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.

The Era of National Services

Mort Kondrake ponders that a new "era of national service" might be upon us with the energized leadership and network of President Obama. This would dove-tail nicely with Larry Sabato's call for a Universal National Services (UNS) amendment to the Constitution. Of course this is a controversial call, because the typical cry from the far-Right that "this is an un-American imposition of government authority upon individual liberties" has predictably surfaced already. The din of the shrill would become nearly unbearable if and when a serious debate ever broke out on Sabato's proposal.

Rather, UNS is compatible with American notions of liberty if liberty is seen as freedom exercised within the context of responsibility and care for our neighbors and the "least of these," to use the scriptural phrase. Liberty practiced within a context of responsibility reinforces the other American values of life and the pursuit of happiness (property), as the young adults who go through a period of service to others will learn more about what it is to be a citizen of the United States and to be a human that gives to the world rather than taking from those around him or her. Additionally, the work of volunteers would benefit many people through direct help and improved infrastructure -- buildings, streets, freeways, forests, aid centers, homes, and various other property.

To Torture or not to Torture?

Craig said, “While this is a necessary step to regain some semblance of control over the interrogation process, I hope we don't live to regret such a blanket prohibition on more forceful interrogation techniques. It would be wise to consider Bill Clinton's suggestion to allow the use of such techniques only under the explicit authorization of the President.”

I believe that Clinton was referring to a situation where torture was explicitly forbidden. If a scenario were so dire that torture was felt necessary, by commanders in situ, to obtain life-saving intelligence, the President has always had the power issue pardons after the fact.

Pre-authorizing torture has no place in a Republic that values "Liberty and Justice for all".

No Tolerance For Common Sense

I've always thought that 'No Tolerance' policies were a short-sighted attempt by school boards to inoculate themselves from having to exercise common sense. Would we really want to live in a world where 13-year-old girls are strip-searched for ibuprofen instead of expecting school principles to exercise discretion even if that means occasionally being disappointed by the misuse of said discretion?

Do you know if your school board would allow this shocking treatment if it were your child? Have you asked them?

http://www.cnn.com/2009/CRIME/01/16/teen.strip.search/index.html?eref=rss_topstories

No Tolerance means No Brains; say NO! to No Tolerance.

Another case of "Does the Constitution REALLY mean what it says"? Contemplating the Burris appointment

The appointment of Roland Burris to the U.S. Senate by embattled Illinois Governor Rod Blagojevich has predictably stirred up debates among the media and legal community over whether the Senate has constitutional power to refuse to seat Burris. On the side of those who say that the Senate is empowered to refuse Burris' appointment is Article 1 Section 5 of the Constitution:

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members

On the side of those who say the Senate does not have the power to refuse to seat the ex-Illinois attorney-general is the Supreme Court decision in Powell v. McCormack that said the House's power to judge Qualifications was limited to constitutional qualifications.

Be that as it may, it is not constitutional qualifications that are being questioned in the current case. It is the process of the appointment that is under investigation. It would seem to me that the Powell precedent does not apply. Along this line of reasoning, two constitutional thinkers at Balkinization speculate:

Can The Senate Refuse to Seat Roland Burris? Quite Possibly by Jack Balkin

The Burris appointment -- another view by Mark Tushnet

What does the "Rule of Law" mean?

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

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

The Commerce Clause

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

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

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

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

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


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


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

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

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

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

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

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

To facilitate transportation and communications between the several States;

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

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

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

To establish and provide for a system of national parks;

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

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

To provide for the exploration of space;

The Privileges and Immunities Clause

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

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

The Great GOP Waffle

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

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

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

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

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

Craig?

To protect and defend

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

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

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

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


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

End judicial filibusters

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

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

A more perfect union

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

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

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

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

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

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

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

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

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

Separation story

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

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

A new era dawns

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

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

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

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

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

Thought of the day: Mountain tops and politics

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

A forceful Roe dissent based on the GI imperative

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

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

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

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

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

Analysis of D.C. v Heller