Balkinization  

Wednesday, January 27, 2010

So what is the present "state of the union"?

Sandy Levinson

Joel Achenbach has an interesting piece in the Washington Post entitled "The Audacity of Nope." Key passages follow:

The state of the union is obstreperous. Dyspepsia is the new equilibrium. All the passion in American politics is oppositional. The American people know what they don't like, which is: everything.

Consider the poll last week by The Washington Post and ABC News. People were asked a standard question about how much confidence they had in President Obama to "make the right decisions" for the nation's future. A majority -- 53 percent -- gave the two most dismal of the four possible responses: "just some" and "none at all." The same question had been asked a year earlier; in just 12 months, the "none at all" camp had tripled, from 9 percent to 27 percent....

Lawmakers will feel some kinship with the president, because they're all getting pummeled by the public. Democrats in Congress did worse than Obama in the Post-ABC poll, and Republicans in Congress did worst of all. The health-care bill that lawmakers have labored on for the past year has gotten a national thumbs-down: According to a new USA Today/Gallup poll, 55 percent of Americans want Congress to suspend work on the current health-care bills and start over....

The political winds are gusting, and in no particular direction. Conventional wisdom has become conventional disorientation. The party in power is utterly powerless. The president's last true friend is his dog...

The Republican minority has been accused of having no message other than "No." As if that weren't a winning message. As if we lived in an era when the things people were in favor of were more numerous than the things they were against.

So what we are moving to (assuming we are not already there) is a basic breakdown in the possibility of genuine governance, at least at the domestic level, since presidents, for better and for worse, continue to have significant unilateral powers with regard to foreign and military policy. Whether or not the American people are "nihilistic" (surely they are not, in terms of philosophical definitions of nilhilism), they/we seem to be moving toward what in other contexts might count as a "revolutionary situation," i.e., the breakdown of basic levels of trust that lead one to some regard for public officials.

Needless to say, I'm not about to say that this mood is completely unjustified. Just as needless, but I'll say it anyway, is that it is astounding that for all of the fulmination, from Tea Partiers and Obama's critics on the left, there is a stunning absence of discussion about the structures created by the Constitution that have led to this breakdown. There is, of course, some feeble discussion of the filibuster, but, as yet, no mainstream politician seems interested in leading a genuine popular movement against even this aspect of the Senate (or, its even more evil twin, "holds"). A reader of my previous post sent me a very courteous message by email suggesting that I was unfair to Sen. Lincoln, that she was in fact representing the majority not only of her home state of Arkansas (perhaps that is correct; she has, after all, been elected by Arkansas voters) and even the country inasmuch as the country at large is said to support the filibuster. Perhaps even that is true, but one reason is that there is no serious criticism of the filibuster by political leaders. Significant change is the product of popular movements (e.g., the Civil Rights Movement, perhaps the contemporary Tea Party) and the people who lead them, who are usually a mixture of outsiders (Martin Luther King) and insiders like Lyndon Johnson in the 1960s and perhaps Tea Partiers and Sarah Palin in 2012 (when I predict that she is likely to be the candidate of a "third party," on the assumption that the Republican Party will not in fact be willing to turn itself over to such a patently unqualified candidate).

But, of course, the only time Democrats discussed the filibuster was to proclaim its wonderfulness at the time that Bill Frist was threatening the "nuclear option." Would that the brain-dead Democratic Party had told him to go ahead. Because sooner or later, we're going to have a mass movement with suitable leaders who will engage in the equivlance of "nuclear politics" relative to our dysfunctional Constitution. The most likely movement today, alas, seems to have fascistic overtones. But, of course, there were fascists in the 1930s as well in the US. The difference is that there were also aroused progressive movements, and there was a President who was willing to criticize (though not enough) our "horse-and-buggy" Constitution (or, to be more accurate, the Supreme Court and their crabbed interpretations of that Constitution). We have a dreadful current Supreme Court, but, to be frank, it doesn't hold a candle, in explaining our present situation, to the Constitution itself, most of which the Court has nothing to do with. Citizens United is far less a menace to the country than the U.S. Senate and its arcane rules.

Most Americans, including myself, apparently believe "the country is headed in the wrong direction." Shouldn't there be at least some public discussion of the possibility that the Constitution itself is a major impediment to ever getting back to the right direction?


Comments:

So, Sandy, are we to suppose from your post that you think the public would be less opposed to the healthcare overhaul if the 60-vote hurdle did not exist in the U.S. Senate? And is that because a public option or a Medicare buy-in would have gotten into the Senate bill in the absence of a super-majority requirement?

I guess it all depends on your counterfactuals, but I doubt that the inclusion of one of those features in the Senate bill would have made all that much of a difference in terms of current public opinion.
 

Needless to say, I'm not about to say that this mood is completely unjustified. Just as needless, but I'll say it anyway, is that it is astounding that for all of the fulmination, from Tea Partiers and Obama's critics on the left, there is a stunning absence of discussion about the structures created by the Constitution that have led to this breakdown.

As a Tea Partier, I see no particular reason to object to the Constitution's checks and balances which slowed the political class from acting against the public interest until the People caught onto what they were doing and stopped them.

Three cheers for checks and balances!

Achenbach's whine about the People of No is simply a state of denial after the people of VA, NJ and MA informed the Dems they were rejecting their particular policies, not all policies.

Brown ran and won in the bluest state of the union on the following platform: Less government, less spending, less borrowing, an across the board tax cut, treating enemy combatants as enemy combatants, enhanced interrogation, expanding domestic energy production in all areas, enforcing immigration law, etc. In short, Brown ran and won on the Tea Party platform.

Sandy, your problem really is not with the Constitution, it is with your fellow citizens.
 

I do not intend to throw a bomb into the thread, but Prof. L's use of 'nihilism' reminded me of a neologism I heard from a student a few weeks ago: 'Palinihilist' (I'm assuming that is the spelling).

I do not know that she is a nihilist - opportunists need not be nihilists. And I do not think most Americans are. On the contrary, I think Americans have very strong commitments, but we do not always think them through so as to be sure to what we are committed.
 

Personally, I prefer Christopher Buckley’s “The Audacity of Oops” in the Daily Beast. There is, however, no doubt that the American people are in a generally negative mood. I don’t think it is quite as simple as Bart makes it out to be—I doubt that proposals to cut government programs and spending would be all that popular, though I would favor them myself—but it seems clear that the public is in no mood for more government and more debt, which is what they are getting.. For that matter, I think the public is in no mood for more war, but they are getting that too.

So I can understand why the public is in an angry mood. As to why the public doesn’t understand the connection between its dissatisfaction and the Constitution, I can’t help you. I don’t understand it either.
 

I don't expect any successful politician to propose deconstruction of the system that has made them successful. That means that the only impetus to revamp the Constitution will have to come from the people. (Academicians don't count, you know.)

For too many in this country, the Constitution is a religion, where the words mean exactly what they should mean (and have always meant), and it takes a major catharsis to shake a person's faith in a deeply held religion. For many others, such as authoritarians, the problem is leadership, not the Constitution. And there are always those who do not care as long as it doesn't directly impact them.

Like AGW, systemic breakdown of the political system is merely another indication that, contrary to the fondly held beliefs of many seemingly intelligent people, the aggregate intelligence of the population is not objectively higher than yeast, which simply eats and excretes until its environment makes life impossible.

It's pretty obvious that, until the country unquestionably reaches the "ungovernable" stage and martial law has to be declared in several major cities there will not be enough support from the populace to drive a serious examination of the Constitution.

By then we'll be in for a long, dark, dismal period, of course. Best of luck.
 

Of course, that ignores the possibility that serious examination of the Constitution might lead to the conclusion that it's not all that bad. And that the real problem is that the political class have arranged so many work-arounds that it's hardly in effect anymore.
 

Seems to me that "the Constitution itself is a major impediment" is akin to Obama suggesting that Citizens United blocks regulation of foreign controlled corporations: at best an exaggeration.

It is what the system does with it. The filibuster, e.g., as used, is not constitutionally mandated. The Constitution doesn't mandate the current use of the filibuster.

I surely don't agree with Brett's vision of what it mandates. But, I'm at times with him in saying that the possibility is there, not the will. "The Constitution" isn't making us do it. If it did, would we not have had the same problems, at the same level, in 1991?

Lincoln and Douglas thought "the Constitution" solved the question of slavery in the territories. But, in practice, the choice was political. The problems very well are structural. But, not set in stone, even to the degree amendments are required.
 

I'm still on your side Prof. Levinson. We need to make the Senate what Madison and Hamilton intended: a representative body.
 

Sandy's problem, I think, is that any time a process doesn't produce the outcome HE wants, he concludes it's broken. And he's somewhat obsessed with the idea that the locus of the problem has to be in the Constitution, not our political culture.

I don't know, maybe because he imagines the Constitution is easier to change than our political culture?

I think the two feed on each other. Our political culture didn't want the sort of government the Constitution directs us to have, limited in power and scope. So they came up with all sorts of work-arounds, mostly based on reading "X" to mean "Y", so they could have the government they wanted, without needing the amendments they didn't think they could get.

But a system that routinely, reliably reads "X" to mean "Y" is a very different system from the one you'll get when your constitution actually SAYS "Y". It has to be staffed with the sort of people who are comfortable with reading "X" to mean "Y", and those people aren't the sort of people you'd otherwise want running a government. And that necessity created our current dysfunctional political culture.

The huge difficulty this confronts us with, is that if, tomorrow, you magically replaced the existing Constitution with Sandy's dream constitution, (And didn't have a revolution because of the means necessary to do it!) you'd still have a governing class of people chosen for their comfort with systematic doublethink. They'd make Sandy's constitution as much of an irrelevancy as Madison's.

How are you going to solve THAT?
 

How are you going to solve THAT?

Outlaw magic?
 

Prof. Balkin cites one example in reply to Randy Barnett's criticism. SCOTUSBlog links to at least one account that cites other presidential criticisms.

Of course, there were questionable praises in the past as well, such as President Buchanan's remarks regarding Dred Scott, which got Lincoln et. al. in a tizzy.

Perhaps, if the SC didn't go out of its way to decide such a large issue in a special way, a week or so before the SOTU at that, Obama wouldn't have made a special comment of that sort?

Brett's comments btw might be more convincing without hyperbole like "any time" ... as if SL's remarks is a result of some one time event or something.
 

Is "enhanced interrogation" really a plank in the platform of the Tea Party?

I'm all for trying to keep government spending down--I just wonder why the Tea Party wasn't out in force a few years ago, when our deficit was increasing by leaps and bounds as a result of ill-considered adventures involving "enhanced interrogation."

That failure to act makes me think the organizers are just as morally defunct and inconsistent as (if not more so than) the parties currently gracing the nation's stage.

Would a new constitution correct this problem? I'm not sure, and given my concern about the lack of representation of my voice among those in state and federal governments, I'm not keen on encouraging the current batch of great minds to retool the system. It boils down to trust, and I'm running awfully low on that.
 

PMS_CC said... Is "enhanced interrogation" really a plank in the platform of the Tea Party?

The Tea Party is a movement rather than a party with a platform, but after checking the exponential growth of government under Obama, treating enemy combatants like civilian defendants with a "right to silence" is the biggest issue we have with Obama.

In fact, Brown's argument that we should treat enemy combatants as enemy combatants was the highest polling position in his internal polling and a consistent applause line on the campaign trail. Brown also openly called for waterboarding.

Obama's reading of Miranda to the Christmas bomber and foregoing intelligence gathering infuriates people around the country. I predicted this completely brain dead policy would be the natural consequence of the awful Boumediene decision extending constitutional habeas corpus rights to foreign enemy combatants for the first time in Anglo-American history. I now predict that it will be a potent campaign issue around the country in 2010 as it was during the Brown campaign.
 

Joe said...

Prof. Balkin cites one example in reply to Randy Barnett's criticism. SCOTUSBlog links to at least one account that cites other presidential criticisms.

I am unsure why Jack would cite FDR - one of the worst constitutional outlaws ever to occupy the Oval Office - as a justification for Obama's wrong and wrong headed comments last night.
 

pinkerd:

So, Sandy, are we to suppose from your post that you think the public would be less opposed to the healthcare overhaul if the 60-vote hurdle did not exist in the U.S. Senate?

Perhaps. Probably, in fact. Without the pandering to DINOs and Republicans who weren't going to vote "yes" anyway, we'd have a cleaner bill with more of the stuff that people actually need and want.

Cheers,
 

And as usual...

* We have no evidence that Mr. Boumediene is any such thing as an "enemy combatant."

* Even if we assume the expression means anything more than "someone Bart wants to condemn without evidence or a fair trial," which is obviously ALL that it does mean.

* Bart is just a habitual liar and a vicious, disloyal, neo-fascist -- and there's plenty of evidence for those conclusions.

The man doesn't have an honest or decent bone in his body.
 

Charles:

Lakhdar Boumediene is an Arab who traveled to Pakistan and then to Bosnia as did hundreds of other jihadi.

Boumediene was given multiple status hearings far in excess of what was required under the GCs.

The unclassified findings of these hearings are posted for your perusal at Wikipedia.

http://en.wikipedia.org/wiki/Lakhdar_Boumediene

There is far more than is needed under the law of war to detain this jihadi for the duration of our war with al Qaeda.

Your naive policy of accepting the claims of jihadi that they have no intention of fighting and then releasing them to return to the fight is what formed al Qaeda in Arabia and the two most recent attacks on America.
 

"Brett's comments btw might be more convincing without hyperbole like "any time" ... as if SL's remarks is a result of some one time event or something."

SL's remarks are, typically, the usual use of whatever is happening today that he doesn't like as a launch pad into his usual rant against our "broken" Constitution. Even though the Senate's rules aren't constitutionally mandated, (The constitutionally mandated rules, such as the quorum requirement, are routinely flouted.) he blames them on the Constitution. How much sense does that make?

Sandy is an interesting read when gets off his hobby horse. That's why I keep coming back for his rare posts that don't involve blaming everything on the Constitution.
 

Perhaps a comparison of the Constitution should be made to guns. As the NRA tells us, "Guns don't kill peoplel; people do." So "Don't blame the Constitution for being broken; blame the people who interpret it." (Let's ponder this pre-Civil War.)
 

SL's remarks are, typically, the usual use of whatever is happening today that he doesn't like as a launch pad into his usual rant against our "broken" Constitution.

He has written or contributed to articles and books since the 1990s on how the Constitution is flawed.

He also doesn't like a lot of things going on. He selects certain things that he deems useful examples of the problem.
 

"1990s" is probably too limiting though it is the first time I came into contact of his writings.
 

HD kaliteli porno izle ve boşal.
Bayan porno izleme sitesi.
Bedava ve ücretsiz porno izle size gelsin.
Liseli kızların ve Türbanlı ateşli hatunların sikiş filmlerini izle.
Siyah karanlık odada porno yapan evli çift.
harika Duvar Kağıtları bunlar
tamamen ithal duvar kağıdı olanlar var
 

A journey is best measured in friends, rather than miles.
Agen Judi Online Terpercaya
 

Post a Comment

Older Posts
Newer Posts
Home