An Abject Failure

America's Crisis of Liberty

1
A Look in the Mirror

How would you characterize a country in which hundreds of people are killed by guns each week — the equivalent of a fully loaded commercial airliner falling from the sky every other day — while those in a position to do something about it did nothing?

What would you call a country whose borders are overrun year after year by hundreds of thousands of migrants — nearly all of them desperately fleeing from extreme poverty, violence or political persecution in their home countries — while those in a position to do something about it did nothing?

What would you say about a country that has burned more fossil fuels than any other, and in which an alarming number of climate-related disasters unfold annually — floods, fires, hurricanes, droughts, coastal inundation, melting glaciers — while those in a position to do something about it did nothing?

What can one do about a country where persistent racial disparities are apparent in nearly every measurable category — infant mortality, educational attainment, health outcomes, housing, employment, incarceration, household wealth, life expectancy — while those in a position to do something about it did nothing?

What is wrong with a country in which tens of thousands of people die of drug overdoses annually — from opioids, methamphetamines, cocaine, heroin — while those in a position to do something about it did nothing?

And what could you possibly think of a country in which one of its two major political parties is disinterested in any efforts to address these or other societal ills — homelessness, public education, environmental pollution, childhood poverty, health care, mental illness, income inequality, government debt, trade deficits, crime and violence, overcrowded prisons, police shootings, domestic terrorism — and is actually hostile to the democratic process that might enable progress, while the other party offers solutions that are mostly ineffectual and/or unacceptable to a majority of the people?

One could fill pages with more examples like these, but the unfortunate reader may thereby be reduced to such a state of despondency that further reading would be impossible.

Some will argue that the American government and the states have indeed taken action on these issues: not to solve them but to make them worse. Many states are busy granting its demonstrably trigger-happy citizens ever greater rights to own and carry guns, as if having more more weapons on the street had been demonstrated to reduce violence. The federal government tried to build a wall along the southern border to keep migrants out, as if we lived in the Middle Ages. Some governors have banned their own scientists from using the phrase "climate change" in official documents, as if that would make the problem go away. People are being stripped of their voting rights across the country, as if democracy were advanced by disenfranchising more and more citizens. The government has long waged war against both drug dealers and individual users, as if putting millions of mostly poor black and brown people behind bars would have a discernible impact on addiction. At the same time, it has allowed some highly addictive drugs to be sold legally as pain medication, as if making billionaires out of some mostly already rich white people would likewise diminish drug use.

And to address the whole array of complex troubles afflicting the nation, it once elected as its leader a self-dealing con artist who plainly hadn't the slightest inclination to address these or any other serious problems, which is probably just as well, since he hadn't the slightest idea how to fix anything anyway, except an election.

What could go wrong?

Following the the massacre at Robb Elementary School in in Uvalde, Texas in June, the state's director of public safety called the police response to the shooting "an abject failure." He could have been referring to the official response to any or all of the panoply of evils afflicting the country. The inexplicable hesitation by local police to confront the shooter has given the grieving relatives and friends of the victims an object upon which to focus their outrage and misery. But this scrutiny of law enforcement, while necessary, distracts from the myriad crises that combined to bring about this and scores of other mass shootings over the last few decades. It isn't just guns, nor mental illness, nor violent entertainment, nor social media, nor substance abuse, nor racism, nor cultural emasculation, nor any one factor that leads any particular young man to inflict such savagery on innocent victims. The failure is much wider and much deeper. No single solution will stop this violence because it has no single cause. Like the racially motivated shooting in Buffalo just days before Uvalde, the eruptions of bloodletting result from years of neglect of numerous intersecting societal ills, and we have demonstrated neither the political will nor collective wisdom to disentangle them. Quite to the contrary, our increasing divisiveness makes every problem worse and more intractable.

Taken one at a time, each issue is very difficult to solve. Taken together, they seem utterly beyond the reach of even the most determined action. As painful as it is to acknowledge, we must confront the reality that the United States of America, the self-described exceptional nation, and one of history's greatest commercial and military powers, in many crucial respects — its confusion of liberty with license, its inability to reckon with its past, its lack of civic commitment, the way it chooses its leaders — is an abject failure.

2
Leave Me Alone

In a neighborhood online chat room, a woman recently posted a rant about being accosted by a man after she left her car in a handicapped parking space. Though evidently not disabled herself, she had a legitimate reason to park in the space, as she volunteers as a driver for adults with disabilities. On this occasion she was taking several of them for ice cream. She took exception to the way the man berated her and continued to glare at her and her charges as they ate their ice cream inside the shop. Her decidedly lengthy diatribe included the ubiquitous American question: why don't people just mind their own business?

In this context it is a peculiar question, for a couple of reasons. First, and most obviously, a handicapped parking space is a public accommodation and not anyone's private business. The man who told her off may be an annoying scold, but he was well within the bounds of civic duty. Second, as someone who works with disabled people, the woman would presumably be more sensitive than the average person about the misuse of handicapped spaces. Who among us has not witnessed a perfectly able-bodied young person pull into a blue-lined parking space just because they were too lazy to walk a few extra steps? What would this woman have done if someone had in fact parked illegally in the space in front of the ice cream shop just before she got there? Would she not have felt compelled to confront the driver just as she had been confronted?

This episode, though trivial and commonplace, is nonetheless a neat illustration of the American crisis of liberty. We insist on being left alone, and indeed consider it a kind of birthright. It is an essential element of our foundation story and woven deeply into our history and culture: "Give me liberty or give me death." "Don't tread on me." "You and what army?" "It's a free country." A corollary of not being interfered with means also insisting on doing things our own way, but the moment we assert our right to do what we want, ethical dilemmas spring up everywhere we look. What if what I want to do interferes with what you want to do? Whose right takes precedence? Who decides what rights are in the first place? "Get out of my way" goes both ways. We aspire to achieve a position in life where we can say, "My way or the highway", but everyone envisions their own highway, and where millions of highways intersect, there are going to be collisions. Many, many dangerous and often deadly collisions.

Entire genres of our popular entertainment extol the lone hero who blazes his own trail: Westerns, spy thrillers, crime dramas, adventures. The curious thing is that we glorify both the outlaw gunslinger AND the federal marshal who confronts him, both the ingenious, elusive criminal AND the dogged detective who tracks him down. We like clean-cut champions but also rogues and renegades. In one context, we feel gratified when the bad guy is brought to justice by a virtuous and self-sacrificing public servant, but in another we love to see the desperado outwit the dimwitted flatfoot. We enjoy both "CSI" and the "The Sopranos", "The FBI" and "Breaking Bad".

This duality in our movie and television tastes may seem harmless, but it reflects a serious contradiction in our professed beliefs about liberty: we pride ourselves on being a nation of laws but we secretly aspire to be scofflaws. In everyday life, the law is deemed an unwarranted restriction on me but essential for everyone else. Since I am the hero of my own story, I can't by definition be on the wrong side of any action. If I break the rules, I am doing it for a good reason and/or for a good cause, unlike other jerks who are just being evil and stupid. Others with guns are criminals, but I am just exercising my rights.

Needless to say, this conflict is irreconcilable. Rights are not an individually tailored set of principles that apply to me and me alone. The state can't prosecute every lawbreaker but me. If we truly believe that all government interference into our affairs is unjust and unjustified — and judging by the rhetoric that spews from many of our politicians, many of us do seem to believe just that — then what exactly is the government for? To protect me and my rights, but no one else's? It is pointless to ask how exactly that would work, because we don't care. Anyone who is rude enough to declare "I pay your salary" to a public employee — police officer, teacher, mail carrier, meat inspector — is stating both the obvious and the absurd. Okay, you do, but so does every other citizen, and every one of us could potentially demand something entirely different. No entity can function at even a minimal level of competence with a million bosses telling the employees what to do.

The extreme individualism at the heart of our national identity has, over time, bred a vast number of intolerant and perpetually aggrieved citizens. We distrust government almost by instinct, precisely because it compels us to behave in certain ways — to pay taxes, mostly — and restricts our freedom of action. We have been trained from birth to want what we want and not to care too much about what other people may want, and reserve the right to condemn and attack anyone who stands in our way. When faced with an obstacle, whether we write a nasty email, threaten a lawsuit or resort to violence, we believe we are exercising an inalienable right to cut to the front of the line. But "Me first" literally cannot apply to everyone; someone has to be second, and third … and last.

Consider the disturbed young man who picks up an AR-15 and mows down a room full of children, a store filled with shoppers, or a street filled with holiday revelers — is he not, in his own twisted mind, emulating some warped version of the lonely hero? Are his actions not the dark flipside of the broken record that repeats endlessly the mantra, "No one had better try to tell me what to do"?

To the framers of the Constitution, many of whom literally risked their lives for their new country, liberty meant something very specific: freedom from the tyranny of arbitrary government action. Today, tyranny is anything that upsets our plans. In politics, as Jon Stewart once observed, some people seem to confuse tyranny with losing. Even those of a charitable and tolerant disposition are weaned on this profound sense of entitlement, leading to all manner of hopeless contradictions and, less charitably, downright hypocrisy. We have reached a juncture where, if someone has a different point of view from our own, then we feel justified in not considering them American, or even human, let alone making space for them to exercise their rights. Needless to say, the potential consequences of such animus are profound.

How did we get here?

3
The Twin Revolutions

A comprehensive history of the United States is, implicitly, a history of our shifting attitudes towards our founding principles, liberty chief among them. Events of the 1960s laid bare a great deal of hypocrisy and oppression in American life, and also opened gaping chasms in the social landscape that are still swallowing us alive.

One only has to watch a few episodes of "The Marvelous Mrs. Maisel" or the recent documentary "George Carlin's American Dream" to remember that, a few short decades ago, comedians got arrested just for saying certain words in public. Carlin, Lenny Bruce and a number of other fearless proponents of free speech eventually won the battle, and now even a president of the United States can curse freely and no one blinks an eye.

But the smashing of language taboos in the 1960s and 1970s (now ironically revived in the name of progressivism – a topic for another time) was, relatively speaking, a sideshow in a broad revolution that upended a great many unwritten social protocols. Sexual freedom, women's rights, and gender and racial identity became touchstones of a new normal that swept across many Western countries. The new taboo was intolerance and discrimination. "Live and let live" takes on a whole new meaning when people can actually live as they wish. In the 1950s, a young unmarried couple that tried to check into a hotel could expect a level of scrutiny and suspicion reminiscent of a police state. Two decades later, couples living together without the benefit of a wedding became so commonplace that no one assumed any longer that a cohabiting couple was likely married. Joni Mitchell sang, "We don't need no piece of paper from the city hall keeping us tied and true". The gradual acceptance of gay and lesbian relationships, and interracial ones, inevitably followed.

Inexorably, these liberation movements found their way into every corner of human endeavor: education, employment, entertainment, sports, government, media. Even technology was viewed as a tool of liberation. It is hard to fathom now, but little more than a decade spanned the March on Washington, the Watts, Detroit and Newark riots, the assassinations of JFK, Malcom X, MLK, and RFK, Woodstock, the Stonewall uprising, Kent State, the Moon landing, the first Earth Day, Watergate, the war in Vietnam, the Pentagon Papers, Roe v. Wade, the emergence and breakup of the Beatles, Billie Jean King's match against Bobby Riggs, and Carlin's seven words you can't say on television.

The law mostly failed to keep up with this torrid pace of change, but social norms do not generally conform to the law, anyway. Indeed, the law ultimately either bends to reality or attempts, often futilely, to check it. Some people, naturally, never accepted all these changes. There is a direct line from the social unrest of the 1960s to the overturning of Roe v. Wade just last month: many conservatives have been itching for half a century to roll back the evils that were unleashed on behalf of liberalism back then (more on Roe later). They would scrap every piece of New Deal and Great Society legislation if they could. But they can't, at least not entirely, and not because they don't have the power, but because the country has absorbed these changes into its being and would rather not live without them. Certainly, the Voting Rights Act has taken a beating and abortion rights stand to be even more contentious in the years ahead (so much for merely returning the issue to the states). But no one has been able to touch Social Security or Medicare, and even most red states have opted into the Medicaid expansion under Obamacare. These programs are, in their own ways, expressions of freedom, in this case, the freedom to live without fear of poverty and illness.

A central contradiction of conservatism is that the clock cannot be turned back without exactly the kind of radical, violent upheaval that conservatism purports to eschew.

But conservatives enjoyed a revolution of their own in the 20th century. The struggle for greater personal freedom had a momentum and logic of its own, and by the 1980s it had spilled over into the worlds of business and finance. What liberals did not foresee is that the shattering of taboos was not limited to the social spheres in which it happened to focus its attention. If "anything goes" was good for sex, drugs and rock 'n' roll, then why not Wall Street? Once the delicate social balance that prevented teenagers from having sex (for the most part) was tipped in favor of permissiveness, the delicate social balance that restrained corporations and investors from being excessively greedy (for the most part) was also ripe for reconsideration. The Reagan era rewrote the book on the way business was conducted, both in regulation and in deed. Unleashed greed was not just a cliché, but a natural consequence of the unshackling of personal mores. If we were free to pursue our personal ambitions without regard to society's disapproval, what was to stop business from doing the same?

In the last president we saw the apotheosis of these two revolutions, the financial and the personal, blended into a poisonous cocktail. Here was an individual who built his business with utter contempt for honest dealing and the law, and simultaneously built his personal image largely as a womanizer. While there have been numerous ruthless and amoral tycoons in America's past, the open flouting of sexual decorum would have been utterly unthinkable prior to the 1960s. Obviously, adultery was not invented in the late 20th century, but the sexual revolution meant that discretion was no longer a minimum requirement for acceptance into decent society. A man no longer even needed to pretend to be an upstanding citizen to be accepted in the worlds of business and government.

Thus President 45 was a beneficiary and exploiter of both revolutions: his absence of restraint in the board room paralleled exactly his absence of restraint in the bedroom. His (questionable) prowess in one arena was part and parcel of his (reported) prowess in the other, and his wanton disregard for the rights of others was evenly applied. Once taboos go down, there is no resurrecting them. Even self-described religious conservatives have internalized the changes of the last half century to such a degree that, instead of recoiling in horror at the monster they created, they avidly embraced him. Some may have done so in cynical pursuit of their own ambitions, but they clearly recognized that the country had changed enough to elect a candidate who lacked even a pretense of moral conviction.

(As Aaron Sorkin demonstrated presciently in the re-election of the fictitious President Bartlett in "The West Wing", once the people have decided what you are, even if what you are is a reprobate, then there is no downside in being the reprobate they already think you are. It was a lesson aimed at Democratic nominees from Al Gore to Hillary Clinton, who obsessively chased an elusive ideal of what they believed the voters wanted their president to be, but which they utterly and fatally failed to learn.)

And yet, we have felt in the last month the folly of believing that society's victories are ever behind us, and that rights once attained are ever permanently held. Culture has a unique kind of ontogeny, which demands that it be replicated and re-litigated in each generation. Over decades, the conservative movement unleashed a drive to reverse many rights which most of the country may have once opposed but now does not want to lose. This movement, increasingly successful, no longer has the power to change course even if it wanted to. The fight cannot but go on, and the liberal backlash against the conservative backlash is only just beginning to take shape.

In the most recent season of "My Brilliant Friend", we see the ferment of the 1960s play out in Italy, as it did in many European countries at the time. Youthful characters argue endlessly about society and politics, certain of the inevitable victory of the left. But half a century later, all of these countries, America especially, are still determinedly capitalist, their industries still pollute the Earth with abandon, their politicians still pollute the discourse with impunity. What was it all for?

Conservatives in the Reagan era talked a good game about getting the government out of our lives, but of course they cared nothing for the freedoms, won by liberals, of which they did not approve. Liberal reforms expanded rights for women, minorities, gays and others, and largely without taking rights away from anyone else. Indeed, these rights were enjoyed even by those who had opposed them. But the expansion of "rights" on the conservative side — the right to all the profits they can seize, all the environmental damage they can inflict, all the black and brown people they can lock away, all the control they can exert over their employees and customers, all the guns they can stockpile, all the damage to democracy they can get away with — impinges on the rights of everyone. Excess on the left proved itself too often irresponsible, but excess on the right proved itself too often cruel.

Whatever quality of self-restraint is necessary to prevent us from following every impulse, and whatever depth of character is required to resist every temptation to gratify ourselves — we don't have them any more.

4
Welcome to Theocracy

Why was the original Roe v. Wade decision predicated on a right to privacy implicit in the 14th Amendment instead of on the Establishment Clause in the 1st Amendment?

Abortion is a nearly perfect example of rights that directly contradict one another, and are therefore irreconcilable. On the one hand is the right of a woman to bodily autonomy, to be free from governmental interference in deciding whether to terminate a pregnancy. On the other is the right of the unborn, which, according to some, have rights equal to that of the born. The latter is largely a matter of religious conviction, and is a matter of dispute, to the say the least. Not every religious denomination believes in the personhood of a fetus, including some Christian sects. Some religions, for example, do not perform full burial rights for a still-born infant, or even one that dies in the first days or weeks after birth. Even those who believe that life begins at conception, like Catholics, do not perform baptism in utero. There is a continuum of belief on the subject, which comports with American public opinion: a large majority supports both abortion access early in pregnancy, and increasing restrictions the closer the fetus gets to viability. Large majorities place the life and health of the mother ahead of the unborn baby's. Only a very small minority thinks abortion should be outlawed altogether.

Political views, however, do not reflect the middle ground where most people stand. Both sides became increasingly extreme during the half century while Roe was the law of the land, a lamentable trend towards absolutism that has poisoned public discourse on many issues. An absolute right to abortion on demand on one side confronted an absolute demand that all abortion be treated as murder on the other. Not surprisingly, both sides of the debate have argued themselves into uncompromising corners. The opportunity for each to respect the other for defending a sincerely held moral conviction has long since passed. Now each just sees the other as evil, the one intent on destroying the lives of women, the other on destroying the lives of babies.

The clash of right against right would perhaps have been more clearly delineated, and more easily resolved, had it instead been framed by the Establishment Clause. Having Roe abruptly removed from our lives forces the entire population to live according to the religious beliefs of a minority. The suggestion that the six justices who voted in support of Mississippi's abortion restrictions in the Dobbs case were acting merely on an impartial reading of the Constitution is patent nonsense, given that every one of them is not only personally opposed to the practice but are members of a conservative judicial movement which was committed to reversing this Supreme Court ruling above any other. What a coincidence!

To hold any view they like is, of course, the Justices' right as citizens, but to act upon a personal view in this way is a violation of their judicial oaths. Given that the Federalist Society was established with the express purpose of advancing judges who would overturn jurisprudence which it believes to be excessively liberal (and for which there is no equivalent movement on the left), there was no way the Dobbs decision could have gone any other way. With the exception of Chief Justice Roberts, who alone seems to care about the long-term viability of the court, the other five conservative justices, no matter what their judicial philosophies might have otherwise been, are entirely beholden to the conservative movement that weaned them. They had to overturn Roe because that is the primary reason they are on the Court in the first place, as the president who appointed the last three of them made startlingly clear.

In the 49 years of Roe, not a single American woman was compelled by the government to have an abortion against her will. We did not practice forced sterilization, as was done in India at one time, or impose a one-child policy that necessitated mandatory abortions, as China forced upon millions of women until only a few years ago. Americans whose moral convictions forbade them from aborting a pregnancy were always free to be true to that conviction. But in half the states, all women will soon have to conform to the beliefs of the few. How is this not a violation of the Establishment Clause? Perhaps proponents of abortion rights will find a fresh legal avenue by which to challenge the restrictive state laws now coming into effect.

One of the most insidious forms of oppression is conformity, whether enforced by law or custom. The Founders struggled mightily to protect citizens against conformity demanded by the state. Citizen movements have struggled mightily to free individuals from the conformity demanded by society. There is no more fundamental precept in the Constitution than the implicit right of the individual not to have to be like everyone else: not have to speak, live or worship in any particular way just because others, even a majority, do otherwise. It is no accident that these rights are enshrined in the Bill of Rights. What could be more antithetical to the American ethos than forcing millions of women and their families to conform to beliefs that they do not share? What did we gain in the last half-century's struggle for rights if not the right to be left alone?

Politics is largely beside the point of this argument, but it must be said that conservatives are facing a potential tsunami of "Be careful what you wish for." For half a century, countless demagogues have literally gone to the bank by defending the rights of the unborn, knowing full well that Roe prevented them from doing much if anything about it. They never had to face the electoral consequences of defending a position with which a majority of the electorate plainly disagreed, because it was settled law. No more. It takes no courage to man the barricades for a cause when no one is shooting at you. But let's see how brave they are when voters, two-thirds of whom say they know someone personally who has had an abortion or have had one themselves, demand their rights be restored. They will Roe [sic] the day.

5
The Past is a Foreign Country

In the heart of Berlin, a short walk from the Reichstag and the Brandenberg Gate, is a memorial to the victims of the Holocaust. Post-war Germany stands out, of course, for the brutally honest manner in which it has reckoned with its brutal Nazi past. For most nations, war-time atrocities, once they are twisted by propaganda into acts of patriotism, cannot be reduced to mere barbarism without sacrificing the essence of the nation's identity. It is exceedingly difficult for a government to spend years justifying unspeakable violence and cruelty and then turn around and tell the perpetrators, who acted at its behest and for its glory, that they are not heroes after all, but mere war criminals. Almost no nation has ever done so. It is therefore especially stunning to see Germany's official commemoration of its own worst crimes in the very center of the capital, from which the orders to commit mass murder on an industrial scale were handed down.

Can you name a Southern city in the United States that has a memorial to the victims of slavery, built not by former slaves, but by former slave owners? Of course not; there isn't one. Commemorations of the crimes of racism exist, but are still few and far between. The National Memorial for Peace and Justice for the victims of lynching in Montgomery, for example, was created by Bryan Stevenson, the civil rights lawyer and activist. It opened only in 2018. Though there has been more of a racial reckoning in the last few years, it has not grown out of any new-found desire among white Americans to confront the misdeeds of their ancestors. Indeed, quite the opposite is true: the new reckoning arises in the face of an upsurge in white nationalism, and to a great extent in direct response to it. White nationalists, in turn, see any attempt to acknowledge the horrors of slavery, Jim Crow and segregation as a provocation. Even those far less strident in their views bristle at being labeled racist, whatever the evidence to the contrary. As monuments to Confederate leaders are torn down, memorials to their victims are vandalized and desecrated. And thus oppression and subjugation are not mere stories about the dead, but grave issues that the living must contend with. The cycles of protest and counter-protest go on and on, seemingly without end.

The yearning to return to a mythical past is a form of nostalgia, a fictitious rendering of events which is by definition indifferent to historical truth. Nostalgia is the enemy not only of truth, but of progress, too, a dead weight around our necks. A people that does not want to know its history, and has willfully buried itself in its past, cannot have a future. Instead it can only repeat its mistakes again and again — solving no problems, casting blame, electing dreadful leaders — believing that with each turn of the wheel it is witnessing renewal, greatness and a resurgence of liberty when it is, in fact, only digging its own grave deeper and deeper. If we are not doing anything to avoid failure, then failure is all that we will know.