Judging the Case Against Same-Sex Marriage

Andrew Koppelman

Posted 8:26 AM by Andrew Koppelman [link]

Both Mary and I are right

Sandy Levinson

I appreciate Mary Dudziak's thoughtful post on the legitimate disillusion with aspects of Barack Obama's presidency.  I think it is a disgrace, for example, that he so completely capitulated to the well-off complainers about relatively modest delays in air travel while he has remained basically silent about the insane sequester cuts that are affecting those who do not regularly engage in air travel.  Far better for the "sequester" to be considered on an "all-or-nothing" basis than allow Republicans and scared Democrats to cherry-pick those relatively few aspects of the sequester that impinge on those at the relative top of the class structure (including, I must confess, well-paid law professors like me who fly a lot).  I also think that it is fair to criticize Obama (or, for that matter, to praise him) for certain foreign policy decisions given the relative autonomy that American presidents may have in that domain, or in making certain kinds of military decisions. 

That being said, I continue to think that Maureen Dowd's criticism of Obama for failing to play sufficient hardball vis-a-vis the background-check bill is mistaken.  The President has far less practical power with regard to domestic legislation.  Would it really make sense, for example, for the President to threaten Mark Begich, whose re-election to the Senate is essential if Democrats are not to be rendered irrelevant after the 2014 election, because he is cautious about putting his re-election in jeopardy by voting for a bill that a) would, at best, be only marginally helpful in helping to reduce violence attached to guns; and b) would very likely not be passed by the House.  Critics are basically asking the President in effect to place Begich's re-election in jeopardy by asking (or imposing pressure on him) to engage in a "grand gesture" that would not only risk his re-electionbut also would probably not eventuate in actual legislation.  The reason for the latter is the bicameralism that is an important part of the Constitution.  Its purpose (and function) is to make it harder to pass legislation, which means, among other things, that a member of either house of Congress must calculate the actual odds that the other house will be receptive.  Jimmy Carter many years ago successfully put pressure on Democrats in the House to support some energy reforms that then went nowhere in the Senate, which, quite understandably, angered the House members who went out on a limb. 

As it happens, I support bicameralism in a polity as large as the US (or, for that matter, even Texas, though not, e.g., any state smaller than New Zealand, which functions just fine with one House of Representatives), though I despise the principle of equal representation in the Senate.  But we should be aware that even the best bicameral systems (far better than our own) may impose costs as well as benefits.  In any event, we should be able to combine both "personal" sorts of criticisms of the kind that Mary offered with the more "structural" ones that I emphasize.  It is altogether possible that if everyone were making structural arguments, I would feel compelled to point out that individuals and other contingencies are important as well, as Mary correctly suggests.  But, to put it mildly, I don't think there's an excessive emphasis on structural argument in our contemporary discourse. Just read every single one of the Times' or Washington Post's stable of columnists, of all political persuasions.  So until one of those worthies does indeed connect the dots, I will continue to complain about the partial nature of their often otherwise helpful analyses. 


Posted 12:49 AM by Sandy Levinson [link] (38) comments

It’s time for liberals to stop making excuses for Obama

Mary L. Dudziak

Sandy Levinson took Maureen Dowd to task for her column last week, “No Bully in the Pulpit,” which criticized President Obama for failing to pull the votes together to get the gun control bill through the Senate.  “Now it's Maureen Dowd who can't connect the dots,” he said. 

She thinks he should have played hardball with the holdout Democrats and attempted to recruit more Republican support.  In particular, he shouldn't have left the cajoling up to Joe Biden.  For her, it's always personalities, and never structures, that explain the American political system.  So she's my latest candidate among Times' columnists who simply cannot connect the dots between political outcomes and the structures established in the Constitution.

For Sandy, “the egregious outcome is best explained by our egregious Constitution and the allocation of voting power in the Senate.”

Sandy is, of course, right that structure matters.  But Dowd is also right that a president’s effectiveness in using the powers of his office also matters.  Other presidents have faced structural barriers to achieving their goals.  Some presidents have been more successful than others at moving forward in the face of opposition. Structure alone does not determine political outcomes. 

The more we explain away failures during Obama’s presidency as the inevitable consequence of political structures, the more we put off an urgent analysis of the failures of the president himself.  And the more we put off the political work that liberals and progressives need to engage in: marshaling our own efforts against a president we once supported. 

We have a liberal president who has used his powers to institutionalize and legitimize targeted killing, but who was unable to use a powerful political moment – the aftermath of the Sandy Hook shootings – to get gun control through the senate, who has escalated the rate of deportations, and who is silent as prisoners appear to try to kill themselves at Guantánamo, a prison he promised to close.  With no substantial push-back from the left, the direction of compromise is of course toward the right.  And so, if we are to focus on structure, the absence of more powerful progressive opposition becomes its own feature of the broader political structure.  As liberals remain hopeful and wait, the only meaningful political push-back is from the right.
   
In his second term, Obama won’t need to worry about electoral consequences, of course, but he should be worrying about his legacy.  It won’t be long after the 2016 election that we will turn to assessing the Obama presidency.  At that point, we will tally up the successes and the failures, of which gun control is surely one.  But the time for liberal and progressive pundits and intellectuals to voice their disappointment in this presidency is now, when a chorus of criticism from formerly loyal supporters might serve as a wake-up call before this truly becomes a lame-duck administration.  It’s time for liberals to stop making excuses for Obama, but instead to hold him accountable.
Posted 3:00 AM by Mary L. Dudziak [link] (26) comments

Guantanamo as a "Political Prison"

Mark Tushnet

Posted 2:54 PM by Mark Tushnet [link]

Berger on Civil Religion in Boston

Andrew Koppelman

Posted 3:32 PM by Andrew Koppelman [link]

Did the Law Professors Blow It in the Health Care Case?

Andrew Koppelman

Posted 2:50 PM by Andrew Koppelman [link]

New Books Network Interview on The Tough Luck Constitution

Andrew Koppelman

Posted 4:29 PM by Andrew Koppelman [link]

Warrantless Searches of Homes and the Fourth Amendment

Guest Blogger

Albert Wong


Posted 12:38 PM by Guest Blogger [link]