Monday, June 27, 2022

History, Abortion, and the Reactionary Politics of the Roberts Court

 

The Supreme Court under Chief Justice John Roberts is the most reactionary ever in American history. 


Its Dobbs v. Jackson Women’s Health Organization decision taking away abortion rights from American women is the first time the Court has ever overturned a constitutional precedent to take away rights.  But let us not forget that this Court has also killed the Voting Rights Act by declaring most of it unconstitutional in  Shelby County v. Holder and Brnovich v. Democratic National Committee.  It has also killed union rights and unleashed corporate political money in Citizens United.  And it has consistently chipped away at the separation of Church and State as evidenced in the recent Carson v. Makin.  For a Chief Justice so worried about his legacy and the reputation of the Court, history will not be kind to him.

            Ironically, history is central to the Roberts Court assault on rights.   Better yet it is the abuse of history in its method of legal analysis and reasoning. 

            Starting back with Ronald Reagan’s Attorney General Ed Meese conservative jurists, including Justice Antonin Scalia and the members of the Federalist Society, argued that the Constitution should be interpreted in light of the intent of the framers.  Such an approach, asking us what  a bunch of slaveholders, bankers, and  land speculators  who were White and Christian thought about the rights of average people  such as women, the poor, and people of color most certainly would doom their rights.  That is why Justices such as  Earl Warren, William Brennan, and others argued that rights need to be looked at in terms of the evolving standards of decency that mark the maturing of society.  We need to read our Constitution with an evolving political morality that reflects  political sensibilities reflective of today, not  fixed in stone in 1787.

            While some argued  that an intent of framers methodology was a neutral tool of interpretation, it really was window dressing for a conservative political ideology.  It was no coincidence that the so-called  most faithful adherents of such an interpretative approach were conservative and consistently  ruled against individual  rights.

            But now the Roberts Court this term has taken its interpretive tool further by asking whether a right is  “deeply rooted in this Nation’s history and tradition.”  If it is so deeply rooted then  it is a right protected by the Constitution, if not the Court will not protect it.  In Dobbs, the Court offered its version of history to conclude “that that a right to abortion is not deeply rooted in the Nation’s history and traditions.”  Conversely, the Court invoked history in New York State Rifle and Pistol Association to strike down a gun law by arguing  that the right to carry a gun in public for self-defense is consistent with the “Second Amendment’s text and historical understanding.”  Finally in Kennedy v. Bremerton School District the Court upheld the ability of a public school football coach to kneel  and do prayers  after a game, despite concerns by the school about First Amendment Establishment Clause issues.  The Court declared that the ”Establishment Clause must be interpreted by “ ‘reference to historical practices and understandings.’ ”  Apparently praying after football games is deeply rooted in our history.

           The three opinions all have something in common—the use and abuse of history.  The Court invokes history to support its outcomes, but it just so happens that its history supports a Christian, misogynist, gun-toting view of the world.  It is an opinion that is revolutionary and reactionary at the same time.

            A central premise of American law is that it is supposed to be precedent based.  Once the Supreme Court decides an issue it is settled law and unless there are extraordinary reasons to overturn  a prior opinion, one is expected to  follow precedent. Precedent is law. It is part of the Constitution along with text. Over time some of the most fundamental rights in American history, the  right to vote, privacy, marriage,  and use of contraceptives have been the product of Court opinion, reading into the Constitution rights reflective of an evolving  political morality and sensibility.

           This is what makes the appeal to history and tradition so dangerous.  It pits the text of the Constitution, the historical sensibilities of its framers, and an American history and tradition of racism, sexism, and Christian parochialism against reform.  It freezes right  back to 1787 or, as pointed out in Dobbs, to a point at the time of the adoption of the Fourteenth Amendment in 1868.   Dobbs, as Clarence Thomas’ concurrence declares, sets up the Court to reconsider the right of same sex couples to marry, the right to birth control, and the right of same sex couples to engage in private consensual sexual acts.  Such an interpretive  approach is not neutral—it is inherently  in opposition to rights.

Thursday, May 26, 2022

The Second Amendment is no Bar to Gun Regulation, the Problem is Political Will and Public Policy

 


A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

 

            The mass shooting in Uvalde, Texas has placed gun violence  in the news for the third time in a month.  It has also placed gun regulation and debates over the Second Amendment on the political agenda, with some such as Senator Ted Cruz declaring that the Constitution is bar to limits on the right to bear arms.

            The Constitution is not an impediment to reasonable gun regulation.  The real problems are threefold:  The  Supreme Court,  a lack of political will, and devising policies that will work  to address gun violence given the reality of there nearly four hundred million legally owned guns in the United States.

 

The Original Meaning of the Second Amendment (and why it may not matter)

What does the Second  Amendment mean?  There are really two issues here.  The first is whether the Amendment protects  an individual right to bear arms.  The second question is if the Amendment does grant an individual right, is that right unlimited or absolute? 

Unfortunately, the original text and intent of the  Framers of the Amendment is not clear.

When in 1789 James Madison introduced  seventeen  amendments to the Constitution, one eventually became the Second Amendment.  His original wording was:  “A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed.”  Debates in Congress  over the meaning and language of the Amendment are in determinative regarding whether it protected an individual right.  The same can be said regarding debates in the states regarding ratification of the Second Amendment.

However, until 2008 the few Supreme Court cases that addressed the meaning of the Second Amendment declared that there was no individual right to own guns.

 Five decisions are regularly cited regarding the interpretation of the meaning of the Second Amendment. In the earliest decisions, rendered in the aftermath of the Civil War and the ratification of the Fourteenth Amendment, the Court ensured that state militias could support the government by maintaining public order. This interpretation meant that the “right to bear arms” was seen as a collective, not individual right, regulated by Congress and the states.

The first case which provided the Supreme Court’s interpretation of the Second Amendment, United States v. Cruikshank (92 U.S. 542, 1875), rose in that legal context.

A private militia of former Confederate soldiers and members of the Ku Klux Klan attacked a group of Black citizens, who had occupied a courthouse to protect Republican office holders, resulting in the Colfax Massacre of many African-Americans. The federal government prosecuted a small number of the almost one hundred accused perpetrators under the Fourteenth Amendment claim that these white individuals had denied basic constitutional rights (the right to vote, bear arms, assemble, etc.) to the Black citizens they had attacked and/or executed. The Supreme Court found these charges to be vague, and all of the charges were eventually dismissed. The majority opinion noted, “[t]his is one of the amendments that has no other effect than to restrict the powers of the national government.” The Court did not find the Second Amendment applicable to the states or to limiting the actions of other individuals. This decision was reinforced by the only two other decisions rendered by the Court on the Second Amendment in the 20th Century.

The 1886 case of Presser v. Illinois (116 U.S. 252), while arising under different circumstances, reinforced the Cruikshank interpretation of the Second Amendment. Brought by a private white militia in Illinois, which had been constrained by state law from publicly drilling with their weapons, the Court found the Amendment to be “a limitation only on the power of Congress and the national government, and not of the states.” 

Similarly, United States v. Miller (307 U.S. 174, 1939), which upheld the constitutionality of the National Firearms Act of 1934, requiring the registering of certain weapons, reinforced the notion that the Second Amendment was a barrier against Congress passing laws that would preclude the state from maintaining an armed militia of its citizens. Because the Second Amendment was seen as a collective right, not an individual right, these decisions made it clear the Court understood the Second Amendment as allowing states to regulate firearm possession and ownership, not inherent to “the preservation or efficiency of a well-regulated militia.” The standard of judicial decision making noted in Miller was the lowest test of “some reasonable relationship” between the regulation and the constitutional guarantee. While this was the status of the constitutional interpretation, the scope of the Second Amendment was not a closed debate post-1939.

 

Heller and the Individual Right to Bear Arms

Continuing controversies included the following: Does the text of the amendment protect an individual right to keep and bear arms, or is that a collective right maintained within the context of a militia? Until District of Columbia v. Heller (554 U.S. 570) in 2008, the Court had not explicitly addressed this question. The debate between Justices Scalia and Stevens highlights the contrasting ways the Court uses test, history, and precedent in seeking to understand how the language of the Bill of Rights applies in a society centuries removed from that of the Framers.

In Heller, the Court stated only that the Second Amendment protects an individual right. To reach that conclusion the Court engaged in both a tortured  textual analysis of the Amendment and a weak amateurish or law office reading of the history of the text.

But in reaching that conclusion the  Justice Scalia and the Court did not specify what that right is actually protecting, and he went out of his way to assert that the ruling would not invalidate many traditional restrictions on gun ownership. Moreover, the ruling affects the District of Columbia and the federal government only. The Heller decision did not incorporate the Second Amendment to apply to the states, but in 2010 in Chicago v. McDonald the Court did that, meaning that both the federal and state governments were limited by this Amendment.

Heller resolved the individual-collective right issue.  The decision may or may not be correct, but unless a future Court reverses itself or the Constitution is amended,  the current reading of the Second Amendment is the law of the land.

 

What does the Second Amendment Protect?

            Does the Second Amendment grant an absolute right to bear arms?  The answer is no. No Amendments are absolute.  The First Amendment rights to free speech or assembly are not absolute, and there is no reason to think the Second is either.  In Heller, the Court seemed to identify the core right of the Second Amendment is to possess guns for self-defense and maybe hunting.  But such rights do not mean an unlimited right to  possess and use any kind of gun or weapon, and it also does not mean that such rights apply to all equally.

By 2016, all states allowed individuals to carry a concealed weapon; only the District of Columbia prohibited it. Many states adopted “Stand Your Ground” laws that recognize an individual’s right to respond to an imminent threat, without a responsibility to retreat, as long as that individual has a right to be there. Other states passed “Duty to Retreat” laws, which prohibits people from resorting to deadly force in self-defense if they are able to avoid harm by running away or other means. There is also great variance in laws regarding the carrying of concealed weapons on college campuses across the country.

Since McDonald, a large number of cases have been litigated on these and other grounds, but because there is still no clear standard for constitutional analysis for these cases, there have been mixed results in the lower federal courts.

Some state regulations have been upheld as constitutional, while others have been struck down. Among the notable decisions have been that a State may ban firearms on college campuses, DiGiacinto v. Rector and Visitors of George Mason University, 281 Va. 127 (2011); juveniles had no right to carry a handgun, U.S. v. Rene E., 583 F.3d 8 (1st Cir. 2009); no constitutional right to possess machine guns, Hamblen v. U.S., 591 F. 3d 471 (6th Cir. 2009); states may ban felons from possessing firearms, U.S. v. Williams, 616 F. 3d 685 (7th Cir. 2010); and, states may ban persons convicted of domestic violence from possessing firearms, U.S. v. Skoien, 614 F. 3d 638 (7th Cir. 2010). These decisions speak to the dicta penned by Scalia in Heller that many long-standing gun laws may be constitutional and that the Second Amendment, as seems to be the case with other amendments, is not absolute.  The point being that the regulation of guns to promote public safety is not absolutely barred by the  Second Amendment.

So What is Stopping Regulation of Guns?

            There are three issues that really limit the ability to regulate guns to promote public safety.

            The first is simply a lack of political will.  Specifically, the NRA is a potent lobbying and political force that worked hard for years to secure the Heller and McDonald decisions.  They took a page out of the NAACP which did a remarkable job in the twentieth century to overturn  segregation.  The NRA mobilizes voters.  Large percentages of the population support gun rights, as does the Republican Party.    Gun advocates vote, those who wish to limit the regulation of guns are not as mobilized by the issue as the latter. This is simple politics.

            The second problem is the Supreme Court.  The current Court is among the most conservative in history.  It supports gun rights and it might invalidate a current New York State law that regulates guns.  That law would limit the ability to carry a loaded gun in public.  The Court heard oral arguments in November 2021 and it looked like it would strike the law down.  How the Court will be affected by the Uvalde is a good  question.  However, given  the leaked opinion potentially striking down abortion rights despite public opposition to that, one doubts  that Uvalde will change their mind.

            Finally, and maybe most importantly, the problem is what do advocates of gun regulation want to do and what can realistically work to reduce gun violence?

            Begin with a reality check.  Like it or not, the best estimates are that 40% of US households have guns and there are perhaps 300 million+ guns privately owned in the country. Like it or not, guns are not going away and even if the Supreme Court were to reverse itself and declare there is no individual right to bear arms, all the existing guns are not going away. Like it or not, banning guns in a mass way will produce a firearms bootleg problem that will make alcohol smuggling during Prohibition look like child’s play. 

            But what are we trying to accomplish with the regulation of guns?  Serious policy debate is marred in faulty logic and bad argument.

            To start, the phrase “gun control” has simply become a politically charged phrase used by  different political parties to mobilize their voters and base. 

            Second, the phrase or argument “guns don’t kill people, people kill people” is equally  misguided.    Guns dramatically facilitate violence.  One does not see mass killings take place with  sticks and knives, and most robberies and other violent crimes involve guns and not other weapons.

 

What is the Policy Problem and What is the Policy Solution?

            Third,  our focus on guns is misguided.    What are we trying to prevent, or as I ask my students, what is the problem we are trying to prevent?

            Some argue that the problem is not guns but mental illness and that the solution to gun violence is to prevent the mentally ill from getting guns.  This assumes all mentally ill people are violent and those who are sane are not.  Our prisons are full of lots of people who use guns and commit  crimes and the law has deemed them sane.  There are millions of people in America with mental illness problems and few are violent. But even if preventing the mentally ill from obtaining guns were the solution, it is not clear that universal background checks would catch everyone.

            Much of our focus also is on mass killings and the use of assault weapons.  Since 1982 there have been 128 mass shootings with 1033 deaths. 

In 2018 alone, according to the Center for Disease Control, there were 39,740 deaths due to firearms. Public mass shootings that year constituted only 0.2% (two-tenths of 1 percent) of all firearms deaths that year.

In 2018 13,958 individuals killed themselves that year with guns, constituting 61% of all firearms deaths that year. There are nearly fourteen times more gun suicides per year than there have been deaths by mass shootings in nearly 40 years. An American Journal of Public Health study showed a strong relationship between levels of gun ownership in a state and firearm suicides.

Additionally, among the weapons used in murders in the U.S., FBI information reveals that handguns were the choice in 64% of the crimes. Among suicides, handguns were used 69% of the time. Even in mass shootings, handguns were used 78% of the time. An American Journal of Preventive Medicine article pointed out that rates of gun ownership, especially of handguns, are more associated with homicide in the home than with homicide outside the home. According to a Social Science and Medicine article, handguns are far less likely to be used in self-defense and instead are more associated with domestic violence, especially against women. Despite the belief that mental illness is the underlying cause of mass shootings and gun violence, there is little evidence, according to an American Journal of Public Health Study, among others, that those with mental health problems are more likely to commit violence with a gun than those lacking such a diagnosis. Finally, more than 250,000 guns per year, according to The Trace, are stolen from the proverbial law-abiding owner because they have not been properly secured, and are used in crimes.

            The point is that handguns are a potent problem when it comes to suicide, robberies, and domestic assaults.  We largely do not discuss these issues.  Addressing these problems, along with mass killings and perhaps now racially motivated killings is not a simple problem that can be easily solved.  We probably need to have far less guns in our society.  We  need to make cultural  changes that address the link between patriotism, Americanism, and guns.  We need to find a way to develop alternative ways to resolve disputes or anger that are not facilitated by guns.

            The problem thus is not the Second Amendment.  It is the political will and desire to address violence in America with the development of effective public policies and not political slogans.

Sunday, May 8, 2022

Abortion Rights in Minnesota Without Roe v. Wade: It's Not as Secure as Some Think

 

The leaked draft opinion in Dobbs v. Jackson’s Women’s Health Organization portends the US Supreme


Court will overturn  Roe v. Wade and women’s  right to terminate their pregnancies.  The opinion declares that it will be up to states and the political process to decide abortion rights.  Some in Minnesota declare were Roe overturned one need not worry because abortion rights are independently protected in the state.  Think again.  Such complacency regarding abortion rights by  its defenders  in thinking that Roe was the final word could also doom  similar rights protected under Minnesota law.

 

Roe v. Dobbs

            Roe v Wade is the 1973 Supreme Court opinion declaring that a constitutional right to privacy protects a woman’s right to terminate a pregnancy.  In reaching that conclusion the Court  built its decision off of previous  decisions. While nowhere explicitly in the Constitution can one find a right to privacy., in cases such as Griswold v. Connecticut the Court ruled that such a right is implicit in the Third, Fourth, Fifth, Ninth and Fourteenth Amendments.


            Roe expanded the right to privacy to include the right of women to terminate their pregnancies.  Yet that right was not absolute and it could be regulated or limited by a compelling state interest.  Protecting the rights of the fetus was not such an interest because the Court ruled that an unborn entity was not a person  according to the Constitution.  But protecting maternal  health was  a legitimate interest.


            Over the years those opposed to abortion have sought various ways to overturn abortion rights.  The have exploited  the maternal health  loophole to place limits on where and when abortions could be performed.  The Supreme Court has upheld many of these regulations but also struck down many.  For abortion rights advocates, they could always count on the US Supreme Court would come to their defense.   This was the case even in the 1991 Planned Parenthood v Casey decision where the Supreme Court reaffirmed Roe.


            The draft opinion in Dobbs v. Jackson’s Women’s Health Organization suggests that a nearly fifty-year political mobilization by those who are opposed to abortion rights has paid off.  The draft suggests Roe will be overturned and it will not be up to the states and the political process to decide what abortion rights, if any, women will have.  The opinion said that they will review any regulation of abortion  under what is called a rational basis test.  This means a broad presumption of constitutionality for abortion limits, even in cases of rape, incest, or the health of the mother.


            Dobbs is a complete reversal of  Roe. But it is only a draft.  It is still possible the Court sill not formally overturn Roe but merely gut it, saying it remains valid law but still allow for many more limits on abortion.

 

Gomez v. Roe

            Were Roe overturned or abortion rights significantly limited the focus turns to the states.  Some are prepared to ban abortion others have laws or rules in place to protect abortion rights.  In theory Minnesota has such protections too, but the legal safeguards for abortion in the state are more tenuous than one might think.


            As it was true at the federal level, there is no explicit right to abortion found in the Minnesota Constitution.  The basis for abortion rights is found in a  1995 Minnesota Supreme court decision Women of the State of Minnesota v. Gomez.  At issue in that case was a state law that restricted the use of public funds for abortion-related medical services to three limited circumstances while permitting the use of such funds for comprehensive childbirth-related medical services. Here the Court ruled that providing public funds to pay for maternity costs but not abortions violated the rights or poor women.


            But in reaching that conclusion the Court, also building upon previous right to privacy cases, contending that fundamental right of privacy under Article I, Sections 2, 7 and 10 of the Minnesota Constitution includes the right of a women to choose to have an abortion.  Moreover, critical to the Minnesota Supreme Court reaching that decision was that the State of Minnesota, specifically the Attorney General, had conceded that such a right exists.


            Thus, the right to privacy protects right of women to terminate pregnancy but the case law never said it was absolute and this case was decided within the conduct of public funding for abortions.  Gomez,  was decided by a very liberal Minnesota Supreme Court which conceded at the time that its ruling was very limited.  All of this is important  because the right to abortion in Minnesota  under Gomez parallels that under the US Constitution in Roe in that both were judicially crafted rights constructed through  judicially crafted  rights to privacy. 

 

Gomez v. Dobbs

            As we are seeing with Roe and Dobbs, abortion rights under Gomez could be vulnerable in many ways.


            One, without a federal  right to abortion, a state right is less protected.  A future Congress and president could  pass a law making abortion illegal.  Based on the Dobbs draft opinion, a future Supreme Court could declare a fetus a constitutional person with rights and therefore Gomez decision could effectively be overturned at the  federal level.  Or maybe as a result of political mobilization the state passes such a law and the Minnesota Supreme Court has to decide how to resolve  the rights of a mother versus her fetus.


            Consider other possibilities.  A future governor and state legislature pass a law banning abortion and such a law is litigated before a Minnesota Supreme Court less supportive of such a right. While at present the Minnesota Supreme Court  may look pro-choice, it would not take much time over several elections to replace them with those who oppose abortion.  Several years ago in Iowa after its Supreme Court ruled that its constitution protected the rights of same-sex couples to marry, those opposed to the decision  successfully replaced several of the justices in elections.


           Or think of a future attorney general unwilling to defend abortion rights as was the case in Gomez.  Or consider  a possible future constitutional amendment.  The point is that Gomez maybe a temporary firewall for abortion rights, a concerted political mobilization movement by groups such as Minnesota Citizens Concerned for Life could easily destroy such a right.


          Abortion rights advocates should not be so complacent in thinking that Minnesota is safe no matter what the Supreme Court does or what a final version of Dobbs is.  Complacency is why  we are where we are today at the federal level, and the same fate could befall Minnesota.

Tuesday, March 22, 2022

Friedman’s ‘The World is Flat’ Hasn’t Aged Well

 This blog originally appeared in The International Policy Digest.



Back in 2005, The World is Flat, Thomas Friedman’s best-seller, prophesied if not promised a globally integrated, and what he called, a flat and frictionless world economy. The winners would be those who fully embraced such a future, the losers would be those outside who resisted it. From the vantage point of 2005, the world did look flat and the future frictionless. But from the commanding heights of 2022, in a world marked by a global pandemic and the Russian invasion of Ukraine, such a picture looks less likely, with the world looking increasingly bumpy and less integrated, at least along the lines envisioned by Friedman.

The thesis is that the pandemic and the war in Ukraine are only one of several challenges to a globalized world that have been emerging in the years since Friedman penned his bestseller and that even after we emerge from the pandemic at some point there are many dangers that continue to threaten a global vision of the world. In effect, for the near future, the world appears to be bumpy and rift with friction.

The Multipolar, Bipolar and Unipolar Worlds

On one level, the story of globalization is the tale of human history. From the day humans left Africa and migrated across the world, globalization began. Yet the modern story starts after the Second World War.

Post-Second World War, it was the Cold War division that created the bipolar world divided between the U.S. and democratic capitalist states from authoritarian communist states, leaving a few remaining unaligned ones. Yet the very words of the era, East versus West, First World versus Second World, North versus South, Aligned versus Unaligned, all pointed to the bipolar world we lived in.

But of all that came to a crash in 1989 with the fall of the Berlin Wall and then the breakup of the Soviet Union in 1991. Writers such as Francis Fukuyama in his 1992 The End of History and the Last Man proclaimed the end of history and the victory of Western democratic capitalism. We won, they lost, the world was unipolar headed by the victorious United States

The 1990s and the early part of the twentieth century was an era of globalization and integration. The 1994 North American Free Trade Agreement was one of many conventions that sought to integrate the global economy. The founding of the World Trade Organization in 1995 and the coming of age of the 1947 General Agreement on Tariffs and Trade (GATT) worked to bring down trade barriers. In Europe, the maturing of the European Union with the Maastricht Treaty (1992), Lisbon Treaty (2007), and the expansion of membership at its peak to twenty-eight member states all were clear proof of a globalized world.

Enter Friedman’s Flat World

It is at the juncture at the beginning of the twenty-first century that Friedman’s The World is Flat makes its first appearance.

Friedman saw globalization as having gone through three stages that have metaphorically reduced the world from large to small. Version 1.0 (1492-1800) shrank the world from large to medium. The agent of change was brawn, and it was about countries and muscles.

Version 2.0 (1800-2000) shrank the world from medium to small. It was directed by multinational corporations going global for markets and labor. It was at first driven by falling transportation costs, then the telecommunications revolution, and then the Internet. Version 3.0 (2000- present) shrinks the world even smaller and flattens the playing field. It is directed by individuals seeking to collaborate and compete globally and it is made possible by software and fiber optic networks.

Globalization version 3.0 is driven by what Friedman calls ten flatteners, such as the fall of the Berlin Wall, open-sourcing, out-shoring, supply-chaining, insourcing, and the creation of Microsoft Windows, and Google. These ten flatteners were subject to three convergences. Convergence one is the “complementary convergence of the ten flatteners, creating this new global playing field for multiple forms of collaboration.” Convergence two is the rise of business schools, IT specialists, CEOs, and workers comfortable with and able to develop horizontal collaborations who developed “business practices and skills that would get the most out of the flat world.” Convergence three is the introduction of new players—three billion—into a new playing field with new processes and horizons for collaboration. Overall, the ten flatteners and three convergences were yielding a frictionless flat world.



 

From a heady vantage point of 2005, Friedman looked correct, much like Fukuyama seemed prescient a few years earlier. Noble Prize Winner and New York Times columnist Paul Krugman among others were beside themselves in proclaiming the virtues of NAFTA and world trade. They dismissed cranks such as Ross Perot who earlier in his 1992 run for the presidency warned that the “giant sucking sound” of free trade would take jobs away from many Americans, or that the benefits would disproportionally fall to a few, and the burdens to others.

Disrupters of the Global Vision

Despite the rosy picture painted by Friedman, there were early signs that the flat world was not necessarily the future. The ascension of Russian President Vladimir Putin in 2000 and the terrorist attacks first in the United States on September 11, 2001, and then subsequent ones in Spain and Great Britain among others were another sign that open borders might need to give way to security concerns.

Since then, it has become increasingly clear that the future is not necessarily flat. If history hitherto fore was marked by patterns of convergence and divergence, as we move into the third decade of the twenty-first century, the brief history that Friedman proclaimed for this century may now be marked by the world becoming bumpy. If Friedman sees flatteners and convergence, there are several disrupters challenging the global vision.

What are these disrupters?


The 2008 Global Financial Crisis. The rapidity of the crash as it spread from the U.S. revealed the limits and problems of economic integration. The problem started with the mortgage lending markets in the U.S. where banks had every incentive to offer home loans but little incentive to ensure the loans were actually good and made to creditworthy individuals. Banks made the loans, often with little credit checks as was the case with New Century Financial, and then bundled them up and sold them on the secondary loan markets, with foreign banks, such as those in China or in Europe, buying these portfolios. When margins were called in 2008, and institutions such as Bear Sterns lacked the capital to honor them, it triggered a global financial panic that brought down the “too big to fail” in the U.S. and brought on the Great Recession across the world.


2011 Syrian refugee crisis. The 2011 Syrian civil war was only the first of several conflicts that triggered a demand to close borders. The 2021 efforts by Belarus to use refugees as weapons against Lithuania and Poland played upon fears of a new refugee crisis. In the U.S., Donald Trump successfully ran for president in 2016 on fears of an invasion of refugees from the South and Latin America, proclaiming them as rapists and murderers.


Rising nationalism. The Great Recession of 2008, as well as the 2011 refugee crisis, helped flame a new nationalism across the world. Free trade agreements and open borders made it look like conventions such as the European Union were simply an open invitation for a country to be flooded with others, potentially damaging the ethnic or racial mix of the current population. Marine Le Pen in France and Viktor Orbán in Hungary were but two examples of how rising nationalism fueled new political movements in those countries. Trumpism in the U.S., resulting in the Muslim travel ban, demands to build the border wall, and policies of asylum while you wait outside the U.S., were examples of this.


New Economic Nationalism. Trump’s “Make America Great” was not simply the product of a personality. Trump was the product of a convergence of many forces, some racial, but many economic that had been brewing for many years. Free trade and automation may have made some Americans very wealthy, but the burdens as noted above fell heavily upon the working class. In the 1990s, ivory-tower economists such as Paul Krugman cheerleaded NAFTA and free trade, but not until it became obvious that we were not all winners did he and a few others concede that perhaps they missed something in the chalkboard models. The public was never and is still not as enthusiastic and sold on free trade as tenured professors are.

Brexit. Arguably on one level the British vote in 2016 to leave the European Union and then the actual departure at the end of 2020 is one of the clearest signs of a world becoming bumpy and less frictionless. Brexit is built on the economic and racial anxieties discussed above as well as nationalism. The geography and demographics of the vote reflected clear patterns across the UK in terms of perceptions of where and who was losing and winning in the EU membership.

Geopolitics. Even before the Russian invasion of Ukraine it looks less and less like the end of history has arrived and America has won.

In Russia one finds Putin lamenting the breakup of the USSR as the greatest geopolitical disaster of the 20th century and he appears bent on re-establishing the lost empire. The Eurasian Economic Union, unification or cooperation agreements with Belarus and the invasion of Ukraine to force it within its sphere of influence demonstrate Russia remains a major player. In fact, the 2022 Russian invasion represents perhaps the most abrupt proof that globalization is both alive and dead.

China too is testing U.S. global dominance. The Belt and Road Initiative is its effort to expand its global economic influence. Its growing military confidence in the Pacific, the repression of self-rule in Hong Kong, and impatience with Taiwan’s independence and desires to resolve unification soon demonstrate the challenge to U.S. supremacy. Moreover, under Donald Trump, across the world, many countries questioned the U.S. willingness and resolve to organizations such as NATO. Even after the Russian invasion, many still question American resolve, especially after Afghanistan.

Climate change. If ever there was a challenge that demanded a concerted global response it is climate change and the warming of the Earth. While there have been several efforts at the international level to address environmental issues, including most recently the 2015 Paris Agreement, and the 2021 COP26 agreement, little progress has actually been made to slow climate change. The U.S. and China remain the biggest polluters but have little incentive to change. It is within the interest of Brazil to continue to deforest the Amazon even though doing so speeds up the warming of the planet. Climate change is opening up new frontiers of conflict.

Big Tech pushback. Friedman’s The World is Flat championed the likes of Google as levelers in the new frictionless world. They were among the forces of convergence. More than 15 years later, Google, Microsoft, and now the rise of the social media with Facebook look less as friendly integrators but more as disrupters. The global dominance of Big Tech is seen as a threat in many ways. Big Tech and especially the social media giants are seen as causes of conflict and polarization, especially as stories of how Facebook’s algorithms seem to encourage hate speech and fake news.

The pandemic. If any event has torn apart the fabric of the frictionless unipolar world it has been the emergence of the pandemic beginning in 2019. Nearly from its start, it has led to the closing of borders, interruptions in migration, the closing, opening, and reclosing of businesses and economies, and even conspiracy theories regarding the origin of the pandemic. Trump’s effort to label the pandemic as the “China virus” revealed the merger of nationalism, ethnic rivalry, and racism attached to the fears of the origins and spread of the virus.

Supply chain problems. A tenth disrupter has been the resulting supply chain problems accompanying the pandemic. In the initial stages of the pandemic, countries hoarded medical supplies such as face masks. Stories of ships carrying them being recalled ran wild as either urban legends or true. What the U.S. experienced, along with many other countries, were problems in supply chains, as often raw materials or necessary components or parts were stuck on ships or in distant ports offshore.

Businesses, seeing the problems of depending on offshore supply chains, are rethinking plant location. In late 2021, Samsung announced the construction of a new $17 billion facility outside of Austin, Texas so that it would not be cut short in the chips it needs for its cellphones and other devices. Other businesses may follow suit. Countries too may also feel that they can no longer depend on other states to make other critical goods such as medical supplies. The pandemic will force a rethinking of the value of spreading operations across the globe.

Several events since the publication of The World is Flat question the flat, frictionless integrated, and perhaps unipolar world that seemed inevitable then. In the last 17 years, several disrupters have made the world bumpier, with many left wondering if a planet with more friction would be more desirable, or at least more likely. Today, the future of the next part of the twenty-first century looks less like what Friedman envisioned and more like a refutation of his prophecy.



International Law, War Crimes, and Ukraine

 This blog appeared in Fast Horse.


David Schultz Q&A

March 21, 2022

David Schultz forecasts next steps in the war in Ukraine.


“The U.S. seemed to think that with the end of the Cold War we won and Russia lost and Russia would simply accept the values of the West and join in. I learned from Lithuanian colleagues that the U.S. confused Russian security desires and thoughts of spheres of influence with that of the USSR such that with the latter gone the security threat from Russia would disappear. We were foolish to believe Russia would turn into a stable Western-style democracy. This is the same mistake we made in Afghanistan and Iraq and it all goes back to the arrogance of the U.S. in not understanding cultural differences.”


You have taught in Russia, Ukraine and Belarus. Have you been surprised by Putin’s move at this point in time? 

A decade ago I would have been surprised by Putin’s decision to invade. At that time Russia was a far weaker country and it looked as if it was integrating itself into a global financial system and therefore would have had too much to lose by invading. He enjoyed the support of the middle class who were experiencing rising incomes and some increase in personal freedoms. I saw both while teaching in Moscow. Russia and Putin looked content to be a regional power and a member of the European community, even if only a partial member. However, a lot changed in a decade.


For starters, Putin has been in office for 20 years. There is an arrogance of power that goes along with serving for that many years. Putin has consolidated power and is surrounded by a small number of yes men who do not serve as a check on his ideas.


I have also taught in Lithuania and many other former Soviet republics. What I learned from them is that Russia was always a threat. The U.S. seemed to think that with the end of the Cold War we won and Russia lost and Russia would simply accept the values of the West and join in. I learned from Lithuanian colleagues that the U.S. confused Russian security desires and thoughts of spheres of influence with that of the USSR such that with the latter gone the security threat from Russia would disappear. We were foolish to believe Russia would turn into a stable Western-style democracy. This is the same mistake we made in Afghanistan and Iraq and it all goes back to the arrogance of the U.S. in not understanding cultural differences. This is what Frances FitzGerald wrote about in Fire in the Lake where that book described our mistakes and assumptions about Vietnam.


Russia did not really join the West. Lithuania is now saying I told you so.


The U.S. encouraged Putin’s behavior by complacency. Obama’s pivot to Asia underscored Russia’s threat and Trump’s relationship with Putin also enabled Putin.  While by the time Biden became president much of the die may have been cast, Biden initially did not help in the sense of appearing to appease Russia or indicate what it would not do. After Afghanistan and earlier, when Obama did not act when he gave Syria an ultimatum on chemical weapons, gave Putin reason to think the U.S. would not act here if he went after Ukraine.


I am currently finishing a book written with colleagues from the Lithuanian Military Academy and Mykolas Romeris University. I have taught at both schools. The book looks at European security arrangements at a time when the U.S. may no longer be there or be a reliable partner in protecting Europe. Many in Eastern Europe are skeptical that the U.S. will fight for them if Russia goes further than Ukraine. They argue that the U.S. does not appreciate the threat that the Russian invasion of Ukraine poses to them and Europe and they see what is happening now as a test for U.S. reliability.


Do you hold out hope that there will be legal consequences for Putin at the Hague or in a law setting for his criminal actions? 

The International Court of Justice, which is a court of the United Nations, already issued a preliminary ruling saying that Russia’s military action against Ukraine was illegal and it should stop. That is an important ruling but Russia is disobeying it. Moreover, as a permanent member of the UN Security Council, it can veto a decision by that body seeking enforcement of the ICJ decision.


What role can legal justice play going forward? 

This is a unique case but there are parallels. During the Reagan Administration there was a decision by the ICJ against the U.S. It ruled that its arming of the contras in Nicaragua along with other aggressive action violated international law. Per se it did not deter the U.S.


However, having rulings against a country such as the U.S. or now Russia hurts a state’s standing in international politics. It adds legitimacy to sanctions and other measures to support Ukraine. It takes away legal arguments from Russia and it isolates them.


Putin historically like to use international law as window dressing for actions such as taking Crimea. This makes it harder for him to legitimize his decisions when the international community comes out against him and Russia.


Do you have a sense that the global community will keep legal restrictions on Russia for a period of time, to enforce sanctions, even after, hopefully, the military action subsides?

This is the big question. It is about the resolve of the U.S. and the world to secure short term objectives and then also what the long term goals are. If the short-term objective is end the war and get Russia out of Ukraine, then it may make sense to end some restrictions if Russia complies. If there is a larger longer-term goal to isolate Russia and force behavioral change, it may be a different story.


Does the U.N. have an enforcement mechanism to enforce reparations?

Maybe. The possible reparations may come from assets seized from the Russian Central Bank and other sources. If the war ended today the estimated cost of rebuilding is more than $100 billion. Someone has to pay for this. Even if it makes sense to put Ukraine in the European Union, it should not have to pay for violations of international law by Russia. There is a basic principle here that no one should profit from their own wrongs or escape accountability.


Reparations may make sense but the lesson of reparations from Germany after World War I is that they can backfire and cause other problems. The Russian people should not pay for the choices of the government.


You’ve written that Russia may be attempting to move the global order back to the 19th century. Can international law play a role to prevent this from happening?

International law norms are partially in place because of voluntary compliance. Russia now is challenging the post-World War II order, or even a post-Cold War order, it never accepted. The issue now is how united the world is in enforcing this new order and not allowing backsliding to old-fashioned power politics.


Do you hold out any hope for legal thinkers inside Russia to emerge to restore order? 

News out of Russia right now is hard to secure. I do know via friends that there is significant dissent with the country, including among legal thinkers, about the war and the direction Russia is taking. The sanctions are going to force an internal social and political battle and it will be interesting to see if and when the middle class and oligarchs revolt and how far Putin will go to suppress this.


When the Berlin Wall fell in 1989 one East German guard fired on individuals. The rest refused to shoot fellow Germans. I wonder and fear if that will happen in Russia.


Many Russians have family in Ukraine or vice-versa. I again wonder at what point Russian soldiers lose resolve to fight or kill people who look like them or whom they may be related to.


What are your memories of your time in Ukraine? Did you get to know Kyiv or other cities well?

I taught in Kyiv and Kharkiv. I have friends, colleagues, and former students in both. I have great memories.


In Kyiv I taught at the Taras Shevchenko National University in a gorgeous red building across from a lovely park. I remain in contact with many there. I had a lovely time at the opera house where I saw a show with a colleague. I visited Maidan Square and some museums. I did a program for the US Embassy there.


I taught at Simon Kuznets University in Kharkiv. What I loved about the school was that between classes they played classical music on the intercom. I was in a gorgeous building with stunning stained glass. I visited the performing arts center and toured the wonderful architecture. That city was the Soviet-era capital for Ukraine. I also lectured at Kharkiv University. Former students sent me a video showing the building where I lectured got blown up by the Russians. Other buildings I was in are gone now too. My closest colleague from Simon Kuznets I have not heard from in two weeks. Another person I knew who had a horse farm left with her kids and has fled to Albania leaving other family behind. It was sort of a Sophie’s choice move.


I am in daily contact with people from Ukraine and I miss them and wish I could do more.


I also hear from friends in Belarus and Russia. We want to make sure to stay friends despite what happens in the world.


There is a great line from the end of the movie Casablanca where Rick says to Ilsa: “Ilsa, I’m no good at being noble, but it doesn’t take much to see that the problems of three little people don’t amount to a hill of beans in this crazy world.”


We are trying to make sure that this crazy world does not upset deep and long friendships. But we all fear that each email or call will be the last one.


When a global power becomes a pariah on the world stage, what does history tell us about how legal measures can and should be used to keep a bad actor in a state of reasonable punishment?


Any predictions on how this conflict may resolve itself?

The lessons of history are not good. Often the world reacts to put that actor in place, such as after World War I, World War II, or even further back in time, with Napoleon, but the punishment is generally quite ugly.


Right now we are seeing the greatest test of the post-World War II legal order ever. Will economic sanctions, public opinion, and cyber operations prevail in the enforcement of a new legal regime or will we revert back to a previous era. It may be time to reread two post-World War II books. Humanism and Terror by Maurice Merleau-Ponty and Darkness at Noon by Arthur Koestler. Both capture a moment in time during the Cold War that may have returned.

Sunday, March 20, 2022

 MARCH 18, 2022

This blog originally appeared in Counterpunch.

War, Generations, and Historical Memory

 



Historical memory is fleeting. Quickly we forget the past. This is especially the case when the past truly is the past. By that, those who experienced it are no longer alive and we need to rely upon second-hand memory to learn about it. This is exactly the situation occurring in the world now as the memory of World War II is fading and the Russian invasion of Ukraine is forcing comparisons to it.

Philosopher George Santayana is famous for declaring that “Those who fail to learn the lessons of history are doomed to repeat it.” Similarly philosopher Georg Hegel declared that “The only lesson of history is that we do not learn from history.” These aphorisms speak to the fading of memory as experience of events turn from first-hand to second-hand accounts. Historical memory is generational.

Each new generation comes of age in its adolescence coming to experience some major event or events that form a collective identity. These are the events that those in that generation refer to when they say: “Where were you when?” or they become shorthand markers or referents for emotions or assumptions about the world that influence how they think and perceive the world. There is a generational set of values, grounded in a set of historical memories and experiences.

This generational influence plays itself out 20 or so years later as a previous generation influenced by the experiences of its adolescence exits and is replaced by a new generation now prepared to act on its values formed in its adolescence. Political change in part is driven by generation shifts, with each new generation acting on its first-hand historical memories while forgetting the first-hand political memories of a previous generation.

This is the world we live in now, with so many consequential experiences fading away, lost forever in terms of the immediacy of the lessons learned from them.

At present there are two generations in the US, the Silents born between 1924 and 1944, and the Baby Boomers, born between 1945 and 1960 (or 1964 for some) who grew up in a world defined by many events they experienced first-hand. The list includes the Great Depression, the New Deal, World War II, the Cold War, the Korean War, the 1960s, and the assassinations of the Kennedys and Martin Luther King, Jr. As these generations exit they are replaced by a new generation of Millennials (1982-1996) and GenZ (1997-2010) who lack the direct historical memory of the previous generations. It may even be that they lack a secondary memory of a parent or grandparent who experienced these events.

Why is this generation shift important? Consider for those who lived through the rise of Hitler and World War II. The saw futile efforts by UK Prime Minister Neville Chamberlain to appease Hitler by giving him part of Czechoslovakia and declaring “Peace for our time,” only to see Germany roll into Poland barely a year later. They also experience the bombing of Pearl Harbor, the death and horror of World War II, and the genocide of Jews and others across Europe. These were not distant memories, but facts of their lived experiences.

Now the people who lived all this will soon be gone. Soon we will live in a world where there are no Holocaust survivors, refugees from World War II, or veterans of that war. First-hand memories and experiences of these people will be gone and new generations lacking such experiences will come of age and lead the country. What will the lessons of history be? How much will be lost as Santayana and Hegel foretold?

Generational memory is not limited to the US. Generational shifts are occurring across Europe, including in Russia and Ukraine. Vladimir Putin was born seven years after World War II. He has no direct experience of it and he was barely one-year old when Stalin died. Putin grew up in a world defined by the Cold War, when in his mind the USSR was great and there were clear geopolitical lines that defined the world. He has forgotten the pain of war inflicted on his country by the Nazis and he seems to think that the world he grew up with Ukraine and the former Soviet republics part of Russian empire is how the world out to be today.

But Putin’s generational world is coming to an end. Half if not more of the populations of Russia, Ukraine, and other states in the region grew up after the fall of the Berlin Wall and breakup of the USSR. They have collective memories far different than those of generations passing away. In my nearly 15 years of teaching in Eastern and Central Europe and Russia I have been forecasting that the real generational change would occur when the World War II and Cold War generations pass and are replaced.

The good news is that a new generation has a chance to reinvent the world and Putin might ultimately fail to win against the hands of generational change. The bad news, as we are seeing with the Russian invasion against Ukraine, is that the lessons of history are often forgotten.