Stop McCain: "I'd Spy on Americans Secretly, Too"

Democrats have taken to dubbing a John McCain term as "Bush III," and word just out from the McCain campaign suggests this moniker has some merit, at least when it comes to McCain's position on Executive Power.

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

Commenting on former Bush-Press Secretary Scott McClellan's new tell-all book, "What Happened," detailing the lies and duplicity of Bush, Cheney, Rove, etc, Maureen Dowd pinpoints what's so maddening about Bush:

"It turns out that our president is a one-man refutation of Malcolm Gladwell’s best seller “Blink,” about the value of trusting your gut. Every gut instinct he had was wildly off the mark and hideously damaging to all concerned. It seems that if you trust your gut without ever feeding your gut any facts or news or contrary opinions, if you keep your gut on a steady diet of grandiosity, ignorance, sycophants, and peanut butter and jelly sandwiches, those snap decisions can be ruinous…."

As Dowd comments, "We already know What Happened, but it feels good to hear Scott say it."

The Debaters - "An Unjust Law Is No Law At All"

Last night I watched Denzel Washington's and Forrest Whitaker's "The Debaters," the true story about the tiny all-Black Wiley College (Texas) debate team that went undefeated for ten years (~1935-45) against the likes of Harvard, just out on DVD - highly recommended.

One St. Augustine maxim, quoted in a debate scene by one of the leads in support of Civil Disobedience, stands out: "An Unjust Law is No Law At All."

Majorities sometimes pass oppressive laws; and it is the right, or even the duty, of fairminded people to resist, whether (to paraphrase the closing lines in the movie's debate argument) "by violence, or by civil disobedience. You should pray that I choose the latter."

. . . . .

This line of thought speaks to the proper role for courts in the constitutional system: it is the courts' judicial role, through judicial review, to protect minority and individual interests from oppressive impulses of the majority.

Politics in Classroom?

Law professors are generally a pretty opinionated lot, and there's always a question of how much to bring one's own views into the classroom. This is especially true in a class with as many charged issues as constitutional law.

My classroom approach is to try to avoid proselytizing, on the rationale that the class isn't about me - it's about the Constitution.

Just the other day I received an anonymous e-mail from one of my students confirming this is the proper approach, at least for me. I'm grateful to this student for sharing the e-mail with me - this is about as good as it gets for a teacher....

With that person's permission, here's the e-mail:

"Now that the semester and finals are over I wanted to take a moment and thank you for your teaching methods this semester in Constitutional Law II. When I refer to your teaching methods, I am referring to your ability to stay politically neutral. Before I took your class this spring I was very concerned about your position on the political ideology scale. I had read your blog a couple times and to say the least, you and I are on opposite sides. Or to sum it up better, you despise President Bush and I believe that he is doing what he believes is best for our country. With Constitutional Law already being such a politically driven subject, I was actually considering not taking the class with you as the professor. In the past, throughout undergrad and lawschool, I have had an overwhelming majority of “liberal” professors and many (most) of them have in some way or another tried to persuade the class to believe as they do, and many of those were business classes which have no real political influence.

"Although a conflicting political viewpoint should never be a reason to avoid someone, if you are in a position to avoid it, most do. During this semester our class had many different discussions over many different topics and you did an amazing job as a mediator. Some professors believe that if they throw in a joke about both sides it clears the air about who they are really attacking, but most of the students in the room know what is really going on. You on the other hand did not do this a single time, you did not voice your opinion on any major controversies, and even with most trivial subjects you avoided giving the class your point of view. You allowed and encouraged class discussion on both points of views on every subject.

"This type of control is very hard to come by with any person, let alone a very political person teaching a very political class topic. Sorry for the rambling, but I am just trying to make sure you realize how much I appreciated you throughout the semester. You allowed me to focus on Constitutional Law, and not my personal objections to your beliefs and because of this, I feel I was able to grasp the content of the class. Even if in the end I did not do well on the final I believe that I understood the subject, and would recommend your Constitutional Law class to anyone.... Thank you again.

MSU Law Student, Constitutional Law II, Spring2008"

Dems' Day of Reckoning

So today is the Democrats' (latest) day of reckoning - this time in North Carolina and Indiana.

As the race for the nomination continues, we're getting a clearer picture of the character of candidates Clinton and Obama, and what we might expect if either are elected President. As David Brooks puts it in today's New York Times:

"Th[e] contrast between combat and composure defines the Democratic race. The implicit Clinton argument is that politics is an inherently nasty business. Human nature, as she said Sunday, means that progress comes only through conquest. You’d better elect a leader who can intimidate. You’d better elect someone who has given herself permission to be brutal.

"[By contrast,] Obama’s campaign grows out of the longstanding reform tradition. His implicit argument is that politics doesn’t have to be this way. Dishonesty and brutality aren’t inevitable; they’re what gets in the way. Obama’s friend and supporter Cass Sunstein described the Obama ideal in The New Republic: “Obama believes that real change usually requires consensus, learning and accommodation."

"That’s regarded as naïve drivel in parts of Camp Clinton.

"Campaign issues come and go, but this is a thread running through the race. One believes in the raw assertion of power, the other the power of communication."

Brooks offers the rivals' differing appearances on last Sunday's talk shows as Exhibit A:

"Hillary Clinton went on “This Week With George Stephanopoulos” incarnating her role as the first Democratic Rambo. The Clinton campaign seems to want to reduce the entire race to one element: the supposed masculinity gap. And so everything she does is all about assertion, combat and Alpha dog dominance.

"A few questions in, Clinton rose from her chair and loomed over Stephanopoulos. The country hasn’t seen such a brazen display of attempted middle-aged physical intimidation since Al Gore took a walkabout on the debate stage with George Bush. It was like watching someone get elbowed in a dark alley by their homeroom teacher.

"But her attempt to take over the show was nothing compared with her attempt to dominate the truth. For the first 30 minutes, she did not utter a single candid word, including, as Mary McCarthy would say, “and” and “the.”

"She peddled her sham gas-tax holiday and repeated her attempt to blame Indiana’s job losses on outsourcing and Nafta. Stephanopoulos asked her to name a single economist who thinks a tax-holiday plan would work, and the daughter of Wellesley and Yale took the chance to shove the geeks into their lockers: “I’m not going to put my lot in with economists.” ...

"Barack Obama gave off an entirely different vibe on “Meet the Press.” His campaign has been in the doldrums for the past few months. He’s never come up with an explanation about how he would actually transform politics, and his conventional substance is beginning to overshadow his unconventional style.

"But, as Sunday’s contrast made clear, Obama still seems like a human being. He still seems to return each night to some zone of normalcy where personal reflection lives. He wasn’t fully candid when answering questions about the Rev. Jeremiah Wright, but there are some inner guardrails that prevent the spin from drifting too far from the truth. Thoughtful and conversational, he doesn’t seem to possess the trait that Clinton has: automatically assuming that critics are always wrong.

"Obama still possesses his talent for homeostasis, the ability to return to emotional balance and calm, even amid hysteria. His astounding composure has come across as weakness in the midst of combat with Clinton, but it’s also at the core of his promise to change politics. He vows to calm hatred and heal division." ...

"Still, amid the storms of the presidency, their basic worldviews would shape their presidencies. Obama is instinctively a conversationalist and community-mobilizer. Clinton, as she says, will fight and fight. If elected, she’ll have the power to take the Hobbesian struggle she perceives, and turn it into remorseless reality."

So Democrats, and all Americans, do have a real choice - and having seen the candidates' behavior in this hotly-contested race, we'll get what we deserve.

Autonomy, Tolerance & Gems from Einstein

I've written here previously about Walter Isaacson's biography of Albert Einstein on the topic of Einstein's fierce independence and individual autonomy. In Einstein's words:

-"Blind respect for authority is the greatest enemy of truth." (p.67)

-"Long live impudence! It is my guardian angel in this world." (p.73)

-"[Some part of genius is due to a measure of] incorruptible skepticism and independence." (p. 83)

-“When teaching history, there should be extensive discussions of personalities who benefited mankind through independence of character and judgment.” (p.6)

-"It is important to foster individuality, for only the individual can produce the new ideas." (p.7)

Isaacson sums, "[Einstein's] success came from questioning conventional wisdom, challenging authority, and marveling at mysteries that struck others as mundane. This led him to embrace a morality and politics based on respect for free minds, free spirits, and free individuals. Tyranny repulsed him, and he saw tolerance not only as a sweet virtue but as a necessary condition for a creative society." (p.7)

Progressive Liberty in the Commons - What is "Progressive" and what is "Liberty"?

A persistent conundrum for those of us with libertarian sympathies is that individual freedom and the common-good seem, almost by definition, to be mutually exclusive.

So how can a concerned individual justify individual liberty when we understand the dynamics of some groups, where individuals acting in their own self-interest make decisions that when combined with the similar self-interested decisions of other individuals tend to despoil the environment (or, beyond environmental issues, where individual aggressive impulses that when combined with similar impulses of others lead to moblike or warlike behavior)?

We may recall that this was the scenario illustrated in Garrett Hardin's classic 1968 essay, "Tragedy of the Commons," in which Hardin concluded that personal self interest, unchecked by any limiting factor, may lead to environmental destruction: "The rational man finds that his share of the wastes he discharges into the commons is less than the cost of purifying his wastes before releasing them. Since this is true for everyone, we are locked into a system of 'fouling our own nest,' so long as we behave only as independent, rational, free-enterprisers." (I explore the issue of the commons and formal property regimes in a 1999 book chapter entitled "Common Property and Natural Resource Management: A Michigan Perspective," which appears in the book series "The Economics of Legal Relationships" (vol. 5)).

"Progressive Liberty" is an attempt to reconcile the seemingly contradictory concepts of individual liberty and the common-good.

Looking first at the "Liberty" part, an excellent place to start is with the "harm principle" enunciated in J.S. Mill's 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." (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").

Yale professor Ian Shapiro suggests, “think of the harm principle as operating in two steps. 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. If, however, the answer to the initial query is yes, then 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? In this regard, a more accurate summation of the harm principle than the more famous formulation already quoted [is]: ‘As soon as any part of a person’s conduct affects prejudicially the interests of others, society has jurisdiction over it, and the question whether the general welfare will or will not be promoted by interfering with it becomes open to discussion. But there is no room for entertaining any such discussion when a person’s conduct affects the interests of no persons besides himself.’” (Shapiro, The Moral Foundations of Politics p.61).

So this is where the "Progressive" part of Progressive Liberty comes in. As Shapiro states, society has jurisdiction over a person's conduct when that conduct prejudicially affects, or harms, the interests of others. In this case it is open to discussion through the democratic process whether the common good will be promoted by regulating the individual's conduct (liberty). Through progressive legislation, then, the society strikes a balance.

It is important to re-emphasize Shapiro's point, however, that short of the point at which a person's conduct affects the interests of no persons besides himself , "there is no room for entertaining [memorializing into law] any such discussion." "Liberty" prevails and the individual's autonomy cannot 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. (I propose a judicial standard of review to address and counteract this overreaching tendency of government in a 2007 article in the Louisiana Law Review entitled "Government as Liberty's Servant: The 'Reasonable Time, Place and Manner' Standard of Review for All Government Restrictions on Liberty Interests").