History Is a Harsh Mistress

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"Their cause must be our cause, too. Because it's not just Negroes, but really it's all of us who must overcome the crippling legacy of bigotry and injustice.

"And we shall overcome."

Lyndon B. Johnson
March 15, 1965

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History is, indeed, a harsh mistress. She beckons to those who will follow her when she deems that a great moment is at hand — but she never mentions that the window of opportunity is slamming shut nor does she identify what it is that must be addressed. She just gives vague nods in a general direction and lets you figure out the rest.

In the context of history, you have only minutes — seconds, really — to act, too. Then that window slams shut, and a new one will open sometime in the future, but history gives no warning until the moment is upon us again.

Nor can you apply what you learned from the last time to the new one — like old generals who are constantly trying to fight the last war and neglecting the things that will enable them to win the current one. "History doesn't repeat itself," Mark Twain cautioned, "but it does rhyme."

Fifty years ago, Lyndon B. Johnson gave what was probably the most inspiring speech of his presidency — his address to Congress advocating passage of the Voting Rights Act. It broke no new legal ground, really. It was designed to enforce what had been the law of the land for nearly a century in the form of the Fourteenth and Fifteenth Amendments to the Constitution. They were part of the Reconstruction Amendments that guaranteed rights of citizenship, particularly the right to vote, to minorities, but, as everyone knew, they had not been enforced in most parts of the South.

The voting rights legislation came at a time when LBJ was, arguably, at the height of his political power, prestige and influence. In the year following John F. Kennedy's assassination, Johnson's approval rating had been at its highest — in the 70s — and no president can sustain those numbers indefinitely, but Johnson was doing pretty well after nearly 18 months in the White House. Just a few months earlier, he had been elected to a full four–year term as president in a landslide of historic proportions, and, as he delivered his speech 50 years ago tonight, his approval rating, according to Gallup, was 68%.

Johnson wanted to do something about the situation, but he wanted to proceed slowly, possibly because he wanted to conserve his political capital — which, in hindsight, might have been a good thing to do. America soon soured on the war in Vietnam, and he needed that capital to keep his approval ratings above 50% — a point he dropped below almost permanently by the middle of 1966.

What Johnson told his allies was that he didn't think Congress would be eager to take on another civil rights measure so soon after passing the Civil Rights Act of 1964. But Johnson embraced the idea and enthusiastically pressed for the bill's passage in Congress.

As it turned out, his support for the Voting Rights Act appears to have had little influence on his approval ratings. He remained above 60% for the rest of 1965 — even managed to hit 70% in May. But, of course, that was still in the future; he was hesitant to move quickly in the early spring of 1965.

Perhaps the populist, liberal wing of the Democrat Party of 1965 knew what both parties seem to have forgotten in the 21st century — that history is a harsh mistress and one must act quickly to satisfy her. I have read that the liberals of the day were eager to capitalize on their sweeping victories in the 1964 elections, and history certainly indicates there was good reason for that. Following the 1964 elections, the Democrats had the greatest congressional majorities — in both chambers — that any party has had since the Republic's early years.

The lesson of history is that, when such extremes are reached, there is usually a correction that occurs, and huge majorities begin to dwindle. It is only possible in hindsight, of course, to determine when critical mass was reached. At the time, though, the temptation to believe that popularity has not peaked must be hard to resist.

In a democracy, political success is fleeting — and, in fact, Johnson's approval ratings did plummet in the second half of his term. The unpopularity of the war had a lot to do with it; likewise, the civil rights movement almost certainly had something to do with it. As his approval ratings fell, so did Democrat majorities in the House and Senate.

There is a steep price to be paid for failing to act quickly enough — or failing to recognize history's call when it comes. It was the populist, liberal wing that pressured Johnson to send a voting rights bill to Capitol Hill. The events on the Edmund Pettus Bridge accelerated the process.

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In my lifelong love affair with history, I have come to appreciate its timing, its ironies. So it is with this moment in history.

Johnson delivered what many believe is the most powerful speech in presidential history only a week and a half after the centennial of Abraham Lincoln's masterful "With malice toward none" second inaugural address. History wasn't repeating itself, but it was rhyming.

Johnson's speech, of course, came a week after "Bloody Sunday" in Selma, Alabama — an event that has been re–created recently in the movie "Selma."

Anyone who thinks little progress has been made in racial relations in this country since Johnson gave his speech hasn't been paying attention. I was quite young when LBJ made that speech, and I wasn't aware of the historic events that were happening around me, but I had been to the single–screen movie theater in my hometown, and I had seen blacks being ushered into a corner of the balcony through a back door, and I knew that blacks were treated differently than whites. The public schools in my hometown didn't integrate until I enrolled in first grade. Mine was the first class in my hometown's history to go all the way from first grade through the twelfth integrated.

Since I wasn't old enough to read in 1965, I can't tell you if public drinking fountains and restrooms were still segregated in my hometown when LBJ made his speech, but if they weren't, they must have been at some time. I grew up in the South. Not the deep South where the worst things were happening, but it was still the South. In my home state, Orval Faubus led an ill–fated attempt to halt the desegregation of Little Rock Central years before George Wallace stood in the schoolhouse door and Bull Connor let loose the police dogs and fire hoses on civil rights activists in Alabama.

In those days, civil rights activists could be heard singing "We Shall Overcome." The phrase had become synonymous with "the movement," as I heard most blacks in my hometown call it, sanctified by the blood that had been spilled by so many. The casualties in Selma were only the latest, but they were the straw that broke the camel's back. Selma was too high profile for Johnson to ignore.

On this occasion, historian William Manchester observed, the president "concluded his speech with a phrase that had become hallowed by the blood and tears of a new generation of black Americans marching for justice. He said that their cause 'must be our cause, too. Because it's not just Negroes, but really it's all of us who must overcome the crippling legacy of bigotry and injustice. And we shall overcome.'

"That was fine liberal eloquence," Manchester wrote, "but at times during the year it appeared to be a doubtful prediction. The eleventh anniversary of the Supreme Court's ruling in Brown v. Board of Education passed on May 17, and racism seemed stronger than ever."

My memory is foggy — I was, after all, a small child at the time — but I remember hearing the black ladies with whom my mother worked on our local Human Relations Council speaking of how great it was that the president had used that phrase.

It was more than symbolic to them.

The Golden Anniversary of Times v. Sullivan

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When I was studying journalism in college, my professors all spoke of the landmark Supreme Court decision in the New York Times v. Sullivan case, and they did in reverent terms. Rightfully so.

Most of us students knew nothing about it — it had all happened before our time — but, within the context of my own experiences since college, I appreciate it more with each passing year. It reaffirms my faith in the First Amendment.

They told us that perhaps no other Supreme Court decision — certainly no modern–era decision — has been more important to the constitutional guarantees of freedom of speech and the press than the one in the Times v. Sullivan case, and they were right.

(Richard Labunski, for one, asserts without hesitation in the Providence (R.I.) Journal that it is the "most important First Amendment case in the nation's history." I'm inclined to agree.)

I teach journalism in the community college system here, and Sunday's 50th anniversary of the Times v. Sullivan decision makes me wish I could teach a class in communications law. I'm not a lawyer, though, which I suppose would prevent me from teaching such a class, but I think I understand that case well enough that I could discuss it with my students. I'm sure it would be a lively conversation.

Maybe it is enough to know that it is possible for me to tell my students so many other things because of the freedoms that decision affirmed and strengthened.

It probably would be helpful to give a little background information.

Nearly four years earlier, in 1960, the New York Times ran a full–page advertisement that had the appearance of an article but was actually an attempt to raise money for Martin Luther King Jr.'s legal defense against perjury charges in Alabama. In modern lingo, I suppose you would call it an advertorial.

At issue wasn't deception but inaccuracy and defamation. The article in the advertisement described actions that had been taken against civil rights activists in Alabama. Some of the descriptions were accurate, some were not — and some involved the police in Montgomery, Ala.

The article in the advertisement incorrectly reported that Alabama's state police had arrested King seven times; in fact, he had been arrested four times. Montgomery's public safety commissioner, L.B. Sullivan, considered the advertisement defamatory (to him because he supervised the police even though he was not mentioned by name) and demanded a retraction (which was a condition, under state law, for a public official to pursue punitive damages; he could do so if no retraction was forthcoming).

The Times refused, and Sullivan filed suit against the Times and four black ministers who were mentioned in the advertisement.

At this point, there were hundreds of millions of dollars' worth of libel actions pending against news outlets covering the civil rights movement in the South, which had kind of a paralyzing effect on many members of the press. The fear of legal action prevented many news organizations from being more aggressive in their coverage of civil rights in the South.

Half a million dollars was awarded to Sullivan by a Montgomery jury, and the Times appealed the decision. The appeal made its way to the Supreme Court, which overturned the decision by a 9–0 vote and, in the process, established the standard of actual malice.

The Alabama law was ruled to be unconstitutional because it had no provisions protecting freedom of speech and freedom of the press, which are required by the First and 14th Amendments. The Court also held that, even if such provisions had been made, the evidence did not support the judgment against the Times.

The Court's ruling imposed a new burden on public officials who are plaintiffs in a libel suit — actual malice. There must be proof that the defendant knowingly published false information or acted with "reckless disregard for the truth."

As Justice Hugo Black wrote, it is hard to prove or disprove malice. Well, it might be easier to prove today, what with the digital paper trail that is left through emails, text messages and the like. I don't know. Undoubtedly, that part of the law will be shaped and refined in the years ahead.

That's how it has worked in the last 50 years. Subsequent decisions and Supreme Court appeals have addressed elements of libel law and actual malice. For example, while the original Supreme Court ruling applied only to public officials, it has been extended to include public figures as well.

And it has had implications that went beyond the working press to include commentary, criticism, even satire as well as the definitions of concepts such as privacy, indecency and obscenity.

For advocates of the First Amendment (which should mean all Americans), the real hero in the decision was Justice William Brennan, who wrote about the critical role a free press plays in keeping the public informed and encouraging open debate. Even "caustic debate" is vital in a democracy, Brennan said.

Inevitably, Brennan observed, inaccurate statements will be made, and incomplete reports will be published in a dynamic democracy. Public debate must be "uninhibited, robust and wide open," and it "may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials." Consequently, "breathing space" must be permitted.

The Supreme Court didn't have to hear the case. It always has the option of refusing to hear a case. But the Justices saw the First and 14th Amendment implications in the case, and the ruling that was issued half a century ago safeguards the "unfettered interchange of ideas" that continues to be defined.

Failure to Lead

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"The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned."

14th Amendment, U.S. Constitution
Section 4

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Yesterday, I was talking on Facebook with a fellow I have known since we were children in Arkansas. He still lives there. I do not.

I have been in the habit, from time to time, of posting links to politically oriented articles on Facebook. If you've been reading this blog regularly, you probably have a good idea what kind of links I've been posting.

My friend is an Obama defender (a rare breed in Arkansas), and I guess he's been feeling a bit put upon lately. (As you may have noticed, many Obama defenders have been on the defensive. Some feel Obama didn't receive enough credit for the mission that took out bin Laden. Others, no doubt, have felt that the debate over the debt ceiling undermined his authority.) He took exception to my posts.

Anyway, he remarked: "We get it. You don't like Obama."

That isn't really true. I don't have anything against the man personally. In fact, in an odd kind of way, I feel about him in much the same way I did about Ronald Reagan — on a personal, not political, level.

On that personal level, I liked Reagan. I rarely agreed with him on the issues, but I liked him personally. And, on that personal level, I like Barack Obama, too. I agree with his positions on issues more than I did Reagan, but I get frustrated at his insistence on not leading.

And I have been frustrated by Obama's supporters, who have frequently accused me of being a racist when the truth is that I have disagreed with the president — or criticized his failure to lead. I challenge anyone to cite a single example where I have said something that was racist.

A presidency is not, contrary to what Karl Rove once suggested, about with whom you would rather share a beer. (OK, maybe some people treat it that way, but I don't.) When I vote in a presidential election, I am not picking a drinking buddy. I am picking the person I want to lead my country in the next four years.

And even if I don't vote for the candidate who wins (and that has happened much too frequently in my life), I still expect the winner to lead. I may not like the direction, but at least I have a clear idea where we're going.

I prefer that to a rudderless ship of state.

Obama appears to want to run for re–election on his terms. He wants to be the outsider he was in 2008, free to criticize policy. But he isn't an outsider anymore. He is an incumbent and, as such, he is part of the process now.

The policies are his.

With outsiders, voters can only rely upon their gut instincts about whether the candidate would have what it takes to lead a nation of more than 300 million people. It is mostly hypothetical.

With incumbents, voters have had many opportunities to see for themselves. It is not hypothetical.

I suppose that, because of Obama's twin messages of hope and change, a majority of voters in 2008 believed he possessed those leadership qualities, that he had a definite idea where he wanted to take America. I never felt that way. I don't know why. It was my gut reaction.

I didn't vote for Obama in 2008 (actually, I voted for Ralph Nader), but if he showed even the slightest inclination toward leadership, I would consider voting for him in 2012. To date, he has not.

And that was the gist of my response to my friend.

I didn't want to say that I think Obama is a likable guy — because that isn't what the presidency is about to me. Obama's likability is not relevant to whether he can do the job.

I think it is important to like the president, but that is secondary to someone who has the courage to stand for what he believes is best for the nation.

"He isn't leading, Paul," I replied.

Paul's response? "I figure it's pretty difficult to lead a bunch of spoiled petulant whiney–assed teabaggers who operate under a 'Scorched Earth' policy. S&P stated that it appeared that the Bush II tax cuts would not expire, therefore no increased revenue. There's only so much that can be cut from a budget."

I replied that Obama could have invoked the Fourteenth Amendment.

When most people speak of the Fourteenth Amendment, they do so in the context of its provisions for citizenship, due process and equal protection, which are important, to be sure, but the amendment also addresses the subject of public debt. It was a little–known provision of the amendment until recently.

Legal scholars disagree over the powers that the amendment gives to the president. Some have said that it gives the president the authority to raise or ignore the debt ceiling and that, if challenged in court, the ruling likely would be in the president's favor — if the court agreed to hear it at all.

Others have said the amendment does not give such power to the chief executive.

In the legal community, it is seen as an unresolved issue.

Seems to me the debt ceiling debate of 2011 would have been a good time to test it — since it has never been tested before. Both sides mentioned during that debate how many times presidents from both parties had sought to raise the debt ceiling.

I figured this would be a good time to settle it — hopefully, once and for all.

But this was Paul's response: "Congress would promptly draw up impreachment papers."

"On what grounds?" I asked.

"They'd think of something," he replied.

Ah, yes, the infamous "they." Nearly every president in my memory — and/or his defenders/supporters — has fallen back on that one, in one way or another. They are always engaged in some kind of conspiracy against the incumbent.

Richard Nixon probably was the best at that claim. He always believed someone was out to get him — which may or may not have been true. But most of his predecessors have come to believe something similar.

I guess it is a natural progression for a president, often isolated in the White House, from the adulation of the campaign trail to a feeling of persecution once in office.

But a president's supporters are not isolated. They're outside the Beltway where they can see the effects of public policy on their friends, neighbors, co–workers (if they still have their jobs).

My friend's recitation of the company line suggests to me that Obama's failure to lead is beginning to wear on his supporters, and that does not augur well for his re–election campaign, no matter how much money he has raised.

I get the sense that Obama's supporters are becoming demoralized

I had to ask my friend, "Is fear of impeachment a valid excuse for a president not to lead?" He didn't reply.

Is leadership really that important? Well, it's definitely a component of job approval, and that, I believe, is a key figure, one that a president who is seeking a second term ignores at his peril. It addresses the general feeling people have about their president — and, with the exception of the brief bounce he experienced after the killing of bin Laden in early May, Obama's approval rating has languished in the 40s almost nonstop for two years.

At a comparable point in his first term, George W. Bush enjoyed approval ratings in the 50s.

President Clinton's approval ratings, like Obama's, were in the 40s in his third year in office. He went on to win a second term, the only Democrat to do so since FDR, so he is something of a motivational figure for this White House — but there were some important differences.

In 1995, Clinton's approval numbers were slowly beginning to move in an upward trajectory — and he achieved it largely because he demonstrated presidential leadership in the face of a Congress in which both chambers were controlled by the opposition party — which was every bit as committed to removing Clinton from office then as it is to removing Obama today.

Clinton, of course, eventually faced impeachment proceedings — which may be the reason my friend is skittish about impeachment, but he needn't be. Democrats hold the majority in the Senate, which would have to convict for the president to be removed from office. Two–thirds of the Senate would have to vote for conviction, and I don't think that is likely to happen with this Senate and this president.

Maybe my friend is concerned about the prospect of the executive branch of government being preoccupied with impeachment proceedings during an election year, and the Clinton experience is fresh in his mind. I suppose that is a legitimate fear — but there is more for Obama to learn from the Clinton presidency.

Clinton knew the importance of leadership. Maybe it was his extensive experience as a state governor, experience that Obama did not bring with him to the West Wing.

Clinton said he would not have hesitated to invoke the 14th Amendment, and I think its application would have shown, at the very least, that this president is engaged, that he is thinking beyond the next election and is concerned with how he can leave the presidency better than he found it.

And sparing future presidents the ordeal to which the debt ceiling debate — and the subsequent lowering of the national credit rating — subjected the White House and the American people is a good way to do that.

Instead, I have heard more and more people lamenting the absence of leadership in this White House. That affects a president's job approval — which will, in turn, affect his vote totals.

I ask again — "Is fear of impeachment a valid excuse for a president not to lead?"

What Might Have Been

I happened to overhear something last week that started me musing.

I was standing in line at the grocery store, and two women were ahead of me. I'm not sure what their relationship was — friends, neighbors, sisters? — but they appeared to be purchasing items for a summer cookout.

Anyway, they were talking about the debt ceiling debate while waiting their turn to check out.

It's such a shame, one said, that the two sides can't put aside their partisan bickering and put the interests of the nation first.

Yes, the other agreed. This would never have happened if Hillary Clinton had been nominated instead of Barack Obama.

The first one nodded. Hillary would have been a better president, she said.

I didn't hear the rest of the conversation. It was their turn to be checked out, and their attention turned to that. I presume the what–if discussion continued after they transferred their groceries to their car and began driving wherever the cookout was going to be held.

But I had started thinking about the proposition, and I am still thinking about it a week later.

If you recall, that was what the race for the 2008 Democratic presidential nomination came to be about — when the only candidates still standing were Clinton and Obama. In the final weeks of the battle for the nomination, it wasn't about the economic collapse (which really didn't occur until after the party conventions) or six–digit monthly job losses. It was about misogyny vs. racism.

This much was certain. The Democratic ticket would be historic. It would be symbolic. But that was about all that was certain as the primary campaign entered the homestretch. Would the nominee be the first black or the first woman?

Racism won out — which, I have heard it said, was the reason why John McCain chose Sarah Palin to be his running mate. He hoped to win the support of disaffected female voters.

I don't know if that is true or not, but, if it is, I suppose that, by the same logic, McCain would have chosen a minority (a black man or, perhaps, an Hispanic) if Hillary had been the nominee.

That's speculation, of course — a little gentle musing — just as it is speculation, at this time, knowing what we know in 2011 that none of us knew in 2008, to suggest that someone else would have done better than the president who was elected.

We'll never know, of course, because Hillary and John Edwards — and all but one of the others who sought the '08 Democratic nomination — didn't win the prize. Obama did.

Yet, it does become progressively more difficult to rationalize what has happened during this presidency — and, as it does become more difficult, I guess it is only natural to think of the paths that were not taken.

A different president might have faced different conditions by this time, but the conditions upon entering the presidency would have been the same for anyone — and a different president might still have called for some sort of economic stimulus.

There was a lot of pressure at the time for the new president to do something to give the economy a boost, and I think it is reasonable to assume that the new president would have pressed for a stimulus package. The amounts and priorities probably would have been different under different presidents, and it is a matter of speculation how those differences might have affected the economy of 2011.

As I have written here before, I was a supporter of Edwards early in the campaign. Given the revelations about him that have surfaced in recent years, it is hard not to imagine him being a weak chief executive at this point in his term.

I don't know what kind of stimulus package he might have pressed for, or what kind of bargains he might have been willing to make to get them — but, considering the kind of information about his private life that he almost certainly would have wanted to keep from the voters, I can't help thinking he would have been vulnerable to considerable manipulation in office.

Hillary would have been a different matter. Her life had been an open book in America for more than 15 years (and in Arkansas for more than a decade before that). She had been first lady for eight years. She didn't need to introduce herself to the American public.

Maybe what she would have needed to do in the general election campaign is re–introduce herself to the public — as a potential president.

One of the concerns about Hillary's candidacy that I heard expressed time and time again in 2008 was the suggestion that electing Clinton would mean that, from 1988 through (presumably) 2012 (at least), the United States would be governed by two dynasties, the Bushes and the Clintons. It was time for a break from the two families that had been running the country for the last two decades, I heard Hillary's critics say.

I suppose that Hillary would have had to constantly reassure voters that she, not her husband, would be setting policy.

And there was a segment of the electorate that was worried about former President Clinton being on the loose in the White House with no responsibilities, free to approach any intern in the West Wing at any time.

Issues about being the first woman president might have come up as well, but my memory of the 2008 campaign is that little was said about Obama's race. Most of the attention was on the economic disaster. Perhaps the gender issue wouldn't have been raised.

One thing that seems sure to be mentioned, at some point, is the squabble over the debt ceiling limit that appears to be the main reason why S&P lowered the U.S. credit rating from AAA to AA+.

Some people have mentioned the 14th Amendment and asserted that Obama should have invoked it to end the impasse, thus avoiding the impression that S&P got that Americans have allowed their politics to run wild, creating an unstable economic environment.

Perhaps they have, but that is the kind of thing a leader is supposed to prevent from happening. And a lot of people think Obama could have done that by invoking the 14th Amendment — which most people may remember for being the post–Civil War amendment that overruled the Dred Scott decision on citizenship, but, in fact, it also stated that the public debt, duly authorized by Congress, "shall not be questioned."

Legal experts disagree over the powers that clause gives a president. There are those who felt a demonstration of firm presidential leadership was what was called for while others contend that anything Obama did would have been overturned as unconstitutional.

Although he taught constitutional law before being elected to the U.S. Senate, Obama appears to be in the latter camp, convinced that the issue is resolved — although it really isn't.

Bill Clinton, on the other hand, said he wouldn't hesitate to use it — and, if a similar debt ceiling debate had occurred in a Hillary Clinton presidency, one can logically assume that he would have urged her to do so as well.

Obama could have helped better define the role of the president by invoking the 14th Amendment, as well as possibly sparing the nation the first decline in its credit rating history. Eventually, it might all have been overturned by the courts, but there is nothing, beyond some legal opinions, to suggest that is absolutely what would have happened.

If nothing else, Obama might have shaped the rules for the next debate on the debt ceiling, possibly saving himself or his successor another long, destructive legislative battle in the near future.

Sometimes presidents must be creative, must think outside the box.

They must be leaders.