interesting times

The American System Is Already Failing

Former special counsel Robert Mueller testifies before the House Intelligence Committee on July 24, 2019. Photo: Salwan Georges/The Washington Post/Getty Images

The Mueller hearings told us almost nothing that we didn’t know already. We knew that the president welcomed assistance from a foreign power in order to win an election, and has fawned over his political patron in this endeavor, Vladimir Putin, since he became president. We knew that though he was not competent enough to construct a conspiracy, he was eager to collude with a foreign foe to defeat his domestic one. And we knew that he then lied about it as baldly as he lies about almost everything, and tried repeatedly to obstruct the investigation into the affair. His attorney general then blatantly lied about the key conclusions of the Mueller report, distorting the public debate for weeks as he kept the contents under wraps, and then bet that Americans, with our gnat-like attention spans, would simply move on.

We also knew that in contemporary America, none of these facts matter in the slightest. The notion that the average citizen should care deeply about the rule of law and constitutional norms — and even actively defend them — has become terribly passé. Now, all that truly matters is whether we are entertained by someone who can command televisual excitement the way Trump does on a daily, hourly basis. If he can’t, whatever the underlying facts, no one gives a damn.

American political elites are no better. The president’s assault on the Constitution has merely revealed the Democratic Party as the lame farce we knew it was. Its ancient, pusillanimous congressional leadership was never going to do what duty, rather than politics, requires. The Speaker of the House Nancy Pelosi, moreover, has set an extraordinary precedent: that clear evidence, meticulously collected, that a president has committed what she calls “crimes against the Constitution” does not constitute sufficient grounds for impeachment, even when those crimes were designed to cover up an alliance with a foreign power. If more than that is needed, the impeachment power has effectively been nullified.

On Wednesday, Pelosi spent the early evening quashing any impeachment talk among Democratic leaders, and then, as if she were a Fox News parody of aloof Washington elitism, attended a cocktail party hosted by her chief fangirl, Maureen Dowd, in Georgetown no less.

The Democratic candidates for president are, for the most part, no better. Biden, who is beginning to resemble the somewhat out-of-it Robert Mueller, backs Pelosi’s lameness, and says he doesn’t think anyone expected Trump to turn out as badly as he has, revealing just how clueless and smug the Democrats really were in 2016. He openly admits he hasn’t even read the Mueller report in its damning entirety, showing just how minor he thinks Trump’s transgressions are. Those candidates far more aggressive toward Trump, meanwhile, have crippled themselves preemptively, by backing policies massively unpopular with most Americans: decriminalizing illegal border crossing, offering free health care to migrant noncitizens before actual Americans, and throwing everyone off their current private health insurance, whether they like it or not.

And the rank and file is as reckless as the leadership is feckless. Indulging their woke fantasies, they have advanced a policy agenda that would win Brooklyn in a landslide but is not quite so popular, let us say, in all of the Electoral College states a Democratic presidential nominee actually needs to win back the presidency. The most visible leaders of the activist left — “the Squad” — have mastered the art of getting attention, especially through social media, broken through the defensive crouch of the past, and created a truly dynamic minority female presence in the Congress … but then they’ve used that to push policies that would require a quantum leap to the far left in the middle of the country. It’s as if we have to choose between craven cowards who have a grip on how to win the House and refreshing radicals who know how to lose it.

The Republicans, meanwhile, are quite simply a cult behind a lawless wannabe strongman, led by cable news conspiracy theorists. Cults guarantee total unanimity, expel dissenters, and seal themselves off from outside information — and the GOP now does all three. That’s why the only actual conservatives left in the Congress, like Justin Amash, have had to leave the party to make their case.

And watching today’s Trump party on Wednesday further turn Robert Mueller, an old-school law-and-order Republican, into a stooge for the Democrats, revealed just how deep the cult has gone. They mocked and scoffed at a war hero and honorable public servant in order to defend a draft-dodging liar and corporate fraud. For every through line of fact, they concocted an equal and opposite farrago of fantasy. The truly chilling thing about the hearings, however, is that the Republicans were obviously not trying to persuade the wider public; they were each vying to ingratiate themselves with one audience alone: their dear leader. This is how parties behave in authoritarian states, not liberal democratic ones.

The president, of course, is a shameless liar who can declare, as he did this week without any widespread outrage, that Article II of the Constitution allows him to do “whatever I want,” including ending any possible investigation into his own crimes. He has an attorney general who shares this view of executive power, and he has compiled a massive bench of new judges and justices who hold one belief in common: that the Executive branch has legal and constitutional impunity.

This isn’t entirely new. The invocation of a “unitary executive” gave George W. Bush the right to break any law, even those prohibiting torture. Now, Customs and Border Protection feels itself empowered to detain an American citizen as an undocumented immigrant, subjecting one Francisco Erwin Galicia to 23 days of squalid imprisonment, no showers allowed, despite having his birth certificate. During his illegal detention, he lost 26 pounds because he was effectively starved by his own government. In what other democratic country can a chief executive do this to a citizen? And yet it is very likely that no one will be prosecuted or fired for what was, in effect, a suspension of habeas corpus combined with grotesque mistreatment. One precedent for law-breaking leads to another. And all the victims of this abuse just happen to be non-white.

The awful truth is that the American constitutional system is failing on almost every level. The system, it turns out, is not even strong enough to withstand one Trump term, let alone two. Trump intuited this in 2016, and if he wins reelection, as he now has a good chance of doing, what’s left of liberal democracy will be under acute duress.

The “extinction-level event” that I feared in the spring of 2016 is already here. Look around you. And it wasn’t even a fight.

Gender Identity Laws Need More Nuance

If Jessica Yaniv did not exist, the religious right and Fox News would have to invent her. Yaniv is a trans woman in Canada who has been suing multiple businesses for abuse of her human rights under British Columbia’s laws. She booked various appointments online with local female-only beauticians to get a Brazilian wax, and was refused when she showed up. The reason is that Yaniv has male genitalia.

Many of the beauticians worked out of their own homes with children present, most were immigrant women, one with Sikh religious strictures against touching male genitals other than her husband’s. The notion that women can have male genitalia hadn’t dawned on these obvious bigots when they decided to open up beauty shops, and they felt humiliated and exploited by the request. The cases have not yet been decided, but the women are already feeling the repercussions on both a personal and professional level. A lawyer representing some of the women says that one has been unable to sleep for months, racked with depression and anxiety: she eventually closed down her business; others think they might follow suit soon. And even if the cases don’t succeed, and their businesses stay open, the stigma of being associated with bigotry will linger.

In Ricky Gervais’s words: “How did we get to the point where women are having to fight for the right to choose whether they wax some big old hairy cock and balls or not? It is not a human right to have your meat and 2 veg polished.” But, according to British Columbia’s definition of human rights, it is, if you are a woman. Female-only salons have to accept every woman, including those with balls. And according to the proposed Equality Act, the gay lobby’s chief legislative goal, backed by every Democratic candidate, it would be a human right in America as well. Yaniv has described the beauticians’ refusals as “hate crimes.” And technically, they might be.

The case, of course, is a very, very rare one in its grotesquerie. Yaniv is an obviously somewhat disturbed troll. She has allegedly made creepy overtures to underage girls online, has been cited by a 14-year-old for alleged “child exploitation,” and she is now applying for a permit to host a topless swimming-pool party for “LGBTQ2S” individuals, 12 and above, without their parents being present. She has long seemed obsessed with tampons, says she has heavy periods, has publicly inveighed against immigrants, and has exulted when she has forced businesses to close down. She’s an extreme outlier in many ways — and terrible PR for other trans people who are not seeking this kind of pointless, offensive conflict. No serious trans groups support her. They rightly see her as a threat to the trans movement, confirming the worst allegations against trans people made by the hard right. Largely ignored by the mainstream American press, she has even inspired a hashtag worthy of Eric Cartman: #waxmyballs.

The trouble is, the way this issue is currently being understood, it’s hard to think of how you prevent trolls or fanatics like Yaniv from gaming the system. If your gender is determined entirely by self-definition, needs no further support or evidence, and always trumps genital biology, it’s a legal regime ripe for abuse. The current insistence that a trans woman is a woman in every single respect also ends in the absurdity of talking about a woman’s scrotum. It should be possible to defend trans women and trans men from discrimination without being forced into a surreal world, where a penis is a female organ and a vagina is a male one.

The truth is that trans people have the body of one sex and the mind and psyche of another. The mind is a much more central part of human identity than the genitals, and that is what ultimately should determine gender. But respecting this — and those who form this part of humanity — need not deny the physiological reality that trans women are not women in every single way. Trans women should be treated as women, but not conflated entirely with them. If they were simply women, in the brain and in the body, they would not be trans, would they?

I’m not sure how you quite pull this off, but subsuming sex into gender, making gender entirely a subjective choice for anyone, and placing this understanding of human sex into core civil-rights law is what makes Yaniv’s case possible. More nuanced laws that define gender identity as something more than mere subjectivity, protects trans people from discrimination, but allows for exceptions in nonmedical physically intimate interactions, seems a pretty good compromise. Imposing a very new ideology by force of law, rather than making pragmatic adjustments that will actually help the vast majority of trans people, is rife with unintended consequences.

If Yaniv’s case helps us recognize that, it may yet turn out for the good.

Give Boris a Chance

The overwhelming American response to the emergence of Boris Johnson as British prime minister is that he is a disaster waiting to happen: clueless, incompetent, cynical, deceptive, and lazy — a British Trump. In my judgment, this is far too premature. He’s a very sharp man, deeply ambitious, and deserves a chance to prove himself. And in the two days since he went to the queen and became Britain’s leader, he has seized the initiative with familiar élan. His stance is clear: The British people voted to leave the European Union in 2016, and the Parliament has a democratic responsibility to enact their will. That means that Britain will leave on Halloween of this year, deal or no deal. The alternative is to turn British democracy into a joke.

He has backed this up with a new Cabinet whose members unanimously support a no-deal Brexit if that’s what it takes. But he has also signaled some liberal Toryism by assembling the most ethnically diverse cabinet in British history. Boris’s No. 2 is Sajid Javid, from a Muslim family; Priti Patel, from an Indian immigrant family, is home secretary, another one of the big four posts; Munira Mirza, from a Pakistani family, will head the policy unit at No. 10; Indian-born Alok Sharma will be in charge of international development; the Sierra Leonean–British James Cleverly is a minister without portfolio. All of these members of ethnic minorities say their first inspiration in politics was Margaret Thatcher. Johnson also announced that he would guarantee all 3.2 million E.U. citizens working in the U.K. an unqualified right to stay indefinitely, grant amnesty to 50,000 more undocumented migrants, and rule out bringing immigration down to below 100,000 a year. This mix of “one nation” Toryism and hard-line Euro-skepticism has temporarily outfooted his enemies.

And in his Commons’ debut as prime minister yesterday, he seriously rocked the House. Deploying all his rhetorical skills, he laid waste to a somewhat bewildered opposition, wrapped himself in Churchillian patriotism, predicted a new golden age for the United Kingdom, and declared himself supremely optimistic, casting the opposition as negative naysayers. He also delighted in exposing Labour leader Jeremy Corbyn’s latest shift of position in favor of voting for Remain in a second referendum. This is classic Boris:

I have to say that a most extraordinary thing has just happened today. Did anybody notice? Did anybody notice the terrible metamorphosis that took place, like the final scene of Invasion of the Bodysnatchers? At last, [Jeremy Corbyn], this longstanding Eurosceptic, the right honourable gentleman, has been captured. He has been jugulated, he has been reprogrammed by his honourable friends. He has been turned now into a remainer! Of all the flip-flops that he has performed in his tergiversating career, that is the one for which I think he will pay the highest price. It is this party now, this government, who are clearly on the side of democracy in this country.

Brutal. Also: “jugulated,” “tergiversating”! Johnson then openly stole Labour’s 2017 campaign slogan: “For the many, Not the few.” “The reality now is that we are the party of the people,” he said. “We are the party of the many, and they are the party of the few. We will take this country forwards; they, Mr. Speaker, would take it backwards.” The power of the blows he landed were amplified by huge cheers and support from the Tory backbenchers, who had remained notably quiescent whenever Theresa May was at the despatch box.

Yes, it’s true that Johnson couldn’t answer any of the key questions: What happens to the Irish border in a no-deal scenario? What chance is there of the E.U. revising its ultimatum that Theresa May’s deal was the only option on the table? How are you going to get a no-deal Brexit out of the Commons? At times, it seemed as if he was prepping less to exit the E.U. than to win an autumn general election to get Parliament to fall in line.

But it’s also perfectly clear that, in Johnson’s view, the Commons will not be able to reverse a no-deal Brexit through mere parliamentary motions of the House’s collective view. The new Leader of the House of Commons, Jacob Rees-Mogg, insisted that Parliament had already passed Article 50, and only formal legislation revoking that could stop the U.K. from leaving on October 31. No such legislation could command a majority. Yesterday, the opposition ranks seemed almost dazed in response.

Here’s one scenario: Johnson calls an early election, portraying Labour as traitors to democracy, way too left, too persnickety, too negative, and far too pessimistic. He wins, and uses his majority to try and strike a new deal with the E.U. Here’s another: Johnson pulls off a no-deal Brexit, the economic impact is not as dire as most have feared, and he becomes a national hero, if only for putting an end to the endless nerve-racking limbo. And another: Johnson is stymied by Parliament, the E.U., and the Irish government, loses a vote of no confidence, loses the election and, with the Tory party in ruins, the U.K. remains in the E.U., led by the most left-wing government in Britain’s history.

My bet is on the first two. We’ll see soon enough. But this was a very strong debut. It was Churchill minus the brutal realism that Winston brought to the House in 1940. Which may be exactly what the British public wants, after years of indecision and deadlock and depression. It’s clear leadership of a kind we haven’t seen in a very long time. And the thing about leadership is that it can make things that previously seemed impossible reachable after all.

See you next Friday.

Andrew Sullivan: The American System Is Already Failing