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

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

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

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

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

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

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

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.