Turning the Titanic - Kudos to George Bush on Interim Loan to Automakers

Kudos to George W. Bush for offering an interim loan to American automakers.

While there is plenty of reason to be angry with the short-sightedness of the Big Three, and there is a real temptation to let them fail for their poor management, there is just too much at stake - especially in this reeling economy - to allow them to do so. Bush is correct in stating that "[a]llowing the auto companies to collapse is not a responsible course of action"; that bankruptcy would deal "an unacceptably painful blow to hardworking Americans."

The $17.4 million of loans to GM and Chrysler (Ford doesn't need them at this time) appropriately comes with strings attached - the companies must come up with viable restructuring plans by March 31 or the loans will be called. "The time to make hard decisions to become viable is now, or the only option will be bankruptcy," Bush said. "The automakers and unions must understand what is at stake and make hard decisions necessary to reform."

We'll see - is Detroit capable of turning the Titanic?

George Bush Shoe Incident

Just when you think you've seen it all, the President is victimized in a vicious shoe attack .

Slate suggests in "When the Shoe Fits" that this may be the best thing to happen to George Bush in quite some time. People will "marvel at the president's quick reflexes and calm," John Dickerson writes. "Bush brushed off the incident, joking that he saw into his attacker's 'sole,' a reference to his famous misreading of Vladimir Putin. It's the kind of incident where Bush's no-big-deal attitude, so maddening in other contexts, serves him well. 'It was just a bizarre moment,' Bush told journalists later on Air Force One. 'But I've had other bizarre moments in the presidency.'"

In any event, you have to give the man credit for his slick dodge.

More Dharma

High personal standards can be a double-edged sword -a few dharma thoughts:

"It is essential that our [standards] be translated into practice, not with an idealistic vision that we suddenly will become totally loving and compassionate, but with a willingness to be just who we are and to start from there. Then our practice is grounded in the reality of our experience, rather than based on some expectation of how we should be.

"But we must begin. We work with the precepts as guidelines for harmonizing our actions with the world; we live with contentment and simplicity that does not exploit other people or the planet; we work with restraint in the mind, seeing that it's possible to say no to certain conditioned impulses, or to expand when we feel bound by inhibitions and fear; we reflect on karma and the direction of our lives, where it is leading and what is being developed; we cultivate generosity and love, compassion and service.

All of this together becomes our path of practice."

-- From Joseph Goldstein, Seeking the Heart of Wisdom

Conserving Resources as Progressive Governance

It says something about the state of American politics when taking care of what we have - supposedly a "conservative" concept - is actually a progressive idea. But that's exactly the case in 2008, after 40 years of government - Republican and Democratic alike - rushing headlong into feeding the military-industrial complex while at the same time neglecting our aging infrastructure.


In his column in today's Times, Bob Herbert discusses America's failure to keep up with maintaining its infrastructure:

"The idea that the nation had all but stopped investing in its infrastructure, and that officials in Washington have ignored the crucial role of job creation as the cornerstone of a thriving economy is beyond mind-boggling. It’s impossible to understand.

"Impossible, that is, until you realize that bandits don’t waste time repairing a building that they’re looting.
...
"One of the reasons the U.S. is in such deep trouble is that it has stopped being smart — turning its back on excellence, sophistication and long-term planning — in its public policies and corporate behavior. We’ve seen it in Iraq, in New Orleans, in the fiscal policies of the Bush administration, in the scandalous neglect of public education, in the financial sector meltdown, the auto industry and on and on. We’ve lionized dimwits. And now we’re paying the price.
...

"The U.S. is moving from a period in which leaders spent money on wars and on lavish tax cuts for the rich, but not on investments in the nation’s future. That era of breathtaking irresponsibility must come to an end. Which means that now, with so much federal money soon to be available for infrastructure projects, it’s crucially important to spend the money as wisely as possible."

As Senator Christopher Dodd says, "Our major economic competitors in the 21st century are spending seven, eight, nine percent of their gross domestic product on infrastructure. We’re spending almost nothing at all.”

Felix Rohatyn and Everett Ehrlich comment, “Ultimately, we face a future of mass transit strained beyond capacity, planes sitting on tarmacs, slow traffic and wasteful sprawl, ports that lack the capacity to operate efficiently, and increasing numbers of bridges and dams that are obsolescent and dangerous to the public’s health and safety.”

So what to do? "The question now," Herbert suggests, is whether the nation, in the midst of a full-blown economic emergency, can keep its cool and be smart as it marshals billions of public dollars for a new infrastructure initiative. It won’t be helpful to have sparkling new bridges to nowhere being built from coast to coast."

Thankfully, we've elected a smart, thoughtful person to be our next president - if anyone can lead America out of the this mess, perhaps it can be Barack Obama. As he announced in a radio address last Saturday, “[My plan] will be a two-year, nationwide effort to jump-start job creation in America and lay the foundation for a strong and growing economy.

“We’ll put people back to work rebuilding our crumbling roads and bridges, modernizing schools that are failing our children and building wind farms and solar panels, fuel-efficient cars and the alternative energy technologies that can free us from our dependence on foreign oil and keep our economy competitive in the years ahead.”

As Herbert notes, "The message is many years overdue. The hope is that it hasn’t come too late."

Dharma - Nonviolence in Every Action

We all find our own ways of navigating day to day. I find some aspects of Buddhist practice helpful, so I humbly share an occasional dharma thought:

"Nonviolence belongs to a continuum from the personal to the global, and from the global to the personal.... [Applying] this ideal to daily life, nonviolence is not some exalted regimen that can be practiced only by a monk or a master; it also pertains to the way one interacts with a child, vacuums a carpet, or waits in line.

"Besides the more obvious forms of violence, whenever we separate ourselves from a given situation (for example, through inattentiveness, negative judgments, or impatience), we 'kill' something valuable. However subtle it may be, such violence actually leaves victims in its wake: people, things, one's own composure, the moment itself.

"According to the Buddhist reckoning, these small-scale incidences of violence accumulate relentlessly, are multiplied on a social level, and become a source of the large-scale violence that can sweep down upon us so suddenly. . . . One need not wait until war is declared and bullets are flying to work for peace. A more constant and equally urgent battle must be waged each day against the forces of one's own anger, carelessness, and self-absorption."

-from Keneth Kraft, Inner Peace, World Peace (Nonviolence)

Taking Private Morality Out of Government - Cal Thomas

Here's a first (and probably last): a column from the ultra-conservative syndicated columnist Cal Thomas that has something useful to say to the progressive libertarian.

In his column today, "Evangelicals, Stop Worship of the State," Thomas urges evangelicals not to use government to try to impose their beliefs and morals on others. Rather, he says, "If results are what conservative evangelicals want, they already have a model. It is contained in the life and commands of Jesus. Suppose they followed the admonition of Jesus to 'love your enemies, pray for those who persecute you, feed the hungry, clothe the naked, visit those in prison and care for widows and orphans,' not as ends, ... but as a means of demonstrating God's love for the whole person in order that people might seek Him?"

Let's be clear - one should not think for a moment that Thomas has suddenly gained new insights into the freedom-mandating nature of the American Constitution. There's little doubt Thomas would probably approve of government-imposed morality IF government were effective in changing people's beliefs. Since government is not effective, however, he suggests leading by example, rather than coercion.

As for what has been effective and ineffective for evangelicals over time, Thomas points out that "Social movements that relied mainly on political power to enforce a conservative moral code weren't anywhere near as successful as those that focused on changing hearts. The four religious revivals, from the First Great Awakening in the 1730s and 1740s to the Fourth Great Awakening in the late 1960s and early '70s ... are testimony to that."

The point is, people and groups have a right to proselytize as they will, and others have a right to ignore them or listen; but it's never okay for government to get into the act.

Stated another way, with respect to the requirements of the U.S. Constitution, Thomas is exactly right in his conclusion (regardless of how he comes to it) that evangelicals should look to methods outside of government. The very basis for the founding of the United States was to take away from government the power to try to impose morality on the people. The Declaration of Independence claims freedom for the people; and the Constitution provides the guarantee.

Thomas concludes, "Evangelicals are at a junction. They can take the path that will lead them to more futility and ineffective attempts to reform culture through government, or they can embrace the far more powerful methods outlined by the One they claim to follow." The Constitution mandates the latter.

Obama Election - A Rare Moment

Even in the midst of some of the predictable silliness following Barack Obama's election (such as the young woman proclaiming "Obama is Jesus" overheard by my son during a college street celebration), there's something pure about what happened on Nov. 4, 2008 where even the cynic can get a bit misty.

We're not talking if's and when's or "I have a dream" here, but rather that it DID actually happen that a black man was elected president of the country whose Constitution formally endorsed slavery and perpetuated separate-but-equal for nearly another hundred years after slavery was formally abolished. That our constitutional system can allow that to happen (not to mention repudiate the practices of the worst one or two presidencies in our history) is awesome. As Thomas Friedman said in noting that Virginia, the former capitol of the slave-holding South, went for Obama, "The Civil War is over. Let Reconstruction begin."

Even for the cynic the world changed Tuesday - as a white man, I can only imagine what it feels like to be a black person today. I canvassed for Obama on election day in Lansing with a young black woman from Detroit, and her excitement and pride was something to see; and then the day after I was in a meeting with a black colleague (who was also canvassing on election day), and he was just bursting. He said his frail 87 year old mother in Chicago is insisting that he take her to the inauguration in DC on Jan.20.

For those of us who've been eaten up by government malfeasance/tyranny, this, what feels like vindication of sorts, is worth a tear or two. Probably because things have been so bad under Bush (the presidential elections of 2000 and 2004, with all the ill that they portended for American government, hit me hard), I didn't know if America had it in it to make such a statement - and it turns out it does. Amazing Grace.

True, there's bound to be disappointment - what comes next is going to be interesting, and there is sure to be plenty of criticism and disillusionment. But there's a difference between disillusionment borne of bad faith (see Bush/Rove/Cheney), and disappointment for good faith efforts that may nonetheless sometimes fall short (Obama, I think). Even if what comes next is just politics as usual (which I doubt), Tuesday alone will always stand as a momentous day for the sheer outpouring of hope and joy that millions (maybe billions) of people around the world experienced. Nothing can ever change that - not even over-the-top people who've drunk the Kool-aid like the "Obama is Jesus" person.

Obama's Victory - What it Means

Reflections the morning after Barack Obama's historic victory - in what amounts to nothing less than a national catharsis.

What's most moving to me is to think of what this means to all of those within and outside of the United States who have long felt disenfranchised or oppressed by government tyranny. The United States was founded 232 years ago and the Constitution framed 219 years ago as a slave-holding country - and now a son of the formerly-enslaved peoples will be president of the United States. Amazing, ... and incredible. It redeems one's hope that America is not destined to go the way charted for it by George W. Bush and Richard Cheney for the past eight years, where torture is authorized and individual liberty stolen by overzealous government.

And what about overseas? It's deeply moving to see the images of celebration around the world in response to Obama's victory. America has long been a beacon of hope for people around the world, and its image has been severely tarnished in recent years. But the fact that the American people can elect an African American, a son of a Muslim, goes a long way to beginning to restore a bit of America's luster. It is possible for reason, and tolerance, to prevail; instead of arbitrary, meaningless judgments based on skin color, religion or the like.

The New York Times reports from Gaza this morning, in "For Many Abroad, An Ideal Renewed":

"From far away, this is how it looks: There is a country out there where tens of millions of white Christians, voting freely, select as their leader a black man of modest origin, the son of a Muslim. There is a place on Earth — call it America — where such a thing happens.

"Even where the United States is held in special contempt, like here in this benighted Palestinian coastal strip, the “glorious epic of Barack Obama,” as the leftist French editor Jean Daniel calls it, makes America — the idea as much as the actual place — stand again, perhaps only fleetingly, for limitless possibility.

“It allows us all to dream a little,” said Oswaldo Calvo, 58, a Venezuelan political activist in Caracas, in a comment echoed to correspondents of The New York Times on four continents in the days leading up to the election.

"Tristram Hunt, a British historian, put it this way: Mr. Obama “brings the narrative that everyone wants to return to — that America is the land of extraordinary opportunity and possibility, where miracles happen.”

"But wonder is almost overwhelmed by relief. Mr. Obama’s election offers most non-Americans a sense that the imperial power capable of doing such good and such harm — a country that, they complain, preached justice but tortured its captives, launched a disastrous war in Iraq, turned its back on the environment and greedily dragged the world into economic chaos — saw the errors of its ways over the past eight years and shifted course.

"They say the country that weakened democratic forces abroad through a tireless but often ineffective campaign for democracy — dismissing results it found unsavory, cutting deals with dictators it needed as allies in its other battles — was now shining a transformative beacon with its own democratic exercise.

"It would be hard to overstate how fervently vast stretches of the globe wanted the election to turn out as it did to repudiate the Bush administration and its policies. Poll after poll in country after country showed only a few — Israel, Georgia, the Philippines — favoring a victory for Senator John McCain.

"“Since Bush came to power it’s all bam, bam, bam on the Arabs,” asserted Fathi Abdel Hamid, 40, as he sat in a Cairo coffee house.

"The world’s view of an Obama presidency presents a paradox. His election embodies what many consider unique about the United States — yet America’s sense of its own specialness, of its destiny and mission, has driven it astray, they say. They want Mr. Obama, the beneficiary and exemplar of American exceptionalism, to act like everyone else, only better, to shift American policy and somehow to project both humility and leadership.
...
"Such contradictory demands and expectations may reflect, in part, the unusual makeup of a man of mixed race and origin whose life and upbringing have touched several continents.

"“People feel he is a part of them because he has this multiracial, multiethnic and multinational dimension,” said Philippe Sands, a British international lawyer and author who travels frequently, adding that people find some thread of their own hopes and ideals in Mr. Obama. “He represents, for people in so many different communities and cultures, a personal connection. There is an immigrant component and a minority component.”

"Francis Nyamnjoh, a Cameroonian novelist and social scientist, said he saw Mr. Obama less as a black man than “as a successful negotiator of identity margins.”

"His ability to inhabit so many categories mirrors the African experience. Mr. Nyamnjoh said that for America to choose as its citizen in chief such a skillful straddler of global identities could not help but transform the nation’s image, making it once again the screen upon which the hopes and ambitions of the world are projected.

"Shi Yinhong, a professor of international relations at the People’s University of China, said Mr. Obama’s background, particularly his upbringing in Indonesia, made him suited to understanding the problems facing the world’s poorer nations.

"He and others say they hope the next American president will see their place more firmly within the community of nations, engaging in what Jairam Ramesh, junior commerce minister in the Indian government, called “genuine multilateralism and not in muscular unilateralism.”
Assuming Mr. Obama does play by international rules more fully, as he has promised, can his government live up to all the expectations?

"“We have so many hopes and wishes that he will never be able to fulfill them,” said Susanne Grieshaber, 40, an art adviser in Berlin who was one of 200,000 Germans to attend a speech by Mr. Obama there in July. She cited action to protect the environment, reducing the use of force and helping the less fortunate. In essence, she wants Mr. Obama to make his country more like hers. But she is sober. “I’m preparing myself for the fact that peace and happiness are not going to suddenly break out,” she said.
...
"“Definitely, this will improve America’s image in Russia,” said Sergey M. Rogov, director of the Institute for U.S.A. and Canada Studies in Moscow. “There was this perception before of widespread racism in America, deeply rooted racism.”
...
"So foreigners are watching closely, hoping that despite what they consider the hypocrisies and inconsistencies, the nation they once imagined would stand as a model for the future will, with greater sensitivity and less force, help solve the world’s problems."

It is indeed a new, more hopeful, day in America - and in the world - today.

Bush Worst President - 79 Days Left

Nicholas Kristof reports in today's New York Times that "[a]n unscientific poll of 109 professional historians this year found that 61 percent rated President Bush as the worst president in American history. A couple of others judged him second-worst, after James Buchanan, whose incompetence set the stage for the Civil War. More than 98 percent of the historians in the poll, conducted through the History News Network, viewed Mr. Bush’s presidency as a failure."

Only 79 days left in the Bush/Cheney American nightmare. Either one of the presidential candidates will be a vast improvement (as would one of the vice-presidential candidates, Joe Biden; whereas Sarah Palin is not up to the task); but what specifically will the new president do to start to restore America to its past honor and greatness? Kristof suggests America must rejoin the world:

"[Bush] turned a superpower into a rogue country. Instead of isolating North Korea and Iran, he isolated us — and undermined his own ability to achieve his aims.

"So here’s the top priority for President Barack Obama or President John McCain: We must rejoin the world. There are three general ways in which we can signal a new beginning and “refriend” our allies:

"• We should not only close the Guantánamo prison but also turn it into an international center for research on tropical diseases that afflict poor countries. It could thus become an example of multilateral humanitarianism.

"The new president should also start a Truth Commission to investigate torture and other abuses during the “war on terror.” This should not be a bipartisan panel but a nonpartisan one, dominated by retired generals and intelligence figures like Brent Scowcroft or Colin Powell.
Such a panel would be respected as fair and authoritative in a way that one composed of bickering Democrats and Republicans would not, and it would underscore that we are eager to return to the norms of the civilized world.

"• The new president also should signal that we will no longer confront problems just by blowing them up. The military toolbox is essential, but it shouldn’t be the first option for 21st-century challenges. You can’t bomb climate change.
...
A new approach means a vigorous effort for peace in the Middle East. We also need to commit to negotiating with odious countries. President Clinton’s engagement policy toward North Korea was a constant headache, for Kim Jong Il was brutally repressive and tried to start a secret uranium program. But North Korea didn’t produce nuclear materials for a single weapon during Mr. Clinton’s years in office; under Mr. Bush, it has produced enough for a half dozen.
So here’s the score: Clinton diplomacy, 0 weapons; Bush fulmination, 6 weapons.

"• We must cooperate with other countries on humanitarian efforts, including family planning. One of the Bush follies that has bewildered and antagonized our allies has been the vacuous refusal to support family planning through the United Nations Population Fund.
The upshot of the failure to support contraception has been millions of unwanted pregnancies and abortions. It’s difficult to think of any person alive today whose policies have led to more unnecessary abortions worldwide than Mr. Bush.
...
"Look, a friendlier, more multilateral policy will not solve the world’s problems. Iran isn’t going to give up its nuclear program because it likes us, and brawn is necessary to back up brains.
But without global political capital, we don’t have the leverage to organize more muscular persuasion. Without diplomatic heavy lifting, we can’t credibly threaten military heavy smashing.

"In the aftermath of World War II, the United States led the international effort to construct global institutions to promote peace and prosperity. These included the United Nations, the World Bank and the International Monetary Fund, and they served our interests. Now, in the aftermath of the cold war, we need to rethink and refurbish this architecture for the next half century or more.

"The United States needs to be a part of the International Criminal Court and should lead the push for a new climate change treaty, for example. The new president should be an architect of this emerging order, rather than AWOL as the Bush administration has been.

"For eight years, the United States has been in self-imposed exile, and that is one reason Mr. Bush’s presidency has failed on so many levels. After Tuesday, let’s rejoin the world."

Sarah Palin's Ridiculous Debate

As noted in my previous post, expectations were so low for Sarah Palin going into last Thursday's debate with Joe Biden that merely managing not to fall off the stage would be considered a success.

And by those standards she did acquit herself well enough - she stayed on her feet and was able to string a few sentences together here and there with lots of winks, you betchas and darn rights. (I confess it was a relief not to see her implode on live television before 50 or 60 million people - thanks to the kid glove treatment by moderator Gwen Ifill, who apparently was sufficiently cowed by the conservative right's claims of her Obama bias not to follow up on any of Palin's non-answers to her questions.)

Palin's performance did demonstrate that she is qualified.... for senior class president. The vacuous non-answers, winks, smiles, and colloquialisms are all fine for someone trying to win a popularity (or beauty) contest, but not for someone running for the second highest office in land. We now have first-hand experience with what happens when we elect someone on the basis of aw-shucks likeability - and George W. Bush has done more to weaken the United States in his eight years than any president in history. We cannot afford any more ignorance in the president's office - and I'm sorry folks, Sarah Palin may be a nice lady and good in beauty contests, but she is not presidential timber.

The following letter to the editor in yesterday's New York Times rings true:

"As someone who teaches history," writes from Barbara Weinstein of New York, "I often give essay exams, and inevitably there are students who arrive ill prepared to take the exam. These students typically adopt one of two strategies: they either construct an essay that is a torrent of words, hoping that by filling up the space I will not notice that they don't know anything (Sarah Palin's performance in the Katie Couric interviews); or they ignore the question I've asked, and answer something else they do know a little about (Ms. Palin's performance in the vice-presidential debates).

"Both strategies earn an F, since neither indicates that they can tackle a crucial issue in the course."

As a teacher myself who grades hundreds of law school essay exams a year, I can vouch for Ms. Weinstein's observation on the tactics adopted by a student who may be clueless on a particular question, and concur with the ultimate failing grade either way. As she says, by "adopt[ing] what amounts to Strategy No. 2 in the debate, and therefore avoid[ing] seeming as clueless as she did in the Couric interviews," Palin reassured the Republican base that the beauty queen can still deliver scripted comments, but "it was no more helpful in establishing her ability to be an effective vice president than Strategy No. 1."

Bailout; Erratic McCain; Presidential Debate; Sarah Palin Qualifications

What a few weeks. We got a chance to see John McCain at his erratic best, bouncing between saying the fundamentals of the economy are sound then turning around to his panicky reactionism, claiming he's not attending the debate (then he is, then he's not, then he is), saying he needs to rush to Washington to help negotiate the bailout, then blowing up the agreement that was well on its way to being sealed, etc., etc.

In spite of all of that, McCain is alright. He's had major experience in the Senate and has been on the right side of a number of issues during the Bush years (even though he voted with Bush 90% of the time): he worked for campaign finance reform; he spoke out against Alberto Gonzales's ghastly Department of Justice tenure; and most importantly, he spoke out very forcefully against Bush and Cheney on the torture issue - and with his experience as a tortured POW himself, he has massive credibility.

BUT - even if Obama and McCain were dead even, or even if McCain had the slight edge, two factors overwhelmingly favor Obama: (1) for the sake of the individual liberty of ALL Americans, we CAN'T AFFORD any more of the sort of socially conservative Supreme Court justices Bush appointed, and that McCain would try to appoint; and (2) Sarah Palin is simply unqualified to be president.

On the first, Bush appointed two Justices - John Roberts and Joseph Alito - who come from the "command and control" side of the Republican Party. Adding to them the two such Justices already on the Court, Antonin Scalia and Clarence Thomas, and we have close to a majority on the Court who unquestionably favor government power over protection of individual liberty. Individual liberty hangs by a thread - Anthony Kennedy, the fifth conservative on the Court, comes from the libertarian side of the Republican Party and he's the one who's been making the difference in a number of the 5-4 decisions protecting the individual. On the other side, Justice Stevens is in his 80s, and Ruth Bader Ginsburg has had health issues - and G-d forbid if anything happened to either of them or David Souter or Stephen Breyer, the President would have the chance to seriously change the tone of the Supreme Court. We simply can't afford that.

Second, Sarah Palin. Can we now agree that she's unqualified? Take a look at the Katie Couric interview from a few days back. It's embarrassing - and scary. Bob Herbert of the New York Times said it this morning, for the first time I've heard from anyone - for the good of the nation, John McCain should recognize her serious deficiencies and appoint someone else. Sarah Palin is not qualified to lead the country. If John McCain is the "maverick" he keeps claiming to be, he'll set aside personal ambition for clear-eyed reason. Will he do the right thing and nominate someone else? Don't hold your breath.

Progressive Liberty - David Brooks's "The Social Animal"

David Brooks's column in the New York Times today elaborates nicely on what I've spoken about here previously under the banner of "progressive liberty"; and offers, moreover, a cogent description of how current Republican Party ideology fails these principles.

In "A Social Animal," Brooks comments that at one point conservatives understood that "people are socially embedded creatures and that government has a role (though not a dominant one) in nurturing the institutions in which they are embedded. "

But that's been lost, Brooks suggests. "Recent Republican Party doctrine has emphasized the power of the individual, but underestimates the importance of connections, relationships, institutions and social filaments that organize personal choices and make individuals what they are.

"This may seem like an airy-fairy thing. But it is the main impediment to Republican modernization. Over the past few weeks, Republicans have talked a lot about change, modernization and reform. Despite the talk, many of the old policy pillars are the same. We’re living in an age of fast-changing economic, information and social networks, but Republicans are still impeded by Goldwater’s mental guard-rails.

"If there’s a thread running through the gravest current concerns, it is that people lack a secure environment in which they can lead their lives. Wild swings in global capital and energy markets buffet family budgets. Nobody is sure the health care system will be there when they need it. National productivity gains don’t seem to alleviate economic anxiety. Inequality strains national cohesion. In many communities, social norms do not encourage academic achievement, decent values or family stability. These problems straining the social fabric aren’t directly addressed by maximizing individual freedom.

"And yet locked in the old framework, the Republican Party’s knee-jerk response to many problems is: “Throw a voucher at it.” Schools are bad. Throw a voucher. Health care system’s a mess. Replace it with federally funded individual choice. Economic anxiety? Lower some tax rate.

"The latest example of the mismatch between ideology and reality is the housing crisis. The party’s individualist model cannot explain the social contagion that caused hundreds of thousands of individuals to make bad decisions in the same direction at the same time. A Republican administration intervened gigantically in the market to handle the Bear Stearns, Freddie and Fannie debacles. But it has no conservative rationale to explain its action, no language about the importance of social equilibrium it might use to justify itself.
...

"That language of community, institutions and social fabric has been lost, and now we hear only distant echoes — when social conservatives talk about family bonds or when John McCain talks at a forum about national service.

"If Republicans are going to fully modernize, they’re probably going to have to follow the route the British Conservatives have already trod and project a conservatism that emphasizes society as well as individuals, security as well as freedom, a social revival and not just an economic one and the community as opposed to the state."

Progressive Liberty stands for the proposition that government must keep its hands off matters implicating of individual freedom; yet recognizes the importance of government in furthering human dignity and community.

Back to the Future Without Liberals & Progressives - A Cruel World

Some conservatives love to berate big government and argue simplistically that government should, without exception, always be "less involved." As discussed here previously, they get it only half-right: the Constitution mandates that government be less involved (ie, it must be tolerant) when it comes to respecting individual liberty; but, a humane government truly interested in providing for the health, safety and welfare of citizens should be involved in promoting programs to that end.

On the latter point, here's a keeper article: Bob Herbert's NYTimes column the other day entitled "Hold Your Heads Up," pointing out the advances made that would never have been possible without the efforts of LIBERAL governmental action. He encourages liberals to be proud of their accomplishments, and not to be cowed by the ridicule of conservatives who damn efforts to create a more humane society of equal opportunity even as they themselves avail themselves of the liberal society's many benefits.

"Why liberals don’t stand up to this garbage, I don’t know," Herbert says. "Without the extraordinary contribution of liberals — from the mightiest presidents to the most unheralded protesters and organizers — the United States would be a much, much worse place than it is today."

"There would be absolutely no chance that a Barack Obama or Hillary Clinton or Sarah Palin could make a credible run for the highest offices in the land. Conservatives would never have allowed it.

"Civil rights? Women’s rights? Liberals went to the mat for them time and again against ugly, vicious and sometimes murderous opposition. They should be forever proud.

"The liberals who didn’t have a clue gave us Social Security and unemployment insurance, both of which were contained in the original Social Security Act. Most conservatives despised the very idea of this assistance to struggling Americans. Republicans hated Social Security, but most were afraid to give full throat to their opposition in public at the height of the Depression.
...

"Liberals who didn’t have a clue gave us Medicare and Medicaid. Quick, how many of you (or your loved ones) are benefiting mightily from these programs, even as we speak. The idea that Republicans are proud of Ronald Reagan, who saw Medicare as “the advance wave of socialism,” while Democrats are ashamed of Lyndon Johnson, whose legislative genius made this wonderful, life-saving concept real, is insane."

By contrast, what would America look like today without such accomplishments of Liberal/Progressive government?

Herbert continues, "Without the many great and noble deeds of liberals over the past six or seven decades, America would hardly be recognizable to today’s young people. Liberals (including liberal Republicans, who have since been mostly drummed out of the party) ended legalized racial segregation and gender discrimination.

"Humiliation imposed by custom and enforced by government had been the order of the day for blacks and women before men and women of good will and liberal persuasion stepped up their long (and not yet ended) campaign to change things. Liberals gave this country Head Start and legal services and the food stamp program. They fought for cleaner air (there was a time when you could barely see Los Angeles) and cleaner water (there were rivers in America that actually caught fire).

"Liberals. Your food is safer because of them, and so are your children’s clothing and toys. Your workplace is safer. Your ability (or that of your children or grandchildren) to go to college is manifestly easier.

"It would take volumes to adequately cover the enhancements to the quality of American lives and the greatness of American society that have been wrought by people whose politics were unabashedly liberal. It is a track record that deserves to be celebrated, not ridiculed or scorned."

This all is reminiscent of the old Michael J. Fox movie, "Back to the Future," where Marty McFly is able to visit the future in his souped-up DeLorean and sees how things would be if a certain key event hadn't occurred at a certain earlier point in time (if his mom and dad hadn't met, I think) - and what he sees is a future of crass selfishness and lack of grace.

But for liberals and progressives in our past, America would be much less attractive and humane place today.

Does Sarah Palin Know Wasilla From a Hole in the Ground?

Now that the dust is settling a bit after the conventions, and the initial hysteria over John McCain's pick for VP is past, one big question is whether Sarah Palin is qualified to be president. McCain is 74, after all, with a history of skin cancer. These are legitimate questions - even if McCainiacs would like to keep her sheltered away and claim unfairness whenever anyone raises issues about her readiness.

Does Sarah Palin know Wasilla from a hole in the ground? Sure she knows local politics and all about how to throw her weight around trying to ban books and fire public servants who happen to be getting divorced from her family members, but does she know anything at all about governing and foreign affairs? Would we trust that she would be capable of acting on our behalf in a dangerous world? Three of the four on the major tickets would fare just fine if placed to probing questioning and snap decisionmaking in world affairs, given the experience of each in high-profile politics. John McCain, Barack Obama and Joe Biden have all been subjected to the crucible of intense public scrutiny as members of the U.S. Senate, and they've proven they are up to the task.

Moreover, as Professor Bobby Lipkin of Widener Law School said, "It's not just foreign policy experience, but foreign policy savvy or thoughtfulness.... Obama has written (and spoken) [extensively] about foreign policy and domestic policy. (The relevant works are his Audacity of Hope and many, many of his speeches.) Does Palin have a similar corpus? If so, I'd love to know where I can find it."

We know next to nothing about Sarah Palin, but what we do know - e.g., pressuring librarians to ban books, trying to have public officials fired who are involved in messy divorces with family members, questionable financial dealings, no abortion even in cases of incest & rape, etc. - ain't good.

Or, as my friend Northwestern University Professor Alice Dreger puts it in her own inimitable way, "Do I wish we had a woman as VP or, better yet, P? Sure! But having a woman doesn’t mean having a feminist, and what I’d much rather have is a feminist, even if he has a penis. Let me just say what we’re all thinking: Palin was obviously chosen for her vagina, not for her brain. That’s just stupid sexism, and no woman should be fooled by it."

What is Government's Role? Progressive Liberty and Barack Obama

Much of my professional work in teaching and writing about Constitutional Law and Constitutional Theory focuses on what is government's role in America. Indeed, as I've discussed here before, the title of this blog, Progressive Liberty, relates to this issue.

First, "Liberty": America was founded, first and foremost, to preserve individual freedom from oppressive government - government must tolerate any personal idea, action or attribute that does no harm to another. America's founding documents - the Declaration of Independence and the Constitution - make this point clear: government must leave us alone. And when it does not, the judicial branch is there to correct the situation and preserve our freedom from overreaching government.

Second, "Progressive": This part IS negotiable - in a democratic republic, it is the will of the people what sort of society they will have. So long as the government is not infringing on individual freedom, it can set widely varying policy - anything from a minimalist caretaker state to a more progressive social welfare model of the sort seen in Western Europe (or indeed, something more different still than either of these). I happen to favor the latter - hence, the word "progressive." I believe it's the government's duty to enact humane policy that looks out for people who can't help themselves, and that provides equal opportunity to all - and I'll do what I can to try to influence the political process so that enough like-minded people will vote for representatives who will enact such policies. But if I'm unsuccessful, and we instead get politicians like George W. Bush and Dick Cheney - well, our democracy has only ourselves to blame.

In his acceptance speech earlier tonight at the Democratic Convention, Barack Obama hit the nail on the head for what it is I'm talking about with "progressive liberty." He said:

"Ours is a promise that says government cannot solve all our problems. But what it should do, is that which we cannot do for ourselves: protect us from harm; and provide every child with a decent education. Keep our water clean and our toys safe. Invest in new schools, and in roads, and in science, and technology.

"Our government should work for us, not against us. It should help us, not hurt us. It should ensure opportunity, not just for those with the most money and influence, but for every American who is willing to work. That's the promise of America. That we are responsible for ourselves, but that we also rise or fall as one nation. The fundamental belief that I am my brother's keeper. I am my sister's keeper.

"That's the promise we need to keep. That's the change we need right now."

This is the president America needs.

Evolution & Republicans' Assault on Reason

A long time ago in a career far far away, I taught high school science - which leads me to especially appreciate a column in today's New York Times by Olivia Judson entitled "Optimism in Evolution."

There's a true wonder to science -to trying to understand and to reason why things work, grow or develop the way they do. As Judson says, "the most important thing about studying evolution is something less tangible. It’s that the endeavor contains a profound optimism. It means that when we encounter something in nature that is complicated or mysterious, such as the flagellum of a bacteria or the light made by a firefly, we don’t have to shrug our shoulders in bewilderment.

"Instead, we can ask how it got to be that way. And if at first it seems so complicated that the evolutionary steps are hard to work out, we have an invitation to imagine, to play, to experiment and explore. To my mind, this only enhances the wonder."

Nicely stated. Not all are so curious, though, as Judson also points out in explaining another more philosophical reason for teaching evolution: "It concerns the development of an attitude toward evidence. In his book, 'The Republican War on Science,' the journalist Chris Mooney argues persuasively that a contempt for scientific evidence — or indeed, evidence of any kind — has permeated the Bush administration’s policies, from climate change to sex education, from drilling for oil to the war in Iraq. A dismissal of evolution is an integral part of this general attitude.

"Moreover, since the science classroom is where a contempt for evidence is often first encountered, it is also arguably where it first begins to be cultivated. A society where ideology is a substitute for evidence can go badly awry. (This is not to suggest that science is never distorted by the ideological left; it sometimes is, and the results are no better.)"

Dismissal of reason among groups of Americans is nothing new - back in the mid-1800s, for example, there was a nativist political group that gained traction for several years known as the "Know Nothings," whose philosophy is remembered by Paul Krugman as "the insistence that there are simple, brute-force, instant-gratification answers to every problem, and that there’s something effeminate and weak about anyone who suggests otherwise, ... [and whose slogan might have been]: "Real men don’t think things through." By and large, to America's great credit, in that case and throughout American history, the Enlightenment principles of reason and science have eventually prevailed against such movements.

The current Republican anti-intellectualist War on Science is no different - it must be fought and repelled by Reason.

American Energy Shortsightedness

Lest there were any doubt about the shortsightedness of America's "energy policy" over the past 35 years since the original Arab oil embargo, see Thomas Friedman's NY Times column yesterday, "Flush with Energy":

"Ditlev Engel, the president of Vestas — Denmark’s and the world’s biggest wind turbine company told me that he simply can’t understand how the U.S. Congress could have just failed to extend the production tax credits for wind development in America....

"'We’ve had 35 new competitors coming out of China in the last 18 months,' said Engel, 'and not one out of the U.S.'”

Say what? Thirty-five out of China and NONE out of the U.S.?! How can this be? Obviously it's not that Americans are unentrepreneurial or lack the technological know-how, so the reason must rest on misguided government policy.

What a pathetic set of policymakers we have in Congress and the White House who cannot see their way past their inane myopic partisan squabbles - even now, with $4.00/gallon gas and the knowledge that America accounts for 20% of the world's demand for oil while possessing just (something like) 5% of the world's oil reserves - to enact progressive legislation to put the country on an energy independent course. In contrast to American policymakers' ineptness, look at what Denmark has done in the past 35 years:

"Danes imposed on themselves a set of gasoline taxes, CO2 taxes and building-and-appliance efficiency standards that allowed them to grow their economy — while barely growing their energy consumption — and gave birth to a Danish clean-power industry that is one of the most competitive in the world today. Denmark today gets nearly 20 percent of its electricity from wind. America? About 1 percent.

"And did Danes suffer from their government shaping the market with energy taxes to stimulate innovations in clean power? In one word, said Connie Hedegaard, Denmark’s minister of climate and energy: 'No.' It just forced them to innovate more — like the way Danes recycle waste heat from their coal-fired power plants and use it for home heating and hot water, or the way they incinerate their trash in central stations to provide home heating. (There are virtually no landfills here.)

"There is little whining here about Denmark having $10-a-gallon gasoline because of high energy taxes. The shaping of the market with high energy standards and taxes on fossil fuels by the Danish government has actually had 'a positive impact on job creation,' added Hedegaard. 'For example, the wind industry — it was nothing in the 1970s. Today, one-third of all terrestrial wind turbines in the world come from Denmark.' ...

"In 1973, said Hedegaard, 'we got 99 percent of our energy from the Middle East. Today it is zero.'

"Frankly, when you compare how America has responded to the 1973 oil shock and how Denmark has responded, we look pathetic.

“'I have observed that in all other countries, including in America, people are complaining about how prices of [gasoline] are going up,' Denmark’s prime minister, Anders Fogh Rasmussen, told me. 'The cure is not to reduce the price, but, on the contrary, to raise it even higher to break our addiction to oil. We are going to introduce a new tax reform in the direction of even higher taxation on energy and the revenue generated on that will be used to cut taxes on personal income — so we will improve incentives to work and improve incentives to save energy and develop renewable energy.'"

In a democratic Republic, it is up to the people to enact policy through their representatives - which means, in the end, that the people get the policy they deserve. Based on our leaders' recent performance, apparently we don't deserve much in America.

Equanimity In a Fast-Paced World

Some words of wisdom from Shaila Catherine for thriving in unpredictable conditions:

"Every situation becomes an opportunity to abandon judgment and opinions and to simply give complete attention to what is. Situations of inconvenience are terrific areas to discover, test, or develop equanimity. How gracefully can you compromise in a negotiation? Does your mind remain balanced when you have to drive around the block three times to find a parking space? Are you at ease waiting for a flight that is six hours delayed? These inconveniences are opportunities to develop equanimity. Rather than shift the blame onto an institution, system, or person, one can develop the capacity to opt to rest within the experience."

Bush Legacy

With his performance as president despised by so many, when it comes to his legacy George W. Bush reportedly is seeking perhaps his only available solace - that perhaps history will treat him more kindly.

Not likely.

What many people and present-day commentators such as the New York Times refer to as "the most disastrous presidency in modern times" is also viewed similarly by respected and reputable historians.

For example, Arthur Schlesinger Jr., the late historian, commented to Jane Mayer of the The New Yorker for her new book, "The Dark Side: The Inside Story of How the War on Terror Turned Into a War on American Ideals,” that “the Bush administration’s extralegal counterterrorism program presented the most dramatic, sustained and radical challenge to the rule of law in American history,” reports Bob Herbert in today's NYTimes.

Schlesinger concludes, after considering all of the breakdowns of law that occurred throughout American history in prior administrations, including Watergate, that "No position taken has done more damage to the American reputation in the world — ever.”

Not much solace there for Mr. Bush.

Clever Writing - Maureen Dowd on Task Facing Obama

I couldn't resist passing this one along....

In "Ich Bin Ein Jet-Setter," her column yesterday in the New York Times analogizing to a sort of mythological undertaking the tall task facing Barack Obama as he travels the world in his coming-out tour these next weeks, Maureen Dowd comments that among Obama's challenges will be:

"Instead of slaying the nine-headed Hydra, he must bedazzle three European countries without causing Middle America to begrudge his popularity with a bunch of foreigners.
...
"Then again, maybe it will be a refreshing change to see a leader abroad reflecting the America the world wants to believe in, after the ignominy of Iraq, Afghanistan, Dick Cheney and Abu Ghraib."

And the coup de grace: "Instead of obtaining the girdle of the Amazon warrior queen Hippolyte, Obama has to overcome the hurdle of the Amazon warrior queen Hillary. [Whoa.] He has to figure out how to let her down easy on the vice presidential deal, while wooing the frantic Clinton sisterhood and Hillraisers who would rather see a McCain Supreme Court than support the glib, cocky young guy who presumptuously sped past their gal."

Nice.

Al Gore, Progressive

Ya gotta love Al Gore.

With his challenge Thursday that the United States set a goal of getting 100 percent of its electricity from renewable resources and carbon-constrained fuels within 10 years, he's set an audacious goal - but one behind which Americans can rally; and which would place the United States in a vastly different posture at the end of 10 years than where we stand today in terms of oil dependency and global climate change.

Of course the naysayers and small-minded will say it can't be done - but really, why not??

This is the sort of challenge America used to embrace - leading the way on solving problems with hard work, unity and innovative new approaches.

Can America still pull itself together for these sorts of challenges? Good question. Bob Herbert ruminates in today's New York Times, "The correct response to Mr. Gore’s proposal would be a rush to figure out ways to make it happen. Don’t hold your breath.

"When exactly was it that the U.S. became a can’t-do society? It wasn’t at the very beginning when 13 ragamuffin colonies went to war against the world’s mightiest empire. It wasn’t during World War II when Japan and Nazi Germany had to be fought simultaneously. It wasn’t in the postwar period that gave us the Marshall Plan and a robust G.I. Bill and the interstate highway system and the space program and the civil rights movement and the women’s movement and the greatest society the world had ever known.

"When was it?

"Now we can’t even lift New Orleans off its knees."

Herbert continues, "Americans are extremely anxious at the moment, and I think part of it has to do with a deeply unsettling feeling that the nation may not be up to the tremendous challenges it is facing. A recent poll by the Rockefeller Foundation and Time magazine that focused on economic issues found a deep pessimism running through respondents.

"According to Margot Brandenburg, an official with the foundation, nearly half of 18- to 29-year-olds 'feel that America’s best days are in the past.'

"The moment is ripe for exactly the kind of challenge issued by Mr. Gore on Thursday. It doesn’t matter if his proposal is less than perfect, or can’t be realized within 10 years, or even it if is found to be deeply flawed. The goal is the thing.

"The fetish for drilling for ever more oil is the perfect metaphor these days. The first thing you do when you find yourself in a hole is stop digging."

A View From Germany of George W. Bush's America

I feel like a broken record in decrying George W. Bush's disastrous presidency, but it's hard not to be angry when you read the sort of commentary (as part of an OpEd, "Obama at the Gate," on whether Barack Obama should speak at the Brandenburg Gate) by author Christoph Peters, translated from the German for publication day before yesterday in the New York Times.

Peters says, "George W. Bush’s contempt for the rules and institutions of international politics, his revival of preventive war, with all its unforeseeable consequences, his abrogation of the rule of law in his own country, and his ignorance of every issue related to environmental conservation have become, for me and for the vast majority of Germans, synonymous with a high-handed, ugly America. This state of affairs has provoked not only rage and horror, but also great sadness, for the United States has always been the symbol of freedom, democracy and law."

184 days and counting - better things are in store....

America in Decline - "It is Our Political System that is Not Working"

Thomas Friedman offers a clear-eyed but sobering assessment of the modern-day United States in "Anxious in America" in today's NY Times:

"My fellow Americans: We are a country in debt and in decline — not terminal, not irreversible, but in decline. Our political system seems incapable of producing long-range answers to big problems or big opportunities. We are the ones who need a better-functioning democracy — more than the Iraqis and Afghans. We are the ones in need of nation-building. It is our political system that is not working.

"I continue to be appalled at the gap between what is clearly going to be the next great global industry — renewable energy and clean power — and the inability of Congress and the administration to put in place the bold policies we need to ensure that America leads that industry.

“'America and its political leaders, after two decades of failing to come together to solve big problems, seem to have lost faith in their ability to do so,' Wall Street Journal columnist Gerald Seib noted last week. 'A political system that expects failure doesn’t try very hard to produce anything else.'

"We used to try harder and do better. After Sputnik, we came together as a nation and responded with a technology, infrastructure and education surge, notes Robert Hormats, vice chairman of Goldman Sachs International. After the 1973 oil crisis, we came together and made dramatic improvements in energy efficiency. After Social Security became imperiled in the early 1980s, we came together and fixed it for that moment. 'But today,' added Hormats, 'the political system seems incapable of producing a critical mass to support any kind of serious long-term reform.'

"If the old saying — that 'as General Motors goes, so goes America' — is true, then folks, we’re in a lot of trouble. General Motors’s stock-market value now stands at just $6.47 billion, compared with Toyota’s $162.6 billion. On top of it, G.M. shares sank to a 34-year low last week.

"That’s us. We’re at a 34-year low. And digging out of this hole is what the next election has to be about and is going to be about — even if it is interrupted by a terrorist attack or an outbreak of war or peace in Iraq. We need nation-building at home, and we cannot wait another year to get started. Vote for the candidate who you think will do that best. Nothing else matters."

DC v Heller Decision - Second Amendment Protects Individual Right

As predicted in my earlier blogs on this case, the Supreme Court today held 5-4 in DC v. Heller that the Second Amendment protects an individual right.

As stated in the syllabus, Justice Scalia's majority opinion announces that "The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home."

Regarding the linguistic interpretation of the Second Amendment, which confoundingly reads, "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed," the Court said that the "prefatory clause" (i.e., the language up to and including "... free State"), while it announces a purpose, does not limit the purposes for which the right identified in the "operative clause" (ie, "the right of the people to keep and bear Arms, shall not be infringed") may be used - including the right to keep arms for self-defense.

Interestingly, on the narrow technical question of whether the Second Amendment protects an individual right, it would appear that all nine Justices agree. As the first lines in Justice Stevens' dissent comments, "The question presented by this case is not whether the Second Amendment protects a 'collective right' or an 'individual right.' Surely it protects a right that can be enforced by individuals."

Where the dissent differs, however, is in how far that individual right goes. As Stevens continues, "But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right."

On this point, all nine of the Justices also agree that some measure of regulation of the right to bear arms is acceptable. The majority allows, for example, that the following sorts of restrictions would not necessarily violate the Second Amendment:

• concealed weapons prohibitions;
• longstanding prohibitions on the possession of firearms by felons and the mentally ill;
• laws forbidding the carrying of firearms in sensitive places such as schools and government buildings;
• laws imposing conditions and qualifications on the commercial sale of arms;
• historical prohibitions on the carrying of dangerous and unusual weapons (weapons protected are only those “in common use at the time” of the Second Amendment's drafting (ie, 1789).

So, in a way, the majority and dissent are largely in agreement: there is an individual right, and certain regulations are acceptable. Where they disagree is in how restrictive those regulations may be. Whereas the dissent believes a total ban on guns (as in the DC ordinance at issue in the case) would be okay, the majority says that in no event may the regulate impose an outright prohibition.

So what will this mean? It means there will be a lot of litigation to determine whether certain federal restrictions on guns are constitutional. It will also mean that State and Local laws will be challenged, and the next BIG question for the Court will be whether the Second Amendment even applies to the States.

The Bill of Rights, by its terms, only applies to the federal government; however, within the last eighty years or so the Supreme Court has held that almost every other one of the twenty-five or so protections contained within the Bill of Rights (such as the First Amendment freedom of speech and religion; the Fourth Amendment right to be free of unreasonable search and seizure, and the Eighth Amendment's right to be free of cruel and unusual punishment) applies also to the states - but it has simply never addressed within that time the issue of whether the Second Amendment applies to the States.

Assuming the Court holds that the Second Amendment applies to the States, as I argue it should in my 2007 piece in the Missouri Law Review entitled, "Second Amendment Incorporation Through the Fourteenth Amendment Privileges or Immunities and Due Process Clauses," there will then be a lot of litigation on whether state and local restrictions survive the Second Amendment.

So is this a good decision? Yes. As I've argued previously, it's always a good thing when the Court recognizes a constitutional protection of an individual liberty interest. A faithful reading of the Constitution does not allow us to pick and choose from among rights we like or dislike, and we bolster all of our rights, both enumerated and unenumerated (e.g., right to privacy, right to be free of government interference in actions which do no harm to others), when we adopt an expansive view of individual liberty.

Cycles of Change in American Politics

Interesting OpEd in the NY Times today from Gary Hart, former Senator and presidential candidate.

In "America's Next Chapter," Hart observes that "This [presidential] campaign presents the potential for a new cycle of American history.

"American politics moves in cycles is usually associated with the historian Arthur Schlesinger Jr., but it has an even longer currency. Ralph Waldo Emerson noted the political oscillations between the party of memory and the party of hope, the party of conservatism and the party of innovation. Henry Adams believed that “a period of about 12 years measured the beat of the pendulum” during the era of the founders. Schlesinger, borrowing from his historian father, estimated that the swings between eras of public action and those of private interest were nearer to 30 years.

"What matters more than the length of the cycles is that these swings, between what Schlesinger called periods of reform and periods of consolidation, clearly occur. If we somewhat arbitrarily fix the age of Franklin D. Roosevelt as 1932 to 1968 and the era of Ronald Reagan as 1968 to 2008, a new cycle of American political history — a cycle of reform — is due.

"The Republican coalition — composed of the religious right on social issues, the radical tax cutters or “supply-siders” on economic issues, and the neoconservatives on foreign policy — has produced only superficial religiosity, a failed war and record deficits. Traditional conservatives, who are dedicated to resistance to government intrusion into private lives, fiscal discipline and caution on military interventions, have yet to re-emerge, and may not. The character of the next Republican Party will result from an intraparty debate that has yet to begin and might occupy a decade or more.

"Democrats, meanwhile, have yet to produce a coherent ideological framework to replace the New Deal, despite an eight-year experiment in “triangulation” and an undefined “centrism.” Once elected, Barack Obama would have a rare opportunity to define a new Democratic Party. He could preside over the beginning of a new political cycle that, if relevant to the times, would dominate American politics for three or four decades to come."

...

"No individual can entirely determine the architecture of a historical cycle. But much of the next one will be defined by how we grapple with a host of new realities, ones that reach beyond jihadist terrorism. They include globalized markets; the expansion of the information revolution into places like China; the emergence of new world powers including India and China; climate deterioration; failing states; the changing nature of war; mass migrations; the proliferation of weapons of mass destruction; viral pandemics; and many more.

"Senator Obama’s attempt to introduce the next American cycle should include, at minimum, three elements. National security requires a new, expanded, post-cold-war definition. America must transition from a consumer economy to a producing one. And the moral obligations of our stewardship of the planet must become paramount.

"These themes and the policies that flow from them, if made the centerpiece of the 2008 election (perhaps along with alternatives that others might suggest), could produce the mandate required to begin a new historical cycle. This post-New Deal, post-Morning in America era would be more in tune with the current century and its realities than the continued political circling that confuses most Americans, who repeatedly and overwhelmingly report that they know America is adrift.

"They are right. And they are right because they instinctively realize that old politics, old parties and old policies are increasingly irrelevant to our lives, to our revolutionary times and to our country’s future. The next cycle of American history is as yet unframed, awaiting a national leader who can define a new role for government at home and a new role for America in the world of the 21st century."

"The Other" - A Book Review by Bruce Barcott

I enjoyed a review by Bruce Barcott in today's New York Times Book Review of the "The Other," a new David Guterson ("Snow Falling on Cedars") novel. The review itself adroitly addresses the Big Questions that arise in one's life with the passage of time.

As Barcott describes it, "'The Other' is a novel about [John William, a friend lots of people know in college - 'brilliant, obsessive and kind of scary'] who goes off the rails and ends up living as a hermit in a remote forest in Washington State."

Barcott comments, "Trustafarians like John William usually grow out of their Prince Hal phase by their mid-20s, in plenty of time to make partner in Dad's firm by 35. Not John William. He drops out of college, buys a mobile home, parks it by a remote river on the Olympic Peninsula and spends his days reading Gnostic theology. When even that seems too decadent, he carves a cave out of limestone and retreats into the gloom."

Narrated in retrospect by John William's high school friend Neil Countryman, who, in contrast to John William, "builds a life. He gets married, buys a house, has kids," "'The Other' is a moving portrait of male friendship, the kind that forms on the cusp of adulthood and refuses to die, no matter how maddening the other guy turns out to be," Barcott concludes.

"It's also a finely observed rumination on the necessary imperfection of life - on how hypocrisy, compromise and acceptance creep into our lives and turn strident idealists into kind, loving, fully human adults. Wisdom isn't the embrace of everything we rejected at 19. It's the understanding that absolutes are for dictators and fools. 'I'm a hypocrite, of course,' Countryman says, reflecting on his own life and John William's doomed pursuit of purity. 'I live with that, but I live.'"

Some words to live by: Wisdom is the understanding that absolutes are for dictators and fools.

Supreme Court's Habeas Case - "Three Strikes and You're Out" for Bush

Yesterday, for the third time in four years, the Supreme Court rebuffed the Bush Administration's handling of detainees at Guantanamo Bay (a strategy which has amounted, basically, to denying detainees the normal protections guaranteed by the U.S. Constitution), stating, "The laws and Constitution are designed to survive, and remain in force, in extraordinary times."

The majority opinion in this case, Boumediene v. Bush, written by Anthony Kennedy, asserts, "Security subsists, [in addition to use of a 'sophisticated intelligence apparatus and the ability of our armed forces to act and to interdict'], in fidelity to freedom's first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers. It is from these principles that the judicial authority to consider petitions for habeas corpus relief [ie, a person's right to go to federal court to demand that the government either justify their detention or set them free] derives.

"Our opinion does not undermine the Executive's powers as commander in chief. On the contrary, the exercise of those powers is vindicated, not eroded, when confirmed by the Judicial Branch.

"Within the Constitution's separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person.

"Some of these petitioners have been in custody for six years with no definitive judicial determination as to the legality of their detention. Their access to the writ [of habeas corpus] is a necessity to determine the lawfulness of their status, even if, in the end, they do not obtain the relief they seek...." (emphasis mine).

Good stuff - kudos to the Court, and Long Live the Constitution and the principles of Freedom and Liberty for which it stands.

The scary thing about the case, though, is that it was decided just 5-4. Who are these people who would dissent from the right of people to ask why the government is detaining them - some for as long as six years without due process?? It's one thing when justices disagree on more mundane things, but when we're talking about the most fundamental principles underpinning our entire Nation - i.e., Freedom, Liberty, Due Process of Law – one really has to wonder.

All the more reason it’s imperative that Barack Obama is elected president – with such a razor-thin margin on the Supreme Court, America cannot afford a president who would nominate another justice like those in the dissent here (Scalia, Roberts, Alito, Thomas). This Court already contains, by one measure published in U.S. News, four of the five most conservative justices to sit on the Supreme Court since 1937.

With a President John McCain, we are in danger of losing the most cherished principles of Liberty that we’ve held dear since the Nation’s founding (McCain “expressed concern” about the Court’s opinion in Boumediene; and has stated in the past he would use John Roberts and Joseph Alito as models were he to nominate a Justice.)

By contrast, a President Barack Obama would try to nominate a Justice who supports the majority opinion. Responding to yesterday’s decision, Obama stated, “[The decision is] a rejection of the Bush administration’s attempt to create a legal black hole at Guantanamo…. This is an important step toward reestablishing our credibility as a nation committed to the rule of law, and rejecting a false choice between fighting terrorism and respecting habeas corpus. Our courts have employed habeas corpus with rigor and fairness for more than two centuries, and we must continue to do so as we defend the freedom that violent extremists seek to destroy.”

One final note: Justice Antonin Scalia's hypocricy was exposed yet again in his dissent, with his claim that the decision was based not on principle, "but rather an inflated notion of judicial supremacy." Next time Scalia writes or signs on again to an opinion striking down, for example, a state law of the sort passed by California in Raich v. California (where the California legislature had acted well within its authority in giving state citizens even greater liberty than the minimum required in the federal Constitution when they passed a law allowing medical use of marijuana), one must demand of him, "What about 'inflated notions of judicial supremacy' now??"

Contrary to the claims in Scalia's cramped sophistry, the framers’ true vision was of an expansive individual Liberty vis-à-vis a controlling Government.

What "Obama" Means Around the World

Last November in "Obama the One?" I posted the following, discussing one aspect of Barack Obama's appeal: the rehabilitation it would do for America's image abroad.

In that post I quoted from an article in the Dec.2007 issue of The Atlantic, "Why Obama Matters," by Andrew Sullivan:

"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."

Sullivan continued, "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.... 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."

Come now June 2008, now that Obama is the presumptive Democratic nominee after a testing primary battle, and we're starting to see the prescience of these words.

In today's New York Times, in his OpEd "Obama on the Nile," Thomas Friedman comments from Egypt: "Egyptians are amazed, excited and agog that America might elect a black man whose father’s family was of Muslim heritage. They don’t really understand Obama’s family tree, but what they do know is that if America — despite being attacked by Muslim militants on 9/11 — were to elect as its president some guy with the middle name “Hussein,” it would mark a sea change in America-Muslim world relations....

"It would not be an exaggeration to say that the Democrats’ nomination of Obama as their candidate for president has done more to improve America’s image abroad — an image dented by the Iraq war, President Bush’s invocation of a post-9/11 “crusade,” Abu Ghraib, Guantánamo Bay and the xenophobic opposition to Dubai Ports World managing U.S. harbors — than the entire Bush public diplomacy effort for seven years."

Friedman relates, "I just had dinner at a Nile-side restaurant with two Egyptian officials and a businessman, and one of them quoted one of his children as asking: 'Could something like this ever happen in Egypt?' And the answer from everyone at the table was, of course, 'no.' It couldn’t happen anywhere in this region. Could a Copt become president of Egypt? Not a chance. Could a Shiite become the leader of Saudi Arabia? Not in a hundred years. A Bahai president of Iran? In your dreams. Here, the past always buries the future, not the other way around.

"These Egyptian officials were particularly excited about Obama’s nomination because it might mean that being labeled a 'pro-American' reformer is no longer an insult here, as it has been in recent years. As one U.S. diplomat put it to me: Obama’s demeanor suggests to foreigners that he would not only listen to what they have to say but might even take it into account. They anticipate that a U.S. president who spent part of his life looking at America from the outside in — as John McCain did while a P.O.W. in Vietnam — will be much more attuned to global trends."


This is all fascinating - and very heartening - in a larger sense as well, in that it demonstrates that America still "has it" (or at least has the potential for "it") - i.e., the ability to behave in ways that give hope to freedom-loving people around the world; or, as Friedman puts it, "it reveals is how much many foreigners, after all the acrimony of the Bush years, still hunger for the 'idea of America' — this open, optimistic, and, indeed, revolutionary, place so radically different from their own societies."

This "idea of America" has existed from the time of the nation's origins. As Ralph Waldo Emerson stated in 1844, "America is the country of the future. It is a country of beginnings, of projects, of vast designs and expectations."

Friedman concludes, "That’s the America that got swallowed by the war on terrorism. And it’s the America that many people want back. I have no idea whether Obama will win in November. Whether he does or doesn’t, though, the mere fact of his nomination has done something very important. We’ve surprised ourselves and surprised the world and, in so doing, reminded everyone that we are still a country of new beginnings."

There's hope, there's hope.

Stop McCain: "I'd Spy on Americans Secretly, Too"

Democrats have taken to dubbing a John McCain term as "Bush III," and word just out from the McCain campaign suggests this moniker has some merit, at least when it comes to McCain's position on Executive Power.

Wired.com reports that in a statement released by his campaign Monday, McCain "reserved the right to run his own warrantless wiretapping program against Americans, based on the theory that the president's wartime powers trump federal criminal statutes and court oversight."

Here's the campaign's statement: "N]either the Administration nor the telecoms need apologize for actions that most people, except for the ACLU and the trial lawyers, understand were Constitutional and appropriate in the wake of the attacks on September 11, 2001. [...]

"We do not know what lies ahead in our nation’s fight against radical Islamic extremists, but John McCain will do everything he can to protect Americans from such threats, including asking the telecoms for appropriate assistance to collect intelligence against foreign threats to the United States as authorized by Article II of the Constitution."

As wired.com continues, "the Article II citation is key, since it refers to President Bush's longstanding arguments that the president has nearly unlimited powers during a time of war. The administration's analysis went so far as to say the Fourth Amendment did not apply inside the United States in the fight against terrorism, in one legal opinion from 2001."

This sort of expansion of the executive authority was not imagined by the framers when they set up the constitutional separation of powers for the very purpose of limiting the power of any one branch.

If this is John McCain's view, he needs to be defeated. We have seen too well the damage a rogue presidency (what the New York Times, among others, are characterizing as "the most disastrous presidency of modern times") can do to our core constitutional principles.

Bush and the Loss of Reason; What Happened

Commenting on former Bush-Press Secretary Scott McClellan's new tell-all book, "What Happened," detailing the lies and duplicity of Bush, Cheney, Rove, etc, Maureen Dowd pinpoints what's so maddening about Bush:

"It turns out that our president is a one-man refutation of Malcolm Gladwell’s best seller “Blink,” about the value of trusting your gut. Every gut instinct he had was wildly off the mark and hideously damaging to all concerned. It seems that if you trust your gut without ever feeding your gut any facts or news or contrary opinions, if you keep your gut on a steady diet of grandiosity, ignorance, sycophants, and peanut butter and jelly sandwiches, those snap decisions can be ruinous…."

As Dowd comments, "We already know What Happened, but it feels good to hear Scott say it."

The Debaters - "An Unjust Law Is No Law At All"

Last night I watched Denzel Washington's and Forrest Whitaker's "The Debaters," the true story about the tiny all-Black Wiley College (Texas) debate team that went undefeated for ten years (~1935-45) against the likes of Harvard, just out on DVD - highly recommended.

One St. Augustine maxim, quoted in a debate scene by one of the leads in support of Civil Disobedience, stands out: "An Unjust Law is No Law At All."

Majorities sometimes pass oppressive laws; and it is the right, or even the duty, of fairminded people to resist, whether (to paraphrase the closing lines in the movie's debate argument) "by violence, or by civil disobedience. You should pray that I choose the latter."

. . . . .

This line of thought speaks to the proper role for courts in the constitutional system: it is the courts' judicial role, through judicial review, to protect minority and individual interests from oppressive impulses of the majority.

Politics in Classroom?

Law professors are generally a pretty opinionated lot, and there's always a question of how much to bring one's own views into the classroom. This is especially true in a class with as many charged issues as constitutional law.

My classroom approach is to try to avoid proselytizing, on the rationale that the class isn't about me - it's about the Constitution.

Just the other day I received an anonymous e-mail from one of my students confirming this is the proper approach, at least for me. I'm grateful to this student for sharing the e-mail with me - this is about as good as it gets for a teacher....

With that person's permission, here's the e-mail:

"Now that the semester and finals are over I wanted to take a moment and thank you for your teaching methods this semester in Constitutional Law II. When I refer to your teaching methods, I am referring to your ability to stay politically neutral. Before I took your class this spring I was very concerned about your position on the political ideology scale. I had read your blog a couple times and to say the least, you and I are on opposite sides. Or to sum it up better, you despise President Bush and I believe that he is doing what he believes is best for our country. With Constitutional Law already being such a politically driven subject, I was actually considering not taking the class with you as the professor. In the past, throughout undergrad and lawschool, I have had an overwhelming majority of “liberal” professors and many (most) of them have in some way or another tried to persuade the class to believe as they do, and many of those were business classes which have no real political influence.

"Although a conflicting political viewpoint should never be a reason to avoid someone, if you are in a position to avoid it, most do. During this semester our class had many different discussions over many different topics and you did an amazing job as a mediator. Some professors believe that if they throw in a joke about both sides it clears the air about who they are really attacking, but most of the students in the room know what is really going on. You on the other hand did not do this a single time, you did not voice your opinion on any major controversies, and even with most trivial subjects you avoided giving the class your point of view. You allowed and encouraged class discussion on both points of views on every subject.

"This type of control is very hard to come by with any person, let alone a very political person teaching a very political class topic. Sorry for the rambling, but I am just trying to make sure you realize how much I appreciated you throughout the semester. You allowed me to focus on Constitutional Law, and not my personal objections to your beliefs and because of this, I feel I was able to grasp the content of the class. Even if in the end I did not do well on the final I believe that I understood the subject, and would recommend your Constitutional Law class to anyone.... Thank you again.

MSU Law Student, Constitutional Law II, Spring2008"

Dems' Day of Reckoning

So today is the Democrats' (latest) day of reckoning - this time in North Carolina and Indiana.

As the race for the nomination continues, we're getting a clearer picture of the character of candidates Clinton and Obama, and what we might expect if either are elected President. As David Brooks puts it in today's New York Times:

"Th[e] contrast between combat and composure defines the Democratic race. The implicit Clinton argument is that politics is an inherently nasty business. Human nature, as she said Sunday, means that progress comes only through conquest. You’d better elect a leader who can intimidate. You’d better elect someone who has given herself permission to be brutal.

"[By contrast,] Obama’s campaign grows out of the longstanding reform tradition. His implicit argument is that politics doesn’t have to be this way. Dishonesty and brutality aren’t inevitable; they’re what gets in the way. Obama’s friend and supporter Cass Sunstein described the Obama ideal in The New Republic: “Obama believes that real change usually requires consensus, learning and accommodation."

"That’s regarded as naïve drivel in parts of Camp Clinton.

"Campaign issues come and go, but this is a thread running through the race. One believes in the raw assertion of power, the other the power of communication."

Brooks offers the rivals' differing appearances on last Sunday's talk shows as Exhibit A:

"Hillary Clinton went on “This Week With George Stephanopoulos” incarnating her role as the first Democratic Rambo. The Clinton campaign seems to want to reduce the entire race to one element: the supposed masculinity gap. And so everything she does is all about assertion, combat and Alpha dog dominance.

"A few questions in, Clinton rose from her chair and loomed over Stephanopoulos. The country hasn’t seen such a brazen display of attempted middle-aged physical intimidation since Al Gore took a walkabout on the debate stage with George Bush. It was like watching someone get elbowed in a dark alley by their homeroom teacher.

"But her attempt to take over the show was nothing compared with her attempt to dominate the truth. For the first 30 minutes, she did not utter a single candid word, including, as Mary McCarthy would say, “and” and “the.”

"She peddled her sham gas-tax holiday and repeated her attempt to blame Indiana’s job losses on outsourcing and Nafta. Stephanopoulos asked her to name a single economist who thinks a tax-holiday plan would work, and the daughter of Wellesley and Yale took the chance to shove the geeks into their lockers: “I’m not going to put my lot in with economists.” ...

"Barack Obama gave off an entirely different vibe on “Meet the Press.” His campaign has been in the doldrums for the past few months. He’s never come up with an explanation about how he would actually transform politics, and his conventional substance is beginning to overshadow his unconventional style.

"But, as Sunday’s contrast made clear, Obama still seems like a human being. He still seems to return each night to some zone of normalcy where personal reflection lives. He wasn’t fully candid when answering questions about the Rev. Jeremiah Wright, but there are some inner guardrails that prevent the spin from drifting too far from the truth. Thoughtful and conversational, he doesn’t seem to possess the trait that Clinton has: automatically assuming that critics are always wrong.

"Obama still possesses his talent for homeostasis, the ability to return to emotional balance and calm, even amid hysteria. His astounding composure has come across as weakness in the midst of combat with Clinton, but it’s also at the core of his promise to change politics. He vows to calm hatred and heal division." ...

"Still, amid the storms of the presidency, their basic worldviews would shape their presidencies. Obama is instinctively a conversationalist and community-mobilizer. Clinton, as she says, will fight and fight. If elected, she’ll have the power to take the Hobbesian struggle she perceives, and turn it into remorseless reality."

So Democrats, and all Americans, do have a real choice - and having seen the candidates' behavior in this hotly-contested race, we'll get what we deserve.

Autonomy, Tolerance & Gems from Einstein

I've written here previously about Walter Isaacson's biography of Albert Einstein on the topic of Einstein's fierce independence and individual autonomy. In Einstein's words:

-"Blind respect for authority is the greatest enemy of truth." (p.67)

-"Long live impudence! It is my guardian angel in this world." (p.73)

-"[Some part of genius is due to a measure of] incorruptible skepticism and independence." (p. 83)

-“When teaching history, there should be extensive discussions of personalities who benefited mankind through independence of character and judgment.” (p.6)

-"It is important to foster individuality, for only the individual can produce the new ideas." (p.7)

Isaacson sums, "[Einstein's] success came from questioning conventional wisdom, challenging authority, 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 only as a sweet virtue but as a necessary condition for a creative society." (p.7)

Progressive Liberty in the Commons - What is "Progressive" and what is "Liberty"?

A persistent conundrum for those of us with libertarian sympathies is that individual freedom and the common-good seem, almost by definition, to be mutually exclusive.

So how can a concerned individual justify individual liberty when we understand the dynamics of some groups, where individuals acting in their own self-interest make decisions that when combined with the similar self-interested decisions of other individuals tend to despoil the environment (or, beyond environmental issues, where individual aggressive impulses that when combined with similar impulses of others lead to moblike or warlike behavior)?

We may recall that this was the scenario illustrated in Garrett Hardin's classic 1968 essay, "Tragedy of the Commons," in which Hardin concluded that personal self interest, unchecked by any limiting factor, may lead to environmental destruction: "The rational man finds that his share of the wastes he discharges into the commons is less than the cost of purifying his wastes before releasing them. Since this is true for everyone, we are locked into a system of 'fouling our own nest,' so long as we behave only as independent, rational, free-enterprisers." (I explore the issue of the commons and formal property regimes in a 1999 book chapter entitled "Common Property and Natural Resource Management: A Michigan Perspective," which appears in the book series "The Economics of Legal Relationships" (vol. 5)).

"Progressive Liberty" is an attempt to reconcile the seemingly contradictory concepts of individual liberty and the common-good.

Looking first at the "Liberty" part, an excellent place to start is with the "harm principle" enunciated in J.S. Mill's 1859 classic "On Liberty":

"[There is but] one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, … that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others…. The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign." (I discuss Mill's harm principle in greater detail in a 2005 Willamette Law Review article entitled "Reviving a Natural Right: The Freedom of Autonomy").

Yale professor Ian Shapiro suggests, “think of the harm principle as operating in two steps. When evaluating a particular action or policy, the first step involves deciding whether the action causes, or has the potential to cause, harm to others. If the answer is no, then the action is in the self-regarding realm and the government would be unjustified in interfering. Indeed, in that case the government has a duty to protect the individual’s freedom of action against interference from others as well. If, however, the answer to the initial query is yes, then different considerations arise. We are then in a world in which harm is being committed willy-nilly, and the question is: What, if anything, should the government do about it? In this regard, a more accurate summation of the harm principle than the more famous formulation already quoted [is]: ‘As soon as any part of a person’s conduct affects prejudicially the interests of others, society has jurisdiction over it, and the question whether the general welfare will or will not be promoted by interfering with it becomes open to discussion. But there is no room for entertaining any such discussion when a person’s conduct affects the interests of no persons besides himself.’” (Shapiro, The Moral Foundations of Politics p.61).

So this is where the "Progressive" part of Progressive Liberty comes in. As Shapiro states, society has jurisdiction over a person's conduct when that conduct prejudicially affects, or harms, the interests of others. In this case it is open to discussion through the democratic process whether the common good will be promoted by regulating the individual's conduct (liberty). Through progressive legislation, then, the society strikes a balance.

It is important to re-emphasize Shapiro's point, however, that short of the point at which a person's conduct affects the interests of no persons besides himself , "there is no room for entertaining [memorializing into law] any such discussion." "Liberty" prevails and the individual's autonomy cannot be touched by government.

This last point is crucial, in light of government's unceasing, inexorable, and perhaps-inevitable tendency to interfere inappropriately in individual conduct. (I propose a judicial standard of review to address and counteract this overreaching tendency of government in a 2007 article in the Louisiana Law Review entitled "Government as Liberty's Servant: The 'Reasonable Time, Place and Manner' Standard of Review for All Government Restrictions on Liberty Interests").