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.

Proposed Amendment #5: Flag Desecration Amendment

The Supreme Court issued one of its landmark decisions in 1989, Texas v. Johnson, in which the burning of the American flag was protected as free speech under the First Amendment of the U.S. Constitution. The Congress responded by passing the Flag Protection Act, and the Supreme Court followed up by declaring the new congressional act unconstitutional and reaffirming the right to burn the flag in U.S. v. Eichman in 1990.

Since these decisions, the issue of flag burning has been an open soar festering on the American psyche. We are conflicted in that we want to respect the rights of minorities and individuals, especially rights as fundamental as free speech and the ability to protest governmental policy and action. Yet we also hate this particular form of speech because it cuts to the very symbolism of who we are as a nation and a people, a legacy of which we are, in general, very proud.

Congress responded throughout the 1990's by attempting to pass a constitutional amendment that would outlaw desecration of the flag. While the overwhelming majority of Americans and members of Congress supported the proposed amendment, a passionate minority spoke out and campaigned against the flag burning amendment. It was defeated or killed several times in the Senate after passing in the House of Representatives.

There are several problems with the proposed amendment considered by the Congress, the chief of which is how to craft a legal definition of a flag that wouldn't turn U.S. Attorneys into petty prosecutors and make us the laughing stock of the world. Would a T-shirt with an American flag on it be covered by the proposed amendment? If I threw such a T-shirt away, would that be considered a desecration of the U.S. flag? What if I had a bumper sticker of the flag on my car, and the sticker got scratched? Would I then be subject to prosecution?

While these hypotheticals might seem silly or far-fetched, they are not outside the realm of imagination, so people in power could twist the provisions of such an amendment if they wished to make political rivals go away. Or at the very least, to make life inconvenient for them. So the trick might be to craft constitutional wording that would express the importance of the flag as a symbol of America and her ideals while confining what might be considered a flag for the purposes of the amendment to a few, well-defined set of objects, such as flags that have actually flown over U.S. government installations (e.g., embassies, forts, legislative chambers, courthouses, etc.) or used in U.S. service (e.g., in military action, handed over to U.S. veterans or families, etc.). This last hedge would protect the provisions of the amendment from being used for blatantly political purposes while protecting the right of an individual or group to burn other representations of the U.S. flag in protest (or other actual U.S. flags that the burner owned or made himself). In short, the American people would be able to enshrine the importance of our flag as a symbol of the United States in a way that does not abridge individual's First Amendment rights.

With these purposes in mind, we would propose the following wording for a Flag Desecration Amendment to the U.S. Constitution:

Congress shall have the power to prohibit the physical desecration of any flag of the United States that has flown in an official capacity over United States property.

Secular Europe's Merits

Craig forward an article by Dennis Prager discussing the merits of Europe's embrace of Secularism. After reading the piece, I felt that the author made some assumptions with which I disagree. The columnist that was interviewed, Roger Cohen, might share some of the blame for using a poor analogy for Communism and Fascism. I didn't get to read Mr. Cohen's original article so I'll limit myself to examining Mr. Prager's response.

Using the total amount of people abused or killed by a regime as a metric makes as much sense as keeping the top-grossing movies list by the amount of money brought in using current dollars - it ignores inflationary effects. Just as ticket prices go up over time, so does the total population of Earth. Does that make Communism or Fascism off the hook, not a chance. It just means it's an apples-to-oranges comparison.

I'd also like to take issue with the contention that labeling communism and Nazism as religion avoids the issue. Those movements may not have been deity-centered but they still had common values and followers. I almost want to think that Mr. Prager didn't want the atrocities of those two regimes to be considered a religion because he doesn't want religion to be tainted by association. If anything, I'd say that considering them as religions brings some of humanities dirty little secrets out into the light of examination. Unless you accept that God spoke to every one of the Christians sent to the Crusades and told them to retake the holy land, it becomes easy to accept that all or the vast majority of all violence in history associated with a religion was actually motivated by a more human desire (politically, economic, or otherwise) and religion was the guise used to justify it.

In using G.K. Chesterton's quote "When people stop believing in God, they don't believe in nothing -- they believe in anything." might imply that only the godless propagate violence and that communism/Nazism are not religions. Is Mr. Prager trying to say that a Christian state has never slaughtered, tortured or ensalved people?

At the heart of the matter is that human nature has a dark-side full of greed, averice, lust, and hate. This is true regardless of what belief system controls the halls of government. Chesterton's quote is a statement of fact about human nature, not a glorification of religion. There are plenty of people who will believe 'anything', in Chesterton's terms, about 'God'. I've known people who believed that drinking wine was a sin; when it pointed out that Jesus turned water into wine, the response was "Brother (x) taught us differently!" It is not an indictment of religion that humans want to believe in something just as calling communism or Nazism religions does not make them guilty by association.

I'll put any further reply to this article in a new post, this one has already become longer than I intended.

The meaning of "person"

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
--Fifth Amendment to the U.S. Constitution

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
--Section 1, Fourtheenth Amendment to the U.S. Constitution

I ran across this piece on Constitutional views of a person a couple of weeks ago. The article seems to unduly ramble in an attempt to address all possible arguments against abortion (e.g., social, religious, moral, and constitutional) and, in the process, does a very poor job of building a coherent narrative. Most of the points raised merely build strawmen to knock down or miss the point entirely, but the constitutional argument that the author makes for legal abortions is worthy of consideration. The kernel of the article argues that unborn babies cannot be considered "persons" in the constitutional sense of the word, since "person" had a specific meaning when the Fifth and Fourteenth Amendments were passed:

"Personhood" is a constitutional issue because the Constitution associates rights with "persons", as it would have to do. Not with "human life". For purpose of law, a "person" is a bundle of competences, including the competence to have interests and assert them as judicial questions in a court of law.

At the time the Constitution was ratified, the beginning of personhood was conventionally defined by birth, not conception, and the end by the cessation of signs of life, such as a heartbeat. That was done, in large part, because those were the ways that the bundle of competences could be ascertained, as a practical matter. Today medical science makes the points of beginning and ending less definite, but we are bound by the definition at the time of ratification of all legal terms in the Constitution, because if we allow subsequent opinions about meaning to be the basis for legal decision-making, there is no longer a "law" that can constrain government. To understand this problem, just consider that what the slave states were doing to maintain slavery was to redefine personhood to exclude blacks. They expressed it as a redefinition of "citizenship", ignoring that constitutional rights are attached to persons and not citizens, except for rights like the right to vote and hold public office. To change the definition of a constitutional term we have to formally amend the Constitution.

The author applies a strict textualist interpretation to the constitutional meaning of "person" and reaches the same conclusion about the constitutional meaning of "person" as Supreme Court Justice Antonin Scalia has reached. However, Justice Scalia goes on to say that neither does the Constitution prohibit protection of fetuses by the enactment of legislation:

The last sentence of section one of the Fourteenth Amendment does indeed say that no state shall “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The word “person” in these provisions could conceivably be meant to include fetuses. That the Fourteenth Amendment does not employ the word in that unusual sense is well enough established by the very next sentence—the first sentence of section two—which reads: “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.” No one has ever thought that pregnant women must be counted (at least) twice. Philosophers, I suppose, can disregard this affirmation of ordinary meaning, but not judges who pay attention to text. Fetuses may well deserve the same protection against destruction as other human beings; and natural law may well give it to them; but the positive law adopted by the American people and entrusted to the enforcement of their courts does not—unless and until legislation to that effect is adopted. I believe, of course, that such legislation is entirely permissible, since the argument that the Constitution forbids protection has even less to be said for it than the argument that the Constitution confers it.
--Reference: http://www.firstthings.com/article.php3?id_article=81

Live by the textualist sword. Die by the textualist sword.

To waterboard or not to waterboard

The on-going debate Americans are having over whether waterboarding is torture is well-intentioned, but misguided. By any definition of the word, waterboarding is torture, so this reluctance on the part of the Administration to define it as such makes Bill Clinton's confusion over the meaning of "is" look sophisticated. In addition, Congress should be clear and pass specific rules that govern interrogations of people in U.S. custody, as the Constitution calls for in Article I, Section 8 (where Congress is delegated the power to "make Rules concerning Captures on Land and Water").

Nevertheless, I am conflicted by this. I think the two cases in which we believe the CIA employed waterboarding (on al-Qaeda member Abu Zubaydah and Khalid Sheik Mohammed) were more than justified. Waterboarding can never be condoned as a matter of policy or law, but in the limited context of our war against al-Qaeda, the actions of the CIA were justified. Rather than debating what the meaning of "torture" is and condoning the CIA destruction of evidence, the president should immediately pardon any CIA officers who were involved in the waterboarding of any al-Qaeda members. That would be more than a fair use of his powers as Commander-in-Chief.

The Proposed War Powers Amendment Revisited

Earlier this year, I proposed four amendments that I thought would shore up areas of deficiency in the U.S. Constitution, the first of which was a proposed War Powers Amendment. As with any set of proposals, these were meant to be conversation starters, not the final, definitive word on the issues at hand. In my proposed War Powers Amendment, I contended that a revision of the language around Congress's power to "declare War, and grant Letters of Marque and Reprisal" is required to clarify that only Congress has the power to bring the nation into a war. My proposed language of clarification is as follows:

The President, as Commander-in-Chief of the Armed Forces of the United States, shall not engage in any war without the consent of the Congress, except in cases of rebellion or invasion, and the danger is so imminent as not to admit of a delay till the Congress can be consulted.

As I have allowed this to marinate in thought and analysis these past few months, I am not sure that this is the most effective way to patch the system of war powers set forth in the Constitution. Specifically, my concern is two-fold:

1. The wording of the proposed amendment does not allow for any Presidential action in cases that are generally accepted as inherent to the President's "defensive" war powers, e.g., responding to an attack on U.S. embassies, mounting rescue operations for U.S. citizens taken hostage abroad, or engaging in overseas surveillance activities.

2. The most effective checks and balances are those that are procedurally-based. Relying on different or more words to control Presidents who ignore words already in the Constitution probably wouldn't yield the results that are needed to restore balanced war powers between Congress and the Presidency.

I recently read the War Powers Initiative, published by the Constitution Project, which analyzes the current state of war powers among the three branches of the U.S. government and gives several Recommendations for restoring balance. Not one of these Recommendations proposes a new constitutional amendment. In the view of the War Powers Initiative, the Constitution already has all the tools that Congress and the courts need to reign in presidential war-making. In the words of the report, Congress's authority to "declare War [and] grant Letters of Marque and Reprisal" is an exclusive grant of power over all forms of lesser and greater war making.

According to international law in 1789, a state could declare war either by “word or action,” as the influential political theorist John Locke put it. A state publicly announced the state of war “by word” by making a formal declaration of war
and delivering it to the enemy. A state initiated a state of war “by action” simply by committing an act of war.... Although Congress, as a legislative body, cannot itself also commit an act of war, it can authorize the President to act instead. The assignment of the Declaration power to Congress thus gives it not only the power to announce a state of war by formal declaration, but also to pass legislation authorizing the President to initiate war by using force. Furthermore, the Constitution also vests in Congress the authority to grant Letters of Marque and Reprisal to privateers to use force or to seize enemy property in retaliation for an injury to the United States.

So if a proper understanding of the current wording of Article I, Section 8 would resolve any confusion over Congress's role in initialing war and the President's required reliance on Congress for such an initiation, then trying to add to this wording might run the risk of constitutionally altering the President's ability to respond militarily to situations thrust upon the United States.

So while I am inclined to agree with the War Powers Initiative report that different constitutional language would not help matters in this area, I have been thinking of a different War Powers Amendment that might be helpful in restoring congressional involvement in decisions to both go to war and to stay at war. My revised War Powers Amendment is centered on the idea of writing into the Constitution the two-House legislative veto provided for in the War Powers Resolution. The following is my own suggestion to start the process of crafting such an amendment:

At any time that United States military forces are engaged in hostilities outside the territories of the United States, such forces shall be removed from the theater of such hostilities by the President if the Congress so directs by majority vote of both Houses.

Congress currently possesses the real power to cut off the President's ability to conduct military operations simply by not passing a bill funding those military operations. The leadership of either House of Congress or a determined minority in the Senate could refuse to allow an Iraq War funding bill to be voted on, and viola! The President would run out of funds in a few months and would have no choice but to withdraw American forces from Iraq.

Odds are low, however, that either Party will resort to cutting off funding to stop a war. The Party of the president does not want to be seen as disloyal to the president, and the opposition party does not want to be viewed as against the troops. While this is a false alternative, the desire among legislators to be viewed as patriotic Americans will color these types of questions for the foreseeable future. We could chalk this up to weak political will among Representatives and Senators, but that doesn't bring us any closer to checking the president's de facto war-making ability.

One could argue that additional war powers checks on the presidency are risky and unnecessary: risky because new checks might compromise his ability to defend the nation; unnecessary because the electoral college encourages the election of moderate presidents. After all, no president has engaged in war-making that has not at least been implicitly approved by Congress (even if only through passage of appropriations).

I think this is a weak argument, along the same lines as "you must fund this war to support the troops in the field." It's a red herring that its advocates parade about in order to smokescreen the underlying issue. If a war or some lesser military operation is vital to the national security or defense of the United States, then the executive branch should have no problem getting the support of a majority of the people's representatives in Congress. If a majority of both houses of Congress are for a war, then the majority of the American people probably support said war. If the American people turn against a war, they will probably elect the opposition Party to power with a mandate to stop the war, as they did in 2006 when they turned the Congress over to the Democratic Party for the first time in twelve years. And any war that does not have the majority support of Congress and the American people will generally be a war whose continuation will damage the United States more than its end.

President Bush was given authority by Congress in 2002 to wage war in Iraq, so all of those who label the Iraq War as "Bush's war" are engaging in nothing but unhelpful polemic. President Bush received the approval of Congress to go to war against both Afghanistan and Iraq, unlike President Clinton did when he conducted the 1999 air campaign against Yugoslavia. Nevertheless, public sentiment has soured on the Iraq War for several reasons (incompetent execution of the war after the fall of Saddam Hussein and continued in-fighting among sectarian groups in Iraq, to name two), and Congress seems powerless to do anything to effect the situation. Congress has seen limited success through its power of the purse in at least applying pressure, as evidenced by the adoption of the surge strategy around the end of last year. But the President's ability to veto any war funding bill with constricting conditions leaves Congress with the same false alternative that they cannot politically work around.

The idea of my new proposed War Powers Amendment would be to give Congress one more alternative in its chest of war powers. The President conducts the day-to-day execution of military operations, but he is not the sole decider of when the country should be committed to war. The Constitution requires the collective judgment of Congress to be sought before the country goes to war, and the collective judgment of Congress should be decisive in keeping the country at war. So if we could decouple the power of Congress to instruct a President to end a war from debates and perceptions around "funding the troops in the field," then perhaps Congress might find the political will to fulfill its constitutional duty to be a partner in the conduct of the nation's wars. This is the aim of this newly proposed amendment: if both Houses of Congress pass a resolution instructing the President to remove U.S. military forces from a theater of hostilities, then that resolution becomes law, not subject to a veto from the President.

This amendment would also carry a couple of other benefits: the power of the president to conduct lesser military operations could be constitutionally tolerated without fear of executive excesses leading the country into protracted, unpopular wars. The executive's hand is free for the short term (most Americans generally support this power, even if some operations like the 1999 Kosovo War are constitutionally suspect) while providing a relief valve that Congress can employ if a majority of both Houses can be convinced that the president has gone too far in some particular venture.

Another benefit is that this amendment would undoubtedly increase a president's willingness to negotiate matters of war strategy with Congress in the first place. A president would not wish to risk the ire of Congress if Congress has this procedural check at its disposal, so he would, I think, seek to make Congress more of a partner from the start. Members of Congress who have their own "skin in the game," so to speak, would see less of a need to resort to this power to legislate the end of a war.

As a concluding note, it is worth highlighting the inclusion of the phrase "outside the territories of the United States." This amendment would not apply to military deployments and operations within the United States itself, as this is really a different kind of situation. U.S. military forces would be operating within the United States in a non-training mode for two reasons:

1. combating an invasion force or repressing an insurrection, or
2. enforcing domestic laws

The first is a legitimate use of the Armed Forces. However, executive excesses would probably be tied to the second scenario, as might be the case if a President sought dictatorial powers through the imposition of martial law. This danger can not be checked by so simplistic a mechanism as envisioned by this amendment. A more general sweeping amendment governing the use and application of states of national emergency would be more appropriate. Perhaps the Posse Comitatus Act is enough to protect against this nightmare vision. In any case, I am not prepared at this time to propose constitutional protections for it.

Direct election of the President

There was some discussion in the 1970s of a proposed constitutional amendment to elect the president by popular election. One version of the proposed amendment can be found online here: 1977 version.

The reasons for desiring a change to the way Americans elect our President are obvious. "One man, one vote" has become the default election paradigm through various court rulings, constitutional amendments, and evolutions of our democratic traditions over time. That the states with smaller populations have proportionally more votes than the people of larger states through the electoral college seems inherently unfair to us.

Another reason to get rid of the electoral college is the problem of the faithless elector. While this has not historically been much of a problem, the possibility exists that a faithless elector or two could change the outcome of a presidential election in a very tight race, where one or two electoral votes separates the candidates.

The electoral college is not the institution that the Founders envisioned that it would be, if it ever was. The Founders meant for the electors to act as a "buffer" to the passions of the general public. They were to represent the people, but at the same time, they were to supply wisdom and deliberation to the selection of the Republic's next Chief Magistrate. Now, however, when a Party's nominee wins a state in the general election, said Party will choose loyal activists who pledge to vote for the Party's nominee when the electoral college formally meets. The electoral college has, in essence, become an out-of-date formatily.

As discussed in a 1970 report issues by the Senate Judiciary Committee, there are several benefits that the electoral college brings to American presidential elections:

• encourages the building of broad, geographically-dispersed majorities to elect a candidate that can win a majority of the electoral college, leading to more stable, moderate Governments that respect the rights of minorities;


• important support for maintaining federalism and the role of the States in the federal government (if we repealed the Seventeenth Amendment, I think this would be less of a worry);


• structurally enforces the U.S. two-party system;


• contains recounts to specific states or election precincts;


• allows control and responsibility of election process and administration to be maintained at the state and local levels, rather than at the federal level.

While I'm not sure about the claim that going to a direct election scheme would remove an underpinning of the two-party system, the support the electoral college lends to federalism and the containment of electoral recounts is obvious. Combined with the fact that State Legislatures have established direct election as the method by which their respective State electors are chosen (a power granted State Legislatures under the Constitution), and we can see why there is not the supermajority of support required to pass a proposed constitutional amendment to institute the direct election of the President. In essence, there are fifty state elections for president, rather than one national election. For the benefits that the electoral college bring, I'll be OK with the individual voter of Wyoming and Iowa having a greater proportional influence than the individual voter in Texas (my home State), New York and California.

The Unites States is, after all, a democratic republic, not a pure democracy.

Repeating History

The Bible speaks of the "sins of the father" being visited upon "the third and fourth generations", but what about repeating the sins of one's self? A disturbing pattern is beginning to emerge through Administration rhetoric that is suspiciously similar to the rhetoric that led up to the 2003 invasion of Iraq (which I supported and still do support). Whether war with Iran is justified or not, that is not the issue here. As Pat Buchanan writes today, there are proper means to accomplish a desired end.

If [Democrats] do not want war, and as Sen. Joe Biden says, he does not want war, why is his Foreign Relations Committee not holding hearings on what exactly Iran is doing in Iraq, how advanced its nuclear program is, what Iran is asking to stop short of nuclear weapons, what Iran is willing to pay for peace with the United States, and what we are willing to offer to get them to back off in Iraq and give up nukes?

If we are going to war, Congress, not George Bush, should take us into it. Isn't that how the Constitution reads?

John Yoo on the Unitary Executive

A recent speech by John Yoo to the Federalist Society provides some interesting insight to the current Administration's perspective on presidential power. A long-time proponent of what is known as the theory of the Unitary Executive, John Yoo uses the cover of a valid theory of constitutional (Article II) interpretation to push his extremist notions of presidential power.

I say the Unitary Executive is a valid option of constitutional interpretation because it is directly gleaned from Article II of the Constitution. To quote directly from the Wikipedia article:

The theory relies on the Vesting Clause of Article II which states "The executive Power shall be vested in a President of the United States of America." Proponents of the unitary executive theory use this language along with the Take Care Clause ("The President shall take care that the laws be faithfully executed...") to argue that the Constitution creates a "hierarchical, unified executive department under the direct control of the President."

While this might be a valid interpretation of the words of our Constitution, our tradition has evolved away from a strict implementation of the unitary executive theory. While the president retains vast power to direct the executive ship, there are areas of day-to-day governmental operation that we seek to rest above or beyond the realm of politics. For example, the Federal Reserve is not directly answerable to the President, although it is technically part of the Executive Branch. Same goes for independent agencies such as NASA or the Federal Election Commission. These agencies work in areas that Americans generally agree should remain free of the influence of presidential priorities and partisan wrangling. For the FDA, science is science no matter who is president.

Nevertheless, John Yoo thinks that everyone in the executive branch should be in lock-step with the President: "Every subordinate should agree with [the president's] views so there is a unified approach to the law..." He goes on to elaborate why the unitary executive is necessary:

“The president reacts to unforeseen events and emergencies that Congress can’t anticipate … like Sept. 11, that are outside the anticipation of written laws,” said Yoo. “The framers wanted a presidency that’s unified and can operate with speed and secrecy so they left [the office] with ambiguous limits on its power. It was not carefully defined, deliberately.”

Regardless of the defensibility of the Unitary Executive, Yoo's claims springboard into waters way beyond the realm of the theory. While Alexander Hamilton writes repeatedly in The Federalist Papers that the country needs an "energetic executive" or an "energetic government," I am not aware of any reference from the Founders that the Government should operate in secret. And they most certainly were not ambiguous on the limits of the presidency's powers. Checks and balances along with separation of powers are central to the framework that the Constitution erects. The president's realm is to execute the law, not make it or reinterpret it or ignore it. And the president (nor the Administration) certainly may not break the law, a la FISA-style.

When did Welfare become Welfair?

In considering Kelly's post on Bread and Circuses and the current consternation over health care reform tied to the gathering campaign for the 2008 presidential election, I have to wonder when our society's concept of welfare - the humane and laudable goal of providing a safety net for people when they fall, to give them a chance to get back on their feet - became welfair - the pervasive belief that everyone is entitled to exactly the same level of service, no matter one's net worth or available wealth.

First, I must say that I am sympathetic and mindful of the need to provide some level of basic service for those without medical insurance. Regardless of one's current state of employment, income or health, everyone in society is entitled to some basic level of care to keep them healthy and sane. I would even go so far as to concede that the government might be able to find an effective means of backing such a "stop gap" insurance plan, though such a program should be approached with caution. The last thing we would want is the Government to mess with what currently works in the American health care system. We just need to find ways to plug the holes.

Beyond my belief that the government might have a role to play in providing a base level of health care coverage, there is nothing in the Constitution that would say the federal government can or should play this role. As Kelly asks, "The downside is people who decry the resulting inequity as if every citizen deserves equal service regardless of their states economic condition. North Dakota has a lower average income from which to draw tax revenue compared to California so it follows that North Dakota wouldn’t be able to afford as much coverage for their citizens." Without the citizens of the more wealthy states subsidizing the citizens of poorer states through the bureaucratic nightmare of the federal government, a federal scheme is not possible. Even if this limitation could be overcome, it would not be desirable, given the proven inefficiencies of the federal bureaucracy. Better to keep any such governmental role at the State level.

Nevertheless, many on the Left look to Canada and Great Britain's socialized health care systems as some sort of panacea that Congress should adopt for the entire nation. They think it somehow "unfair" that people have different access to health care given different levels of wealth. We generally don't like the fact that the rich can afford more access than the average middle-class citizen restricted by the insurance companies or the uninsured shut out cut off from all but emergency care.

Somewhere along the way, though, our society's definition of "equality" morphed into something different that what the Founders understood. For the Framers, equality equated to what was right. Witness the words of the Declaration of Independence:

We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.

Thomas Jefferson talks about equality being the ability of men (and women, by extension of our egalitarian ideals throughout the nineteenth century) to live their lives unoppressed by Government and free to pursue their passions and dreams as they see fit. But present-day concepts of equality has more to do with what people perceive to be fair.

We don't think it's fair that people with more money have access to elective surgeries that we might like for ourselves, but who, I ask, would they propose should define what is "fair" health coverage? If it is impossible for everyone to receive reconstructive breast surgery after a mastectomy, should no one be allowed to receive it? If Zoloft is too expensive to be given to everyone, should it simply be banned so that no one can be freed from their depression?

The things that work in America's health care system are driven by the free market. As we debate ways to bring some basic level of health care to everyone (a worthy goal for which we should work to make happen), let's not adopt the concept that equality can only mean sameness of level for everyone.

Bread and Circuses

Last I checked, good roads were not in the Constitution under the “Things government is supposed to do” category.

Funny thing too – education and health care are missing as well.

It might be something that only the government can provide on such a large scale. It does require a certain level of prosperity which we tend to forget. In times of war or major economic depression, from where will the money come?

Have we considered who gets to choose what procedures will be covered? Why should people in other states have a say on whether Texas covers RU-486? The only way to get around this issue is create a state-based system. The downside is people who decry the resulting inequity as if every citizen deserves equal service regardless of their states economic condition. North Dakota has a lower average income from which to draw tax revenue compared to California so it follows that North Dakota wouldn’t be able to afford as much coverage for their citizens. It also follows that California has many more people to cover which would draw down their average dollar spent per person much closer to North Dakota’s. If you want to find out about Canada’s system, ask about cosmetic procedures (costly but elective) or cancer treatments (life-prolonging but extremely costly).

If North Dakota wants to share in California’s tax revenue, they have to accept the strings that California places on the money. Most of the time people are too focused on the $-signs and ignore the strings until too late. It also trains the citizenry that when they get in trouble, they can always run to Uncle Moneybags. After you’re resigned to the first string, the following strings-for-money trade-off become less onerous until you find yourself as a marionette, dancing for your lunch money and resenting the puppeteer all the while trying to get another money ‘fix’.