How To Read the Constitution Like a Scholar

Jill Lepore, We the People: A History of the U.S. Constitution

When the militants behind the American Revolution wanted to build a government, the idea of a “constitution” already existed, but was mainly abstract. European countries like France and Spain derived constitutions from scattered law, tradition, and judicial practice; to this day, the British constitution remains unwritten, and high court proceedings often include debates about what, exactly, the constitution is. America’s Founders pioneered another idea: writing the constitution down.

Harvard historian Jill Lepore has written about the social and political forces which shape American politics. With this volume, she focuses specifically on the forces which shape our Constitution: not only the text itself, but legal interpretations, public debates, and amendment process. Though Lepore doesn’t say it, she tacitly acknowledges that America’s constitution far exceeds the document, comprising also the institutions and handshake conventions created to make the document enforceable.

Americans once loved the constitutional process, Lepore writes. Not only the national, but the local. Ratification of the current Constitution was the subject of lengthy, sometimes combative public discussions, and the original text as written satisfied nobody, though it became the text Americans could live with. Meanwhile, for over two centuries, state constitutional conventions happened, on average, once every eighteen months, and state governments almost aggressively amended themselves.

Then we stopped. America hasn’t seen a state constitutional convention since 1986 and, although the states ratified the 27^th Amendment in 1992, it was a procedural asterisk; the federal Constitution hasn’t been meaningfully amended since 1971. Certainly we can’t say that the need for developing institutions has dwindled; if anything, events of the 2010s and 2020s revealed how fatally outdated and unresponsive our Constitution has begun. What caused the change?

Lepore answers that question through the debates which surrounded the original Constitution and its amendments, successful and unsuccessful. The Founders, mostly Enlightenment rationalists, believed government could operate smoothly as a machine if removed from frail human hands, and when the original Articles of Confederation proved unsuccessful, the 1787 Convention proceeded with the attitude of social engineers. Lepore compares the 1787 Convention with concurrent developments in clockwork technology.

Dr. Jill Lepore

Almost immediately, though, Americans began demanding amendments. The original Constitution was almost entirely procedural, and omitted the moral imperatives which drove the Revolution and Shays’ Rebellion. The first Congress wanted to shepherd through a Bill of Rights, but Article V didn’t even include instructions for “correct” amendments: should changes be incorporated into the original text, or tacked on as appendices? Congress chose the latter, after some contention.

As written, the amendment process proved cumbersome. Savvy news and history readers already know this. But Lepore delves into procedural hurdles that well-meaning lawmakers, Left and Right, have faced, and how they overcame them. Sadly, one tool for overcoming intransigence is, apparently, war. After the first twelve amendments ironed out procedural and rights quirks, subsequent amendments have mostly happened in clusters surrounding the Civil War, World War I, and Vietnam.

Despite the Founders’ vision, the state machine didn’t prove immune to human influence. Lepore describes how intervening events, like the Civil War or the annexation of Hawaii, changed the Constitution’s meaning. The text didn’t vary, except where amended, but as circumstances made Americans reevaluate themselves, we also reevaluated our unifying text. America’s political leaders changed their constitutional reading to allow, say, annexing Hawaii whole, which changed our shared identity.

Likewise, powerful people—mostly unelected—changed the Constitution by changing relevant practice. Supreme Court cases like Plessy and Roe read certain interpretations into procedure; Brown and Dobbs read them back out. Philosophies like “Originalism,” which arose in tandem with changing opinions about abortion, created interpretive lenses which courts used to create or abolish rights, until they didn’t. The text hasn’t changed in 55 years, but the Constitution has changed wildly.

Reading this book, I recall constitutional scholar Mary Anne Franks, who compared constitutional adherence to religious fundamentalism. If the Constitution has become holy writ, then Lepore’s telling reads like a history of hermeneutics, the processes of scriptural interpretation. Just as Christians have read and reinterpreted the Bible considering surrounding cultural influences, Americans have reinterpreted the Constitution to reflect the conditions in which our country lives.

This religious comparison isn’t flippant. Late in the book, Lepore writes that nations treat new constitutions as tools, but old constitutions, not just America’s, become venerated. The American Constitution was once esteemed so lightly that the original sheepskin parchment got misplaced; now it’s a sacred relic of state sacrament, hardened against nuclear attack. If Americanism is a religion, then changing hermeneutics deserves serious, almost monastic study.

Police, Paranoia, and the Streets of Minneapolis

Brian Klaas

American political scientist Brian Klaas, in his 2001 book Corruptible, describes two different recruitment ads for police departments. In the first, for the tiny Doraville, Georgia, PD, features a flashing image of the Punisher logo from Marvel Comics, six men in body armor and assault rifles, and the city’s M113 armored personnel carrier, owned by the SWAT team. The video unambiguously advertises the opportunity to bring the hammer down on Doraville’s terrible criminals and malefactors.

Klaas contrasts this to a New Zealand recruiting video. Several police officers race through the sunlit streets in conventional beat-cop uniforms, pausing to directly address the camera. Some of the featured officers are women or members of the Māori indigenous nation. The video culminates with the officers retrieving a runaway puppy and returning it to an overjoyed little girl. The quieter, lighter-toned New Zealand video emphasizes community, public-spiritedness, and a commitment to serving the citizenry.

From this, Klaas draws conclusions about which recruitment candidates each ad will attract. Doraville, with a land area of five square miles and a population barely over 10,000, will attract testosterone-fueled cosplay warriors, mostly men, who desire to manifest power. Its aggressive, violent ad will alienate the New Zealand video’s target audience of public-spirited and emotionally mature servants. Clearly the Kiwis want people unafraid to show their faces because they live and work among neighbors.

By now, we’ve all witnessed the dire footage of Wednesday’s broad-daylight murder of Minneapolis mother and poet Renee Nicole Good. Confronted by ICE officers bellowing conflicting orders, Good attempted to drive away. Agent Jonathan Ross fired three shots at Good’s moving SUV, killing her. Vice President JD Vance has claimed Ross acted in self-defense, while Homeland Security Secretary Kristi Noem called Good a “domestic terrorist.” But phone videos from multiple angles categorically disprove these claims.

Alex Vitale

ICE agents aren’t police, let’s state that clearly. They have a specific law enforcement remit that doesn’t include traffic enforcement. But it’s impossible to separate the agency’s recruitment tactics from those Klaas describes. President Taco ran on pledges to deport “the worst of the worst” and declarations of a nation riddled with enemies. ICE recruitment relies upon the twin propositions of a powerful, destructive enemy, and a strong Anglo-Saxon defender who will subjugate that enemy.

However, law enforcement by identifying enemies creates a maelstrom of probable boogeymen. Alex Vitale writes how many urban PDs constructed gang units to crack down on groups that were organized as solidarity against prior police crackdowns. Indeed, Yale historian Elizabeth Hinton describes how police forces began stockpiling military-grade weapons in the 1970s because, in the prior decade, Black communities had pushed majority-White PDs out of their neighborhoods. The police see enemies everywhere, and prepare accordingly.

Nor am I the first to notice this. More informed critics describe warrior mentality in police training. Though instructors use guardianship language, the tactics taught resemble those of occupying armies. Many PDs have rules of engagement more draconian than those used in the Baghdad Green Zone. This warrior mentality, and this reliance on violent confrontation, happen because police expect a world full of enemies. And like most humans, they find what they’re paid to find.

The outcome is truly horrific. Almost simultaneously as Agent Ross executed Renee Good without warrant, ICE agents pelted a Minneapolis high school with chemical weapons because students resisted unwarranted seizures of their classmates. Teenagers, who by nature resist authority because they’re kids. We’re approaching late-1960s levels of state paranoia, when unarmed college students marching across campus in unison justified National Guard forces opening fire at Kent State. And it will happen sooner rather than later.

Elizabeth Hinton

Renee Good’s death, like the Kent State shootings or George Floyd’s murder, happened because America’s law enforcement agencies have paranoia baked into their structure. Police academies teach rookies to regard every traffic stop as potential prelude to a gunfight. Federal rhetoric makes undocumented roofing laborers equal to convicted murderers, justifying commando-style raids. Every encounter between law enforcement and ordinary citizens begins with them evaluating us—you—as potential enemies who may need stopped or killed.

You can’t reform this. Protesters said this with “defund the police” in 2020, but heel-draggers scoffed. Because law enforcement is institutionally paranoid, every moving car is an assassination attempt. They constantly demand bigger guns because they believe us peons have artillery. But when confronted by actual shooters, as in Uvalde, they do nothing… because they’re terrified of us. You can’t train fear out of entire institutions. You can only dismantle the institutions and start over.

The Ultimate Meaninglessness of “Crime”

We’ve seen an increasing number of anecdotes trickling out about once-loyal voters rejecting the Administration’s ham-handed deportation policies. Though it’s hard to derive meaningful data from isolated anecdotes, the number of stories like this one and this one about Trump voters getting burned by the administration they once supported. Many stories share a theme: “we” thought the Administration would only deport “criminals,” and we don’t consider ourselves criminals.

On one level, they’re correct: under American statutes, immigration falls under civil, not criminal, law. “Illegal” immigration is a non-category, because the word illegal refers only to crimes, not civil violations. But on another level, this reveals something uncomfortable for many Americans, that “crime” itself isn’t a fixed concept. Many undocumented immigrants don’t consider themselves criminals because they’ve committed no violent or property crime; so the Administration simply redefines “crime.”

Much American political discourse centers on “crime,” especially when Democrats hold the Oval Office. As sociologist Barry Glassner writes, fear of crime is a powerful motivator for tradition-minded voters, a motivator Republicans employ effectively. Glassner writes about how rabble rousers used fear of crime to shanghai the Clinton Administration, but the same applies broadly whenever Democrats hold majority power. We saw it during the Obama and Biden years too.

However, exactly what constitutes crime depends on who does the constituting. My core readership probably remembers John Erlichman, former White House Counsel, who admitted the Nixon Administration simply fabricated the War on Drugs as pretext to harass anti-war and Civil Rights protesters. The notorious Comstock Laws channeled one man’s sense of injured propriety to criminalize porn, contraception, pharmaceutical abortion, and the kitchen sink. Moral umbrage beats harm in defining “crimes.”

This doesn’t mean harm doesn’t exist or states should repeal every law. Murder, theft, and sexual assault are clearly wrong, because they cause manifest harm and devalue victims’ lives, bodies, and labors. But these transgressions only become “crimes” when governments pass laws against them. Legal philosophers might debate whether decriminalizing murder would make murder happen more often. Personally, I doubt it; neither Prohibition nor its repeal affected drinking numbers much.

Prohibition, therefore, proves the moral fuzziness of crimes. Both the Al Capone-style Prohibition, and contemporary drug prohibition, arose not from obvious harm (most pot-heads are too lethargic to hurt anybody), but from moral panic and public outrage. Governments made laws against substances lawmakers found abhorrent, then assumed citizens would avoid those substances, simply because they’re illegal. Then they act surprised when drinking or drugs persist.

This happens because these things aren’t innately crimes; they become crimes because lawmakers make laws. Similarly, while it’s clearly harmful if I steal money from your wallet, other property “crimes” have squishier histories. Squatting, for instance: once legal, it became illegal in America, as James Loewen writes, largely to circumscribe where Native Americans were allowed to hunt and camp. Lawmakers created laws, where none previously existed, to punish transgressors.

Immigration law follows similar patterns. Abrahamic scripture urges the faithful to welcome immigrants because, in that time, borders didn’t really exist. People moved freely, and provided they followed local laws and customs, largely changed nationhood liberally. Though serfdom tied workers to lands and lords in the late medieval period, modern concepts of the nation-state and international borders existed only as legal abstractions. Only during wartime did states enforce borders much.

This Administration can redefine civil infractions, like undocumented immigration, as crimes, because that’s how things become crimes. States will borders into existence by legal legerdemain, then demand that people remain permanently circumscribed by these fictional lines. Perhaps that’s why “the Wall” looms so large in MAGA mythology: because borders don’t really exist, so we need something manifest and palpable to make borders real.

These MAGA voters who feel betrayed because the Administration deported their loved ones, assumed that they weren’t “criminals” because they used a broad, popular definition of criminality. They didn’t perform acts of violence or property destruction, they reckoned, so therefore they weren’t criminals. They didn’t anticipate the Administration using crime’s fuzzy, amorphous nature against them, and therefore were caught unprepared when the definition of “crime” moved to surround them.

Civil society has two responses available. We could eliminate self-serving, avaricious laws, and allow people more discretion. There’s no objective reason people must live within certain borders, except that lawmakers need to control despised minorities. But we know society probably won’t choose that response. More likely, our lawmakers will write harsher, more draconian laws to eliminate this flexibility. Which will then be used against us ordinary people.

Is the Law a Dead Letter Now?

Back in the 1990s, when I was a teenage Republican, I believed humanity would find a legal system so self-sustaining, we could eventually exclude humans from the equation. We could write laws, then deploy the bureaucratic instruments necessary to enforce those laws, without bias or favor, essentially forever. The machine would support itself without inputs from nasty, unreliable humans. We only needed to trust the modernist small-L liberal process.

Okay, we hadn’t written such laws to implement such systems, but that only proved we hadn’t written such laws yet. Because individuals only enforced laws as written, I reckoned, such self-sustaining systems would preclude individual prejudice or demographic bias. (I didn’t realize, for years, that laws themselves could contain bias.) Divisions, disadvantage, and destitution would eventually wither as laws enforced baseline ethical standards which encompassed everyone, everywhere, equally.

Watching the meltdown surrounding Kilmar Abrego Garcia, I’m seeing underlined something I gradually realized in my twenties, but never previously needed to say aloud: all laws are doomed to fail. Even laws written with altruistic intent and thorough legal support, like the 14^th Amendment, work to the extent that those entrusted to enforce them, actually do so. America’s current executive regime is demonstrating no intention to enforce the law justly.

The regime first deported Abrego Garcia in March, despite him having legal residency status and never having been convicted of any crime. Initially, the regime acknowledged that they’d expelled Abrego Garcia mistakenly, and based on that acknowledgment, the Supreme Court—dominated by Republican nominees and one-third appointed by the current president—unilaterally demanded his return. So the regime flippantly changed the narrative and refused to comply.

This refusal, stated unambiguously in an Oval Office press conference where the American and Salvadoran presidents shared the lectern, demonstrates why the law will inevitably fail. America’s system, predicated on the government’s adherence to the principles laid out in the Constitution, absolutely requires that all participants share a prior commitment. Simply put, they must believe that nation, government, and law, are more important than any individual. Even the president.

Kilmar Abrego Garcia (AP photo)

We must strike a balance here, certainly. Individuals write our laws, even individuals working collectively, and our legislators are individuals. The “buck stops here” president, an individual, must balance power with the nine SCOTUS justices and the 535 members of Congress, who are all individuals, even when working jointly. But those individuals all work for a shared vision, and when they don’t, their whimsy becomes antithetical to state organization.

Please don’t misunderstand me. Any individual may call the nation wrong, as for instance Dr. King did, and may organize to redress such wrong. Indeed, only such public, organized call-out may sway the nation’s conscience sufficiently to enact change or improve a dysfunctional system. The primacy of the nation doesn’t mean citizens must meekly accept arbitrary or unjust directions from a unitary state. That would basically invite autocracy.

Simultaneously, however, those who seek official state power must submit themselves to something larger than their individuality. Dr. King never ran for office, and the tactics he employed when crossing the Edmund Pettis Bridge would’ve been inappropriate in Congress. Indeed, his deputy, John Lewis, who became a Representative, used Dr. King’s tactics to mobilize voters, but submitted himself to forms of order when writing and voting on legislation.

My regular readers, who mostly share my sociopolitical views, may think I’m saying something obvious here. But as I write, the current president’s approval ratings hover between 41% and 49%. That’s negative, and substantially underwater, but at least two in five Americans look at what’s currently happening, and don’t mind. They voted for his tariffs, immigrant roundups, and rollbacks of civil rights law, and five months later, they remain unchanged.

A satisfactory fraction of American voters approves of, or at least don’t mind, a president placing himself above either Congress or SCOTUS. This president, like Andrew Jackson before him, thinks he’s empowered to force lawful residents off their land, unless someone has guns enough to stop him. Essentially, he’ll continue ignoring baselines of justice until someone, presumably Congress, does something to stop him.

Our entire Constitutional structure requires those elected to power, to agree that America is more important than themselves. That means both America, the human collective, and America, the structures of government. If laws require them to act correctly, then they must abide by those laws without threats of force. If they can’t do that, well, that’s what checks and balances are for. If that fails, We the People step in.

Time For the 28th Amendment

How old were you when you discovered that the right to vote isn’t protected in the United States Constitution?

Like most Americans, I studied the Constitution, in different ways and different forms of depth, through high school, into college, and later in various books, seminars, and media deep-dives throughout my life. Teachers and commentators gushed lovingly over how the 15^th Amendment extended voting to former slaves, the 19^th Amendment gave women the vote, and the 26^th Amendment gave eighteen-year-olds the right to vote.

All of these are good. But they establish that the government cannot withhold the right to vote based on certain protected categories. Not once does the Constitution state who does have the voting franchise; the issue remains airy-fairy and undefined. And I didn’t know that until I read Levitsky and Ziblatt’s Tyranny of the Minority, which I read when I was 49. Only when they pointed it out did I realize this information was missing.

Throughout much of American history, the question of what makes someone a “real” American has loomed large. The Philadelphia Convention of 1789, which drafted the kernel of our current Constitution, was dominated by slaveholders, who wanted their human property counted on the Census, but didn’t want slaves having any vote. These White male aristocrats, whom we dub the “Founders,” handled the problem by punting it onto the states.

As you’d imagine, this created a patchwork of standards. States have, at times, made land ownership a criterion—which created problems when rising industrialization pushed more Americans into cities. Old-fashioned bigotry encouraged many states, overtly or covertly to disenfranchise Black Americans, until the Civil Rights Act of 1964 banned it. Since the Shelby County ruling, states have competed to find innovative new ways to make voting harder.

Many attempts to increase the voting franchise are doomed to fail. Because less populous states, which skew conservative, gain a tactical advantage from the status quo, many common suggestions, like ending the Electoral College or disestablishing the Senate, are non-starters. The Constitution sets the threshold for amendments so high that, in times of bitter polarization like we have now, changing the system is unlikely at best.

But I propose that it’s politically possible to start with something simple: just establish that American citizens have a right to vote, irrespective of state laws. This has multiple advantages. It will set the default for American voting as “opt-out,” rather than the current “opt-in.” It will capitalize on the American fervor for treating everyone equally, since setting a standard baseline of simply letting people vote is, facially, completely equal.

With that in mind, I propose a movement to pressure our lawmakers to create a 28^th Amendment. Since I’m not an attorney or Constitutional scholar, I don’t want to create a binding text for such an amendment; that exceeds my skills. But I propose the following as a starting point:

1. All persons who have been born citizens of the United States, or who have been naturalized as citizens under the standards of this Constitution, and having achieved no less than eighteen years of age, shall have the right to vote and to participate in electoral processes in the United States, and in the states in which they reside.

2. All persons who have the voting franchise under the standards of this Constitution, but who shall reside outside the United States for military deployment, lawful students studying abroad, citizens working abroad under a lawful visa, or for any other reasons which Congress shall protect by legislation, shall be permitted to participate in electoral processes in the United States, and in the most recent jurisdiction for which they were most recently resident.

3. The Executive Branch, under terms which Congress shall set by legislation, shall maintain a permanent roster of lawful registered voters in the United States, and shall take responsibility for maintaining the currency of that roster, and shall protect the voting rights of all persons who have the right to participate in the electoral process in the United States.

We voters can pressure American lawmakers to rally behind this straightforward, facially neutral action statement. Sure, I know anti-democracy activists like Peter Thiel exist in America, but I believe they’re controllable, while our system remains tractable to public pressure. We can organize to pressure our lawmakers to support this change by threatening them with the shame of being seen as anti-voting.

This won’t solve all of America’s problems. But it will at least get all Americans involved in the problem-solving process.

The Police Are Lying Liars Who Lie To You

Thomas Perez, Jr., tears his clothing several hours into the interrogation for a murder
he not only did not commit, but it did not even happen. (San Bernardino Sun)

The mathematical subdiscipline called Game Theory uses an influential thought experiment called the Prisoner’s Dilemma. In this exercise, police question you and your friend separately for some crime. Interrogators claim to have substantive proof of your guilt. If neither of you confesses, you’ll receive moderate sentences. But if one confesses and implicates the other, the confessor walks free, while the other does hard time. Using subjective measures of likelihood, should you stand fast or confess?

I’ve seen this exercise repeated in popular science and mathematics books, and in introductory undergraduate textbooks. But the narration always focuses on the likelihood of you or your friend confessing. It consistently omits one other subjective likelihood: how likely we consider it that interrogators are lying. Under the Supreme Court standard in Frazier v. Cupp (1969), police have qualified immunity for what jurists call “deceptive interrogation tactics.” That is, they’re permitted to lie with impunity.

According to the San Bernardino Sun, police in Fontana, California, arrested Thomas Perez, Jr., in August 2018 on suspicion of murdering his father. Thomas Perez, Sr., wasn’t dead; he hadn’t even been missing particularly long. Four officers grilled Perez Jr. so long and hard that, per the Sun, he struck himself, screamed, and tore his clothes. According to the Guardian, the interrogation lasted seventeen hours, long enough for Perez to become “sleep-deprived” and possibly delusional.

According to both sources, the police response looks wildly slipshod. Though Perez Jr. commenced the investigation for his putatively missing father, the dispatch officer who took his call deemed him suspicious for being insufficiently attentive. Therefore they brought Perez in for questioning, having deemed him the prime suspect, before commencing the investigation or gathering any evidence. In other words, police unilaterally decided not only that a crime had occurred, but who was responsible for it.

Worse, though, were the primary tactics employed. Police told Perez they had overwhelming evidence that didn’t exist. They insisted they had Perez Sr.’s body in the building, although as noted, he wasn’t dead; he’d simply gone on an unannounced wander. They withheld Perez Jr’s depression and hypertension medications, claiming he didn’t really need them. There was no crime, no evidence, and trivially little investigation. Police simply fabricated everything, then used their lurid fantasies as “proof.”

After coercing a confession out of Thomas Perez Jr., police left him alone with his
dog. Moments after this still was taken, he used the drawstring from his shorts to attempt
to hang himself. (San Bernardino Sun)

Since the 1950s, police interrogators have mostly used the Reid Technique, an approach based on the most up-to-date psychological assessments of the Eisenhower era. Rather than physical force, the preferred prior technique, Reid Technique interrogators apply psychological pressure to achieve what courts still consider the gold standard of evidence, a confession. One problem: according to informed critics, the Reid Technique produces false confessions over fifty percent of the time. Its outcomes simply are not reliable.

The Reid Technique actively aims to leave suspects desperate, isolated, and dependent on police. Lies and leading questions are totally permissible. If you’ve ever watched cop dramas and heard an interrogator say “Here’s what I think happened,” that’s the Reid Technique. The technique also permits threatening suspects. Many commentators have expressed greatest outrage at interrogators’ threat to euthanize Perez Jr.’s dog, though that too was probably a lie; they probably lacked authority to do that.

All these tools are completely impermissible when interrogating foreign combatants under the Geneva Convention. If you remember the transnational outrage surrounding the Abu-Ghraib prison scandal, you know this. Attempts to psychologically degrade prisoners are crimes against humanity. But these same techniques—lying, torture, threats, withholding medical care, and more—are perfectly acceptable when applied by American police to American citizens. Legality doesn’t matter, as any crimes get swept together under the rubric of “qualified immunity.”

Beyond the legal and moral implications, the Reid Technique just doesn’t work. Fontana police coerced a confession from Perez Jr. and continued holding him for psychiatric evaluation for several days after they knew Perez Sr. was alive. As noted, around half of Reid Technique confessions are demonstrably false, but juries often don’t know that, and consider confessions binding. In my adopted home state, the Beatrice Six demonstrates how powerful and destructive false confessions can be.

Qualified immunity bakes dishonesty into police procedure. Evaluating police work by case closures rather than accuracy, creates perverse incentives to produce confessions by any available means. Even police who mean well and work honestly are evaluated by the same yardstick, forcing them to adopt specious methods if they work. We can argue whether the police can be reformed, but one thing is clear: abuses like the Fontana police will always squeak through on qualified immunity.

Life In These “United” States

The Texas State Capitol, in Austin

Texas is threatening to secede from the Union, because that worked so well the first time; and countless progressive Americans are laughing. Interesting how they didn’t laugh so loudly during the Trump Administration, when Left Coast progressives threatened to enact “Cal-exit,” or California seceding from the union. It’s almost like, whatever party controls the White House, states controlled by the other party want to leave the country altogether.

California is considered so staunchly Democratic, and Texas such a Republican bastion, that journalists regularly call both states’ Presidential outcomes before any voting precincts report in. Yet both states consistently split by less than ten points. If Texas seceded to mollify conservatives, millions of progressives would find themselves foreigners in their own nation. The reverse applies in California. Therefore, even if secession were possible, it would be wildly impractical.

I’ve written before that America’s state lines are dangerous and make little sense. Drawn entirely in the 18^th and 19^th Centuries, these divisions have become liabilities in the 21^st Century. Growing populations, changing demographics, and advanced technology have packed dense numbers into absurdly small spaces, while massive acreages go unused. It’s become de rigeur to moan that tiny, sparsely populated Wyoming has the same Senate representation as massive California.

Except, I’ve recently realized there’s an additional wrinkle. Wyoming, the least populous state in the 2020 Census, is more populous than the second-most populous state in the 1790 Census, Pennsylvania. Wyoming, sometimes derided as tiny, might’ve seemed crowded and buzzing to the Constitutional Convention in 1787. The Founding Fathers, mostly farmers (or more accurately, plantation owners), couldn’t have imagined our dense urbanization.

We call our nation “The United States of America” because the Founders envisioned a loose affiliation of independent political units. Americans often say “states” the way other countries say “provinces,” but in poli-sci parlance, a “state” is a top-level, independent polity with a central government, and the ability to write and enforce laws. In casual conversation, Americans describe such polities as “nations” or “countries,” also words with different formal definitions.

The "Sower" statue atop the Nebraska
capitol building reflects the state's
agricultural heritage

The Founders invested principal power in states, and considered the federal government only latterly, to enforce standardized trade and foreign policy. Even Thomas Jefferson, the third President, esteemed the federal government so lowly that he didn’t include his Presidency on his epitaph, which he wrote himself. This level of local autonomy turned sour, however, resulting in the Civil War. Afterward, the federal government began coordinating law and justice nationwide.

This prompts the question: do states with fixed borders and lawmaking authority even serve any purpose today? Even after the Civil War, states continued serving some legal function, since government acted at the speed of paper. The early telegraph and overland railroad expedited some government functions, sure. But in our digital age, where information blasts across the country and into our homes instantaneously, do we still need states?

Municipal and county governments remain useful. Local law enforcement can identify individual malefactors (pause briefly the question of whether we like the police), and local officials can make on-the-ground decisions about, say, road maintenance and urban development. But states, which merge multiple regions under one umbrella often built 150 years ago, have become battlegrounds for what forms of injustice we’ll willingly accept. That includes staunchly partisan states like mine.

Somebody might respond by stating that state governments coordinate regional and municipal governments. I answer: do they? Nebraska, where I live, is notorious for its chronically neglectful state government. The state capitol, Lincoln, frequently doesn’t care what happens in rural areas, or anything happening more than a two-hour drive away. The state government regularly disregards over half the state, focusing on the prestige-heavy Interstate 80 corridor in the eastern half.

If my state government disbanded tomorrow, it might take months before half a million Nebraskans cared, or even noticed. I’ve heard similar complaints, voiced informally, from residents of upstate New York, inland California, or the Tennessee mountains. States regularly abandon their poorest, least represented residents for the prestigious urban, industrialized regions. This abandonment often goes unreported, since media also ignores poor and rural people, but it definitely happens.

Disestablishing or reinventing state governments won’t magically fix ills, don’t misunderstand me. We’ll face massive conundrums, like how to apportion the Senate (or abandon it), and we’ll probably also have to revamp the Executive Branch. In the near term, abandoning state government will create as many problems as it solves. Yet we must reconsider, sooner rather than later, our 18^th Century government structure in our 21^st Century society.

The Second American Civil War

Rachel Maddow, Prequel: An American Fight Against Fascism

It’s hardly a secret at this late date that America had a significant and organized population of small-f fascists and fascist-adjacents before WWII. Some were relatively well known, including Father Charles Coughlin, the pioneering televangelist, and aviator Charles Lindbergh, who was rumored for president before he squandered America’s national good will. We remember these names today, though, because they made themselves memorable. Thousands of others strove to be forgotten.

Rachel Maddow made herself a darling of progressive basic cable with her understated sardonic humor and her casual camera presence. It’s potentially easy to forget that her background isn’t in journalism; she’s a former Rhodes scholar with a doctorate in political science. Maddow brings a scholar’s eye for detail and a journalist’s knack for storytelling to this, her accounting of how America faced—and frequently flubbed—its domestic fascist menace.

Drawing entirely on public-domain documents, including one damning file which President Truman personally buried, Maddow reconstructs the pro-German PR machine. Her approach herein is more narrative than analytic; she retells events approximately in sequence. This approach tends to emphasize the movement’s leaders and their bombastic speeches. Many pro-German leaders were intellectuals, industrialists, and freelance agitators. Others were elected Senators and Representatives, actively misusing their offices.

Maddow’s history of the pro-German movement contains more names than a Dostoevsky novel; the hardcover helpfully includes a dramatis personae. It’s sometimes easier to remember the groups these men (they were indeed mostly men) represented. Some were directly subsidized by the German propaganda machine, including America First and the Christian Front; others, like the Klan, received their backing indirectly. Maddow demonstrates they were definitely coordinated.

The anti-fascist opposition wasn’t nearly so harmonized. The Department of Justice and Hoover’s FBI cared more about the Communist Left, and largely ignored right-wing insurgency. When public pressure finally forced the government to prosecute far-right seditionists, it failed to support its designated prosecutors, and actively submarined one. In an appalling precedent, literally nobody was held legally culpable for supporting Germany or undermining American democracy.

Rachel Maddow

Perhaps Maddow’s most engaging passages describe how ordinary citizens, acting without government support, sought to shine daylight on the nightcrawlers of America’s pro-German machine. Leon Lewis, a Los Angeles attorney, organized a private spy network to uncover Bundist activity in Southern California. Advertising executive Henry Hoke exposed the extensive direct-mail PR campaign Germany used to widen division in American public opinion, often with help from elected federal legislators.

Perceptive readers might recognize a pattern developing. The Roosevelt Administration, condemned by American conservatives as dangerously leftist, was terrified of too aggressively prosecuting anti-American forces, lest they open themselves to more criticism. Ultra-right conservatives, meanwhile, present themselves as merely honest Americans, faithful Christians, and grassroots activists. Then they actively attempt to conceal the vast transfusions of German money. Both sides fought each other brutally, and Germany reaped the benefits.

Only in the closing pages does Maddow acknowledge what her readers recognized from the beginning: that Maddow sees this as instructive for dealing with home-grown authoritarians today. The anti-fascists fought their battles without government support, and often faced official indifference. However, they persevered, and they eventually saw the tide of public opinion shift. Authoritarians generally don’t handle civilian pushback very well, and their lack of preparedness is frequently their undoing.

She doesn’t call it Prequel for nothing.

The hardline authoritarianism described herein doesn’t always parallel with today’s politics. Maddow lingers, for instance, on Huey “Kingfish” Long, the Louisiana governor who came closest to creating an American dictatorship. Long’s stranglehold on Louisiana politics was paradoxically generous and progressive. Maddow describes Long taxing the wealthy, endowing schools, and dismantling racial barriers (which mostly were re-erected after his assassination). She also describes him taking bribes and submarining regulators for profit.

In this and other examples, Maddow’s analogies are sometimes imperfect. But analogies generally are. The oft-repeated maxim, often misattributed to Mark Twain, holds that “history doesn’t repeat itself, but it often rhymes.” Maddow highlights the consistent use of division, plain-folks rhetoric, and working class paranoia to keep Americans divided and infighting. She also emphasizes ordinary Americans’ willingness to resist, even resistance at great personal cost.

Maddow’s narrative has the suspensive form of a paperback political thriller, but she also emphasizes recurrent themes driving the story. She unpacks exactly as much as she expects her audience will need to understand the stakes, and little more, ensuring her narrative never bogs down. The story is sometimes bleak, and sometimes terrifying; but it’s ultimately triumphant, as the anti-fascists win, reminding us that we can win, too.

The God of Justice, and the Justice of Humankind

Jesse Watters

“He just believed the election was stolen,” Jesse Watters said last week on his recently minted prime-time Fox News show. The “he” in this statement is, of course, former President Donald Trump, arraigned last week for his part in fomenting the January 6^th, 2021, insurgency. According to Watters, if Trump sincerely believed his legitimate reelection was stolen, violence was justified. As Watters and Greg Gutfeld both state, proving Trump didn’t believe this is nigh-on impossible.

Hearing this last week, I mentally time-traveled to President George W. Bush’s second term. As Operation Iraqi Freedom dragged on, suffering terrible mission drift and causing incalculable harm, a right-wing talking point arose that President Bush didn’t necessarily lie in falsely claiming Iraq harbored weapons of mass destruction. Calling it a “lie,” conservative prognosticators claimed, implied Bush knew his statements were false. A “lie” wasn’t necessarily a false statement; lying required intent, which is unprovable.

In both cases, we witness conservative pundits defending Republican Presidents based not on actions, but belief. If President Bush believed, in the chambers of his heart, that WMDs existed, then he wasn’t morally culpable for deceit; he was as misled as the American people. (We now know this is measurably untrue.) Likewise, if President Trump legitimately believed the 2020 Electoral College outcomes were insidiously doctored, then his sincerity morally shields the legality of his actions.

We should immediately reject this argument. If one’s moral state protects the legality of one’s actions, then Americans would never prosecute minors as adults, even for violent crimes. Yet American prosecutors do this frequently, asserting that the heinousness of crimes committed by minors, especially Black minors, overrules the diminished moral capacity of youth. In these cases, action defines morality. But pundits claim that Presidents—America’s most morally culpable people—are somehow shielded by their sincerity.

Even beyond this prima facie contradiction, foregrounding belief unearths a vipers’ nest. It introduces a twisted variation on the Christian doctrine that only God knows the contents of a human soul. Despite what we’d sometimes prefer to believe, humans can neither let somebody into Heaven, nor condemn somebody to Hell; these options belong exclusively to God. Shifting the parameters away from what Bush or Trump did, to what they believed, makes justice a divine prerogative.

The Accused

At least nominally, jurisprudence focuses not on the defendant’s morals, but upon actions. Did the accused actually hurt, steal, or kill? We may consider aggravating factors, such as whether the violence seems disproportionate. Prosecutions for first-degree murder may consider whether the actions demonstrated “depraved disregard for human life,” as by elaborate advance planning or coordination. But even in these cases, we don’t question the impurity of the defendant’s soul, but the severity of their actions.

Using these standards, we can evaluate the Presidents’ actions, without considering their mental or spiritual state. Even if President Bush believed, with the solemnity of church, that Iraq possessed WMDs, members of his administration stated unequivocally that no such weapons existed. Bush notoriously overruled their objections. Likewise, Jack Smith’s indictment of President Trump takes Trump’s beliefs of the table in Paragraph 3; Smith spends 45 pages unpacking Trump’s actions, not his mental or spiritual state.

These right-wing pundits negate all questions of action by asking: do they know they’re committing a legal or moral crime? Even laying aside the base hypocrisy of the fact that they only apply this question to Presidents, they also replace a legal question with a theological question. They declare Presidents, or at least Republican Presidents, as members of the Elect, saved from earthly sin by God’s inscrutable movement. Their only judgement is the Final Judgement.

Earthly courts obviously cannot judge human hearts. That’s why jailhouse conversions usually don’t create thorny legal issues: if the incarcerated is legitimately penitent, well, the penitentiary has done its (supposed) job. Keep up the good work. Legitimately run courts, in the English Common Law tradition, care only about the accused’s actions—and, in Trump’s case, those actions played out on live television. Bad actions for benevolent reasons are still, in the court’s eyes, bad actions.

Even if this premise wasn’t bad-faith partisanship, we should still resist this intrusion of spiritual judgement into the earthly justice system. The law does not, indeed cannot, judge what happens inside a person’s heart or mind. Though courts have some latitude to judge purposes, for instance self-defense, these conditions should remain exceptional and rare. Once courts start judging anyone’s beliefs or intentions the state assumes God’s role. And that fact alone should cause bipartisan concern.

Two Faces of the American Prison

1001 Books To Read Before Your Kindle Battery Dies, Part 114
Chris Hedges, Our Class: Trauma and Transformation in an American Prison, and Shane Bauer, American Prison: A Reporter's Undercover Journey into the Business of Punishment

At approximately the same time in the early 2010s, two very different journalists walked into two prisons a thousand miles apart. Chris Hedges, a former New York Times war correspondent and Presbyterian minister, began teaching an extension course for Princeton University at East Jersey State Prison in Rahway, New Jersey. Shane Bauer, from Mother Jones magazine, went undercover as a corrections officer at Winn Correctional Center in Winnfield, Louisiana.

Hedges’ and Bauer’s experiences weren’t identical. The two journalists didn’t meet prisoners and prison administration in comparable ways. One prison was privatized, the other state-run. And one raised prisoners’ aspirations, while the other found himself drawn into the system breaking prisoners down. Yet their stories are similar enough to highlight the structural problems with American criminal justice, and to remind readers that prison changes both the incarcerated, and the jailers.

Chris Hedges carried an armload of books and boundless ideals into Rahway, informed by James Baldwin and Michelle Alexander. He wanted to equip his students to understand their situation, and make better choices. But he discovered students who overcame significant barriers just to qualify for his class. Rather than teach them their own social conditions, Hedges realized he’d been placed in this classroom to empower his students to tell their own story, both to each other and to the world.

Shane Bauer chose Winn Correctional Center basically because he submitted several job applications, and Winn answered first. He received four short weeks’ training before Corrections Corporation of America (CCA) entrusted him to safeguard some of Louisiana’s most violent chronic offenders. He found an entire prison, staff and prisoners alike, short-handed, cash-strapped, and demoralized. No university extension classes at Winn; money had run out for rehabilitative services.

Besides being journalists, these two authors share significant background experiences. Both covered the overthrow of Saddam Hussein; Hedges lost his prestigious Times job because he insisted on calling out Bush administration injustices by name. Both were held prisoner in Iran’s notorious prisons—Bauer describes his imprisonment in some detail, and wrote a previous book about it, while Hedges fleetingly mentions his imprisonment, raising more questions than answers.

But both authors share a dedication to letting the story unfold in its own terms. They let their subjects tell their own stories, in their own words, without imposing a preexisting narrative arc onto them. They describe letting prisoners—and, in Bauer’s case, prison administration—get into their heads and change their minds. Humans adapt ourselves to systems, even when those systems are toxic.

Hedges’ students mostly lack academic backgrounds, so rather than papers, he has them write dramatic scenes. He bolsters this with readings from playwrights like Amiri Baraka, Miguel Piñero, and August Wilson, who have distinct experiences with segregated society and state incarceration. To Hedges’ surprise, his students prove themselves excellent writers, with distinct voices and a strong personal spin. He realizes this class is destined to collaborate and write a play.

CCA is supposed to provide Bauer with four weeks of police-level training. However, he finds himself having to assist behind the wall before his training is up. Head counts, contraband searches, and other nickel-and-dime rules procedures mount up. His job mostly involves enforcing rules which prisoners must obey because they’re rules. Once inside, Bauer finds himself horse-trading favors and overlooking infractions, because keeping order matters more than ensuring justice.

Despite their significant overlap, these authors don’t tell identical stories. Hedges describes almost no interaction with prison administration, while Bauer almost entirely recounts conflicts between the incarcerated and the system. This means they have very different experiences. Hedges emerges from class with a more refined, more nuanced understanding of prisoners, eager to return and continue teaching classes to the disfranchised.

By contrast, Bauer recounts himself becoming less tolerant and forgiving, more inclined to bring the hammer down on prisoners for infractions, real or imagined. Early on, he remains progressive-minded and eager to help prisoners rehabilitate. As he remains in authority, however, and maintains the delicate balance between the state’s rehabilitative mission and CCA’s profit motive, he becomes increasingly violent. His loved ones become frightened of him.

Both journalists match the personal with the structural. Hedges describes the social forces, like poverty and overpolicing, that drove his students into prison. Bauer describes the history of American incarceration, which has often been privatized and profit-driven, usually with disastrous consequences. But both authors have the greatest impact when their stories are personal, intimate. Broken systems consist of broken individuals, and vice versa. Their stories are haunting and powerful.

Making a Law About “Gender”

State Sen. David Clemens (R-ND)

Online journalists, like crows, often get distracted by shiny novelties, and this week’s North Dakota "Don’t Say Trans" bill is no different. Many outrage reporters have seized State Senator David Clemens’ proposal to compel public institutions to identify residents by their biological sex, not their preferred gender. The desired outrage has appeared, but the bill is a guaranteed nine-days’ wonder. Local reports show the bill has no support beyond Clemens himself.

I care less about this worthless spectacle, and more about the motive behind it. Clemens’ bill aims, for the first time ever, to create legally binding definitions of gendered words. Legally binding definitions give words power, and not just the moral power that language always has. Once words have legal definitions, the state has authority to enforce those definitions, without regard for context. Lawyers love creating legally binding definitions.

Read over any contract you might have lying around your house: your student loan documents, the lease or mortgage on your house, any nondisclosure agreement you signed with whatever celebrity you last slept with. These contracts will make the same statement multiple times in multiple ways. Because of this excessive wordiness, “lawyerese” is notorious for its complete obscurity, a form of language famous for thoroughly obstructing communications.

Except that impenetrable lawyerese serves an important purpose. By requiring you to agree to multiple definitions of the same concept, lawyers reduce to the smallest possible factor your ability to weasel out of contracts. Ambiguous language permits free riders and bad-faith actors to interpret the contract in ways that advantage them, regardless of the intended spirit. You personally might not do that, but it only takes one actor.

Consider real-world examples of what happens when language is ambiguous. Religious discussions bog down over minute nuances of Greek and Hebrew terms, and what those words meant to Bronze- or Iron-Age prophets. Playful Christmas songs written around playful vaudeville in-jokes have been condemned as predatory because we no longer remember the context. What seemed clear when it was written down is vague and scary now.

Linguistic ambiguity allows people to find the worst possible interpretations in words that were written with the best intentions—and vice versa. Rhetoricians speak of the 100% Natural Fallacy, a logical failure that creeps in because people put the best possible spin on the word “natural,” a word that has no agreed-upon definition. When words have no binding definition, naïve optimism or bad-faith cynicism tend to creep in.

Lawmakers like David Clemens attempt to foreclose this ambiguity by giving binding definitions to words we formerly just assumed we knew. I might disagree with Clemens’ long-term goals of making it illegal to be transgendered, but I understand his desire to weed out vagueness. After all, in my teaching days, I formerly told students to structure their language to make it as free from vagueness as possible. Boldness and specificity always beat uncertainty.

Plato and Aristotle, as painted by Raphael

Except…

Sometimes vagueness is good. We argue about how to interpret Levitical law, not because we lack our ancestors’ moral confidence, but because we aren’t a poor hill-dwelling nation on the margins of Bronze-Age Asia anymore. Even True Believers who insist that Moses and the prophets understood the Truth, must acknowledge that how we live that truth has changed. Hebrew law is a foundation, not a prison.

Ambiguity lets bad-faith actors manipulate the system to their advantage. But ambiguity also lets good-faith actors grow and change when faced with new evidence, without having to abandon the foundations upon which they’ve built their lives. Why, it’s almost like there’s no one-size-fits-all moral code that means anything! Almost like we have to face situations as they are, and make decisions here and now, not relying on a dead-tree text.

Senator Clemens assumes that, if we permit English gender definitions to remain subjective, then everyone will misuse those definitions for selfish purposes. Which means that Senator Clemens assumes human nature is necessarily selfish, that humans are manipulative, that deep down, we’re all bad-faith actors. Therefore he wants to lawyer that ambiguity out of existence, reining in what he perceives as human weakness and venality.

I prefer to assume that subjective gender definitions give us, you and me, the freedom to investigate what it means to be a “man,” a “woman,” or neither. It liberates me, a cishet man, to decide how I will express being male in the healthiest and most productive terms, and how I can identify toxic or harmful maleness. Fundamentally, Senator Clemens distrusts us, but I believe humans are good.

The Law vs. Black Children and Families

Dorothy Roberts, Torn Apart: How the Child Welfare System Destroys Black Families—and How Abolition Can Build a Safer World

When “Defund the Police” became a political catchphrase, many advocates suggested state social services agencies to partly replace the police’s role. University of Pennsylvania law professor Dorothy Roberts balks at this substitution. To Roberts, the police and most child protective services agencies suffer the same problems: profound power in Black communities, scanty oversight, and only one violent tool to solve every problem.

Operating under the premise of preserving youth from dysfunctional homes, Roberts writes, child services agencies have broad authority to enter private homes, vet parents’ choices, and make decisions about families’ future. Their evaluation criteria are subjective, which leaves them vulnerable to abuse. In many jurisdictions, they have only one recourse for effecting change: taking children from their families and putting them in foster care.

Roberts calls these agencies “family policing,” and claims they’re part of the same prison-industrial complex we’ve heard so much about. She doesn’t make this claim frivolously. Like uniformed police, family police have a cloak of benign motivation, and use language of peacekeeping and community. But like the police, family services disproportionately target Black, poor, and Indigenous communities, regularly breaking up families.

We’re taught early that child protective agencies rescue children from violent or sexually exploitive circumstances. Yet, as Roberts demonstrates, family police agencies regularly miss these cases. The preponderance of children removed from homes are justified behind “neglect,” which usually means insufficient food or clothing. Yet agencies seldom have authority or resources to provide families with housing, healthcare, or cash. Their first, and often only, recourse, is seizing children.

Reading Roberts’ descriptions, a pattern emerges: family policing agencies see non-White parents as adversaries, not only to state agencies, but to children. Because social workers often travel accompanied by police, they often answer even nominal resistance with arrest and trial. Because these supposedly neglectful parents often just need assistance, the result is that they treat cash-strapped parents as literal criminals.

Moreover, the criteria that family police use to identify neglectful families are remarkably targeted. House too small? Cupboards too bare? Can’t afford childcare while parents are working? These all supposedly indicate unfit parents. Coupled with a tendency to overpolice poor and BIPOC communities, these criteria mean Black and Indigenous children enter the system in wildly disproportionate numbers.

Dorothy Roberts

This racialized outcome isn’t incidental. Child protective laws are often written to target things people of color do: for instance, sharing childrearing among a network of grandparents, cousins, and other kin is common in Black and Indigenous communities. But in many jurisdictions, that’s a designated neglect criterion. That’s just one example Roberts cites of how family policing sees Blackness as inherently damaged, and damaging.

Nor is this tendency new. Family policing became widespread only after other racial regulations were repealed. Black children were frequently “apprenticed,” against their parents’ will, to former slaveholders, while Native American children were sent to boarding schools that explicitly aimed to expunge their Indigenous traditions. Forced family separations only preserve the tendencies these overpowered state agencies have always used in Black, Brown, and Indigenous communities.

The consequences remain universally disastrous. Scholars have done only limited research into long-term effects of family separation (perhaps because scholars rely on state agencies for funding), but what research they’ve conducted indicates that children moved into foster care suffer PTSD, oppositional-defiant behaviors, and nightmares. They’re also more likely to wind up subject to human trafficking. This applies even when home environments are quantifiably bad.

I have friends working in child-related social services, so I anticipate their objections. How will we ensure that legitimately unfit parents don’t repeat generational abuse? Roberts answers that, in terms too nuanced to repeat here, but the salient point is: when circumstances have forced family police agencies to stand down, community and kinship networks have stepped up. Abuse reports have, not surprisingly, gone down.

Many people enter child protection careers with benevolent motivations. They want to improve the communities where they work; Roberts quotes many such great souls. But before long, social workers, like schoolteachers and police officers, discover they can’t fight a system that devalues non-White lives. Most of Roberts’ sources either quit, or find themselves forced to adapt their ethics to suit the institution.

Dorothy Roberts identifies largely the same problems with family policing that Alex Vitale finds in regular policing: they’re more cause than solution. The problems both agencies create could be ameliorated by fighting poverty and lifting racial barriers. But in both cases, that’s unlikely to happen, because powerful people profit from them. Maybe, if we ordinary people care more and act accordingly, we can reverse the damages.

What Even Is “Plagiarism”?

Kevin M. Kruse

My first hands-on experience with plagiarism happened in 2004. I’d recently reviewed T.C. Boyle’s The Tortilla Curtain glowingly on Amazon. A complete stranger emailed, offering me $40 cash to write his five-paragraph essay on that novel. A quick-n-dirty Google search discovered that this writer was a Southern California honors student with multiple STEM awards. I emailed his high school, notifying them of this attempted academic dishonesty, and never heard back.

Last week, Princeton historian and minor Twitter celebrity Kevin M. Kruse was accused, with some credibility, of plagiarism. Several passages from Kruse’s 2000 doctoral dissertation too closely resemble books by Ronald H. Bayor and Thomas Sugrue. Kruse’s public positions are broadly Leftist; his accuser, Phillip W. Magness, has right-wing think-tank ties and frequently publishes in conservative magazines like National Review. The accusation appears in the right-Libertarian magazine Reason.

Not surprisingly, the cross-talk surrounding this accusation breaks along partisan lines. Left-liberal defenders claim the accusations are overinflated. Right-wing accusers claim this evidence not only undermines Kruse, but higher education overall. Both sides assign intent, not only to Kruse himself, but to the other side of the argument. Within minutes, every argument comes unmoored from Kruse’s work, and becomes about wider moral concerns in educated society.

Five years after being solicited to write somebody’s five-paragraph essay, I was working as a graduate teaching assistant. Two students turned in “annotated bibliography” assignments that were virtually identical. Google revealed both students copied their one-page assignments, with minor amendments, directly from the New York Times. Admittedly, I didn’t handle it well; I commenced a high-handed rant about the morality of originality, and the evils of plagiarism.

T.C. Boyle

One thing appears clear: Kruse definitely plagiarized. The sentences from Bayor and Sugrue which Magness finds in Kruse’s dissertation are too numerous, too close together, and too verbatim to be coincidental. Kruse’s most prominent defender, L.D. Burnett, tries to construct a viewpoint wherein Kruse’s copying might be merely coincidental. But actually placing Kruse’s words and his sources side-by-side, as Magness does, makes this defense look anemic.

Understand, Magness never challenges Kruse’s conclusions, only his prose. And the sentences Kruse plagiarized, if removed from his books, wouldn’t change his overall message. Magness only challenges Kruse’s academic rigor, a standard Kruse himself has used to undermine others. He catches Kruse committing the kind of errors he regularly denounces in others, knowing Kruse’s Left-liberal audience prizes consistency as part of their definition of fairness.

The more I encountered plagiarism in student work, the more forgiving I became. When students filched from Wikipedia, Reddit, and other ubiquitous sources, I realized they weren’t malicious. They were busy. I expected them to reach unique conclusions, and arrange entirely new sentences, around topics they knew little about, and cared even less. Plagiarism became a classic teachable moment, not a crime; I started clamping down only on habitual offenders.

Watching the Kruse controversy unfold, I’m reminded of Jonah Lehrer's public collapse. Rather than plagiarism, Lehrer fabricated evidence. Like Kruse, he told an eager audience what it already wanted to know, and the publishing world rewarded him richly. Like Kruse, Lehrer’s fabrications didn’t contradict the evidence, and Lehrer’s scholarship largely holds up. But, like Kruse, Lehrer’s disregard for industry standards sidelined his career at the peak of his popularity.

Jonah Lehrer

Since leaving academia and becoming a professional technical writer, I’ve spent countless hours hunched over my computer, repurposing my own and others’ words for new uses. Complete originality is important for authors and academics, who need to own their writings to get paid. But other kinds of writers—technical writers like me, ad copywriters, attorneys drafting legal briefs—regularly recycle words and sentences, in ways I once reprimanded students for.

I gave Kruse’s 2015 book One Nation Under God a glowing review, and I wasn’t alone. But like my students, Kruse is busy. As Jerry Z. Muller writes, lucrative rankings from US News and Princeton Review tally faculty members’ publications as part of their algorithms. Thus scholars like Kruse must publish prolifically, not only to receive tenure, but to keep top-tier students coming through the doors. Quantity beats quality.

This isn’t to forgive Kruse. He got caught committing the very transgression he’s spent two decades excoriating conservatives for, as Magness writes. He’ll need to spend time outside the limelight, and muster some persuasive apology, at minimum. (Kruse’s Twitter feed has been silent since Magness’s story dropped.) But maybe it’s time for academia to find some yardstick other than originality. In today’s media-saturated world, original words are hard to find.

“A Kinder, Gentler War on the Poor” Part 2

This essay follows from “A Kinder, Gentler War on the Poor”

A statue of Jesus Christ as a homeless man sleeping rough. (source)

It’s probably most obvious when it regards policing homelessness: our governments make it illegal to sleep under bridges, in public parks, or in cars. There’s only one reason to do this, of course. We might make some meaningless excuse about preventing unauthorized camping, but come on, Boy Scouts aren’t pitching tents in the park. The only reason to criminalize public sleeping is to create a crime that only applies to the homeless.

In other words, we don’t bust homeless people because they’re committing crimes; we create categories of crimes to bust homeless people. By this logic, “criminal” isn’t something people become because they commit crimes, but something people innately are, and we write laws to target them. Not coincidentally, these innate criminals match social categories we’ve been taught to despise on sight: the poor, the non-White, immigrants, homosexuals.

I’ve always been conscious of this on some level, though only recently have I processed how widespread the phenomenon is. Laws against “blocking the sidewalk” supposedly exist to stop street crime, but are enforced almost entirely against people who are poor, Black, or both. One of the first things that happens when well-off White people move into poor ethnic neighborhoods, is they start making nuisance calls to police about young people loitering.

Back in high school, I remember the administration writing new rules against students wearing “gang colors.” These standards were ominously vague, and largely meant bright, vibrant shades of red or blue. (This was the peak of media-driven paranoia about the Crips and the Bloods.) Notably, these rules were only enforced against Black and Hispanic students, who started wearing only faded denim and white t-shirts to appear as nondescript as possible.

Not that the rules were never enforced against White students. I saw White friends reprimanded for violating “gang colors” rules twice. Both times involved tying brightly colored bandanas around their neck or hair. In other words, White students were only targeted by anti-Black rules when they did something stereotypically Black. This means the rules did double duty, forcing Black students into mute compliance, while forcing White students into middle-class conformity.

Florida Governor Ron DeSantis in his
favorite pose: angrily lecturing the crowd

Currently, we’re witnessing this same pattern evolving in Florida, where the so-called “Don’t Say Gay” bill is inventing categories of law specifically targeting LGBTQIA+ Floridians. Demonstrating conventionally gay behaviors, dressing in supposedly gay manners, or teaching schoolchildren about sexual and gender identities, have become unlawful in America’s third most populous state. Like the “gang colors” rule, the law nominally covers everyone, but will only get enforced against nonconformists.

Florida governor Ron DeSantis has needed to manufacture claims of harm to justify these rules. Talk about “grooming,” kiddie-diddling, and protecting children’s innocence, is used to justify ham-fisted crackdowns. But I cannot believe, for one damn minute, that Governor DeSantis thinks talking about gender will spoil schoolchildren’s innocence. He knows as well as anybody what motivates this legislation: he’s creating rules to punish creepy out-group members.

It’s important how frequently Christianity, and specifically Levitical Law, gets cited to reinforce these rules. Like American law, Levitical Law involves definite claims of material harm: thou shalt not steal, thou shalt not commit murder, thou shalt not commit adultery. But other laws about, say, eating shellfish, wearing mixed cloth, and getting tattoos, aren’t about preventing harm. They’re about creating an in-group identity: Thou Shalt Not Do What Foreigners Do.

But I believe Jesus, a Jew who lived during times when a conquering Empire used the Temple priesthood as a proxy government, would recognize what’s happening here. An authoritarian central government is using state power to arbitrarily punish anybody who deviates from state-sponsored identity categories. Whether those identities are economic (sleeping rough), sexual (dress to match your genitals), or racial (don’t dress like the Black kids).

I don’t support total lawlessness. We need consequences for people who commit robbery, rape, and murder. But huge swaths of law exist to enforce conformity, punish deviance, and push certain groups into permanent outlaw status. When our legislatures pass laws that criminalize, for instance, whatever Black people do, the message is clear: Black people are criminals by nature. They don’t necessarily commit crimes; their actions just are crimes, in advance.

Homelessness, gangs, sexual purity: the rhetoric surrounding these actions exists entirely to punish out-group members for things they can’t control. We don’t punish people because they commit crimes; we create criminal categories because people’s actions cause responses of revulsion and disgust among the in-group. But, from high school cliques to Fascist states, history proves that the in-group is never appeased.