Tribal Waters and The Supreme Court

by Mark Harvey

After we get back to our country, black clouds will rise and there will be plenty of rain. Corn will grow in abundance and everything [will] look happy. –Barboncito, Navajo Leader, 1868

Barboncito, Navajo Leader, circa 1868

My idea of a fun evening is listening to the oral arguments of a contentious dispute that has reached the Supreme Court. As much as I disagree with some of the justices, I must admit that almost all of them are wickedly sharp at analyzing the issues—the facts and the law—of every case that comes before them. I don’t always get how they arrive at their final votes on cases that seem cut and dried before their probing inquiry. But most of them can flay a poorly presented argument with all the efficiency of a seasoned hunter field-dressing a kill.

So it was with the recent hearing on Arizona v. The Navajo Nation, heard before the court this year on March 20. At stake, in this case, is what responsibility the US government does or doesn’t have in formally assessing the Navajo Nation’s need for water and then developing a plan to meet those needs. The brief on behalf of the Navajo people, Diné as they prefer to be called, puts the case in stark and unmistakable terms: “This case is about this promise of water to this tribe under these treaties, signed after these particular negotiations reflecting this tribe’s understanding. A promise is a promise.”

The promise referred to in the brief refers to a promise made about 150 years ago when the Diné signed a treaty in 1868 with the US Government to establish the Navajo Reservation as a “permanent home” where it sits today. The treaty is only seven pages long and it promises the Diné a permanent home in exchange for giving up their nomadic life, staying within the reservation boundaries, and allowing whites to build railways and forts throughout the reservation as they see fit. A lot of things were left out—like water rights. Read more »

Reclaiming the American Narrative

by Mark Harvey

“It is certain, in any case, that ignorance, allied with power, is the most ferocious enemy justice can have.” —James Baldwin

The election a couple of weeks ago came as a relief to many of us. It was not a feeling of happily getting back on track again but rather a sense of relief that we hadn’t entirely lost our democracy to shrill lunatics intent on building a bargain-bin version of American fascism. The Republican Party today is unrecognizable even to rock-ribbed Republicans. When someone from the Cheney family threatens to leave the party for its cowardice and extremism, you know you’re dealing with a party that has completely lost its way.

A Republican used to be someone like Dwight Eisenhower, a moderate who worked well with the opposing party, even meeting weekly with their leadership in the Senate and House. Eisenhower expanded social security benefits and, against the more right-wing elements of his party, appointed Earl Warren to be the Chief Justice of the Supreme Court. Warren, you’ll remember, wrote the majority opinion of Brown v Board of Education, Miranda v Arizona, and Loving v Virginia. If Dwight Eisenhower were alive today, he would be branded a RINO and a communist by his own party. I suspect he would become registered as unaffiliated. Read more »

How Black is Not White?

by Akim Reinhardt

Today in TV History: Bill Clinton and His Sax Visit Arsenio – TV ...During the 1990s, the impossibility of a black president was so ingrained in American culture that some people, including many African Americans, jokingly referred to President Bill Clinton as the first “black president.” The threshold Clinton had passed to achieve this honorary moniker? He seemed comfortable around black people. That’s all it took.

Because an actual black president was so inconceivable that a white president finally treating African Americans as regular people seemed as close as America would get any time soon.

In 1998, Nobel Laureate Toni Morrison brought Clinton’s unofficial title to national attention with a New Yorker essay aimed at discrediting the impeachment proceedings against him. One of Morrison’s rhetorical devices was to check off all the boxes in which Clinton displayed “almost every trope of blackness,” including being raised in a working class, single-parent household, and loving fast food.

By 2003, the idea of a black president was still outlandish enough that it served as common comedic fodder. Chris Rock starred in the film Head of State, a fantasy comedy in which Chicago Alderman Mays Gilliam becomes a fluke president. And Dave Chappelle portrayed an unabashedly African American version of President George Bush in a Chapelle Show sketch. The skit’s running joke was how outrageous and “unpresidential” it would be to have a black chief executive. Read more »

The Country Mouse and the City Mouse: A Brief History of American Identity, 1790-Present

by Akim Reinhardt

In 1790, shortly after the 13 states ratified the U.S. Constitution, the new federal government conducted its first population census. Its tabulations revealed an astonishingly rural nation. No less than 95% of all Americans lived in rural areas, either on a fairly isolated homestead (typically a farm) or in a very small town. How small? Fewer than 2,500 people. Meanwhile, just 1/20 of Americans lived in a town with more than 2,500 people. All told there were only 26 such towns, only half of which had so many as 5,000 people

In a nation of nearly 4,000,000 people, the ten largest cities had a combined population of only 152,000. And half of those top ten cities did not even have 10,000 people.

Yet, even then, tensions between rural and urban interests were already evident. Urbanites, particularly elite merchants, had drawn on their power, wealth, and influence to promoting constitutional ratification. At the forefront of opposition had been small farmers.

A general theme among opponents to ratification were concerns that the new constitution aimed to create a much stronger central government. Some worried it would erode the sovereignty of the individual states. Some thought it created something too much like the despotic British government they’d just rebelled against. And some fretted about the possible loss of personal liberties; the much vaunted Bill of Rights was not part of the original document.

Debate was fierce. Historians believe it’s possible that a majority of Americans actually opposed the new Constitution. Yet it passed it eventually. During an era when voting rights were tied to personal wealth, small farmers held little political sway in most states despite their numbers. Their concerns did lead to the first 10 Amendments being added, but in the end the Federalists, particularly active in larger cities such as New York and Boston, won the day. Yet the vengeance of anti-urbanites was close at hand. Read more »

This Populist Moment

by Akim Reinhardt

Beetle Baily by Mort WalkerLast week, Barack Obama got beaten up on social media and called out by the press for accepting a $400,000 speaking fee from a Wall Street investment firm. It was the day's major kerfuffle, the non-Trump story of the week, and reactions to it by many of my smart, well reasoned friends surprised me somewhat.

They began with the stance that this isn't an issue. Obama's a private citizen now, so who cares? But lots of people did care. When the story picked up steam despite their protestations, my friends then blamed the loony left for fabricating the issue, launching a general assault on fringe elements of the Democratic party and a firm defense of sensible centrist outlooks. Yet it wasn't just the left. The right predictably piled on as well, without any prompting from the left. The story also transcended the partisan divide as the centrist press ran with it. Christ, even the BBC, the vanilla pudding of international news, covered it.

In the end, the defense of Obama that gained the most traction among my friends, and to some degree in the national media, was a racial analysis. Some claimed that this brouhaha was another example of white people shaming a black man for earning a paycheck, the imposition of a racial double standard since white politicians and ex-politicians do this kind of thing all time.

This needs to be reckoned with. Obama was always held to a higher standard, precisely because he was black; he was always subjected to intense racism, and the racist backlash to his presidency as much as anything helps explain Trump's victory. Was this just another example of that racial double standard? It's an important question to ask.

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American Regicide

by Akim Reinhardt

Heneage Finch, Earl of Nottingham, An Exact and Most Impartial Account of the Indictment. of 29 Regicides.  (London: Andrew Crook, 1660)Donald Trump is going down. His house of cards will collapse at some point. The leaks will keep flowing and eventually his position will become untenable. Conflicts of interest. Connections to Russia. All of it will become too great a weight to carry, especially since The Donald has very few genuine allies in Washington.

The Democrats want him gone. So too do most of the Republicans. Hell, they never wanted him to begin with. The GOP did everything it could to derail his candidacy, and only climbed aboard after Trump's runaway train was the last red line careening towards the White House. So for now they're playing nice with the former Democrat who eschews Conservative dogma in a variety of ways and is loyal to absolutely no one save himself. But when the moment comes, they'll gladly trade Trump in for Mike Pence, a Conservative's wet dream.

For all these reasons, Trump may not make it to the finish line. But there's one more factor to consider: the precedent of regicide. And to understand that, we should begin by briefly recounting of the demise of the Ottoman sultan Osman II.

Young Osman II ascended the Ottoman throne in 1618 at the tender age of 14. Wishing to assert himself, in 1621 he personally led an invasion of Poland, which ended with a failed siege of Chota (aka Khotyn, now in western Ukraine). In a rather unwise move, Osman blamed the defeat on his elite fighting force, the Janissaries. Afterwards, he ordered the shuttering of Janissary coffee shops, which he saw as a hotbed of conspiracies against him. The Janissaries responded with a palace uprising. In 1622 they imprisoned the 17 year old monarch and soon after killed him. Because it was strictly forbidden to spill royal blood, they strangled him to death.

I first learned about the rise and fall of Osman II in 1992 while taking a graduate course on Ottoman history. "Something happens," our professor warned us in a foreboding tone, "the first time an empire commits regicide."

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Why I’m Not Writing this Essay

Operation orange coneby Akim Reinhardt

I've been writing 3QD Monday columns for over six years now. Never missed a deadline. Not a one of ‘em. Every fourth Monday: Bang! 2,000 words. More like 2,500. I enjoy it. I look forward to it.

Each December, when the city of Baltimore mails every resident a Baltimore City Department of Public Works paper calendar, I open it up, flip through the months, and write 3QD in the box of every fourth Sunday, reminders to have my essay done in time for the Monday column to be posted. Right there, beneath color photos of workers standing in sinkholes and shoveling to get at busted water mains; of latex gloved volunteers picking up garbage; of jerryrigged snow plows rambling somewhat ineffectively through snowy streets; of schoolkids ogling a big truck at the city dump. That is where I make happy little notes so I don't forget: compose another essay for 3 Quarks Daily!

And lo and behold, today is that fourth Monday. Today I'm up to bat, along with a handful of other semi-esteemed writers, like Adam Ash (not his real name), Leanne Osagawara (not her real name anymore), and that guy who uses his real name while comparing cheesy Hollywood films to real world events (love it!). And all the others who've come and gone. There used to be some woman in Canada who was a nurse, maybe? Or a dentist or something? I don't know. She wrote good stuff. But she and a lot of others have burnt out or moved on. Yet here I remain. And it's my turn again.

But I'm not doing it. I'm not writing my essay this week. I'm taking early January, 2017 off. Why, you ask? How did it come to this? Well, there's a whole bunch of reasons, really.

I'm a Lazy Bastard: My whole life I've loved nothing better than doing nothing. Sometimes I come clean and admit my lethargy, but people often refuse to believe me. "You have a Ph.D. You've published three books. You helped negotiate the Peace of Westphalia. You can't possibly be lazy." I protest. I insist that I am. I remind them that professors are notoriously lazy, barely rousing themselves to sleep with their students. But the skeptics just pshaw and insist I'm energetic.

Yeah? Well not energetic enough to write this essay.

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The Two Party System is Officially a Nightmare

Teenager For Barryby Akim Reinhardt

Much has been made of the fact that Donald Trump and Hillary Clinton are the two most loathed presidential candidates since the birth of polling. Each of them has managed to alienate roughly half the country. About a quarter of Americans despise both of them. They make Barry Goldwater, Michael Dukakis, and Mitt Romney look beloved.

There has been a lot of focus on why these two candidates are so widely reviled. Simple partisanship doesn't seem to adequately explain it; fewer than a third of American view either of them favorably.

The Washington Post and ABC News tell us that Clinton-haters typically see her as a corrupt, untrustworthy flip-flopper, while Trump-haters hate too many things about him to list here, but it largely boils down to him being perceived as an inexperienced hatemonger.

Fortune magazine dispenses with the specifics and instead points to Clinton's and Trump's long and choppy resumés as repulsing the masses. Despite whatever accomplishments they may have racked up over the years, the thinking goes, voters simply can't get past the many “bad” things each candidate has done.

However, I'm less concerned with why exactly these two candidates are so widely detested. On some level, the why doesn't really matter; what's more pressing, I believe, is the how. In terms of American political mechanics, how could this happen and what does it mean? How did it get here, and what can we learn from it?

The one common mechanical process in almost every aspect of American politics is the two-party system: an extra-constitutional artifice that long ago hijacked government. And it is through those double swinging doors that we have stumbled into our current political purgatory.

This bi-polar orgy of villainy signifies that America's two-party system itself is badly broken; indeed, odds are that such a scenario would not have emerged if there were additional healthy political parties.

Let's start with Donald Trump.

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Some of the People All of the Time (On Trump’s Legion)

by Akim Reinhardt

You can fool all the people some of the time
and some of the people all the time,
but you cannot fool all the people all the time.

Lincoln quotesFor example, some people will always believe that Abraham Lincoln first uttered this famous aphorism, even though there is no record of him ever having written or said those words.

A French Protestant named Jacques Abbadie authored an early incarnation of the adage in 1684.

In 1754, the French editors Denis Diderot and Jean le Rond d'Alembert helped cement its popularity.

The phrase doesn't show up in American letters until some Prohibitionist politicians started using it in 1885. Twenty years after Lincoln died.

Until recently, I simply took at face value the common claim that these were Lincoln's words. It's not a very important issue, so what would push me to question it?

My decision to title this article.

A little healthy skepticism is all it took. After all, lots of famous quotes are misattributed to famous people, ergo the Yogi Berra line: “I really didn't say everything I said.” Which he really did say.

So before titling and publishing this essay, I looked up the maxim at a reputable site with citations, just to be sure. And presto: suddenly I am, at least in this regard, all of the people some of the time, and not some of the people all of the time.

You really don't want to be some of those people who get fooled all the time. Which brings us to Donald Trump.

He's very good at fooling people. At the moment, he's successfully fooling millions of Republican voters into thinking he'd be a good president generally, and more specifically, that if elected he could actually do many of the outlandish things he's claiming, like getting Mexico to pay for a wall.

Thus, the question lurks forebodingly: Are we living through “some of the time?”

Is this the moment when Donald Trump fools all of the people, or at least enough of the ones who call themselves Republicans, that he lands the GOP's presidential nomination?

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On the Future of American Politics

by Ali Minai

072815_baierIt is only the fall of 2015, and the United States is already in the grip of the Presidential campaign for an election that is still more than a year away. Since the emergence of 24-hour news, and especially with the explosive growth in social networks such as Facebook and Twitter, each successive American election cycle has become increasingly like a reality TV spectacle rather than a serious political event, culminating in the current ascendancy of an actual reality TV figure – Donald Trump – as the leading candidate from the party of Abraham Lincoln and Teddy Roosevelt. Millions are now watching Presidential debates purely for their entertainment value, and the American political system appears to have become a joke. But, of course, appearances are deceptive in this case. Anyone who pays attention to events around the globe understands that electing the leadership of the world's only superpower is extremely serious business with global consequences. And this is arguably more true today than at any time in history – even during the World Wars and the Cold War – because, while those challenges were dire and existential, the problems the world faces today are no less serious but even more complex. These problems – climate change, demographic and socioeconomic imbalances, the rise of jihadist militancy, mass migrations, etc. – all are, to a large extent, products of our hyperconnected, supercharged, always-on brave new world powered by the relentless march of technology towards ever higher activity, productivity, and connectivity. All of them, without exception, can be addressed only with global strategies, and not through piecemeal policy-making by national governments. But, at precisely this delicate moment, the world finds itself paralyzed with petty rivalries and feckless indecision. A lot of this is simply the inescapable product of history, but it is impossible to deny that increasing political dysfunction in the United States is a major risk factor for the many potential catastrophes staring us in the face. Anyone concerned about these dangers should care deeply about the political system of the United States and its prospects of recovery from its current funk.

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America’s Move to the Right

by Akim Reinhardt

John RobertsLast week, U.S. Supreme Court Chief Justice John Roberts stunned much of America. Normally associated with the court’s Conservative bloc, he jumped ship and cast the deciding vote in the 5-4 case of Florida v. Department of Health. His support allow the court to uphold the constitutionality of the individual mandate portion of the Patient Protection and Affordable Care Act (ACA). Popularly known as ObabaCare, the bill requires all but the poorest Americans to purchase health insurance or pay a hefty penalty.

All of Roberts’ usual compatriots, along with the court’s typical swing voter, Justice Anthony Kennedy, vigorously dissented. Not only did they claim that the mandate is unconstitutional, they wished to scrap the entire bill. Had Roberts voted with them, as most observers expected him to, ObamaCare would have gone down in flames. But he didn’t. Instead, he infuriated Conservatives and made (temporary?) friends among Liberals by allowing the bill to stand. And in order to do so, he split the difference.

On the one hand, Roberts remained true to his philosophy of judicial restraint, stating in his decision: “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” Furthermore, he steadfastly refused to join the Liberal wing in signing off on the bill’s constitutionality under the commerce clause; Congress, he maintained, most certainly cannot compel Americans to purchase health insurance. In these respects, at least, wore Conservative garb. However, Roberts did allow that in this case, the government's fine on individuals who buck the mandate, could be interpreted as a tax. That was a particularly liberal reading of the bill, pun intended, given that for political reasons the ACA’s architects had been careful to not to call the penalty a tax. But with that reading, Roberts found a way to join the four Liberal justices in upholding the ACA since Congress’ powers of taxation are well established. Thus did Roberts craft an opinion that eased his Conservative conscience while also allowing a Liberal piece of legislation to stand.

Or did he?

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The Birth, Decline, and Re-Emergence of the Solid South: A Short History

by Akim Reinhardt

Slave saleSince the Civil War, the American South has mostly been a one-party region. However, by the turn of the 21st century, its political affiliation had actually swung from the Democrats to the Republicans. Here’s how it happened.

It is not an oversimplification to say that slavery was the single most important issue leading to the Civil War. For not only was slavery the most important on its own merits, but none of the other relevant issues, such as expansion into the western territories or states’ rights, would have mattered much at all if not for their indelible connection to slavery.

Initially, Northerners rallied around the issue of Free Soil: opposition to slavery on economic grounds. Small farmers and new industrial workers did not want to compete with large slave plantations and unpaid slave labor. This was the philosophy that bound together the new Republican Party.

No friends of African Americans, most Free Soilers were openly racist, as were the vast majority of white Americans at the time. Abolitionists, who were fired by religion and opposed human bondage on moral grounds, were actually a small minority of the population However, as the bloody war raged on, Northerners began to seek moral assurance in their cause. For more and more people, the mere political goal of saving the union did not seem to justify the unholy slaughter of men by the tens of thousand. Though preserving the union was always Abraham Lincoln’s primary goal, he astutely played to this concern by issuing the Emancipation Proclamation and establishing abolition as the war’s moral compass. It worked. The North persisted, won the war, abolished slavery, and forced the South to return.

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