The Old South Floods New Orleans

I reposted what I call my "bedtime story" The Civil War Must Be Refought In Every Generation . I wrote in 1996 on an old Brother Word Processor, and I edited it very slightly when I retyped it into Blogger on the day after Election Day 2004.

When I put it up today, I did not re-edit it at all.

I have been thinking about the essay a lot this week, as we look at Hurricane Katrina, and the death of Justice Rehnquist and the related appointment of Justice Roberts, and September 11 and the war that resulted from that attack.

You can read my essay if you like. The one sentence summary is: The South lost the Civil War, and has spent the last 140 years trying to reverse the result.

If you claim, like the modern Conservatives do, that the United States Constitution calls for a limited Federal government, and that the 50 states are still the dominant actors in this post-Civil War, post-Great Depression, post-Civil Rights, post-Cold War, post- 9/11 world, then the response of the Bush Administration to Hurricane Katrina has been entirely appropriate.

The Feds waited for the Governor of Louisiana to fall on her ass, then they waited some more to see if she would regain her footing, then they blamed the City of New Orleans (actually the head of Homeland Security essentially blamed the City of New Orleans for existing). Meanwhile, people are dying, but that is not the main point. And if you don't want government crawling all over you all the time, it can't be the main point.

Then, the Feds finally came in. It stands to reason, by the way, that it took longer for Federal aid to come to New Orleans than to the tsunami victims because it should be harder for the Federal government to go into a soveriegn state like Louisiana than it is for the United States Army to airdrop food into a foreign country. That is the way the conservatives say that the Constitution is written. And maybe it's true.

Once the Feds did arrive in Mississippi Delta, they handled the issue like a Homeland Security issue, since, according to the States Rights analysis, the Federal government is the wrong place to look for social services and flood relief.

No need to play the Blame Game, since the Federal government has done nothing wrong.

Only problem is that even the most conservative of the conservatives admit that at some point or other, fixed or fair, you have to hold an election.

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I think that John Roberts is an excellent choice to replace Rehnquist. He is a bit lost in the 70s, and the political/ intellectual battles of that era, but everybody has to be somewhere. (Easy for me, since I live there too.) Obviously, I would prefer a more liberal justice, but in order to find a Justice more liberal than Roberts, the Democrats have to win an election or two.

A lot of people seem to mourn the fact that Bush gave up the "high ground" of the O'Connor-for-Roberts swap for the more even exchange of Rehnquist-for-Roberts. However, I think that the next appointee has to be a woman/ minority and (a) I am not sure the country is really ready for a woman/ minority to be a Chief Justice and (b) even if it is, a woman/ minority Chief Justice who is as conservative as Clarence Thomas and who has the intellectual heft of Robert Bork (which is what the movement conservatism really wants) just isn't there right now.

The ascension of Antonin Scalia to Chief Justice, by the way, is not the answer for the movement conservative. It has to be a younger person, not simply because you never know when Scalia will die (what if Hillary is President, then?), but anyone with an adult living memory of World War II or Martin Luther King is simply not, in a pinch, going to prove conservative enough for these people. And, by the way, anyone with an adult living memory of being a woman, or a non-Caucasian, is in a pinch, going to fail the movement conservatives as well.

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The Civil War Must Be Refought in Every Generation. One cause of the Civil War was that an activist Supreme Court wrote the Dred Scott decision. One result of the Civil War was the 13th, 14th and 15th Amendments. One result of the 14th Amendment was that an activist Supreme Court wrote the Slaughterhouse Cases, and pushed the 14th Amendment back, in a jurisprudential way, for 85 years.

Some folks who complain that the Supreme Court is too activist (33 years after the appointment of Rehnquist!) don't know their history and aren't interested in learning it. Same folks who complain that the Supreme Court is too activist started to complain that the Supreme Court wasn't activist enough in the Terri Schiavo case.

Some folks who complain that the Supreme Court is not respectful enough of "original intent" don't get that the original intent of the Framers was, in large measure, to protect the interest of slaveholders. The Civil War changed all that. But it can all change back. Maybe it already has.