Brinksmanship and the Debates

What is happening? The debate scheduled for tonight--the debate I made my students promise they would watch--is now in limbo. Its status has become a political football, and it's difficult to see who's in possession at the moment. Being an historian, I am curious about the narrative and its meaning, so let's pause to see if we can reconstruct the events:

At some point on Sep. 24, a conference call between the two campaigns ended with the suggestion of a joint statement that Congress should put aside divisions and figure out a plan for the current financial crisis.

John McCain made a prepared, public announcement later that day saying he was suspending his campaign and asking that the presidential debate be postponed.

Obama responded that the debates did not need to be delayed. He suggested that the time was ripe for a debate and that presidents need to multitask anyway.

McCain has further said he will not participate in the debate unless a consensus has been reached in Congress about the bailout plan.

This narrative changes by the minute, so this is already out of date. But the narrative is a curious look at politics on the campaign trail. It is, either sadly or gleefully, a parody of itself.

Nothing is funny about the financial crisis, except that the response seems to be to give the former CEO of Goldman-Sachs $700 billion in seed money without any legislative or judicial oversight or review. This is a page out of the FDR playbook, which tells us something about the constitutional direction of the new conservative movement.

But the response of the candidates is. First, John McCain reads from a teleprompter a statement saying that this has surprised us all and that we have to drop everything to guarantee a legislative solution. Let's drop politics, he says, and suspends his campaign.

Except that there is nothing more political than telling the nation that you are not political and (arguably, I know) using the crisis as a platform for a campaign slogan ("Country First"). And I doubt anyone really thinks otherwise. Certainly Obama didn't, who took the opportunity to remind everyone that the president needs to be vigorous and should be able to lift heavy objects and leap buildings and the like. The obvious implication is that McCain lacks such vigor. A clever, if somewhat mean, counterstroke.

But McCain then upped the ante by saying he WOULDN'T participate in the debate unless a consensus was reached. This is pure brinksmanship. He is virtually daring Obama to fly to the debate alone, and then have to turn his plane around for Washington.

But will it work? If McCain backs down and goes to the debates, he will have backed down (unless he can sell a compromise in the next eight hours, which is . . .). If he doesn't go, it's a huge gamble. Will it pay off?

Meanwhile, we're getting a taste of what the next president will have to deal with.

Cosmopolitan Judging and Habeas Corpus

Eric Posner has recently posted an essay analyzing Boumediene v. Bush, critical of what he calls "judicial cosmopolitanism" in the decision. The essay is typical of Posner--learned, nimble, and provocative. I do not find it convincing since he is, as he himself admits, working on the premise that Boumediene's major contribution to jurisprudence was to extend constitutional rights to noncitizens on foreign soil. The Court made no such pronouncement, and Posner acknowledges that the decision can be read much more narrowly.

If one separates his analysis of Boumediene to his critique of cosmopolitan judging, then we have the makings of a new debate in constitutional law. For better or worse, conservatives seem to line up in the "American exceptionalism" and positivist camps, adhering to originalism in constitutional construction. Liberals seem (also for better or worse) to be more interested in global human rights and the symbiotic relationship between American constituitonal law and global law. Posner's essay, while not particularly deep, is an excellent introduction to these ideas, and offers a conservative, thoughtful critique of cosmopolitan judging.

One effect of continually appointing strict originalists and positivists to the bench (people like Scalia and Alito) is that their palpable disdain for foreign law in an increasingly global era has lessened the influence of the Supreme Court internationally. The Court used to be the gold standard for constitutional law, but it is now in decline. Not that this signals an immediate need to admit foreign law into Supreme Court opinions--and certainly not as controling law--but we must be honest about the consequences of judicial parochialism as well as judicial cosmopolitanism.

Cosmopolitanism and the Revenge of Logicalitiness

Or vice versa. Before I write another post complaining about coalition-building within political parties and how this affects true constitutional change, I thought I'd post a link to this article by Jonathan Rauch on the Republican's war on cosmopolitanism, logic, reason, science, and other things now pegged "elitist." Rauch's satire works brilliantly as both comedy and biting commentary.

It feels good to take a breather from the madness.

Elections and Constitutional Regimes

Recently, my posts in this blog have strayed dangerously from issues constitutional to matters political, a dangerous kind of slippage for anyone who purports to deal with the Constitution and its history. Nonetheless, the two are connected. Throughout history, the settlement of great constitutional questions has often been done politically rather than legally. But such change is usually tethered to elections and the kind of mandate that politicians can make from them. Is 2008 such a year?

Probably not. But before we analyze that, we need to lay some historical groundwork. There are very few national elections that we might call constitutionally transformative in our history. I would argue for the following elections as fitting within that category: 1800; 1860; 1896; 1936. Each of these elections brought not just policy change, but serious and new interpretations of the Constitution to bear against older alternatives. 1800, of course, makes the case for itself: the Federalists and the Democratic-Republicans cast the election in those terms, and there is no doubt that Jefferson's election set the terms for constitutional interpretation for the next sixty years. The unresolved question of the antebellum era was slavery, and those issues came to a head in the election of 1860, when a party won that was devoted to keeping slavery from the federal territories. It brought Civil War. The 1896 election was noted for the losers--the Populists. The subsequent co-opting of progressive reform into the Republican Party created the activist, muscular government (think Teddy after 1900) that enforced rules that the Supreme Court had attempted to subvert. Finally, 1936 was a repudiation of the Lochner-era laissez faire Constitution and the ushering in of the New Deal.

This is not to say that other elections have not had huge political impact. 1828 marked the birth of democratic participation in the presidential election; 1876 signaled the end of Reconstruction; 1912 demonstrated how divided the United States was (given that the socialist candidate netted a big percentage of the vote); 1968 spelled the end of Democratic dominance of national issues; 1980 brought conservatism into the mainstream. But these political changes (I would argue) did not necessarily auger the kind of constitutinal change that we might describe as transformative. They may have been transformative politically, but (to take but one example) the Reagan mantra of low taxes and higher defense spending was not in-and-of-itself a novel interpretation of the Constitution meant to replace rival views. It was, more properly, a policy disagreement with liberal democrats.

To return to 2008. I had initially imagined that *perhaps* we were living in a transformative age. The Bush White House has through a variety of means exerted executive power in new ways. When combined with a quiescent Congress (even after that Congress turned Democrat) it appeared that we were more and more coming within the gambit of an imperial presidency. The stakes, therefore, for this election seemed inordinately high. Would the next president augment that power, or bring the office within constitutional limits?

These issues, however, do not seem to animate the electorate. Not that they need to, of course--many of those who voted for Lincoln did not do so in order to change the Constitution. Nonetheless, the nation understood his electoral victory as the kind of mandate that would remove federal protection (and sponsorship) of slavery. It was enough to drive the slaveholding states to secession. And from their perspective, rightfully so. They saw the imminent end of slavery, even if that imminent end was not immediate emancipation, but rather the slow strangulation provided by refusing slaveholders access to western territories.

In this election, thus, we are confronted with a question that does not have an easy answer. Is anyone really concerned with the executive branch's grab for power in the past eight years? Are we concerned that our own civil liberties might be endangered by the Bush administration's (and Congress's) end-run around the suspension clause? (I refer here to the issues raised in Boumediene v. Bush, and encourage anyone interested in this subject to read my article in common-place about it.) Polls have focused either on the economy or Iraq, and news coverage has steadily ignored all constitutional issues, excepting abortion. (Mainstream coverage of this has, as usual, been awful.)

It was possible several months ago to see both Obama's candidacy and McCain's victory over Romney in the Republican primary as an indication that American voters were moving not just toward a new kind of politics, but repudiating the executive powermongers understanding of the Constitution.

I do not believe it is possible to view things that way now. Nonetheless, we are caught in the fog of war and perhaps this election might nonetheless prove transformative. But that will require statesmen to emerge amongst those (whomever they are) who win the election. It has happened before, of course. But there are also reasons that we have come to expect so little from politicians.

Sketch of a Villain

Excuse, if you will, a few disconnected thoughts about the Republican National Convention: about Palin, Huckabee, and (sadly disturbingly) Mitt Romney.

Sarah Palin, the surprise pick for VP, did not surprise anyone with her speech. Well delivered and strong, full of falsehoods and half-truths: everything we have come to expect from a VP. If she survives the ethics investigation in her home state (they are, after all, REPUBLICANS who are investigating her and most likely will fall into line before recommending censure or impeachment for her clear ethics violations), she will get the base foaming at the mouth.

Huckabee made one revealing statement in what was otherwise a boring speech. He praised McCain for never renouncing his country while a POW in Vietnam. If he had just renounced his country, said Huckabee, he could have gone home early. This is not the way I understand the story. McCain did break under torture and did sign a statement saying he was a war criminal and an air pirate (or whatever they shoved under his nose). His heroism came from his refusal to leave the camp before POWs who had arrived before him were released. I find such a story tremendously moving, as it does recommend McCain's character. Sadly (for Huckabee or whoever wrote his speech) it doesn't comport well enough with the "country first" theme of the Convention.

Mitt Romney is fast emerging as the Republican villain. His speech was replete with meaningless platitudes. He tried to whip up a frenzy over radical Islam, suggesting that George Bush did the right thing by labeling certain countries part of an axis of evil and starting a war in one of them. (This got surprisingly few cheers, by the way.) He took a backhanded swipe at Michelle Obama. And he castigated as liberal the establishment at Washington--an establishment that has been resoundingly republican for the last fourteen years. And there is simply something frightening about a man who says that the Democrats are the party of "Big Brother" yet scolds the Supreme Court (apparently a liberal bulwark, in Romney's pea-brained world) for upholding habeas corpus against the doctrine of unlimited executive power.

For the constitutional scholar, Mitt Romney is the villain. He is the partisan without thought-out principles. He promotes power rather than limits on power. His understanding of foreign affairs is mean spirited and, sadly, seems to animate a small portion of our population. His principles are on the edge of unacceptability--he ought to be tossed out by any legitimate political party, not given a prime spot at a speaking convention.

My only consolation was that no one seems to care about him much. They didn't in the elections and they didn't last night at the convention. So much the better for America and the Constitution.

If Mitt Romney represents anything like the future of the Republican Party, we are in trouble. I anxiously await McCain's speech...