Judges, "Conservatives", and the "Gang of 14"

John McCain, it comes as no surprise, is still having trouble with conservatives. Given his own conservative stances--which always take a hard-right turn close to election time--it is a little surprising that the right wing of his party is so concerned. Ann Coulter, Rush Limbaugh, and other media clowns aside, there are serious reasons for the senator to worry that he will not be able to corral the base of his party for the November elections.

We might reduce the entire question to one of judges. For the self-styled, capital "C" conservatives in the Republican Party, the issue of what judges has become paramount. McCain has earned conservatives' distrust primarily because of his membership in the "Gang of 14," a bipartisan Senate clique that sought compromise in the growing crisis over George W. Bush's judicial appointments. Stonewalling appointments--nothing new, by the way, and a tactic of the Republicans during Clinton's administration--led Republicans to threaten to change the Senate rules. Current rules require a vote of 60 Senators to agree to stop debate before voting to confirm or deny a presidential appointment. Such rules guarantee that the minority party is not shut out of the process of giving "advise and consent" during the nomination process. Dubbed the "nuclear option," the rule change would have forced an up or down vote on any nominee by the president. It would have had the effect of greatly speeding up the judicial nominating process, provided that the same party (and presumably the same factions within that party) controlled the Senate and the Presidency. The Gang of 14 made the political bargain. Agree not to nominate anyone too radical, said the Democrats, and we will make sure you have the votes to get the nominee to the floor. McCain and other Republicans said fine. The deal was struck, the nuclear option was taken off the table, and two of the most conservative men ever to sit on the Supreme Court were successfully nominated and approved.

It was hardly a Faustian bargain, but conservatives have regarded McCain with suspicion ever since. Whether this is justified, even from a radical conservative viewpoint (as opposed to a principled or pragmatic one) is up for debate. Whether it proves detrimental to McCain's bid for the presidency remains to be seen, but it seems fairly clear that the "base" of the republican party feels betrayed, left out in the cold, and most likely won't venture out to the polls this year, at least not in the numbers that they did when Karl Rove cajoled them to come out and vote for W.

Buried beneath this story of coalition building with in the two-party system is an extraordinary assumption: that judges truly are the most important officers in our republic. They have, of course, always been important. But is it so important that McCain has to send up signal flairs (Ted Olsen is his new best friend, e.g.) and drop a whole constituency come election time? Maybe so.

Historically, judges have wielded tremendous power, but not over the kinds of subjects that conservatives are now concerned with. First and foremost in the minds of today's religious conservatives are questions about the separation of church and state (establishment clause) and abortion. But these are not issues resolvable in the courts, regardless of the will of the justices or, for that matter, the original meaning of the Constitution.

The real question, it seems, is precisely what difference judges can make in everyday issues.
Throughout most of our history, judges have been conservative bulwarks against radical political change. This was true even when they were actively ruling in favor of corporate and industrial America's expansion and declaring trade unions illegal in the late-nineteenth century. It will doubtless remain true into the next century.

From this standpoint, McCain's position in the "Gang of 14" should not be a liability. It was an old fashioned conservative compromise, one that preserved the existing rules, took account of
minority views, and resisted the kind of radical shift in politics that might destabilize politics permanently.

Hardly a thing, in other words, that would upset true conservatives.

Preemption and the Health, Welfare, and Morals...

There is good reason to wonder about what drives the Supreme Court's thinking about the issue of preemption. Briefly, preemption is about federalism and suggests that powers assigned by the Constitution to Congress necessarily preempts a concurrent power in the states. The first significant case concerning this arose in Sturges v. Crowninshield in 1819. In that famously big term (think McCulloch v. Maryland, Dartmouth College v. Woodward), John Marshall helped empower the U.S. government over that of the states, thus giving judicial sanction to questionable congressional legislation and restricting the power of states over corporations. Although by far the most equivocal of the opinions, Sturges contained the seeds of the powerful doctrine of preemption. This would have far reaching consequences beyond those presented by the bankruptcy statute in question in Sturges.

This might seem just a matter of historical curiosity, but it is not. Preemption has been at issue in a number of cases in the twentieth century, and is front-and-center in the case of Warner-Lambert Co. v. Kent, which is to be argued on Monday, February 25. The issue is tort liability and whether the state of Michigan can pass laws allowing state residents harmed by pharmaceutical companies to sue them in state courts. They do so to protect state residents (claim the states) even though drugs have been approved by the Food and Drug Administration. In order to get into court, the plaintiffs must prove a "fraud on the FDA." Pharmaceutical companies have argued (successfully in the past, particularly in Buckman Co. v. Plaintiff's Legal Comm.) that such liability claims conflicted with federal law and were thus void.

There are several collateral issues here that are worth attention. The first has to do with whether the states possess authority to protect their residents' "health, welfare, and morals," (the police power, traditionally) or whether such power has been surrendered to the federal government. The Tenth Amendment would suggest not, but modern constitutional law has not been kind to such claims.

In a complicated federal system, preemption is a major issue. In this case, it does not appear that the Michigan statute will stand, although the respondent in the case (plaintiffs in the original case) plead that Michigan will probably repeal the statute anyway, and as such the Supreme Court should not get involved. Nevertheless, the current Supreme Court is not made up of members who have been particularly kind to the over-assertive federal government. It might well be worth watching what the Court does in this little-noticed case.

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.