prosecuting.  Indeed, many states also prosecuted seditious libel at the time.  It is also true that the Jeffersonian Republican Party generally (and almost certainly correctly) saw these laws, not merely as outrages against freedom of the press, but as attempts to suppress the opposition.  At the same time, many Republicans at the state level were seeking to suppress the Federalists.  But amidst all this uproar, a new idea arose -- the idea that allowing truth as a defense to seditious libel was not sufficient. Instead, true freedom of the press meant that in a free republic, there was no such thing as seditious libel, and that bringing government into "hatred or contempt," even with lies, was not a crime.*

The constitutionality of the Alien and Sedition Act was never tested in federal court, because it was no secret at the time that the federal courts were stuffed with Federalist judges who put loyalty to party ahead of fidelity to the Constitution, and even if they had been struck down, the states would not have been affected. Nonetheless, in the court of public opinion, the Alien and Sedition Acts were clearly found unconstitutional and the whole idea of seditious libel rejected, whether at the federal or state level.  Not until over a century later, during WWI did the Supreme Court actually address the First Amendment and, indeed, find that truth was a constitutional defense, and that government's authority to prosecute seditious speech was extremely limited.

What, one may ask, does this have to do with the Second Amendment?  Directly, not much.  But it does show something about how the state was viewed at the time.  At common law, writings bringing government into "hatred and contempt," even if true, could be prosecuted.  So it is fair to ask, if it was generally accepted at the time the Bill of Rights was enacted that writings that brought government into "hatred and contempt" could be prosecuted, and the only controversy was whether truth should be a defense, how likely is it that private armies dedicated to the possible violent overthrow of the government were seen as perfectly acceptable?

________________________________________
*Lies about any individual could still be civilly actionable as ordinary libel.

The Only Thing That Could Break the Fever

So, the Republicans allowed a clean debt ceiling increase to pass.  Is this a sign that the fever has finally broken?  I would say yes and no.  Ultimately, only one thing was ever going to break the fever -- return to power.  Once Republicans return to power, two things will happen.  First, the electorate will hold them responsible if they do anything too nutty.  Second, the natural order will be restored and they won't have to panic and set out to destroy government because they will now be confident that it will never fall into the hands of the Democrats again.  Right now, Republicans see the mid-terms as theirs to lose.  They will run against Obamacare and coast to victory, barring spectacularly self-destructive behavior, and they fully expect to win the triple crown in 2016.  So right now they are holding the nuttiness in check until after the election.

So, what happens after the 2014 midterms (assuming Republicans are right and they retake the Senate)?  To they look ahead to the 2016 election and maintain discipline until then, or do they sigh with relief and set out to destroy the Kenyan Muslim socialist anti-colonialist and his monstrous Obamacare once and for all?  In other words, having put off any debt ceiling confrontations until after the next election, will they then promptly come out swinging and push for the biggest ransom demand yet?

I  am not a Republican, so I cannot answer.  But I see a definite risk in a strategy of all-out confrontation, or root-and-branch opposition to Obamacare.  It is one thing to run for election by denouncing Obamacare, blaming it for every disruption in insurance that has happened since its implementation, and calling for its repeal.  It is quite another to actually undo the disruptions that have happened (whether related to Obamacare or not) and to refrain from causing any more.  Put differently, running on a platform of anger over Obamacare is one thing.  Any actual attempt to repeal it is another.  At least one commentator believes that Republicans will be willing to vote to repeal the Medicaid expansion and strip millions of their health insurance from anyone on their states, or anyone who would vote Republican, so why not.  But Obama would presumably  veto any such measure passed in the ordinary course of legislation, so they would have to resort to a debt ceiling confrontation to actually pass it.  Lather, rinse, repeat.  Most other attempts to end Obamacare will mean shutting down exchanges where some portion of the population buys insurance, stripping people of subsidies, seeking to raise rates and cut benefits, and other measures that will not be popular.  In the meantime, further disruptions may or may not occur in late 2014, but it seems a safe assumption that more people will also sign up.  And by 2015 and 2016, most of the worst disruptions will be past, and repeal will be more disruptive than letting the status quo remain.

In short, running against Obamacare in 2014 may well be a winning issue.  Spending the next two years trying to shut down exchanges, strip people of insurance or subsidies, raise premiums, and cause general disruption, and pledging in 2016 to finish the job is unlikely to succeed.

Nonetheless, I see no reason to doubt the conventional wisdom that says the Republican will take the Senate in November.  Forecast: two very rough years ahead.

Julius Caesar

Julius Caesar

I belong to a group that reads and thoroughly dissects Shakespeare plays.  Right now we are on Julius Caesar.  The discussion can be interesting.

Caesar is a controversial figure and has long been so.  On the one hand, he was a dictator who crushed the Roman Republic and heaped himself with honors that reflected a grossly inflated ego.  On the other hand, he was a brilliant general and administrator, a champion of the common people, and a generous victor who sought reconciliation rather than slaughtering his enemies (as was the custom by then).

The controversy continues to this day, and is reflected in our group.  Some members are appalled at the honors he heaped upon himself, up to even renaming the month of his birth from Quintillus (fifth month; the year began with March) to July (as in Julius).  Others see him as admirable in many ways.  One even said -- with great unease because what he was proposing was grossly immoral -- that Caesar's real mistake was in not slaughtering his enemies the way everyone else did because it gave them the opportunity to slaughter him instead.  But of course, if Caesar were to slaughter his enemies, then what would there be to distinguish him from anyone else, or make him admirable?

In any event, the title of the play is misleading.  Caesar is a fairly minor character and is killed at the beginning of the third act (out of five).  The play really should be called Marcus Brutus because Brutus is the real hero of the play, but that would not be as impressive a title.  Brutus is an even more controversial figure than Caesar.  He took part in Caesar's assassination although he was Caesar's best friend and even rumored to be his illegitimate son.  So was this a noble act, placing the freedom of Rome ahead of all personal feelings and ties, or was it a vile act of treachery?  The play takes the former view, although many of Shakespeare's other plays refer to Caesar as a hero and Brutus as a vile traitor.  And our champion of Caesar made further arguments against Brutus.  While Caesar's enemy Cato fought him to the last and committed suicide rather than accept his forgiveness, Brutus begged Caesar's mercy for fighting against him and received it, only to plot his murder.  From the standpoint of personal relationships alone, Brutus is contemptible!  The question is whether that was outweighed by the greater good of Rome and that, in turn, ultimately depends on what one thinks of Caesar.

But it convinces me that, although Shakespeare's tragedy should be entitled Marcus Brutus, one could certainly write a tragedy about Julius Caesar.  Tragedy has many forms and many analyses, and I do not know of any single definition.  But certainly one form of tragedy is one in which the hero is placed in an confronted with an impossible dilemma, in which any decision he makes will be wrong.  The hero, being a tragic hero, does not shrink from what circumstances demand of him -- he makes the choice that his character demands of him and fearlessly faces the consequences that Fate does not spare, even though he had not choice but to choose wrong.  There are other forms of tragedy, I realize.  This is just the easiest to do.  A tragedy of Caesar, then, is that he is placed in an impossible dilemma -- destroy his enemies, just the same as everyone else has done, and cease to be any different from anyone else, or else spare them and end up being destroyed by them.  Caesar will make his choice -- be Caesar and what makes him unique, no matter what the cost -- and be destroyed as a result.

I have tried my hand at writing plays once or twice before.  Maybe I will write that one some day.

The Ultimate Answer to Coincidence

And on the subject of conspiracies, what does one say to people who say something is just too far-fetched to be a coincidence; there just has to be a conspiracy?  And I will grant them, some things really are too far-fetched to be coincidences.  Some seeming coincidences do turn out to have an underlying plan.  But sometimes a coincidence is just a coincidence.  And as the ultimate argument that something really can happen just by chance, let us consult our old friend, the Mad Revisionist, denying the existence of the moon. One of the Mad Revisionist's correspondents pointed out the obvious reason the moon cannot exist -- eclipses of the sun:

1. The Moon is the EXACT SAME apparent diameter as the Sun
In my opinion this is the single greatest argument in favour of the Moon being artificial. The Moon, of course, is supposedly millions of times smaller than the sun - but because of various alleged coincidences of distance, trigonometry, apparent sizes, and all that orthodox junk, we are supposed to believe that the Moon JUST HAPPENS TO LOOK THE SAME SIZE AS THE SUN FROM HERE!
Think about it! During solar eclipses (which I personally believe to be some sort of mass-hypnosis), the moon EXACTLY covers the diameter of the sun! HOW BIG A COINCIDENCE IS THAT?
No of course it's not a coincidence. THE MOON IS FAKE!!!

And when you think about it, this really is an extraordinarily far-fetched coincidence.  The moon is, indeed, much smaller than the sun, but also closer to the earth.  As a result, because of the way we perceive objects as smaller in the distance, the disk of the sun and the disk of the moon do, indeed, appear exactly the same size, and the moon even occasionally passes between the earth and the sun and exactly covers the sun, causing an eclipse.  This does, indeed, seem like a remarkably strange confluence of events; much to convenient to be just a coincidence, so how could it be a natural phenomenon?  And yet it is a natural phenomenon.  It really is just a coincidence and no one (so far as I know) disputes it.

So if this can be just a coincidence, well then --

Fake Snow and the Silver Glass

It's official.  This country has well and truly lost its mind.  Yeah, I know, we've known that for some time, but this time it's really gone too far.  There have been recent snow storms in places that do not normally get snow.  As with every extreme weather phenomenon in recent times, some people are blaming it on geo-engineering.  But some are taking it one step further and saying it is not snow at all but -- well, something else.

Apparently this began when someone tried to melt it with a butane lighter (something that had never occurred to most people to do) and instead of melting, it sizzled and developed black soot.  Conclusion -- it must be fake.  Whoever came up with this idea then filmed it and put it onto You-Tube and inspired countless imitators who discovered the same thing.

So, people find an unusual physical phenomenon that goes against most people's intuition and expectation and instead of looking for a natural explanation, they assume a sinister government conspiracy.  A few centuries back, they would have assumed either witchcraft or a miracle.  Several sites have presented explanations that this is a normal phenomenon and not a sign that anything is wrong with the snow.  Fox News (once again showing it is mainstream) has been among them.

Given all the other nuttiness we have been seeing, why does this particular story get to me so much?  I suppose it goes back to a childhood memory -- well, an adolescent memory.  Around age 13 or 14, while washing some dishes, I held a glass under water upside down, with air in it, I observed an extraordinary phenomenon.  Suddenly the glass turned silver, mirror-like.  If I reached a finger inside it, it was not visible at all. But if the glass filled with water, the silver mirror vanished.  I was astonished.  I had never seen anything like that before.  Centuries ago, I would no doubt have regarded it as either a miracle or something sinister. And some people these days would probably see a government conspiracy, run by the Illuminati, the shape-shifting lizards or some other villain, at work.  In my innocence, I assumed it was a natural phenomenon at work, though I could not imagine what.  In high school physics, when we learned about the refraction of light, I asked about it and was told it was the result of light being refracted to the point of reflecting back altogether.  At the end of the year, we were all required to do a physics project, and everyone else built something, some of them quite impressive.  (A parabola to reflect light onto a single spot and melt a can of snow there is the one I remember best).  Instead of building something, I set out to calculate the angle of total internal reflection.  It seemed like a miserable, meager thing compared to the impressive things everyone else built, but the teacher nonetheless gave me an A for it, which I took to mean he was a very easy grader.  Several years later, my father met with him for some other reason, and the teacher congratulated him on my excellent project and said that, although it was less flashy than the rest, it was more scientific.

So I suppose that was why this particular story has gotten to me so much.  Because conspiracy theories have deprived people of the chance to find the scientific answer to real but surprising and counter-intuitive phenomenon.  Just like by silver glass.