The “earthquakes and hurricains of the moral World”

Revolutions are sudden to the unthinking only. Political Disturbances happen not without their warning Harbingers. Strange Rumblings and confused Noises still precede these earthquakes and hurricains of the moral World. In the eventful years previous a Revolution, the Philosopher as he passes up and down the walks of Life, examines with an anxious eye the motives and manners, that characterise those who seem destined to be Actors in it. To delineate with a free hand the different Classes of our present Oppositionists to ‘Things as they are,’ — may be a delicate, but it is a necessary Task — in order that we may enlighten, or at least beware of, the misguided men who have enlisted themselves under the banners of Freedom.*

Samuel Taylor Coleridge

Senator John McCain, 1936 – 2018

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Senator McCain Boarding Elevator at the Capitol (Imagine: The Washington Post)

On Sunday, September 2nd, Senator John McCain was laid to rest at the U.S. Naval Academy in Annapolis, Maryland.

I saw Senator John McCain often during my 4 years working at the U.S. Capitol Building in the early-to-mid 1990s. He was usually cordial—if not sprinting to catch a vote—and would sometimes chat with me in the hallways or while waiting for a subway car or an elevator. I was honored when McCain agreed to write me a letter of recommendation for a job I was interested in with the City of Scottsdale, Arizona. (I decided not to take the job in AZ and stay on Capitol Hill.)

A colleague of mine explained to me one night why McCain couldn’t raise his arms above his shoulders. I had never really thought about it, but I’d noticed it on a few occasions while observing McCain at events. Having been taken prisoner and severely tortured during the Vietnam War, McCain had suffered life changing injuries that, I’m sure, reminded him of his torturers all his life.

Though McCain was a Republican he was known for his political independence; thus the nickname “Maverick,” because of his ready willingness to buck his own party and vote with Democrats when he felt it was the right thing to do. This independent streak, naturally, availed him with independent–minded people. In 99/2000, McCain ran for the Republican Presidential nomination and generated a lot of enthusiasm with voters, especially young voters, via his Straight Talk Express campaign. A memorable aspect of McCain’s primary campaign, and the theme his life exampled, was his call for Americans to devote themselves to something higher than themselves and their own personal self-interests.

Now generally speaking, a politician calling for self sacrifice and devotion to a higher purpose is usually met with a bit of skepticism and sometimes mocking laughter. But that’s always been hard to do in McCain’s case. Because there is a big difference—massive, really—between those who pontificate and those who actually put up. We can talk about country, honor, and code and our dedication to preserving and protecting them, but how many of us could actually do it if faced with extreme pain and suffering—for years!—for doing so?

I think it’s worth posting a brief summary of what happened to McCain as a prisoner in Vietnam. It’s a commentary on the strength of character. It’s painful to read. But please take the time to read it. David Foster Wallace spent some time with the Straight Talk Express in 2000, and he wrote the following for Rolling Stone. In this segment, Wallace explains why McCain is a hero, not for what he did, but for what he voluntarily suffered in the service of something higher than himself.

Here’s what happen. In October of ’67 McCain was himself still a Young Voter and flying his 26th Vietnam combat mission and his A-4 Skyhawk plane got shot down over Hanoi and he had to eject, which basically means setting off an explosive charge that blows your seat out of the plane, and the ejection broke both McCain’s arms and one leg and gave him a concussion and he started falling out of the skies over Hanoi. Try to imagine for a second how much this would hurt and how scared you’d be, three limbs broken and falling toward the enemy capital you just tried to bomb. His chute opened late and he landed hard in a little lake in a park right in the middle of downtown Hanoi. Imagine treading water with broken arms and trying to pull the life vest’s toggle with your teeth as a crowd of Vietnamese men swim out toward you (there’s film of this, somebody had a home – movie camera, and the N.V. government released it, though it’s grainy and McCain’s face is hard to see). The crowd pulled him out and then just about killed him.

U.S. bomber pilots were especially hated, for obvious reasons. McCain got bayoneted in the groin; a soldier broke his shoulder apart with a rifle butt. Plus by this time his right knee was bent 90-degrees to the side with the bone sticking out. This is all public record. Try to imagine this. He finally got tossed on a jeep and taken five blocks to the infamous Hoa Lo prison – a.k.a. the “Hanoi Hilton,” of much movie fame – where for a week they made him beg for a doctor and finally set a couple of the fractures without anesthetic and let two other fractures and the groin wound (imagine: groin wound) stay like they were. Then they threw him in a cell. Try for a moment to feel this. All the media profiles talk about how McCain still can’t lift his arms over his head to comb his hair, which is true. But try to imagine it at the time, yourself in his place, because it’s important. Think about how diametrically opposed to your own self-interest getting knifed in the balls and having fractures set without painkiller would be, and then about getting thrown in a cell to just lie there and hurt, which is what happened.

He was delirious with pain for weeks, and his weight dropped to 100 pounds, and the other POWs were sure he would die; and then after he’d hung on like that for several months and his bones had mostly knitted and he could sort of stand up, the prison people came and brought him to the commandant’s office and closed the door and out of nowhere offered to let him go. They said he could just . . . leave. They had found out that McCain’s father was one of the top-ranking naval officers in the U.S. Armed Forces (which is true – both his father and grandfather were admirals), and the North Vietnamese wanted the PR coup of mercifully releasing his son, the baby-killer.

John S. McCain III, 100 pounds and barely able to stand, refused.

The U.S. military’s Code of Conduct for Prisoners of War apparently said that POWs had to be released in the order they were captured, and there were others who’d been in Hoa Lo a long time, and McCain refused to violate the Code. The commandant, not at all pleased, right there in the office had guards break McCain’s ribs, rebreak his arm, knock his teeth out. McCain still refused to leave without the other POWs. Forget how in movies stuff like this happens and try to imagine it as real: a man without teeth refusing release. McCain spent four more years in Hoa Lo like this, much of the time in solitary, in the dark, in a closet-sized box called a “punishment cell.”

Maybe you’ve heard all this before; it’s been in umpteen different media profiles of McCain. But try to imagine that moment between getting offered early release and turning it down. Try to imagine it was you. Imagine how loudly your most basic, primal self-interest would have cried out to you in that moment, and all the ways you could rationalize accepting the offer. Can you hear it? If so, would you have refused to go? You simply can’t know for sure. None of us can. It’s hard even to imagine the pain and fear in that moment, much less know how you’d react.

But, see, we do know how this man reacted. That he chose to spend four more years there, in a dark box, alone, tapping code on the walls to the others, rather than violate a Code.

Maybe he was nuts. But the point is that with McCain it feels like we know, for a proven fact, that he’s capable of devotion to something other, more, than his own self-interest. So that when he says the line in speeches now you can feel like maybe it’s not just more candidate bullshit, that with this guy it’s maybe the truth . . .  The fact is that John McCain is a genuine hero of the only kind Vietnam now has to offer, a hero not because of what he did but because of what he suffered – voluntarily, for a Code.

Whether one agreed with McCain’s politics or not really shouldn’t matter. What should matter, I think, is the high regard this nation owes to Senator McCain and those like him who truly serve this country (in the military or in public service) and who have or may be called upon to sacrifice for those ideals and institutions and freedoms that we all so cherish. Without them, without people like John McCain, we would not have the freedoms and way of life we love.

If there was ever a time we needed more John McCains on Capitol Hill, it’s now.

His leadership will be sorely missed.

My First Political Memory

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Jimmy Carter & Gerald Ford

Jon Meacham recently tweeted about his first “political memory,” which he said was watching Richard Nixon’s resignation speech. An apt memory for the young (5 years old at the time) Meacham who would become a Pulitzer Prize winning Presidential biographer.

For me, my first political memory was from the presidential election of 1976. America’s choice was between Gerald Ford (R) and Jimmy Carter (D). I was 11 years old at the time. My father and mother supported Gerald Ford and so naturally I was a Ford supporter. On the morning of the election, I remember standing at the bus stop at the corner of Preakness Way and Edwin Drive, holding up a makeshift Ford sign, yelling “Vote for Ford!” at the cars passing by. My best friend John, the same age, stood next to me waving an American flag and yelling “Vote for Carter!” at the same cars.

At our age, we really didn’t know much about politics, and our minds certainly hadn’t hardened into any strict partisan positions. We still had, for the most part, open minds. We were just having fun. Politics, policy, and the leadership of our nation was going to happen regardless of who won. We didn’t feel uneasy or disturbed about who won. This sense of permanency, of the fundamental decency and stability of the American way of life, was never something we doubted. Like the stars in their courses, it was the law of our mental cosmos. And this was so, in large part, because our society respected and demanded certain norms from our public officials & leaders.

At 11 years old John and I might not have understood what the issues were, but we saw two gentlemen (Ford & Carter) who comported themselves in a manner that showed dignity and respect for the office they sought. Of course, just 2 years earlier President Nixon had resigned in disgrace because he had violated those norms (and the law) and his own party, putting country over party and politics, told Nixon he needed to resign. It was a sad day for the nation, but a victory for the rule of law and the American way of life.

It’s All About Proportion

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Edmund Burke

In 1791, in a letter to a Member of the National Assembly, the British philosopher and statesman Edmund Burke wrote:

Men are qualified for civil liberty in exact proportion to their disposition to put moral chains upon their own appetites, — in proportion as their love to justice is above their rapacity, — in proportion as their soundness and sobriety of understanding is above their vanity and presumption, — in proportion as they are more disposed to listen to the counsels of the wise and good, in preference to the flattery of knaves. Society cannot exist, unless a controlling power upon will and appetite be placed somewhere; and the less of it there is within, the more there must be without. It is ordained in the eternal constitution of things, that men of intemperate minds cannot be free. Their passions forge their fetters.

The above quote calls to mind another quote by the Roman historian Tacitus, relating to the character of his late father-in-law Agricola, “He took from philosophy its greatest gift: a sense of proportion.”

So Burke is saying that to the degree in which men (mankind) rein in their appetites, love justice, level headedness, and wisdom, will be the degree that men are capable, or qualified for (psychologically and socially) civilization, and without need for a greater degree of external (law and government) restraint or supervision. An observation that seems well supported by history, psychology, and common sense. Arguably, Burke is anticipating Sigmund Freud, and his idea that Civilization and its Discontents (degrees of restraint) actually make civilized society possible. In other words, civilization may have its discontents but God knows we wouldn’t want to live without them!

Of course Burke believed that the “controlling power” in each individual should mostly come from culture, custom, religion, and tradition. For the most part, I think Burke was right, but with a caveat—that surely Thomas Paine and the American Founders, revolutionaries themselves, I remind you, would sympathize with—that while all of these things are important, they can sometimes be the very things that are complicit in forging our fetters. Thomas Jefferson was thinking, I believe, along these lines when he wrote: “I have sworn upon the altar of God eternal hostility against every form of tyranny over the mind of man.” The tyrannies we suffer under aren’t always from the acts of other men, but are more often from pernicious ideas and beliefs that have slowly captured and infected our hearts and minds. And so we must be mindful that the conceptions that seemingly bind us together, may actually be the ideas, the mental chains, that are truly enslaving us.

I can imagine Burke, with a little chuckle in his voice, listening to all this and replying, in that Englishman’s voice slightly tinged with an Irish brogue, “Well, sir, I did say it was all about proportion.”

“The Constitution has erected no such single tribunal”

Abraham Lincoln’s words have always stuck with me:

The candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court…the people will have ceased to be their own rulers. 

Some years ago—the early 1990s—my job entailed periodically listening to Congressman Charles Taylor give after hour tours of the Old Supreme Court Chamber to small groups of his constituents. The congressman enjoyed talking history and, being a lawyer himself, seemed especially engaged during his old court tours. The most interesting part, I thought, was when the congressman discussed the supreme court’s Marbury v. Madison (1803) opinion, which established the supreme court’s judicial review authority.

Congressman Taylor would point to the chief justice’s chair and say something to the effect of: “It was here in this room, over there in that chair, that Chief Justice John Marshall said, ‘It is emphatically the province and duty of the judicial department to say what the law is,’ thus establishing the court’s judicial review authority.” It wasn’t my place to get involved, but this was the part in his tour where I wanted to raise my hand. So you understand, the U.S. Constitution didn’t explicitly say the supreme court had the right or power of judicial review. No, Chief Justice Marshall, unchallenged by the Congress, basically seized that authority. Bloviate as some lawyers may, and do, the Founders did not grant this authority to the high court. And for good reason…I would argue.

The high court’s majority renders its “opinion.” Oftentimes the court’s minority (or dissenting) opinion is just as valid and equally well argued. They just got outvoted, that’s all. And true to form (human nature), many times the opinions of each justice aligns—oh so conveniently—with their perceived political ideology. This is especially true—though admittedly, not always—in big cases, involving hot political topics. On top of that, members of both political parties will openly praise or condemn justices appointed by their party if that justice has or hasn’t pulled the party line during a big court decision. No hiding the expectations in other words.

Much to the contrary about justices being “objective” and “just enforcing the constitution,” the members of the Senate like to appoint justices, naturally, that further their party’s political ideology. For me, the simple truth is the supreme court is mostly just another political body—but, unlike the other two branches, an unaccountable one. For smaller cases, where there’s little political significance, the justices will tend to be more judicious. But in larger cases, where big political stakes involved, the justices decide mostly inline with their politics. Like everyone else the justices are human and so their motives are never truly pure. As William James wrote: “Human motives sharpen our questions, human satisfactions lurk in all our answers, all our formulas have a human twist. . . . The trail of the human serpent is thus over everything.”

Since judicial review is based on precedence, and not a provision specifically enumerate in the U.S. Constitution, the Congress could, if they were so inclined, enact a law stripping the high court of this final authority. The court could do nothing about it. The supreme court should function as the last stop in the federal appellant court system. But in certain cases, to use Lincoln’s words, where “vital questions” are at stake, the U.S. Congress should have the final say. The American people, through their elected representatives, should, in my view, have the final say in such legal cases the U.S Congress deems of vital importance. If it were my decision you’d have a law that requires a super majority of, say, 60% in the affirmative in both Houses of Congress to override the high court’s opinion. I think there’s a fair argument for a simple majority, but to provide for some buffering (to retrain abusers) I would recommend a super majority.

Now, if you disagree with me I welcome your opinion. But just consider some of the horrid opinions rendered by the supreme court. We’ve been forced to live with those “opinions” from unelected and unaccountable judges. All of whom, by the way, have lifetime appointments. Consider that since 1790 we’ve had only 1 of 113 supreme court judges appointed face impeachment…of which he was acquitted. So no U.S. Supreme Court justice has ever been removed from office. Think about that. That’s a lot of power and security handed to 9 very fallible and opinionated people that will (and have) ultimately impress their values and opinions, whether we like it or not, on the rest of us—a nation of hundreds of millions of people.

I respect the high court’s opinion, but I think the opinion of “the people,” via their elected representatives, will be just as equally and lawyerly argued and just as equally bias as the high court’s; except that those deciding, unlike the justices of the supreme court, will be democratically elected and accountable for their vote. Where “vital questions” are at stake the American people, in my view, should be their own rulers.

As you’ve seen from the quote above, I’m not alone in my concerns about the power and potential abuses of the U.S. Supreme Court. Besides Abraham Lincoln having serious concerns, Thomas Jefferson, in a letter to William Jarvis, also voiced a strong rebuke of the supreme court’s oligarchic power grab:

You seem to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps…. Their power [is] the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves. (Bolding added).

Thomas Jefferson was right.