JB

Many opponents of the proposed Federal Marriage Amendment claim it is the first time that the Constitution would be amended to exclude a group of people. Well, that's technically correct: If *ratified*, the FMA would be the first amendment actually *adopted* that would do that. But it would not be the first such amendment proposed, and more importantly, it would not even be the first such amendment that passed Congress by a two thirds vote of both houses and was submitted to the states. That honor would go to the proposed Thirteenth Amendment of 1861.

Instead of arguing that what Bush has done is unprecedented, I think it's much more important to remember that this *has* happened before, and that the previous attempt is now universally condemned.

The proposed Thirteenth Amendment passed the House on February 28, 1861, and the Senate on March 2nd, 1861. The proposed amendment, sometimes called the Corwin Amendment, because it was proposed by Representative Thomas Corwin of Ohio, was a desperate measure designed to keep the Union from falling apart. By the time the amendment was submitted to the states, seven states had already seceded and four were soon to follow. The ensuing Civil War made it irrelevant, but it was ratified by several states and because it has no time limit for ratification, it is still technically before the country:

ARTICLE THIRTEEN

No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State.

As you can see, the point of the Corwin Amendment was to assure Southern states that the Constitution would never be amended to abolish slavery. (Ironically, it says nothing about the issue of slavery in the territories, which was one of the precipitating causes of secession). There is an interesting question whether amendments that prohibit future amendments can work. After all, one can simply amend them to remove the prohibition. The irony, of course, is that the Thirteenth Amendment that was ratified four years later in December 1865 did abolish slavery.

President James Buchanan, who had promoted the idea of an "explanatory" constitutional amendment to resolve the crisis over secession, signed the Corwin Amendment after the Senate passed it. This was technically unnecessary, because Article V of the Constitution does not require the President's consent to amend the Constitution. However, when what is now the Thirteenth Amendment was passed by Congress in February 1865, President Lincoln signed it in a symbolic attempt to negate Buchanan's action.

It is tempting to draw parallels between James Buchanan, who promoted the Corwin Amendment that would forever exclude blacks from full citizenship, and President Bush, who is now promoting an amendment that would exclude gays from full citizenship. Buchanan after all, was one of our worst presidents. But it's important to remember that in 1861, many people from both parties supported the Corwin amendment while holding their noses, including Abraham Lincoln himself, who makes passing reference to it in his First Inaugural Address:

I understand a proposed amendment to the Constitution--which amendment, however, I have not seen--has passed Congress, to the effect that the Federal Government shall never interfere with the domestic institutions of the States, including that of persons held to service. To avoid misconstruction of what I have said, I depart from my purpose not to speak of particular amendments so far as to say that, holding such a provision to now be implied constitutional law, I have no objection to its being made express and irrevocable.

Incidentally, the Corwin Amendment was not the only attempt to broker a deal: An earlier proposal in 1860, the so called "Crittenden Compromise," named after Senator Crittenden of Kentucky, would have reinstated features of the Missouri Compromise held unconstitutional in Dred Scott v. Sanford, and would also have prevented Congress from abolishing slavery in the District of Columbia and from regulating interstate transportation of slaves. This compromise failed to pass the House and the Senate.

President Bush should be justly criticized for attempting to amend the Constitution to deny one group of people full and equal rights. But he is not the first President to do so, and we should draw a lesson from the previous example of the unratified Thirteenth Amendment. What he is doing is not unprecedented, and we should resolve not to let it happen again in our own time.

JB

Andrew Sullivan finally wakes up and smells the intolerance. Wait, where's that odor coming from? Oh my, it's coming from the right wing of the Republican Party and its leader, George W. Bush!

WAR IS DECLARED: The president launched a war today against the civil rights of gay citizens and their families. And just as importantly, he launched a war to defile the most sacred document in the land. Rather than allow the contentious and difficult issue of equal marriage rights to be fought over in the states, rather than let politics and the law take their course, rather than keep the Constitution out of the culture wars, this president wants to drag the very founding document into his re-election campaign. He is proposing to remove civil rights from one group of American citizens - and do so in the Constitution itself. The message could not be plainer: these citizens do not fully belong in America. Their relationships must be stigmatized in the very Constitution itself. The document that should be uniting the country will now be used to divide it, to single out a group of people for discrimination itself, and to do so for narrow electoral purposes. Not since the horrifying legacy of Constitutional racial discrimination in this country has such a goal been even thought of, let alone pursued. Those of us who supported this president in 2000, who have backed him whole-heartedly during the war, who have endured scorn from our peers as a result, who trusted that this president was indeed a uniter rather than a divider, now know the truth.

NO MORE PROFOUND AN ATTACK: This president wants our families denied civil protection and civil acknowledgment. He wants us stigmatized not just by a law, not just by his inability even to call us by name, not by his minions on the religious right. He wants us stigmatized in the very founding document of America. There can be no more profound attack on a minority in the United States - or on the promise of freedom that America represents. That very tactic is so shocking in its prejudice, so clear in its intent, so extreme in its implications that it leaves people of good will little lee-way. This president has now made the Republican party an emblem of exclusion and division and intolerance. Gay people will now regard it as their enemy for generations - and rightly so. I knew this was coming, but the way in which it has been delivered and the actual fact of its occurrence is so deeply depressing it is still hard to absorb. But the result is clear, at least for those who care about the Constitution and care about civil rights. We must oppose this extremism with everything we can muster. We must appeal to the fair-minded center of the country that balks at the hatred and fear that much of the religious right feeds on. We must prevent this graffiti from being written on a document every person in this country should be able to regard as their own. This struggle is hard but it is also easy. The president has made it easy. He's a simple man and he divides the world into friends and foes. He has now made a whole group of Americans - and their families and their friends - his enemy. We have no alternative but to defend ourselves and our families from this attack. And we will.

What I want to know is, why is Sullivan surprised? *Now* he gets that the president is not a uniter but a petty tyrant only interested in his own political survival? *Now* he gets that this guy is a shill for the worst sort of politics? *Now* he figures out that the motto of the Bush Administration is: Dissemble as long as possible, but when the chips are down, never piss off the right wing base?

Gee Andy, you *really* must have wanted to invade Iraq to support the guy for this long. Well, your favorite warmongerer just brought the war home to you. Hope you're happy now.

* * * * *

Note that, as you will see in the posts below, I actually don't think that its as bad as Sullivan thinks. I think that Bush is in an untenable position; he's now trying to avoid saying that civil unions should be outlawed as well, contrary to what the hard right wants. The FMA won't pass, and Bush is going to get squeezed from both sides. When his political strategy fails-- as it ultimately will- all that he will be left with is the reputation as a divisive, intolerant, and opportunistic politician, who demeaned a whole class of American citizens just to stay in power. But all of this will be cold comfort to Sullivan, who simply refused to believe what was always in front of his eyes and now has been tossed in the garbage as expendible by his Great Leader.

JB

Here's the text of the President's endorsement of a constitutional amendment to ban same sex marriage.

Note carefully the following passage:

The amendment should fully protect marriage, while leaving the state legislatures free to make their own choices in defining legal arrangements other than marriage.

My friend Mark Tushnet who teaches at Georgetown University, remarked to me the other day that what is most remarkable about the debate over same sex marriage is that within a few year's time the moderate conservative position has now shifted from opposing all recognition of same sex partnerships to conceding that states may pass civil unions, as long as these are not called marriages.

Bush's statement confirms this. He is attempting to shape the issue in terms of what states may officially term "marriage," as opposed to preventing states from effectively giving same sex couples the bundle of rights enjoyed by married couples. This means that he cannot endorse the proposed FMA in its current form, because, as I have noted previously, it would also prevent states from passing civil unions or domestic partnership legislation. His strategy is to make the fight about semantics and symbolism rather than substance.

Because Bush wants to appeal both to his base and to moderate voters, this semantic strategy makes perfect sense. But it is well worth considering what he and other conservatives have given up in the process. The fact that Bush appears to have given up trying to prevent states from passing civil unions laws signals that the fight over same sex marriage has shifted ground decisively in favor of civil rights advocates and against the Christian right. The best that the Christian right can hope for now is a world in which some states have civil unions and others do not.

I suspect that some pundits will declare this to be a major offensive in culture wars. To me it looks like an admission of defeat.

JB

As expected, President Bush finally endorsed a constitutional amendment banning same sex marriage.

Will the strategy make him seem intolerant or will it allow him to take the initiative and drive public attention to an issue that energizes his base? Only time will tell.

I have predicted in a previous post that a same sex marriage amendment is going nowhere. Assuming that there are two thirds majorities in both houses of Congress (which are both controlled by the Republicans) I'm fairly sure that it will not obtain the required three quarters of the states to ratify.

But actually passing the amendment is not necessarily Bush's goal. Rather, as with so many announcements and policy initiatives in the past few months, he has only one goal on his mind: getting reelected in November.

JB

Last week Alabama's Sen. Richard Shelby (R-AL) and Rep. Robert Aderholt (R-Haleyville) began a full scale assault on the American Constitution. The grossly misnamed "Constitution Restoration Act of 2004" is designed to pander to the far right by stripping the federal courts of jurisdiction to hear certain Establishment Clause cases, requiring that in deciding constitutional cases federal courts may not look at the law of any other nation but "English common law," and threatening impeachment and removal of any judge who defies its provisions.

The first feature of the bill prevents courts from passing on questions concerning certain government establishments of religion:

`Sec. 1260. Matters not reviewable

`Notwithstanding any other provision of this chapter, the Supreme Court shall not have jurisdiction to review, by appeal, writ of certiorari, or otherwise, any matter to the extent that relief is sought against an element of Federal, State, or local government, or against an officer of Federal, State, or local government (whether or not acting in official personal capacity), by reason of that element's or officer's acknowledgement of God as the sovereign source of law, liberty, or government.'.

Although Congress has the power to change the Court's appellate jurisdiction (this is one side effect of Marbury v. Madison) it may not do so in ways that violate the First Amendment. In this case Congress has made a viewpoint based distinction. Actions which acknowledge "God as the sovereign source of law, liberty or government" are shielded from judicial review, while actions which specifically denounce or reject "God as the sovereign source of law, liberty or government" may be reviewed under the Establishment Clause. (An example of the latter would be erecting a momument to atheism or placing the words "There is no God" on the state's flag). Since both types of acts may violate the Establishment Clause, the jurisdictional bar is based on the content of the government official's viewpoint. This would be akin to Congress denying jurisdiction to review cases where government officials punish someone on grounds of criticizing the war in Iraq while retaining judicial review in cases where government officials punish someone for supporting the war. Such a statute would also be an unconstitutional withdrawal of jurisdiction.

The second feature of the act restricts the ways that federal courts may interpret law:

SEC. 201. INTERPRETATION OF THE CONSTITUTION.

In interpreting and applying the Constitution of the United States, a court of the United States may not rely upon any constitution, law, administrative rule, Executive order, directive, policy, judicial decision, or any other action of any foreign state or international organization or agency, other than the constitutional law and English common law.

This provision is pretty obviously aimed at the Court's citation of international law in Lawrence v. Texas. It violates the separation of powers because it usurps the judicial power under Article III. Once again, according to Marbury, it is the duty of courts to say what the law is, and although Congress may remove certain elements of their jurisdiction, they may not dictate how judges may interpret law or decide cases, which is a core judicial function.

Quite apart from its unconstitutionality, the act also reflects the xenophobia characteristic of the far right wing of the Republican party.

The third part of the act attempts to remove precedental value from all decisions that define Establishment Clause violations in ways contrary to the act:

SEC. 301. EXTRAJURISDICTIONAL CASES NOT BINDING ON STATES.

Any decision of a Federal court which has been made prior to or after the effective date of this Act, to the extent that the decision relates to an issue removed from Federal jurisdiction under section 1260 or 1370 of title 28, United States Code, as added by this Act, is not binding precedent on any State court.

This provision also violates the separation of powers by attempting to modify how state courts are bound by Supreme Court precedents. This is in violation of the principle announced in Martin v. Hunter's Lessee that state courts are bound by decisions of the U.S. Supreme Court. It is especially problematic because it applies retroactively to decisions made before the Act takes effect.

The fourth part of the Act states that a violation of the Act's provisions constitutes an impeachable offense and withdraws the constitutional protection of life tenure under Article III, section 1, which states that judges "shall hold their offices during good behaviour":

SEC. 302. IMPEACHMENT, CONVICTION, AND REMOVAL OF JUDGES FOR CERTAIN EXTRAJURISDICTIONAL ACTIVITIES.

To the extent that a justice of the Supreme Court of the United States or any judge of any Federal court engages in any activity that exceeds the jurisdiction of the court of that justice or judge, as the case may be, by reason of section 1260 or 1370 of title 28, United States Code, as added by this Act, engaging in that activity shall be deemed to constitute the commission of--

(1) an offense for which the judge may be removed upon impeachment and conviction; and

(2) a breach of the standard of good behavior required by article III, section 1 of the Constitution.

I express no opinion on whether Congress may statutorily define impeachable offenses before the fact, or whether it may define what conduct constitutes good behavior. However, regardless of how good behavior is defined by statute, judges may not be removed from life tenured positions unless they are impeached and convicted by the Senate under Article II, section 4. Moreover, Congress may not define conduct to be an impeachable offense on the basis of an unconstitutional statute because such a statute is beyond Congress's power to enact. (Note that this does not limit the possible *reasons* why Congress may choose to impeach and convict judges, it limits only the use of an unconstitutional *statute* to define those reasons). Because the other provisions of the statute violate the First Amendment and the separation of powers, this part of the statute is also unconstitutional.

I never cease to be amazed at how shameless politicians can be when trying to score political points with their constituents. Although the bill's sponsors claim that they are trying to restore the Constitution in the face of judges who have disregarded the basis of American constitutional government, in fact it is this statute itself which is blatantly unconstitutional and which shows utter disrespect for our constitutional system. The Senators and Congressmen who sponsored this bill should be ashamed of themselves. They swore an oath to uphold the Constitution of the United States. They are obviously unwilling to live up to that oath and therefore they should resign.

JB

Please, pretty please. The nation needs you Judge Moore! It needs you as a presidential candidate. Just look at all those terrible people in San Francisco, degrading marriage and stomping on the Divinely ordained order of things. Don't you think it's time someone like yourself said enough is enough? George Bush won't do it. He's too scared of what all those soccer moms in Ohio would say. It's up to you Roy, it's up to you!

JB

The Washington Times reports that several figures in the Religious Right are openly criticizing President Bush for failing to respond more forcefully to the rise of same sex marriage and other cultural issues, and that Christian conservatives may stay home rather than go to the polls in 2004.

"The strength of this president is in his convictions, but our people do not admire his indecision and lack of leadership on an issue so basic as the sanctity of marriage," [Concerned Women for America President Sandy Rios] said.

Religious conservatives helped Ronald Reagan win the presidency in the 1980s and helped Republicans retake the House and Senate in 1994, but complain that they have little to show for their loyalty to the GOP.

"I'm not blaming the president, but religious conservatives have been doing politics for 25 years and, on every front, are worse off on things they care about," said Gary Bauer, president of American Values. "The gay rights movement is more powerful, the culture is more decadent, the life of not one baby has been saved, porn is in the living room, and you can't watch the Super Bowl without your hand on the off switch."

These criticisms are to be expected. George Bush is, after all, a part of the conservative Christian movement, and as president, he is the de facto leader of the Religious Right. Having put one of their own in the White House, Christian conservatives naturally want to see some results. But Bush is also a crafty politician, and he does not want to do anything that will make him be perceived of as intolerant. So you will get no ardent denunciations from this President. Rather, you will get nuanced and carefully calibrated support for Christian conservative causes designed not to offend too many voters in the Republican coalition who are not Christian conservatives.

Gary Bauer wonders why things have gotten worse since 1994. In one sense, they haven't gotten worse. His party controls all three branches of government, and the President has stocked the judiciary and the executive branch with people who are either Christian conservatives or are sympathetic to their views on cultural issues. What Bauer is objecting to is long term shifts in American culture, which he is fighting against, but which are more powerful than either his followers or the Republican Party. And he is putting pressure on the President to correct those trends. Yet, as Bauer himself realizes, there is only a limited amount that the President can do.

Bauer and other Christian conservatives are thus deliberately putting the President between a rock and a hard place. In order to gain their votes he must shift symbolically to the right and denounce the decay of American culture-- including most prominently the issuance of same-sex marriage licenses in San Francisco (and now New Mexico). Yet the President cannot afford to do so, because the general election season has all but started. But Bauer and his allies don't really care. They want the President to show that he is one of them; they want him to exercise moral leadership. What they don't realize is that this President only exercises "moral leadership" when he thinks it won't cost him any votes. In matters of politics, he is a complete and thorough opportunist.

JB

Other cities are considering issuing licenses for same sex marriage, the Washington Post reports.

What's important is not how many cities actually go ahead and do this, but the fact that the idea has moved from the positively unthinkable to the positively thinkable. And what is more important is that elected officials and not courts are taking the lead. As I argue in the previous post, that is how constitutional change occurs.

JB

Not by courts, but through political action. Courts are often the last to get involved.

What is remarkable about Mayor Daley's recent statement that he would have "no problem" with the Cook County clerk issuing same sex marriage licenses is that a number of prominent politicians are now standing up and saying that this is what fairness and equality means. Such statements in the context of larger social movement activism are quite important in reshaping public opinion, and, in turn, reshaping constitutional norms.

It's important to understand that politicians can do this for good or for ill, in ways we like and in ways we don't like. The Civil Rights Movement and the Civil Rights Act of 1964 reshaped the meaning of the Equal Protection Clause, but so too did massive resistance in the South, George Wallace standing in the school house door, and Richard Nixon's running against busing and in favor of "law and order" in the 1968 election. The point is not that politicians always do good when they promote constitutional norms through political action. The point is that the meaning of the Constitution is driven and produced by political activism, and later confirmed by judicial decision. People often complain that courts are writing their political beliefs into the Constitution. But if we look at the way the system actually works, its not just the courts, or even primarily the courts. It's all of us. This is the most important lesson about how constitutional change actually occurs.

JB

Juan Non-Volokh points out correctly that if market forces by themselves would be insufficient to produce public goods, governments can either provide the goods themselves or subsidize private entities to produce them. Therefore governments might help support an infrastructure for free expression through subsidizing private universities instead of creating public universities.

That sounds fine to me. After all, as I said in my previous post, I've taught both in public universities and private universities that are heavily subsidized by the government. Both are important to production of a culture of free expression and a vibrant public sphere. If Juan prefers private universities subsidized by government funds, more power to him. But the important point-- and the point of my original posting-- is that government has to take affirmative steps to create the conditions for the exercise of free expression. It's not just a matter of preventing government from censoring individuals.

But Juan also wonders whether even public subsidies are a good idea:

The relevant comparison must always be between the admittedly imperfect private marketplace and the equally -- if not more -- imperfect government alternative. Too often, the assertion of market failure is taken as sufficient justification for government action without any consideration of whether the policy proposal in question, as it is likely to be implemented in the real world, will actually produce a superior net result.

Well, yes, in some cases its possible that remedying market failures either through public subsidizes or through direct government provisions of a public good can be worse than leaving things to the unassisted private market. But I have to say that providing education, and particularly higher education, is not one of those cases. And note that by education here I am speaking of more than mere vocational training, which markets can more easily provide; I mean education in features necessary for individuals to participate in governance and in culture generally. This sort of education is one of the clearest examples of a public good other than perhaps public defense (which is dealt with by a combination of government provision of goods and outsourcing to private entities according to government specifications). Sometimes the cure is worse than the disease, but this abstract formula becomes less plausible when you are talking about public education, and particularly higher education. If Juan has reasons to believe that Americans are actually made worse off by having a rich public culture produced by a combination of government subsidies and government provision of higher education, he has not yet revealed them.

Glen Whitman thinks he has the killer argument:

If the government could distinguish between the good and bad ideas, then it could subsidize only the good ones. But I have little or no confidence in government's ability to make such distinctions wisely, and the blanket subsidization of public universities assures funding of both the good and the bad. The strongest case for freedom of expression, I would argue, rests not on economic efficiency but on the inherent danger in giving a coercive government the power to decide what's good and bad in the realm of ideas. From that perspective, David Bernstein's position makes a great deal of sense: having public universities ipso facto puts the government in the position of having to make distinctions that it has no business making.

Glen's assertion that goverments should never be in the business of deciding which ideas are good and which are bad is much too broad. To a very large extent governments are in the business of deciding which ideas are better than others, because that is the basis on which they enact (or should be enacting) public policy. Moreover, governments are always in the business of promoting some ideas over other ideas. Does Glen seriously want to blow up the Washington Monument or the Lincoln Memorial? To keep children from visiting said memorials on the grounds that they will be unduly influenced to think that Washington and Lincoln were great presidents? Does he think that there is something nefarious in government officials asserting that democracy is good and tyranny is bad? (Would he object to the creation of a government program designed to promote belief in democratic forms of government over non-democratic forms? Does he believe that President Bush was wrong to give a speech advocating democracy and freedom for the rest of the world? Does he think government should not encourage the populace to engage in healthier habits through reporting the results of government funded health studies?)

The question is not whether government may not prefer some ideas or viewpoints over others, but what methods the government may properly use to prefer certain viewpoints and ideas or-- and this is a somewhat different objective-- to promote public expression, debate, and the exchange of viewpoints. In general, government may not punish people through criminal fines or civil penalties because of the viewpoints they express. This is the central meaning of the free speech guarantee in our Constitution. On this Glenn and I presumably would agree. But a healthy system of freedom of expression involves much more than securing this basic guarantee. It requires an educated populace and the opportunity for people to express themselves and participate in the culture in which they live. It requires a rich and vibrant public sphere. That public sphere will not be produced without government subsidy or government provision of important public goods. If government got out of that business entirely, we might still have a formal liberty of expression, because no one would be thrown in jail or fined for stating unpopular viewpoints. But our system of free expression would be much much poorer.

Government works through many different devices other than criminal penalities and civil fines. It also operates through providing public goods and subsidizing others to provide them. Very often government does this to promote particular ideas, for example when it provides free public education, or when it subsidizes charitable organizations. Glen is worried that governments will violate the free speech principle when this happens. He is right to worry: Governments *can* sometimes violate the free speech principle though selective subsidies or through providing public goods-- on this he and I agree. But Glen overstates his case when he assumes that use of subsidies and provision of public goods is always suspicious and tyrannical in the same way that the use of criminal fines and penalities is suspicious and tyrannical. I think there is a big difference between throwing a person in jail for being a communist and deciding to create a public library so that children and adults can have books to read. There is a big difference between preventing all demonstrations on the town green and requiring that all schools that receive public funding teach reading and mathematics. There is a big difference between the local sheriff giving parade permits only to Democrats but not to Republicans and the local university deciding that it will offer courses on microbiology but not astrology. Glen has run together a wide variety of different activities under the simple rubric of government tyranny. It's a much more complicated world than he describes.

As a first amendment scholar, I am the first to admit that when the government gets in the business of subsidizing and providing public goods to promote the infrastructure of free expression it takes on responsibilities to be fair. It does not escape the first amendment simply because it is creating or subsidizing public goods rather than punishing people. But the concerns of the first amendment are very different in the former case than in the latter. This is what Glen's argument overlooks. And, because producing the infrastructure of free expression is so important to a healthy and vibrant culture of free expression, it has real positive value that criminal penalities and civil fines usually do not have.

JB

At least that's what follows from the stump speech he has been giving in various forms around the country:

[Scalia] derided proponents of an opposing judicial philosophy that has reigned for the past half-century and who see the Constitution as a "living document." Such a notion is "phony," he said, adding, "People really believe this nonsense."

The steady application of that philosophy, he said, has meant that justices are free to interpret the document how they wish -- freeing the court from the text.

Such an approach is intellectually suspect and dangerous, he said.

"It's a legal document," he said of the Constitution. "It says some things which are permanent, and it doesn't say other things."

Scalia said originalism used to be orthodoxy. Now, people who profess it are looked on "as if its some kind of an affliction -- like when did you start eating human flesh?"

He said originalism is necessary to constrain judges and keep the balance of power in the country.

"You either have to abandon this idea of a living constitution, or essentially you say to your judges, govern us with no constraints -- except your own judgment.

"I'm not willing to do that."

I guess this is probably as good a place as any to reprint a posting I put on the CONLAWPROF Listserv (run by the most excellent Eugene Volokh) last year. My argument was that Scalia talks out of both sides of his mouth. He supports originalism when he doesn't like a precedent, and he completely ignores originalism and argues for stare decisis when he likes a precedent. This allows him to craft judicial opinions that hew closely to his poiltical views (which are an interesting mix of libertarian and social conservative). Hence there's no reason to think that originalism, at least in the way that Scalia practices it, constrains him any more than the Justices he derides. Here's the post from last year:

* * * * *

[T]he problem with Scalia's use of originalism is twofold: First, it is often badly done, which is the point that Professor Franck makes about [Chief Justice] Taney's originalism [in Dred Scott v. Sanford]: Both Scalia and Taney do questionable history in order to achieve a political conclusion that each likes. Then each of them has the nerve to insist that any other way of interpreting the Constitution is illegitimate and, in Scalia's case, to denounce and ridicule anyone who disagrees with him.

The second problem with Scalia's use of originalism is that it is opportunistic. Scalia invokes originalist arguments when they support constitutional positions he agrees with; but when they would be an embarassment to the positions he likes, he says nothing about originalism, instead using fairly standard arguments based on precedent, social policy,
and his favored values. You may remember that a week before Lawrence came down the Supreme Court decided the Michigan affirmative action cases. Neither Scalia nor Thomas said anything in their opinions about the original understanding of the Fourteenth Amendment in those cases, nor, to my knowledge has either seriously engaged with that history in any of their opinions on race relations. But that history sheds some degree of doubt on whether colorblindness is the operative meaning of the 14th amendment's section one, at least as originally understood by its framers. (And indeed, although it is certainly not conclusive proof, the Congress that passed the 14th amendment engaged in race conscious affirmative action in providing educational and social welfare benefits for blacks, including blacks who were not newly freed. (See Jed Rubenfeld's 1997 article in Yale Law Journal on this body of legislation.). This legislation was in addition to the Freedman's Bureau acts, which can be understood as either race conscious or race neutral depending on your interpretation of them. The history of Congressional affirmative action is not conclusive proof because Congress was not bound by the 14th Amendment, but then of course, on that line of argument, it's unclear how either Scalia or Thomas could have joined the Adarand decision.

At the end of the day, Scalia may be correct that the best translation (in Larry Lessig's terms) of the original understanding is a strict colorblindness rule. But I doubt it, and even if that is so, Scalia refuses to adopt that sort of translation methodology, because it is the very sort of living constitutionalism that he disdains. So he can hardly employ it to justify his position in the Michigan cases.

Stare decisis [respect for previous precedents] must temper originalism, and that is how many non-originalist decisions like Bolling v. Sharpe [which struck down segregation in the D.C. schools under the Fifth Amendment's Due process clause] (and Adarand) [which held that federal affirmative action programs are suspect under the Fifth Amendment's Due Process clause] might be justified for an originalist. The problem is that originalists like Scalia do not consistently follow precedent when it conflicts with original understandings, nor do they consistently follow original understandings when they conflict with precedent. Rather, they pick and choose, depending on which constitutional rules they like better. It is unlikely that Scalia would vote to overturn Bolling v. Sharpe, but he would love to overturn precedents like Roe, Casey, Stenberg, Eisenstadt, and Carey [which guarantee rights of abortion and contraception]. He defers to previous precedent (or expands on it) when it suits him, and he waxes eloquent about returning to the original understanding when that suits him. And all the while he insists that people who disagree with him are making illegitimate arguments, and are imposing their personal preferences on the Constitution. The irony is that when originalism is opportunistically applied in the way that Scalia employs it, it allows judges to do pretty much the same thing as the judges that Scalia criticizes. In this sense, Scalia's brand of originalism fails to perform the very function he says it should perform: the function of constraining judges. Having seen Scalia's body of work since he joined the Court, I have no reason to believe that Scalia is any more constrained from pushing the Constitution in his preferred direction using an artful combination of textual, originalist, and precedental arguments than William Brennan was. Scalia is the living constitutionalist who dares not admit that his is a living constitutionalism of the right rather than of the left.

JB

A provocative post by David Bernstein, who by the way, is speaking here today at Yale, suggests that civil libertarians should be opposed to public universities on free speech grounds: "The inevitability of content-based regulation of academic expression on public university campuses suggests a strong civil libertarian case that government should not be in the business of running universities at all."

This remark demonstrates an interesting and important split between David's approach to freedom of speech and mine. David is interested in preserving individual rights of freedom of expression from government interference; I'm interested in promoting a democratic culture in which people are free to participate in culture and express themselves. For David, freedom of speech is the sum of individual rights of free expression against government interference. For me, freedom of speech involves important infrastructural elements in technology and institutions that undergird and enrich the system of free expression, produce an educated citizenry and give them the tools and the practical opportunity to participate in the growth and development of culture. These infrastructural elements include, among others free public education, public libraries, common carrier rules in telephony and government sponsored scientific research. Put in economic terms, the infrastructure of free expression is a public good that markets will underinvest in. Put in sociological terms, the infrastructure of free expression is a precondition to a vital public sphere and the vigorous exchange of ideas. You will not be surprised, therefore that I believe that public universities (and indeed public education generally) are central (although not sufficient) ingredients of producing a culture of free expression. Put in economic terms, once again, a healthy and well functioning system of freedom of expression requires a vast array of public goods to supplement, undergird, and enrich civil society, private institutions and the work of markets.

David points out, and rightly so, that when governments run universities, they will engage in content based (and viewpoint based) regulations of speech. But this begs the question whether such regulations violate the free speech principle. Some of them surely do, but many more of them do not. When the government is engaged in the promotion of professional and academic standards, the free speech principle is not necessarily violated. Thus it is perfectly fine for a university to have a department of biology and not astrology, and to refuse to tenure people who believe that the best way to study biology is through astrology. Nor is the free speech principle necessarily violated when the government regulates speech in order to manage its internal bureaucracies. (These points are central to my colleague Robert Post's theory of freedom of expression).

David might insist, nevertheless, that lots of line drawing will be required to sort out appropriate regulations of speech from inappropriate ones; there will be many complicated cases that risk violating individual's rights and that we would be much better off if governments never ran universities, because then the maintenance of professional standards and management of bureaucracies would be entirely in private hands and so there would be little or no chance that the free speech principle would be offended. On this point I respectfully disagree. Without public universities, our cultural life would be much poorer. I now teach at a private institution, but one heavily subsidized by public money, and I spent my formative years as an academic at two public institutions, the University of Missouri at Kansas City and the University of Texas. Precisely because public education produces so many positive public externalities that, almost by definition, cannot be adequately captured by markets, it is highly unlikely that markets would take up the slack if public universities were abolished. The history of universities, even nominally private ones, is the history of a very significant amount of state support, whether it be sponsorship of Kings (as in many of the Oxbridge colleges) or the use of land grants to support public education. Indeed, democratizing education, and particularly higher education-- one of the most important achievements of the twentieth century-- was due in large part to government decisions to invest in the public. Those investments have paid off handsomely if imperfectly-- they have contributed greatly to the practical freedom that Americans enjoy today and the health and vibrancy of American artistic, intellectual, scientific and political life.

In short, freedom of speech is more than the sum of all individual free speech rights against the government. Freedom of expression is a cultural system that produces a public sphere of inquiry, learning, artistic expression and political contestation. To understand freedom of expression it is not enough to prevent government restraints. We must pay greater attention to the institutions and practices that make this public sphere healthy and vibrant. Some of those institutions and practices are private entities and result from market forces; but a great many of them are not.

JB

The U.S. Army sent intelligence agents to investigate a conference about women and Islam held at the University of Texas School of Law, were I taught for six years.

UT law student and organizer Sahar Aziz was shocked at the Army's interest and methods.

"It was not a terrorism related conference. It was very benign … The reason why we put it together is there had been a lot of debate on campus about these issues due to the burka [face-covering mask worn by Muslim women] in Afghanistan and Iraq," she said.

A few days later, two U.S. Army intelligence agents showed up and wanted a list of all the people who attended the conference.

They approached Jessica Biddle, who helped Aziz get funding for the event.

"[I said] that he was intimidating me and is there a problem? His response was 'no, no problem, we're investigating a couple of people who attended the conference and we need to see the list,'" Biddle said.

What the Army did may or may not violate anybody's constitutional rights. But there's a larger threat to free expression and association that we shouldn't overlook here. By attending conferences and asking for names, the Army is sending a message: if you are the sort of person who goes to these conferences, we may choose to create a file on you. For many people, that will be a strong disincentive to attend conferences, exchange ideas, and speak freely, especially if they have controversial or unpopular views. Moreover, it will also make it more difficult for groups like Biddle's and Aziz's to hold conferences on Islam and get funding for them, because some people will be afraid to attend, and potential sponsors will be afraid to become associated with conferences that the Army may be spying on.

I don't have any problem with the government investigating terrorism. I do have a problem with its doing so in a way that chills protected expression and reinforces unjust stereotypes about Islam. That's particularly true when people are trying to think about how the Islamic tradition is connected to equality, democracy, and human rights. Our government should be welcoming this kind of intellectual exchange. Instead, it's discouraging open and honest dialogue.

JB

The New York Times reports that Vice President Cheney's former firm, Halliburton, which received lucrative contracts in Iraq without having to go through the usual competitive bidding process, is coming under increasing scrutiny:

On Thursday, two Democratic members of Congress informed the Pentagon that two former Halliburton employees had come forward with a variety of accusations about wasteful spending of government money, saying Halliburton "routinely overcharged" for its work in Iraq.

"High-level Halliburton officials frequently told employees that the high prices charged by vendors were not a problem because the U.S. government would reimburse Halliburton's costs and then pay Halliburton an additional fee," the two Congressman — Henry Waxman of California and John D. Dingell of Michigan — wrote in a letter to Pentagon auditors.

One of the former employees, according to the letter, said "a Halliburton motto was: `Don't worry about price. It's cost-plus.' "

In the letter, the congressmen said the two men approached Mr. Waxman after leaving jobs with Halliburton for personal reasons last month. The letter said the employees told them Halliburton worked hard to avoid putting purchases out for competitive bidding and therefore overspent for many purchases as well as common items.

This is crony capitalism, the sort of thing one would expect in a third world country.

The press should spend less time going over Bush's national guard service in 1973 and more time on this. The Administration's contracting practices in the Iraq war are the real military scandal; they speak volumes about the President's character, and his apparent belief that he is entitled to use the public treasury as his personal plaything to reward his friends regardless of the cost to the country.

JB

The Washington Post reports that the proposed Federal Marriage Amendment, which I have discussed here, is so poorly drafted that even the people who wrote it disagree about its meaning.

What is particularly remarkable is that some fairly prestigious legal talent-- including Judge Robert Bork, Professor Robert George of Princeton and Professor Gerald Bradley of Notre Dame-- was involved in drafting the FMA. Yet the language is so shoddy and confusing that I would probably flunk a student who submitted it in a final exam question. (And if you know anything about Yale Law School's grading system, that's saying a lot!).

The Post story explains that the drafting was done by a committee rather casually, without much concern for precision, and in order to satisfy various conservative constituencies. Some of the drafters believed that the language banned both same sex marriages and civil unions, others believed that it banned only same sex marriages, and still others believed that it prevented courts from holding that civil unions were required by federal or state constitutional law but did not prevent legislatures from creating such unions by statute.

In 1987 the Senate didn't think that Bork could be trusted to interpret the Constitution as a Supreme Court Justice. I must say that this episode does not speak well for his skills at drafting a constitution either.

JB

On February 12th, the birthday of the Great Emancipator, Abraham Lincoln, the Mayor of San Francisco ordered the city clerk's office to begin awarding marriage licenses to same sex couples, the Los Angeles Times reports.

Because existing California law (which preempts municipal law to the contrary) defines marriage as the union of a man and a woman, the city's tactic will fail unless it can get the California courts to hold that the California law is unconstitutional. My guess is that the courts will not agree, and we may even see a proposed amendment to the California Constitution to reemphasize that fact.

Given that the mayor's stunt will almost certainly fail legally in the short run, is it a wise strategy in the long run? Yes, because the push is coming from an elected official and not from a court. Even if courts guarantee same sex couples the right to marry, that right won't be fully secure until lots of public officials support the practice. Right now a significant number of national politicians support civil unions, but not very many are on record as supporting same sex marriage. To be sure, one might expect that the Mayor of San Francisco would be among the first politicians to push hard for same sex marriage. But even if his action doesn't sway lots of people in California, or the nation as a whole, it's an important start.

JB

The New York Times reports: "Senior Defense Department officials said Thursday that they were planning to keep a large portion of the detainees at Guantánamo Bay, Cuba, there for many years, perhaps indefinitely."

When the U.S. government denies people access to the courts and further declares that it is not bound by the Geneva Convention, this is pretty much what you would expect. Without the rule of law to restrain the government, it will be arbitrary. That is why courts and the procedural protections of the Bill of Rights and international legal agreements exist: because those who hold absolute power do not cede it willingly.

We hold ourselves out as a nation that believes in human rights and the rule of law, and we repeatedly state that we want our values to spread to other nations, particularly those with histories of arbitary arrest, detention and confinement. The best way to show why our values are important is to practice them ourselves. For if we cannot be bothered to protect human rights and the rule of law when they are inconvenient for us, how can we persuade other countries to adopt them?

JB

Is John Kerry unfairly being given a pass by the mass media with respect to Matt Drudge's allegations of infidelity with a young intern, while George W. Bush is being unfairly pilloried for the possibility that he was AWOL in 1972 and 1973? Glenn Reynolds wants to know.

I think it's entirely possible that a double standard will occur, but the key point I would emphasize is that it hasn't happened yet. Remember that the mass media didn't do much with the Bush AWOL story for a long time. It came and went in 1994, it came and went again in 2000. It took persistent repetitions of the story in the blogosphere, an intemperate question by Peter Jennings, a noncommittal response by Wesley Clark, and a strong endorsement of the theory by the chairman of the DNC to finally get the ball rolling. None of those things has happened yet with Drudge's accusations about Kerry's infidelity (which may not be infidelity at all if he was unmarried at the time that the alleged liaison occurred). The press takes time before it is willing to broach such a story. If one of the Democratic candidates vouched for the story in public, or if the chairman of the RNC started to assert it, then the mainstream press would almost certainly begin to cover it. They would cover it because Dean or Edwards or Clark or the chairman of the Republican National Committee or the White House Press Secretary said it on the record. But no mainstream politician has been willing to step up to the plate.

In any case, if the press does begin to take up the story at some point, we also have to consider what the Kerry story, if true, tells us about Kerry, and what the Bush story, if true, tells us about Bush. These are different things, and the press might think that the stories concern different issues. In Bush's case, for example, the issues concern whether he is a shirker, whether he is a hypocrite for sending people off to die when he avoided service, whether he broke applicable military regulations, whether he got special consideration in his initial assignments and special treatment thereafter because he was well connected, whether he avoided punishment for shirking for similar reasons, whether his ability to "work things out" with the military so he could attend Harvard Business School instead of completing his service like the average person is evidence of special treatment, whether his failure to take a medical examination was an attempt to hide features of his past that are even more embarrassing, and whether his selective release of dental records in recent days is indicative of the Administration general inability to be straight with the American people. Kerry's story, if proven true, would suggest other things about Kerry, some of them quite unflattering, but they would be different things. For example, Kerry has not yet promised to be forthcoming on the question at hand and the next day withheld evidence that he promised on national television he would provide. The Bush story is in a different posture and has a different history than the Kerry story. That is another reason to wait a bit before we declare them morally equivalent in all respects.

Finally, we have to ask whether the degree of evidence in both stories is the same or different. In Kerry's case, we have a single anonymous source reported by Drudge. In Bush's case, we have various records of and statements about his military service and multiple statements by identified persons that have led many people to conclude that Bush has not been entirely forthcoming about the circumstances of his National Guard service. In neither case do we have clear and convincing evidence that the allegations are true, but in Bush's case there much is more evidence for the press to consider precisely because the story has been brewing for so many years.

JB

The New York Times has the story here.

The Justice Department seeks to subpoena medical records of women who have had abortions in order to prove that partial birth abortions are medically unnecessary and were "just the doctor's preference to perform the procedure." This is truly grotesque. Doctors do not perform D&X abortions because they have a particular fondness for gruesome procedures; they do so because they believe it is the safest procedure available for women who are in difficult circumstances. This is a pretty blatant attempt to scare doctors away from performing the procedure and invade the privacy of their patients in the process. The key quote from the Justice Department's brief:

Citing federal case law, the department said in a brief that "there is no federal common law" protecting physician-patient privilege. In light of "modern medical practice" and the growth of third-party insurers, it said, "individuals no longer possess a reasonable expectation that their histories will remain completely confidential.

All of which begs the question whether people *should* have their medical privacy protected. Is there nothing that John Ashcroft won't stoop to?

JB

At least, that is what will happen if he comes out in favor of the proposed Federal Marriage Amendment.

The reasons why here.

JB

Joseph Galloway has the details. By the way, why isn't anyone making more of the war profiteering stories coming out of Iraq? This is an absolute disgrace. (Especially given that many of these contracts were awarded without the usual competitive process). We need a Congressional investigation.

JB

The San Diego Union Tribune has the story.

Good for him.

JB

Here is Peggy Noonan's justification for Bush's lackluster performance in Sunday's Meet The Press interview:

Democrats have minds that do it through talking points, and Republicans have minds that do speeches. (Mr. Bush has given a dozen memorable speeches already; only one of his Democratic challengers has, and that was "I Have a Scream.") And the reason--perhaps--is that Democratic candidates tend to love the game of politics, and Republican candidates often don't. Democrats, because they admire government and seek to be part of it, are inclined to think the truth of life is in policy. How could they not then be engaged by policy talk, and its talking points?

Republicans think politics is something you have to do and that policy is something you have to have to move things forward in line with a philosophy. They like philosophy. But they are bored by policy and hate having to memorize talking points.

Speeches are the vehicle for philosophy. Interviews are the vehicle of policy. Mr. Kerry does talking points and can't give an interesting speech. Mr. Bush can't do talking points and gives speeches full of thought and assertion.

Philosophy takes time. If you connect your answers in an interview to philosophy, or go to philosophy first, you can look as if you're dodging the question. You can forget the question. You can look a little gaga. But policy doesn't take time. Policy is a machine gun--bip bip bip. Education policy, bip bip bip. Next.

Finally, the idea that speeches read from a teleprompter are inherently vehicles of philosophy while talking points memorized and spat out in press interviews are vehicles of policy is absurd. Speeches are used for policy announcements all the time; conversely, talking points are often designed to describe a candidate's larger philosophy without getting into specifics. (Here Peggy Noonan is trying to do a clever McLuhanesque spin but I suggest she go back and read her McLuhan again.). The reason why Bush does better in speeches than in interviews is because he has great speechwriters and he's not very quick on his feet.

I will agree with Peggy on one thing-- the President has absolutely no interest in public policy. But that's not because he's a philosopher. It's because he's primarily interested in holding onto power. See the following posts here and here for more details.

JB

Details here.

Drum obtained documents from a FOIA search conducted in 2000 by Bob Fertik. According to Drum, it appears that because Bush stopped going to drills begining in May 1972 and refused to take a physical (why would he do that?) he was grounded and transferred to a unit called ARF. This is essentially a disciplinary action that requires no drills but makes one available for active duty (However, the odds that a Congressman's son would be sent to Vietnam were small at best). Bush didn't, as he suggests, make up his original Texas Guard Unit time in 1973. In fact, other documents Drum has uncovered suggest that there was no actual duty after May 1972.

This story gets increasingly interesting. The question is whether the mainstream media will pick up on it.

JB

can be found here.

JB

Since the term "Mayberry Machiavelli" has been bandied about so much in recent times to describe President Bush and his administration, I thought it might be useful to go back to the source to see how well the President has been following Niccolo's advice. The answer is, quite well in some respects. However, as I shall also suggest at the end of this post, Machiavelli also shows how George W. Bush is vulnerable:

Here is what Machiavelli has to say about leadership in the eighteenth chapter of The Prince:

Everyone admits how praiseworthy it is in a prince to keep faith, and to live with integrity and not with craft. Nevertheless our experience has been that those princes who have done great things have held good faith of little account, and have known how to circumvent the intellect of men by craft, and in the end have overcome those who have relied on their word. . . .

But it is necessary to know well how to disguise this characteristic, and to be a great pretender and dissembler; and men are so simple, and so subject to present necessities, that he who seeks to deceive will always find someone who will allow himself to be deceived. One recent example I cannot pass over in silence. Alexander VI did nothing else but deceive men, nor ever thought of doing otherwise, and he always found victims; for there never was a man who had greater power in asserting, or who with greater oaths would affirm a thing, yet would observe it less; nevertheless his deceits always succeeded according to his wishes, because he well understood this side of mankind.

Therefore it is unnecessary for a prince to have all the good qualities I have enumerated, but it is very necessary to appear to have them. And I shall dare to say this also, that to have them and always to observe them is injurious, and that to appear to have them is useful; to appear merciful, faithful, humane, religious, upright, and to be so, but with a mind so framed that should you require not to be so, you may be able and know how to change to the opposite. . . .

For this reason a prince ought to take care that he never lets anything slip from his lips that is not replete with the above-named five qualities, that he may appear to him who sees and hears him altogether merciful, faithful, humane, upright, and religious. There is nothing more necessary to appear to have than this last quality, inasmuch as men judge generally more by the eye than by the hand, because it belongs to everybody to see you, to few to come in touch with you. Every one sees what you appear to be, few really know what you are, and those few dare not oppose themselves to the opinion of the many, who have the majesty of the state to defend them; and in the actions of all men, and especially of princes, which it is not prudent to challenge, one judges by the result.

All of this sounds quite familiar: The judicious manipulation of religious language in Bush's speeches, the secrecy, the refusal publicly to admit mistakes, the blatant dissembling, the flagrant hypocrisy exercised before a fawning coterie of admirers.

But Machiavelli is far more important for other reasons. He has a great deal to tell us about how leaders succeed and how they ultimately fail. This from the twenty-fifth chapter of The Prince:

[T]he prince who relies entirely upon fortune is lost when it changes. . . .[H]e will be successful who directs his actions according to the spirit of the times, and . . . he whose actions do not accord with the times will not be successful. . . .

But a man is not often found sufficiently circumspect to know how to accommodate himself to the change, both because he cannot deviate from what nature inclines him to, and also because, having always prospered by acting in one way, he cannot be persuaded that it is well to leave it; and, therefore, the cautious man, when it is time to turn adventurous, does not know how to do it, hence he is ruined; but had he changed his conduct with the times fortune would not have changed.

Pope Julius II went to work impetuously in all his affairs, and found the times and circumstances conform so well to that line of action that he always met with success. . . . [T]he shortness of his life did not let him experience the contrary; but if circumstances had arisen which required him to go cautiously, his ruin would have followed, because he would never have deviated from those ways to which nature inclined him.

I conclude therefore that, fortune being changeful and mankind steadfast in their ways, so long as the two are in agreement men are successful, but unsuccessful when they fall out. For my part I consider that it is better to be adventurous than cautious, because fortune is a woman, and if you wish to keep her under it is necessary to beat and ill-use her; and it is seen that she allows herself to be mastered by the adventurous rather than by those who go to work more coldly. She is, therefore, always, woman-like, a lover of young men, because they are less cautious, more violent, and with more audacity command her.

These final passages sum up Machiavelli's most important views on the world of politics: Politicians follow the stratagems and approaches that stem naturally from their character; they succeed if their tendencies are in tune with the tendencies of the time. But no one succeeds forever, because people are insufficiently flexible to go against their natural tendencies. Given this fact, fortune favors the bold and impetuous, because by taking the offensive they have a greater chance of reshaping the situation to their advantage; acting agressively and forcefully requires others to respond to them and play their game. But even the bold and impetuous fail when the times call for caution and circumspection.

Looking over the three years of the Bush Administration so far, it seems clear (to me at any rate) that Bush has followed Machiavelli's advice admirably. He has shown himself by nature bold and reckless; by acting decisively, and refusing to compromise, he has forced first Congress, and later the world to dance to his tune. His domestic policies show little concern for what tomorrow may bring; and his bold maneuver into Iraq was made heedless of the consequences of a long occupation. In conformity with Machiavelli's remarks on fortune, Bush has acted "less cautious, more violent, and with more audacity;" he has treated fortune like a woman. And he has brazenly dissembled whenever dissembling was required to promote his aims. This is the source of his considerable success.

But Machiavelli warns that this course of action pursued consistently will eventually run into trouble. At some point conditions change; audacity fails to work as it did before; the piper must be paid. The President seems willing to bluff through his current difficulties, attempting to defer every looming problem and inconvenient fact until after the 2004 elections. The great question of the present moment is whether the strategy of the first three years will continue to be the right strategy for the next nine months, or whether the President, given his natural tendencies toward recklessness and gambling, will have played his hand too boldly too often. Only time will tell. But it is worth noting, with a certain degree of Machiavellian admiration, an Administration that, for a time, kept the country in sycophantic submission through bold moves and brazen deceit. Bush arrived at a point in American history when bullying and thuggishness were rewarded, when both his opponents and the press proved cowardly, corrupt, feckless and effete. He took advantage of those facts, and thus took advantage of us. We must marvel not only at his facility in gaining and holding power, but at the features of American politics that allowed such a man to seize the moment and misuse the country so badly in three short years while a servile press and the public fell fawning at his feet, his political opponents, corrupt and cowardly, ran for cover, and no one raised a finger to stop him.

JB

The New York Times reports that the porn industry is taking a very different approach to digital piracy than the Motion Picture Association of America and the RIAA. They are focusing primarily on people who attempt to resell pirated pornography for profit. Instead of suing individual not-for-profit infringers, a few porn providers are giving people the option to join their pay sites.

These strategies suggest the two major ways that mainstream industries should deal with digital piracy. The first is to give up on tracking down individual not for profit users and instead focus on commercial pirates. The distinction between commercial and non-commercial piracy makes a great deal of sense in terms of public relations, and, perhaps more controversially, it also is consistent with what I take to be the larger purposes of intellectual property law. (Moreover, although the story does not mention it, it's also possible to raise money in other ways, for example, through a grand bargain in which copyright holders get a share of taxes on CD's or CD burners, which spreads some of the cost, albeit very imperfectly, onto non-commercial infringers.) The second strategy is to try to coax end users into pay sites by offering easier searches, wider selection, and guarantees of reliable products. Because the effective cost of any particular digital item is zero given the existence of P2P, what users are really paying for is not the information itself but convenience, selection, and reliability. (They might also pay for information about digital information, if it helps them make good decisions about what to download). If pay sites can provide these things better than P2P sites, they can make a living.

JB

The New York Times reports his fervent defense of the Iraq War despite the obvious failures of intelligence:

Asked in a question-and-answer session afterward about apparent American intelligence failures in Iraq, he acknowledged that it was a question of crucial importance that would be examined by the commission appointed Friday by President Bush, but emphasized that the panel would look at intelligence successes as well as shortcomings.

Mr. Rumsfeld's remarks drew several pointed questions from the audience challenging how the administration could defend its doctrine of pre-emptive strikes against perceived threats when the precise intelligence needed for such a strategy apparently failed in the case of Iraq.

"If you're going to live in this world, and it is a dangerous world, you do have to have elegant intelligence," Mr. Rumsfeld acknowledged.

But he repeatedly defended the get-them-before-they-get-us doctrine in an age when terrorists are threatening to acquire and use biological, chemical and nuclear weapons as "something that has to be weighed and considered by all of us" given the possible catastrophic consequences.

Rumsfeld's arrogant (and alarming) performance suggests that the Administration is not too worried about false positives, other than as a potential source of (undeserved) bad publicity. But false positives can (1) bankrupt a national treasury, (2) stretch your military resources too thin and make you vulnerable elsewhere, (3) poison your relations with other nations, and (4) inflict needless suffering that you-- and not your enemy-- will get blamed for. If Rumsfeld is aware of these dangers, he does not seem to be willing to admit them in public. And his refusal to do so does the American cause no good:

Asked whether America's stature in the world had been diminished since the war, he acknowledged the Iraq war had taken its toll, but contended that it was more because of biased reporting by Arab media like Al Jazeera than anything the United States had done. "I know in my heart and my brain that America ain't what's wrong in the world," he said.

JB

The New York Times reports that he's almost there. It's just a matter of choosing the most politically propitious time.

In a sense, this was inevitable. Bush has angered the small government crowd by his enormous budget deficits and his attempt to blame (a Republican controlled) Congress for them. He can't afford to anger social and religious conservatives (who overlap with the former group). He also remembers what happened to his father when the party's conservative base deserted him. So he will come out in favor of the FMA. The only questions are when he will do it and whether he will emphasize it strongly in the upcoming campaign.

Bush may also be counting on the fact that most Americans oppose same sex marriage, and almost no Americans do who would otherwise vote for him (except perhaps for Andrew Sullivan). So it looks like an easy decision. On the other hand, as I noted in my previous post on this subject, there are real costs to this strategy. Many Americans don't want to think of themselves as intolerant, and if support for the FMA becomes tangled up in support for the religious right and opposition to gay rights generally, or is seen to be tangled up with those causes, Bush will lose the support of many moderate voters.

JB

The incomparable Matthew Yglesias is, unfortunately, still in the thrall of the "Bush is stupid meme." Would liberals and progressives please stop doing this? This is how you wind up flat on the pavement with your hands pinned behind your back and your pockets picked.

I've said this before and I will say it again: just because someone doesn't care a hoot about public policy debates doesn't mean they lack intelligence. Thinking that way may be comforting to liberals' sense of superiority, but it will cause them to miss out on what Bush is about, which is not good policy but the exercise and maintenance of power. Yeah, maybe George don't know much about history, but he does know how to kick the left's behind and pull the wool over the country's eyes.

So stop telling yourself that this guy is stupid. What liberals should be reminding each other is that Bush is shrewd, crafty, cunning and ruthless.

Like lots of good old boys in the South, George W. Bush wants us, as he himself says, to "misunderestimate" him. And whenever we do that, he takes advantage of us, time and time again. Ann Richards misunderestimated George W. Bush and she got booted out of the Texas governor's mansion. Al Gore misunderestimated Bush and he ended up losing the presidency not once but twice, once in November 2000 and once again in December.

I'm a liberal, and an academic, and I know that both groups tend to look up to expertise. They admire people who know the facts and have a firm grasp of the important issues of the day. But that's not the only kind of smarts in the world. In his own way, Bush is as clever a politician as Bill Clinton was, although his style is different in important respects. What he understands is not policy but power: how to get it, how to keep it, and how to wield it. That's why his White House is secretive and disciplined almost to the point of parody, and that's why he keeps getting his way even though he can't talk about the most basic policy debates without stumbling. He leaves policy to the wonks and intellectuals he despises. He's after bigger game: political control. While you have a good laugh making fun of how he mispronounces words and mangles policy questions, he's going to use every trick in the book to bury you. And believe me, he knows a lot of tricks that you don't. It's time to take this guy seriously. Telling yourself how stupid Bush is may be a good way to make yourself feel better about the fact that you are out of power. But it's not going to help you defeat him in November.

JB

The Massachusetts Supreme Judicial Court today stated in an advisory opinion that a civil unions bill that gave same sex couples substantially all of the same rights as opposite sex couples did not comply with its previous ruling in Goodridge v. Department of Public Health.

I support the idea of same sex marriage as a matter of legislative policy, but I have a bone to pick with what the SJC did here. Through its two opinions it has sent conflicting signals that may have ultimately damaged the cause of gay rights. Here's why.

After holding that Masschusetts' existing law was unconstitutional for excluding same sex couples, the SJC could simply have awarded marriage licenses to the plaintiffs. Instead it refused to do so, staying its mandate until the middle of May (May 17th, the 50th anniversary of Brown v. Board of Education, by the way) for the Massachusetts Legislature to respond.

This feature of the opinion confused many people. It seemed to signal that the legislature would be free to experiment with different solutions, including possibly a civil unions law like the one passed in neighboring Vermont. The purpose of giving the issue back to the legislature, many people assumed, was to allow the legislature to debate the issue, and reach a political compromise instead of the SJC forcing the issue. The idea would be to make the same-sex marriage bill a product of a democratic process rather than a court mandate. When courts make important and controversial decisions, they are on firmest ground when they act with the blessing of the legislature. What legislatures do often ratifies what courts have done before. For example, the Civil Rights Act of 1964 effectively ratified the Court's 1954 decision in Brown v. Board of Education, making opposition to segregation not only the demand of the Supreme Court but also official U.S. legislative policy. It was the Civil Rights Act of 1964, and not Brown, that did the most to desegregate the South.

The Supreme Judicial Court of Massachusetts might have tried, as the Vermont Court did, to coax the state legislature into ratifying its decision by passing a bill based on the Legislature's own judgment about the best way to enforce the Court's order. But in its latest opinion, the SJC has essentially said that there is only one way to enforce its order. It has given the legislature no discretion at all. It has insisted on what is effectively a rubber stamp, which will achieve no additional democratic legitimacy.

Indeed, having issued its advisory opinion today, it is now clear that there was no particularly good reason for delaying its mandate in the original Goodridge opinion. It might as well have just issued marriage licenses to the plaintiffs in the first place. (To be sure, the Court might have feared that issuing the mandate immediately would be interpreted as striking down the marriage laws in Massachusetts, but that is not the only possible remedy and the Court could have dispelled any confusion on that score). In effect, the SJC has made any attempt at dialogue with the Massachusetts legislature into a sham.

Not surprisingly, many Massachusetts legislators who would have supported a civil unions bill now will vote for a amendment to the Massachsetts state constitution defining marriage as the union of one man and one woman. Such an amendment could not take effect until at least 2006. Nevertheless, the Court has wasted an opportunity to get half a loaf (and possibly a full one) when it may well end up with none in the long run.

The SJC may have been gambling that by forcing the issue, tempers will eventually cool and the residents of Massachusetts will come to accept same sex-marriage. That may turn out to be the case. Or it may not. But the Court shouldn't send out confusing signals in the way it has done. It either should have issued marriage licenses last fall or it should have allowed the Massachusetts legislature to come up with a solution with some democratic legitimacy. It has done neither, and in this respect it has made a grievous political error that may ultimately undermine its authority and lead to the overturning of its Goodridge decision.

It is possible that the Court will not have to pay for its political mistake. The Massachusetts Legislature may pass a same sex marriage act and the proposed amendment may fail. But if the amendment passes, it will be the Supreme Judicial Court's fault for bungling the situation.

A final word about the national implications of this decision. It may look at first as if this decision harms the Democrats, as President Bush will be able to run against what the SJC has done. But in fact it may have the opposite effect. Bush has tried to avoid directly stating that he supports the Federal Marriage Amendment (which I have analyzed in previous posts, here and here). He has inched toward endorsing it without doing so directly because he fears that endorsing it will make him look intolerant to swing voters. But the SJC's decision will result in increased pressure from social conservatives in the party to come out firmly in favor of the FMA. Thus, the SJC may have simultaneously made things difficult for both the Democrat nominee and for President Bush.

JB

Although the Bush was AWOL story was circulating in the blogosphere for sometime, it took Terry McAuliffe's statement on Sunday to put it in the mainstream press. Dan Froomkin has the details. There's also this story in today's Washington Post. The folks at factcheck.org conclude that "Bush was honorably discharged without ever being officially accused of desertion or being away without official leave." (emphasis supplied). Of course, not being officially accused of something is not quite the same thing as not having done it. And the real story here is whether the same preferential treatment that got Bush what was then a conveted position in the Texas National Guard (and a position in flight training school after he had received the lowest possible score for admission) also resulted in Alabama National Guard officials conveniently looking the other way when he disappeared for long stretches of time. There is also the fact that he was grounded in August 1972 because he failed to complete an annual medical exam.

If Bush consented to release his military records, as all candidates have done in the past, they would shed some light on these questions, and possibly resolve the controversy once and for all. However, Bush has refused to make his military recorts public, calculating that the controversy ultimately will die down without his having to make any disclosures that might be personally embarassing to him.

Ultimately, I think, this controversy will not by itself prove decisive. It will matter to the extent that it resonates the with public's other doubts about Bush's character, honesty, and his Administration's penchant for secrecy and dissembling. It is much more important that the President is keeping many other things secret and is stonewalling other investigations-- including the work of the 9/11 Commission, whose findings about preparedness might be much more embarassing to his Administration.

JB

This Washington Post story on Bush's proposed budget confirms my suspicions about Bush's political strategy. To please his right wing he is proposing cuts in a whole host of social programs which will actually add up to a comparatively small amount (less than one percent of the predicted budget deficit of 521 billion dollars) while at the same time accelerating military spending (read here defense contracting) and lowering taxes yet again for the wealthy. It's pure symbolic politics that has nothing to do with fiscal discipline. By selectively picking out and gutting programs that his conservative base identifies with a liberal social agenda, President Bush he appears to stand for budgetary restraint and for making tough decisions about government expenditures when in reality he is running enormous deficits and lining the pockets of his wealthiest supporters.

JB

A real bargain.

Harry Truman once equated various forms of war profiteering with treason. As a senator from Missouri he vigorously investigated defense contractors during World War II even while the Democrats were in the White House.

Isn't it time for a Truman Commission to investigate how much money the President's and Vice-President's friends have made off of Iraq? And shouldn't the President be the first person to call for such an investigation? Do you think there's any chance that he will?

JB

Reuters reports:

Boxed in by a record $521 billion deficit, President Bush (news - web sites) will propose a $2.4 trillion election- year budget on Monday that will cut dozens of government programs and set deficit-reduction goals that even fellow Republicans are skeptical he can meet.

Bush has seen a dramatic deterioration in the nation's budget picture since a record surplus was reported in 2000. He hopes to improve his fiscal image before the November presidential election by promising to reduce the deficit by one-third by 2005 and by more than half within five years.

But fiscal conservatives in both parties have doubts Bush can deliver. He will leave out of his fiscal 2005 budget the tens of billions of dollars that will almost certainly be needed next year to keep U.S. troops in Iraq (news - web sites), as well as a costly tax system overhaul that Republicans and Democrats say will soon become politically imperative to keep taxes from rising on the nation's middle class.

In line with Bush's election-year priorities, homeland security and the military will be the budget's biggest winners. Defense contractors including Lockheed Martin Corp., Boeing Co., Northrop Grumman Corp., Raytheon Co. and General Dynamics Corp. stand to benefit as Bush's $401.7 billion military budget sharply increases spending on missile defense and on modernizing the Army.

The biggest losers will be environmental, agricultural and energy programs. Facing the prospects of a revolt by fiscal conservatives, Bush will call for limiting growth in discretionary spending -- outside of homeland security and defense -- to just 0.5 percent. Because that is well below the rate of inflation, it will amount to a cut in domestic programs.

In a tacit acknowledgment that deficits are here to stay, Bush will set the goal of bringing this year's record $521 billion shortfall down to $364 billion in fiscal 2005 and eventually to $237 billion in fiscal 2009. There is no talk of returning to surpluses in the foreseeable future.

Oh, and by the way, while he's running up those huge deficits, he also wants to wants to make the tax cuts that caused the problem permanent.

JB

The Chairman of the Democratic Party is actually attacking President Bush on his military record, the New York Times reports. Instead of cowering in the corner when the media said that the charge of desertion was false, Terry McAuliffe is raising the more plausible question whether the President was AWOL while in Alabama. Nevertheless, it is particularly strange to me that McAuliffe chose to break this story on Super Bowl Sunday, which is not a good time to cover a political event.

The Times reports that Terry McAuliffe's statement "came two days after a scathing attack on President Bush's war record, delivered by Senator Max Cleland of Georgia on behalf of Mr. Kerry." Cleland said "Mr. Kerry was "a real deal" and President Bush was "a raw deal." He added, "We need somebody who felt the sting of battle — not someone who didn't even complete his tour stateside in the Guard.""

What is remarkable is that the Dems are making such a gamble now when the issue was first raised in June of 2000. By having the Chairman of the Democratic Party take up this line, they are making it impossible for the media not to pay attention to it. Of course, it may seriously backfire, if it turns out that Bush's unexplained absences were accounted for. But even if Bush made up the lost time later, (as the New York Times suggested in November 2000, see my previous post here) the real issue will be (1) whether he used his family connections to get special treatment that allowed him to make up the lost time that would not have been extended to the average Joe, and (2) whether there is a reason why he would not submit to a physical examination for a substantial period of time during his National Guard service. (In fact, Joe Conason reports that Bush was eventually grounded because he wouldn't submit to a physical examination.). The key issues, therefore, are not whether Bush met the technical definition of AWOL (for he might have made up the lost days later on) but the use of family connections to get special treatment and the refusal to take a physical exam. It will be interesting to see whether the media picks up on these features of the controversy or buries them.

I had long expected that this was going to be the dirtiest presidential campaign since 1988, when Lee Atwater pounded Michael Dukakis into the ground. I had no idea that the Dems would be giving back as good as they get.