and now, the superdelegates

The Democrats survived Super Tuesday, or at least Obama did. The party higher ups are clearly chewing their tongues over the possibility of a divided convention, which could spell disaster for the November elections. Possibly no one expected Obama to come out ahead in the delegate count after February 5, and he now has a clear lead.

Which means, oddly enough, that he won't get enough to win the nomination. It has become apparent that the arcane rules for deciding the nomination will leave the superdelegates with the deciding votes. The superdelegates are the party officials--members of Congress, state party chairmen, members of the national committee, and major leaders. There are 796 of them in all, and many have already "pledged" one way or the other their support.

They are not, however, bound by such pledges. Unlike the elected delegates, the superdelegates are not bound even by their own word. They are, after all, politicians. A few have been known, over the years, to change their minds on certain important subjects.

Since this block of 796 delegates hold the key to power, the question is who gets the superdelegates and why? Conventional wisdom would give the Clinton machine the edge. They have the party apparatus and webs of loyalty that suspend many in their net. And even Chelsey Clinton is making campaign calls (most famously, to the women on the View).

But there are good reasons to think of Obama as having the advantage. It is possible that his steamrolling campaign will convince many superdelegates that he is the best shot for president in 2008. He is, after all, the only fresh face in this entire field (Huckabee may protest now). His momentum is undeniable. His fundraising abilities remarkable. Hillary, after all, is busy lending her campaign money.

So what factors really will determine the superdelegates' loyalty? I think the answer may be more cultural and public than Washington insiders would like to believe.

Signing Statements, National Security, and Article II

As the debates rage on between the Republican candidates at the Reagan Library, few people have taken note of the president's recent signing of the National Defense Authorization Act (H.R. 4986). Bush issued a signing statement as well, noting that:

Provisions of the Act, including sections 841, 846, 1079, and 1222, purport to impose requirements that could inhibit the President's ability to carry out his constitutional obligations to take care that the laws be faithfully executed, to protect national security, to supervise the executive branch, and to execute his authority as Commander in Chief. The executive branch shall construe such provisions in a manner consistent with the constitutional authority of the President.

You can find a detailed description of these sections here, on Balkinization. In perusing the statute and signing statement, I found two potential sources of conflict. Section 841 would require the Department of Defense to turn over documents to congressional commissions investigating fraud and corruption in the Iraqi war. Given the amount of fraud and waste already demonstrated in the conduct of the war (and this must be true any time billions are appropriated with little or no oversight), it may not be an unreasonable request. But it could lead to juicy conflicts later on.

Far more interesting is Section 1222, which does not allow money to be allocated to the building of permanent bases in Iraq or to control Iraqi oil. This seems an almost meaningless prescription (who defines what a permanent base would be?) but does appear to be an attempt by Congress to set some limits on the conduct of our engagement in Iraq. Whether such limitations are constitutionally acceptable after Congress voted the AUMF in 2003 is debatable. But whether the President can sign it into law and then dispense with this portion of it ought to be settled by now.

Will the next president issue signing statements that take issue with constitutional aspects of congressional law? This could well be a precedent in the making, and a powerful one at that.

Bill of Rights vs. Constitution

James Madison’s claims against the Bill of Rights cannot be denied. He was fearful that the Bill of Rights would enable state governments to misuse people’s rights to some extent. He supported his claim by describing facts that proved state governments in fact manipulated, altered or omitted some rights at some time. James Iredell, a framer, said that declaring some rights would limit people’s access to other rights and they may even trigger people’s desire to exercise rights they are not entitled to. Madison repeatedly claimed that the Republic of the United States would never betray the interests of the general people.

However, if people’s rights had not been declared through the Bill of Rights or Amendments, the national government would have the full authority in terms of determining people’s rights. Power is a strong force. Jefferson feared that if power would lie on one side and if its limit was not clearly defined, people's rights could be twisted and turned at any time. He indicated that if obstruction or omission of people’s rights would not have occurred during Madison’s time, it could occur at a future time. So it was definitely a wise idea to secure them in writing through the Bill of Rights or amendments. Jefferson agreed that some rights were omitted or denied to people by some state governments though they were clearly declared in the Bills of Rights. But he claimed that in most instances, they played a significant role in protecting people’s majority of the rights. For that matter, the nation is so much indebted to Thomas Jefferson’s great saying “half a loaf is better than whole bread.”

The American nation must also not forget the Madison’s contribution in forming the national Constitution; a great piece of national legal guide which is the thoughtful cultivation of many wise leaders. It is not the Constitution itself; the ambiguity of some of its notions makes it questionable.

James Madison’s decision to omit the Bill of Rights to the Constitution is a controversial issue. So much can be argued and written on this subject. It can also be interpreted in many different ways. The fact that his decision did not live up till the end and some rights had to be declared through the Amendments somewhat undermines the validity of his argument. The declaration of rights after all may even lead some of us to judge his view point against the Bill of Rights to be impractical or even arbitrary.

How could Madison think that the Constitution alone would be sufficient to secure people’s rights when a bill of right along with a constitution could not guarantee people’s rights fully in some states? I assume he was referring to the uniformity, uniqueness, and quality of its contents. How about the ambiguity that lies in it? Did Madison think about that?

Bill of Rights vs. Constitution

My questions and curiosity have derived from our discussion of the book by Rakove last week. I know the author has supported his argument with adequate facts and analysis, but I am just trying to get clarification on the Framers' reason to refuse to include a Declaration of Rights. I see the conflict of interest on both sides: Anti-Federalists wanted the Declaration of Rights and Federal Government staunchly held on to the idea of leaving the question of legitimacy of the Bill of Rights to the Constitution aside as long as they could. I can see why Anti-Federalists demanded their rights be declared; they wanted to secure them in writing. Why would they not? Even after the rights have been declared, there is so much obscurity in some of them which allows twists and turns of legality to deprive people from exercising those entitled rights fully even today. Such obstacles and barriers make me think how it would be like if the rights had not been declared through the Amendments to the Constitution.

My next objective goes back to my initial question: what exactly motivated framers to push away the Bill of Rights? Were they afraid that if the rights had been declared explicitly, people would misuse them? What did they mean by declaring some rights in the Constitution and leaving out the others? I think it was a form of diplomacy; one of those tricky techniques of political realm by which rights and privileges can be given and taken in the name of so called legitimacy, timing, situation or the availability of sources needed to implement necessary measures to protect people when they need protection. How do we interpret the framers' refusal to declare people’s rights?

Comment on Excluded Wisdom and Transformational Moments

Considering the facts you described, I am interested in learning where does the effectiveness of our Constitution lie? If President Bush can bypass the congressional doctrines to declare war against other countries and if he can take wiretapping measure to record people's conversations or comments, where do such actions lead us? I think such obstruction of power throws us back in the old English age to some extent when kings could overthrow parliamentary rules whenever they wanted to. What do you think? If Hillary and Obama are already busy attacking or criticizing each other rather than focusing on the real issues, what does it say about our future? I see less hope for any big changes. But again, I am trying to remain optimistic; hopefully, things will change for better. I would very much assume whoever wins the election will concentrate on abiding by the constitutional laws after all! And as far as the idea of forming a one party state is concerned, I hope that will happen too!

Excluded Wisdom and Transformational Moments

Allow me, if you will, to build on a post by another one of our bloggers (Donovan). His invocation of W. E. B. DuBois provokes one immediately to think about the many strands of thought that that American genius (expatriate, of course, in the end) wove together to fashion both political action and social criticism. DuBois's greatest trait, it seems to me, was his ability to fashion from many academic disciplines a sense of both wisdom and justice that he took very seriously. It is a point that we ignore at our peril, particularly when the dogs of political war begin barking about *meaningless* things like experience. It is, I surmise, much like the call for "change" in politics--a truism that means everything and, thus, nothing.

But it does raise an important point about the poverty of our current political discourse. Hillary Clinton's attack of Barack Obama's record on exceedingly frivolous grounds during Monday's debate (January 21) revealed both just how much is at stake in the Democratic primary, and how unwilling candidates (including, sadly, Obama) are unwilling to make a real statement about issues. This is sad for us, although we do little to help it by continuing to patronize the cable news networks that have made hash of journalism rather than augment our political intelligence. Perhaps only a mass boycott would change this--or perhaps more people consciously turning to intelligent news sources. This seems unlikely at best, and perhaps dangerously naive.

But I digress. The poverty of television journalism in the cable era is nothing new to Americans reared in the late-twentieth century. More important is perhaps that the internet has actually provided a forum whereby people can demand the kind of intelligent commentary that befits a widely educated population. We have opportunities, both through blogging and other means, to discuss how we see the issues and how we see presidential candidates (in both parties) addressing them.

As an historian, I am excited about the possibilities for the 2008 election. The Bush administration effected a constitutional coup in executive power (signing statements, warrantless wiretapping, going to war virtually without congressional permission, etc.) but has failed to create a one-party state the way Karl Rove envisioned. This simultaneous success and failure means that the next president will have a tremendous opportunity to reconstruct the presidency. This may mean that we continue down the path of increased executive power, or it may mean a reversion to a more balanced constitutional system. This is but one of the many issues that may be decided by our choice for president this year.

Excluded Wisdom

It isn’t too often that we can peer back into history and find an instance that captures the zeitgeist of our current situation. 1920 and 2008 seem too far away to bear much, if any influence upon each other. 88 years, about two generations and a host of social and political changes have occurred since the early 20^th century—some would even argue that one is the antithesis of the other. Watching the democratic candidates for presidency amidst their splendors and squalors, blindness and insights, affections and incipience, stirred not disgust or some form of partisan (racial or otherwise) fervor within me but the question of how far America is willing to trust the minds it has trained and the promises to uphold democracy that it professes to itself and the world?

With the frontrunners of the Democratic Party, Senators Obama and Clinton, the country and the world has rare opportunity to see the abstraction of democracy inch closer to its theoretical promise more so than ever before. In 1920, W.E.B. Du Bois published Darkwater within which was a chapter entitled “On the Ruling of Men” where he highlighted a peculiar dichotomy of the history of democracy—one which we can see manifest between the two democratic candidates that the light of democracy shines brightest upon today.

Today we are hearing Experience should be the prerequisite in the governing of people. We are also hearing that Judgment is what counts most. We almost forget that not too far from yesterday it was only free white men with property that could at least vote and at most dare to hold office—this seemed to be the guise of yesterday’s democracy—limiting the scope in debated issues and leaving the rest not heard, but spoken for. Today’s democracy and its future arguably rests upon what W.E.B. Du Bois elegantly describes in his 1920 work as “excluded wisdom”. To make experience a qualification for the franchise (as he calls it) would stop the spread of democracy and make political power hereditary, a prerequisite of a class, caste, race or sex.

In every modern state and in every generation, voting cycle and those who want to head the franchise, there must be those who many think are inexperienced and undeserving as well as those who think lack proper judgment that head to the voting booths and stand on the national pulpit and must experiment in various methods in solving problems. Thus and only thus, Du Bois says, will civilization grow.

Establishment and Religious Tests

It's now old news, but Mitt Romney's peculiar speech about his religious orientation and the American constitution deserves analytical attention. (View the speech here on Youtube.) Rhetorically, Romney achieved brilliance several times. For instance, Romney pointed out the Founders' insistence on religious freedom for the sake of religion and inverted it immediately, suggesting that religion cannot survive without freedom means that freedom cannot survive without religion. Whatever one thinks of this proposition, one must admire the ease with which it rolled off Romney's tongue.

Many before me have commented on Mitt Romney's speech and its relationship historically to John F. Kennedy's speech on the same subject, given at the same comparative time in their candidacies. Gary Wills wrote an incisive essay on it for the New York Review of Books. I do not wish to comment again on the rather tired, albeit imporant, issue of religion in modern politics. Nor do I want to comment on Romney's generic religious comments ("I believe in Jesus Christ"; "my religion is the religion of our fathers"; etc.). These are well-worn subjects that have received enough attention from intellects more formidable than my own.

Instead, I want to address the question of religious pluralism, secularism, and its place in constitutional history. Romney mentioned more than once that the Founders forbade religious tests (Article VI, if anyone cares to look) but he suggested in virtually the same breath that the Founders did not want to remove religion from public life. God should be on our currency, said Romney, in our pledge of allegiance, and nativity scenes in the public square during Christmas season. Those who argue otherwise (one would assume this includes Supreme Court justices), opined Romney, are intent on establishing the "religion" of secularism in America, and are wrong.

There is evidence aplenty of religion and its place in both the legal and constitutional traditions of America. But understanding this history requires something more than collecting armfuls of quotes about it from the eighteenth century and heaping them upon people of the twenty-first century. To understand what the Founders achieved when they wrote a Constitution that does not mention God once (much criticized at the time), when the only mention of religion was that no religious test could be required for officeholding, and an immediate amendment to that Constitution forbade the congressional establishment of an official religion, we must understand the larger historical context.

It is a long and complicated history. One must consider the advent of religious pluralism brought on by the protestant revolt in the sixteenth century, the wars of religion in Europe ended by the Treaty of Westphalia, and the motivations for the religious radicals (Pilgrims and Puritans) who attempted to establish a godly commonwealth--a shining city upon the hill--in North America. These people, our forebears no doubt, banished heretics, executed witches, and attempted to limit the suffrage to people of their church only. Religious radicalism and intolerance is part of their heritage. But so too must we understand the equally radical experiment of Roger Williams, who established the first official colony that disestablished the church and allowed freedom of conscience. (Click here for a link to the colonial charter.) Rhode Island was not unique, though. Pennsylvania would follow in the tradition of religious freedom and create one of the wealthiest shelters for religious refugees in the world.

And the Atlantic world to which the American colonies belonged was not one of increasing tolerance in the eighteenth century. The European Enlightenment occurred against the backdrop of political tyranny and religious persecution. Tolerance was on the wane, and even England maintained religious tests for officeholding. It was in this climate that the Founders wrote the Constitution and the people of the states debated it.

Romney acknowledged this history in his speech. Remarkably, he connected Christianity to a kind of modern cosmopolitanism. He emphasized the brotherhood of all humankind, a commitment to human dignity, and respect for others' belief as the central tenets of all religion. These are essentially humanist values, regardless of what Romney thinks of secularists. But the real question raised by his speech is what precisely we would like the relationship of church and state to be in this country. Romney is essentially pitching for more outward shows of piety by our public leaders. He is also positing that political liberty requires religion for its sustenance and that secularism is not a belief system equal to those of Christianity, Judaism, Islam, or Mormonism.

Whatever one makes of this last proposition, it is worth thinking the question through historically. Religious radicalism is infused in our past, as is a contradictory commitment to pluralism and (contra Romney) secularism. Understanding the moments of conflict between these different visions in our past might clue us into understanding precisely what problems religion and politics pose in our country and abroad. It might even give us the needed perspective to address these same problems.

human rights and constitutional conundrums

Consider the following hypothetical scenario: A senior intelligence officer is informed that the CIA has established secret prisons abroad that are holding suspected terrorists. He is further informed that the CIA (with the indirect blessing of the Bush administration) has decided to use waterboarding and other methods commonly deemed to be torture in the process of
interrogation. That same senior intelligence officer is then called on to testify to Congress in closed hearings. Under oath, that officer then reveals this information. The senior intelligence officer also intimates that he cannot reveal such knowledge publicly because it would violate federal law (as in publishing state secrets). Those congressmen and senators had themselves signed a secrecy pledge thus binding themselves not to reveal sensitive information. Should a senator or congressman in possession of such information blow the whistle anyway? Would they risk jail time for doing so?

It would certainly raise an interesting constitutional question. Article I, section 6 grants freedom of speech for national legislators, and this ought to be protection enough
from political or legal threats (hat tip to Marty Lederman on Balkinization for bringing this discourse.net post to our attention). Precisely what sanctions would a member of Congress face for raising these practices in debate?

The constitutional conundrum, though, is not the real issue. As we lead into the 2008 presidential election, the question of the United States' commitment to human rights will be a central matter, particularly where the rest of the world is concerned. Our candidates (repubs and dems) have erred on the side of jingoistic hysteria and like to rehearse "get tough" speeches and soundbites during the debates. Witness, for instance, the immediate negative reaction to Barack Obama when, in debate, he was asked by Brian Williams what the first thing he would do as president if a terrorist organization attacked the United States. Obama's response--that he would have an emergency response ready so we don't get caught in another Katrina--was deemed weak and offensive.

Outright offensive, however, is the shameless behavior of Mitt Romney. He has suggested in debates that we "double" Guantanamo. Shockingly, he refused to denounce waterboarding as torture. Which brings us right back to where we stand in the presidential election of 2008. Although the corporate American media refuses to address the issue of international human rights, we must as a nation force our presidential candidates to account. It is time, for instance, for the Democrats to state plainly where they stand on these important issues. Hillary Clinton has ducked and dodged the question for too long, as has John Edwards.

We should not forget that elections are themselves constitutional procedures. And that it is elections when the people can speak the most forcefully on particular issues. The elections of 1800, 1828, 1860 and 1936 were all such moments when the people gave voice to a particular constitutional vision. Precisely how we treat 2008 has yet to be determined. Perhaps we need more input and voice from the most important, but most oft forgotten, constitutional actors there are: the People.

Boumediene v. Bush

In what may be the most significant constitutional showdown of the twenty-first century thus far, a number of detainees at Guantanamo Bay are suing out a writ of habeas corpus. The writ's practical suspension in the name of the Bush administration's "war on terror" has been one of the most frightening--and least reported upon--issues alive today in the United States.

The Bush administration argues that habeas corpus simply does not apply to enemy aliens captured on the battlefield. Supporters of the administration point out that there is not a single such precedent in American or British law supporting exactly the fact pattern of Boumediene. Lawyers for the detainees have repeatedly pointed out that this is incorrect, if only because the common law writ of habeas corpus was not traditionally restricted to subjects (or in America, to citizens), and that notions of subjectship were simply not as well articulated as they are today.

The argument is of course much bigger than this. Few supporters of habeas corpus would argue that the writ should extend to the Guantanamo detainees if, for instance, the Bush administration treated them as true prisoners of war and extended them the protections of the Geneva Conventions. Supporters of the Bush administration are also forced to argue that the U.S. courts have no jurisdiction because the United States is not sovereign in Cuba and merely holds a lease for the military base. As absurd as this is on its face, the U.S. Congress has attempted to strip the courts of jurisdiction in these matters, which has subsequently forced great separation of powers questions on the Supreme Court.

Oral arguments before the Supreme Court can be found here. The set of consolidated cases that make up Boumediene v. Bush are well worth listening to and considering as a set of very serious historical problems. How far does the writ of habeas corpus apply? To what extent does the U.S. Supreme Court have the ability to countermand the executive and the legislative branches? And to what extent do political divisions on the court itself reflect different judicial outcomes? Oral arguments before the Court are wonderful ways for the justices to signal each other how they intend to vote and what they intend to argue. What kind of politics do we see here? It is an enormously important question as the imperial presidency rolls onward.

One issue, from a constitutional historian's point of view, is about just how much original meaning is controlling and precisely how it is recovered. One doubts that Justice Scalia's continued refrain "you can't find me one case where habeas was extended to an enemy alien" is relevant. It ignores the development of habeas corpus as a writ and, for that matter, fails to deal with the significant problems of today.