Culture Wars, Oral Sex, and Constitutional Niceties

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

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

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

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

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

Civil Liberties and Obama's Failure

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

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

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

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

Transparency, Executive Privilege, and History

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

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

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

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

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

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

Inaugural Moments

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

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

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

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

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

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

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

Guantanamo Watch

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

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

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

Illinois and the Constitutional Crisis

After more than a one-month hiatus, I hope I can now resume steady blogging. Certainly the Blagojevich nightmare in Chicago is a black stain on democracy. More frighteningly, the oh-so-public release of the wiretap transcripts make us feel as if the skirt has been lifted and we have gotten a peak at the "real world" of bruising democratic politics. After all, it is only the brazenness of Blagojevich that surprises us.

The constitutional issue du jour is whether the Illinois Supreme Court can grant the state injunctive relief and prevent Blagojevich from carrying out his office's duties. In a motion filed with Illinois's highest court yesterday, the attorney general filed a request for a temporary restraining order and/or preliminary injunction. The people, through the attorney general, are claiming that Blagojevich is unable to serve "due to disability and should not rightfully continue to hold that office."

What a fascinating course of action! Of course, even the governor's critics are rather stunned at the idea of injunctive relief being sought against the highest executive officer in Illinois. The motion itself is quite weak, relying on Article V of Illinois's Constitution. Any fair reading of section 5 gives the power to the Illinois legislature. Of course, the supreme court is given exclusive and original jurisdiction in the event that no law is in place, but it is a stretch to consider this carte blanche for the Supreme Court to decide when the governor is fit or unfit to serve.

Commentators are already saying that the Illinois justices are traditionally cautious and most likely will not grant this motion. But then again, courts have done stranger things...

Obama, Security, and Sham History

We live in historic times. Certainly those who felt the power of the long polling lines, the nervous energy, and the spontaneous celebrations across the country on Nov. 4 will remember where they were, what they were doing, at that moment, for many years.

Some would rather these times weren't this historic. Bill Kristol at the Weekly Standard has written a somewhat (less than) generous opinion piece lamenting that more of the country didn't see things his way. He is concerned that we, as a country, are now suddenly at a greater security risk than we would have had a septuagenarian and his girl-novice sidekick been elected.

I grant Kristol his opinion. But his justification comes from a bizarre historical narrative. He suggests that the American electorate has, since WWII, followed a consistent pattern in voting. Republican administrations make us strong and feared about the world, and then we feel happy enough to elect Democratic presidents who muck things up by being soft and squishy.

Consider:

Encouraging Americans' tendency to take hard-won national security successes for granted--once they are won--is the key to how Democrats, in modern times, win presidential elections. Dwight Eisenhower pursued a cautious but not ineffective foreign policy. Voters were unimpressed by the peace and stability of 1960 and chose John Kennedy. Partly as a result of Kennedy's initial weakness, the Berlin Wall went up and the Cuban Missile Crisis followed--and then, partly out of a felt need of Lyndon Johnson's to appear strong, we escalated in Vietnam.

Let us forget for a moment that Eisenhower was elected primarily to extricate America from an unpopular war started by a fist-pounding Democrat, and that Kennedy campaigned as a stanch cold-warrior to the more moderate Nixon. Let us forget that the Soviets did not need anyone's permission to build the Berlin Wall and weren't "waiting around" to do it. Let's keep our eye on the larger narrative. Kristol continues:

The voters elected Richard Nixon to extricate us from the quagmire in Vietnam with honor, which he did, and Gerald Ford attempted to prevent the Democratic Congress from walking away from our ally and our responsibility. Voters decided, however, to give the presidency back to the party of JFK and LBJ--by this time more the party of George McGovern--and we got the Iranian revolution and the Soviet invasion of Afghanistan.

So Americans elected Ronald Reagan and George H.W. Bush, and--stunningly--they won the Cold War virtually without firing a shot. (Bush also drove Saddam Hussein from Kuwait.) Voters were able in 1992 to take peace for granted and to focus on domestic policy. "It's the economy, stupid" was stupid but successful just as its equivalents had been in 1976 and 1960.

Kristol is right that we elected Nixon to extricate ourselves from Vietnam, presumably with honor. He ended up bombing Cambodia. The bombing continued for years before he left with the same terms he could have gotten at the beginning of his tenure as president. Given the recent evidence that Kissenger may have sabotaged the peace talks under Johnson in order to prolong the war for an incoming Nixon administration, the idea of Nixon's failed Vietnam policy amounting to "peace with honor" is something of a joke. The Iranian Revolution occurred--if I read Kristol correctly--because we were not hard enough on Iran? As if the secret police we trained for the Shah and the support we gave him to keep Iran a client state was not enough. Would he prefer we had provided more weapons of repression to that regime? Does he really suppose that the Iranian revolutionaries cared who was president back in the United States? Nor did the election of Ronald Reagan do anything to convince the Soviets to leave Afghanistan. And the USSR's protracted presence in Afghanistan played its part in its own demise--a lesson we may want to take to heart before we jump into any more wars in the name of strength and national security.

What is most disheartening about Kristol's analysis are the assumptions that govern it. Events that occur during a presidency--carefully selected and pruned of any meaningful context--are attributed to the sitting president. One could just as easily construct a counter-narrative which is even more compelling.

Start with World War II, instead of avoiding it as Kristol does. Our Democratic president and his Democratic successor achieved the impossible: getting powerful, industrialized fascist countries to surrender unconditionally. Harry Truman, in his zeal to stop the totalitarian Soviet Union from expanding its reach, combatted communism in Korea. The American people, confident that we were powerful enough to stand some peace, elected Dwight D. Eisenhower. By the end of his term, the Soviet Union had achieved the H-Bomb, was more powerful than ever, and ready to move on Berlin and Cuba. Americans elected John F. Kennedy--a chest-thumping cold warrior--over the more moderate and level-headed Richard Nixon. Kennedy met the Russians face-to-face and took us to the brink of nuclear war in order to defend freedom, including engaging in a hot war in Vietnam. Nixon would be elected in 1968 to extricate us from the war, much as Eisenhower had before him. Nixon ended up pursuing a policy of appeasment with communist Russia and communist China. Reagan's administration fared no better than Carter's, given our meager victory in Grenada and the more substantial embarrassment that was Lebanon.

I could go on, but there is no point. The counter-narrative is just as empty and inspid as Kristol's narrative. I use it only as a heuristic device, and only to demonstrate that Barack Obama's election does not signal that a confident public believes it has been protected by the last administration and now is ready to "take a chance." Many Americans rightly believe that this last, failed presidency has seriously weakened us as a country, that we can no longer defend ourselves the way we might have eight years ago. Kristol's inability to acknowledge this simple truth is, on his part, both an intellectual and a moral failure.

Guantanamo, War, and the Rule of Law

A few reflections on a subject probably not on most people's minds on the eve of the Election: what to do with Guantanamo Bay and the prisoners we hold there. It is of great relief to me that both candidates have signaled their willingness to close Guantanamo and proceed in an honorable and legal fashion against the detainees, which includes releasing those who are not threats and who are held in error. The solution will require some practical policy decision-making as well as principled constitutional action. The most recent test of this is Kiyemba v. Bush, currently before the D.C. Circuit Court of Appeals. I am proud to have joined in an amicus brief supporting the release of the petitioners who--by the administration's own admission--are not and were never enemies of the United States and ought to be released post haste.

Elections are constitutional moments, and 2008 is something special in this regard. But we should not lose sight of the fact that one of the most important constitutional issues of our day was decided in the months leading up to this election, when the Republican Party made John McCain and not Mitt Romney its candidate. Romney, we should recall, promised to "double" Guantanamo. He repeatedly invoked the stark language of "good" and "evil" in his foreign policy discussions. And despite these moral absolutisms, he was not willing to repudiate the use of torture.

One constitutional issue for the electorate to decide has, therefore, been decided already. It is up to all of us now--or at least those of us who wish to see our government restored to lawful, rational, and moral behavior--to hold the next president accountable. Guantanamo must be closed, and the prisoners there either released or charged with crimes.

See you all on the 5th.

Not an endorsement, really...

Students of constitutional history need to monitor the actions of the next president--whomever he may be--over his first six months in office. Both the candidates have signaled their desire to end the executive excesses of the Bush Administration and restore something like dignity to the notion of constitutional government. Given that warrantless wiretapping is still an open issue, Guantanamo Bay remains open, and unaccountable military actions seem the norm these days, it is an enormously important that our next president demonstrate self-restraint. At the same time, the Congress is going to have to grow a pair if it is ever to restore constituional balance to the system. Back when revelations of George W. Bush's mendacity concerning the war in Iraq were coming to light, only Arlen Specter (a republican from Pennsylvania) talked seriously and openly about the possibility of impeachment. It would be nice if Congress prepared to defend its constitutional prerogatives, especially the power to declare war.

Meanwhile, I still harbor tremendous doubts about the Republican choice for President. Sadly, much of this comes from McCain's selection of Sarah Palin, who has now been identified by some as the "hope" of the Republican Party. If this is true, then the Republican Party deserves the drubbing it will receive on November 4. It deserves to become a permanent minority party. As George Will--in something a little more than a statement of good will and a little less than an endorsement of Obama--put it:

Some polls show that Palin has become an even heavier weight in John McCain's saddle than his association with George W. Bush. Did McCain, who seems to think that Palin's never having attended a "Georgetown cocktail party" is sufficient qualification for the vice presidency, lift an eyebrow when she said that vice presidents "are in charge of the United States Senate"?

She may have been tailoring her narrative to her audience of third-graders, who do not know that vice presidents have no constitutional function in the Senate other than to cast tie-breaking votes. But does she know that when Lyndon Johnson, transformed by the 1960 election from Senate majority leader into vice president, ventured to the Capitol to attend the Democratic senators' weekly policy luncheon, the new majority leader, Montana's Mike Mansfield, supported by his caucus, barred him because his presence would be a derogation of the Senate's autonomy?

Perhaps Palin's confusion about the office for which she is auditioning comes from listening to its current occupant. Dick Cheney, the foremost practitioner of this administration's constitutional carelessness in aggrandizing executive power, regularly attends the Senate Republicans' Tuesday luncheons. He has said jocularly that he is "a product" of the Senate, which pays his salary, and that he has no "official duties" in the executive branch. His situational constitutionalism has, however, led him to assert, when claiming exemption from a particular executive order, that he is a member of the legislative branch and, when seeking to shield certain of his deliberations from legislative inquiry, to say that he is a member of the executive branch.

McCain has been careless in this campaign, and it does not bode well for America should he be elected. He seems to fly by the seat of his pants, makes decisions from the gut, and has abandoned his former virtues of moderation, independent thought, and coolness. The Economist opined the same sentiment when it endorsed Obama earlier this week--the editors clearly pined for the old McCain, but cannot see him leading in any real way as President.

As a constitutional scholar concerned about the preservation of rule of law in this republic and the advancement of human rights worldwide, it matters less to me who is president than what the next president does. Personally, I can't wait until this election is over. It has been exciting, but it is quickly approaching tedious. I'm looking forward to casting my ballot on Tuesday. I'm then looking forward to holding whoever is elected to account for his actions for the next four years. And I would like to see some constituitonal history in the making, reversing the trends begun by Bush, Cheney, and that lawless crew that has run the White House like it was a biker bar for the past eight years.

Election Fraud and the Justice Department

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.