Progressive Liberty Blog

New Book - Radicals in Their Own Time

2010-12-30T22:15:00.000-05:00

I've added a video introduction to my forthcoming book from Cambridge University Press, Radicals in Their Own Time: Four Hundred Years of Struggle for Liberty and Equal Justice in America (January 2011) (see you.tube link at right). I discuss the book in greater detail at "Great Americans Blog."

OpEd on McDonald v Chicago Case - June/July 2010

2010-09-30T16:10:00.003-04:00

Here is the OpEd on the McDonald v. Chicago Supreme Court decision that ran in various papers and news outlets around the country in late June and early July.

McDonald is Cause for Celebration for All

The McDonald v. Chicago Supreme Court decision that the Second Amendment is fully binding on state and local governments is cause for celebration - even among those deeply concerned about gun violence in the United States.

First, nothing in the Court’s decision prevents state and local governments from continuing to impose meaningful regulations on the possession of firearms. The Supreme Court explained that the Second Amendment “limits (but by no means eliminates) their ability to devise solutions to social problems that suit local needs and values.”

To emphasize the point that reasonable regulations will still be allowed, the Court quoted from the brief signed by 38 States supporting the Court’s ultimate decision, which said: “State and local experimentation with reasonable firearms regulations will continue under the Second Amendment.” And in this case the Supreme Court did not actually expressly reject the Chicago-area restrictions, but rather returned the case to the federal Court of Appeals in Chicago to determine if the regulations still pass muster.

There is nothing unusual in the approach taken by the Supreme Court in this case. Others of our most fundamental rights may be regulated, but never prohibited outright - such as the First Amendment’s protection for freedom of speech and the Fourth Amendment right to be free of unreasonable searches and seizures. These and all rights are subject to reasonable “time, place, and manner” governmental regulations.

Second, we bolster our claim on all of the rest of our constitutionally-protected rights – both enumerated and unenumerated (the right to privacy, for example) – when we adopt the sort of expansive view of liberty recognized in the decision. A faithful reading of the Constitution simply does not allow us to pick and choose from among those constitutional rights with which we may agree or disagree – and those rights should be protected not only from infringement by the federal government, but also by state and local governments.

The one thing state and local governments may not do is enact regulations that prohibit a person’s right to keep a firearm for self-defense. Otherwise, not much else should change.

McDonald v. Chicago decision

2010-09-30T15:47:00.005-04:00

Quite a hiatus for the summer - biggest blog-related news while I've been playing hooky was the McDonald v. Chicago decision in late June, where the Supreme Court held 5-4 that the Second Amendment applies to the States.

Four of the majority justices reasoned that the clause is incorporated through the 14th amendment due process clause (the conventional argument); one, Justice Clarence Thomas reasoned it is incorporated through the 14th amendment privileges or immunities clause. Thomas's reasoning was the reasoning for which I argued in the amicus briefs and law review articles related to this issue. So, we wish we would have gotten a majority on the privileges or immunities argument, but at least Thomas agreed.

One of the most disappointing parts of the case was that the four dissenters - Breyer, Stevens, Sotomayor and Ginsburg, people with whom I usually have more in common than not - did not go along with the persuasive history that the fourteenth amendment privileges or immunities clause was intended to apply the ENTIRE Bill of Rights to the States.

I published an OpEd at the time of the decision, which ran in a good number of papers nationwide. I'll post that here.

Radicals in Their Own Time: Four Hundred Years of Struggle for Liberty and Equal Justice in America

2010-05-21T16:04:00.005-04:00

Coming out of my cave into the daylight again after finishing my book ("Radicals in Their Own Time: Four Hundred Years of Struggle for Liberty and Equal Justice in America," Cambridge Univ. Press) and submitting it to the publisher week before last. Quite the relief.

I'm pleased with how it came out - should be out in bound book form in December or January.

Framers Believed in Virtuous (ie, Humane) Government

2010-03-21T09:04:00.004-04:00

The Tea Party movement is not completely cuckoo. In fact, its focus on the Constitution should be welcomed by all Americans.

When tea partiers inquire closely into the Constitution’s original intent, they will find what they expect to find: it was created, first, to protect individual liberty from overzealous government.

Yet they may be surprised when they learn that Franklin, Washington, Hamilton, Adams, Jefferson and Madison – as bitterly contentious in politics as present-day politicians (if not more so) – all agreed on the one bedrock principle upon which any good government depended: VIRTUE – or, literally, “Public Spirit.”

As Thomas Paine (Common Sense, The Rights of Man, etc.) insisted: “Public good is not a term opposed to the good of individuals. On the contrary, it is the good of every individual collected. It is the good of all, because it is the good of every one.” Hence Paine advocated progressive taxation, aid to the unemployed, and free public education.

Healthcare-for-all, anyone?

McDonald v. Chicago - Yesterday's Oral Argument

2010-03-03T22:07:00.006-05:00

Judging from yesterday's oral argument in McDonald v. Chicago (the case discussed here previously involving whether either the Fourteenth Amendment Privileges or Immunities Clause or Due Process Clause applies the Second Amendment to the States), it seems a majority of the U.S. Supreme Court will use the standard Due Process route to apply the right to bear arms to the States.

Justice Antonin Scalia - who claims to be beholden to the text and history of the Constitution - belittled the arguments claiming that the text and history of the Constitution require consideration of the Privileges or Immunities clause. When Alan Gura, the attorney arguing the case, began his discussion of Privileges or Immunities, Scalia pointedly asked him whether arguing Privileges or immunities was "easier" than the due process argument. "[I]f the answer is no," he continued, "why are you asking us to overrule 150, 140 years of prior law?" Scalia also said that "What you argue is the darling of the professoriate"; and speculated that Gura is "bucking for a place on some law school faculty."

Scalia brays loudly about the importance of original intent; yet when serious original intent arguments come before him that would be contrary to his narrow, cramped view of individual liberty, he is unwilling to listen. What a hypocrite.

Olympics Idealism

2010-02-28T21:27:00.004-05:00

What a pleasure watching the Vancouver 2010 Winter Olympics over the last couple weeks. It's easy to be cynical these days about many things - even about the commercialism and politics surrounding the Olympics - but to see young men and women and spectators from all over the world coming together to participate in sport with such unadorned pleasure and fellowship.... well, it gives one hope for a better world.

Another Response to Citizens United: Remove Supreme Court Appellate Jurisdiction

2010-02-10T20:37:00.001-05:00

Much has been written about the Supreme Court's Citizens United opinion overruling a century of precedents and statutes designed to curb corporate campaign spending. Many have offered suggestions on ways to counter the decision's effects; but another possibility - one of the oldest on the books - is also available: Congress could constitutionally remove campaign finance issues from the Supreme Court's appellate jurisdiction.

Every first-year constitutional law student learns that under the Constitution's Article III, section 2 "Exceptions Clause," Congress has complete authority to limit the sorts of cases the Court may hear on appeal: "[T]he supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."

As the Court stated in Ex Parte McCardle in 1869: "We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words." Similarly, in 1882 it observed, "[A]ctual [appellate] jurisdiction is confined within such limits as Congress sees fit to describe."

Over one hundred bills have been introduced in Congress to limit the Supreme Court's appellate jurisdiction over various topics just since the 1940s. As recently as 2005, for example, the House passed bills precluding judicial review of the Defense of Marriage Act and of the constitutionality of the Pledge of Allegiance (neither bill passed in the Senate).

Some may object that Congress's use of the Exceptions Clause threatens judicial independence. This is a valid concern. But when the Supreme Court itself indiscriminately infringes on policy decisions appropriately left to the elected branches, Congress is justified in removing some of the Court's independence. That is the very purpose of the Exceptions Clause, after all - it was placed in the Constitution for a reason.

Some may say, moreover, that removing the Court's appellate jurisdiction in campaign finance cases is an instance of trying to close the door after the horse is already out of the barn. True enough - Citizens United is on the books. But removing the Court's appellate jurisdiction in future campaign finance cases will prevent the Court from interfering with Congress's future efforts to restore its century-long effort to curb the negative effects of massive infusions of corporate cash into political campaigns.

In short, Congress has the constitutional authority to limit the Supreme Court's appellate jurisdiction in campaign finance cases. While use of the Exceptions Clause should not be undertaken lightly - judicial review is vitally important for checking majority excesses - when the Supreme Court so egregiously oversteps its bounds as it did in Citizens United, Congress's exercise of its Exceptions clause power is entirely appropriate.

McDonald v. Chicago - Essay in Cardozo Law Review de novo Online Journal

2010-01-29T09:51:00.005-05:00

The Cardozo Law Review de novo online journal just published my essay entitled "The Potentially Expansive Reach of McDonald v. Chicago: Enabling the Privileges or Immunities Clause," in a feature it entitles "Firearms, Inc." The essay may be seen here.

The essay briefly reviews the sad history of how the Supreme Court buried the Privileges or Immunities clause in 1873, just five years after its birth; then offers a possible doctrinal approach were the Court to move forward in finally giving proper effect to the Privileges or Immunities clause.

Health Care; Corporate Speech Case

2010-01-23T14:47:00.007-05:00

I'm on deadline trying to finish a book, but just a few thoughts about the Massachusetts election and the Supreme Court corporate speech case:

-The Congressional Democrats' incompetence. After last year's election the Democrats controlled both houses of Congress, WITH a filibuster-proof 60% majority in the Senate; and yet, they were unable to get their s**t together enough to pass a healthcare bill. And now that they've lost their 60%, they're folding up like a cheap tent - failing to recognize they were elected to make meaningful change. In the face of the criticism from obstructionist Republicans, they cave. If Democrats couldn't get it done under these conditions, they'll never get it done - and they'll deserve to be swept out of office in the next elections.

On this topic see also Paul Krugman in the Times in "Do the Right Thing":

"A message to House Democrats: This is your moment of truth. You can do the right thing and pass the Senate health care bill. Or you can look for an easy way out, make excuses and fail the test of history.... Ladies and gentlemen, the nation is waiting. Stop whining, and do what needs to be done."

-Corporate Speech Case: Thursday's Citizens United opinion by the Supreme Court entirely distorts the First Amendment by extending broad free speech principles to corporations. NOTHING in the Constitution extends constitutional rights to corporations. Over 100 years ago the Court (erroneously) extended the definition of the word "person" in the 5th and 14th amendment Due Process clauses to apply to corporations; and, ever since, we've had many anomalous court decisions as a result. The Citizens United case is the logical endpoint of that doctrine - and now corporations, with their disproportionate money-making capabilities, will be able to spend without limit in political campaigns.

Think about it - we all know how powerful any message sent through the broadcast media can be. Ordinary individuals simply do not have the resources to compete in this forum, so the result of corporations (which naturally favor - surprise! - conservative Republican viewpoints) having no limits on campaign spending will be to create an unlevel, skewed playing field.

It's disingenuous for the Court to say that meaningful limits on speech violate the First Amendment. Even assuming the ludicrous that a corporation is a “person” in the fullest constitutional sense, all of any person’s constitutional rights are subject to reasonable limits so long as the limits are narrowly tailored and serve a compelling governmental purpose – a cardinal principle the Court chooses to ignore in Citizens United.

Same-Sex Marriage Case in California

2010-01-18T19:40:00.005-05:00

In "An Odd Couple Defends Couples That Some (Oddly) Find Odd" in yesterday's New York Times, Maureen Dowd describes the intriguing lawyer-team of Ted Olsen and David Boies (former adversaries in the 2000 Bush v. Gore case), who are now arguing together against the constitutionality of California's Proposition 8 in the U.S. District Court in California.

“'Ted Olson and David Boies, so what are they up to?'” Dowd reports Olson mock querying, "summarizing the confusion and conspiracy theories that their union inspired.

"As the sun set on the Bay Bridge behind him and the curtain dropped on the first week of the dramatic trial to challenge the constitutionality of the state’s ban on same-sex marriage, Olson reviewed the case: 'We’re going to explain why allowing same-sex couples to have that same right that the rest of us have is not going to hurt heterosexual marriages. It has no point at all except some people don’t want to recognize gays and lesbians as normal, as human beings.'

"Boies, wearing a flag pin on his lapel, said that the state of California is engaged in 'gay bashing.' He spoke intensely about the gay and lesbian plaintiffs, who offered poignant testimony about their loving relationships and about wanting to be liked and accepted: 'These people are people you would want your child to grow up and marry. You can be a child molester and get married. You can be a wife beater and get married. You can be a child-support scofflaw and get married. The importance of that emotional relationship is so vital to the pursuit of happiness that even prison felons, who aren’t really procreating, have a right to get married.'

"Noting the rabid effort being made to restrict marriage to only those who can protect its sanctity, a chuckling Olson reeled off some names: 'Tiger Woods, Eliot Spitzer, Mark Sanford, Kobe Bryant, Bill Clinton.' ...

"'I think there’s something the matter with you if you don’t care enough to feel the suffering that they’ve been through and if you’re not emotionally upset about the fact that we’re doing an immense amount of harm to people,' he said. 'We’re not treating them like Americans. We’re not treating them like citizens.'

"Boies said the problem was generational, and they have to try the case before judges their own age who might find it hard to move beyond old prejudices. ....

"'I’ve got a grandson who’s a senior in college, and he can’t imagine fighting over this issue,' Boies said. 'It’s like explaining to my daughter that there was a time when women didn’t have the right to vote and couldn’t own property.'"

Indeed. Today we look back on state laws that forbade inter-racial marriage with a degree of disbelief. But it was just forty years ago that the Supreme Court in Loving v. Virginia struck down the laws of 16 states that did just that. Forty or fifty years from now, we will look back on today's discrimination against same-sex marriage with similar disbelief.

Dowd continues: "The anti-gay-marriage proponents whipped up a moral frenzy in 2008, suggesting conjugal parity would harm children, summon the devil, tear down churches and melt civilization. But Olson argued in his opening statement that the discrimination gays experience 'weakens our moral fiber in this country.'

"While Charles Cooper, the lawyer on the anti-gay-marriage side, cited President Obama’s declaration that marriage should only be between a man and a woman, Olson noted that Obama’s parents could not have married in Virginia before he was born.

"I asked the lawyers if they were disappointed that the president who had once raised such hope in the gay community now seemed behind the curve.

“'Damned right,' Boies snapped. 'I hope my Democratic president will catch up to my conservative Republican co-counsel.'

"Olson added: 'I’m not talking about Obama, but that’s what’s so bad about politicians. They say, ‘I must hasten to follow them, for I am their leader.’

"Obama sees himself as such a huge change that he can be cautious about other societal changes. But what he doesn’t realize is that legalizing gay marriage is like electing a black president. Before you do it, it seems inconceivable. Once it’s done, you can’t remember what all the fuss was about."

Terrific WaPo Farewell Column by Ellen Goodman

2010-01-02T15:08:00.008-05:00

After 46 years as a journalist (34 years of them writing OpEds for the Washington Post Writers Group), columnist Ellen Goodman is retiring; and she writes a terrific farewell column in yesterday's Washington Post.

Pondering what will be her response to the inevitable "what will you do now?" queries, she considers "coopt[ing] Susan Stamberg's one-word answer when she left her anchor post at NPR: 'Less.'" She is "more tempted to say, simply, 'We'll see.' After 46 years of deadlines," she concludes, "it is time to take in some oxygen, to breathe and consider."

Ms. Goodman recalls a column from three decades earlier, when she had written of another's retirement:

"'There's a trick to the Graceful Exit. It begins with the vision to recognize when a job, a life stage, a relationship is over -- and to let go. It means leaving what's over without denying its validity or its past importance in our lives.'

"'It involves a sense of future, a belief that every exit line is an entry, that we are moving on rather than out.'

"It was an odd experience to hear, let alone heed, my younger self.

"'The trick of retiring well may be the trick of living well,' I wrote back then. 'It's hard to recognize that life isn't a holding action, but a process. It's hard to learn that we don't leave the best parts of ourselves behind, back in the dugout or the office. We own what we learned back there. The experiences and the growth are grafted onto our lives. And when we exit, we can take ourselves along -- quite gracefully.'"

So what are Ms. Goodman's final concluding words in this final concluding column?

"[My younger self] knew then what I know much more intimately now," she observes. "So, with her blessing, I will let myself go. And go for it."

Well-done, Ellen Goodman, and godspeed.

"Radicals In Their Own TIme" - Introduction & Selected Excerpts

2009-12-30T23:14:00.004-05:00

I've just posted here the Introduction and excerpts from three chapters in my forthcoming book (Cambridge University Press), "Radicals in Their Own Time: Four Hundred Years of Struggle for Liberty and Equal Justice in America," on my Berkeley Press Selected Works page (http://works.bepress.com/michael_lawrence/).

Here are the first few paragraphs from the Introduction:

In teaching history, there should be extensive discussions of personalities who
benefited mankind through independence of character and judgment.
-Albert Einstein, 1953

America in the twenty-first century exists in a perpetual Dickensian sort-of “best
of times, worst of times” state when it comes to putting into practice the sacred principles
of liberty and equal justice. On one hand, the once-unthinkable occurred in November
2008 when the nation – a land that had permitted and promoted human slavery for more
than half of its four hundred year history - elected an African-American man president.
The symbolic importance alone of placing Barack Obama at the pinnacle of power in the
United States, given its sordid past practices, cannot be understated. Yet, on the very
same day, a majority of voters in the most populous state in the union, California, voted
to deny thousands of their fellow citizens, gay Americans, the equal right to marry. The
California experience is only one of numerous legislative-judicial struggles beginning to
play out on the issue of gay marriage in other states around the nation.

Taking the long view, if history is any guide (and it is), there is little doubt the
discriminatory laws against gay marriage will eventually end up on history’s scrapheap.
The current battles will soon go the way of those of some fifty years ago involving
interracial marriage, during which one Virginia trial court, in upholding the state’s antimiscegenation statute, reasoned: “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference
with his arrangement there would be no cause for such marriages. The fact that he
separated the races shows that he did not intend for the races to mix.” Most Americans
today would view such language with a mixture of shock and disbelief - but it was not
long ago that legislative majorities in sixteen states gave official voice to such ignorant
biases.

Fifty years from now, the current arguments against gay marriage will seem
similarly archaic. As the Reverend Martin Luther King, Jr. limned, “the arc of the moral
universe is long; but it bends toward justice.” For all its faults, the United States
Constitution has, over time, provided a one-way ratchet toward greater, not lesser, liberty
and equal justice – every constitutional amendment but one (the eighteenth, itself
repealed by the twenty-first just fifteen years later), for example, has, if anything,
expanded Americans’ freedoms.

America’s story is remarkable: a Nation, sprouting from the seeds of
Enlightenment principles where “tolerance was a moral virtue, even a duty; no longer
merely the prerogative of calculating monarchs, but a fundamental element of the ‘rights
of man.’” For the first time in history a people - coming together toward the common
goal of liberty and equal justice, and clearly cognizant of human nature’s split personality
between good (freedom) and evil (tyranny and oppression) - created a government
explicitly designed to resolve the tension in favor of freedom.

That is the myth, anyway. But all is not well in the land of milk and honey; for
America’s constitutional structure has failed to thwart government’s moves to the darker
side: its shameful history of slavery and apartheid; its past oppression of women; its
systematic subjugation of Native Americans in violation of sacred treaty promises; its
pervasive discrimination against immigrants and homosexuals; and, among other currentday
repressions, its curtailments of civil liberties and inexcusable use of torture in the ill-considered “war on terror.” Consider also American geopolitics of the last hundred years: World War I Censorship (Congress’s and President Wilson’s 1917-1918 Espionage and Alien Acts imposing egregious punishments on political speech); World War II Nativism (the President’s authorizing the military to force 120,000 people of Japanese ancestry, two-thirds of them American citizens, from their homes and to quarantine them in internment camps for nearly three years; Cold War McCarthyism (powerful committees of both the United States Senate and House of Representatives conducting modern-day witch-hunts of thousands of American citizens accused of having communist sympathies); and Millennial Cheneyism (the executive branch aggressively
exceeding long-accepted constitutional limits on its power - even while operating in a
system that separates powers in order to provide checks and balances on each co-equal
branch).

In each case, prejudice, greed, and political expediency took hold before being
beaten back – for the time being. It is a constant struggle. As much as America has
accomplished in advancing humankind’s perpetual quest for greater Freedom, it has
never completely lived up to its own promise, for whatever reason – whether because of
bitter class wars (Howard Zinn), its economically-motivated Constitution (Charles
Beard), or some combination of these or other factors.

Which viewpoint more accurately describes the true America - the mythic
common-interest pursuit-of-equal-liberty view; the grittier class-warfare explanation; or
the more cynical economic-interest rationale? The reality is that there are elements of
accuracy in each. And it is useful to keep them all in mind: Lest we become swept-up in
misty patriotic myth, we should recall America’s ignoble history of injustices and
intolerance; or, conversely, lest we lose hope, we should remember that the myth and
partial reality of America as beacon of freedom has for centuries truly inspired millions
around the world. In the end, the goals represented in the positive myth are worth
fighting for, both idealistically and practically, for they advance our individual and
collective humanity – and offer a model of ambition, idealism and hope for future
generations.
...

Senate Passes Health Care Insurance Reform - Reflections

2009-12-25T16:15:00.004-05:00

Paul Krugman's column in today's New York Times, "Tidings of Comfort," offers a cogent evaluation of the Senate's momentous passage yesterday of Health Insurance Reform. Commenting that the legislation "will make America a much better country," Krugman divides its critics into three categories:

"First, there’s the crazy right, the tea party and death panel people — a lunatic fringe that is no longer a fringe but has moved into the heart of the Republican Party. In the past, there was a general understanding, a sort of implicit clause in the rules of American politics, that major parties would at least pretend to distance themselves from irrational extremists. But those rules are no longer operative. No, Virginia, at this point there is no sanity clause.

"A second strand of opposition comes from what I think of as the Bah Humbug caucus: fiscal scolds who routinely issue sententious warnings about rising debt. By rights, this caucus should find much to like in the Senate health bill, which the Congressional Budget Office says would reduce the deficit, and which — in the judgment of leading health economists — does far more to control costs than anyone has attempted in the past.

"But, with few exceptions, the fiscal scolds have had nothing good to say about the bill. And in the process they have revealed that their alleged concern about deficits is, well, humbug. As Slate’s Daniel Gross says, what really motivates them is 'the haunting fear that someone, somewhere, is receiving social insurance.'

"Finally, there has been opposition from some progressives who are unhappy with the bill’s limitations. Some would settle for nothing less than a full, Medicare-type, single-payer system. Others had their hearts set on the creation of a public option to compete with private insurers. And there are complaints that the subsidies are inadequate, that many families will still have trouble paying for medical care.

"Unlike the tea partiers and the humbuggers, disappointed progressives have valid complaints. But those complaints don’t add up to a reason to reject the bill. Yes, it’s a hackneyed phrase, but politics is the art of the possible.

"The truth is that there isn’t a Congressional majority in favor of anything like single-payer. There is a narrow majority in favor of a plan with a moderately strong public option. The House has passed such a plan. But given the way the Senate rules work, it takes 60 votes to do almost anything. And that fact, combined with total Republican opposition, has placed sharp limits on what can be enacted.

"If progressives want more, they’ll have to make changing those Senate rules a priority. They’ll also have to work long term on electing a more progressive Congress. But, meanwhile, the bill the Senate has just passed, with a few tweaks — I’d especially like to move the start date up from 2014, if that’s at all possible — is more or less what the Democratic leadership can get.

"And for all its flaws and limitations, it’s a great achievement. It will provide real, concrete help to tens of millions of Americans and greater security to everyone. And it establishes the principle — even if it falls somewhat short in practice — that all Americans are entitled to essential health care.

"Many people deserve credit for this moment. What really made it possible was the remarkable emergence of universal health care as a core principle during the Democratic primaries of 2007-2008 — an emergence that, in turn, owed a lot to progressive activism. (For what it’s worth, the reform that’s being passed is closer to Hillary Clinton’s plan than to President Obama’s). This made health reform a must-win for the next president. And it’s actually happening.

"So progressives shouldn’t stop complaining, but they should congratulate themselves on what is, in the end, a big win for them — and for America."

McDonald v. Chicago - Law Professors' Amicus Brief

2009-12-15T18:29:00.004-05:00

A few weeks ago, after the submission of the Petitioners' Brief in the McDonald v. Chicago case in the U.S. Supreme Court (on which I posted previously), a group of eight law professors - including Professors Richard Aynes (Akron), Jack Balkin (Yale), Randy Barnett (Georgetown), Steven Calabresi (Northwestern), Michael Curtis (Wake Forest), William Van Alstyne (William & Mary), Adam Winkler (UCLA) and I - submitted an amicus brief on the case through the Constitutional Accountability Center (CAC).

The brief is available here.

Obama Approach to Governing; Afghanistan Policy

2009-12-10T09:22:00.006-05:00

David Ignatius's Washington Post column today, "More Than an Orator-in-Chief," provides an intriguing take on President Obama's approach to governing.

Ignatius reports that at a Dec. 1 luncheon for columnists in the White House library, Obama said:

"'If I were basing my decisions on polls, then the banking system might have collapsed, and we probably wouldn't have GM or Chrysler, and it's not clear that the economy would be growing right now.'" "Some presidents have an almost compulsive need to be popular (think Bill Clinton)," Ignatius continues. "This one is less needy, which is an advantage for him and the country."

Regarding the president's planned surge in Afghanistan, Ignatius comments, "there were the two juicy nuggets that stuck in my mind, which hint of a broader and more creative approach to governing and diplomacy. They suggest the strategic thinking in the back of our professorial president's mind....

[First, Obama said:] 'Part of the goal of my presidency is to take the threat of terrorism seriously but expand our notions of security so that it includes improving our science and technology, making sure our schools work, getting serious about clean energy, fixing our health-care system, stabilizing our deficit and our debt.' This may sound like boilerplate, Ignatius suggests, "but it's actually a pretty good manifesto for governing."

"Making responsible policy decisions isn't easy, and in the case of bailing out bankers or sending more troops to Afghanistan, it will leave nearly everyone unhappy. But Obama seems newly comfortable making enemies if he thinks he's doing the right thing."

The second insight involves the role of the Taliban. Responding to Ignatius's question about whether he would back reconciliation with the Taliban, Obama said: "'We are supportive of the Afghan government's efforts to reintegrate those elements of the Taliban that . . . have abandoned violence and are willing to engage in the political process.'

"Obama sent more signals that night at West Point: He dropped the language from his March 27 speech on Afghanistan insisting the Taliban's core 'must be defeated' and promised only to 'reverse the Taliban's momentum and deny it the ability to overthrow the government.' He also pledged to 'support efforts by the Afghan government to open the door to those Taliban' who are ready to make peace.

"The Taliban gave an interesting response a few days later on its Web site, Alemarah.info. It said the group 'has no agenda of meddling in the internal affairs of other countries and is ready to give legal guarantee if the foreign forces withdraw from Afghanistan.' Now, what did that mean? Was it a hint the Taliban might break with al-Qaeda? I don't know, but I hope the White House is asking Saudi Arabia and Pakistan to find out."

Ignatius concludes: "Obama has a cool and detached style that makes people forget, sometimes, that he is an innovator and a change agent. He would be wise to show the country less of the mental teleprompter and more of the fire inside."

Something on Which We Can All Agree - Less Government in Criminal Justice

2009-11-24T12:23:00.005-05:00

At last - something on which the right and left can agree....

In "Right and Left Join Forces on Criminal Justice," Adam Liptak describes how both conservatives and liberals are coming around to a position of agreement that government exercises too much power on matters of criminal justice. (The notion of excessive government power is something I've discussed here previously.)

It is great news for all libertarians - civil, progressive, minimalist alike - that conservatives are coming around from their "tough-on-crime" posture they've held since the days of Nixon, to recognizing that government simply too involved in criminalizing individual activity.

Liptak reports:

"'It’s a remarkable phenomenon,' said Norman L. Reimer, executive director of the National Association of Criminal Defense Lawyers. 'The left and the right have bent to the point where they are now in agreement on many issues. In the area of criminal justice, the whole idea of less government, less intrusion, less regulation has taken hold.'"

"Edwin Meese III, who was known as a fervent supporter of law and order as attorney general in the Reagan administration, now spends much of his time criticizing what he calls the astounding number and vagueness of federal criminal laws.

"Mr. Meese once referred to the ACLU as part of the 'criminals’ lobby.' These days, he said, 'in terms of working with the ACLU, if they want to join us, we’re happy to have them.'

"Dick Thornburgh, who succeeded Mr. Meese as attorney general under President Ronald Reagan and stayed on under President George Bush, echoed that sentiment in Congressional testimony in July.

“'The problem of overcriminalization is truly one of those issues upon which a wide variety of constituencies can agree,' Mr. Thornburgh said. 'Witness the broad and strong support from such varied groups as the Heritage Foundation, the Washington Legal Foundation, the National Association of Criminal Defense Lawyers, the A.B.A., the Cato Institute, the Federalist Society and the ACLU.'"

A Heritage Foundation report shows that there are "more than 4,400 criminal offenses in the federal code, many of them lacking a requirement that prosecutors prove traditional kinds of criminal intent."

Liptak continues: "Harvey A. Silverglate, a left-wing civil liberties lawyer in Boston, says he has been surprised and delighted by the reception that his new book, 'Three Felonies a Day: How the Feds Target the Innocent,” has gotten in conservative circles. (A Heritage Foundation official offered this reporter a copy.)

"The book argues that federal criminal law is so comprehensive and vague that all Americans violate it every day, meaning prosecutors can indict anyone at all.

“'Libertarians and the civil liberties left have always had some common ground on these issues,' said Radley Balko, a senior editor at Reason, a libertarian magazine. 'The more vocal presence of conservatives on overcriminalization issues is really what’s new.' ... 'Conservatives now recognize the economic consequences of a criminal justice leviathan,' said Erik Luna, a law professor at Washington and Lee University."

It is a rarity for folks from across the political spectrum to find common ground; but it is encouraging that there seems to be some broadening agreement on lessening the proliferation of criminal statutes.

McDonald v. Chicago - Petitioner's Brief

2009-11-18T08:48:00.003-05:00

The Petitioner's Brief in the McDonald v. Chicago case, involving whether the 2d Amendment applies to the states, has been filed in the Supreme Court. See it here.

The brief spends 66 of its 73 pages arguing that the proper constitutional mechanism for incorporating the 2d amendment is the fourteenth amendment privileges or immunities clause (a provision that was improperly buried by the Supreme Court 136 years ago, in The Slaughter-House Cases - as I've discussed in these pages previously); then makes the conventional due process argument in the remaining pages.

Alan Gura, the attorney for the petitioners, recognizes the rare opportunity this case provides to right a monumental wrong that was perpetrated by a Southern-sympathetic Court after the Civil War, and he's done a terrific job making the arguments in this brief.

(My two articles on this topic - "Second Amendment Incorporation Through the Fourteenth Amendment Privileges or Immunities and Due Process Clauses" (in the 2007 Missouri Law Review); and "Rescuing the Privileges or Immunities Clause: How 'Attrition of Parliamentary Processes' Begat Accidental Ambiguity; How Ambiguity Begat Slaughter-House" (in the forthcoming 2009 William & Mary Bill of Rights Journal) - are cited in this petitioner's brief at pages 29 and 52, respectively.)

Destroy the Filibuster

2009-11-12T12:25:00.006-05:00

Anybody besides me disgusted and discouraged with the healthcare debate?

Don't get me started.... Let's just limit the topic for the moment to the entire idea that 41 senators can essentially destroy legislation a majority of Americans AND a majority of Congress want. This is egregiously anti-democratic. Harold Meyerson in his "The Do Nothing Senate" column in the Nov. 11 Washington Post describes the problem well:

"A catastrophic change has overtaken the Senate in recent years. Initially conceived as the body that would cool the passions of the House and consider legislation with a more Olympian perspective, the Senate has become a body that shuns debate, avoids legislative give-and-take, proceeds glacially and produces next to nothing. ... With each passing day, the Senate becomes more of a mockery of the principle of majority rule -- democracy's most fundamental precept."

So it's time to destroy the filibuster. (See, e.g., Chris Bowers' "Open Left" blog of November 10.) It used to be that the filibuster was used only rarely; now it is used on virtually any legislation - and this outrageously undemocratic practice is standing in the way of Progress.

Free Radicals - Individual Efforts Can Change the World

2009-10-28T09:41:00.005-04:00

The premise of my forthcoming book from Cambridge University Press, Radicals in Their Own Time: Four Hundred Years of Struggle for Liberty and Equal Justice in America,* is that the efforts (mostly unwelcomed, at the time) of certain individuals throughout the nation's history have played huge roles in first identifying, then guaranteeing the freedoms we enjoy today. In this book I focus on the lives of five so-called "free radicals": Roger Williams, Thomas Paine, Elizabeth Cady Stanton, W.E.B. Du Bois and Vine Deloria.

Yesterday's column by Bob Herbert in the NY Times, "Changing the World," speaks to the mind-set of these sorts of people:

"The tendency now is to assume that there is little or nothing ordinary individuals can do about the conditions that plague them.

"This is so wrong. It is the kind of thinking that would have stopped the civil rights movement in its tracks, that would have kept women in the kitchen or the steno pool, that would have prevented labor unions from forcing open the doors that led to the creation of a vast middle class....

"Being an American has become a spectator sport. Most Americans watch the news the way you’d watch a ballgame, or a long-running television series, believing that they have no more control over important real-life events than a viewer would have over a coach’s strategy or a script for 'Law & Order.'

"With that kind of attitude, ... Rosa Parks would have gotten up and given her seat to a white person, and the Montgomery bus boycott would never have happened....

"The nation’s political leaders and their corporate puppet masters have fouled this nation up to a fare-thee-well. We will not be pulled from the morass without a big effort from an active citizenry, and that means a citizenry fired with a sense of mission and the belief that their actions, in concert with others, can make a profound difference.

"It can start with just a few small steps. Mrs. Parks helped transform a nation by refusing to budge from her seat. Maybe you want to speak up publicly about an important issue, or host a house party, or perhaps arrange a meeting of soon-to-be dismissed employees, or parents at a troubled school.

"It’s a risk, sure. But the need is great, and that’s how you change the world."

Individuals like Williams, Paine, Cady Stanton, Du Bois and Deloria had plenty of reason to be discouraged - and they sometimes were, to the point of despondency. They bent, but they didn't break - and they ended up changing the world.

Who will be the free radicals remembered from our current era?

* Release date: summer/fall 2010

Kudos to Harry Reid for Including Public Option in Proposed Health Care Bill

2009-10-27T08:34:00.008-04:00

Yesterday's announcement by Senate Majority Leader Harry Reid that he will include a government-run insurance plan (a public-option) in the health care bill that will now be debated in the Senate is excellent news.

Contrary to naysayers' arguments, including a public option does nothing to limit the ability of private insurers to compete - unless by "competition" one means the ability to impose unfair conditions on customers because they have nowhere else to turn under the current oligarchy.

The bottom-line is that a government-run public option would keep the private insurers honest, resulting in better, less expensive coverage for all.

Now the Democrats need to put aside their differences to get behind and pass a plan with the public option. One interesting aspect of Reid's proposal would allow individual states to "opt-out," & refuse to participate in the public option - a perfectly reasonable provision that respects America's federalist structure. This could lead to a very interesting side-show in the states - how many citizens would vote with their feet and leave states that opted out??

Sure, it would be nice if a Republican or two (or even more) would take off their partisan blinders for a moment and consider what Americans truly want and need instead of playing the same old politics, but given the experience of the recent past we won't hold our breath - so now it's up to the Senate Democrats to do the right thing and pass this bill.

Obama Needs to Take Stands on Principle

2009-10-24T16:01:00.009-04:00

In her column last Sunday, "Fie, Fatal Flaw," Maureen Dowd makes a good point that President Obama does not want to compromise so much that his ideals get blurred out of recognition.

Quoting Leon Wieseltier in the New Republic, she comments: “'The demotion of human rights by the common-ground presidency is absolutely incomprehensible. The common ground is not always the high ground. When it is without end, moreover, the search for common ground is bad for bargaining. It informs the other side that what you most desire is the deal — that you will never acknowledge the finality of the difference, and never be satisfied with the integrity of opposition. There is a reason that ‘uncompromising’ is a term of approbation.'"

Dowd continues, "F.D.R. asked to be judged by the enemies he had made. But what of a president who strives to keep everyone in some vague middle ground of satisfaction or dissatisfaction, without ever offending anyone?

"F.D.R. asked to be judged by the enemies he had made. But what of a president who strives to keep everyone in some vague middle ground of satisfaction or dissatisfaction, without ever offending anyone?

"White House advisers don’t seem worried yet that Obama’s transformational aura could get smudged if too much is fudged. They say it is the normal tension between campaigning on a change platform and actually accomplishing something in office.

"Yet Obama’s legislative career offers cautionary tales about the toll of constant consensus building.

"In Springfield, he compromised so much on a health care reform bill that in the end, it merely led to a study. In Washington, he compromised so much with Senate Republicans on a bill to require all nuclear plant owners to notify state and local authorities about radioactive leaks that it simply devolved into a bill offering guidance to regulators, and even that ultimately died. Now the air is full of complaints that Obama has been too cautious on health care, Afghanistan, filling judgeships, ending “don’t ask, don’t tell,” repealing the Defense of Marriage Act and rebuilding New Orleans; that he has conceded too much to China, Iran, Russia, the Muslim world and the banks."

For the President to fulfill his promise, every now and then he needs to take a stand on core principle - especially when we're talking about human rights. But Obama appears to be all-too-ready to compromise even there. As 73-year old former Czech president Vaclev Havel said recently about Obama's caving to Chinese dictators by failing to meet with the Dalai Lama during his recent visit to Washington, “It is only a minor compromise. But exactly with these minor compromises start the big and dangerous ones, the real problems.”

Huge News - Supreme Court Grants Certiorari in McDonald v. Chicago re: Privileges or Immunities

2009-09-30T11:07:00.009-04:00

Word just in that the U.S. Supreme Court has granted certiorari in (i.e., decided to hear) the McDonald v. Chicago case discussed here previously - and, most importantly, did not appear to have limited the arguments to due process, as Chicago had suggested.

Specifically, here's how the issue is framed in today's order (scroll down to Docket No. 08-1521): "Whether the Second Amendment is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home."

Please forgive the momentary gloat, but this is precisely the question raised (which my thesis answers in the affirmative) in my 2007 Missouri Law Review article, entitled (in language virtually identical to the Court's stated issue): "Second Amendment Incorporation Through the Fourteenth Amendment Privileges or Immunities and Due Process Clauses."

So, the Privileges or Immunities argument we've been pushing, for so long, is ON in the Supreme Court. This is huge.

Nordyke v. King Rehearing

2009-09-28T14:00:00.005-04:00

Last Thursday the Ninth Circuit Court of Appeals re-heard oral arguments in the case of Nordyke v. King (discussed here previously), regarding whether the Fourteenth Amendment incorporates the Second Amendment to apply to the states.

As reported Friday on the Constitutional Accountability Center's "Text and History Blog,"

"Just a few hours after the 11-judge en banc panel heard argument, Chief Judge Alex Kozinski issued an order holding off on further consideration of the case until the Supreme Court disposes of three outstanding petitions for certiorari in similar cases –McDonald v. City of Chicago (No. 08-1521), in which CAC [and law professors Richard Aynes, Jack Balkin, Randy Barnett, Michael Curtis, Michael Lawrence, and Adam Winkler] filed an amicus brief urging Supreme Court review; National Rifle Ass’n v. City of Chicago (No. 08-1497), the companion case to McDonald, also out of the Seventh Circuit; and Maloney v. Rice, (No. 08-1592), the comparable New York “numchucks” case coming out of the Second Circuit. All three of these petitions present challenges to local laws restricting the sale or possession of arms, and are asking the Court to determine whether, and if so how, the individual right to bear arms is “incorporated” against state and local action.

"These three petitions are currently scheduled to be considered at the Supreme Court’s so-called “long conference” on September 29. The Court is expected to announce its decision on whether to hear the cases soon thereafter.

"The Ninth Circuit’s action suggests that the Supreme Court should not wait any longer for the Circuit courts to weigh in on the incorporation question. So far, both the Second and Seventh Courts have found no incorporation, citing binding Supreme Court precedent, thus there is technically no “split” on the matter. While the Court frequently waits until a pronounced split has developed among the federal circuit courts before granting review, here, the lower courts have indicated that they feel this is a matter for the High Court to decide."

Just Do It - Obama Needs Backbone for Meaningful Healthcare Reform, a la FDR

2009-09-04T09:17:00.013-04:00

In "Roosevelt, the Great Divider" in yesterday's New York Times, Jean Edward Smith explained that much of the meaningful progressive reform accomplished during the New Deal was done by a pugnacious president willing to exercise his majority in Congress even though he knew he would be highly criticized by his opponents.

“Never before in all our history have these forces been so united against one candidate as they stand today,” Franklin Delano Roosevelt said on national radio before the 1936 election, Smith recalls. “They are unanimous in their hatred for me — and I welcome their hatred.”

When he was seeking to make major progressive reform, FDR did not waste his time trying to work with the deeply entrenched obstructionist minorities interested only in maintaining an unjust status quo. He did not consult giant utilities, for example, when he sought to create the Tennessee Valley Authority which would provide affordable electricity throughout the poor South. He did not ask for the permission of Wall Street when he proposed the Securities and Exchange Commission to curb greed. Had he caved to the loud minority who believe that government has no role in providing a social safety net, we would have no Social Security. His arguments for maximum hours and minimum wage laws and the right to bargain collectively were over the heated objections of American business. And, to show that it was not always traditionally conservative vested interests that he faced down, organized labor was vociferous in its objection to the Civilian Conservation Corps because of the low wages paid by the corps.

In short, Smith explains, "majority rule, as Roosevelt saw it, did not require his opponents’ permission." He assuaged his Democratic colleagues to maintain his majorities, but "his Republican opponents were relegated to the political equivalent of Siberia.... [He] lambasted the 'economic royalists' who had gained control of the nation’s wealth. To Congress he boasted of having 'earned the hatred of entrenched greed.' In another speech he mocked 'the gentlemen in well-warmed and well-stocked clubs' who criticized the government’s relief efforts.... Roosevelt understood that governing involved choice and that choice engendered dissent. He accepted opposition as part of the process."

By contrast, President Obama's "fixation on securing bipartisan support for health care reform suggests that the Democratic Party has forgotten how to govern and the White House has forgotten how to lead." Smith suggests "[i]t is time for the Obama administration to step up to the plate and make some hard choices. Health care reform enacted by a Democratic majority is still meaningful reform. Even if it is passed without Republican support, it would still be the law of the land."

Really, what does Obama have to lose? Face it: the Right, marching to the tune of the likes of Rush Limbaugh, Glenn Beck, Bill O'Reilly, and Michael Steele, is never going to play ball. Their main agenda is political - whatever it takes to bring Obama down, they're for. So Obama might as well stand up, like FDR, and say, "to heck with 'em - we're going to pass reform with teeth that will create the sort of humane society of which we are all worthy."

What does that mean? As David Brooks suggests in his column today, "Let's Get Fundamental": "There are many people telling [President Obama] to go incremental. They’re telling him to just enlarge the current system a bit and pay for it by pounding down a few Medicare fees. But did Barack Obama really get elected so he could pass the Status Quo Sanctification and Extension Act?

"This is not the time to get incremental. It’s the time to get fundamental. Reform the incentives. Make consumers accountable for spending. Make price information transparent. Reward health care, not health services. Do what you set out to do. Bring change."

Much of what has made America great was brought about by progressive legislation. If President Obama wants to be a great president who makes lasting, meaningful progressive change, he should stand up, be brave (in his own way, if not in the outright combative manner of FDR), and commit to a strong progressive plan. Accept that the ever-present regressive 40% of American society will bitch and moan about it (but of course they will take full advantage of its benefits once available) - they'll never change, so might as well just move forward despite them.

Article in William & Mary Bill of Rights Journal: Rescuing the Fourteenth Amendment Privileges or Immunities Clause

2009-08-26T10:21:00.006-04:00

I'm pleased to report that my article entitled "Rescuing the Fourteenth Amendment Privileges or Immunities Clause: How "Attrition of Parliamentary Processes" Begat Accidental Ambiguity; How Ambiguity Begat Slaughter-House" will be published in the upcoming volume of the William & Mary Bill of Rights Journal.

The article is available at SSRN and BePress Selected Works.

Here is the abstract:

"This Essay addresses a topic of great academic and practical interest currently facing the Supreme Court: whether the Fourteenth Amendment Privileges or Immunities Clause, which has lain dormant since the Court's erroneous 1873 SlaughterHouse Cases decision, should be resurrected in order to apply the Second Amendment to the States.

The Essay makes the unique argument that the textual basis for the SlaughterHouse Court's holding regarding the clause - i.e., the lack of parallel textual construction in the Section One's first two sentences regarding citizenship - was in fact the wholly unintentional product of what we might call "attrition of parliamentary processes." This analysis is not new to the Supreme Court. Borrowed from an oral argument made before the U.S. Supreme Court in 1882 by Roscoe Conkling (a member in 1866 of the Joint Committee on Reconstruction), the analysis played a vital role in leading the Court ot its 1898 conclusion that the word "person" in Section One's Due Process Clause should be read to include artificial persons, including corporations - an interpretation substantially broader than that given previously by the SlaughterHouse majority.

Just as the Court in the last decades of the nineteenth century corrected the Court's too-narrow interpretation of Section One "personhood," so it should now - finally - begin to correct its earlier misreading of the distinction in Section One between U.S. and state citizenship in order to restore the privileges or immunities clause to its full intended effect of applying the Bill of Rights (and more) to the States."

(I have previously posted here on related topics.)

Time to Legalize Drugs - Sensible WaPo Article

2009-08-17T10:37:00.005-04:00

Today's Washington Post contains a well-reasoned OpEd entitled "It's Time to Legalize Drugs" by two former Baltimore City police officers and members of Law Enforcement Against Prohibition. This is something I've blogged on before here, and this OpEd makes the case yet again.

Written by Peter Moskos (a professor at John Jay College of Criminal Justice and the author of "Cop in the Hood") and Neill Franklin, (a 32-year law enforcement veteran), the OpEd explains that:

"after years of witnessing the ineffectiveness of drug policies -- and the disproportionate impact the drug war has on young black men -- we and other police officers [have] begun to question the system.

"Cities and states license beer and tobacco sellers to control where, when and to whom drugs are sold. Ending Prohibition saved lives because it took gangsters out of the game. Regulated alcohol doesn't work perfectly, but it works well enough. Prescription drugs are regulated, and while there is a huge problem with abuse, at least a system of distribution involving doctors and pharmacists works without violence and high-volume incarceration. Regulating drugs would work similarly: not a cure-all, but a vast improvement on the status quo.

"Legalization would not create a drug free-for-all. In fact, regulation reins in the mess we already have. If prohibition decreased drug use and drug arrests acted as a deterrent, America would not lead the world in illegal drug use and incarceration for drug crimes. "
...

Moskos and Franklin continue, "We simply urge the federal government to retreat. Let cities and states (and, while we're at it, other countries) decide their own drug policies. Many would continue prohibition, but some would try something new. California and its medical marijuana dispensaries provide a good working example, warts and all, that legalized drug distribution does not cause the sky to fall.

"Having fought the war on drugs, we know that ending the drug war is the right thing to do -- for all of us, especially taxpayers. While the financial benefits of drug legalization are not our main concern, they are substantial. In a July referendum, Oakland, Calif., voted to tax drug sales by a 4-to-1 margin. Harvard economist Jeffrey Miron estimates that ending the drug war would save $44 billion annually, with taxes bringing in an additional $33 billion.

"Without the drug war, America's most decimated neighborhoods would have a chance to recover. Working people could sit on stoops, misguided youths wouldn't look up to criminals as role models, our overflowing prisons could hold real criminals, and -- most important to us -- more police officers wouldn't have to die."

Sensible words.

Healthcare Reform - Voices of Reason from Senators Wyden & Bennett

2009-08-05T12:36:00.007-04:00

In a column entitled "How We Can Achieve Bipartisan Health Reform" in today's Washington Post, Senators Ron Wyden and Robert Bennett describe the bipartisan approach to healthcare reform that offers the best hope for getting something done on this contentious issue.

Writing for 12 senators from both sides of the aisle (including Sens. Debbie Stabenow (D-Mich.), Ted Kaufman (D-Del.), Daniel K. Inouye (D-Hawaii), Mary Landrieu (D-La.), Joseph I. Lieberman (I-Conn.), Bill Nelson (D-Fla.), Judd Gregg (R-N.H.), Michael D. Crapo (R-Idaho), Lindsey O. Graham (R-S.C.) and Lamar Alexander (R-Tenn.)), they rightly state that "It's time to stop trying to figure out what pollsters say the country wants to hear from us and focus on what the country needs from us. The American people can't afford for Congress to fail again."

Here are some of the details:

"Democratic activists have long campaigned for universal coverage and quality benefits. Republican activists zero in on empowering individuals and bringing market forces to the health-care system. Our approach does both. In our discussions on the Healthy Americans Act, each side gave a bit on some of its visions of perfect health reform to achieve bipartisanship.

"The Democrats among us accepted an end to the tax-free treatment of employer-sponsored health insurance; instead, everyone -- not just those who currently get insurance through their employer -- would get a generous standard deduction that they would use to buy insurance -- and keep the excess if they buy a less expensive policy.

"The Republicans agreed to require all individuals to have coverage and to provide subsidies where necessary to ensure that everyone can afford it. Most have agreed to require employers to contribute to the system and to pay workers wages equal to the amount the employer now contributes for health care. The Congressional Budget Office has reported that this framework is the only one thus far that bends the health-care cost curve down and makes it possible for the new system to pay for itself. It does this by creating a competitive market for health insurance in which individuals are empowered to choose the best values for their money and by cutting administrative costs and spreading risk across large groups of Americans.

"First, we allow all Americans to have the same kind of choices available to us as members of Congress. Today, more than half of American workers who are lucky enough to have employer-provided insurance have no choice of coverage. Members of Congress who enroll their families in the Federal Employees Health Benefits Program often have more than 10 options. This means that if members of Congress aren't happy with their family's insurance plan in 2009 or insurers raise their rates, they can pick a better plan in 2010. Our plan would give the consumer the same leverage in the health-care marketplace by creating state-run insurance exchanges through which they can select plans, including their existing employer-sponsored plan.

"Beyond giving Americans choices, our approach also ensures that all Americans will be able to keep that choice. We believe that at a time when millions of Americans are losing their jobs, members of Congress must be able to promise their constituents that "when you leave your job or your job leaves you, you can take your health care with you." Our approach ensures seamless portability."

Good stuff. Hopefully Congress can see its way clear, past all of the millions of dollars of "donations" from the healthcare industry (more like bribes - the old saying applies here, that if in a baseball game the players gave the umpires money we'd call it a bribe; but if the same happens in politics we call it a campaign donation), to do what a strong majority of the American people want and which is morally right - provide the opportunity for good healthcare insurance to all Americans at a reasonable price.

Wyden and Bennett conclude:

"Our point is not that our framework is the only way to reform the system or to reach consensus. But our effort has shown that it is possible to put politics aside and reach agreement on reforms that would improve the lives of all Americans. Insisting on any particular fix is the enemy of good legislating. A package that will entirely please neither side, but on which both can agree, stands not only the strongest chance of passage but also the best chance of gaining acceptance from the American people.

"We didn't undertake this effort because we thought it would be easy; in fact, we started working together because we knew it would be hard. Passing health reform is going to require that we take a stand against the status quo and be willing to challenge every interest group that is jealously guarding the advantages it has under the current system, because health reform isn't about protecting the current system or preserving the advantages of a few. We can't forget that we are working on life-and-death issues facing our constituents, our families, our friends and our neighbors."

Voices of reason from the U.S. Senate - how refreshing.

McDonald v. Chicago Amicus Brief - Volokh Conspiracy Link

2009-07-24T13:08:00.002-04:00

My last post described the amicus brief filed by the Constitutional Accountability Center and signed by six law professors, including myself. Here is a comment on the brief and its signers from the popular legal blog, The Volokh Conspiracy.

Supreme Court Amicus Brief in McDonald v. Chicago

2009-07-22T10:33:00.007-04:00

Following from a couple amicus curiae (friend of the court) briefs in cases before the Ninth Circuit(Nordyke v. King) and Seventh Circuit (McDonald v. Chicago), an amicus brief filed by the Constitutional Accountability Center and signed by six law professors (Richard Aynes, Jack Balkin, Randy Barnett, Michael Curtis, Adam Winkler and I) was filed on July 10 in the U.S. Supreme Court. It is available here.

The brief asks the Court to take this case (ie, grant certiorari), in order to clarify the misunderstandings that have existed ever since 1873, when the Court decided the SlaughterHouse Cases, about the scope of the fourteenth amendment privileges or immunities clause. The brief asserts, based on persuasive historical evidence, that the Court got it wrong in SlaughterHouse when it gave the privileges or immunities clause a very narrow reading; instead, the history suggests it was intended to apply broadly to apply the Bill of Rights (and more) to the States.

Drawing the Line on the Obama Administration's National Security Practices

2009-06-23T09:21:00.015-04:00

As I've stated here previously on numerous occasions, the Barack Obama presidency is a vast improvement over the disaster of the prior eight years of the Bush/Cheney administration. But nothing's perfect, including the Obama administration's positions on national security.

In particular, the Obama administration has shown a disturbing tendency to hedge on the core principles of liberty and due process that it espoused during the campaign; capitulating instead to a disturbing number of discredited Bush-era "war on terror" rationale for maintaining arguably unconstitutional practices.

Specifically:

1. "Prolonged detention" - President Obama has continued the Bush/Cheney practice of allowing indefinite detention without trial or proof of guilt. He should instead insist that all prisoners have access to a fair and speedy trial, as basic constitutional principles of due process require.

2. Transparency - President Obama showed good instincts in releasing the torture memos, but dropped the ball in blocking release of photos showing American soldiers' abuse of prisoners in Iraq and Afghanistan. When they were released several years ago, the Abu Ghraib photos exposed the systematic allowance, if not encouragement, by the Rumsfeld Defense Department (with Cheney, as usual, lurking) of a sickening culture of prisoner abuse. In that case, public outrage fueled reforms; if that needs to happen again, so be it - President Obama should stick by his commitments to transparency.

3. State Secrets doctrine - the Obama administration is perpetuating in the federal courts the "state secrets" theory developed by the Bush Administration. This doctrine holds that certain lawsuits, such as those involving allegations of extreme torture in the Bush/Cheney extraordinary rendition program, shouldn't ever go to trial, since even discussing the facts in court could threaten national security. This is ridiculous. There are all sorts of protections available to keep certain aspects of court proceedings confidential (e.g., in camera review of sensitive evidence, etc.) (When I blogged on this issue previously, in February, I was inclined to give the administration the benefit of the doubt; but no longer, given the administration's other equivocations.)

There is a temptation among supporters of President Obama to let these matters slide, on the rationale that the Obama administration's approach is, at its core, based on respect, decency and due process; and that they will not abuse the power that they are attempting to maintain.

But we must resist this temptation. We must be vigilant on these matters, and insist that the Obama administration not equivocate; because as the founders and framers well knew and repeated often, constitutional protections are not necessarily designed for the benign government (after all, the benign government will tend to respect peoples' rights and liberties), but rather for the aggressive government that tends to abuse the peoples' liberties. Lest we think the latter is not possible or likely, we need only remember Bush/Cheney, 2001-09. Bush/Cheney opened the barn door on these unconstitutional practices; Obama needs to close the door and rein in the horses before they permanently escape.

Yes, President Obama is a pragmatist by nature; and politically that's probably a good thing. But on the "liberty" side of the progressive-liberty equation, some things are non-negotiable, such as due process - and the sorts of issues upon which the president is now equivocating go to the heart of due process.

Specifically, the fifth amendment to the Constitution specifies: "nor shall any person ... be deprived of life, liberty, or property, without due process of law." At the very foundation of the Anglo-American concept of due process (with roots in 1215 Magna Carta, the 1628 Petition of Right and the 1688 English Bill of Rights) is the principle that if the King/government is to hold a person against his or her will, the person must be given a fair and meaningful hearing. The Constitution memorializes this concept in a number of provisions, including the Article I, Section 9 habeas corpus clause; and the numerous criminal procedural provisions in the Fourth, Fifth, Sixth and Eight Amendments of the Bill of Rights. The practices now advocated by the Obama administration - indefinitely holding prisoners, keeping evidence secret, & preventing matters from going to trial - run disturbingly afoul of these core constitutional guarantees.

History will remember President Obama more kindly if he resolutely and unflinchingly restores American principles of liberty and due process; otherwise, by perpetuating the abusive practices initiated by Bush/Cheney, for history's purposes they become the Bush/Cheney/Obama practices.

Not the sort of historical association that President Obama should embrace.

Strong versus Weak Judging

2009-06-14T19:09:00.002-04:00

As so often happens in the field of constitutional law, events converge that serve to illustrate how real-world practice often departs from constitutional principle. The same-day announcements on May 26 by President Obama of Sonya Sotomayor as his choice for the U.S. Supreme Court and by the California Supreme Court of its decision to uphold Proposition 8 is but another such serendipitous pairing.

First, constitutional principle suggests that President Obama owed the nation a strong nominee - and with Sonya Sotomayor, he delivered.

Those who framed the Constitution knew that it would take a special kind of person to guarantee equal justice to all - including the less powerful - even when majorities in the legislative and executive branches would not. “It is easy to see,” Alexander Hamilton wrote, “that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice in the community.”

Sonya Sotomayor understands the constitutional role of judges. As she commented in 1997, “I believe we should not bend the Constitution under any circumstances. It says what it says. We should honor it.” A strong judge like Judge Sotomayor knows that when majorities abridge the rights of individuals, it is the judge’s sometimes unpopular role to overcome the majority’s will.

Weak judges, by contrast, hide behind majority opinion to avoid protecting individual liberty and equality. The California Supreme Court’s decision Tuesday to uphold Proposition 8 (despite holding just last year that discrimination against gays is no less unconstitutional than discrimination based on race or religion) is an example of judging that is, well, weak.

As the lone strong voice, dissenting Justice Carlos J. Moreno, put it, “The rule the majority crafts today … weakens the status of our state Constitution as a bulwark of fundamental rights for minorities protected from the will of the majority.”

Exactly right.

These principles apply to the federal Constitution as well. The framers believed that the whole point of majoritarian government is to protect liberty and equality for all. As James Madison explained in arguing for the Bill of Rights before the First Congress, “independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive.” And Hamilton commented that “the interpretation of the laws is the proper and peculiar province of the courts…. If there should happen to be an irreconcilable difference between [the Constitution and a legislative act]…, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.”

In concept, the principle of judicial review is one upon which liberals and conservatives can agree. At his confirmation hearings in 2005, for example, Chief Justice John Roberts commented, “I don't think the Court should be a taskmaster of Congress. The Constitution is the Court's taskmaster, and it is Congress's as well.” Neither federal, state nor local majorities, in other words, may pass laws (including amendments to state constitutions) that abridge rights guaranteed by the federal Constitution - and it is the judge’s responsibility to make sure that they do not.

Viewed in this light, the “judicial activist” warhorse regularly trotted out by those opposed to judges doing their jobs to protect the rights of minorities (usually under the guise that such action constitutes inappropriate “legislating from the bench”) is exposed for what it is: a tired old nag ready for the glue factory.

Second Amendment Incorporation Update - Seventh Circuit Decision

2009-06-08T06:36:00.012-04:00

As expected, given the judges' tone while questioning counsel during oral arguments a couple weeks ago in the McDonald v. Chicago case on which I posted at the time, the Seventh Circuit Court of Appeals last Tuesday declined to incorporate the second amendment to apply to the states.

Because the Ninth Circuit in April held in Nordyke v. King that the second amendment IS incorporated, we now have a circuit split and the possibility of the U.S. Supreme Court taking up the case to resolve the disagreement.

The plaintiffs in the case, the NRA and (separately) McDonald, have already appealed to the Supreme Court - now we'll see if the Supreme Court takes the case (it requires four of the nine justices to agree to hear a case in order for it to get on the Court's docket).

Obama in the Middle East - A Respectful, Rational Voice

2009-06-07T22:20:00.009-04:00

One may justifiably criticize some of the decisions made by President Obama in continuing certain Bush administration policies (e.g., military commissions, state secrets, etc.), but there is one area where the new president truly shines: representing the United States abroad.

As I'd posted a couple times from the early days of his campaign, this was one of the primary reasons Obama was such an appealing candidate ... and now is such an inspiring leader.

With his landmark speech in Cairo on June 4, Obama used the bully pulpit of the American presidency to turn the discussions on Middle-East politics in more productive directions. Not that everyone in the region is enamored of everything he had to say, as reported by the BBC, but isn't it heartening to see once again a U.S. president who is able to speak respectfully and rationally in the international arena?

Eugene Robinson said it well in his June 9 column in the Washington Post, "The Importance of Being Obama":

"I used to fear that President Obama was overestimating the power of his personal history as an instrument of foreign policy. Now I wonder if he might have been underestimating."
....

"Taking a cold-eyed view of international affairs is never wrong," Robinson continued. "But it's also wrong to ignore the spectacle of an audience member, at Obama's Cairo University speech, interrupting an American president to shout, "We love you!" You will recall that the last memorable presidential appearance in the Arab world was the news conference in Iraq at which George W. Bush dodged two shoes hurled at his head.

"Not being Bush was a big factor. But at least as important was being Obama -- and being able to say, as the president did in Cairo, that "I have known Islam on three continents before coming to the region where it was first revealed."

"Obama was referring to the "generations of Muslims" in his father's Kenyan family, his early years in Indonesia and his experience working in Chicago communities where "many found dignity and peace in their Muslim faith." The most important word in that sentence, however, came at the end: By saying "revealed" rather than "born," Obama was acknowledging Islam as a divinely given faith.

"Obama quoted liberally from the Koran, drawing applause. Perhaps more important was that he opened the speech by putting Islam in the historical context that many Muslims believe the West willfully ignores. He spoke of how the Islamic world kept the light of civilization burning during Europe's Dark Ages -- and mentioned the Koran that Thomas Jefferson kept in his library.

"Obama was speaking the language of Islam in a tone of respect. What a concept.

"The rest of his speech consisted essentially of a summary of U.S. policy in the Muslim world, and in truth there were no real departures from traditional American policy. Prior administrations have called for a Palestinian state, and Obama hasn't been nearly as tough with Israel as, say, James Baker's State Department during the administration of George Bush the Elder. Obama had nothing substantive to announce on the wars in Iraq and Afghanistan, and he properly asserted the right of the United States to defend itself against terrorists.

"Familiar policies sounded different coming from Obama, though -- not just because of his identity but also because he showed a little humility. He acknowledged that in recent years our nation had acted in ways "contrary to our ideals," and noted that he had ordered an end to torture and the closing of the prison at Guantanamo. There are those who believe that admitting mistakes is a sign of weakness. I think it's a sign of confidence and strength, and I believe that's how it was received by Obama's intended audience.

"Perhaps the best indication of how Obama played in Cairo is the reaction of his competitors for the hearts and minds of the Muslim world. The Associated Press reported Sunday that the Iranian-backed, Lebanon-based guerrilla group Hezbollah, an influential radical Saudi cleric and the Egypt-based Muslim Brotherhood all warned followers not to be taken in by Obama's seductive words -- which suggests a fear that Obama had been dangerously effective. A Web site that often reflects the thinking of al-Qaeda referred to the president after the speech as a 'wise enemy.'

"The fact that many Muslims now see a sympathetic figure in the White House creates new possibilities. It turns out that being Obama matters more than I thought."

Reconciling Liberty and Progressive Government

2009-05-28T20:09:00.004-04:00

Following is a paper I am presenting this week at the Law & Society Conference in Denver, "Reconciling Liberty and Progressive Government," that synthesizes a number my prior postings:

Libertarians with progressive sympathies (or progressives with libertarian sympathies) are confronted by a nagging conundrum: that individual freedom and the common-good, almost by definition, can seem to be mutually exclusive. If we indiscriminately elevate individual free-will, we risk tragedy-of-the-commons issues; by contrast, if we indiscriminately enact progressive legislation for the common good, we run the risk of inflicting death by a thousand cuts on individual liberty.

A concept we may call "Progressive Liberty" is an attempt to reconcile the seemingly contradictory concepts of individual liberty and the common-good. Looking first at the “liberty” half of the phrase, America was founded, first and foremost, to preserve individual freedom from oppressive government. This part is nonnegotiable. America's founding documents - the Declaration of Independence and the Constitution - make the point clearly: the single irreducible value eclipsing all else under the American constitutional regime is liberty. The eminent historian Eric Foner explains, “No idea is more fundamental to Americans’ sense of themselves as individuals and as a nation than “freedom” … or “liberty,” The Declaration of Independence lists liberty among mankind’s inalienable rights; the Constitution announces as its purpose to secure liberty’s blessings…”

Historian Bernard Bailyn reports that the most basic goals of the American Revolution were to “free the individual from the oppressive misuse of power, [and] from the tyranny of the state.” To conceptualize, imagine if you will the “Google-Earth” feature of Google; except here, written answers to basic constitutional questions may be viewed in greater or lesser detail by zooming-in or zooming-out. Zooming-out to view the question, “What single value does the Constitution stand for?,” from the widest possible angle, where all detail has been lost leaving only one answer to the question, the answer would read, “Liberty.” Zooming-in, we could next read, “Equality,” “Democracy,” then “Property,” and so on. These more detailed values are simply means to the ultimate end – which is liberty.

What to do when government intrudes upon liberty? The framers of the Constitution envisioned that the judiciary would play a key role in protecting liberty from majoritarian excess. James Madison, arguing in support of passage of the Bill of Rights before the First Congress, said, “independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive.” Addressing a French correspondent, Thomas Jefferson wrote, “the laws of the land, administered by upright judges, … would protect you from any exercise of power unauthorized by the Constitution of the United States.” And in Federalist 78 Alexander Hamilton commented that “the interpretation of the laws is the proper and peculiar province of the courts…. If there should happen to be an irreconcilable difference between [the Constitution and a legislative act]…, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.”

This is something upon which judges and scholars from across the political spectrum can agree. Conservative icon Robert Bork, for example, has written that “there are some things a majority should not do to us no matter how democratically it decides to do them. These are areas properly left to individual freedom…. Society consents to be ruled undemocratically within defined areas by certain enduring principles believed to be stated in, and placed beyond the reach of majorities by, the Constitution.”

In practice, however, conservative ideology has latched onto the idea that the use of judicial review is “undemocratic” and “activist”; and will almost always constitute inappropriate “legislating from the bench.” What this argument ignores, of course, is that the whole point of the Constitution’s scheme of majoritarian government in the first place is to protect liberty and equal justice. As explained by Madison, Jefferson and Hamilton, the true original intent of the framers was that constitutionally-protected liberty and equal justice are not to be sacrificed to majority will.

When the Court fails to properly exercise its power of judicial review, liberty and equal justice suffer, because there is simply no other institution left to protect individual and minority rights. During World War I, for example, the Court upheld vast legislative prohibitions on speech; and during World War II it refused to curb executive forced-relocation and internment of thousands of innocent Japanese-Americans. America would look quite different today if the Court – largely under the leadership of Chief Justice Earl Warren, whose strong support of judicial review prompted President Dwight Eisenhower to grumble that his 1953 appointment of Warren to the Court was “the biggest damn-fool mistake I ever made” - had not eventually returned to checking the unconstitutional excesses of the democratically-elected executive and legislative branches.

As for the other part of the progressive liberty equation, how are we to understand how progressive government may proceed in acting for the common good? The first thing to understand is that, as compared to non-negotiable liberty, the “progressive” part of progressive liberty 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).

An energetic position, one that a progressive libertarian would favor, suggests that it is 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. Among other things, this means that government should guarantee that every man, woman, and child have access to basic healthcare. (Incidentally, the framers appeared to be “progressives” of a sort themselves, in that they advocated an energetic government. “Energy in the [government] is a leading character in the definition of good government,” Hamilton wrote in the Federalist 70. Madison agreed. “Energy in government,” he said in No. 37, “is essential to that security against external and internal danger, and to that prompt and salutary execution of the laws, which enter into the very definition of good government.”)

Does this mean that the Constitution mandates such government involvement?In a word: No. The Constitution sets up the republican form of the government and imposes strict limits on governmental infringements of individual liberty; but it leaves the details of social and economic policy to be worked out by the people through the democratic process. Whether the people prefer a Progressive Society, a Minimalist Society, or some other sort of Society, they control their destiny by voting for representatives who will legislate to that end. That's republican democracy: accountable majorities enacting policy; and if the majorities don't adequately reflect the people's wishes, others are elected who will. Then if at any time the democratically-accountable majority legislates in ways that inappropriately infringe individual liberty, the Constitution (as enforced by the Court) steps in. That's what liberty is about - limited government constrained by a Constitution that protects, above all else, individual freedom.

. . .

Now that we have a definition for progressive liberty, let’s look closer at the title of this paper, “Reconciling Liberty and Progressive Government.” Specifically, how are we to know the threshold beyond which a progressive, energetic government may not go, lest it infringe upon constitutionally-protected liberty?

An excellent place to start (and perhaps end) is with the "harm principle" enunciated by J.S. Mill in his 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."

Putting this into practical terms that government policymakers can apply, we might “think of the harm principle as operating in two steps,” Professor Ian Shapiro suggests. “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. [The second step occurs] if, however, the answer to the initial query is yes, [in which case] 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?,” and it is up to the democratic process to work that out.

In other words, society may legislate – whether progressively or not – either when the legislation (a) simply does not affect individual liberty, and/or (b) when a person’s conduct in exercising individual liberty prejudicially affects, or harms, the interests of others. (Incidentally, some, such as Randy Barnett, would define this latter situation as not involving “liberty” at all, but rather as “license” (which is not protected by the Constitution); on the reasoning that liberty, by definition, cannot harm others). In either case it is open to discussion through the democratic process whether the common good will be promoted. So conceived, the society may strike a balance between liberty and progressive government.

It is important to re-emphasize Shapiro’s conclusion, however (perhaps to the point of tedium), that according to the Harm Principle, “short of the point at which a person's conduct affects the interests of no persons besides himself, there is no room for [memorializing into law any such policy discussion.]” Individual liberty prevails in such cases, not to 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. Alexis de Tocqueville presciently identified the danger of an overactive government in his 1830 masterpiece, Democracy in America, stating: “[In a maturing democracy,] a wholly new species of oppression will arise. Among citizens equal and alike, the supreme power, the democratic government, acting in response to the will of the majority, will create a society with a network of small complicated rules, minute and uniform, that none can escape. Ultimately, then, the citizens of a democratic country will be reduced to nothing better than a flock of timid and industrious animals, of which the government is the shepherd.” To some in America today, this scenario sounds uncomfortably familiar.

Once again, under our constitutional regime it is the role of the judiciary to prevent this sort of creeping tyranny from occurring. One difficulty, though, is that ever since 1937 the Supreme Court has applied a disproportionately deferential standard of review to government action - to the detriment of individual liberty. (This occurred largely as a backlash to the Supreme Court overstepping its bounds during the mid-1930s when it aggressively struck down FDR’s New Deal legislation. Throughout the rest of the 20th and into the 21st century, the Court has swung too far in the other direction by not going far enough in requiring government (particularly state and local government) to justify its actions that may potentially affect liberty interests.) A more deferential-to-liberty standard of judicial review is needed, perhaps modeled on the Court’s existing First Amendment “reasonable time, place and manner” doctrine, as I suggest in a 2007 Louisiana Law Review piece. This approach, already championed on a narrow basis by the Third Circuit Federal Court of Appeals in Lutz v. York in 1990, more accurately honors the Constitution’s core Liberty-first ideals, while also recognizing the proper constitutional role of government in maintaining law and order.

In conclusion, government is liberty’s servant in America. Government – and democracy itself - exists primarily to protect liberty, with the Constitution serving as the bulwark against inevitable government attempts toward overreaching. The framers understood that men are not angels and that power has the overwhelming tendency to corrupt, so they constructed a limited government of separated powers with the ultimate power reserved to the people to operate within their own self-imposed constitutional constraints.

That said, to the extent government action does not implicate liberty, the details of social and economic policy are to be worked out by the people through the democratic process. One can be a staunch supporter of liberty on one hand; while working actively through the democratic process to enact progressive, energetic policy. That, in essence, is progressive liberty.

National Rifle Association v. Chicago (McDonald v. Chicago) Oral Arguments*

2009-05-27T22:41:00.008-04:00

The Seventh Circuit Federal Court of Appeals in Chicago yesterday heard oral argument in National Rifle Association v. Chicago (formerly McDonald v. Chicago), a case in which the Constitutional Accountability Center, joined by law professors Richard Aynes, Jack Balkin, Michael Curtis and myself, filed an amicus brief arguing that the Fourteenth Amendment privileges or immunities clause should be interpreted to apply the Second Amendment (together with the rest of the entire Bill of Rights, and more) to the states.

If the judges’ questioning is any fair indication, it appears the Seventh Circuit will decline the petitioners’ and the CAC’s invitation to incorporate the Second Amendment under either the due process clause or the privileges or immunities clause – not because the court necessarily objects to the arguments, but rather because it believes such bold steps are more appropriately within the purview of the Supreme Court.

NRA counsel Stephen Halbrook was barely into his first sentence before the judges, particularly Judge Richard A. Posner and (presumably) Chief Judge Frank H. Easterbrook, began peppering him for explanations for why the appellate court should even be deciding the question.

For context, here are some of the relevant exchanges between the court and counsel, with a couple observations to follow:

Judge Posner (to Mr. Halbrook): I don’t see how you get around the Supreme Court’s admonition to us that we are not to anticipate overruling of Supreme Court decisions. You have Cruikshank and Presser and Miller and the Supreme Court’s footnote in Heller where it declines to reexamine those decisions, and it says they hold that the second amendment doesn’t govern state action…. [Those cases] may have overlooked grounds, they may be poorly reasoned, but there they are - they’re holdings.
…
Chief Judge Easterbrook (later): I entirely appreciate your argument that [the earlier cases] don’t discuss selective incorporation. Indeed, I entirely appreciate your argument that the SlaughterHouse Cases are wrongly decided…. But as is often said in the bureaucracy, that’s above our grade level.
…
Chief Judge Easterbrook (responding to co-counsel (for petitioner McDonald) Alan Gura): I actually don’t know why you’re so upset about the prospect that Judge Posner and I have raised with you. It doesn’t matter what we say. [In contrast to the Ninth Circuit in the recent Nordyke case,] we’re not going to resolve this issue; you’ve got yourself a conflict between the circuits. Why don’t you just say, ‘Our arguments are preserved – thank you very much.’

Mr. Gura: If that’s what your honor would like me to do, then I’ll certainly go ahead and do that. Our arguments are preserved and thank you very much. [Laughter] I’ll reserve the rest of my time for rebuttal.

Chief Judge Easterbrook: This is going to be resolved elsewhere. Yes, thank you, Mr. Gura.

Ms. Benna Solomon (counsel for Chicago): It does not matter that [Cruikshank, Presser and Miller] were decided before the Court embraced the process of incorporation under the due process clause.… Only the Supreme Court itself can limit or update its prior definitive holdings. They do not become non-precedential simply because one can imagine an argument against them, or because the Court itself might later discard them.

Chief Judge Easterbrook: There’s actually a pretty good argument against them. And it’s not simply because the justices have used a different approach in recent years. It’s that there’s a lot of rumbling about the Slaughter-House Cases even amongst the justices.

Ms. Solomon: That is correct. And as far as privileges or immunities go, ... of course it would be [the Supreme Court’s] prerogative to consider overruling, limiting, changing, modifying or clarifying Slaughter-House. And of course it’s not simply Slaughter-House. The rule that the privileges or immunities does not wholesale incorporate the Bill of Rights has been repeated many times…. The privileges or immunities ruling has never been disturbed. So we do respectfully believe that is binding on this court as well.

Chief Judge Easterbrook (referring to an early voice in the wilderness who advocated accepting Justice Hugo Black’s call to reexamine the fourteenth amendment’s history, especially the privileges or immunities clause): One can only imagine William Winslow Crosskey coming back to debate this issue.

Ms. Solomon: It will be ripe, no doubt, for someone to present to the Supreme Court.
…

Chief Judge Easterbrook (responding to Ms. Solomon’s observation that several other provisions of the Bill of Rights have still not been incorporated): One potential consequence of the line you’re taking is that the Supreme Court will overrule Slaughter-House and incorporate everything. And then all of Chicago’s administrative tribunals for handling parking tickets will suddenly become unconstitutional under the seventh amendment [right to jury trial in civil cases].

Ms. Solomon: The Supreme Court will no doubt consider that going down the privileges & immunities road would need either a limiting principle not evident in the arguments on the other side, or it would need to overrule the cases indicating that the grand jury clause and the seventh amendment, and the Court has reaffirmed those rather recently.
…
Mr. Gura (on rebuttal): In 1868, when the fourteenth amendment came about, it was with the express purpose and intent and common understanding, that it was to incorporate the Bill of Rights, and the second amendment was the right that was most at issue at the time. … . And we of course preserve our privileges or immunities argument for the upper court. But at the very least this court is still free, and bound actually by Duncan v. Louisiana, to reverse the judgment [and hold that the due process clause incorporates the second amendment,] which we hope this court does.

Reflections on the oral argument:

What is most striking about this sequence is that multiple federal courts, after having swept the privileges or immunities clause under the rug for over 135 years, are now talking in serious terms about the provision. To hear a jurist of Chief Judge Easterbrook’s stature express sympathy for arguments that the SlaughterHouse Cases (the 1873 case that buried the privileges or immunities clause) was wrongly decided is a major step. Add to that the Ninth Circuit’s recent Nordyke decision holding that the second amendment is incorporated through the due process clause (and acknowledging, but not deciding, the privileges or immunities arguments), and we see that the arguments being made by a growing number of scholars, the CAC and others are finally starting to gain some traction.

Second, regarding the suggestion that giving full effect to the privileges or immunities clause (i.e., incorporation of the entire Bill of Rights, and more, to the states) would be too disruptive to the states, the Constitution itself provides a tried and true mechanism to allay this concern: the Article V amendment process. If the people decide that they wish to retain the Supreme Court’s current doctrine of not applying certain of the Bill of Rights to the states, such as the Seventh Amendment right to jury in civil cases and the Fifth Amendment grand jury provision, it is within their power to do so. The amendment process would be the proper approach to achieve this goal – but it is not proper to continue holding the privileges or immunities clause hostage.

While it is true that amending the Constitution is very difficult to do (it’s only been done eighteen times in our history – first with the Bill of Rights and then 17 times since), it’s not impossible. Indeed, when the people put their minds to it, it can be done very quickly – witness the very first amendment to follow the Bill of Rights, the eleventh amendment, when it took Congress less than three weeks to approve the amendment after a Supreme Court ruling not to its liking; and the states less than a year to ratify.

*This post also appears at the CAC Text and History Blog.

Obama World vs. Cheney World

2009-05-26T12:04:00.006-04:00

In his column in today's Washington Post, Eugene Robinson nicely captures the juxtaposition of the choices offered by Barack Obama's world-view with that of the suddenly media-genic Richard Cheney:

"Which reality do you inhabit, Obama World or Cheney World? ...

"In Obama World, human beings are flawed but essentially decent and rational. Most will behave in a way consistent with enlightened self-interest. In Cheney World, humanity's defects are indelible and irredeemable. Absent evidence to the contrary, evil should be assumed to lurk in every heart. Better to do unto others before they have a chance to do unto you.

"In Obama World, choices are artifacts of reasoning and thus are only as valid as the logic underlying them. Security and freedom, for example, do not have to be seen as an either-or proposition. The nation never came to a fork in the road with one path labeled "torture" and the other labeled "disaster." In Cheney World, choices are binary and absolute. There's no wiggle room, no gray area, no time for second thoughts and no debate about how our options are framed. It's my way or the highway, citizen.

"In Obama World, objective fact matters. The failure to find any weapons of mass destruction in Iraq is significant. The absence of any link between Iraq and the Sept. 11, 2001, terrorist attacks is relevant. In Cheney World, facts are based more on conviction than evidence. If it's possible to imagine "nuclear-armed terrorists," as Cheney did in his speech the other day, then they "exist" at least as a concept -- and this conceptual existence justifies torture, among other abuses.

"In Obama World, some "threats" can be recognized as no threat at all. Since there has never been an escape from the federal "supermax" prison in Colorado, and since it already houses plenty of terrorists, spies and other miscreants, there's no real reason to be concerned about transferring any of the Guantanamo inmates, even the worst of the lot, there.

"But in Cheney World, no threat, however remote, can be definitively ruled out -- especially if there's political hay to be made. And anyway, it's fun to scare people.

"Obama World buzzes with information overload: hundreds of cable channels, zillions of Web sites, constant "tweets" from Twitter. In Cheney World, it's pretty much Fox News and Rush Limbaugh, all day, every day....

"In Obama World, Americans have a sense of community and shared purpose. Those upon whom fortune has smiled -- through accident of birth, educational opportunity, career-enhancing connections or any other kind of "right place, right time" serendipity -- recognize that extending a hand to those who do not enjoy such advantages is not just morally right, but ultimately beneficial to all. They believe that Henry Ford was right to pay his workers the shockingly high sum of $5 a day -- so they could afford to buy the cars they were making.

"In Cheney World, sharing is for saps. Obtaining great wealth and power has nothing to do with being "fortunate," whatever that means. It's all about preparation, focus and hard work. The idea that luck or connections could possibly have anything to do with, say, becoming the lavishly compensated chairman and chief executive of a mega-corporation such as Halliburton? Preposterous and un-American.

"In Obama World, America exerts its leadership not just through force but through example. Our nation's exceptionalism lies in its ideals of freedom, justice and opportunity for all, in its decency and generosity, in its commitment to the rule of law and its zeal for self-improvement, in its willingness to examine its own flaws and work to correct them. These intangibles are backed up by the world's most powerful military, but it's the ideals that matter most. When we lose sight of them, we head down the path of inevitable decline.

"In Cheney World, ideals are nice and all that, but might makes right. We do what we want. Because we can. You got a problem with that?

"Obama World is an exciting place to live right now -- not perfect, to be sure, but full of energy and hope. If Dick Cheney wants to stay in his bunker, that's his business. Others might want to come up for some fresh air."

Legalize (and Tax) Vice

2009-05-17T11:41:00.008-04:00

Several months ago, shortly after the Michael Phelps bong-photo imbroglio, I posted here to argue that soft drugs should be legalized because current drug laws are: (1) bad policy; and (2) unconstitutional.

Focusing on the first point, we discussed that 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.

So, we continued, wouldn't it be better in policy terms 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.).

In an OpEd entitled "Paying With Our Sins" in today's New York Times, Nick Gillespie, editor-in-chief of Reason.com, addresses this last point in making the policy case for legalizing not only marijuana, but also other vices like gambling and prostitution. (The constitutional case I mentioned in my prior posting holds for these vices as well.)

Gillespie explains: "All of these vices, involving billions of dollars and consenting adults, already take place. They just take place beyond the taxman’s reach....

"More taxed vices would certainly lead to significant new revenue streams at every level. That’s one of the reasons 52 percent of voters in a recent Zogby poll said they support legalizing, taxing and regulating the growth and sale of marijuana. Similar cases could be made for prostitution and all forms of gambling.

"In terms of economic stimulation and growth, legalization would end black markets that generate huge amounts of what economists call “deadweight losses,” or activity that doesn’t contribute to increased productivity. Rather than spending precious time and resources avoiding the law (or, same thing, paying the law off), producers and consumers could more easily get on with business and the huge benefits of working and playing in plain sight.

"Consider prostitution. No reliable estimates exist on the number of prostitutes in the United States or aggregate demand for their services. However, Nevada, one of the two states that currently allows paid sex acts, is considering a tax of $5 for each transaction. State Senator Bob Coffin argues further that imposing state taxes on existing brothels could raise $2 million a year (at present, brothels are allowed only in rural counties, which get all the tax revenue), and legalizing prostitution in cities like Las Vegas could swell state coffers by $200 million annually.

"A conservative extrapolation from Nevada to the rest of the country would easily mean billions of dollars annually in new tax revenues. ...

"Every state except Hawaii and Utah already permits various types of gambling, from state lotteries to racetracks to casinos. In 2007, such activity generated more than $92 billion in receipts, much of which was earmarked for the elderly and education. Representative Barney Frank, Democrat of Massachusetts, has introduced legislation to repeal the federal ban on online gambling; and a 2008 study by PriceWaterhouseCoopers estimates that legalizing cyberspace betting alone could yield as much as $5 billion a year in new tax revenues. Add to that expanded opportunities for less exotic forms of wagering at, say, the local watering hole and the tax figure would be vastly larger.

"Based on estimates from the White House Office of National Drug Control Policy, Americans spend at least $64 billion a year on illegal drugs. And according to a 2006 study by the former president of the National Organization for the Reform of Marijuana Laws, Jon Gettman, marijuana is already the top cash crop in a dozen states and among the top five crops in 39 states, with a total annual value of $36 billion.

"A 2005 cost-benefit analysis of marijuana prohibition by Jeffrey Miron, a Harvard economist, calculated that ending marijuana prohibition would save $7.7 billion in direct state and federal law enforcement costs while generating more than $6 billion a year if it were taxed at the same rate as alcohol and tobacco. The drug czar’s office says that a gram of pure cocaine costs between $100 and $150; a gram of heroin almost $400; and a bulk gram of marijuana between $15 and $20. Those transactions are now occurring off the books of business and government alike.

"As the history of alcohol prohibition underscores, there are also many non-economic reasons to favor legalization of vices: Prohibition rarely achieves its desired goals and instead increases violence (when was the last time a tobacco kingpin was killed in a deal gone wrong?) and destructive behavior (it’s hard enough to get help if you’re a substance abuser and that much harder if you’re a criminal too). And by policing vice, law enforcement is too often distracted at best or corrupted at worst, as familiar headlines about cops pocketing bribes and seized drugs attest. There’s a lot to be said for treating consenting adults like, well, adults.

"But there is an economic argument as well, one that Franklin Roosevelt understood when he promised to end Prohibition during the 1932 presidential campaign. “Our tax burden would not be so heavy nor the forms that it takes so objectionable,” thundered Roosevelt, “if some reasonable proportion of the unaccountable millions now paid to those whose business had been reared upon this stupendous blunder could be made available for the expense of government.”

"Roosevelt could also have talked about how legitimate fortunes can be made out of goods and services associated with vice. Part of his family fortune came from the opium trade, after all, and he and other leaders during the Depression oversaw a generally orderly re-legalization of the nation’s breweries and distilleries. ...

"Legalizing vice will not balance government deficits by itself — that will largely depend on spending cuts, which seem beyond the reach of all politicians. But in a time when every penny counts and the economy needs stimulation, allowing prostitution, gambling and drugs could give us all a real lift."

Education Reform

2009-05-08T13:22:00.007-04:00

Together with healthcare reform and energy policy, one of President Obama's highest long-term priorities (aside from dealing with the current economic woes) is education reform. When we see such figures as those showing the U.S. in the bottom half of industrialized nations in math & science proficiency, etc., we must conclude that schools simply are not doing a good enough job.

In his "Harlem Miracle" column in today's New York Times, David Brooks offers a view of how we can begin to make truly meaningful change. He describes a charter school program in Harlem that has achieved breathtaking improvements, leading the Harvard economist Roland Fryer, upon examining the data, to comment, “The attached study has changed my life as a scientist.”

Fryer and a colleague undertook an in-depth assessment of the charter schools operated by the Harlem Children’s Zone, and found that "the Harlem Children’s Zone schools produced 'enormous' gains. The typical student entered the charter middle school, Promise Academy, in sixth grade and scored in the 39th percentile among New York City students in math. By the eighth grade, the typical student in the school was in the 74th percentile. The typical student entered the school scoring in the 39th percentile in English Language Arts (verbal ability). By eighth grade, the typical student was in the 53rd percentile."

"Forgive some academic jargon," Brooks continues, "but the most common education reform ideas — reducing class size, raising teacher pay, enrolling kids in Head Start — produce gains of about 0.1 or 0.2 or 0.3 standard deviations. If you study policy, those are the sorts of improvements you live with every day. Promise Academy produced gains of 1.3 and 1.4 standard deviations. That’s off the charts. In math, Promise Academy eliminated the achievement gap between its black students and the city average for white students.

"Let me repeat that. It eliminated the black-white achievement gap. 'The results changed my life as a researcher because I am no longer interested in marginal changes,' Fryer wrote in a subsequent e-mail. What Geoffrey Canada, Harlem Children’s Zone’s founder and president, has done is 'the equivalent of curing cancer for these kids. It’s amazing. It should be celebrated. But it almost doesn’t matter if we stop there. We don’t have a way to replicate his cure, and we need one since so many of our kids are dying — literally and figuratively.'"

So what is it that the Harlem Promise Academy does to achieve these sorts of jawdropping results? Basically, Promise Academy is a no excuses school. Brooks explains, "The basic theory is that middle-class kids enter adolescence with certain working models in their heads: what I can achieve; how to control impulses; how to work hard. Many kids from poorer, disorganized homes don’t have these internalized models. The schools create a disciplined, orderly and demanding counterculture to inculcate middle-class values....

"Basically, the no excuses schools pay meticulous attention to behavior and attitudes. They teach students how to look at the person who is talking, how to shake hands. These schools are academically rigorous and college-focused. Promise Academy students who are performing below grade level spent twice as much time in school as other students in New York City. Students who are performing at grade level spend 50 percent more time in school.

:They also smash the normal bureaucratic strictures that bind leaders in regular schools. Promise Academy went through a tumultuous period as Canada searched for the right teachers. Nearly half of the teachers did not return for the 2005-2006 school year. A third didn’t return for the 2006-2007 year. Assessments are rigorous. Standardized tests are woven into the fabric of school life.

"The approach works. Ever since welfare reform, we have had success with intrusive government programs that combine paternalistic leadership, sufficient funding and a ferocious commitment to traditional, middle-class values. We may have found a remedy for the achievement gap. Which city is going to take up the challenge? Omaha? Chicago? Yours?"

Inspiring stuff.

Obama's First 100 Days - Reclaiming the Constitution*

2009-05-04T11:52:00.004-04:00

If James Madison and Alexander Hamilton, signers of the Constitution and primary authors of the Federalist Papers (the indispensable work of 85 essays which Thomas Jefferson described as “the best commentary on the principles of government which has ever been written”), were magically able to transport themselves 222 years forward in time to the present day, they would find a lot to like about President Barack Obama’s first 100 days in office.

Madison and Hamilton would welcome American government’s return, after eight years in the wilderness, to the core constitutional principles for which they so passionately argued.

First, Hamilton and Madison would admire Obama’s ambitious – even audacious - domestic agenda. “Energy in the executive is a leading character in the definition of good government,” Hamilton wrote in the Federalist 70.

Moreover, Madison especially would appreciate Obama’s understanding of the Constitution’s limitations on executive power, as shown in his early executive orders repudiating the Bush administration’s use of torture interrogation techniques in Guantanamo Bay and CIA secret prisons. In the Federalist 47, Madison spoke of the dangers of such a go-it-alone approach, explaining, “the accumulation of all powers, legislative, executive, and judiciary, in the same hands … may justly be pronounced the very definition of tyranny.”

Finally, Madison and Hamilton would approve of Obama’s recognition (as demonstrated by his early reversal of the Bush administration policy of hiding information, and, more recently, the release of the torture memos) that government serves at the pleasure of, and thus must be held accountable to, the people. “The genius of republican liberty,” Madison concluded in the Federalist 37, “demand[s] not only that all power should be derived from the people; but, that those intrusted with it should be kept in dependence on the people.” “[T]he power of the people,” Hamilton added in No. 78, “is superior to [that of government].”

Immortal words that President Barack Obama, the former constitutional law professor, understands well.

* This entry also appears on the Constitutional Accountability Center's blog, Text & History.

Nordyke - Incorporation of the Second Amendment to Apply to the States

2009-04-21T22:20:00.008-04:00

Most, but not all, of the Bill of Rights have been held by the U.S. Supreme Court to apply to the states through the doctrine of "selective incorporation" under the 14th amendment due process clause. As I've argued here previously, it is improper that not ALL of the Bill of Rights have been applied to the states through the 14th amendment privileges or immunities clause ever since the amendment's 1868 ratification, since that was in fact the clearly-stated intent of the framers of the 14th amendment.

Yesterday, in Nordyke v. King, the Ninth Circuit Court of Appeals correctly held that the Second Amendment is incorporated to apply to the states - but it did so using the same "selective incorporation" process instead of the privileges or immunities clause. (Professors Michael Kent Curtis, Richard Aynes, William Van Alstyne and I argued in an amicus (friend of the court) brief in the case in favor of the privileges or immunities clause approach.) Actually the court's use of selective incorporation is not surprising; it will take a decision from the U.S. Supreme Court to re-invigorate the privileges or immunities clause - which has lain dormant since the egregious 1873 Slaughter-House Cases opinion which buried it alive. On another positive note, however, the Ninth Circuit did acknowledge our argument in footnote 5 (citing to my Missouri Law Review article):

"We are aware that judges and academics have criticized Slaughter-House’s reading of the Privileges or Immunities Clause. See, e.g., Saenz v. Roe, 526 U.S. 489, 527-28 (1999) (Thomas, J., dissenting) (“Because I believe that the demise of the Privileges or Immunities Clause has contributed in no small part to the current disarray of [the Supreme Court’s] Fourteenth Amendment jurisprudence, I would be open to reevaluating its meaning in an appropriate case.”); id. at 522 n.1 (collecting academic sources); Michael Anthony Lawrence, Second Amendment Incorporation Through the Fourteenth Amendment Privileges or Immunities and Due Process Clauses, 72 Mo. L. Rev. 1, 12-35 (2007); see also Akhil Reed Amar, The Bill of Rights 163-230 (1998) (arguing that the Privileges or Immunities Clause applies against the states all “personal privileges” of individual citizens, whether enumerated in the Bill of Rights or not, but not the rights of the states or the general public)...."

For its part, the Seventh Circuit Court of Appeals in McDonald v. Chicago will soon decide whether the second amendment is incorporated to apply to the states. We have also filed an amicus brief in McDonald, arguing again for incorporation through the privileges or immunities clause. In all likelihood, the Seventh Circuit also will play it safe and find the second amendment is "selectively" incorporated through the due process clause.

Both of these cases are sure to be appealed to the U.S. Supreme Court - and that will be where our privileges or immunities clause arguments will be truly considered (we HOPE). As I claim in my earlier works, a judicial reinvigoration of the privileges or immunities clause can have profound effects on how we view individual liberty vis-a-vis government in America.

Stay tuned!

Obama and the Muslim World

2009-04-09T10:47:00.007-04:00

What a welcome change to have a U.S. president who engages the world, rather than try to bully it. President Obama's recent trip to the G-20 conference, after which he made a stop in Turkey to engage the Muslim world, demonstrates true cooperative leadership that is bound to reap much greater long-term rewards.

The Muslim world, for example, is hopeful that relations can improve. In an AP story reported on MSNBC, "'Everyone is optimistic about this man,' Nasser Abu Kwaik, a barber in the West Bank town of al-Beireh, said Wednesday. 'He is different, and he could be a friend to the Muslim world.'

"Many in Muslim countries echoed the words of one Indonesian woman, 'I believe him.'

"'For the Islamic world,' Obama's comments 'are like a fresh breeze,' said Ikana Mardiastuti, who works at a Jakarta research institute."

MSNBC continues, "A town-hall meeting in Istanbul on Tuesday was also a strong symbol, with Obama answering questions from university students. To some it sent a message that this president talks to Muslims, dramatically different from the perception many had of Bush as domineering, warlike and imposing U.S. policy.

"Even an offhand comment that he had to wrap up the town-hall before the afternoon call to Islamic prayers showed an easy familiarity with the rhythms of Muslims' lives.

"'He's a modest person with a humanitarian view on world issues, particularly those relating to the Arab and Islamic worlds,' said Jamal Dahan, a 50-year-old resident of the Lebanese capital Beirut. 'Bush, on the other hand, was an arrogant man who only knew military power.'

"Even hard-liners took notice. Iranian President Mahmoud Ahmadinejad said his country welcomes talks with the United States if Obama proves 'honest' in extending the U.S. hand to Iran, one of his strongest signals yet of openness to Obama's calls for dialogue.

"A cleric at the prominent Shiite seminary in the Iraqi holy city of Najaf — where disdain for Bush's policies is high — was enthusiastic. 'The Islamic world should avail itself of this positive opportunity,' said Sheik Nimaa Al-Abadi. 'The opening chapter of Obama in the Islamic world might be a real turning point.'

Naysayers of course will criticize Obama as being too soft, or of "appeasing the enemy," but the comments of those who have reason to truly understand terrorism and its motivations should (but likely won't) open the eyes of neo-cons and others who claim to be driven by the goal of defeating terrorism: Obama "'will make it more difficult to recruit young Muslim men to carry out terrorist acts. They (militants) no longer have the argument to do so,' said Mohammed al-Nujaimi, a cleric on a government committee for rehabilitating militants away from extremism." In short, Obama's outreach vastly diminishes the appeal of terror groups.

What a welcome change, indeed.

Same-Sex Marriage Gains - Iowa, DC and Vermont

2009-04-09T09:05:00.007-04:00

Within the last week we've seen three more important steps toward the inevitable: national recognition that same-sex marriage is a constitutional right (or, more specifically, that any statutory differentiations based on sexual orientation for allowing people to enjoy the state-sanctioned benefits of marriage violate the fourteenth-amendment equal protection clause).

Last Friday, April 3, the Iowa Supreme Court unanimously held that the state's statutory ban on same-sex marriage is unconstitutional; then day before yesterday, Tuesday, April 7, the DC Council decided to recognize gay marriage performed elsewhere, and the Vermont legislature voted (over the governor's veto) to legalize gay marriage. (That Vermont thus becomes the first elected state legislature - as opposed to state Supreme Courts, in Massachusetts, Connecticut and now Iowa -to legalize same-sex marriage is not surprising; nine years ago, Vermont was the first state to legalize civil unions between same-sex couples.)

With these actions, we're seeing a work-in-progress of how basic rights and equal justice often become constitutionally recognized by the U.S. Supreme Court - momentum first builds in the states, then the Court settles the question in an appropriate case. The most apt analogy to what is happening now is what happened nearly 40 years ago on the issue of interracial marriage, when in the 1967 case of Loving v. Virginia the Court struck down state laws prohibiting interracial marriage. Today we view state laws banning interracial marriage as unbelievably unjust; as I suggest to my Constitutional Law students every year, in another forty years we'll view these state laws banning same-sex marriage with similar disbelief.

It's only a matter of time before the U.S. Supreme Court settles the question in favor of same-sex marriage as well - thus honoring the spirit of equal justice set forth in the Declaration of Independence and Constitution.

Information Overload

2009-04-01T09:22:00.005-04:00

As I find myself some weeks spending not as much time with the newspaper, switching from NPR or other news sources to the local jazz station, or consciously avoiding lengthy discussions with others about current events, Kathleen Parker's column in today's Washington Post strikes a chord.

In "Turn Off, Tune Out, Drop In," Parker asks, "What if everybody just took a timeout?"

"Now there's a concept for a [Too-Much-Information]-addled nation. It isn't only Too Much Information, but the pitch and tenor of delivery that have us in a persistent state of psychic frenzy. From cable news to microblogs to the latest -- "Fox Nation" -- life's background music has become one prolonged car alarm. "

Parker continues, "with so much data coming from all directions, we risk paralysis. Brain freeze, some call it. More important, we also risk losing our ability to process the Big Ideas that might actually serve us better. It isn't only Jack and Jill who are tethered to the Twittering masses, after all. Our thinkers at the highest levels are, too....

"[B]rain research shows that we do our best thinking when we're not engaged and focused, yet fewer of us have time for downtime....

"More likely, the ideas that save the world will present themselves in the shower or while we're sweeping the front stoop. What the world needs now isn't more, but less. The alternative to mindless activities for the mindful is turning out to be not a less-informed nation but a dumber one.

"Unchecked "infomania" -- yes, there's even a term for this instapathology -- can lead to a lower IQ, according to a 2005 Hewlett-Packard study. The research, conducted by a University of London psychologist, found that people distracted by e-mail and phone calls lost 10 IQ points, more than twice the impact of smoking marijuana -- or comparable to losing a night's sleep."

Amen. Between work and family obligations, life is busy; and with media and devices of all sorts contantly bombarding us with ever-more news and information, it all becomes a bit overwhelming. At a certain point, one just needs to find a quiet place (which, let's face it, is easier to do now that competent adults are in charge in Washington).

Ginsburg: Opening Soon on Supreme Court; Qualities of the Next Justice

2009-03-14T23:08:00.005-04:00

With Justice Ruth Bader Ginsburg’s veiled hint yesterday of an impending vacancy on the U.S. Supreme Court, speculation about the necessary qualities of the next Justice will now begin in earnest.

By far the most important criterion for any new Justice is a judicial philosophy that embraces a healthy respect for the vital role played by judicial review in guaranteeing liberty and equal justice for all. (Gender will also be a key criterion if the vacancy is created by the retirement of Justice Ginsburg herself - it is unimaginable that the twenty-first century Supreme Court would not count at least one woman among its members.)

Judicial review, the Court’s power to correct the unconstitutional actions of the legislative and executive branches, is precisely how the framers originally envisioned the Court’s role in the constitutional design.

James Madison, for example, arguing in support of passage of the Bill of Rights before the First Congress, said, “independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive.” Addressing a French correspondent, Thomas Jefferson wrote, “the laws of the land, administered by upright judges, … would protect you from any exercise of power unauthorized by the Constitution of the United States.” And in Federalist 78 Alexander Hamilton commented that “the interpretation of the laws is the proper and peculiar province of the courts…. If there should happen to be an irreconcilable difference between [the Constitution and a legislative act]…, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.”

In principle, judges and scholars from across the political spectrum agree on these basics. Conservative icon Robert Bork, for example, has written that “there are some things a majority should not do to us no matter how democratically it decides to do them. These are areas properly left to individual freedom…. Society consents to be ruled undemocratically within defined areas by certain enduring principles believed to be stated in, and placed beyond the reach of majorities by, the Constitution.”

In practice, however, conservative ideology has latched onto the idea that the use of "undemocratic" judicial review is “activist” and will almost always constitute inappropriate “legislating from the bench.” (This position is consistently held by a bare minority (four) of the current Supreme Court Justices, which explains the critical importance of the next Justice’s views on the matter.) What this argument ignores, of course, is that the whole point of the Constitution’s scheme of majoritarian government is to protect liberty and equal justice. As amply explained by Madison, Jefferson and Hamilton, the true original intent of the framers was that constitutionally-protected liberty and equal justice are not to be sacrificed to majority will.

When the Court fails to properly exercise its power of judicial review, liberty and equal justice suffer, because there is simply no other institution left to protect individual and minority rights. During World War I, for example, the Court upheld vast legislative prohibitions on speech; and during World War II it refused to curb executive forced-relocation and internment of thousands of innocent Japanese-Americans. America would look quite different today if the Court – largely under the leadership of Chief Justice Earl Warren, whose strong support of judicial review prompted President Dwight Eisenhower to grumble that his 1953 appointment of Warren to the Court was “the biggest damn-fool mistake I ever made” - had not eventually returned to checking the unconstitutional excesses of the democratically-elected executive and legislative branches.

So as President Obama looks at candidates for a Supreme Court vacancy, he should insist on a person whose judicial philosophy includes a strong understanding of the important role judicial review has played throughout American history in vindicating individual rights and ensuring equal justice for all. The U.S. Supreme Court must not shrink from fulfilling its crucial - yes, active - original constitutional role of critically reviewing the actions of the executive and legislative branches and striking them down where necessary.

Dharma: Heaven or Hell

2009-03-10T10:30:00.002-04:00

A big, burly samurai comes to a Zen master and says, “Tell me the nature of heaven and hell.”

The Zen master looks him in the face and says, “Why should I tell a scruffy, disgusting, miserable slob like you? A worm like you, do you think I should tell you anything?”

Consumed by rage, the samurai draws his sword and raises it to cut off the master’s head.

The Zen master says, “That’s hell.”

Instantly, the samurai understands that he has created his own hell—black and hot, filled with hatred, self-protection, anger, and resentment.

He sees that he was so deep in hell that he was ready to kill someone. Tears fill his eyes as he puts his palms together to bow in gratitude for this insight.

The Zen master says, “That’s heaven.”

- Pema Chodron, from Comfortable with Uncertainty: 108 Teachings (Shambhala Publications, 2002)

Raymar Morgan Clutch Dunk

2009-03-04T10:58:00.005-05:00

One of the great things about sports is the opportunities it presents for great plays.

Every game, from beginners (what parent isn't thrilled to see his/her young kid running around out on the field and making a nice catch or kick?) to pros, offers these moments. ESPN has its highly entertaining top ten plays of the day which highlight some of the best examples of pure athleticism of the day, regardless of the game context.

There's another kind of great play that's even more impressive - one that combines a feat of great athleticism (or great thinking) at a highly crucial moment in a contest. Recent prominent examples in pro football are the last two Super Bowls, with Santonio Holmes' catch on 3rd down with less than a minute left to win the game against the Arizona Cardinals; and David Tyree's last-minute 3rd down catch in last year's game to keep alive the Giants' game-winning drive. From the 2008 college football season the highlight was Michael Crabtree's (Texas Tech) last-second touchdown against Texas, which entirely changed the complexion of the college football season (by knocking Texas out of the No. 1 spot, and ultimately denying them the chance to play in the national championship game).

Raymar Morgan of the Michigan State basketball team made such a jump-out-of-your-chair clutch play in last night's Big Ten basketball game that sealed a victory guaranteeing the Spartans outright Big Ten championship.

Setting the stage: MSU had led against Indiana by 13 points with 9 minutes left, but then it failed to score another field goal for another 8 minutes, allowing Indiana to cut the lead to 2, with several chances to tie. Then, with less than a minute left, Morgan made his play, snatching a rebound with one hand and in one motion dunking it to give MSU a virtually insurmountable 4-point lead. Check it out.

The Audacity of Idealism - Great Week for Progressives

2009-02-28T09:31:00.008-05:00

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.

Legal Times Article on McDonald v. Chicago Amicus Brief

2009-02-24T16:44:00.003-05:00

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.

Obama Administration & State Secrets Doctrine

2009-02-11T09:17:00.007-05:00

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.

Michael Phelps & Unconstitutional Prohibition on Marijuana

2009-02-04T16:31:00.010-05:00

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?

2009-02-04T07:44:00.004-05:00

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.

Obama's First Ten Days - Progressive Agenda

2009-01-30T09:36:00.018-05:00

Those interested in progressive governance* are happy (mostly) with the Obama administration's promising start.

Here are some highlights from the first ten days:

Tuesday, Jan. 20 (Day One) - comments from inaugural:
-President Obama's appeals to reason & progressive government: "We will restore science to its rightful place, and wield technology's wonders to raise healthcare's quality and lower its cost. We will harness the sun and the winds and the soil to fuel our cars and run our factories, and we will transform our schools and colleges and universities to meet the demands of a new age." These comments cause “a lot of happy faces … in the science world,” says Frank Press, former president of the National Academy of Sciences. "It’s not just getting money. It’s his recognition of what science can do to bring this country back in an innovative way.”

-appeals to the other nations:: "To the Muslim world, we seek a new way forward, based on mutual interest and mutual respect. To those leaders around the globe who seek to sow conflict or blame their society's ills on the West, know that your people will judge you on what you can build, not what you destroy." And, "To those who cling to power through corruption and deceit, and the silencing of dissent, know that you are on the wrong side of history. But that we will extend a hand, if you are willing to unclench your fist." Also, "To all the other peoples and governments that are watching today, from the grandest capitals to the small village where my father was born: know that America is the friend of each nation and of every man, woman and child who seeks a future of peace and dignity. And we are ready to lead once more."

Wednesday, Jan. 21 (Day Two) –
-Government Transparency & Ethics: President imposes new rules on government transparency and ethics (mandating new limits on lobbyists and requiring that government disclose more information), commenting that “[t]ransparency and rule of law will be the touchstones of this presidency.”

-Ethics in Government: institutes rules to end the unseemly revolving-door between government and private business/lobbying. “For as long as I am president,” he says, officials from his administration will be barred from lobbying their former colleagues; and former lobbyists entering the administration are required to sign a pledge promising to recuse themselves from dealing with matters they had worked with in the private sector.

-War in Iraq: meets with senior civilian and uniformed officials to instruct them to start making plans to end the war in Iraq.

Friday, Jan. 23 (Day Four) –
-Economic Stimulus Plan: President meets with leaders of both parties in Congress to advocate quick passage of an $825 billion economic recovery package, pledging that three-fourths of the combined spending and tax cuts would be used within eighteen months (and $250 billion in aid to states to help them continue to provide education and health care services during this difficult economy);

-Abortion Aid: signs executive order repealing rules enacted during the Bush/Cheney regime restricting federal money for international organizations that offer counsel on contraception or promote or provide abortions overseas (even if with their own money only). “For the past eight years,” the President comments, “[these rules] have undermined efforts to promote safe and effective voluntary family planning in developing countries.... For these reasons, it is right for us to rescind this policy and restore critical efforts to protect and empower women and promote global economic development.” This is good news for both pro- and (perhaps ironically) anti-abortion groups alike. As Steven W. Sindling, past director-general of the International Planned Parenthood Federation and population adviser to the World Bank stated, “This will help many of the most effective providers of family planning services to enable women to avoid unwanted pregnancies.”

-Stem-cell Research: The President does not, however, move to lift President Bush’s restrictions on federal financing of embryonic stem-cell research, even though he has stated in the past that he supports such research. Congress will likely soon address, and is likely to pass, such a reversal; if it does not, the progressive can hope that President Obama will himself issue an executive order to that effect.

-Tightening the Financial Regulatory System: announces plans, through Treasury Dep’t nominee Timothy Geithner , economic team member Paul A. Volcker and others, to impose stricter federal rules for on financial markets and its participants.

Saturday, Jan. 24 (Day Five)
-Economic Stimulus Plan: President lays out details of the proposed $825 billion stimulus package in his first weekly video address: “This is not just a short-term program to boost employment. It’s one that will invest in our most important priorities like energy and education, health care and a new infrastructure tha are necessary to keep us strong and competitive in the 21st century.” As reported in the New York Times, according to a White House report providing additional details, the plan would:

double the generating capacity of renewable energy over three years, enough to power six million American homes;
retrofit two million homes and 75 percent of all federal buildings to better protect against the weather, saving low-income homeowners an average of $350 a year in utility costs and saving the government $2 billion a year;
use loan guarantees and other financial support to leverage $100 billion in private sector investment in clean energy projects over three years. The plan would lay 3,000 miles of new or upgraded transmission wires for a new electric grid;
help 8.5 million Americans keep health care coverage by providing workers who lose insurance with tax credits to pay for continuing coverage under the “Cobra” federal law, and by expanding Medicaid coverage for low-income Americans who lack access to Cobra;
modernize 10,000 schools, improve security at 90 ports and build 1,300 waste-water projects;
bolster Pell Grants to help seven million students, and offer a new tax credit for four million college students;
increase food stamp benefits for 30 million Americans;
increase Social Security benefits by $450 for 7.5 million disabled and elderly Americans.

Monday, Jan. 26 (Day Seven)
-Environment - Clean Air: President directs the Environmental Protection Agency to move swiftly on the applications of California and 13 other states to set strict automobile emission and fuel efficiency standards. This "progressive federalism" marks a sharp reversal from the Bush administration practice, which has been dragging its feet for years on this issue.

In addition, he directs federal departments and agencies to find new ways to save energy and be more environmentally friendly.

Tuesday, Jan. 27 (Day Eight)
-Foreign Affairs: In an interview on a major Arabic-language channel (Al Arabiya) based in Dubai, President Obama says he wants to convince Muslims that "the Americans are not your enemy," and comments that it is important to be willing to talk to the Iranians to see "where there are potential avenues for progress." Moreover, he expresses the view that the time is appropriate for negotiations between Israelis and Palestinians: "Israel will not stop being a strong ally of the United State, and I will continue to believe that Israel's security is paramount. But I also believe that there are Israelis who recognize that it is important to achieve peace. they will be willing to make sacrifices if the time is appropriate and if there is serious partnership on the other side."

-Employee Rights: Congress gives final approval to legislation, sure to be signed by the President, providing women, blacks and Hispanics with new power to bring pay discrimination claims against employers under the Civil Rights Act of 1964. The law addresses the Supreme Court's holding two years ago against Lilly Ledbetter in her claim against Goodyear Corporation for pay discrimination, on grounds that she should have filed suit within 180 days of the company's initial decision to pay her less than men (even though she only learned of the decision herself years later).

-Stimulus Plan: The President makes an unusual appearance on Capitol Hill and visits with House Republicans to try to win support for the Stimulus Package.

Wednesday, Jan. 29 (Day Nine)
- House passes $819 billion Stimulus Package 244-188 (no Republicans vote for it). Signaling his approval, the President comments, "What we can't do is drag our feet or allow the same partisan differences to get in our way. We must move swiftly and boldly to put Americans back to work, and that is exactly what this plan begins to do." Republicans such as Eric Cantor of Virginia, however, call the package "a spending bill beyond anyone's imagination."

-The President visits the Pentagon for the first time to discuss plans for withdrawing American troops from Iraq, expressing concern about the "enormous pressure on our military to carry out a whole set of missions," and promising to use other powers at America's disposal "to make sure that [the military] is not carrying the full load."

-Thursday, Jan. 30 (Day Ten)
-President publicly criticizes Wall Street bankers who awarded themselves $18 billion in bonuses even after being bailed out by federal money. "That is the height of irresponsibility," he says. "It is shameful. And part of what we're going to need is for the folks on Wall Street who are asking for help to show some restraint and show some discipline and show some sense of responsibility."

In short, a pretty good first week-and-a-half for the progressively inclined. Bob Herbert put it well in his Jan.24 NYTimes column: “[I]t’s called leadership. Mr. Obama has been feeding the almost desperate hunger in this country for mature leadership, for someone who is not reckless and clownish, shortsighted and self-absorbed. However you feel about his policies, and there are people grumbling on the right and on the left, Mr. Obama has signaled loudly and clearly that the era of irresponsible behavior in public office is over.”

*Constitutionally speaking, whereas the "liberty" in the "progressive liberty" concept is mandatory (i.e., government has no right to abridge inviolable individual freedom), the "progressive" part is discretionary (i.e., whether government is "progressive" or "conservative" or anything else is a political matter for the elected branches to work out among themselves).

Obama's First Seven Days - Constitutional Freedom Restored

2009-01-27T08:54:00.004-05:00

In purely constitutional terms, President Barack Obama's first days in office have been triumphant.

Leaving aside for the moment talk of stimulus plans, tax rates, etc. (all of which are discretionary political matters to be hashed out among the executive and legislature), on the separate matter of mandatory constitutional requirements - ie, those inviolable freedoms beyond the reach of the political process - Obama has acted swiftly and decisively to restore proper respect for core values eviscerated during the Bush/Cheney years.

Virtually daily during the President's days on the job we have seen important restorations of constitutional principle, both in word and action. Here's what happened in just the first three days alone:

Day One (Jan. 20, 2009 (Tuesday)):
-Rule of Law and Rights of Man: Before a worldwide audience during his Inaugural Address, new President Obama emphasizes, "we reject as false the choice between our safety and our ideals. Our founding fathers, faced with perils that we can scarcely imagine, drafted a charter to assure the rule of law and the rights of man; a charter expanded by the blood of generations. Those ideals still light the world, and we will not give them up for expedience sake." -American Power: He adds, "Earlier generations ... understood that our power alone cannot protect us, nor does it entitle us to do what we please. Instead they knew that our power grows through its prudent use. Our security emanates from the justness of our cause, the force of our example, the tempering quality of our humility and restraint. We are the keepers of this legacy."

-Suspends Gitmo proceedings: Late Tuesday night, the new administration orders an immediate halt to the military commission proceedings for trying detainees at Guantanamo Bay, to allow the administration time to assess detention policy, leading ACLU executive president Anthony Romero to comment that the move "reaffirm[s] American values and are a ray of light after eight long, dark years."

Day Two (Jan. 21, 2009 (Wednesday))
-Openness in Government: In recognition of the Constitution's core structural principle that government serves at the pleasure of the people, President Obama's very first executive orders reverse the Bush administration policy of resisting providing information. "Starting today," he says, "every agency and department should know that this administration stands on the side not of those who seek to withhold information, but those who seek to make it known." Among other things, these orders will allow reporters and historians access to Bush administration records.

Day Three (Jan. 22, 2009 (Thursday)) -Human Rights: surrounded by 16 retired generals and admirals, President Obama signs executive orders closing Guantanamo Bay within a year; ending the CIA's secret prisons; and requiring all interrogations to comply with the Army Field Manual (which forbids coercive methods like the infamous water-boarding).

-separately, Obama orders his administration not to rely on any legal opinions on the topic of interrogation issued from the Justice Department between September 11, 2001 and January 20, 2009.

All in all, it's a bright new day for the American Constitution.

Observations on President Barack Obama's Inauguration and Inaugural Address

2009-01-20T12:43:00.008-05:00

Some observations on this amazing day of Barack Obama's Inauguration:

Chief Justice John Roberts chose a bad time, in front of millions (billions?) of people watching around the world, to mess up his recitation of the oath of office, saying: "I Barack Hussein Obama, do solemnly swear" [Obama repeats], "that I will execute the office of the President to the United States faithfully," [Obama repeats, "that I will ...", then nods & waits for Roberts to correct himself, which he does, prompting, now accurately, "faithfully execute the office ..."], after which Obama too messes it up by placing "faithfully" at the end of the phrase, saying, "execute the office of the President to the United States faithfully." Oh well....

It was most refreshing to hear President Obama say in his Inaugural Address, "Our patchwork heritage is a strength, not a weakness. We are a nation of Christians and Muslims, Jews and Hindus, and non-believers." How nice to hear acknowledgement of non-believers. For too long they have been outcast in this nation, which officially proclaims "in God We Trust," even though the First Amendment prohibits government establishment of religion.

Other memorable points from the speech:

-recognition of the significance of his election: "[It is remarkable that] a man whose father less than sixty years ago, might not have been served in a local restaurant, can now stand before you to take a most sacred oath. So let us mark this day of remembrance, of who we are, and how far we have traveled."

American character & challenge: "Those values upon which our success depends - honesty and hard work, courage and fair play, tolerance and curiosity, loyalty and patriotism - these things are old. These things are true. They have been the quiet force of progress throughout our history. What is demanded then is a return to these truths. What is of us now is a new era of responsibility."

-appeal to reason & progressive government: "We will restore science to its rightful place, and wield technology's wonders to raise healthcare's quality and lower its cost. We will harness the sun and the winds and the soil to fuel our cars and run our factories, and we will transform our schools and colleges and universities to meet the demands of a new age."

-Hope: "Now, there are some who question the scale of our ambitions; who suggest that the system cannot tolerate too many big plans. Their memories are short, for they have forgotten what this country has already done. What free men and women can achieve when imagination is joined to common purpose, and necessity to courage. What the cynics fail to understand is that the ground has shifted beneath them; that the stale political arguments that have consumed us for so long no longer apply."

-appeal to the Muslim world: "To the Muslim world, we seek a new way forward, based on mutual interest and mutual respect. To those leaders around the globe who seek to sow conflict or blame their society's ills on the West, know that your people will judge you on what you can build, not what you destroy."

-appeal to despotic leaders: "To those who cling to power through corruption and deceit, and the silencing of dissent, know that you are on the wrong side of history. But that we will extend a hand, if you are willing to unclench your fist."

-repudiations of the Bush/Cheney approach: "As for our common defense, we reject as false the choice between our safety and our ideals. Our founding fathers, faced with perils that we can scarcely imagine, drafted a charter to assure the rule of law and the rights of man; a charter expanded by the blood of generations. Those ideals still light the world, and we will not give them up for expediency's sake." And: "Those of us who manage the public's dollars will ... do our business in the light of day, because only then can we restore the vital trust between a people and their government"

-appeal to the world of America's leadership: "To all the other peoples and governments that are watching today, from the grandest capitals to the small village where my father was born: know that America is the friend of each nation and of every man, woman and child who seeks a future of peace and dignity. And we are ready to lead once more."

-American power & humility: "Earlier generations ... understood that our power alone cannot protect us, nor does it entitle us to do what we please. Instead they knew that our power grows through its prudent use. Our security emanates from the justness of our cause, the force of our example, the tempering quality of our humility and restraint. We are the keepers of this legacy."

And last, Reverend Joseph Lowry's inspirational words in the benediction summed up the mood of the day perfectly: "Help us to work for that day when nation shall not lift up sword against nation; when tanks will be beaten into tractors; ... when justice will roll down like waters, and righteousness as a mighty stream.... In the joy of a new beginning, we ask you to help us work for that day, when black will not be asked to get back; when brown can stick around; when yellow will be mellow; when the red man can get ahead man; and when white would embrace what is right. Let all those who do love justice and mercy, say 'Amen.' Say 'Amen'; and 'Amen.'"

Amen.

What to Do About Bush/Cheney Abuses of Constitution

2009-01-19T09:17:00.011-05:00

In the run-up over the last weeks to the presidential transition, there has been a lot of talk about what to do about the Bush/Cheney administration's eight-year assault on the Constitution. (See, for example, Harvard law professor and former Reagan appointee (solicitor general) Charles Fried, Slate senior editor Dahlia Lithwick, Yale law professor Jack Balkin, Nobel Prize winning economist and New York Times columnist Paul Krugman, among others.)

Some say those who were responsible at the highest levels for authorizing such abuses as torture, incarceration for years without access to lawyers or legal process, warrantless wiretap programs, allowing the Justice Department to become a partisan vehicle for rewarding the administration's supporters and punishing its critics - to name just a few - should be criminally prosecuted. On the other extreme, some say what's done is done, and we need to look forward, so we should do nothing.

Probably the best approach, however, everything considered, is the middle ground: holding a full set of hearings so that we will finally be able to know the full extent of the various abuses and egregious excesses (given his advocacy for the technique in getting people to spill, maybe Dick Cheney should be waterboarded if he continues to resist providing information - what's good for the goose is good for ....); but not going for criminal prosecutions, with all of the delays and legal maneuverings that would entail.

Yes, we want to hold the perpetrators accountable, but the most important thing is to expose all of what went on so that it can be held up to the light of national and international condemnation. Criminal prosecutions would hinder that goal, and could turn into a frustrating legal circus. By contrast, a sort of American version of a Truth and Reconciliation Commission would more easily allow the evidence to come forth since it would not be subject the rigorous procedural and evidentiary requirements of a criminal trial.

In this way these people may be fairly judged - and likely condemned - by the court of history, with their names living on in infamy for betraying the high principles of fairness and justice for which America and its constitutional form of government stands.

Good Riddance Dick Cheney

2009-01-10T12:04:00.007-05:00

It's probably no surprise Dick Cheney is still defending waterboarding as legitimate. Of one thing we have become certain - Cheney is a dangerous man. Only 10 more days, then to the scrapheap of history.

In the recent presidential election, thankfully John McCain and Barack Obama were in full agreement on at least one thing: America does not torture. Decent Americans - Republican and Democratic alike - all agree on this point. And make no mistake: waterboarding IS torture, despite Cheney's, Bush's and John Yoo's (author of the infamous DOJ torture memo) lame protestations to the contrary. If it walks like a duck & quacks like a duck....

Cheney's ends-justify-any-means brand of neoconservatism is scarily reminiscent of that of the Nazi political theorist Carl Schmitt, whose theories on broad executive power paved the way for the fascist Adolf Hitler to lead a civilized, highly-cultured nation into committing the most egregious human rights violations in human history. In interpreting the Weimar Constitution, Schmitt argued that the president's power to declare a state of emergency granted him broad, virtually-dictatorial authority. Schmitt justified this expansive executive power as much more efficient and effective than resorting to the comparatively slow processes of legislation. Sound familiar?

Good riddance to Dick Cheney.

Blagojovich Appointment of Burris to Senate

2009-01-02T09:32:00.007-05:00

The appointment by Illinois governor Rod Blagojovich of Roland Burris to the U.S. Senate raises a number of interesting constitutional questions.

While Blagojovich seems remarkably out-of-touch with what most people would consider to be appropriate ethical behavior in politics, and his action in appointing Burris is surprising in its hubris and seeming defiance of his constituents, the citizens of Illinois (not to mention to Americans everywhere else), the appointment as it currently stands probably should be respected and acknowledged as legitimate by the Senate.

In stating they will refuse to seat Burris, Harry Reid and other Democrats in the Senate risk overstepping their appropriate role in our federal/state system. Granted, Art. I sec. 5[1]the Constitution provides that "Each House shall be the Judge of the ... Qualifications of its own Members," so it would seem the Senate could disqualify Burris if it sees fit. That said, the Constitution also provides in Article I, Sec. 3[3] that the only requirements for a person to be a member of the Senate are to be 30 years old, nine years a citizen of the U.S., and a citizen of the state for which s/he is selected to respresent. And when these two provisions are juxtaposed, the second seems to prevail - at least according to the Supreme Court on the facts of the 1969 Powell v. McCormack case. There, the House of Representatives tried to refuse to seat Adam Clayton Powell for a new Term in light of evidence he'd misappropriated funds during the prior Congress, but the Supreme Court said the ONLY basis by which the House could refuse to seat him was if he failed to meet the minimum age and residency requirements specified in the Constitution.

The Powell holding emphasizes the fact that the States have the right to designate whom they will for the Senate. And here, Illinois law allows a sitting governor to appoint a replacement for a vacant Senate seat; and Blago (arrested, yes, but still not impeached nor convicted) is still the duly-elected sitting governor of the State.

If anything, the power to resist Blago's brazen move is with the Illinois legislature - it should have moved faster to remove Blago's authority through impeachment or some other mechanism. It has been several weeks now since we've learned of his pay-to-play modus operandi, and the legislature could have acted more quickly to prevent this (alleged) crook from exercising his authority. There may still be some way for the Illinois legislature to trump Blago's appointment - e.g., apparently (disclaimer: hearsay - I've not researched this) there's a state law provision essentially recommending that the governor's appointment be certified by the Illinois Secretary of State, so perhaps the legislature could add teeth to that provision by requiring the Secretary's certification in order for a gubernatorial appointment to be effective.

The point is, however, that the question of whether this or some other patch could work is a question worthy of some consideration by the good folks of Illinois, probably not the U.S. Senate - as much as the outrageous behavior of Rod Blagojovich might tempt it to do so.

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

2008-12-19T10:22:00.006-05:00

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

2008-12-16T11:15:00.006-05:00

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

2008-12-04T11:34:00.002-05:00

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

2008-11-25T09:28:00.005-05:00

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

2008-11-21T11:28:00.004-05:00

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

2008-11-10T08:17:00.010-05:00

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

2008-11-09T15:26:00.005-05:00

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

2008-11-05T08:29:00.009-05:00

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

2008-11-02T22:26:00.004-05:00

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

2008-10-05T13:25:00.007-04:00

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

2008-09-27T11:49:00.010-04:00

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"

2008-09-12T16:00:00.006-04:00

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

2008-09-11T11:13:00.014-04:00

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?

2008-09-09T07:10:00.008-04:00

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

2008-08-29T02:14:00.009-04:00

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

2008-08-13T14:46:00.007-04:00

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

2008-08-11T21:21:00.009-04:00

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

2008-08-08T08:46:00.005-04:00

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

2008-07-22T08:34:00.005-04:00

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

2008-07-21T12:12:00.004-04:00

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

2008-07-19T21:44:00.005-04:00

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

2008-07-19T21:32:00.010-04:00

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"

2008-06-29T10:11:00.006-04:00

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

2008-06-26T13:16:00.004-04:00

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

2008-06-25T09:54:00.006-04:00

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

2008-06-15T11:38:00.009-04:00

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

2008-06-13T09:10:00.013-04:00

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

2008-06-11T07:27:00.008-04:00

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"

2008-06-05T09:06:00.005-04:00

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

2008-06-01T11:13:00.005-04:00

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"

2008-06-01T10:49:00.010-04:00

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.