Saturday, February 28, 2009

The Audacity of Idealism - Great Week for Progressives

Progressives and idealists are pinching themselves after President Barack Obama's joint Address to Congress on Tuesday and the release of his ten-year budget on Thursday.

In his Tuesday Address he outlined the plans to view the nation's economic woes as reason to raise its sights, calling for bold new efforts to improve healthcare, education and energy policy.

"The answers to our problems don't lie beyond our reach," he said. "They exist in our laboratories and universities; in our fields and our factories; in the imaginations of our entrepreneurs and the pride of the hardest-working people on earth.... What is required now is for this country to pull together, confront boldly the challenges we face, and take responsibility for our future once more....

"We have lived through an era where too often, short-term gains were prized over long-term prosperity; where we failed to look beyond the next payment, the next quarter or the next election. A surplus became an excuse to transfer wealth to the wealthy instead of an opportunity to invest in our future. Regulations were gutted for the sake of a quick profit at the expense of a healthy market.... And all the while, critical debates and difficult decisions were put off for some other time on some other day.

"Well that day of reckoning has arrived, and the time to take charge of our future is now. Now is the time to act boldly and wisely, to not only revive this economy, but to build a new foundation for lasting prosperity. Now is the time to jump-start job creation, restart lending, and invest in areas like energy, healthcare and education that will grow our economy, even as we make hard choices to bring our deficit down."

Then on Thursday Obama's budget backed it up with numbers explaining how all of this can be accomplished. As Paul Krugman said in his column in yesterday's Times, "these new priorities are laid out in a document whose clarity and plausibility seem almost incredible to those of us who grew accustomed to reading Bush-era budgets, which insulted our intelligence on every page. This is budgeting we can believe in. Many will ask whether Mr. Obama can actually pull off the deficit reduction he promises. Can he actually reduce the red ink from $1.75 trillion this year to less than a third as much in 2013? Yes, he can.... [T]his budget looks very, very good."

And David Brooks, while more reserved in his overall assessment, commented, "Obama’s budget is far more honest than the ones that preceded it. It imposes real pay-as-you-go rules on future outlays. Intellectually serious efforts are made to pay for at least half of the cost of health care reform."

Yeah, yeah, yeah.... the plan raises annual deficits to their highest levels (as percentage of gross domestic product) since WWII, but the fact is that there's a responsible plan in place, as compared to the voodoo-economics of the Bush years, which turned a solid annual surplus in 2000 into record deficits by 2008. It will pay for itself, for example, by increasing taxes on rich individuals and polluting industries, and reducing war costs as well as subsidies on farm payments and the like. (Friday's worse-than-expected 4th quarter report from the Commerce Department that the economy contracted at 6.2 percent rather than the projected 3.8 percent gives sobering pause on the sheer scope the challenges facing these plans; and means that the administration will need to make adjustments.)

The Progressive's response to all of this: it's about damn time. For too long the country has suffered at the hands of people who justify smaller government under the perverse logic of screwing everything up and then using their incompetence at governing as justification for doing nothing. "See how government doesn't work?" they ask.

It's not about big government as an end in itself for the progressive libertarian, as readers of this page will recall; rather it's about government actually helping where it is properly equipped to help, but then staying out of the way in areas where it has no business - like matters of individual free-will and self-determination.

So far, the first six weeks of the Obama administration has come closer than any administration in several generations to realizing this appropriate balance between responsible progressive governmental activism on one hand, and libertarian governmental respect for individual freedom on the other.

In our constitutional system, some things (individual liberty) are non-negotiable; while others (economic policy) are properly delegated to the political process. In November 2008, the Progressive policy vision won. Now let's GO.

Tuesday, February 24, 2009

Legal Times Article on McDonald v. Chicago Amicus Brief

The amicus curiae brief Professors Jack Balkin, Michael Curtis, Richard Aynes and I submitted recently together with the Constitutional Accountability Center in the McDonald v. Chicago case before the Seventh Circuit Court of Appeals is the subject of a front page story in the the current issue of the Legal Times.

Tony Mauro does a nice job in the article, "Liberals Use Gun Case to Bolster Other Rights," of describing our arguments (which I've also previously made in these pages), which essentially assert that the Fourteenth Amendment Privileges or Immunities Clause applies the entire Bill of Rights (as well as many other basic rights and protections) to the States.

Characterizing that the 2008 DC v. Heller case as a "constitutional earthquake," Mauro goes on to say:

"In a follow-on case pending before the U.S. Court of Appeals for the 7th Circuit, a progressive legal group and liberal law professors including Yale Law School's Jack Balkin earlier this month joined gun-rights advocates in urging that the right established in Heller, which involved only the District of Columbia, be extended to apply against gun restrictions in the 50 states. The case is McDonald v. Chicago, a challenge to that city's strict gun control law and, no matter what, the outcome is likely to be appealed to the Supreme Court.

"But these academics and the liberal Constitutional Accountability Center, which filed a brief in the case, have not suddenly taken up the Second Amendment cause, Charlton Heston-style. Rather, they joined the case to urge the court to adopt a new way of making the rights protected by the federal Constitution apply to the states (a process known as "incorporation").

"That new pathway runs through the long-dormant "privileges or immunities" clause of the 14th Amendment. In the view of scholars and historians of all political stripes, the clause provides the strongest legal foundation for applying the Bill of Rights to the states. The language-"No state shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States"-is broad and clear, advocates say, and could be used to incorporate the entire Bill of Rights to the states, wholesale. It would replace the narrower and more piecemeal way in which the Bill of Rights was usually made binding on the states, right by right, during the
20th century-namely, the 14th Amendment's due process clause.

"Use of the due process clause has led to "the constitutional equivalent of a food fight" with conservative justices increasingly wary of expanding or creating new rights because of the clause's process-oriented scope, says Douglas Kendall, founder of the D.C.-based Constitutional Accountability Center. Kendall says invoking "privileges or immunities" would have a "lift-all-boats" effect, strengthening free speech, and possibly even abortion and gay rights, at the same time that it bolsters the right to bear arms."

Oral arguments in the McDonald v. Chicago case are not yet scheduled, but should be coming up in the next few months.

Wednesday, February 11, 2009

Obama Administration & State Secrets Doctrine

Big disappointment on Monday when a Justice Department lawyer, in arguing to dismiss a case against the government for torture, re-asserted a "state secrets" theory developed by the Bush Administration on the grounds that even discussing it in court could threaten national security.

Or is it? On balance I'm not so sure.

It is tempting on first impression to share the outrage of the ACLU Executive Director Anthony Romero, who commented: "This is not change. This is definitely more of the same. Candidate Obama ran on a platform that would reform the abuse of state secrets, but President Obama's Justice Department has disappointingly reneged on that important civil liberties issue. If this is a harbinger of things to come, it will be a long and arduous road to give us back an America we can be proud of again."

In any event, what gives? After all, some of Obama's harshest criticisms of the Bush Administration were reserved for this sort of issue. Even the judges on the Ninth Circuit Court of Appeals were surprised.

"The change in administration has no bearing [on your argument]?," asked Judge Mary M. Shroeder.

"No, your honor," replied the lawyer, Douglas N. Letter. "[The argument was] thoroughly vetted with the appropriate officials within the new administration," he said, and "these are the authorized positions."

So why the shift? It is certainly understandable, as a Justice Department spokesman explained in justifying the government's position, that the government would want to keep information "that, if released, could jeopardize national security." The ACLU counters, though, that it IS possible to bring cases without facts being made public - courts should have a chance to decide what should be allowed to be discussed, based on classified information revealed to the judge(s) alone.

But the Justice Department lawyer, Mr. Letter, says that this is exactly what happened in this particular case. In urging the Ninth Circuit judges to review the same materials that led the Federal District Court (Judge Ware) to dismiss the case, Letter predicted, "you will understand precisely, as Judge Ware did, why this can't be litigated."

Talk about intrigue - it's hard to imagine what could be of such magnitude that would lead Barack Obama to do an about-face on such an important principle. It has to be the sort of thing that the Supreme Court envisioned in the Pentagon Papers Case when reviewing what it calls "prior restraints" on speech, commenting that the only time this most highly disfavored form of government restriction would be allowed is if the speech were the equivalent of threatening the lives of troops by publishing "the sailing dates of transports or the number and location of troops."

All I can imagine is that the case at issue here is of that sort - and for the moment anyway, I want to have enough faith in Barack Obama to believe that he would only take this position if it were absolutely necessary. At the same time, I do maintain that the Justice Department should NOT rely on this blanket "state secrets" doctrine, which can be so egregiously abused in the wrong hands. Rather, the government should argue for the necessity of confidentiality on a case-by-case basis.

Wednesday, February 4, 2009

Michael Phelps & Unconstitutional Prohibition on Marijuana

The news that Michael Phelps has been outed for hitting a bong at a party raises a couple issues about current laws prohibiting marijuana: they are (1) bad policy; and (2) unconstitutional.

First, state and federal laws criminalizing the use and possession of marijuana are atrocious policy for at least three reasons: (a) the massive costs imposed on lives and public treasuries; (b) low efficacy - i.e, the laws do little to dissuade those who desire to light up from doing so; the (c) crime problems caused by making marijuana a black market commodity.

In policy terms, wouldn't it be better for the government to decriminalize marijuana and regulate much like it regulates alcohol and tobacco? This is what many policymakers - conservative and liberal alike - believe, for a number of reasons: (1) it would reduce crime; and (2) it would be a great moneymaker for government (through taxes on sales, etc.).

So it's time for a change. As Kathleen Parker says in today's Washington Post, "Our marijuana laws have been ludicrous for as long as we've been alive. Almost half of us (42 percent) have tried marijuana at least once, according to a report published last year in PLoS Medicine, a journal of the Public Library of Science.

"The U.S., in fact, boasts the highest percentage of pot smokers among 17 nations surveyed, including The Netherlands, where cannabis clouds waft from coffeehouse windows. ...

"Other better-known former tokers include our current president and a couple of previous ones, as well as a Supreme Court justice, to name just a few. A complete list would require the slaughter of several mature forests. ... It's time to recognize that all drugs are not equal -- and change the laws accordingly."

Second - and more seriously - aside from any policy reasons, current prohibitions on marijuana are unconstitutional.

As I've discussed in these pages previously, when a person's conduct affects the interests of no other person besides him- or herself , the government has no business regulating private conduct. When a person is engaged in such behavior, as Yale professor Ian Shapiro says, "there is no room for entertaining [memorializing into law] any such discussion." Liberty prevails and the individual's autonomy cannot be touched by government.

The principle that government only exists in the first place to protect liberty is time-honored. William Blackstone, whose 1768 Commentaries on the Laws of England were required reading for America's founders and framers of the Constitution, commented, “every wanton and causeless restraint of [free-will], whether practiced by a monarch, a nobility, or a popular assembly, is a degree of tyranny.”

J.S. Mill's 1859 "Harm Principle" is useful as well in conceptualizing the concept: "[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").

The upshot of all of this is that it is okay for government to regulate, but not prohibit, conduct not harming others.

People using marijuana harm no-one but themselves (and no, generalized "harm to the society" or setting a bad example for The Children don't count - any "harm" must be direct; not just an attenuated claim that its use harms society); accordingly, the government has no business prohibiting its use.

Obama - A New Ethics or Same Old Washington?

After the heady idealistic days of the campaign and promising first days of the new Obama presidency, these last several days have been very discouraging.

The President's promises and then equivocations on the backgrounds and ethical standards of his nominees (no lobbyists in the administration - except when we need a particular person in the Defense Department; high ethical standards - except when we have a special need for a particular person who has had some rather egregious oversights in paying taxes) prompts thoughts of a sobering possibility: that Obama's message of change was just a mirage - and that it's actually just business as usual in the same old Washington. It's just disillusioning.

It was reassuring, then, to see President Obama's response yesterday, acknowledging that he "screwed up" and taking responsibility for his mistake. "I'm frustrated with myself and my team," he said, pointing out the importance of sending a message that there are not two sets of rules, one for prominent people and one for ordinary folks who have to pay their taxes. "I've got to own up to my mistake," he said.

Does this all mean that Washington-as-usual wins? Obama says no. "Washington doesn't win. The fact of the matter is that Tom Daschle pulled out. And I'm here on television saying I screwed up. Part of the era of responsibility is not never making mistakes; it's owning up to them and trying to make sure you don't repeat them."

Okay, fair enough.