Balkinization  

Sunday, August 31, 2008

An alternative for VP

Mark Graber

John McCain may have declared his preference for Sarah Palin, but a vote must still be taken. An alternative candidate has throw her hat into the ring. My mother. Her self-described qualifications are below [my notes are in brackets]. If you believe she is at least as qualified for the vice-presidency as Sarah Palin, please contact members of the Republican National Committee.

I have just been skimming through Balkin, and I am really mad! I have had a passport since 1968, have travelled through Western and Eastern Europe, through parts of Asia, Africa, the Middle East, South and Central America, Canada, and the United States. Sarah Palin got a passport last year!

I have a B.S. in Education, a MSW, and an ED.D [the last two degrees are from Columbia--Mom also comes from a working class family and had to work her way through college]. I have a long history of work in educational, community and governmental agencies. In addition, I have taught on a graduate level and continue to teach social work interns.

On a personal level, I have raised three sons, gone to innumerable chess matches, debates, little league games, track meets, basketball games, cub scout activities.band concerts. parent-teacher meetings, (I left school board debates to your father!), etc. I have been an active grandmother, and in that capacity ,have attended dance recitals, more concerts, fencing matches, wrestling matches, rock concerts, and graduations.

I am a decent lecturer and seem to be a valued docent at the Museum at Eldridge Street. I am a volunteer in the Mental Health Players and wrote one of their most popular playlets. I have not only taught courses in Social Work, but I have taught for the Adelphi School of Nursing in their Gerontology Certificate Program. In fact, I developed several of their courses with Edie Bigman. For Adelphi's Senior Connection Program I lectured on Issues of Aging with works of literature as the basis of discussion. In short, I can talk to people!

Now, I ask you, with my credentials, why have I not been tapped for a vice-presidential spot? I realize that I can neither dance nor sing, but I assume that could be overlooked. I can only assume that this is a blatant case of ageism. Can you advise me on what my next steps could be to resolve my problem. With love, Mom



Who pays the price for John McCain's "hasty" decisions? Does he care?

Sandy Levinson

A story in the NYTimes reviewing the process by which McCain picked Gov. Palin (even though his first choice was Joe Lieberman), quotes the following regarding John McCain's view of his own decision-making process: “I make them as quickly as I can, quicker than the other fellow, if I can,” Mr. McCain wrote, with his top adviser Mark Salter, in his 2002 book, “Worth the Fighting For.” “Often my haste is a mistake, but I live with the consequences without complaint.” Even if one thinks it's reassuring that he doesn't complain about the consequences, might we not think that it is really irrelevant whether he complains or no? Aren't the real questions a) the general error rate of his self-described "haste" in making important decisions and b) the costs to others of such decisions? I look forward to rabidly loyalist Republicans explaining why hasty decisions are really something we want presidents of the United States to make and why Obama will disserve the country in actually deliberating and taking some time before acting.


"Equivalence"

Sandy Levinson

I'll leave it to professional psychiatrists to decide what is "sane" and "insane" to believe. I am completely confident, though, that no person not caught up in partisan delusion could believe that Gov. Palin is equipped to be President of the United States in the foreseeable future. It is also dishonest, to put it mildly, to suggest that she and Sen. Obama are "equivalent" in their lack of experience. Yes, it's true he's never actually administered a state or federal agency, which makes him even with Sen. McCain, but it is crazy (there I go again) to believe that 20 months as governor is equivalent to several years in the Illinois legislature plus four years in the Senate. Most important, in many ways, is the "experience" that one gets by engaging in a serious candidacy for the presidency. Obama, like all of the other serious candidates, has toured the length and breadth of the United States over the past couple of years, as has, say, Mike Huckabee, who would have been a far more serious pick if McCain weren't desperate to have a woman (more on that in a moment). It's not only that Gov. Palin has had, shall we say, limited experience travelling abroad. I strongly suspect that she is currently visiting Mississippi for the first time in her life, and I wonder how many of the other 50 states she's never visited. Both Obama and McCain (and Clinton and Huckabee) have gotten to know a hell of a lot about the United States as active and responsive candidates. Whether or not McCain "gets it," he has in fact been exposed to the people and problems of the United States.

What is especially obnoxious, I must say, is the suggestion that it is "sexist" to point out that Gov. Palin has no apparent qualifications to be President of the United States in the foreseeable future. This is "double-standardism" at its worst, since no one would suggest holding back if she were male (like, say, Gov. Huckabee or Gov. Jindal). She may be a fine person and mother; I have no reason to believe that she isn't. She may also deserve some credit for taking on the Alaska Republican kleptocracy (though does this mean she won't support the alleged criminal Ted Stevens for re-election, as well as Don Young?). But only a deluded partisan could believe this adds up to qualifications for the presidency of the United States in the foreseeable future.

And, by the way, is there any evidence that she has ever displayed any intellectual curiosity? What are the last five books she's read? We've suffered from one Yale-educated president totally devoid of curiosity and blithely self-confident (as Gov. Palin is said to be) in the rectitude of his/her own dogmatic (and often stunningly ignorant) opinions. Contrast this only with Ronald Reagan, who actually read things and conferred with Hoover Center academics and intellectuals after he left the governorship of California and before he ran for the presidency. I suspect that even J. Danforth Quayle had traveled abroad and learned something about the world before he was chosen for the VP.

John McCain professes to admire Teddy Roosevelt. But Roosevelt was well-educated and extraordinarily curious; he was capable of writing respected books without the aid of ghost-writers (contrast Obama with McCain on this score). The only thing that Sarah Palin has in common with Teddy Roosevelt is that both like the wilderness (though I doubt that Teddy would have been so eager as Gov. Palin is to drill for oil in it, and I wonder if he would have supported the gold mining interests over the salmon in the Alaska referendum last week). Republicans should be ashamed of themselves to tout Sarah Palin as a potential president in the foreseeable future. But, then, I suspect that Caligula's horse also had fine breeding and could run fast as well.



Saturday, August 30, 2008

Notes from our constitutional monarchy

Sandy Levinson

Needless to say (so some of you can stop reading right now), I see the ludicrous choice of Sarah Palin in the context of my particular hobbyhorse, our defective Constitution. The defect is twofold, one of them more certainly a defect than the other. The first defect is having an entrenched vice president in the first place. As I argued in the Boston Globe last year, we would be better off without such an office. But perhaps you disagree and think it is a good idea always to have a designated successor. That's certainly not a dumb argument, though I think it is dumb to say that the VP should be as entrenched as the President (as, as you know, I think that the inability to fire an incompetent president mid-term is also quite dumb). But we should now realize that it is really dumb to have the VP elected at the same time as the President, as required by the 12th Amendment, given that presidential candidates only sporadically pick vice presidential candidates on the basis of who, in fact, would make a first-rate president in the case of the demise (or resignation or impeachment) of the incumbent.

John McCain's pick of Sarah Palin is spectacularly irresponsible. No sane person could believe that she is equipped to be President of the United States at the present time. (If Ms. Palin doubts this, then she is just another political megalomiac, who may, for all we know, believe that it is God's will that she become our President). She is minimally educated, without any significant relevant experience in thinking about or responding to the great issues of the day, and incredibly parochial, for starters. But she will be nominated, because we begin treating even our presidential candidates as the equivalent of monarchs who are free to engage in all sorts of indefensible decisions. No respectable political party would even be thinking of nominating Ms. Palin, but, of course, that is irrelevant. She is the equivalent of Caligula's horse, and if Caligula could get the nomination of a major party, then it would simply acquiesce to the horse's nomination, because that is just the prerogative of the candidate. That is not the fault of our Constitution, but it does speak to our incredibly degraded informal "constitutional culture," which treats selecting a vice president as a frivolous sport, based on the most short-term of political calculations about "battleground states" or assuaging some particular interest group whose votes must be bought (in this case, presumably, members of the Religious Right). I must say, though, that Mike Huckabee is the model of a toweringly experienced statesman when compared to Ms. Palin, and if I were a self-respecting member of the Religious Right, I would wonder why he was passed over in favor of such a manifetly implausible candidate. The one and only explanation is the crudest form of affirmative action/identity politics, which should embarrass any self-respecting members of the Religious Right.

If we have to have a vice president, entrenched or not, then (s)he should be selected under the terms of the 25th Amendment, i.e., the winning presidential candidate in the November election should nominate someone to serve as VP, subject to congressional confirmation. This would assure us at least a minimally competent VP and would prevent the potential idiocy of a Palin vice presidency (which would be a mere idiocy unless something happened to the 72-year-old McCain, at which time it would be what Jack Balkin and I label a "Type II constitutional crisis," which is when the ordinary operatin of our constitutional system produces an outcome that threatens to take us over the cliff, such as a Palin presidency.



John McCain's Hail Sarah Pass

JB

Generally speaking, one doesn't throw a Hail Mary pass in the opening minutes of the third quarter. And yet this seems to be precisely what John McCain has done.

Immediately before the Democratic Convention, the race was very close, indeed almost tied. The Democratic convention gave Obama a predictable bounce; McCain would soon receive his after his own convention. There was no particular reason to panic or take extraordinary risks at this point. Indeed, the recent weeks of negative advertising directed against Obama seemed to be hitting their mark.

McCain, however, wanted to shake up the race, and confirm his maverick tendencies. But in doing so, he may have confirmed another set of stereotypes: that he shoots from the hip, doesn't think through his choices carefully, does not have the patience to prepare, is aggressive and lacks sound judgment.

McCain probably figured that there would be a round of media vetting about Palin's past, including the dust up over allegations that she pushed for the firing of a state trooper engaged in a messy child custody dispute with her sister. McCain must have predicted that after a few days, these allegations would lead no where. But at the same time, the danger is that they will continue to attract media attention and overwhelm his message.

He also figured that there would be an extended debate on Palin's preparedness to be President, given that McCain is 72 years old and has had numerous health problems, in addition to being generally debilitated from his imprisonment years before. Again, he must have assumed that this would either blow over or be turned against Obama. But again, the danger is that these debates will swamp his message-- that the media coverage will be about Palin's (purported) deficiencies, and not about him.

McCain wants to send the message that he is a maverick who puts country first. The Palin pick might confirm that message. Or it might send a conflicting message: that he is a calculating politician who would do anything to win; in order to shore up his base and make a cynical appeal to Hillary Clinton supporters, he put an untested and inexperienced person a heartbeat from the presidency when the presidential candidate may not make it through his first term.

The point of a hail Mary pass is that neither you nor the defense knows what is likely to happen. You just throw the ball as far as you can and hope that your team catches it. McCain's Hail Sarah pass is very similar: he doesn't have any way of knowing what the meaning of the pick will be in two month's time. All he can do is throw his choice out into the playing field of the American mass media and hope for the best.

McCain's critics will say that this risky behavior is precisely what we do not want in a chief Executive following the Texas-gambler style of George W. Bush, who staked his Presidency on the War in Iraq and blundered badly in the execution. Perhaps, however, McCain knows something that most people don't about the fundamentals of the race. Perhaps he has reason to believe that, despite surface appearances, he is way behind and needs to shake things up badly if he has any chance to win. In that case, the Palin pick is not merely risky: it is a necessity.

We will know more in a few months' time.

Friday, August 29, 2008

The Consquences of a Freedom of Choice Act

JB

Over at Bench Memos, Rick Garnett makes two points about the effect of a potential Obama Presidency on abortion politics that push in opposite directions.

On the one hand, Rick argues that pro-life advocates (and in particular Doug Kmiec) should not support Obama because it is important to overturn Roe v. Wade. "The problem with Roe," Rick explains, "is not just that . . . it facilitates wrong choices by private persons; it is also, and fundamentally, at odds with our constitutional structure and with democratic self-government." That is because the decision takes the issue from democratically elected legislatures and prevents majorities from protecting unborn life by criminalizing abortion. Rick does not think that overturning Roe would end abortion in American, but it would give democratically elected legislatures a chance to express their views on whether or not to criminalize abortion.

On the other hand, Rick predicts (whether correctly or not), if Obama is elected, Congress "will certainly" pass the Freedom of Choice Act, which would nationally guarantee abortion rights and ratify the result in Roe as a matter of statutory law. (I don't think FOCA "will certainly" pass, for it takes 60 votes to pass anything in the Senate, but the chances would probably increase).

Rick's arguments are consistent, but there is an important tension between them. The best way of seeing the tension is to look at the history of Brown v. Board of Education.

Brown was widely regarded as controversial when first decided, precisely because it cut off choice in individual states about whether to require segregation. Many critics of Brown, like Herbert Wechsler, argued that although they may have supported the result, Brown did great damage to our constitutional system and to the system of judicial review.

These debates about Brown's legitimacy and its cutting off democratic choices largely ended after Congress passed Title VI of the 1964 Civil Rights Act which effectively ratified Brown. As Archibald Cox put it, the Civil Rights Act made Brown "more firmly law."

My suspicion is that if Rick is correct and Congress did pass a Freedom of Choice Act, procedural objections to Roe of the sort Rick has offered would look far less powerful to most Americans. *Moral* objections to abortion would no doubt continue, but it would be hard to say that the people's elected representatives had not made a clear decision to protect women's right to abortions.

What this would mean in practice, I suspect, is that the fight over abortion would change significantly. The struggle would move to other arenas. Attempts to use moral suasion to persuade women not to choose abortions would continue in civil society. More importantly, there might be increased support on all sides for government programs that would reduce the total number of abortions in America, including (1) increased support for contraception, (2) reducing the stigma of adoption and encouraging adoption, and (3) increased health benefits, child care support, and subsidized day care for single women and families to encourage them to keep and raise children in cases of unplanned pregnancies.

Many pro-choice advocates, including myself, would support all three types of initiatives. Many pro-life advocates would support them too, although some parts of the pro-life coalition would not be happy about government funding of contraception and day care and might still oppose them vigorously.

The key point, however, is that a Freedom of Choice Act would significantly change the political playing field concerning family policy in the United States. Family policy would no longer be inflected (if not dominated) by the debate over the democratic legitimacy of Roe v. Wade. It would create a space for a different kind of discussion, one that both pro-choice and pro-life advocates might find more rewarding.

Wednesday, August 27, 2008

Well, Yes, That is To Be Expected

Marty Lederman

Lawyers for an Ethiopian national who lived in Britain -- housed at Guantanamo since 2004 and now scheduled for a military commission trial for war crimes -- have asked a British court to order the British government to provide Mohamed's lawyers with information about Mohamad's interrogations in Pakistan and Morocco. Last week, the British High Court of Justice concluded that British intelligence officers had unlawfully assisted the United States in interrogations as part of an unlawful incommunicado detention. Mohamad also alleges that he was tortured, and that the confessions he gave -- the principal evidence in his war crimes trial -- were the subject of unlawful coercion. He is seeking Britain's evidence of his interrogations.

Today, the State Department sent an e-mail that was provided to the British court, arguing that the disclosure of the information would cause "serious and lasting damage to the US-UK intelligence-sharing relationship and thus the national security of the UK."

Which is no doubt true: If the UK court publicly reveals that the United States rendered Mohamad to Morocco and Pakistan in order that he could be tortured, the U.S. government will be none too pleased, and will naturally be reluctant to trust the British in the future with secret evidence of torture and other war crimes. Which will in turn mean that the U.S. will be much more wary about conscripting the British to assist in such crimes.

The important question, of course, is whether "lasting damage" to that sort of unlawful US-UK "relationship" is something that we should regret, and that the British court should endeavor to avoid.

Hamer's Convention

Mary L. Dudziak

In light of Steve’s post, it’s helpful to reflect that in spite of various sorts of whining accompanying this year’s Democratic National Convention, it is an historic moment in more than one way. It was not so long ago that an African American woman, Fannie Lou Hamer, captured the nation’s attention not with a convention floor speech but with testimony before the 1964 Credentials Committee of the DNC.
Hamer was a member of the Mississippi Freedom Democratic Party delegation, which challenged the seating of Mississippi’s all-white Democratic delegation. Hamer attempted to register to vote for the first time in 1962 at the age of forty-four, and as a result lost her position as a sharecropper on a plantation near Ruleville, Mississippi. She then became a field organizer for the Student Nonviolent Coordinating Committee, encouraging voter registration, and in the course of this work was detained and beaten by police in Winona, Mississippi, resulting in permanent kidney damage. Hamer told this story to the Credentials Committee to make the point that African Americans were brutally treated and disenfranchised, so the political process that resulted in selection of the state’s delegation was illegitimate. How could the national party seat them and ignore the representatives of disenfranchised African Americans? Her speech was so riveting that President Lyndon Baines Johnson called an impromptu press conference in an effort to draw media attention away from the MFDP. Parts of Hamer’s speech were nevertheless broadcast on the networks that evening.
"Is this America," she asked, "the land of the free and the home of the brave, where we have to sleep with our telephones off the hooks because our lives be threatened daily, because we want to live as decent human beings, in America?"
More, with a link to an audio of Hamer, below the fold.

On August 22, 1964 in Atlantic City, Fannie Lou Hamer gave this testimony:
Mr. Chairman, and to the Credentials Committee, my name is Mrs. Fannie Lou Hamer, and I live at 626 East Lafayette Street, Ruleville, Mississippi, Sunflower County, the home of Senator James O. Eastland, and Senator Stennis.

It was the 31st of August in 1962 that eighteen of us traveled twenty-six miles to the county courthouse in Indianola to try to register to become first-class citizens.

We was met in Indianola by policemen, Highway Patrolmen, and they only allowed two of us in to take the literacy test at the time. After we had taken this test and started back to Ruleville, we was held up by the City Police and the State Highway Patrolmen and carried back to Indianola where the bus driver was charged that day with driving a bus the wrong color.

After we paid the fine among us, we continued on to Ruleville, and Reverend Jeff Sunny carried me four miles in the rural area where I had worked as a timekeeper and sharecropper for eighteen years. I was met there by my children, who told me that the plantation owner was angry because I had gone down to try to register.

After they told me, my husband came, and said the plantation owner was raising Cain because I had tried to register. Before he quit talking the plantation owner came and said, "Fannie Lou, do you know - did Pap tell you what I said?"

And I said, "Yes, sir."

He said, "Well I mean that." He said, "If you don't go down and withdraw your registration, you will have to leave." Said, "Then if you go down and withdraw," said, "you still might have to go because we are not ready for that in Mississippi."

And I addressed him and told him and said, "I didn't try to register for you. I tried to register for myself."

I had to leave that same night.

On the 10th of September 1962, sixteen bullets was fired into the home of Mr. and Mrs. Robert Tucker for me. That same night two girls were shot in Ruleville, Mississippi. Also Mr. Joe McDonald's house was shot in.

And June the 9th, 1963, I had attended a voter registration workshop; was returning back to Mississippi. Ten of us was traveling by the Continental Trailway bus. When we got to Winona, Mississippi, which is Montgomery County, four of the people got off to use the washroom, and two of the people - to use the restaurant - two of the people wanted to use the washroom.

The four people that had gone in to use the restaurant was ordered out. During this time I was on the bus. But when I looked through the window and saw they had rushed out I got off of the bus to see what had happened. And one of the ladies said, "It was a State Highway Patrolman and a Chief of Police ordered us out."...

I was carried to the county jail and put in the booking room. They left some of the people in the booking room and began to place us in cells. I was placed in a cell with a young woman called Miss Ivesta Simpson. After I was placed in the cell I began to hear sounds of licks and screams, I could hear the sounds of licks and horrible screams. And I could hear somebody say, "Can you say, 'yes, sir,' nigger? Can you say 'yes, sir'?"

And they would say other horrible names.

She would say, "Yes, I can say 'yes, sir.'"

"So, well, say it."

She said, "I don't know you well enough."

They beat her, I don't know how long. And after a while she began to pray, and asked God to have mercy on those people.

And it wasn't too long before three white men came to my cell. One of these men was a State Highway Patrolman and he asked me where I was from. I told him Ruleville and he said, "We are going to check this."

They left my cell and it wasn't too long before they came back. He said, "You are from Ruleville all right," and he used a curse word. And he said, "We are going to make you wish you was dead."

I was carried out of that cell into another cell where they had two Negro prisoners. The State Highway Patrolmen ordered the first Negro to take the blackjack.

The first Negro prisoner ordered me, by orders from the State Highway Patrolman, for me to lay down on a bunk bed on my face.

I laid on my face and the first Negro began to beat. I was beat by the first Negro until he was exhausted. I was holding my hands behind me at that time on my left side, because I suffered from polio when I was six years old.

After the first Negro had beat until he was exhausted, the State Highway Patrolman ordered the second Negro to take the blackjack.

The second Negro began to beat and I began to work my feet, and the State Highway Patrolman ordered the first Negro who had beat me to sit on my feet - to keep me from working my feet. I began to scream and one white man got up and began to beat me in my head and tell me to hush.

One white man - my dress had worked up high - he walked over and pulled my dress - I pulled my dress down and he pulled my dress back up.

I was in jail when Medgar Evers was murdered.

All of this is on account of we want to register, to become first-class citizens. And if the Freedom Democratic Party is not seated now, I question America. Is this America, the land of the free and the home of the brave, where we have to sleep with our telephones off the hooks because our lives be threatened daily, because we want to live as decent human beings, in America?

Thank you.
A link to an audio of Hamer’s testimony is here. An on-line documentary is here.

Hamer’s words continue to echo across generations, and are a reminder that a speech can have an impact. As much as the Obama campaign might wish to put race aside to appeal to an electorate that is more comfortable ignoring it, his speech tomorrow night and his nomination will be an enduring episode in American racial politics. Not a sign that a post-racial politics have been achieved, but a milestone nevertheless, in a history that transforms American politics even though it does not progress inevitably toward justice.



Tuesday, August 26, 2008

Hillary's Convention

Stephen Griffin

I don't usually blog about politics, but in view of another demonstration of Hillary and Bill's "it's all about me" dominating media coverage of the DNC, I will take a flyer at telling you about the stories you would be reading if She were at the top of the ticket. On reflection, I'm pretty sure Evan Bayh would have been her choice for vice president. You would be seeing a lot of stories about infighting and dissension in Clinton's campaign, about how it isn't ready for fall prime time. Just like it wasn't ready for the primaries. The main reasons for this have been clear to anyone who's read the better books on the Clinton years -- both Clintons are terrible at management generally, managing people in particular, and like to make decisions by not making them, which is a surefire loser if you are trying to win elections, at least in a state that is not overwhelmingly Democratic (New York). Check out the "Relentless" series on the Politico site.

You would also be reading stories about how there are a lot of older men who just won't vote for a woman partly because no woman could be commander in chief of 300 Spartans. Obama supporters would be disappointed, but would be behind Hillary because their expectations weren't that high and he's young, he can always try again. So the party would be basically unified and no one would be using the word "ass" in connection with "unity." In particular, there wouldn't be any rich African-Americans saying loudly that they will never support the party's nominee after a primary process that featured racially charged remarks. They would loyally support the party, just as African-Americans always have. There's always next time, they would say.

Finally, we would be caught in an avalanche of stories about the sudden revival of the toxic right wing that always despised the Clintons and whatever it is they thought they stood for. They don't like McCain but view Hillary's election as Armageddon. The whole shelf of negative Hillary books would be republished and sell more than ever. And what would be Bill's role in the administration, anyway? (right at the center) And what was that about nuking Iran?

Hillary Clinton had many merits as a candidate, but also big disadvantages. Just like Barack Obama. If the situation were reversed, it's not clear Clinton would be any better off than Obama is now. And by the way, it's not Obama's job to help retire a debt that Clinton ran up deliberately after blowing $100 million before Iowa. Amazing presumption, that.




Saturday, August 23, 2008

Further notes on constutional dysfunctionality: Who should be deciding about the expansion of NATO?

Sandy Levinson

I note that a story just posted in the New York Times from Reuters says that the US will insist on adding Georgia to NATO. "'I think what Russia has done now is the strongest catalyst it could have created to get Georgia in NATO,' U.S. Deputy Assistant Secretary of State Matthew Bryza, American envoy to the Caucasus, told Russia's Ekho Moskvy radio. 'This is what is going to happen now. Georgia is going to accelerate its march toward NATO and, I hope, to an action plan in December.'"

Putting to one side that no sane person could really believe that the United States should or would risk war with Russia in order to protect the adventurist regime in Georgia (even if we agree that the Russians behaved very badly indeed in doing what they did to Georgia), it is yet another sign of our defective Constitution that Mr. Bryza is suggesting that a lame-duck President who, I hope, will have been soundly repudiated in November by the victory of Obama-Biden, would view himself as having the legitimate authority to bind the United States to the defense of Georgia's territorial integrity (at least if one takes Article V of NATO seriously). No such decision should be made by George W. Bush. (I assume that any decision to expand NATO would in fact require consent by 2/3 of the Senate, and one might hope that cooler heads would prevail at that point, but, frankly, we never should have to reach that point in the first place.)

I note with some distress that Obama has seemingly been pressured by McCain's demagoguery on Georgia to say nothing about the unwisdom of adding Georgia to NATO, nor, I suspect, will he risk angering the mercurial Bill Clinton by pointing out what is becoming clearer and clearer, as Tom Friedman noted this past week in the Times, that Clinton's almost casual decision to expand NATO was reckless and presumed that Russia would remain permanently weak. Bush may be awful beyond belief, but we should recognize that there may be some important linkages between him and Clinton. One linkage, incidentally, might be found in Clinton's haste to ratify the GATT agreements in the lame-duck 1994 Congress rather than wait until the new Congress came to town. I lament what happened in the 1994 elections, but there was really no excuse for rushing through the process, unless for some reason it simply had to occur by January 1, 1995. I'm sure I can rely on the dedicated readers of Balkinization to supply such information if that was indeed the case.

One might raise some of the same concerns, incidentally, regarding the Bush Administration's successful pressuring of Poland to let us place missiles in that country. For all of the truculent language last week, I cannot understand why Poland would fear being attacked by Russia, since any attack would first require an invasion of Ukraine or the Baltic states in order to get troops to Poland. I see no realisitic possibility of that happening. Even if one believes that Putin is evil, he is surely not delusional (unlike his US counterpart); his rise to power is based on petrodollars and heavy investment in Russia, which would not survive a breakout of "real war" (unlike the sham variety in Georgia, which is only a bit more warlike than our invasion of Granada). But I can certainly understand why he fears a latter-day equivalent of "encirclement" and would be disinclined to cooperate with countries that clearly wish that Russia would return to its mid-1990s state of weakness.

One might hope that amidst all the talk of how many homes John McCain and his wife own and the capacity of Barack Obama's wine cellar there might be a truly serious debate about America's (and NATO's) role in the contemporary world. I take hope in Joe Biden's selection, since, for all of his unfortunate garrulousness, he is undoubtedly remarkably knowledgeable about foreign policy and, I think, far less unhinged than John McCain. If he wants to spend $1 billion taxpayer dollars on reconstructing Georgia, fine, since one can argue that America's reckless support for Georgia helped to encourage the adventurist policy vis-a-vis South Ossetia. But that's far, far different from trying to persuade the American people that we should be willing to go to war (or to break off relations with Russia) should Russia be deemed to violate the vaunted "territorial sovereignty" of a state that for years and years has been faced with serious secessionist movements.







Wednesday, August 20, 2008

Would that John McCain were a genuine "maverick"

Sandy Levinson

John McCain's newest commercial, "Broken," begins with a voice telling us that "Washington is broken" and "John McCain knows it." We also get the usual blather about this Bush-enabling Republican being a "maverick." If John McCain were a genuine maverick--he dishonors the name of Maury Maverick, from San Antonio in taking on the label--perhaps he would be willing to suggest that one reason that "Washington is broken" is that we have a Constitution that is broken. But that is beyond McCain's ken. Instead, like Obama for that matter, he feeds us the reassuring message that it is sufficient to rearrange the deck chairs on the Titanic, by picking someone with the right "leadership skills" and "vision," and everything will in fact be all right. It won't.

Tuesday, August 19, 2008

Federalist society debate on same-sex marriage

Andrew Koppelman

The Federalist Society has graciously sponsored an online debate on same-sex marriage, with Prof. Dale Carpenter of the University of Minnesota and myself arguing in favor, and Prof. Amy Wax of the University of Pennsylvania and Prof. Robert Nagel of the University of Colorado arguing against. It can be found here.




Pakistan or the United States? You decide.

Sandy Levinson

Today's New York Times editorial on "Pakistan Without Musharraff" includes the following sentence: "The presidency must also be stripped of the special dictatorial powers that Mr. Musharraf seized for himself, including the power to suspend civil liberties and rule by decree." I agree, but I would also apply the sentence, substituting only "George Bush" for "Mr. Musharraf," to the United States. To be sure, the Bush suspensions of civil liberties and rulings by decree may not be so extensive as were Mr. Musharraf's, but it is foolish in the extreme to refuse to recognize similar tendencies in the U.S (and perhaps in all modern governments, as Giorgo Agamben argues).

Lest one believe that everything will be cured by the replacement of Bush by Obama, it might well be worthy of note that one of Barack Obama's principal academic supporters, (now)-Harvard Professor of Law Cass Sunstein, has suggested that "Chevron deference," a formula for de-facto judicial abnegation of review of administrative decrees in most instances, be applied to the realm of foreign affairs. (This argument, incidentally, was ably criticized by my colleague Derek Jinks and Neal Katyal in "Disregarding Foreign Relations Law, 116 Yale L. J. 1230 (2007).) I obviously trust Obama's judgment infinitely more than I trust Mr. Bush's (or Sen. McCain's), but there is little reason to believe that Obama will, when elected, fail to embrace a strong view of presidential power (and prerogative), especially if, as is altogether possible, Republicans maintain enough seats in the Senate to engage in blocking filibusters that will make achievement of Obama's policies difficult or impossible. At that point, liberals will start pleading with President Obama to put pressure on administrative agencies to issue all sorts of decrees that cannot get through Congress as legislation, just as our present constitutional dictator is attempting to do in the waning days of his administration.

Incidentally, I recommend an interesting article, to be published in the Harvard Law Review, by Adrian Vermeule, "Our Schmittian Administrative Law." It is especially interesting to couple that article with the classic article by Harvard Dean Elena Kagan, "Presidential Administration," 114 Harvard Law Review 2245 (2001), which details the skilled use of presidential power by Bill Clinton vis-a-vis ostensibly "independent" administrative agencies.

Saturday, August 16, 2008

He's not called the Vice-President for nothing

JB

This is a followup to Steve's fascinating post. The Cheney/Addington argument that the Vice-President is not part of the executive branch flows in large part from the fact that the Vice-President presides over the Senate and has a vote when the Senate is tied.

But this tells us nothing about whether the Vice-President is a member of the executive branch. The President himself has a vote in every piece of legislation that comes before his desk. He can veto it, which may be more important than having the deciding vote in the Senate. (That is because he can veto the work of both houses, not just decide the issue in the Senate.)

Once we view the President's veto as a characteristic function of the Executive Branch, it's not difficult to see the Vice-President as representing the Executive's interests in the Senate. He does this not only by ruling on procedural motions and by breaking tie votes, but also, when he presides, by reminding the Senators that the President's envoy is literally sitting in the room with them as they debate.

Next, consider the Vice-President's role in the original 1787 Constitution as the President's successor in cases of death or disability, as further clarified by the 25th amendment. If the Vice-President can take on all of the executive functions in the case of the president's disability, it is hard to argue that he is not centrally part of the executive branch. Furthermore, as the office has developed over time, the Vice-President increasingly has moved from being a ceremonial officer to being assigned to develop executive policy. As Steve's post reminds us, this was not an obvious development in the early days of the National Security State, but it increasingly made sense as the Executive branch grew enormously in the second half of the twentieth century. By Jimmy Carter's presidency in the mid 1970's, it made perfect sense to ask the Vice-President to do what vice-presidents often do in large corporate enterprises-- develop and implement specialized tasks.

All of this is not to doubt the *logical* possibility that the vice-President could belong to no branch, or to two branches simultaneously. But as a structural matter, and as a matter of how constitutional structure has evolved during the 20th century, it makes little practical sense today. That is why, when Cheney and Addington floated this particular trial balloon, people regarded it with derision, which it most certainly deserved, and as an blatant attempt to avoid accountability, which it most certainly was.

Was Addington Right about the Vice Presidency?

Stephen Griffin

You may remember the mildly weird controversy over whether the Vice President is really a member of the legislative branch, not the executive. David Addington defended this view when he appeared before a House subcommittee recently, referring I believe to OLC opinions.

One thing I like about reading history is that you always learn something new. I came across this passage in Douglas T. Stuart's book Creating the National Security State (Princeton, 2008):

[He notes that the vice president had been added to the membership of the National Security Council by 1949 amendments to the National Security Act and continues]

"Richard Nixon was asked by Eisenhower to replace the Secretary of State as presiding chairman of the NSC in the president's absence. Eisenhower would later praise Nixon for his expertise in the field of foreign and defense affairs, and register his special appreciation of Nixon's management of the NSC while he was recovering from his heart attack. The president nonetheless understood that, since the vice president was not officially a member of the executive branch of government, there were limits to what he could be asked to do in order to improve administrative efficiency. As the [Senator Henry] Jackson Subommittee would subsequently observe:
'Of course, the role of the Vice President need not be limited to his
constitutional obligation to preside over the Senate. But any attempt to
make the Vice President a kind of Deputy President for Foreign Affairs would be
to give the wrong man the wrong job.'"

Let's notice the implications of this point of view about the vice presidency, apparently widely held in the 1950s. If the VP is indeed more part of the legislative branch than the executive, that means he cannot be given any substantial executive responsibility. Among other points, that would violate the separation of offices that is so important to the the constitutional plan. We could also infer the converse: if for some reason the vice president had to be given substantial executive powers, it would follow it would no longer be appropriate for him to preside and vote over the Senate (he would be ruling two branches at once). Of course, Cheney has done both. Immunity from statutes governing the executive branch (which is what Addington was after) would seem to have its price!




Friday, August 15, 2008

When does the statute of limitations for past injustice apply?

Sandy Levinson

David Rivkin and Lee Casey have a piece in today's Wall Street Journal on the Russian incursion against Georgia that includes denunciatory references to Russian's "previous 1803 and 1922 invasions and annexation of Georgia." Without in any way trying to justify these invasions, I do find myself wondering about their willingness to look back to American history with equal scrupulousness. If one should honor grievances that go back 205 years, in the case of the 1803 invasion, then what about American Indian tribes who certainly have grievances equal to those of the Georgians vis-a-vis the United States? And, of course, there was nothing particularly virtuous about the U.S.-initiated war against Mexico in 1847 as part of James Polk's altogether successful expansionist policy. Or I wonder what Rivkin and Casey's response would be to an attempt to declare Puerto Rican independence, given the circumstances of our taking rule of what remains the world's largest colony.

There are, presumably, all sorts of ways to distinguish these examples, not least because the US, unlike the late USSR, has maintained control over all of the territory it seized and certainly would not recognize the legitimacy of any secessionist movements. Still, I do wonder about the consequences of casually invoking such past injustices.

Thursday, August 14, 2008

I'm back, and the Constitution has not gotten any better

Sandy Levinson

I have now returned from Australia, a refreshingly democratic country in many respects, though the Australian Senate emulates one feature of our own in giving each of the six states equal representation (12 senators). This means that Tasmania has the same representation as does the approximately 25 times greater population of New South Wales. One decidedly attractive aspect of the Senate, though, is that it is selected through proportional representation, which means that a number of parties, beyond the two major parties, as in the House of Representatives, are represented in the "upper house." But, for now at least, enough about the Australian constitution.

Alas, the US Constitution looks no more attractive on my return than it did when I left over a month ago. Indeed, the current imbroglio over Georgia indicates why we are so ill-served by those parts of our 18th century document that have proved impervious to any kind of Ackermanian or Griffinian non-Article V amendment. Begin with the fact

that George Bush is both basically an ignoramus about the history and politics of Russia and Georgia and the very lamest of lame ducks. If one really takes seriously some of the fevered rhetoric that has been used in regard to the invasion of Georgia, one might believe that we would want a far more informed leader and, more to the constitutional point, one who was not such a lame duck. He may have legal authority, but he has no genuine political authority to make any truly binding commitments in behalf of the US. John McCain is behaving with spectacular irresponsibility, being interested only in winning the election and not at all in forging a complex policy that might make some sense in the world within which we actually live. (I fear that I will offer basically similar criticisms of Barack Obama in coming days, since he also has little incentive actually to ask himself what a responsible President, as against a presidential candidate, would do at the present time.) The debate about expanding NATO to include Georgia is exemplary, alas. Does any non-lunatic believe that what used to be called "the West" should pledge to go to war should Russia make incursions on that particular NATO ally, even if those incursions were arguably triggered by adventurist policies of an inexperienced Georgian president perhaps encouraged by the McCain adviser/lobbyist hired to promote Georgian interests come hell or high water? (Imagine our own response, incidentally, if the late and unlamented Soviet Union in 1962, instead of placing missiles in Cuba, had offered Cuba full membership in the Warsaw Pact and the pledge of military retaliation against the US should we invade the country. Of course, Kennedy did offer a pledge of no-invasion as part of the deal to remove the missiles, but that's another matter. As a constitutional matter, could he really bind future presidents? Does devotion to a promise made to Nikita Khrushchev really explain why we haven't invaded Cuba in the past 46 years?)

Perhaps Senator McCain would be just as truculent were he actually president. But the one thing we can be confident of is that our Constitution, with its byzantine method of electing presidents while keeping in power discredited lame ducks (for a full ten weeks after the election, recall), generates no incentive for candidates to behave responsibly when demagoguery appears to be the best path to election. Another thing we can be confident of, needless to say, is that the person elected, whether McCain or Obama, will quickly break a number of "campaign promises" upon taking the oath of office and discovering that it is finally time to become really serious with regard to the tasks of the presidency. (Indeed, one suspects that they already know some of the "promises" that will be quickly shelved, knowledge they will obviously not be sharing with the country, whatever their commitment to "straight talk" or changing the nature of our degraded political discourse.

Even if one recognizes that far more than our defective Constitution explains the degraded nature of our political "debate," one should recognize that it does nothing whatsoever to help and generates its own harms.

Wednesday, August 13, 2008

Is the "Weak" American State a Myth?

Stephen Griffin

Mary Dudziak has called attention to William Novak’s essay, “The Myth of the ‘Weak’ American State,” in the June 2008 issue of the American Historical Review. This essay continues Novak’s project of criticizing the standard story that is told about the historical lack of a strong state (or even of the idea of the state) in the United States. Novak’s project is a good one and he cites an impressive body of research that backs his claim that the “weak” American state is a myth.

Good ideas can be pressed too far, however, and as someone who has defended a version of the weak state thesis, I wonder if that’s happened to Novak. For the most part, Novak uses the “American state” as an omnibus term, sweeping in all levels, branches, and agencies of government that have existed in U.S. history. If we focus on this entity, arguably fictitious because of the constitutional separations of government, we might agree that the idea of the weak state has been overplayed. If I recall correctly, in his book Novak enumerates an enormous collection of state and local regulations of business and economic activity that date to the early nineteenth century, if not earlier. This sort of active regulation by government from an early stage in American history belies notions of a weak or “night watchman” libertarian state.

The scholarship and the evidence can be divided in a different way, to focus on the development of the “national state,” what Americans normally call, somewhat inaccurately, the “federal government.” Here it is much harder to dispute evidence of weakness, much of it supported by the literature Novak cites to support his assertions that the weak state is a myth. Novak cites the work of Stephen Skowronek, but it is Skowronek’s work that established the early national state as one of “courts and parties.” I should note at this point that the inquiry into the nature of the national state as strong or weak is not one-dimensional, despite the popularity of these terms. There are various dimensions along which the national state can be compared with the organization of government in the American states and other countries – compliance, competence, and the capacity to reorganize civil society (sometimes called “infrastructural”) are a few. In the early republic, particularly in the early nineteenth century, we can test dimensions like compliance by states with federal decisions and competence in areas like military organization without coming up with very much evidence of a strong, self-confident national state.

The ambiguities introduced by not separating the omnibus state from the national state can be illustrated by looking at racial segregation, an example cited by Novak. Perhaps he is saying the pervasiveness and persistence of the system of regulation that was segregation cannot be explained by reference to a weak state tradition. Some form of state power was making sure that segregation lasted. But when we turn our attention to the national state, we have to confront the legacy of southern opposition to centralized government in service of protecting the system of segregation. Certainly during my lifetime the values of federalism have been used over and over again to resist granting more authority and power to the national state.

I agree with Novak that it is incongruous to maintain that the traditionally weak national state remains in place in the twentieth century, a time that sees, as Novak puts it, “the steady aggrandizement of executive, administrative, emergency, penal, military, and war powers.” Yet to also posit, as Novak seems to, an essential continuity with a “strong” national state that somehow existed in the nineteenth century would be equally unhelpful in understanding state development. As at least a minor survivor of Hurricane Katrina, I can only regard in wonderment Novak’s claim that the national state somehow achieved enough power, authority and competence to handle natural disasters. As late as 2004, the federal government was still adhering to the idea that state and local governments must take the lead in responding to disasters, no matter how serious. An unexceptionable example of our commitment to federalism, one might think, but one also that belies Novak’s claim that the national state is “strong” across the board. Far from it!

Strong or weak, what is the significance of the argument about the “myth” of the weak state? What is at stake? First, our understanding of the relationship between the national state and the Constitution. If you believe, as I do, that it took relatively cataclysmic events such as the First and Second World Wars, along with the Great Depression to galvanize the development of what had previously been a relatively weak national state, then this raises important issues of constitutional change, given there were no authorizing amendments. Second, positing a slow start from a weak national state helps explain the organizational and policy fragmentation described by so many scholars. It accounts for many anomalies otherwise hard to understand – true, as Novak emphasizes, a strong military (with good health coverage!), but a welfare “safety net” full of holes. A tendency to build state capacity in times of crisis, but then allow full or partial dissipations of hard-won expertise when the crisis ebbs. The “giveaway state” – good at distributing benefits to all congressional districts, poor at coordinating national objectives. The tendency not only of the state to organize civil society, but the opportunities afforded for civil society (in the form of interest groups) to colonize the state and run it for their benefit. And finally, yes, “antistatist” ideology, the conservative critique of the “Leviathan” state that comes to fruition with the election of Ronald Reagan. If such conservative critiques had any impact on public policy, then Novak has a difficult problem of explanation. Could such critiques be securely grounded purely on a “myth?” Or is the structure and development of the American state more complex than Novak allows?

The Future of Free Expression, Part II-- Network Neutrality

JB

In the first post in this series, I argued that the most important decisions affecting the future of freedom of speech in the digital age may not occur in judge-made constitutional law; many of them will be decisions about technological design, legislative and administrative regulations, the formation of new business models, and the collective activities of end-users. In the twenty-first century, the values of freedom of expression will become subsumed in an even larger set of concerns that I call knowledge and information policy.

My first example is the current debate over network neutrality. On August 1st the FCC held that Comcast illegally (and secretly) blocked the use of a file sharing service called BitTorrent, which is used to move large files across the Internet. The FCC held that broadband providers can't employ secret techniques to block traffic that have no demonstrated connection to reasonable network management policies like reducing network congestion. The FCC pointed out that Comcast was blocking BitTorrent regardless of the amount of traffic. (A more detailed ruling is expected shortly.)

This decision is quite important. In fact, it is as important as the Supreme Court's Reno decision in 1997, because it begins a serious legal movement toward network neutrality. And what is particularly noteworthy is that this decision comes not from a court construing the Constitution but from a federal administrative agency regulating the technical aspects of broadband services.

The goal of network neutrality is to keep digital networks open for many different kinds of content and for many different types of applications and services that people may devise in the future. Put another way, the goal of network neutrality is to ensure that the Internet, as much as possible, remains a general purpose data transport system through which many different kinds of content, services, and applications can flow.

What does the debate about network neutrality have to do with the First Amendment? Under current doctrine, the First Amendment doesn’t really say much about network neutrality one way or the other. And yet whether network providers can discriminate against content, sites and applications touches on important free speech values. Vast numbers of Americans now communicate with each other through broadband access; and we can expect that the percentage of communication through these digital networks will only increase over time. Network providers offer an indispensable service to the general public that makes much public (and private) communication possible. If network providers could discriminate against content and services flowing through their networks, they would be the most powerful censors in America. And since we live in what is effectively a cable-phone duopoly for broadband services, market competition would not necessarily counteract this censorship.

But the debate over network neutrality is about more than whether network providers can discriminate against certain types of content or services. In most cases large corporations won’t discriminate against communications because of their politics or their moral tone (although there have been a few well publicized exceptions, like Verizon's recent attempt to block short text messaging services from NARAL). Rather, most network discrimination will be for economic reasons—to favor business partners and protect incumbent business models.

Thus, the debate over network neutrality is really about the best way to spur competition and promote innovation. Defenders of network neutrality rules argue that digital networks will generate more useful applications in the future—and thus help people generate and distribute more information—if digital networks remain as neutral as possible between different kinds of content and applications.

If you want to promote the growth of new kinds of information services, including services we haven’t even imagined yet, it’s important to keep networks non-discriminatory rather than built to favor the current businesses that network providers are aligned with. While it’s true that network providers can be important sources of innovation, they may frown on new kind of products and services that they didn’t invent, that they don’t provide and that might threaten their existing ways of doing business. For example, AT&T was uninterested in developing Internet technologies decades ago because it would threaten their control of the phone system.

A non-discriminatory Internet decentralizes the sources of innovation, because everyone can create their own services and applications. People who are not affiliated with broadband companies can come up with the next eBay, Google, Blogger, YouTube, Flickr, or Facebook. None of these applications, as far as I am aware, originated with a broadband company.

This is all very well and good, you might say, but what does it have to do with the First Amendment? Why should promoting innovation matter to people who care about freedom of speech?

A system of free speech depends not only on the mere absence of state censorship but also on an infrastructure of free expression. The infrastructure of free expression includes the kinds of media and institutions for knowledge creation and dissemination that are available at any point in time. It also concerns the kinds of opportunities that are available for people to create and build technologies and institutions that other people can use for communication and association.

Two contemporary examples are Internet telephony and filesharing services like BitTorrent. These new applications—which allow people to communicate and trade information and files cheaply— were possible because entrepreneurs could lay new applications on top of Internet protocols. People could create them because the structure of the Internet allowed this sort of experimentation without getting anyone else’s permission in advance. By choosing a regulatory scheme that lets the Internet function more or less as a general data transport system we open up possibilities for a wide variety of new applications and services that can let people share information and opinions, build things together, and form online communities.

Consider, for example, the wide variety of social software sites that have sprung up on the Internet in the past decade. These include Web 2.0 sites like Facebook or Flickr. Such sites perform several different functions simultaneously. They are hosting sites for multimedia content (Flickr hosts photographs, for example, and Facebook can host a variety of different media); but they are also online community platforms that allow people to communicate with each other and pursue common interests and activities through online media. Policies that facilitate this kind of innovation—and that allow many people, not just network providers, to engage in it— better serve the interests of freedom of speech in the long run, even though such innovation policies don’t, at least on their face, seem to be about government censorship.

To be sure, advocates of network neutrality have often made their case before the public by focusing specifically about the dangers of content censorship. That may be easier for people steeped in our first amendment traditions to understand. Yet the larger question in the debate over network neutrality is innovation policy; that question has enormous implications for media access and for future opportunities to speak, listen, share information, and associate with others.

The Annotated Cultural Software

JB



To celebrate the 10th anniversary of my 1998 book, Cultural Software: A Theory of Ideology, Yale University Press has created an new online version with a difference: It allows readers to write comments, questions and annotations for any passage in the book, and to create threaded discussions and links to other projects. They have opened up the book so that readers can use it as a online platform for commentary and discussion.

Yale has done this with a few other titles recently, including Yochai Benkler's The Wealth of Networks and Jonathan Zittrain's The Future of The Internet. The Press should be congratulated for experimenting with innovative ways to present the ideas in their books. Equally important, they have been courageous and innovative in using online distribution to generate interest in print sales as well as make more knowledge available to more people. The idea of spreading information and knowledge widely is what ties these three books together.

Cultural Software was a comparatively early work about memetics; it argues that we can better understand the phenomenon of ideology by thinking about it in terms of the transmission and reproduction of memes in human minds. There have been a bunch of books written about memetics since then, but few have tried to use memetics to talk about questions of ideology, social theory, and justice.

Using memetics to explain ideology has lots of interesting theoretical consequences. First, it dispenses with a range of different problems in the Marxist model of ideology and later models that borrow from Marx in one way or another. In fact, one way of looking at the book is that it offers a post-Marxist theory of ideology. Second, unlike many theories of ideology, the book offers explanations of ideology that don't require any supra-individual entities, just individuals and memes. This makes it easier to merge the study of ideology and its effects into individual and cognitive psychology. In the past decade or so, lots of people, especially in behavioral economics, have made precisely this sort of move.

The book treats memetics as an organizing metaphor for cultural construction and information flows in society, rather than trying to offer a complete theory of what memes are. There's a good reason for this. Subsequent literature on memetics has shown how difficult it is to create a science of memetics akin to a science of genetics. Some scholars, like Dan Sperber, have argued against the memetic model altogether. He argues that instead of transmission of identical content from mind to mind-- which he associates with the memetic model-- much of cultural communication is an elaborate set of inference systems that produce similar beliefs and representations in different people.

In the last third of the book I use the idea of memetics to show an underlying unity in a wide range of different models of ideological effects. People who write about this subject tend to talk past each other; part of the purpose of the book was to synthesize different theories from different disciplines. Some people were initially puzzled by the book's attempt to draw together such a wide range of different literatures-- from economics, psychology, philosophy, anthropology and literary criticism-- and show how they were all connected. But it's always been my belief that in the social sciences there's a lot of unnecessary product differentiation, and that there are deeper unities to a lot of different models and approaches.

Finally, the middle section of the book argues that the study of ideology requires a commitment to transcendent values of truth and justice. This is a highly controversial claim, but I continue to believe that it is essentially correct. Many theories of ideology founder on some version of relativism or fall back on positive descriptions that disguise hidden normative commitments. I believe that when we study ideology we have to postulate certain regulative ideals even if our own views are always subject to revision and ideological criticism. In fact, it is precisely because our own views are always subject to revision and ideological criticism that we have to postulate transcendent standards.

In any case, for those of you who aren't familiar with the book, Yale University Press has made it easier than ever for people to discuss the book's ideas, comment on them and contribute to a discussion about some really interesting topics. Put differently, it's a great way to spread some memes and help them evolve.

Tuesday, August 12, 2008

Our Criminal Justice System IS a "Guilty-Plea Machine"

Brian Tamanaha

A federal district judge and the US Attorney’s Office in Iowa are a bit red-faced over the revelation (reported here) that “nearly 300 illegal immigrant workers who had been detained in a raid at an Iowa meatpacking plant were convicted on criminal charges and sentenced to prison — all in just four days.”

What’s embarrassing about this episode is not just the haste of the proceedings but also that they were carried out pursuant to a script prepared in advance through cooperation between the US Attorney’s office and Chief Judge Linda Reade. “The scripts included a model of the guilty pleas that prosecutors planned to offer as well as statements to be made by the judges when they accepted the pleas and handed down sentences.”

One defense lawyer presented with the script refused to participate, and “walked out in disgust,” although other defense lawyers found the scripts helpful. “This was the Postville prosecution guilty-plea machine,” said Lucas Guttentag, director of the Immigrants’ Rights Project of the A.C.L.U. “The entire process seemed to presume and be designed for fast-track guilty pleas.”

The broader truth is that “guilty-plea machine” provides an apt description of our entire criminal justice system. The situation in Iowa is a compressed example of a process that goes on every day. It is not only prosecutors and judges, but also criminal defense lawyers, who routinely cooperate to keep the machine humming along. The image of a heroic defense lawyer who fights to the bitter end to prove the innocence of every defendant is mostly a myth.

A colleague of mine once pithily said: “If you want to put people in jail, become a defense attorney.” I made my share of deals with prosecutors as a former Assistant Federal Public Defender (a long time ago). After reaching an agreement, we followed a standard script, usually dictated by the prosecutor and accepted by the judge.

Prosecutors want convictions; judges want to keep the cases moving along; defense attorneys have heavy case loads and don’t get paid much for any particular case; and an overwhelming proportion of criminal defendants have participated in some form of criminal conduct. Mix this all together and what you get is a “guilty-plea machine.” Only wealthy defendants are able to opt out of this system.

That’s the way it is. The hope is that prosecutors, judges, and defense lawyers not get so caught up in the processing grind that they forget to press the “stop” button when the odd case comes along that merits extra consideration.

Old Hickory and John Yoo

Guest Blogger

Gerard Magliocca

I want to thank Jack for inviting me to post a response to John Yoo's article on "Andrew Jackson and Presidential Power." Professor Yoo cited my book, Andrew Jackson and the Constitution: The Rise and Fall of Generational Regimes (Univ. Press of Kansas 2007), several times in his piece, which led me to think about the relationship between Jackson's expansion of executive power and George W. Bush's more controversial initiatives.

I agree with the basic thrust of Yoo's analysis, which is that Jackson played a crucial role in freeing the Presidency from the control of Congress. In the 1810s and 1820s, a consensus developed among political elites that the Executive Branch was bound by the judgments of Congress as expressed through legislative precedent. This body of customary law, which was supported by the likes of James Madison, Daniel Webster, and Henry Clay, held that the President did not have unfettered discretion to veto legislation. Instead, he was obligated to sign bills that were consistent with prior enactments. The same reasoning also denied the President's right to take a constitutional position that was contrary to the "settled" views of Congress and maintained that Cabinet officers were accountable to Congress rather than to the President. Jackson successfully challenged these limitations in his veto of the Second Bank of the United States, which rejected the idea that Congress's prior endorsements of that institution tied his hands, and in his campaign to remove the federal deposits from the Bank, in which he made it clear that the Cabinet was answerable to him alone by replacing two Treasury Secretaries who refused to follow his orders. Yoo draws a more accurate picture of these developments than Lou Fisher does in his post, in the sense that Fisher implies that all of these questions were definitely settled by the Framers.

Nevertheless, I am not persuaded by Yoo's reliance on Jackson's pre-presidential actions as a military commander for guidance for how executive power should be read in a foreign policy context. While it is true that some of these extraordinary actions (e.g., declaring martial law, convening military commissions), were retroactively endorsed by the political branches, the circumstances under which that occurred were fraught with ambiguity and constitute, at best, questionable authority. (For a fine discussion of these issues, I would recommend Matthew Warshauer's book on Andrew Jackson and Politics of Martial Law). In any event, using discretionary battlefield experiences to define the functions of a civilian office that is embedded within a legal system is simply inappropriate. (For example, nobody thinks that Oliver Cromwell's military acts tell us anything meaningful about English parliamentary practice.) The only way that the analogy works is if military necessity trumps all other competing constitutional values, which is a treacherous assumption that Yoo and the Bush Administration have embraced a little too eagerly for my taste.

In the spirit of Professor Yoo's project, however, let me close by pointing out three ways of thinking about how Jackson's approach to executive authority relates to the path pursued by the current President. First, Jackson's claims were transparent. When he vetoed legislation, the reasons were given in written documents that were splashed across the front page of every major newspaper. And when he removed the federal deposits from the Bank, he explained the decision in a lengthy public report. As a result, everyone could examine these arguments and reach their own conclusion. By contrast, George W. Bush made most of his claims in secret, where only a handful of people could consider their merits. This undermined the quality and legitimacy of the legal analysis in question. Of course, some aspects of what the Bush Administration did had to be confidential, but clearly more disclosure could have been made. Second, Jackson never claimed that he possessed the constitutional authority to disregard a statute that regulated his office. The President's opponents, most notably Webster, did accuse him of harboring this ambition, but Jackson was always careful to disclaim this power. Thus, there was no counterpart to the Bush Administration's assertion that the Commander-in-Chief Clause - the textual hook for military necessity -- could be read to displace statutory law on issues like domestic surveillance or torture.

Finally, Yoo points out quite correctly that the voters repeatedly endorsed Jackson's innovations despite the misgivings of his opponents. In campaigns where the President's foes ran hard against his "tyrannical" leadership, he was comfortably reelected in 1832 and saw his Democratic Party sweep the board in 1834 and 1836. It remains to be seen whether a similar mandate will be given to what President Bush has done, though the Republican defeat in 2006 and the party's relatively weak position entering the 2008 general election suggest that no such blessing is forthcoming.

Monday, August 11, 2008

Looking at the fundamentals of the election

JB


If I do enough posts about why I haven't written much about the election, it will no longer be true. And probably soon, it won't be. I'll be writing about it like everyone else. In any case, let me add one additional reason to think that most of what is convulsing the blogosphere about the race is noise.

This graph from Alan Abramowitz (hat tip: Seth Colter) suggests that the 10 day rolling average of the Gallup poll is pretty stable, with Obama having a modest 3 to 4 point lead over a fairly long span of time.

Fundamental features of the political situation-- a weak economy, an unpopular war, and the fact that the Republicans have held office for eight years-- suggest that if nothing catastrophic happens, Barack Obama will win the election in November. He may win it in a landslide, but the more likely result is that he will win by a margin of 3 to 4 points-- pretty much where he is now. That would translate into something like a 51-47-1 split (one percent for various third party candidates), which is not unusual for presidential elections. At that margin of difference, (and assuming he carries all of the states carried by the Democrats in 2004) he will probably pick up somewhere between 290 and 310 electoral votes.

It's entirely possible that the margin will grow larger as people get to know Obama and feel that he is less of a risk. McCain's most important strategy this summer has been to sow doubt in people's minds about Obama: to demonstrate that he is risky, untested, that we don't know enough about him, that he is suspicious, that he does not connect with ordinary citizens, and that he is "other" in various ways. That is why you see the McCain camp engaged in a panoply of tactics to spread these messages about Obama, some of which are quite blatant, some of which are quite subtle.

Obama could shoot himself in the foot; or there could be an Edwards-style scandal that destroys his candidacy, or there could be another terrorist attack. All of these things could change the race significantly. But nothing like this has happened yet. Even the brouhaha over the Rev. Wright did not rise to this level. The fundamentals of this race so far have stayed pretty much fundamental.

The Future of Free Expression, Part I

JB

In the Information Age, you would think, there would be no more important part of the Constitution than the First Amendment. After all, free speech guarantees should have a great deal to do with a knowledge economy, and a world in which wealth and power increasingly depend on information technology, intellectual property and control over information flows.

For some time now, I have been thinking about how our understandings of the First Amendment are likely to change in a digital age. Gradually, I have come to the conclusion that we face a transition of enormous irony. At the very moment that our economic and social lives are increasingly dominated by information technology and information flows, the First Amendment seems increasingly irrelevant to the key free speech battles of the future. Or, more precisely, the judge made doctrines that I teach in my First Amendment classes seem increasingly irrelevant.

The key values that underlie the First amendment seem as important as ever: the protection of individual freedom to express ideas, form opinions, create art and engage in research; the ability of individuals and groups share their views with others, and to build on the ideas of others; the promotion and dissemination of knowledge and opinion. All these values remain as important in a world of blogs, search engines, and social software as they did in an Enlightenment era dominated by printing presses, pamphlets, and town criers. What has changed, however, is the technological context in which we try to realize these values.

In that context, the most important decisions affecting the future of freedom of speech will not occur in constitutional law; they will be decisions about technological design, legislative and administrative regulations, the formation of new business models, and the collective activities of end-users. We probably could not have achieved the degree of freedom of speech we enjoy in this country without the judicial elaboration of constitutional values in the twentieth century. In the twenty-first, century, however, the future of the system of free expression will require other sources of assistance. And in the twenty-first century, the values of freedom of expression will become subsumed in an even larger set of concerns that I call knowledge and information policy. More about this in my next post.

Giving in China

Lauren Hilgers

When the Sichuan earthquake hit in May, something of a philanthropic mania hit China. In Shanghai, collection cans jingled on street corners, and showed up in shopping malls and on buses; upscale art galleries held benefits; blood banks overflowed. In a week the country had raised 4.185 billion yuan domestically, and the number would soon stretch into the tens of billions.

Now, as the dust settles, many of those donors are starting to wonder where, exactly, their money went. Under China’s current regulations, they may never find out.

Even without a galvanizing disaster, volunteering, charitable giving and civil participation in general, is on the rise in China. It sounds wholesome, but when it comes to private charities, most are operating in a legal gray area. A charity law in the works has been dragging, as China’s government struggles with the role civil society organizations should play in public life. In the meantime, gaps in legislation addressing charities and NGOs leave organizations unsure what their rights and limitations are.


There are currently two laws in China that govern charity organizations; the Red Cross Law of the People’s Republic of China, which was passed in 1993 and relates specifically to establishing an independent chapter of the international organization; and the Public Welfare Donations Law, passed in 1999. In the donations law, the definition of charity donations encompassed all types of charity organizations. Later, tax authorities narrowed down the organizations eligible for tax-exempt donations to around 30.

Under this framework, there are two official charities in China that handle the vast majority of public donations. The Red Cross Society of China and the China Charity Foundation are registered as civilian groups but have close ties to government agencies. The Red Cross Society of China, for example, was until very recently headquartered in China’s Ministry of Health building. Although indispensable in the earthquake relief efforts, these two organizations have been criticized roundly for a lack of transparency; one popular Internet media company, Netease, refused to work with Chinese Red Cross after the organization would not publicize the amount of money it received in donations following the earthquake.

With little guidance for private charity organizations, many are simply not registered. This works fine for some, especially those with good relationships to local government. Others, however, can run into snags. One popular blogger was arrested after distributing funds he had raised through the web to help with earthquake relief.

Others register as social organizations or corporations, each turning to a different set of laws. Under the Regulations for Registration and Management of Social Organizations all NGOs must have 100,000 yuan in funds and are required to seek sponsorship from a government ministry, the securing of which is not always a guarantee. They are then subject to two layers of governmental oversight, one from the sponsoring department and another from the Ministry of Civil Affairs. Registering as a corporation, however, requires that the organization pay taxes.

The situation has also given rise to a contradictory phenomenon known by the charming acronym GONGO, for government-operated NGO (the China Charity Foundation, for example, is considered a GONGO). The GONGO exists somewhere between a communist “mass organization” and an independent NGO. The similarly named CANGOs (China Association of NGOs) is a government-run organization that works closely with all manner of NGOs in China and internationally. Both CANGOs and GONGOs are straddling the divide between government and civil society.

As pressure grows on legislators many have speculated the new charity law will play a similar balancing act. If the new law mirrors the Regulations for Registration and Management of Social Organizations, charities will also be required to seek sponsorship from government departments.

The scrutiny that has followed the Sichuan earthquake, however, could impact the way that the charity law develops. More emphasis is being placed on independence and transparency. There are an increasing number of calls to allow charity organizations to operate outside of the government umbrella.

As civil participation grows, the question has been raised whether or not such close government oversight allows the development of civil society in the true sense of the term. Others argue that a new version of civil society is emerging in the country, one where GONGOs and NGOs co-exist happily and grass-roots organizations are run hand-in-hand with the government.




Sunday, August 10, 2008

Summer Reading on the Bush Administration

Stephen Griffin

Jane Mayer's book The Dark Side has been justly praised for its reporting on the development of the Bush administration's interrogation/torture policy. But those wishing for a more detailed legal discussion of what went wrong during the Bush administration would do well to check out James P. Pfiffner's book, Power Play, recently published by the Brookings Institution. Pfiffner, a professor of public policy at George Mason, obviously brings a wealth of knowledge about the presidency and some firm convictions about the need to reassert the relevance of constitutionalism and the rule of law in American government. He concentrates on four areas: detainee/habeas corpus policy, the torture controversy, the violation of FISA, and signing statements. I don't agree with all of his conclusions, but the book is well organized and makes compelling reading. A full assessment of the Bush administration needs to take into account Pfiffner's perspective.



Thursday, August 07, 2008

Why Hamdan's Convictions Are Constitutionally Vulnerable

Marty Lederman

Kevin Heller makes a pretty persuasive case. See also pages 29-30 of my colleague Neal Katyal's recent brief.

I would only add one small thing to Kevin's account: It's not clear that the provision of these sorts of "services" -- transportation and "body guard" duty -- was criminal even under U.S. domestic law at the time of Hamdan's conduct. The material support statutes did not apply in Afghanistan until the PATRIOT Act was enacted (four weeks before Hamdan was captured), and "services" was added to the prohibition only in 2004.

Essay: New Media in Old Bottles?

Neil Netanel

I have posted on SSRN an essay entitled, "New Media in Old Bottles? Barron's Contextual First Amendment and Copyright in the Digital Age," which explores in more depth some of the themes that I have discussed in my posts. In the essay I begin with Jerome Barron's call, four decades ago, for access to media as a First Amendment right as a springboard for examining copyright and its role in shaping public discourse in the digital arena. I focus, in particular, on (1) incumbent mass media's untoward use of copyright as a vertical restraint to stifle the new media that provides platforms for peer speech; (2) copyright's continuing part in underwriting traditional media, which I argue is a salutary function that stands in some tension with the media's use of copyright to suppress new media competition; and (3) copyright's potential for enabling powerful new media, like Google, to threaten expressive diversity in the digital age in much the same way that incumbent media has overwhelmingly dominated public discourse in the print and broadcast era. The full abstract and essay can be found here.

"The Worst of the Worst"

Marty Lederman

My colleague Rosa Brooks on the Hamdan verdict and other upcoming military commission trials.

Query: Is there any historical precedent, anywhere, for bringing criminal charges (let alone "war crimes" charges) for being an enemy's chauffeur or body guard, or serving some analogous menial function? To be sure, the post-2001 "material support" law in the U.S. criminal code (enacted after Hamdan's arrest) might support such a prosecution. (Rosa jests that "Next up before the military commissions: Bin Laden's pastry chef, for providing culinary support to terrorism." But under current U.S. law, providing culinary support to al Qaeda is a crime.)

But have such charges ever been brought against such a small fish?

The One Country Where Torture is So Likely That Even the United States Will Not Transfer a Detainee There

Marty Lederman

It's none other than the host of the Summer Olympics, China.

The Convention Against Torture prohibits nations from expelling, returning or extraditing a person to another State "where there are substantial grounds for believing that he would be in danger of being subjected to torture." The U.S. has interpreted this to apply only where it is more likely than not that the person will be tortured -- i.e., the odds of torture must be over 50 percent.

Now, the Bush Administration claims it does not have to abide by this treaty obligation unless the person in question is in the United States proper. (More on this claim here.) Nevertheless, the Administration insists that as a matter of "policy" it will not render detainees to nations where it is more likely than not they will be tortured. This is how the State Department described that U.S. policy, in a Report to the United Nations on the Convention Against Torture:
The United States is aware of allegations that it has transferred individuals to third countries where they have been tortured. The United States does not transfer persons to countries where the United States believes it is "more likely than not" that they will be tortured. This policy applies to all components of the United States government.
Despite this policy, the U.S. virtually never finds that someone is more likely than not to be tortured, even in nations with substantial, confirmed records of torture and abuse, such as Syria, Egypt, Iraq, Haiti, etc. We have sent persons, including detainees, to all of these places upon findings (often based on so-called "assurances") that the risk of torture was less than 50 percent.

Which brings us once again to the case of the Uighurs and Huzaifa Parhat, which I discussed here. The U.S. Court of Appeals recently held that the government has failed to produce sufficient evidence to show that Parhat, who has been imprisoned at GTMO for more than six years, is a detainable enemy combatant, even on the government's own extremely broad theory of who may be detained.

OK, but what, then, should the government do with Parhat? He is asking the habeas court to order his release into the United States. The government is strongly resisting that remedy, because, as DOJ argues, "[i]t is undisputed that petitioner traveled to Afghanistan to receive military training from a camp affiliated with enemies of this country." In fact, that is not undisputed at all: Parhat claims that the camp had little if anything to do with any "enemies of [the United States]." And more to the point, the whole thrust of the court of appeals' opinion was that the government had failed to demonstrate that Parhat's experience at that camp was evidence that he is someone likely to engage in belligerent acts against the U.S.: Parhat has never participated in, or planned, or even supported, any hostile action against the United States or its allies.

The evident reason that the U.S. does not wish to release Parhat into the United States, then, is not that he is a threat to engage in any violence here, but instead that to do so would antagonize China, which is attempting to quash the Uighur resistance. As DOJ puts it in its brief (citing an earlier Uighur case): "China is keenly interested in their return. An order requiring their release into the United States * * * [thus] would have national security and diplomatic implications . . . ."

Which makes all the more interesting the reason the U.S. refuses to simply transfer Parhat to China, his home country: "[P]etitioner vigorously opposes being sent to his native country, and the United States, consistent with its policy against returning an individual when it is more likely than not he will be tortured, will not return him involuntarily to that country."

As recent experience has shown, it takes a great deal of evidence to convince the United States that someone is likely to be tortured by a repressive regime. Finally, the U.S. has found one nation that satisfies its demanding evidentiary standard: Even the United States is convinced that China would more likely than not torture Uighurs who we transfer there. How can that be? After all, the Chinese actually outlawed torture in 1996. Well, it appears that China's lawyers have developed an odd definition of "torture." As one U.N. investigator recently described the Chinese practice:
Although China outlawed torture in 1996, its definition of illegal acts -- those leaving physical marks -- is so narrow that interrogators can employ a wide range of methods contravening UN standards. Suspects are manacled in contorted positions, deprived of sleep and subjected to psychological torture. Some techniques have been given names, such as "reversing an aeroplane", where a victim must remain standing, bent double, with arms splayed upwards and backwards.
Sound familiar?

For more detail on torture in China, see the State Department's recent report.

I'm not sufficiently familiar with the legal questions to have a settled view on whether the government's doctrinal arguments against Parhat's requested remedy are compelling. (But see Parhat's brief, and pages 13-18 of this reply brief in an earlier Uighur case.) But in light of China's established record of abuse -- so substantial that it is more likely than not the Chinese government would torture Parhat, even under Bush Administration's view of what constitutes "torture" -- and in the absence of any evidence that Parhat would be a threat to commit terrorist acts here in the U.S., is it really fair to refuse to allow Parhat's release into the United States simply because China "is keenly interested in [his] return"?

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