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."
Thursday, December 10, 2009
Tuesday, November 24, 2009
Something on Which We Can All Agree - Less Government in Criminal Justice
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.
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.
Wednesday, November 18, 2009
McDonald v. Chicago - Petitioner's Brief
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.)
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.)
Thursday, November 12, 2009
Destroy the Filibuster
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.
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.
Wednesday, October 28, 2009
Free Radicals - Individual Efforts Can Change the World
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
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
Tuesday, October 27, 2009
Kudos to Harry Reid for Including Public Option in Proposed Health Care Bill
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.
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.
Saturday, October 24, 2009
Obama Needs to Take Stands on Principle
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.”
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.”
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