Friday, December 16, 2011

What are the people behind Americans Elect thinking?

Sandy Levinson

The NYTimes reports that Americans Elect is very likely to have a place on all 50 state ballots for the 2012 election and that the organization continues to plan to nominate, via an internet "primary," a "unity ticket" consisting of a presidential candidate and a v.p. candidate not from the same political party. Consider the following paragraph from the Times article:

Those who have lent their names to the effort include Will Marshall, the president of the Progressive Policy Institute, the centrist Democratic research group; Christine Todd Whitman, the former governor of New Jersey and one of a dwindling band of moderate Republicans; Mark McKinnon, the strategist who guided Mr. Bush’s message in 2000 and 2004 but backed Mr. Obama in 2008 and now says his interest is “anything that disrupts the current system,” and Doug Schoen, a pollster who worked for Bill Clinton in the 1990s but is now frequently critica of Democrats.

“This is an effort to empower people,” said Ms. Whitman. “This ticket could win, but at the least it could drive both parties toward the center.”

Two observations: As should be obvious from many of my posts, I resonate in many ways to Mr. Schoen's rather flamboyant statement. But is it really true that anything disruptive of the current system" would be a good thing? Consider, for starters, systematic attempts at assassination of political leaders. So presumably we should interpret Mr. Schoen to be saying that "anything that disrupts the current two-party duopoly over presidential elections would be a good thing." I think that a lot of us can support that view. But again one must ask about the meaning of "anything" in this context. What if the Americans Elect effort should lead to the election of Newt Gingrich, who will certainly get only a minority of the popular vote and would limp through to an electoral vote victory only because he gets, say, 40% of the vote in several large states that split 35-25% between Obama and the Americans Elect "unifier"? What continues to be missing in the Americans Elect analysis is even the slightest recognition that we elect our presidents under the lunatic electoral college system, placed in the Constitution in 1787 in large part to benefit slave-holding states (who would get the benefit of the three-fifths clause in computing their electoral votes) and without any redeeming value since then.

Ms. Whitman's comment is even more mysterious. She ignores the presence of the electoral college and the possibility that the Republican Party, especially, would, in their efforts to gain 270 electoral votes, emphasize ever more a combination of high-turnout of their zealous base and suppression, through voter-ID and other even more nefarious tactics that Republicans are good at. (I recognize that the Democrats might also be tempted by a similar base-mobilization strategy, but there would be no parallel effort to suppress the vote of their opposition.) But she also doesn't confront the point that orthodox political science (which may deservedly be under attack) would predict that in a two-party race for a winner-take-all office like the presidency, the "rational" electoral strategy is to aim for the fabled "median voter," which means a move toward the center. The amazing thing about the current Republican Party is that it demonstrates no real desire to do this, though that is clearly the basis of the Romney campaign, if only he can survive the circus of the Republican nominating process. Obama seems to be thinking much more of the median voter, though he has to worry about losing some of his base that might, unwisely, just choose to tune out of the election.

Frankly, the only sensible defense of America Elects is the belief, which might be quite rational, that if Gingrich does indeed knock Romney out or otherwise simply makes Romney ever more unelectable by exposing him as the ultimate in core-less pandering, then it is thinkable that a centrist ticket would actually win by cobbling together 40%+ of the vote in the largest states. So, as suggested by an extremely politically savvy friend, might we see the re-emergence of Chris Christie after all as the America Elect candidate, coupled with, say, Evan Bayh as VP? Or consider the Times's lead sentences: "To those who bemoan the lack of better choices in presidential elections, third-party fantasies come easily at this stage in a campaign. End hyper-partisanship and Washington dysfunction: Vote Bloomberg-Petraeus in 2012!" I doubt that the Jewish, hyper-rich, anti-gun, and secretive mayor of NYC is actually the best path to an electoral victory, but I have thought for some time that Petraeus may be in our future, though once Obama brilliantly neutralized him by sending him first to Afghanistan and now to the CIA, I assumed that the year for Petraeus's Caesarist candidacy would be 2016. Perhaps we should start thinking of the strange bedfellows (Jerry) Brown-(Scott) Brown! Or maybe Tom Brokaw (presumably an independent)-(Susan) Collins or (Olympia) Snowe, since the two Maine senators do nothing useful in the Senate other than to provide key votes, when needed, to maintain Mike McConnell's hammerlock on getting anything done. But, no doubt, they are perceived as "moderate" because they don't often take demonstrably crazy positions.

And, of course, there is always the possiblity that Ron Paul, the only candidate with any intellectual integrity in the Republican race--even if, as Paul Krugman demonstrates, many of his ideas are aptly described as "monetary madness," albeit sincerely believed--will decide to accept the entreaties of the Libertarian Party to run as its candidate and get probably 10% of the national vote, with whatever particular effects on Obama and the Republican candidate. We are living in "interesting times."


What if the Americans Elect effort should lead to the election of Newt Gingrich, who will certainly get only a minority of the popular vote and would limp through to an electoral vote victory only because he gets, say, 40% of the vote in several large states that split 35-25% between Obama and the Americans Elect "unifier"? What continues to be missing in the Americans Elect analysis is even the slightest recognition that we elect our presidents under the lunatic electoral college system ...

In fairness, the same absurd result can (and does) happen under a popular vote method.

Americans Elect appears to go one step further than the usual gamut of third party candidacies which historically have cropped up in some elections because of obstacles to compromise in one or the other of the principal two major parties.

AE has formatted its structure as one to neutralize two party politics altogether, a wierd sort of alchemical amalgam in AE's current formulation: one candidate from each of the two parties are to constitute its ticket for President and VP.

This still remains a classic foil against a relatively popular Democratic party president seeking reelection. I see symmetry to the way the last senatorial primary and then runoff occurred in CT, in particular the eventual ample Republican funding sources funneled into the campaign of the more centrist of the two most prominent Democrats in the race.

A respected law prof in electoral technicalities has listed three difficulties with AE's structure and the reality of what a vote for their amalgam ticket would mean; paraphrasing: AE's modality for voting, that is, voting by internet, remains insecure from hacking; AE's sponsoring funding exists behind a firewall and is not published openly into the public media; AE has createdfor its own directors the functional equivalent of the electoral college, that is, AE's directors claim the right to supercede voters in selecting a candidate. The 3 issues I cite in the foregoing are synopsized there. A search of that election law academic website, with search words Americans Elect, shows more; for example, an article in Salon.

Their arithmetic doesn't add up. Both parties are already to the right of center. Furthermore, while the Democrats have shown their willingness to "compromise" by capitulating to most Republican demands, the Republicans have demonstrated that they will move farther to the right as their positions are capitulated to by the Democrats. Perhaps they mean to move US politics towards the center by lessening the distance the Democrats have to go to capitulate rightwards.

Americans elect doesn't disclose its funding.

Thus we can't know what the people or corporations behind it are thinking.

The point really is that simple. Extended discussion doesn't change it.

Mature adults don't do "anything" that disrupts the system but act in ways that provide some positive change.

Unfortunately to sentiments expressed, the imperfection of Obama is not matched by a similarly imperfection.

The national Republican Party is an abomination at the moment, particularly in the Senate, where it blocks stuff that any true "unity" group would support, such as perfectly uncontroversial judicial candidates endorsed by traditional conservative types.

Though I can list some things positive that makes me glad he is President vs. the likely alternative, this is not -- as so tiresomely often suggested -- a suck-up job of Obama or the Dems, who both have things to answer for.

It is simply the truth of the matter. Disruption for the sake of disruption is reckless.

"Their arithmetic doesn't add up. Both parties are already to the right of center."

I call this the Ptolemic fallacy; Some people seem to have this invincible conviction that the "center" is wherever they happen to reside, and it's just that most people are inexplicably off to one side of it.

At any rate, what are the people behind Americans Elect thinking? Probably they're thinking that the people signing up for their effort are conveniently gullible idiots, given that they've structured the organization so that they can appoint whoever they like as the candidates, regardless of how their 'members' happen to vote.

Likely it's a bait and switch run by one of the major parties through cutouts. Given that I've never seen a Presidential election where the DNC didn't have at least one false flag operation going, I'm guessing it's either going to throw it's weight behind Obama at the last moment, or set out to divide the Republican vote.

Folks, AE is an anti-democratic scam.

1) AE is a corporation which is not answerable to its convention delegates concerning its governance. No actual American political party operates like this.

2) The AE corporate board has the final say whether someone qualifies as a convention delegate and all delegate must take a binding pledge set by the board.

3) The AE corporate board has the final say as to whether a candidate is "qualified."

4) When (not if) the AE candidates lose the general election, AE will hold another convention to direct its electors to cast their votes for another candidate on the ballot. This is the bait and switch scam.

AE is run by hedge fund operator Peter Ackerman, who is a prior Obama donor and whose hedge fund invests heavily in government subsidized "clean energy" projects that Obama has placed on steroids and folks like Gingrich pledge to end.

One guess for whom this scam is designed to benefit?

Until the electoral college is abolished, (which by design is next to impossible), third party presidential bids are quixotic at best (see 1912 Bull Moose Party). Anyone willing to embark on such a venture in our modern era is either completely clueless as to how this country actually works, or is otherwise so vain and delusional as to be next to worthless for the job they claim to aspire to. Also, if I am not mistaken, "May you live in interesting times" is an old Chinese curse, as they used to say.

"So, as suggested by an extremely politically savvy friend, might we see the re-emergence of Chris Christie after all as the America Elect candidate, coupled with, say, Evan Bayh as VP?"

Your friend sounds profoundly unsavvy.

Obama has done a terrible job as president, and doesn't deserve our votes. Neither Romney or Gingrich are worthy of the office either. We need to have higher standards. It's stupidly low standards that lead us to vote for people like the three above in the first place.

You're asking the wrong question. The question should be "Where can we find an actually GOOD candidate, and stop throwing our votes away on lesser evils?"

Solomon Kleinsmith
Rise of the Center

I'll agree with that, Solomon, but the first answer I've got to that question is, "Wherever we'll find them, it's sure not going to be at a front organization run by supporters of one of the major parties.

I mean, I spent years as an activist in the Libertarian party, and I'm well acquainted with how difficult ballot access is. If Americans Elect is really on track to make all 50 state ballots, given the lack of prior organizing, it can only be because partisan elections officials in many of those states are simply giving them ballot access, without enforcing the rules normally used to keep third parties down.

They don't do that out of an interest in democracy, I assure you. They do that if somebody is doing their work for them.

I'm old enough (81) to remember horse and wagon merchants (entrepreneurs?) here in the Boston area during the 1930s and even into the early 1940s clopping down our streets selling fruit and vegetables, buying junk, etc. Boston was (and remains) very political at the time and as a pre-teenager I recall a politician describing the middle-of-the-road (now called the center) as where the horse's "business" lands. Some in the "center" are in truth mugwumps, trying to figure the direction of the public winds reacting to the horse's "business."

With Americans Elect, we are witnessing a political reality (unreality?) show, in the nature of "Lost" or "Survivor," but not yet on prime time. What's needed is a Donald T-RUMP and/or a Sarah PALIN to get AE on prime time, perhaps sponsored by Tetley or Salada. (Are these brands still around?) The GOP Presidential Circus is not entertaining enough. We need a combination of Vaudeville and Burlesque, which made the Great Depression feel a little better for many of us poor victims of the GOP of the 1920s.

But what if AE creates jobs and improves the economy? And whom will the 0.1% Lawrence Lessig describes in his "Republic, Lost: How Money Corrupts Congress-and a Plan to Stop It" decide to support with their political contributions?

By the Bybee [expletives deleted], I just read Andrew J. Bacevich's Dec. 16th WaPo Op-Ed "The U.S. withdrawal from Iraq marks the end of America's great expectations." It's a great read but I mention it because at the end reference is made to Bacevich as the editor of the forthcoming "The Short American Century: A Postmortem." AE is some evidence of this.

Solomon is not providing a "Solomonic Decision." He ignores the two claiming "mothers" (aka Democratic and Republican Parties) and puts the "baby" (Presidency) up for adoption by a good "mother" whoever she may be.

As for Brett's response to Solomon, I can appreciate a principled pure libertarian but his "I spent years as an activist in the Libertarian party, ..." suggests he is not a pure libertarian as the formation of a Libertarian Party would have impurities.

The 1912 election, which split the Republican Party, helping Wilson win, is not quite a good example.

I would like to know the ideal, if Obama is so horrible. What President should be pattern the ideal to? St. Reagan is not mine, personally. Truman? The guy who barely won in '48? Ike? But, Powell didn't want to run. Who?

And, like those who didn't like how Jose Reyes took himself out of the final game after basically assuring a batting title, who would do better and actually be elected in this system?

We live in reality, not utopia. We are a government of people, not angels. I respect the evenhanded denunciation of Solomon, but until some alternative comes up who "deserves" our votes, what do we do? Besides, I disagree he was terrible, but that's not really even the main point here.


FWIW, you appear to be operating under a couple misconceptions:

Far from pulling in a minority of the vote, Gingrich is defeating Obama in the swing states in the latest USA Today/Gallup poll of registered voters, and not the more conservative subset of likely voters.

Furthermore, the few polls which are polling the undecided find that they heavily disapprove of Obama. Thus, they are likely to either go GOP or stay home.

Finally, Gingrich knows from experience that conservatives outnumber liberals nearly 2:1 among voters and the best way to create a wave election for a conservative candidate is by firing up the conservative base of about 42% of the electorate and then cherry pick about 10% of self described moderates. And the conservative base is currently fired up more than in 1980 and 1994.

I suspect that AE is envisioning a 1980 style election and that the AE candidate will play the Anderson role, but that AE will shift the Anderson vote to this cycle's Jimmy Carter - Barack Obama.

Our yodeler's support, now that Newt is the frontrunner, might cause some to square such support with Newt's "K-Street non-lobbyist" activities for Freddie Mac to the tune of $1.8 million before the 2008 Bush/Cheney Great Recession, recalling our yodeler's placing the blame for the Great Recession on the incestuous Fannie & Freddie during the Bush/Cheney years (but blaming Obama anyway). It seems that our yodeler has jumped on the bandwagon, seriatim, of each of the previous non-Romney frontrunners. (Query whether our yodeler, in supporting Newt, is a sign of his drifting from the Tea Party?) Can we expect an Epilogue to his book reflecting our yodeler's new BFF?

By the Bybee [expletives deleted], might someone with younger eyes and greater computer skills check the archives for comments of our yodeler on Newt?



Romney and Huntsman are RINOs and must not be nominated if the governance of the past decade is to be reversed or fundamentally reformed. This country is facing insolvency in just a few years and there is no more time to waste.

Gingrich is easily the most qualified of the rest, but is hardly perfect.

The question a Tea Party voter or any other conservative GOP voter need to answer about Gingrich is: Will I be getting the 90s Newt who eliminated the welfare entitlement, reformed the Medicare and Medicaid entitlements, cut taxes and balanced the budget OR will I be getting the guy who was making commercials with Nancy Pelosi?

My thought is that Gingrich is the only candidate running with a successful resume of federal conservative governance in a divided government and that is worth rolling the dice to recreate.

If Gingrich betrays us, fire his ass in 2016 and start again.

Now our yodeler seems to be crediting Newt with the Clinton Administration's late 1990s prosperity that left a surplus for Bush/Cheney to squander (with the adulation of our yodeler, I might add).

By the Bybee [expletives deleted], the eye of Newt will resolve only his personal economies - and true conservatives know this.

And our yodeler's:

"Gingrich is easily the most qualified of the rest, but is hardly perfect."

is faint praise and gross understatement, respectively.

Note: If our yodeler's work of Friction has not yet gone to press, perhaps a chapter on Newt will be added. If Newt were to become President, his inauguration song might be "Diamonds Are A Girl's Best Friend" or the theme from "Breakfast At Tiffany's."

FYI Shag, the book is out on Kindle, and Amazon let's you "look inside" to get a peek.

$4.99. Low price for Xmas season.

"Now our yodeler seems to be crediting Newt with the Clinton Administration's late 1990s prosperity that left a surplus for Bush/Cheney to squander"

Just because the federal government uses dodgy accounting practices in order to pretend the deficits it runs are smaller than they really are, doesn't mean that we have to pretend that it ran a surplus in years when the national debt went UP.

Actually, the marketing push for my new book Never Allow A Crisis To Go To Waste: Barack Obama and the Evolution of American Socialism will start in January 2012 as the GOP primaries get under way.

Amazon and B&N just posted the paperback and ebook versions over the past couple days. Apple and Google should follow in the next week or two.

If you are interested in reading the first three or so chapters, the Kindle page offers a sample.

If the book interests you, the paperback version is at Amazon

The nook ebook version is at B&N.

While the book comes from a libertarian conservative POV and is primarily aimed at like minded readers, I think the book would be useful to progressives and socialists critical of the President to understand why Obama is the most successful president of the left since FDR. I lay out the historical socialist theory behind Obama's policies from the nationalization of GM and Chrysler to the asymmetric socialism of his "clean energy economy" and "Obamacare" policies. This has all been done or theorized before.

Congratulations, Bart. BTW, why do you say that Huntsman is a RINO?


Huntsman supports a cap & tax regime along with government subsidies for alternative energy, and lobbied for these subsidies in Utah.

Huntsman supports a "balanced approach" of tax increases and budget cuts. We went through Lucy and the football scam twice before with Reagan in 83 and Bush in 89 where we got the tax increases, but the spending cuts never happened.

Huntsman supports the Romneycare and Obamacare approaches.

Huntsman would be an ideal running mate for Obama and Sandy is right that we in the Tea Party are looking for a libertarian/conservative counter-revolution, not more oxymoronic "big government conservatism."

If Hunstman is a RINO, then Newt is a CINO (Conservative In Name Only). Our yodeler's search "for a libertarian/conservative counter-revolution, ..." candidate describes not Newt but Ron Paul.

By the Bybee [expletives deleted], our yodeler's "oxymoronic 'big government conservatism'" while redundant is descriptive of the Bush/Cheney Administration that our yodeler adored for so long.

As for the ever intrepid Brett, perhaps he can put on his libertarian eyeshade and convince us that the Bush/Cheney Administration in its inglorious 8 years did away with Clinton's alleged:

" ... dodgy accounting practices in order to pretend the deficits it runs are smaller than they really are, ...."

like how about the actual costs of the Bush/Cheney Afghan and Iraq wars [See Joe Stiglitz et al for details] or of the Bush/Cheney tax cuts. My comparison was apples to apples from Clinton to Bush/Cheney, with Brett substituting pomegranates for the latter, seeds and all.

"As for the ever intrepid Brett, perhaps he can put on his libertarian eyeshade and convince us that the Bush/Cheney Administration in its inglorious 8 years did away with Clinton's alleged:"

Why would I want to do something that stupid? Your typical Republican administration is nothing to cheer about, and Bush/Cheney was worse than average in many respects. My point is simply that, just because Bush ran bigger deficits, (And Obama bigger still...) doesn't mean we should let lies like "Clinton ran surpluses" pass unchallenged.

Even with a stock market bubble flooding the government with revenue, and the executive and legislative branches at each others' throats, they still managed to spend more than they took in, every single year of the Clinton administration. Only the sort of accounting that lands you in jail if you use it in the private sector permitted them to pretend otherwise.

That said dodgy accounting practices are still in use, disguising just how horrific our present deficit is, doesn't make their prior use to disguise smaller deficits as surpluses legit.

I'd welcome a replication of the "at each others' throats" bit, there's certainly basis for it with F&F, but I'm at a loss how to produce another stock market bubble. Thus I don't see the Clinton era smaller than present deficits as a model we can replicate.

Brett apparently would do away with comparatives, which would throw history, economics, social sciences, real sciences, etc, into a dustbin and take us back in time to when things were right - libertarian? - whenever that might have been - perhaps pre-original sin. And Brett tales note of Republican failures as well as of Democrats. So what does that leave? Brett doesn't seem to be enthralled with American Elect and he know first hand the futilities of the Libertarian Party as a political force of change. So maybe, deep down, Brett is an anarchist.

Seriously, Brett, don't you use comparatives just a tad in your daily life?

I'm fine with saying that Clinton ran smaller deficits than many other administrations. (For a variety of reasons which we can't replicate at will, and as long as you admit Congress had something to do with it, too.) But once you haul out that word "surplus", you're into fantasy territory. Helping perpetuate a fraud.

There's no "comparatives" about it, minus signs are not plus signs, and magnitude doesn't enter into it. Or are we not both speaking English here?

And, yes, I've got no use for Americans Elect. America desperately needs an alternative to the present duopoly, but Americans Elect is not such an alternative. It's just a bait and switch operation designed to generate electoral college delegates who can be handed to whoever the people running AE want, regardless of who the poor suckers voting for AE thought they were supporting.

Based on who's running it, that "whoever" will be Obama, which is why Democrats are more inclined to go along with the gag than Republicans, but let's be real here, it's just a scam, and the people supporting it are either in on the scam, or useful idiots.

Yes, under the present election laws, there is no practical alternative to the two major parties. Which is why the only way out is to take one of them over, the goal of the tea party movement.


The reason I moved to the GOP from the libertarians is that I do not share the latter's isolationist policy, which is also why I cannot support Paul.

Also, as you well know, I did not support any of Bush's domestic policy outside of the 2003 (not 2001) tax reform and outlawing partial birth abortion. I supported Bush's foreign policy, which was the subject of innumerable debates in this fine forum and for the most part has been adopted by Mr. Obama.

Apparently Brett is not an anarchist, with this bottom line response:

"Yes, under the present election laws, there is no practical alternative to the two major parties. Which is why the only way out is to take one of them over, the goal of the tea party movement."

I assume Brett's way is for the tea party movement to take over the Republican Party, which should redound to the Democratic Party.

Note: Brett seems to have given up on the Libertarian Party as has our yodeler based upon his recent comment. No longer do we have our once dynamic libertarian duo of Bert and Brat (you decide which is which) as they go hand in hand to the Tea Party.

As for our yodeler's comments concerning his support of Bush/Cheney, those interested have the benefit of the archives at this Blog to test such comments. Perhaps Balkinization can develop a software program so that fact checkers of his work of Friction may readily identify our yodeler's history at this Blog to test his credibility.

Shag, I'm just responding to the reality that American election laws are now extensively and fatally rigged against third parties. It's essentially illegal for them to get anywhere.

I mean, look at ballot access alone: The rules are so tilted against third parties it's absurd. In some states there literally is no legal way to get on the ballot, you have to file a lawsuit in advance of each election! In others over a hundred thousand petition signatures have to be turned in to get on the ballot as a third party, while the major parties get on automatically. It's like having to run a marathon before the real marathon, just to reach the starting line. All a third party's energy gets exhausted just getting on the ballot.

Then there's being barred from events like candidate debates. Being airbrushed out of news coverage. Even on election night the vote totals are reported with third party votes subtracted, so that the major party votes will appear to add up to 100%.

I don't mind a tough fight, but one that's rigged is pointless.

As I understand it, the Constitution was not devised specifically with parties in mind. The party process seemed to come about after George Washington. Whether this was natural or not, e.g. political evolution, I'm not quite sure. But there were only 13 states to begin with, now 50. Imagine if there were wide open third party procedures in the states. Would that be politically efficient in the election of the executive that is not designed for proportional representation? Imagine how political contributions might work with multiple third parties, the strategies involved. Might executive campaigns start even sooner than they do now? Perhaps a parliamentary system could work here. But there would be too many hurdles to get there. Even with parliamentary systems, consider the deals made to govern when there are too many factions similar to third parties in a parliament. We may be stuck with our Constitution and the difficulties with third parties, but like halitosis it's better than no breath at all. It's bad enough that Iowa and NH play the roles they do, which tend to prolong presidential campaigns.

Perhaps Brett could take a crack at a proposed constitutional amendment to facilitate third party processes in presidential elections that would address his concerns. Back in 1955 while on maneuvers in then Camp Polk in Louisiana, I noted at the downtown of the small parish town we were camped in, a number of churches, inluding a 12th Baptist Church. I asked a local why there were so many different Baptist churches. He replied: "When a parishioner gets angry he just starts a new one." Keep in mind that America survived Bush v. Gore - although we barely survived Bush/Cheney that resulted.

My thoughts were of our yodeler as I read with glee this morning's Op-Eds in the WaPo: Colby King's "Beck calling Gingrich a progressive is off-base" and E. J. Dionne, Jr.'s "Newt Gingrich and the revenge of the base," all about our yodeler's new BFF. Note in particular Colby's closing paragraph:

"Au contraire, Mr. Beck. Newt Gingrich is at one with the Tea Party. And he's one of yours."

And how enjoyable was the "Grate" debate on This Week yesterday, with my Congressman Barney Frank and Robert Reich devastating George Will and Rep. Paul Ryan. [Note: George Will did not provide his usual disclaimer that his (second) wife is an advisor to Gov. Perry. Who remembers back when Will helped a Republican presidential candidate prepare for a debate with his Democratic opponent?]

Our yodeler has dissed Ron Paul. So if and when his current BFF falters, whom will he support as his new BFF? Perhaps Rick Santorum?

Cruising through my usual litany of legal blogs, I note at VC a 12/18/11 post "Gingrich on Judicial Review" that includes this comment by our yodeler about his current BFF:

"Gingrich is tapping into a vein of discontent here. More than any other group except maybe finance, Americans identify establishment arrogance with the legal profession. When the courts generate outrageous decisions like Roe, Kelo and now redefining marriage, then the legal profession tells folks they have to accept these arbitrary policy decrees without question to maintain 'judicial independence,' folks think dictatorship and not the rule of law. The legal profession and especially the judiciary need to take seriously the standing ovations Gingrich is drawing every time he takes the judiciary to task."

Note that our yodeler failed to include Bush v. Gore with SCOTUS' 5-4 election of the Bush/Cheney Administration and its 8 years of failures.

Our yodeler may be holding up a wet digit in reading some newer polls perhaps while reconsidering his BFF. Maybe Tom-Tom Tancredo, his mentor, is available for write-ins.

And let's open this thread to address judicial review and judicial supremacy from the standpoint of originalism in considering presidential candidates. Telnaes has an interesting animated political cartoon at today's WaPo website on Gingrich and the Judicial Branch that reminded me of the Arkansas bestiality case I came across in law school in the early 1950s in which a defendant was yelling "Saw, damn you, Saw" that as a city boy took me some time to understand.


You are welcome to respond to my VC comments at VC.

Blankshot, it looks like your boy Newt is starting to crater. Have fun voting for Mittens!

failed to include Bush v. Gore

I have learned not to hold my breath waiting for right wing talk of judicial activism ever, ever, mention this.

"judicial activism" = the courts acting in some strong way that I disagree with. "Disagree with" is interchangeable with "what the Constitution says" and "my brand of originalism."

Like the Colts winning yesterday, exceptions should not cloud the normal trend. The term is spin, at least, as commonly used.

If you think the courts are acting wrongly, fine, but such a use of "judicial activism" is pretty opaque.

Our yodeler also failed to include Citizens United.

And it seems that in Iowa it is a Citizens United Super Pac supporting Romney that has been making inroads eroding Gingrich's lead. So may we expect Gingrich and his current BFF (aka our yodeler) to add Citizens United to the list of unconstitutional activist decisions of the Court? Apparently Newt doesn't have, at least as yet, a Citizens United Super Pac for counter-attacks on Romney, Perry, Paul, Bachmann et al.

Adam Liptak's 12/19/11 Political Memo post at the NYTimes website titled "Among Legal Ranks, Shrugs for Gingrich's Tough Talk" is worth a read. (It may be in the Times' hard copy today, but I won't be able to check this out until later today.) This a reminder for me to reread Barry Friedman and Erin Delaney's "Becoming Supreme: The Federal Foundation Of Judicial Supremacy," 111 Columbia Law Review No. 6, October 2011 (also available via SSRN). There has been quite a bit of discussion at this Blog and other legal blogs on judicial review and judicial supremacy and whether originalism (in whatever version) supports such. However, Gingrich is not trying to advance the discussions on judicial review and judicial supremacy; rather, he is aiming at the base (which is really base) of the Republican Party. Our yodeler as a member of that base supports the bomb-tossing political aspect but it is not clear that he thinks judicial review and/or judicial supremacy is/are built into Article III either under textualism or originalism. Our yodeler picks and chooses, as Joe has suggested, those decisions he disagrees with as judicial activism. So perhaps Gingrich will get more legal scholars to re-review judicial review and judicial supremacy in the ongoing quest for the Holy Grail of Constitutional Interpretation/Construction. Having read the rather short Article III numerous times, I do not see text that specifically supports judicial review and/or judicial supremacy. And originalism of any version does not seem to be much help.

By the Bybee [expletives deleted], Sarah Palin's recent statement that the GOP presidential field is open beyond the usual suspect we have seen at the GOP debates may provide our yodeler with yet another new BFF.

Further by the Bybee [E.D.], I was wide awake last night and watched Mitt Romney on Charlie Rose. Normally, I can't make it that late and usually watch the rerun the following day at noon here in the Boston area. I couldn't believe what I saw and will watch it again at noon today while eating my usual lunch of beans, chips and a cool limed Corona. If Mitt and Newt are the current top guns for the GOP presidential nomination, perhaps Sarah has a point - but not her pointed head. Consider Christie with Newt as his running mate, two heavyweights who may not be able to run very far.

I have to agree with those who have stated the so-called center is between Obama and whoever the GOP happens to nominate. On a global perspective, most conservative candidates in other mature democracies have policies that would fit quite comfortably into the Democratic Party of the US, and many (such as Sarkozy) are probably to the left of Obama and most of the US Dems. Even just staying in this country, I am hard pressed to name policies of Obama or most of the most prominent Democrats that would not have fit comfortably in the GOP of the Reagan years. One of the ways that conservatives in the US have been able to shift the whole country to the right is to posit this right/left divide as if we were talking Goldwater and McGovern, rather than having a far right party and a center right party. (And in answer to the comment that people who old such beliefs think the center is where they sit, I have no such belief -- I am firmly left-of-center and proud of it.)

I make no claims as to whether the Democratic party would be considered a left-wing party in Europe, or the Republican party a right-wing party in Tanzania. As American parties, the proper measure of whether they are right or left wing is the American context. It is on that basis that I assert that the two major parties have the American political center bracketed.

People who assert we have two right wing parties may be unhappy about where the American people are centered, but they can scarcely expect European parties in a country where public opinion is American. Americans would not tolerate that.

Taking in consideration "the American context," the actual status of the poltical parties is not reflective of general views.

The reference to Europe is best seen as a reflection of a system where the views in place is more accurately spread out along the political spectrum.

Obama is cited by some as a "socialist" or "left" when in point of fact on various issues, many people, if not at least a plurality, is to the LEFT of his position.

Congress blocks majority will. This is deemed a plus by some, but it doesn't change the fact that how the Congress acts (particularly the Senate) is not truly reflective of how "Americans are centered."

This includes one party (Republicans) who rejects some middle ground more than the other party, resulting in skewered options for those who don't want to vote Democrat. The fact that Huntsman, e.g., can't win primaries because of the base does not mean an actual across the board vote would make him illegtimate.

And, on issue after issue, he is right of center. Dems repeatedly vote for middle of the road candidates, in fact often voters are told that for Dems, such compromise is appropriate, even if a large segment of the base doesn't like it.

With the unbalanced position on the other side, this skewers the landscape. The choices are centerish and right of center. The disatisfaction of many people of said options is apparent but it is taken as one of those givens, so people try to live with it.


Only a small percentage of Americans see themselves to th left of the current Dem Party.

Obama is hardly to the right of his party.

Gosh a few things you didn't mention from the original item

1. Tea baggers are seen as far right wing by most people.

2. Democratic and independent voters are more diverse ideologically; the Big Tent isn't there any more.

3. Only perception was surveyed here, not knowledge.

So people who have been repeatedly told (e.g. by Fox "News") that the Democratic Party is to the left of them, may believe it and respond accordingly in this survey, even when that is not in fact the case. We could equally well conclude that what Pew is measuring here is that.

Our yodeler's:

"Obama is hardly to the right of his party."

seems like a requirement for him to substantiate that Obama is a socialist, which is the claim in his work of Friction. It seems that this is also the claim of Newt, our yodeler's current BFF (except that Newt has been sinking of late in polls and our yodeler might be searching for a new BFF).

jpk said...

1. Tea baggers are seen as far right wing by most people.

We are very libertarian conservative. Americans have us placed about right.

2. Democratic and independent voters are more diverse ideologically; the Big Tent isn't there any more.

If by diverse you mean that the Dems shifted left and left the center behind, this poll definitely shows that.

3. Only perception was surveyed here, not knowledge.

The only difference in perception and reality I see here is the GOP being placed that far right. To a large extent, the GOP is still acting like "big government conservatives." When the Senate GOP starts voting for Paul Ryan's reforms, then I will start believing.

The Dems are about right, the TP is about right and the self placement of voters is the center right they have occupied since Reagan.

So people who have been repeatedly told (e.g. by Fox "News") that the Democratic Party is to the left of them, may believe it and respond accordingly in this survey, even when that is not in fact the case.

Fox News reaches a relatively small percentage of the American people and many of those are conservatives seeking it out.

Most of the Indi folks in the center-right, especially the white working class, still watch Dem network news spinning the Dem government as centrist. These reporters are establishment left very much like Sandy.

The Indis simply rejected the policies of a Dem government that campaigned center-right to get elected and then governed the furthest left since the New Deal.

Our yodeler's:

" ... and then governed the furthest left since the New Deal."

seems to ignore the intervening JFK/LBJ years of Civil Rights legislation implementing Brown v. Board of Education. Of course its was the Civil Rights acts that contributed to the election of the first African-American President whom our yodeler hates as demonstrated by his screeds at this Blog and his socialist claim in his work of Friction. Or is our yodeler claiming that the Civil Rights acts - and Brown - were brought about by conservatives?

Harold Meyerson's WaPo Op-Ed today "Gingrich's miscarriage of justice" should be read to better understand our yodeler's admiration of Newt noted in our yodeler's VC comment included above in an earlier comment of mine. While Meyerson's Op-Ed references Brown v. Board of Education (1954), he focuses Newt's disturbance with the 1958 decision in Cooper v. Aaron. I doubt that Newt would directly challenge Brown today. But Newt, somewhat like many conservatives, is indirectly trying to attack Brown. Our yodeler will not directly attack Brown; as I recall he said fairly recently (i.e., within the past year?) in response to a comment of mine on a post at this Blog that Brown was the greatest decision of the Court in the last half of the 20th Century. But our yodeler, his current BFF Newt and many conservatives, even libertarians, have resentment for Obama that began openly with his inauguration on 1/20/09 AFTER the 8 inglorious years of Bush/Cheney that handed Obama their 2008 Great Recession. Perhaps these haters presume that but for Brown, Obama would not have become President.

There is a legitimate constitutional issue with respect to judicial supremacy. But Newt, and his new Tonto, is raising the issue primarily for Newt's current political purposes. As Meyerson points out in the penultimate [still my favorite word] paragraph of his Op-Ed:

"The other irony to Gingrich's railing against judicial dictatorship is that it comes at the very moment when the Supreme Court is more conservative than it has been since it began upholding New Deal legislation in 1937."

Of course, Newt and his new sidekick do not mention SCOTUS's decisions in Bush v. Gore (2000) and in Citizens United (2010) as judicial activism.


The Civil Rights legislation did not neatly divide either by ideology or party.

As you may recall, Jim Crow was a Dem production.

Libertarians and conservatives outside the south supported the equal rights, but not the extra constitutional means sometimes used to advance them.

The Dems split over support for the legislation and GOP votes passed it.

The true point of comparison between Obama and LBJ concerns the latter's Great Society, which pales in comparison to Obama's accomplishments and was actually mostly completed by Nixon.

Our yodeler strains gnats with this:

" ... and was actually mostly completed by Nixon."

Yes, just like Nixon had a "plan" campaigning for the presidency in 1968 to end the "conflict" in Vietnam, the "plan" taking over four years to be implemented with a lousy ending, not to mention Watergate and resignation in disgrace. And it was Nixon in the 1968 campaign with his Southern Strategy in the wake of the earlier Civil Rights acts of the 1960s (after Brown in 1954) that barely won the election for him.

And here's our yodeler's real whopper:

" ... the latter's [LBJ] Great Society, which pales in comparison to Obama's accomplishments ... "

suggesting perhaps a misuse of "pales" and of "accomplishments." Maybe our yodeler can provide a side-by-side comparison of LBJ's Great Society and and Obama's "accomplishments."

Yes, our yodeler strains at gnats to support his socialist thesis of his work of Friction swallowing the camel.

And our yodeler does not directly challenge Brown, but here's his hedge:

"Libertarians and conservatives outside the south supported the equal rights, but not the extra constitutional means sometimes used to advance them."

What, pray tell, were those extra constitutional means? Was it Ike's move in Arkansas approved in Cooper? Was it the Civil Rights acts? Or does it all boil down to the election of Obama, our first African-American President, that resulted from Brown, Cooper and the Civil Rights acts?


I always find it amusing when I end up defending Obama from your doubts.

Obama's accomplishments include:

1) Nationalizing two of the Big Three automakers, appointing majorities of their boards and directing their production of green cars and dealer networks. Even FDR never went that far. This never would have even occurred to LBJ.

2) Attempting to impose the "blue green alliance" plan to ration and tax (cap & trade) the fossil fuel industry out of existence and redistribute the wealth to government subsidized and directed alternative energy companies. Obama accomplished the second half of this plan, but even the Dem congressional super majority would not enact cap and tax. So the Obama EPA is imposing the rationing by fiat. LBJ never even created the EPA, that was a Nixon "accomplishment."

3) Obamacare directs every major business decision of the health insurance industry from the design of the policies to what constitutes allowable administrative costs and then commands the American people to buy the resulting product. This approach is a direct descendent of the German Zwangswirtshaft state socialism and French Marxist philosopher Andre Gorz' de fact socialism reducing business to the status of civil servants. Obamacare will drive more people into Medicaid than all those who joined under LBJ.

4) Increasing government as a percentage of the economy from 21% to 25%, a percentage that will increase as Obamacare comes onto line. LBJ was not even close.

5) Increasing the bureaucracy by nearly one-fifth and doubling the regulatory output over the last Dem president, Bill Clinton. This probably would have horrified LBJ.

These are just the high points. My book spends 400 pages and 750 endnotes documenting Mr. Obama's very significant administration.

4) Increasing government as a percentage of the economy from 21% to 25%, a percentage that will increase as Obamacare comes onto line. LBJ was not even close.

# posted by Bart DePalma : 10:27 AM

Actually, I think you have to give credit to Cheney/Bush for this one. They're the ones who drove the economy off a cliff.

I don't have doubts about Obama.

Your characterization of Nationalism of the auto industry is extreme. The results have been pretty good so far compared to the alternative.

The environment has been a major issue for decades, especially with the GOP challenges of the science of global warming even as the evidence continues to generate. While Nixon "accomplished" the EPA, guess which party has been thwarting it since? We all breath the same air, share the same water cycle, the same oceans, rivers, streams, etc. Yet the GOP continues to thwart environmental improvements.

Health is another major issue that has long been thwarted by the GOP. The free market cannot address this with fairness and justice. Single payer would have been preferable to Obamacare. Eventually, we shall have single payer.

The increase in government/bureaucracy is a distortion brought about by the 2008 Bush/Cheney Great Recession dumped on Obama, a deep, deep hole, similar to the deep, deep hole of the Great Depression of Hoover and his predecessor Republican Presidents dumped on FDR.

Conservatives and libertarians have continued attacks upon the New Deal and upon the Great Society, with the likes of Nixon, Reagan and Bush/Cheney. Regulations? What about during Bush/Cheney when deregulation contributed heavily to the financial/economic failures resulting in the 2008 Bush/Cheney Great Recession.

Our yodeler can pile up crapola in his work of Friction but it doesn't pass the smell test, the aromas of which are evident in the archives at this Blog.

Our yodeler's closing:

"These are just the high points."

suggests that his work of Friction was written under the influence of his vileness and hatred for Obama, our first African-American President. Note that our yodeler fails to respond on Brown, Cooper, the 1960s Civil Rights acts, which underlay his vileness and hatred.

I do not have doubts about Obama. As with any President during my lifetime (going back to Hoover), there are imperfections. But our yodeler's base for comparison - Nixon, Reagan, Bush/Cheney - makes Obama comparatively perfect. Our yodeler's claim of socialism is crapola, presented through the brain of a self-proclaimed legal DUI specialist.

I just received in the mail the Winter 2011 issue of Constitutional Commentary that presents a Symposium:

"The United States Constitution (rev. ed.)
How would you rewrite the United States Constitution?"

Sandy's contribution is "So Much to Rewrite, So Little Time."

Some of the contributions have appeared in draft form on SSRN. This issue is at the top of my reading pile. The Symposium articles combined are relatively short, about 90 pages.

(In addition, Neil Siegel has an article "Four Constitutional Limits that the Minimum Coverage Provision Respects" dealing with ACA that should be of interest.)

Sandy has had several posts at this Blog on amending the Constitution that have brought forth many comments. Perhaps in due course Sandy will provide a post on this Symposium, in which case at least I shall have the benefit of the articles in making comments. Sandy is not one to toot his own horn, so I'll do it for him.


Why is it so hard for you to believe that Obama's policies are socialist?

His nationalization of the automakers is almost a step-by-step carbon copy of the British labor government's nationalization of British Leyland, apart from Obama's repeated disingenuous claims that he did not want to run GM.

His "clean energy economy" and Obamacare plans use every element of German Zwangswirtshaft and Andre Gorz's "revolutionary reforms," the latter being almost required reading among ACORN and other community organizer groups.

I take conservatives to task for calling Obama a socialist without offering evidence for the charge. The purpose of my work was to provide that evidence, which I offer in great abundance and detail. I also distinguish Mr. Obama's socialism from standard progressivism and the oxymoronic concept of state capitalism.

Instead of speaking from ignorance, why don't you read the book and then attempt to critique it. I ran elements of the book by several liberal friends and blogs to test them and their responses made me beef up a number of chapters. Your constructive criticism would also be very welcome.

Shag's comment brings to mind those SIMs games where you can create your own worlds.

One should be made for the Constitution, various portions tweaked by the user, or you can "live" in past days or whatever day Brett thinks best reflects the "true" meaning of the Constitution.

Our yodeler's:

"I ran elements of the book by several liberal friends and blogs to test them and their responses made me beef up a number of chapters. Your constructive criticism would also be very welcome."

brings to mind the Wendy's commercial back when: "Where's the beef?" Our yodeler's comments at this Blog going back to when he announced his work of Friction project demonstrates all bun. His stinkin' evidence has been exposed with his screeds at this Blog.


I guess ignorance is bliss is more than a cliche for some.

In that case, you will not mind declining to comment about that which you do not know.

Our yodeler's suggestion to me:

"In that case, you will not mind declining to comment about that which you do not know."

has not stopped him from his comments over the years at this Blog. Our yodeler may not realize that his comments have not disappeared, similar to the 1990s newsletters of his fellow - and one of America's most prominent - libertarian Ron Paul, with the resurfacing of anti-black and anti-semitic attacks in newsletter bearing Mr. Paul's name. All one has to do is scroll through the archives of this Blog to track our yodeler's past screeds of vileness and hatred for Barack Obama, America's first African-American President.

By the Bybee [E.D], even conservative pundit George Will has a devastating column on our yodeler's BFF (for the moment, at least) Newt Gingrich focusing on Newt's attack on the judiciary, an attack that our yodeler seems to support based upon his comment at VC that I provided in a comment above at this thread. And Mitt Romney has ignored Newt's complaint of negative Super Pac (backing Mitt, of course) ads by calling Newt thin-skinned. Perhaps Newt in his attack on the judiciary will now include Citizens United as judicial activism that he would stop if he became President.

Ron Paul has an excuse for the newsletter, saying he did not read them all, even though they issued under his name, thereby passing blame onto his staff. But our yodeler does not have that excuse. Besides, Paul's newsletter were issued in the late 1990s, when he was out of office and wanted to keep his libertarian principles alive. Our yodeler's comments are more recent and I doubt that they were put up by staff or other persons.

So, what I do know are our yodeler's vile, hatred comments over the years primarily at this Blog, all available at its archives. I also recall a comment at this Blog concerning a response by Orin Kerr to a comment by our yodeler at the VC blog that I wish someone could provide a link to. It was a very telling response.

"So, what I do know are our yodeler's vile, hatred comments over the years primarily at this Blog, all available at its archives."

We all eagerly await actual examples of this genre. For which assertions that they exist, and requests that somebody else find them for you, are no substitute.

Brett may be a Luddite unable to access and scroll through the archives at this Blog but I think many viewers are capable of doing so. Keep in mind that this Blog has not been around as long as the Constitution which Brett seems to be able to go back in time over 200 years to determine meanings back then. Perhaps someone will provided a tutorial for Brett to access the archives to help himself - as well as look back at some of his comments over the years. The only place where I have asked for help is regarding Orin Kerr's response to our yodeler at VC several years ago. Maybe with tutorial assistance Brett can provide the missing link.

Put up or shut up.

That, by the way, was not meant as a command, but rather advice. You look really foolish repeatedly asserting the existance of 'vile comments' you can't be bothered to produce links to. You seem to have a feeble grasp of just who carries the burden of providing evidence to substantiate charges you make.

Here's a clue: It's not everybody else.

Brett displays his sensitivities, perhaps because of my libertarian references in my 6:31 AM comment, without taking the bait.

Regarding burden of proof, consider our yodeler's charge of Obama as a socialist. Brett may think our yodeler has sustained his burden (assuming Brett has read our yodeler's work of Friction). But I introduce the entire archives at this Blog, seriatim, in rebuttal demonstrating his motivation.

I can accept Brett's support of his fellow libertarian, especially since it demonstrates the weaknesses of libertarianism. But that's Brett's choice. His "Put up or shut up" as he notes is not a command - nor do I perceive it as a threat - but advice, which I decline, as my choice.

An earlier comment by our yodeler suggests that his work of Friction is still a work in progress as he is receiving constructive criticisms. If that is the case, then I would assume our yodeler would offer as further proof of Obama as a socialist the very recent adoption by the EPA of mercury regulations. Paul Krugman today (12/22/11) addresses at his "The Conscience of Liberal" blog at the NYTimes website "The Meaning of Mercury." (Eventually Krugman may follow up with this topic in a regular column hard copy.) Do we have choice with the air we breathe? This is socialism?

Well, I suppose you can't shame the shameless, but don't expect anybody to take your raving about "vile comments" seriously until you change your stance on this.

I counter Brett"s:

" ... I suppose you can't shame the shameless"


" And you can't grow hair on a billiard ball."

And surely Brett can speak for himself but to suggest not "anybody" may take my comments seriously is a reach even for him. I don't take Brett seriously but I would not venture to say that not anybody does. Choices are not just for libertarians.

I'll start to take Brett seriously when he moves to the libertarian paradise that is Somalia. Or Afghanistan. Or the tribal region of Pakistan. Lots of gun, religion, and no government. With his arsenal he could take over and call his new home "Brettistan".

People have complained about various "vile" and "hateful" (opinions) comments BP has made for quite some time. Jack Balkin cut off comments because of the sniping that resulted. Brett has been here for quite some time. What's the point of such a question?

Merely rhetorically asked.

Shag, surely on some level you're aware that you're no small part of what motivated Jack, what with your inane "Wickburn" and "Yodeler" remarks, and now allusions to "vile comments" you seem to think you've no obligation to substantiate. Would it kill you to engage in substantive discussion without such antics? To elevate rather than drag down the discussion?

At any rate, Americans Elect has now made moves to address a tiny bit of the complaints about their undemocratic structure, but it doesn't appear that the shadowy figures behind this organization are yet ready to relinquish the power to toss the vote they're setting up aside, and anoint a candidate of their choice. Not surprising, given that was probably the point of the organization's creation in the first place

Is Brett elevating the discussion with his description of Americans Elect this way:

" ... the shadowy figures behind this organization ..."

suggesting that their plan is to:

" ... toss the vote they're setting up aside, and anoint a candidate of their choice. Not surprising, given that was probably the point of the organization's creation in the first place"

without providing facts to substantiate? Perhaps Brett has swallowed hook, line and sinker his fellow libertarian, aka our yodeler, in his first comment on this thread which he used to segue the discussion to his new BFF Newt Gingrich. In the course of follow-up comments, much changed with regard to Newt's polling but our yodeler has not found a new BFF to replace Newt as yet. I merely, in the mode of a country lawyer, challenged our yodeler's comments promoting Newt.

By the Bybee [E.D.], I am not a fan of AE as I noted in my first comment on this thread.

Further by the Bybee [E.D], I was a very, very small part, if any, in Jack Balkin's cut off of comments on his posts, as I was not virtually stalking him on every issue he raised.

The only difference in perception and reality I see here is the GOP being placed that far right.

You are welcome to your perception.

And to your opinion.

But of course not to your own set of facts.

A tiny problem with the right wing these days.

God I miss a principled, sane, right wing.

America Elect's Democracy Deficit.

No, Shag, it's true that you weren't staking Jack. (Mention of "stalking" of course, brings somebody else at this site to mind...) But unless Jack wants nothing but sycophantic agreement from comments, one need hardly agree with him to further the discussion.

But to further a discussion, it does kind of help to engage in substantive reasoning, rather than inane verbiage.

At any rate, we've wasted enough of Jack's electrons on this, you are what you are, for better or worse. Let us know if you ever find one of those "vile comments" you're so certain DePalma made.

As more and more info comes out about Newt, Ron Paul, Mitt, etc, Agatha Christie's "And Then There Were None" comes to mind with the GOP presidential candidates circus. Herding elephants can be a problem, requiring a wheelbarrow and a big shovel. Alas, expect AE and other third party proposals to fill the gap.

Is Brett's use of the word "staking" a slip of his digit or "vile"innuendo?

Interesting essay on AE:

Joe's link to Amar's well reasoned essay contrasts sharply with the screeds on AE offered by our yodeler and Brett.

I'm the chief cook, shopper and bottle washer with lots to do for tomorrow's family festivities and may have to ignore the Internet, at least a little bit.

But I want to bring to the attention of commenters at this Blog Joe Nocera's NYTimes column today (12/24/11) "The Big Lie" dealing with Fannie Mae and Freddie Mac. Recall our yodeler's screeds about the incestuous Fannie and Freddie's roles in the 2008 Bush/Cheney Great Recession. (Who recalls the country that repeated lies so frequently that they became fact?)

And also note George Will's WaPo column today: "GOP candidates face historical headwinds" that focuses on Newt, Mitt and Ron Paul. Will is especially hard on Newt but also takes some hard hits on Mitt. But for some reason (space limitations?) Will fails to mention Paul's 1990s racist newsletters. In any event, perhaps the underlying message of Will is to stay upwind of these candidates.

I should also mention that I have just finished reading the Constitutional Commentary Symposium submissions referenced in an earlier comment. The eight submissions by constitutional scholars are varied, sobering and somber, with Sandy's being the most optimistic, COMPARATIVELY. I try to imagine what a constitutional convention might bring about in rewriting the Constitution, assuming that these eight scholars are the tip of the iceberg of constitutional scholars that would offer views at such a convention. Add to them the special interests from all parts of the political spectrum. In retrospect, I wish I had deferred reading these submissions until after the holidays. Maybe a couple of spicy Bloody Marys with pickled celery stalks will lighten my mood as I get ready to prepare in advance a mess of Caponata to accompany beef tenderloin roast tomorrow.

Happy holidays to all, originalists and non-originalists alike.

For those interested in Newt, take a look at:

for Alan Duke's CNN Politics report "Newly discovered court files cast doubt on Gingrich version of first divorce." Note in particular an alleged contemporary statement by Newt back then that his then (first) wife was too old and not pretty enough to be the wife of a President. This is a man of ideas? Yes indeed! Back then he had the idea to be President. But apparently the time was not ripe for his second wife. Now, however, Newt has a third wife young enough and pretty enough to be a President's wife. Newt's a third-time winner, topping Ronald Reagan. Or is he?

Via Larry Solum's Legal Theory Blog, I downloaded Harvard Law Prof. Frank I. Michelman's keynote address to Israel's Knesset on the Conference on the 20th Anniversary of Israel's Human Rights Revolution, with Solum's descriptive "Highly Recommended. Download it while it's hot!" The address bears the title "Constitutional Essentials." As I read it - it's only 10 pages double-spaced - I thought of America's Constitution, imagining that Prof. Michelman was presenting this to our Congress and nation that is so divided politically.

A direct link is available at the Legal Theory Blog, but here's the URL:

for those who don't mind copy and paste.

I wish a Happy New Year to posters and commenters at this Blog.

Also, in connection with the matter of a Constitutional Convention, I recommend a look at Paul Krugman's NYTimes Blog post of 12/31/11 "Hungarian Diplomatic Protest" that features Krugman associate Kim Lane Scheppele's response of 12/30/11 to the Hungarian Ambassador to the U.S. on the subject of Hungary's new Constitution. I have no dog in this Hungarian hunt, but as I read Kim's response, I had thoughts of what a runaway Constitutional Convention might lead to here. Sandy might consider a post on this.

Once again, Happy New Year to those earlier enumerated, as well as to originalists and non-originalists alike.

The Sunday NYTimes' relatively new feature "Sunday Dialogue" provides responses to a letter to the editor published during the week calling for a centrist third party but without specific reference to Americans Elect; nor did the responses. What constitutes a centrist third party? The original letter writer's response to responders indicates that a centrist third party would not be mutually exclusive such that it could be progressive. Like the "Third Man Theme," a centrist third party (including if progressive) might be haunting but might not say much.

And whom will the 0.1% Lawrence Lessig describes in his "Republic, Lost: How Money Corrupts Congress-and a Plan to Stop It" decide to support with their political contributions?
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