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Balkinization
Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Darkness Visible
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Friday, August 24, 2007
Darkness Visible
Sandy Levinson
So let's review the bidding: On the one hand, we have a Chief Executive, claiming extremely broad powers under the Commander-in-Chief Clause of Article II, who, if he believes he own arguments, seems to think that it is vital to American interests that we not ever leave Iraq prior to victory over (at least) al Qaeda in Mesopotania and (possibly) other sectarian forces that are making any semblance of ordinary life unattainable in Iraq. (Read, for example, the New York Times article on the sporadic operation of the electrical grid in most of that country, for reasons, incidentally, that do not seem to be traceable only, if at all, to al Qaeda.) There is also reason to believe that he identifies with Winston Churchill (not to mention some possible versions of Christian eschatology) in terms of his world-historical importance in resisting the forces of evil represented by our enemies in Iraq (and elsewhere). That kind of rejection of military service as an option of young blacks throughout the country has resulted in a sharp drop in black recruitment figures since the war began. Defense Department reports show that the share of blacks among active-duty recruits declined to 13 percent in 2006 from 20 percent in 2001, the last year before the invasion of Iraq began to seem inevitable. And while blacks continue to account for a larger share of the existing troop level than their share of the general population, as has been the case throughout the 34 years of the all-volunteer force, that margin is shrinking. The sharpest decline in black recruitment has been experienced by the Army, which has the most troops deployed in Iraq; black recruits dropped to 13 percent of the Army’s total in 2006 from 23 percent in 2001. In the Marines, with the second-largest force in Iraq, the share of black recruits decreased to 8 percent from 12 percent in the same period. There were also declines in the Navy and the Air Force, though not as great as those in the two other services.
Comments:
For me, at least, this counts as a "constitutional crisis" and not only a "political crisis," though we have to recognize that the crisis occurs because of our Constitution rather than in spite of it.
JMHO, but I think next year's election has the promise of being one of Prof. Ackerman's constitutional moments.
Professor Levinson:
Read the Dem papers at your own risk of being lied to about what the military thinks. General Pace said the uncredited LAT story that he was recommending a withdrawal was false and the military immediately stepped on the Warner withdrawal idea by essentially asking which recently cleared area he wanted to give back to al Qaeda. Always eager to find the cloud behind every silver lining about the military, the NYT whines that African Americans are losing opportunities to join the military because more are declining to serve their country in a time of war as if the military is a make work program. In fact, the military is meeting its recruiting goals and is actually expanding to meet congressional authorizations for more units. I am sure that, if minorities were increasing their percentage in the military, the NYT would pull out that old leftist chestnut about the military being made up of poor blacks with no other options in life. The fact is that there are plenty of patriotic young men an women willing to serve their country. With the demonstrated and rather dramatic military success of the Surge, the question is not whether the GOP can sustain a veto of the latest Dem retreat and surrender legislation, but rather whether enough Blue Dog Dems will join the anti war left to muster a simple majority for such a vote.
I still think your insistence on describing divided government with a President you don't like as a "Constitutional crisis" is remarkably over-wrought. The fact that you don't like the government we've got doesn't make it broken.
There is very much a constitutional crisis when the president and his administration do everything they can to circumvent attempts at oversight, and blunt the justice system at every opportunity.
The crisis is that the Constitution does not address the fact that a sitting president would willfully suborn criminal behavior in such a way as to render the justice system incapable of responding. If this continues, the law, and the justice system as we know it will be worthless. It won't be much longer...
I tend to agree with much that Tom has said, but let me suggest that the real 'crisis' is this: Assume, as may even be the case, that Bush has done nothing that meets the post-Clinton definnition of "high crimes and misdemeanors." So what? It is a crazy feature of our system that we treat impeachment as a completely legal notion and believe that the key question is whether the President has committed a criminal offfense and not whether he is a blithering and ignorant incompetent. No one living in a parliamentary system would waste two minutes on the former question if he or she had come to the latter conclusion. What cost Margaret
Thatcher her job had nothing to do with an evaluation of her proclivity to bey British law. Only Americans think that law abidingness is the central question with regard to maintaining in office such a clearly deficient President (and his demented vice president).
As for Mr. DePalma's point, perhaps he wishes to read the lead story in Saturday's NYTimes, http://www.nytimes.com/2007/08/25/washington/25policy.html?hp, detailing the increasingly bitter split within the Pentagon, though I concede that we won't know for several more days (and possibly weeks) exactly how deep the rift it. But it is surely as premature for him to believe that the top brass in the Pentagon are behind the President's policy of no exit as to for me to believe that Gen. Pace, recently fired by the Administration, will engage in a flamboyant exit by denouncing the President's stubbornness. Time will tell which of us (and the newspapers we rely on) is closer to the truth.
As for enlistment, I think there is no evidence whatsoever that the armed forces are getting enough high-level recruits to avoid having to enlist juvenile delinquents and others whose records would have kept them out of the military in, say, 2002. If he has any evidence, I'd be interested in reading it.
First, it is not true that Congress has no tools with which they could deal with the President. There's impeachment, which I seriously doubt Democrats would be so determined to do on only criminal grounds if they actually had the votes to impeach. There's defunding the President's policies, and if a Congressional majority thought it important to obstruct those policies, it would happen. There's defunding things that hit the President where he lives... Imagine Air Force 1 with no budget, and the President traveling by bus. Some of this is not subject to veto, as vetoing a bill funding an activity leaves it unfunded. And this isn't even a complete list of how Congress could ratchet up the pressure. If a majority wanted to.
They have few tools that a narrow, fragile majority can bring to bear... That this is a bug rather than a feature is something we're going to disagree about. You simply want a system under which the narrowest conceivable Congressional majority can dominate an independently elected President. Even when, (Note the polls.) that majority is actually less popular than the President in question!. That's a preference you're entitled to, but it's a preference for a different system, not a non-broken system. Second, as it happens, we are in a constitutional crisis, though a slow motion one, but Bush's usurpations of power are only a small component of it. The crisis is that, since the 17th amendment removed the last real power state governments could exercise over the federal government, that federal government has, by careful selection of judges, gained the ability to effectively 'amend' the Constitution without going through any of the procedures outlined in article V, including obtaining state approval for the 'changes'. THAT, professor, is a genuinely broken Constitution. Because it's a Constitution that's not functioning on it's own terms, rather than just not functioning the way somebody happens to prefer that it be designed to function. The predictable result has been that the power of the federal government has been growing, year in and year out, both relative to state government, and absolutely. Another predictable result is that the "meaning" the courts attribute to the Constitution has been taking a drunkard's walk away from what the text actually says, to the point where a layman reading the Constitution, and looking at the actual behavior of government, can scarcely escape noticing the divergences. And this DOES have an impact on the perceived legitimacy of the government! Finally, maintaining this systematic divergence between text and practice has it's costs, in terms of the sort of people you need in both the judiciary and in public office. Every public official swears an oath to uphold the Constitution! If they're gong to run a government which doesn't comply with any honest reading of that Constitution, that has rather serious implications as to the sort of people they are going to be. (Which is where Bush's actions become part of the crisis, naturally.) This is a very real crisis, of constitutional proportions. It is, however, a crisis you happen to like, so you don't deign to notice it.
Let me humbly suggest we tone down the rhetoric on both sides of this debate.
I recently read a story that Congress approved a request from the military for millions (or billions?) more in recruiting bonus money. I think it said that the military services are now offering not only the G.I. Bill, but also thousands of dollars up front and thousands more (like a down payment for a new house) upon successful completion of an enlistment. In some sense, this is as "patriotic" as it gets...a good ol' supply and demand problem. In another, it is a sign of a problem, especially when combined with lowering enlistment standards. (This is not to say that a juvenile delinquent or two is necessarily a problem. Some might be successfully rehabilitated in the military for a number of reasons.) I suggest that if this war were truly believed critical to our national defense, we wouldn't have this problem. Patriotic Americans will - even today - sign up to fight and die to defend their nation. They are much less likely to do so in order to defend some other nation. I am sure the Defense Department is surveying and keeping track of why those who do join choose to. Perhaps the right FOIA request will make this available to the general public or legal academia. I have no idea whether the oil fields in Iraq are worth these short and long term costs. I tend to believe that someone in Iraq will find a way to get that oil to market - civil war or no civil war. Perhaps our leaders are trying to avoid a short-term economic crisis. Perhaps they are securing business for their former employers. Halliburton's move to Dubai may tell us a lot. Whatever the reasons for starting this war, personal or national, Congress authorized it. The fact that Congress cannot now find a veto-proof way to end it sounds like a political rather than a constitutional crisis. The nation is divided enough on the question to keep enough "stay-the-course" advocates in Congress. This seems to me the price of our republican form of democracy. I am no apologist for this administration or their many foolish decisions regarding the use of our nation's resources to defend against terrorism - if that is what this war was really about. (I doubt that seriously.) The billions spent in Iraq would probably have been better spent closer to home and in Afghanistan and certain areas of Africa. Nonetheless, it seems to me the real problem in this is the political system itself - specifically - voters who are so uninformed or misguided that they vote based on ideologies un- or only remotely related to a candidate's views on issues central to this country. Platitudes regarding family values and one-issue litmus tests substitute for serious political debate. It's a shame. But it is also the cost of giving people an equal voice. I seriously hope for a quick end to the loss of life - especially American lives - in Iraq. I suspect that the next election cycle will produce the change that election cycles are supposed to produce. That - I think - is why the Framers wrote them in to the Constitution. The real constitutional crisis is and has been an executive branch that believes it can dispense with inconvenient laws whenever it wishes. The way I read the Constitution, that was not what the Framers had in mind and provided against textually. As usual, the course of history coupled with unfortunate court decisions have led to this situation. When are we going to talk about how to fix those errors?
I think it is broken, and is getting more so. I especially agree with Brett's last point: that the practice of law-abiding public service in all facets of government has eroded markedly through political medling and an executive leadership exemplifying lawlessness.
My experience in federal service amazed me. None of the senior agency staff I worked with knew the law they were sworn to uphold. They also fell all over themselves trying to bend or break the law in their pervue. I was put on indefinite leave for being found out to have informed regulators...I am being purged. In fact, I was called "subversive"by the agency, for merely trying to follow established law! The purge of non-compliant, law-abiding civil servants from all of our federal agencies, leaving only the compliant law-breakers or the quiet and desparate is a serious crime. Consider, for example, the Bush Co. medling in the DOJ. The administration attempts to prohibit discovery through secrecy and lying, but hopefully that will fall of its own weight. I wish I felt better about congress' willingness to actually stand up to this massive dismantling of public institutions, and not for the common good.
The Democrats have the option of a filibuster to deny Bush his funding for the war.Then I believe it would require a 2/3 vote(necessitating a bunch of Liebermans)to end it.
Isn't it true that the armed services have managed to meet their recruitment goals largely by changing the goals,both in terms of quantity and quality? As far as your speculation as to ethnicity in the services,I too have wondered,particularly about one group that is present in large numbers in the area in which I live.Chaldeans are Iraqi Christians,many of whom have found their way to the Detroit area,and the majority of whom seemed to very vocally support the invasion and occupation.When I'e asked military age Chaldeans who I work with and encounter in business why they aren't in Iraq fighting to liberate the land of their fathers(similar to my many Italian ancestors who enlisted for service in WWII)I get much hemming and hawing(similar to answers you find from the 101st Chairborne represented on many blogs),but no indication that they feel this is also their war to fight.
Professor Levinson:
I did not post that the military officer corps uniformly supported one strategy. Indeed, as I posted in a previous thread concerning a hilzoy piece about the war, Mr. Bush is on his second strategy offered by the military. I am sure that the officers advocating the previous passive strategy with a gradual drawdown have not gone away nor have those who justifiably worry that our Army is too small to handle two wars in case NK blows up - which has been the case since the mid 90s because of a bipartisan drawdown. The point I was making was that the Dem papers have no problem publishing unverified rumors from anonymous sources without regard of whether they are true so long as they embarrass a President of the opposing party and undermine the war effort. Examples of the Dem press publishing outright lies about the troops include the New Republic's publishing Scott Beauchamp's fairy tales, AP publishing the obvious al Qaeda propaganda of Bilal Hussein until he was captured with an al Qaeda, various media publishing Jeff Englehart's lies about Army massacres in Fallujah until it was discovered that this liar was actually was outside of the battle, etc, etc, etc.
Now, I want to emphasize that the point I'm making is quite independent of the form of government you think is best. It's quite simply this: If you have a constitution which mandates severely limited federal jurisdiction and power, it is nonetheless possible, by application of enough organized sophistry, to run a leviathan instead. But the result isn't going to be the same as if that constitution IN FACT mandated a leviathan. Because a powerful government coupled with a constitution which calls for powerful government can be run by honest people. But a powerful government, coupled with a constitution which calls for weak government, must, unavoidably, be run by the sort of people who are willing to violate that constitution.
Ok, they don't openly admit to violating it. There's a lot of systematic, organized sophistry involved. But that's what they're doing, and that's the sort of people we get running the government, in all three branches. We'd be vastly better off if we just amended the Constitution to actually call for the sort of government we have. Because then it could be delivered by honest people, and all that institutional sophistry could be dispensed with. Not as good as actually following the Constitution we have, mind you, but better than the present circumstance. But how do we get from here to there, when it's impossible for the people who want powerful government to admit that the Constitution simply does not allow what they want?
One thing proven by the Bush regime is that a small minority can corrupt the workings of government. Had the Iraq war never happened, there would still be the disaster of turning our domestic programs into a political tool for the powerful.
What I don't understand is why so much authority is given to the executive as head of agencies which essentially do the bidding of Congress. What is the constitutional basis for allowing the president to have so much influence on the workings of agencies of government, outside of foreign affairs and the military (where congress does maintain a lot of control) and DOJ? Why could not congress have the agency heads report and answer directly to them for the items where money is spent, budgets developed, oversight required? I know that Congress is still political, easily corrupted, etc. But the difference is that congress changes slowly, has a variety of views which moderate change, and could easily staff up to monitor government in action. It may be true that we can't easily get out from under a mini-tyrant, but we could at least take his or her toys away at signs of bad behavior. Maybe even this is too much for our congress, but I don't know how a change in the system would change the abdication of duty by congress. What change would be needed structurally, and how would this help the current situation?
It might be irresponsible to not fund the Iraq occupation, but I don't really think it is therefore responsible to fund it in such a way that the President is not forced to surrender some of the total power of action he claims to have. It is not either/or.
It bothers some of us that we are constantly told, and it comes off as whining after awhile, that you need a supermajority to act given filibusters and vetoes, but Dems never use filibusters the other way. I guess they don't even have 41 votes in that respect. Anyway, back in the Spring, what was better? Giving the President what he wanted in the funding bill, or making a serious attempt to repeatedly block the funding bill (41 votes, bare majority in the House, use of parlimentary manuevers to the extreme there too) to underline they were serious. And, the people very well might be on their side. Is the assumption that the President and all the Republicans would not budge (or P. would act anyway), so it would be a useless exercise? The effort, I think, would do us good internationally, since it would send a message the congressional leadership was on the side of rationality and the Pres. as lame duck. So, if no funding is irresponsible, is funding w/o real limit responsible? Or, is it just that there was -- at least realistically -- no good option?
It might be deemed personal, but it points to a trend still strong enough to apply beyond one person ...
This is not about "liking" the President. The system has problems, and SL has forthrightly noted he wants it changed in some respects. But, to take on thing alleged here, torture is many of our opinions not authorized by the Constitution. Nor various other things that have occurred the last few years. We don't 'like' this. It is not personal to the President or even a matter of not liking the Constitution we have. In fact, some of us like it so don't like it perverted in this fashion. BTW, as to agencies, some good pts were made by that post, but the executive would still have much discretion give the agencies are executing (Art. II) the law. Such discretion was with us even before the modern era, though not as grand. But, restraints CAN be put in. Things like defunding etc. suggests Congress has tools to work with. The excesses of the last few years underlines we need to remember this and recalbrate some. Things do tend to ebb in flow in life, so there is some hope.
Perhaps the slack is being taken up by rural whites and members of other ethnic minorities, but I wonder.
Juan Gonzales on DemocracyNow this past week did a story on that. The military is heavily recruiting latinos - one of the benefits is a green card.
And, what exactly is wrong with offering U.S. citizenship to the brave young men and women who are putting their lives at risk to defend our country?
I get so few opportunities to concur with Charles, so let me do so (w/ cavil at "defend our country" - it's less & less clear what our Iraq troops are defending, but it ain't the U.S; however, that is scarcely their fault).
The 'Green cards for service' model veers in the direction of a 'Starship Troopers' philosophy that citizenship might be a (or even the) reward for military service. While an attractive notion to many including myself, this is an example of the system being used in ways that SHOULD be chosen by the already existing citizenry and not made policy by bureaucrats in the Armed Forces.
There is nothing wrong with offering citizenship to "the brave young men and women who are putting their lives at risk" fighting for our country--I substitute "fighting" for Charles' "defending" because our criminal aggression in Iraq has as little to do with "defending" us as would my breaking into a neighbor's house and assaulting it's inhabitants would have to do with my "defending" my home after it had been broken into earlier by completely different persons.
However, this is hardly a matter of our government "rewarding" brave volunteers for the military, but a cynical means of bribing into service those whom our government would otherwise be eager to detain and expel from this country. What's next? Will we reenact THE DIRTY DOZEN, and offer pardons to all convicts willing to be shipped off to fight our imperial war(s) in the middle east?
I wonder if any of us can imagine living in a world where most people volunteer for the armed forces for simple reasons of patriotism instead of as a response to economic incentives? To be sure, there are such volunteers: One of them was Pat Tillman, but I wonder how many have emulated him.
Moreover, I wonder, in a modern "market" army, why any economically rational person would re-enlist, given the ability to make far more money in the "privatized" sector of "security protection." As a number of persons have pointed out, the total number of Americans in Iraq is consideraly higher than the number attached to the US armed forces of the State Department, because there are so many "private" security personnel, many of them employed by the US government. So one might imagine that Bush will announce a very limited withdrawal and simply beef up the number of "private" security personnel.
I wonder if any of us can imagine living in a world where most people volunteer for the armed forces for simple reasons of patriotism instead of as a response to economic incentives?
Wouldn't be the first time this issue came up: "In the various states of society, armies are recruited from very different motives. Barbarians are urged by the love of war; the citizens of a free republic may be prompted by a principle of duty; the subjects, or at least the nobles, of a monarchy are animated by a sentiment of honor, but the timid and luxurious inhabitants of a declining empire must be allured into the service by the hopes of profit, or compelled by the dread of punishment." Gibbon, Ch. XVII, p. 190.
Perhaps Congress can win this struggle by engaging in the blunderbuss of refusing to vote any funding for the military, but I seriously doubt this, since that would be irresponsible in the extreme.
If Congress passes a budget funding the military and an Iraq withdrawl but not the occupation, and Bush vetoes it, leaving the military with no money, who exactly is the irresponsible one? Bush is holding our soldiers in Iraq hostage, and the ransom is the funding for the occupation. Literally. As for the constitutional crisis, we are already in it. It is that Congress refuses to impeach the President for exceeding his legal power. Instead, Congress willfully and willingly hands the President more of its -- and our -- power.
An aside to Brett, whose inputs are generally thought-provoking. You are quick to let the air out of other people's tires when you think they deserve it, but I think you should be careful when citing the polls.
You say: Even when, (Note the polls.) that majority is actually less popular than the President in question!. But that's simply not the case. Look at the most recent Gallup polls. The minority party in Congress has a 29% approval rating, while the majority party has a 37% approval rating. The President in the same week has a 32% approval rating. The kicker is the response to the question: "Do you think the policies being proposed by the Democratic/Republican leaders in the U.S. House and Senate would move the country in the right direction or in the wrong direction?" 35% said the Republican leaders would move us in the right direction. 59% said the Democratic leaders would move us in the right direction. Finally, the most relevant question is this one: " Who do you want to have more influence over the direction the nation takes in the next year – George W. Bush or The Democrats in Congress? 63% said the Democrats in Congress, and 32% said George W. Bush. Congress' overall approval is indeed lower than Bush's (18% to his 32%), but you can't honestly say that the "majority is actually less popular."
It's a strange, strange world where Congress's overall approval rating is much lower than either the majority OR the minority's... Point taken, though; The majority is slightly less unpopular than the President. For the moment.
I will still maintain that the Professor should stop describing a system that's designed to work in a way he doesn't approve of as being "broken". So he wants us to be a parliamentary democracy; Can't he just say so without characterizing divided government in such over the top terms?
Glenn Greenwald posted recently about the poor polling numbers of the new congress.As he convincingly explained,their unpopularity is due largely to the dissatisfaction of Democrats(and others more legitimately on the left end of the political spectrum)who are unhappy with congress for their failure to confront the administration on,among other issues, Iraq or FISA.Approval of congress would probably double if they began to act like an opposition party.
This looks like a fascinating article which affects many of the issues Prof. Levinson has raised. I'd say more about it, but for some reason I can't download it (a common problem for me on SSRN) and can only read the abstract.
PMS_Chicago said...
Congress' overall approval is indeed lower than Bush's (18% to his 32%), but you can't honestly say that the "majority is actually less popular." Actually, the polling numbers you cited state just that. The fact that Dems think that mythical generic Dem representatives would do a better job than Bush does not mean that they support the current divided collection of Dems running Congress. Generic polling is next to useless because the respondent simply applies his own views to a generic candidate of his own favorite party rather than the actual candidate who often disagrees with some large segment of the fractious Dem Party or is simply a poll whore unwilling to vote with the base when the rest of the electorate is in opposition. When the polling is applied to this real Congress, we find the anti military left is pissed at the current Dem Congress because they have not surrendered Iraq yet (nor done much of anything else) while the independents and GOP never thought that much of the Dem Congress' stunts indicating an intent to surrender. The only ones left are the 18% pure cheerleaders for the party. Worst of both worlds. In contrast. Mr. Bush still has his base because he steadfastly supports the war effort as they do. Given that Mr. Bush is not running in 2008 but the real life Dem congress is running with an 18% approval rating and a real life Clinton who internal Dem polling indicates will cost Dem congressional candidates another 2-3% of the vote differential, I fail to see why the GOP should be the ones worried. In 2006, the congressional Dems won a very narrow majority in an off year election where most did not show up and even then only managed a series of razor thin victories in traditionally Red districts. In 2008, I expect a record overall turnout because the presidential election will be fully contested. That could go both ways. However, I expect an unusually high GOP turnout because they loathe Hillary, the almost certain Dem candidate. The wild card will be the Dems. They will probably be fired up in general because they have an actual shot at winning. However, I will be very interested to see if a pissed off anti military left will show up for Hillary when she tacks to the center on the war during the general election as she has already begin to do. I cannot see how Hillary takes any base Red states so Rudy can spend his time campaigning in contested and NE Blue States like PA, CN, NJ and NH. If the Dem internal polling is correct, all the GOP turning out to vote against Hillary could tip a series of close House contests in traditionally Red districts where the new Dem incumbents will have to distance themselves from both Pelousi and Hillary. Finally, I will be very interested to see how women react to Hillary. While the feminist CW assumes that women will vote for other women out of gender solidarity, I have seen no evidence of that in actual elections. Indeed, if the polling finding that women actually prefer male bosses and the French repudiation of the female socialist candidate are any indications, Hillary may not do very well among women at all once they get into the actual polling booths. 2008 should be a fascinating election no matter which way it goes.
Congress doesn't have to defund the military to use the power of the purse. It can defund any number of other things Bush likes in an attempt to force him to pay attention. His personal staff, for instance.
I was able to read the article I linked above. Sad to say, it's less interesting than the abstract makes it appear. Not any fault of the author in one sense, it's just that the actual historical events don't give enough discussion about the Guarantee Clause.
Given that Mr. Bush is not running in 2008 but the real life Dem congress is running with an 18% approval rating and a real life Clinton who internal Dem polling indicates will cost Dem congressional candidates another 2-3% of the vote differential, I fail to see why the GOP should be the ones worried.
Folks: Before you sink to engaging this 'correspondent' on the specifics of his claims, ask him what he said before Nov., 2006. Then ask yourself if it's worth the effort to bother addressing the continuing 'perspicacious' (but unsupported) claims of such a person.... ;-) Cheers,
roadpoet-NY.com:
The 'Green cards for service' model veers in the direction of a 'Starship Troopers' philosophy that citizenship might be a (or even the) reward for military service. Perhaps more to the point, the French Foreign Legion or even the Roman Legions. Those worked out great.... Cheers,
"refusing to vote any funding for the military...would be irresponsible in the extreme."
Why? Bush would then be forced to compromise.
It means 'Shadowhunters: Looking Better in Black Than the Widows of our Enemies Since 1234'.
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Books by Balkinization Bloggers Linda C. McClain and Aziza Ahmed, The Routledge Companion to Gender and COVID-19 (Routledge, 2024) David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024) Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024) Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023) Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) Jack M. Balkin, Living Originalism (Harvard University Press, 2011) Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |