Brett's Constitution

Confederates vs. al-Qaida

2009-11-13T17:23:00.000-08:00

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."

Mistrust of elective bodies: nothing new here

2009-11-09T02:11:00.000-08:00

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?

Speaking in code

2009-11-02T04:17:00.000-08:00

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.

In case of death, resignation, or inability

2009-10-26T05:54:00.000-07:00

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.

The President gets a big honor

2009-10-09T03:31:00.000-07:00

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.

Due process and Megyn Kelly's baby

2009-10-06T13:24:00.000-07:00

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.

Dollars then and now

2009-09-27T15:52:00.000-07:00

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.

It's a secret when we started having secret ballots

2009-09-22T11:09:00.000-07:00

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?

Glenn Beck and the marbled murrelets

2009-09-17T16:11:00.000-07:00

"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)

THOMAS S. ZILLY, UNITED STATES DISTRICT JUDGE

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."

Half a million dollars, more or less

2009-09-16T02:44:00.000-07:00

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.

And the czar belly sneetches had czars upon thars!

2009-09-15T09:59:00.000-07:00

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?

A "Czar Amendment" is probably not needed

2009-09-08T03:34:00.000-07:00

As the controversy over now resigned Green Jobs Czar Van Jones intensified, Allahpundit over at hotair.com 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.

Constitution and customs

2009-09-07T18:38:00.000-07:00

"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.

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

2009-08-31T10:08:00.000-07:00

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 ourcampaigns.com 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"?

Private letters and public papers: a primer

2009-08-20T07:20:00.000-07:00

"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.

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

2009-08-13T05:57:00.000-07:00

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.

Rock my world, little country duo

2009-08-12T17:35:00.000-07:00

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 EW.com 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 EW.com: '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."

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

2009-08-06T07:23:00.001-07:00

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.

All the legislative powers and then some

2009-08-05T13:13:00.000-07:00

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.

Georgia and the membership gap

2009-07-30T06:36:00.000-07:00

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.

Critical reception

2009-07-29T15:00:00.001-07:00

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.

Rockefeller's legacy, Obama's taxes

2009-07-22T10:36:00.000-07:00

"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.

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

2009-07-21T14:39:00.000-07:00

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...

The No Labor/ Forced Labor Index

2009-07-15T07:01:00.000-07:00

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:

#OOWT / #FLBT = NL/Fl

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.

Significance

2009-07-09T12:47:00.000-07:00

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 amazon.com, 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.

Abe Lincoln did WHAT???

2009-07-08T11:27:00.000-07:00

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 newsbusters.org 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?"

Choosing satisfaction over immortality

2009-07-05T16:17:00.000-07:00

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?

Recent history

2009-06-25T05:12:00.000-07:00

In the wake of the scandal regarding Mark Sanford's extramarital affair, many pundits are saying that Sanford can never be elected president. They are probably correct.

On the other hand, why should we be so certain that a southern governor who marries a woman from the northern suburbs of Chicago and then cheats on her can't make it all the way to the White House when the last southern governor who married a woman from the northern suburbs of Chicago and then cheated on her got elected president twice?

What time is it in Indiana? Whatever the hell time Washington wants it to be!

2009-06-24T06:05:00.000-07:00

One of my brothers used to work in a Chicago office with a few employees who commuted to town daily from nearby Indiana. There apparently was a running gag going on in which the employees who resided in Illinois teased the Hoosiers over their state's time zone intricacies--most of the state is on Eastern Time but the areas close to Chicago are on Central Time, plus Indiana until recently didn't have Daylight Savings Time except where they did, etc.

Since my brother was also a big fan of the TV series The West Wing, this episode, not surprisingly, was one of his favorites. From the wikipedia summary:

"Much of the episode deals with the trio's attempts to get home; however, their journey is delayed by several mishaps (Cathy's car runs out of diesel, they board the wrong train, they miss their plane due to confusion over time zones, etc.) As their journey continues and Josh and Toby debate campaign strategy (eventually concluding that the election should be about the voters' everyday concerns, and not about Bartlet vs. Ritchie), the three of them are exposed to the culture of rural Indiana."

I think the episode concluded with Josh and Toby discovering that people in rural Indiana were apprehensive about having as their choice for President either Barbara Streisand's husband or the father of the guy on Two and A Half Men. By the way, I always thought the title of this episode was "What Time is it in Indiana?" and it probably should have been as that sounds a lot more interesting that "20 Hours in America."

But in thinking about the Constitution the other day--as I do a lot--something dawned on me. Why exactly is it that Indiana for years was permitted to exercise the power to say: "No thanks, the rest of America, we choose not to participate in Daylight Savings Time. It confuses our livestock too much."? (The time change really is confusing to the animals at my petting zoo; they don't understand why all of a sudden we're arriving to work, feeding them, or putting them into the barn for the night an hour earlier or later.)

To answer this, let's look at it the other way, top down instead of bottom up. Why does the federal government have the power to establish time zones and institute Daylight Savings Time in the first place?

If you check the Congressional findings of fact from 15 U.S.C. 260a (2007), you'll notice that there is no declaration such as "pursuant to the power of Congress to regulate commerce 'with foreign nations and among the several states' granted by Article I, Section 8 of the United States Constitution..." to let you know specifically what authority they are grounding this legislation on. I personally wish they would always do this; every single law in the United States Code should begin with a reference to its basis in the Constitution. Nevertheless, since the findings of fact end with mention of the benefits of "expanded economic opportunity" and "extension of domestic office hours to periods of greater overlap with the European Economic Community,'' and since the law appears in Title 15, entitled "Commerce and Trade," it's safe to assume Congress is exercising its authority under the Commerce Clause here.

Then again, Article I, Section 8 also empowers Congress to "fix the Standard of Weights and Measures" and it certainly doesn't seem a stretch to say that time is a kind of measure. So Congress could just cite that constitutional authority as a reason why they can create time zones or enact Daylight Savings Time. Or they could argue that both constitutional grants of power are relevant here. The point is, it's pretty clear that the federal government isn't stretching it to say they can decide what time it is in Indiana.

So why did Indiana prior to 2005 get to say "Hell no, we won't go!? Or maybe more appropriately, "This is a crock, don't change our clocks!"

The answer is that Indiana could ignore Daylight Savings Time not because they said they could, but because the federal government said they could. From 15 U.S.C. 260a:

"(1) any State that lies entirely within one time zone may by law exempt itself from the provisions of this subsection providing for the advancement of time, but only if that law provides that the entire State (including all political subdivisions thereof) shall observe the standard time otherwise applicable during that period, and (2) any State with parts thereof in more than one time zone may by law exempt either the entire State as provided in (1) or may exempt the entire area of the State lying within any time zone."

I find what comes right after that in the law somewhat amusing:

"It is hereby declared that it is the express intent of Congress by this section to supersede any and all laws of the States or political subdivisions thereof insofar as they may now or hereafter provide for advances in time or changeover dates different from those specified in this section."

Uh... okay, you guys in Congress say it's your intent to supersede state laws except you just gave the states the authority to supersede federal law. Josh and Toby could have mused over that bit of bureaucratic weirdness while they were getting lost and stranded all over Indiana.

But Indiana and the other states can't ignore just any old federal law enacted pursuant to Congressional powers. For example, see 29 U.S.C. 206 (2007) the federal minimum wage law. Exceptions are made for Puerto Rico, the Virgin Islands, seamen, and agricultural workers--but unlike with the Daylight Savings Time law, there is no provision allowing a state to opt out of the legislation. Indiana has to pay what the other states pay.

Somewhere in Indiana there must be a business owner who would argue it's a bigger imposition on his operation to have to pay a set minimum wage every hour of every working day than to simply have to reset clocks twice a year. But the Supreme Court upheld the constitutionality of Congress setting a federal minimum wage almost seventy years ago, in United States v. Darby, 312 U. S. 100 (1941), so nobody is likely to get very far at this point challenging the minimum wage, although that won't stop folks like Walter Williams writing an article every year or so decrying the practice. My attitude, frankly, has always been that no matter what, you're GOING to have a minimum wage. It's just that if you don't let Congress decide what it is, the rate will instead be set in a boardroom in Oak Brook, Illinois, or Bentonville, Arkansas. I don't see that as an improvement.

But what about looking at this a slightly different way. What if Indiana reinstituted its dismissal of Daylight Savings Time, but then immediately after they did, Congress decided to amend the law, rescinding the offer to states to ignore the policy if they choose. In other words, in this scenario Congress would veto the Indiana law. Could they do that?

Well if they did, you know somebody from Indiana would challenge the legislation in federal court, making a Tenth Amendment argument that Congress was intruding on a prerogative of the several states. But I can't see how the Hoosier plaintiff could prevail. Not only would the feds cite United States v. Darby, they'd cite dozens of cases going back to McCulloch v. Maryland, 17 U.S. 316 (1819) in support of the proposition that when Congress has authority to act, their authority is exclusive.

Anyway, that's moot since Indiana now has Daylight Savings Time. The state also went for Obama last November and Indiana University hasn't won a Big Ten men's basketball title in seven years. So all three of the things that used to distinguish Indiana from the other Great Lakes states--no Daylight Savings Time, always voting for the GOP in presidential elections, perennial hoops champion--are by the wayside now.

Words, meanings, and change

2009-06-18T11:25:00.000-07:00

Have a look at this sentence from a letter James Madison wrote to George Washington, dated April 16, 1787:

"The great desideratum which has not yet been found for Republican Governments seems to be some disinterested & dispassionate umpire in disputes between different passions & interests in the State."

There are three words in that sentence that deserve comment. One is desideratum; how often do you run into that? I had to look it up; it means "something desired as essential." I don't think I've ever used it in a sentence.

The second word to discuss is disinterested. In The Radicalism of the American Revolution (1991), Professor Gordon S. Wood makes an important point:

"Republicanism... put an enormous burden on individuals. They were expected to suppress their private wants and interests and develop disinterestedness--the term the eighteenth century most often used as a synonym for civic virtue: it better conveyed the increasing threats from interests that virtue now faced. Dr. Johnson [in the first English dictionary] defined disinterest as being 'superior to regard of private advantage; not influenced by private profit.' We today have lost most of this older meaning. Even some educated people now use 'disinterested' as a synonym for 'uninterested,' meaning indifferent or unconcerned." (pp. 104-105).

If you didn't know the sense in which Madison used "disinterested," you might misunderstand his meaning.

Finally in the trio of words I call your attention to is "umpire." Talk about conveying a different meaning today. When you hear the word umpire--even if you're not a baseball fan--isn't the first thing that pops into your head a guy with a mask and a chest protector bellowing "STEEEERIKE THREE!" And you probably even know that there are three other umpires in a big league game, but somehow your first mental image isn't the man in blue at first, second, or third base, is it? It's the guy crouching behind home plate.

Merriam-Webster's online dictionary informs us that umpire originated in the fifteenth century. In other words, it was around for about four hundred years before it got the baseball oriented definition we regard as most familiar today. Webster lists the sports meaning second after "one having authority to decide finally a controversy or question between parties" which is obviously what Madison meant. We can deduce from this how easily the word came to be used in baseball, as the umpires there most certainly decide a question between parties.

But when you read the sentence Madison wrote, you have to remember that neither he nor Washington ever, even once in their lives, heard "umpire" and thought of some guy standing behind home plate at Wrigley Field, Turner Field, or Fenway Park. Baseball hadn't been invented yet. Nor can we in our heads truly recreate that experience--that is, hearing "umpire" and thinking of Webster's older, more general one instead of its newer, sports specific one.

And since Madison had a lot to do with the writing of the Constitution, it's important to acknowledge that even if you take the attitude that the Constitution should be interpreted literally, as it was written, there is always that little "umpire" problem. Some words just meant different things in 1787 than they did today.

Professor Randy Barnett made a very big deal of this in his 2004 book Restoring the Lost Constitution: The Presumption of Liberty. He took around a dozen pages (278-291) to discuss what the term commerce meant to the folks back in 1787. That's significant in the area of Constitutional interpretation because a whole lot of what Congress does they say they can do because of the power granted in Article I, section 8 "To regulate Commerce with Foreign Nations, and among the several States, and with the Indian tribes." Even things that seem as distantly related to commerce as the 1964 Civil Rights Act or the Animal Welfare Act are passed pursuant to a congressional finding of fact that somehow interstate commerce is involved. Here's how it's phrased in the opening salvo of the Animal Welfare Act:

"The Congress finds that animals and activities which are regulated under this chapter are either in interstate or foreign commerce or substantially affect such commerce or the free flow thereof, and that regulation of animals and activities as provided in this chapter is necessary to prevent and eliminate burdens upon such commerce and to effectively regulate such commerce..." (7 USC sec. 2131).

Probably the only thing less common than a sentence with the word "desideratum" is a sentence with the word "commerce" used three times.

Anyway, if President Obama is successful at pushing through a government health care plan, the final legislation will no doubt be proceeded with some mutterings about how this relates to commerce, because Congress has those powers and only those powers granted it by the Constitution, so they have to locate authority for universal health care somewhere, and you know it's going to be the good old Commerce Clause.

In Randy Barnett's book, he takes great issue with this, the notion that Congress can hop on the Commerce Clause and ride it anywhere. He shows--pretty convincingly, actually--that in the founding era commerce meant only "to trade or exchange" and that this is all Madison and his colleagues meant when they put the word into the Constitution. Using commerce to also embrace activities of manufacturing, agriculture--or health insurance--is a gross expansion of that original meaning. In that sense, what has happened with the word commerce is the opposite of what's become of umpire. While the most familiar meaning of commerce has expanded, today's most common definition of umpire represents a contraction of the potential meanings of the word.

But I'm not sure in the area of constitutional interpretation that we should look for fixed meanings of words in 1787. Or, for that matter, in 1868 when the Fourteenth Amendment was ratified. In ruling school segregation unconstitutional in Brown v. Board of Education, Chief Justice Earl Warren wrote:

"The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among "all persons born or naturalized in the United States." Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect. What others in Congress and the state legislatures had in mind cannot be determined with any degree of certainty."

True. But looking at it in a somewhat different vein, so what if even a majority of people in the nineteenth century looked at the phrase "No State... shall deprive any person within its jurisdiction the equal protection of the laws," and thought that sending black children to separate schools than white ones was not running afoul of that command? That doesn't mean that by 1954 the very same words "equal protection of the law" couldn't have come to mean a quite different thing, making school segregation unconstitutional.

I think whenever the debate centers around whether we have a "living" Constitution or not, it's all too easy to forget that we do, unquestionably, have a Constitution that is written. It's composed of words.

And words change. So the same text that existed in 1787 might conjure up different meanings in 2009.

Had we but world enough and time/ To blame everybody but the shooter for the crime

2009-06-12T05:29:00.000-07:00

According to her entry on wikipedia, conservative commentator Ann Coulter was born in 1961. Women lie about their ages all the time, so maybe she was born in 1960, which would serve her right since the country elected a Democrat as president that year. But regardless, I'm reasonably certain Coulter hasn't yet seen her fiftieth birthday.

James W. von Brunn, the madman who opened fire at the Holocaust Museum in Washington, D.C. earlier this week, is eighty-eight. If wikipedia has the date of his birth right, he was born in the summer of 1920, which means he began his unfortunate stay on planet earth before Warren Harding was in the White House.

This also means that von Brunn was forty before Ann Coulter was born, and he was in his seventies before Coulter became famous.

Once in a while you'll see on late night TV one of those B science fiction movies from the fifties or sixties in which dinosaurs are shown together with cavemen. Of course, if you have the most modest education on earth's history, you know that the dinosaurs had been extinct for tens of millions of years before people came along. But the movie maker, of course, didn't really care about this timeline, he just wanted to show an iguana, photographed to look gigantic, chasing an attractive woman in a mini dress made out of bear skin.

Similarly, Michael Rowe of the Huffington Post doesn't care about the von Brunn--Coulter chronology. To him, it's not relevant that James von Brunn was already a senior citizen, with hardened attitudes towards Jews, blacks, and anybody else who didn't fit his definition of the human race, well before anybody had even heard of Ann Coulter. Rowe is anxious to find somebody to blame for von Brunn's despicable act, and apparently it's too simple to just accept the fact that he was an evil man with a long history of violence, so he began his commentary on the shooting with a diatribe against Coulter:

"Ann Coulter, the self-described "conservative Christian" right-wing talking head, is much on my mind as I contemplate the horrifying images that came out of Washington from the Holocaust Museum, where white supremacist James von Brunn opened fire in an attempted mass-murder of Jews. His killing spree was cut short by security guard Stephen Tyrone Jones who put himself in the line of fire and died so others might live.
I am remembering an October 2007 segment of the Donny Deutsch Show where Coulter asserted that America would be better off if everyone was Christian and that "the Jews" merely needed to be "perfected" through conversion."

To state the obvious first, how does an "award winning journalist and author" as Rowe's biography on Huffington Post declares, sit down two days after the tragedy, write "Ann Coulter is on my mind because of the Holocaust Museum shooting," and not immediately edit himself?

There are probably scores of commentators who might in the fury of initial composition write such a thing, but most have the sense to look at what they just penned, say to themselves "You know, that's not really an appropriate thing for me to say" and hit delete. Rowe went ahead with that sentence, composed several more paragraphs around that theme, and then posted it.

Some of you may be jumping up and down and saying "Oh yeah? Well what about the inappropriate things Coulter has written?" But of course, that begs the question why Rowe wouldn't say to himself, "I don't want to be hateful; unlike SOME commentators I could name," and immediately depress the delete key. The irony is that in calling Coulter hateful he comes across as particularly mean-spirited himself.

But back to the whole timeline point, you will notice Rowe doesn't mention that von Brunn was eligible for social security before Coulter ever showed up on TV. To hear Rowe tell it, you'd think von Brunn was an impressionable teenager who never read anything but Coulter's Treason.

Rowe snarls about Coulter's TV appearance in which she spoke of Jews being perfected. But if you think saying something like what Coulter did is the cause of the museum tragedy, and you pay as little attention to the timeline as Rowe does, you might as well hold English poet Andrew Marvell, who died in 1678, responsible for the shooting.

One of Marvell's best known poems is "To His Coy Mistress." It contains these lines:

"...I would
Love you ten years before the Flood;
And you should, if you please, refuse
Till the conversion of the Jews."

My now thirty year old college anthology includes a footnote to these lines that reads "According to popular chronology, the Jews were to be converted just before the Last Judgment."

Rowe probably won't write a post arguing that English professors are partly to blame for von Brunn's dark act because they teach Marvell's poem with its line that today seems anti-Semitic. But by bringing up Coulter, he surely has placed a foot on that slippery slope.

See, the minute somebody commits a heinous act and you start looking around for somebody other than the perpetrator himself to pin it on, there's no end to accessories to the crime. James von Brunn got his degree at Washington University in St. Louis, he served in the U.S. Navy Reserves, and he worked in a Madison Avenue advertising agency--and once again, he did all these things long before Ann Coulter was even a gleam in her parents' eyes. So should we look closely at von Brunn's contacts, the people who actually influenced him in college, in the navy, and in the workplace to see if any of them have some culpability in the shooting? By Rowe's logic, we should--but even he isn't going to follow through with that logic because he wants to slam Ann Coulter and not Washington University. (By the way, since von Brunn got his degree in journalism, he no doubt had to take a few literature classes and might very well have been required to read "To His Coy Mistress.")

You will notice that at the top of Rowe's post are hyperlinks to take you to articles concerning the keywords "George Tiller" and "Bill O'Reilly." Same song, different verse. Some people are trying to hold O'Reilly responsible for the reprehensible shooting of Tiller. No doubt there is also a crazy right-wing blogger or two out there blaming the slaying of Private William Long on Keith Olbermann, the Daily Kos, or some other liberal source that has bitterly decried the war in Iraq.

Enough, everybody. Can't we all just accept the fact that there are some hideously evil people in the world who would find an excuse to cause pain and misery regardless of what anybody else thinks or says?

Constitutional powers and the people

2009-06-11T04:49:00.000-07:00

The pollsters at Rasmussen issued these findings the other day:

...(T)he latest Rasmussen Reports national telephone survey found that 44% believe the Constitution doesn't place enough restrictions on the government. Only 10% hold the opposite view and say the nation’s governing charter places too many restrictions on government. Thirty-eight percent (38%) say the balance is about right."

I don't know what to make of a poll like this. Notice that the only requirement Rasmussen had of the people they interviewed was that they be voters. At the risk of sounding like an elitist, I'm pretty certain you'd get a more valuable expression of informed opinion if Rasmussen asked each person they call three quick, simple questions about the Constitution itself, and then only if all three are answered correctly would the pollster continue and ask whether the document gives the feds too much power or not.

What sort of questions should be used as a screening device? Not anything challenging; I wouldn't ask "True or false: Thomas Jefferson wrote the Constitution" because you'd trip up more people than you would want to exclude from the polling. I'd suggest queries that are simple enough everybody should remember them from high school civics: "What do we frequently call the first ten amendments to the Constitution? Who does the Constitution say is the Commander in chief of the armed forces? According to the Constitution, how many Senators is each state entitled to?"

If somebody can't get those three questions right, I'm not sure I'm impressed with their opinion whether the Constitution gives the government too much power, too little power, or is just right.

Not illegal anywhere in the good old USA

2009-06-03T16:33:00.000-07:00

"On June 11, 1958, Justice of the Peace Robert W. Farmer issued arrest warrants to law enforcement officers of Caroline County at the complaint of the county prosecutor, Bernard Mahon. Mahon, acting on an anonymous tip, alleged that the Lovings had, on June 2, 1958, 'unlawfully and feloniously' left the state with the purpose of marrying and returning to cohabit 'as man and wife against the peace and dignity of the Commonwealth of Virginia.'

"Three policemen... entered (the Lovings) unlocked house in the middle of the night and shone flashlights in Richard's and Mildred's faces. Sheriff Garnett Brooks demanded of Richard what he was doing in bed with 'that woman.' Richard didn't immediately speak, so Mildred answered, 'I'm his wife'... The newlyweds were charged with unlawful cohabitation and taken to the jail in nearby Bowling Green...

"Richard's warrant was executed during a visit from Brooks on July 13. Mildred's was executed four days later. Both pled not guilty to the charges. Because Richard was white, he was bailed out of jail after only one night, while Mildred, referred to as 'a Negress' by the county attorney, spent four more nights incarcerated until her hearing. Although Richard protested, he was told that if he tried to bail her out, he would have to return to prison." -- Newbeck, Virginia Hasn't Always Been for Lovers: Interracial Marriage Bans and the Case of Richard and Henry Loving, 2004, pp. 11-12.

"Sally voted 'Yes' in the Legalize Same Sex Marriaige Poll. Join the 32,236 people who have already voted." -- Note that came over the "News Feed" section of my Facebook page yesterday.

It would be desirable to see another poll taken to determine how many people know there is only one "i" in marriage...

This is a matter of semantics, but I wish at least people in the media would get this correct. Gay marriage is legal in all fifty states. There are, however, only six states in which gay marriage is recognized. (New Hampshire just joined the club.)

The difference is actually pretty substantial. I live in Georgia, in the Heart of Dixie. A close lesbian friend muttered to me recently that this is the last state in the union where she will be able to marry. (Oh come on--we'll have it before Alabama and South Carolina at least!)

But another friend of mine a couple of years back was a guest at a local gay marriage. See, you can do that here. A gay couple in Atlanta can set a date for the ceremony. They can send out engraved invitations to friends. They can rent a hall. They can pay a preposterous amount of money for a cake. They can register for gifts at Bed, Bath & Beyond, and let's face it, if it's two gay men that's probably where they met. They can find a nice Unitarian minister to conduct the ceremony; Unitarian clergy have time on their hands since they don't spend time hearing confessions or dunking any one's head into water. And when it's all over, the happy couple can go live in a loft in Midtown.

And at no point in this scenario will the gays experience anything like what the Lovings--the couple who successfully battled to overturn Virginia's law making interracial marriage a felony--went through. Yes, it really was a felony. On page 224 of Newbeck's book she reprints the relevant law in Virginia at the time: "If any white person shall intermarry with a colored person, or any colored person intermarry with a white person, he shall be guilty of a felony and shall be punished by confinement in the penitentiary for not less than one nor more than five years."

Where the gay Atlanta couple of today is concerned, no justice of the peace will issue an arrest warrant based on an anonymous tip received from the Fulton County prosecutor. Atlanta cops won't be shining flashlights into any body's faces in the middle of the night. Nobody is getting incarcerated for four nights like Mildred Loving, or even for one night like Richard Loving.

Every day here in Atlanta, warrants are issued, doors are kicked in, and arrests are made to bring to justice those who engage in illegal behavior--murders, rapes, battery, auto theft, etc. "Illegal" is the antonym of "legal." Two gays sending out invitations and sharing a condo is not illegal. It's just that if they choose to apply the name "marriage" to the relationship between them, there's no paper with the official seal of the great State of Georgia saying, in effect "this meets the minimum standard we set for defining matrimony." There simply is a world of difference between saying marriage is illegal in Georgia and saying, more correctly, that marriage is not recognized in Georgia.

You may notice, however, that this distinction is seldom made.

Judging a life experience with pigs!

2009-05-29T16:18:00.000-07:00

Well, since I take care of four charming Vietnamese pot-bellied pigs at the petting zoo, I like to read about swine. And of course, I also enjoy reading about the law. So when I read something that incorporates pigs AND the law I'm in--dare I say it--hog heaven!

Now have a look at these comments:

"My Latina identity also includes, because of my particularly adventurous taste buds, morcilla, -- pig intestines, patitas de cerdo con garbanzo -- pigs' feet with beans, and la lengua y orejas de cuchifrito, pigs' tongue and ears... You can tell that I have been very well educated. That antiseptic description however, does not really explain the appeal of morcilla - pig's intestine - to an American born child."

Sooey! That's a lot of references to pigs. And I don't mind that it's all about eating them; even though I love my four pot-bellies I admit I also like pepperoni on my pizza.

So who is the person giving this porcine culinary lecture? Why, its Supreme Court nominee Sonya Sotomayor! It's the same speech she gave for which some are now hammering her for racism. (Two of my pot-bellied pigs are pink and two are black, but I love them all equally.)

Thanks to the New York Times--and God, I hate having to say that--we can peruse the Judge's controversial oration in its entirety. I keep hearing news reports on TV where Sotomayor is quoted as saying "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life." This is usually followed by the observation that Mr. Limbaugh and Mr. Gingrich are apoplectic about these words, howling that they are racist, but then nobody says anything about the context of the remarks.

Well, since Judge Sotomayor said something about pigs in the speech, I figured I owed it to my four swine to carefully examine her remarks.

Before I try to deconstruct the comment getting all the airplay, let me point out that the Judge said something else that one could, if one desired, argue is far more racist than the "wise Latina woman" remark. Earlier in the speech, she declared:

"Let us not forget that between the appointments of Justice Sandra Day O'Connor in 1981 and Justice Ginsburg in 1992, eleven years passed. Similarly, between Justice Kaye's initial appointment as an Associate Judge to the New York Court of Appeals in 1983, and Justice Ciparick's appointment in 1993, ten years elapsed. Almost nine years later, we are waiting for a third appointment of a woman to both the Supreme Court and the New York Court of Appeals and of a second minority, male or female, preferably Hispanic, to the Supreme Court."

The emphasis is mine. It's one thing to advocate a second minority Justice on the Supreme Court; it's quite another to say that it would be better for that Justice to be Hispanic as opposed to Asian American, Indian American, or Native American. Isn't it a little bit offensive to suggest that minorities who aren't African American or Hispanic have to stand in line behind those two groups?

Now on to the "wise Latina woman" remark, in context:

"Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.

"Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown."

First, a bit of that nitpicking I'm infamous for. Sotomayor flubbed the date. The first Supreme Court case upholding a woman's claim in a gender discrimination case, Reed v. Reed occurred in 1971, not 1972.

No need to dwell on that; let's get to the main issue at hand. First, notice the rather apologetic, qualifying manner the Judge use to phrase the sentence that gets pulled out of that paragraph. She doesn't say "Wise Latina women will always make a sounder judgment than a white male;" she opines that she "would hope" that a wise Latina woman would outdo a white male "more often than not." An English stylist might take exception with her for expressing her thought in a timid fashion.

Second, just two sentences later the Judge admitted what she'd just said wasn't necessarily true. She said it's "myopic" to think a judge can't make the right call if he's not of the demographic group affected, citing Brown v. Board of Education as an instance where nine white guys did the right thing and told America to stop sending black children to inferior schools.

I just can't view Sotomayor's "wise Latina woman" comment as racist when she, in effect, took it back five seconds later.

Another little thing--it's notable that Sotomayor mentioned Benjamin Cardozo, because the first sentence of the excerpt above is very similar to something this famous judge wrote. Note first what Sotomayor said: "Whether born from experience or inherent physiological or cultural differences... our gender and national origins may and will make a difference in our judging." She's been getting a lot of flak about that from those appalled at the idea that a judge's personal background and experiences will factor into their opinion writing.

But her sentiments are nothing new. Here's what Cardozo had to say in 1921:

"Deep below consciousness are other forces, the likes and the dislikes, the predilections and the prejudices, the complex of instincts and emotions and habits and convictions, which make the man, whether he be litigant or judge... There has been a certain lack of candor in much of the discussion of the theme, or rather perhaps in the refusal to discuss it, as if judges must lose respect and confidence by the reminder that they are subject to human limitations... The great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by." (The Nature of the Judicial Process, pp. 167-168.)

I think Cardozo expressed the matter with a lot more verve than Sotomayor did--then again, I'm another white male--but the point is that it's silly for anybody to become indignant at the idea of judges being affected by their life experiences when almost a century ago one of the greats of the High Court admitted that this happens.

So I guess I'm defending Sotomayor a bit, and by extension President Obama for choosing her. But I'm not very impressed with Sotomayor's Berkeley speech. She rails on and on about what she wants for the demographic groups to which she belongs--women and Hispanics. That's her right, but far more inspiring to me is something the first minority Supreme Court Justice--Thurgood Marshall--said in 1958 as he stood before the Court he'd later serve on. The case was Cooper v. Aaron, a matter arising from the bitter controversy in Little Rock after the city was ordered to integrate its schools. Marshall faced Earl Warren and the other Justices and declared:

"Education is not the teaching of the three R's. Education is the teaching of the overall citizenship, to learn to live together with fellow citizens, and above all to learn to obey the law...

"I am not worried about the Negro children at this stage. I don't believe they're in this case as such. I worry about the white children in Little Rock who are told, as young people, that the way to get your rights is to violate the law and defy the lawful authorities. I'm worried about their future." (Quoted in Irons and Guitton, eds., May It Please the Court, 1993, p. 254.)

Exhibit A why Marshall was a brilliant man. Rather than pleading over and over about what the anger and lawlessness in Arkansas was doing to African-American children--which as a black man himself he might have been expected to do--Marshall cogently reminded the Justices of the negative effects the Little Rock situation was having on people outside his personal demographic group. That just seems more exalting to me than Sotomayor's dry listing of which circuit courts don't have a Hispanic judge.

Let me close this as I began, by talking about pigs, as Sotomayor did in a portion of her speech. She has eaten all sorts of pork dishes, but I don't know if she has ever taken care of live pigs as I have. But even if the judge has not done so, by virtue of her training she would still be far more competent than me to rule on a disputed contract involving the sale of four Vietnamese pot-bellied pigs. My training in swine husbandry does not trump her training in law. And so even though I've had life experiences caring for swine, that doesn't give me a special insight about a contract involving pigs.

Life experiences--whether you are a wise Latina woman or a blogging pig caretaker--can only get you so far.

Okay, I know I'm being picky...

2009-05-27T05:08:00.000-07:00

... But for goodness sakes, President Obama is a former constitutional law professor; when he's introducing his Supreme Court nominee to America I expect him to be accurate in his explication of the Constitution's words. But he said two things in his first two sentences that a reasonably tough high school civics professor would deduct points for on an exam. Here's the first paragraph of Obama's speech:

"Of the many responsibilities granted to a President by our Constitution, few are more serious or more consequential than selecting a Supreme Court justice. The members of our highest court are granted life tenure, often serving long after the Presidents who appointed them. And they are charged with the vital task of applying principles put to paper more than 20 [sic] centuries ago to some of the most difficult questions of our time."

"Select" means "to make a choice," as in "I selected a Reuben sandwich off the menu" or "The Detroit Lions selected Matthew Stafford from the University of Georgia in the first round of the NFL draft." To select something is to act unilaterally without anybody telling you it's okay.

Of course, the Constitution gives the president no such power; Article II Section 2 gives him the authority to nominate Supreme Court Justices. The Senate has to sign off on it. True, according to the dictionary "nominate" means not only "to propose for appointment" but also "to designate or name." We say, after all, that Obama and John McCain were their party's "nominees" for the presidency last fall when they were the "chosen" men. Thus, one could argue that if the president did have authority to "choose" Supreme Court Justices it wouldn't be inaccurate to also then say that the Chief Executive "nominated" somebody for a post.

But it doesn't work the other way. While the definition of nominate embraces some aspects of choice, clearly choice isn't synonymous with nominate.

Then in his second sentence, President Obama declares that Supreme Court Justices are granted "life tenure." Article III, Section 1 of the Constitution does not put the matter so strongly; it says that "Judges... shall hold their Offices during good Behaviour." To state that there is a difference between "life tenure" and "good behavior" may be quibbling; one introductory text to the Constitution admits that the good behavior provision "In effect... means that judges serve for life rather than at the pleasure of the people or other elected branches," (Vile, A Companion to the United States Constitution and its Amendments,2nd ed., 1997, p. 86). Perhaps there isn't much difference between "life tenure" and "good behavior" in terms of meaning; the distinction might best be construed in terms of who they apply to. "Tenure" is best used to describe college professors, not judges. Obama would have been far better to have stuck to the exact words in the Constitution and said "good behavior."

If you think I'm being too strict on that, again, remember the standard; we're talking here about a President who taught constitutional law at one of the nation's leading law schools. I'm reminded of a passage in Strunk and White's Elements of Style in the chapter where they dissect misused words and expressions:

"Nauseous, Nauseated. The first means 'sickening to contemplate'; the second means 'sick at the stomach.' Do not therefore, say 'I feel nauseous,' unless you are sure you have that effect on others."

For the rest of my life I'll get nauseous and nauseated confused. But I expect an English professor from the University of Chicago to get it right. And I can damn well expect a law professor from the University of Chicago to say good behavior instead of life tenure.

As for Obama's remark in the third sentence that the blog I've linked puts "sic" next too--some other sources don't do that--I really don't know what's going on here. The most likely interpretation is that the President meant two centuries instead of twenty; he's alluding to the formation of the Constitution. Twenty centuries--two thousand years--would take us back to the time of the New Testament. If Obama meant to refer to the long history of law in western culture, why would he have stopped then? He could have added centuries to his tally and gone back to the Ten Commandments or the Code of Hammurabi. Maybe he did mean to do that; perhaps the President meant to say "thirty-five centuries" or "thirty-seven centuries" instead of "two centuries." In other words, maybe "twenty centuries" was an underestimate rather than an overestimate.

Or more likely, he just flubbed the line.

Is it even possible to have a Constitution that's not "actual"?

2009-05-21T16:39:00.000-07:00

This odd note appeared on White House correspondent Jake Tapper's blog at the ABC news website:

"No, that was not an actual copy of the Constitution behind President Obama as he spoke today.
A spokeswoman for the National Archives confirms that just like in the movie National Treasure, the document on display today was a facsimile."

I have over thirty copies of the Constitution in my place, mostly appendices in various constitutional law books. I never really thought of them as "facsimiles" of the Constitution any more than I think of my volume of the complete works of Shakespeare as a facsimile of his original manuscripts. Hamlet and the First Amendment aren't deeds to a house or titles to a car where you need the one and only original copy to be valid, instead they are written words meant to be communicated. So what does it matter if the copy of the Constitution in my desk drawer is part of a mass printing on twenty-first century paper instead of being the original parchment? Any good copy of the Constitution gets the job done.

Even more troubling is the word "actual" in Tapper's first sentence. Here is Webster's definition of actual. The relevant definition in the sense Tapper uses it, I think, is part b of the second one, "existing in fact or reality." Surely the document behind Obama at the speech wasn't a figment of our imaginations; it would be an "actual" Constitution even if it had the Fourth and Fifth Amendments transposed, although in that case it would clearly not be an "accurate" one.

So obviously what Tapper meant was the copy of the Constitution behind President Obama was not an original manuscript signed in 1787 by thirty-nine men in Philadelphia.

But so what?

Blackstone debunked in California

2009-05-20T06:25:00.000-07:00

One doesn't need to look very hard into the history of Anglo-American voting to know that the policy of letting pretty much everybody vote if they're eighteen is a modern concept. Many are familiar with the systematic efforts here in the South to deny African Americans the franchise less than half a century ago, but what I'm addressing here is something that goes back beyond living memory. Namely, the idea that only people--well, men anyway--who had some cash saved or a piece of property to their name should be allowed to cast ballots.

The classic defense of this rather elitist position comes from William Blackstone's eighteenth century Commentaries on the Laws of England. In Book 1, p. 165, Blackstone opines:

"The true reason of requiring any qualification, with regard to property, in voters, is to exclude such persons as are in so mean a situation that they are esteemed to have no will of their own. If these persons had votes, they would be tempted to dispose of them under some undue influence or other. This would give a great, an artful, or a wealthy man, a larger share in elections than is consistent with general liberty. If it were probable that every man would give his vote freely, and without influence of any kind, then, upon the true theory and genuine principles of liberty, every member of the community, however poor, should have a vote in electing those delegates, to whose charge is committed the disposal of his property, his liberty, and his life. But, since that can hardly be expected in persons of indigent fortunes, or such as are under the immediate dominion of others, all popular states have been obliged to establish certain qualifications ; whereby some, who are suspected to have no will of their own, are excluded from voting, in order to set other individuals, whose wills may be supposed independent, more thoroughly upon a level with each other. "

Blackstone's work was enormously influential in the American colonies and familiar to the statesmen of our country in its early years. (Daniel Boorstin's The Mysterious Science of the Law is essential reading if you have any interest in this.) Not surprisingly, at the Constitutional Convention of 1787, several delegates expressed Blackstonian views on who should be allowed to vote. This exchange occurred on May 31:

"Mr. [Roger] Sherman opposed the election [of the House of Representatives] by the people, insisting that it ought to be by the State Legislatures. The people he said, immediately should have as little to do as may be about the Government. They want information and are constantly liable to be misled.

"Mr. [Elbridge] Gerry. The evils we experience flow from the excess of democracy. The people do not want virtue, but are the dupes of pretended patriots. In Massachusetts it had been fully confirmed by experience that they are daily misled into the most baneful measures and opinions by the false reports circulated by designing men, and which no one on the spot can refute."

Other delegates, including James Madison, spoke in favor of popular election of the House, and of course Sherman and Gerry were ultimately outvoted. Still, it's instructive to see that in 1787 respectable men on this side of the Atlantic thought Blackstone was onto something. You have a broad electorate at your peril; let folks with not much property and a lot of bills to pay vote and they will, Blackstone warned, cast their ballot "under some undue influence or other."

Now if you've never once in your life thrown your arms up in the air at election results and said "I can't believe we let stupid people vote!" you're a better person than I am. I'll never forget after Jesse "The Body" Ventura was elected governor of Minnesota, reading this or that analysis of his unexpected victory. Basically, went a popular conclusion, Ventura won because of the support of men 18 to about 25 who normally wouldn't have voted at all but came out in that election because they just thought it would be kind of cool to have a pro wrestler in the governor's mansion. Dammit, we say to ourselves at times like that--or at least I do--maybe Blackstone was right. Who wants a bunch of 22 year old beer guzzling, apartment renting punks, who won't go to a movie unless it has lots of explosions, and whose only tangible asset is an overdrawn checking account, deciding how the government should be run?

And that's why I'm happy when we have election results that serve as a reminder that Blackstone wasn't correct--at least not always. Where his philosophy of enfranchisement is concerned, Blackstone got his butt kicked yesterday in California. How's this for "undue influence":

"[Governor Arnold] Schwarzenegger helped behind the scenes to garner big contributions for the measure's proponents, who raised about $30 million and outspent foes by nearly 10 to 1. Among the big contributors were businesses hoping to avoid tax increases if state finances slumped further: oil companies, tobacco and alcoholic beverage firms, sports teams and Hollywood studios."

And what were the results of outspending the opposition ten to one? Of having big, powerful California companies tell people to vote for the propositions? Of state politicians predicting financial Armageddon if the ballot measure didn't pass?

The voters in California told them all to get lost:

"California voters have officially voted no on five of the six propositions in Tuesday's special elections, according to the results provided by California's Secretary of State's official website. Proposition 1A through 1E were critical in seeking to change the state's budget system, but the five propositions received over 60 percent of voters saying no...

"The only proposition voters approved of was Prop 1F, with about 75.5 percent of voters saying yes. Prop 1F prohibits government officials to receive a pay raise during a deficit."

I love that last bit; don't you?

I'm not going to jump deeply into California's budget issues; not living in that state I haven't thought much about it. I will admit I don't really understand why people live in Los Angeles; I figure if you don't mind smog, congested highways, crime, and lots of gay people, why wouldn't you just move here to Atlanta where you get the same experience with a lower cost of living.

But as a lover of republican principles of government, I certainly feel some pride when in our twenty-first century America, where everybody who takes the time to fill out a form can vote, that the people show an independent spirit and prove Blackstone wrong. Nearly universal suffrage coupled with that ten to one outspending by ballot proponents should have, by Blackstone's logic, given "great, artful, and wealthy men, a larger share in elections than is consistent with general liberty."

That it didn't happen suggests we working class folks are a bit more clever than Blackstone gave us credit for.

The disappearing treaties

2009-05-19T12:01:00.000-07:00

Read books on constitutional law and occasionally you'll stumble across a concern somebody raises that you don't hear voiced frequently. I had such an experience recently reading Michael I. Meyerson's fine volume Liberty's Blueprint: How Madison and Hamilton Wrote the Federalist Papers, Defined the Constitution, and Made Democracy Safe for the World (2008).

These days you can't stick your toe in the pool of constitutional interpretation without bumping into someone, usually a conservative, upset over the expansive reading given to the Fifth Amendment power of government to take property through eminent domain. Others on the right bemoan Congress using the commerce clause (Article I, Section 8) as basically a justification to let the federal government regulate anything and everything.

The liberal angst over constitutional interpretation, tempered now that George W. Bush is out of office, is the idea that the power granted to the President as Commander-in-Chief (Article II, Section 2) gives him authority to put troops in Vietnam, Afghanistan, or Iraq. (My most persistent critic frequently chides me to write an entry blasting President Bush for his foreign policy, apparently because she can't find enough of that on the Daily Kos.)

But in Meyerson's book, I ran into a thoughtful criticism of something we don't find discussed very often; namely, the virtual evisceration of the treaty power due to their replacement by constitutionally suspect "executive agreements." Myerson's explication of this begins on page 184 with a mention of a recent case, American Insurance Association v. Garamendi, 539 U.S. 396 (2003). The case centered around California's passage in 1999 of the Holocaust Victim Insurance Relief Act, which required insurance companies doing business in the state to disclose information about policies they issued in Europe between 1920 and 1945.

The insurance companies argued that California could not enact such a law, as it was precluded by an agreement between President Clinton and German Chancellor Schroeder. A five to four majority, led by Justice Souter, ruled in favor of the insurance firms; in essence holding that the agreement between American and German chief executives preempted state law.

There's just one tiny problem, Professor Meyerson frets. The agreement between Clinton and Schroeder was not a treaty. And not only are "executive agreements" not mentioned in the Constitution, but The Federalist makes a reasonable claim that only by treaty could the United States make agreements with other lands.

Addressing the specifics, Myerson notes that there are two types of executive agreements. One is a congressional-executive agreement--NAFTA is his example--where the matter becomes effective when both houses of Congress give their approval. The second type is a sole-executive agreement, in which there is no congressional activity at all; the President alone signs it and it's done. It was a sole-executive agreement that Clinton signed with Schroeder; so in effect in Garamendi the majority ruled not only that an international agreement preempts a state law, but that such an agreement preempts state law even if it is only made by the executive branch with no congressional oversight.

I'll admit to being quite startled after reading the following excerpt from Myerson:

"These two types of executive agreements have virtually replaced treaties. In fact since 1960, fewer than 5 percent of all American foreign commitments have been formalized by treaty. The appeal of the agreement process is obvious: it is simpler than obtaining a two-thirds vote in the Senate. Indeed, NAFTA in all likelihood never could have been ratified as a treaty; it received only sixty-one votes in the Senate, significantly less than the sixty-seven which would have constituted the requisite two-thirds super-majority." (p. 185).

I have one minor quibble with Professor Myerson's account, which I bring up only because it's small trap easy to fall into when you're discussing treaties, constitutional amendments, or veto overrides where a two-thirds majority is required. We tend to look at sixty-seven as an absolute number, as though this is the minimum threshold for two-thirds of the Senate since there are a hundred senate seats. But in Article 2, Section 2, the Constitution says that the President has power "to make treaties, provided two thirds of the senators present concur." That's my emphasis, by way of pointing out that two-thirds of senators present is not the same as two-thirds of the Senate. (See The Federalist #75 for Alexander Hamilton's observation on this.)

So if NAFTA had been a treaty, it would not necessarily have needed sixty-seven votes in the Senate to pass. Yes, it would need those sixty-seven yeas if all one hundred senators were present at the tally. Sometimes, however, there is at least a senator or two who can't be there because he is sick, drunk, incarcerated, or too busy running for president. If just two Senators are out of the building, the number required for passage of a treaty drops to sixty-six. That's why Article 1, Section 5 says that in "Each House... a Majority of each shall constitute a Quorum to do business..." So in theory a treaty could be ratified by the votes of only thirty-four Senators; this assumes only fifty-one guys showed up that day and the minimum number of yeas was recorded.

That's a digression not meant to demean Myerson's reasonable point. I mentioned that he looks to The Federalist for his argument that treaties were the one and only type of agreement with other nations that the Constitution and its framers endorsed. And just as I brought up Federalist #75 with regard to the quorum issue, Myerson cites it in support of his argument that the framers specifically meant to keep the President from acting alone, as he does in today's sole executive agreements, and that they meant to keep the House of Representatives out of foreign negotiations entirely, which negates NAFTA and any other congressional-executive agreement.

Here is the man on the ten dollar bill explicating why agreements with other countries could not be left solely to the President:

"However proper or safe it may be in governments where the executive magistrate is an hereditary monarch, to commit to him the entire power of making treaties, it would be utterly unsafe and improper to intrust that power to an elective magistrate of four years' duration. It has been remarked, upon another occasion, and the remark is unquestionably just, that an hereditary monarch, though often the oppressor of his people, has personally too much stake in the government to be in any material danger of being corrupted by foreign powers. But a man raised from the station of a private citizen to the rank of chief magistrate, possessed of a moderate or slender fortune, and looking forward to a period not very remote when he may probably be obliged to return to the station from which he was taken, might sometimes be under temptations to sacrifice his duty to his interest, which it would require superlative virtue to withstand. An avaricious man might be tempted to betray the interests of the state to the acquisition of wealth. An ambitious man might make his own aggrandizement, by the aid of a foreign power, the price of his treachery to his constituents. The history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind, as those which concern its intercourse with the rest of the world, to the sole disposal of a magistrate created and circumstanced as would be a President of the United States."

I take it from these words that Hamilton would be horrified at the notion of President Clinton, all by himself, making a deal with the German Chancellor.

But Hamilton wasn't done. In addition to answering the criticisms of those who thought that the President should be able to act unilaterally in making international agreements, Hamilton also disagreed with those who thought the House should be part of any treaty deliberations:

"The remarks... which have been alluded to in another part of this paper, will apply with conclusive force against the admission of the House of Representatives to a share in the formation of treaties. The fluctuating and, taking its future increase into the account, the multitudinous composition of that body, forbid us to expect in it those qualities which are essential to the proper execution of such a trust. Accurate and comprehensive knowledge of foreign politics; a steady and systematic adherence to the same views; a nice and uniform sensibility to national character; decision, SECRECY, and despatch, are incompatible with the genius of a body so variable and so numerous. The very complication of the business, by introducing a necessity of the concurrence of so many different bodies, would of itself afford a solid objection. The greater frequency of the calls upon the House of Representatives, and the greater length of time which it would often be necessary to keep them together when convened, to obtain their sanction in the progressive stages of a treaty, would be a source of so great inconvenience and expense as alone ought to condemn the project."

So Hamilton wouldn't have been a fan of NAFTA either, with its involvement of the House of Representatives.

If you think Myerson is onto something here--and I do--it's all a bit unsettling. We've seen that it's a lot easier to make a sole executive agreement or a congressional agreement than to ratify a treaty. But there is no power given to the federal government or any of its branches to circumvent the treaty power because treaties are difficult to ratify. In fact, if you stop and think about it, this is a principle that if carried to an extreme would destroy the Constitution and even the liberties of the American people.

After all, it's easier to not worry about whether citizens are getting fair trials, due process, or equal protection than to insure that these guarantees are strictly enforced.

The political world never really changes, does it?

2009-05-12T06:15:00.000-07:00

"Patronage was most evident in politics, and there its use was instinctive. When Benjamin Franklin was made deputy postmaster general of North America in 1753, he wasted no time in appointing all his friends and relatives to positions under his control. His son became postmaster in Philadelphia. One brother was made postmaster in Boston; when the brother died, Franklin gave the office to his brother's stepson. He made his nephew postmaster in New Haven, appointed the son of a friend postmaster in Charleston, and made another in New York controller. A year or so later he promoted his son to be controller and moved the husband of his wife's niece into the vacated Philadelphia position. When this office again became open, he brought another brother down from Newport to fill it." -- Gordon S. Wood, The Radicalism of the American Revolution, 1991, p. 77.

"Obama’s promise of changing Washington hasn’t extended to banishing the age-old practice of giving plum posts to relatives of your top supporters — as he’s done with the relatives of a half-dozen well-connected Democrats...

"They are:
• Cameron Kerry, the brother of an early Obama backer, Massachusetts Sen. John Kerry, who has been tapped as chief counsel at the Commerce Department
• Mignon Clyburn, daughter of House Majority Whip Jim Clyburn of South Carolina, who received a coveted appointment to the Federal Communications Commission • David Hamilton, nephew of former congressman and Democratic elder statesman Lee Hamilton, who was appointed to an appellate judgeship
• Courtney Gregoire, daughter of Washington Gov. Chris Gregoire, who last week was tapped as director of legislative affairs at Commerce
• Laurie Mikva, daughter of legendary former Chicago judge and Congressman Abner Mikva, who was appointed to the board of the Legal Services Corporation, which provides legal aid to low-income people
• And Ezekiel Emanuel, brother of White House chief of staff Rahm Emanuel, who is a special adviser on health care to OMB Director Peter Orszag." -- Article at politico.com .

Let me just comment that cronyism and patronage are not quite synonyms. The dictionary makes a significant distinction, as the phrase "without regard to qualifications" is added to the cronyism definition but not to the one for patronage. So that's the challenge for the six people politico names; they've got to convince reasonable minds that they are patrons and not cronies.

Empathetic justice, or Obama misinterprets Star Trek

2009-05-05T10:41:00.000-07:00

"In describing his search for a successor, the president said he would seek a nominee with 'a record of excellence and integrity...who understands that justice isn't about some abstract legal theory or footnote in a case book.'

Mr. Obama also stated his preference for someone attuned to the 'daily realities of people's lives' -- a sentiment conservatives have seized upon as a prescription for what they consider to be unwarranted judicial activism."

--Wall Street Journal, 2 May 2009.

"You know, Justice Roberts said he saw himself just as an umpire. But the issues that come before the court are not sport. They're life and death. And we need somebody who's got... the empathy to recognize what it's like to be a young, teenaged mom; the empathy to understand what it's like to be poor or African-American or gay or disabled or old. And that's the criteria by which I'm going to be selecting my judges."

--Remarks by President Obama to Planned Parenthood on June 17, 2007.

I agree one hundred percent with President Obama that it is important to be aware of the daily realities of people's lives. I'm even with him on the whole empathy thing.

But here's where this former law professor falls flat. Remember, law is a creature of our government. And as we all hopefully remember from high school civics, in the United States there are three branches of government. I'm all in favor of having an executive branch with a man like Obama who strives to recognize what it's like to be a young, teenage mom. I will personally support candidates for the legislative branch, Congressmen and Senators, who try to understand what it's like to be African American, gay, disabled, or old.

But when it comes to the third branch, the judiciary, I want someone who understands that if a homeless woman carelessly pushes her shopping cart into a rich man's Mercedes and scratches the paint job, she is negligent and the wealthy man has a potential claim against her. If you can't stomach that, don't become a judge. Be a community activist, a legislator, or a President, as Obama has been in that order. It can't matter to a judge whether one party in a conflict is better off than the other; he needs to rule based on the facts and the law. And if the law is bad, well, let the legislators change it.

I would guess that in his constitutional law classes, President Obama probably taught The Federalist. Here's what Alexander Hamilton had to say in Federalist #78:

"The judiciary... has... no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment..." (Emphasis mine).

Western culture, it has often been noted, seems obsessed with threes. The Father, Son, and Holy Ghost. The monarchy, the aristocracy, and the commoners. The legislative branch, the executive branch, and the judiciary. Curly, Larry, and Moe. Whenever we categorize society or the universe into a triumvirate, we adopt an understanding that each member of the trio has a special function separating it from the others, and that in this manner the unit works as a coherent whole as long as everybody pulls their weight.

Where Obama is wrong to think that the Supreme Court is the place for empathy is perhaps best demonstrated by another famous trio set to make an appearance in a major feature film this week. The executive branch, represented today by President Obama, is like Captain Kirk--he needs to make sure the Enterprise doesn't slam into any stars or start interstellar incidents with the Klingons.

The legislative branch is more like Doctor McCoy. It can be passionate, maybe even sometimes emotional and irrational, but that's because you want someone with an honest bedside manner if you're lying in sickbay laid out with a bad case of Rigelian Fever.

The Judiciary needs to be Mister Spock. No emotions. Whether somebody is African American, gay, disabled, or old should be irrelevant. And it is illogical for counsel to pursue that line of reasoning.

Yes, I know that on our planet judges are humans, not Vulcans, and as the great twentieth century Earth Supreme Court Justice Benjamin Cardozo observed, "We may try to see things as objectively as we please. None the less, we can never see them with any eyes except our own." (The Nature of the Judicial Process, 1921, p. 13). But if a judge doesn't at least make that attempt to see things objectively, he's doing a disservice to his position. He's being like Dr. McCoy when he needs to emulate Spock. He needs to suppress his emotions and grow a pair--of pointy ears, that is.

Let me emphasize that while I'm advocating a judiciary that doesn't care if you make twenty grand or twenty million, I'm not saying the bench should be cold as the Andorran home world. There are, after all, plenty of procedural issues to encourage the kind of result President Obama would endorse. I think Professor P.S. Atiyah put it well in An Introduction to the Law of Contract, 5th ed. (1995):

"An art dealer calls on a 'little old lady' and offers to buy her old canvas for a song, well knowing that it is a Constable worth many thousands of pounds. If he is not allowed to retain the fruits of his bargain, what incentive is there for art dealers to search out hidden treasures which may otherwise be lost to the public forever? Whatever the explanation, this is a classic sort of case where there is is no duty of disclosure, but it is also just the sort of case where courts might be expected to strain to discover some sort of operative mistake or implied condition, or actual misrepresentation." (p. 250).

So in my hypothetical example, it's fine with me if the court dismisses the rich man's claim against the homeless woman because he was illegally parked. Or it can rule that she is guilty but owes the Mercedes owner only the oldest pair of shoes in her shopping cart. What a court should not do is take into consideration the wealth of the litigants before anybody has even be sworn in.

That's no way for judges to live long and prosper.

If the only thing worse than being talked about is not being talked about...

2009-05-02T03:55:00.000-07:00

Since Justice Souter announced yesterday his retirement from the Supreme Court, speculation has been rampant on who will fill his seat. It seems everybody is assuming President Obama will tap a woman as Souter's replacement, with Judge Sonia Sotomayor and Solicitor General Elena Kagan being the names most commonly uttered.

You know what seems odd to me? The Secretary of State is a woman, and nobody is talking about the possibility of Obama nominating her.

Is it far fetched that Obama would choose Hillary Clinton? Perhaps. But consider this: he didn't ask her to be his running mate, which suggests he didn't want her too close to him. Obama may have felt, however, that he owed Clinton something, and it was going to be perceived as an insult if he gave her a low level cabinet post, so he gave her a top job Secretary of State.

But if you still assume that Obama doesn't want Clinton too close to him, and that he's got to put her somewhere prominent, why not just put her on the Supreme Court? Her concept of jurisprudence is similar to his; plus if she's on the Court there is probably no chance she might break rank and challenge Obama in the primaries in 2012 if his poll numbers are low. Furthermore, there's a tradition of the Senate confirming High Court nominees quickly if it's one of their own under consideration--or at least there was such a tradition back when it wasn't uncommon for someone to go from the Senate to the Court.

As an added bonus, Clinton in the new position wouldn't be embarrassed by mistranslations when she meets with Russian dignitaries! Sounds like a win-win proposition to me.

We shall overcome and find really lame examples of not doing so

2009-04-28T12:25:00.000-07:00

There are two things I believe about the state of civil rights in America. Number one, we still have a way to go towards racial equality, even if the guy flying in Air Force is African American.

And number two, the examples given--and offered in complete seriousness--of how we have not yet achieved complete racial equality are often a bit silly.

No, these are not contradictory statements. This occurred to me as I read Michael Klarman's recent book Unfinished Business: Racial Equality in American History. First a comment on the volume: it's fine if you are looking for a quick overview of the subject. Were I to teach a class of high school seniors or college freshmen on civil rights in America, knowing how short an attention span teenagers have, this is probably the book I'd use as a text. But if you're really interested in the topic, far better and more thorough is Klarman's 2004 book From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality, or We Shall Overcome: A History of Civil Rights and the Law by Alexander Tsesis, published just last year.

Anyway, in Unfinished Business, Professor Klarman concisely summarizes the racial situation in this country from the founding to the present. Mostly he considers the African-American experience, although to his credit he does not neglect to discuss the appalling treatment of Asians in California from the nineteenth century through World War II.

Towards the book's conclusion, Klarman brings up areas where we still have inequalities. In the first several pages of the chapter entitled "To the Present," he looks at Hurricane Katrina and the havoc it raged on poor black communities in New Orleans. That's a perfectly reasonable point to raise, even if he mentions President Bush's response to the disaster only briefly and Mayor Nagin's response not at all. But then Klarman jumps into an ill advised look at American society as a whole, making this groan inducing comment on page 200:

"Magazine readership is... stunningly segregated: in a typical month, half of all blacks read Ebony, while fewer than one in every hundred whites does so."

Well not too many fifty year old women read Seventeen either. Perez Hilton and Elton John probably don't read Playboy, or if they do, they're actually telling the truth when they say they read it for the articles. Go into a old folk's home and you probably won't find many copies of Rolling Stone lying around. Anybody see any of that as a problem?

By the way, take a look at what Ebony says on their own website:

"Our goals is to provide a unique and engaging forum to explore the impact of the world on African Americans and the impact of African Americans on the world."

That's for the online edition, of course, but the print edition is similarly focused. I wish, by the way, that somebody there had focused on noticing that it should have been "our goal" not "our goals." The point is, if you produce a magazine and specifically say your target audience is African American, you're going to get mostly African American readers. That's just fine; the notion of few people of European descent reading Ebony as being a sign that segregation is alive and well in America is a bit of a reach. Besides, if they just put a caption on the front cover stating "Inside: pictures of Beyonce' in a bikini" they'll get plenty of white guys checking it out. Except Perez Hilton and Elton John.

Right before making the Ebony remark, Klarman notes that in 1996-97 there was only one television program in the top twenty among both white and black viewers--Monday Night Football. Uh oh, I thought, he's going to bring up the racial composition of NFL teams.

He did. From page 201:

"On its surface, the National Football League seems very well integrated: two-thirds of the players are black, and one-third is white. Yet in 1995, blacks were just 9 percent of professional quarterbacks, while they were 90 percent of running backs and wide receivers, and 100 percent of defensive cornerbacks. Whites are represented disproportionately on the offensive line, where intelligence is prized, and blacks on the defensive line, where greater emphasis is placed on athleticism."

Yeah, plus most punters were white and a large percentage of players with surnames ending in a vowel were placekickers. I really don't have a clue what point Klarman is trying to make with this. We'd be better off if instead of all the cornerbacks being black there was the same two-thirds black, one-third white ratio as on the roster as a whole? All I want from the Atlanta Falcons cornerbacks is to keep the receivers on the other team from making catches. As for the bit about intelligence on the offensive line and athleticism on the defensive line, I confess I've never thought about it in those terms. Instead, I think the defensive linemen are supposed to slam their bodies into the quarterback and the offensive linemen are supposed to stop them from doing it. Since both acts are quite painful, I don't think either side is behaving particularly intelligently.

Just last weekend, University of Georgia quarterback Matthew Stafford was the first player taken in the NFL draft. He's going to Detroit. As such, he'll be in the city that arguably shows how far we still have to go in the USA to make the American dream accessible to everyone. Hopefully he'll spend his free time visiting Detroit's communities and trying to make it a better place, which frankly might be a bit easier than making the Lions a better team. When we all do whatever we can to show our concern for those who don't have the best opportunities available to them, we help to make the world just a little bit better.

That matters a whole lot more than whether we read Ebony or not.

Palmettos and Polish sausage in the White House?

2009-04-26T16:30:00.000-07:00

In our endless cycle of Presidential elections, one already hears South Carolina Governor Mark Sanford mentioned as a candidate in 2012, or 2016. Suppose for a minute that Sanford does follow Barack Obama into the White House. Do you realize that this would mean that three of four first ladies in succession were born in the Chicago area?

Well, as the photo of Jenny Sanford on the official website of the SC Governor's Office shows, at least we'd finally have a Windy City born first lady who gave birth to a son or two...

Biblically correct and Darwinally correct

2009-04-22T10:38:00.000-07:00

"The way I answered may have been offensive. With that question specifically, it's not about being politically correct. For me it was being biblically correct."-- Carrie Prejean, Miss California.

When controversies erupt about gay marriage, or even gay rights, as they have in the wake of Perez Hilton's question for Prejean at last weekend's Miss USA pageant, and when the inevitable mention of Scriptures arises, I'm always struck by a profound irony.

Namely this. As I write, I've got two books on my desk, a pair of volumes that belong in every home as far as I'm concerned. One is the Bible; the other, having its sesquicentennial this year, is Charles Darwin's Origin of Species. Now clear away all your preconceptions and answer this question: which of these books more logically leads to a notion of tolerance for homosexuality?

I'd say it's the Bible, and it's not a particularly close call.

Yes, I know about Leviticus 17:13, "Thou shalt not lie with mankind, as with womankind: it is abomination," and how this has been used by some zealots to argue that gay people are eventually going someplace hotter than Atlanta in August. Of course, Leviticus also says you can't eat pork (11:7); I've never heard anybody suggest gays are going to hell for eating ham sandwiches.

But beyond Leviticus 17:13, look at all the passages in the Bible that implore tolerance and compassion towards everyone, without regard to who they lie next to. Take Matthew 22:39, for instance: "Thou shalt love thy neighbor as thyself." Or Matthew 25:40: "Inasmuch as ye have done it unto one of the least of these my brethren, ye have done it unto me." And most famously, Luke 6:31: "And as ye would that men should do to you, do ye also to them likewise."

Doing unto others as you'd like done to you is, it seems to me, something Perez Hilton and his ilk could cite in favor of allowing gays to marry.

Does Darwin's master work offer any powerful ammunition to the cause of homosexual rights? Not so much; it's coldly logical and scientific. In fact, The Origin of Species is arguably a better case against homosexuality than Leviticus 17:13. Look at what Darwin says in the final chapter, summing up the book:

"The struggle for existence inevitably follows from the high geometrical ratio of increase which is common to all organic beings... The slightest advantage in certain individuals, at any age or during any season, over those with which they come into competition, or better adaptation in however slight a degree to the surrounding physical conditions, will, in the long run, turn the balance... With animals having separated sexes, there will be in most cases a struggle between the males for the possession of the females. The most vigorous males, or those which have most successfully struggled with their conditions of life, will generally leave the most progeny."

It doesn't take a degree in biology to understand a couple of basic facts inherent in these words. Humans are animals having "separated sexes" at least outside of San Francisco. The perpetuation of the species is dependant on sexual reproduction--all six billion people on earth are the result of the unification of a sperm cell, produced only by males, and an egg cell, produced only by females. There has never been, nor will there ever be, a case of humans propogating by Perez Hilton getting it on with another guy. If all human sex was between same sex partners, the human race would eventually die out. This is a reality that even the strongest critics of Darwin's theories would acknowledge.

And so, by Darwinian theory, you've got one behavior, heterosexuality, that has a good chance of helping an individual to pass on his or her genes, and a second behavior, homosexuality, that affords no chance to pass on genes.

So if you're going to be coldly logical about it--if you're going to put all your eggs in the scientific basket and none in the morality/religion basket--then there is no sound argument for gay marriage, or even for gay behavior being legal.

This is essentially why it's so silly to get all worked up over whether people are born gay or not, as though if you could scientifically prove that such was the case that it would end all debate. Pastor Rick Warren made a not unreasonable point in that regard: it's biological for heterosexual men to be attracted to multiple women, but that doesn't mean we as a society condone adultary in married men. And if it is acceptable for a society to say, in essence, that we don't care what a heterosexual man's urges are, we expect him to maintain a certain standard of behavior, there really isn't any reason that the same policy shouldn't hold for the urges of homosexual men.

Unless, that is, we as a society decide it's okay for a man to marry another man, that the analogy to a married man's urges is irrelevant. I think we're well on our way to making that judgement--but the point is, if we are traveling down that road, it's a position grounded in morality, of which the Bible is a canonical text, and not of science, of which The Origin of Species is a canonical text. That's the irony of Pastor Warren's comments--he's a preacher, not a scientist, and yet his view of gay marriage is less love thy neighbor than survival of the fittest.

Which takes me back to my thesis here, that the Bible makes a better case for tolerance of homosexuality than science does. So why isn't the case made? Or going the other way, if Darwinian theory is a powerful argument against homosexuality, why don't the opponents of gay rights ever use it?

I think it's pretty obvious why. People who support gay marriage tend to be liberal, those opposed tend to be conservative. If liberals started citing New Testament verses in support of gay rights, they'd then have to answer charges of being inconsistent when they fight to prevent a public high school football team from saying a few words of prayer before the big game. And if conservatives pointed to Darwin to argue that homosexuality is contrary to natural selection, they'd then be asked why they don't believe that same process of natural selection could take you from Australopithicus to man in a few million years.

Sometimes people will ignore a potential argument in their favor because they just can't stomach the source.

Out: rum ruffians. In: racist rednecks.

2009-04-21T04:09:00.000-07:00

It seems to me that those who criticized last week's tea parties, for the most part, took the position that the participants were misguided. In its milder form, you had Senior White House Advisor David Axelrod suggesting the tea parties were "unhealthy." In its more extreme form, you had Janeane Garofalo tarring the protesters as racist rednecks.

I'm not sure if such epithets are worse than those hurled at some earlier prominent protesters of the government's fiscal policy. Recently I read Woody Holton's probing book Unruly Americans and the Origins of the Constitution (2007) in which he extensively discusses the sour financial mood of the United States under the old Articles of Confederation. Holton argues, in fact, that it was largely the fiscal crisis that led to the drive for the Constitution.

Ah, but that came a little later. First and foremost, the 1780s protesters were admonished, just as Axelrod and Garofalo did to the placard-wielders at the tea parties. But here's the contrast: rather than suggesting that the eighteenth century discontented were misguided, their critics exclaimed that "The Fault is All Your Own," as Holton entitled chapter 2 of his book. Here's how that chapter begins:

"As more and more Americans insisted that the harsh fiscal and monetary policies of the 1780s had spread desolation through the countryside, most of the defenders of these policies acknowledged that farmers were in trouble but denied that official crackdowns on debtors and taxpayers were to blame. 'The disorder under which you at present labour and complain,' 'Mentor' told his fellow Marylanders during the summer of 1876, 'is only to be ascribed to your own misconduct.'" (p. 46).

Professor Holton goes on to describe an argument made seriously then that I doubt anyone would make today--even if one might quietly murmur that it had a tincture of validity. Namely, the 1780s ladies were told that it was their love of extravagant clothing that was largely to blame if their husbands or fathers were a little short when the tax man came around. Holton quotes an essayist of the time who advised the men "(P)ull all the plumes from the heads of your wives and daughters. Feathers and fripperies suit the Cherokees, or the wench in your kitchen; but they little become the fair daughters of Independent America." (p. 49). Now THERE is a redneck racist, Miss Garofolo, and he furthermore used the word "wench," the chauvinist!

I may have missed something, but I honestly don't think any of those who sneered at the recent tea parties pondered aloud why the ladies in attendance didn't quit complaining about their tax burden and just shop at Goodwill instead of Saks.

Of course, the opponents of the 1780s activists didn't confine their objections to the women having nice clothes. The men, they insisted, were at fault as well. The same guy who blasted feather wearing ladies "told Connecticut farmers they could easily discharge their tax bills if they would simply drink less rum," Holton notes dryly, pun intended (p. 49).

As loud as the outcry about Garofolo's remarks has been, just imagine if she'd added to racist rednecks the comment, "If these clowns would stop spending money on beer and NASCAR tickets, they'd have plenty of extra money that the government could tax to use for the greater good."

Garofolo would never say anything like that, of course. People might accuse her of being elitist.

It's right there in black and white! And it's dead wrong!

2009-04-15T04:39:00.000-07:00

William Leuchtenburg's The White House Looks South (2005) is a readable, entertaining look at the way in which three twentieth century presidents--Franklin Roosevelt, Harry Truman, and Lyndon Johnson--were influenced by, and themselves influenced, the South. Being a Yankee living in the Deep South, I might have gotten more out of the book than most folks would, but still I recommend it very highly. I've always enjoyed in Leuchtenburg's writings his use of letters written to historical figures by ordinary citizens, and there is plenty of that here.

And, there is one honking big, how-in-the-world-did-that-make-it-past-the-editor goof in the last sentence of the volume. There, Leuchtenburg writes:

"In sum, the South in the twenty-first century--indeed the South on Lyndon Johnson's final day in office in 1973--is a very different place from the South Franklin Roosevelt found when he got off a train in a rundown Georgia village in 1923." (p. 418).

Of course, LBJ's final day in office was January 20th, 1969, he famously declined to seek reelection in 1968.

I'm not writing this to pick on Professor Leuchtenburg; we all make mistakes and I've contributed to the universe's tally of errors in this blog. But the point is, you always need to be alert when reading about history; boo-boos do creep in and often you won't know unless you've already got some sound knowledge of the topic at hand. The thing about Leuchtenburg's wrong date is that lots of people would catch this one right away, because there are so many people alive today who were also alive in 1973 and know that Nixon was President.

Another interesting book I've almost finished has a great example of a mistake that I would wager better than 99% of its readers wouldn't catch. On page 150 of Democracy Reborn:The Fourteenth Amendment and the Fight for Equal Rights in Post-Civil War America (2006), author Garrett Epps has this to say:

"The population [of African-Americans in 1865] was overwhelmingly concentrated in the Deep South--in South Carolina, Georgia, Alabama, and Louisiana, in fact, blacks formed a majority of the population."

No, in fact, they didn't--at least not in Georgia and Alabama. I remembered from some earlier research that there were about four and a half million slaves in Georgia in 1860 and over five and half million whites, but I checked the census figures from 1860 and 1870 again just to be certain. (Isn't it great living in an age where you can access the Census Bureau's website and look at actual facsimiles of the books from 1860 and 1870 instead of having to go to a research library and pour through dusty books in a remote corner of the building?)

Sure enough, in 1860 Georgia recorded 465,698 "colored" people and 591,550 whites. Ten years later the figures were 591,550 colored and 638,926 white.

I checked the other five Deep South States--the four Epps mentions plus Mississippi and Florida. It's odd he didn't mention Mississippi, since this is one of two states--South Carolina being the other--where blacks did outnumber whites in both the last antebellum census and the first Reconstruction one. Alabama and Florida, like Georgia, had more white people than black in both counts. Louisiana had a few thousand more white than black in 1860 and in the following decade it flipped so that there were a few thousand more blacks in 1870, so I don't see how you could safely say which race was better represented halfway between the tallies.

Then there are those statements in books that are mostly true, but not entirely true, and so we should take care not to phrase them as absolutes. Epps provides another example of this on page 211 when he writes:

"Together [Susan B. Anthony and Elizabeth Cady Stanton] formed a mighty force that--though it did not win the vote [for women] in their own lifetimes--transformed the world around them."

I've seen similar comments--about Anthony--at least, elsewhere, including in a museum journal article written by an interpreter at the Susan B. Anthony home. Remember this: if you read that Susan B. Anthony--who died in 1906--passed away before women could vote, it is exactly as if you said that someone who died today went to the grave before gays could legally marry. As of last week, we've got four states that permit gay marriage; when Anthony died four states--Wyoming, Colorado, Utah, and Idaho--fully enfranchised women (Keyssar, The Right to Vote, 2000, p. 402). Actually, gay marriage in 2009 and women voting in 1906 isn't quite so perfect an analogy, because while gay marriage is a black and white thing--they can either do it or they can't--women voting in the late nineteenth and early twentieth centuries has shades of gray. Ladies in Kansas, for instance, could vote in 1887, but only in municipal elections (Keyssar, p. 400). The point is, a lot of woman had voted in one capacity or another when Susan B. Anthony died--or Elizabeth Stanton, for that matter, who passed away in 1903.

What it all boils down to is that when you write something its a good idea to cite multiple sources; it's an even better idea to go to the original source, as I did with the census figures.

And for goodness sakes, be skeptical about what columnists write. What set me to penning this little essay on errors was the groan I uttered when I got up this morning, checked out the townhall.com website, and read this assertion by Walter E. Williams, a professor at George Mason University:

"The Constitution's Article V empowers two-thirds of state legislatures to call for a constitutional convention to propose amendments that become law when ratified by three-fourths of state legislatures. I used to be for this option as a means of enacting a spending limitation amendment to the Constitution but have since reconsidered. Unlike the 1787 convention attended by men of high stature such as James Madison, Thomas Jefferson, George Washington and John Adams, today's attendees would be moral midgets: the likes of Barney Frank, Chris Dodd, Olympia Snowe and Nancy Pelosi."

If you choose, you may agree with Williams that Barney Frank is a moral midget. But you know, Congressman Frank has at least one thing in common with Thomas Jefferson and John Adams. They did not attend the Constitutional Convention of 1787 either.

Gay power to the people

2009-04-14T12:02:00.000-07:00

Some of you are going to think I'm being preposterously nuanced on this, but I'm in favor of gay marriage in Vermont but not in Massachusetts.

What's the difference? I defer to Abraham Lincoln's first inaugural address:

"(T)he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal."

Lincoln was referring to the United States Supreme Court, and its disastrous decision in Dred Scott v. Sandford, 60 U.S. (How. 19) 393 (1857). But clearly the sentiment could apply as well to the decisions of state supreme courts.

Last week in Vermont, gay marriage became law thanks to the actions of legislators, the direct elected representatives of the people. But in Massachusetts, gay marriage is the law because of a four to three majority decision by the state's Supreme Judicial Court in Goodridge v. Dept. of Public Health, 440 Mass. 309 (2003). In Massachusetts, the justices on their highest court are not direct elected representatives of the people; they are appointed by the Governor.

Massachusetts had been around for a colony and later a state for almost four hundred years when Goodridge was decided. I just personally think that when you have four hundred years of precedent that marriage can exist only between one man and one woman, that policy shouldn't be changed by the words of four out of seven judges. In America the judiciary serves the people, not the other way around.

And to petition the Government for a redress of grievances

2009-04-13T16:27:00.001-07:00

"A credible national survey reveals that more students know the names of the Three Stooges than the three branches of government." --U.S. Supreme Court Justice Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution, 2005, p. 133.

Well, maybe that's because these days the three branches of government work together about as well as Curly, Larry, and Moe painting a room.

I seem to recall also seeing polls that show that a majority of Americans cannot name one of the freedoms guaranteed by the First Amendment. I do suspect that if you asked a well informed person to name one of those provisions, he or she would shoot from the hip "freedom of speech," or "freedom of the press" or "freedom of religion." Those are all quite wonderful things to have in a democracy, but I wonder if the most important part of the First Amendment is the final eighteen words, "the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." After all, if people don't exercise their right to tell the government when they're displeased about something, what's to stop government from continuing the offending practice? If you say "elections," I'm not certain I'd agree. Sometimes, alas, government goes on doing things that irritate a lot of people regardless of the results at the ballot.

The significant point is that we've got a right to assemble and petition--or to condense it into one word, a right to protest--and democracy works best as a participatory exercise. So why do so many think it's acceptable to mock people simply for the act of assembling and making their voices heard? Take a look at this video; notice how condescending Rachel Maddow and her guest are about the "Tea Parties" planned for this week:

http://www.msnbc.msn.com/id/26315908/#30145811

To me, this smacks more of sneering at people for getting together to protest rather than an honest disagreement with the outcome the protesters endorse. I don't mean to pick on Maddow since she's a liberal; I've seen the same on the other side. Some conservatives have mocked Code Pink and other Iraq War opponents for marching to make their position known.

We should all try not to do this. Argue with the message if you wish, but respect the right and the desire to protest. You'll want that consideration yourself if you're ever inspired peaceably to assemble.

Miscue by ASU

2009-04-11T03:40:00.000-07:00

There is actually a very sound reason why Arizona State University should not give an honorary degree to President Obama. Look at the list of past recipients of the honor. See who's missing?

They've never conferred such a distinction on John McCain. And if ASU has not seen fit to give an honorary degree to a man who spent years in an enemy prison camp, who served the state in Congress for so many years, and a man who, if Arizona voters had their way, would be in the Oval Office right now, why should a university that represents the state and draws money from its taxpayers salute Obama before him?

On the other hand, since ASU has awarded honorary degrees to Hugh Downs and Erma Bombeck, maybe we shouldn't take the whole matter so seriously...

Potheads

2009-04-05T10:43:00.000-07:00

Time magazine has published an article arguing that we should legalize marijuana. Personally, I'm one hundred percent against legalizing pot, for a very sound reason. Namely, I figure the only thing worse than having a lot of people behaving like Sean Penn would be having a lot of people behaving like Sean Penn's character in Fast Times at Ridgemont High.

The Tenth Amendment and the wolves

2009-04-01T11:35:00.000-07:00

"Just as California under President Bush asserted itself on issues ranging from gun control to medical marijuana, a motley cohort of states – from South Carolina to New Hampshire, from Washington State to Oklahoma – are presenting a foil for President Obama's national ambitions. And they're laying the groundwork for a political standoff over the 10th Amendment, which cedes all power not granted to Washington to the people."

The article goes on to give this example of a supposed state assertion of the Tenth Amendment:

"The Idaho House began considering Wednesday a law against introducing "vicious animals" into the state – a direct rebuttal of the federal wolf reintroduction program."

Full disclosure on two fronts. First, as a petting zoo keeper, I really like animals and want to do what's best for them. Second, in general I'm a proponent of the Tenth Amendment. That's why I think Roe v. Wade was a poor decision. You've got the states regulating abortion from the time the union was founded, and all along it's perceived as an area of family law subject to state law in the same way marriages and adoptions are, and then all of a sudden the Supreme Court decides that because of the Fourteenth Amendment's due process clause, federal authority over abortion is warranted. A much less nuanced reading of the Constitution leads, I believe, to the conclusion that in 1973 the Court should have left the matter of abortion where it was, with the states.

Having said that, don't you pro-lifers kid yourselves that if Roe had deferred to the states that most abortions these past thirty-six years would have been prevented. In the six years before Roe nineteen states passed laws making it easier for a woman to have an abortion; that trend likely would have continued. (See Elshtain, "Roe v. Wade: Speaking the Unspeakable," in George, ed. Great Cases in Constitutional Law, 2000, p. 178.)

But I want to talk about wildlife here, not abortions. Animals, unlike abortions, are popular; people wouldn't take their kids to the San Diego Zoo to see a fetus removal. And where the wolves are concerned, those legislators in Idaho may be howling up the wrong tree. It's all about the Constitution's Property Clause.

The Property Clause is found in Article IV, Section 3 of the Constitution; it declares:

"The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State."

If you've read anything about the history of this country between 1850 and 1860, you know we basically had a Civil War because of two contrasting interpretations of this clause, with one side saying yes, since Kansas is a territory and not a state Congress can ban slavery there and the other side saying no, that's a strained interpretation. Abe Lincoln gave a famous campaign speech on this matter, but his eloquence did not convince everyone, and so the bullets flew.

With the ending of the War, plus the granting of statehood to all those western territories, the property clause no longer was applicable to quite as much land. Ah, but note I said not quite as much land. Because even today, over a century after statehood, a whole lot of land in some of those western states is federal property. You may say if you want that this means the U.S. government is the landlord; I prefer to think that this means we the people are the landlords.
In the specific case of Idaho, sixty-four percent of the land is in federal hands, almost two-thirds of the acreage. And if Congress authorizes federal agencies to reintroduce wolves to some of those lands where they are now rare or absent, well, they have the power to do that.

This was essentially the holding of Kleppe v. New Mexico, 426 U.S. 529 (1976), in which a unanimous Supreme Court upheld the Wild Horses and Burros Act against a claim by New Mexico that Congress had exceeded its authority. Although the burros at issue in the case were rounded up on federal land (Kleppe at 533-34) the Act protects mustangs and donkeys even if they stray off of federal land and onto private property (Kleppe at 531-32). In its opinion, the Court made it pretty clear that under the Property Clause the U.S. government can enact very stringent laws to protect wildlife on federal lands.

Admittedly, there is another issue where wolf reintroductions are concerned. For while a burro may compete with a rancher's livestock for food, a wolf might make the rancher's livestock food. Worse, from the rancher's point of view, when it comes to federally protected species, the courts have not observed the traditional common law right of a landowner to defend their property. Thus, in Christy v. Hodel, 857 F.2d 1324 (9th Cir. 1988) a fine of $2,500 on a rancher who shot a grizzly bear was upheld even though he'd lost twenty sheep in one week to the bears. The U.S. Supreme Court declined to hear Christy's appeal.

If you click on that link, even if you favor wolf reintroduction I think you'd have to conclude Justice White's dissent from the decision not to grant certiorari raises some relevant points. We as a society have concluded that wolf preservation is a lofty goal, but why should the ranchers alone bear the financial burden for any damage done by wolves? Fortunately, this is one of those cases where private citizens, rather than the government, have stepped in to ameliorate an unfavorable situation.

For over twenty years now, the Defenders of Wildlife have maintained the Wolf Compensation Program. Through this fund--consisting of private donations, not taxpayer dollars--the Defenders of Wildlife pay landowners the market value of any livestock killed by a wolf (Faigman, Legal Alchemy: The Use and Misuse of Science in the Law, 1999, p. 171--Faigman's several pages on Yellowstone wolf reintroduction provide a good, brief background on the topic).

In summary, to prevail in their fight against the feds, those politicians in Idaho will have to work to overturn Kleppe, a thirty-three year old, nine to nothing decision. As it now stands, there isn't much constitutional merit to Tenth Amendment arguments objecting to wolf reintroduction.

Oh Lord, it's hard to be humble

2009-03-25T04:32:00.000-07:00

I watched the post press conference analysis last night, and no one seemed to pick up on what I noticed. Namely, we've got a president--and an administration--that really needs to learn a little humility. Saying "When Gordon Brown came to visit me" instead of "When Gordon Brown paid our country a visit" I can pass over, especially since it was in response to a question.

But in his prepared remarks--his prepared remarks that one presumes Rahm Emanuel and several others looked at, for Pete's sakes--President Obama said this:

"And in this budget, we have -- we have to make the tough choices necessary to cut our deficit in half by the end of my first term, even under the most pessimistic estimates."

Why on earth did he have to say "by the end of my first term"? Don't he and his people have any notion how presumptuous this sounds? Where was somebody pouring over the speech, crossing out that phrase, and replacing it with "by 2013"?

One of my favorite stories about a President is when Thomas Jefferson neared the end of his life, he insisted that his epitaph list three and only three accomplishments: his authorship of the Virginia Statute for Religious Freedom, his writing the Declaration of Independence, and his founding of the University of Virginia. When asked what about being Governor of Virginia, Ambassador to France, Secretary of State, Vice-President, and ultimately a two term President, Jefferson responded that those distinctions didn't belong on his gravestone because they were things the people did for him and he wished only to be remembered for things he did for the people.

That anecdote needs to be told at the White House.

Addendum: Hey, by saying "by the end of my first term" didn't Obama basically announce he plans on a second? How come no reporter picked up on that and inquired, "Mr. President, have you given us a scoop? You said 'by the end of my first term;' can we take this to mean you've announced your candidacy for 2012?"

The only appointment Obama can make is to see the dentist

2009-03-18T06:47:00.000-07:00

Okay, I'm nitpicking a little. But can you find the error in this report in the Washington Post?

"President Obama yesterday made his first judicial appointment, naming U.S. District Judge David F. Hamilton to the federal appeals court, a choice excoriated by some conservatives even as the White House touted him as the type of moderate who could cool the nation's long-simmering judicial battles."

The President does not make judicial appointments; he makes nominations. Here's the relevant text from Article II, Section 2:

"(The President) shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he 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..."

Appointment implies that it's something Obama can do without consulting anybody, except maybe Michelle; the Constitution makes it clear that the Senate has to give its okay.

On second thought, maybe I'm not nitpicking. This is the main newspaper in the nation's capital, for goodness sakes; they should get that right. I checked the home town paper; and it's correct there. It damn well better be; the name is the Atlanta Journal-CONSTITUTION, after all. Actually, the AJC had noting to do with it; notice they just reprinted the Associated Press piece on the NOMINATION. But that further begs the question: if the AP can get it right why can't the Washington Post ?

Domesticated man

2009-03-17T14:00:00.001-07:00

Because I work at petting zoo, I've read a little bit about animal domestication. I also try to read a little bit about everything, so once in a while I encounter information relevant to my sheep, goats, and pigs in books that by and large have noting to do with animals.

Such was the case when I read Physics and Politics, published in 1872 by my favorite Victorian nonfiction writer, Walter Bagehot. (My friends will tell you that's the problem with me, that I actually have a favorite Victorian nonfiction writer, but never mind.)

In chapter 2, Bagehot, building on the work of a more famous Victorian, discusses the process of natural selection as it occurs when humans domesticate animals:

"The taming of animals as it now goes on among savage nations, and as travelers who have seen it describe it, is a kind of selection. The most wild are killed when food is wanted, and the most tame and easy to manage kept, because they are more agreeable to human indolence, and so the keeper likes them best."

He begins the next paragraph:

"Man, being the strongest of all animals, differs from the rest; he was obliged to be his own domesticator; he had to tame himself."

And this caused me to reflect on how the "domestication of man" has occurred in fits and starts. There have been some beautiful milestones. Think of the words of Jesus in Luke 6:31: "And as ye would that men should do to you, do ye also to them likewise." Or ponder what Thomas Jefferson wrote in the Declaration of Independence: "We hold these truths to be self-evident:
That all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness." Helping to correct a blind spot Jefferson had, in 1965 President Lyndon Johnson thundered, "The time of justice has now come. I tell you that I believe sincerely that no force can hold it back. It is right in the eyes of man and God that it should come. And when it does, I think that day will brighten the lives of every American." Congress listened and passed the Voting Rights Act.

Yes, there has also been a great deal of backsliding. But when I read words such as those I've quoted above, I feel eternally hopeful. Man has a lot of domesticating still to do, but I think as a species we're a lot closer to a sunny farmyard than to a foggy wilderness.

Pinky Lee Pig: right thing in the wrong place now in a better place

2009-03-12T07:22:00.001-07:00

When visitors to my petting zoo look at our Vietnamese pot-bellied pigs, normally they ask one of three questions. The first question: "Is it true that pigs are intelligent?"

This query merits a humorous response, so I either say, "Of course! That's why pigs are the animal women compare us men to the most." Or "You bet they're intelligent! Wilbur over there is running for Congress. He promises if elected not to spend the taxpayer's money on pork."

The second question is how long they live. I respond that with proper care they can make it into their late teens, and that the one belonging to George Clooney actually lived to be nineteen. Coincidentally, nineteen is also the number of people who saw his film Confessions of a Dangerous Mind.

The third question is something I don't feel comfortable joking about. "Is it true that they make good pets?" comes the hopeful inquiry.

And I respond seriously that no, they do not make good pets, and the craze for Vietnamese pot-bellied pigs was a sad fad indeed. So many people purchased these swine and came to regret their decision that some thoughtful, concerned people have set up pig rescue sanctuaries so that there are homes for unwanted pets that the owners want to discard.

Then I think of the famous instance of someone who wanted to keep a pig, and apparently was competent in her swine husbandry, but she suffered the wrath of her neighbors. And me being me, I ponder the ironic connection this has to constitutional law.

The situation I'm describing took place in upscale Lake Forest, Illinois, where Estelle Walgreen, ex-wife of the heir to the drugstore fortune, battled her neighbors over her unusual pets. Well today I see that Pinky Lee, one of Mrs. Walgreen's three swine, died at the ripe old age of sixteen. She'd have made it to nineteen like Clooney's pig, but living in Illinois instead of Hollywood she didn't have the advantage of a tofu diet or an exercise guru.

The article I've linked touches briefly on the dispute between Walgreen and other property owners in the vicinity. When the controversy was first raging, my mother sent me every clipping she found in the Chicago Tribune reporting on these Lake Forest swine. Meaning no disrespect to the Tribune reporters, neither the linked article--nor, by my recollection, any of the earlier pieces sent to me by Mom, although I've lost them since--mentioned the little constitutional law irony I want to note here.

In 1926, the United State Supreme Court decided the landmark case of Euclid v. Ambler (272 U.S. 365). The high court ruled six to three that it was acceptable for communities to have zoning ordinances. Lots of cities and towns already had zoning in place by 1926, so if the court had gone the other way, it would have made a huge difference in how America grew in the twentieth century. Anybody interested in this is well-advised to read The Zoning of America: Euclid v. Ambler by Michael Allan Wolf (2008). It's a title in the University Press of Kansas series "Landmark Law Cases and American Society." (I have several volumes in this fine series; they're directed towards an interested popular audience rather than lawyers, so you don't need to be a Harvard Law Review contributor to get something out of them.)

Well in the course of his opinion for the court, Justice George Sutherland had cause to define, where property rights are concerned, what exactly is a nuisance. And here he goes:

"A nuisance may be merely a right thing in the wrong place, like a pig in the parlor instead of the barnyard." (Euclid at 388).

I'd love to know, frankly, if the attorneys representing the "let's keep Lake Forest pig-free" neighbors thought to put that citation in their briefs. Whether they did or didn't, I just think it's a riot that in THE case on zoning in America, the Justice tossed out a hypothetical nuisance that was exactly the circumstance of a well-publicized controversy in a ritzy Chicago suburb seventy years later. (Okay not quite exactly--the pigs were in Walgreen's garage instead of her parlor, but it's pretty damn close.)

So godspeed, Pinky Lee Pig, and if you're in pig heaven, I hope you get to eat all the goat feces you want. My pigs at the petting zoo really enjoy doing that. Gee, I'll never understand why the Old Testament says swine are unclean animals...

Sir Teddy and "obscurity"

2009-03-09T05:58:00.000-07:00

A bit of debate has ensued over whether a sitting senator, like Ted Kennedy, can accept a foreign honor such as knighthood. Writes Amie Parnes at Politico:

"Is Sir Ted's knighthood unconstitutional? The naysayers point to Article I Section 9 of the Constitution, which says “No title of nobility shall be granted by the United States: and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.”

I agree with most of the article, which makes the point that the key words are "consent of Congress" and even the most partisan Republican is unlikely to object to Senator Kennedy being knighted. Since the honor apparently no longer requires consummation by an exhibition of jousting, everybody should be just fine with this.

There is, however, one small objection I have with Parnes's piece. That's her reference to the section of the Constitution in question as "obscure."

In the first place, can any provision in the Constitution honestly be called "obscure"? It's only got seven articles and twenty-seven amendments. Akhil Amar notes that "It's full text, including amendments, runs less than eight thousand words, a half hour's read for the earnest citizen" (America's Constitution: A Biography, 2005, p. xi). My desktop copy of the document , the one published by the Cato Institute, fits in a shirt pocket and has all of the First, Second, and Third Amendments, plus the first sentence of the Fourth, on one page. I don't see a work this brief as capable of hiding an obscure provision in the manner that ponderous statute books can.

Furthermore, while the average man on the street might find certain parts of the Constitution low on the relevance scale, to us who are deeply immersed in the Constitution everything is significant. I cited above from Professor Amar's book. That volume isn't intended just to be read by a handful of scholars; he wrote it for an interested popular audience. Amar spends five pages on some problems that have resulted from the Eleventh Amendment, and I bet there isn't one person in a thousand who could even hint at what's in that provision. But again, if you are serious about the Constitution, neither that amendment nor anything else is "obscure."

But outside of these general reasons, there is a more specific argument that the clause relating to Kennedy's situation is not obscure. First, it's found not just one place in the Constitution, but two. And second, an 1810 proposed amendment that would have put this concern in yet a third place in the Constitution was essentially the Equal Rights Amendment of its time--a provision that easily passed Congress, was sent to the states, and fell short of ratification by one state.

Addressing the first point, while the Politico article cites Article 1, Section 9, which applies to the federal government, Article 1, Section 10 makes the same point regarding state governments. "No state shall..." it asserts "grant any Title of Nobility." So serious were the framers of the dangers of bills of attainder, ex post facto laws, and somebody being made a duke or an earl that they made it crystal clear that neither the federal government nor any state could do this.

Incidentally, this relates to the point that in 1833 John Marshall made in Barron v. Baltimore, holding that the Takings Clause of the Fifth Amendment--and by extension, the entire Bill of Rights--did not apply to the states. The pre-Civil War Constitution said that no titles of nobility could be granted by Congress, or by the states, but it only says that Congress can't infringe on the freedom of speech, so how could you argue that the Constitution prohibits a state from regulating speech? As a result of the Fourteenth Amendment and subsequent decisions, most of the Bill of Rights now does apply to the states, but for where this country was in 1833 Marshall's logic wasn't a stretch.

Now the second point, the early nineteenth century attempt to amend the Constitution to regulate honors or gifts from foreign sovereigns even more tightly. The proposed amendment said this:

"If any citizen of the United States shall accept, claim, receive or retain any title of nobility or honour, or shall, without the consent of Congress, accept and retain any present, pension, office or emolument of any kind whatever, from any emperor, king, prince or foreign power, such person shall cease to be a citizen of the United States, and shall be incapable of holding any office of trust or profit under them, or either
of them."

Imagine if that had been ratified. Under it, even if Ted Kennedy gave up his seat in the Senate and became a private citizen, if he accepted the knighthood without clearing it through Congress, he would actually lose his citizenship. This might just be the most draconian measure that ever came close to being a part of our Constitution, especially when you consider the "any present" language. Never mind touching his shoulder with a sword, if the Queen of England simply bought Teddy lunch he could forfeit American citizenship by accepting.

And it didn't miss out by much. David Currie points out that the vote in favor of this amendment was 26 to one in the Senate and 87 to three in the House, and that it was ratified by twelve of the seventeen states in existence in 1810 (The Constitution in Congress: The Jeffersonians, 2001, p. 334). A thirteenth state voting yea and there it would sit as our Thirteenth Amendment. (Which, of course, means the actual Thirteenth Amendment, banning slavery would have been the Fourteenth, the Fourteenth would be the Fifteenth, and so on down the line.

Currie also noted that one does not find much information from newspaper accounts, the Annals of Congress or any other source contemporary with the proposal that lets us know today exactly why so many people thought foreign gifts were such a menace that the threat of loss of citizenship had to be held over the heads of the masses. He cites another book that remarks of the speculations by historians that it could have been fears of Napoleon, or an attempt by the Federalists to embarrass President Madison, or a "powerful expression of nativist prejudice" (p. 333).

You know what's funny about this? One of the states that stood in the way of this harsh amendment coming to fruition was the same one that was the first to secede fifty years later. Said the South Carolina House of Representatives when inquired by Congress about their rejection of the proposal:

"(We) are not aware that any evil consequences have resulted from the existing provisions of the constitution, while on the other hand, (we) can but believe that the adoption of such an amendment would operate imperiously on innocent individuals, as well as the community at large". (Currie, p. 334, n. 103).

Well done, Palmetto State.

You're biased if you just report what was said

2009-03-02T14:55:00.000-08:00

I try very hard to keep an open mind to all sides of an issue. The best reason for keeping such a personal policy was, I think, elucidated nicely by the great twentieth century federal judge Lerned Hand, who delivered a speech in which he declared: "The spirit of liberty is the spirit which is not too sure that it is right."

So one thing I've done is to bookmark on my computer both NewsBusters, which snarls that the media is liberally biased, and Media Matters, which just as vehemently asserts that journalism is partial to conservatives. Now I've never understood why people can't just accept that Keith Olbermann is going to rant against the right and that Sean Hannity, now free of the moderation of Alan Colmes, is going to tell us Obama will take the country right down the toilet. I think everybody should simply deal with it and then just get on with their lives. Still, it's good practice to peruse both websites to read points, valid and preposterous, that are made by both outlets.

And I'll tell you the difference between NewsBusters and Media Matters where my disagreement with them is. When NewsBusters writes something I disagree with, my usual reaction is to think "That's pretty trivial."

On the other hand, when Media Matters, in my view, drops the ball, my reaction is more the order of "You can't be serious!"

About three years ago, Brent Bozell of NewsBusters wrote a column in which he decried the abundance of fart humor on Nickelodeon. (When he writes about that stuff, it's more the entertainment industry being left than journalists, but what the heck, thanks to the Bill Mahers and John Stewarts of the world the line between those occupations is blurring.) Bozell and I are of similar ages, and when I read the column I just rolled my eyes. I figure he and I turned out okay in spite of being exposed to cartoons in which Bugs Bunny caused Yosemite Sam to fall off a cliff, or Jerry dropped a piano on Tom's head. I don't think kids today are much at risk just because it's a rare moment on "The Grim Adventures of Billy and Mandy" when somebody isn't passing gas.

My objection with Media Matters, on the other hand, is perhaps best emphasized by a piece they have today concerning the manner in which President Obama's nomination of Kathleen Sebelius as secretary of the Department of Health and Human Services has been reported. The blurb summarizes its complaint:

"Reporting on President Obama's selection of Kathleen Sebelius as Health and Human Services secretary, The New York Times and the Politico propagated the baseless conservative charges that the health care reform efforts of Obama and Sebelius amount to 'socialized medicine.'"

Merriam-Webster offers several definitions of "propagated." I don't think in this context Media Matters is complaining that the New York Times and Politico are trying to reproduce; the meaning intended here must be: "a: to cause to spread out and affect a greater number or greater area : extend b: to foster growing knowledge of, familiarity with, or acceptance of (as an idea or belief) : publicize c: to transmit (as sound or light) through a medium."

So what exactly did the New York Times do to earn Media Matters' admonishment? Why, they did this nefarious thing:

"(I)n a March 1 article, the Times uncritically repeated conservatives' charges that Sebelius is 'an advocate of 'socialized medicine' -- or 'Hillarycare,' as Melvin Neufeld, who was [Kansas] House speaker at the time, put it.'"

Yes, the New York Times "caused to spread out" or "fostered growing knowledge of" or "transmitted" the charge by the Kansas House Speaker that Sebelius favors socialized medicine. See, that's what newspapers are supposed to do when reporting on a politician; it's their job to get a quote or two from that elected official's detractors.

But notice what Media Matters is objecting to: that the Times article "uncritically repeated" the difference of opinion. Apparently the Media Matters folks think the reporter should have broken in with a paragraph assuring readers that the charge was without foundation.

I would argue that the Times article presents Governor Sebelius in a very favorable light--in fact, it's just the kind of piece NewsBusters might scowl at. Just read these paragraphs:

"In that job [state insurance commissioner], Ms. Sebelius cast herself as a consumer champion by pushing to protect patients from rationed care by health maintenance organizations and rapid discharges by hospitals. She declined campaign contributions from the industry she regulated and, in her boldest move, rejected the 2002 purchase of the state’s largest insurer, Blue Cross and Blue Shield of Kansas, by Anthem Inc., based in Indianapolis.

"No other state insurance commissioner had blocked such a sale, but Ms. Sebelius argued that it would result in higher premiums for Kansans. Litigation ensued, and she ultimately was upheld by the State Supreme Court.

“'She rode that decision all the way to the governor’s office,” said Sandy Praeger, the current insurance commissioner and a Republican."

So we learn from this that Sebelius took on an insurance company, won litigation, and was elected governor as a result. Then for good measure, there is a note of acknowledgment, if not praise, from somebody on the other side of the aisle.

It certainly doesn't sound to me as though reporter Kevin Sack was unfair in his portrayal of Sebelius, and certainly he wasn't acting as a partisan hack for the right. But Media Matters takes him to task simply for reporting that Sebelius's policies have critics, which if Sack didn't do, he'd be a partisan hack for the left.

Oh well, that's the beauty of living in America and listening to as many viewpoints as you can. You always have the power to evaluate things and come to your own decision. I hope both NewBusters and Media Matters would agree.

Will started something, by George

2009-02-24T06:43:00.000-08:00

I was pleased that my effort yesterday regarding Sunday's George Will column was referenced at hotair.com. Ed Morrissey also took issue with Will, for slightly different reasons. What is really interesting to me, however, if you look at the comments posted, is how many people agree with Will that the Seventeenth Amendment ought to be banished to Siberia and the selection of senators given back to the state legislatures.

As I normally do, I made my case from a historical perspective, pointing out the problems before 1913 that led to the amendment's adoption. What occurred to me later was that I should go back all the way to the debates at the Constitutional Convention of 1787 to see if there was a lot of disagreement over mode of selection of senators when this great land was just getting organized.

The significant discussion took place on June 7. The delegates were just getting underway when John Dickinson moved "that the members of the 2d. branch ought to be chosen by the individual Legislatures." His motion was promptly seconded, whereupon Dickinson elaborated why he was in favor of such a means of selection:

"1. because the sense of the States would be better collected through their Governments; than immediately from the people at large; 2. because he wished the Senate to consist of the most distinguished characters, distinguished for their rank in life and their weight of property, and bearing as strong a likeness to the British House of Lords as possible; and he thought such characters more likely to be selected by the State Legislatures, than in any other mode."

Anybody besides me get a bit of a giggle over reason 2? I mean, when I look at Georgia's two senators--Saxby Chambliss and Johnny Isakson--the last thing I think is that they bear a strong likeness to members of the House of Lords. I'll bet neither one even owns a powdered wig.

James Wilson, populist that he was, disagreed with Dickinson; he thought the voters should choose representatives in both houses. He made a motion to postpone Dickinson's motion--isn't parliamentary procedure a bit odd--so that popular election could be considered. That motion was seconded, but not another one offered by George Read to have senators selected by the president from a list of candidates provided by the state legislatures.

Nobody seconded Read's odd idea, but it's worth pointing out for one reason: to remind ourselves that there were more than just two options here. We tend to think of there being only a pair--selection by state legislators or popular election--because those are the two we've had in our history. But Elbridge Gerry summarized four options, not including Read's:

"4 modes of appointing the Senate have been mentioned.
1. by the 1st. branch of the National Legislature[i.e. the House of Representatives]. This would create a dependence contrary to the end proposed.
2. by the National Executive. This is a stride towards monarchy that few will think of.
3. by the people. The people have two great interests, the landed interest, and the commercial including the stockholders. To draw both branches from the people will leave no security to the latter interest; the people being chiefly composed of the landed interest, and erroneously supposing, that the other interests are adverse to it.
4 by the Individual Legislatures. The elections being carried thro' this refinement, will be most likely to provide some check in favor of the commercial interest agst. the landed; without which oppression will take place, and no free Govt. can last long where that is the case. He was therefore in favor of this last."

Notice that the support Gerry gives selection of senators by the state legislative bodies doesn't seem wholly enthusiastic; it's more that he thinks the other three methods are bad. It's maybe his version of Churchill's point about democracy being the worst form of government except for all the others. Having giggled over the idea of our Senate as a House of Lords, I must admit I chuckled even harder at the second plan on Gerry's list. Can you imagine if during George W. Bush's eight years in office he'd been able to select senators? Who's head would explode first, Michael Moore's or Sean Penn's?

Well before they adjourned for the day on June 7, the delegates took a vote. And here it is:

"On Mr. DICKINSON's motion for an appointment of the Senate by the State — Legislatures.
Mass. ay. Ct. ay. N. Y. ay. Pa. ay Del. ay. Md. ay. Va. ay N. C. ay. S. C. ay. Geo. ay."

Unanimous. Ten to nothing. Maybe if James Wilson and Robert Morris--the delegate who seconded Wilson's stand for popular election--had been the only two representatives from Pennsylvania it would have been nine to one, but the Constitution was signed by eight men from the Keystone State, so they could easily be out polled in their own delegation.

The chief point here, of course, is that while there was a bit of debate, the motion to have state legislators pick the senate passed as easily as it could have. By contrast, the vote on June 26 to have senators serve six year terms, staggered so that a third of the seats would be contested every two years, passed only seven to four. It just wasn't a very controversial move in 1787, letting states, rather than voters, choose the upper house.

In fact, it was so non-controversial a mode of selection that it also gets very short shrift in The Federalist Papers. Here, in number 62, is all that is said on the matter:

"It is equally unnecessary to dilate on the appointment of senators by the State legislatures. Among the various modes which might have been devised for constituting this branch of the government, that which has been proposed by the convention is probably the most congenial with the public opinion. It is recommended by the double advantage of favoring a select appointment, and of giving to the State governments such an agency in the formation of the federal government as must secure the authority of the former, and may form a convenient link between the two systems."

It's uncertain whether that was Hamilton or Madison writing, but that isn't important. What is significant here is the brevity and the tone. Notice the first sentence assumes this to be a matter of such little disagreement that it needn't even be elaborated on. Michael Myerson of the University of Baltimore has recently written a very fine book on appreciation of The Federalist, he nevertheless concedes that "some of these papers are a bit ponderous and repetitious," see Liberty's Blueprint, 2008, p. x. But the discussion of how senators are chosen is shorter than a two year old's attention span. By contrast, there is a whole paper--number 68--defending and explaining the method in which the president is elected.

Lots of things were bones of contention when the Constitution was being formulated. The powers of the president. The dreaded three-fifths clause. Whether the president would have a veto and then whether Congress could override it and if so how many had to vote to override it.

Letting the men in the state houses choose U.S. senators instead of the voters wasn't one of them.

The all or nothing Constitution of George Will

2009-02-23T03:37:00.000-08:00

In his column yesterday, George Will called for a repeal of the Seventeenth Amendment, which provides for the direct election of U.S. Senators:

"The Framers established election of senators by state legislators, under which system the nation got the Great Triumvirate (Henry Clay, Daniel Webster and John Calhoun) and thrived. In 1913, progressives, believing that more, and more direct, democracy is always wonderful, got the 17th Amendment ratified. It stipulates popular election of senators, under which system Wisconsin has elected, among others, Joe McCarthy as well as Feingold...

"Furthermore, grounding the Senate in state legislatures served the structure of federalism. Giving the states an important role in determining the composition of the federal government gave the states power to resist what has happened since 1913 -- the progressive (in two senses) reduction of the states to administrative extensions of the federal government."

Years ago I saw Sam Donaldson on a television program declare that George Will was perhaps the smartest person he'd ever met. Donaldson then chuckled and admitted he didn't have a very good answer when someone hearing such praise responded "Well then why don't you agree with Will more often?"

So let me emulate Donaldson, chuckle a bit, acknowledge George Will is a very learned fellow, and then blast him for this column, which is not a model of intellectual rigor. It suffers from two obvious logical fallacies.

First, he uses anecdotal evidence to suggest senators were better before popular vote, and very mere anecdote at that. Will mentions three "great" senators from the nineteenth century (Clay, Webster, and Calhoun) and one scourge from the twentieth century, Joe McCarthy (or two scourges, if you think his shot at Feingold is serious, which I doubt).

Yes, popular vote put Joe McCarthy in the Senate. It also put Harry Truman, Lyndon Johnson, Hubert Humphrey, and John McCain there. I'd say we've gotten some pretty fair Senators out of the deal.

But more to the point, back in Will's good old days when Senators were selected by the state legislatures, we got in the upper house men like Chipman, Clayton, Foster, Goodhue, Greene, Hillhouse, Latimer, Laurance, Livermore, Lloyd, Martin, North, Paine, Read, Rutherford, Sedgwick, Stockton, and Tracy. Who were they? They were the eighteen senators who on July 4, 1798, voted in favor of the Sedition Act, making it illegal to write or publish any "inflammatory declarations" about the United States or any of its officials (see page 599 of the link). It's a bit ironic that Will props up Joe McCarthy as an example of what you can get with common folks selecting senators since McCarthyism has often been compared to the dark days of 1798 (see Stone, Perilous Times: Free Speech in Wartime, 2004, p. 37). It's even more ironic given that in this same column Will blasts McCain-Feingold as an abridgement of free speech. (A digression: I agree with Will about that.)

I'd also argue it's something of a reach dropping John Calhoun's name as a great nineteenth century senator, especially given the contrast Will makes between "great" senators and McCarthy. McCarthy's philosophy may be summed up as "everybody is a commie." Calhoun's philosophy may be summed up as "every Negro should be a slave." Bad as McCarthy's thesis was, it didn't do as much long term damage to this country as Calhoun's notion did. The Red Scare didn't curse us with a Gettysburg.

Then there's the second problem with Will's call for repeal of the Seventeenth Amendment. He's fallen into what I call the "All or Nothing Constitutional Trap." The trap is set like this: the Constitution is amended in year x to change policy y. As the years pass, and the reasons for the amendment fall out of memory of most of the living, people start to think--usually erroneously--that before the amendment every state was doing what the amendment set out to change.

Here are some examples of the All or Nothing Trap. Have you ever heard it said or seen it written that before the Nineteenth Amendment was ratified in 1920, women couldn't vote? That's absolutely untrue. Lots of women voted before 1920, because fifteen states had fully enfranchised them prior to that date (Keyssar, The Right to Vote, 2000, p. 402.) Four states even let the ladies cast ballots before the nineteenth century came to a close.

Ever hear or read that African Americans couldn't vote before ratification of the Fifteenth Amendment following the Civil War? Not so, before the Civil War blacks could vote in five New England states (Goldman, Reconstruction & Black Suffrage, 2001, p. 10.)

Ah yes, and there's Prohibition. This country did not suddenly go dry upon ratification of the Eighteenth Amendment in 1919. Seven states got rid of booze by 1900; others followed in the nearly two decades before liquor was banned nationwide (Friedman, American Law in the 20th Century, 2002, p. 102).

When the Twenty-fourth Amendment, banning poll taxes, came into force in 1964, there were only five states left that still had the practice (Amar, America's Constitution: A Biography, 2005, p. 443). Now I've never heard anybody say that before the Twenty-fourth Amendment we had poll taxes everywhere, but that's probably because there are still so many alive who remember 1964. I'll bet you anything that in another hundred years there will be people who believe that this country had poll taxes everywhere, and then suddenly in 1964 we had them nowhere. (I won't be around for you to collect, so it's an easy bet for me to make.) That's the nature of the All or Nothing Trap, folks think that a process which was halting and incremental was sudden.

And that's where George Will trips in this column. One would get the impression, were one to use it as his only source on the subject, that all of a sudden in 1913, we went from state legislatures selecting senators to election of senators by popular vote. That's far from accurate. Let me quote the annotation of the Seventeenth Amendment from the official annotated Constitution maintained by the U.S. government:

"Prior to ratification... many States had perfected arrangements calculated to afford the voters more effective control over the selection of Senators. State laws were amended so as to enable voters participating in primary elections to designate their preference for one of several party candidates for a senatorial seat, and nominations unofficially effected thereby were transmitted to the legislature. Although their action rested upon no stronger foundation than common understanding, the legislatures generally elected the winning candidate of the majority, and, indeed, in two States, candidates for legislative seats were required to promise to support, without regard to party ties, the senatorial candidate polling the most votes. As a result of such developments, at least 29 States by 1912, one year before ratification, were nominating Senators on a popular basis..."

Notice that this is quite a contrast from the examples I gave earlier. Some African Americans could vote before adoption of the Fifteenth Amendment, but most couldn't; indeed, many couldn't for a hundred years before we figured out no discrimination on the basis means what it says. Some women could vote before 1920, but many couldn't. But in the case of popular election of senators, we see that in twenty-nine states--better than sixty percent of them--the change that George Will decries was well underway before the Constitution was amended.

And here is maybe the key point: as Professor Amar notes in the book I've cited above, since the Seventeenth Amendment had to be ratified by three-quarters of the state legislatures, those elected officials were consciously reducing their own influence, taking a power they had and giving it to the electorate (p. 412). Amar goes on to illustrate the problems of senate selection by the legislatures:

"As a result of intense partisanship, state-law quorum rules, and clever parliamentary maneuvering, state legislatures had often deadlocked when balloting for the Senate. These deadlocks--nearly fifty between 1891 and 1905--had routinely meant that for months a state had only one senator (and in the case of Delaware during one especially contentious two-year period, no senator) in the federal upper chamber. Meanwhile, the Senate tussles had often distracted state governments from attending to other pressing business. Direct election promised to solve these problems."

Fifty deadlocks in fourteen years. Imagine the Coleman-Frankin debacle in Minnesota fifty times over; that's what they had in the "gay nineties." I'd rather not go back to that.

And here's the funny thing: Will doesn't seem to fathom that even assuming you could somehow repeal the Seventeenth Amendment, we wouldn't go back to that. If, in a moment of madness enough legislators in thirty-eight states voted to take back selection of senators, what do you think the people would do? They'd express outrage, that's what. Candidates for office would take advantage of the disgust and promise that if they were elected never mind what just happened nationally, here in the great state of Georgia, or Illinois, or New York, or wherever, we want the people to choose their senators and if you elect me I'll vote that way. Or, grassroots movements would lead to state constitutions being expressly amended to provide for popular vote. The point is, unless you amended the Constitution to specifically say that the states can't have popular elections for Senate--and Will doesn't appear to be advocating that--it would be surprising in our nearly universal suffrage America if even one state chose to go back to the days of senators selected by the few instead of by the many.

Let me close this article by commenting on a historical election for the Senate that I'll wager Will and I agree went the wrong way. We saw that the process of the people having at least some say in selecting senators began well before 1913. A major milestone in that regard was the 1858 race for one of the Illinois U.S. Senate seats, the famed Lincoln-Douglas encounter. Up to that point in Illinois as elsewhere, the state legislatures would select a Senator after they got elected; it wasn't typically a campaign issue. But in 1858 the format changed: the Republicans announced Abraham Lincoln as their man and most of the Democrats touted Stephen Douglas before the state election (Amar, p. 410). In essence, the 1858 Illinois election was made a referendum on who would represent the Prairie State in the upper house in Washington. Vote for us, the Republicans announced, and Honest Abe will get the job. Cast your ballots for us, countered the Democrats, and we'll keep Douglas there.

So it was a movement towards popular election, but not a true popular election in the modern sense. And do you know what happened? On November 2, 1858, there were approximately 125,000 votes cast for Lincoln Republicans--four thousand more than the candidates pledged to Douglas received (Potter, The Impending Crisis, 1976, p. 354). If it had been a true beauty contest, Lincoln would have gone to the Senate.

Alas, it didn't quite go that way, because the voting was considered by district rather than by statewide tally. As a result, forty-six Democratic legislatures were chosen and only forty-one Republicans, plus eight of thirteen representatives held over from a previous election were Democrats (Potter, pp. 354-55). So even though Lincoln would likely have won if the 1858 contest had been a straightforward, popular vote, Douglas prevailed because of the same type of legislative meanderings the Seventeenth Amendment was designed to short-circuit.

Apparently George Will wants to bring back those legislative meanderings. Well, I'm against Will in his efforts to take America back to the early days before senators were popularly elected.

Of course, if he wants to take America back to the early days when the Cubs were World Champions I'll go along.

Edited to add: welcome, hotair readers! Feel free to look around and pet the goats.

Chimpanzees are NOT monkeys! Repeat: chimpanzees are NOT monkeys!

2009-02-18T10:36:00.000-08:00

I have a degree in zoology. Years ago I got into an argument with somebody when I mentioned that the woodchuck and the groundhog are the same animal; it's simply a case of linguistics leading to one creature having two common names in much the same fashion that a long sandwich is called a "hero" a "grinder" or a "sub" depending on where in the country you are. (Or at least that was true before Subway came along and spread one of the many synonymous terms through nationwide franchising.)

The person I was speaking to simply wouldn't believe it. Never mind that I had a zoology degree, never mind that I could even recite the scientific name of the animal--Marmota monax--or that I'd even examined woodchuck-groundhog skulls in mammalogy lab. This person was absolutely convinced I was wrong, that the two words must designate two completely different species of organisms.

As maddening as that was, it's nothing compared to the most irritating thing those of us into zoology must deal with, namely that so many people, even well-educated folks, simply cannot understand that a chimpanzee is not a monkey.

The Reverend Al Sharpton is the latest offender:

"The cartoon in today's New York Post is troubling at best given the historic racist attacks of African-Americans as being synonymous with monkeys. One has to question whether the cartoonist is making a less than casual reference to this when in the cartoon they have police saying after shooting a chimpanzee that 'Now they will have to find someone else to write the stimulus bill.' Being that the stimulus bill has been the first legislative victory of President Barack Obama (the first African American president) and has become synonymous with him it is not a reach to wonder are they inferring that a monkey wrote the last bill?"

As someone who believes that Darwin was correct on human origins, let me fess up to something. When I first moved to the South, I had a rather cynical notion that one reason for the lack of acceptance of the theory of evolution in Dixie was that white folks down here didn't want to think about the possibility that humans could have originated on the African continent. The redneck didn't want a black man nudging his arm and smugly declaring "Well, I guess we're ALL African Americans, huh?"

I came to realize that this was a stupid thought I'd had, for one obvious reason: none of the black people in the South believe in evolution either. I've told some of my friends in the North that when I say, "Picture somebody in the South who believes Genesis and doesn't believe in gay marriage" that if in their mind's eye they see a white guy in rural Alabama with a pickup bearing a Confederate flag bumper sticker, that's understandable, but it's only part of the story. A southerner who thinks Darwin was a nut, and so is anybody who thinks a wedding cake can have two dudes on it ,is just as likely to be an urban black woman who drives a Honda Civic with an Obama bumper sticker.

But even if you accept creation instead of Darwinism, chimpanzees still aren't monkeys. They're apes. As Pulitzer Prize winner Jared Diamond wrote in The Third Chimpanzee (1992), chimps have about 98.4% of their DNA in common with humans (p. 23). Chimps and monkeys? They only have about 92.7% of their DNA in common (p. 24). So not only are chimps not monkeys, they aren't even as closely related to monkeys as they are to us! (See also the American Society of Mammalogists paper on the chimpanzee if you're really fascinated by these animals.)

I'm actually with Reverend Sharpton in thinking the cartoon is inappropriate. I'm more concerned, however, with making a joke out of an incident where somebody was severely mauled by a wild animal than by any speculation that the cartoonist might have had sinister racial motives. Maybe he did, probably he didn't. What is clear is that the cartoonist did think he could use a horrible tragedy to get a laugh. Personally, I don't find animals attacking people particularly funny.

But remember, ladies and gentlemen: chimpanzees are apes. They are NOT monkeys. Neither are orangutans, but if you google "Any Which Way But Loose" you'll see any number of web entries where people say that Clint Eastwood's sidekick in that film was a monkey. The zoological battle to educate people on primate taxonomy, like Al Sharpton's indignation, never ends.

A sad history

2009-02-18T07:10:00.000-08:00

Two weeks ago, observing Black History Month, I posted this entry in which I mentioned two books on the history of race in America that I thought were essential reading for anyone who wants to be well informed on the topic. It dawned on me this morning that I should have made it a trifecta; there is a third volume that deserves mention along with Simple Justice and The Strange Career of Jim Crow.

David Brion Davis is one of the leading scholars on slavery, and his 2006 book Inhuman Bondage: The Rise and Fall of Slavery in the New World is a captivating--but necessarily grim--account of the horrors resulting from the bizarre and wicked notion that one man could own another. I recently had occasion to refer to his descriptions of slave ships crossing the Atlantic; here's a piece of it:

"In the fifteenth and sixteenth centuries... The density of packing slaves in the decks between a ship's bottom hold and main deck far exceeded the crowding of indentured servants or even Irish prisoners shipped to the British Caribbean. The males, especially, had to lie like spoons locked together, with no real standing room above them, surrounded by urine and feces, with little air to breathe. One would need to turn to the suffering of slaves in ancient Greek silver mines or to the victims of Nazi death camps to find worse of roughly equivalent examples...

"Matters hardly improved in the nineteenth century. The illegal slave ships captured by the British between 1839 and 1852 had an average of four square feet for each slave, compared with the twelve square feet required by British law for contemporary North Atlantic immigrant ships--the same space, roughly, given to modern economy fare passengers on a Boeing 747. As David Eltis puts it 'the occupant of the typical slave ship could neither lie full length nor stand upright for five weeks except for the limited time spent above deck each day.'" (pp. 91-92)

David Eltis is, of course, another scholar on slavery. Inhuman Bondage also includes a chapter on the Amistad; he calls the Steven Spielberg film on this maritime uprising "somewhat inaccurate but powerful," p. 12. There are two thorough chapters on the particular nature of slavery in the American South, a section on slave revolts, and chapters on the abolitionist movements in both Britain and in the United States. After reading this book, you'll come away horrified that slavery was ever allowed to happen among civilized people, and you'll probably have a lot of respect for the folks who stood up while slavery was practiced and said "no more."

Yankee, Dixie, and Junior

2009-02-17T16:49:00.000-08:00

I was born and raised in Chicago, but I've lived south of the Mason-Dixon Line since I was twenty-one. Even growing up on the shores of Lake Michigan, I wasn't far removed from the South on my mother's side; her mom was from Georgia and her father hailed from Alabama.

Largely because of this aspect of my life, I'm quite fascinated with comparisons and contrasts between North and South. Currently I'm reading The White House Looks South by William E. Leuchtenburg, a study of the presidencies of Franklin Roosevelt, Harry Truman, and Lyndon Johnson and how they shaped--and were shaped by--what went on in Dixie. It's a remarkable book and I'm learning a lot. One quibble: when I'm reading a nonfiction book, I tend to peek at the final page before I've finished the volume. As such, I was stunned by the last sentence of the text: "In sum, the South in the twenty-first century--indeed the South on Lyndon Johnson's final day in office in 1973--is a very different place from the South Franklin Roosevelt found when he got off the train in a rundown Georgia village in 1923" (p. 418). How on earth did the wrong ending date for LBJ's presidency make it past the editor? The Texan left the White House in 1969, not 1973, which in fact is the year he died.

For me, a fun understanding of the contrast between North and South comes when I drive home from work. The only pleasure of a PM commute in Atlanta is listening to Buck and Kincade on 680 The Fan, a local sports talk radio station. John Kincade, born and raised in Philadelphia, is like me, a northern transplant. Buck Belue, on the other hand, is from Valdosta, Georgia, and is well known in these parts for quarterbacking the University of Georgia in their 1980 national championship season. The difference in their backgrounds, and their acknowledgment of it, makes their program quite entertaining.

In his 1867 book The English Constitution, Victorian economist Walter Bagehot argued that one reason the British government worked so well was it had a dignified part (the Crown) and an efficient part (the Parliament). When I first read that, I was struck that this seems to sum up the difference in our country between northern people and southern folks. We Yankees tend to be all about efficiency; Southerners seem more prone to embrace dignity. I see that a lot in Buck and Kincade; Buck has that charming southern ability to seem prim and proper without appearing stuffy, while Kincade is so efficient he actually counts every program the pair have done together and at least once an afternoon mentions what number show it is! (They recently celebrated their two thousandth session together.)

This past Monday, I had a North-South epiphany not just because of Buck and Kincade themselves, but also because of the subject they addressed on their program. They were discussing the Daytona 500, run the day before. Kincade criticized Dale Earnhardt, Jr., pointing out that in the past five years he has won only three races, none of them big NASCAR events, but that in spite of this the younger Earnhardt continues to get tons of endorsement deals and is talked about more often than far more successful racers. Buck defended Junior, as did a few of the callers. One man with a pronounced southern accent admonished Kincade by saying that criticizing Junior was just something you don't do in the South, although a few other callers with an equal amount of y'all in their diction contested this and agreed with the Yankee half of the hosting team.

In fairness, it should be mentioned that Junior did win the big race at Daytona in 2004, but nobody really had a good answer for Kincade's assertion that Junior has underachieved since then. And it was then that it struck me: Dale Earnhardt Junior is to NASCAR what the Cubs are to baseball. Or to look at it geographically, the Cubs are to Chicago what Junior is to Charlotte. On the north side of Chicago, where I grew up, people love the Cubbies and often become quite indignant if anyone--especially out of towners or worse, south siders--mocks the team over it's lack of significant achievement. Yet it's there with the Cubs and Junior, isn't it--that sinking feeling their fans get that there's no World Series trophy or significant checkered flag ahead.

Maybe Walter Bagehot was right about what a government needs to be successful. But go to Wrigley Field, or cheer for Junior, and you come to the inevitable conclusion that so often in sports, it's not a matter of dignity and efficiency. What you experience is hope followed by heartache.

Bust up over Churchill bust

2009-02-16T09:06:00.000-08:00

They're a bit perplexed in Britain why President Obama has decided to give back a bust of Winston Churchill on loan to the United States:

"A bust of the former prime minister once voted the greatest Briton in history, which was loaned to George W Bush from the Government's art collection after the September 11 attacks, has now been formally handed back.

"The bronze by Sir Jacob Epstein, worth hundreds of thousands of pounds if it were ever sold on the open market, enjoyed pride of place in the Oval Office during President Bush's tenure.

"But when British officials offered to let Mr Obama to hang onto the bust for a further four years, the White House said: 'Thanks, but no thanks.'"

The Telegraph article goes on to speculate why the President doesn't want to keep the artwork:

"Churchill has less happy connotations for Mr Obama than those American politicians who celebrate his wartime leadership. It was during Churchill's second premiership that Britain suppressed Kenya's Mau Mau rebellion. Among Kenyans allegedly tortured by the colonial regime included one Hussein Onyango Obama, the President's grandfather."

Well hey, as long as we're guessing that the reason for the decision has to do with kinship, we've got to ask the obvious question if maybe Obama's not so keen on Churchill because the acclaimed British Prime Minister is related to George W. Bush.

You didn't know Bush is related to Churchill? It came as a surprise to Churchill's grandson, Winston S. Churchill, as well. He edited The Great Republic: A History of America, a collection of his grandfather's notable writings about the United States. In the preface to the volume, the younger Churchill writes that as a result of his genealogical research:

"(I) was fascinated to discover that Winston Churchill, at ten generations removed, had not one, but three, ancestors who sailed on the Mayflower and who were among the mere fifty who survived the rigours of that first winter on the inhospitable shores of New England... I was further intrigued to learn that, through them, we are linked to no fewer than three Presidents of the United States--Ulysses S. Grant, Franklin D. Roosevelt, and George Bush..." (p. xi).

The Great Republic was first published in 1999. The next year, George Bush's son was elected President, so that makes George W. a fourth chief executive related to the Churchills.

Of course, I'm not accusing President Obama of consciously shunning Churchill because of his shared lineage with Bush; I'm just sharing a point the Telegraph might have made once they chose to bring family into it.

On the other hand, maybe a bit more research would show that Obama and Bush are related too. Wouldn't that be something having them show up at the same family reunion. Obama would be the control freak who insists everyone wear an ugly bright yellow tee shirt; Bush would be the wacky cousin who after loading up on hot dogs and baked beans asks every child present to pull his finger.

Counting and the Constitution

2009-02-14T15:52:00.000-08:00

"Rep. Darrell Issa (R-Calif.) said that there was no legal or constitutional basis for Obama’s plans, citing the fact that Article I of the U.S. Constitution, which contains the census provision, spells out the powers of Congress -- not of the president or executive branch. “We [Congress] give to the executive branch and the Commerce Department the requirement to administer this constitutional duty, belonging to the Congress,” Issa explained. “By no means is there any basis, legal or constitutional basis, for the president to direct the census.” Obama has made no formal announcement of plans to take over the census, but numerous press reports last week – citing unnamed senior administration officials – said that he planned to have the Census Bureau’s director report directly to White House staff." From this article.

Well what about it? Is the President, with his reported plan to have more hands on involvement, ignoring the Constitution when it comes to the census?

Let's start at the beginning and note specifically what the Constitution says about a census. The relevant text is in Article 1, Section 2: "The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct." The emphasis is mine, because that's really the bone of contention here. What, exactly, has Congress by law directed?

As so often is the case in matters like this, Congress passed the buck: they simply directed the Executive branch to worry about the census. And they've spent quite a lot of ink doing that. There are fifty titles in the United States Code, everything from agriculture (Title 7) to veterans' benefits (Title 38). Would you believe there is an entire title devoted to the census? It's title 13 and if you thought all the Bureau of Census does is count people, I'd recommend a glance at some of the provisions. Take a peek at section 44:

"In addition to the information regarding cotton in the United States provided for in this subchapter, the Secretary shall compile, by correspondence or the use of published reports and documents, any available information concerning the production, consumption, and stocks of cotton in foreign countries, and the number of cotton-consuming spindles in such countries."

Makes you proud to be an American, huh? Now go ask a dozen intelligent people this question: "Who in the government keeps track of how much cotton is produced outside the U.S?" I'll bet they say it's the Secretary of Agriculture. But no, counting alien cotton is the duty of the Bureau of the Census, headed by the Secretary of Commerce. (That's assuming we ever HAVE a Secretary of Commerce.)

Well that's fun information, but not what we're looking for here. Section 2 of Title 13, from a law passed in 1954, places the Bureau of Census within the Department of Cotton--er, Commerce. So there's no argument there, Congress did put the census under the control of a member of the President's cabinet.

And is the President specifically mentioned when it comes to the ten year headcount? Yes, in section 141, which reads in part:

(a) The Secretary shall, in the year 1980 and every 10 years thereafter, take a decennial census of population as of the first day of April of such year, which date shall be known as the ``decennial census date'', in such form and content as he may determine, including the use of sampling procedures and special surveys. In connection with any such census, the Secretary is authorized to obtain such other census information as necessary.
(b) The tabulation of total population by States under subsection (a) of this section as required for the apportionment of Representatives in Congress among the several States shall be completed within 9 months after the census date and reported by the Secretary to the President of the United States.

I highlighted the things I think are most significant to the discussion here, and certainly the source of the disagreement between Congressman Issa and President Obama. In short, the Secretary of Commerce is specifically mentioned as the person authorized to basically conduct the census, but it also clearly declares that he must report his findings to the President.

Well I think Issa is posturing a bit here, but the opposition party to the President always does that. But I also think he has a point. You may if you choose defend Obama's plan by saying hey, he's the guy who the census report is supposed to ultimately be delivered to anyway, so why fuss if he's just trying to eliminate the middleman? And yes, I'd agree with you that in the general scheme of things, it really isn't that significant if Obama engages in a bit of a bypass to speed up the process. The problem with saying that Obama politicizes the census if he has a personal involvement is that the man or woman who ultimately does become Commerce Secretary will be a lieutenant of his who could also just as easily politicize it.

But Obama shouldn't be eliminating the middleman when the statute clearly specifies that the middleman is responsible for conducting the census. It isn't appropriate for the President to alter the procedure without Congressional approval.

They'll be reporting for spring training in Florida and Arizona shortly, so let me use a baseball analogy. Section 141 is, I think, a bit like an intentional walk. Every once in awhile, somebody will remark that it's a silly formality having the pitcher gently toss four straight pitches eight feet out of the strike zone. Why not just let the pitcher or catcher say to the umpire, "Let him take the base" and have the batter trot to first without the four lobs?

Sure, that could be done. But until such time as the lords of baseball decide to change the rule, the pitcher MUST make those four wide tosses.

It's the same thing with section 141 on the census. Maybe there's no good reason not to just say the President is authorized to handle it as he sees fit, seeing as how the person who does handle it is one of his political appointees anyway. But regardless of whether the distinction between the Secretary of Commerce reporting to the President or the President reporting to himself is trivial, that's the law as it stands. Obama shouldn't stray from that at all.

February is Constitutional Amendment Month!

2009-02-11T06:44:00.000-08:00

The U.S. Constitution went into effect on June 21, 1788, when New Hampshire became the required ninth state to ratify it (Rakove, Original Meanings, 1996, pp. 121-22). The first ten amendments, the Bill of Rights, won ratification on December 15, 1791.

And here's the curious thing: of the seventeen amendments added since the Bill of Rights, five of them were ratified in February. By ratification date, of course, I mean the day by which the required number of states had voted in favor of the provision.

No other month has seen as many amendments pushed through as February, but there were also two ratified in December and three in January, so apparently winter is ski season and amendment season. This is probably not a coincidence, as obviously a state's legislature must be convened to vote on amendments and they tend to like getting their sessions in early so that by November elections people have forgotten most of the reasons to vote against them. In that regard, it's noteworthy that no amendment has ever been ratified in September, October, or November.

Anyway, the "February amendments" are the Eleventh, Fifteenth, Sixteenth, Twenty-second, and Twenty-fifth. I'll not go into what each of those amendments is for, as if you want you can look it up, but one oddity is worth noting. The Fifteenth Amendment, prohibiting the denial of vote based on race, was ratified on February 3, 1870. And the Sixteenth Amendment, giving Congress power to tax our incomes, the swine, got the required number of states to vote yes on February 3, 1913--exactly forty-three years to the day the last time the Constitution was modified.

It's actually a pity the income tax amendment didn't get ratified one day earlier; no doubt comedians could develop some funny material about the groundhog being scared back into his burrow not by his shadow but by an IRS agent.

The Obama Federalist Papers

2009-02-06T16:36:00.000-08:00

"What Americans expect from Washington is action that matches the urgency they feel in their daily lives -- action that's swift, bold and wise enough for us to climb out of this crisis.

"Because each day we wait to begin the work of turning our economy around, more people lose their jobs, their savings and their homes. And if nothing is done, this recession might linger for years. Our economy will lose 5 million more jobs. Unemployment will approach double digits. Our nation will sink deeper into a crisis that, at some point, we may not be able to reverse.

"That's why I feel such a sense of urgency about the recovery plan before Congress. --President Barack Obama in an editorial today in the Washington Post.

..........

"Another advantage of the two-house legislature is that it makes it more difficult to create laws. While recognizing the obvious need for some legislation to pass, The Federalist expressed deep skepticism about the wisdom of most legislation: 'The injury which may possibly be done by defeating a few good laws will be amply compensated by the advantage of preventing a number of bad ones.' [Federalist 73, Hamilton]. Sometimes, Madison warned, we the people, through our 'own temporary errors and delusions' will push for legislation that we 'will afterwards be the most ready to lament and condemn.' [Federalist 63]. The need for both houses to approve legislation slows down the process, and permits cooler heads to prevail. Put another way, gridlock can be good." --Meyerson, Liberty's Blueprint: How Madison and Hamilton Wrote the Federalist Papers, Defined the Constitution, and Made Democracy Safe for the World, 2008, p. 180.

And that's the problem, isn't it? What if the urgency the President calls for results in legislation we will afterwards be ready to lament and condemn?

Nothing to Jim Crow about

2009-02-03T06:04:00.000-08:00

It's Black History Month, so it's time to reflect on America's less than perfect past, to marvel at the accomplishments of people like Frederick Douglass, Thurgood Marshall, and Martin Luther King who succeeded in spite of racism, and to celebrate how far we've come that a man whose dad was born in Africa can become President.

Also it's time to see a few articles that make your eyeballs roll. Here's one:

"President Barack Obama simultaneously fulfills the fondest hopes and worst fears in certain groups of Americans as the first black man to hold the White House. What are keys for Obama to break down racial divisions in the country?

"He has a good start based on the statistics of the campaign. The most prolific fundraiser in political history... Obama raised nearly $640 million in his campaign, and many of those dollars came from first-time donors in small checks. People of every stripe voted with their pocketbook before they ever set foot in a voting booth."

Wait a second. In a discussion of Obama breaking down racial divisions the first thing Woolman points to is that he raised lots of money? Not that he won primaries and caucuses in states where the vast majority of voters were white? Not that he won a U.S. Senate seat in Illinois, where a Chicago suburb was dubbed "the Selma of the North" by Dr. King, who preached when Obama was a boy? (See Cahan, A Court That Shaped America, 2002, pp. 127-29). Not even that he was first black president of the Harvard Law Review? His first and foremost claim to ending racial divisions is that he got a lot of folks to reach into their wallets? Obama is a persuasive guy; if he hadn't gone into politics he could probably have gotten multitudes to open their checkbooks by selling time shares; this would scarcely earn him Time magazine's Man of the Year.

The article goes on to refer to the United States as a "country where the Confederate flag still flies and people look back fondly at a Jim Crow past." This is, of course, like saying the U.S. is a country where people are fond of theft. There are thieves, of course, but that scarcely means we are a nation of thieves. And there are a few bigots--a very few--who might fondly remember when Rosa Parks was told where to sit, but these folks are insignificant dolts who live in their own world of hatred. For Woolman to speak of those who fondly remember a Jim Crow past, as though such folks are common is rather unsettling.

Well, enough about trivial articles you can read in a minute and a half. February's designation as Black History Month makes this a great time for me to mention two books on the history of race in America. These are books I wish every American would read. One is C. Vann Woodward's The Strange Career of Jim Crow, first published in 1955. If you ever saw a historical photograph of a water fountain with an adjacent sign declaring it to be for "Whites only" and wondered how in blazes our society managed to descend to such depths, Woodward explains it in about 230 pages.

A much longer book is Richard Kluger's Simple Justice: The History of Brown v. Board of Education and Black America's Struggle for Equality, first published in 1975. This is a very scholarly and complete look at the school segregation decisions. Kluger dives into the background on each of the five cases that eventually were lumped together into the Brown decision, so there is lots of information on what happened not only in Kansas, but also in South Carolina, Virginia, Delaware, and Washington, D.C. Here's one indicator of how thorough Kluger's tome is: there are about thirty pages of biographical information on the nine Justices sitting on the Supreme Court that ruled on Brown. A book that has three pages on Harold Burton and that is almost 800 pages long minus the notes and index could easily be tedious reading, but Kluger grabs your interest through the entire volume.

General Grant now a Bulldog instead of a Saluki

2009-01-28T07:58:00.000-08:00

It's enough to make a proud graduate of Southern Illinois University cry:

"CARBONDALE, Ill. (AP) - Mississippi might seem like an unlikely place to honor Ulysses S. Grant.

After all, the Union general's military victory at Vicksburg helped turn the tide of the Civil War against the state and the rest of Dixie.

But after a legal dispute with an Illinois school, Mississippi State University has become the new home of 90 file cabinets stuffed with hundreds of thousands of pages of documents and memorabilia about Grant and some of his descendants.

The collection - one of the biggest involving Grant - had been a source of pride for Southern Illinois University for more than four decades until a falling out between that Carbondale school and the group that owns the items, prompted by sexual harassment claims against the man who oversaw the collection."

In a related story, shopkeepers in Starkville, Mississippi have reported a sharp increase in sales of matches and lighter fluid.

Seriously, as somebody who was born and raised in the North but has lived his entire adult life in the South, let me use this to point out a big difference between Yanks and Rebels. Most northern people, reading this piece, will just shrug and forget about it.

But if anyone breathed a word of the Robert E. Lee papers leaving their home at Washington and Lee University for some school north of the Mason-Dixon Line, the resulting uproar would be heard from Richmond all the way to Vicksburg.

If at first you don't succeed...

2009-01-21T18:33:00.000-08:00

President Barack Obama, to quell any Constitutional questions, has taken the oath of office a second time. Over at hotair.com, Ed Morrissey writes:

"Now we can rest easy, with the specter of President Biden … or heaven forbid, President Pelosi … put to rest."

I presume he's just being facetious. After all, even if you could somehow argue that the flubbing of the oath prevented Obama from actually being the President, it does not follow that Biden would become President due to the error. The Twenty-fifth Amendment, Section 1, declares:

"In case of the removal of the President from office or of his death or resignation, the Vice President shall become President."

Obama didn't get removed from office, or die, or resign; these, the Constitution assures us, are the only instances in which Biden would get a promotion. The messed up exchange between Roberts and Obama wasn't in any of those categories; nobody got impeached, said "I quit," or went belly up.

Three notes on the inauguration and the Constitution

2009-01-21T03:07:00.000-08:00

1. I'm reading Laurence Tribe's new book The Invisible Constitution in which the new President's former professor (see p. 201) argues that there are a number of principles and procedures that are not set into words in the great document, but that follow naturally, or even inevitably, from the text. I'll probably have more to say about this later, but for now I just want to note that it dawned on me yesterday that the specifics of the inauguration are a vivid example of this.

Here's why: Article II, Section 1 concludes with this sentence:

"Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:—'I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.'"

And where did Obama take the oath of office? Washington, D.C., of course. But notice there is nothing in the text of the Constitution to require him to have taken it there. What if he'd said, "Hey, I'm from Chicago, I'd like to take the oath there"? Nothing unconstitutional about that based on the written text. But I think we'd agree that it basically follows from having the national government operate out of Washington that the oaths of office need to be taken in Washington. I'm sure the people of the Windy City wouldn't have wanted millions of people clogging Grant Park anyway.

But say for a minute that Obama did raise his right hand on the shores of Lake Michigan. When should he do it? The Twentieth Amendment mandates that the term of the outgoing President ends at noon on January 20th, and thus the new presidency begins. But noon on January 20th where? It doesn't say. So if Obama took the oath of office in Chicago, would he have to do it at 11:00 local time so it would be noon in the capital? Or would he take it at noon Central Time? (Cue Alan Jackson and Jimmy Buffett singing "It's Five O'clock Somewhere.")

Isn't it great having the inauguration in the District so we don't have to worry about this stuff?

2. Okay, I'll admit it, I thought Obama flubbed on reciting the oath and didn't realize it was Chief Justice Roberts until the matter was brought up later. But I assumed the error was the President's for the logical reason that it never would occur to me that Roberts might try to administer it by memory, thereby running the risk of what happened actually happening.

Here's the bigger question. Even if the Chief Justice wants to try to recite his lines from memory, shouldn't there be some large, grand, leather bound, gilt-edged Constitution he holds in front of him for an occasion like this? A splendid Constitution that lives in the National Archives and is only taken out once every four years on January 20th? We always hear about what Bible the President chooses to take the oath, but in a county with a secular government, shouldn't it be as big a deal what Constitution is up there at the podium at the same time?

3. I didn't get nearly as much of a chuckle over the flubbed exchange between Roberts and Obama as I did over Aretha Franklin's hat. Okay, that has nothing to do with the Constitution, but I wanted to write it anyway.

What's unlikely in Vegas stays unlikely in Vegas

2009-01-20T06:15:00.000-08:00

Just out of curiosity: if you'd gone to Las Vegas in 2004 and wanted to lay down a bet that within five years, in the same week we'd see an African-American inaugurated as President of the United States AND the Arizona Cardinals make it to the Super Bowl, what sort of odds do you suppose they'd give you?

Tonight we're gonna party like it's 2121

2009-01-19T15:15:00.000-08:00

The Twentieth Amendment, ratified in 1933, declares: "The terms of the President and Vice-President shall end at noon on the 20th day of January." It's worth noting that it doesn't say "and then their successors shall be sworn in;" that's just a logical inference. In other words, the Constitution specifies that Bush leaves office tomorrow, but not that Obama checks in. But since we're at all times supposed to have a President, somebody better be there to ask Obama to put his hand on a Bible!

Exactly fifty years after the birth of the Twentieth Amendment, Public Law 98-144 added Dr. Martin Luther King, Jr.'s birthday to the list of federal holidays. Well, not necessarily his actual birthday, January 15th, but rather the third Monday in January. Those two dates, the 15th and the third Monday of the first month, coincide any year New Year's Day is on a Monday. That happened just two years ago.

What I really wanted to know, however, is how often do the Twentieth Amendment and Public Law 98-144 align? This year of course, the inauguration comes one day after the King birthday holiday, but since it was recognized in 1983, have the two days coincided?

Yes, they have, once. That was for Bill Clinton's second inauguration, in 1997. Courtesy of timeanddate.com, I decided to look it up and see how often this phenomenon happens.

The answer is: not often. Inauguration Day will land on the third Monday of January next in 2025. After that, the two days match in 2053, 2081, and 2121.

I can hardly wait!

Spending like a drunken sailor's commander-in-chief

2009-01-15T16:03:00.000-08:00

"President Barack Obama's inauguration next week is set to be the most expensive ever, predicted to reach over $150m (£102m). This dwarfs the $42.3m spent on George Bush's inauguration in 2005 and the $33m spent on Bill Clinton's in 1993." -- Article in The Guardian.

Now if I was a partisan commentator, this would be the appropriate place for me to rail against a press that took Bush to task four years ago for all the loot spent on his inauguration, when the same press is largely silent about the immense sum for Obama's party. That's not my intention here, however.

Instead, I simply am taking the position that yes, Obama's inauguration is too costly. But so was Bush's, and so was Clinton's 33 million dollar bargain basement figure. I don't care if the President is Republican or Democrat. I don't care if when he or she gets inaugurated we're in a recession or a boom. I simply think that the money could be better spent.

And no, I'm not arguing against any sort of pomp celebrating America's milestones. In Book V, Chapter 1 of The Wealth of Nations, Adam Smith asserts that there is a need for expenditures that "support the dignity of the sovereign." As he put it:

"In an opulent and improved society, where all the different orders of people are growing every day more expensive in their houses, in their furniture, in their tables, in their dress, and in their equipage; it cannot well be expected that the sovereign alone should hold out against the fashion."

Smith, however, had his eighteenth century British royalty in mind. I think in America we should spend money to support the dignity of the sovereign, but I'd define "the sovereign" as not being one person, but rather as our whole democratic nation. Thus, if the terrorists on 9/11 had succeeded in destroying the U.S. Capitol, I'd have been in favor of spending whatever it took to rebuild it as the magnificent building it was, even though I know you could build a warehouse-type structure for a lot less, and Congress could deliberate and vote in such a shack just as well as they can behind a grand neoclassical edifice.

But it's just not sound policy in a republic, where the people rule, having such a fuss made over one cog of the government wheel being sworn into office. Obama will put his hand on the Bible at midday; what's with all the evening balls? Can't they just have a buffet luncheon?

Speaking of those formal galas, I got a real kick out of reading Lyric Winik's article about what a drag all those balls are; especially her advice, "Don’t wear a coat that you wouldn’t happily donate to charity. They don’t always come back." Winik's husband, Jay Winik, wrote April 1865: The Month That Saved America. Perhaps he should author another book entitled January 2009: The Month I Couldn't Save My Wife's Overcoat."

Pricey inaugurations just seem totally out of line with the qualities I choose to most admire in a president: simplicity and being down to earth. Franklin Delano Roosevelt, for instance, requested that no memorial be built to him larger than his desk. He probably wouldn't like the one that eventually got built.

But the best example I've ever seen of presidential modesty was something Thomas Jefferson did. Before he died, he helped design his own tomb. The nation's third president requested that the inscription on the stone read:

"Here was buried Thomas Jefferson, author of the Declaration of American Independence, of the Statute of Virginia for religious freedom, & father of the University of Virginia; because by these, as testimonials that I have lived, I wish most to be remembered."

Asked why he didn't want the inscription to include his service as Governor of Virginia, Secretary of State, ambassador to France, or President of the United States, Jefferson replied that those were thing the people did for him; he wanted to be remembered for what he did for the people (Nichols & Griswold, Thomas Jefferson: Landscape Architect,1978, p. 178).

The people did something for Barack Obama by electing him. It's not necessary to do something else for him by turning Washington, D.C. into one huge black tie affair next Tuesday. This is America; we have inaugurations, not coronations.

The farmer in the dell or in Philadelphia

2009-01-13T08:37:00.000-08:00

You can, if you choose, divide interpretations U.S. Constitution's text into two categories. Category A is the people who say, "That's a pretty darned democratic document James Madison and the boys crafted, isn't it?" I think the best book to read in this regard is one I've recommended here before, Akhil Reed Amar's America's Constitution: A Biography (2005).

I recently finished reading Woody Holton's recent book Unruly Americans: and the Origins of the Constitution (2007). This is the best book I've read by somebody I'd place in category B--the people who say, "That's a pretty darned elitist document James Madison and the boys crafted, isn't it?"

I'm not going to give a full-length review of Holton's book here, but I do want to bring up a point it raises on the occupations of the Framers. On page 181 of Unruly Americans, Holton writes:

"It has frequently been noted that hardly any of the federal convention delegates tilled the soil for a living. Since nine in ten free Americans were farmers, the Framers were, demographically speaking, unrepresentative in the extreme."

Holton's book is extremely well-researched; the notes in back run 74 pages. And yet, for this declaration that the absence of farmers at the convention is "frequently noted," he inexplicably does not provide a citation. I wasn't aware of this non-agrarian aspect of the delegates backgrounds and I'd have welcomed an end note that said "see, for example" or that provided an actual count of how many of the delegates literally spread manure in their professional lives as well as sometimes figuratively in their political ones.

But the real reason I was confused is that this seems to run counter to something Forrest McDonald writes in Novus Ordo Seclorum: The Intellectual Origins of the Constitution (1985). From page 220:

"Twenty-seven of the delegates, including nine who doubled as lawyers, were farmers."

So by McDonald's count, exactly half of the fifty-five delegates were farmers, while Holton insists that "hardly any" of them were. Why the discrepancy?

To try to understand this, I focused at first on Holton's exact words: "tilled the soil for a living." To be sure, there's a difference between a full-time farmer who earns his daily bread from agriculture, and a gentleman farmer involved more heavily in another racket. If Holton was counting only those guys whose income was almost entirely through raising crops or livestock, and McDonald was tallying anybody who had a farm but was mainly something else like a lawyer, that would make sense.

But here's the rub: I'm not sure the distinctions we might draw today between a gentleman farmer and somebody who actually wears overalls six days a week is applicable to the world of 1787. In that regard, I call your attention to the 1992 book White House Landscapes: Horticultural Achievements of American Presidents by Barbara McEwan. The most famous man at the Constitutional Convention was George Washington. When you think of his occupation, what comes to your mind? Probably that he had a distinguished career as a military man and as a statesman. McEwan interprets his life differently:

"Like almost all his peers, George Washington was first and foremost a farmer, one of the most conscientious of any era. For most Americans in Washington's day, farming was a necessity. In Virginia, except for speculating in lands to the west (which Washington engaged in) and the slave trade (which he did not), money was difficult to acquire without being a tobacco planter." (p. 1).

The statement that nearly everybody was a farmer of some sort back then is basically repeated later in the chapter on Thomas Jefferson, McEwan declaring that "virtually everyone in those days... tilled the soil, although a rural man's day might also be spent as a lawyer, doctor, politician, merchant, or preacher." (p. 33). So we're right back to the question of farming as a primary occupation or a secondary one.

McEwan also quotes a letter written by James Madison, the other constitutional delegate who later served as President. Madison declined an invitation to visit a colleague, writing:

"I am obliged to keep in mind that I am a farmer and am willing to flatter myself that my farm will be the better for my presence." (p.53).

That at least does sound a bit like someone writing as a man who wants to be on his farm rather than as a man who must attend to his farm. Looked at this way, Madison wouldn't count as one who "tilled for a living" as Holton would have it. But Madison was still a farmer in a meaningful sense; by 1801 he owned three farms totaling five thousand acres (McEwan, p. 54).

Unlike the tomes by Holton and McDonald, White House Landscapes is not a scholarly book. McEwan's volume is intended for a popular audience and it cites very few sources. (You know you aren't reading a serious work of scholarship when the only reference given for the chapter on Theodore Roosevelt is his own autobiography.)

Nevertheless, by giving me about fifteen pages on Washington's agricultural pursuits, and another dozen on those of Madison, McEwan is at least providing me with some information on the significance of farming in the lives of a couple of men who signed the Constitution. While it wouldn't have been relevant for Holton to digress into that, I do wish he had at least offered citations for his assertion that "hardly any" of the Framers "tilled the soil for a living." Notes in a scholarly work are mostly for the benefit of those of us geeks who want to know more, and in this case I very much want to know more.

Long, long ago, in a Big Ten Conference far, far away...

2009-01-10T03:26:00.000-08:00

I see that yesterday President-elect Obama once again stated his belief that top division college football should adopt a playoff system.

This raises the question: if Obama is so big on major college football, why did he teach at the University of Chicago?