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.