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Culture War by Other Means
The cost of sidestepping persuasion and voting
In The New York Times this weekend, there was an excellent reported piece by Megan K. Stack on migrants in El Paso. This is the observation from Stack that stuck with me:
I’ve come to suspect, despite the rancor of our political debates, that the southern border functions more or less the way the United States wants it to function — not that any one of us approves of it wholly, but that it reflects our aggregated desires and the understanding we have of our nation.
The border, I think, is imperfect by design: Porous enough to ensure that some people will inevitably manage to get through, delivering a steady supply of cheap and under-the-table labor. Closed enough to prevent a glut of newcomers. Lenient at times because we are a land of immigrants, but punctuated with attention-grabbing crackdowns to dissuade too many people from trying their luck.
“Not that any one of us approves of it wholly, but that it reflects our aggregated desires and the understanding we have of our nation.”
(I should say at the outset that I’m very grateful for Liz Bruenig’s sustained work reporting on executions and bearing witness. I link several times to her reporting throughout the piece.)
For years, the moral issue of the death penalty has been contested on practical grounds, leaving us with a system worse than a clear victory for either side. While other nations either permit or outlaw executions, America has expressed its mixed feelings by allowing states to attempt executions while hamstringing them on how.
This mess is the result of years of deliberate attempts to chip away at the feasibility of the death penalty. Without a clear path to outlaw executions in Congress or at the Supreme Court, the anti-death-penalty movement has focused on making them impossible to carry out. Activists have targeted the suppliers of lethal drugs, putting pressure on companies to stop selling their drugs to states that will use them to kill, and asking European countries that have banned the death penalty to place export restrictions on the drugs.
They have won a Pyrrhic victory with these tactics. Any veterinarian can put an injured dog to sleep, and several states have authorized doctor-assisted suicide that is intended to provide a predictable, painless death. But for the people we condemn to death, the killings are improvised and slapdash.
Our methods of execution arguably “reflect our aggregated desires and the understanding we have of our nation.” Americans mixed feelings lead to a muddled process, which ends in death after decades of filings, hearings, and questions over technicalities.
I see a parallel between the attempts to target the feasibility, not the legality of executions and the general shift to making policy by relying on administrative rule-making, rather than passing laws.
And there’s another parallel to a “work the refs” tactic I dislike from the pro-life movement:
While the Supreme Court placed direct restrictions on abortion out of reach, some anti-abortion advocates tried to shut down clinics with nakedly pretextual arguments. But it is as impossible to imagine anti-abortion supporters being relieved that an abortion clinic had found the funds to widen its hallways and comply with a TRAP law as it is to imagine anti-death penalty activists being pleased if a state found a reliable, readily available and provably painless way to kill.
There’s a reason death penalty opponents and pro-life activists (sometimes the same people!) adopt these obstructive tactics. They offer the chance to meaningfully disrupt an unjust system, even when other doors are closed.
(I’m prepping this newsletter after tweeting the piece, so I can embed a relevant graph from frequent commenter Martha now instead of in the roundup)
Here’s the core of my rejoinder:
We’re a healthier polity when we contest divisive moral issues as moral issues instead of trying to win a game of regulatory chess. It is better to persuade our neighbors of a moral cause than to ignore them and hope for the favor of nine justices or the rules-making agencies in our ever-growing administrative state.
That’s not very satisfying when persuasion is a long-term project, and almost all policy happens through the administrative state. But I want to focus a lot of my activism and my donations on the work that doesn’t do long-term harm to our polity while addressing short term harms.