Waxing Un-American

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Tim Kowal

Tim Kowal is a husband, father, and attorney in Orange County, California, Vice President of the Orange County Federalist Society, commissioner on the OC Human Relations Commission, and Treasurer of Huntington Beach Tomorrow. The views expressed on this blog are his own. You can follow this blog via RSS, Facebook, or Twitter. Email is welcome at timkowal at gmail.com.

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92 Responses

  1. Avatar Brandon Berg says:

    Root knew there was a tension between progress and American ideals about process: limited government, democratic process, respect for individual rights, and so on. Ah, but the Progressives saw no such tension.

    I would say it’s the other way around. I see process as important largely because it helps to protect the conditions that foster true progress: economic growth and technological advancement. Leftists see process as something that gets in the way of implementing what they see as progress.

    It’s also interesting to me that the left-wing vision of progress seems to be defined almost entirely in terms of policy changes. Things like economic growth and technological progress take a back seat to the implementation of left-wing policies. Many leftists simply take economic growth and technological advancement as a given, provided that we don’t do something stupid like teach creationism in public schools, but there’s a substantial (or at least vocal) subset who explicitly talk down the importance of economic growth and technological progress.Report

    • Avatar Tim Kowal says:

      Brandon, I think we’re saying the same thing here. And this makes me think of another problem with trying to define Progressivism in terms of policy rather than process: What unifying principle exists that describes the policy goals advanced by Progressives? Advancing “rights”? But what is the nature of these new rights? Where do they come from, and how do we find them? Is the emotional nature of the Progressive’s rights-talk that makes it nearly impossible to take seriously as a political theory. Seems all that’s left to define what Progressivism is in terms of policy is change for change’s sake, which isn’t very meaningful.Report

      • Avatar DensityDuck says:

        Well, once you run out of rights, you have to invent some more. Like the right to healtcare, and the right to marriage, and the right to not have the local cell phone service turned off, and so on.Report

        • Avatar Tim Kowal says:

          Yeah, but it gets tricky for conservatives here too, because hey, the Ninth Amendment’s not for nothing. So what’s a “real” right and what’s a made-up right? That’s why we wax about the natural law down at the sub-blog. I don’t know what Progressives have to say about where their rights come from. Say what you will about the tenets of natural law, dude, at least it’s an ethos.Report

        • Avatar Michael Cain says:

          I hear liberals say “There’s a right to modern healthcare,” and the conservatives say, “There’s nothing in the Constitution that allows federal interference in access to modern healthcare.” As a (self-described) pragmatic, I’m stuck in the middle trying to deal with “Rationing access to modern healthcare by household income is unworkable in the long term.” Personally, I suspect that there are enough states where we will need to see mobs burning down hospitals in an attempt to deny healthcare to the rich before we can get them to approve an amendment to change the Constitution. Offer me something else in the middle that works, and works in a country where distance and travel time are no longer issues, and where it’s as easy to keep track of the data for 300M people as for 300,000.Report

  2. I’ve been pretty much absent from these discussions, and although I’ve read parts of some of the threads, I haven’t read them all or engaged them, so take this comment as trollish if you wish.* But I think it would be helpful to keep in mind the proposition advanced by some historians (for example, me) that “progressivism” wasn’t a thing and didn’t identify any particular group of people with much consistency, unless we’re talking about the handful of “progressive” 3rd parties, like TR’s or LaFollette’s. A corollary to that proposition (if you accept it in the first place) is that there is not a straight, clear line from then to now. I think we really need to look at this issue-by-issue and not ism-by-ism. (And I admit you do bring up several of the relevant issues for today in your fourth-to-last paragraph.)

    Not everyone, or even most, agree with my view of early 20th century “progressivism.” But I really do think it is primarily a label and not much more.

    *Also, I have to go to work, so I won’t be able to check back until tonight. Sorry for the drive-by.Report

    • Avatar Tim Kowal says:

      Pierre, I agree that it is hard to define something as amorphous as “Progressivism.” I rely heavily on Bruce McGerr’s excellent book, and on direct quotes from Conor’s post, in defining Progressivism for purposes of this post.Report

  3. Avatar Alan Scott says:

    I think this talk of progress vs. process and how it’s interpreted by the various political factions is nonsense.

    For the past 224 years, those holding the reins of power have cared about process only when it didn’t stand in the way of their goals (whether or not those goals could be characterized as progress). From the Alien and Sedition acts to the war on terror, those who seek power have seen fit to ignore the constitution whenever they can get away with it, whether they be progressive, regressive, liberal, or conservative.Report

  4. I suppose I might be an irrationally oversensitive liberal, but my recollection of the Glenn Beck Era includes frequent references to progressivism as a disease on the body politic. I don’t consider this the tenor of a war of ideas, unless we’re taking the war part far more literally than I’d like.Report

  5. Avatar Rtod says:

    I like this post a lot, Tim. But I suspect you might be reaching too far.

    When I see, to take two examples, HRC or SSM, I do not have a sense that it is the process that trips conservatives up. Likewise, when SCOTUS came down with their decision on O-Care, I do not recall there being a sense of relief among conservatives that the process had run its course.

    I think I agree that protecting the process should be a goal of today’s conservatives, in the same way I think fiscal restraint and limited govt should be.

    But I’m not seeing it.Report

    • Avatar Patrick Cahalan says:

      Point.Report

    • Avatar Tim Kowal says:

      Tod,

      Worthy points, but just as my argument does not depend on Progressivism being always about putting policy over process, it also does not depend on conservatism always caring first and foremost about process. With that said, I think it would be hard to dispute that many conservatives’ distaste for Obamacare has a lot to do with the dirty politics involved in passing it, as well as it’s extraordinarily close brush with being struck down as unconstitutional (and, as we know, Congress and the President’s proffered rationale for the mandate was held to be unconstitutional, and the law only survived on a more unlikely basis never asserted during the process of passing the law). If I were making this argument in a post, I’d look for some polls that show support for the law itself being less than 50%, but support for its particulars being greater than 50%. That would look like a means/ends issue to me.

      And the fact that conservatives haven’t shut up about Obamacare yet doesn’t undermine the argument, either, because the law institutionalizes many process issues.

      I suspect a similar argument could be made for SSM. I’d bet that a significant number of conservatives would pipe down about the issue if SSM was passed in state legislatures rather than through the courts.Report

      • Avatar Tom Van Dyke says:

        I’m not aware of a great hue & cry when the NY state legislature did just that. Them’s the rules.Report

      • Avatar trizzlor says:

        Tim, I like your framing of process over policy, but I don’t understand how your definition of process can exclude both Obamacare (a complex law passed with the help of legislative tactics) and gay marriage (simple defense of minorities dictated by the judiciary). Both of these, as far as I can tell, are perfectly legitimate uses of process consistent with the Constitution, and yet you’re defending conservative opposition to them as consistent with your dichotomy. Without a clearer definition of process I can’t help but interpret what you’re saying as simply preferring one process over another when it leads to your desired policy outcomes – just as the Progressives did.Report

        • Avatar Tim Kowal says:

          Trizzlor,

          Sure, the analysis can be broken down a bit further:

          1. Both of these things (Obamacare and SSM) are the sort that are properly submitted to the legislative process. This is a discussion in itself, as you suggest in your comment: you say it’s about protecting minority “rights,” for which we have a different process — i.e., the judicial process. This is where the argument comes in about what “rights” are and where they come from. The problem for Progressives here is that they tend to reject the “Nature and Nature’s God” model, and so are left with asserting that rights come from government. Under that model, the Progressives must fairly accede that a “right to marry” is a legislative determination. Can’t give a full and fair treatment of this argument in a comment, but those are the broad strokes.

          2. The legislative process was twisted right up to and arguably beyond propriety in the passage of Obamacare. Its stated constitutional basis was rejected by the Court. And it institutionalizes a number of process issues that will continue to agitate opposition for the foreseeable future. So even though Obamacare was submitted to the right process, the process was not well observed.Report

  6. Avatar James Hanley says:

    Progressivism subverts process, and process is the thing, if you’re a conservative

    Very true, and process is too often belittled by those who are unable to achieve their preferred ends through it. As Alexander Bickel famously said, “the highest morality is almost always the morality of process.” When we begin to say the end justifies the means, we normally have it exactly backwards; the means justify the end.

    But two caveats, raised by others here. RTod is right to say that conservatives have run roughshod over process in recent years. But that doesn’t necessarily mean the conservatives value process argument is wrong; rather it should cause us to question whether those folks really are conservatives in that sense. There seems to me to be a growing chorus of voices arguing that these folks are not conservatives by any historically applicable understanding of the term, and certainly are not contemporary conservative progressives, but are radicals of a sort, willing to burn the village down to save it.

    The other caveat is that, along with Elias, I think there are conservative (or “conservative”) voices have denied the citizenship of those to the left of them. Whether Beck or Ryan have personally done it I’m not sure (although I think Elias’s take is powerful–a disease on the body politic is, by definition, an invader, not a legitimate part of the body), but we certainly have other examples. The 1992 Republican National Convention was perhaps the most notorious for this, with National Chair Rich Bond proclaiming, “”we are America, they are not America.” Is that not a denial of citizenship?Report

    • Avatar Kimmi says:

      If the means justify the end, what does propaganda justify?
      (easy answer is free exchange of goods, I guess… — you wanna push for something a bit stronger?)

      If you want to label many strains of the current Republican party as reactionary, be my guest. They want to call themselves conservative, though, so you’d better be prepared to use that label a lot.

      BTW, ages ago you were asking about monopolies. Got one for ya: TV Capacitors.Report

      • Avatar James Hanley says:

        If the means justify the end, what does propaganda justify?

        The saying means the ends are justified to the extent the means used to achieve them are just. Propaganda justifies its ends to the extent it is itself just, and no further.Report

        • Avatar Kimmi says:

          Is propaganda ever just, then?Report

          • Avatar James Hanley says:

            I was told by someone who had worked in propaganda for the military that as they defined things there were different types of propaganda, and his take was that the most effective propaganda is giving truthful information (because people learn they can trust the information and its source). The root of the word propaganda is really just propagate, to spread or disseminate. So the word itself doesn’t exclude spreading the truth. But of course our general understanding and use of it assumes away the likelihood of truthfulness.

            So if we’re referring to the root meaning of propaganda, then I think it’s undeniable that it can be just, because disseminating truth is–I think–at least usually, if perhaps not always just. (Maybe always; I’m leery of absolutes, since all it takes is one counterfactual to blow them up.)

            If we’re referring to the more common usage, which I take as your meaning, then we get into deeper waters, and I feel unqualified to make an argument for either a yes or a no answer. But as phrased, I think it is the crucial question. (And to go even deeper, can untruthful propaganda be justified in its method, prior to reference to its end? The answer is critical to assessing the validity of my argument that means justify ends.)Report

            • Avatar Stillwater says:

              James, if you’re interested, a good book on this is Alex Carey’s Taking the Risk out of Democracy. It’s not definitive, but may be a good place to start.Report

    • Avatar Burt Likko says:

      …process is the thing, if you’re a conservative…

      Really? Not norms and institutions?Report

      • Avatar Kimmi says:

        this hits it on the head. conservatives care about institutions. I think liberals do too, they just have more of the tinkering itch.Report

        • Avatar James Hanley says:

          Kimmi,

          See below about institutions and procedure. But I think you’re right that liberals care, too, and you’re probably right that in general they’re probably more inclined to tinker (although surely a liberal from PA at this point will jump up and point to the “conservative” tinkering with the state’s election laws). I think that difference in eagerness to tinker is probably a distinguishing point between conservatives and liberals. But the focus in the OP is specifically progressives, which I think are distinguishable from garden-variety liberals in caring less about (which doesn’t mean being wholly uncaring) about the rules.Report

          • Avatar Kimmi says:

            meh. Kos wanted to do away with the filibuster last time… I think that’s a larger change than fiddling with election laws. Everybody fiddles with election laws — though only conservatives tend towards disenfranchisement…Report

        • Avatar NewDealer says:

          I care about institutions and process but you are right that every now and then some tinkering needs to be done.

          Perhaps this is because I believe in Tikkun Olam, “to mend the world” but tinkering is necessary. If a process always or often leads to an unjust result than the process is broken and needs to be tinkered with or scraped entirely.

          The Death Penalty process is a prime example of a broken process that leads to inequity or the doctrine of immunity if it causes politicians and other government officials to act unjustly.

          Process is not always going to lead to just or good results but it should not completely fuck up either or be loop-sided to one particular side.Report

      • Avatar James Hanley says:

        Pardon me while I get tendentious and speak as a professional political scientist. We define institutions as rules and norms (formal or informal) and established procedures. They’re all of a piece, so not only would norms be a subset of institutions (sorry, really tendentious there), but process–procedures–cannot be separated from the concept of institutions.

        Think, for example, of civil procedure–what is it but a set of rules and established practices? Could procedure, as you intimately know it, be separated, even in theory, from the rules? (And, man, if you answer yes, I’ll be fantastically interested in hearing the argument.)Report

        • Avatar Burt Likko says:

          Think, for example, of civil procedure–what is it but a set of rules and established practices? Could procedure, as you intimately know it, be separated, even in theory, from the rules?

          Stay tuned, Professor. I’m bitter about this one but I’ll have to respond to you after court this morning. But I think you’ll enjoy what I’ve got for you.Report

        • Avatar Burt Likko says:

          At cocktail parties, I describe the kind of law I do as “stolen houses.” This is often litigation to quiet title to real property.

          So my client has a claim to real property, which we’ll call “Blackacre” here. To settle the claim that my client is the real owner of Blackacre, I must sue the other guy who says he owns Blackacre. I do this, and the other guy answers but refuses to give me his deposition or otherwise disclose why he thinks he owns Blackacre. So I go through a year of filing motions to compel him to do this, and still he refuses. Finally, the court strikes his answer and enters his default.

          All this is normal and customary practice and adheres to the letter of the statutory and court rules.

          When the case is all done, I submit a proposed form of judgment and the court rubber-stamps it in the form of a recordable document and my client moves in to Blackacre. Then the other guy files an appeal that is functionally nonsense (he literally cites Magma Charts and seems to think rather a lot of a superceded land-use plan written by the county back in the 1970’s). The court of appeal, though, decides sua sponte that the judgment by default is wrong procedure; a statute says there must be a live evidentiary hearing first.

          Okay. But what I object to is that the other guy, the one I defaulted after so many months of motion after motion to find out what his case was, who disobeyed dozens of statutes, violated half a dozen court orders, and whose outright abuse of the legal process (he was found liable for Rule 11 sanctions on his third improper removal of the case to Federal court) made my client homeless for three years.

          Anyway, after all that, this hug gets to come in to court at this hearing and offer up his evidence and his argument that he affirmatively hid from me for three years and in violation of the rules. And the California Supreme Court said in response to my petition for review, “That’s right, Burt, you have to go through a trial by ambush despite diligently seeking discovery. The rules about disclosure and due process and complying with procedure and the fact that cases like this are resolved on defaults every day don’t matter.”

          So, I’m bitter. Because the procedure (judgment by well-earned default) is not the rule (trial by ambush).Report

          • Avatar Kimmi says:

            jibberty jellies! I’d go mad…Report

          • Avatar James Hanley says:

            I get you. Unfortunately all human systems–sets of institutions–are flawed, and as those systems grow more complex, the probability of contradicting institutions within those systems approaches zero. For example, a survey of environmental law lawyers some years ago revealed that a large majority believed that in many cases it was literally impossible to remain in full compliance with environmental statutes and regulations because compliance with certain rules was non-compliance with other rules. In your case, there are conflicting sets of institutions that each nominally refer to the same object. I’m not sure there’s a technical term for that, but I nominate the term clusterfuck. And I am passionately sympathetic to the folks who have to operate within such a system, because–as you’ve described–operating effectively within it is a near impossibility. Bitterness is an entirely appropriate, if not necessarily mental health promoting, response. (I was afraid that you were bitter towards me, at first.)

            There’s probably a paper in there, had I any urge to delve into it and write it.Report

          • Avatar Tim Kowal says:

            Burt — I just had to look up the case on Westlaw. Very interesting. Looks like the only other case dealing with the statute was published after it was already too late. And having to pay the slimballs’ costs on appeal! Awful.

            Could always seek an OSC re contempt — 5 days in jail and $1,000 per violation, plus your attorneys’ fees. Can you move to re-open discovery to take their depos and ply them with interrogatories? Might do that after you get the OSC set so they’re less inclined to blow them off like before.

            Good luck. Go get ’em.Report

            • Avatar Burt Likko says:

              Thanks. Fortunately the chances of their having both incurred costs and correctly filing a bill of costs are about zero. And the trial court HATES them so I’m not really all that worried about losing the evidentiary hearing (despite the fact that it appears nothing like this has ever been done before).Report

              • Avatar Glyph says:

                Hey Burt, this is totally OT, but thought you might be interested to know that things may be looking up for Pussy Riot (I don’t think I will ever get used to typing that phrase):

                http://www.google.com/hostednews/ap/article/ALeqM5gGJAhxdORyqTMUu9L67o_dmEK6OQ?docId=acaae4938f2c46d4b52e8c069592d80bReport

              • Avatar James Hanley says:

                The court of appeal, though, decides sua sponte that the judgment by default is wrong procedure; a statute says there must be a live evidentiary hearing first.

                This has been stuck in my head since you wrote it, Burt. How the hell can the Court say the statute requiring a live hearing for the benefit of John Doe must in all cases be fulfilled when it is John Doe who has made the live hearing impossible? The rules that lead to default are specifically for dealing with the cases such a statute can’t actually cover, aren’t they?

                I mean, what if John Doe refuses to come to the next planned live hearing, suffers another default, but the Court once again says the judgement has to be set aside because the statute hasn’t been fulfilled? John Doe can them prevent judgement against him by the simple expedient of never showing up to court? Do I have that right?

                That’s beyond ludicrous. It sounds like the Court has made a mockery of the law; or is at least aiding and abetting a mockery of it.Report

              • Avatar Tim Kowal says:

                I had to know the answer to this, too. Code of Civil Procedure section 764.010 states, in part, that “The court shall examine into and determine the plaintiff’s title against the claims of all the defendants. The court shall not enter judgment by default but shall in all cases require evidence of plaintiff’s title and hear such evidence as may be offered respecting the claims of any of the defendants.” This suggests that, if the defendant wants to participate at the hearing—and, as the statute requires, there must be a hearing—he can’t be excluded.

                What makes this even weirder is that, even though the court cannot enter a default judgment, and must hold a hearing, and must let the defendant attend if he wants, the court can still issue evidentiary sanctions against him. That is, the court can prohibit the defendant from introducing designated matters into evidence as a sanction for abusing the discovery rules. Cal. Code Civ. Proc. § 2023.030(c). But doesn’t that violate the statute’s requirement that the court “shall in all cases require evidence of plaintiff’s title and hear such evidence as may be offered respecting the claims of any of the defendants”? Given the court’s interpretation, however, the statute is fulfilled so long as a pro forma hearing is held, even if the defendant is effectively (and rightly) gagged at the hearing.

                This statute is what’s fairly called an anomaly in the law.Report

              • Avatar James Hanley says:

                I think by “fairly” you mean “politely”? 😉

                Thanks for the info. And a question–can the Court hold a hearing in the person’s absence, if they choose not to show?Report

              • Avatar Tim Kowal says:

                Yes. The statute only requires the court to hear such evidence “as may be offered,” not to beat the evidence out of him.

                But this raises another interesting question. If a defendant is in default (e.g., fails to answer the complaint, or abuses the discovery rules and the court orders his answer stricken), he is no longer entitled to notice of hearings in the action. So if the hearing goes forward and the defendant doesn’t show, can he appeal on the ground that compliance with CCP 764.010 requires he be given notice, even though the rules applicable to defaulted defendants don’t require it? Another anomaly. Suffice it to say, safer to give him notice.Report

    • Avatar Tim Kowal says:

      I think Elias’s take is powerful–a disease on the body politic is, by definition, an invader, not a legitimate part of the body

      I think Beck did say “cancer,” but I still don’t see the problem. He didn’t accuse Progressives of giving anyone cancer. He’s saying Progressive ideals aren’t consistent with ideas he takes to be American ideals. Maybe the rebuttal is that he’s begging the question of what American ideals are?

      Personally, I don’t care for “divisive” rhetoric, either, but then again I prefer to communicate on a completely different kind of medium than Beck. A worthy point was made on Conor’s post that Beck’s show is actually pretty light in tone, which would suggest that his telling Paul Ryan “I love you,” for example, was probably amusing when you’re watching it, but more than a little weird when reading a sterile transcript.

      I don’t want to get myself in a position where I’m defending particular rhetoric. My narrow focus here is that Progressives calling conservative ideas un-American and vice versa shouldn’t be out of bounds, because, as I’ve tried to show, it looks like there’s a real debate to be had there.Report

      • Avatar James Hanley says:

        If I have cancer, is it a “citizen” part of my body? Or do we treat it as a foreign thing that we want to excise and remove because it doesn’t belong?

        Truthfully, I think calling each other’s ideas “un-American” is out of bounds, because it’s designed as an argument stopper. It’s not meant to promote debate about what is American and what is not, but solely to delegitimize one’s opponents so no real debate needs to be had, and no serious rebuttal is required.Report

  7. Avatar DRS says:

    However, that same society would search its underlying values in vain for anything compelling it to adopt laws forbidding a worker to labor more than 10 hours in a given day.

    Or how about: “…to adopt laws forbidding a company from forcing workers to labor more than 10 hours in a given day”? Would that be okay?

    It might be worth keeping in mind that many of the first industries affected by minimum hour laws were very physically demanding, like mining and heavy-industry factory work like steel-making and iron-casting, and that the human body can only do so much in a given day before exhaustion leads to physical harm, to self and to others.

    John Henry was a good folk song, but not a realistic one.Report

    • Avatar James Hanley says:

      DRS,

      The “force” issue has been argued here many times before. Suffice it to say that there is vigorous disagreement between the resident liberals, on the one side, and the resident libertarians and conservatives, on the other side, as to what constitutes force.Report

      • Avatar DRS says:

        So it’s off-limits? I’m not sure what you’re saying here.Report

        • Avatar James Hanley says:

          Oh, no, certainly not off-limits. But the sides are already drawn up and apparently pretty inflexible. You say companies “forced” workers to put in ten hours, and one side says hooray, damn right, give ’em hell you blessed muckraker, and the other side (including me), says hell, no, you don’t understand the nature of value and voluntary agreements and you’re bastardizing the word for ideological purposes.

          I’m just trying to nutshell the argument so we can keep it shorter and more harmonious than usual. 😉Report

          • Avatar Ethan Gach says:

            You grow up, you need food, you need shelter, you therefor need to work, you can’t afford to move, or to take time off to search for a job, you are at the mercy of your employer, or the range of prospective employment to which you are limited.

            You’re saying we look at that circumstance and see it in different ways, correct?Report

            • Avatar James Hanley says:

              You’re saying we look at that circumstance and see it in different ways, correct?

              I thought you were there for the earlier debates? Yes, we look at the circumstance and understand and describe it differently–the words you use are not the words we would use, and to the unwary observer it would appear that we are no describing the same circumstance.Report

            • Avatar DensityDuck says:

              I think what James is saying is that if you make choices that require a certain income level and there’s only one way you can sustain that income level, then you still made your own choices. If you don’t like where those choices lead then it’s incumbent on you to make different ones.Report

              • Avatar Kimmi says:

                Okay, my friend, then what do we do with the idiots?
                Can we please exempt the fools living in DC from payments for ulcers? After all, it’s their choice to live in a high stress environment!
                What about all the LIARs and NINJAs? Can we please exempt them too?

                I’m certain that over 30% of Americans are idiots who make stupid life-altering choices and then can’t make different ones.What do we do about the idiots?

                Do you think that we ought to simply ban people’s ability to make life-altering choices, particularly if they’re idiots? Would a certification do? Mandatory training course?

                It’s fine to make stupid choices, but it’s a little bit short of the mark if you think you can walk off most of ’em.Report

          • Avatar Kimmi says:

            There’s a great big difference between “taking the one who will work for least” and “making them unable to leave, and reducing them to poverty in order that they will work for less…”Report

          • Avatar Kimmi says:

            James,
            I can grant you that in America, the odds of a company forcing workers to do something is relatively low (one example springs to mind… Catholic hospitals).
            Yet still I ask whether we can create a more efficient, more agile economy through governmental assists.

            Can we take this out of the realm of morality and into pragmatism?Report

            • Avatar James B Franks says:

              This is only true if you are not living pay check to pay check. There have been times when I could not afford to move unless I had a job all ready lined up and they provided some money for moving.Report

              • Avatar Kimmi says:

                this is quite understood. this is a realm of efficiency, so long as A Job exists in another city (and apartments that will rent to you). if it’s McD’s, that’s fine.Report

              • Avatar James Hanley says:

                On the other hand, people do in fact move in this country all the time without having a job lined up, without being provided money for moving by an employer, and without actually being able to afford to do so as we would normally understand those terms. I was one of those people.Report

          • Avatar MikeSchilling says:

            If enough employers demand those sorts of hours, it amount to coercion.Report

            • Avatar James K says:

              But this raises a coordination question. Barring a conspiracy, how do employers offer unfavourable conditions? Surely one employer could start offering 8 hour shifts for 80% of the daily pay and attract workers?

              For this reason I believe that long shifts were primarily popular because workers at the time generally preferred to work long hours because the alternative was having too little money. It is only quite recently in historical terms that productivity has risen high enough to make 8 hour days viable for most people.Report

              • Avatar Kimmi says:

                By bidding up the cost of living, obviously. And maybe that is a conspiracy, maybe it’s not.Report

              • Avatar James Hanley says:

                James,

                Here’s my theory, which some day I’m going to do the research on and prove (*grin*)/ The time when that was most prevalent in the U.S. was also a time of historically high immigration (only in the current era have we approached that immigration rate, although because of different laws, at that time it was all legal). The rate of labor increase was too too high for the market to adjust to and equilibrate, so workers were in a position of having to accept conditions they wouldn’t accept if the labor market had been tighter. Many people as a consequence see those conditions as “natural” in a capitalist system (perhaps utilizing Marx’s reserve army of labor theory), but of course in a market in equilibrium there would be no such rate of labor increase, and of course the government could have slowed down that rate of increase through immigration restrictions (my untested theory is that rent-seeking industries lobbied to prevent such restrictions). As evidence I like to point to South Dakota, where in the ’90s the unemployment rate hovered around 1%, burger flippers made the legal minimum wage + 1/3, and the chambers of commerce tried to dissuade other employers from moving into the state and further challenging them in a tight labor market.Report

    • Avatar Tim Kowal says:

      How would a company “force” a worker into doing that? Because of unequal bargaining power? I’ll grant that’s a real thing. I’d propose unionization to correct that defect in the process. If that doesn’t work, let’s discuss. Heavy-handed regulation should be a last resort.Report

      • Avatar Fnord says:

        We can argue back and forth about whether the idea of force in this context is valid. The fact is that people believe it. We could equally argue back and forth about whether the day of rest is Sunday, or Saturday, or doesn’t exist at all.

        So if a ban on Sunday work can be an expression of a society’s belief and values about the day of rest, surely a restriction on worked hours could be an expression of a society’s belief and values about the relationship between employees and employers.Report

  8. Avatar Mike Schilling says:

    Why is the faction that values process so determined to hold onto power via gerrymandering, disenfrachisement, and politicization of the justice system?Report

    • Avatar Chris says:

      Or their anti-abortion strategy.

      “Process” here is just code for “only passing laws I like.”Report

    • Avatar Kimmi says:

      They don’t value process. They simply don’t.
      The bankrupt school district of Dover can tell you all about it.

      As to limited government, states rights and all that?
      Apparently nobody’s ever seen the Texan schoolbooks in Pennsylvania.Report

    • Avatar Jaybird says:

      Those lists do a lot more heavy lifting when they don’t bring the phrase “don’t hate the player, hate the game” to mind.

      Gerrymandering is something much beloved by Congresscritters. It’s not a partisan thing at all, not for a second. Politicization of the justice system dates back to the 18th Century.

      Disenfranchisement? Sure, let’s run with that one. The sentence now lacks oomph, though.Report

      • Avatar Chris says:

        Jay, I don’t think it matters whether both sides do it. The point still stands. So let’s run with all of them (and besides, making it so that certain groups can’t vote, so that you can achieve or maintain your favored outcomes, is a weird way to approach “process”).Report

        • Avatar Jaybird says:

          I don’t think it matters whether both sides do it.

          I’m more saying “you’re hating the player when you should be hating the game”.

          At least with regards to gerrymandering and politicization.Report

          • Avatar Chris says:

            Yeah, I agree, except that the whole point of this post is that the game is connected to the player. Mike’s point, I believe, is that this position is self-evident, self-justifying bullshit.Report

          • Avatar Jaybird says:

            Dammit! I already said that! I apologize, I’m not awake yet.

            Anyway, I think that running with disenfranchisement is the one that is best run with here because the comeback is something about stealing votes. I mean, sure, there are a handful of cases where towns with Y people with X registered voters turn in Z ballots (and Z > Y, let alone being greater than X) but that discussion is all mathy.

            Gerrymandering is something that is embraced (not just casually accepted) by *BOTH* parties. Politicizing the judiciary? Oh, Lord. We’ll be playing “but what about” until we get to the Magna Carta which, we’ll probably find, was a cynical ploy to hamstring some king somewhere instead of some principled idea about an ideal of Justice or some crap.Report

          • Avatar Chris says:

            Again, that both parties do it something isn’t relevant to whether that thing is relevant to the points in this post. In fact, so much the better: if conservatives like process, but they behave towards process in precisely the way liberals do, then either conservatives don’t really like process, or liberals don’t like it any less.Report

      • Avatar MikeSchilling says:

        Political assassination has a long history too, so I guess we can’t really deplore it sincerely.Report

  9. Avatar Kimmi says:

    Let the Dover Dilemma speak to how much Conservatives care about process. How much they think that we ought to be protected from outside forces and outside interests.

    In short: They care not a whit about whom they must bankrupt, themselves or others, in service of their great golden gods.Report

  10. Avatar Kimmi says:

    I fail to see what society’s norms have to do with the Cross of Gold.
    Other than, perhaps, it’s wrong to bankrupt farmers.
    But that’s a liberal argument, not a conservative one.
    (I can make a decent “national defense” argument for not bankrupting farmers…
    but I can do the same for reducing/stopping global warming).Report

  11. I basically agree with Tod and James on all of this, but since I’m pressed for time at the moment, I want to say that this is a really good post in response to Conor’s own really good post – you’ve both taken clear positions, you’ve made your points unapologetically and forcefully, yet you’ve also clearly taken pains to understand your opponent’s arguments. I would love to see this debate continue a few more rounds.Report

  12. Avatar b-psycho says:

    For all the philosophical discussion that can be had, the result of those that claim each side in the U.S. voting their alleged preferences appears to result in the same thing we always get…

    I would say the adherents of each would be recommended to cast a Gas Face or two to their own tribesfolk more often, assuming this wasn’t what they had in mind.Report

  13. Avatar Patrick Cahalan says:

    For conservatives, values arise from and are tested in society, and only later make their way into our political and legal institutions. That is, government is meant to play a supporting role in the underlying society’s culture and norms; it is not meant to conceive and advance and foist them on society who otherwise would not go along with it.

    For Progressives, on the other hand, this is exactly what government does.

    I think this is a dichotomy that is less polar than it is represented here.

    Well, there are certainly Conservatives and Progressives that believe these things. However, there are also Conservatives who cheat at this game by taking values that have arisen in sections of our society and then tried to embed them into our political and legal institutions – I’m thinking of crosses and water towers here as a specific example. There are certain values that we’ve already agreed don’t belong in our legal institutions, and there’s a core group of Conservatives who are on that like a dog with a bone.

    I don’t think there are too many hard core societal engineers left among the Progressives, which is what Tim describes here in that last sentence. It’s one thing to say “this thing is important enough or big enough and only the government will tackle it quickly enough or at all!” – for a Progressive, the poster child for this was the Civil Rights Act. Right now, Obama is throwing out a lot of Progressive rhetoric, but I think that’s a response to increasingly Conservative rhetoric coming from the opposing camp. Oscillating hyperbole.

    Passing the Civil Rights Act is not exactly something that happens every day. Support for a Progressive policy in the Civil Rights Act doesn’t make you entirely a progressive, does it?

    I guess what I’m trying to say here is that I see large kernels of truth in both of these sets of recent posts, but it seems all too bipolar to be an accurate description of what’s really going on.

    And I, personally, would much rather not see the Progressivism vs. Conservativism ballyhoo devolving into a winner-take-all cage match.

    Federalism would be a lot stronger today if the South had never seceded. But they did, and the Civil War put paid to the idea that the states could overrule the feds. That was a loss, and an unnecessary one.

    If the marketplace of ideas *always* must cast aside the rule of law and become the War of Ideals, one side always loses.Report

    • Avatar Tim Kowal says:

      Patrick,

      Yes, I’ve drawn the lines a bit boldly here. The process vs. policy dichotomy doesn’t explain everything, obviously. But I do think it may be a fairly reliable way of distinguishing two values-oriented activists – if one is thinking about starting an information website to advance his favored policy, and the other is thinking about filing a lawsuit, we can identify which is the Progressive.

      Racial discrimination is an area where policy and process overlap. It’s bad policy and bad process. Many of the Founders well knew slavery was un-American as a matter of transcendent, natural law principles, e.g., those stated in the Declaration, even as it was preserved as a matter of positive law. “Progressives,” starting even with Lincoln, we might say, culminating with the Civil Rights Act, stomped on certain processes in order to substantially wipe out that abomination of both policy and process. And good on them for doing it. It reflects a proper moral ordering of values, both process- and policy-wise.Report

      • Avatar Patrick Cahalan says:

        I’m thinking of another one of those fancy graphs where you have process and policy on two axis and principle and outcome on two others.

        It’s a commendable effort by both you and Conor (and I think it’s working better as a trade-off of posts than a argument down in the commentary thread, too).

        I’m just making sure I still see the forest, is all.Report

  14. Avatar Ethan Gach says:

    “So why make this personal other than for rhetorical effect? And why use divisive rhetoric when calling for less divisive rhetoric? Not that there’s any point in asking. Means don’t matter.”

    No one says that self-identified conservatives, tea partiers, etc. are un American or contra to “American values/ideals” because for whatever reason most liberals and progressives don’t argue in terms of “American-ness” where as their political opponents often do.

    I don’t say that a severely limited welfare state is un-American. I am told that a pervasive social saftey net is.

    There IS a difference of rhetorical strategies, and however mutually devisive they may appear, one is more concerned with de facto de-legitamizing the other side as precisely “other” and therfore bad-in-and-of-itself rather than on the merits.Report

    • Avatar Tim Kowal says:

      Ethan, I think I understand what you’re saying. It’s no good to go around calling everything you don’t like “un-American.” And even where there is an honest debate about what kinds of ideas might be properly considered “American” ideas or not, it’s probably at the least very impolite. I’ll completely sign on to that. I only want to emphasize the substantive bit in the middle — that there is an honest debate here. Personally, I might try to avoid calling ideas un-American, but I also urge that the other side of civil discourse is recognizing that not every suggestion that an idea is un-American should be taken as mindless pot-and-pan-banging.Report

  15. Avatar greginak says:

    This , “For conservatives, values arise from and are tested in society, and only later make their way into our political and legal institutions. That is, government is meant to play a supporting role in the underlying society’s culture and norms; it is not meant to conceive and advance and foist them on society who otherwise would not go along with it.” is good but misses quite a bit.

    In a large pluralistic society there are many values. Whose values are rising up in society only to be later validated by gov? To use the example of the Civil Rights Era, there were competing sets of values. It was up to the gov to set the law even if it squished some peoples values (and quite rightly so).

    Its also by enacting laws that society raises and tests values. Gov and society are not seperate entities, they are intertwined, they affect each other.Report

    • Avatar Tim Kowal says:

      (and quite rightly so)

      As I mentioned above, it is right and proper to seek to properly order our values, both as they relate to process and to policy. I would argue that the wrong of racial discrimination justified a temporary suspension of some of our values with regard to process, such that it was at least permissible to seek accelerated change through extra-democratic means, e.g., the courts. Without intending to pick a fight, I think most conservatives would argue the same goes for abortion — “judicial activism” in the cause of saving lives would be no vice.

      But this would not go for SSM, because if SSM involves a moral wrong, it is by no means as readily demonstrated as racial discrimination or the killing of innocent humans. Thus, it would not be justified to suspend our firmly entrenched values regarding political and legal process to achieve what conservatives might regard as a valuable policy objective of protecting and/or promoting a particular view of marriage.Report