Balkinization  

Friday, March 12, 2004

JB

They Can't Handle The Truth, But They Sure Can Manhandle It.

Dick Meyer introduces us to Bushworld.

I've written about the Administration's tendency to fudge the facts where science is concerned before. Let me offer a more serious take on this story. Here's the basic lesson: You can't have a successful administrative state in a complex democracy unless science and intelligence are insulated from politics.

This leads me to a short digression on comparative constitutional design.

Parliamentary systems in robust democracies generally produce a professional civil service whose basic job is to carry out the policy demands of whichever party is in power. (Knowing that the government may change at any time, the civil service will strive to present themselves as reliable technocrats, not as ideologues). Because their job is administrative efficiency, and they have incentives to put themselves at the service of whoever controls the government, their professional ethos places high value on factual accuracy and technical expertise.

Presidential systems that feature separation of powers, by contrast, cannot guarantee the same degree of loyalty from civil servants, because the latter can also appeal to Congress for political support and play one branch off against the other. Hence presidential systems tend to include a significant number of political appointees-- much larger than you will find in most parliamentary systems-- layered over the civil service in order to ensure loyalty at the top levels. Moreover, mature presidential systems-- like the United States-- may often duplicate existing functions performed by civil servants-- like intelligence gathering or environmental or foreign policy advice-- and staff them almost exclusively with political appointees.

And here's the problem. The more political appointees you have displacing the professional class of civil servants, the greater the danger that the policy process will get corrupted by short-term political considerations. If the political appointees play fast and loose with the facts on a regular basis, they will undermine the efficiency of the administrative state in any large and complex democracy. The danger of this is always greater in presidential systems than parliamentary systems, (although it can happen in the latter too!) but it's usually kept more or less in check.

Unfortunately, things seem to have come apart in the current Administration. I don't know whether this is due to the example set by Bush and his most senior political advisors, whether the Administration has ignored career people and paid attention only to information coming from political loyalists, whether a tipping point has been reached with too many political appointees in positions they should not hold, or whether the problem is an accelerating duplication of functions that have effectively shut out career employees from important information gathering and policy implementation decisions. Whatever the reasons, the corruption of the policy making and implementation process seems to be a real problem for this Administration.

The next Administration needs to seriously reconsider the structure of political appointments in government and the flow of information and advice from career officials to political officials. It needs to reduce existing incentives for short-term political considerations to infect policymaking and it needs to reform executive branch institutions to promote the production of accurate information for governmental decisionmaking. If it does not, the consequences for the country could be quite serious. We've already seen how mismanaged information practices have affected environmental policy, health care policy, and even the decision to go to war. If the production of accurate information for use by government officials continues to be corrupted, matters will only get worse.


JB

Halliburton Admits To Overcharging (Again)

Capitol Hill Blue reports.



JB

Bush Endorses New Constitutional Amendment to Protect Democracy

Because the Federal Marriage Amemdment seems not to have taken off, the Administration is offering this carefully worded substitute, the Protection of Democracy Amendment:

Democracy in the United States shall consist only of the union of one Republican candidate and one Presidency. Neither this constitution or the constitution of any state, nor state or federal law, shall be construed to require that Presidential status or the legal incidents thereof be conferred upon non-Republican persons or groups.

Presidential spokesman Scott McClellan explained that the new amendment will ensure that "the wrong sort of people don't hold power in our freedom loving democracy." When asked to specify who the "wrong sort of people" were, he replied, "I didn't say that."

Attorney General John Ashcroft stated that the Administration had tried unsuccessfully to convince the courts that only Republicans could be members of the federal government on the basis of Article IV, section 4, the so-called Republican Government Clause, which states that "The United States shall guarantee to every state in this union, a republican form of government." "As I've said to the courts over and over," Ashcroft explained, " what part of the word "republican" don't you understand?"

McClellan added that "because unelected judges have refused to read Article IV according to its plain meaning, and because unnamed persons have insisted on running for the Presidency and garnering significant public support, it is now necessary for the President to get behind this new amendment."

"When the President enjoyed eighty percent approval ratings," McClellan explained, "it wasn't really necessary to change the Constitution to guarantee his succession in office. But now that the poll numbers are slipping below fifty per cent, there's a real danger that activist politicians will undermine democracy by winning more votes than President Bush. We barely avoided this catastrophe four years ago, and we are not going to allow it to happen again."


JB

Walid Horton

I for one am glad that the Bush campaign isn't trying to invoke racial stereotypes and play on the public's fears about anyone who looks vaguely Middle Eastern.

Oh wait, this was from the Bush campaign!



Thursday, March 11, 2004

JB

Get Well Soon John

The Attorney General is expected to make a complete recovery, CBN reports.

I guess we will no longer be able to say: "How does John Ashcroft have the gall to do that."


JB

Families of Soldiers Form Antiwar Movement

The Washington Post reports. Military families tend to be among the staunchest supporters of the Administration. A small but growing number, however, now feel a sense of betrayal. The key moment for many was when it became clear that there were no weapons of mass destruction:

When the invasion of Iraq began, Dvorin -- a 61-year- old Air Force veteran and a retired cop -- thought the commander in chief deserved his support. "I believed we were destroying part of the axis of evil," he says. "I truly believed that Saddam Hussein was a madman and that he possessed weapons of mass destruction and wouldn't hesitate to use them."

By the time Army 2nd Lt. Seth Dvorin was sent to Iraq last September, however, his father was having doubts. And now that Seth had been killed, at 24, by an "improvised explosive device" south of Baghdad, doubt had turned to anger."Where are all the weapons of Mass Destruction?" Richard Dvorin demanded in his letter. "Where are the stockpiles of Chemical and Biological weapons?" His son's life, he wrote, "has been snuffed out in a meaningless war."

His is not the only military family to think so. In suburban Cleveland a few days later, the Rev. Tandy Sloan tuned in to the "Meet the Press" interview with President Bush and felt "disgust." His 19-year-old son, Army Pvt. Brandon Sloan, was killed when his convoy was ambushed last March. "A human being can make mistakes," the Rev. Sloan says of the president. "But if you intentionally mislead people, that's another thing."

In Fullerton, Calif., paralegal student Kimberly Huff, whose Army reservist husband recently returned from Iraq, makes a similar point with a wardrobe of homemade protest T-shirts that say things like "Support Our Troops, Impeach Bush."

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Wednesday, March 10, 2004

JB

More Reasons to Think That The Internet Is Helping Public Deliberation

Readers of this blog know that I have criticized Cass Sunstein's argument in Republic.Com (both here and here) that the Internet, more than traditional mass media, is likely to lead to ideological polarization and balkanization of public discourse. (Note that I have no problems with balkinization, by the way). Daily Kos offers yet another reason to think that Sunstein's fears are overstated: the ability of political opponents to fact check each other's work and report it to the Internet for consumption by the public and by reporters, who, in turn can distribute it in the traditional mass media. In order for this to occur people must be reading, linking to, and discussing statements by their political opponents, precisely what Sunstein is worried will not happen on the Internet. This fact checking is counteracting some of the "echo chamber" effect that Sunstein worries will improverish public discourse.

In fairness to Sunstein, he wrote his book before the advent of blogs, and thus based his analysis on traditional mass media models, which, I have argued, are inapposite. I continue to believe that we have to rethink how the public sphere is reconstituted by the Internet. That reconstitution may not be always to the good, but it is much much healthier than many of the Internet's critics have feared.


JB

Fun With the New Iraqi Constitution

Are you sure we have a Republican administration in the White House? Check out the following provisions:

Article 14.

The individual has the right to security, education, health care, and social security. The Iraqi State and its governmental units, including the federal government, the regions, governorates, municipalities, and local administrations, within the limits of their resources and with due regard to other vital needs, shall strive to provide prosperity and employment opportunities to the people.


My goodness, what do I see? A social rights provision? Constitutional protections for health care and educational benefits? How did this one get past Grover Norquist?
Article 15 . . .
(G) Every person deprived of his liberty by arrest or detention shall have the right of recourse to a court to determine the legality of his arrest or detention without delay and to order his release if this occurred in an illegal manner.

Jose Padillia is probably wishing we had this provision in our Constitution.
Article 17.

It shall not be permitted to possess, bear, buy, or sell arms except on licensure issued in accordance with the law.


Did anyone run this one by the NRA? Not a very good way to appeal to the base, Georgie boy!
Article 23.

The enumeration of the foregoing rights must not be interpreted to mean that they are the only rights enjoyed by the Iraqi people.


Well, you might as well just invite Bill Brennan and his crazy liberal brethren to set up shop in Iraq. But wait, it gets worse:
They enjoy all the rights that befit a free people possessed of their human dignity, including the rights stipulated in international treaties and agreements, other instruments of international law that Iraq has signed and to which it has acceded, and others that are deemed binding upon it, and in the law of nations. Non-Iraqis within Iraq shall enjoy all human rights not inconsistent with their status as non-citizens.

What? Incorporate international human rights law into the Constitution? Where's the National Review crowd when you need them?

My advice to any self-respecting conservative Republican: stop the madness, before the Iraqi Constitution infects us all!




Tuesday, March 09, 2004

JB

More on Conservative Judicial Activism

Several people have now joined in the original debate begun by Jonah Goldberg's offhand assertion that liberals, and not conservatives, are judicial activists. I responded that judicial activism has a long history by conservatives, and that the current Rehnquist Court has made many activist decisions. Stuart Buck has responded that we can't blame contemporary conservatives for the actions or practices or views of people in the past who were called conservatives, because their views are so different from those of contemporary conservatives. Larry Solum argues that to identify conservatives in the past with conservatives today is sheer nominalism. And he also argues that the term "judicial activism" is without meaning.

Let me try to disentangle a few of the many issues raised in these posts.

First, Stuart has not yet attempted to demonstrate that the current Rehnquist Court has not been engaged in conservative judicial activism in its federalism and commercial speech decisions. (Need I mention Bush v. Gore in addition? Oh well, why not?) Rather, he has spent most of his time trying to distinguish contemporary conservatives from conservatives of the past. He is haunted, as so many are, by the ghosts of Lochner, Pollock, and Dred Scott. I'll return to Stuart's concerns in a moment, but let me point out that if Stuart agrees with me about the conservative majority in place and its work, that's all I need to respond to Jonah Goldberg's original claim: Jonah is under the delusion shared by many conservative pundits that the Warren Court is still in operation. It's not. Today conservatives control the judiciary and they are discovering the virtues of activism in all of its wonderful forms. This is the thesis, by the way of Keith Whittington's recent paper "The New Originalism." Whittington points out that originalists like Robert Bork argued for a jurisprudence of original intention because they thought it would deter what they considered to be the liberal activism of the Warren Court. But once conservatives took over the judiciary, Whittington points out, they developed a new use for originalism-- to strike down laws that they didn't like. The New Originalism is no longer aligned with judicial restraint; rather it's a tool of judicial activism. The point I was making to Jonah is that he is holding on to old fashioned stereotypes which haven't been adequate for some time. Today judicial activism is not the prized possession of wild eyed liberals: conservatives-- and especially today's conservatives-- are doing it too, and because they control the courts they probably have more opportunities. At the same time many liberal scholars and judges are rediscovering the virtues of judicial restraint, as you can see in their positions on areas ranging from campaign finance to affirmative action.

Second, I certainly agree with Stuart and Larry Solum that conservatives have changed their views on many issues over the course of the nation's history. I would add that there have been many different types of conservatives existing at roughly the same time: Compare, for example, Northern Whig defenders of business interests with Southern Democrat defenders of slavery in 1838. Or compare today's conservative libertarians with today's social conservatives. Nevertheless, I can't go as far as Stuart or Larry and say that there are no transhistorical notions of conservatism in the United States. Many scholars in political science and history have devoted their entire academic careers to studying the growth and development and transformation of these ideologies. It simply won't do to dismiss this body of scholarly work with a simple philosophical expression like "nominalism." Political formations exist over time and endure through their transformations. (Religions do too, by the way). Would either Stuart or Larry deny that FDR was a liberal because FDR's liberalism differs in important respects from that of the Warren Court? The more plausible way of looking at things is that American liberalism shifted many of its positions in response to political, social, and economic changes, as did American conservatism. But certain themes have remained dominant in American liberalism-- the concern with egalitarianism (both economic and social) and with breaking down older social hierarchies.

Liberals have not been consistent about advocating judicial restraint precisely because their political ideologies cross cut with institutional concerns, and the same, I should add, is true of conservatives. My point in raising the example of Lochner was to remind Jonah, and now Stuart and Larry, of the long period of time in which it was the liberals who were complaining of judicial activism by conservative Justices and preaching judicial restraint; this was followed by a period in which conservatives like Robert Bork were attacking what they regarded as the judicial activism of the Warren Court and arguing for judicial restraint. My point was, and remains, that it is a big mistake to think that judicial activism is the modus operandi of any one political ideology. Political ideologies are quite often opportunistic with respect to institutional questions. Exhibit A is the Religious Right's demand for a constitutional amendment that would take the power to define marriage away from the states, where it has traditionally resided. In this example it seems clear that federalism concerns are yielding to ideological goals.

Third, I want to endorse Randy Barnett's point that judicial activism is often an epithet hurled at decisions you don't like. That is the way that I understood Jonah Goldberg's use of the term-- he was, after all, writing a short op-ed piece on a blog; he was not engaged in a scholarly discussion of what the term might mean. When used as an epithet, people normally mean by "judicial activism" that a court is exercising judicial power in *unjustified* ways given their perspective of what the best interpretation of the Constitution is. That's what I understood Jonah Goldberg to be saying about liberals. And when I have criticized the Rehnquist Court's judicial activism, I have implicitly suggested that I think that those decisions are unjustified (which is, in fact, my view).

If we define judicial activism in the way that Randy suggests-- as unjustified assertions of judicial power viewed from the perspective of the person making the charge-- then it follows rather easily that neither contemporary liberals or conservatives are committed to judicial restraint or judicial activism as a general rule. That is because the accusation of judicial activism is relative to a particular view of what the right interpretation of the Constitution is. Liberals and conservatives pick and choose whether they think courts should intervene or not in particular cases based on their larger political visions (restrained, as always, by the available modalities of constitutional argument). Because their visions are often opposed in these cases, they inevitably disagree in many cases about whether judicial power was exercised legitimately or illegitimately. Hence the liberals end up arguing for restraint when the conservatives argue for what in the view of liberals appears to be judicial activism, and vice versa. Remember that if judicial activism is defined as the unjustified or illegitimate use of the judicial power, then when liberals exercise judicial power in ways that conservatives think is unjustified conservatives will call it judicial activism, while when conservatives exercise judicial power in ways that liberals think is unjustified liberals will call it judicial activism. It is this feature of contemporary political and legal discourse that makes me deeply suspicious when someone like Jonah Goldberg offers casual aspersions about how liberals-- and not conservatives-- are judicial activists.

Larry Solum argues that there must be an analytic distinction "between decisions that depart from precedent, text, and original meaning--and those that do not" and this distinction should be used instead of the activism/restraint distinction. In his view this solves the relativity problem. Because there is a right answer to cases based on original meaning and precedent, we can tell who is *really* being a judicial activist. I wonder whether this distinction can do the work that Larry wants it to, in part because I regard precedent as much more flexible than he appears to, and in part because I don't think that most of the important constitutional disputes that divide liberals and conservatives have a single right answer. But that is a subject for another post.



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