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