Ungovernable Nation?

Frank Pasquale writes in Law blog Balkinization on The Tragic Sense of Health Insurance Reform. Pasquale engages in a level-headed yet anguished look at both the potential good and the potential problems / challenges that are seeded in the health care reform bill just voted out of debate by the Senate last night.

Pasquale's last paragraph is worth quoting in full, which summarizes well the more in-depth insight contained in the rest of the article:

By passing this reform bill, Democrats will jettison whatever "populist" credentials they once had, opting instead for an early-twentieth-century "progressive" vision of technocratic alliance between corporate and government experts. However many disastrous missteps the FIRE industries make, this is the only arrangement that the media will credit as responsible governance. We'll commence an endless argument (read: notice and comment rulemaking and subsequent administrative adjudications) over what constitutes an adequate baseline of coverage, what is the fair share of revenue for middlemen like insurers, and what regulatory infrastructure can best vindicate the entitlements (and impose the burdens) specified by the bill. But the fundamental victory of reform--the national commitment that no one should have to choose between death or bankruptcy when confronted with a serious illness--will also endure. The tragic paradox is that the Democrats can only achieve this great cultural and ideological victory by becoming identified with the very interests that only they are willing to confront.

While this is, I think, the best bill one could hope (if one is so inclined) that Congress could produce in this day and time (and as good of one as any Congress in the last 100 years could have produced - probably better because of all we have learned through experience with our current insurance-based system), the fact that we are having this debate (idealism vs. realism in government's accomplishing public policy aims) is telling of something more fundamentally broken.

Pasquale makes passing reference in his article of America as "an increasingly ungovernable nation." Given the premise, I don't think that this is a fair characterization of the people or the underlying constitutional system of the United States. As the only military and economic superpower in the world, we have done, and are still doing, enough things right along the way. Rather, what some have termed "ungovernable" is an observation on the overreaching omnipresence of the modern-day federal government.

Americans have been through too much history and are too enamored with natural rights to ever countenance a scheme of direct socialist governance. We are dedicated to the fundamental soundness of the free enterprise system. However, we realize that there are holes in which the free market, left unregulated, do not work for the common good in areas where such is indispensable. Namely, in the self-same areas as called out by Pasquale's reference to "FIRE industries": finance, insurance, and real estate. Of course, Pasquale's point is to add the health care industry to this pot.

So, one of the great experiments in American governance has been an attempt to have government (mostly the federal government) step in to this breech and either regulate these industries or work in collaboration with them to bring about the results needed by society as a whole. One problem (if not the problem) is that this has been done divorced of constitutional principles. In a system set up to honor and promote the energies and risk-taking of the individual (the original concept of public education was to support this bias), coordination through government of massive industries and segments of our society's economic activity can at best be only a Lernaean Hydra, remedies applied to a body that is naturally resistant to such foreign substances.

If the goal of society is to implement the policies most favorable to the common good, then twenty-first century China is an excellent case study. When the ruling Communist Party oligarchs decide that the country needs to go in a particular direction, e.g., invest in solar power technologies and infrastructure, then it gets done. But such policies are implemented with the common good in mind (as defined by the ruling elite) and not the rights of individual citizens. Such is the trade off. But the question must be posed: What good is a society that does not pursue justice and rule of law for its citizens? Even Plato concedes that the philosopher-king is who is because he is just.

Obviously, the Chinese example is the opposite extreme of what we see in American principles of governance, but that is the point. The American Constitution is dedicated to, first, individual rights and freedom and, second, limited, constrained government. In too many ways, the twentieth and twenty-first century American government has broken loose of its constitutional constraints, and it is this, more than any other factor, that has created the conditions for the current debate. If we are ungovernable, it is only because the United States were (yes, subject / verb agreement is correct in the sense I mean to here employ) not set up to be governed by an omnipresent government coordinating the various segments of our complex, energetic society.

That American businesses and markets do not in many ways act for the common good is here readily acknowledged. But the remedy for this shortcoming is not more and bigger government. Rather, the remedy is to be found in the return to the principles held by the Founders and Western political tradition: personal responsibility and one's sense of duty to neighbor and fellow man, rooted in the justice and watching eye of Providence. It is fashionable in this day and time to be suspicious of the civil religion. Nevertheless, for 200 years it performed the service of knitting Americans together to provide for the common good out of love. That it is no loner given space to do so and that our form of government can not do so is the true present crisis and what, if anything, makes us "an increasingly ungovernable nation."

Disproving The Anthropogenic Global Warming (AGW) Problem

ADMINISTRATOR'S NOTE: This post was co-written by Craig and Kelly in discussion and brainstorming. These are open speculations on the topic of climate change and are not meant to offer any definitive conclusions. Our interest here is only in trying to get past the current strawmen blocking meaningful advancement of dialogue from both sides, and to offer possible constructions to assist the way forward. Part of the imperative of governance is how our collective social structure (the State) reflects how we handle disagreement. The flip side is how government is supposed to participate in debates of this nature, no pun intended.

Disproving The Anthropogenic Global Warming (AGW) Problem

After reading through this article and comments, it seems that the author’s stated purpose of “disproving” AGW is a bit ambitious for what he is able to accomplish. Nevertheless, he does successfully highlight the fact that there is a lot of disagreement. The facts do not support the AGW theory nearly as definitively as its supporters claim.

We see a disconnect in the debate on several fronts. First, is the global climate warming? Second, is global warming going to lead to devastating results? Third, is global warming caused by human activity?

If the first two are true, it doesn’t matter whether the third is or not. Somehow the debate keeps centering on wither humans are the cause instead of whether the climate is actually warming. We have some evidence of a warming trend during the 20th century but even that leads to quibbling over whether the trend will reverse itself naturally, whether it is just another natural cycle. The merits of investigating cost-effective remedies are still present regardless of human involvement - the type and mix of remedies change only if humans are significant contributors, but not the need for remedies.

Humans have a poor record of leadership in this area. On one side you have those who are certain (but wrong) and advocate outrageous action, e.g. Heaven’s Gate; and on the other you have those who advocate no action, which is reported to happen with European countries' unwillingness to believe in Hitler’s death camps, or more recently with reports of genocide in Africa.

In Texas you have to have proof of insurance before being allowed to drive on public roads. Does this mean that the State thinks you are going to have a wreck with 100% certainty? Of course not. The insurance is a small cost which mitigates the huge cost of damages from an accident. The probability of you making a claim contributes to the price of the policy. If you are a safe driver, your policy is less expensive.

As for the climate, let’s talk about what would be cheap insurance against a catastrophic claim. Is there something we can do that might have a much smaller cost compared against the worst case scenario. Do we have to believe in Anthropogenic Global Warming, or even a natural warming cycle? No. Good drivers seek protection from outside events as opposed to the State’s mandate which is to make sure bad drivers take responsibility for their actions. Both of which are at the core of conservative ideals.

Driver’s-Ed and defensive driving techniques can be considered as cheap forms of insurance. A low-cost way to reduce the risk. It is disappointing that instead of working on the cheap and easy solution, the debate has degenerated to arguing either that everyone needs $1,000,000 of comprehensive insurance, i.e. the more rabid GW alarmists, or adamantly declaring that we don’t need insurance at all, i.e. demagogues shouting that there is no absolute proof humans are causing climate change and thus should do nothing. If we want to be pragmatic about it, we should be agreeing that even if we can’t be sure whether we are the cause, we definitely don’t want to become part of the problem either. We could talk about cheap and defensive solutions like supporting green house-building techniques, reforestation, and sources of bio-fuel - which has a nation security aspect as we'd wane ourselves from dependence on tin-pot foreign dictators. At least such a discussion would be productive, unlike two sides trying to out-bloviate each other.

Seen this way, insurance is both a sign of personal responsibility – the state’s mandate – and a sign of conservatism, as in conserving the long-term viability of our planet's environment and declaring that you won’t need to rely on others to take care of you if the worst happened. Not only that, there is a national security aspect also, as we'd wane ourselves from dependence on tin-pot foreign dictators.

In the global warming debate, we should discuss the severity of the different scenarios and how much it would cost to mitigate them. We don’t have to believe in the worst case to discuss it. Insurance is about the transference of risk. You don’t believe you will necessarily total your car when you discuss a quote for comprehensive insurance; there are dozens of scenarios less severe for which you seek coverage. You want to know what the cost would be to recover or mitigate the damage. What insurance can we buy against climate change? Let’s talk about that.

Our Debt to Machiavelli

In reading Machiavelli's "Discourses on Livy" - chapter II, I found the following,

...because when there is in the same City (government) a Principality, an Aristocracy, and a Popular Government (Democracy), one watches the other.

This sounds suspiciously like our three branches and their checks and balances. In his study of human forms of government and his theory on how each form degenerates into the next, he covers much ground which hopefully wasn't unfamiliar to our founders.

My question is, why is Machiavelli not more widely read, and what evidence is there of his influence on the Founding of the United States of America? The obstacles toward forming a government of the people were rigorously debated during the Continental Congress (and the Constitutional Congress that followed). Were the lessons of Machiavelli ever credited to him or were they borrowed for the convenience of the general discussion?

Is Torture the Answer?

This is a response to the comment of Craig's in our discussion on Torture.

What is Torture?

Sleep deprivation can be a form of torture. It all depends of the definition. Usually its described by total sleep allowed per day and length of continuous sleep. Letting a prisoner sleep for 12 hours a day is meaningless if you wake them up every 15 minutes.

Maybe this needs another post but it is pointless to argue about the definition of torture if there is no agreement on its effectiveness.

Is Torture Ever Necessary?

Is torture effective? Yes. Be clear, by saying its effective all we're admitting is that an effect was achieved. Whether it was the desired effect, that is an entirely different matter. While torture may be effective, neither is it efficient, nor is it efficacious.

(Courtesy of Wikipedia)
The word effective is sometimes used in a quantitative way, "being very or not much effective". However it does not inform on the direction (positive or negative) and the comparison to a standard of the given effect. Efficacy, on the other hand, is the ability to produce a desired amount of the desired effect, or success in achieving a given goal. Contrary to efficiency, the focus of efficacy is the achievement as such, not the resources spent in achieving the desired effect. Therefore, what is effective is not necessarily efficacious, and what is efficacious is not necessarily efficient.

Health care reform and the general welfare clause, Part II

As the health care reform debate has raged on and bills have taken shape in the Senate and even passed the House, the so-called individual mandate has become a central part of most reform packages under consideration. This is a different twist from the angle under which I considered the constitutionality of health care reform in the article Health care reform and the general welfare clause, and, constitutionally, it must be a deal breaker.

It is a settled constitutional fact that Congress can spend federal tax revenues on any program that it feels advances the general welfare, whether the form of that spending takes the form of direct grants, tax credits, tax deductions, or subsidies is of little consequence constitutionally. If Congress wants to set up incentives to give people tax deductions for buying health insurance, for example, or send subsidies directly to people / families who make less than four times the federal poverty rate, then it is acting within its constitutional prerogative.

However, there is no constitutional power delegated to Congress allowing it to impose fines on people for not buying health care insurance. There is a big difference, philosophic and constitutional, between incentivizing people towards desired behaviors and punishing them for not following a prescribed mandate. Article 1, Section 8 and the Fourteenth Amendment form the boundaries within which Congress may legislate, and outlawing a lack of health care insurance is simply not within those boundaries.

This is undoubtedly a power of a State, but not a delegated power of the federal government.

Health care reform and the general welfare clause

One of the questions guiding the discussion over health care reform is part of a larger, more fundamental debate that has been going on in America since before the ratification of the Constitution: what is the proper role of government? In the current context, constitutional scholars point to the General Welfare Clause in Article 1, Section 8, Clause 1 (bold emphasis mine)::

The Congress shall have power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States

Mainstream constitutional interpretation reads this as a direct grant of power to Congress to spend money on anything it deems necessary to secure the general welfare, including programs of social insurance. Since Social Security was judged constitutional by the Supreme Court in 1937 in the cases Steward Machine Co. v. Davis and Helvering v. Davis, the General Welfare Clause has been seen as a broad grant of power to the Congress to spend money for purposes that benefit the country as a whole. While this clause is not interpreted as enabling Congress to legislate in the internal affairs and governance of the States, it does provide Congress broad discretion in the areas that it can spend federal money. So long as funds are not spent for purely local purposes, Congress is not limited on the types of programs and projects for which it can appropriate.

But this was not the original principle upon which the Constitution was founded. James Madison and Thomas Jefferson envisioned the Constitution as granting specific, enumerated powers to the federal government, as detailed in Article I, Section 8, Clauses 2 through 17. The general welfare for which Congress could expend revenue in Clause 1 was limited by the rest of Article I, Section 8. Otherwise, as Madison posed the question in a letter to Andrew Stevenson, "why, on that supposition [that the phrase general welfare provided expansive powers to the Congress], so much critical labour was employed in enumerating the particular powers, and in defining and limiting their extent?"

Madison was arguing against the more expansive interpretation of the General Welfare Clause pushed by Alexander Hamilton, as classically expressed in Hamilton's 1791 Report on Manufacturers:

The terms "general Welfare" were doubtless intended to signify more than was expressed or imported in those which Preceded; otherwise numerous exigencies incident to the affairs of a Nation would have been left without a provision. The phrase is as comprehensive as any that could have been used; because it was not fit that the constitutional authority of the Union, to appropriate its revenues shou'd have been restricted within narrower limits than the "General Welfare" and because this necessarily embraces a vast variety of particulars, which are susceptible neither of specification nor of definition.

Although the Madisonian interpretation of "general welfare" was the overriding perspective throughout the nineteenth century, Hamilton's view was the interpretation that finally won out in the Supreme Court's Steward Machine and Helvering cases. Because the federal programs that have grown out of the New Deal augmented and, in many cases, overrode founding principles, fundamentals of constitutional interpretation have been irrevocably changed through the political process set up by the Constitution itself (a move that falls within the structure of the Governance Imperative, but a move, nonetheless, aided by the passage of the Seventeenth Amendment and the loss of the States to their direct representation in the federal legislative process). Because of what the vast majority of the American people now expect, it must be conceded that health care reform would fall within the purview of the general welfare, even though the concept of governmental welfare was poisonous to society in the view of the founders.

Benjamin Franklin's wrote in 1776 in his On the Price of Corn and Management of the Poor:

I am for doing good to the poor, but I differ in opinion of the means. I think the best way of doing good to the poor, is not making them easy in poverty, but leading or driving them out of it. In my youth I travelled much, and I observed in different countries, that the more public provisions were made for the poor, the less they provided for themselves, and of course became poorer. And, on the contrary, the less was done for them, the more they did for themselves, and became richer.

A principle even more fundamental than enumerated federal powers animates the American engine even today: each man is able to apply his talents and contribute to the marketplace as he is able, retaining for himself the fruits of his labor. What a man earns is his own and is not subject to government seizure and redistribution. Jefferson wrote in a letter to Joseph Milligan in 1816:

To take from one, because it is thought that his own industry and that of his fathers has acquired too much, in order to spare to others, who, or whose fathers have not exercised equal industry and skill, is to violate arbitrarily the first principle of association, "the guarantee to every one of a free exercise of his industry, and the fruits acquired by it." If the overgrown wealth of an individual be deemed dangerous to the State, the best corrective is the law of equal inheritance to all in equal degree; and the better, as this enforces a law of nature, while extra taxation violates it.

Whether we are ready to move another step beyond this first principle is at the heart of the health care reform debate, but there are no constitutional barriers to health care reform's passage.

Why Words Matter

Politicians are known for their speeches with little or no content. Yahoo has an article about the results of a Poll on which politician is the worst at using gobbledegook. Their use of empty phrases threatens their own agenda - here's how.

When the governor of your state says something incomprehensible, you have to ask yourself, "Am I the only one who didn't get it?" Politicians surround themselves with those are trusted which means you can't rely on the audience for an honest reaction. Even the media, who has an ulterior motive in the form of continued access to those in power, won't always call a misspeaking office-holder on the carpet. There are numerous historical stories of the people who keep company with those in power. Just because our form of power distribution has a different name does not change human nature. Drawing a coterie of yes-men and sycophants is a well known consequence of acquiring power.

If you conclude that you didn't understand some statement, it would be logical that other members of the audience didn't understand it either. Being charitable would mean that the speaker failed in his or her effort to communicate. It is a thin line from failed communication and the perception that the speaker doesn't even understand the issue in the first place. Either way shows the speaker in a unflattering light.

When a small group of friends is gathered around to shoot the breeze, it is acceptable to give the speaker a break. When the leader of the some body politic does the same thing, they must realize that they become their own worst enemy, and for good reason.

Whence the compromise?

The passing of Senator Ted Kennedy this past week has elicited much commentary on the apparent passing of the old political skill of Compromise. The standard refrain is something like this:

Senator Kennedy was from an old era of Senate politics, an era that engendered bipartisan deals and encouraged the art of compromise, dominated by moderate senators from both parties. Over the past twenty to thirty years, radicals from both parties have increasingly dominated the ranks of the Senate, leaving moderates to fill only about 10% of the chamber. As a result, the Opposition party seeks only to delay and obstruct and the Majority party pushes through its legislation on party-line votes.

Professor Sandy Levinson even go on to blame this state of affairs on our "undemocratic Constitution," pointing out statistics like the six senators on the Senate Finance Committee negotiating health care reform (an illustrative irony in itself - many who have lameted the loss of compromise have been the same ones impatiently demanding that the Senate Finance Committee drop its negotiations and "just approve a plan") represent a mere 2.77% of the U.S. population. This charge, however, seems to miss the point. The Senate was never meant to represent the American population as a whole, rather Senators represent their individual states. Besides this, the Constitution has governed the United States for well over 200 years and the Senate has been considered "the world's most deliberative body" for much of that time, admired by many around the world as one of the most august legislative chambers in history.

So if we have indeed lost the art of compromise in our politics and assuming our Constitution is not to blame (indeed, we have argued here that the Constitution engenders compromise), what has caused our supposed decline in bipartisan bills facilitated by compromise? It seems to me that this decline correlates with the rise of conservatives in the Republican Party during and following the time of President Reagan and the disappearance of that strange politician truly of a bygone era, the Southern Democrat. The Republican Party has become much more monolithic, dominated completely by the conservative movement, while the Democrats have been all over the map between moderate to liberal (or progressive to use the current label of choice).

Nevertheless, the Republican and Democratic Parties were both largely dominated by moderate and liberal politicians prior to the last generation's rise of conservatives. President Nixon, who fought for universal health care and Employer Mandates and instituted wage and price controls, was hardly a conservative by today's standards (or any era's standards, for that matter). President Ford nominated John Paul Stevens to the Supreme Court, one of the most liberal justices in the history of the Court. Conservatives had no voice in the government prior to Reagan's election to the presidency, so they were effectively locked out of the debate and ignored.

So when one side is completely sidelined, how is the resulting federal legislation the result of compromise? One side (liberals) and moderates agreeing among themselves might be compromise, but not to the degree that these fellows pining for the good old days would like to believe. For all their acrimony, true compromises were struck in the 1990's between President Clinton and the Republican Congress time and time again: the 1996 welfare reform law, the 1996 Telecommunications Act, the balanced budgets in 1997 and onward, to name a few.

The process of compromise is always ugly when one is in the middle of it, and it never looks like compromise (remember the cries of deadlock and obstructionism when Speaker of the House Newt Gingrich and the House Republicans forced a shut down of the federal government in 1995?). But given the time for the political process to work itself out, the end result is ALWAYS better than a partisan wish-list crammed down the collective throats of the electorate. Voters might swallow the bitter pill of such a legislative maneuver, but the majority party will be short-lived in their majority status. Americans have longer memories than Talking Heads give them credit for.

War Powers

Stephen Griffin over at Balkinization has a series analyzing post-1950 war powers and analyzing the Korean War as an instance informal constitutional change to shift the balance of power between Congress and the President (in the same manner that the New Deal was an informal constitutional change that shifted power between Congress and the states under the commerce clause).

Part 1
Part 2
Part 3
Part 4

Women as Objects... to fear

The New Statesman has a review on the historical treatment of women http://www.newstatesman.com/books/2009/07/women-god-stangroom-benson

For a long time now, I've wondered where society got the mores around it's treatment of women. The link above makes the case for a historical basis. Most holy books are fairly blunt about their consideration of women as second class citizens which only explains how the misogyny has sustained itself. Islam being one of the most often cited case, it is easy to begin a rational examination of their treatment of women.

Expecting women to cover their bodies is a way for cultures to enforce a collective sense of modesty. What is more surprising is when this is taken to an extreme like not allowing women to drive, talk to unrelated men, or go out in public at all. The justification of these rules are described as being protective of the women themselves, the implication being that they could be attacked or even raped for example if seen in public with exposed hair. Women who flaunt societies rules are made acutely aware that they are in danger and the rules are for their own safety. What is interesting about this is not the admission that women can have a strong affect on men but the abdication of responsibility on the part of those men to control their animal desires. Basically, men can not control themselves so it must be the moral duty of women not to tempt men. This seems so simple but when you start examining some of the extreme punishments meted out, it is easy to conclude that society that codified the rules is actually afraid of women and seek to control them. Readers of this piece are sure to recognize the link between Eve as a symbol of the downfall of Man and Man's desire to prevent that from happening in _our_ neighborhood.

This is a case of a cult-of-morality influencing what society considers right or just based on historical traditions. Shine the light of rationality upon the situation and the adherents quickly shield themselves from culpability with statements like, "That is how we've always done it." or "It's in the Bible". Strict constructionists (or "literalists" if you will) may keep to the high-road using that tactic as long as they are consistent with the rest of their Holy Book but what of the rest? Are they claiming that they should treat women like chattel for no other reason then because their fathers and grandfathers did so? This is no more than a belief of convenience, inculcated through long practice and by wide acceptance. It can be boiled down to "But everyone else does it" which doesn't fly with a father listening to son or daughter who wants to do something foolish with their friends so why should it fly with us now? I'll tell you why, because humans are born with a mechanism which bonds them strongly to the behavior they see in the individuals around them. It's called "The Mirror Neuron" and it what allows us to learn by watching and elevates us above all the other species. The downside of this boon is that we have a physiological drive to accept the behavior we see around us and to mimic that behavior.

One of the principles of The Governance Imperative that has driven mankind from its early days is to bring a measure of control and consistency to our interactions. Tyrants, Kings, and Emperors can all rule effectively but the price is capriciousness and justice as defined by one man. As we sought a way to check the abuse of power, to eliminate rule-by-whimsy, and seek maximum justice for the maximum number of people, we developed institutions, like the independent judiciary or trial by jury, which insulate us from the worst of mankind. For all our modern sense of self-righteousness we can never forget that those behaviors are never banished but always lurking, waiting for a chance to exert control once again. Our duty then is to acknowledge, which does not mean blindly accept, those darker instincts that are a part of what makes us human; using knowledge as a shield against the beasts that dwell in the dark recesses of the human soul, guarding the light of civilization against our own self-destructiveness.

The treatment of women is still a shadow upon the soul of man, a remnant of the times when men sought scapegoats for their own behaviors.

Things are not always as they seem

When I first heard of the Honduran military's disposition of Honduras' President Manuel Zelaya, I assumed it was a typical, Third World-style coup d'etat and that the reaction of President Obama and the OAS calling for immediate reinstatement of President Zelaya was the right and proper response. However, after having researched the chain of events behind the removal of Zelaya, it is obvious that the Honduran governmental institutions and civil society were actually defending the Honduran constitution from the hatchet-work of Zelaya.

Many Americans do not realize that in Latin American countries, the military is the national police force. U.S. law does not allow the military to enforce laws. This is why we have civilian organizations like the Coast Guard and the FBI. Whereas the FBI in the U.S. would arrest officials accused of a crime, the military performs those actions in South America. If it was the military acting under its own initiative in disposing the President, then that is obviously unconstitutional. But the Supreme Court of Honduras and the Congress both approved this action and followed Honduran constitutional procedures in appointing a presidential successor.

The Obama Administration needs to wake up and begin to defend principled positions on the world stage. Dialogue with tin-pot dictators is fine, but actively supporting their positions only serves to degrade our own moral authority. As we have said on this blog in the past in the context of the excesses of the Bush Administration, constitutional fidelity is more than just blindly following your leaders, even if those leaders were duly elected. Extra-constitutional maneuvering can never be allowed to stand, especially on the part of a President, who is charged to faithfully execute the duly-enacted laws.

UPDATE 10/12/2009: Negotiations on Honduras Continue

The Truth Will Set You Free

The current situation in Iran reminds me of how the truth can be feared. Dictators and tyrants crave legitimacy and usually have the power to silence those who contradict the 'official truth'. One of the principles upon which our country was founded is that truth is to be valued even when it is uncomfortable. The 1st amendment can be taken to say that a just government should have no fear of the truth and so has to meet an extremely high standard to be allowed to squelch speech. This leads directly to whether citizens should expect to trust what their government says. A government that lies to it's citizens has ceased to be, in the words of Lincoln, "government of the people, by the people, for the people" and should not be trusted. If the trust of it's people is of so little value, the question becomes what is of value to such a beast; the answer quickly and easily is revealed to be power. This is the same power a monarch wields over his subjects; agree to give me absolute power and I promise to protect you. If I fail to protect you, you either won't know because I got away with it and just lie about it or you end up dead and the point is moot; regardless you have no recourse since you've ceded absolute power in the first place.

Iran has many laws which restrict the rights of women, supposedly to protect them, so the hypocrisy is revealed when the authorities take to beating women who are trying to help those in need.

The voters want to know that their vote was heard even if their candidate lost. How the truth can be the enemy of some is covered in a previous article.

Minimalism in the current Supreme Court

This is an excellent analysis on the role a judicial doctrine of minimalism can play in decisions of the Roberts' Court. This is a viable, constitutional alternative to strict-constructionism without going to the constitutionally-suspect extremes of judicial activism.

Our Brothers' Keepers

Once, during a discussion about abortion, I made the argument that if we allow the government to tell citizens that they can not abort a pregnancy, philosophically it was similar to allowing the government the power to tell citizens that they must abort a pregnancy. Needless to say, that discussion did not resolve the issue; we'll probably eradicate world hunger or achieve world peace first.

In reexamining this argument, I wondered how easy it would be to reword a given prohibition to reverse the wording while keeping the dictate intact. For instance if we passed a law stating "No citizen shall be allowed to abort a pregnancy"; assume for the sake of argument that we've already agreed on the definition of the term abortion. The exact procedures are moot because we want to focus on the wording of the prohibition and not on the technicalities of the definitions or shades of grey. Picking abortion is done solely to start with an issue that is easily construed in terms of black and white.

If the law says, "You shall not abort" it could just as easily have been written as "You shall carry to term regardless". So even though the wording only states an action which can not be taken, it implicitly mandates the opposite action.

China already condones abortion through euphemistically named "One Child" policy. While China does not officially force abortions, there continue to be reports nonetheless. "You shall have up to one child" turns into "You shall not have more than one child".

Using another example, capital punishment, we could conceive of a law which says, "Thou Shall Not Kill" it implicitly demands "Thou Shall Protect Life". A capital punishment law which allows the State to kill someone could state "Causing the death of a person (through means described as "In the first degree") is punishable by death" is effectively saying, "The State shall kill those who commit first degree murder." If we really believe in the principle of "Thou shall not kill" then capital punishment must by necessity claim an exception in the definition of what the term 'kill' means. Killing usually means ending a living persons life. Allowing the State the power to define exceptions makes the commandment not to kill into a morally relative value "Thou shall not kill... unless the State says it's ok" which could include self-defense, war, defense of others, or the state ordering the killing of a citizen which it feels is deserving of the ultimate punishment. One counter argument has been "they don't deserve to live" or "they lost their right to life when they took another's". If I don't deserve to live, then I deserve to die. If a State uses it's sovereign power to execute someone unjustly, upon whose soul does the responsibility for a wrongful death rest? Since a State does not have a soul in and of itself, then evil done by the State must then be shared by the people of that State, unless it can be determined to have a singular responsible ruler, a 'Unitary Executive' if you will. If the State can not be held responsible for it's own moral failings, then that leaves the people who actually carry out the misdeeds. The hooded executioner,for example, who either cares not about such metaphysical questions or uses their faith in the infallibility of their leaders judgement as a shield against the possibility of personal guilt.


"Thou shall not covet" (stealing is illegal) becomes "Thou shall be content with what you have and your opportunities to change what you have." (No short-cuts to wealth, only follow the culturally acceptable avenues." Of course I'm paraphrasing here but I'm wandering through examples, trying them on for size to see whether there is an example which disproves the idea.

Summary: You must do X is equivalent to You shall not do non-X, or You must not do X becomes You must do non-X.

In programming-speak, (X == true) is the same as (X != false) .

Questions for Sotomayor

Now that President Obama has nominated Appeals Court judge Sonia Sotomayar to replace retiring Justice Souter on the High Court, what should the Senate focus on in its confirmation process to give Sotomayor a fair hearing while respecting her obligation to not prejudge specific cases that will undoubtedly come before the Supreme Court during her tenure (assuming confirmation)? This article by Neomi Rao asks some good questions that senators should ask Sotomayor to get to the root of her judicial philosophy:

• Do you believe that judges should use "empathy" to decide cases?


• Do you believe that interpretations of the Constitution should evolve to keep up with the times?


• Should Supreme Court justices be bound by precedent?


• What is the court's role when interpreting ambiguous laws?


• What matters most, the law or the result?

If Sotomayor's answers reveal a role for identity politics and policy-making in judging the facts of cases or the constitutinality of laws, then her nomination should be voted down.

Voices from the Past

Extremism in the defense of liberty is no vice. And moderation in the pursuit of justice is no virtue.

- Barry Goldwater


Remember, ignoring torture for the sake of security is not a defense of liberty. And ignoring crimes committed by the previous administration, for the sake of not rocking a political boat, is not justice.

The three-fifths Clause

Akhil Reed Amar provides a "biography" of the U.S. Constitution in his book America's Constitution. The book is an honest look at the Constitution, praising the Founders for the visionary and revolutionary aspects of the document, along with biting criticism of those constitutional provisions that perpetuated the Union's addiction to slavery. There are three clauses that Amar lists under this latter category:

• the three-fifths clause


• the fugitive slave clause


• the slave-trade clause of Article I, Section 9, which restricts Congress's ability to outlaw the importation of slave into the United States until 1808.
  

Amar argues these three clauses worked together to make the Constitution a pro-slavery document. While the effects of the second two provisions are more obvious, the impact of the three-fifths clause was more insidious, catching many of the Framers themselves by surprise (at least those from the Northern States). Allowing the Southern States to count slaves as three-fifths of a person for purposes of representation in the House of Representatives gave the slavocracy more Representatives than their numbers warranted because the South did not allow slaves to vote. Not only were slave owners rewarded with greater representation as they increased their numbers of slaves, they were given a higher ratio in the electoral college because each State's representation in that body is the number of representatives in the House plus its two Senators. This meant the slave States had a greater weight in electing the President than their numbers of free people warranted. Four out of the first five Presidents were from slave states or slave state sympathizers, and this effected the nominations of judges to the federal bench. Hence, the atrocious, extraconstitutional decision of the Dred Scott case. So the three-fifths clause ended up embedding incentives for the expansion of the "peculiar institution" within the structure of the federal government itself.

This clause is generally defended as a necessary compromise between the North and South to enable all thirteen States to adopt the proposed Constitution, but Amar thinks otherwise:

The three-fifths clause offered one solution. But in 1787 there may have existed at least one other plausible solution that could have satisfied both slavery interests and anitslavery institutions. Imagine, for example, that Gouverneur Morris had proposed that slaves should count as four-fifths in the first decennial census in 1790, three-fifths in 1800, two-fifths in 1810, one-fifth in 1820, and zero-fifths thereafter. Such a sliding-scale approach would have addressed the South's concerns about is immediate prospects as a legislative minority while ensuring a gradual transition away from a rotten ratio, with plenty of time for slaveholders to make adjustments. Because most Southerners expected their region's population to grow much faster than the North's, they could have anticipated that their rising share of free citizens within the union would tend to offset the effect of the declining rate at which they could count slaves.

Such a sliding-scale compromise would not have ended slavery per se, but at least the South would not have been incentivized by the constitutional structure itself to increase its dependence on slavery. Many in the South were leaning towards abolition in the 1780s as it was, so the absence of enabling rewards for maintaining and expanding the inhumane practice would have gone a long way to its eventual peaceful extinction.

We must remember that as great as the Constitution of the Founding Fathers was, the seeds of our greatest conflict, the Civil War, were sown within its words. As with any human endeavor, it should not be made into an idol by an unthinking, uninformed citizenry.

Thinking About Torture

Damon Linker at The New Republic has an insightful piece entitled Thinking About Torture. He gives expression to many of the thoughts that I have been struggling with around this topic - the fundamental belief that torture is wrong, but burdened with a nagging wonder about the extreme case of existential threat. Over the past seven years, the debate has been overly simplistic and polemic on both sides.

I've pondered for years what to say about the Bush administration's use of torture in the years after 9/11. So far I've remained quiet about the issue because I'm so uneasy about it -- not just about what the United States has done, but also about the reactions of nearly everyone who has commented on it.

Linker looks for guidance in this issue from Leo Strauss, author of Natural Rights and History, as the thinker who "is strongest in discussing what he called the 'permanent problems' of politics."

Under normal circumstances, the two parts of political morality cohere enough that the tensions between them rarely show themselves. But in extreme situations -- situations in which (in Strauss's words) "the very existence or independence of a society is at stake" -- there may be "conflicts between what the self-preservation of society requires and the requirements of commutative and distributive justice. In such situations, and only in such situations, it can justly be said that the public safety is the highest law."

I think, however, that the Bush Administration's downfall, and the inherent danger their course of action posed, was in its secrecy. "Executive privilege" and making decisions behind closed doors for reasons of "national security" are the watch words and cloak of every tyrant and imperial power in world history. Liberty and freedom flourish in the fresh air of the open daylight, so if a policy of torture is required for the self-preservation of society, then that is a discussion that the Bush Administration should have taken to Congress so that an open debate could have ensued. The few are not competent to decide for society if such extreme measures are required. The society in whose name the Government is asking to be able to commit such acts should have the right and obligation to authorize their use.

Everyone could have taken part in the conversation and we could have avoided all of the the Monday-morning quarterbacking we see going on now on "a bright, sunny, safe day in April 2009" -- as Director of National Intelligence, Dennis Blair, has put it. After the proper hearings and investigations, Congress could have made an informed decision to amend the law. The CIA could have then remained in the bounds of the law as they did what they needed to do, and field agents would now not be worrying if politics will drive their prosecution, after previous OLC assurances that they were acting legally. In addition, if walking into such dark territory is required, leaders are less apt to let the power go to their heads if they are being watched by society and Congress.

Bush Administration defenders will undoubtedly say that we would have had no time for a debate in the aftermath of 9/11 or that such a discussion would have tipped our hand to our enemies. But according to reports, the Government did not begin exploring "harsh interrogations techniques" until well into 2002. That would have given us several weeks (or months) to have this conversation. And even is the Administration needed to have more latitude more quickly, constitutional principles do not change just because they become inconvenient. Besides, Congress has shown it can work with speed in cases of national emergency. FDR received a declaration of war against Japan on the same day as the attack on Pearl Harbor. After 9/11, Congress passed the Authorization for Use of Force Resolution within three days. And if the United States had published such a policy change with the full support of the U.S. Congress (the representatives of the American people), then it would have undoubtedly worked to our advantage to strike fear in the hearts of al-Qaeda.

In the end, such an approach would have allowed America to head into the ugly days ahead with our eyes wide open, and no one would have been able to claim innocence or ignorance. It is all too easy to cry for the hides of those who kept us safe when we can claim blissful ignorance, even if that ignorance was willful at the time.

The Great Debate: liberty or death?

I have been listening to a course from The Teaching Company on the debate over the proposed Constitution between the Federalists and the Anti-Federalists. Professsor Thomas L. Pangle (University of Texas at Austin) teaches the course, The Great Debate: Advocates and Opponents of the American Constitution , which does an outstanding job of framing the debate between the two sides in its historical context and presenting the give-and-take discussion. The Federalist Papers are often presented as a self-contained treatise on the Constitution, but they were, in reality, part of a broader conversation, reacting to accusations and questions from the Anti-Federalists and lodging accusations and questions on behalf of Hamilton, Madison, and Jay (their authors).

The Anti-Federalists also presented some salient concerns in their opposition to the proposed Constitution. Among them:

• the proposed Constitution would lead to the establishment of a military industrial complex (not their words, of course), which would lead to America drawing unto itself the trappings of empire and shedding her commitment to republican virtue;


• juries would lose their right to interpret the law under the proposed Constitution and the federal judiciary would become an unaccountable aristocracy; and


• the states would eventually become mere administrative subdivisions of the federal government because states do not have an effective constitutional check against the federal government (Madison pointed to the fact that the states appointed senators under the design of the proposed Constitution, but this effective check was removed with the passage of the Seventeenth Amendment).

The Federalists consistently seek to recast Anti-Federalist concerns by focusing on the need for a strong central government to protect the national security of the United States. Whereas the Anti-Federalists were concerned to protect the classical republican freedom of the United States, which called for small communities governed by like-minded, virtuous citizens, the Federalists called for society to include a broader, more diverse territory whose sheer size would draw in competing interests (factions, to use Madison's term) to protect republican freedom at home and from attack from abroad.

I will spend a few upcoming blog posts looking at these debates in more detail, but what intrigues me from a birds'-eye view is the same basic question that we still deal with today, most recently in the days since 9/11. The Bush Administration thought it was necessary to engage in torture to protect America from further terrorist attacks after 9/11. While there is some circumstantial evidence that this policy protected the U.S. from further attacks, the brutality and dehumanizing consequences of these "enhanced interrogation techniques" are highlighted by Mark Danner in his piece US Torture: Voices from the Black Sites. Now the Obama Administration has prohibited these techniques from being used by U.S. governmental agencies because, as the new president has said, they violate America's core principles of liberty and commitment to human rights. But the President has said he'll do what is necessary to protect the United States, so one wonders what that would mean if another terrorist attack should befall the U.S.

So the question becomes - can a love and commitment of freedom and liberty coexist with institutions required to defend and make war? In the spirit of the Governance Imperative, these are two competing principles that must be balanced, but can the balance truly be maintained without detriment to either principle? Peace and security can be easily maintained through the use of excessive force, but freedom and liberty will suffer and be snuffed out. Witness Nazi Germany, Soviet Russia, Iran and North Korea. Liberty and openness can flourish, but society is then left vulnerable to attack and domination from the outside. Witness the classical Greek city-states, the Roman Republic, and the medieval Italian cities. In the latter cases, the republics were only able to save themselves by giving up liberty for ever more powerful militaries and dictators. Patrick Henry insisted on being given liberty or death, but most people will take security and peace over anything.

Whatever the prescient warnings of the Anti-Federalists, the Constitution has enabled the United States to strike an uneasy, if ever-correcting, balance between liberty and security. The ability of Americans to maintain this balance will be directly dependent on our continued fidelity to republican principles and the constitutional order.

Bonhoeffer on Bush

Dietrich Bonhoeffer, in his writings published as "Letters and Papers From Prison", provides mankind with a strong statement on morality and the relationship between a citizen and the State. While Germany was under Hitler's grip, there were well educated men who understood that their duty was to follow orders, unlike Bonhoeffer who understood that to allow an evil to be committed was morally the same as to commit the evil yourself. We can't blame this divide on education or its lack. Otto Thorbeck, the judge over Bonhoeffer's trial, had the same classical education as Bonhoeffer; studying Antigone, Iliad, The Oddyssy, and The Bible. Works which provide guidance as to the meaning of good vs evil, justice, wisdom, and duty. If you don't believe in absolute good or evil, you could easily make the case that it is permissible to act in a normally unjust manner when the circumstances permit, that enacting the injustice on the orders of others does not sully ones own soul, or in other words sometimes it's ok to kill.

Bonhoeffer suffered the punishment of the State rather than acquiesce to the idea that the State is the arbiter of what is Absolutely Good or Absolutely Evil. If the State says that a prisoner is a traitor and needs to be sentenced to death, it isn't the individual's place to disagree. That is what Thorbeck believed, he was just doing his duty. Bonhoeffer didn't have to be imprisoned but faced certain persecution with the conviction that what Germany was doing was wrong and to not speak or act out would be equally wrong of him, a sin of omission.

So, what questions does this pose?

- Whose place is it to determine what is good or evil?
- Does a State have a soul? a conscience?
- If a State is soulless, upon whose soul falls the burden of evil acts done in the State name?
- If an action is evil when committed by an individual, can a State, on its own authority, declare that act to be just and legal when done in the State's name?
- When is it the duty of a Citizen to disobey the State?
- How should we feel about a society that allows the State to commit evil acts?

I expect to follow this piece with others where the lessons of various books that have made history can teach us about life in the modern age. Next would be Homer's Iliad.

Truth and Power

Politicians are afraid of the truth. Truth is an absolute, something which does not sway in the wind, something that can not be possessed or subverted to private purpose. Politicians deal in perception which can be manipulated, twisted, changed; used as a shield, e.g. "wrapping themselves in the flag" or as a weapon, e.g. "Saddam has WMDs" or McCarthyisms "Better dead than Red".

The most a politician can do with Truth is to reveal or conceal it which includes half-truths and such. Truth becomes like the rock upon which a lighthouse is built. We could tell a story about politicians and Truth.

A long time ago on a long forgotten coastline, there was a dangerous outcropping of rock near a small fishing village. Many ships, loaded with their catch bound for the sailors families, had been sunk coming back from their time at sea. The village can ill-afford building a lighthouse to warn sailors of the dangerous rocks but reject the notion of risking more ships on a known danger. And so the lighthouse is built. The people are proud of their accomplishment, they've made their world a better, safer place.

Nature, having setup the rocks as a deadly game of chance between incoming ships and the rocks, sees the completed lighthouse and feels thwarted by the puny men; cheated of the spoils of it's "game". Angry now, Nature decides to strike back against the hubris of men, sending rain, wind, and waves to batter the lighthouse, to blind the revealing light and tear down the tower that deigns to signal danger to the unwary. The lighthouse, being a product of man, cannot withstand the relentless attack of the elements and falls, its light no longer shining, its building no longer standing guard.

The rocks remain, ships continue to sink, the widows continue to weep, the people continue to lament their losses. Nature continues to enjoy the offerings of the village, safe in the knowledge that its capricious nature is again safe from the light of the truth.

To those who seek power, that which does not empower them further is an obstacle to further power whether by being a hindrance directly or by being a distraction indirectly; thus Truth which does not support is concealed to guard against being used as a weapon against the power-seeker. Perception is the currency of power and a people distracted by a tangential Truth is a threat to those to covet the power of crowds willing to believe and follow. The lighthouse is not the Truth but only the marker of it. Nature may be able to destroy the marker but the rocks, like the Truth, remain.

Dick Cheney is a Statist

What does it mean to call someone a Statist? A Statist is someone who believes that the individual citizen is a component of a State where the interests of the State override the interest of the individual. This directly contradicts Lincoln's legacy, "government of the people, by the people, for the people" which recognizes that government is a servant of the people, not the other way around.

Here are some questions to help determine whether someone is a Statist.

Which is more important, the liberty of the individual or the liberty of the State?
Let's define liberty as the freedom to act
Does the liberty of the citizen contribute to the liberty of the State?
Does the liberty of the State contribute to the liberty of the citizen?
Would the increase in the liberty of the State ever cause or involve the decreased liberty of the citizen?
Would the increase in the liberty of the citizen ever cause or involve the decreased liberty of the State?

Is a State responsibile for the liberty of its citizens?
Is a citizen (or citizens) responsible for the liberty of the State?

Epilogue - how do we feel about a Vice President who feels that it is ok for a State to torture it's own citizens "in the name of war" but when it comes to using the power of government for the direct benefit of citizens his tune becomes,

"I worry a lot," he told King, "that they're using the current set of economic difficulties to try to justify a massive expansion in the government, and much more authority for the government over the private sector. I don't think that's good. I don't think that's going to solve the problem."

Maybe the best way to explain it is that the Bush administration didn't lack in ethics, because they redefined that word to their own liking, but they lacked a sense of shame. Why there hasn't been an expression of shame over the Yoo documents is almost totally beyond me. All I can comprehend is their total faith in their own decisions and the inability to look backwards and reflect. "We did what had to be done" is a self-comforting way of avoiding admitting mistakes but it should not hold us back from expressing our sense of shame over their actions.

Here is a question with which to leave you.

Would you rather,
a) live in a country that allows the torture, secret surveilance, indefinite detention, and extra-judicial arrests but have a secure feeling that you aren't going to be attacked tomorrow;
OR
b) live in a country that does not allow torture, requires warrants for wiretaps and arrests, guarantees the accused a day in court to show why they are innocent, in return for the mature and rational realization that no government can keep you safe 100% of the time.

To Appoint or Not To Appoint? That is the question.

Gubernatorial appointments to the Senate have not gone very smoothly as of late. Anyone who has paid a modicum amount of attention to the news over the past four months is well versed in the sad displays surrounding the appointment of Rolland Burris to the Senate by then-Illinois Governor Rod Blagojevich and the short-lived bid of Caroline Kennedy to take Hillary Clinton's New York Senate seat. These pathetic spectacles would be comical if the issue were not so serious. They surely do not bring dignity or legitimacy to the United States Senate!

To correct a process that is so obviously broken, California Senator Russ Feingold has introduced a proposed constitutional amendment that would mandate special elections to fill open Senate seats. This would bring the filling of Senate vacancies into line with the process ordained by the original Constitution for the filling of House vacancies and remove any doubt or question around senatorial successions. Where the people vote in open, free and fair elections, there is no question regarding who their legitimate representatives are.

If you haven't noticed by now, one of my hobbies is to consider the pros and cons of proposed amendments. Since the Senate and House Judiciary subcommittees will hold a joint hearing on this proposed amendment today, now seems as good a time as any to evaluate this amendment.

Feingold's proposed constitutional amendment reads as follows:

IN THE SENATE OF THE UNITED STATES

January 29, 2009

Mr. FEINGOLD (for himself, Mr. BEGICH, and Mr. MCCAIN) introduced the following joint resolution; which was read twice and referred to the Committee on the Judiciary

JOINT RESOLUTION

Proposing an amendment to the Constitution of the United States relative to the election of Senators.

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years after the date of its submission by the Congress:

`Article --

`Section 1. No person shall be a Senator from a State unless such person has been elected by the people thereof. When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies.

`Section 2. This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as a part of the Constitution.'.

I have stated a preference for repealing the Seventeenth Amendment and going back to the original constitutional design where State Legislatures filled their State's two Senate seats. My support for a constitutional change to mandate special elections to fill open Senate seats might seem contradictory to this stated preference, but I also realize we live in a world in which the Seventeenth Amendment will not be repealed any time soon. Elections are the ultimate process that governs our country, and of all of our governing institutions, elections are, next to the Constitution itself, the most foundational and legitimate.

In addition, appointment by one man (the Governor) as opposed to appointment by a State's Legislature is a difference of kind and hardly comparable. The original constitutional senatorial selection mechanism was part of a broader scheme of federalism that the Founders put in place (the other components of federalism being the electoral college, state militias, the Second Amendment, juries, courts, and the constitutional convention process). When all of these parts worked together, they served to maintain a federal / state balance. Many of these components of the Founders' federalism have either vanished or fundamentally changed however, and senatorial appointments by Governors do nothing to move us towards a federalism re-balance.

The most prolific objection I have heard against Feingold's proposed amendment is the terrorism question - "What if terrorism or some other calamity killed every member of Congress? At least Senators could currently be appointed, but Representatives have to be elected. Mandating senatorial special elections would make it impossible to quickly reconstitute the Senate, just as it is currently impossible to reconstitute the House."

Honestly, if this is the best the opposition has, then this amendment should easily pass. In over 200 years of history, a desperate Revolutionary War that the Congress led, a War with the British that saw Washington D.C. burned to the ground, a devastating Civil War that tore the country apart, two World Wars, multiple economic crises, a Cold War fraught with the very real possibility of nuclear annihilation, and the terrorist attacks of 9/11/2001, are we *so* afraid of some theoretical event that has very little real chance of succeeding in the first place? Do we design our normative, fundamental constitutional principles around the most extreme of statistical possibilities?

Even in the unlikely event that such an attack did take place *and* was successful in completely destroying the Congress, special elections could be held within two to three months and voila la! You suddenly have a reconstituted Congress that is untainted by questions of legitimacy and free of suspicion over who it speaks for - special interests or the People. Even in the most dire of circumstances that threatened our nation's survival, President Lincoln prosecuted the War against the Confederacy for months before Congress convened in the summer of 1861. Elections are *not* a luxury that we suddenly throw out the window when we think they are no longer convenient. They help define who we are as a people and how we come together in consensus, particularly in tough times. If we want efficiency to inform our fundamental design of governance, might I suggest Machiavelli's The Prince?

So Feingold's constitutional amendment is a much needed corrective to a major defect in the Seventeenth Amendment. If we are going to keep direct elections of Senators as our preferred method of selection, we are better off applying that method in all cases, especially where emergencies are concerned.

The Moral Instinct

The Moral Instinct is an intriguing article in The Times Magazine from back in January. The author argues that studying the "moral sense" of human beings can help us "see through the illusions that evolution and culture have saddled us with and to focus on goals we can share and defend." While there is much for me to quibble with in this article, it does bring out some helpful perspectives that would advance societal debates and relations in this country, along with how Americans see other cultures around the world.

For all the different moral concerns and perspectives found around the world, the article argues there are five themes that are common across all cultures: harm, fairness, community (or group loyalty), authority and purity. The differences in morality can be reduced to the emphasis placed on each of these themes by each culture.

The five moral spheres are universal, a legacy of evolution. But how they are ranked in importance, and which is brought in to moralize which area of social life — sex, government, commerce, religion, diet and so on — depends on the culture. Many of the flabbergasting practices in faraway places become more intelligible when you recognize that the same moralizing impulse that Western elites channel toward violations of harm and fairness (our moral obsessions) is channeled elsewhere to violations in the other spheres. Think of the Japanese fear of nonconformity (community), the holy ablutions and dietary restrictions of Hindus and Orthodox Jews (purity), the outrage at insulting the Prophet among Muslims (authority). In the West, we believe that in business and government, fairness should trump community and try to root out nepotism and cronyism. In other parts of the world this is incomprehensible — what heartless creep would favor a perfect stranger over his own brother?

Of course, harm and fairness are the moral themes that dominate the United States: both historically and in the present day. While we don't completely ignore the other three (indeed, community, authority, and purity are much more important themes among more conservative-leaning and religious Americans), these two themes inform our collective sense of morality to the point that they guide our sense of Government's role in our lives, i.e., that the Government should enforce laws equally (fairness) and defend us from attack (harm). These are also the competing themes that tear us apart in the abortion debate: protecting innocent life from harm versus treating women fairly. If we don't realize this, it is all too easy to see "the Opposition" as amoral and unprincipled.

We wrote the Governance Imperative thesis three years ago, and our moral categorization (what is right vs. what is fair) differs from that of this article. However, the important distinction is present in both categorizations. There are competing moral themes that we must consider as we approach any major societal question, and the Founders were well aware of these competing moral themes when they wrote the Constitution.

Who Guards the Guards?

The 'Yoo Debacle' provides a clear example for why transparency is important in the Executive branch. I would think that 'secret' laws would be unconstitutional, why then would we allow a 'secret' legal basis for the execution of our laws? The Bush administration's refusal to provide Congress with the legal basis for the Executive branch's behavior is tantamount to saying "It's legal because we say so!"

Bush Administration's legal basis for torture, warrantless searches, etc.

Here is a good excerpt:

=== begin excerpt ===

As Bradbury makes clear, the legal analysis in these memos, time and again, was just plain bad legal argument. Some of the arguments veer into the bizarre. Consider this concluding passage from a Yoo-Delahunty memo arguing that the president can order warrantless searches (case citations deleted):

The courts have observed that even the use of deadly force is reasonable under the Fourth Amendment if used in self-defense or to protect others. Here, for Fourth Amendment purposes, the right to self-defense is not that of an individual, but that of the nation and of its citizens. If the government’s heightened interest in self defense justifies the use of deadly force, then it would certainly also justify warrantless searches.

Huh? The reasoning goes like this:

Individuals can use deadly force to defend against a deadly attack;

The government can use deadly force to defend the nation against an attack;

Therefore: the government can engage in warrantless searches.

=== end excerpt ===

Throwing the First Stone

This article about the influence of the physical world and the structure of moral perception [www.sciam.com] was very interesting.

Is this a case of "Thou doth protest too much"? What can we take from this study and apply to our search for better government?

What possibility is there that those who relish the role of morality police have secrets of their own which make them judge others more harshly?

Would you notice a difference in the sermon at your church if the pastor ritually cleansed him or herself before speaking?

The Truth is so Bright I Gotta Wear Shades

Truth and Politics. Normally the truth is black or white. I'm beginning to wonder if politics is the art of not stating the obvious. The current economic crisis provides for an easy example. Economists are saying that nationalizing the banks is a valid remedy for a failing banking system. The Secretary of the Treasury is avoiding mentioning the term even off the record. If asked point blank, it is a good bet that he would not admit that it is a potential action worth exploring. Here is where the political truth comes in. If you asked him why he won't discuss it, he will actively avoid admitting that the political cost is too high. Not giving the opposition a chance to score points then becomes the elephant in the room.

Everyone knows why we don't talk about the solution openly, making it ever so difficult to face our problems, hog-tying ourselves for the sake of political strategy.

The Illusion of Control and the Hidden Costs Thereof

Fort Worth Star-Telegram, Tuesday, March 3, 2009; Northeast section, page 6B (The title of this post links to the full article):

"Bill would move sex ed away from abstinence-only" - Kelley Shannon (AP)
Austin - Texas's sex education curriculum, which now teaches abstinence as the only form of birth control, would include more medical information about contraception and disease prevention under a bill proposed Monday by Democratic lawmakers.

"The status quo is not working," Sen. Rodney Ellis, D-Houston, said. "Only through honest information will teens have the tools they need for responsible decision making and disease prevention."

A bill proposed by Ellis and Rep. Joaquin Castro, D-San Antonio, would give teenagers access to "complete, medically accurate and age-appropriate" sexual health information at school with the aim of reducing teen pregnancy and infections, the legislators said.

The current abstinence-only sex education system has been in place since the mid-1990s when George W. Bush was governor. Republican Gov. Rick Perry will review the new proposal but "is comfortable with current law and supports abstinence programs," his spokeswoman, Allison Castle, said.

The conservative Texas Eagle Forum views the Democrats' proposal as trying to cover up immoral behavior by men and doing the bidding of abortion providers, Cathie Adams, president of the organization, said.

"I see this as a very anti-woman, anti-girl attempt," Adams said.

"It's putting immorality off on children."

Commentary

Was Mrs. Adams the best spokesperson for the opposing viewpoint? Does she really think that telling teenagers how diseases spread is promoting immorality? It's one thing to argue that sex-education condones sex or should be left to parents but the reality is I don't want my daughter to make life-altering decisions based on ignorance or naivety. Think of the stakes! Do I want to risk my daughters health on the assumption that she'll always obey her parents? Or do I educate her on how easy it is to get a incurable or even life-threatening disease? Limiting the discussion to "As long as you do as I say, everything will be fine" works only as long as your child doesn't contemplate disobedience. Even if they abstain until they get married, what about their partner? Whatever control you may have over your children's decisions about having sex, you have absolutely zero control over their potential partners.

Is the Star-Telegram just baiting us with Mrs. Adams? I'm having a hard time understanding how sex education is limited to being anti-girl? Why not anti-boy? Does she suggest that the way to protect girls is by keeping them ignorant? Does it mean that it's always the girl's fault? Do boys have no responsibility when it comes to sex? Is it so hard to remember just how easily hormones influence teenagers?

This whole discussion reminds me of the driver who refuses to yield to the large truck who just ran a stop sign. Yes you have the right of way, yes, the other driver should have stopped, yes the law is on your side, yes the other driver is at fault, yes, yes, yes, you are right; but you're also dead.

Do you want to be "Dead Right" with your childrens health?

Irrational Rationales

It's always been frustrating to me to hear supporters of a U.S. Administration dismiss criticism with nothing more than a perfunctory evaluation. I've become convinced that it is very easy for a leader's supporters to consider counter-arguments as somehow attacks on the President himself and therefore a sign of disloyalty. Paul Graham discusses how identity influences a debate and I'm inclined to agree with him.

What the fan-boys, which I'm wondering whether may be an appropriate term for the most extreme devotees, of an administration should understand is there are plenty of people who need to see the administration debate an issue; when they come out with a position and defend it as if it was perfect those people feel like they are being dictated too, cut off from the idea evaluation process. Do they expect the public to praise the announced policy as in, "Yea! We don't have to think anymore, the President will save us!"? There is something to be said for public debate, the collaboration towards a better idea.

"A well-regulated Militia, being necessary to the security of a free State..."

"A well-regulated Militia, being necessary to the security of a free State..."

The Second Amendment to the Constitution of the United States guarantees the "right of the people to keep and bear arms," but only after it couches the right in (to modern ears) an obscure prologue that would seem to lay out the context and purpose of the right. For a hundred years or more, constitutional scholars and courts have argued back and forth over whether the Second Amendment secures an individual right to keep and bear arms, or whether this right is a collective right that secures the prerogative of the State to establish a Militia not controlled by the federal govenment. In his book America's Constitution, Akhil Reed Amir analyzes this debate and concludes that both sides miss the point of the Founders' inclusion of the right to bear arms in the Bill of Rights.

Amir writes:

Beneath the words [of the Second Amendment] lay a profound skepticism about a permanent, hierarchical standing army that might not truly look like America. Such an army might come to embody a dangerous culture within a culture, a proto-military-industrial complex threatening republican equality and civilian supremacy. The amendment's root idea was not so much guns per se, or hunting, nor target shooting. Rather the core idea concerned the necessary link between democracy and the military: We, the People, must rule and must assure ourselves that our military will do our bidding rather than its own. According to the amendment, the best way to achieve this goal would be via a military that would represent and embody us -- the people, the voters, the democratic rulers of a "free State." Rather than placing full confidence in a standing army filled with aliens, convicts, vagrants, and mercenaries -- men who would not truly represent the electorate and who might well pursue their own agenda -- a sound republic should rely on its own armed citizens, a "Militia" of "the people." Thus, no Congress should be allowed to use its Article I, section 8 authority over the militia as a pretextual means of dissolving America's general military structure -- this was the core meaning of the operative "shall not be infringed" command. (p. 323)

Amir goes on to refer to this understaning of the Second Amendment as the republican reading, distinct from the two modern readings of states'-rights and individual-rights.

States' rights anachronistically read the "Militia" to mean the government (the paid professional officialdom) rather than the people (the ordinary citizens). Equally anachronistically, individual rights read "the people" to mean atomized private persons, each hunting in it's own private Idaho, rather than the citizenry acting collectively. But when the original Constitution spoke of "the people" rather than "persons," the collective connotation was primary. (p. 324)

The principle underlying the Second Amendment was the lynchpen to guaranteeing a free Republic against tyranny and run-away Armies. For the Founders, the militia were the people and the people were the militia. The idea was the same one that instituted and pushed juries as important safeguards to liberty: the people, through non-permanent, non-beauracratic institutions, would counter the power-consolidating tendancies of the standing organizations of government and therefore act as a check and balance. Just as the House and Senate would check one another in the Congress (legislative branch), juries would check the standing courts and judges (judicial branch), and the militia would check the standing federal armies (executive branch). Each federal branch had bicameralism built into it. "Founding-era militias were closely akin to Founding-era constitutional conventions, electorates, and jurors. In each context, state law helped define precise boundaries of 'the people,' sepcifying when and how the people could properly act. Yet these webs of state law did not thereby transform any of these entities into an ordinary government agency. Rather, in each case, the law enabled 'the people' to act outside ordinary governmental channels and theteby check the professional officialdom." (pp. 324-325)

Last year in a post analyzing constitutional remedies to prevent run-away presidential war powers, I said I was not prepared to suggest ways to secure the country against presidents who would utilize the military domestically in unconstitutional, dictatorial or totalitarian ways. The militia was the Founders' answer to this threat, and for the first one hundred years of the Republic, the militias functioned as the Founders expected. So what happened to the militias? In two words, the Civil War.

 

Amir explains:

 

[T]he Civil War and Reconstruction generated a powerful constitutional counternarrative to the (romanticized) Revolutionary War vision at the heart of the Founders' Second Amendment. The very birth-logic of the Reconstruction Amendments -- the process by which they came to be proposed and ratified -- depended onthe good offices (and good officers) of the Union Army. As constitutional events of the highest import, these amendments necessarily valorized the central army and called into question the anti-army ideology driving the Founders' Second Amendment. But even as Reconstruction Republicans buried their fathers' Second Amendment, they helped unearth a new understanding of its intriguing language. Reading the amendment's words in the light of their own lived experience, they deemphasized militias and states' rights whiel accentuating an individual right of all citizens -- women as well as men, nonvoters as well as voters, civilians as well as militiamen -- to keep guns in private homes for personal self-prtection.

 

The United States today has the finest, most profressional, best trained fighting force ever assembled. It can beat any enemy in war, and it has never been used to suppress American citizens. Perhaps individual rights and liberty are so interwoven into the American story and psyche that the Army could never be used against its own people. Perhaps the fact that the military is made up of American citizens who volunteer to server their neighbors means that the Army will always be the best of us, even proitecting us from ourselves. If this is the case, then there is nothing in the world that even the best crafted constitional provision can add by way of protection.

Why Polls Matter

The Bush Administration is well known for ignoring polls, especially the ones showing low approval ratings. While I'm sure they secretly basked in the glow when the ratings were sky-high after 9-11, no one was asking if he believed in polls either; the opposite of a "sunny weather" phenomenon, only getting asked about poll numbers when they are going down.

After reading a passage in chapter 9 of Machiavelli's "The Prince" (Concerning A Civil Principality), I wondered if Bush's fate was described 500 years ago. Here, a "prince" was any sovereign leader of a State and "people" meaning the citizens of a free state as opposed to the subjects of a monarchy.

The worst that a prince may expect from a hostile people is to be abandoned by them;

My question is whether this is exactly what happened to Bush after Katrina. Through his personal inaction and acceptance of the incompetence of others. The best quote of article is,

"Brownie, you're doing a heck of a job," Bush said.

Brown resigned 10 days later.

Bush was abandoned by the people. His stubbornness continues through Obama's fateful inauguration. Could it have triggered the next step (see Machiavelli chap 19 "That One Should Avoid Being Despised And Hated")?

So, why do polls matter? Consider another quote from the L.A. Times article on Bush's former aides and their take on his presidency.

In the months after the 9/11 attacks, Dimock said, when his polling asked for a single word to describe Bush's presidency, the most frequent responses were "leadership" and "strength." After Katrina, he said, "the top word was 'incompetent.' "

Bush liked to brush off bad poll numbers by saying that making tough decisions makes you unpopular. People weren't just disagreeing with his decisions, they were changing their opinion his ability to lead. So, like the proverbial baby and bath water, Bush's rejection of polls didn't just disregard the people's opinion of him but turned a blind eye to the people's disregard and rejection of his presidency.

Bush's Final Report Card

Bush Wins and Losses

Stem Cell Research - L
Intelligence plane over China incident - W
9/11 - W
Afganistan - W
WMD - L
Iraq - L
The Surge - W
Mission Accomplished banner - L
Plamegate - L
No pardon for 'Scooter' Libby - W
Abu Graib(sp) - L
Guantanamo Bay - L
Torture/waterboarding - L
Supreme Court Nominees - no decision
Katrina - L
Head of FEMA nomination - L
Stimulus package 1 - L
Stimulus package 2 - L
SEC oversight - L
Financial industry oversight - L
Darth Chaney - L
unitary executive theory - L
VP part of the legislative branch - L
Politization of science policy - L
Firing of 8 Federal Procecutors - L
Keeping Rumsfeld too long - L
'Axis of Evil' - L
North Korea - W
Iran - L
Canning Kyoto - no decision
“Enhanced interrogation of terrorists.” - L
Rebuilding presidential authority - L
Mid-east policy - L
No Child Left Behind - L
Medicare prescription drug benefits - L
Better relations with east Asian democracies - W
Compasionate Conservatism - L
Global Gag Rule - L
Terri Shiavo - L
Extraordinary Renditions - L
Relations with Russia - L
Relations with Europe - L
Relations with South America - L
Genocide in Africa - L

I'll add more to this as I think of them.

Torture part 2

This is a response to Craig's comment on my 'To Torture...' post.

The Omar case is a good example of micromanagement-through-policy. Heinlein's book 'Starship Troopers' has a similar example where a sergeant violated a direct order (to stay above ground) in order to achieve a strategic objective (capture of a enemy leader). The soldier had to be sufficiently disciplined to obey orders but also to be intelligent enough to know that there are valid reasons to disobey.

As for the usefulness of extreme interrogation methods, we have an inordinate amount of evidence that torture does not work. Another of Heinlein's books, "Friday" has a torture scene where the author very clearly examined the aspects of torture and very systematically repudiated any purported benefits. The poor soul you are torturing will tell you whatever you want to know just to get you to stop. Will you sometimes get the truth, surely. Will you save lives, probably. Will you be able to count the lives thus saved, unlikely. Will you still have the credibility for moral leadership, no. There is a caveat to this last point. It is possible to forgive a Prince who uses force, see Machiavelli's "The Prince" Chapter VIII [http://www.constitution.org/mac/prince08.htm] where he says this:

Hence it is to be remarked that, in seizing a state, the usurper ought to examine closely into all those injuries which it is necessary for him to inflict, and to do them all at one stroke so as not to have to repeat them daily; and thus by not unsettling men he will be able to reassure them, and win them to himself by benefits. He who does otherwise, either from timidity or evil advice, is always compelled to keep the knife in his hand; neither can he rely on his subjects, nor can they attach themselves to him, owing to their continued and repeated wrongs. For injuries ought to be done all at one time, so that, being tasted less, they offend less; benefits ought to be given little by little, so that the flavour of them may last longer.

While Machiavelli was referring to State building, I believe the same holds for the use of violent means during a conflict. The moral outrage was less about that torture was used and more about the idea that it could continue long after the crisis. Speaking for myself, I can forgive the Bush administration for its use of harsh methods in exigent circumstances. I can not forgive the unwillingness to disavow the use of torture in the future. We can not live in war-time forever just because it excuses bad behavior by those in power. Being unwilling to acknowledge that waterboarding is torture had few logical explanations in my mind; a) so as not to admit that we might have tortured in the past, b) to protect those who inflicted torture from prosecution by the law, c) because they considered acceptable behavior by a state. The first point implies knowledge of guilt, the second points to a conspiracy of the guilty, and the third is evidence of a twisted character.

Inflicting pain onto, or dismissing the pain of, others has always been the distinction of the sociopath; little boys who enjoyed pulling the wings off flies or torturing neighborhood cats and grew up to be serial-killers or rapists. Their lack of empathy makes them a danger to society.

Let's get back to basics. Is torture ever 'Right'? Is it ever 'Just', 'Fair', or 'Moral'?
I submit to you that torture violates the principles upon which this great nation was founded. Making an exception for your 'Jack Bauer' scenario only shows that it is sometimes considered necessary, convenient, and / or expedient, none of which I would want held up as examples of our society's defining characteristics.