Sunday, June 29, 2008

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."

Thursday, June 26, 2008

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.

Wednesday, June 25, 2008

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."

Sunday, June 15, 2008

"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.

Friday, June 13, 2008

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-√†-vis a controlling Government.

Wednesday, June 11, 2008

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, Guant√°namo 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.

Thursday, June 5, 2008

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. 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 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.

Sunday, June 1, 2008

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.