President Bush is now asking the Justice Department to do what the Ohio Republican Party could not get the Supreme Court to do--look into 200,000 new voter registrations that some have called fraudulent. Information on registration cards did not correspond with information in a database of voters and, as such, they look suspicious to some.
On its face, this appears to be reasonable. Except that we have three contextualizing factors:
1. George W. Bush's Justice Department has been the most notoriously partisan of any recent administration, and "voter fraud" was the entering wedge that U.S. attorneys were supposed to use to disenfranchise people who were predisposed to vote Democratic. In case anyone forgot, this brought down Attorney General Albert Gonzales and shamed the administration. It led James Bovard to call for Bush's impeachment.
2. It has been a long-time tactic of Republicans to set up as many roadblocks as possible to prevent registered Democrats from voting. The usual saying is that Democrats do a better job of registering voters and Republicans do a better job of getting those voters to the polls. Perhaps Democrats would be better about voting if they didn't find that their registrations had been "lost" or destroyed, as in Fulton County (my county of residence, by the way) where 70,000 new registrations were found in the trash.
3. We are eight days from an election. For Ohio Republicans to attempt to disenfranchise 200,000 new voters--and for the President to suggest an investigation at this point--smacks of a cynical last minute ploy to keep Democrats sitting next Tuesday. If nothing else, the President ought to maintain an air of impartiality in the execution of his official duties. But then again, this president has exhibited an unprincipled ignorance of our Constitution, when not treating it with outright contempt.
Monday, October 27, 2008
Wednesday, October 15, 2008
Your Highness, the President of the United States
George W. Bush--or whoever whispers in his ear--continues to issue signing statements declaring his ability to dispense with certain sections of laws. I have blogged about this in the past. What Bush has clearly done is create a precedent which, for better or worse, is now part of the official record.
The dispensing power in executive authority is not new. James II claimed it in 1685 when he became King of England. Parliament called him to account by ousting him from the throne. The resulting constitutional settlement--the Glorious Revolution of 1688-89--crimped executive royal power for good.
The president is, in many ways, an elected king. The president wields a powerful veto on legislation, commands the armed forces, and directs the execution of our nation's laws. We have seen the powers of this office grow in the twentieth century. The president now commands armies in peacetime as well as in war, and sets policy and often times the agenda for Congress. If the president can add to his list of powers the ability to dispense with parts of laws, we may have moved backward in time to the seventeenth century conception of a monarchy.
We are watching constitutional change in its incipient form. The signing statements have not the force of law unless courts begin accepting them as authoritative. The next president has not yet been elected, so we do not know if the practice will die away or continue unabated.
So, stay tuned.
The dispensing power in executive authority is not new. James II claimed it in 1685 when he became King of England. Parliament called him to account by ousting him from the throne. The resulting constitutional settlement--the Glorious Revolution of 1688-89--crimped executive royal power for good.
The president is, in many ways, an elected king. The president wields a powerful veto on legislation, commands the armed forces, and directs the execution of our nation's laws. We have seen the powers of this office grow in the twentieth century. The president now commands armies in peacetime as well as in war, and sets policy and often times the agenda for Congress. If the president can add to his list of powers the ability to dispense with parts of laws, we may have moved backward in time to the seventeenth century conception of a monarchy.
We are watching constitutional change in its incipient form. The signing statements have not the force of law unless courts begin accepting them as authoritative. The next president has not yet been elected, so we do not know if the practice will die away or continue unabated.
So, stay tuned.
Sunday, October 12, 2008
Legal Theory and Cosmopolitanism: Identity and Its Discontents
“And when one day our human kind becomes full-grown, it will not define itself as the sum total of the whole world's inhabitants, but as the infinite unity of their mutual needs.”
- Jean-Paul Sartre
The philosophy that led sociologist C. Wright Mills to his many insights of American life in the first half of the 20th century was arguably his belief in the Sociological Imagination.—The practice of tying the individual experience with institutions and a focus on the relationship between biography and history to bring about a fuller understanding of the individual and/or the society which she is a part of. To be sure, this notion of attaching the concept of empathy to distant individuals to bring about organic understanding is not particularly new, though perhaps forgotten in our times of curious contradiction.
Historian Lynn Hunt argues that the epistolary advent of the novel in the 18th century had physical effects (citing Richardson’s Pamela and Clarissa and Rousseau’s Julie) which created new concepts on the organization of social and political life. It is with these broadening feelings of empathy that feelings or rights in our time have grown to become largely “self-evident.” Prior to the beginning of the epistolary novel, Dr. Hunt argues, attention hadn’t been focused on how individual minds understand and reshape social and cultural contexts.
Reaching further back still, Roman Emperor Marcus Aurelius, last of the “five good emperors”, starts his Meditations (originally written as entries in a personal notebook) by listing all the people whom he learned something worthwhile from: “From my father I observed mildness of temper and unchangeable resolution in the things which he had determined after due deliberation….” Above all, perhaps, Aurelius’ Mediations are replete with the finite nature of human life and the infinite nature of the universe. When one realizes this cosmology, Aurelius argues that the proper course one should take is the labor to common interest and to value everything with just reference to the whole. Since his death in 180 AD, the Meditations have been read and have influenced millions of people including Chinese Premier Wen Jiabao.
I briefly cite these examples (with an admitted bias to Marcus Aurelius) to show that examining the relationship between the individual and society has brought tremendous insight and principles of advancement through human history—particularly in the rights and privileges we all know and experience on some level today. In many ways, our Arts and Humanities education is directed to studying or at least developing concepts which enable us to think about others. Our economy, as we are seeing, is inextricably tied to those of other countries as we share in the weal and woe of development, coexistence, and stability.
There is much to be said about this concept of empathy and the recognition of the dynamic biographical history of individuals in relation to the socio-cultural contexts in which they live—particularly if there have been instances overtime that have led to a leveling of society which benefits all. In attempts not to lineate the many facets and forms of empathy that exist, there are institutions such as the legal and its schools of thought that arguably, in their attempts to discern by ascribing a theoretical equality of all individuals, disregard or singularize the individual experience in relation to socio-cultural history. In order to further carry my position, I will be citing Eric A. Posner’s essay analyzing Boumediene v. Bush, “Boumediene and the Uncertain March of Judicial Cosmopolitanism.”
In Boumediene v. Bush, the Supreme Court held that noncitizens detained at Guantanamo Bay have the constitutional privilege of habeas corpus and that the review procedures established by the Detainee Treatment Act do not provide a sufficient substitute for habeas corpus. Posner argues that Justice Kennedy’s opinion (which he wrote for the majority) is largely due to a commitment to protecting the interests of noncitizens overseas—a commitment he calls “judicial cosmopolitanism.” Posner’s conclusion and critique of Justice Kennedy rests on the idea of an American political community of which people outside are denied certain rights. This harkens back to a disagreement I have with many ideal theorists (mainly Rawls) whose conception of a political community rests on a closed state that one is born into and can never leave. Furthermore, he cites logistic difficulties in granting habeas corpus rights dealing with cost, difficulty, and a dangerous setting for the military to comply with requirements of a habeas hearing.
Posner argues that Justice Kennedy places all weight on the logistical concern and perhaps none on the political community concern. While the case against a logistics argument is admittedly weak as stated by Posner (since Guantanamo Bay is about 500 miles away from Florida), Justice Kennedy notes that the habeas court will give deference to the government where deference is justified and the argument that habeas hearings are logistically unreasonable is, until experience proves otherwise, foreclosed. Posner then further criticizes Kennedy for not taking the “natural” assumption that “nonresident aliens just don’t have the rights Americans have.” Which almost begs the question, just what is an “American right” and what makes it so exclusive that all should not possess them if our goal in the legal system is to distinguish truth and fairness from fallacy—particularly in a time where crimes are committed against America are coming from those all over the world?
His conclusion for Justice Kennedy’s reasoning?
…Justice Kennedy is a Cosmopolitan.
Here, by Posner, and taken in a similar route by Rawls and others, we have the curious avenues one can take to articulate theories of justice. By taking the identity of an individual and her place in society and either disregarding it and placing them in an either/or situation so long as rights are concerned, as Posner does, or singularizing them (as with Rawls) by limiting the individual to a closed society and only able to belong to that community, we have curious makings of a habit of unwillingness to deal with human complexity. If we are to uphold a just and fair legal system in a post 9/11 world where even our presidential candidates are being called terrorists by fellow citizens, while our government sends billions for oil to many people who would do us harm, and where labeling carries a certain disregard for and singularizes identity. It is becoming clear in more ways than one that our current conceptions of human ecology and identity may not serve us justly for the future.
Saturday, October 11, 2008
An Open Letter to John McCain
Dear Senator McCain,
I understand in recent weeks that your campaign has come on hard times. I understand it must be frustrating to find a ten-year quest for the White House—what was clearly a lifelong ambition on your part—impeded by a relative newcomer with whom you have serious philosophical disagreements. As such, I understand why you have abandoned promises to make this election about ideas and policies and instead committed the kind of character assault that was used so successfully against you in 2000. Such turns are, however regrettable, to be expected in electoral politics. We can trace such history back to our first seriously contested presidential election in 1800. They are nothing new, and simply a part of democratic politics, however ugly.
I write this with a somewhat heavy heart. I have blogged in support of your kind of conservatism in the past—you are one of the last Republicans left in the party with whom I felt kinship. I was excited about campaign in 2000 and have deeply lamented in the last years that we have lived with a Bush rather than a McCain White House. I have even been willing to accept your genuflection to the radical right. I wrote this off as the kind of coalition building necessary to generate a majority rather than a compromise of your principles. I was elated when you won the Republican primary because I believed it a victory for the decency wing of the Republican Party.
Nonetheless, nothing can justify the behavior of some of the people in your rallies who have, in reference to Obama, shouted such things as “Traitor!” “Terrorist!” and “Kill him!” Your campaign has now released several statements defending these incendiary words, rather than distancing you from them.
Character assaults, however petty, may be justified as political necessity. But to countenance calls for murder is unconscionable. We live in an age where the possibility of political violence in the form of terrorism exists everywhere in the world. It is, as many have suggested, our greatest challenge. We may not be able to extinguish political violence in our time—such thought is of course Pollyannaish—but we can at least take a principled stand on the matter. You should. I urge you to be uncompromising on this matter, to reject such comments from even your supporters. It would set the right tone in an uncertain age.
I don’t know if these suggestions are politically intelligent, or would resonate with voters, or help you in swing states. I am not a political strategist. But I believe the moral principle here more important for our future than the tactics you employ to win an election. After all, doesn’t country come first?
With respect,
H. Robert Baker
I understand in recent weeks that your campaign has come on hard times. I understand it must be frustrating to find a ten-year quest for the White House—what was clearly a lifelong ambition on your part—impeded by a relative newcomer with whom you have serious philosophical disagreements. As such, I understand why you have abandoned promises to make this election about ideas and policies and instead committed the kind of character assault that was used so successfully against you in 2000. Such turns are, however regrettable, to be expected in electoral politics. We can trace such history back to our first seriously contested presidential election in 1800. They are nothing new, and simply a part of democratic politics, however ugly.
I write this with a somewhat heavy heart. I have blogged in support of your kind of conservatism in the past—you are one of the last Republicans left in the party with whom I felt kinship. I was excited about campaign in 2000 and have deeply lamented in the last years that we have lived with a Bush rather than a McCain White House. I have even been willing to accept your genuflection to the radical right. I wrote this off as the kind of coalition building necessary to generate a majority rather than a compromise of your principles. I was elated when you won the Republican primary because I believed it a victory for the decency wing of the Republican Party.
Nonetheless, nothing can justify the behavior of some of the people in your rallies who have, in reference to Obama, shouted such things as “Traitor!” “Terrorist!” and “Kill him!” Your campaign has now released several statements defending these incendiary words, rather than distancing you from them.
Character assaults, however petty, may be justified as political necessity. But to countenance calls for murder is unconscionable. We live in an age where the possibility of political violence in the form of terrorism exists everywhere in the world. It is, as many have suggested, our greatest challenge. We may not be able to extinguish political violence in our time—such thought is of course Pollyannaish—but we can at least take a principled stand on the matter. You should. I urge you to be uncompromising on this matter, to reject such comments from even your supporters. It would set the right tone in an uncertain age.
I don’t know if these suggestions are politically intelligent, or would resonate with voters, or help you in swing states. I am not a political strategist. But I believe the moral principle here more important for our future than the tactics you employ to win an election. After all, doesn’t country come first?
With respect,
H. Robert Baker
Friday, October 3, 2008
Palin, Biden and what does a constitutional office entail, anyway?
Palin and Biden did as expected. Both were feisty, Biden tried his best not to be condescending, Palin offered up lots of facts and figures to indicate she is fit for national office, and the two clashed on substantive issues. They also clashed on one constitutional issue: the position and role of the vice president.
The question came long into the debate, when both candidates appeared fatigued. Palin had just explained her understanding of the role of vice-president in relation to the president. McCain has already signaled, apparently, that she would head up energy policy and "reform of government over all" and working with families with special needs. Biden answered that he was a man of independent judgment, but that he was working for Barack Obama.
Gwen Ifill, the moderator, then asked a question which appeared to be something like a spontaneous follow up. (Here's the transcript I'm working with, by the way). "Governor, you mentioned a moment ago the constitution might give the vice president more power than it has in the past. Do you believe as Vice President Cheney does, that the Executive Branch does not hold complete sway over the office of the vice presidency, that it is also a member of the Legislative Branch?"
This gets to the crux of the issue. And while both candidates have doubtlessly been boning up on policy subjects, this straying into a constitutional matter may have tested their substantive understanding of the Constitution. It is an important question, given that the officer we ultimately elect is not just a policy wonk, but someone charged with defending and protecting the Constitution. Here was Palin's answer:
Biden's response was emphatic. He rejected Vice President Cheney's interpretation of the Constitution as dangerous. He then gave a somewhat confusing answer about where the vice president's office is defined in the Constitution, citing "Article I" but saying it is an executive office. If I followed him correctly, he was saying that Article I only gives the VP one role when he presides over the Senate, and that is to cast a vote in the event of a tie.
At this point, I wish Biden had tried to pin down Palin. He studiously avoided doing anything that would come off as condescending (possibly to avoid cries of sexism). This may have been a good political move, but someone needed to get Palin to answer the question: do you believe, as does Cheney, that the office of Vice President is not under the sway of the executive? That it is an independent office that exists neither in the executive or legislative branches?
I have blogged in the past about my concern over McCain's selection of Palin. VPs are usuallly ciphers, but given McCain's advanced age and 100 plus pages of medical report, Palin has to demonstrate she is ready. She has given a series of shaky interviews in the past few weeks suggesting that she is out of her depth on the national stage. Now, in the only part of the debate that asked the candidates to display a substantive understanding of the Constitution, she has stumbled again. She is not yet "a heartbeat away from the presidency." But if she someday is, then my only advice: be afraid.
The question came long into the debate, when both candidates appeared fatigued. Palin had just explained her understanding of the role of vice-president in relation to the president. McCain has already signaled, apparently, that she would head up energy policy and "reform of government over all" and working with families with special needs. Biden answered that he was a man of independent judgment, but that he was working for Barack Obama.
Gwen Ifill, the moderator, then asked a question which appeared to be something like a spontaneous follow up. (Here's the transcript I'm working with, by the way). "Governor, you mentioned a moment ago the constitution might give the vice president more power than it has in the past. Do you believe as Vice President Cheney does, that the Executive Branch does not hold complete sway over the office of the vice presidency, that it is also a member of the Legislative Branch?"This gets to the crux of the issue. And while both candidates have doubtlessly been boning up on policy subjects, this straying into a constitutional matter may have tested their substantive understanding of the Constitution. It is an important question, given that the officer we ultimately elect is not just a policy wonk, but someone charged with defending and protecting the Constitution. Here was Palin's answer:
Well, our founding fathers were very wise there in allowing through the Constitution much flexibility there in the office of the vice president. And we will do what is best for the American people in tapping into that position and ushering in an agenda that is supportive and cooperative with the president's agenda in that position. Yeah, so I do agree with him that we have a lot of flexibility in there, and we'll do what we have to do to administer very appropriately the plans that are needed for this nation. And it is my executive experience that is partly to be attributed to my pick as V.P. with McCain, not only as a governor, but earlier on as a mayor, as an oil and gas regulator, as a business owner. It is those years of experience on an executive level that will be put to good use in the White House also.Huh? I'm not sure which founding father deserves credit for imbuing the office of vice president with "flexibility," but I'm sure he would be surprised to find this out. Of course, invoking the "wisdom" of the founding fathers is always a more political than intellectual argument, and as such we should not take that so seriously. In truth, Palin did not answer the question. This is a dodge that has become typical of her when she is cornered--she meanders, then tries to say something about her experience as a mayor or a mother. In this case, she went with mayor/governor, to highlight "executive" experience.
Biden's response was emphatic. He rejected Vice President Cheney's interpretation of the Constitution as dangerous. He then gave a somewhat confusing answer about where the vice president's office is defined in the Constitution, citing "Article I" but saying it is an executive office. If I followed him correctly, he was saying that Article I only gives the VP one role when he presides over the Senate, and that is to cast a vote in the event of a tie.
At this point, I wish Biden had tried to pin down Palin. He studiously avoided doing anything that would come off as condescending (possibly to avoid cries of sexism). This may have been a good political move, but someone needed to get Palin to answer the question: do you believe, as does Cheney, that the office of Vice President is not under the sway of the executive? That it is an independent office that exists neither in the executive or legislative branches?
I have blogged in the past about my concern over McCain's selection of Palin. VPs are usuallly ciphers, but given McCain's advanced age and 100 plus pages of medical report, Palin has to demonstrate she is ready. She has given a series of shaky interviews in the past few weeks suggesting that she is out of her depth on the national stage. Now, in the only part of the debate that asked the candidates to display a substantive understanding of the Constitution, she has stumbled again. She is not yet "a heartbeat away from the presidency." But if she someday is, then my only advice: be afraid.
Friday, September 26, 2008
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.
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.
Thursday, September 18, 2008
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.
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.
Monday, September 15, 2008
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.
It feels good to take a breather from the madness.
Sunday, September 14, 2008
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.
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.
Thursday, September 4, 2008
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...
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