Friday, November 13, 2009

Confederates vs. al-Qaida

There is an irony to the decision of the Obama administration to try Khalid Sheikh Mohammed and four other co-conspirators in a civilian court. Have you ever heard President Obama compared to Abraham Lincoln? You've heard the whole "both are skinny lawyers from Illinois who reached the White House with slender resumes" line?

Well, John Wilkes Booth and the others involved in Lincoln's assassination were tried by a military tribunal, even though the crime occurred in the United States and in the absence of a formal declaration of war. Or ANY war, for that matter, as the Civil War had ended a few days prior to the slaying.

The law school of the University of Missouri at Kansas City has significant details on its Famous Trials website:

"Secretary of War Edwin Stanton favored a quick military trial and execution. According to Secretary of Navy Gideon Welles, who favored trial in a civilian court, Stanton "said it was intention that the criminals should be tried and executed before President Lincoln was buried." (Lincoln was buried on May 4, before the start of the conspiracy trial.) Edward Bates, Lincoln's former attorney general, was among those objecting to a military trial, believing such an approach to be unconstitutional. Understanding the use of a military commission to try civilians to be controversial, President Johnson requested Attorney General James Speed to prepare an opinion on the legality of such a trial. Not surprisingly, Speed concluded in his opinion that use of a military court would be proper. Speed reasoned that an attack on the commander-in-chief before the full cessation of the rebellion constituted an act of war against the United States, making the War Department the appropriate body to control the proceedings."

Monday, November 9, 2009

Mistrust of elective bodies: nothing new here

From page 369 of Gordon Wood's The Creation of the American Republic: 1776-1787 (1969):

"The legislatures, it was repeatedly claimed, were becoming simply the instruments and victims of parties and private combinations, puppets in the hands of narrow-minded, designing men."

Wood is referring to conditions in the 1780s. But isn't it striking how similar this sounds to criticisms we hear of Congress today?

Monday, November 2, 2009

Speaking in code

Say, remember during last year's presidential election, when John McCain and Sarah Palin referred to Barack Obama as "socialist," how some protested, exclaiming that "socialist" was a code word for "black"?

Well I notice that in the Atlanta mayoral race that Kasim Reed has run commercials calling front runner Mary Norwood "a Republican."

This raises the question: Is "Republican" a code word for "white"?

Just asking.

Monday, October 26, 2009

In case of death, resignation, or inability

Thanks to Article II of the Constitution, somewhat modified by the Twenty-Fifth Amendment, we Americans have orderly transition if the President dies or is incapacitated. The Vice President would in that instance take over the Oval Office. The Constitution also mandates that Congress legislate who is next in line if the Vice President also dies or suffers some incurable dementia. And that Congress did, with the currently line of succession specified in the United States Code, 3USC19 (2007). After the Vice President, the Speaker of the House is next in line, with the President pro tempore of the Senate coming in after that. If we really have a run of bad luck, with our leaders dropping like the bad guys in Indiana Jones movies, the line of succession goes:

"Secretary of State, Secretary of the Treasury, Secretary of Defense, Attorney General, Secretary of the Interior, Secretary of Agriculture, Secretary of Commerce, Secretary of Labor, Secretary of Health and Human Services, Secretary of Housing and Urban Development, Secretary of Transportation, Secretary of Energy, Secretary of Education, Secretary of Veterans Affairs, Secretary of Homeland Security." 3USC19(d)(1).

It seems impressive that we've actually got it worked out to eighteen people in line for the presidency until you realize what the British have with their line of succession to the throne.

So if some vermin shoots President Obama, Joe Biden takes over. If he's rubbed out at the same time, we get our first woman President. Robert Byrd becomes commander in chief if Nancy Pelosi meets her maker in the same tragedy taking Obama and Biden. And then you have a bunch of men and women nominated by Obama and confirmed by a Senate where the Democrats have a majority.

Remember this when you read stupid comments like this one:

“The Republican Party is now a mentally ill group of people who want nothing more than to destroy Obama’s first term no matter how much the country needs his policies. I despise your party’s activities and the hatred you spew on Fox and other sounding boards for the insurance companies. Please don’t you dare get him killed, which is the underlying goal of you right wing nuts.”

An underlying goal to get Obama killed? One would think a reporter would know better. Apparently John Guerra thinks the definition of a right-winger is somebody who wants Joe Biden to be President.

Friday, October 9, 2009

The President gets a big honor

Barack Obama has won the Nobel Peace Prize:

"OSLO -- President Barack Obama won the 2009 Nobel Peace Prize on Friday for "his extraordinary efforts to strengthen international diplomacy and cooperation between peoples," the Norwegian Nobel Committee said, citing his outreach to the Muslim world and attempts to curb nuclear proliferation.
The stunning choice made Obama the third sitting U.S. president to win the Nobel Peace Prize and shocked Nobel observers because Obama took office less than two weeks before the Feb. 1 nomination deadline."

So the boys in Oslo gave him the prize for work he'd done as President in his first eleven days? I live in Atlanta, and I do hope you will all visit this wonderful city. When you do, please visit the Martin Luther King National Historic Site. Be sure to sign up at the desk for the tour of Dr. King's boyhood home. You might want to stop by the old firehouse, now a bookstore, and pick up a copy of a collection of his speeches, which inspired millions. Stroll across the street to the Ebenezer Baptist Church where Dr. King and his father preached. In other words, get the bad taste of today out of your mouth by learning about a man who deserved the Nobel Peace Prize when it was awarded to him.

In my humble opinion, giving Barack Obama the Nobel Peace Prize now is like major league baseball giving a batting title to Mario Mendoza.

Tuesday, October 6, 2009

Due process and Megyn Kelly's baby

There are two kinds of provisions in the United States Constitution. One is the kind nobody in their right mind could argue about. I don't care if you are liberal, conservative, Republican, Democrat, a Steelers fan or a Cowboys fan--there is no argument what is meant by each state having two senators.

Then there is the other kind of provision. That's the stuff that gets argued about because obviously the thing described is subject to interpretation.

A great example of the second kind of provision is the Due Process Clause. The Fifth Amendment, in part, assures us that "No person shall be... deprived of life, liberty, or property, without due process of law." That only applies to the federal government, but right after the Civil War, Section 1 of the Fourteenth Amendment made it clear that "No State shall... deprive any person of life, liberty, or property, without due process of law."

Okay, fine. There's just one little problem: what the heck is due process anyway?

One of my favorite comments on the matter--and one that has wound up being cited in numerous treatises and court cases--was made by Supreme Court Justice Benjamin Cardozo in the 1934 case of Snyder v. Massachusetts, 291 U.S. 97. Due process, as Cardozo defined it, is "some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." (Snyder at 105).

A notable example of a citation of Cardozo's concept of due process came in Justice Rehnquist's dissent in Roe v. Wade, 410 U.S. 113 (1973). Opined the future chief justice:

"The fact that a majority of the States reflecting, after all, the majority sentiment in those States, have had restrictions on abortions for at least a century is a strong indication, it seems to me, that the asserted right to an abortion is not "so rooted in the traditions and conscience of our people as to be ranked as fundamental," Snyder v. Massachusetts, 291 U. S. 97, 291 U. S. 105 (1934). Even today, when society's views on abortion are changing, the very existence of the debate is evidence that the "right" to an abortion is not so universally accepted as the appellant would have us believe." (Roe at 174).

The Roe majority had, you see, based it's argument that a woman has a right to an abortion on the due process clause of the Fourteenth Amendment.

But here is the question that was suggested to me by Cardozo's concept. Just how long does it take for some principle of justice to be so rooted in the traditions and conscience of our people as to be ranked as fundamental?

I think it can be a relatively short span of time. That was suggested to me by the result of another case, also involving a pregnant woman, the year after Roe was decided.

In Cleveland Board of Education v. Lafleur, 414 U.S. 632 (1974), the Supreme Court struck down requirements of local public school boards that a pregnant teacher go on unpaid leave several months before her baby was due. That, said the majority, was inconsistent with the Due Process Clause of the Fourteenth Amendment. Once again, Justice Rehnquist dissented; this time without citing Snyder.

It seems to me that in 1974 it might have been a reach to hold that Cardozo's due process--something so rooted in our traditions and conscience as to be fundamental--included a right of a woman on a government payroll to continue working right up until she goes into labor. But you know what? Here we are just three and a half decades later and now I think you can argue that this sort of thing IS "rooted" and "fundamental." This occurred to me recently when Megyn Kelly of Fox News-who ironically enough is a lawyer--gave birth to a bouncing baby boy. From the linked note:

"Kelly anchored her show yesterday [the day before she gave birth], even delivering a segment on the top 5 things not to say to a pregnant woman. And she even did her regular segment on 'The O'Reilly Factor' last night."

Here's the top five things not to say, if you're interested. My point is this: do you even bat an eyelash now when you hear that a woman worked right up until the day before she went into labor? I'll bet you don't. But if you're old enough to remember that far back, I'll also bet the thought of a woman doing this back in 1974 was somewhat shocking to you. And when Snyder was decided, forty years before Lafleur, the very idea that "due process" protected a right of woman to work up until she dropped the child, was absolutely unthinkable.

The Lafleur decision, which no doubt caused a lot of people who came of age in the fifties or earlier to gasp, now seems pretty darn tame. Small wonder. Pregnant women toiling until mere hours before the water breaks has, in just a couple of decades, become so rooted in our traditions and conscience as to be fundamental.

Sunday, September 27, 2009

Dollars then and now

I don't know about you, but when I see a graph of the history of the stock market's performance over, say, fifty years, and there is a caption declaring that the data is "adjusted for inflation" it really doesn't make much of an impression on me. But when I read something in a history book about money value or supply that is specific and that I can relate to the present, that can really set my head spinning.

So it was when I encountered this line on page 222 of Brian McGinty's Lincoln and the Court (2008): "When [Salmon] Chase began his work [as Secretary of]... the Treasury Department, the government had only $3 million on hand and debts that totaled almost $65 million."

That was in 1861, the Civil War was about to begin. The idea of the United States government having only three million bucks--how to relate that to our time? Well look at it this way. According to the U.S. Census Bureau my county, DeKalb County, Georgia is the 75th largest county in the nation. That's big, but not a mega-county like Los Angeles County or Cook County, Illinois. And the county budget adopted for 2008 was over 635 million dollars.

So the annual budget for a large, but not massive county is over 211 times the amount of cash that the entire United States of America had in the treasury 148 years ago. The DeKalb budget is also over nine times higher than the debts the U.S. owed.

We can go a step further. The 2008 budget just for parks and libraries in DeKalb County, the nation's 75th largest county was 35 million dollars, or nearly twelve times the amount of money the U.S. Treasury had on hand in 1861.

That's a lot more fines collected on overdue books. A dollar just ain't what it used to be.

Tuesday, September 22, 2009

It's a secret when we started having secret ballots

Those of you who study history must hate it as much as I do when you read that such and such is true, the information is well cited, and so you accept it--and then later, maybe even years later, you read something totally contradictory.

That happened to me recently. I'm reading Gordon Wood's massive The Creation of the American Republic: 1776-1787, first published in 1969. Here's what Wood has to say on page 170 about secret ballots during the Revolutionary Period:

"The North Carolina, Georgia, Vermont, and Pennsylvania constitutions and some counties in New Jersey provided for elections by secret ballot (which had been used sporadically throughout the colonies in the previous decades) so that no elector would have 'occasion to recur to any man for advice or assistance.'"

I knew that wasn't what I'd read somewhere else. And it only took me a few minutes of perusing my bookshelves to find the source of my belief that we didn't have secret ballots in this country until much, much later. From pages 142-143 of The Right to Vote: The Contested History of Democracy in the United States (2000) by Alexander Keyssar:

"An indirect and limited means of promoting a literate electorate was the adoption of the secret or Australian ballot (which first appeared in Australia in 1856 and then was implemented in England in 1872)... The first American experiment with the Australian ballot, in Louisville in 1888, was rapidly followed by its adoption almost everywhere in the United States."

Wood has four states and parts of a fifth using secret ballots in elections not only more than a century before Keyssar says the practice had its first American incarnation in Louisville, but seventy-five years before Keyssar declares the Australians invented the secret ballot.

I'd believe either of these two scholarly tomes over wikipedia; nevertheless I checked that website's entry on secret ballot to see what it says. No help; they say that secret ballots were known in ancient Greece and that the first secret ballot in America was used in Lexington, Massachusetts. No date is given for that.

My first thought was that Wood's information must be the correct account. After all, in citation of his assertion that there was a secret ballot in eighteenth century Pennsylvania he refers to Section 32 of the state's 1776 constitution, for Georgia he cites Article X of the 1777 constitution, etc. Those are primary sources from the early days of the republic. Keyssar cites a boatload of secondary sources plus a couple of primary ones, but his primary sources are from much later than Wood's. For instance, Keyssar points to the 1896 Annotated Statutes of Illinois.

But then I realized there was an additional possibility. Perhaps Wood and Keyssar meant different things by "secret ballot." The wikipedia entry refers to this article from The Canberra Times, an Australian newspaper. It defines the Australian ballot as being more than just the voter putting a piece of paper anonymously into a ballot box, which it acknowledges had already been practiced by the Americans and the French. The article asserts that the Australian innovation, widely copied, was that the piece of paper dropped into the ballot box was printed by the government and had the names of all the candidates. "Until then" declares the article, "all modes of paper voting involved the elector supplying his own ballot-paper (or getting it from a third party)."

And so I went back and reread what Keyssar wrote, and I realized that's what we're dealing with here. In the excerpt above I've got ellipses; here is what Professor Keyssar wrote between those marks:

"For much of the nineteenth century, voters had obtained their ballots from political parties: since the ballots generally contained only the names of an individual party's candidates, literacy was not required. All that a man had to do was drop a ballot in a box. Since ballots tended to be of different sizes, shapes, and colors, a man's vote was hardly a secret--to election officials, party bosses, employers, or anyone else watching the polls."

In the early days of the republic, voting was often anything but secret, because the voter had to orally cast a ballot in the presence of the local magistrate, with scores of other folks within earshot (see Simon, What Kind of Nation, 2002, pp. 81-83 for an entertaining account of the 1799 congressional election in Virginia, won by future U.S. Supreme Court Chief Justice John Marshall). So in that sense, Gordon Wood is apparently using the phrase "secret ballot" to mean the practice, picking up steam in the late eighteenth century, of using written ballots instead of announcing one's choice. Alexander Keyssar, on the other hand, is reserving the phrase "secret ballot" for the later development of a ballot that was not simply written, but provided for the voter by the government. No more "electors supplying their own ballot-paper or getting it from a third party," in other words.

Well that's confusing, having two different definitions for secret ballot. It's like "civil law" meaning either that which isn't criminal law, or alternatively meaning the legal system that Napoleon endorsed, and you need to pay attention to the context to know what is being referenced. Personally, I prefer Wood's use of the phrase, because it just seems to me that more people think of a secret ballot as involving not calling out your vote as opposed to the particular characteristics of the paper that gets shoved into the ballot box. (I say that knowing full well that most voting is computerized now, making oral votes and ballot boxes both seem quaint.)

Or maybe I'm wrong and when most of you hear "secret ballot" you think of a disinterested government printing the lists of candidates. Whatever, I still think it's confusing, and for my own purposes I'm going to try never to say or write "secret ballot" again. But what words would I use in its place? How about "Wood Ballot" and "Keyssar Ballot" as replacement phrases, thus emphasizing the distinction between the two? Or use "Australian Ballot" for the government-provided cards and reserve "secret ballot" to mean not having to voice your choice?

Those are possibilities. But then what will we call it when we learn how to vote through mental telepathy?

Thursday, September 17, 2009

Glenn Beck and the marbled murrelets

"Cass Sunstein, Obama's pick for Regulatory Czar, was confirmed in the Senate by a vote of 57-30. How in the world did a guy who thinks that animals should be able to sue human beings in court ever get through the rigorous confirmation process?" -- Comment on Glenn Beck's website (September 14 show recap).

Let's get this out of the way first: I'm reasonably certain Cass Sunstein's mother was not called Mama Cass.

Seriously, for Glenn Beck or anybody else to say Cass Sunstein thinks animals should be able to sue human beings in court is quite a bit like saying Sunstein thinks the First Amendment should guarantee freedom of speech. The First Amendment actually does guarantee freedom of speech, regardless of what anyone thinks it "should" do. And animals already do sue people in court, notwithstanding anything Sunstein has proposed.

Just take a look at the heading and first paragraph of this case, from over twenty years ago:

"NORTHERN SPOTTED OWL V. HODEL 716 F. Supp. 479 (W.D. Wash. 1988)


A number of environmental organizations bring this action against the United States Fish & Wildlife Service ("Service") and others, alleging that the Service's decision not to list the northern spotted owl as endangered or threatened under the Endangered Species Act of 1973, as amended, 16 U.S.C. § 1531 et seq. ("ESA" or "the Act"), was arbitrary and capricious or contrary to law."

The named plaintiff is a species of bird; Donald Hodel was the Secretary of the Interior under President Reagan. "Northern Spotted Owl v. Hodel" is what lawyers and judges call the "style" of the case; that's what laymen would call the "name" of the case.

Of course, the owls themselves didn't file the papers. We've got some pretty good animal trainers at my petting zoo, but I don't think any of them could teach an owl to fill out a form and pay the fee at the local courthouse. As the first paragraph of the case makes clear, however, environmental organizations acted on the owls' behalf.

This isn't an isolated instance; there have been other cases with names that make a zoologist smile. Two of my favorites are Palila v. Hawaii Department of Land & Natural Resources, and Marbled Murrelet v. Babbitt. Again, it was human friends of these birds instigating the lawsuits on their behalf. The same thing happens anytime the plaintiff is anybody besides an adult human being. That is, there have been lawsuits involving children, corporations, ships--you name it.

There is a famous paper from almost forty years ago by Christopher Stone entitled "Should a Tree Have Standing? Toward Legal Rights for Natural Objects." This was long before anybody had heard of Glen Beck, Barack Obama, or Cass Sunstein. Through the wonder of the Internet, we can read the piece online. Here are two bits from Stone's article, particularly relevant to what we're discussing:

"Nor is it only matter in human form that has come to be recognized as the possessor of rights. The world of the lawyer is peopled with inanimate right-holders: trusts, corporations, joint ventures, municipalities, Subchapter R partnerships, and nation-states, to name just a few. Ships, still referred to by courts in the feminine gender, have long had an independent jural life, often with striking consequences. We have become so accustomed to the idea of a corporation having "its" own rights, and being a "person" and "citizen" for so many statutory and constitutional purposes that we forget how jarring the notion was to early jurists."

"It is not inevitable, nor is it wise, that natural objects should have no rights to seek redress in their own behalf. It is no answer to say that streams and forests cannot have standing because streams and forests cannot speak. Corporations cannot speak either, nor can states, estates, infants, incompetents, municipalities, or universities. Lawyers speak for them, as they customarily do for the ordinary citizen with legal problems."

And sixteen years after this was written, back in 1988, lawyers did, in fact, speak for the northern spotted owl. There's nothing new about a creature having its day in court, Mr. Beck.

Edited to correct misspelling of Glenn Beck's first name. I should know better, for all the times my name has been spelled "Bret."

Wednesday, September 16, 2009

Half a million dollars, more or less

In 1789, James Madison said:

"The seat of government is of great importance; if you consider the diffusion of wealth, that proceeds from this source. I presume that the expenditures which will take place, where the government will be established, by them who are immediately concerned in its administration, and by others who may resort to it, will not be less than a half a million of dollars a year."

Well son of a gun, Madison was right. To this very day, the expenditures of the federal government are not less than half a million dollars a year.

Tuesday, September 15, 2009

And the czar belly sneetches had czars upon thars!

Listening to this video, in which Tennessee Senator Lamar Alexander takes the Obama administration to task for the proliferation of "czars" in the executive branch, I'm struck by how much Alexander sounds like he's reading from a book by Dr. Seuss.

An intrepid Senator named Lamar
Bemoaned the work of the several czars;
We listened well that fateful date
When the Tennessean was heard to orate:

"We have an Aids czar, an auto recovery czar
A border czar and a California water czar.
We have a car czar, and a central regions czar
And a domestic violence czar!

"There is an economic czar
An energy and environment czar
A faith based czar and a Great Lakes czar!"
Dear me, I thought, that's an awful lot of czars!

I wonder if any of those czars like green eggs and ham.

By the way, don't the words "Tennessee" and "Tennessean" sound as though they'd be more at home in Dr. Seuss books than in the real world?

Tuesday, September 8, 2009

A "Czar Amendment" is probably not needed

As the controversy over now resigned Green Jobs Czar Van Jones intensified, Allahpundit over at wrote this:

"When the GOP eventually takes back Congress, one of its first acts should be a statute or even a constitutional amendment, if necessary to avoid separation-of-powers concerns, requiring “czars” to sit through the same Senate confirmation process that cabinet appointees are made to endure." (Emphasis mine.)

A careful reading of the Constitution suggests that an amendment is not necessary; that Congress can put the brakes on president appointed czars anytime it wants. Here's the relevant text from Article II, Section 2:

"(H)e shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."

The emphasis is mine. Congress is granted a power to in effect, say to the president, "You may appoint this particular officer, or that one, and you need no consent from the senate to do so." But by the same token, this seems to empower Congress to tell the president he can't appoint people to fill this office or that one without the advice and consent of the senate.

Note carefully what I'm saying. I'm not arguing that once President Obama named Van Jones "Green Jobs Czar" Congress had any authority to say to Obama, "That's a bad selection; try again." But what I am saying is that Article II, Section 2 means Congress can designate Green Jobs Czar as a position that is not exempt from a need for senatorial confirmation, regardless of who the president nominates.

Monday, September 7, 2009

Constitution and customs

"Between 1849 and 1852, (John Archibald Campbell) argued eleven cases in the United States Supreme Court, making such a favorable impression on the justices that, when a vacancy opened in 1852, they unanimously petitioned President Franklin Pierce to name him to fill it. Pierce acquiesced, and Campbell joined the Court in 1853 at the age of only forty-one." --McGinty, Lincoln and the Court, 2008, p. 93.

Here's a friendly reminder that even though a lot of the procedures by which the United States government operates are set out by the Constitution, there is room for the operation of customs and traditions such that what seems unremarkable in one era would be shocking in another. All the Constitution has to say about the appointment of Supreme Court justices is that they are to be nominated by the president with the advice and consent of the senate (Article 2, Section 2). In other words, there is absolutely no reason why, constitutionally speaking, the same process by which Campbell got his seat on the high court in 1852 couldn't also happen today.

But just imagine for a second that this did happen today. There is speculation that John Paul Stevens may be getting ready to resign. Suppose the speculation is accurate and we're about to have a vacancy. Imagine that all eight of the other justices signed a note to President Obama saying that so-and-so is the best man (or woman) to join us on the court, and we respectfully urge you to nominate him. Think that would go over well?

It might be a sad commentary on the politicization of the courts that one's first thought is that this could never happen because there is no way in hell Clarence Thomas and Stephen Breyer would agree on the ideal new colleague. But even if you got past that hurdle, and there was a unanimous judicial recommendation, think of the likely reactions. Some pundits would express outrage at the justices for their audacity, trying to get their two cents in when they are the one branch of the government that is conspicuously left out of the judicial nomination process. Other commentators would point out that if the President did not follow the court's advice, the person Obama ultimately did nominate would be in a very uncomfortable position having to work with colleagues that touted somebody else for the job.

And then what would bloggers, talking heads, and the like have to say about Obama's response to the Court's endorsement of a successor? The President would be in a no-win position. If he gave his approval to the Court's choice, he'd be accused of being a weak executive reduced to rubber stamping a questionable action by another branch of government. On the other hand, if Obama discarded the unanimous recommendation of the Court, some would bellow, "Who does he think he is, not following the advice of eight people who are experts at what makes a good supreme court justice since that's what they themselves are?"

Now just because there is no constitutional reason the selection of a new Supreme Court justice today couldn't go the same route today as it did in 1852, that doesn't mean that what happened with Cambell was a good idea. In fact, I'll go on record that the circumstances behind the Campbell nomination were terrible, largely for the reasons I've sketched above. There's an advantage to a country and a constitution getting a little age on them; as the experiments in democracy have time to simmer it becomes less likely that a bad idea will become an uncontroversial tradition.

Monday, August 31, 2009

Never mind no cable, what would no Seventeenth Amendment have meant for Ted Kennedy?

Chicago Tribune columnist Eric Zorn mused recently that if there had been cable news and politically charged talk radio in 1969, Teddy Kennedy might not have been reelected the following year, due to nonstop coverage of the incident at Chappaquiddick. Zorn writes:

"If we'd had insatiable 24/7 cable news networks in July 1969, the accident on Chappaquiddick Island in which a passenger in a car driven by Sen. Edward Kennedy drowned would likely have dominated the national consciousness for months....

'Politically, Kennedy wouldn't have survived that kind of media bombardment,' said Bruce DuMont, president of Chicago's Museum of Broadcast Communications and host of "Beyond the Beltway," a national weekly talk-radio show. 'It wouldn't have just been a spotlight, it would have been a heat lamp. On him, on all the investigators, on everyone connected to the story'...

Chappaquiddick was a big story anyway and badly damaged the reputation of the man then seen as the surviving prince and heir apparent of American politics.

But, as DuMont said, there were just three broadcast networks in 1969 offering half-hour newscasts that seldom dwelled for long on any one story. Technological limitations made live remote broadcasting very cumbersome.

'And most talk radio was local and fluffy' under fairness-doctrine restrictions, DuMont said. 'So you didn't have nationally syndicated partisan hosts banging the drum day in and day out saying Kennedy had to go.'

And perhaps therefore, he didn't go. The following year Massachusetts voters resoundingly re-elected him to the Senate. Though the Chappaquiddick scandal probably kept him out of the White House, it never cost him the seat he held until his death this week at age 77."

Okay, but as long as we're playing "what if?" let me bring up a constitutional angle. What if the Massachusetts voters in 1970 never got the chance to "resoundingly re-elect" Kennedy? What if the Constitution had never been changed through the Seventeenth Amendment, which provided that henceforth senators would be "elected by the people thereof"?

Before the 1913 amendment, United States senators were, under the terms of Article I, Section 3, "chosen by the Legislature thereof." In other words, in the early days of the republic, we didn't have popular election of senators, the man filling the seat was chosen by the representatives assembled in that state's capital.

Some states found a way to give the voters a voice in who the senator would be before 1913. To delve into that is beyond the scope of this article; if you're interested see Amar, America's Constitution: A Biography, 2005 pp. 409-15.

But anyway, let's just pretend that in 1970 the question of retaining Teddy Kennedy in office was not one submitted to the electorate, but just to the state legislators. Would Kennedy have kept his senate seat?

I think Teddy might very well have been out of a job, even with the advantage of the Kennedy family name. It seems clear to me that right after Chappaquiddick, a contingent would have developed of legislators believing that it would be preferable for Kennedy to retire and for someone else to take his seat. Obviously, among the legislators themselves there would have been men with designs on the senate, and it's likely someone would have emerged as a leading choice to replace Kennedy. Perhaps the contingent would have failed and Kennedy would have kept his seat in 1970. But remember, it would have been a lot easier to convince enough people among a select group of elected officials that Chappaquiddick made Kennedy an untenable candidate than to make that case to the voters at large in a big state like Massachusetts.

I'm glad we now have the power of direct election of senators, but the downside of it is that today millions of dollars that could be better employed get spent in senatorial campaigns. That problem wouldn't exist if we still let the men and women at the state house make the call. If you're running for U.S. senate you need to pay for TV commercials to try to convince tens of thousands of people to vote for you; you don't need to do that if you just need a hundred other politicians to give you the nod. Under that system, it would have been far simpler for someone in '70 to successfully challenge Kennedy.

Well, we don't have a parallel universe to experiment in, so we'll never know if Ted Kennedy would have been reelected in 1970 if the rules of John Adams time were still in play. But there is one more point I want to make about this. What Zorn writes about Kennedy being "resoundingly" reelected is a tad misleading. Look at the results of the 1970 Massachusetts vote compared to Kennedy's numbers in 1964, the election before Chappaquidick, and 1976, the second election after the incident. Kennedy got 74.26% of the vote in 1964 and he missed 70% of the vote by a whisker in 1976.

What did he get in 1970, with the death of Mary Jo Kopechne fresh in every one's minds? He got less than 63% of the vote. Sure, that's still a landslide, but it's a hell of a lot less support than Kennedy received in '64 or '76.

And it's not too hard to imagine that out of those votes Teddy lost in 1970, a good number of them were people who just couldn't see keeping the man around after what he did that summer night the year before.

One other thing in conclusion. Do you find it as hilarious as I do that on the page I've linked they apparently couldn't find a photo of the Republican who challenged Kennedy in 1970--but they could locate a photo of the Prohibition Party candidate seeking the seat? How would you like to run against a Kennedy AND against booze? What would your campaign slogan be, "Eliminate liquor or you'll be like the Kennedys"?

Thursday, August 20, 2009

Private letters and public papers: a primer

"I own I am not a friend to a very energetic government. It is always oppressive. The late rebellion in Massachusets [sic] has given more alarm than I think it should have done. Calculate that one rebellion in 13 states in the course of 11 years, is but one for each state in a century and a half. No country should be so long without one."

"I know, indeed, that some honest men fear that a republican government can not be strong, that this Government is not strong enough; but would the honest patriot, in the full tide of successful experiment, abandon a government which has so far kept us free and firm on the theoretic and visionary fear that this Government, the world's best hope, may by possibility want energy to preserve itself? I trust not. I believe this, on the contrary, the strongest Government on earth."

Note the difference in tone in these two declarations. In the first, the writer asserts he is against "energetic government." In the second, the writer proudly boasts that this country has the strongest government on earth, no need to worry about making it even stronger. That, one would assume, is a rather "energetic" state. These seem to me to be virtual opposite statements.

The two assertions came from the pen of the same man, Thomas Jefferson. The first one he wrote in 1787, the second he wrote, or at least orated, in 1801. Taking note of the contrast, one might conclude that one of two things happened to Jefferson.

One, he might have simply changed his mind. I don't believe a lot of things today I accepted fourteen years ago either.

Second, and more cynically, one might say that Jefferson was a politician, and politicians flip-flop. Plus, they tend to speak or write differently when they or their party is in office than when they are a minority

Of course, if you knew the difference in the format in which the two statements were delivered, you might simply think that Jefferson--like every other damn person who's ever inhabited planet earth--expressed himself differently with people he was intimate with as opposed to when he addressed the world at large.

Here is the source of the first Jefferson quote; it's a letter he wrote to his friend James Madison. And here is the source of the second quote; it's from Jefferson's First Inaugural Address. (And here is me saying God bless the University of Chicago for putting The Founder's Constitution online, what a wonderful resource to have at our fingertips.)

Here's the way it works: Jefferson and Madison were friends and they extensively debated statecraft through the post. Normally when you write a letter to a friend, you figure he's going to understand that this is a private correspondence and since he's your friend, he shouldn't use anything you write to try to embarrass you publicly.

And if you and your buddy are ordinary folks, when you both die your letters might well just wither and disappear. But when two men are as famous as Thomas Jefferson and James Madison and they carry on an extensive correspondence, when they die people are falling over themselves to be curators of their personal papers.

Time passes, Jefferson and Madison recede farther back into history, and their personal papers are published. Then comes extensive quoting of personal letters, and people seem to forget that a statement made by Jefferson in a letter to his BFF simply does not have the same weight of authority as to his true frame of mind as the Declaration of Independence, the First Inaugural Address, or any other thing Jefferson wrote when he hoped the whole world was listening.

Doesn't that seem obvious? I hope so. But I just write this as a cautionary tale. It's not uncommon to see a column or a newspaper editorial in which the writer declares, "Thomas Jefferson believed..." and then comes a quote from our third president.

But often the quote is from a personal letter to Madison, John Adams, or some other close associate. And often as not, the columnist/editorial writer doesn't tell you the statement is from a private paper that Jefferson (or whoever) may not have ever thought would see the light of day, as opposed to being from a public writing or speech.

I, for one, think it makes a difference.

Thursday, August 13, 2009

Protesting health care: as American as shouting down the guy on the ten dollar bill

From Larry Kramer's wonderful book The People Themselves: Popular Constitutionalism and Judicial Review (2004):

"Saturday, July 18, 1795. At least 5,000 people gathered in front of Federal Hall in New York City to protest the Jay Treaty. Planned for weeks by Republicans anxious to see the treaty condemned, the crowd of mostly tradesmen and laborers was unexpectedly joined by some of the city's elite, hastily assembled by Federalist merchants under the leadership of Alexander Hamilton. The determined Federalists tried to take over the rally. As the meeting was about to commence, Hamilton mounted the steps of a nearby building surrounded by supporters and began to speak. Republican leaders asked him to yield, which Hamilton haughtily refused to do. The crowd reacted angrily, drowning Hamilton out with 'hissings, coughings, and hootings.' Hamilton offered a written resolution, which he urged be adopted as reflecting the true sense of the city. The crowd paused to listen, but exploded in fury upon hearing that it was 'unnecessary to give an opinion on the treaty ' because the people had 'full confidence in the wisdom and virtue of the President of the United States, to whom, in conjunction with the Senate, the discussion of the question of the constitutionally belongs.' Hamilton and his companions were driven away amidst shouts of 'we'll hear no more of it' and 'tear it up.' Someone in the crowd allegedly threw a rock that hit Hamilton in the head. Similar scenes were repeated around the country." (p. 4).

To the best of my knowledge, nobody is alleged to have hurled a rock at Arlen Specter the other day. But take out that little detail, and doesn't this sound a whole lot like Specter's town hall meeting, or many others that have taken place these past couple of weeks? I particularly like the part about Hamilton and Federalist friends trying to hijack the proceedings. We've seen things like that lately too, haven't we?

You've heard about the Obama health care bill that it's long, difficult to understand, and most of the people upset about it haven't read it anyway? I'll bet that was true in 1795 when it came to the Jay Treaty, which you can read here if you're so inclined. You think more than a couple of dozen folks back then read and digested that whole thing, especially since they didn't have the advantage of the Avalon Project website as a reference source?

For the record, the two big objections to the Jay Treaty were one, that it gave British subjects the right to own land in the U.S., and two, that its reopening of trade between the U.S. and the British West Indies were on terms most unfavorable to the Americans (Currie, The Constitution in Congress: The Federalist Period, 1997, pp. 210-11). Getting hot and bothered about whether English folks could own a piece of land over here seems trivial to us today, but then again, we don't personally know what it's like to have had friends, relatives, and countrymen die in a bitter war with Britain.

And surely, whether the current health care bill passes or not, some of the concerns raised by the protesters will seem trivial in two centuries. But the point is, the objections raised in these town hall meetings are significant to an awful lot of Americans now. When voices are raised condemning the behavior of the town hall participants, in response some are quick to note that the protests are in many ways similar to the public dissent of the Vietnam era.

But as the anecdote Professor Kramer describes shows, loud voices of derision go back way, way before the 1960s. Other than the hurling of the brick, that eighteenth century New York crowd wasn't really out of line.

So let's have no more of these comparisons of the health care protesters to fascists, or saying they're un-American. The First Amendment guarantees "the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." That's what those folks were doing in New York City in 1795. That's what they're doing in 2009. It may not always be pretty, but it sure is American.

Wednesday, August 12, 2009

Rock my world, little country duo

The major news in the world of country music this week is that Brooks & Dunn, the most successful Nashville duo of all time, will part ways next year. They've been together a long time. In fact, when Kix Brooks and Ronnie Dunn recorded their first album, the other big duo in America was Lewis and Clark.

With any luck at all, the legacy of Messrs. Brooks & Dunn will not be having over forty top ten singles, or putting out ten platinum albums, or winning a ton of awards. It won't be that they delighted horse lovers by having a bunch of them in videos like this one. (That's my favorite B&D song.)

No, hopefully the legacy of Brooks & Dunn will be that maybe other musicians will be inspired to show a little class when someone on the opposite side of the political spectrum uses one of their songs at a campaign rally, or samples a bit of it in a commercial. Last summer, when Barack Obama walked offstage at the Democratic National Convention, it was to the stirring strains of the Brooks & Dunn hit "Only in America." As the Rolling Stone reported at the time:

If it felt familiar when Brooks & Dunn’s “Only In America” played after Barack Obama’s acceptance speech last night, there was good reason: President George W. Bush used the same song four years ago when he was rallying against Democratic candidate John Kerry. Brooks & Dunn were big supporters of Bush, even playing W’s inauguration party back in 2001. So how does Kix Brooks feel about Obama’s use of the track? He wasn’t angry at Obama for using the song... Instead Brooks said, 'Seems ironic that the same song Bush used at the Republican Convention last election would be used by Obama and the Democrats now. Very flattering to know our song crossed parties and potentially inspires all Americans.'”

Well said, Kix, and by the way, I hope you'll keep up your gig with the syndicated radio program. He wasn't just blowing smoke with this comment, by the way, he and Ronnie Dunn have shown that they separate music from politics by having the very liberal Sheryl Crow perform with them on the single "Building Bridges."

Now contrast the gracious words of Mr. Brooks with the reaction of the Wilson Sisters, from the group Heart, when their song "Barracuda" was played as Sarah Palin left the stage at the Republican Convention:

"Sisters Ann and Nancy Wilson, core members of the band since the late 1970s, emailed a statement to the McCain/Palin campaign on Thursday afternoon, denying the Republican ticket use of their classic rocker, 'Barracuda,' as a theme for Vice Presidential nominee Palin. 'The Republican campaign did not ask for permission to use the song, nor would they have been granted that permission,' the statement read.It continued: 'We have asked the Republican campaign publicly not to use our music. We hope our wishes will be honored.' Yet 'Barracuda' blared again at the Republican National Convention Thursday night after McCain's acceptance speech. So Heart's Nancy Wilson called to vent, saying, 'I think it's completely unfair to be so misrepresented. I feel completely [expletive] over.' She and her sister Ann then emailed this exclusive statement to 'Sarah Palin's views and values in NO WAY represent us as American women. We ask that our song 'Barracuda' no longer be used to promote her image.'"

I remember at the time there was an article--which I googled, but alas, could not find--where an attorney pointed out that since the Target Center pays a licensing fee to play music, blasting "Barracuda" over the loudspeakers at the GOP festivities is no different than if it was played at halftime of a basketball game at the venue. In other words, legally speaking, the Wilson Sisters had no legitimate beef with the Republicans.

But that's not the point. The point is Kix Brooks, who supported John McCain, did not snarl publicly that by using "Only in America" Barack Obama and the Democrats were misrepresenting him. He and Ronnie Dunn didn't use capital letters, or even lower case ones, to hiss that Obama did not represent them as American men. They didn't whine that the Democrats were bleeping them over.

Heart recorded a song called "Dog and Butterfly," but their reaction last summer was a lame dog and pony show. Let's hope that in the future more musicians act more like Brooks & Dunn than like Ann and Nancy Wilson. To have it be otherwise--well, as Kix and Ronnie's song says, "That Ain't No Way to Go."

Thursday, August 6, 2009

The nonsense over Obama's birth certificate: here's who to blame!

Once in awhile, instead of taking my usual route home from the petting zoo, I'll motor down Memorial Drive on its unremarkable path through the eastern suburbs of Atlanta. Perhaps the most notable thing about the road is that although everybody still calls it "Memorial Drive," officially it is the "Cynthia McKinney Parkway." This doesn't sit well with a lot of people.

As the linked article mentions, McKinney once suggested that President George W. Bush knew about the 9/11 attacks in advance. So there it is, folks, you can drive a major thoroughfare in a large American city, from the state capitol building in downtown Atlanta all the way out to Stone Mountain, on a road named after a conspiracy theorist.

I was thinking of that the other day in regard to the current fiasco of these dips who are convinced that Barack Obama was born in Kenya, in spite of official documents and newspaper announcements that show he shot out of his mother's womb in Hawaii.

This now makes three presidents in a row we've had that attracted speculation by tin foil hat wearers. Before the "Obama Birthers" and the "Bush Knew" crowd, we had Bill Clinton, who was accused by nutcases of having orchestrated the deaths of Vince Foster and Ron Brown. There wasn't a shred of evidence to support such musings, and besides, if Clinton was that evil why do Paula Jones, Linda Tripp, and Monica Lewinsky still walk the earth?

So why has this happened? Why can't we have anybody, Republican or Democrat, in the White House without some yo-yos screeching that the Commander in Chief isn't who or what he says he is?

I blame it on Chris Carter. He is the creator of "The X-Files," and as the wikipedia entry for this television series declares:

"The show was a hit for the Fox network, and its characters and slogans (e.g., "The Truth Is Out There", "Trust No One", "I Want to Believe") became pop culture touchstones in the 1990s. Seen as a defining series of its era, The X-Files tapped into public mistrust of governments and large institutions, and embraced conspiracy theories and spirituality, as it centered on efforts to uncover the existence of extraterrestrial life."

Accusing Clinton, G.W., or Obama of being extraterrestrials would be a stretch. Blaming them for keeping from America evidence we'd been visited by beings from other planets would be less of a reach, but still beyond what could get you a mention on respectable news outlets.

But a dark cabal that kills the President's rivals? A President who knew in advance that an attack on American soil was coming? A conspiracy to keep the world from knowing the President was born in a foreign land and thus constitutionally ineligible to hold office? Ah, now we're getting somewhere! These are thoughts that can be expressed without concern that the one uttering them will get tossed into a rubber room.

Chris Carter delighted a generation of people living in their parent's basements by putting on a program that made Fox Mulder and the Lone Gunmen heroes. Everything was a conspiracy, it was always just slightly beyond the ability of Mulder and Sculley to completely unravel it. Because, of course, whenever they got close the government would add new wrinkles to their nefarious schemes. I'm just guessing here, but don't you suppose that most of the "Bush Knew" and "Obama Birthers" probably would list "The X-Files" as one of their three all-time favorite TV programs?

Well if you're ever in Atlanta, be sure to make the trip east on the Cynthia McKinney Parkway to Stone Mountain. As you no doubt are aware, beneath the mountain is a government installation where they study extraterrestrial life and produce forged birth certificates.

Wednesday, August 5, 2009

All the legislative powers and then some

This video has been making the rounds on the Internet. Let me say first that I'm delighted to have a young soldier so interested in the Constitution. I'm not going to jump into the topic he's using constitutional analysis to discuss, namely universal health care, but I did want to point out that there are two problems with the picture of limited government powers that he paints.

The first objection is easy. Declares the soldier: "All the powers of the legislative government are confined in Article I, Section 8." That was true in 1789, but subsequent amendments have given Congress far more authority. Eight amendments carry the clause "The Congress shall have power to enforce this article by appropriate legislation" after spelling out new roles for the federal government. Most notable in this regard is the Fourteenth Amendment, which gives Congress power to pass laws insuring that the states provide due process and equal protection.

But there is a more fundamental problem with taking a hard-nosed position that the feds have those powers and only those enumerated in the Constitution. It's this: suppose you went with the young soldier to a baseball game this Labor Day, a federal holiday. No doubt prior to the game he would stand at attention when the American flag was presented and the National Anthem was played; good for him.

And you know what? Nowhere in the Constitution does it say that Congress or anybody else in the federal government has the power to designate an American flag, or to name a national anthem, or even to make a "labor day" holiday or any other kind of holiday.

The late Professor David Currie, considering the action of Congress in 1794 regarding the flag, wrote this:

'No one questioned Congress's authority to enact it [a flag statute]. The Constitution says nothing about flags. Congress must have understood the power to prescribe one to be inherent in nationhood: Every country needs a flag and the states were in no position to provide it. Tradition supports this interpretation... for the original flag of thirteen stats and stripes was adopted in 1777 by the Continental Congress, which had no express authority in the premises either." -- The Constitution in Congress: The Federalist Period 1789-1801, 1997, p. 204.

One could say much the same about national anthems and holidays as "inherent of nationhood." There is sound basis for an argument that certain powers and responsibilities are thrust on a nation whether it provides for them in a written constitution or not, and these may be acted on at any time but particularly in a time of crisis (see generally Chapter 2 of White, The Constitution and the New Deal, 2000).

No, I'm not saying the health care issue is a crisis. I don't believe we have a health care crisis; I think we have health care problems. But I think we've had those problems ever since George Washington muttered that a good set of wooden teeth was too expensive.

The larger issue is where a national health care plan fits in this scheme of powers government has not because they are enumerated but because, well, it's just something every country does. If Congress could enact a flag law in 1794 even if the Constitution confers them no such power, but the prevailing attitude is "Well, they can do that because every other nation does," it's a bit challenging to explain why in 2009 Congress can't pass a health care law when a whole lot of other countries have done the same.

Thursday, July 30, 2009

Georgia and the membership gap

Suppose you had been born in the year that the English colony of South Carolina was founded. That was the twelfth of the thirteen colonies that later declared independence from Great Britain. Now here's the question: how old would you have been the year Georgia, the last of the thirteen colonies, was founded?

You might be surprised to learn that you would have been sixty-three. South Carolina came to be in 1870, but the colonists didn't land in Savannah to start Georgia until 1733 (Churchill, The Great Republic: A History of America, 1999, pp. 35, 41). That's a big gap. In fact, it's equal to the length of time between when Virginia, the first colony was founded (1607) and the start up of South Carolina. In other words, in sixty-three years between 1607 and 1670 twelve of the original colonies were begun, and it took another sixty-three years before Georgia finally made it thirteen.

Of course, regardless of the seniority of South Carolina over Georgia as a colony, both became states under the Constitution when they ratified that document in 1788.

We're used to seeing charts like this one in which Delaware is listed as the first state because they were the first to ratify the Constitution, Pennsylvania is second, New Jersey third, etc.
Of course, the states did not ratify the Constitution in the same order that they opened up for business as colonies; if they did Georgia would be the thirteenth state, not the fourth.

But let's for a moment consider the growth of the United States a little differently. We'll take as the year a state came into the Union the year it was admitted or, if it was one of the original thirteen, the year the English colony that later became a state was founded. We're considering the addition of members to a North American Union, either the United States of America OR what would later become the USA. Was the gap between the South Carolina colony and the Georgia colony the longest stretch between admission of new members?

It may seem like a long time since we last added a state, and in fact, next month marks the fiftieth anniversary of the admission of Hawaii. That's still well short of the gap between the founding of the colony of South Carolina and the colony of Georgia. To those of you who were around in 1959 when two stars were added to the flag, it may have seemed like forever since a state was added. But actually it was only forty-seven years; New Mexico and Arizona both joined the Union early in 1912.

With the help of the chart I've linked, you can see that in the nineteenth century the longest the United States went without admitting a new member was only fifteen years, between Missouri in 1821 and Arkansas in 1836.

So yes, the sixty-three year gap between the founding of the colony of South Carolina in 1870 and the founding of the colony of Georgia in 1733 was the longest stretch between additional members to the now or future American Union.

But there is a postscript. What was the second longest span between the creation of American entities?

That would be the years between Georgia coming into being as a colony and Vermont entering the Union as a state in 1791, fifty-eight years later. How about that; Georgia ended the longest drought of new members and began the second longest such drought. You probably won't find that in Peach Tree State guidebooks.

And anyway, I get the feeling in another fifteen years that's going to change. Unless Washington DC or Puerto Rico makes it fifty-one or fifty-two states, come 2023 we will mark the longest period of no addition of members to the American family of colonies and later states since those brave folks landed at Jamestown over four hundred years ago.

Wednesday, July 29, 2009

Critical reception

The problem with going to see a movie just because critics say it's superb is that sometimes critics, like everybody else, suffer mass hysteria. Ten years ago I went to see "American Beauty" because darn near everybody who reviews films said it was a classic.

What a piece of drivel, I thought when I departed from the theater. Are you all nuts, I thought when it won all those Oscars.

One also has to wonder when reading or hearing criticism whether the author has an agenda causing him to review the work favorably or unfavorably based on bias rather than the work's merits.

Which brings me to Lynne Cheney's upcoming biography of James Madison. If the book gets a thumbs up from the New York Times Book Review I'll assume it's probably good.

But what if the Times trashes it? If they do, there are two possibilities:

1. It deserves to be trashed, or
2. It doesn't deserve to be trashed, but the author's surname is Cheney so it's gonna get trashed.

I hope Mrs. Cheney and her editor are really going to dot their "i"s and cross their "t"s. I just finished reading Steven Waldmann's Founding Faith. It was incisive and informative, but I got a jolt when on page 189 Waldmann refers to John Bingham, the congressman primarily responsible for writing the Fourteenth Amendment, as "Robert" Bingham. I don't know if any critics caught that when the book came out, but you know certain people will go over Cheney's book with a fine-toothed comb and if she gets a first name wrong it will be on dozens of liberal websites.

Myself, of course, I have a bias for wanting Cheney's book to be excellent. James Madison is my hero.

Wednesday, July 22, 2009

Rockefeller's legacy, Obama's taxes

"Health care legislation will 'probably include some additional revenue from well-to-do people,' President Obama said in a Today show interview with Meredith Vieira that aired this morning.

'It's not punishing the rich,' Obama said. 'The way I look at it is, if I can afford to do a little bit more so that a whole bunch of families out there have a little more security, when I already have security, that's part of being a community.'"

It always seems a bit odd to me that when President Obama expresses his philosophy about the rich coughing up more of their money in taxes, nobody--at least as far as I've seen--points out the irony of this, considering Obama's previous career.

The President was, you will recall, a professor at the University of Chicago Law School. Would you like your son or daughter to go there? That's great if you do; it's one of the finest law schools in the land. But be prepared to pay for the privilege; according to the University's own website the tuition is nearly $44,000 a year. Throw in room and board, books, and other fees and the University acknowledges that the student's cost will be over $66,000 a year--far more than the median annual U.S. household income, which is just over $50,000 a year.

Okay, maybe you'd like to save a little cash and just have your kid go to the University of Chicago as an undergraduate. Alas, that will still run you over $38,000 in tuition yearly; throw in other expenses and even if you live in the Windy City and your son or daughter rides the bus to school, you're still looking at over $46,000 a year to send your youngster to Obama's former stomping grounds. Who's going to keep universities with costs like that running if we have a tax system that inevitably will reduce the number of people with enough cash to pay such figures?

I can't help wondering what the President's reaction would be if someone replied to his comment on the Today Show by declaring, "Sir, rather than give the government any more of my hard earned income in taxes, which will likely be misspent, I'd prefer to use the money I've accumulated to send my daughter to the University of Chicago to get an outstanding education--the same type of costly, private education you got from Princeton and Harvard. You know, if you raise taxes on people who do well, there will be fewer families crunching their budgets and deciding they can afford to send their kids to the University of Chicago. That can't possibly be helpful to your former employer."

Of course, more money taken by the government for taxes also means fewer well off folks will be giving the University funds to renovate buildings or fill scholarship funds. This also can't be good for the President's former workplace.

Finally, let me note the biggest irony of Obama's taxation philosophy. Do you know who founded the University of Chicago, where he taught for a dozen years?

It was John D. Rockefeller, one of the richest Americans of the nineteenth century. Again, from the University's own website, we learn that Rockefeller called the school "the best investment I ever made."

I think it's fair to ask if America had the taxation policies Obama endorses in the 1890s, whether or not Rockefeller would have made the investment in the first place. He might have looked at how much of his empire Uncle Sam was taking and say, "Well, I was going to found a leading institution of higher learning in Chicago, but not with this tax bill I'm not!"

And if that was the case, the grand University of Chicago, with its impressive array of Noble laureates, would never have come to be. You can't help but wonder how many worthy pet projects of the rich will never come to fruition if the government thrusts its hand ever deeply in every wealthy person's pocket.

Tuesday, July 21, 2009

We hold these truths to be self-evident. We just don't know where they are.

When he gave his address to the Conservative Political Action Conference (CPAC) last spring, Rush Limbaugh confused the Constitution with the Declaration of Independence. Said Mr. Limbaugh:

"We want every American to be the best he or she chooses to be. We recognize that we are all individuals. We love and revere our founding documents, the Constitution and the Declaration of Independence. [Applause] We believe that the preamble to the Constitution contains an inarguable truth that we are all endowed by our creator with certain inalienable rights, among them life. [Applause] Liberty, Freedom. [Applause] And the pursuit of happiness. [Applause]"

Keith Olbermann's reaction was predictable; he mocked Limbaugh for the error (fast forward ahead to around 5:50).

My reaction was also predictable. Don't jump on him too hard, liberals, because in no time at all someone on your side of the political spectrum will make the same boo-boo.

Well thanks to the NewsBusters website, I see that the other day it happened. And here's the funny thing: it happened to the exact left wing counterpart to Limbaugh--a chubby, radio talk show host. Furthermore, the error involved the exact same phrase of the Declaration of Independence. And if that's not enough, the guy making the snafu works for the exact same outfit as Olbermann, who reveled in Limbaugh's gaffe:

"Looks like it might be time for summer school instruction in American history for left-wing radio and MSNBC host Ed Schultz.

Here's what a caller said on Schultz's radio show July 16 and Schultz's oblivious response--

CALLER: This gentleman who called previously, asking where in the Constitution does it say that health care should be provided? And I know where it says. It says that you have the right to life, liberty and the pursuit of happiness. So, without health care, people can be deprived of life due to death from lack of medical care.

SCHULTZ: It's true.

CALLER: So, I think it says it right there, you have the right to life, liberty and the pursuit of happiness. It's in the Constitution."

Also predictably, just as Olbermann mocked Limbaugh, NewsBusters blogger Jack Coleman poked fun of Ed Schultz for the error.

Okay, people on the left. Hear me out, folks on the right. Do yourself a favor and quit sneering anytime anyone on the other side gets the Constitution and the Declaration of Independence mixed up. There are a good number of educated folks who have engaged in this foul-up. Give them a break; nobody is perfect.

Besides, we all know the phrase "life, liberty, and the pursuit of happiness" comes from the Gettysburg Address.

Addendum: Oh, my goodness. Would you believe that just five minutes ago from the time I'm writing this, Glen Beck, appearing on "The O'Reilly Factor" did it too? The same mistake, the bit about "life, liberty, and the pursuit of happiness" appearing in the Constitution. No, Bill didn't correct him.

Countdown to someone on the left mocking Beck for the error: five... four... three... And countdown to someone on the left making the same error: five... four... three...

Wednesday, July 15, 2009

The No Labor/ Forced Labor Index

Well I'm not an economist, but it's a free country so if I choose I can create my own screwy statistic to show how bad things are right now. So ladies and gentlemen, without further adieu, it's the "No Labor/ Forced Labor Index"!

The basis of this statistic is that today it really stinks if you don't have a job. But before 1865, it really stunk if you had a job, but you were forced to do it for no pay. In other words, we're combining unemployment and slavery to formulate this index. Because today you can be out of work anywhere in America, but in 1860 you could only be a slave in some of the states, the No Labor/Forced Labor Index only is meaningful in a state like Georgia that had slavery. With that in mind, here's the formula:


Where: #OOWT is "Number of people out of work in Georgia today," #FLBT is "Forced labor in Georgia back then "(number of slaves listed on 1860 census), and NL/FL is, of course, the No Labor/Forced Labor Index.

We've now got 483,394 folks unemployed in Georgia. Back in 1860, the last census before the odious practice of slavery was ended, Georgia had 462,198 people held in forced labor. So, we have this figure:

483,394 / 462,198 = 1.05

When the index is over 1, you've got more people today looking for work than people back then forced to work. This is, of course, just a fancy way of saying we have more unemployed in Georgia now than we had slaves in 1860. But an economist would no doubt come up with a silly index to show this, so why can't I?

Yes, I know. The population of Georgia is much higher today than it was in 1860, so a half million people doing anything in 2009 is a much smaller percentage of the population than a similar number 150 years ago. So I'm not taking the No Labor/ Forced Labor Index too seriously.

But I'll tell you what I am taking very seriously: we're getting near a half million people out of work in a sunbelt state that doesn't have all the labor cost issues often cited for the economic decline of states like Michigan. Here's hoping we can turn things around and get people back to earning a paycheck.

Thursday, July 9, 2009


The other day a preacher said something really dumb about a famous, deceased African-American.

Aha! I bet I got you! You thought I was referring to Al Sharpton's eulogy of Michael Jackson, didn't you?

No, that's not what I'm talking about. I'll admit I'm first in line of the people who think the wall to wall coverage of Michael Jackson's death is over the top. Furthermore, when I hear people argue that Jackson was the greatest entertainer ever, I think about how sports is entertainment, and then I wonder if you could make the case that Jackson wasn't even the greatest African-American entertainer of the past three decades whose first name was "Michael" and whose last name begins with "J." There are a lot of us more thrilled at memories of seeing Michael Jordan dunk than Michael Jackson moonwalk.

But any complaint that Reverend Sharpton's speech exaggerated Jackson's significance is undermined, ironically enough, just by noting the venue in which he gave it. How many memorial services do you see held at the Staples Center?

Here are the specific words of Sharpton's that have caused a stir:

"Because Michael Jackson kept going, he created a comfort level where people that felt they were separate became interconnected with his music. And it was that comfort level that kids from Japan and Ghana and France and Iowa and Pennsylvania got comfortable enough with each other until later it wasn’t strange to us to watch Oprah on television. It wasn’t strange to watch Tiger Woods golf. Those young kids grew up from being teenage, comfortable fans of Michael to being 40 years old and being comfortable to vote for a person of color to be the President of the United States of America."

I'm not sure any of that is over the top. As someone who was twenty-one when MTV went on the air, I remember that after it had been on a year or so there were howls of protest that all the videos featured white performers. As I recall it, one of the responses to such criticism was that MTV was simply responding to demand; it was the white acts that were popular among the target audience of the fledgling network. With the benefit of nearly three decades of hindsight, I think we can see that this argument was uncomfortably close to the remarks by some southern restaurant owners in the early sixties--the "we can't serve Negros because our white customers won't like it" standard.

Then Michael Jackson started putting out videos. They were in heavy rotation; you couldn't watch MTV for more than an hour and a half without seeing Jackson dancing and singing to "Billie Jean" or "Beat It." And yes, there probably are some white people now in their forties who looked beyond race at least partly because of Jackson, and who therefore didn't feel at all odd pulling a lever marked "Obama" last fall.

So who is the preacher I mentioned in the first line, saying something really dumb about a famous, deceased African-American?

It's the evangelist Peter Marshall from Texas. He's part of a panel of "experts" appointed by the Texas Board of Education to make recommendations for new social studies curriculum standards for the state's public schools. According to the Dallas Morning News:

"[Reverend] Marshall... questioned whether Thurgood Marshall, who argued the landmark case that resulted in school desegregation and was the first black U.S. Supreme Court justice, should be presented to Texas students as an important historical figure. He wrote that the late justice is 'not a strong enough example' of such a figure."

Thurgood Marshall argued thirty-two cases before the U.S Supreme Court, winning twenty-nine of them. He is, next to Martin Luther King, the most recognizable person involved with the Civil Rights movement, which was clearly the greatest American social accomplishment of the twentieth century. He couldn't get into the University of Maryland Law School because he was black; he nevertheless wound up not just a lawyer, but a justice on the highest court in the land. When you enter his name at, you get over 6500 results. That's not a strong enough example of a historical figure?

I think Reverend Peter Marshall isn't a strong enough example of an expert to serve on the Texas committee.

Wednesday, July 8, 2009

Abe Lincoln did WHAT???

Good old honest Abe. He succeeded a president named Buchanan. And now he's accused of something he didn't do by another Buchanan. Courtesy of the website, I saw this transcript from Pat Buchanan's appearance on the "Morning Joe" program on MSNBC:

"Lincoln ordered the Chief Justice of the United States arrested."

Of course, Lincoln did no such thing to Chief Justice Roger Taney. Buchanan's assertion sent me scurrying to my bookshelf to peruse James Simon's book Lincoln and Chief Justice Taney (2006) and the chapter on the Civil War era in Geoffrey Stone's Perilous Times: Free Speech in Wartime (2004). I had to double check, just to be one hundred percent certain that in my reading of these two books and everything else I've ever looked at on the legal history of our country, I hadn't missed something as memorable as a President having the Chief Justice of the Supreme Court arrested.

Taney remained a free man during the portion of Lincoln's administration he was fortunate enough to live in. (He died on October 12, 1864 at the age of 87, Simon p. 265). Lincoln didn't arrest Taney. He probably thought about it, but then again Pat Buchanan has probably on occasion thought, "What the hell am I doing on MSNBC?"

Sunday, July 5, 2009

Choosing satisfaction over immortality

Teachers from elementary school through college warn their students to be very careful when using the Internet as a research tool. Most of the concern is directed at Wikipedia, which warrants particular diligence among its users, primarily because--as Wikipedia even admits in its entry on itself--"almost all of its articles can be edited by anyone who can access the Wikipedia website." You never know if the minute you access the entry on President Nixon some joker will have inserted a note that when Nixon went to China the first thing he did upon disembarking the plane was to drop his pants and sing "Yankee Doodle Dandy."

But some websites obviously are careful in what they publish and have some weight of authority standing behind them. I think "The New Georgia Encyclopedia" (NGE) is such a website; it has the University of Georgia, the Georgia Humanities Council, and others in charge of its content.

I mention this because I want to give a striking example of something I learned from the NGE that really took me aback, because I'd never seen this anywhere else. Before I tell you what it is, let me give you the facts as I learned them from good old fashioned books. Carol Berkin in A Brilliant Solution: Inventing the American Constitution (2002) says of William Pierce, a Georgia delegate to the Constitutional Convention, that "He left the convention early to attend to a business crisis" (p. 261).

As a comparison, I checked two other books about the Constitutional Convention that, like Berkin's volume, are what I'd call "popular" accounts of the event. Catherine Drinker Bowen, in Miracle at Philadelphia (1966) and the Collier brothers in Decision in Philadelphia (1986), say something quite different, that Pierce left the convention to attend meetings of the Confederation Congress in New York City (Bowen p. 22, Colliers p. 168).

Then I looked in two books about the making of the Constitution that are far more technical--Jack Rakove's Original Meaning: Politics and Ideas in the Making of the Constitution (1996) and Forrest McDonald's Novus Ordo Seclorum : The Intellectual Origins of the Constitution (1985). (With a title like that, McDonald's book had better be technical!) Rakove doesn't mention Pierce's departure, but McDonald agrees with Berkin that Pierce left to attend to personal business, adding that the business was in New York City (p. 235).

And now here is the version of what happened from the NGE:

"Although he agreed with the end result of the proceedings, Pierce did not sign the U.S. Constitution, having left the convention at the end of June to attend to 'a piece of business so necessary that it became unavoidable.' The business was a duel with merchant John Auldjo, after tempers flared over mishandled 'mercantile dealings.' Auldjo's second, Alexander Hamilton, intervened and prevented the contest."

Wow. I think we can all agree this little tidbit is a lot more interesting than just saying "Pierce left to attend to business." You've got a duel brewing that apparently would have occurred were it not for the intervention of a far more well-known convention delegate, who later would himself be killed in what surely ranks as the most famous duel ever carried out on American soil.

In technical works like Rakove's and McDonald's, it probably wouldn't be appropriate to mention Pierce's appointment (as they used to call duels) since it doesn't have anything to do with the debate over the Constitution. But next time somebody writes a popular account of the big event of 1787, don't you think he or she would want to prick the reader's interest by devoting a paragraph to the remarkable circumstances of somebody actually leaving the convention to participate in a duel?