What does the "Rule of Law" mean?

People who defend the President in cases like this need to be aware that 1) it's dangerous for the Executive to be empowered to skirt existing laws, and 2) It is the Juciary's job to decide what is or is not legal. Letting the Justice department decide whether or not to investigate its own actions allows the Executive branch be judge, jury, and executioner which leads to an abuse of power and the persecution of those who stand in the way, which is a lesson Mr. Tamm is learning first hand.

The Administration and the GOP like to harangue the public with calls for "The Rule of Law" but the case of Mr. Tamm shows that what they really mean is, "The Rule of Law (but only the ones we like)". How else can you explain Bush's proclivity for signing statements? Their stance on torture? Their willingness to hold Bosnian's when the Bosnian Supreme Court and head procecutor agree that there is no evidence against them?

The Commerce Clause

Part Two in the series analyzing certain aspects of Akhil Reed Amar book America’s Constitution: A Biography.

Amar takes to task the recent Supreme Court decisions of United States v. Lopez and United States v. Morrison for endorsing a more limited reading of the Commerce Clause that authorizes congressional regulation only on interstate economic interactions. Since the New Deal Court, the federal judiciary has interpreted the Commerce Clause as granting Congress a wide berth of powers in regulating activity and behavior if that activity or behavior has even a tangential effect on interstate commerce. The classic example is that of the local restaurant that serves anyone who travels across state lines (and who does not travel across state lines anymore?). With the two cases mentioned above, however, the Supreme Court has said that the Commerce Clause does impose real limits on the power of Congress to regulate local activity. Not every activity or behavior can be tied to interstate commerce, specifically the regulation of handguns in local school zones in Lopez and the regulation of violence against women in Morrison.

Amar, however, advocates a much broader reading of the Commerce Clause than even the Supreme Court allowed before Lopez and Morrison. Arguing that "commerce" in the Founding Era was a reference to any activity of life (not just economic activity), Amar effectively argues that the Commerce Clause was the final constitutional wording that embodied the Founder's principle that Congress should have power to legislate in all cases in which "the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of Legislation from individual States" (wording as embodied in the Virginia Plan presented to the Philadelphia Constitutional Convention). Although the Plan's power to veto any state law (a power which British colonial governors and the Privy Council had possessed and a congressional power for which Madison himself passionately advocated) was rejected (Amar, 109), Amar points out that the Founder's were very interested in giving Congress wide berth to act on problems that the political consensus had deemed were continental (national) in nature.

As evidence of the usage of the word "commerce" in the late eighteenth-century, Amar offers the following:

• "Bolingbroke's famous mid-eighteenth century tract, The Idea of a Patriot King, spoke of the 'free and easy commerce of social life...' "(Amar, 107)


• "...and other contemporary texts referred to 'domestic animals which have the greatest Commerce with mankind.' "(Amar, 107)


• Congressional power to regulate all interactions with the Indian tribes was folded in to the Commerce Clause. Draft language at the Convention had earlier referenced Congress' power to "regulate affairs with the Indians", so it is clear that the Founders meant for Congress to have plenary authority over this area of law. (Amar, 107)

Amar suggests a renaming of this clause of Article I, Section 8 to "the international-and-interstate clause" or the "with-and-among clause." (Amar, 108) Amar wraps up his argument:

Without a broad reading of "Commerce" in this clause, it is not entirely clear whence the federal government would derive its power to deal with noneconomic international incidents -- or for that matter to address the entire range of vexing nonmercantile interactions and altercations that might arise among the states.(Amar, 107-108)

Personally, I appreciate Amar's more honest, straight-forward reading of the Commerce Clause when compared to the federal judiciary's convoluted, confused stretching of the Clause to reduce every aspect of life to interstate economic commerce. It seems to me there has been a genuine need since the 1930's for such a broad provision in the Constitution. The problem, however, is that nineteenth and early-twentieth century jurisprudence does not support Amar's broadest-possible reading of the Commerce Clause, largely restricting congressional power under the Clause to activity that genuinely and facially affected interstate economic activity, for example trade. To change the generally-accepted reading of the Constitution's grant of enumerated congressional powers, it would have been far-preferable to exercise the Article V provisions to actually amend the Constitution to specifically grant Congress the powers that the nation felt (and still feels today) that Congress genuinely should be able to exercise.

I have long toyed with what an such amendment to the Constitution would look like. An alternative approach would be to pass more specific grants of power along the way, as the need arose. The argument against this is that the Article V process is too cumbersome, slow and unwieldy to effectively employ during times of national crisis, but where a true consensus for federal action exists, I submit that passage and ratification of constitutional amendments would not take all that long. And the benefit going forward is clarity and well-defined boundaries around congressional power, thereby preserving the Founding concepts of freedom, fundamental rights, and limited government.

If the United States had acted diligently to amend the Constitution along the way, the following is just one possible listing of the kinds of provisions that might today be found within the enumerated powers of Congress:

To facilitate transportation and communications between the several States;

To establish and administer medical care, retirement-pension, social insurance, and welfare systems concurrently with the several States;

To provide for financial aid and coordinated disaster relief in areas of the Union for which the President may declare an emergency;

To set minimum standards of cleanliness for the air and waterways of the United States, from which military bases and other federal installations shall not be granted exemptions, and to establish standards for emissions of chemicals and pollutants;

To establish and provide for a system of national parks;

To provide for the regulation of the production, distribution, and use of nuclear, oil, natural gas, solar, wind, hydro-electric, and other energy sources;

To provide for the licensing of frequencies of the electromagnetic wave spectrum;

To provide for the exploration of space;

The Privileges and Immunities Clause

This is an interesting article on the Privileges and Immunities Clause of the Fourteenth Amendment and the incorporation of Second Amendment rights to State and local governments. It is a delicious irony that the best constitutional text to increase gun rights across the country also is the best constitutional argument for a right to abortion.

The Privileges and Immunities Clause does not apply to a right to abortion because abortion is not a "fundamental" right, as understood at the time of the adoption of the Fourteenth Amendment. That's not to say that a right to abortion could not grow into a fundamental right, but that could only happen over a large swath of time after consensus has been reached on the subject. Then, by definition, the courts would be fulfilling their role to enforce the right.

The Great GOP Waffle

The GOP wants to have their cake and eat it too. This summer, the GOP employed the filibuster in the Senate to forestall a vote on a medicare bill. The Republicans hailed a win in Georgia because it prevents the Democrats from having a filibuster-proof majority. Sarah Palin said,

"This election is that important, and I know come tomorrow night, Georgians are going to speak, and Georgia's going to speak with a loud and clear voice. We want to make sure we have at least 41 Republicans in the United States Senate to make sure that we shape bad[sic] legislation, or kill bad legislation."

Her flub about shaping bad legislation aside, it's obvious the GOP values the power that the filibuster grants to a minority party.

If you have some syrup, now is the time to get it out. The waffle that needs addressed is that this is the same party which was considering changing the Senate rules to essentially remove the filibuster from the hands of the minority party.

I would like to hear Craig's thoughts on this matter. Are they now implicitly admitting that the Nuclear Option was a bad idea? Normally when a politician changes his position they are accused of 'waffling' so why haven't I heard those charges? I admit that I don't read that extensively so take the previous question at face value and not as me trying to push any buttons.

Craig?

To protect and defend

In discussing the oath the Constitution calls on each president to make upon taking office, Amar in his book "America's Constitution: A Biography" makes the point that the President swears to defend the Constitution itself, as opposed to the laws passed by the Legislature, as did the king of England upon taking throne. "In England, Parliament's enactments were supreme positive law, and a law-abiding monarch thus had to pledge allegiance to them. Such was the bedrock principle of the Glorious Revolution. In America, the bedrock principle was not legislative supremacy but popular sovereignty. The higher law of the Constitution might sometimes allow, and in very clear cases of congressional usurpation might even oblige, a president to stand firm against a congressional statute in order to defend the Constitution itself." (p. 179)

Re: Separation Story: In Answer to Kelly's Question

In his post Separation Story, Kelly asked me to recap a conversation we had on the changing deference granted between public accommodation and private association within American constitutional interpretation. The change for Kelly's specific example of hotel operators and their ability to turn away people based on personal beliefs or preferences came when Congress passed the Civil Rights Act of 1964, which expanded the common carrier rule to prohibit racial discrimination in access to public accommodations, such as buses and hotels. [1] The Supreme Court upheld the Civil Rights Act of 1964 as a valid exercise of congressional power under the commerce clause in the case Heart of Atlanta Motel v. United States (1964).

The Civil Rights Act and subsequent judicial rulings fundamentally altered the relationship betwene public accommodation and private association. The modern test for classifying an orgnaization as a private association is whether the organization in question exists solely for the benefit of its members, such as a church. See the Supreme Court decisions of New York State Club Association v. City of New York (1988) (where the Court decided that male-only clubs were a public accommodation) and The Boy Scouts of America v. Dale (2000) (where the Court decided that the Boy Scouts were not a public accommodation) for additional Supreme Court deliberation of this point.


[1] So You Want to Live in a Free Society (5). Thanks to Elizabeth Anderson at Left2Right for the tie of the Civil Rights Act's racial discrimination ban to the common carrier rule. Anderson's article has some insightful generalizations of this principle as well that could well be the paradigm to think of many of today's unresolved debates.

End judicial filibusters

Brian Tamanaha over at Balkinization has dutifully reminded conservatives of their deeply-held belief that the filibuster should be ended for judicial nominations and that every judicial nominee submitted by the President deserves an up-or-down vote. Rather than tongue-in-cheek tit-for-tat, perhaps respected constitutional scholars such as Professor Tamanaha could follow the call of the president-elect and advance real solutions that both sides can come together and embrace. This blog forwarded a solution to the abuse of the filibuster back in July of 2007: make the filibuster a filibuster again.

Novel, I know. But I think such a scheme just might work!

A more perfect union

In America’s Constitution: A Biography, author Akhil Reed Amar undertakes the daunting task of analyzing what the Constitution says and why it says what it says, in light of its late eighteenth century context. In a series of posts that will span over the next several weeks (possibly months, depending on time constraints), I will focus on some of the more notable and pertinent constitutional interpretations that Amar presents.

The first purpose provided by the Founders in the Preamble for establishing and ordaining the Constitution is to “form a more perfect union.” Like President Lincoln did during the debate leading up to the South’s secession and the Civil War, Akhil Amar keys in on this phrase to provide constitutional reasoning for rejecting a right of secession from the Union. Lincoln proposed that the southern States could not leave the Union because the states owed their very existence to the Union. For the sixteenth president of the United States, there was never a time that the United States did not exist, and, as such, the states were never independent nation-states. Since the aim of the Constitution was created to perfect the Union, secession was unconstitutional since it would by definition lead to a less perfect Union.

I’ve always found Lincoln’s argument to be problematic because it seems quite obvious to even the most casual student of history that there was a time when the states were free and independent states. The Declaration of Independence declares them so, and the Revolutionary War made them so. And whatever else the United States was under the Articles of Confederation, it was surely a different beast than it was under the Constitution of 1787. Amar agrees with this assessment:

Contrary to what Lincoln said, it is doubtful that a new, indivisible nation – as opposed to thirteen nation-states in a classic confederacy – sprang into existence in July 1776, four score and seven years before the battle of Gettysburg. In fairness to Lincoln, perhaps we should say that vis-avis the rest of the world, a new (confederate) nation was born in 1776. But the United States did not become an indivisible nation prohibiting unilateral state secession – the crux of the Gettysburg contest – until 1788. Lincoln also stumbled in claiming that none of the thirteen original states had ever been truly sovereign. If the issue were somehow unclear from 1776 and 1788, surely “sovereign” is the right word to describe North Carolina and Rhode Island in April 1789. [America’s Constitution, pp. 38-39]

However, the real question in the 1860’s – and for present-day interpretation – is whether states retained the right to unilateral secession after joining the Union. Amar continues:

On that question, Lincoln properly insisted that the Constitution’s more perfect union did not permit unilateral secession. Even though Jefferson Davis rightly read his name-sake’s Declaration, he wrongly read his country’s constitution. The fact that a new nation was lawfully formed in the 1780s by secession from the old confederacy did not mean that a new confederacy could be lawfully formed in the 1860s by secession from the old union. [America’s Constitution, p. 39]

The point of it all hinges on the type of arrangement the Articles of Confederation were as compared to the type of arrangement established by the Constitution of 1787. Under the old Articles, the United States truly was a confederation, a loose alliance of sovereign states. Under this scheme, members are bound by treaty and, as with any treaty, members can withdraw from the pact at any point they feel the treaty obligations are no longer being honored by other treaty members. In comparison, the United States under the Constitution of 1787 was a true nation. The Constitution set itself (along with subsequent federal laws and treaties passed under its authority) up as the supreme law of the land and rested true sovereignty with the People of the United States. The power of the United States under the 1787 Constitution flows from the People, rather than the States, and the states shifted from being sovereign members of a treaty pact to being constituent members of a federal republic, which was by nature a mixture between a federation and a traditional nation-state, governance being divided between the federal Congress and the several States. Protection of states’ rights and prerogatives would flow from the structure of the federal institutions themselves, rather than some right to unilaterally dissolve the Union reserved by the States:

State borders and state-law electoral qualifications would shape the House of Representatives, state legislatures would elect a Senate in which each state would have equal weight; state-chosen electors ballot for president; a Senate sensitive to states’ rights would confirm federal judges; each state’s borders and republican form of government would be guaranteed; and states would help propose and ratify federal constitutional amendments. [America’s Constitution, p. 36]

To seal the case for this interpretation of the Constitution and the absence of a right to secession, Amar points to the “bookend” of the Preamble – Article V, the article which sets forth the process for proposing and ratifying amendments to the Constitution. In this process, only three-fourths of the states need approve a proposed constitutional amendment for it to become effective on all states of the Union. This is in contradiction to the unanimous requirement set forth in the Articles of Confederation to change the fundamental charter. The Article V process is the one put in place to alter the nature of the relationship between the States and the federal government, as was done in the case of the Seventeenth Amendment. Dissolution of the Union must be a decision made by the whole (i.e., three-fourths of the States in accordance with Article V amendment process), not individual states who may, in their own limited parochial judgment, may have legitimate grievances.

Separation story

A few years ago, Craig and I were discussing the increasing friction between religious groups and the government over the last 20-25 years. He mentioned a specific SCOTUS ruling during the late 70's or early 80's that changed the criteria for when the public interest overrode an otherwise private matter. The example that sticks in my mind is a landlord who is refuses to rent to an unmarried couple who would be living together because it would go against the landlords beliefs. The cusp here is when public good (in this case being public accomodation, e.g. a hotel) is more important than an individual's right to rent according to his faith's stricters.

Craig, could you post about this topic? I think this blog would be a great place to present some of that history and analysis.

A new era dawns

This blog fancies itself an expositor of big ideas and, specifically, consideration of American governance informed by sound constitutional principles, so I made the decision not to use this blog for any of my writings during the presidential campaign that just culminated in the election of America's first African-American president, Barack Obama. It would have been too easy to lose the spirit of this blog and slide into the day-to-day myopic vision of campaign politics. That is important and has its place, but not here. Now that the capaign has passed, I do have a few reflective comments I want to make before regular blogging begins over the next few weeks.

I'm not one for trying to read the tea-leaves beforehand, but I can't help but feel that the old Reagan era has run its course and something else has started. I don't know what is being ushered in with Obama's win, but I don't think things will ever be the same in this country's political landscape, and I don't think Republicans will win the presidency again until they reform their message and figure out how to reassemble a new majority coalition. Part of this election was the finishing of what the 2006 congressional elections began -- holding the Republican Party accountable for their failures in governance for much of the past eight years. Consistent defecit spending, years of lax oversight of the housing and credit markets that led to the economic collapse in September, fanciful theories of the unitary executive, and incompetent administration of the Iraq War (the surge saved American defeat there, but not soon enough to turn around popular opinion of President Bush) were simply too much for John McCain to overcome. But it is also true that Barack Obama ran a consistent, disciplined campaign, and he is an inspiring, charismatic leader, the likes of whom American politics has not seen since Ronald Reagan.

I found Obama's acceptance speech Tuesday night moving and inspiring. If he doesn't do what Bush did and run to the narrow, partisan end of his Democratic base, he has the chance of forging a governing coalition of the magnitude that FDR and Reagan built. It's also inspiring to witness the first black President be elected, to see the full promise of the Fourteenth and Fifteenth Amendments along with the Civil Rights Act of 1964 finally realized, and to have a chance to finally move beyond the racial divides that have paralyzed large segments of our society for decades centuries.

Of course, a lot has to happen to turn this inspiration and hope into reality, and a highly-charged political atmosphere remains in America. But I share in the sense of hope that Obama's presidency offers. It is now up to him to govern for the entire country and not cater to the liberal policy preferences of the extreme left. It is now up to the country to get behind our new president, supporting him where we can and vigorously debating with him where we can't.

We've said here many times that politics is the art of compromise. If the Obama presidency can bring this lost art back to American politics, then more old wounds than slavery will have been healed in the process of this historic election.

Thought of the day: Mountain tops and politics

I think this is why the American founding fathers intended the public to elect representatives, and for those representatives to head off somewhere somewhat removed from the public eye to debate and make decisions. Because if the public had instant access to all the discussion and debate it would be a mess and they’d never get past the intellectual equivalent of a bumper sticker.
--Greg Krehbiel, Crowhill blog

A forceful Roe dissent based on the GI imperative

Yale Law School Professor of Constitutional Law and the First Amendment Jack Balkin (also creator of the law blog Balkinization edited a book in 2003 called What Roe v. Wade Should Have Said. The book is an interesting exercise in constitutional interpretation as modern-day lawyers and professors give their best shot at "rewriting" Justice Blackmun's Roe v. Wade opinion turned abortion into a constitutional right. Professor Balkin wrote the majority opinion (for the Court, as represented by the book's contributers) and the other authors of the book write their own concurring or dissenting opinions.

Overwhelmingly supporters of the women's right to abortion, most of the book's contributers go out of their way to criticize the flimsy reasoning and sloppiness of Justice Blackmun's original opinion. Recognizing the opinion's weaknesses, the book is mostly an exercise to look for a constitutional right to abortion based on more sound constitutional reasoning. Having read the book myself, I must say that most of the book's contributers do a modestly better job than Justice Blackmun did (for they at least start with the Constitution's text), but all the opinions written in favor of a right to abortion fall extremely short of the mark, in many cases twisting the text of the Constitution and its history beyond all recongition.

Michael Stokes Paulsen delivers one of three dissenting opinions and is by far the most effective in revealing the weaknesses of the majority's decision and reasoning. After rebutting most of the arguments of the right-to-abortion majority in turn, Paulsen ends his opinion by reminding us of the proper role of the judiciary, as appliers of the law. Matters of justice are for the the People to sort out through the legislative and executive branches. This is very similar to our own Governance Imperative thesis - that the legislature is commissioned by the Constitution to determine the law based on what is right (as defined by the majority through elections), within the bounds established by the Constitution, and the courts were established by the Constitution to ensure the laws were passed and applied fairness, enforcing the structural boundaries erected by the Constitution to enable an atmosphere for political compromises.

The opening of the second section of Paulsen's opinion sums his case up well:

No opinion rejecting appellants' claims in this case would be complete without some comment on the human implications -- of my colleague's creation of a constitutional right to abortion. There is a danger in this, to be sure, for thr question of law -- the meaning of the Constitution's commands, prohibitions, and empowerments of democracy -- is distinct from the question of justice, which is whether those provisions are used, by the people possessing powers and rights under them, for good or evil. The Court's power is only with respect to law. If, under the Constitution, constitutional powers are used to produce unjust ends, that problem of justice is (for better or worse) not for the courts. It is for the People, and for their chosen representatives. I fear that my colleagues have lost sight of this, and twisted the law, beyond recognition, to produce results they desire. They apperantly feel that these results are just, and so they violate their oaths in order to achieve them.
--Michael Stokes Paulsen, What Roe v. Wade Should Have Said, Jack M. Balkin, ed, p. 211

Analysis of D.C. v Heller

The SCOTUS 2007-08 term in review

The Supreme Court ended its 2007-08 term this week, and I'd like to briefly analyze (applying the Governance Imperative paradigm) a few of the more high-profile opinions that the Court issued this term. The opinions that I want to focus on are the following:

• D.C. v Heller


• Boumediene v. Bush


• Giles v. California


• Kenndy v Louisiana

D.C. v Heller

In this opinion, the Supreme Court rules Washington D.C.'s total ban on handgun ownership as unconstitutional, clarifying for the first time that the Second Amendment's "right to bear arms" is an individual right. Along with the Boumediene decision, this opinion will go further to securing the constitutional rights of Americans than any Supreme Court decision in a long time. It is also no coincidence that these are two decisions in which the Court most faithfully interpreted the Constitution on its own terms. It applied the structural framework of the Constitution to reign in the excesses of government, the original reason for the inclusion of rights in the Constitution. Justice Scalia's review of etymological and historical analysis of the words in the Second Amendment is well worth the read.

Boumediene v. Bush

The Supreme Court ended years of extra-constitutional probing by the Bush Administration and confirmed that the Constitution does indeed follow the flag. The Boumediene ruling rejected the Bush Administration's notion that enemy (i.e., illegal or non-uniformed citizen) combatants in the custody of the military at Guantanamo Bay do indeed fall within the purview of the federal court system. These prisoners do have the right to file petitions of habeas corpus and are not relegated to the woefully inadequate military commissions, established by Congress in the Military Commissions Act of 2006 (MCA).

The Constitution is rather vague on the process of how to suspend habeas corpus in Article 1, Section 9, but is clear on when the writ may be suspended: "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." Since the Suspension Clause is present in Article 1, it is generally recognized that only Congress may suspend the writ. Congress did limit the habeas rights of the Guantanamo detainees in the MCA, but the Court found that Congress did not provide an effective substitute "to correct any errors [of the tribunal], to assess the sufficiency of the Government’s evidence, and to admit and consider relevant exculpatory evidence that was not introduced during the earlier proceedings." Given that the "habeas court must have the power to order the conditional release of an individual unlawfully detained," the MCA does not meet the constitutional requirements (demanded by case law) needed for suspending the habeas corpus.

The Court's opinion reminds us of the reason why the writ of habeas corpus is so vital to the American constitutional order. From the opinion:

That the Framers considered the writ a vital instrument for the protection of individual liberty is evident from the care taken in the Suspension Clause to specify the limited grounds for its suspension: The writ may be suspended only when public safety requires it in times of rebellion or invasion. The Clause is designed to protect against cyclical abuses of the writ by the Executive and Legislative Branches. It protects detainee rights by a means consistent with the Constitution’s essential design, ensuring that, except during periods of formal suspension, the Judiciary will have a time-tested device, the writ, to maintain the “delicate balance of governance.”

As in the Heller opinion, we see the Court applying the structural framework of the Constitution to reign in the excesses of the Government (in this case, the Bush Administration and Congress through the MCA).

Giles v. California

This is another very good decision by the Supreme Court, holding that "to admit into evidence the unconfronted testimony of the murder victim under a doctrine of forfeiture by wrongdoing" is a violation of a defendant's Sixth Amendment right (to be "confronted with the witnesses against him"). This is understandably troubling in society's attempts to prosecute domestic violence cases, but constitutional rights cannot be swept aside when they prove inconvenient. The Court seemed to have forgotten this fact over the past few years (e.g., its 2005 Kelo v. City of New London decision), but this term produced several opinions that evidence a shift back to remembering the role and function of the Constitution.

Kenndy v Louisiana

The Court held that the application of the death penalty as a punishment for the crime of child rape is a violation of the Eighth Amendment ban on cruel and unusual punishment. This decision exhibits the worst in the Court's tendency to substitute an objective application of the Constitution's structural framework to enforce fairness with its own moralizing, subjective opinions on what is right and wrong. This case, along with cases like Roe v. Wade and Lawrence v Texas, usurps the constitutional role of the legislative branch, politicizes the judiciary, and works to de-legitimatize the court system.

In our constitutional system, it is solely the place of the legislature to decide what is right through the framework of the law. This is a very imperfect process and can lead to sloppy, imbalanced punishments between laws of similar "severeness", but this can only be effectively remedied through the constant, untiring vigilance of the people, working through their legislatures, demanding justice and equality.

David Broder on Gerrymandering

Op-ed columnist David Broder has an article discussing the distorting effects of gerrymandering on our elections and political system.

As a number of scholars have pointed out, the scarcity of real competition in nearly all districts has many consequences -- all bad. It makes legislators less responsive to public opinion, since they are in effect safe from challenge in November. It shifts the competition from the general election to the primary, where candidates of more extreme views can hope to attract support from passionately ideological voters and exploit the low turnouts typical of those primaries.

Gerrymandered, one-party districts tend to send highly partisan representatives to the House or the legislature, contributing to the gridlock in government that is so distasteful to voters.

Broder mentions two states, Iowa and Washington, "have instituted nonpartisan or bipartisan redistricting systems, and have been rewarded with much more competitive House races". This is a good idea as far as it goes, and I would encourage all States to adopt such a scheme. Nevertheless, I've been around long enough to know politicians, and politicians do not easily relinquish such powers as the ability to draw congressional districts.

Kelly and I have long been considering the value of a constitutional amendment to remedy this distasteful practice that might provide the motivation politicians would need to reform their drawing skills:

Congressional districts must be based entirely on existing political boundaries, excluding boundaries solely used for voting purposes.

The idea is that congressional districts must be based on boundary lines that already exist for sovereignty or governing purposes. The spirit of the proposal is to force county lines, city borders, river boundaries, etc to be the basis for drawing districts, which would prevent the arbitrary (skillful) slicing and carving of population-dense areas to create "safe-seats" for one Party or the other. The wording of the amendment might need to be tweaked to ensure the spirit is secured in its interpretation, as the use of jurisdictions like school districts or home-owners association boundaries is not what we have in mind as "existing political boundaries."

So while the wording of the amendment might need to be tightened some, the spirit of the idea would give the Constitution teeth to force a return to fairness and adequate representation in our system. I dare say it would also help increase participation in the political system and voter turnout.

Our Forefathers Forbearance

Craig sent me a blog post, linked in the title of this post, and pointed out that he agreed with the first comment. After reading both the article and the comment, I wanted to save my thoughts here and show how they apply to governance.

I think the commenter is describing a valid point but one that does not mesh with the intent of the original poster's reason for making the statement in question. When Pursiful says, "because there is no knock-down argument for the existence of God, then by definition people are going to disagree about God." he is speaking about forbearance. The quoted statement is just a way of reminding the reader that what constitutes "proof" to one person may not be accepted by another.

The commenter goes on to say

It's one thing if an atheist speaks as if *the atheist* doesn't find it to be conclusive proof of anything because he thinks it is make-believe, but it's another entirely for a Christian to speak as if *the Christian* doesn't find it to be a knock-down argument for God's existence either because of his own unbelief or someone else's.

First, I do not think that Mr. Pursiful is stating that Christ's resurrection is in question, rather he is admitting that what he himself accepts as fact can be held as 'not-fact' by someone else. Secondly, the commenter is falling prey to the same logical fallacy that the article covers.

Let me use an example. I believe that the Earth is round but my brother believes that it is flat. I use a Foucault Pendulum to prove Earth's rotates and thus is round. My brother refuses to accept my proof and instead of trying to convince him further I tell him that he's free to believe the world is flat. In doing so, have I turned my back on my own beliefs? Can it be said that I no longer believe in the Earth as Sphere? No, I do not. He being my brother, I take him as he is rather than harangue him for not agreeing with my beliefs. He's not stupid or evil, he just doesn't believe in something that I do.

An even better example may be the small group of people who deny the Holocaust which is described by the Wikipedia article thusly:

Holocaust denial is widely viewed as failing to adhere to rules for the treatment of evidence, principles that mainstream historians (as well as scholars in other fields) regard as basic to rational inquiry. The prevailing — and indeed virtually unanimous — consensus of mainstream scholars is that the evidence given by survivors, eyewitnesses, and contemporary historical accounts is overwhelming; that this evidence proves beyond a reasonable doubtthat the Holocaust occurred; and that it occurred as these sources say it occurred.

Even if you have perfect evidence to 'prove' God's existence, there would still be those who choose no to believe it. I'm tempted to go into a discussion on epistemology but I doubt the commenter would appreciate a discussion about how we know what we do, the distinction between truth and belief and the limitations of knowledge.

The point is that there are people who will refuse to believe in things easily proven with ample evidence available and instead of the common choices he describes, "we assume that those who disagree with us are either ignorant or evil" he offers a third choice, forbearance.

With regard to governance, the gentlemen who gathered to contemplate a new type of Republic had to deal with this subject head on. How to build a strong society that doesn't let the small divisions between individuals form the cancer that drives men to accumulate power so that they can use the force of the State to control what others are allowed to believe. The heart of the First Amendment is forbearance, the willingness to allow people to believe in things that others do not. The two main political parties engage in battle along this very fault-line every election cycle. Two parties who see the same evidence but reach different conclusions.

Forbearance.

Galileo Redux

I've been reading "Galileo's Daughter" about the 16th century genius and his encounters with the religious authorities involving his pursuit of the truth. The first part of the books doesn't have as much about the relationship with his daughter but it does have a very good rendering of the historical events dealing with his desire to teach what he felt was confirm-able (if not yet confirmed) truth and the church's dictate that Copernicus's theory went against holy scripture and should not be taught.

I see an interesting parallel between Galileo's story and the current debate between evolution and Intelligent Design. The sides are using very similar arguments and approaches. The only difference I can tell is that the ID proponents are trying to pass it off as an acceptable scientific theory vs the Churches insistence that Copernicus's ideas remain hypothetical.

The Bush Who Cried 'Wolf'

I think one of the main roots of our troubles began when we started defending "America's Interests" overseas. We're all for self-determinism until a country crosses us. We did pretty good for ourselves in that first 150 years. I'd ask, what happened to change it, was it Roosevelt and his 'Speak softly and carry a big stick" speech? Your question about when to intervene is apt. At some point, we had so much potential power, we started asking why should we put up with these behaviors when we have the means to enforce our will? We didn't mind looking the other way with the whole invasion of Columbia to create Panama and it's been downhill from there. What do the poor countries do? Without the resources to throw around the world they actually have to get along with their neighbors and even _talk_ with them. That gives me an idea. What if we characterized the debate like apartment dwellers who share a wall/floor. When one of them becomes disruptive, what are the appropriate responses? The initial stages are normally to talk to the neighbor to resolve the problem. If that does not help then we can petition ever higher authorities to take action on our behalf. That's all well and good but doesn't exactly fit the situation we're discussing. Let's change things around a bit and talk about an apartment complex in which the owner lives in one of the units. Let's also change the scenarios to clarify the difference. In this scenario the problem neighbor is the apartment owner. If you lived in another unit of the same complex, you'd have to deal with your landlord in such a way that if you were to get on his bad side, you could find yourself without a place to live. The landlord wields power disporportionately compared to just another tenant. Now, let's say that the landlord, which I'll call "Laurie" doesn't like you. It wouldn't matter if you were as quiet as a churchmouse or as on-time with your rent as a Swiss watch. Laurie could refuse to renew your lease for any reason and there isn't much you could do about it. What does this have to do with the U.S. use of power on the global stage? Bear with me because I'm headed to a point here. If Craig owned his own apartment complex, he wouldn't necessarily care about how Laurie treats her renters but if Laurie were to convince Craig that a particular renter, Kelly, was a troublemaker then Kelly could find himself with fewer and fewer options but to capitulate to Laurie.

Here is the Geo-Political connection. At what point would Craig stop listening to Laurie and give Kelly a fair shake regardless of what Laurie says? If Laurie is the U.S. then she should be careful how much of her weight she throws around because the loss of her reputation among apartment-owning circles isn't that apparent at first. The question she should ask herself is whether a particular outcome will increase or decrease her influence and whether repeated uses of her influence could create a situation where the other owners turn a deaf ear to her requests. If she were to appear to be unfair to her own tenants, that might influence the other owners, much like the boy who cries wolf.

The U.S. needs to treat it's foreign influence like a rare and precious thing. Horded and collected, it becomes desired and respected e.g. financial advice from Warren Buffet; diluted and dispersed everywhere, it becomes cheap and ignored, e.g. paper money from a government who won't stop printing more and more money. So what if Hamas won an election, isn't the principle of elections more important than which party won? We're so interested in elections in Iraq but we're shown as hypocrites when Hamas wins a fair election and we refuse to aid to a government to which we've previously pledged our support. We show through our actions just how much we believe in free and fair elections so we should not be surprised when our foreign influence wanes.

Will the real conservatives please stand up?

Church history and theology are among my interests, particularly the Reformation and subsequent Protestant movements (yes, there have been and continue to be many). One thing that I think contributed to the endlessly multiplying number of denominations within Christianity is the calcification of the issues that the original Reformers brought to the fore. Issues that were meant to serve as correctives to a Roman pontificate stuck in a medieval mindset -- issues like sola scriptura (the belief that the Bible is the only inerrant authority in the life of the believer) and justification through faith -- became articles themselves in the belief structure of the heirs of the original Reformers. As a consequence, entire new churches and denominations were erected to protect the new articles of belief, rather than those original grievances serving as correctives to transform the original church from the inside out.

A similar phenomenon has happened to the modern-day conservative movement in America. What was a dynamic movement with a particular aim took hold of the means and fossilized them into the end goals themselves. Witness: the original goal of the American conservative movement was to preserve the Constitution of the United States. Means to this end were to push for smaller, more responsive government, protect the economic interests of small business and the middle-class, defend and expand civil liberties, work for lower taxes and fiscal responsibility, and commit to peace through a strong military.

Now the heirs of these great conservative founders have taken *some* of these means and calcified them into hardened, transcendent principles: lower taxes, even during a period of war and record government growth; strong military (what happened to the peace part) that we use to beat the rest of the world into submission to our will (or at least go down trying); protection of big corporate interests rather than small business and the middle-class worker. No sign of smaller government, fiscal responsibility, commitment to civil liberties. Rather, the opposite - all power is to be consolidated into the hands of the President at the expense of civil liberties, congressional prerogatives and responsibilities, and the Constitution. Insufferable! The greatest defenders of the Constitution have transformed themselves into its greatest threat!!

That's irony enough to make George Lucas himself proud.

The parallels and similarities between the heirs of the Reformation and the heirs of the American conservative movement are too much to be coincidental. This must speak to a tendency within our human nature. Kelly has asked the question well: "What is a good citizen to do when the irrationality of politics and partisanship drown out the rationality of the issues at hand? When a group is more interested in besting their opponents than doing the right thing or whitewashing their own failures to save face, how can we in good faith give them our undivided loyalty?

Why does it seem like the root of the problem for any political party (or any movement in general) is when they become so certain that they have all the answers that they no longer need to listen to criticism or feedback from those with whom they disagree. It goes beyond hubris and into self-delusion."

Conservatives indeed! In the tradition of socialism, communism, and every other traditionalist movement that sought to empower the Government at the expense of the people. The conservative movement of Barry Goldwater and Ronald Reagan that sought to preserve the Constitution of the United States, conservatism that was really an extension of eighteenth-century Enlightenment liberalism that sought to empower the people, has been swept aside by modern disciples of expanding presidential power at any and all cost.

And I want nothing of it!

The Math of Politics

I'm beginning to think that people judge politicians by how far away they are from them in generally held beliefs. Think of the political spectrum as a number line with zero as the 'middle'. Which side is the positive side depends on the individual. Let's say 'Bob' in this example considers himself to be a moderate conservative. He agrees with a few traditionally liberal principles but with the conservatives for vast majority of the rest. So Bob might define his comfort zone from -1 to 5 (using a scale of -10 to 10). Since Bob identifies with the conservatives, the liberal portion of the scale is on the negative side. This gives three groups of people relative to Bob. If Bob feels that he has no beliefs in common with a candidate, he won't consider them at all. If there is some overlap then Bob will listen and consider. If a candidate's perceived beliefs fall entirely within the area that Bob defines as his own, then Bob will more then likely be an ardent supporter, feeling like he has found a candidate that understands him. The challenge is to keep from being blinded by the situation and keeping a pragmatic understanding of how people who don't share Bob's beliefs will react to the candidate. It also makes it easy to understand why candidates are always trying to include as widespread a group of beliefs as they can.

Democracy in Strange Places

Pirate ships are not normally held up as good examples of human behavior but Joanna Weiss has a good piece about how pirates participated in the social experiment called "Democracy". That people even at the very fringes of civilization could develop advanced social structures is intriguing. It is strong evidence of the Governance Imperative in action. People who must deal with their fellows as equals figure out ways to govern themselves in an egalitarian manner. Thinking of ways to improve the structure of government is not just some ivory tower dream, no longer the sole territory of the educated wealthy landholder.

Even pirates are concerned with making sure the rules by which they live are fair, regardless whether they are 'right' since they knew they were considered criminals.

Teaching the Blind to See

Even the Buchanan, the Duke of Neocons, won't be able to get the King George robots, those who support the man regardless of what he actually says, to change their mind.

The degree of loyalty that G. Gordon Liddy expressed is more like that of a soldier and not that of a thinking citizen of a republic devoted to personal liberty. "My President right or wrong" is not too far away from "But I was just following orders". The world finally agreed, through the Nuremberg trials, that unquestioningly following orders is no excuse for doing the wrong thing.

As a country, which would we rather have people do, blindly following the a leader who shares our principles or blindly follow principles which are shared by our leaders? It may seem like the same thing but the key difference is how we handle leaders who diverge from our principles. If you attach your loyalties to the man, what do you do when they do something with which you do not agree? You can call him on it or you can defend him and defer coming to terms with his transgression. A free society needs citizens who hold their leaders accountable, not make excuses for their bad behavior or poor choices.

A person who blindly follows their leader has abdicated their decision making, as if to say they don't have to think because all they've determined that their demagogue of choice can do no wrong and any questioning of authority is redundant at the least or a personal affront beyond that.

I could go on but wanted to get this general thought out there. The question to be addressed is this, why do some people stop questioning the actions or decisions of their leaders?

Too old and tired for democracy?

But there is not a grain of evidence that primitive government was despotic and tyrannical. It may have been, of course, for it may have been anything or even nothing; it may not have existed at all. But the despotism in certain dingy and decayed tribes in the twentieth century does not prove that the first men were ruled despotically. It does not even suggest it; it does not even begin to hint at it. If there is one fact we really can prove, from the history that we really do know, it is that despotism can be a development, often a late development and very often indeed the end of societies that have been highly democratic. A despotism may almost be defined as a tired democracy. As fatigue falls on a community, the citizens are less inclined for that eternal vigilance which has truly been called the price of liberty; and they prefer to arm only one single sentinel to watch the city while they sleep.

...

But the spirit that endures the mere cruelties and caprices of an established despot is the spirit of an ancient and settled and probably stiffened society, not the spirit of a new one. As his name implies, the Old Man is the ruler of an old humanity . It is far more probable that a primitive society was something like a pure democracy. To this day the comparatively simple agricultural communities are by far the purest democracies. Democracy is a thing which is always breaking down through the complexity of civilization. Anyone who likes may state it by saying that democracy is the foe of civilization. But he must remember that some of us really prefer democracy to civilization, in the sense of preferring democracy to complexity.

--The Everlasting Man, Chapter 3, G.K. Chesterton

One of the great Christian writers of the 20th Century, G.K. Chesterton wrote The Everlasting Man as a critique of H.G. Wells' An Outline of History and as a history of Western Civilization. (It is also a remarkable apologetic for the Christian faith.) In the early chapters of the book, Chesterton spends a great deal of time highlighting just how little we actually know about prehistoric peoples. We find a tooth or a piece of pottery, and the imaginations of archaeologists, psychologists and biologists join together to weave an intricate picture of the society and culture that must have produced the two artifacts.

This is a gold mine of contradictions and incompetencies that Chesterton mines, but one of the points he brings to light is this notion that prehistoric societies must necessarily have been despotic. We are all familiar with the image of the Stone Age village submitting to the will of the strong man with the club. We assume that the path to democracy is a path of enlightenment and evolution that marks the progress of true civilization. Chesterton argues that this, however, is not the case.

True democracy is kept close to the people, bringing the entire community together to vote on any business effecting the community as a whole. Once we move beyond the community into more complex structures and layers of government, complexity, specialization, and distances necessarily erode the ability to govern by pure democracy, so the people send representatives to vote for them. The people of the local community are already starting to be removed from the process. So Chesterton's point that democracy is the enemy of civilization is well taken. The more complex a civilization becomes, the less democratic it can be.

What I find particularly insightful in Chesterton's analysis, however, is his contention that despotism is the by-product of a tired democracy. "As fatigue falls on a community, the citizens are less inclined for that eternal vigilance which has truly been called the price of liberty; and they prefer to arm only one single sentinel to watch the city while they sleep." We can see that this has happened throughout history to various civilizations, Athena and Rome the obvious two that come to mind. Rather than something human societies evolve out of, Chesterton observes that despotism and dictatorship is something that human societies evolve in to. Indeed, the more civilized a society becomes, the more susceptible to despotism it becomes.

I can't help but think of the Star Wars prequel movies. Although fiction, the story line that plots Senator Palpatine's orchestration to consolidate power illustrates a lot of truth about the human condition. The Republic has become brittle. Various factions are out only for their own interests and have no regard for the greater good. Morality has no place in the hedonistic environment that governs day-to-day interactions. People grow tired of the inability of the Senate to get anything done, so they gladly hand over power "temporarily" to the strong-man who promises to make everything right. Except once the emergency passes, temporary somehow becomes permanent. The Republic has somehow become an Empire.

It is a slippery slope indeed, and the people must be ever vigilant to keep such a nightmare scenario at bay.

It is natural to inquire as to the health of the American Republic. While it is silly, as some try (even if only for polemical reasons), to claim that President Bush is a dictator or monarch, it is undeniable that the institution of the presidency has been strengthened at the expense of congressional and judicial powers. Not only this, but power has been consolidated at the federal level at the expense of state and local governments and the civil and religious institutions of society continue to atrophy from neglect, abuse, and apathy. The stage is being set for one who is patient and crafty to orchestrate, through the presidency, the establishment of a dictatorship.

Perhaps the only reason we have been spared such a fate this long is because of the unique way in which we elect our Presidents (for the benefits of the electoral college, see my post on the direct election of the President.) The United States has been blessed with a remarkable cadre of exceptional and godly men to serve as president, even if they have been most guilty of gathering up power for the office of the presidency. We can only hope and pray that the people will continue to remain vigilant to protect the Republic and constitutional principles that we claim we are committed to.

Horse races and human nature

I'm watching the Democratic nomination process and am very intrigued. The two remaining candidates are so close that the nomination might be decided at the convention. The party has a defined process to handle this but I keep hearing people who say they want it decided before then; I ask 'why'? Is it because their candidate is ahead by a nose and they don't want it to go to a photo finish? What about all these states that have their nomination contest late on the calendar? What if the nomination came down to the last State? Are they not important enough to be the deciding factor? Are we so impatient that we have to have a decision at the earliest possible moment? Are we so allergic to uncertainty that we'll short circuit the process just to have an answer? Does uncertainty gnaw at us until we crave relief however painful? The Democrats sometime sound like a wild animal caught in a trap. Not knowing when they'll be let out makes them anxious and nervous, searching for any escape. At some point they become willing to painfully chew off their own leg and be free rather than remain in that state of uncertainty.

Maybe this reveals something deeper about human nature; that we'd rather have certainty even if unfairly determined.