Wednesday, January 30, 2008

Take a Whizzer on the Court

Since Sunday is the Super Bowl, this seems a good time to talk about a guy who arguably held the two coolest jobs a man could have. Byron "Whizzer White was A) a star NFL running back, and B) a Justice on the United States Supreme Court. Here are his football numbers, if you're curious:

A short career, due to World War II and a personal decision that there was more to life than football, but what a few years it was, with three all-pro selections. Note that in 1938 he led the league in rushing yards AND in passes intercepted. That's a reminder that back in the day, players were expected to perform on offense and on defense; obviously Justic White excelled in both.

One notes also how much the game has changed where statistics are concerned. White led the NFL in 1938 with 567 yards rushing; this would be a puny total today. In the season to be finished this Sunday, LaDainian Tomlinson topped NFL running backs with 1474 yards gained on the ground. Granted he played sixteen games to White's eleven; still, Tomlinson rushed for over 92 yards per game while White settled for about 52 yards each contest. Tomlinson's accomplishment dwarfs White's even more once you factor in that teams pass a LOT more today. In 1938 White's team, the Pittsburgh Pirates, attempted 194 passes, fewer than 18 pass plays a game (Whizzer himself hurled 73 of them from his runing back spot!) while Tomlinson's 2007 San Diego Chargers attempted 471 passes, almost 30 pass plays per game. (You can locate all this fun data by browsing on the website).

Well this is Brett's Constitutiton, not Brett's football trivia, so I'd better stop playing fantasy geek and get back to the topic at hand, this story of a pro football player on the U.S. Supreme Court. Full disclosure: I have not read the definitive biography on White, The Man Who Once Was Whizzer White: A Portrait of Justice Byron R White by Dennis Hutchinson (1998). I'm not an avid reader of judicial biographies; I'm more interested in reading books on how judges decided cases than on how they lived. Richard Posner, a judge himself, has gone on record as declaring that most judical biographies are not very good, see Law and Literature, revised ed. (1998) pp. 365-377. Having cited this, I'm obligated to note that Posner singles out Hutchinson's tome as one of the two best judicial biographies he'd seen, p. 373. Posner opines that a big part of the reason why White made such a good biographical subject is that he had such an interesting life before he took his seat on the Supreme Court. (Professor Sanford Levinson has decried that over the past several decades this very quality has been absent from judicial nominees; we don't have Hugo Blacks and Thurgood Marshalls named anymore, men whose pre-Supreme Court careers would make an interesting biography, see The American Supreme Court, 4th ed. (2005), pp. 260-261.)

If Byron White's career led to an insightful biography, it also makes for what I hope is an interesting essay here. Let it be noted that while he was nominated to the Court by President Kenney, a Democrat, White has the distinction of being the only Justice who voted nay in Miranda v. Arizona AND in Roe v. Wade. In A History of the Supreme Court (1993), author Bernard Schwartz refers to White as a "moderate" (p. 272), but I don't think most liberals would consider a dissenting voice in Miranda and Roe as anything other than that of a conservative. Furthermore, White also wrote the majority opinion in Bowers v. Hardwick 478 U.S. 186 (1986), the since overturned decision that upheld Georgia's law against homosexual sodomy.

If there is one lesson to be learned in White's votes in Miranda, Roe, and Bowers it is this: you can't tell how a Supreme Court Justice is going to decide cases based on the political party of the President appointing him. Whizzer was rather conservative in spite of being placed in his seat by a Democratic President. We not uncommonly hear pro-life voices deriding Roe v. Wade as the work of activist liberals, but remember: five of the seven Justices in the Roe majority were appointed by Republicans Eisenhower and Nixon. Remember this point during the ongoing Presidential campaign when we'll hear a million times that the most important reason we should vote for Clinton or McCain is because of who they will nominate to the high court when Justice Stevens finally decides it's time to retire. No President ever knows what he'll really get from his judicial nominees.

Let's look at White's opinions a little. By way of preface--and getting back to Whizzer's gridiron career--have you ever noticed that most of the former pro football players who go into politics speak against Roe and abortion in general? Jack Kemp, Steve Largent,--even Heath Schuler, a Democrat, opposes abortion rights: (Admittedly, unlike White, Kemp, and Largent, Schuler wasn't much of a pro football player.) Sociologists and psychologists could have a field day speculating why a bunch of guys who made a living in a sport where players beat the hell out of each other until the strongest wins usually end up all on the same side on abortion, but I'll leave that alone and just quote a few things White wrote in Doe v. Bolton 410 U.S. 179, a companion case to Roe that follows it in the United States report:

"The Court, for the most part, sustains this position: during the period prior to the time the fetus becomes viable, the Constitution of the United States values the convenience, whim, or caprice of the putative mother more than the life or potential life of the fetus; the Constitution, therefore, guarantees the right to an abortion as against any state law or policy seeking to protect the fetus from an abortion not prompted by more compelling reasons of the mother.

"With all due respect, I dissent. I find nothing in the language or history of the Constitution to support the Court's judgment. The Court simply fashions and announces a new constitutional right for pregnant mothers and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally dissentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the mother, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.

"The Court apparently values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries. Whether or not I might agree with that marshaling of values, I can in no event join the Court's judgment because I find no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States. In a sensitive area such as this, involving as it does issues over which reasonable men may easily and heatedly differ, I cannot accept the Court's exercise of its clear power of choice by interposing a constitutional barrier to state efforts to protect human life and by investing mothers and doctors with the constitutionally protected right to exterminate it. This issue, for the most part, should be left with the people and to the political processes the people have devised to govern their affairs." (Doe at 221-222).

And here are some choice bits from Whizzer White's dissent in Miranda v. Arizona 384 U.S. 436 (1966), the famous "you have the right to remain silent" case:

"In some unknown number of cases, the Court's rule will return a killer, a rapist or other criminal to the streets and to the environment which produced him, to repeat his crime whenever it pleases him. As a consequence, there will not be a gain, but a loss, in human dignity. The real concern is not the unfortunate consequences of this new decision on the criminal law as an abstract, disembodied series of authoritative proscriptions, but the impact on those who rely on the public authority for protection, and who, without it, can only engage in violent self-help with guns, knives and the help of their neighbors similarly inclined." (Miranda at 542).

I just can't reconcile White's statements in Doe and Miranda with Bernard Schwartz's characterization of him as a moderate. These assertions sound to me far more like what one would hear from the host or the callers on the Rush Limbaugh program. Two of the most prominent right-wing positions are there: in Doe that judges shouldn't take away the power of the people to decide, and in Miranda that it's wrong to put concern for the criminal ahead of concern for keeping the peace.

But whether you agree with Justice White or not, isn't it something for a man to star in the NFL and be a Supreme Court Justice. I certainly would like to see high school and college football coaches telling their teams about Whizzer White, the great running back who was a Rhodes Scholar and who later became a judge. How wonderful it would be for young athletes to make up their minds that like White, they were going to try for excellence on the field and in the classroom.

Monday, January 28, 2008

From time to time, not annually

As we wait for President Bush to deliver his final State of the Union Address this evening, it's worth mentioning that the practice of this happening annually in January is a custom, not a Constitutional command. The Constitution only mandates that "(The President) shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such measures as he shall judge necessary and expedient," Art. II, Sec. 3.

In other words, the President can give this message any time; it need not be within the first few weeks of the new year. Nor has a January occurrence always been the case; George Washington's final State of the Union was delivered on December 7, 1796 (Currie, David P. The Constitution in Congress: The Federalist Period 1789-1801. Chicago: The University of Chicago Press, 1997, p. 222, n. 126.)

What is interesting is that the phrase "From time to time" doesn't specify a minimum OR a maximum number of State of the Union addresses. In theory, a President could do this every two years instead of annually. Or, if he really wanted to annoy Congress, he could deliver one every month. Don't hold your breath that this will ever happen, of course.

Maybe this is more off the wall, but don't the words "give to the Congress information" really mean only that the President needs to convey his message to the men and women who comprise the body, and not that he actually has to do it in the building where they typically assemble? Suppose Congress and the President all flew to Honolulu for this exercise; that wouldn't be unconstitutional, would it? Can you picture George Bush in a flowered shirt and Bermuda shorts addressing the Senators and Representatives on the beach?

Well, I hope that never happens. We don't need an event ignored by the majority of Americans to be held in Honolulu every winter. We've already got the Pro Bowl for that...

Tuesday, January 22, 2008

The guns of Dred Scott

In my last entry, I said that in 1997 Clarence Thomas became the first Supreme Court Justice to write in an opinion that the Second Amendment protected an individual right to keep and bear arms, rather than a collective right. I was challenged on this bit of information by blog reader Robert J. Oneto, who argues that Chief Justice Taney identified a personal right to arms in Dred Scott v. Sandford 60 U.S. 393 (1856). Rather than repeat what Mr. Oneto wrote--and thank you, sir, for bringing this to my attention--I'll simply direct you to his comment, the third reply following the article:

Reading back what I wrote, I realize that I did not make it clear that I was citing the Uviller and Merkel book (The Militia and the Right to Arms, or How the Second Amendment Fell Silent) as my source for the comment on Thomas's 1997 opinion. I apologize, lest anyone have thought that I myself perused every freaking case the Supreme Court decided from its inception through the end of the twentieth century to make the conclusion!

So having issued that mea culpa, I suppose I should comment briefly on Mr. Oneto's point. First, a citation. The quote he uses is from Dred Scott at 417. In the first place, all of us should probably be careful not to put too much stock into points made in a case that has been termed "a monument of judicial indiscretion," Bernard Schwartz, A History of the Supreme Court, New York: Oxford University Press, 1993, p. 106.

Now having written that, while Mr. Oneto has indeed located an assertion in Dred Scott that possibly points to the 1856 Court embracing the concept of the Second Amendment as an individual right, I'm obliged to note that there is also a vehement declaration in the case that implies the Second Amendment is not an individual right. Specifically, I'm talking about the concurrence by Justice Daniel, Dred Scott at 490:

"(T)he only private property which the Constitution has specifically recognised, and has imposed it as a direct obligation both on the States and the Federal Government to protect and enforce, is the property of the master in his slave; no other right of property is placed by the Constitution upon the same high ground, nor shielded by a similar guaranty." (Emphasis his).

If Daniel believed no other private property besides slavery is specifically recognized by the Constitution, this clearly would mean he did not consider firearms a form of private property specially protected by the Second Amendment.

This bit of dictum does seem quite at odds with the text of the case Mr. Oneto directed us to. So we're back to my point about not putting much stock in Dred Scott. I think David Currie put it best:

"From a lawyer's viewpoint Scott was a disreputable performance. The variety of feeble, poorly developed, and unnecessary constitutional arguments suggests, if nothing else, a determination to reach a predetermined conclusion at any price." The Constitution in the Supreme Court: The First Hundred Years 1789-1888, Chicago: The University of Chicago Press, 1985, p. 272.

In the end, I think Mr. Oneto and I both found a good example of those "unnecessary constitutional arguments" Professor Currie laments. Whatever Dred Scott tells us about the cruelty and stupidity of the human race in 1856, it doesn't have much of significance to guide us about guns in 2008.

Monday, January 14, 2008

Lock your doors! Turn out the lights! The Supreme Court is considering the Second Amendment!

There has been a great deal of consternation in the blogosphere lately about the Bush administration siding with Washington, D.C. in D.C. v. Heller, the gun ownership case currently before the Supreme Court:

As you probably know, conflict over interpretation of the Second Amendment has traditionally been among two camps. On one side are those who stress the "well-regulated Militia" portion of the text and hold that this means there is only a collective right of society to maintain a militia or a modern equivalent such as a national guard. To them, there is no individual right to posess firearms spelled out in the Constitution. On the other side are those who stress the "right of the people to keep and bear Arms" portion of the text and insist that this does make gun ownership an individual right. (See generally Sanford Levinson's The Embarrassing Second Amendment 99 Yale Law J. 637 (1989), reprinted in Gun Control and the Constitution: Sources and Explorations on the Second Amendment, Robert J. Cottrol, ed., New York: Garland Publishers, 1994.)

Clearly David Hardy is in the individual right camp. But so too is the Bush Administration he criticizes in the first link above. In the spring of 2001, the first Bush Attorney General, John Ashcroft, wrote to the Executive Director of the NRA, assuring him "Let me state unequivocally my view that the text and the original intent of the Second Amendment clearly protect the right of individuals to keep and bear firearms," see H. Richard Uviller and William G. Merkel The Militia and the Right to Arms, or How the Second Amendment Fell Silent, Durham, NC: Duke University Press, 2002, p. 218. Ashcroft reiterated this position in a memorandum he sent to all United States' Attorneys later that year endorsing the ruling in United States v. Emerson, 270 F.3d 203 (5th Cir. 2001). He wrote:

"Emerson is... noteworthy because... the Fifth Circuit undertook a scholarly and comprehensive review of the pertinent legal materials and specifically affirmed that the Second Amendment 'protects the right of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and beartheir own firearms. . . . The Court’s opinion also makes the important point that the existence ofthis individual right does not mean that reasonable restrictions cannot be imposed to prevent unfit persons from possessing firearms or to restrict possession of firearms particularly suited to criminal misuse. In my view, the Emerson opinion, and the balance it strikes, generally reflect the correct understanding of the Second Amendment." , see p. 26

Has there been a right turn in the Justice Department? Are they now asserting that the Second Amendment is a collective and not an individual right?

No. The Department's Heller brief, which Hardy's website links, makes it clear that the position the Bush Justice Department took in Emerson is still in effect, , see p. 5.

So at least for the remainder of this Presidential administration, there is no debate in the Executive offices whether the Second Amendment is a collective right or an individual right. The individual rights position--David Hardy's camp--is the official stand of the U.S. government. The current disagreement between David Hardy and the DOJ is on just how much--or how little--the government can interfere with that right and not a conflict over interpretation of the Second Amendment per se.

That's not to say that when the Supreme Court issues a ruling in Heller, they won't reject the individual rights interpretation currently in vogue. After all, no High Court Justice ever wrote in a judicial opinion that the Second Amendment protected an individual right until 1997, when Clarence Thomas did so in a concurrence, Printz v. United States 521 U.S. 898, 938, see also Uviller and Merkel, p. 13. If the majority does rule consistent with Thomas's 1997 view, look for a dissent by two or three justices arguing that the Second Amendment is only a collective right.

It's certainly possible, however, that in Heller the Court will skirt the issue on the range of Second Amendment interpretation and go directly to consideration on the facts of the case. And if in this or any subsequent cases, it becomes a matter where a plaintiff has to show that the government is unduly infringing on the right to possess firearms, history suggests that the standard for showing that gun regulations are overly burdensome is going to be quite stiff.

Firearm regulations, you see, have been stringent for a long time. I've heard NRA members argue, and I'll bet you have too, that if the government gets its foot in the door with the most minimalist laws on the possession of guns, it will pave the way towards making it harder and harder to acquire weapons, and ultimately perhaps impossible to do so. What this view misses is that gun laws have a long heritage; regulation isn't just something hippies thought up in the late sixties. Nearly a century ago, Oregon passed a law not only requiring a permit to own a handgun, but also mandating that a pistol owner must have two written affidavits of good moral character. New York State in 1911 declared that no one in an urban area could own a gun without a license, and also that gun sellers must keep records and refrain from selling to anyone who could not produce a permit. Michigan in 1925 enacted legislation that required a permit to carry a concealed weapon. Furthermore, said the Wolverine State, you must be a "suitable" person" and have "reasonable cause" for a concealed weapon before you would be issued one. (See Lawrence M. Friedman, American Law in the 20th Century, New Haven, CT: Yale University Press, 2002, p. 241.)

I'm rather certain that the notion of Michigan or any other government deciding whose cause to carry a concealed weapon is "reasonable" or not is precisely the type of government intrusion into weapons possession that troubles the NRA and Mr. Hardy. That's their right; this is America and we generally believe in limited government. But the twentieth century historical record is, I would argue, far more significant as a means of determining which regulations are permissible and which are unreasonably onerous than a debate on exactly what James Madison and his friends meant when they created the Second Amendment in the eighteenth century.

And anyway, no right, not even those in the Bill of Rights, is absolute. Oliver Wendell Holmes famously observed that "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater, and causing a panic," Schenck v. United States 249 U.S. 47, 52 (1919). It would be peculiar to hold that protection of gun rights must be so stringent as to protect a man who carries an unlicensed concealed weapon to the theater.

He won in our state, but he lost nationwide. So here, take our electoral votes!

From this morning's headlines:

"TRENTON, N.J. (AP) - New Jersey became the second state to enter a compact that would eliminate the Electoral College's power to choose a president if enough states endorse the idea.

"Gov. Jon S. Corzine signed legislation Sunday that approves delivering the state's 15 electoral votes to the winner of the national popular vote. The Assembly approved the bill last month and the Senate followed suit earlier this month."

Under this system, if we had a Presidential election where one candidate won the popular majority nationwide, he could become President even if he won only a few states.

It's a bit ironic that this legislation was passed in New Jersey. Look at what happened in the election of 1860:

New Jersey was the only Northern state that didn't go for Abe Lincoln. There were thirty-three states back then; Stephen Douglas won only New Jersey and Missouri. But notice that he still had a very strong showing in the popular vote, with over 1.3 million people voting for him. Notice also that if John Bell had not run, and had most of his support gone to the Democrat, Stephen Douglas would have won the popular vote nationwide even though he carried only five of thirty-three states. Under a "state must give its electoral votes to the national popular vote winner even if the state's own voters preferred somebody else" system--Illinois, Pennsylvania, New York, California, and the other thirteen states that went for Honest Abe--would have been obliged to send Douglas to the White House. (I'll bet the South still would have seceded.)

Personally, I don't think somebody should be elected President when he wins only five states for the same reason I don't think we should have Constitutional Amendments ratified if only five states vote in favor of them. This is a federal union; states may not matter as much as they used to but they still DO matter.

And although this will be far more controversial, I'm obliged to point out that while in 2000, Al Gore received a majority of the popular vote--narrowly--Bush won better than three-fifths of the states:

That's nineteen states that went into Gores' electoral college column, thirty-one into Bush's. Even if you think Bush stole Florida, it's still thirty states to twenty. So what, you might say, more people nationwide voted for Gore, he should have won the election. Under the proposed New Jersey plan, Gore would have prevailed.

But just as the Republicans of FDR's era were so outraged that Roosevelt served more than two terms that they successfully championed the Twenty-Second Amendment--and then in 1988 they lamented that their man Ronald Reagan couldn't run again--any Democrat in New Jersey who voted for this plan hoping to prevent a repeat of 2000 may feel anguish when an election goes the other way.

In this regard, it's worth noting how close Nixon came to winning the popular vote in 1960. Nationwide, if only 112,828 voters--out of around seventy million voting--had pulled a lever marked NIXON instead of one marked KENNEDY, New Jersey, under the system they now endorse, would have been obligated to deliver the electoral votes it won for JFK to Tricky Dick instead:

Somehow I don't think that would have gone over well...

Wednesday, January 9, 2008

Perhaps we need a field guide to proposed constitutional amendments...

"To date, more than 11,000 amendments--many, of course, being redundant--have been proposed in Congress... Of these, only 27 have been ratified by the required three-fourths of the states."
--John R. Vile, A Companion to the United States Constitution and its Amendments (2nd ed.), Westport, CT: Praeger, 1997, p. 116.

Here's the thing to remember about Constitutional amendments: proposing them is as easy as winning a footrace with a three-toed sloth. Getting them ratified is only a little less difficult than winning a footrace with a cheetah.

So in a Presidential election year when talk of this amendment or that amendment gets tossed about, remember that chances are the talk will come to nothing. For the most part, any candidate who brings up amendment is just trying to win points in a political debate; he or she isn't harboring any illusions that a living, breathing Twenty-eighth Amendment is just around the corner.

Accordingly, you can imagine my shock when Mark Levin wrote that Mike Huckabee wants four amendments ratified:

Exclaims Levin: "And if anyone is counting, this makes four constitutional amendments Huckabee claims to be supporting: 1. the Fair Tax requires a constitutional amendment to eliminate the Sixteenth Amendment; 2. a Human Life amendment; 3. an amendment to define marriage; and now, 4. an amendment to end birthright citizenship."

Although it's not relevant to what I wish to bring up here, I am obligated to point out that the Huckabee camp quickly denied number four:

Whew! Good to know that a southern man does not support what is essentially a repeal of the Fourteenth Amendment, ratified during Reconstruction, isn't it?

What I actually want to address is Levin's comment that the Fair Tax would require a constitutional amendment to undo the Sixteenth Amendment. Not that I'm taking a position on the Fair Tax, but no, the country would NOT need to send the Sixteenth Amendment off into space with Prohibition in order to replace the current income tax with a national sales tax. The Sixteenth Amendment declares "The Congress shall have power to lay and collect taxes on incomes..." emphasis mine. It does not say "The Congress must lay and collect taxes on incomes and can tax in no other manner." A power granted need not be a power used; in Article 1, § 8 Congress is given power to declare war and I trust no one would argue this means they have to declare war periodically.

Mind you, if Levin were to retort that if the Sixteenth Amendment stays on the books the Fair Tax would be in jeopardy down the road, because even if Congress votes it in this year, a future Congress could easily eliminate it, I can't refute that. As a practical matter the Sixteenth Amendment might need to die to secure the Fair Tax--but as a Constitutional matter the existence of the Sixteenth Amendment does not stand in the way of implementing the Fair Tax.

I couldn't just leave the matter there; I had to do a bit more research to learn if Huckabee, a well-known supporter of the Fair Tax, himself believed as Levin does that a national sales tax only comes if the Sixteenth Amendment goes. So naturally I went straight to the candidate's website--and almost right away I saw something that jolted me:

Huckabee uses fourteen paragraphs to advocate the Fair Tax; not once does he propose repeal of the Sixteenth Amendment. Perhaps this means he has the same outlook I do, that he could get his national sales tax with or without amending the Constitution to jettison an amendment to the Constitution. He may even idealistically reason that once the Fair Tax is in place, no future Congress will dare reinstate an income tax even if they can for fear of facing an outraged electorate that is dancing for joy paying a sales tax instead of filling out forms to the IRS.

But here's the weird part: in looking to see if Huckabee wants to amend the Constitution as Levin asserts he does, I stumbled across yet another proposal by the Arkansas governor that probably would require an amendment--and this one is not even among the four Huckabee amendments that Levin tallies! Notice the fourth bullet point near the top of the page I've linked: "To control spending, I believe the President should have the line-item veto."

This, frankly, is like saying "To insure Executive continuity, I believe the President should be permitted to run for a third term." A line item veto probably can't happen without amending the Constitution, and we've been down this road very recently. In 1998, to be exact.

It was just ten years ago that the Supreme Court struck down the Line Item Veto Act Congress had enacted in 1997. The gist of Clinton v. City of New York 524 U.S. 417 is that Congress had violated the Constitution's Presentment Clause which states: "Every Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a Law, be presented to the President of the United States. If he approve he shall sign it, but if not, he shall return it, with his Objections to that House in which it shall have originated..." (Article 1, § 7 ¶ 2). Citing these words and historical understanding, the High Court majority reasoned that the President can only approve or disapprove a bill in total; he cannot approve certain points of it and veto others, Clinton at 438-440.

Apparently Huckabee wants to take another shot at this just a decade later. Or maybe he doesn't; he just wants to be on record as saying he thinks we should have a line item veto whether we actually get one or not.

You will notice three paragraphs above that I write that it would probably take a Constitutional Amendment to get a line item veto now that the Supreme Court has called it unconstitutional. One might argue that because the vote in Clinton was 6-3, and since there has been a change in court personnel these ensuing ten years, perhaps all that is needed is another Line Item Veto Act by a new Congress that might get by a revamped Court when it's inevitably challenged.

But that's unlikely, because Constitutional opinion on this matter cuts across ideologies in a way we don't often see. The two Clinton appointees were on opposite sides here--Ginsburg joined the majority and Breyer dissented. The conservatives also disagreed; Rehnquist and Thomas joined the majority while Scalia dissented. So whether the next President is Mike Huckabee or another Clinton, and even if he or she has the chance to appoint two or three new Justices, matters aren't likely to change where a line item veto is concerned without a constitutional amendment.

So in sum, here's what happened: I read Levin's piece in which he says Huckabee supports four Constitutional amendments. I right away went to Huckabee's website to see if he really wanted an amendment to repeal the Sixteenth Amendment. And in learning that he does not say the Fair Tax would require a constitutional amendment, I learned he supports a line item veto that would require a constitutional amendment--and this wasn't even among the four amendments Levin asserts that the Arkansas governor supports! Kind of makes your head spin, huh?

That's an awful lot of footraces for Huckabee to have with three-toed sloths. But even if he reaches the Oval Office and doesn't put back on all that weight he lost, the smart money says he isn't beating any cheetahs to the finish line.

Tuesday, January 8, 2008

Thirteen original states, more or less

In my entry of November 19, 2007, I discussed the misconception that Thomas Jefferson was one of the signers of the Constitution. Another misconception--less common, but occasionally rearing its head--concerns the number of states present when the country opened for business under the new Constitution.

I encountered this one last night at the end of The Fox Report on the Fox News Channel. Shepard Smith concluded the proceedings by pointing out that on that day in history, January 7, 1789, George Washington was elected the first President by the original thirteen states.

In fact, the General was NOT elected by thirteen states, because when the new Constitutional government began, the Union had only eleven states. North Carolina and Rhode Island had not yet ratified the Constitution, so they didn't participate in the process (see David P. Currie, The Constitution in Congress: The Federalist Period 1789-1801, Chicago: U. of Chicago Press, 1997, pp. 97-98). The Tar Heel State and Little Rhody did not ratify the Constitution until 1790, well after George Washington had broken in the seat cushions on his desk chair. Rhode Island, in fact, did not even send delegates to the Constitutional Convention.

Now if my name was Keith Olbermann or if I received my paychecks from the New York Times, it would be customary at this point for me to blast Fox News for giving such misinformation, peppering the diatribe with comments such as how can you trust them when they won't let Ron Paul into their debate, and Lord, Bill O'Reilly and Sean Hannity are awful, etc., etc. But I don't fill Mr. Olbermann's shoes, so rather than just scolding Fox and leaving the matter there, I decided to go the extra mile and try to figure out how the staffers at The Fox Report made this historical error. After all, I can't expect them to have a copy of Professor David Currie's magisterial work at their fingertips, can I?

So I did what I reckoned a good intern at Fox would do: I entered a google search for the date January 7 in history. In short order, I was offered several sites to click; among those at the top of the list were The History Channel and wikipedia. Okay, who should know better? The History Channel, right? Click on their site, set the calendar for January 7, and listen to Russ Mitchell narrate:

Here's what he says: "(In 1789) ... each of the thirteen states elected an electoral college that would vote for President." Wrong, wrong, wrong.

And here's the funny part: wikipedia got it right:,_1789

Quote: "North Carolina and Rhode Island were ineligible to participate as they had not yet ratified the United States Constitution."

Well, at least wikipedia was correct when I checked it. By the time you read the entry someone may have gone in and edited it to say that Guam cast a dozen votes for Betsy Ross, or something like that.

I don't know about you, but given a choice between consulting The History Channel and wikipedia for information, I would have thought THC was a more reliable source. Perhaps the Fox News folks felt the same way. If so, they were let down--and it's troubling that THC--an outfit devoted to history--was, at least in this case, so inaccurate.

Tuesday, January 1, 2008

Rare as a Mickey Mantle or a James Madison

Here's a quick quiz. Of the following six men, which three signed the United States Constitution in 1787 and which three played for the New York Yankees in 1961: Mickey Mantle, James Madison, George Washington, Yogi Berra, Whitey Ford, and Benjamin Franklin?

Do you REALLY need for me to provide the answer? Probably not, unless you're REALLY not smarter than a fifth grader.

Okay, let's try it this way. Of the following six men, which three signed the U.S. Constitution in 1787 and which played for the New York Yankees in 1961: William Few, David Brearley, Nicholas Gilman, Artemus Ditmar, James Coates, and Robert Hale.

Now it's not so easy, is it? For the record, in the second question the first three men signed the Constitution, the last three wore the pinstripes. (I modified the Yankee first names, by the way, to prevent that from being a giveaway. Ditmar, Coates, and Hale are listed on the roster as Art, Jim, and Bob, respectively. Wouldn't it have been something if Few had signed the Constitution "Bill Few"? Or better yet, "Willie Few"?)

This little bit of bizarrely trivial trivia was inspired by a recent column by Phyllis Schlafly, a scathing review of Larry J. Sabato's new book A More Perfect Constitution:
Schlafly takes issue with many of Sabato's proposed Constitutional changes. I'm not going to comment on Sabato's particular suggestions or Schlafly's criticisms of them, because I haven't read the book. It's likely I won't, either, since as former Supreme Court Justice Felix Frankfurter observed, time is an outrageous thief of one's energy and there are still a lot of books I'd like to read on the Constitution as it is before I consider reading those on the Constitution as it might be.

What I do want to dwell on a bit, however, is the odd penultimate paragraph of Schlafly's essay:

"The worst of all Sabato's proposals is to call for a new constitutional convention that would scrap our present Constitution and start over from a clean slate. We don't see any James Madisons, George Washingtons or Ben Franklins around today, and we're mighty worried about the men who think they are capable of rewriting our Constitution."

Notice she didn't write: "We don't see many William Fews, David Brearleys, or Nicholas Gilmans around today, and we're mighty worried about the men who think they are capable of rewriting our Constitution." But in point of fact, at any walk of life, whether it's playing baseball or writing Constitutions, and at time in history--1787, 1961, or 2008--there are always more Nicholas Gilmans than James Madisons, more Art Ditmars than Mickey Mantles, and it's silly to take the attitude that exceptional individuals is ever the norm.

Where our Constitution is concerned, an informal way of demonstrating my point is simply to look at the names of the thirty-nine men who signed the Constitution and ask how many of them (or how few, actually) are household words. Besides Washington, Franklin, and Madison, already mentioned, I think there is only one other guy that a typical person of common intelligence could be expected to have heard of--Alexander Hamilton. Other than that--well, the three signers from North Carolina were William Blount, Richard Dobbs Spaight, and Hugh Williamson. I can't recall seeing any of them on U.S. currency.

A more formal means of showing that the Constitutional convention wasn't an all-star team is to look at the biographical sketches of the delegates in Edward J. Larson and Michael P. Winship's The Constitutional Convention: A Narrative History from the Notes of James Madison (New York: Modern Library Classics, 2005--this is an essential book for anyone with a serious interest in the Constitution, by the way). These sketches are loaded with comments like "Not a major figure at the Constitutional Convention" (Abraham Baldwin, William Leigh Pierce), "... played only a minor role at the Constitutional Convention" (Jacob Broom, Thomas Fitzsimons), "... contributed little to the Constitutional Convention" (James McHenry), and "... played only a small role" (Thomas Mifflin)."My favorite comment by Larson and Winship is on George Clymer: "Clymer was a respected and conscientious delegate at the Constitutional Convention, but spoke rarely." That's not much different than saying "Bob Uecker was a respected baseball player who made every team bus and never broke curfew, but he hit rarely."

Carol Berkin's book A Brilliant Solution: Inventing the American Constitution (Orlando, FL: Harcourt Books, 2002) also has biographical sketches, and as with Larson and Winship's book, there are a number of remarks such as this one on Richard Bassett, "At the Philadelphia convention, he was virtually invisible, saying nothing and serving on no committees" (p. 234). Charles A. Beard sums it up nicely: "There were in all fifty-five members of the Convention who were present at some of its meetings. Of these at least one-third took little or no part in the proceedings or were of little weight or were extensively absent" (The Supreme Court and the Constitution (Mineola, NY: Dover Publications, Inc., p. 47).

All in all, I think it's pretty clear that the typical delegate at the Constitutional Convention was more of a Richard Bassett than a James Madison.

Having hopefully made my point, let me add quickly that we shouldn't confuse obscurity deserved with that undeserved . There were men, after all, who signed the Constitution and contributed a great deal, but they're largely forgotten anyway, in much the same way that Goose Goslin was a great ballplayer, but he's just not as well remembered as Babe Ruth is. (Sorry, I'm sticking with the baseball analogy until the end.) A good example is Delaware delegate John Dickinson. If you read Forrest McDonald's book Novus Ordo Seclorum: The Intellectual Origins of the Constitution (Lawrence, KS: The University of Kansas Press, 1985) you may come away thinking Dickinson was, in fact, far more influential on the shape our Constitution took than the much better known James Madison. (McDonald even calls the idea that Madison is the Father of the Constitution a myth, p. 205).

But even throwing men like John Dickinson into the picture, it's hard to argue with Charles Beard's conclusion that of the fifty-five delegates who attended the Constitutional Convention there were only about twenty-five--fewer than half--who really mattered much. The Yankees were going to win the pennant in 1961 with or without Artemus Ditmar and we were going to get the Constitution we got with or without Richard Bassett.

I'm not disputing Phyllis Schlafly's conclusion that the Constitution is fine and we don't need a new one; in fact, I agree with her. But if we had a Constitutional convention in 2008, two hundred years from now people would look back and see the same thing we see today among the 1787 group: a few important men like Madison and Dickinson and a whole boatload of obscure people like Richard Bassett. That's the law of committees: a few folks do most of the important work. It's human nature in the eighteenth century and the twenty-first.