Competing visions of democracy in the wake of the recent Supreme Court decision re: campaign finance laws

The blog Comparative Constitutions has a a good piece comparing the different visions of democracy currently seen in Canada and the United States, particularly in the wake of U.S. Supreme Court decisions like Citizens United v. FEC, decided last week.

But if the book left any doubt that the United States Constitution and the Canadian Charter of Rights and Freedoms are anchored in divergent constitutional values, the recent judgment of the Supreme Court of the United States in Citizens United v. Federal Election Commission should confirm that the United States and Canada orient themselves toward different conceptions of democracy, at least with respect to private expenditures in political elections. Whereas Canada adheres to a model of egalitarianism, the United States appears to adhere to a model that may be best described as libertarian.

Whether this was a good decision or not, it seems the principle of the First Amendment was at least vindicated by this decision. Egalitarianism is nice is theory, but the problem is - who gets to decide on the rules? McCain-Feingold was Congress's attempt to answer that question, and it didn't take long for someone (Citizens United) to have their right of free expression trampled by the Government. No matter what I think of the danger of corporate money flooding elections, this could not have been right.

On the filibuster - Democrats suddenly find religion

It has recently become fashionable among Democrats and those sympathetic to their programs to decry the supermajority it takes to pass any legislation in the Senate. The new mantra seems to be that it is time to end the use of the filibuster, which requires a vote of 60 senators to stop debate on a particular question or motion before the chamber. The frustration over the legislative process's slow and prodding progress towards a health care reform bill is the straw that broke the camel's back.

This call does my heart good, as this blog has been calling for the reform of the filibuster since 2007. Representative of recent calls is that of reputable law professor Jack Balkin.

But I have to wonder where these principled objections to the filibuster were when the Democrats were filibustering President Bush's judicial nominees back in 2004 and 2005? Dr. Balkin seems to even praise the use of the filibuster by Democrats to stop the imperial designs of Evil Republicans[TM] in a May 2005 blog post:

Getting rid of the filibuster is a key device for achieving this goal. Although the current fight is over judicial nominations, if the Republicans are successful, there will probably be considerable pressure to eliminate the filibuster in other areas so that the Republicans can govern with a freer hand on important issues like taxes, tort reform, and Social Security. If this remaining tool of opposition can be eliminated, the Republicans can proceed to promote their policy goals with far less resistance.

...

In fact, eliminating the filibuster is about consolidating Presidential power-- the power of President Bush as leader of the Republican Party-- as much as it is about Republican power,...

The second goal behind ending the filibuster is to smooth the way for Bush to appoint very conservative judges to the U.S. Supreme Court as well as the lower federal courts. This is a method of constitutional change that Sanford Levinson and I have called "partisan entrenchment," in which a determined President stocks the life-tenured federal courts with ideological allies.

...

Put in terms of my colleague Bruce Ackerman's theory of constitutional change, movement Republicans seek a "constitutional moment" that will usher in a new regime of conservative constitutionalism that will shape and dominate constitutional thought for generations to come. Eliminating the judicial filibuster is a key step in making that dream a reality.

POSTSCRIPT:
Rick Pildes has a helpful history of the filibuster at Balkinization as well.

Resolving the War Powers conundrum through the courts?

John Hart Ely wrote a book called War and Responsibility, in which he analyzes the evolution of the balance of war powers between the President and Congress and, as this blog has, laments the general acceptance of executive-initiated war since 1950. Ely diligently analyzes multiple difficulties regarding war powers through examination of Congress's authorizations of the Vietnam War, and applies the lessons learned from that era to draft a set of proposals that would restore the balance of war powers toward expectations of congressional-initiated war.

The effectiveness of the so-called legislative veto is questioned by Ely (although he also argues for its constitutionality in the context of the War Powers Act), even as it is the backbone of this blog's own proposed war powers constitutional amendment. However, Ely does present a potentially more poignant and effective proposal: pass a revised War Powers Act that explicitly states the courts shall render judgments to suits questioning whether congressional authorization for a particular combat operation has been given. The point would not be to lasso the judiciary into setting United States foreign policy, but rather call it back to its original function of upholding the sanctity of constitutionally-prescribed processes.

The courts have increasingly dismissed cases brought by members of Congress or other parties as non-judiciable political questions. But in these cases, all the court is being asked to render is a ruling on process, not to provide a judgment on the true political question of what the foreign policies of the United States should be. The Constitution demands that Congress authorize the wars that the United States enters into, and Congress either authorizes a war through the constitutionally-proscribed legislative process or not. It is not asking too much of the judiciary to hold the President's feet to the fire and uphold the demands of the Constitution.

Ungovernable Nation?

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

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

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

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

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

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

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

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

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

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

Disproving The Anthropogenic Global Warming (AGW) Problem

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

Disproving The Anthropogenic Global Warming (AGW) Problem

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

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

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

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

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

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

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

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

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

Our Debt to Machiavelli

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

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

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

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

Is Torture the Answer?

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

What is Torture?

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

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

Is Torture Ever Necessary?

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

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

Health care reform and the general welfare clause, Part II

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

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

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

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

Health care reform and the general welfare clause

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

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

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

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

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

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

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

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

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

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

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

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

Why Words Matter

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

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

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

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

Whence the compromise?

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

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

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

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

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

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

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

War Powers

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

Part 1
Part 2
Part 3
Part 4

Women as Objects... to fear

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

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

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

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

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

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

Things are not always as they seem

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

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

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

UPDATE 10/12/2009: Negotiations on Honduras Continue

The Truth Will Set You Free

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

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

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

Minimalism in the current Supreme Court

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

Our Brothers' Keepers

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

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

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

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

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


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

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

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

Questions for Sotomayor

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

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


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


• Should Supreme Court justices be bound by precedent?


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


• What matters most, the law or the result?

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

Voices from the Past

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

- Barry Goldwater


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

The three-fifths Clause

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

• the three-fifths clause


• the fugitive slave clause


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

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

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

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

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

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