To be attacked by a Gore Vidal, or an H.L. Mencken, one of the great wordsmiths of American criticism, while surely unpleasant, must have been oddly exhilarating for the poor souls on the receiving end. I, on the other hand, have the more dubious and prosaic distinction of being a regular target of Ian Millhiser.
So you’ve never heard of Ian Millhiser. You’ve never seen him. But you only think you haven’t. You have.
Ever met someone who’s dying to let you and the rest of the world know he holds all the approved opinions? Then you have met Ian Millhiser.
In every hysterical reaction to dissident voices – i.e., voices that (gasp!) differ from both Barack Obama and Mitt Romney! – you have seen him.
You have seen Ian in every social climber who would die a thousand deaths before entertaining an unconventional thought.
In literature and television we have the stock character: the absent-minded professor, the stuck-up cheerleader, the backwoods yokel. Millhiser, too, is a stock character. He is the thought controller: impatient with diversity, predictable, establishment, banal, humorless.
Millhiser typically insinuates that people who disagree with him strongly, like me, are probably indifferent to or even privately supportive of slavery. Slavery. But consider this: abolitionist political parties were lucky to receive two percent of the vote. How likely is it that someone desperate to hold approved, establishment-friendly opinions would have been – of all things! – an abolitionist?
Ian has no scholarly accomplishments I can uncover – no peer-reviewed articles, no books from major scholarly publishers, indeed no books from any publisher at all. That in itself doesn’t make Ian a bad guy, of course. But it’s kind of funny that the entire Millhiser corpus of panicked articles about the takeover of the United States by unlettered rubes is composed by someone of no scholarly distinction whatever.
Once or twice a year I reply to another one of Ian’s pieces. They’re all pretty much the same: uncomprehending analysis, stern rebukes of dissidents, and stolid, sledgehammer prose without elegance or nuance. He is a self-parody, the epitome of the hectoring, p.c. automaton.
Millhiser pretends my replies to him do not exist. He continues to make the same inane arguments, in the full confidence – alas, probably justified – that his limited audience has not read my refutations. In fact, he refuses to quote anything I have written in the past 15 years.
That’s about what one can expect from ThinkProgress and the other left-wing thought-control sites that monitor and censure unapproved thoughts.
My Nullification FAQ was largely inspired by Millhiser, who raises the same long-exploded arguments again and again, no matter how many times I refute them. I finally decided to write up a FAQ and leave it at that. You will not be surprised to learn that Millhiser pretends the FAQ does not exist.
I have written a whole book about nullification of unconstitutional federal laws. Millhiser has attacked and smeared me for years without once quoting from that book, or from anything I have written on the topic. In my book I included many primary documents, in part so readers wouldn’t have to take my word for things, and in part to make it harder for the world’s Millhisers to erase them from history.
His latest is an interview at AlterNet, with editor Joshua Holland, called “American Right-Wingers Are No Longer Conservative – They’re Extremists.” Oooh! Well, we can’t have that!
Extremist is one of the commissar’s favorite words. Nothing gets under the thought controller’s skin more than an uppity peon who thinks there might be more to political philosophy than John Kerry and Mitch McConnell. Be satisfied with the range of debate we allow you, citizen. Any opinion a reasonable person might want to hold can be found in that yawning chasm that separates these two men. You have an opinion that differs from both of them, you say? Why, you’re an extremist.
Millhiser and Holland are appalled at conservatives’ lack of respect for “long-standing precedent” and “venerable tradition.” (These would make excellent rebukes of Socrates and Copernicus, I note in passing.)
Falsehoods and abuses, we are to believe, become truths and virtues if perpetrated long enough. And for heaven’s sake, venerable tradition? Is this what AlterNet, which advocates social policy that would have horrified even the left-liberals of two generations ago, is now pretending to favor?
Of course, Millhiser does not care one whit about “precedent” and “tradition,” else he would be writing articles about the risible jurisprudence of the New Deal Court and its transparently political departures from longstanding precedent. What Millhiser cares about are nationalism and government power, just like the neoconservatives he pretends to oppose. Law school taught him the nationalist theory of the Union, and he is going to defend this preposterous notion come what may.
So in the interview we are treated to the following analysis. Some Tea Party groups are attempting to resist government power in unapproved ways. Some of them even think the states can nullify unconstitutional laws. This makes them reactionaries. If they were real conservatives, they would roll over and die like the good losers left-liberals expect them to be.
According to Millhiser, these conservatives supposedly have a faulty understanding of the Tenth Amendment:
About four years ago, you started to hear these weird noises about how things violate the 10th Amendment. And not just, you know, the Affordable Care Act – that’s when they made this argument over and over again – but it was also people claiming that Medicare violates the 10th Amendment. Social Security violates the 10th Amendment. And what I started to hear at these Tea Party rallies that were popping up is speakers got up and they were saying things that very closely resembled this discredited constitutional theory that existed about 100 years ago. At the time, it led to child-labor laws getting struck down, it allowed pretty much any law protecting unions getting struck down, that led to minimum wage getting struck down – all of these essential worker protections getting struck down…. And while we were asleep at the switch, they were writing books and they were educating their partisans about how awesome it would be if we had this crazy theory of the 10th Amendment, and then I guess we wouldn’t have to be stuck with these terrible child-labor laws anymore.
As usual with Millhiser, it is enough for him simply to point out his opponents’ view; he need not trouble himself to refute it. So we never actually learn why these people are wrong to read the Tenth Amendment the way they do, apart from the fact that this reading makes Ian Millhiser unhappy. Theirs is a “discredited constitutional theory.” Discredited by what? By anything relevant?
The modern consensus of law professors, to which Millhiser would undoubtedly point, does not count. There is no room in republican theory for it. The ratifying conventions, according to James Madison, are where we look for our understanding of the Constitution. Even before the Tenth Amendment codified the principle, we find one ratifying convention after another saying that the federal government had only the powers “expressly delegated” to it. This was the basis on which the Constitution was ratified. At Virginia’s ratifying convention, skeptics of the Constitution were even told that if the federal government took one step beyond the expressly delegated powers to impose “any supplementary condition” upon the states, Virginia would be “exonerated.”
So it turns out that the crazy reactionaries Millhiser is at pains to demonize have some pretty good arguments on their side. I have never – as in not even once – seen Millhiser acknowledge these, or even so much as hint that he might understand or be aware of them.
Now let’s pause for some resources addressing Millhiser’s predictably conventional views of the many topics he covers in the passage above.
For the real story about child labor – which was not a matter of selfless crusaders for justice heroically rescuing oppressed children from factories and mines, contrary to what Millhiser learned in third grade – see Bill Kauffman’s essay “The Child Labor Amendment Debate of the 1920s.” For the economics of child labor, see the relevant portion of this talk of mine.
On working conditions and the free market, the best analysis is George Reisman’s.
On wages – and contrary to Millhiser’s view that wages are arbitrary and can without harm be raised by the political authority – see the beginning portion of this talk of mine.
On labor unions, American law has always protected them as long as they have not been using coercion. The assault on labor law that Millhiser refers to exists only in his imagination. With few exceptions (and those exceptions strengthened rather than weakened unions), exactly the same legal principles governed labor from the time of People v. Fisher (1835) through the 1920s. (I tell the whole story in question 30 of my book 33 Questions About American History You’re Not Supposed to Ask.)
(Social Security and Medicare are a longer story, but it’s interesting that Millhiser doesn’t think it worth mentioning that the present value of the underfunding of these programs – in other words, the amount of money that would be necessary to invest today, right now, to make it possible for everyone to receive what he is owed – is $222 trillion.)
Millhiser’s interviewer then says:
Reactionaries have really floated this idea that the states can just nullify any federal law that they don’t like, based on the 10th Amendment.
Um, wasn’t that something that we settled with the Civil War?
The doctrine of nullification deals with unconstitutional laws, not “any federal law that [the states] don’t like,” though I see nothing wrong with the latter idea, either. But I love the “Um” that begins the next sentence, don’t you? As in, “These rubes are so stupid, I can’t believe I have to tell them that this is like, you know, 2013!”
For a reply to the morally despicable “wasn’t this settled by the Civil War” argument, see myNullification FAQ.
To my surprise, though, Millhiser makes this concession – a pretty lame one, but a big step for a thought controller:
So there’s one group of sheriffs that has said that they will actively thwart the enforcement of federal law [on issues related to guns]. So if the FBI agent shows up trying to enforce federal law, they will stand in that agent’s way and try to prevent them from enforcing federal law, and that’s unconstitutional. That’s a form of Nullification.
There are other sheriffs who are saying that they will not enforce the federal law themselves, but if the feds show up, they won’t stop them. And that second thing is wrong, because in many cases these are good laws. And in the case of Colorado, where it’s a Colorado state law, they probably have an obligation to enforce the state law, and I think it’s a mistake if you tell your sheriffs that they’re allowed to decide, on their own, which state laws they want to comply with.
But, you know, I think that there is a broader principal [sic], you know, with respect to these sheriffs who are just saying, “You know, if the feds want to show up and enforce federal law, that’s cool. We just won’t help them.” I don’t agree with their decision. But I think that’s less troubling, and I think that part of the reason why I take that position that there’s a similar battle going on right now over marijuana laws, where in states like Washington and Colorado, where marijuana is legal, I don’t want to see state officials enforcing the federal marijuana laws. If the federal government wants to send DEA agents in there to enforce these laws, they have the right to do that. But, you know, at least as a constitutional matter, that is an area where the state and the federal governments are separate.
Can you make sense of that? “I don’t agree with their decision,” Millhiser says about sheriffs who won’t assist federal agents in enforcing new gun regulations. But then he says, “I don’t want to see state officials enforcing the federal marijuana laws.” And then he says the federal government has the right to send DEA agents into Colorado and Washington to enforce the federal drug laws.
And he thinks nullification is incoherent?
Yes, I’m sure he could explain himself. He likes the gun laws but not the drug laws, so I guess the new rule would be that state officials should enforce only the federal laws Ian Millhiser likes, although all these laws – just or unjust, constitutional or not – may in Millhiser’s view be enforced by federal goons, who “have the right to do that.” Until our great, final arbiter, the glorious Supreme Court of the United States, says otherwise, we are to sit around and wait.
Well, not just wait. We can write articles about how nice it would be if federal agents would stop enforcing bad laws, and in these same articles make clear that they have every right to enforce those bad laws. Meanwhile, we can demonize people who might not want to wait 200 years to see results.
That sounds like a super strategy.