Saturday, April 26, 2008

Taxing incomes for fun and profit

(I had planned to have this post up by April 15th, tax deadline day. Unfortunately, the week before that was spring break week at the petting zoo, meaning I worked long hours, got home late, and didn't have enough left in the tank to finish this before the artificial deadline I set. Well, having spent so much time on it, I'm not going to just put it aside to run on April 15th of next year, so here it is):

The Sixteenth Amendment was ratified in 1913; it reads:

"The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration."

There's a misconception about the federal income tax that you hear from time to time; namely, that before 1913 the United States didn't have income taxes. The Sixteenth Amendment, this misconception goes, first gave Congress the power to make us miserable every April 15th.

Not quite. The story goes back to the Constitutional Convention of 1787. Article I, Section 9 lists powers denied to the federal government; one provision enumerated is this:

"No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken."

What the heck is a capitation? It's a poll tax (Edward S. Corwin, The Constitution and What it Means Today, 1978 ed., p.132). This type of revenue generation was prohibited in all instances, federal and state, with the 1964 ratification of the Twenty-Fourth Amendment. But the text of Article I Section 9 clearly indicates there could be other "direct" taxes besides capitations. And when this provision was laid before the delegates in the Constitutional Convention, Rufus King of Massachusetts was puzzled. What, he asked, "was the precise meaning of direct taxation?" And according to James Madison, "No one answered" (Madison's Notes, August 20th). Perhaps that is because Alexander Hamilton was not present that day; later in The Federalist # 36 he wrote that indirect taxes were "duties and excises on articles of consumption" by which one guesses he meant direct taxes were any other kind of levy, and indeed in #21 Hamilton opined that direct taxes "principally relate to land and buildings."

Given the scant explication by the framers, small wonder Akhil Amar calls the direct tax clause "one of the Constitution's murkiest clauses," (America's Constitution: A Biography, 2005, p. 405).

Well in no time at all, a particular tax proposal in Congress led to debate on whether it was "direct" or not. In 1794, Congress assessed a levy on owners of carriages. Was this direct? Representative Theodore Sedgwick of Massachusetts alluded to "the opinion of certain political economists" who believed that taxes imposed on land were direct, those on anything else were indirect (Annals of Congress, Vol 4. p. 644). One might wonder how he could say that only land taxes are direct when the Constitution specifically declares capitations to also be direct taxes, but in Sedgwick's state one had to be a property owner to vote until 1821, so in effect when he spoke a poll tax was a tax on land (Keyssar, The Right to Vote, 2000, p. 343).

Sedgwick's fellow statesman from Massachusetts, Samuel Dexter, then asserted his agreement with a narrowing of Hamilton's proposition:

"(T)hat all taxes are direct which are paid by the citizen without being recompensed by the consumer; but where the tax was only advanced and repaid by the consumer, the tax was indirect" (Annals of Congress, Vol. 4, p. 46).

Note the difference between what Hamilton wrote and what Dexter said: since automobiles are articles of consumption, by Hamilton's reasoning any tax on them is indirect. But by Dexter's standard a tax on General Motors for manufacturing cars is indirect because they're just going to pass the cost down to you, but if you're taxed for having a car it's direct because you have no one to charge to get back your tax debt. (Assuming, that is, that your car is for personal use and not business.)

Small wonder then that Congress argued both about the general premise of what a direct tax is and specifically whether the carriage tax was direct or not. What was it Tocqueville wrote? "Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question," (Democracy in America Vol. 1 Chapter XVI). So when the statesmen are unclear on what is a direct tax, who do you think is eventually going to be called on to decide? And presto, it took only nine years before the U.S. Supreme Court heard a case in which someone argued that they were being assessed a direct tax, not in proportion to any census or enumeration, in violation of the Constitution.

The case was Hylton v. United States, 3 U.S. (3 Dall.) 171 (1796). Hylton lost:

Note that we're not yet talking about an "income" tax, only whether a certain tax was "direct" or not and this, we shall see would become an issue years later. But if you thought the Court in Hylton was going to make it crystal clear just what was a direct tax and what was not, guess what, you're in for disappointment. There were three opinions written; Justice Paterson chirped:

"The question is whether a tax upon carriages be a direct tax? ... The argument on both sides turns in a circle; it is not a duty, impost, or excise, and therefore must be a direct tax; it is not tax, and therefore must be a duty or excise. What is the natural and common, or technical and appropriate, meaning of the words 'duty' and 'excise' it is not easy to ascertain. They present no clear and precise idea to the mind. Different persons will annex different significations to the terms... The term "taxes" is generic, and was made use of to vest in Congress plenary authority in all cases of taxation. The general division of taxes is into direct and indirect. Although the latter term is not to be found in the Constitution, yet the former necessarily implies it. "Indirect" stands opposed to "direct." There may perhaps be an indirect tax on a particular article that cannot be comprehended within the description of duties or imposts or excises; in such case, it will be comprised under the general denomination of 'taxes.'" (Hylton p. 176).

If you understand that, I wish you'd explain it to me. This is a nice little reminder, however, that there never was a time when law was "quaint" where taxation is concerned; it's always been a mess that you need legions of lawyers to decipher.

Justice Iredell also was a bit vague:

"Perhaps a direct tax in the sense of the Constitution can mean nothing but a tax on something inseparably annexed to the soil -- something capable of apportionment under all such circumstances. A land or a poll tax may be considered of this description... In regard to other articles there may possibly be considerable doubt." (Hylton p. 183).

The next milestone where your income tax is concerned was the Civil War. The South fought pretty hard, didn't they? Well, the Union did two things in retaliation: A) it fought back, and B) in 1862 it created the Internal Revenue Service (12 Statutes at Large 432, bottom of the page). Somewhere in the South there must have been a shrewd lawyer laughing. "We got those Yankees now!" he roared as he sipped his mint julep, "They may defeat us, they may free our slaves, but they'll NEVER get rid of the IRS!"

Anyway, the bill goes on and on; finally on page 473 you get the nitty gritty: three percent tax on annual incomes over six hundred dollars, five percent on every dollar you make over six hundred bucks IF you make over ten thousand dollars. And on the text continues until coming to a welcome close on page 489, after 119 sections, 119 uses of the phrase: "And be it further enacted," and several payment schedules. The key points to remember are first, Americans DID pay income tax in the nineteenth century, fifty years before the Constitution clarified that was okay, and second, since it took 57 pages of legal text to create and define the IRS, they basically were awash in bureaucracy before they even opened for business.

Again let's remember that by the terms of Article I, Section 9, if an income tax is "direct," it can only be assessed in proportion to the census. So what? Well, as Akhil Amar points out, if states A and B have identical populations, and if an income tax is considered "direct" then the total tax received from A and B must be the same. The problem is, if the people in state A are wealthier than those in B, you've got to lower the tax rates in A or raise them in B to make the revenue equal (America's Constitution, p. 406). That means you're raising taxes on those less able to pay--not a very sound policy.

You know the next step: a case arguing that income tax is direct and thus unconstitutional if its not apportioned. This actually didn't occur until well after the Civil War in Springer v. United States 102 U.S. 586, decided in 1881. (Tediously technical point you probably don't care about: the law challenged was not specifically the 1862 one I cited above, but a similar act two years later, 13 Statutes at Large 223.)

The opinion in Springer was unanimous that the income tax did not run afoul of the Constitution. There wasn't much new here; the Court cited sources we've already talked about, like Hamilton and Hylton, plus a few other authorities, and then declared:

"Our conclusions are, that direct taxes, within the meaning of the Constitution, are only capitation taxes, as expressed in that instrument, and taxes on real estate; and that the tax of which the plaintiff in error complains is within the category of an excise or duty" (Springer, p. 602).

That could be the end of the story, and if it was, there would be no constitutional amendment about the income tax. But you know what happened? Just fourteen years after the unanimous Springer decision, the Court in Pollock v. Farmers' Loan & Trust Co. 157 U.S. 429, rehearing 158 U.S. 601 (1895) ruled five to four that income taxes WERE direct, This remarkable about face has been commented on by a number of scholars; Edward Corwin called it "the most disabling blow ever struck at the principle of stare decisis in the field of constitutional law" (Court Over Constitution, 1938, p. 204, cited in Currie, The Constitution in the Supreme Court, Vol. 2, p. 25).

What was the majority's justification for this action? It's a bit hard to figure out. Chief Justice Fuller pointed out that the British always considered income taxes to be direct (157 U.S. 429, 572), but by a similar logic Fuller would have driven home from court on the left side of the road. The income tax at issue in Pollock, by the way, was minuscule: two percent on incomes over $4,000 (Przybyszewski, The Republic According to John Marshall Harlan, 1999, p. 171). In that light, check out this mind-boggling comment in Justice Field's concurrence:

"The income tax law under consideration is marked by discriminating features which affect the whole law. It discriminates between those who receive an income of four thousand dollars and those who do not. It thus vitiates, in my judgment, by this arbitrary discrimination, the whole legislation." (157 U.S. 429, 596).

Yeah. He went there. A progressive income tax is discriminatory because you pay more taxes if you're rich than if you're poor. If Fuller expressed a British precedent, Field arguably channeled eighteenth century French nobility: let them eat cake.

Well Justice John Marshall Harlan was not amused, and let his biographer describe the oral delivery of his dissent:

"A friendly witness noted his emotion. After a quiet and restrained beginning, 'the florid face, hitherto pale, assuming its natural color, reddened even to the high crown of the big bald head; pent up indignation burst its bounds and dominated the man; the judge seemed lost in the statesman and patriot, and thenceforth to the end the tone and manner and gesture even were those of indignant advocacy and fervent protest.' Harlan admitted in private the depth of this feeling but denied that he had acted out of turn... He insisted that he had not shaken his finger in the face of the chief justice or glared at anyone on the bench, as some reporters had written." (Przybyszewski, p. 171).

It can be very dangerous to disregard precedent, Harlan growled:

"Since the Hylton case was decided, this country has gone through two great wars under legislation based on the principles of constitutional law previously announced by this Court. The recent civil war, involving the very existence of the nation, was brought to a successful end, and the authority of the Union restored, in part, by the use of vast amounts of money raised under statutes imposing duties on incomes derived from every kind of property, real and personal, not by the unequal rule of apportionment among the States on the basis of numbers, but by the rule of uniformity, operating upon individuals and corporations in all the States, and we are now asked to declare -- and the judgment this day rendered in elect declares -- that the enormous sums thus taken from the people, and so used were taken in violation of the supreme law of the land. The supremacy of the nation was reestablished against armed rebellion seeking to destroy its life, but it seems that that consummation, so devoutly wished and to effect which so many valuable lives were sacrificed, was attended with a disregard of the Constitution by which the Union was ordained." (158 U.S. 601, 663).

Harlan rebutted Field's dismissal of income tax as discriminatory towards the haves:

"The decision now made may provoke a contest in this country from which the American people would have been spared if the court had not overturned its former adjudications, and had adhered to the principles of taxation under which our government, following the repeated adjudications of this court, has always been administered...It was said in argument that the passage of the statute imposing this income tax was an assault by the poor upon the rich, and, by much eloquent speech, this court has been urged to stand in the breach for the protection of the just rights of property against the advancing hosts of socialism. With the policy of legislation of this character, this court has nothing to do. That is for the legislative branch of the government. It is for Congress to determine whether the necessities of the government are to be met, or the interests of the people subserved, by the taxation of incomes. With that determination, so far as it rests upon grounds of expediency or public policy, the courts can have no rightful concern." (158 U.S. 601, 672-674).

And finally, Harlan did something really amazing, he wrote in a judicial opinion that the American people should overturn a Supreme Court decision with a constitutional amendment!

"If this new theory of the Constitution, as I believe it to be, if this new departure from the safe way marked out by the fathers and so long followed by this court, is justified by the fundamental law, the American people cannot too soon amend their Constitution." (158 U.S. 601, 674).

The American people got the message, although not very quickly--the Sixteenth Amendment was ratified eighteen years after Pollock. And just how biting was the first income tax after passage of the Sixteenth Amendment? As with the earlier taxes, not very dreadful at all. Only the rich paid; a mere two percent of America's families had to file a return under the 1913 law; the top bracket was six percent, which applied only to folks earning over a half million dollars a year (Friedman, A History of American Law, 3rd ed., p. 511). Just two years later, however, the top bracket was up to thirteen percent, so you can see where they were heading, towards nearly everybody today paying something.

What strikes me most about this, however, is that when you look at how small those early income taxes were--either the 1862 version, or the one struck down in Pollock, or the first one enacted following the Sixteenth Amendment--it's a friendly reminder that when people blast the income tax they aren't really criticizing the concept so much as the current execution. If America's taxpayers in 2008 paid only four cents to the feds for every buck they made, we wouldn't be hearing all this negative talk about bloated bureaucracies or the IRS, nor would there be so much clamoring for the Fair Tax or other alternatives. Almost nobody really cares how Uncle Sam is going to take a nickel out of every dollar; it's when it becomes, twenty cents, a quarter, thirty cents, etc., out of a buck that we scowl and howl.

Monday, April 21, 2008

Four deer? No, voir dire

Blogger had jury duty today. Blogger is very tired from the experience, which involved sitting through HOURS of voir dire. The judge used this phrase herself once, addressing the attorneys; she pronounced it "vwor DAR" but my law dictionary insists it's "vwor DEER." Well, that's Latin for you. The correct pronunciation of the "i" in that old language is like our long "e", but as the Latin word for pine is "Pinus" I've heard horticulturists and botanists say it with the "i" pronounced like the English long "i", for reasons that will become apparent to you if you say it in the accurate manner.

Anyway, "voir dire" is the questioning of potential jurors. As I said, I'm rather fatigued at the moment, but I thought I'd post a quick note about a couple of short but enlightening things you might wish to read about the origins of trial by jury next time you get a summons in the mail.

One is Leonard W. Levy's The Palladium of Justice: Origins of Trial by Jury (1999). Levy can write long and deep about things; his volume on the origins of the right against self-incrimination (declared in our Fifth Amendment) is 561 pages long. Fortunately, The Palladium of Justice is a much quicker read, only 105 pages not counting the index and notes. It's got a lot of fun information like this:

"The Normans brought to England... trial by battle, paradigm of the adversary system, which gave to the legal concept of 'defense' or 'defendant' a physical meaning. Trial by battle was a savage yet sacred method of proof which was also thought to involve divine intercession on behalf of the righteous. Rather than let a wrongdoer triumph, God would presumably strengthen the arms of the party who had sworn truly to the justice of his cause. Right, not might, would therefore conquer" (pp. 5-6).

Well that's one way they could have settled Bush v. Gore...

My second recommendation on trial by jury is "The English Common Law," a chapter by Winston Churchill in Volume 1 of A History of the English Speaking Peoples. Unfortunately, this chapter is not in the abridged version of Churchill's masterpiece edited by Henry Steele Commager, but it is reprinted in The Great Republic: A History of America (1999) a wonderful collection of Churchill['s writings edited by his grandson Winston S. Churchill.

Happy jury service folks. Remember to impress your friends by telling them you performed magnificently at the voir dire.

CORRECTION: A family member gently pointed out that "voir dire" is NOT Latin, it's French. Well, that's what happens when you assume any legal term that isn't English must be Latin, since most of them are. At least I was correct about the pronounciation:

Thursday, April 17, 2008

Religion and social conflict

Here's today's Establishment clause news:,2933,351537,00.html

I quote:

"Displaying a portrait of Jesus in the foyer of a Louisiana courthouse is unconstitutional, a federal judge ruled this week, siding with civil libertarians who sued over the display.
But inserting Jesus within a group portrait of historic figures at the courthouse is permissible, the judge said.

Lemelle said during a hearing last September that he would have ordered court officials to remove the Jesus icon if they hadn't already expanded the display to include portraits of other historic "lawgivers," including Moses, Charlemagne and Napoleon Bonaparte."

Coming soon to a fine store near you: What Would Napoleon Do? bracelets! Yes, now whenever you need guidance in your life, you can just look at your wrist, see the acronym "WWND?" and ask yourself what the emperor would have done had he been in your shoes. Thus, if you're seated on a crowded bus and an old lady enters the coach, you'll know exactly what to do--give up your seat to her, get off at the next stop, and go invade Russia.

There's a serious side to this. In Van Orden v. Perry, Justice Breyer sided with the majority that a Ten Commandments display on the grounds of the Texas state capitol did not violate the establishment clause, 545 U.S. 677 (2005):

Not everyday he votes with Scalia and Thomas, huh? You're free to agree or disagree with the majority's holding as you wish, but something really bothers me about Breyer's concurrence in this case--and it's something he believes in strongly enough that he also stressed in a little book he wrote entitled Active Liberty: Interpreting Our Democratic Constitution (2005, pp. 122-124). The religion clauses of the First Amendment, declares Justice Breyer, "seek to avoid that divisiveness based upon religion that promotes social conflict."

I have two objections to that stance:

1. Whichever way the Supreme Court decides in a case involving public displays of the Ten Commandments does nothing to diminish the conflict between those who see such displays as sectarian and those who hold them to be secular totems to our legal tradition. Indeed, arguably a ruling either way not only doesn't diminish these ideological skirmishes, it increases them.

And you can see this if you check a few websites and blogs where the Louisiana ruling is being blasted by conservatives and religious faithful. Had the judge gone the other way, I suspect the Daily Kos would be abuzz. The point is--and this is well made by Larry Kramer in The People Themselves:Popular Constitutionalism and Judicial Review (2004)--judicial rulings are not the last word in constitutional debate. In the U.S.A., the people rule.

2. If the Supreme Court of the United States made rulings based on avoiding social conflict, the Warren Court would have been compelled to rule that the Fourteenth Amendment's guarantee of equal protection did not mean that public schools had to integrate. Personally, when I hear the suggestion that the High Court should act in a manner to avoid social conflict, the first thing from constitutional law that jumps into my head is this:

"So far, then, as a conflict with the Fourteenth Amendment is concerned, the case reduces itself to the question whether the statute of Louisiana is a reasonable regulation, and, with respect to this, there must necessarily be a large discretion on the part of the legislature. In determining the question of reasonableness, it is at liberty to act with reference to the established usages, customs, and traditions of the people, and with a view to the promotion of their comfort and the preservation of the public peace and good order. Gauged by this standard, we cannot say that a law which authorizes or even requires the separation of the two races in public conveyances is unreasonable..."

The emphasis is mine; the words are from the majority opinion in Plessy v. Ferguson 163 U.S. 537, 550-51 (1896) upholding the philosophy of separate but equal. If the overriding concern in the 1950s had been to prevent social conflict in Little Rock, it's pretty clear the way to have done so would have been to keep dividing school kids by race.

Anyway, when you come right down to it, isn't law all about conflict? I want to raise pigs in my backyard, you're my next door neighbor and you don't want to live next to swine. We have a conflict. The purpose of law is so we have a forum to solve it without resorting to pistols at twenty paces. If there's already a zoning law against pigs, you win. If there isn't such a law, maybe I win, but maybe you organize other neighbors and get the law changed. Or you take me to court arguing through the common law of nuisance that your property values are going to diminish thanks to my fondness for pork production.

At a certain level, ruling in a manner to avoid social conflict is like officiating a football game in a manner to avoid physical conflict; it doesn't work. No matter what courts rule about Ten Commandments displays, abortion, or gay marriage, there's going to be plenty of social conflict in these issues for years to come.

Tuesday, April 15, 2008

"Justice" isn't in the Constitution... except where it is

Early in the book Trial and Error: The American Controversy Over Creation and Evolution, (3rd ed., 2003), Professor Edward Larson discusses a researcher's study on high school biology textbooks published between 1907 and 1920. This was an investigation into how the subject of evolution was handled in American schools before the Scopes Trial. The textbook study apparently made much of the fact that a prominent 1912 text entitled Elementary Biology never used the term "evolution." Larson sees this as being of minimal significance because, he asserts, "neither did Origin of Species" (p. 21).

Here's the final sentence in Darwin's seminal work:

"There is grandeur in this view of life, with its several powers, having been originally breathed into a few forms or into one; and that, whilst this planet has gone cycling on according to the fixed law of gravity, from so simple a beginning endless forms most beautiful and most wonderful have been, and are being, evolved."

I'm an avid fan of Professor Larson's books; his Pulitzer Prize for Summer for the Gods was well-deserved. But may I suggest it's painting an inaccurate picture to say that Origin of Species does not use the word "evolution" when in fact the final word in the text is "evolved"? If I write: "The shortstop tossed the ball to the second baseman for the force; he then fired it to first to complete the double play and the inning was over, no runs, one hit, no errors, nobody left" you could accurately state that not once in the sentence did I use the word "baseball." But that would be a silly observation; obviously the sentence is about nothing but baseball and Origin of Species is about evolution. Perhaps more analogous to Larson's statement, the sentence "I saw three geese; two of them were ganders" does not contain the word "goose" but it does have two words that are forms or derivatives of the word "goose" just as "evolved" and "evolution" have common etymologies

What this has to do with the Constitution is that earlier this afternoon in my car I listened to Colin Cowherd on ESPN Radio. I had just tuned in and missed his commentary, but apparently he had discussed the allegations that Carmelo Anthony, star basketball player for the Denver Nuggets, had received preferential treatment from the Denver police following his DUI arrest. Here's the background, although you need not read this to follow where I'm going:,0,4477572.story

While I didn't hear Mr. Cowherd's pontifications on the incident, I did hear him read several e-mails from listeners. As you might expect, the commenters took one of two positions: either "this is dreadfully horrible and heads must roll" or "so what, rich and famous people get preferential treatment all the time, deal with the reality, folks." One e-mail Cowherd read really jarred me. The writer made the point that it's silly to consider the Anthony incident a travesty of justice because, and I quote, "the word 'justice' doesn't even appear in the Constitution."

Wow. If the e-mail writer had read only seventeen words into the Constitution he'd have encountered "justice." For as the Preamble declares: "We, the people of the United States, in order to form a more perfect Union, establish Justice..." (It's not highlighted in the original, of course, but is here for added outrageous effect.) You will also find "Justice" in Article IV, Section 2: "A person charged in any state with treason, felony, or other crime, who shall flee Justice..."

But of course, even if the Constitution didn't contain the word justice, it would be self-evident that the document was in high degree an effort to insure justice among the American people, just as it's obvious my sentence about baseball without the word "baseball" is nevertheless about George Will's favorite pastime. And, although it's an essay for another day, just because the phrase "separation of church and state" does not appear in the Constitution, that phrase is a fair interpretation of the interplay in the First Amendment between permitting no establishment of religion and guaranteeing free exercise of religion.

Anyway, consider this a cautionary tale. When you hear someone say that written text A does not contain word B, sometimes it's a case like Larson's where it may be factually accurate that the word doesn't appear, but to say this is very misleading.

And sometimes, as with the e-mail addressed to Colin Cowherd, it's just plain wrong.

Tuesday, April 8, 2008

A few things to know about "Ten Things to Know"

James Madison wrote that a republic is "a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior" (The Federalist # 39). His fellow delegate at the Constitutional Convention, Roger Sherman, opined that "Frequent elections are necessary to preserve the good behavior of rulers" (Madison's Notes, June 26, 1787).

I think Madison, Sherman, and the other founders might be pleased to know that thanks to computers and the Internet, today's voters have an unrivaled opportunity to discuss and debate which men or women are best suited to lead the nation with their "good behavior." With a simple click, one can publish information about this candidate or that issue on a blog, or send thoughts to a hundred friends on one's e-mail list.

Of course, this amazing technology also enables one to check statements made by others with greater ease than ever before. If I was writing a book twenty years ago and made the comment, for example that "The Supreme Court said in Heart of Atlanta Motel v. United States..." if you wanted to know whether I was paraphrasing the court accurately, you would have had to go to a law library and pull out the relevant copy of U.S. Reports. Probably you wouldn't do that, because it would take time and you had other committments. But today, googling is gravy; you can call up the opinion online and read it yourself in seconds.

These twin blessings of modern democracy, sharing of thoughts about the candidates and ready access to information, collided for me this week when a family member forwarded me an e-mail from about John McCain. Here's the text, from their own website:

Let's give credit where credit is due: does give sources for the accusations they level against the Arizona senator seeking the White House. The problem, however--and this is where fast access to information comes in--is that just a little bit of Internet research reveals that "there was things which he stretched," as Huck Finn said (Chapter One of Mark Twain's The Adventures of Huckleberry Finn).

I'm not going to go over every one of's ten points, but there are two that cry out for comment. The first is the assertion that "Conservative columnist Pat Buchanan says McCain "will make Cheney look like Gandhi." After getting over the scary mental image of Dick Cheney dressing like Gandhi and wearing a loincloth, I decided to look and see if there was a transcript of Buchanan's remarks.

There's better than a transcript; it's on youtube:

Wow, youtube is a good research tool. Take that you who thought it was useful for nothing more than laughing at sneezing pandas or frat boys igniting their own flatulence!

Okay, but here's another clip:

Buchanan said, and I quote, "We need a Nixon... who tried to get us out of Vietnam with honor." I doubt pining for a second coming of Nixon is a sentiment most people in's fold endorse, and thus Buchanan's exclamations can hardly be considered an argument for people to vote for Clinton or Obama this fall, as MoveOn hopes.

The second point makes about McCain that I want to address is this one: "He positions himself as pro-environment, but he scored a 0—yes, zero—from the League of Conservation Voters last year."

And here's where the red flag goes up: instead of citing the League of Conservation's own website for this nugget, refers to a blog, one that is quite hostile to McCain. Why in the world would they direct us to someone's commentary on what an organization has done instead of citing the organization's own cyberspace home?

Well, let's go to the League of Conservation Voter's site and hunt around a bit:

The folks at are correct; McCain did receive a score of zero during the recent Congressional session. On the other hand, in 2003-2004 he voted 56% of the time the "right" way--that is, he voted as the League would hope. If you care deeply about environmental issues, that doesn't sound very pleasant--but I would point out that McCain's '03-'04 score is comparable to Barack Obama's 67% score for the current legislative session:

If you like to vote green, obviously Hillary Clinton is the candidate for you; she's never scored less than 73%:

But wait a minute. Senator Clinton's score is a HUGE drop for her; she's never before been lower than 88%. What's caused her marks to fall?

Partly it's that she didn't show up for several votes. And that, in fact, is why McCain got a zero--he was absent at every one of the fifteen roll calls the League counts. What is not exactly telling you in the e-mail is that the League of Conservation Voters counts a member of Congress as having voted the wrong way even if they didn't vote at all. That's their prerogative, of course--but it's also basically the same as saying "Either you're with us or you're against us," a stand taken by a President despises and on an issue--terrorism--that most Americans find more pressing than farm subsidies.

But the problem isn't whether the League of Conservation Voters calls absenteeism a wrong vote or not. The problem is that by jeering ""He positions himself as pro-environment, but he scored a 0—yes, zero—from the League of Conservation Voters last year," is making it sound a lot worse than it is, as though McCain is in favor of rounding up all the Florida Key deer, slaughtering them, and serving them on a bun as luncheon for Karl Rove. It would have been a lot more accurate for MoveOn to write: "McCain has consistently been given low marks by the League of Conservation Voters, and this year he did not even show up in Congress to cast votes on ANY of the fifteen votes the League follows. And if you want to give him a pass because he's been running for president, you should note that Obama and Clinton, the two Democrats involved in a much more extended battle for their party's presidential nomination, both nevertheless found time to cast votes on eleven of these fifteen matters."

My way is a bit longer, but we're not cutting down trees to send e-mails. If had phrased it as I do it would have given the recipients of their e-mail a picture far more fair, accurate, and informative.

Let me conclude this by laying aside for a minute and talking about the League of Conservation Voters. Always remember that when ANY organization says that such and such a politician gets this or that score on issue A, it isn't just that the group is scoring the representative on his votes, they are saying that issue A is a part of what the organization considers relevant to their mission.

And on the League's scorecard for members of Congress this term, you get a marvelous example of this. Note one of the votes that McCain didn't make because he was out telling us that he deserved the presidency more than Mitt, Huck, Rudi, or the guy from Law & Order:


"Rejected: 41-53 (see complete tally)
By 41 yeas to 53 nays (Vote No. 320), Brownback Amendment No. 2708, to prevent contributions to organizations that perform or promote abortion as a method of family planning."

Here's where the League, like, is guilty of not giving sufficient information and thus making something sound a hell of a lot worse than it is. "Wow," a reader of the League's page on this vote who doesn't know better might exclaim, "Congress tried to prevent We the People from contributing to Planned Parenthood and the like? I didn't think they could do that."

And of course, they can't. This is America; you can contribute your dollars to legal organizations as you please, within some limits. But that's not what the Brownback Amendment was about; it was about whether federal funds--your tax dollars--should go to abortion performers. Senate Amendment 2708 was an unsuccessful attempt to put that restricition on an appropriations bill that later was passed and became Public Law 110-161. Here's the relevant pages on that legislation:

The title and purpose of the bill is: "Making appropriations for the Department of State, foreign operations, and related programs for the fiscal year ending September 30, 2008, and for other purposes." If you scroll down a bit, you'll see that among these appropriations are:

"Title II: Conservation Programs - Appropriates funds for the following: (1) Office of the Under Secretary for Natural Resources and Environment; and (2) Natural Resources Conservation Service."

Sounds like a conservation issue, right? One that the League of Conservation Voters would take a position on and score Congressmen and Senators based on their votes?

Guess what: they don't. From the Library of Congress summary we learn that the Senate passed this on September 6, 2007 by a vote of 81 to 12 ( McCain, alas, was not there.

Of course he wasn't. September 6, 2007 is the very same day that the Brownback Amendment was rejected 53 to 41. (Which, by the way, shows us that a bunch of Senators who voted for the Brownback amendment and lost nevertheless supported the bill as it finally stood. This is an object lesson on how debate in Congress is often simply engaged in to make political points.)

So why does the League of Conservation voters report the vote on the Brownback Amendment but not the vote on the bill as a whole, passed the same day? The amendment was simply about whether funding should go to abortion advocacy organizations, while the bill in its entirety expressly provided funds for conservation. Why is the League counting one vote and not the other? (And no, they aren't fudging the data to make McCain appear worse. There is no record on the League's website of this appropriations vote for Obama or Clinton either.)

To me, it surely seems that the League is counting abortion as a conservation issue, but not counting appropriations for conservation as a conservation issue. What is the basis for that?

Now let me be clear. I'm not arguing that family planning is not a conservation issue; I believe it is. It's pretty obvious that one of the problems Mother Earth has with providing fresh air, water, and food, is that there are over six billion people on the planet. Certainly it would be good for conservation of land and nonhuman organisms if we could keep that number from rising and maybe even causing it to gradually decline a bit.

But forgive my bluntness: we don't give Hitler high marks for conservation because of the Holocaust. And while few would argue that abortion is as foul as Nazi atrocities, there are nevertheless a good number of people who agree that conservation is important, and who concede the planet is overpopulated, but who also are opposed to abortion.

But the Brownback Amendment wasn't about whether abortion is an acceptable or not; it only concerned whether public funds should go to organizations that believe it is. And there is a huge gray area there, by which I mean there are people who think women have a right to abortions but there is no obligation for the government to pay for them. I'd call your attention to the fact that three of the Supreme Court Justices who were in the majority in Roe v. Wade--Burger, Stewart, and Powell--took that postion just four years later in Maher v. Roe 432 U.S. 464 (1977) )

All in all, I think the League of Conservation voters would be better off if they didn't count votes having anything to do with abortion. Why tick off potential members who are devout Catholics opposed to abortion but who also think we should hold Congress responsible for making sure we have pure drinking water? Why not stick to the core issues the League stands for rather than risk alienating folks with something really controversial and at the fringe of the green movement?

So by doing all this research--all inspired by an e-mail blasting John McCain--I came to the conclusion that and the League of Conservation Voters have basically told the truth in these instances--but as Huck Finn would say, "there was things which he stretched."

I have no doubt that Mark Twain, were he alive today, would spend a lot of time on the Internet.

Wednesday, April 2, 2008

Thomas Jefferson: urban designer and advocate of a weak judicary

"On the raw, rainy day of February 4, 1801, John Marshall took his oath as chief justice of the United States in a small committee room on the first floor of the nation's new Capitol. The Supreme Court's meager physical space... suggested the Court's lowly status. The quarters for the presumed third coequal branch of the federal government were embarrassingly inferior to the accommodations for the president and Congress." -- James F. Simon, What Kind of Nation: Thomas Jefferson, John Marshall, and the Epic Struggle to Create a United States, 2002, p. 138.

"The capital of Washington is a monument to Jefferson's magnificant vision. He was indirectly responsible for its location on the Potomac River and for its basic site planning there." -- F.D. Nichols and R.E. Griswold, Thomas Jefferson, Landscape Architect, 1978, p. 38.

If you think that I'm about to put the two above statements together and ponder if Thomas Jefferson's involvement in Washington's design showed that in spite of Article III he did not think the judiciary was a "coequal third branch of the government," you're right.

Take a look at a sketch Jefferson made just as the plan for having a capital on the Potomac River was taking shape:

Geoffrey and Susan Jellicoe in The Landscape of Man (2nd ed. 1987) declare of this sketch that:

"(It) shows (Jefferson's) grasp of the elements of landscape design. Although his inclinations were towards Palladianism, the Captiol and the President's house were placed charmingly and unclassically side by side overlooking a long reach of the river, each in an enclave of buildings" (p. 220).

Sophocles said: "It was my care to make my life illustrious not by words more than by deeds." And while you can find lots of words about Jefferson's concerns about an expansive judiciary--for which I highly recommend Simon's book quoted above--it seems to me that the deed of drawing a sketch for Washington that had an attractive spot for a Capitol and another nice niche for the President's House, without any location highlighted for the judiciary, could demonstrate more than a thousand words that it wasn't Jefferson's later animosity towards Chief Justice John Marshall that caused him to distrust a powerful judiciary; those feelings were there all along.

One might contradict this assessment through a citation of a letter Jefferson wrote to James Madison on December 20, 1787, spelling out what TJ liked and disliked about the new Constitution:

"I like the negative given to the Executive with a third of either house, though I should have liked it better had the Judiciary been associated for that purpose, or invested with a similar and separate power."

Here, Jefferson actually seems to argue that the framers of the Constitution erred in not making the judiciary stronger. But this was a few years before his sketch (and well before his troubles with Marshall) and again, it seems to me that drawing a diagram for Washington without a building for the judiciary is a powerful argument that his comment to Madison was more an exception to his philosophy of government than the rule.

Furthermore, Jefferson's complaint to Madison that the Judicary should be associated with the president and a third of Congress to veto legislation (since it takes two-thirds of Congress to override a veto) seems to fly in the face of what Jefferson wrote earlier in Notes on the State of Virginia, advocating a strong separation of powers. Speaking of the Constituiton of Virginia, Jefferson lamented that:

"All the powers of government, legislative, executive, and judiciary, result to the legislative body. The concentrating these in the same hands is precisely the definition of despotic government. It will be no alleviation that these powers will be exercised by a plurality of hands, and not by a single one. 173 despots would surely be as oppressive as one" (p. 120 of the edition edited by William Peden).

Further evdience, I think, that Jefferson's sketch might reveal his true feelings more than his letter to Madison.

As we know, Washington was not designed as Jefferson would have it, with the White House and the Capitol side by side, but the plan did provide that these structures would become focal points on two perpendicular axes, see Jellicoe & Jellicoe, p. 221. No such prominence was given to the judiciary, and in fact the Supreme Court did not even have its own building until 1935 (Bernard Schwartz, A History of the Supreme Court, 1993, p. 225).

But wait a minute. Are Jefferson's acts as an amateur urban designer necessarily reflective of his political philosopy? Could he have wanted two prominent capital buildings instead of three not because he considered the judiciary less important but because he favored urban design with two nodal points rather than three?

I wonder. When Pierre L'Enfant, the planner employed to design Washington wrote to Jefferson asking for drawings of "any of the different grand city (sic) now existing," Jefferson sent him back plans of a dozen European cities, including Amsterdam and Paris (Nichols & Griswold, p. 46).

In doing a bit of research for this essay I pulled out my copy of Edmund Bacon's Design of Cities (2nd ed., 1974) to look for examples of urban design the well-read, well-traveled Jefferson could have known about that featured three focal points, as opposed to only two. And none of the three that I think might have had relevance were among the towns Jefferson forwarded plan drawings of to L'Enfant. One such design was Michelangelo's scheme for the Campidoglio in Rome (Bacon, pp. 114-119) where an equestrian statue unifies the relationship between a trio of grand buildings. The other European example was the layout of the Dutch Renaissance town of Wijk-bji-Duurstede, where the three facets of village life: spiritual force, temporal power, and economic energy are emphasized by the cross axial relationships of a church, a castle, and a large windmill, respectively (Bacon pp. 166-69).

Maybe Jefferson didn't know about the Dutch hamlet, but he certainly knew about Rome, and its exclusion from the list of cities Jefferson cited in his communication with L'Enfant is striking. But the real kicker is the third city of three focal points in the Bacon book.

It's Williamsburg. In Jefferson's own state.

Here's an online map of Williamsburg:
(The relationship between the three most significant structures is better shown in Bacon's book on pages 224-225, but the linked map here gets the job done.) Notice that the main building of the campus of William & Mary College is at one end of Duke of Gloucester Street, the Capitol is at the other. Perpendicular to both is the Governor's Palace. In fact, the relationship between the Capitol and the Palace is exactly the same as that between the Capitol and the White House in Washington. Put a building for the Supreme Court in D.C. where William & Mary's main building lies in Williamsburg and you've got a very close match, right down to the buildings astride the Mall being analagous to those lining Duke of Gloucester Street.

That Jefferson didn't share in his letter to L'Enfant a remark or two about Williamsburg may say nothing about TJ's opinion on its design--but note that unlike the design for Washington actually adopted, his own sketch for Washington looks nothing like Williamsburg.

So based on what I've learned doing this, I'm not sure we can do what I began this exercise thinking we might: reading into Jefferson's sketch an opinion on the judiciary. Maybe he just preferred his urban design with two prominent buildings instead of three.

My guess is, however, that if he had proposed a third grand structure it likely would have been a library or national college instead of a place for judges to preside.