Federal Hate Crimes Law and Editorial Missives

As I'm sure everybody knows now, Obama just signed landmark hate crimes legislation making it a federal crime to willfully cause bodily harm to someone because of their actual or perceived sexual orientation, gender identity, or disability. The Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act (enrolled as H.R. 2647, now Public Law No: 111-84) is Division E of the "National Defense Authorization Act for Fiscal Year 2010," meaning that this landmark civil rights legislation was a rider on a military appropriation act.

I was curious to see how (or even if) any respectable opposition to this bill exists. I have found at present only Jillian Bandes at Townhall, who writes:

The Department of Defense Authorization Act (H.R. 2647) is going to a vote on Thursday. It's caused significant strife among Republican Senators who want to vote to fund our troops, but will also be forced to vote for controversial hate crimes legislation if they do so.

Some legislators have said they will withhold their vote; others said they're going to just bite their tongue, but whatever the case, it's a dirty tactic on an issue that deserves a separate, Democratic vote by itself.

I think we can reject the argument on its merits fairly simply. Her definition of "controversial" appears to stem from her misreading of the bill, and to this I would direct people to her April 30 article on the subject. To summarize: this law makes it a federal crime to beat, kidnap, kill, maim, or otherwise inflict bodily harm to someone because they are gay. Where is the controversy in that?

More interesting is an analysis of her rhetoric. Although this two paragraph report is thin, she identifies the use of attaching riders on bills as a "dirty tactic," but perhaps only when engaging an issue that "deserves" a "Democratic vote." I don't want to speculate about her capitalization of Democratic--I suspect this was just careless grammar. But why a "dirty" tactic? The word conjures up an immediate sexual reference, suggesting both the forbidden and the obscene. There seems to be some level of association here between the subject matter--protection of gay men and women--and the author's own feelings on the matter.

I do not deny that this may be making a mountain out of a molehill. But that is precisely what Brand's own reporting does--to point the finger at relatively innocuous legislation that has strong moral content (prevention of violence) and hooks into a well-established constitutional tradition of protecting civil rights (this extends back to 1866) and call it "dirty" is laughable. Unless, of course, one begins with the assumption that federal support of gays' civil rights is morally wrong.

I should point out here that the interesting constitutional issue--well known to constitutional lawyers--is whether the Thirteenth Amendment, which ended slavery, can really provide Congress with the authority to pass hate crimes laws that protect people other than former slaves. Historically, the real question is the ebb and flow of congressional and judicial enforcement of these laws protecting basic human rights. The Supreme Court has swung from one extreme to the other in its history on the subject. Congress has been alternately hot and cool on the subject. And a parallel (although problematic) might be antilynching law, which Congress could never pass in the early twentieth century despite tremendous need because southern senators banded to filibuster and kill such legislation. Now that was a dirty trick.

Saturday Night Supreme Court Smackdown: Scalia v. Breyer!!!!!

Okay, not so much Wrestlemania as civilized discussion. But those interested in pinning down disagreements on constitutional interpretation might be interested in this combative discussion between Supreme Court associate justices Antonin Scalia and Stephen Breyer.

Serious students of Supreme Court methodology and judicial philosophy will likely be disappointed in this discussion. Both justices articulate their philosophies reasonably well, but speak in generalities that make make them both appear startlingly naive at times. Breyer, for instance, identifies affirmative action as a hard topic because of its challenges in terms of understanding precisely what "equal protection" means (i.e., is the Constitution color blind or does it allow legislators to promote equality through affirmative action policies?) but offers little in the way of guidance for how justices might solve this riddle. One is tempted at times to conclude, with Scalia, that his philosophy is just the substitution of modern moral outlook for key phrases in the Constitution. If "equal protection of the laws" in the Fourteenth Amendment merely means whatever we want it to mean--if it has no fixed meaning--then we are really at sea (Scalia's phrase).

But this raises the perennial problem of "fixed" meaning in legal texts. Consider Scalia's jaw-dropping statement that Brown v. Board of Education was an easy case. Originalist principles, Scalia argued, would lead one to conclude that segregated schools violated the "equal protection clause" of the Fourteenth Amendment. But his application of original meaning jurisprudence does not lead to this conclusion. Given that some schools were segregated in northern states at the time of the Fourteenth Amendment's adoption and that courts had consistently upheld race-based laws and reconciled them with "equal protection" requirements, any credible application of originalism would allow in 1954 for the continued segregation of educational facilities. Scalia warded this off by suggesting that the text was clear--equal protection of the laws means that you have to treat everyone equally. But formal legal equality was part of the segregationist regime in the United States, and formalist legal principles masked the inequality that is so apparent to us today.

I should note quickly that I am not commenting here upon those journalists who misquoted Scalia as suggesting that segregation was constitutional under the provisions of the Fourteenth Amendment (hat tip to Jack Balkin and Balkinization, linked above). But I think it ironic that misquoting Scalia actually gets closer to the true application of Scalia's jurisprudence. After all, Scalia is to be applauded for demonstrating the limits of his own jurisprudence. Certain laws, he says, may be appalling. Or just stupid. But that does not necessarily mean that they are unconstitutional. I agree. But, I fear, application of this judicial philosophy would have upheld school segregation in 1954. And Scalia ought really to come to terms with it.

Veterans, the Desert Cross, and the Separation of Church and State

The Supreme Court heard oral arguments yesterday in Salazar v. Buono, an interesting (albeit somewhat technical) case involving the existence of a five-foot white cross on public land (in the Mojave National Preserve) erected by the Veterans of Foreign Wars to honor those who died in World War I. The VFW was initially hit with an injunction directing that the cross not be displayed as a violation of the Establishment Clause of the First Amendment. The federal government covered the cross, and Congress in the mean time organized a land transfer to the VFW that required that organization to maintain a war memorial on the land. A second injunction was sought, the district court ruled the land transfer invalid, the Ninth Circuit upheld, and the case is now pending before the Supreme Court.

The most interesting exchange in oral arguments was arguably the least important, from a legal standpoint. The issues before the Court (e.g.: standing of the respondent; constitutionality of a land swap with a reversionary interest) turn on technical issues that will have to be translated into English for the rest of us. But the interesting exchange had to do with the meaning of religious symbols. I quote from the transcript, which you can find here.

JUSTICE SCALIA: The cross doesn't honor non-Christians who fought in the war? Is that -- is that --
MR. ELIASBERG (counsel for the respondent): I believe that's actually correct.
JUSTICE SCALIA: Where does it say that?
MR. ELIASBERG: It doesn't say that, but a cross is the predominant symbol of Christianity and it signifies that Jesus is the son of God and died to redeem mankind for our sins, and I believe that's why the Jewish war veterans --
JUSTICE SCALIA: It's erected as a war memorial. I assume it is erected in honor of all of the war dead. It's the -- the cross is the -- is the most common symbol of -- of -- of the resting place of the dead, and it doesn't seem to me --what would you have them erect? A cross -- some conglomerate of a cross, a Star of David, and you know, a Moslem half moon and star?
MR. ELIASBERG: Well, Justice Scalia, if I may go to your first point. The cross is the most common symbol of the resting place of Christians. I have ben in Jewish cemeteries. There is never a cross on a tombstone of a Jew.
(Laughter.)
MR. ELIASBERG: So it is the most common symbol to honor Christians.
JUSTICE SCALIA: I don't think you can leap from that to the conclusion that the only war dead that that cross honors are the Christian war dead. I think that's an outrageous conclusion.

Outrageous indeed. Scalia probably meant that the intent of the cross's erectors (the VFW in 1934) was to honor all the war dead. What he left out was that in 1934, the VFW could conflate "American war dead" with "Christian war dead" and receive very little in the way of argument. This conflation may still have offended Jewish, Muslim, Buddhist, and veterans of other faiths, but this was not the intent of the VFW. They were simply using a common cultural symbol. In this sense, Scalia misses the mark entirely--his comments were predicated on the fact that nowhere did the memorial explicitly exclude any other religion. But symbols are useful precisely because they implicitly (through a cultural identification process) include and exclude certain groups of people. To be blind to this is to be obtuse (if not outrageous).

But I reiterate: this exchange was not central to the issues in the case. It is interesting precisely because it gets at the heart of the question of how culture can inform our understanding of legal and constitutional issues. And for the record, I understand Scalia's evident frustration. I attended Pomona College, an educational institution founded by Congregationalists and whose official seal portrays a cross and the words: "Our Tribute to Christian Civilization." As a senior student there, I publicly opposed changing the seal to be more inclusive. I did so not because I value "Christian Civilization" (it is a misnomer), but rather because the symbol has historical import and we cannot simply change out symbols in the name of multiculturalism without risk of losing our sense of historical presence.

The same argument, I think, might apply here. And the oral arguments are worth perusing just to see how the justices signaled one another about the inherent trickiness of Establishment Clause jurisprudence, and just how much context matters in making determinations that honor the spirit of the First Amendment, the concerns of a pluralistic United States, and our own sense of identity and history.

Rove, the DOJ, and the Politics of Law

The cacophony accompanying health care reform has drowned out most other news these days, but this one ought not to slip through the cracks: internal documents released to federal prosecutors have shed light on Karl Rove's role in the firing of U.S. attorneys by George W. Bush. For those who need a refresher, the scandal stems from the firing of eight U.S. attorneys. Democrats complained that the attorneys were specifically targeted for political reasons (namely, for not using their position as U.S. attorneys to investigate voter fraud in districts where Democrats held seats). Conservatives have responded that such rotation-in-office is a fundamental part of democracy, practiced by both political parties.

They are right, of course, but this scandal has deeper, more sinister undertones. We are not talking about rotation in office so much as a perversion of the role of the Justice Department, from that of an impartial legal authority charged with carrying out and executing laws (passed by Congress, one must note) to a surgical political tool, in the service of a particular party.

Rove has downplayed his role. Nonetheless, the e-mails he sent in the thick of the battle seem to implicate him in manipulating the justice system. This, of course, fits his profile. Rove has self-consciously modeled himself after Mark Hanna, the Republican strategist who midwifed the modern political campaign in 1896 and engineered a Republican majority that lasted the better part of a third of a century. It should surprise no one, not even Rove supporters, that he was sedulous in his efforts to use all the powers at his disposal to achieve a like result. (His failure will be a matter for scholarly reflection for decades to come.)

It is unclear, however, precisely what will come of all this. It is doubtful that Rove will be prosecuted. If anything, this is evidence of executive branch mismanagement, and that also fits the M.O. of our last president, who simply did not have the wherewithal to know what was going on where. But we are hardly going to prosecute Bush for his incompetence. Will we prosecute Rove for his malevolence?

There are convincing arguments against such prosecutions, the main one being that we do not want to engender a culture of using official power to punish the last party in office. While serious offenses (woeful disregard of laws prohibiting torture, e.g.) should not be overlooked, the manipulation of executive departments for political gain may well fall into a more minor category. (This recalls, at least in part, the question visited during Clinton's impeachment: what precisely constitutes a "high crime or misdemeanor"?)

I advance the following as an observation only, but perhaps it is time for Congress to assert a more predominant role as watchdog against executive excess. This must occur while the president is in office, not after. It might also require some institutional reform, in terms of how people are removed from office and for what reason. And the weapon of impeachment, seriously unleashed only three times in our nation's history, needs a more serious and solid institutional and intellectual foundation. It is worth note that 2 of the 3 impeachment rumblings, against Andrew Johnson and Bill Clinton, were unapologetically partisan in nature. What will it take to establish some guidelines for serious congressional checks on an executive that has become, for all intents and purposes, an elective kingship?

Badiou’s Ethics of Singularity, The Federalist 10, and Shakespeare’s Merchant of Venice

The relationship between ethics and politics is a curious one. It highlights an even deeper relationship between theory and practice. In a debate with Cornel West at Princeton University in March, 2006, French Philosopher Alain Badiou highlights three classical conceptions of ethics: the Theological, the Natural conception, and the Formalist. Perhaps this should be our beginning. Theological ethics, Badiou articulates, is an ethics of submission. The difference between good and evil is a transcendental one ruled by God and not by human beings. You have to obey the law—as divine law is the most important concept. In the Natural conception, the dichotomy of good and evil is a human one. There is a certain sensibility that guides action. Badiou suggests this conception is based on pity in understanding the suffering of one or another, “you have an immediate pity for the suffering of the human animal” Badiou says. Natural ethics is an ethics of sensibility where the most important concept is that of the victim. In the formal conception, the difference of good and evil depends on the form of action. This form is subjective. The form is not the content or the goal of action of but the subjective intention of action. If one acts exclusively, taking into consideration a moral duty, he or she is right. If one acts taking into consideration personal interests, he or she is wrong. The formalist ethics, Badiou says, is based on “purely subjective liberty.” The most important concept here is that of the formal imperative—what Kant calls the Categorical Imperative—a standard of rationality which all moral requirements are derived.

It is here that Badiou breaks from classical ethics as articulated above in that he believes there is no abstract or divine law which says to or for us which is good or evil. There is no general or natural feeling between victims which says what we have to do. And there is no formal imperative which allows us to separate good will and bad will. In other words, to fix an orientation to action or judgment, there is no general rule, no immediate sensibility, or pure form. One must think about the immediate situation and find a new rule of action. It is within this that Badiou introduces an “Ethics of Singularity”—the singular situation that guides action. Furthermore, Badiou says knowing the immediate situation is not enough. One must know the day’s geopolitical situation. Where I feel Badiou’s Ethics of singularity falls short but doesn’t necessarily lose potency is in his taking for granted the concept of the state—particularly the liberal state theoretically birthed within a sense of republicanism but also the notion of private ownership.

In the Federalist No. 10, Madison writes, “The diversity in the faculties of men from which the rights of property originate, is not less and insuperable obstacle to a uniformity of interests. The protection of these faculties is the first object of Government.” Madison goes on further to add,

“…the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results: and from the influence of these on the sentiments and views of the respective proprietors, ensues a division of the society into different interests and parties.”

I contend that it is critical to keep Madison’s reasoning for factions within a state in context with the social developments of the day—particularly the economic. Historian Joyce Appleby has argued that the development of the free market was one of the few true novelties in history, changing the relationship of not only person to person, but of person to government—and that the roots of liberal social thought did not lie in past politics or classical theories of government, but to the first writings on the free-market economy (Appleby 1992, 166-167). Appleby also quotes English economist Charles Davenant, as he went further and connected the setting of prices and the law of self-preservation, in so saying that the “Naturall [sic] course of trade, each commodity will find its price,” going further, that “the supreme power can do many things, but it cannot alter the Laws of Nature of which the most original is, that every man should preserve himself” (Appleby 1992, 169). In many senses, there was something moral represented in every economic act. If we explore these premises (of Madison and Appleby), we can see how the market has the ability to cause social tensions and affect political life. We can also reasonably agree that those who were more suited to understand the mechanics of the market are able to exact better ends from their means and acquire more than those who do not.

Taking this notion of private property and the market—seen by many as having its own moral force—growing to influence political life from at least the late 17th century—we can begin to see a place where the classical articulation of formal of ethics—the formal imperative lies—in the free-market as it had the jurisdiction to play into Madison’s reasoning for factions and various political interests coming out of the dynamics of ownership. This situation proposes an interesting scenario on a society premised on republicanism. If the free-market is seen as a natural entity within which those who are more aware of its machinery can benefit and acquire more than those who do not, from where will the protections from faction emerge but within government and from where but governmental institutions can protections be secured? What is to keep the masters of the market from gaining overwhelming control of the very institutions that were created to check power? And what is to keep people engaged in the political process as they are crowded out by powerful interests? Concerning the formal imperative, Badiou walks away from it because there is no general principle that separates good will from bad. In fact, he calls this scenario of formal imperative (in this case, the market being seen as a moral arbiter where standards of rationality emerge) “subjective liberty.”

This republican spirit fused with commercialism is certainly not new to history. Late 16th century Venice as depicted by William Shakespeare in The Merchant of Venice allows us to see some of the social effects of Republicanism when mingled with commercialism. The first interesting parallel of 16th century Venice to what would become the United States is that there existed strong religious sentiments. Each professing doctrines of how life should be lived while on earth with special attention to the hereafter. Many authors of high esteem have produced work of such high caliber on this era of history that I dare not speak after them, but I do feel it necessary to make a point of connection. My argument here is that of Allan Bloom’s, which is to say that in the United States, like in Venice, republicanism had to overcome a religious question. This dealt mainly with how to teach people to deal with the here and now rather than to the hereafter (Bloom 1996, 15). This commercial spirit was perhaps a moderating factor from which toleration had to emerge so all involved in the society could benefit (though some more than others). In other words, the State had to become tolerant to be able to embrace in a stable order, men of widely differing beliefs (Bloom 1996, 15). In the play, the main conflict is between Shylock, a Jewish moneylender, and Antonio, a Christian merchant whose love for his friend Bassanio, who needs money in order to embark on a voyage to find a good match for himself, leads him to sign a contract with Shylock. Shylock does not care for the man or his interest, but through them he can profit for himself. What he does is neither noble nor generous, but it is not unjust (Bloom 1996, 19). As Badiou says, in this formal conception, where there is no formal law/imperative to separate good will from bad, shows us a point where the ethical tensions between Shylock and Antonio originate. Under the contract signed by Antonio, Shylock would extract a pound of flesh if the debt could not be repaid. It is Antonio’s basic understanding or gravitation towards life that leads him to contract with shylock in the first place, who doesn’t appear to have that same view.

This is the point where the formal imperative collapses if one was had to begin with. However, the two men are linked by money. Antonio must borrow from Shylock and this is done under contract not bound by good faith (Bloom 1996, 20) leading us to a testament as to how opposed the two men are in conceiving of the same humanity they operate under. “I will buy with you, sell with you, talke with you, walke with you, and so following: but I will not eate with you, drinke with you, nor pray with you” (Act I, Scene III). Upon this point we can begin to realize the depth of James Madison’s words in the Federalist 10. If republicanism, as understood to be where all can live in liberty and security, was to overcome the religious question, a mechanism was needed to involve those who would rather focus on the hereafter to be involved in the here and now. The development of the free-market effectively or abortively provided such a mechanism and established the foundation for simple toleration under various intentions (as we see with Shylock and Antonio). Under consumerism, people are allowed to gain and claim ownership and are almost compelled to engage society in order to preserve their lot. It is upon this dynamic that we see the possible development of faction. It is perhaps under these influences that Madison puts forth the argument that the causes of faction cannot be removed, but the effects must be controlled.

Madison defines faction as
“…a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or the permanent and aggregate interests of the community.”

We are now left to consider when a faction consists of less than or more than the majority. To cure the problem of faction by a majority, Madison suggests that the principle of a Republic, that of which the scheme of representation takes place, instead of a Democracy. He says the effect of this difference is

“[T]o refine and enlarge the public view, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice, will be least likely to sacrifice it to temporary or partial considerations.”

Madison believes that under these conditions, the public will pronounced by representatives will provide more positive ailment than if the people themselves gather for the purpose. To be sure, Madison was aware of the possibility that there could be those of “factitious tempers” or “sinister designs” could by intrigue, corruption or other means obtain the confidence of the people and betray the public interest. To this he reveals that a larger Republic is better than a smaller one where representatives will be limited to a certain number and will be chosen by a larger number of people. His reasoning is as such,

“Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; […] if such a common motive exists, it will be more difficult for all who feel it do discover their own strength, and to act in unison with each other.”

Tempted, I feel as though there is room to extrapolate to republican governments this notion of formal ethics under a formal imperative as an attempt to establish what is good or bad. For Madison’s Republic, it is stocked in the very principle of republicanism which takes for granted that which compels people to engage, en masse, in political society. In other words, perhaps Madison did not or could not articulate an organizing principle for his Republic that would connect all involved and was only left with that spirit of consumerism we visited in 16th century Venice which is, by his words, is the cause of faction and consequently, its remedy if somehow rerouted. Perhaps it is on this point where Badiou’s Ethics of Singularity has promise. He calls for one or a society in order to fix an orientation to action or judgment to look at the immediate situation and find a new rule. For Madison, Shylock and Antonio, they each have their beliefs of the organizing principles of society and humanity—whether in the Republican principle, general view of humanity or that of contract or societal law—each strand of formal imperatives seems to be guided by this unifying factor which still does not express how one could or should distinguish good from bad. This is where Badiou says one must also know the geopolitical orientation of the world. In a sense, Badiou asks of us to believe in the world and our relation to it. And for this, we must believe in the concrete lives of people. It is through this action that we can find the goodness or badness in the situations we are confronted.


Appleby, Joyce. 1992. Liberalism and Republicanism in the Historical Imagination. Harvard University Press, March 1.
Bloom, Allan. 1996. Shakespeare's Politics. University Of Chicago Press, December 1.

Culture Wars, Oral Sex, and Constitutional Niceties

There is a little something brewing down here in Georgia. In the face of drastic budget cuts, several state representatives turned their anger on the University System of Georgia. Rep. Calvin Hill waved a media guide around and barked his disapproval about Georgia State University offering courses in “male prostitution” and “oral sex” and “queer theory.” (Hill had difficulty, apparently, distinguishing a course catalog from a media guide, but more on this later.) Lesser-known (and apparently media-hungry) Charlice Byrd emerged from the thicket to call for a purge from the university system of Georgia all those who teach such subjects. She urged supporters in a youtube address to write their legislators and their media outlets, and promises were made to engage the Christian Coalition to put pressure on the political process.

For those of us who hoped that the slothful ignorance of the right-wing culture wars was being nailed into its coffin with the 2008 election, this is the news that the corpse is still flailing about. We can be hearted that the University System’s representatives acquitted themselves nicely before both legislature and media. They pointed out, for instance, that the media guide is not a course guide—there are no classes on oral sex, just an expert listed in case someone in the media happens to be doing research on the subject of, say, contemporary casual social attitudes towards oral sex and seeks expert advice. And a committee hearing featured the expert on male prostitution—Kirk Elifson, an Army captain, Vietnam veteran whose research has been utilized by the Center for Disease Control.

For his part, Calvin Hill has been forced to retreat in the face of his own foolishness, even insisting recently that the media blew his comments out of proportion. There is no indication yet that Byrd has done so.

There is, I promise, a constitutional issue here. Byrd’s call for a faculty purge runs afoul of the Georgia Constitution, which grants governance of the university system to a board of regents. The point, of course, was to insulate higher education from the whims of legislative fancy (and insanity).

There is one more hearing scheduled for next week on this subject. With any luck, the calm handling of this situation by the university will have embarrassed Byrd enough that we never hear of this again. Or, at least, until another wingnut emerges from the woodwork.

Civil Liberties and Obama's Failure

Despite the initial good news of the Obama administration on the civil liberties front, things have soured considerably in the last week. Obama’s public closure of Guantanamo was a necessary first step in returning something like constitutional sanity to a government hijacked by the right wing in the past eight years. But closing Guantanamo, it should be acknowledge by all, is only a first step—not an end game, and certainly nothing like a complete victory. It was only a very public announcement of a plan. The devil, of course is in the details.

One of those details emerged this week. Why has Obama reneged on one of his most important campaign promises? He had repeatedly called the Bush Administration’s invocation of state secrets opportunistic and anathema to constitutional government. So many waited with anticipation when AG Eric Holder dispatched a DOJ lawyer, Eric Letter, to file his administration’s claims in the case of Mohamed v. Jeppesen DataPlan, currently before the Ninth Circuit Court of Appeals. The case involves torture in Bush’s extraordinary rendition plan. This would have been a perfect opportunity for Obama’s administration to repudiate his predecessors and its legal tactics.

So why did Letter argue before the three-judge panel that the entire matter is a state secret? The details of the extraordinary rendition plan—a truly horrific policy that has bloodied the America’s hands and sullied our reputation—are known throughout the world. Why not air them in a federal courtroom? Why not submit to the rule of law? Is this not the American Way? And why does the Obama Justice Department attempt to cover up for the Bush Administration?

Those of us committed to restoring constitutional government have a duty to let this administration know such tactics are unacceptable. And they do not go unnoticed.

Transparency, Executive Privilege, and History

Incoming presidents often announce bold changes in policy and constitutional direction by the issuance of executive orders--those rules and regulations that provide for the execution of laws and give direction to federal agencies. In his first week in office, Obama has issued executive orders that have halted the military prosecutions of Guantanamo prisoners, closed that infamous base, repudiated torture and reasserted the primacy of the Geneva Conventions, and lifted the ban on directing money to international agencies that fund abortions. This should surprise no one.

One such constitutional order has not yet received a lot of attention, but is worth noting. Obama has made presidential records easier to obtain. This move towards transparency has long been a concern for historians, charged as we are professionally with the accurate reading of our documentary past.

Obama's order reverses a little-known Bush policy. Back in November of 2001, George W. Bush signed executive order 13233. The law added additional regulations to the National Archives's ability to release presidential records. The rule had hitherto been that presidential records would be sealed for twelve years after the close of an administration. After that time, any request for presidential records not yet catalogued and available to the general public would first be cleared through the sitting president, who might claim executive privilege. Given that ongoing diplomatic efforts might be harmed by the release of certain records, this seems a perfectly reasonable regulation. Bush's order 13233 added this requirement: all such requests now had to be cleared by the sitting president AND the former president. (Former president meaning the president whose records were being requested).

Bush's executive order grounded itself in the idea that executive privilege outlasted the office--that is, the former president still retained privilege over documents produced by his office. This is a dubious principle, although one tentatively supported by the Supreme Court in Nixon v. Administrator of Public Services (1977). I should note here that the decision in Nixon was divided--the justices wrote seriatim--and Bush's executive order cited the solicitor general's brief rather than the opinion of the justice.

Bush issued the executive order just as former president Ronald Reagan's records were to become available, the requisite 12 years after the end of his administration having lapsed. Many have speculated that he was protecting (among other people) his father, whose role in the Iran-Contra affair has never been fully disclosed. The records Reagan sealed when he left office should have been opened eight years ago. But the lawsuit filed by the American Historical Association moved slowly, and never did get the results they wanted.

Historians have a reason to celebrate now. And, of course, a reason to get to work.

Inaugural Moments

What matters ceremony? Americans have historically been somewhat schizophrenic about the subject. On the one hand, ceremony implies elitist ritual more associated with aristocracy or monarchy than democracy. On the other, we seem to turn out (or tune in) in record numbers every time a ceremony promises to be a moment of history (whatever that may mean).

So now may be a good time for reflection about what the ceremony of the inaugural is really about. Here I am speaking not so much about the speech (Jill Lepore did a wonderful job of telling the history of inaugural addresses in the New Yorker), but the ceremonies that surround the inaugural address. And no, these are not unimportant trappings to dress up an otherwise simple act of oath-taking and office assumption. Ceremonial conferring of power is important for the signals they deliver and the codes which contain them, and have always been so even in our fiercely republican America.

John Adams, for instance, showed up to his inauguration in a suit of fine pearl gray broadcloth, complete with a cockaded hat and a sword. As if to answer such aristocratic pretensions (Adams was, after all, the one who wished the President's title to be "His Excellency"), Thomas Jefferson walked to his inaugural in clothes that, according to several onlookers, barely distinguished him from the militia troops assembled nearby. This was not poor planning on Jefferson's part--no one can imagine that he awoke on that day of all days and had nothing nice in the closet to wear. It was a self-conscious democratic pretention on Jefferson's part, just as much as was his walk to the Capitol (Adams, after all, arrived by carriage).

If Jefferson repudiated Adams (and Federalist aristocratic pretensions), then he found himself snubbed in turn. John Marshall, newly appointed chief justice, delivered the oath of office upon Jefferson's request. But he turned his back on Jefferson during the address, an action not soon forgotten by angry Democratic-Republicans. Marshall would not make another such snub until the election of 1828, when he famously ended his political neutrality as chief justice by casting a ballot in the presidential election of that year--not so much for John Quincy Adams as against Andrew Jackson. Jackson's victory in the election led to another fantastic inaugural memory: his famous reception party at the White House where he symbolically invited in "the people." They came, and they looted the place. Jackson barely escaped being crushed alive before assuming the duties of office.

These ceremonial moments were all consciously planned. Jefferson, Marshall, and Jackson understood the importance of ceremony and meant to send certain signals to political friends and enemies alike. They may have been able to be more spontaneous--no secret service detail in those days--but they nonetheless crafted their ceremonies understanding what signals they were sending. And of course, such spontaneity is even more a mirage today. Can anyone doubt that Jimmy Carter's "spontaneous" exit from the limousine and walk to the White House comported nicely with his desire to be seen as a "people's president"?

Not that spontaneity could not intrude. There was nothing planned about James Buchanan's (1857-1861) frequent trips to the bathroom that interrupted his inaugural address. Buchanan had contracted "Hotel Dysentery" as it was called. Nor was there anything planned about the riot at George W. Bush's 2001 inauguration that sent the limos in high speed from the Capitol to the White House. With hindsight, both of these moments seem eerily prophetic. Buchanan, after all, began his presidency by exulting the decision of Dred Scott v. Sandford (1857), widely reviled as the worst U.S. Supreme Court decision ever, and ended by whistling through the graveyard as state after state seceded from the Union. Such blunders seem foretold in an inaugural address more marked by the deliverer's acute diarrhea than his stunning oratory. And the riot that kicked off Bush II's presidency presaged the conditions of his exit: hugely unpopular with the people, out of touch with reality, and divisive (not decisive) in a crisis.

There was some of the spontaneous in the Obama inauguration as well. Chief Justice John G. Roberts and President Obama both flubbed the simplest part--the oath of office. That these two men, renown constitutional officers and scholars in their own right, known for their elocution and their intelligence, could make so simple a mistake is--in its own right--astounding. One hopes that it is not a bit of prophesy as well.

Guantanamo Watch

One of Obama's first acts as president was to issue a request to halt all prosecutions by military tribunal of Guantanamo prisoners. It is not quite an order--it has to be submitted as a motion by prosecutors to the judges operating the courts--but given executive control over the military, it should mean an immediate halt to prosecutions.

Given all the revelations of torture at Guantanamo (video reports here and here), this is the only manner in which Obama can ethically proceed. But reviewing military commissions and slowly considering policy can only be a start. The detainees might be tried by civilian courts in the United States. Or they may be quietly forgotten and then moved to shadow prisons in Afghanistan and elsewhere. Given the high likilihood that the American military is detaining a significant number of people who are neither enemies of America or a future threat (and, for that matter, not guilty of any wrongdoing that America could legally and morally seek to punish) this potential should shake lovers of constituional liberty and human rights.

It is somewhat disquieting that so much power remains in the hands of the executive in this matter. In that sense, at least, Obama's constitutional position is little changed from that of George W., who left office (seemingly) confident that he had done the right thing. For Obama to begin effecting true constitutional change, he will have to repudiate not merely the prison at Guantanamo, but the principles that allowed it.