Heartache With Hard Work

So there are plenty of reasons to be skeptical about Obama’s announcement. For one thing, it isn’t really a surprise. It’s been obvious for a long time that Obama wasn’t ‘really’ troubled by gay marriage. Which means there’s clearly a political element to the whole announcement. And, of course, his statement in favor of gay marriage still maintained support for the notion that this is up to states. And, as I posted about two days ago, it’s not absurd to think that the tangible benefits of this declaration might actually be outweighed by the polarization that comes from presidential association. And so on.

But frankly, I really appreciate the occasional moments in our public life where people seem to step outside of the realm of politics-for-its-own-sake and cynicism. I think yesterday was one of those moments. All the details faded away and pure, unadulterated joy of the instant was allowed to flourish.

I am a deep skeptic of the Great Man approach to politics, and I get very tired of obsession with the president as an individual, which ignores the broader institutional role. I think it’s silly to expect the president to be able to simply give a speech and change minds. But all that said, yesterday felt like something big. Whether or not it ultimately makes a difference, it still just felt like an important moment: to hear the president of the United States actually say it.

Lots of talk in the last few days about Obama, his administration, and their opinion on gay marriage. I want to come at this from a slightly different direction.

Let’s assume that Obama really is pro-gay marriage, but is pretending he’s not for political reasons. I think most people believe this to be the case. Let’s further assume something more controversial: that Obama failing to take a stand on this issue makes it easier for him to pursue some pro-gay measures slightly more under the radar (the repeal of DADT, refusing to defend DOMA, etc.). I realize that people might not believe this to be true, but I’m curious about the hypothetical. My question is: would that be a worthwhile trade?

The whole ‘evolving’ viewpoint of Obama is, of course, annoying. And since this is an issue that I care rather deeply about, it’s certainly frustrating. But I am also strongly of the opinion that people are overly obsessed with this sort of thing. The bully pulpit is severely overrated. And frankly, there are plenty of studies from recent years that in the incredibly polarized party structure we’ve got right now the president taking a stand on an issue actually drives away the potentially persuadable on the other side. It raises the profile of the matter and turns it into a singular national question.

Now, I’m no fan of federalism (and I may write up something longer about gay marriage and federalism soon), but given the state of affairs, the realm in which gay marriage fights will take place over the next few years will be the states. So I can see the potential argument here: by avoiding the question, Obama isn’t really doing any harm to the struggle for gay marriage, and might make it slightly easier to accomplish the things that can be done at the national level.

I’m not saying I agree with this, but I do think it makes a modest amount of sense. But I haven’t really seen people discussing it this way. Everyone seems to agree that Obama is selling out the gay community and the only question is whether the external benefits he gets are worth it.  Is the argument made here totally implausible?

Update: I see that Scott Lemieux says something pretty similar to this.  As per usual, I agree with him.

The Face That Launched 1000 Shits – Death Cab for Cutie
Empty Cans – The Streets

This is, I think, the one thousandth post on Heartache With Hard Work.

When I started this blog six years ago, I had no particular intentions for it. I wanted to write about music and figured it would sort itself out. Here we are now, after 1000 posts and something like half a million page views.

And while there’s no denying that the pace of my activity here has declined a lot, I appreciate all of you who continue to stop by and read. As Bruce tells us, we need a good companion for the ride. Thanks for being a companion for this silly blog.

I very quickly grow bored with the standard argument about hypocrisy in politics. I definitely think that people ought to make judgments about abstract notions of the good in politics (my Rawlsian influence shining through), but I am certainly not shocked or appalled when this is not perfectly reflected in our real politics. Look, Democrats are going to argue that the filibuster is bad policy and unconstitutional when it is blocking their agenda, and then defend the rights of minorities when it blocks the conservative agenda. And Republicans will do the same. Pretending that we are shocked about this is just silly.

The reason I bring this up is the recent hand-wringing by the right about Obama ‘politicizing’ the Bin Laden killing. This strikes me as something very different from the boilerplate stupid political hypocrisy. I mean, yes, obviously if the shoe was on the other foot Republicans would castigate anyone who challenged the right of their candidate to trumpet such a success. And similarly, if this raid had gone poorly you can be absolutely positive that Romney would run ads about Obama’s catastrophic foreign policy choices. This is obvious.

The thing that really gets my goat, though, is the notion that there are certain things which it is offensive to ‘politicize.’ Paul Waldman has a good post about this, arguing that we need to shine a political light on foreign policy decision-making, and ‘politicizing’ things is the best way to do this. I agree with that. But I want to go even further. I completely reject the notion that there are sacred cows, where it is categorically offensive to reference them in the pursuit of political gains.

If Romney wants to argue that he would have achieved the same results, he is free to do so. There is a lot on the record to make this a difficult argument, but it is obviously a hypothetical so he just needs to persuade people to trust him. But it is crucially important that we actually impose that burden on our potential political actors.

I want to stress the difference between this sort of ‘politicization’ and the inane noun-verb-9/11 style of comments we heard a lot of from the Giulianis and Bushes of the world. But it’s not because those comments were ‘offensive’ – it’s because they were inane.

If the Obama characterization is unfair, then THAT might be worth challenging as a particularly odious form of politicization. I don’t agree with that argument, but you could at least try to make it. But the notion that anything tied to 9/11 is structurally beyond the pale is absolutely offensive to the very nature of meaningful political life.

The Boss is still very much The Boss. The few doubts I had after his disappointing album a couple years ago have been completely wiped away in 2012. Wrecking Ball is right there in the conversation for his best work since Born in the USA. In fact, there are only three of his records that I think are unquestionably better (Born to Run, Darkness, Born in the USA). It probably doesn’t really come out as his 4th best record, but it’s at least in the conversation. Which is pretty impressive for someone who has contemporaries that haven’t produced anything relevant in decades.

And, after seeing him on Tuesday night, I can report that his live shows are just as energetic as ever. He played for over 3 hours with only a few seconds of pause in the whole night. There were a ridiculously large number of the classics (Badlands, Born to Run, Thunder Road, Rosalita, Dancing in the Dark, to name a few), a nice smattering of the old and new, including some blistering performances of the great songs on the new record. I feel incredibly blessed to have seen Jeff Mangum and Springsteen within the course of just a couple weeks – those are easily two of the most mind-blowing concerts I have ever been to.

What makes Wrecking Ball such a great record? Well, in large part it’s a function of Springsteen’s complete willingness to jump headfirst into it without worrying about whether it’s cool. It does, of course, mean that a few of these tracks are a little over-seasoned. “We Take Care of Our Own” kicks things off in precisely that zone of slight indistinction. It’s a great song, that sound big and brash. It just *sounds* bright. And the message is almost aggressively straightforward: “this is America. We ought to take care of everyone, not just the rich and secure.” That theme does make me just a tad uneasy, given that I’m inherently very skeptical of things that can be deployed in a jingoistic way. Sure, we can take care of our own, but what about all those on the other side looking in? Especially when paired with ‘wherever this flag is flown.’ I want to ask: so that includes all our foreign military bases, I guess? But really, this is just another “Born in the USA” type of problem. The whole album is built around the idea that ‘we’ are most powerful when we conceive of ourselves in terms of openness and hospitality. If you want to discover a slightly clunky nationalism, sure it’s there. But that’s not all there is by any means.

You get some more of this on “Death to My Hometown” where he rolls out his best Celtic barnburner and lashes out with intense anger at the role of finance and money: “They destroyed our families, factories, and they took our homes / They left our bodies on the plains, the vultures picked our bones.” On my first listens, I was turned off by the simplistic nature of his critique. Who is the ‘they’ here? Rich people? Robber barons? Outsourcing? It’s not really clear. And the exceedingly general nature of the critique feels like a problem. Most of his best work on this theme is far more particular, featuring a real STORY (see: The River, Youngstown, etc.). I feel like the overly general nature of the critique makes it hard to really DO anything with it.

That said, I think my point from a couple weeks ago really stands here. This song (and, more broadly, the whole album) is not meant to be a view from nowhere. It’s telling a specific kind of story, and it’s really quite important to hear it on those terms. While I have some general skepticism about paeans to lost manufacturing in terms of the policies that get proposed (basically kneejerk protectionism), a society that isn’t terribly upset about those who are left behind is a poor society–even if you can’t just (and shouldn’t want to) go back to the 1950s.

Same thing goes with “Shackled and Drawn,” which reads a bit too much like a paean to the guys working the fields – something that was out of date even when Springsteen was getting started, much less now. And he’s got a goofy fake-Okie accent. But it scorches live, and it’s not Bruce’s fault that he is a child of a particular place in history. Sure you get the occasionally hokey song, but the influence of his folk heroes are a clear net positive on his work as a whole.

So far I’ve talked about the good songs that still give me slight reservations. But I’ve also got some pure, unabashed love for parts of this record. First and foremost is “Land of Hope and Dreams,” which has actually been kicking around for a decade at this point, but finally gets the studio treatment here. And it’s a tour de force. You get basically the entire Springsteen mythos here: trains, lost souls, community, redemption, and a killer saxophone solo from the Big Man (one of his very last, sadly). And again, the fact that the mode of reference is almost anachronistic these days is actually part of the point. It’s a call to remember what is great in our past, not to say that we can go back, but to caution us about what it means to move forward.

You get the same kind of sentiment (phrased in a different way) on “Wrecking Ball.” Sung from the perspective of the old Giants stadium, waiting to be knocked down, it strikes a tone of defiance, resolution, and acceptance. It’s a great metaphor, because you get the sense that this is really a song about Bruce himself, and the ever-present fact of age. All things must pass, and he knows it, but that doesn’t mean there is no honor in standing astride of time shouting no. If the end must come, he says, let me face it proudly and make the very best of what is left to me.

Other highlights include the rousing “We Are Alive,” which has a slightly quirky beat and pitches the general themes of the album in the grand terms of ghostly remainders. Or the elegiac “Rocky Ground,” which took a while to really work for me (it’s very busy sonically, and includes a rap interlude, and sampling!), but has grown into one of my favorites. The biblical imagery works, his voice walks the line between weary and defiant, the horns are simply beautiful, and the rap bit is pitched perfectly. It’s a real testament that he’s attempting things like this, but an even bigger testament that he can make it all work.

Sure, there are a couple goofy tracks on this record. And no, it doesn’t all work perfectly. But when it does work, the heights it scales are glorious. And it’s the best album I’ve heard so far this year.

Scott Lemieux points out a very silly column about the death penalty. He points out the lunacy of acting like the morality of the death penalty should be judged based on extreme cases. That is, of course, a good point. I would still oppose the death penalty even if it was restricted to the 100% guilty and the 100% horrible. But it would certainly change the moral argument, compared to the status quo which uses the death penalty in disproportionate terms against people based on race, class, etc.

But for me, the absolute absurdity of the article is based on something even more simple.

Yet, on one point, Breivik is not talking crazy. At his trial, which began April 16, he pronounced the maximum penalty for his actions — 21 years in prison, or longer if the government meets certain conditions — “pathetic.” He “would have respected” the death penalty, Breivik said. Of course, he won’t get it; Norway abolished capital punishment long ago.

Yes, we should definitely take a mass murderer’s sense of masculinity and righteous violence as our standard for justice. I can see no problem with that.

Today I was reading Scalia’s dissent in Clinton v. City of New York (the case that ruled the line-item veto unconstitutional) and was struck by one of his argument, and its applicability to the ACA case:

The short of the matter is this: Had the Line Item Veto Act authorized the President to “decline to spend” any item of spending contained in the Balanced Budget Act of 1997, there is not the slightest doubt that authorization would have been constitutional. What the Line Item Veto Act does instead-authorizing the President to “cancel” an item of spending-is technically different. But the technical difference does not relate to the technicalities of the Presentment Clause, which have been fully complied with; and the doctrine of unconstitutional delegation, which is at issue here, is preeminently not a doctrine of technicalities. The title of the Line Item Veto Act, which was perhaps designed to simplify for public comprehension, or perhaps merely to comply with the terms of a campaign pledge, has succeeded in faking out the Supreme Court.

While I continue to believe that a reasonable reading of the recent (well, last 70 years) precedent on the Commerce Clause makes it clear that the mandate is a reasonable use of Congressional power in that respect, the taxation issue is another potential angle.

There really isn’t much of a meaningful difference between the mandate and a tax.  You can read it as a penalty for non-compliance.  Or you can read it as a tax, for which most people will get a tax-break (if they have insurance).  You can debate about whether this completely collapses the distinction between tax and penalty, though there is a piece here which explains a difference that makes some sense.  I haven’t really thought through whether this actually makes sense, but it seems pretty plausible.

However, the more common objection I’ve heard is simply that it wasn’t structured as a tax.  They avoided calling it a tax assiduously.  And they claim it isn’t a tax so that they can hear the case at all (since the Anti-Injunction Act) would mean the Court couldn’t even hear the case until it actually went into effect if it were a tax.  But Scalia’s reasoning here seems to eviscerate those arguments.

I assume the Court doesn’t WANT to consider it a tax, so won’t be troubled by this.  But I’m really having a hard time understanding how it’s meaningfully different.

Engine – Neutral Milk Hotel

It’s going to be hard to discuss my experience seeing Jeff Mangum last night without treading a bit into the Messianic.  To start with, In the Aeroplane Over the Sea is basically a sacred text. It’s almost impossible to believe it could have come from human hands. It is sui generis, sounding like nothing else that has ever (or probably will ever) be made. Mangum wrote the record as a kind of ode to Anne Frank, reaching out over the decades, trying to convey the grandeur of life itself, and its catastrophic loss. It defies any simple explanation, but for me I think it can almost be summed up in this way: for the sake of humanity as a whole, to Anne Frank: we should have done more.  And for all that we never did and never will do, we are so very sorry.

And then there is the personal history. Just as the band was gaining an audience back in 1998, Mangum simply disappeared, retreating into himself. As time went on, a few years turned into a decade and more, and it increasingly seemed like he was simply gone for good.

It was achingly sad for all of us who only came to know him after he had already left. I first heard the record in 2000, and spent a decade coming to love it more and more. And it increasingly made sense why he had abandoned the field. The pain of the record is overwhelming; it conveys a kind of special madness, that comes from an overabundance of pathos. The surprising thing, I came to think, was not that he succumbed to depression so soon after his greatest triumph. The surprising thing is that he held it together long enough to make the record at all.

Now, I can’t really know any of this. He certainly was depressed (as the few interviews he’s given over the years have made clear), but it may be entirely my own device to imagine that this can been discovered in the music itself. Maybe a happy and satisfied Jeff Mangum would have made precisely the same record, and gone on to make many more. I would love for that to be the case.

But I think, for a lot of the most dedicated fans, there is a clear analogy. What Anne Frank was to Mangum, he became for us. Someone who suffered intensely, but in spite of this brought a thing of pure beauty and hope into the world. It broke our hearts. And we wanted, more than anything else, to be able to communicate to him just what he has meant to us.

At the same time, we worry that this is over the top.  Does he want our adoration?  Is that part of what made him give up on music in the first place? And there was an undercurrent of that fear at the show. A slight tension in the audience that showing the depth of our emotion would violate the conditions of his return. A shyness. But just a few minutes into the opener “Two Headed Boy Pt. II,” that tension had faded and was replaced by shivers. And when he sang “God is a place we will wait for the rest of our lives” I was pretty much a puddle on the floor.

As he continued, my sense of wonder just grew and grew. Hearing these songs ringing around me, surrounded by a thousand people feeling the same sense of magic. It was an incredibly powerful experience. As he finished songs, we erupted into applause. In moments of quiet, people would yell out “thank you Jeff” and it felt like the most profound thing I had ever heard.

He played nine of the 11 songs from In the Aeroplane Over the Sea, missing out only on “Communist Daughter” (no big loss) and “[Untitled]” (which I would have loved to hear, but is clearly the song least suited to the stripped-down approach of the show). “Holland 1945” is my favorite of his songs, and while it was great, it only matched my expectations. Some songs that I like a bit less actually ended up being the ones to truly blow me away. “Ghost” has always struck me as a good but not otherworldly song, but the performance here has changed my mind. I’ve always respected “Oh Comely” but never quite loved it, until hearing it last night. And, of all things, “The Fool” was out-of-this-world good. On a night that was mostly just Jeff and his guitar, having the horns and drum out on stage were like a jolt of pure energy. Another clear highlight was his cover of “True Love Will Find You In The End,” which was achingly beautiful.

So he finished the set and the energy in the room was palpable. We all knew that “In the Aeroplane Over the Sea” was still to come in the encore.  And it was everything we hoped for.  And seemingly a perfect conclusion, to end on “can’t believe how strange it is to be anything at all.”  And that’s where a lot of shows on his tour have in fact ended. But we were not deterred by the lights coming back on. We stayed and clapped and cheered and stamped and begged for him to come back.

When he finally came back out for a second encore and they dimmed the lights again it felt strikingly real. He grinned, shrugged, and asked quietly “I guess I could play Engine?” And then he did. And it was wonderful.

So yeah, thank you Jeff. Thank you for making this music, and thank you for finding a way back out here to play it for us one more time.

Kevin Drum has an argument that I agree with in part, but strongly disagree with in another part.  He argues that if there needs to be a limiting test on Congressional power, this is obviously something that the Court can establish.  I still want to push back on the idea that this is all that important here, given that I think existing precedent is more than sufficient to establish that the ACA fits within Congressional power and the simple solution is just to say ‘it’s Constitutional given existing precedent.  TTYL.’  But if the luminaries on the Court are so worried about this, and A) are really going to strike down the mandate based on a slippery slope fear and B) are genuinely open to persuasion, then it’s not that hard a problem to solve.  They can just come up with the principle themselves.  So that much I agree with.  Where I disagree is here:

[I]t’s still not the government’s job to articulate a limiting principle. It’s the court’s job. That’s what they do. They write opinions that — in theory, anyway — provide guidance to lower courts about how to apply the law. Supreme court opinions are chockablock with three-prong tests, significant nexus tests, balancing tests, and a million other kinds of tests. As long as Kennedy or Roberts or Breyer or Kagan or any of the others can come up with something that gets five votes, then we have our limiting principle. There’s no reason it has to come from the Obama administration. In fact, all things considered, it’s probably best if it doesn’t. The justices will all feel a whole lot smarter and a whole lot more decisive if they do it themselves.

I think it’s a very bad idea to defer all constitutional interpretation to the courts.  The activity of the entire government is, in a deep sense, about constitutional interpretation, whether they admit to it or not.  Why pass these laws?  Why enforce them in this manner?  I have no desire for legislatures and executives who simply do anything they can with no considered judgment about where it fits into the larger constitutional map of basic principles and values.  That is a recipe for a stale and non-responsive Constitution.  Congress very much should think about the Constitutional basis for the laws that they pass, not just in terms of limits on their power but also in terms of their obligations.

The Constitution is not a Medieval sacred text, that can only be interpreted by a priestly caste in robes.  It is the basic structure of our whole political system, something that is at stake in all kinds of political argument.  When we defer to the Court as the only agent capable of using the Constitution to introduce change into the world, we abandon a core element of political participation.

I’m not someone to valorize democracy for the sake of democracy.  But I very much think that constitutional interpretation is improved substantially when it is a genuine conversation among many actors in society, rather than the sole province of the Court.  They do play an important procedural role, but in terms of the substance of interpretation, the more the merrier.

Anyways, if I had more time I would post about this in more detail since this is increasingly integral to my dissertation and therefore something that I ponder quite a lot.  But I’ve got tons of things on the agenda, so it’ll have to wait.

Consensus seems to be that the oral arguments on the constitutionality of the health care law did not go well today.  Couple things:

1. Beware groupthink.  I only skimmed some of the transcript and comments.  But it didn’t sound THAT bad.

2. Oral arguments just don’t matter that much.  It’s a small window into the thought process of these people.  But even there, it’s pretty guarded. Particularly for someone like Kennedy – whichever way he comes down on it, he’s going to be very sensitive to how it will look.  So making sure he’s picking at the weak parts of the argument is going to be important to him, so he knows what he has to justify.

3. Some of the worst things today had to do with the apparent lack of understanding (or belief) that the mandate is necessary for the broader function of the law.  There’s a decent chance that this argument will get pushed more forcefully tomorrow when they discuss separability.

4. That said, it is kind of a bummer.