In the last few months I’ve had several fairly drawn-out conversations about federalism with some friends. I have taken the position that it is essentially anachronistic – a relic of the political compromises necessary to construct a union in the 18th century. That isn’t necessary a critique of federalism writ large; I am actually somewhat torn on whether it was a useful compromise in its context. On the one hand, I think there is a wonderful beauty to the Madisonian system, and it’s possible that the US would never have risen nearly as high or survived at all if they had adopted a more centralized government. On the other, federalism in its 18th and 19th century form was more than anything else a mechanism for the preservation of slavery. And it is not difficult to argue that the true boom in this country corresponds roughly with the post Civil War restructuring that massively boosted the power of the national government.

All that aside, I really see very little value in federalism in the 21st century. The post-modern form of politics requires ever-expanding zones of coverage to really work. As a result of federalism (and the broad sweep of checks and balances in general) we’ve got a system strong on veto points but weak on actual capacity to deal with the fast-moving crises that define the modern world.

Note that I don’t mean to denigrate localism as such. Clearly, it makes very little sense to expect Congress or the President to make local bond decisions for every little town in the country. I would be perfectly happy to support a system that retains a great deal of local control over most matters (and maybe even cedes a bit more local control), but which does so via delegation. That is: the national government lets most things run on their own, but when there is a conflict, the national side wins.

The arguments in favor federalism seem to fall into a couple general categories. 1) States are meaningful political/social entities that deserve their own sovereignty. 2) States are laboratories of democracy, which let us experiment. 3) There is value in checks and balances. Taking these on one by one:

1) While this was certainly true in the 18th century, it is far less true now. People are far more transitory these days, politics is far more nationalized, etc. States are actually a very weird entity these days – big enough that they aren’t really that ‘close’ but small enough that almost everyone in the country could drive for a few hours and cross into another state. This possibility of travel and movement also puts states in an awkward border space. If movement was genuinely free, states would matter again a LOT, because everyone could simply ‘vote with their feet’ and go somewhere else. However, while movement is much more free than 200 years ago, people are also still fairly closely tied to their location, particularly the poor.

2) There is certainly some force to the ‘laboratories of democracy’ argument, but I think it is also far less compelling than it once was. As politics is increasingly nationalized, there is far less room for this style of experimental democracy. On any issue that rises to national scrutiny, the vast majority of people will determine their position based on their national alignment. On far less politicized issues, there may well be some willingness to see what others do and adopt successful approaches. However, these are precisely the sorts of things that a governmental structure organized around delegation rather than federalism are most likely to still allow. If there is no macro-level fight, localities will often be free to experiment without national interference.

3) Checks and balances. This is the crux of the debate. I won’t really develop the point too much here, but I generally think that while there is of course some value in checks and balances, treating this as an intrinsic political good is thoroughly anachronistic. That is: checks and balances must serve specific and useful purposes, not be taken as a good in and of themselves. Our Constitution was written to replace the weak and crumbling Articles of Confederation, which lacked the power to achieve its national goals. While the 21st century Constitution is not in quite so dire straits, the analogy is a useful one.

Communication technology, speed of travel, growth of global trade, global war, global business…these things are problems on a scale that individual states simply cannot solve.

I don’t mean by any of this to deny that there are specific cases where state sovereignty produces clear positive results. I am very happy, for example, that at least a few states permit gay marriage. I love that California pushes beyond federal emissions standards. And so on. I just think that on balance, these positive results need to be weighed against the serious negatives.

In part III, which will probably be up tomorrow, I’ll return to gay marriage and federalism in particular.

Q1: if you could restructure our constitutional system slightly, so as to remove the decision over gay marriage from the states and place it solely in the hands of the national government, would you do so?

Q2: what are your feelings about Obama’s claim that he personally believes gay marriage should be allowed, but that each individual state ought to make the decision for itself?

Obviously, I’m poking at something here—my guess is that there are a fair amount of people who would give a firm ‘no’ to the first question, while simultaneously being annoyed with Obama for stating much the same thing—but I really am not trying to frame this as a ‘gotcha.’ For one thing, there are clearly some different elements at stake in the two questions. One is strategic and the other is more about what is ‘right.’

In fact many people likely feel that precisely because there is basically zero chance of gay marriage actually falling into the hands of the national government (or rather: in the hands of the political branches), Obama ought to take the principled stand and just say ‘it’s a right and ought to be protected.’ And that’s perfectly reasonable.

Still, I think there is something strange about this. Folks seem to want the benefits of federalism (going slow acculturates people to the idea, demonstrates that it causes no catastrophe, preserves enclaves of rights when the nation as a whole might not protect them) without having to admit that this is really what they’re up to. Again, I don’t say this in an accusatory fashion. This is precisely the sort of very-light hypocrisy that really doesn’t bother me. I’m just interested in what it says about federalism and gay rights in the broader sense.

I will elaborate in post #2 on this subject, coming soon…

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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