New Year - American Soulsearching in the Bush Era

As we bring down the curtain on 2007 and take stock in where we stand as a nation at the end of Year Seven in the reign of George W. Bush and the Gang that Couldn't Shoot Straight, it's worth taking a look at today's OpEd page editorial in the New York Times.

In substantial part, the piece, entitled "Looking at America," states:

"There are too many moments these days when we cannot recognize our country. Sunday was one of them, as we read the account in The Times of how men in some of the most trusted posts in the nation plotted to cover up the torture of prisoners by Central Intelligence Agency interrogators by destroying videotapes of their sickening behavior. It was impossible to see the founding principles of the greatest democracy in the contempt these men and their bosses showed for the Constitution, the rule of law and human decency.

"It was not the first time in recent years we’ve felt this horror, this sorrowful sense of estrangement, not nearly. This sort of lawless behavior has become standard practice since Sept. 11, 2001....

"Out of panic and ideology, President Bush squandered America’s position of moral and political leadership, swept aside international institutions and treaties, sullied America’s global image, and trampled on the constitutional pillars that have supported our democracy through the most terrifying and challenging times. These policies have fed the world’s anger and alienation and have not made any of us safer.

"In the years since 9/11, we have seen American soldiers abuse, sexually humiliate, torment and murder prisoners in Afghanistan and Iraq. A few have been punished, but their leaders have never been called to account. We have seen mercenaries gun down Iraqi civilians with no fear of prosecution. We have seen the president, sworn to defend the Constitution, turn his powers on his own citizens, authorizing the intelligence agencies to spy on Americans, wiretapping phones and intercepting international e-mail messages without a warrant.

"We have read accounts of how the government’s top lawyers huddled in secret after the attacks in New York and Washington and plotted ways to circumvent the Geneva Conventions — and both American and international law — to hold anyone the president chose indefinitely without charges or judicial review.

"Those same lawyers then twisted other laws beyond recognition to allow Mr. Bush to turn intelligence agents into torturers, to force doctors to abdicate their professional oaths and responsibilities to prepare prisoners for abuse, and then to monitor the torment to make sure it didn’t go just a bit too far and actually kill them.

"The White House used the fear of terrorism and the sense of national unity to ram laws through Congress that gave law-enforcement agencies far more power than they truly needed to respond to the threat — and at the same time fulfilled the imperial fantasies of Vice President Dick Cheney and others determined to use the tragedy of 9/11 to arrogate as much power as they could....

"Prisoners are held [in Guantanamo Bay] with no hope of real justice, only the chance to face a kangaroo court where evidence and the names of their accusers are kept secret, and where they are not permitted to talk about the abuse they have suffered at the hands of American jailers.

"In other foreign lands, the C.I.A. set up secret jails where “high-value detainees” were subjected to ever more barbaric acts, including simulated drowning. These crimes were videotaped, so that “experts” could watch them, and then the videotapes were destroyed, after consultation with the White House, in the hope that Americans would never know.

"The C.I.A. contracted out its inhumanity to nations with no respect for life or law, sending prisoners — some of them innocents kidnapped on street corners and in airports — to be tortured into making false confessions, or until it was clear they had nothing to say and so were let go without any apology or hope of redress.

"These are not the only shocking abuses of President Bush’s two terms in office, made in the name of fighting terrorism. There is much more — so much that the next president will have a full agenda simply discovering all the wrongs that have been done and then righting them.

"We can only hope that this time, unlike 2004, American voters will have the wisdom to grant the awesome powers of the presidency to someone who has the integrity, principle and decency to use them honorably. Then when we look in the mirror as a nation, we will see, once again, the reflection of the United States of America."

More on Tolerance - Walter Isaacson's "Einstein"

More on the topic of tolerance, which I suggest is the core animating principle of the U.S. Constitution in my working book, "Toward a More Tolerant Constitution - Of, By, and For the People"....

From Walter Isaacson's much-lauded new biography on Albert Einstein (another on my holiday wish-list of books):

“[Einstein's] success came from questioning conventional wisdom and marveling at mysteries that struck others as mundane. This led him to embrace a morality and politics based on respect for free minds, free spirits, and free individuals. Tyranny repulsed him, and he saw tolerance not simply as a sweet virtue but as a necessary condition for a creative society. ‘It is important to foster individuality,’ he said, ‘for only the individual can produce new ideas.’…"

On Tolerance: Christopher Hitchens and "God is Not Great"

The title of a book I'm currently working on is (something like) "Toward a More Tolerant Constitution - Of, By, and For the People" basically arguing that governmental TOLERANCE of individual rights is a (if not the) core animating principle of the U.S. Constitution.

In a related context, Christopher Hitchens hits the nail on the head in his 2007 National Book Award finalist, "God is Not Great: How Religion Poisons Everything" (one of my holiday wish-list books):

"[T]he mildest criticism of religion is also the most radical and the most devastating one. Religion is man-made. Even the men who made it cannot agree on what their prophets or redeemers or gurus actually said or did. Still less can they hope to tell us the 'meaning' of later discoveries and developments which were, when they began, either obstructed by their religions or denounced by them.

And yet - the believers still claim to know! Not just to know, but to know everything. Not just to know that god exists, and that he created and supervised the whole enterprise, but also to know what 'he' demands of us - from our diet to our observances to our sexual morality. In other words, in a vast and complicated discussion where we know more and more about less and less, yet can still hope for some enlightenment as we proceed, one faction - itself composed of mutually warring factions - has the sheer arrogance to tell us that we already have all the essential information we need...."

"[F]aith ... is the beginning - but not the end - of all arguments about philosophy, science, history, and human nature. It is also the beginning - but by no means the end - of all disputes about the good life and the just city. Religious faith is, precisely because we are still-evolving creatures, ineradicable. It will never die out, or at least not until we get over our fear of death, and of the dark, and of the unknown, and of each other.

"For this reason, I would not prohibit [religious faith] even if I could. Very generous of me, you may say. But will the religious grant me the same indulgence? I ask because there is a real and serious difference between me and my religious friends, and the real and serious friends are sufficiently honest to admit it. I would be quite content to go to their children's bar mitsvahs, to marvel at their Gothic cathedrals, to 'respect' their belief that the Koran was dictated, though exclusively in Arabic, to an illiterate merchant, or to interest myself in Wicca and Hindu and Jain consolations.

"And as it happens, I will continue to do this without insisting on the polite reciprocal condition - which is that they in turn leave me alone. But this, religion is ultimately incapable of doing. As I write these words, and as you read them, people of faith are in their different ways planning your and my destruction, and the destruction of all the hard-won human attainments.... Religion poisons everything."

How, then, does this passage from Hitchens' new book relate to my own book project? It relates in that the U.S. Constitution was specifically designed as nothing more than a device to prevent others, who claim to know everything under the guise of governmental authority, from destroying all "the hard-won human attainments," whether they be matters of religious freedom of the sort Hitchens speaks, or, more broadly, other precious individual liberties. As Justice Brandeis said in 1928, “The makers of our Constitution … conferred, as against the government, the right to be let alone - the most comprehensive of rights and the right most valued by civilized men.”

In other words, so long as my beliefs and actions cause no direct harm to others, the Constitution requires the government to "respect" - i.e., to tolerate - those beliefs and actions; in short, any law, regulation, or other government action that fails to so tolerate me and my beliefs and actions is unconstitutional.

The religious focus of Hitchens' book is relevant as well in light of the increasingly dominant - and inappropriate - role religion has come to play in American politics. For evidence, we need only look so far as the disastrous courses on which our evangelical president has steered the nation largely on the basis of his own religious dead-reckoning; and sadly, if the groveling comments toward the religious right of most of the current presidential candidates are any indication, it appears the situation is not soon to change. If this is so, it will be all the more incumbent upon ordinary Americans to speak out loudly and forcefully in protection of the hard-won constitutional liberties.

Obama the One?

If you're like me it's been hard to get warmed up yet to the presidential campaign, but now with the election less than a year off it's time to start paying closer attention.

In the cover story of the current Dec.2007 issue of The Atlantic, "Why Obama Matters," Andrew Sullivan offers a marvelous perspective on why one candidate, Barack Obama, stands out. Reproduced below are extracts from the article - take a look, see if you agree with Sullivan's persuasive conclusion that "We may in fact have finally found that bridge to the 21st century that Bill Clinton told us about. Its name is Obama."

"Consider this hypothetical," Sullivan says. "It’s November 2008. A young Pakistani Muslim is watching television and sees that this man—Barack Hussein Obama—is the new face of America. In one simple image, America’s soft power has been ratcheted up not a notch, but a logarithm. A brown-skinned man whose father was an African, who grew up in Indonesia and Hawaii, who attended a majority-Muslim school as a boy, is now the alleged enemy. If you wanted the crudest but most effective weapon against the demonization of America that fuels Islamist ideology, Obama’s face gets close. It proves them wrong about what America is in ways no words can."
...
Obama's appeal "has little to do with his policy proposals, which are very close to his Democratic rivals' and which, with a few exceptions, exist firmly within the conventions of our politics. It has little to do with Obama's considerable skills as a conciliator, legislator, or even thinker. It has even less to do with his ideological pedigree or legal background or rhetorical skills."

"Yes, as the many profiles prove, he has considerable intelligence and not a little guile. But so do others, not least his formidably polished and practiced opponent Senator Hillary Clinton."

"Obama, moreover, is no saint. He has flaws and tics: Often tired, sometimes crabby, intermittently solipsistic, he’s a surprisingly uneven campaigner. ...

But "the fundamental point of his candidacy is that it is happening now. In politics, timing matters. And the most persuasive case for Obama has less to do with him than with the moment he is meeting. The moment has been a long time coming, and it is the result of a confluence of events, from one traumatizing war in Southeast Asia to another in the most fractious country in the Middle East. The legacy is a cultural climate that stultifies our politics and corrupts our discourse."

"Obama’s candidacy in this sense is a potentially transformational one. Unlike any of the other candidates, he could take America—finally—past the debilitating, self-perpetuating family quarrel of the Baby Boom generation that has long engulfed all of us. So much has happened in America in the past seven years, let alone the past 40, that we can be forgiven for focusing on the present and the immediate future. But it is only when you take several large steps back into the long past that the full logic of an Obama presidency stares directly—and uncomfortably—at you."

"At its best, the Obama candidacy is about ending a war—not so much the war in Iraq, which now has a mo­mentum that will propel the occupation into the next decade—but the war within America that has prevailed since Vietnam and that shows dangerous signs of intensifying, a nonviolent civil war that has crippled America at the very time the world needs it most. It is a war about war—and about culture and about religion and about race. And in that war, Obama—and Obama alone—offers the possibility of a truce."
...
"This is the critical context for the election of 2008. It is an election that holds the potential not merely to intensify this cycle of division but to bequeath it to a new generation, one marked by a new war that need not be—that should not be—seen as another Vietnam. A Giuliani-Clinton matchup, favored by the media elite, is a classic intragenerational struggle—with two deeply divisive and ruthless personalities ready to go to the brink. Giuliani represents that Nixonian disgust with anyone asking questions about, let alone actively protesting, a war. Clinton will always be, in the minds of so many, the young woman who gave the commencement address at Wellesley, who sat in on the Nixon implosion and who once disdained baking cookies. For some, her husband will always be the draft dodger who smoked pot and wouldn’t admit it. And however hard she tries, there is nothing Hillary Clinton can do about it. She and Giuliani are conscripts in their generation’s war. To their respective sides, they are war heroes."

"In normal times, such division is not fatal, and can even be healthy. It’s great copy for journalists. But we are not talking about routine rancor. And we are not talking about normal times. We are talking about a world in which Islamist terror, combined with increasingly available destructive technology, has already murdered thousands of Americans, and tens of thousands of Muslims, and could pose an existential danger to the West. The terrible failures of the Iraq occupation, the resurgence of al-Qaeda in Pakistan, the progress of Iran toward nuclear capability, and the collapse of America’s prestige and moral reputation, especially among those millions of Muslims too young to have known any American president but Bush, heighten the stakes dramatically."
...
"Of the viable national candidates, only Obama and possibly McCain have the potential to bridge this widening partisan gulf. Polling reveals Obama to be the favored Democrat among Republicans. McCain’s bipartisan appeal has receded in recent years, especially with his enthusiastic embrace of the latest phase of the Iraq War. And his personal history can only reinforce the Vietnam divide. But Obama’s reach outside his own ranks remains striking. Why? It’s a good question: How has a black, urban liberal gained far stronger support among Republicans than the made-over moderate Clinton or the southern charmer Edwards? Perhaps because the Republicans and independents who are open to an Obama candidacy see his primary advantage in prosecuting the war on Islamist terrorism. It isn’t about his policies as such; it is about his person. They are prepared to set their own ideological preferences to one side in favor of what Obama offers America in a critical moment in our dealings with the rest of the world. The war today matters enormously. The war of the last generation? Not so much. If you are an American who yearns to finally get beyond the symbolic battles of the Boomer generation and face today’s actual problems, Obama may be your man. "
...
"The other obvious advantage that Obama has in facing the world and our enemies is his record on the Iraq War. He is the only major candidate to have clearly opposed it from the start. Whoever is in office in January 2009 will be tasked with redeploying forces in and out of Iraq, negotiating with neighboring states, engaging America’s estranged allies, tamping down regional violence. Obama’s interlocutors in Iraq and the Middle East would know that he never had suspicious motives toward Iraq, has no interest in occupying it indefinitely, and foresaw more clearly than most Americans the baleful consequences of long-term occupation. "
...
Moreover, Obama is not so calculated as his opponents: "[H]e is simply less afraid of the right wing than Clinton is, because he has emerged on the national stage during a period of conservative decadence and decline. And so, for example, he felt much freer than Clinton to say he was prepared to meet and hold talks with hostile world leaders in his first year in office. He has proposed sweeping middle-class tax cuts and opposed drastic reforms of Social Security, without being tarred as a fiscally reckless liberal. (Of course, such accusations are hard to make after the fiscal performance of today’s “conservatives.”) Even his more conservative positions—like his openness to bombing Pakistan, or his support for merit pay for public-school teachers—do not appear to emerge from a desire or need to credentialize himself with the right. He is among the first Democrats in a generation not to be afraid or ashamed of what they actually believe, which also gives them more freedom to move pragmatically to the right, if necessary. He does not smell, as Clinton does, of political fear."

"There are few areas where this Democratic fear is more intense than religion. The crude exploitation of sectarian loyalty and religious zeal by Bush and Rove succeeded in deepening the culture war, to Republican advantage. Again, this played into the divide of the Boomer years—between God-fearing Americans and the peacenik atheist hippies of lore. The Democrats have responded by pretending to a public religiosity that still seems strained. Listening to Hillary Clinton detail her prayer life in public, as she did last spring to a packed house at George Washington University, was at once poignant and repellent. Poignant because her faith may well be genuine; repellent because its Methodist genuineness demands that she not profess it so tackily. But she did. The polls told her to."

"Obama, in contrast, opened his soul up in public long before any focus group demanded it. His first book, Dreams From My Father, is a candid, haunting, and supple piece of writing. It was not concocted to solve a political problem (his second, hackneyed book, The Audacity of Hope, filled that niche). It was a genuine display of internal doubt and conflict and sadness. And it reveals Obama as someone whose “complex fate,” to use Ralph Ellison’s term, is to be both believer and doubter, in a world where such complexity is as beleaguered as it is necessary. "
...
"None of this, of course, means that Obama will be the president some are dreaming of. His record in high office is sparse; his performances on the campaign trail have been patchy; his chief rival for the nomination, Senator Clinton, has bested him often with her relentless pursuit of the middle ground, her dogged attention to her own failings, and her much-improved speaking skills. At times, she has even managed to appear more inherently likable than the skinny, crabby, and sometimes morose newcomer from Chicago. Clinton’s most surprising asset has been the sense of security she instills. Her husband—and the good feelings that nostalgics retain for his presidency—have buttressed her case. In dangerous times, popular majorities often seek the conservative option, broadly understood. "
...
In sum, "the paradox is that Hillary makes far more sense if you believe that times are actually pretty good. If you believe that America’s current crisis is not a deep one, if you think that pragmatism alone will be enough to navigate a world on the verge of even more religious warfare, if you believe that today’s ideological polarization is not dangerous, and that what appears dark today is an illusion fostered by the lingering trauma of the Bush presidency, then the argument for Obama is not that strong. Clinton will do. And a Clinton-Giuliani race could be as invigorating as it is utterly predictable."

"But if you sense, as I do, that greater danger lies ahead, and that our divisions and recent history have combined to make the American polity and constitutional order increasingly vulnerable, then the calculus of risk changes. Sometimes, when the world is changing rapidly, the greater risk is caution. Close-up in this election campaign, Obama is unlikely. From a distance, he is necessary. At a time when America’s estrangement from the world risks tipping into dangerous imbalance, when a country at war with lethal enemies is also increasingly at war with itself, when humankind’s spiritual yearnings veer between an excess of certainty and an inability to believe anything at all, and when sectarian and racial divides seem as intractable as ever, a man who is a bridge between these worlds may be indispensable."

What If? A Tale of Two Countries, Pakistan and U.S.

Images out of Pakistan the last few days are striking, with lawyers in business suits hurling tear gas shells back at police and then being rounded up and jailed.

General Pervez Musharraf's declaration of emergency rule last Saturday, including his abolishment of a Supreme Court which has been increasingly critical of his positions on human rights and the validity of his own election, sparked this reaction from the bar. As one prominent Islamabad lawyer, Harvard-educated Babar Sattar, says, "How do you function as a lawyer when the law is what the general says it is?"

And how is Musharraf attempting to justify the imposition of martial law? You guessed it - he needs additional power to combat terrorism.

Sound familiar? America is not the only country with leaders who pander to fear in order to consolidate their power and limit individual rights.

The crucial point is that it's against this sort of autocratic tyranny for which constitutions are built. America's independent judiciary has long reined-in the executive and legislature when they have exceeded their bounds.

Surely if the President of the United States were to claim that he can act beyond the scope of limitations placed upon him by Congress and the Constitution the Supreme Court will slap him down rather than allow him to continue on the path to the sort of tyranny we are now seeing in Pakistan....

Or will it? The positions taken by the newest as well as some of the longer serving members of the U.S. Supreme Court on the issue of Executive Power gives one pause.

If we ever need a reminder on why our Constitution mandates a system of checks and balances, and how very much we depend upon the Supreme Court to prevent the executive from accumulating too much power, we need only look to the images of lawyers at the barricades in Pakistan today, where a powerful executive with a military at his command is making a mockery of the Rule of Law.

Does Second Amendment Apply to States?

Answer: Yes.

See my article, "Second Amendment Incorporation Through the Fourteenth Amendment Privileges or Immunities and Due Process Clauses" at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=723501, just out in hardcopy with the Missouri Law Review.

When I started thinking about this article a few years back, I was prepared to argue that (1) the second amendment does not protect an "individual right," and (2) the second amendment does not apply to individual states, so they should therefore be allowed to outlaw guns.

This was my liberal wishful thinking, anyway, that government should be able to regulate anything as harmful as guns in our society (homicide rate of 4.3 per 100,000, more than 5 times the next highest rate among industrialized nations (Italy)).

But after looking into the history of the debates, etc., it soon became apparent that the overwhelming weight of evidence supports the contrary position, that (1) the second amendment WAS intended to protect an individual right; and (2) the entire bill of rights - including the second amendment - was affirmatively applied to the states in 1868 through the fourteenth amendment privileges or immunities clause (or, alternatively, through the Supreme Court's unnecessarily-tortured "selective incorporation" doctrine premised on the fourteenth amendment due process clause). And as much as I or anyone else might wish it to be otherwise, we can't simply pick and choose from among the constitutional provisions we like and do not like - if we are to maintain fidelity to the notion of constitutional government, we must give effect to the ENTIRE Constitution. (On this point, see also my letter to the New York Times on March, 19, 2007.)

But, as I say in the article (fn. 5), to say that a right like the second amendment is entitled to constitutional protection is NOT to say the right cannot be meaningfully regulated. As Harvard law professor Laurence Tribe notes, "[measures that] by and large do not seek to ban all firearms, but seek only to prohibit a narrow type of weaponry (such as assault rifles) or to regulate gun ownership by means of waiting periods, registration, mandatory safety devices, or the like ... are plainly constitutional.... Even in colonial time the weaponry of the militia was subject to regulation."

Here's the full abstract to the Missouri Law Review article:

"The second amendment, alternately maligned over the years as the black sheep of the constitutional family and praised as a palladium of the liberties of a republic, should be recognized by the United States Supreme Court to apply to the several States through the Fourteenth Amendment privileges or immunities clause or, alternatively, through the due process clause.
This article suggests that the issue of Second Amendment incorporation presents a useful contemporary mechanism for the Court to revive the long-dormant Fourteenth Amendment privileges or immunities clause. Such judicial recognition of the clause is necessary to respect the Framers’ vision, as inspired by the Declaration of Independence and laid out in the amended Constitution, for a government that would serve, instead of rule, the people. Government would exercise its necessary, limited role, and otherwise leave the people alone, with the Constitution standing ever watchful as guardian to assure that government would not overstep its bounds, as governments are apt to do."

Post-Bush America

One of the lasting effects of the George W. Bush presidency is that U.S. credibility is so damaged around the world that it will be difficult for his successor to shape events ranging from addressing global warming, to economic integration, to middle-east politics, and so on and so on.

Perhaps most worrisome is that democracy itself, as a viable political system for the greater good, is damaged by U.S. behavior under Bush's leadership. Why democracy, one might ask, in view of the messes the U.S. is making in Iraq, global warming, Guantanamo Bay, etc., etc.? As Roger Cohen suggests in today's New York Times, "Liberal democracy has taken a battering. A countermodel now exists: the authoritarian-capitalist, or Leninist-capitalist, systems of China and Russia. They have benefited from Iraq's democracy-as-mayhem."

Democracy is the best system yet devised for protecting the Enlightenment-based values of Reason and Individual Liberty. With the bungling of Bush and the Gang that Couldn't Shoot Straight, the next president will have a tall task in restoring faith around the world in the American version of democracy epitomized in the values of pluralism, rule of law, independent media, market economies, tolerance, and basic human decency.

Bush Administration Extremism in War on Terror

You know there's truth to the charges leveled here and elsewhere that the George W. Bush administration has exceeded constitutional bounds in its no-holds-barred approach to the War on Terror when its former key constitutional adviser says so.

As reported by Jeffrey Rosen in the September 9, 2007 New York Times Magazine, Jack Goldsmith, formerly head of the Justice Department's Office of Legal Counsel (the division that advises the president on the limits of executive power) and now a law professor at Harvard, says he is speaking publicly in a new book, "The Terror Presidency," to be published later this month, because he hopes that "future presidents and people inside the executive branch can learn from our mistakes." (In writing this book, Goldsmith is no George Tenet seeking to cash in with a tell-all memoir - he is donating his advance and all proceeds to charity.)

Starting in 2002, Goldsmith served in the Pentagon as a legal adviser to the general counsel of the Defense Department; then in October 2003 he was hired to head the Office of Legal Counsel, only to resign nine months later. As Rosen reports, "Although [Goldsmith] refused to discuss his resignation at the time, he had led a small group of administration lawyers in a behind-the-scenes revolt against what he considered the constitutional excesses of the legal policies embraced by his White House superiors in the war on terror.... By the end of his tenure, he was worn out. 'I was disgusted with the whole process and fed up and exhausted,'" he said.

"In Goldsmith's view," Rosen continues, "the Bush administration went about answering questions [about the legal limits of executive power] in the wrong way. Instead of reaching out to Congress and the courts for support, which would have strengthened its legal hand, the administration asserted what Goldsmith considers an unnecessarily broad, 'go-it-alone' view of executive power. As Goldsmith sees it, this strategy has backfired. 'They embraced this vision,' he says, 'because they wanted to leave the presidency stronger than when they assumed office, but the approach they took achieved exactly the opposite effect. The central irony is that people whose explicit goal was to expand presidential power have diminished it.'"

Goldsmith's opinion is especially telling since he was a member of the innermost circle of the Bush administration's dealings in the War on Terror. He was in the room, in fact, in the now-famous visit by Alberto Gonzales and White House Chief of Staff Andrew Card to then-Attorney General John Ashcroft's hospital room to demand that Ashcroft approve, over Goldsmith's and others' objections, the secret terrorist surveillance program. Goldsmith describes the scene:

"Ashcroft, who looked like he was near death [with a bright light shining on him and tubes and wires coming out of his body], sort of puffed up his chest. All of a sudden, energy and color came into his face, and he said that he didn't appreciate them coming to visit him under those circumstances, that he had concerns about the matter they were asking about and that, in any event, he wasn't the attorney general at the moment; Jim Comey was. He actually gave a two-minute speech, and I was sure at the end of it he was going to die. It was the most amazing scene I've ever witnessed."

Goldsmith concludes that the Bush administration "badly overplayed a winning hand," telling Rosen that in retrospect "Bush 'could have achieved all that he wanted to achieve, and put it on firmer foundation, if he had been willing to reach out to other institutions of government.' Instead, Goldsmith said, he weakened the presidency he was so determined to strengthen."

If there's any silver lining to the sad saga of the Bush presidency, it's in Goldsmith's concluding words: "I don't think any president in the near future can have the same attitude toward executive power, because the other institutions of government won't allow it. The Bush administration has borrowed its power against future presidents."

That, indeed, is the system of checks and balances that the Constitution's structural separation of powers was designed to create.

Iraq Mistakes - Paul Bremer

Did you happen to see Roger Cohen's column in today's New York Times?

In it he discusses one of the many mistakes made in Iraq: the naming by George W. Bush of Paul Bremer to operate as grand poobah of all operations and governance in Iraq, despite the fact that there had been a thoroughly-discussed plan to leave the ruling during the post-Saddam reconstruction to the Iraqis with the US operating behind the scenes.

The plan that never emerged involved sending Zalmay Khalilzad, the Beirut-educated, Farsi-speaking Sunni Muslim who actually has a clue about the Islamic world currently serving as American ambassador to the United Nations, and who had previously worked in Afghanistan to shepherd of Hamid Karzai to power in Kabul, to Iraq to convene a meeting of Iraqis to plan for governing themselves.

As Cohen tells it:

"Khalilzad’s anguish centers on May 6, 2003. That’s the day he expected Bush to announce his return to Iraq to convene a grand assembly — something like an Afghan loya jirga — that would fast-forward a provisional Iraqi government.

Instead, the appointment of L. Paul Bremer III to head a Coalition Provisional Authority was announced. Khalilzad, incredulous, went elsewhere. In the place of an Afghan-American Muslim on a mission to empower Iraqis, we got the former ambassador to the Netherlands for a one-year proconsul gig.

'We had cleared both announcements, with Bremer to run things and me to convene the loya jirga, both as presidential envoys,' Khalilzad told me. 'We were just playing with a few final words. Then the game plan suddenly changed: we would run the country ourselves.'

Alluding to former Secretary of State Colin Powell and his successor, Condoleezza Rice, who was then national security adviser, Khalilzad continued: 'Powell and Condi were incredulous. Powell called me and asked: ‘What happened?’ And I said, ‘You’re secretary of state and you’re asking me what happened!’'

Powell confirmed his astonishment. 'The plan was for Zal to go back,' he said. 'He was the one guy who knew this place better than anyone. I thought this was part of the deal with Bremer. But with no discussion, no debate, things changed. I was stunned.'

The volte-face came at a Bush- Bremer lunch that day where Bremer made a unity of command argument to the Decider. 'I put it very directly to the president: you can’t have two presidential envoys running around Iraq,' Bremer told me.

A MacArthur-Karzai debate had raged within the administration for months: should the United States run Iraq like Gen. Douglas MacArthur in postwar Japan or seek a local Karzai-like leader and operate behind the scenes? ...

'The way we did it gave Iraqis the best chance of a sustainable political process,' [Bremer] argued.

Nonsense, Khalilzad believes. 'I feel strongly that the U.S. ruling was wrong. We could have had an interim Iraqi government. I argued, based on Afghanistan, that with forces, diplomacy and money, nothing can happen anyway without your support.'

Powell agrees. 'Everything was Bremer, the suit, the boots, the whole nine yards.' It was a mistake not to move 'more rapidly to putting an Iraqi face on it.'

Khalilzad and Powell are right. The insurgency that took hold after Bremer’s arrival had a clear target: the guy in Timberlands. Given the extent of its post-cold-war power, the United States must wield it with subtlety. This was the sledgehammer approach.

And chosen over lunch. 'Unfortunately, yes, the way that decision was taken was typical,' Powell said. 'Done! No full deliberations. And you suddenly discover, gee, maybe that wasn’t so great, we should have thought about it a little longer.'”

Lessons from this sad tale? We've long known the Decider makes bad decisions, period. He has made bad decisions his entire life, but has managed to thrive nonetheless when Poppy Bush and his gang bail him out. The saddest point is that the American people, with plenty of evidence of George W. Bush's bad decisionmaking and otherwise poor skills, nonetheless re-elected him in 2004.

Congress Goes Baaaaaa

ACLU Executive Director Anthony Romero gets it just about right in a recent solicitation when he says, regarding Congress's recent expansion of President Bush's power to conduct warrantless wiretaps:

"Ever since a new Congress got elected last November, we've been waiting for it to end the violations of the Constitution and the lawless behavior of the Bush administration.

Well, Members of Congress acted. And instead of restoring our freedoms, they actually handed the Bush administration vast new powers to invade our privacy with no meaningful oversight from the courts or Congress.

Why did Congress cower to George Bush? Fear -- not of terrorists -- but of being labeled "soft on terrorism." It's time to show House Speaker Nancy Pelosi and Senate Majority Leader Harry Reid that Americans want them to protect our Constitution.

When our leaders behave like sheep, their constituents need to know it....

It's bad enough that our Congressional leaders have failed to act to restore habeas corpus, end torture and rendition, and close the Guantanamo Bay prison. But now Congress, led by Harry Reid and Nancy Pelosi, have caved in to Bush fear-mongering and expanded a warrantless spying program they should be investigating and ending.

It's gone from bad to intolerable....

We must make it clear we won't let Congress fail freedom any longer, and that we hold Congress, especially Democrats, accountable for this egregious violation of our constitutional rights."

At What Cost Security?

With the Democratic Congress's authorization a couple weeks ago to allow the executive to conduct warrantless wiretapping, thereby acquiescing to George W. Bush's familiar scare tactics (I think The Onion headline gets it about right: "What the f- did you think we elected you people to do?"), we again face the perennial question of "what are we willing to give up in the name of security?"

First, we should recognize the scope of the problem. Granted, 9/11 was horrific. And the 3000 deaths that day are tragic. But as I blogged earlier this year, so are the 43,000 traffic deaths every year in the U.S. (about 250,000 since 2001); the 550,000 cancer deaths (3.3 million since 2001); and the 655,000 Iraqi (CNN.com Oct. 06) and about 3,500 American war deaths in Iraq since the 2003 invasion.

And the spending - Bush/Cheney is bankrupting the nation with its military adventurism in the name of fighting terror.

Britain and others have begun taking the sensible step of considering audacious attacks like 9/11 as criminal acts subject to harsh penalty, but not to reconstruct the very fabric of society itself around some vague amorphous future terrorist threat. That's what's happening in the United States today - we're throwing the liberty baby out with the threat-to-security bathwater. As a result, the United States is now regarded in the same breath as Stalinist Russia by some of Stalin's modern-day apologists, who justify his pograms and killings of millions of Russians with the statement that "sometimes security requires the limiting of individual liberty, just as we've seen in the United States since September 11, 2001." Some company.

War of Ideology - Who Writes History?

The new Atlantic Monthly's cover story entitled "Lessons From a Failed Presidency" got me thinking.

By now it is clear to reasonable people that the George W. Bush presidency has been nothing short of disastrous. Yet we still see Fox News reporting a different all-is-well story, and we still read reports from some, like neo-con William Kristol and other apologists, encouraging us to stay the course - if not escalate - in Iraq, and to continue to engage in other misadventures around the world (CIA camps, etc. etc.). And this is not to mention the administration's systematic denial of rational scientific evidence in its approach to domestic policy (stem cell, energy policy, etc.).

So the Atlantic's cover story got me thinking about how history will view this era. One hopes there will be a balanced approach, but there's a worry that the Fox News version will prevail.

There is precedent. After the Civil War and the Union victory, the South ultimately won the subsequent "history-writing war." For a brief time following the war, when Reconstruction was underway, there was true equality opportunity for people of all races (women aside, but that's another, major, story). Thereafter things changed, as historian Eric Foner explains:

"By the turn of the century, Reconstruction was widely viewed as little more than a regrettable detour on the road to reunion. To the bulk of the white South, it had become axiomatic that Reconstruction had been a time of ‘savage tyranny’ that ‘accomplished not one useful result, and left behind it, not one pleasant recollection.... This rewriting of Reconstruction’s history was accorded scholarly legitimacy – to its everlasting shame – by the nation’s fraternity of professional historians, … [and] shaped historical writing for generations.... Few interpretations of history have had such far-reaching consequences as this image of Reconstruction, … [which] ‘did much to freeze the mind of the white South in unalterable opposition to outside pressures for social change and to any thought of … eliminating segregation, or restoring suffrage to disenfranchised blacks."

The historians of whom Foner speaks were an early twentieth-century group of young scholars from the South studying the Reconstruction at Columbia University under Professor Dunning, who “were taught … [that Blacks] were ‘children’ utterly incapable of appreciating the freedom that had been thrust upon them. The North did ‘a monstrous thing’ in granting them suffrage, for ‘a black skin means membership in a race of men which has never of itself succeeded in subjecting passion to reason, has never, therefore, created any civilization of any kind.’… These “Dunning School” views … achieved wide popularity through D.W. Griffith’s film, Birth of a Nation (which glorified the Ku Klux Klan and had its premiere at the White House during Woodrow Wilson’s Presidency). … Southern whites, … [it was said,] ‘literally were put to the torture’ by ‘emissaries of hate’ who inflamed ‘the negroes’ egotism’ and even inspired ‘lustful assaults’ by blacks upon white womanhood.’”

In 100 years, will the George W. Bush presidency be remembered in the history books as, perhaps, the era when religion and government were finally properly melded in policymaking? Or, perhaps, the era when the executive finally emerged as the dominant branch, after dispensing with the quaint notion of separation of powers, thus allowing the President to undertake the important task of guiding America in its sacred role as the world's policeman unencumbered by outdated niceties like congressional and judicial oversight?

The War of Ideology in the writing of the history is just beginning.

Court Packing (or Shrinking)

Yesterday I commented that "our constitutional regime has an Achilles Heel in the vast power of the Supreme Court - i.e., if we ever get five justices (enough for a majority) who consistently vote in ways that systematically undermine the text and spirit of the Constitution, there's little We the People can do to reverse the decisions of these appointed-for-life Justices."

Jean Edward Smith, John Marshall professor of political science at Marshall University, makes an excellent point in an OpEd in yesterday's New York Times, reminding us of the several times throughout the nation's history when the Court has been "set straight" with the political solution of increasing (or decreasing) its membership.

The size of the Supreme Court is not fixed by the Constitution. It is determined by Congress. As Smith notes, "there is nothing sacrosanct about having nine justices on the Supreme Court. Franklin D. Roosevelt's 1937 chicanery has given court-packing a bad name, but it is a hallowed American political tradition participated in by Republicans and Democrats alike." Specifically, Congress has adjusted the size of the Supreme Court on the following occasions:

-1800: "When the Federalists [and John Adams] were defeated in 1800, the lame-duck Congress reduced the size of the court to five - hoping to deprive President Jefferson of an appointment. The incoming Democratic Congress repealed the Federalist measure (leaving the number at six), and then in 1807 increased the size of the court to seven, giving Jefferson an additional appointment."
-1837: Congress "increased the number to nine, affording the Democrat Andrew Jackson two additional appointments."
-~1862: "During the Civil War, to insure and anti-slavery, pro-Union majority on the bench, the court was increased to 10."
-~1866: "When a Democrat, Andrew Johnson, became president upon Lincoln's death, a Republican Congress voted to reduce the size to seven (achieved by attrition) to guarantee Johnson would have no appointments."
-1868: "After Ulysses S. Grant was elected, Congress restored the court to nine. That gave Grant two new appointments.
-1937 (failed attempt): "The most recent attempt to alter the size of the court was by Franklin Roosevelt in 1937. But instead of simply requesting that Congress add an additional justice or two, Roosevelt's convoluted scheme fooled no one and ultimately sank under its own weight."

Smith's point is an important one, in that it explains another mechanism by which We the People, through our elected representatives, may temper a persistently out-of-touch Supreme Court.

Smith concludes, "If the current five-man majority persists in thumbing its nose at popular values, the election of a Democratic president and Congress could provide a corrective. It requires only a majority vote in both houses to add a justice or two. Chief Justice John Roberts and his conservative colleagues might do well to bear in mind that the roll call of presidents who have used this option includes not just Roosevelt but also Adams, Jefferson, Jackson, Lincoln and Grant."

Separation of Powers Showdown

The President's position that his aides are absolutely immune from testifying before Congress, despite congressional subpoenas for information on the abrupt firings of federal prosecutors, sets up a separation-of-powers showdown that will be resolved ultimately by the Supreme Court - which these days is an increasingly scary proposition.

As reported by MSNBC, "the White House has said that Chief of Staff Josh Bolten and former legal counselor Harriet Miers, among other top advisers to President Bush, are absolutely immune from subpoenas because their documents and testimony are protected by executive privilege." In response, House Democrats today are preparing contempt of Congress citations against Bolten and Miers.

This is just the latest in George W. Bush's assault on the Constitution. The Supreme Court, IF it adheres to precedent on this issue, will hold that executive privilege does not extend to allow aides to avoid responding to congressional subpoena. This would be the correct decision, in that it recognizes the proper separation of powers among the executive and legislative branches envisioned by the framers of the Constitution.

That's a big "if," though, since the Roberts Court has demonstrated in its recently-completed 2006-07 term that it is perfectly willing to discard precedent when it might have more cautiously decided the cases on other grounds. And we're perilously close - if we're not there already - to having a majority of the Court ratify the President's extreme views of Executive power. Even a case that seemed as open-and-shut as the 2006 Hamdan case, holding that the executive lacked the power to unilaterally limit the due process rights of enemy combatants imprisoned at Guantanamo Bay, was only 5-3 (actually, 5-4, since Chief Justice Roberts recused himself, having decided the case below in favor of the President while on the DC Federal Court of Appeals).

I've said it before, but this is yet another illustration of the notion that our constitutional regime has an Achilles Heel in the vast power of the Supreme Court - i.e., if we ever get five justices (enough for a majority) who consistently vote in ways that systematically undermine the text and spirit of the Constitution, there's little We the People can do to reverse the decisions of these appointed-for-life Justices. Oh, technically we can amend the Constitution or argue that Congress will impeach the Justices, but both of these alternatives are so remote as to be virtually non-existent.

Stay tuned for the future of our constitutional democracy.

Summer Reading

Back now from several weeks of summer R & R....

I've been reading a number of books this summer I'd highly recommend. Here's a list of several of the best, with some of the dust-jacket blurbs:

-Kevin Phillips, American Theocracy (2006) - dedicated "to the millions of Republicans, present and lapsed, who have opposed the Bush dynasty and the disenlightenment in the 2000 and 2004 elections," American Theocracy describes how "every world-dominating power from ancient Rome to the British Empire has been brought down by an overlapping set of problems: a foolish combination of global overreach, militant religion, diminishing resources, and ballooning debt. In American Theocracy, former Republican strategist and noted political and economic commentator Kevin Phillips argues that it is exactly this nexus of ills that has come to define America's identity at the start of the new century. Matching his command of history with a penetrating analysis of contemporary politics, Phillips presents a searing vision of the future, confirming what too many Americans are still unwilling to admit about the depth of our misgovernment."

-Howard Zinn, A People's History of the United States: 1492-Present (1980) - with its telling of America's story from the point of view of America's women, factory workers, African Americans, Native Americans, working poor, and immigrant laborers, A People's History of the United States has become a modern classic, translated now into a dozen languages. Historian Eric Foner states, in the New York Times Book Review, "Professor Zinn writes with an enthusiasm rarely encountered in the leaden prose of academic history, and his text is studded with telling quotations from labor leaders, war resisters, and fugitive slaves. There are vivid descriptions of events that are usually ignored, such as the great railroad strike of 1877 and the brutal suppression of the Philippine independence movement at the turn of the last century. Professor Zinn's chapter on Vietnam - bringing to life once again the free-fire zones, secret bombings, massacres, and cover-ups - should be required reading for a new generation of students." Howard Fast adds, "One of the most important books I have ever read in a long life of reading.... It's a wonderful, splendid book - a book that should be read by every American, student or otherwise, who wants to understand his country, its true history, and its hope for the future."

-Cullen Murphy, Are We Rome? (2007) - longtime Atlantic Monthly managing editor Cullen Murphy "ventures past the pundits' rhetoric about the rise and fall of ancient Rome to draw draw nuanced lessons about how America might avoid Rome's demise. Working on a canvas that extends far beyond the issue of an overstretched military, Murphy reveals a wide array of similarities between the two empires: the blinkered, insular culture of our capitals; the debilitating effect of venality in public life; the paradoxical issue of borders; and the weakening of the body politic through various forms of privatization. Murphy argues that we most resemble Rome in the burgeoning corruption of our government and in our arrogant ignorance of the world outside - two things that are in our power to change."

-Chalmers Johnson, Nemesis (2007) - following from his earlier books, Blowback, linking the CIA's clandestine activities abroad to disaster at home, and The Sorrows of Empire, exploring how the growth of American militarism and the garrisoning of the planet have jeopardized our safety, Nemesis shows how imperial overstritch is undermining the republic itself, both economically and politically: "Delving into new areas - from plans to militarize outer space to Constitution-breaking presidential activities at home - Nemesis offers a striking description of the trap into which the grandiose dreams of America's leaders have taken us. Drawing comparisons to the Roman and British empires, Johnson explores in vivid detail just what the unintended consequences of our dependence on a permanent war economy are likely to be."

School Desegregation Cases - Prognostication: One for Three

With the Court's decision yesterday in the school desegregation cases (Meredith v. Jefferson County Bd. of Educ. (Louisville) and Parents Involved in Community Schools v. Seattle School Dist. No.1) , I'm one for three in my September 2006 guesses for which way the Court would decide in three key cases in the just-concluded 2006-07 term. (The others were the Philip Morris USA v. Williams decision handed down in February (predicted correctly) and the Gonzales v. Carhart decision handed down in April (predicted incorrectly).)

An average of .333 is pretty good in baseball, but not so good in prognosticating, I'm afraid. In these two later cases I wrongly-guessed the Court would respect the doctrine of stare decisis (adhering to precedent), whereas instead the newly-branded conservative majority overcame precedent that would seem to have suggested another outcome. This is surprising (or maybe not), in light of Chief Justice Roberts' and Justice Alito's pledges during their confirmation hearings to respect stare decisis, and in light of the fact that "judicial activism" of this sort is anathema to judicial conservatives (at least in theory).

The Justices' willingness to overcome precedent so easily and so quickly is troubling (and don't be fooled by the majority's position that this latest Parents Involved in Community Schools decision is mandated by Brown v. Board of Education - it's not (more later on this)). Don't get me wrong - I don't object to the Court overturning earlier decisions when they've been wrongly-decided, despite stare decisis. But to do so while loudly proclaiming a judicial philosophy where judges should not be "active," and should move cautiously and incrementally in addressing changes to binding precedent, is simply... hypocritical.

On the horizon: abortion. Even after the confirmations of Roberts and Alito, and as recently as a few months ago, I'd been confident that the underlying principle of Roe v. Wade - i.e., a woman has an individual right to choose to have an early-stage abortion free of government interference - would not be overcome. That confidence was based on a belief of Roberts' and Alito's (supposed) firm commitment to the credo of the (supposed) judicial conservative to respect stare decisis. After their performance this term, I'm not so sure - that firm commitment is looking more and more like nothing more than lip service all the time, and Roe is in the cross-hairs.

Campaign Finance Case - Money in Politics is a Problem

Houston, we've got a problem. Our democratic Republic is being threatened by money in politics.

And the Supreme Court is enabling this problem, most recently in its FEC v. Wisconsin Right to Life decision yesterday, where the Court held that certain restrictions on corporate and union spending in the weeks before an election are unconstitutional. (By contrast, the Court upheld such advertising restrictions when the McCain-Feingold Campaign Spending law first came before the Court four years ago.)

Normally I'm all for an expansive reading of the Bill of Rights and of other individual rights, privileges, liberties and immunities - but there are no absolutes; on this, as with most things in life, there are limits. The First Amendment "Money-as-Speech" doctrine, as first enunciated by the Court in the 1976 Buckley v. Valeo case, has run amok, and threatens our very democracy by elevating the power of money in politics.

The fact is that to have any hope of being elected to office in America today, a person must either be rich or know people who are rich - or know someone who can raise a ton of money (who all-too-often use questionable tactics - Jack Abramoff). The ordinary citizen simply does not qualify on any of these counts.

When our representatives are so beholden to "special interests" - corporations, unions, lobbyists, ... whomever - their independence and ability to represent our interests are compromised. I don't care what you say - if a politician's main goal is to be re-elected (and don't kid yourself - that's the main goal of most politicians), and x dollars are needed in order to re-elected, and there's a campaign contributor who can provide a major portion of x dollars, there's a very real danger that the politician is going to be unduly influenced by that contributor, to the detriment of other constituents. Other constituents' voices are unfairly diminished - only if the constituents have money, and are willing to spend it on the politician, do they effectively have their voices heard.

I read somewhere recently a couple (imperfect) analogies: if we were to offer the decisionmaker in a court case - the judge - $100 beforehand to attempt to influence her decision, we call it a bribe; if we were to offer the decisionmaker in a baseball game - the umpire - $100 beforehand to attempt to influence his decision, we call it a bribe; whereas if we offer $100 (or more likely, $10,000 or $100,000) beforehand to the decisionmaker in politics - the elected representative - we call it a campaign contribution.

Does anyone smell a rat? Something ain't right here....

Bonnaroo 2007 From the Inside: The White Stripes

More from inside Bonnaroo 2007:

Well, Jack and Meg White tore the place up last night with Jack's mind-bending instrumentals/vocals and Meg's thumping rhythms on the drumkit. The Which stage crowd was huge - and pretty frenzied toward the front with as many as 10-15 bodies being passed at a time through much of the first half of the show....

Coming as it did at sundown of the last of four Bonnaroo days, the White Stripes were the perfect band to complement the dust, heat, and exhilaration of four days of great music and vibes.

Bonnaroo 2007 From the Inside - Sunday afternoon

Back.... (& check out the Bonnaroo smoke-ring in this pic):

Overheard at the water line at 9am this morning from inside Bonnaroo 2007 (even though you're up until 2-3am for all the late acts, there's no sleeping once the sun starts heating up the tent at 8am....) after the Police's 1-3/4 hour set last night:

"I don't know about closing down everything else for the Police - Warren Haynes could wipe him up.... 'hey-o, hey, hey-o' - we get it already...."

They did sound great though - and "Roxanne" met the test laid down by the Roots on Friday.
More highlights since last time:
-I forgot to mention guitarist James Blood Ullmer, France's 2006 "Jazzman of the Year," first thing on Friday - no doubt the blues;
-Didjeridooist (sp??) and one-man-band Xavier Rudd - complete with Aussie flags and kangaroos in the pit;
-Keller Williams and the WMD's - not in HIS one-man-band mode, disappointingly, but still rocking, complete with stuffed dogs (including a 6-foot Scoobie who came unstuffed in the pit after awhile) in honor of "I can be your dog, and you can be my master."

Disappointments:
-Everybody's raving about the Flaming Lips' midnight show last night with the band emerging from a descending spaceship, confetti, dancing female Santas, etc., etc., but my impression in seeing part of this show (I left after 30 minutes) was that it was lots of bells and whistles covering up pretty mediocre music. Performance art is all well and good, and I know lots of people like the spectacle.... but circus acts just aren't my cup of tea.

More later.... just heard the request to limit time at 15 minutes, and also I'm hearing something promising, The Slip, just outside at the Sonic Stage....

Bonnaroo 2007 From the Inside - Saturday

Here in the DLink-wired tent working up toward the third of four nights from inside the 80,000 person tent-city at the alternate reality that is Bonnaroo 2007, the annual mid-June music festival of music festivals on a farm southeast of Nashville.....

Tonight the Police play a stop on their reunion tour; other big acts during week are The White Stripes, Tool, The Flaming Lips, Ben Harper , Wilco, Ziggy Marley, Widespread Panic, and Bob Weir of the Grateful Dead. A highlight so far was the Superjam at midnight on Friday - Ben Harper with bassist John Paul Jones of Led Zeppelin fame and drummer ?uestlove of Roots. Unbelievable jams with Zep's Dazed and Confused morphing into Immigrant Song and Stevie Wonder's Very Superstitious....

Most enjoyable acts so far:
-a real surprise on night one, first act of the Festival Thursday in the "The Other Tent" as most were still coming in from their 4-5 hour waits at the gate, was gospel singer Ryan Shaw - check him out.... the guy is incredible;
-also on night one at midnight, Rodrigo y Gabriela, a guitar duo from Mexico City working some tight acoustics;
-kicking off Day Two, Richard Thompson, one of Rolling Stones' top 20 all-time guitarists;
-Michael Franti with his band Spearhead, joining the front-rail crowd at the Which Stage in some uniquely-Bonnaroo festivities;
-the Roots at the What Stage Friday, laying down the gauntlet with a great cover of "Roxanne";
-Latin-alternative rocker/activist Manu Chao - I had to see him after the strong trusted recommendations of a student, and the guy is impressive;
-the first great unexpected find, Brandy Robinson at the non-descript Solar Stage, then at the Blue Room cafe earlier this afternoon - this girl ROCKS (at least that's when she's at her best).... And you know musicians are hungry when they're selling their latest and earlier 1-2 discs onsite for $15-$20 for the set. I picked up all of hers....
-So far today, Day Three, an early disappointment with Hot Tuna - these Jefferson-Airplane mates and early 70s collaborists are legendary, but they lacked energy today.... they've been playing together fifty-years, though, so they can be excused....;
-an incredible unexpected find just an hour or so ago, though, at the Sonic acoustic stage with NYC Club player and Bonnaroo and recent South-by-Southwest first-timer organist and singer Jonah Smith, winner of a Relix magazine jam-off - check THIS guy out.... I also picked up his CDs.
-The Allman Bros.'s and Gov't Mule's Warren Haynes acoustic set at the Sonic Stage just before now - from the roots....

More later....

No Place Like Home

Back now in Michigan from 3 weeks in Mexico for the MSU Summer Law Program, and it's good to be back. As stimulating and interesting as travel may be - and I do love it - in Dorothy's words there's no place like home. There's something about the comfort of one's own surroundings and routines that nurtures the instinctual human need for security - at least it does for this one.

Barack Obama Campaign Records Call

I admit I was a bit put off by the telephone solicitor for Barack Obama’s campaign who advised me the call was being taped.

“Taped?” I asked.

“Yes, but only for quality purposes,” she replied.

After telling her I wasn’t interested, asking her to remove me from the list and hanging up, I wondered about the call.

Why should Barack Obama’s organization want to tape a conversation with me? This feels very intrusive.... I know, I know - I can "just say No," and I did, but it's still irritating to have Obama's campaign soliciting me in my own home, telling me "this call may be recorded for quality purposes."

Please.

Immigration Bill

I’ve been a frequent and harsh critic of George W. Bush in these pages, but to give credit where credit is due, the president is getting it right on the current immigration debate.

As Julie Mason of the Houston Chronicle reports, Bush said, in addressing critics of the bipartisan plan that would grant citizenship upon passage of a certain amount of time and payment of fees, "If you want to scare the American people, what you say is the bill's an amnesty bill.... That's empty political rhetoric, trying to frighten our citizens."

"People shouldn't fear our capacity to uphold our motto, E Pluribus Unum," Bush told McClatchy Newspapers. This was Bush's "harshest public backhand yet to the conservative bloggers, commentators, politicians and CNN anchor Lou Dobbs, all gassing about how the bill amounts to amnesty," Mason reports.

The compromise Senate bill is also drawing fire from Democrats, who criticize the high fees and penalties for illegal immigrations, or the change in philosophy in deciding who gets in away from reuniting families and toward valuing education and skills.

Bush explained, “I feel passionate about the issue. It's something I have felt strongly about ever since I was the governor of Texas.... Texas is a very diverse state, Houston is a very diverse city, and through that diversity, if you're open-minded, you get a great sense of how it invigorates the society."

"You recognize, [growing up in Texas,] the decency and hard work and humanity of Hispanics," Bush continued. "And the truth of the matter is a lot of this immigration debate is driven as a result of Latinos being in our country."

My goodness. This is the sort of humanity we can only wish this president would have demonstrated on a day-in and day-out basis throughout the last six and a half years. If he had, the world would be a lot better place today.

Puerto Vallarta - Mexican Jurist

The Mexico Summer Law program I'm leading for a few weeks moves to the Jalisco port city of Puerto Vallarta, where our students will take a course on "Mexican Legal Institutions" from one of Mexico's leading law professors and jurists, Dr. Manuel Gonzalez-Oropeza (professor at National Autonomous University of Mexico (UNAM) and Justice on the Federal Electoral Court).

Puerto Vallarta is an appropriate site for the course - besides being a beautiful location on the sea, it is named for a preeminent Mexican jurist, Ignatio L. Vallarta, who served as president of Mexico's Supreme Court of Justice from 1878-1883. As quoted from the online abstract from the University of Texas TARO Ignatio L. Vallarta papers, "Vallarta held more power than ever as president of the court because the Constitution gave him executive power in the absence of the nation’s president, which equated the position to the vice-president of the Republic. He presided over the Supreme Court for five years as a strong constitutionalist and became famous for his votos as he worked to interpret strictly the Constitution of 1857. His book Votos de Vallarta recounts the decision-making process during his jurisdiction as he emphasized the points of constitutional rights in the cases brought before him."

Vallarta remains highly respected among modern-day Mexican professors and constitutionalists - he is one of only a couple or several Mexican jurists from whose opinions they will quote (another is the wunderkind Mariano Otero, who died at age 33 around 1850).

Government Role in Regulating Morality - U.S. and Mexico

I'm interested in a comment from a good friend and colleague here in Guadalajara regarding the current abortion controversy in Mexico. (Mexico City has recently moved to legalize some abortions - a big step in this country that's estimated to be 90% Catholic).



Anyway, she said, "We're really upset here - we look north and see the United States beginning to regulate moral values more, and Mexico seems to be doing so less, and we think the U.S. is heading the right direction and we're going wrong."



I have great respect for my friend, but I couldn't disagree more. It's not government's job or role to regulate morality - each individual's human dignity must be respected, and that includes allowing that person to make these sorts of decisions for him or herself.

Article in Louisiana Law Review

A month or so ago I wrote about the process for publishing academic articles, and now that we've gone through that drill for the current cycle I'm pleased to report my Essay "Government as Liberty's Servant: The 'Reasonable Time, Place and Manner' Standard of Review for All Restrictions on Liberty Interests" will appear in the 2007-08 volume of the Louisiana Law Review.

Here's Essay abstract:

"This essay suggests that the American legal system fails to do proper justice to the robust conception of Liberty under which the nation was founded, and locates a major source of the problem in the Supreme Court’s current presumption-of-constitutionality approach to judicial review, prompted by post-New Deal backlash to Lochner v. New York. This essay offers a new due process clause-based presumption-of-liberty standard of judicial review, modeled on the Court’s existing First Amendment “reasonable time, place and manner” doctrine. This approach, already utilized narrowly by the Third Circuit Federal Court of Appeals in Lutz v. York in 1990, more accurately reflects the Constitution’s core Liberty-First ideals, while also recognizing the proper police-power role of government."

Click here for a link to the full essay.

Jimmy Carter - Bush Foreign Policy "Worst in History"

Did you happen to catch former President Jimmy Carter's comments about George W. Bush published in yesterday's Arkansas Democrat-Gazette? Carter said, "I think as far as the adverse impact on the nation around the world, this administration has been the worst in history."

Wow... dem's fighting words.

Carter explains, "The overt reversal of America’s basic values as expressed by previous administrations, including those of George H.W. Bush and Ronald Reagan and Richard Nixon and others, has been the most disturbing to me.... We now have endorsed the concept of pre-emptive war where we go to war with another nation militarily, even though our own security is not directly threatened, if we want to change the regime there or if we fear that some time in the future our security might be endangered.... But that’s been a radical departure from all previous administration policies.”

Ya gotta admire Carter for telling it like it is - and it IS the way it is, as more-and-more Americans are coming to realize. W is truly abominable - and the profound damage he and the Gang That Couldn't Shoot Straight have done to the nation will take a long time to repair.

Carter also had harsh words for Bush's lap-dog Tony Blair in an interview with BBC radio, characterizing Blair's support of Bush as “Abominable. Loyal. Blind. Apparently subservient.... I think the almost undeviating support by Great Britain for the ill-advised policies of President Bush in Iraq have been a major tragedy for the world."

Indeed.

Pope Benedict - Inserts Foot-in-Mouth on Conquest

Here in Mexico, where I'm spending a few weeks teaching in a study-abroad program, it's estimated that 90 percent of the population is Catholic.

So news of the Pope Benedict XVI's latest faux pas (in his two years at the Church's helm Benedict has shown a surprising propensity for inserting his foot in his mouth - remember last September's furor surrounding his comments on Mohammed's "evil and inhuman" teachings?), at the end of his visit to Brazil last week, is of more than passing interest here.

As reported by Reuters, Benedict commented in Brazil that the Church had not imposed itself on the indigenous peoples of the Americas, and that tribal Indians welcomed the arrival of European priests at the time of the Conquest - notwithstanding the millions of deaths to Latin America's indigenous peoples through slaughter, disease and enslavement at the hands of the Europeans - as they were 'silently longing' for Christianity.

Benedict's "arrogant and disrespectful" comments have prompted an uproar among many Indian leaders, politicians, human rights advocates, and even members of the Church in Latin America. "The Pope doesn't understand the reality of the Indians here, his statement was wrong and indefensible," Father Paulo Suess of the Church's own Indian advocacy group in Brazil told Reuters. "I too was upset."

Contrast Benedict's comments to those of Pope John Paul II, whose 1992 remarks on the mistakes of the Church's evangelization of native peoples - where priests regularly blessed conquistadors as they rampaged through the Americas, for example - were considered by many as an apology, prompting one tribal leader, Dionito Jose de Souza, to ask, "The state used the Church to do the dirty work in colonizing the Indians but they already asked forgiveness for that ... so is the Pope taking back the Church's word?"

Stay tuned.

Mexico - Academic Life

One of the (many) perks of academic life is the opportunity to situate oneself to teach in different places and work with many different really nice people around the world if that's something of interest. It certainly is to me, and in a dozen years in the biz I've had the good fortune to be able to teach in Mexico on numerous occasions, in Lithuania a couple times, Taiwan & China a few times, and pretty soon Australia.

Anyway I just arrived a couple days ago in Guadalajara to supervise MSU's 3-week Summer Law Program at the Universidad de Panamericana. Here are a couple shots, at the U.P. campus and the hotel, with these beautiful flowering jacaranda trees you see everywhere here.

Anyway, 3 weeks is a long time away from home and family, but there are worse ways to make a living. As a colleague says, it beats roofing in Texas....

Progressive Liberty & Natural Rights - Thomas Paine & "Rights of Man"

In my last entry I commented on Thomas Paine and how his 1776 sensation "Common Sense" gave voice to what historian Bernard Bailyn identified as the most basic goal of the American Revolutionary Era: "[to] free the individual from the oppressive misuse of power, [and] from the tyranny of the state.”

A decade and a half later, Paine's "Rights of Man," published in stages from 1791-94, elaborated on the theme (and along the way helped fuel the French Revolution), by stating the basic principle that “Man did not enter into society to become worse than he was before, nor to have fewer rights than he had before, but to have those rights better secured.”

Explaining the circumstances under which man cedes some of his natural rights to the care of society and government (we may call those natural rights so entrusted as “civil” rights), Paine said:

"The natural rights which are not retained, are all those in which, though the right is perfect in the individual, the power to execute them is defective…."

“[N]atural rights are the foundation of all his civil rights…., [and include] all the intellectual rights, or rights of the mind, and also all those rights of acting as an individual for his own comfort and happiness, which are not injurious to the natural rights of others."

"Civil rights are those which appertain to man in right of his being a member of society. Every civil right has for its foundation some natural right pre-existing in the individual, but to the enjoyment of which his individual power is not, in all cases, sufficiently competent. Of this kind are all those which relate to security and protection…."

"He therefore deposits this right in the common stock of society, and takes the arm of society, of which he is a part, in preference and in addition to his own. Society grants him nothing. Every man is a proprietor in society, and draws on the capital as a matter of right.”

"The natural right which he retains[, by contrast,] are all those in which the power to execute it is as perfect in the individual as the right itself….”


For a modern perspective on these progressive liberty ideas, Charles Fried says in his recent book, "Modern Liberty: And the Limits of Government" (a book on which I've blogged here previously):

“It is generally thought that we must have the state for enforcement, legislation, and adjudication, and ... [therefore rights must be merely] creatures of the state. But it is entirely plausible to argue that we have the rights whether or not they are enforced, embodied in codes, or officially adjudicated…. Our rights in their broad outlines are the entailments of what we are: free and reasoning persons, capable of a conception of what is good and right…."

Fried continues,

"It is because our rights flow from who and what we are that we may form, re-form, or accept government in order to make our rights more certain and secure. So those who say that our rights depend on or are the creatures of states have it the wrong way around…. The state is nothing but a web of relations between individuals as individuals, whose choices are coordinated according to what they understand is possible for them and what they may or may not do...."

"[That is,] if states are the greatest violators of liberty, they are also its greatest enablers and protectors. In any advanced condition of civilization there can be no effective degree of liberty without the state, because there can be no effective degree of liberty without law."

Paine's and Fried's descriptions capture well the principles of "progressive liberty" - i.e., recognizing individual liberty's preeminent position while also acknowledging government's indispensable role in protecting that liberty.

These ideas are further developed in my forthcoming Essay entitled "Government as Liberty's Servant: The 'Reasonable Time, Place and Manner' Standard of Review for All Government Restrictions on Liberty Interests" (click here to view abstract or download full essay).

Progressive Liberty Basics - Thomas Paine & "Common Sense"

In reflecting upon Liberty as the backbone principle of America's founding and constitutional framing, it's instructive to read again "Common Sense" and "Rights of Man," Thomas Paine's bombshell 1776 and 1791-94 works.

Historian Sidney Hook suggests Paine's philosophy "inspired two of the greatest revolutions in human history – the American Revolution and the French Revolution”; and fellow-historian Jack Fruchtman comments on "Common Sense's" impact in America: "[It was] the January heat of 1776 that balanced the July light of Thomas Jefferson’s Declaration of Independence.... George Washington, Thomas Jefferson, and many others praised it…. It might even be said that while Jefferson’s abstract diction justified rebellion, Paine’s explosive words got rebel men and muskets into the field.”

In plain language, Paine spoke of the relationship of government to the individual and vice-versa:

"Society in every state is a blessing, but government even in its best state is but a necessary evil; in its worst state an intolerable one…. Government, like dress, is the badge of lost innocence."

"In order to gain a clear and just idea of the design and end of government, let us suppose a small number of persons settled in some sequestered part of the earth, unconnected with the rest, they well then represent the first peopling of any country, or of the world. In this natural liberty, society will be their first thought. A thousand motives will excite them thereto, the strength of one man is so unequal to his wants, and his mind so unfitted for perpetual solitude, that he is soon obliged to seek assistance and relief of another, who in his turn requires the same…."

"Thus necessity, like a gravitating power, would soon form our newly arrived emigrants into society, the reciprocal blessings of which, would supersede, and render the obligations of law and government unnecessary while they remained perfectly just to each other; but as nothing but heaven is impregnable to vice, it will unavoidably happen, that … they will begin to relax in their duty and attachment to each other; and this remissness will point out the necessity of establishing some form of government to supply the defect of moral virtue…."

"Then, as populations increase and become more dispersed, a just government naturally evolves from pure democracy into a representative republic, with frequent elections to maintain accountability."

So, in Paine's description, government is necessary to protect humans from themselves, in order to protect the preeminent value: liberty.

This notion of "progressive liberty" - i.e., recognizing individual liberty's preeminent position while also acknowledging government's indispensable role in protecting that liberty - is the very sentiment expressed by James Madison in The Federalist No. 51: “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.”

These ideas are further developed in my forthcoming Essay entitled "Government as Liberty's Servant: The 'Reasonable Time, Place and Manner' Standard of Review for All Government Restrictions on Liberty Interests" (click here to view abstract or download full essay).

Jefferson & Hamilton - slavery

One of the most disappointing things about America's Founders and Framers is that they were so... well, imperfect. We want our heroes to be the stuff of myth, dispensing their Zeusian wisdom on high from Mt. Olympus, so it's hard to get past the fact that Jefferson - he of "inalienable rights" and "all men are created equal" - Madison, and others of their peers and colleagues, were slaveowners.

I lurk on a listserv for constitutional law and political science profs, and recently there've been some illuminating exchanges on this point; in particular, comparing Thomas Jefferson and Alexander Hamilton.

A number are highly critical of Jefferson for his hypocricy on the slavery question. Professor Sean Wilson from Penn State comments, for example, "I think [Jefferson's] opposition to the Missouri Compromise later in life (wanting slavery to expand everywhere), his non-opposition to voluntary emancipation in Virginia, and his opposition to the slave trade can be further understood in terms of his racism. Virginia had an excess supply of slaves, so all of these efforts would encourage fewer Americans of African descent to live in Virginia. He talked about the need to have "diffusion" before slavery might be outlawed (which is code for not having too many people around you)...."

Professor Paul Finkelman of Albany Law School says that when he began his extensive work on Jefferson, he "expected to take [a favorable] position.... I had read books about Jefferson and assumed he was a moderately antislavery man, caught up in his world. I then read almost everything Jefferson has ever written on slavery and came to a very different conclusion. I have looked very carefully at his life and his treatment of his slaves. It is not a very pretty picture. His statements are very dishonest."

"[For example,] in Notes on the State of Virignia he makes it clear that they are not his 'moral equal.' He argues that they do not love like white people, they have not skill, they are in effect genetically inferior to whites. He compares them to Roman slaves, noting the many successes of Roman Slaves, and then goes on to note that Roman slaves were "white." In the Notes, written in 1783, he seems pretty certain that blacks are naturally inferior to whites in all ways. Other southerners argue the same thing. They also are already arguing that the Bible supports slavery in general and black slavery in particular.... Indeed, Jefferson's Declaration forces Jefferson and others to assert and develop a "scientific" racism to support slavery since otherwise the logic of the Declaration would be emancipation. Jefferson opposed emancipation his whole life, even telling friends not to free their slaves (they were "pests" "on society" he argued)."

Hamilton, by contrast, comes off much more favorably. Professor Matthew Holden from Virginia comments, "Hamilton supported the proposal of Laurens of South Carolina to free African slaves and arm them to fight the British, [stating,] 'The contempt we have been taught to entertain for the blacks makes us fancy many things that are founded neither in reason nor experience, and unwillingness to part with property of so valuable a kind will furnish a thousand arguments to show the impracticability or pernicious tendency of a scheme which requires such a sacrifice.'"

Professor Wilson adds, "(a) Hamilton saw the evils of slavery in St. Croy [sic] and the west indies fairly early in life; (b) Hamilton knew that a single-cash crop economy was an inferior economic model that was actually, in the long term, retarding the South's development into an industrial and manufacturing economy; (c) Hamilton appears to have been against both slavery and discrimination; (d) Hamilton never favored "repatriation;" and (e) both he and his wife were committed abolitionists throughout their own lives."

In comparing the two men, Finkelman concludes, "there is a huge difference between someone who "condemns" slavery -- that is says it might be wrong in the abstract, or that it is bad policy, or that it harms white people (that are Jefferson's points) and someone who actually does something about it in either is professional, public, or personal life. A number of men of the revolutionary era freed their own slaves either in their lifetime or at their death. Others, like Judge St. George Tucker, proposed ways of ending slavery. Jefferson did none of this."

All of that said, Professor Michael Curtis from Wake Forest suggests we should acknowledge the individual failings but look also at the larger contributions: "The 'poetic exaggeration' of the Declaration was a force for good--whatever the failings of the man who wrote it and the others who endorsed it. It helped to expand suffrage to the poor, to support freedom for the slave, to expand suffrage to women, to support civil rights for blacks and others, and to further equal rights for women. You can see its influence, I think, in section 1 of the 14th Amendment. Not a bad list of contributions for a 'poetic exaggeration.' It was, as Lincoln saw, an ideal--never fully attained but something to strive for. So Lincoln denied that the ideals of the Declaration could or should be degraded by the fact many of the framers did not live up to its ideals or to the practices they engaged in in 1776."

Books of the Times - cont'd

More from "Rendezvous with Destiny," the history of reform during the post-Civil War period through 1950 by Eric F. Goldman (winner of the Bancroft Prize for distinguished American History in 1952) I blogged on last week....

Some additional nuggets and gems in the pages of this book include Goldman's descriptions of a couple books during the late nineteenth-century that were enormously influential to the course of American history, but that are all but forgotten today.

Goldman gives a couple examples - first, Henry George, whose book "Progress and Poverty" caught the angry mood of the 1870s:

"'Progress and Poverty,' published in 1879, was not out a year before its author was a national figure. Across the country, farmers squinted over the book's fine print. 'Tens of thousands of industrial laborers,' the economist Richard Ely note, 'have read 'Progress and Poverty' who never before looked between the covers of an economics book.' Troubled Americans who were neither factory hands nor farmers helped make 'Progress and Poverty' one of the ten or so most widely selling non-fiction works in the history of the United States."

"The young man who had wanted so fervently and had been stopped so often, with his moving arraignment of his times, his warning that America was moving down the weary road of Europe [with its stratified classes], his summons to recreate opportunity, had caught the mood with which thousands of Americans left the depression of 1873."

This is fascinating to me.... We read the recent and current histories - and that's all well and good - but we lose an awful lot if we fail to go back and dig deeper into what people were really responding to at the time.

Books of the Times

One thing I like about used book sales is the totally random nature of the sort of books one will find. A few weeks ago I picked up a dozen or so books at the East Lansing library used book sale (for the grand sum of about $10.00 - another thing I like about used book sales!), and among the non-fiction I found were older works on FDR & Eleanor, Theodore Roosevelt, Churchill, etc. ... and something called "Rendezvous With Destiny," a 1952 account of the history of American reform from the post-Civil War period through 1950 by Eric F. Goldman.

Well, I've never heard of the book (due in part to deficiencies in my own education I'm sure), but in its day it was extremely well-regarded, winning the Bancroft Prize for distinguished American History in 1952, with blurbs from, among others, Arthur Schlesinger, Jr.

Goldman talks about the history of reform - first, the "liberals" like Democrats Samuel Tilden (the Democratic loser in the 1876 presidential election to Republican Rutherford Hayes - interesting because it was such a close race that it was thrown into the House of Representatives, with Democrats (mostly feom the South) agreeing to support the Republicans' (mostly from the North) candidate in return for the Republicans agreeing to end the post-Civil War Reconstruction and remove federal troops from the South) against the common-man (and all-too-corrupt) Ulysses S. Grant regime; to the increasing dissatisfactions among the masses about the industrialization of the 1880s leading to ever-greater disparities in wealth, epitomized by disgust - leading eventually to the reform-minded Populist movement of the 1890s - with leaders like President Grover Cleveland, who vetoed an appropriation by Congress of $10,000 to aid drought sufferers in buying new grain seed, declaring that "though the people support the Government the Government should not support the people."

Say what? The government doesn't support the people; rather the people support the government? What a crock of s***. As Goldman says, "[Cleveland's statement] was a perfect statement of liberal doctrine, and a perfect illustration why liberalism seemed irrelevant or downright evil to thousands who were quite sure that, even if the government should not help support them, it should certainly help them support themselves."

Anyway, great stuff ... and all in a book published 55 years ago that is no longer on the tip of peoples' tongues, but still contains nuggets and gems on every page.