Tag Archives: constitution

To Save Democracy, End the Filibuster

January 18, 2021 – 10:55 am

American democracy only works if the Senate works.

At the moment the two biggest stories in American politics are the impeachment of Donald Trump and the long-anticipated inauguration of Joe Biden. Both stories, at their root, are about the continuance of democracy.

Biden’s inauguration may be sparsely attended, socially distanced, and observed by enough troops to conquer a medium-sized country, but fundamentally it will be a celebration of the peaceful transfer of power. In spite of a long list of bad-faith challenges, culminating in a right-wing mob attacking the Capitol itself, the American People will get the president they elected.

Trump’s impeachment is in some sense the flip side of that same coin. When a president tries to hang on to power in spite of the People, even to the point of inciting violence against the government he supposedly heads, there must be consequences. One lesson of history is that democracies must be willing to defend themselves. Letting would-be authoritarians walk away and try again only validates anti-democracy propaganda: that democracies are fundamentally weak, and that advocates of democracy secretly admire and envy the self-styled Leader and his followers for their love of country and the courage of their convictions. “If we got away with this,” the anti-democratic forces wonder, “what else can we get away with?”

So count me among those who approve of both these stories. But at the same time, I recognize that each offers our constitutional republic only a short-term salvation. The longer-term problem is the widespread perception that our system is not working, and that it grows more dysfunctional year by year. If Trump is convicted, American fascism might be stuffed back into its box for a few years. And if Biden uses his powers wisely, he may spark a short-term rise in the nation’s self-confidence. Certainly, he should be able to quickly reverse the corrosive effect of the last year, when our president appeared to have lost interest in a plague that killed (and continues to kill) thousands of Americans each day.

But long-term, the health of any democracy relies on public faith in one simple idea: The most effective and most legitimate way to seek change is to convince other citizens to agree with you, so that the public will elect a government that will achieve the changes you seek. Conversely, a democracy is in trouble if its citizens begin to see elections as empty spectacles that change nothing.

Now it only takes 60 votes, but the same principle applies.

Legislative failure. In the past several cycles, Democrats and Republicans have each won wave elections that left the party in control of the presidency and both houses of Congress. But neither produced an FDR- or LBJ-like list of legislative accomplishments. Instead, each managed only one big thing: ObamaCare for the Democrats and the Trump tax cut for the Republicans.

In spite of broad support from their voters, the Democrats couldn’t pass cap-and-trade to fight climate change, ObamaCare’s public option, any significant gun control, or immigration reform. Republicans couldn’t repeal ObamaCare, pass an infrastructure program, or fund Trump’s wall.

Voters on both sides were left wondering: What was all that for?

Admittedly, both parties faced obstacles beyond the Senate filibuster. Obama thought he had more time: His filibuster-proof 60-Democrat Senate didn’t last two years, but only half a year; Republican lawsuits delayed Al Franken’s arrival in the Senate until July, and the next January the Democrats unexpectedly lost the Massachusetts seat vacated when Ted Kennedy died. (Only a parliamentary maneuver allowed ObamaCare to become law.)

Trump’s GOP suffered from a lack of real programs to pass. “Repeal and replace ObamaCare” turned out to be an empty slogan; neither Trump nor any other Republican had a replacement plan, and three Republican senators wouldn’t vote for repeal without one. Trump eventually announced an infrastructure plan, but couldn’t get his own party to buy into it.

Each party suffered from the implacable opposition of the other. It is striking to look back at big legislation of the past. Medicare got 70 votes in the Senate, including 13 Republicans. Social Security got 77 votes (16 Republicans), and the Voting Rights Act got 77 (30 Republicans; the main opposition came from Southern Democrats). The National Environmental Protection Act (which, among other things, established the EPA) passed unanimously. But both ObamaCare and the Trump tax cut were party-line votes.

In part, the polarization of the Senate is due to the polarization of the voters. But the polarization of each party’s special interests is also an important factor. Polls show considerable bipartisan support for giving some kind of legal status to the Dreamers (undocumented immigrants brought into the US as children, many of whom remember no other country), for simple gun-control measures like universal background checks, for limits on medical malpractice lawsuits, and a number of other measures. But base voters oppose them, and so do organizations like the NRA or the National Trial Lawyers. So they don’t pass, to the great frustration of the majority of Americans.

Issues that used to be negotiable have now been cast as matters of principle. Republicans cannot support any tax increase, no matter what concession they might get in exchange. Many Democrats draw a line in the sand on entitlement reform. As recently as 2013, the Senate could pass a bipartisan immigration reform bill. But today that bill (which might also have passed the House if Speaker Boehner had allowed a vote) seems like a relic from a bygone era.

But all these factors come back to how easy it is to block things in the Senate. In a polarized environment with powerful special interests, it’s hard to get 60 votes for even the most popular bills. One of the levers that previously induced senators to compromise was the argument: “This bill is going to pass anyway. You might as well get on board and see if you can win any concessions in exchange for your support.” (This still works for must-pass bills like the ones that keep the government open.) But if the bill is likely not going to pass, why risk the attack ads that a yes-vote might generate?

Filibusters have become the rule, not the exception. The filibuster has existed since a rule change in 1806, which is sometimes blamed on the villainous Aaron Burr. It is not in the Constitution. On the contrary, the Constitution explicitly requires Congress to have supermajorities only for a few highly significant actions: removing a President or other official via impeachment, passing a constitutional amendment, and ratifying a treaty. But the Founders never intended a supermajority requirement to apply to ordinary legislation. In Federalist #22, Alexander Hamilton railed against those who would ask for a supermajority provision:

The public business must, in some way or other, go forward. If a pertinacious minority can control the opinion of a majority, respecting the best mode of conducting it, the majority, in order that something may be done, must conform to the views of the minority; and thus the sense of the smaller number will overrule that of the greater, and give a tone to the national proceedings. Hence, tedious delays; continual negotiation and intrigue; contemptible compromises of the public good. And yet, in such a system, it is even happy when such compromises can take place: for upon some occasions things will not admit of accommodation; and then the measures of government must be injuriously suspended, or fatally defeated. It is often, by the impracticability of obtaining the concurrence of the necessary number of votes, kept in a state of inaction. Its situation must always savor of weakness, sometimes border upon anarchy.

… When the concurrence of a large number is required by the Constitution to the doing of any national act, we are apt to rest satisfied that all is safe, because nothing improper will be likely TO BE DONE, but we forget how much good may be prevented, and how much ill may be produced, by the power of hindering the doing what may be necessary, and of keeping affairs in the same unfavorable posture in which they may happen to stand at particular periods.

Filibusters were purely theoretical until the 1830s, and fairly rare thereafter. The Senate tended to think of itself as a gentlemen’s club; grinding business to a halt was ungentlemanly behavior. For years, filibusters were reserved for only the most important issues. For example, Southern senators used them to stifle civil-rights legislation, which they saw as a direct threat to the white supremacist society of the Jim Crow states. (Filibustering was, in essence, an alternative to seceding again.) But then the frequency of filibusters took off.

https://www.motherjones.com/kevin-drum/2013/11/charts-explain-why-democrats-went-nuclear-filibuster/

Today, the press simply takes for granted that everything will be filibustered, and routinely reports that it takes 60 votes to get anything through the Senate. For example, the post-Sandy-Hook-massacre effort to get background checks through the Senate failed 54-46, with the 54 voting for it. This was reported as if it were business as usual. Effectively, the Senate now has the supermajority requirement that Hamilton so opposed, with exactly the unfortunate results he predicted.

Spreading effects of Congressional dysfunction. People from both parties (or neither) frequently complain about two other unfortunate trends in American governance: the imperial presidency and the ever-expanding reach of the Supreme Court. Both of these developments are promoted by the dysfunction of Congress.

Increasingly, presidents push the boundaries of executive orders. It’s easy to criticize Trump’s excesses, like the phony emergency he declared in order to redirect money to his border wall. But it’s also instructive to note Obama’s overreaches, like DACA, which protected the Dreamers from deportation and allowed them to work legally, and the DAPA program that would have covered parents of American citizens if the Supreme Court had allowed it.

In Obama’s remarks announcing DACA, he pleaded for Congress to turn a popular cause into a law.

Now, let’s be clear — this is not amnesty, this is not immunity. This is not a path to citizenship. It’s not a permanent fix. This is a temporary stopgap measure that lets us focus our resources wisely while giving a degree of relief and hope to talented, driven, patriotic young people. … Precisely because this is temporary, Congress needs to act. There is still time for Congress to pass the DREAM Act this year, because these kids deserve to plan their lives in more than two-year increments. And we still need to pass comprehensive immigration reform that addresses our 21st century economic and security needs.

He stretched the power of executive orders because the American people supported something that Congress refused to do, or even bring to a vote. This is a common pattern in executive orders: Something needs to happen and Congress is log-jammed, so the president just does it on dubious authority.

Trump’s trade wars followed the same pattern. Tariffs are supposed to be set by Congress, but an obscure and seldom-used clause of a law delegated that power to the president under extreme circumstances. Trump decided those conditions were met and abused this power. But getting tougher on foreign imports was popular, so Congress did nothing to reclaim its prerogatives.

Much judicial overreach is similar. Take, for example, John Roberts’ rewrite of the Affordable Care Act. He was part of a conservative majority that ruled (wrongly, in my opinion) that the law’s insurance mandate couldn’t be justified by previous Supreme Court interpretations of the Constitution’s interstate commerce clause. Roberts, however, recognized that Congress has sweeping constitutional power to tax, so he reinterpreted the mandate’s penalty as a tax, allowing ObamaCare to stand.

In earlier eras, the Court might simply have voided the law, but delayed the implementation of its ruling to allow Congress to adjust. After a simple legislative fix — change the word “penalty” to “tax” — the program would have gone forward. But Roberts knew that in the current era, legislation only passes when the planets align. Voiding ObamaCare for any reason would have meant ending it for the foreseeable future. He wasn’t willing to be the reason why tens of millions of Americans lost their health insurance, so instead he rewrote the law himself.

A similar pattern accounts for the various administrative changes Obama made during the implementation of the ACA. It is common for big new programs to need fine tuning, because nothing complicated ever works exactly as its designers expect. In past eras, Congress would quickly pass such changes, recognizing that they improved an ongoing program. But ObamaCare’s opposition wanted to see it crash, and would not allow any legislative fine tuning. So Obama stretched his executive power to make the program work.

In the Founders’ vision, Congress is the vehicle for channeling public opinion into action. But that channel is blocked, so the other branches of government expand their power to compensate. This is not healthy for democracy: The expanding power of the president tilts us in the direction of an elected dictatorship, while the the Supreme Court’s extended range of action removes power from the political system entirely. But complete inaction in the face of well-recognized problems is also not healthy for democracy.

Stop the decay. The danger in this process should be obvious, because we see it happening all around us: People are becoming more cynical, and losing faith in the power of their vote. If passing, say, Medicare for All requires electing 60 Democratic senators, what’s the point of trying? Even expanding ObamaCare is more likely to happen via a Biden executive order than by an act of Congress. And if you oppose that executive power grab, you will look to the Supreme Court to save you, not Congress.

The filibuster is far from the only anti-democratic provision in our system. The Senate itself allows a collection of small states that represent far fewer than half the country to gain control. The Electoral College makes it possible for a minority to elect the president. Gerrymandering and voter suppression make the House undemocratic.

But the simplest and most direct way to restore the vitality of Congress is to end the filibuster. If you can convince enough people to agree with you to elect majorities in both houses, you should be able to get legislation passed. If that legislation turns out badly, a new majority should be able to get it repealed. That’s what makes elections meaningful.

If elections stop being meaningful, people will not stop seeking change. They’ll just have to promote it through undemocratic means. Eventually, a Caesar will come and sweep the whole jammed system aside. And the People will probably cheer, just as the People cheered Caesar.

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Those Executive Orders

August 10, 2020 – 12:07 pm

Like everything Trump does, they don’t match what he’s says he’s doing.

Remember the government shutdown that lasted from December 22, 2018 to January 25, 2019? Congress was refusing to fund Trump’s border wall, so he pulled out of a previously settled deal to fund the government. When public opinion didn’t rally behind his position, he relented on funding the government, but declared a state of emergency and used it to seize money Congress had appropriated for other purposes and redirect it to his wall. The Supreme Court has not yet ruled on the legality of this move, which seems to usurp Congress’ constitutional power of the purse, but it has allowed construction to continue so long that the case may become moot because the money is already spent.

Cases like these are never one-offs. Having gotten away with something once, Trump is bound to try it again.

So here we are: The CARES Act was passed in March as an emergency appropriation intended to see the country through the economic impact of the Covid-19 epidemic. At the time, no one imagined that the US would botch its response to the epidemic so badly that a thousand people a day would still be dying in August, so most of the CARES provisions ran out on July 31, including a moratorium on evictions and the $600-per-week enhanced unemployment payments.

Nancy Pelosi’s House had the foresight to pass a follow-up, the HEROES Act in May. But Mitch McConnell refused to bring it to the floor of the Senate, and did not start negotiating any CARES extensions at all until late July. With much of the Republican Senate caucus already plotting their resistance to the Biden administration, McConnell doesn’t have the votes to pass any CARES-extension bill without Democratic buy-in. So he left the negotiations to the White House team of Steve Mnuchin and Mark Meadows.

The White House refused to budge from its plan, which is about 1/3 the size of the HEROES plan, and contains no money to fill the budget gaps of state and local governments. Politically, Trump looks like the one with the most to lose if nothing gets done and the economy crashes, so Pelosi is not inclined to cave in to his demands without getting some concessions in return. So no deal has gotten done. (Has anybody noticed that our Art-of-the-Deal President never seems to get to Yes on a deal?)

So we’re back to the emergency-executive-powers trick. Or something. Maybe.

Saturday Trump signed three memos and an executive order which, in typical Trumpian fashion, don’t actually do what he claims. Here’s what is kinda/sorta in them.

  • A $400 unemployment enhancement to replace the CARES $600 replacement. Except that $100 has to come from the states, which may not have any money to cover it. The $300 federal contribution comes from a $44 billion pot of money that FEMA has, and of course won’t need during this record-threatening hurricane season. (This is literally an idea out of House of Cards, which FEMA officials rejected as unrealistic at the time.) Since we’re talking about 30 million unemployed people, the money will run out in about five weeks, assuming that they actually receive it and that it’s legal for Trump to spend it this way at all.
  • Eviction protection. Except, not really. The executive order asks relevant government officers to “consider” doing something to stop evictions, and to “identify” existing federal appropriations that might help stressed renters and homeowners, assuming that there are any such appropriations. If your landlord has a court date for your eviction, nothing in this order interferes with that proceeding.
  • Cuts in payroll tax deductions. The order doesn’t actually cut what you or your employer owe in Social Security and Medicare taxes. It just stops collecting those taxes for a while. So temporarily you might see more money in your paycheck, assuming you’re still getting one from somewhere, but your arrears will be building up, and will come due after the election. If he’s re-elected, Trump wants to cancel that debt too, but that just raises a new question: How do Social Security and Medicare get funded?

So basically what we have is flim-flam put together with a constitutionally questionable claim on FEMA money. In the context of the border-wall emergency, Trump is pushing us closer and closer to a model where the President can take any money Congress appropriates and spend it however he wants. It should go without saying that this is very, very far from the process the Founders thought they were establishing.

James Fallows raises the question we should all be asking:

I am not aware of any of the “strict constructionists” who blasted Obama for executive-order overreach, who have weighed in about Trump’s l’etat-c’est-moi wave of appropriation-by-exec-order. Are there any?

To be fair, a handful of Republican lawmakers have said something that expressed concern of some sort. But most of the hand-wringing was of the “Now look what the Democrats made him do” variety. If you’re looking for a flat-out “This is unconstitutional”, you won’t find it. Apparently respect for the Constitution is like fiscal responsibility or free trade or freedom or any of the other high-minded principles Republicans have put forward over the years. All such principled expressions are made in bad faith, and go out the window as soon as they become inconvenient.

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Accelerating Corruption and Autocracy

February 24, 2020 – 10:48 am

Ever since he came down the escalator pledging to protect us from Mexican rapists, Donald Trump has shown corrupt and autocratic tendencies. Before long, he was leading chants about locking up his political opponents, welcoming Russian help in his campaign, encouraging his supporters to be violent, profiting off of campaign events, and saying that he would only accept the election results “if I win“.

Since taking office, he has funneled public money into his private businesses, continued building his wall without a Congressional appropriation, refused all demands for financial transparency and Congressional oversight, obstructed the Mueller investigation, assembled the most corrupt cabinet since Nixon, lied many times per day, and repeatedly expressed his envy of dictatorial regimes like North Korea and China.

But the authoritarian drift has definitely accelerated in the three weeks since every Senate Republican but Mitt Romney voted to let Donald Trump remain in office, despite proven abuses of power. As Atlantic’s Adam Serwer puts it, Trump’s acquittal marked “the end of the Trump administration, and the first day of the would-be Trump Regime.” Think about what we’ve seen since the Senate’s abdication of its constitutional role in controlling would-be autocrats.

A purge of “disloyal” officials. The disloyalty here is not to the United States, but to the person of Donald Trump.

Lt. Colonel Alexander Vindman, for example, has behaved exactly as an officer should: When something about Trump’s Ukraine call seemed odd to him, he reported his concerns up the chain of command. When Congress subpoenaed him, he appeared and testified honestly. For this, he was not just fired, but escorted out of the White House like a criminal. His twin brother, who played no role in the impeachment hearings, was also fired just out of vindictiveness. (Fortunately, the Army has refused Trump’s suggestion that Lt. Col. Vindman be investigated and disciplined.)

Other people who are now gone: Ambassador Bill Taylor, Ambassador Gordon Sondland, Ambassador Marie Yovanovich, Undersecretary of Defense John Rood, and Deputy National Security Adviser Victoria Coates. They join everyone in the FBI who had any connection to the original Russia investigation, most of whom were purged long ago: James Comey, Andrew McCabe, Peter Strzok, Bruce Ohr, and Lisa Page, as well as the Justice Department leadership that refused Trump’s pressure to shut the investigation down: Jeff Sessions and Rod Rosenstein.

The purge is expected to continue throughout the administration. (See below for purges at the Office of the Director of National Intelligence.)

Interference in the Stone trial. It’s important to understand what Roger Stone (along with Paul Manafort and Michael Flynn) represents: the last loose ends in the obstruction of the Mueller investigation. (One of the obstruction-of-justice claims explored in Part II of the Mueller Report was that Trump engaged in witness-tampering with Manafort, including hinting at a pardon.)

Stone was the Trump campaign’s link to WikiLeaks and from there to the Russians who hacked Democratic computers. Manafort was the campaign’s link to Russian oligarch Oleg Deripaska, and from there to Russian intelligence. Flynn’s relationship with Russian Ambassador Segei Kislyak (in particular why Flynn and Jared Kushner approached him about creating a “back channel” to Russia) has never been explained. These men are not just Trump’s “friends”, they’re his accomplices.

In the Stone case, Trump (through Bill Barr) reversed the prosecutors’ sentencing recommendation (causing all four prosecutors to withdraw from the case rather than participate in political corruption of the processes of justice), attacked the judge, and attacked a juror. He didn’t stop Judge Amy Berman from sentencing Stone to 40 months in prison, but he did set up his justification for a post-election pardon, along with pardons of Flynn and Manafort. This would send a clear message to anyone else who could testify against Trump: Keep your mouth shut and the boss will take care of you.

Notice what has been missing from Trump’s defense of Stone: acknowledgment of the fact that he’s guilty. Stone lied to Congress to protect Trump, and he threatened a witness who could expose that lie. A jury of his peers unanimously found that Stone’s guilt had been proved beyond a reasonable doubt.

Pardons for money. Corrupt Illinois Governor Rob Blagojevich got the attention, but the most obviously corrupt of Tuesday’s pardons was tax evader Paul Pogue, whose family has contributed over $200K to the Trump Victory Fund. Criminal financier Michael Milken was pardoned after a request from billionaire Nelson Peltz, a Milken business associate who had just hosted a Trump fundraiser that netted the campaign $10 million.

Pardons to maintain a corrupt network. Jeffrey Toobin pointed out the authoritarian flavor of the other Tuesday pardons:

Authoritarianism is usually associated with a punitive spirit—a leader who prosecutes and incarcerates his enemies. But there is another side to this leadership style. Authoritarians also dispense largesse, but they do it by their own whims, rather than pursuant to any system or legal rule. The point of authoritarianism is to concentrate power in the ruler, so the world knows that all actions, good and bad, harsh and generous, come from a single source. …

In this era of mass incarceration, many people deserve pardons and commutations, but this is not the way to go about it. All Trump has done is to prove that he can reward his friends and his friends’ friends.

Trump’s pardons did not percolate up through the Justice Department’s Pardon Attorney. They all had some personal connection to Trump or his circle of friends and donors. Blagojevich, for example, was a contestant on “Celebrity Apprentice”, and his wife pleaded for his pardon on Fox News shows Trump is known to watch. (It’s worth noting that there is no doubt about Blagojevich’s guilt. We have the tapes.) Bernard Kerik was a crony of Rudy Giuliani.

All the beneficiaries of Trump’s mercy were convicted of the kinds of white-collar crimes Trump’s people might commit themselves. That was the point, Sarah Chayes (who covered Afghanistan for more than a decade) explained in “This Is How Kleptocracies Work“:

In return for this torrent of cash and favors and subservience, those at the top of kleptocratic networks owe something precious downwards. They owe their subordinates impunity from legal repercussions. That is the other half of the bargain, without which the whole system collapses.

That’s why moves like Trump’s have to be advertised. … Trump’s clemency came not at the end of his time in office, as is sometimes the case with such favors bestowed on cronies and swindlers, but well before that—indeed, ahead of an election in which he is running. The gesture was not a guilty half-secret, but a promise. It was meant to show that the guarantee of impunity for choice members of America’s corrupt networks is an ongoing principle.

Threats to the rule of law. The Justice Department had retained some measure of independence until Bill Barr became attorney general. Trump’s first attorney general, Jeff Sessions, shared Trump’s policy goals, but respected internal procedures for maintaining the rule of law. For example, he recused himself from the Russia investigation because of his own connection to the Trump campaign — a move which angered Trump and for which Sessions was never forgiven.

But Barr has made a number of moves in the Justice Department to shield Trump from investigation and intimidate his enemies. The best summary I’ve found is by Marcy Wheeler:

  • The Stormy Daniels hush-money investigation sent Michael Cohen to prison, but all the follow-up evaporated after Barr took over at DoJ. Cohen claimed he worked under Trump’s instructions, and that the Trump Organization reimbursed his illegal campaign contribution. But those leads have been dropped.
  • SDNY seems to be slow-walking its investigation into Rudy Giuliani’s Ukraine shennanigans, now that a new US attorney has been appointed. The head of the neighboring Eastern District of New York has been put in charge of Ukraine-related investigations that SDNY had been pursuing.
  • A new US attorney in D.C. has led to a “review” of investigations there, including cases involving Michael Flynn and Erik Prince.
  • Barr assigned Connecticut US attorney John Durham to investigate the origins of the Trump/Russia investigation. Anyone tempted to investigate further Trump wrongdoing now knows that they risk becoming targets themselves.
  • Barr tried to stop the Ukraine whistleblower’s account from reaching Congress, and did not recuse himself even though he is mentioned in the complaint.

Tightening control of the intelligence services. Like the Justice Department, the intelligence services maintained their independence when Dan Coates was Director of National Intelligence, and the subsequent acting heads had failed to bring them under control.

As a result, occasionally conclusions unfavorable to Trump have made it to Congress or the American public: Russia did help elect Trump in 2016. North Korea is not denuclearizing. ISIS is not defeated. Trump may not like to hear such facts, or to allow the American public to know them, but the whole point of having intelligence services is to correct the leadership’s misperceptions.

The most recent example was a February 13 briefing to House leaders of both parties, in which Shelby Pierson, an aide to then-acting DNI Joseph Maguire, reported that Russia was repeating its 2016 interference in the 2020 election process, again for the purpose of electing Trump.

You might expect an American president to react to such news by giving Vladimir Putin a stern warning to back off — as Bernie Sanders did when told that the Russians might be working to help him win the Democratic nomination. But no: Trump welcomed Russian help in 2016, sought to extort Ukrainian help with the 2020 election, and seems to welcome further Russian help now.

The intelligence report did make him angry, but at the intelligence services. He dismissed Maguire and replaced him with Richard Grenell, who has no intelligence background whatsoever. In a Washington Post column, retired Admiral William McRaven lamented Maguire’s fate:

in this administration, good men and women don’t last long.

In a different article, the WaPo quotes a former director of the National Counterterrorism Center:

Nothing in Grenell’s background suggests that he has the skill set or the experience to be an effective leader of the intelligence community. … His chief attribute seems to be that President Trump views him as unfailingly loyal.

As Ambassador to Germany (a position he still holds), Grenell was noted for his identification with right-wing parties like Alternative for Germany. (US ambassadors typically avoid such partisan interference in the politics of our NATO allies.) The German news magazine Der Spiegel couldn’t get an interview with Grenell, so it interviewed more than 30 sources including “numerous American and German diplomats, cabinet members, lawmakers, high-ranking officials, lobbyists and think tank experts.”

Almost all of these sources paint an unflattering portrait of the ambassador, one remarkably similar to Donald Trump, the man who sent him to Berlin. A majority of them describe Grenell as a vain, narcissistic person who dishes out aggressively, but can barely handle criticism. … They also say Grenell knows little about Germany and Europe, that he ignores most of the dossiers his colleagues at the embassy write for him, and that his knowledge of the subject matter is superficial.

Oh, by the way, Grenell used to work for a corrupt Moldavian oligarch, but didn’t register as a foreign agent. Under any previous administration, he wouldn’t be able to get a security clearance.

Grenell in turn has ousted the #2 intelligence official, Andrew Hallman, replacing him with Devin Nunes staffer Kashyap Patel, who is known for promoting pro-Trump conspiracy theories. More personnel changes are expected.

The NYT reports that Grenell has “requested the intelligence behind the classified briefing last week before the House Intelligence Committee where officials told lawmakers that Russia was interfering in November’s presidential election and that President Vladimir V. Putin of Russia favored President Trump’s re-election”.

This move recalls how Vice President Cheney abused intelligence during the Bush administration: By “stovepiping” raw intelligence to his own office rather than letting it pass through the analytic process, Cheney was able to manipulate conclusions that favored the policies he preferred, most notably the invasion of Iraq.

Summing up. If you don’t follow US government closely, you may not see the problem. After all, the President is in charge. Why shouldn’t the people under him do what he wants? Isn’t that how it always works?

It isn’t, and there are good reasons why it doesn’t. One problem — you might fairly say it was THE problem — the Founders were trying to solve when they wrote the Constitution was how to control executive power. Unfettered executive power quickly becomes dictatorship, and the rights of the People are then only as safe as the Dictator allows them to be.

For that reason, power was divided among the three branches of government, so that Congress and the Courts would be able to hold the President in check. Congress got the power of the purse and the power of oversight, both of which are now in jeopardy.

Subsequent to the Founding, executive power has also been controlled through the professionalization of the various departments, each of which balances political control by the President with its own inherent mission. So the Justice Department takes its policy from the President, but pursues the departmental mission of justice. The intelligence services try to find truth, the EPA protects the environment, the CDC defends public health, the military safeguards our country and its allies, the Federal Reserve balances economic growth against the threat of inflation, and so on. For the most part, presidents have known when to keep their hands off.

Until Trump. More and more, Trump makes everything political. There is no truth other than the story Trump wants to tell. There is no mission other than what Trump wants done.

Students of authoritarianism have been warning us about his dangerous tendencies since he first began campaigning. But, as Rachel Maddow noted Friday night, we are well past the time for warnings. “The dark days are not ‘coming’,” she said. “The dark days are here.”

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Three Misunderstandings About Guns and the Constitution

March 5, 2018 – 8:50 am

I. Armed civilians and tyranny

What’s misunderstood about it. One common argument in favor of private ownership of military-style weapons like the AR-15 is that a well-armed population is a necessary defense against tyranny, i.e., that the general population needs to retain the ability to overthrow the central government by military force. Ted Cruz has written that the Second Amendment serves as “the ultimate check against government tyranny — for the protection of freedom.”

A parallel argument is that historically, dictators like Hitler disarmed the public before imposing full tyranny. Once disarmed, the argument goes, the people were as helpless as sheep. This Facebook meme is typical, and features typically misleading quotes.

Both quotes are doctored.

What’s wrong with that view? Just about everything.

Let’s start with Hitler. Salon’s Alex Seitz-Wald debunks “The Hitler Gun-Control Lie“, leaning on a more scholarly article by historian Bernard Harcourt. The 1938 gun law that NRA voices like Wayne LaPierre so often cite actually weakened the gun-control laws of the Weimar Republic.

The 1938 law signed by Hitler that LaPierre mentions in his book basically does the opposite of what he says it did. “The 1938 revisions completely deregulated the acquisition and transfer of rifles and shotguns, as well as ammunition,” Harcourt wrote. Meanwhile, many more categories of people, including Nazi party members, were exempted from gun ownership regulations altogether, while the legal age of purchase was lowered from 20 to 18, and permit lengths were extended from one year to three years.

The Hitler quote in the illustration refers not to German civilians, but to non-Aryans in occupied Russian territory. Obviously, he would not have referred to himself as a “conqueror” of the German nation, or to the Nazi master race as a “subjected people”.

If the NRA’s point were valid, you would expect the most democratic nations in the world to be the ones with the most guns, but if anything, the correlation runs in the opposite direction. Here are the four most democratic nations, according to the UK-based Economist Intelligence Unit.

Nation democracy index guns per 100 civilians
Norway 9.87 31.3
Iceland 9.58 30.3
Sweden 9.39 21
New Zealand 9.26 22.6

Even these gun-ownership numbers, I suspect, are exaggerated in comparison with the U.S., since they probably include very few weapons like the AR-15. (Norway’s parliament is reportedly ready to pass a complete ban on semi-automatic weapons, which would include a number of popular handguns as well as rifles.)

Here are the nations with the most guns in civilian hands.

Nation democracy index guns per 100 civilians
United States 7.98 101
Serbia 6.41 58.21
Yemen 2.07 54.8
Cyprus 7.59 36.4

Of particular note is Japan, where the average 100 civilians own a mere 0.6 guns, but whose democracy index on a par with the U.S.: 7.88. If a disarmed population is just asking for a totalitarian takeover, why isn’t one happening in Japan?

Switzerland and Israel are frequently cited as democratic countries with a large number of guns and little civilian gun violence, but in both countries possession of a gun is associated with military service, and is strongly regulated otherwise. The BBC quotes a Swiss gun-owner, who does not keep ammunition in his house and stores his gun’s barrel in a separate part of the house from its body:

The gun is not given to me to protect me or my family. I have been given this gun by my country to serve my country.

Finally, there are those quotes from the Founding Fathers like the one in the illustration above, nearly all of which have been either taken out of context, mis-attributed, or simply invented out of nothing. The Jefferson quote above is rejected on the official Monticello web site. Other frequently-cited fake quotes from the Founders are debunked at Guncite.com.

II. The original intent of the Second Amendment.

What’s misunderstood about it. It’s believed that the Founders passed the Second Amendment to protect an individual right to own militarily useful weapons (like, in our era, the AR-15), so that the People would have the ability to resist a tyrannical federal government.

What more people need to understand. That belief is historically baseless.

Legally, it doesn’t matter whether privately-owned weapons actually deter tyranny or not. (They don’t.) If the Founders believed they did, and wrote that belief into the Second Amendment, and if no generation since has seen fit to repeal it, then it’s the law. But that’s not what the Second Amendment is about at all.

At this point it’s worthwhile to look at the full text of the Amendment, which is short.

A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Militiaman.

Today, we often tend to read right past the first clause and focus on the second. But it’s worth remembering what the Founders thought of when they saw the word militia: the Minutemen. In other words, a force of citizen-soldiers authorized by state or local governments, which could be called into action in a crisis. The current-day successor to the federal-era militias is the National Guard, not the self-appointed sovereign-citizen yahoos who drill up in the woods of Montana. The Constitution makes that quite clear in Article I, Section 8.

The Congress shall have Power … To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.

The so-called militias we hear about today refuse to be organized, armed, or disciplined by Congress, or to be trained or have their officers appointed the states. So they’re not at all what the Constitution is talking about.

Not a militiaman.

Why, then, was a well-regulated militia “necessary to the security of a free State”? Not so that it could fight against the federal government. In fact, Article I, Section 8 also explicitly gives Congress the power “to provide for calling forth the Militia”, which will then (Article II, Section 2) be under the command of the President. In case of insurrection, the Constitution foresees the militia fighting for the federal government, not against it.

The vision that worried the founding generation (enough to create the Second Amendment) was that the federal government might disband the militias and replace them with a large professional standing army, which would then need to have forts and bases throughout the country. Rather than repel an Indian raid itself, for example, a frontier community would have to call for help from the Army. Slave-owning states particularly worried about the possibility of an anti-slavery president refusing to put down a slave uprising (or maybe just dragging his feet). They wanted to be sure they would retain enough local power to keep their slaves under control.

Even more, the Founders feared that professional soldiers would grow to be loyal to their Commander in Chief rather than to the nation. The existence of this force might tempt a president to launch a coup and establish a military dictatorship. The point of a militia was to make that large permanent professional force unnecessary, not to fight pitched battles against it.

You can argue that we’ve already gone a long way down the road the Founders didn’t want us to travel: We have a large standing army with nationwide bases, and towns do not drill their citizens on the town green, as Lexington and Concord did. (However, we also have state and local police departments  — which didn’t exist in the Founding era — so we’re not entirely dependent on the federal government for our security.) But self-appointed Rambos arming themselves to resist the federal government was no part of the Founders’ vision. The whole point of the Constitutional system was to allow for peaceful replacement of an unpopular government. As the Supreme Court wrote in 1951:

Whatever theoretical merit there may be to the argument that there is a “right” to rebellion against dictatorial governments is without force where the existing structure of the government provides for peaceful and orderly change.

III. The weapons the Second Amendment protects.

What’s misunderstood about it. Some Americans see virtually any restriction on the weapons they can own, or even registration of those weapons, as a violation of their Second Amendment rights.

What’s wrong with that? In the entire history of the United States, no court has understood the Second Amendment that way.

Given that the Second Amendment was part of the Bill of Rights passed by the first Congress, you’d expect all its major provisions to have a long history of judicial interpretation. But in fact the individual right to own specific weapons wasn’t recognized until the 2008 Heller case, a hotly contested 5-4 decision of the Supreme Court. Prior to that, courts construed the Amendment’s “right to bear arms” as a collective right belonging to “the People” as a whole, not individual persons. Historian Michael Waldman wrote:

“A fraud on the American public.” That’s how former Chief Justice Warren Burger described the idea that the Second Amendment gives an unfettered individual right to a gun. When he spoke these words to PBS in 1990, the rock-ribbed conservative appointed by Richard Nixon was expressing the longtime consensus of historians and judges across the political spectrum.

Until Heller, the Supreme Court’s landmark gun-rights case was Miller, in which it rejected the argument that the National Firearms Act (regulating sawed-off shotguns, among other weapons) violated constitutional rights. Even the Heller decision (written by the late Justice Antonin Scalia) doesn’t endorse the NRA’s view of the Second Amendment. It struck down a District of Columbia law banning handguns, while allowing that

Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.

Challenges to the Federal Assault Weapons Ban that was in force from 1994 to 2004 never made it to the Supreme Court, though the law was upheld by lower courts.

What today’s Court would do with an assault-weapons ban, or even a complete ban on semi-automatic weapons, is very much up in the air. Scalia’s Heller opinion found an expectation that the militia would assemble carrying weapons “in common use at the time” for legal purposes. How extensive that use needs to be was not specified. Whether AR-15s and other assault weapons are “in common use” would no doubt be hotly debated. Certainly they are not as widely used as handguns were in 2008, and the main legal purpose for which handguns were used (self-defense) carries more constitutional weight than the nebulous legal uses of assault weapons.

No court decision anywhere invalidates the government’s legitimate power to register weapons.

No court has rejected the federal ban on automatic weapons or the regulation of high explosives, so there is clearly a line somewhere between weapons that can and can’t be banned. The question would be which side AR-15s fall on.

Just to give one obvious example, it would be incredibly stupid for the government to allow people who live on the flight paths of major airports to own surface-to-air missiles. And yet, the argument that individuals have to be prepared to fight a tyrannical government would seem to justify those weapons. (How are we going to resist the government if we can’t take down its air power?) Those who believe the resist-the-government interpretation of the Second Amendment should be pushed to say whether any weapons can be banned or regulated, and why exactly such limitations are consistent with their theory.

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What is impeachment for?

May 22, 2017 – 9:14 am

Before Democrats can talk responsibly about impeaching Trump, we need to state some standards we’d be willing to apply to a Democratic president.

One of the more ridiculous quotes of the Obama era came from Republican Congressman Kerry Bentivolio of Michigan. It was the summer after Obama’s re-election and Bentivolio’s constituents were wondering about impeachment, like you do when you think the wrong guy won the election.

The Congressman responded that “it would be a dream come true” to impeach Obama, and claimed he had challenged lawyers to “tell me how I can impeach the President of the United States.” But the lawyers uncovered a pesky little problem: “Until we have evidence, you’re going to become a laughing stock if you’ve submitted the bill to impeach the president.”

Damn. You need evidence that he did something wrong. There’s always a catch somewhere.

The cheapening of impeachment. The mood was very different in 1973, when the House Judiciary Committee began investigating impeachment against President Nixon. Up to that point, there had been only one serious presidential impeachment case in American history, against Andrew Johnson in 1868. No one had come out of that affair looking good, and it made both sides cautious a century later. [1]

So the Nixon proceedings had an air of solemnity: History was watching, and whatever you did now would be what you were remembered for. Democrats, who held the majority in both houses in spite of Nixon’s 1972 landslide, bent over backwards to give Nixon at least the appearance of a fair hearing; Republicans likewise worked hard to create the impression that they were taking their duties seriously. Ultimately, it was three Republicans — Barry Goldwater, Hugh Scott, and John Rhodes — who went to the White House to tell Nixon it was time to resign.

A lot of Democrats had hated Nixon for a long time, but nobody crowed about “a dream come true”. Impeachment wasn’t something you started talking about as soon as your side lost. It was a constitutional last resort, and you didn’t break that glass unless it was really an emergency.

Impeachment still required a high bar in 1987, when Congress began investigating the Iran-Contra scandal. Iran-Contra was a big deal: A dozen major figures in the Reagan administration were indicted, including the Secretary of Defense and the National Security Adviser. [2] President Reagan apologized to the American people on national television: “A few months ago I told the American people I did not trade arms for hostages. My heart and my best intentions still tell me that’s true, but the facts and the evidence tell me it is not.” Congress concluded that Reagan either knew about the wrong-doing or should have known. But he was not impeached.

It was Bill Clinton’s impeachment in 1998-1999 that changed all the rules. For Nixon, it was thought to be important that the special prosecutor, Leon Jaworski, be a political independent who had voted for Nixon; that made it clear the President wasn’t being railroaded. But Clinton’s first prosecutor was a Republican (Robert Fiske), who was replaced mid-investigation by a more partisan Republican (Ken Starr). Starr published a report emphasizing the most salacious aspects of the case in lurid language, and frequently leaked sensational details to the press.

Throughout the process, the votes on impeachment were very close to party-line — which meant that the ultimate result was predetermined: The Republican-controlled House impeached Clinton by majority vote, but conviction in the Senate required a 2/3rds majority, which couldn’t happen without convincing a significant number of Democrats. Clinton served out his full two terms.

George W. Bush could have been impeached over violations of the Convention Against Torture or for deceptions in the process leading to the Iraq War. A resolution was introduced in the House, but it died in committee. The full House never voted on it.

Republicans often talked about impeaching President Obama, but their efforts never passed the laugh test: Like Bentivolio, they failed to come up with a plausible charge, much less assemble evidence to support it.

Standards. It’s easy to be a partisan hypocrite about impeachment. If the question is just “Do I want to get rid of this guy?”, then I’ll want to impeach presidents of the other party and defend presidents of my own. And after the plainly partisan nature of the Clinton impeachment, it’s tempting for Democrats to return tit for tat.

But cheap impeachments are bad for democracy. An election should mean something; it should make a decision that is not easily reversed. On the other hand, the Founders put impeachment into the Constitution for a reason. If Democrats are going to start another one any time soon, we owe it to the Republic to form a clear idea of what impeachment is for, and to state a non-partisan standard we’d be willing to stand by the next time a president from our side is in office.

The standards for impeachment are listed in the Constitution, but the statement is terse:

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Treason and bribery we all sort of understand, but it’s the “other high Crimes and Misdemeanors” that has been so maddeningly vague over the years.

A prime example is obstruction of justice — what Trump may have done when he fired Jim Comey. Obstruction was an impeachable offense when Nixon did it, so Republicans claimed it as an impeachable offense for Clinton. Democrats thought you needed more context; not all obstructions should count the same: Clinton was accused of inducing Monica Lewinsky to lie about their affair; Nixon was accused of doing a long list of things — conspiring with others, concocting cover stories, destroying evidence, asking the CIA to interfere with the FBI — to block the investigation of a burglary intended to help his re-election campaign. It didn’t seem fair to lump the two in the same category and proceed from there.

Now that it’s a Republican in the dock, expect the parties to switch places: Democrats will insist that obstruction-as-impeachable-offense is now well established; Republicans will want to say, “Wait a minute.”

If we’re not all just going to run to our respective partisan banners, we need think this through from the beginning.

What is impeachment for? The Founders knew that occasionally the voters would screw up. Bad presidents were inevitable, which is why John Adams talked about forming “a government of laws, and not of men“. The Constitutional system created multiple centers of power that could check and balance each other. The hope was that the country would be strong enough to ride out a bad presidency.

So the ordinary way to get rid of a bad president is to wait for his term to expire and elect somebody else. Impeachment is only for cases where that solution just isn’t adequate.

That’s why treason and bribery are specifically mentioned. If a president is just bad at his job, you can usually live with that until the next election. (After all, the country survived eight years of George W. Bush.) But if the power of the office is being controlled by someone else — by a hostile foreign power (treason) or a wealthy special interest (bribery) — then we really can’t wait that long. (That’s even more true today than in the 1700s, because of the immediacy of nuclear weapons.) So I interpret “other high crimes and misdemeanors” as “other offenses too urgent to put off until the next election”.

The most obvious offense that you can’t put off until the next election is anything that subverts the next election. So if a president is using his or her power to alter the political system — like burglarizing the other party’s files or making deals with foreign powers to hack their computer systems — that also should be impeachable. [3] Other things that could be impeachable in the same way are shutting down hostile newspapers, or preventing legal voters from casting their ballots.

Since the separation of powers is what we’re counting on to keep a bad president in line, anything that usurps the power of the other branches has to be impeachable, unless the breach can be repaired some less drastic way. [4]

Along the same lines, the impeachment process itself has to be protected. So obstruction of justice needs to be an impeachable offense, if the obstructed investigation concerns an impeachable offense. [5]

Finally, there are offenses that have no other enforcement mechanism. For example, violations of the Emoluments Clause, which there is a good case Trump is guilty of. Bush-administration ethics lawyer Richard Painter wrote: “The only remedy for a serious violation of the Emoluments Clause is impeachment.” [6]

Application to Trump. Under these standards, it seems obvious to me that the House Judiciary Committee should be investigating impeachment, because there are viable accusations of impeachable offenses: most obviously the emoluments, but possibly more directly dangerous things. Any collusion with Russia to hack the Democrats would be impeachable, as well as obstruction of justice if it was intended to shelter allies who did collude. (Whether Trump was involved directly in the collusion wouldn’t matter; if he later suspected what his associates did and tried to protect them, that would be impeachable.)

At this point, whether I would support an impeachment vote in the House or conviction by the Senate would depend on what those investigations turned up. But there are definitely things to investigate.

[1] Johnson had been the slave-owning Democrat Lincoln put on his ticket in the name of national unity. After the assassination, he was an outsider dealing with Lincoln’s overwhelmingly Republican Congress.

If you’ve ever wondered why vice presidents are such yes-men, Johnson’s example explains why. When the VP has very different views than the president, it’s practically an invitation to assassins. John Wilkes Booth really did succeed in changing the direction of the country.

[2] Both were pardoned by President Bush before they served jail time.

[3] By contrast, Clinton’s extra-marital affair was just embarrassing, not a threat to the Republic. He finished his term, and there was a peaceful transfer of power to the other party after the next election.

[4] Republicans claimed that Obama’s executive orders on immigration usurped the power of Congress. So they sued, won their case, and Obama obeyed the judgment of the courts. But if Obama had instead said, “Screw the judges, I’m going to do what I want.”, then impeachment would have been Congress’ only recourse.

[5] That leaves out the obstruction charge against Clinton, but creates an interesting test scenario: What if the reason Trump wanted to stop Comey’s investigation wasn’t that he himself had done anything wrong, but to prevent Comey from catching his son-in-law Jared Kushner, who was guilty of some financial chicanery? I’m leaning towards the idea that Trump should be prosecuted for that after leaving office, but not impeached.

[6] Naturally, if the money the President receives from a foreign government is in return for some favor, then it’s already impeachable as a bribe.

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The Asterisk* in the Bill of Rights

September 26, 2016 – 9:41 am

*except when black

The big debate in the Keith Lamont Scott shooting — the one that started the protests that have been going on in Charlotte since Tuesday — is whether or not Scott had a gun, and if so, whether it was in his hand. The police said he did and it was, though for days they refused to release video of the incident. [1]

The Scott shooting came a few days after police in Tulsa shot and killed another black man, Terrence Crutcher. But the Tulsa case was manslaughter, and a police officer has been charged, largely because Crutcher was unarmed. Even there, though, weaponry is an issue. (The officer claims Crutcher was reaching into his vehicle, and she feared he was reaching for a gun. But the video doesn’t corroborate that story.) Apparently she believed that if he might have been armed, shooting him dead would be an appropriate outcome.

Back in July another black man, Philandro Castile, was shot dead by a police officer during a traffic stop. Castile told the officer there was a gun in the car, which he had a permit to carry. His girlfriend and her 4-year-old daughter were also in the car. The girlfriend claims Castile was reaching for his wallet when the officer shot him four times. So far, there have been no charges.

The NRA, an organization that exists to defend the rights of gun-owners, decided not to comment on the Castile shooting “while the investigation is ongoing”. My Google search for “NRA statement on Keith Lamont Scott” turned up nothing relevant, even though for days the only reason police gave for initiating the encounter was their belief that Scott was armed. (More recently, they elaborated that they also observed him rolling a cigarette which they believed to be marijuana.) North Carolina is an open-carry state, so having a firearm is not in itself a violation. [2]

So if you’re an organization working to make sure the government doesn’t hassle gun-owners exercising their Second Amendment rights, the initially available information in the Scott case would seem to be right up your alley.

Except that Scott is black. The NRA doesn’t do black. I mean, they will gladly let you join and accept your membership fees if you’re black, but don’t count on them to defend your Second Amendment rights. Because, well, what Second Amendment rights? There’s an asterisk on the Second Amendment. The Washington Post‘s Eugene Robinson reviews the facts of the Scott and Castile cases [3] and draws the obvious conclusion: “laws permitting people to carry handguns apparently do not apply to African Americans.”

If all they saw was a man with a gun who got out of a car and back in, what illegal activity did they observe? Why did they “approach the subject” instead of going about their business? Did they have any reason to suspect it was an illegal gun? Are all men carrying guns believed to be carrying guns illegally, or just black men? [4]

Cenk Uygar of The Young Turks noticed something similar, and brings up two other cases: Tamir Rice in Cleveland, the 12-year-old who was killed within seconds of police arriving despite the fact that his “gun” was a toy, and John Crawford III, who police killed in a Walmart near Dayton, because he also was carrying a toy gun which he apparently planned to buy. Like Rice, Crawford was shot within seconds after police arrived. Apparently, blacks with guns are so dangerous that police can’t be bothered to see whether they will drop them, or even to discover whether the guns are real at all.

That police behavior may be questionable, but it’s not obviously racist; maybe they’d be just as trigger-happy towards whites. But Uygar then shows three videos of cops patiently having conversations with uncooperative armed white men, none of whom wind up dead. In the last one, the man verbally abuses three policemen until they back away and leave him with his weapon. Uygar comments:

Yeah, that happens to black guys all the time in this country. Where they laugh at cops in their face and say, “See ya, tough guy. Walk away.” And the cops go, “OK, yes sir. You’re right, sir. You have constitutional rights, sir. Of course I’ll walk away.” … That happens all the time. No one, no one, I don’t care how right-wing you are, you don’t believe that. You know what they would have done if he was black.

Not that those uncooperative armed white men should be dead, but it shows that when white lives are at stake, police can be patient, carefully establish what is going on, and attempt to deescalate the confrontation. In one of Uygar’s examples, a clearly irrational white man goes to his car, gets his gun, and begins waving it in all directions, including pointing it at police. They attempt to talk to him, and when that doesn’t work, they fire one shot into his leg to drop him, rather than the 16 shots fired into Laquan McDonald in 15 seconds. He lives.

That’s why the movement is called Black Lives Matter. That guy’s life mattered to those cops. They didn’t want to end his life. They were careful with it. So we’re asking you to also be careful with black lives just as much.

The Second Amendment isn’t the only one with an asterisk: The Fourth Amendment has one too. [5] Without the asterisk, it reads like this:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

So when they talk about “probable cause” on NCIS, that’s not just some criminal-coddling nonsense made up by an activist liberal judge; it’s right there in the effing Constitution. The Constitution guarantees your right to be secure in your person, unless police have probable cause to believe you are involved in a crime.

Or unless you’re black.

Politico reports:

In a pre-taped interview on Fox News scheduled to air Wednesday night, Trump was asked by an audience member what he would do to address “violence in the black community” and “black-on-black crime.” Trump responded by proposing that “stop-and-frisk” policing, in which an officer is empowered to stop an individual and frisk them for weapons or any other illegal contraband, be adopted nationwide.

If a weapon is found, it is confiscated. The next day Trump clarified, saying that he only meant Chicago.

I think Chicago needs stop-and-frisk,” Trump said. “Now, people can criticize me for that or people can say whatever they want, but they asked me about Chicago, and I think stop-and-frisk, with good, strong, you know, good, strong law and order. But you have to do something. It can’t continue the way it’s going.”

Trump says nothing specific about race, but does anyone really believe that he wants police to stand outside of Water Tower Place and frisk upscale white shoppers for weapons? Will they cruise the Magnificent Mile during lunch hour, stopping white lawyers and bankers at random to see if they have any cocaine? (Sometimes they do.) Of course not. What will substitute for “probable cause” is that you are a young black man [6] wandering around in a poor, majority-black neighborhood.

You still might claim that the bias here is related to class, not race. But seriously, can you picture police cruising the trailer parks of Louisiana, frisking white good old boys and confiscating guns from Duck Dynasty types? Could that ever happen?

Of course not. The NRA would throw a fit.

[1] Saturday they finally did. The New York Times assessment: “It appeared from the two angles that he had nothing in his right hand. It was unclear what, if anything, Mr. Scott, who was right-handed, had in his left hand.” In the video, you can hear police repeatedly telling Scott to drop the gun. But in another video, you can hear Scott’s wife protesting that he didn’t have a weapon.

[2] It turns out that Scott didn’t have a right to carry a firearm, since he had a gun-related prior offense. But it’s almost certain police didn’t know that when they approached him.

[3] As they were known on Thursday, before the marijuana claim about Scott.

[4] Robinson’s conclusion is less compelling if the marijuana claim is true. But even then, we’re left with the question: What public danger required escalating the encounter to the point of death?

[5] If I wanted to expand the scope of this article, we could also talk about the “except when Muslim” asterisk on the First Amendment. Americans have a right to practice their religion, except when they want to build a mosque somewhere and Christians object. And the whole gay-marriage issue revolved around the “except when gay” asterisk on the equal-protection clause of the Fourteenth Amendment.

[6] In the New York City example Trump cited, Latinos were also disproportionately targeted.

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Are we overdoing the Founding Fathers?

July 5, 2016 – 9:45 am

When we turn Washington, Jefferson, Madison, and Hamilton into divinely inspired prophets, our political disagreements become religious schisms.

We Americans love our Founding Fathers, especially on the Fourth of July. How did you honor them over the weekend? Did you go out and hear a speaker praise them? Watch 1776 on TV? Listen to the Hamilton soundtrack, or read the best-selling biography it was drawn from? Call up HBO’s John Adams mini-series on demand?

Or maybe this year you did it up right and took the kids to the Washington and Jefferson Monuments near the Capitol, or to Independence Hall in Philadelphia, or even to the Founders’ holiest shrine, Colonial Williamsburg, where Washington, Jefferson, and the other great Virginians still give speeches and answer your questions every day.

Personally, I devoted a chunk of the weekend to a book that asks whether we’ve overdoing it, or maybe just doing it wrong: The Jefferson Rule: how the Founding Fathers became infallible and our politics inflexible by David Sehat. [1]

Looking around our current political landscape, it’s not hard to find examples of people going overboard in ways that embarrass the Founders’ memory. The WWFFD (“What would the Founding Fathers do?“) billboard above comes to us courtesy of fringe congressional candidate Rick Tyler, whose more famous billboard instructs us to “Make America White Again“. As they seized the headquarters of a federal wildlife refuge and held it by force, the Bundy militamen waved tiny booklets of the Constitution — as annotated by right-wing crank W. Cleon Skousen. “What we’re trying to do is teach the true principles of the proper form of government,” Cliven Bundy told the L.A. Times. Apparently America is so far gone from the Founder/Skousen vision that this teaching can only be done by heavily armed men threatening to shoot any officials who come to enforce the law.

Political fundamentalism. If you’ve ever paid attention to debates between fundamentalist sects — be they Christian, Islamic, or whatever — this is what they sound like: One particular interpretation of sacred scripture is projected onto the text, as if it were literal and inescapable. Anyone who reads it differently must be an infidel; to entertain their heretical ideas, even briefly or for the sake of argument, is flirting with damnation.

Voting cannot resolve such conflicts. At some point you either have to let an issue go or resort to violence.

That fundamentalist style in American politics is not just a fringe phenomenon. Even as he constructed justifications for torture and placing the decisions of the unitary executive beyond the reach of Congress, high-ranking Bush-administration legal adviser David Addington carried a well-worn pocket Constitution with him everywhere. In the 2016 Republican presidential primary campaign, one candidate after another cast himself as the pro-Founder, pro-Constitution candidate — as if President Obama led an anti-Founder, anti-Constitution party. Ted Cruz, for example, made “Restore the Constitution” one of the key planks of his campaign, and Donald Trump said, “The Constitution of this country has been absolutely riddled with bullets from the Obama administration.”

To such opponents, President Obama is not a constitutional scholar with different — and discussable — interpretations, he’s an infidel. His actions are not based on a different understanding of the laws, they are “lawless“.

Ironically, such a heresy-avoiding and heresy-denouncing conversation is a far cry from the kind of debate the actual Founders had at the Constitutional Convention, where everything from a new monarchy to the abolition of the states was open for consideration.

Such hero-worship demands that the human and historical flaws of the Founders be papered over. They weren’t slave-owners who made sure the founding documents protected their human property, they “worked tirelessly until slavery was no more in the United States“. If they reserved the vote for white male property owners like themselves, they were right to do so. To the extent that subsequent generations have altered their system — say, by letting the voters rather than the state legislatures elect senators — we should change it back.

America the Exceptional. Those of us who have lived our entire lives in the United States have a hard time recognizing how strange our Founder-worship is. But other democracies don’t talk this way. From time to time French politicians may still invoke the Liberty-Equality-Fraternity ideals of their Revolution, but they don’t feel obligated to explain away the Reign of Terror. Rousseau and Voltaire still get quoted occasionally, but not as holy writ.

The English understand their evolution towards democracy as a long messy process that remains unfinished. King John stumbled his way into the Magna Carta, which was a great advance in its day, but not a timeless capital-T Truth. No one expects a proof-text from Edmund Burke or John Locke to end a debate once and for all. And Germans are more likely to quote their history as a cautionary tale than as Golden Age that needs restoration.

Maybe that’s healthy.

Locating the problem. Sehat’s criticism of the WWFFD approach to contemporary politics has two main parts:

  • It’s false history. The Founders were not a collective consciousness with a single point of view. The Constitution is full of compromises, and its authors began arguing about its meaning almost immediately. [2]
  • It’s destructive. Policy disagreements are hard enough to resolve without turning them into schisms of religious intensity. Republics depend on the ability of conflicting factions to work things out. That’s much harder if you view your opponents as infidels disloyal to the whole idea of America.

What would the Founders do? They’d argue. If the Founders really had formed a solid consensus around a well-worked-out worldview, the Washington administration would have been a time devoid of political tension. After all, the first Congress and the first cabinet didn’t have to ask what the Founders would do; they were the Founders.

In actual history, though, Washington presided over factions intriguing against each other, and many of their disagreements are still with us.

For example, today one of the marks of faithfulness to the Founders’ vision is supposed to be a “strict construction” of the Constitution, limiting the powers of the federal government to the ones very specifically granted in the text. For example, this is the essence of the conservative critique of ObamaCare: The Constitution nowhere mentions a power to force citizens to buy health insurance.

On the surface the strict-construction folks seem to be on firm ground. After all, the very phrase strict construction goes back to one of the holiest of the Founders, Thomas Jefferson. However, Jefferson coined that phrase in an argument with another ranking member of the Founder pantheon: Alexander Hamilton, who had already coined the phrase most often used to oppose strict construction: implied powers.

They were arguing about Hamilton’s proposal to establish the Bank of the United States. Secretary of State Jefferson’s reading of the Constitution did not see any bank-establishing power there. But Treasury Secretary Hamilton argued that the Constitutional Convention — where he had been a delegate and Jefferson hadn’t — had never intended to spell out every detail. In his view, whenever the Constitution gave the federal government responsibility for an area of governance, it also implicitly granted it the powers necessary to fulfill those responsibilities.

Hamilton’s job would have been impossible without such implied powers, and he had already exercised them on numerous occasions. The Constitution had, for example, given Congress the power to impose a tariff; it had done so, and Hamilton was collecting it. But the Constitution never specifically mentioned the power to construct custom houses, hire port inspectors, or deploy a coast guard against smugglers — which he had also done, and without which the taxing power was meaningless. To him, the Bank of the United States was a similarly implied means to assigned ends: managing tax receipts, paying down the national debt, and supervising the currency.

This disagreement got as vicious as anything we see today: Jefferson painted Hamilton as a monarchist seeking to return us to British rule, while Hamilton painted Jefferson as a France-loving Jacobin, ready to unleash the guillotines on unsuspecting Americans.

Jefferson lost on the Bank, but won the larger political struggle: Hamilton died in middle age and his Federalist Party collapsed, while Jefferson and his Virginian successors Madison and Monroe held the presidency from 1801 to 1825. In practice, though, Hamiltonianism survived under the surface: Jefferson and the other Virginians often made use of implied powers of their own, as when Jefferson stretched the treaty-making power to allow the Louisiana Purchase.

It was during this period, in Sehat’s telling of the story, that the history of the Founding Era was rewritten into an orthodoxy: Jeffersonianism represented the one true vision of the Revolution. To this day, politicians who invoke “the Founders” as a unified consciousness are probably invoking the Founders as re-envisioned by Jefferson. [3] The more ambitious government of Hamilton — and the pragmatism of Washington, who often saw Hamilton’s approach as the best way to solve practical problems [4] — has been swept under the rug.

The fundamentalist style in American politics. The bulk of Sehat’s book is a history of how the Founders have been invoked in American politics through the centuries. He portrays the influence of this style of argument as pernicious: It has hardened disagreements and mythologized politics. Rather than discuss the pluses and minuses of available policy options, Americans have instead cast themselves as the true successors of the Founders’ vision and demonized their opponents as treacherous infidels. As a result, it has been easier for each side to overlook the other’s love of country, and harder to reach the compromises necessary to move forward together.

The most extreme example of Founder-fundamentalism hardening a position beyond any compromise was that of the Southern nullifiers and secessionists from Calhoun to Jefferson Davis. On the other side, Lincoln tried it both ways. In 1862 he told Congress “The dogmas of the quiet past are inadequate to the stormy present.” But his Gettysburg Address reclaimed the Founders for “a new birth of freedom”.

In the decades after the Civil War, the Founders lost their central position in political debate, as leaders saw little resemblance between their problems and those of the 18th century. As President Grant wrote in his memoirs:

It is preposterous to suppose that the people of one generation can lay down the best and only rules of government for all who are to come after them.

And Teddy Roosevelt proclaimed in his 1905 inaugural:

Our forefathers faced certain perils which we have outgrown. We now face other perils, the very existence of which it was impossible that they should foresee.

But 20th-century conservatism revived Founder rhetoric. President Harding is credited with coining the term Founding Fathers, and opposition to FDR’s New Deal built its message around the myth of a single founding vision. FDR’s central opponent, the Liberty League — representing the 1% of its day — invented the technique of defending “the Constitution” as a vague unity rather than discussing any particular passages, which might bear divergent interpretations.

The progressive temptation. Another point Sehat makes is that Founder-worship inevitably looks backwards, and so privileges conservative arguments over progressive ones. Progressives are often tempted to enter into WWFFD arguments, because the conservative mythologizing of the Founders so often approaches the ridiculous, and is easily refuted by reference to historical facts. Also, it can be hard to resist harnessing the mythic and symbolic power of the Founders to more worthy causes than the preservation of slavery or the further aggrandizement of the propertied class.

In the short term, this often is very effective, as when Martin Luther King framed the Declaration of Independence’s statement that “All men are created equal” as a “promissory note” that the nation had never redeemed for its black population.

But as much as the idealism of certain individuals from the Founding Era can still inspire, in the long run the ahistorical fusion of “the Founding Fathers” is going to work mischief on contemporary politics. Once welded together, the Founders are a slave-owning propertied class that wants to preserve its privileges, and is suspicious of spreading power to too many people. Any fair reading of the Constitution has to recognize the sheer distance its system places between the People and their government. The People are not supposed to govern themselves; they are supposed to recognize their betters, and choose them to administer the government. [5]

Government of the Living. Americans can rightly be proud of our founding generation. Most revolutions fail, and when time-honored systems are swept aside, they are often replaced by something worse. The first democratic revolution in England produced Cromwell; in France, Napoleon; in Germany, Hitler. The newly created 20th-century nations of Africa again and again saw the pattern of “one man, one vote, once”, as the winner of the first election saw no reason to hold a second.

The United States avoided all that. We have had our turbulent moments, including one of the bloodiest civil wars you’ll find anywhere. We have done terrible things, from the Native American genocide and African slavery through the many vicious and greedy strongmen we inflicted on third-world nations during the Cold War. And from time to time we continue to do terrible things, as global superpowers have always done.

But we have also often been a force for progress in the world or for liberation from tyranny, and our example has inspired progressive change in many other countries. The documents left behind by the Founders, and the example of their conduct, has a lot to do with that.

So absolutely, we should honor them. They deserve to have monuments in our capital, to appear on our money, and to have fireworks and parades in their honor every summer.

But they were men and women, not prophets or gods. The argued with each other, compromised on important issues, and in general did what they could with the problems of their day, just as every generation does. The did not foresee nuclear weapons, or even automatic ones. They had absurd medical theories, primitive notions of macro-economics, and self-serving beliefs about race and culture.

To the extent that their opinions still make sense today, we should quote them. But the fact that they believed something does not obligate us (or our opponents) to agree. Those who disagree with them should be met with evidence and arguments and a willingness to consider that their disagreement might be justified.

A government of the People must always be a government of the Living. If our ancestors would have disagreed with us, so be it. They had their day, and now we have ours.

[1] Ironically, I found the book at the Colonial Williamsburg Visitor’s Center.

[2] This mistake is typical of fundamentalisms. Fundamentalist Christians, for example, picture the early Christian community as a model of the pure doctrine they want to recover and preserve. But if you actually read the documents of the era, they are more theologically diverse than Christian churches are today.

Similarly, Muhammad didn’t have a worked-out theory of governance; he just governed. Sharia was constructed centuries later.

Unified doctrine is usually achieved by some later generation — often through political power or by force — rather than by those who actually heard the gods or prophets speak.

[3] Or possibly as re-re-envisioned by slavery advocate John Calhoun, as I explained in “Not a Tea Party, a Confederate Party“.

[4] In the Hamilton musical, Jefferson and his allies sing, “It must be nice to have Washington on your side.”

[5] The most egregious example of this is the Electoral College. The popular vote in presidential elections was not even tabulated until 1824.

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Replacing Scalia (or not)

February 22, 2016 – 7:40 am

As I pointed out last week, the Constitution is pretty clear about what should happen now: President Obama should nominate a replacement and the Senate should either approve or disapprove of the nominee’s ability to handle the job. (Article II, Section 2 says “he shall nominate”. The shall indicates a duty, rather than may, which would offer an option.)

Retired Justice Sandra Day O’Connor (appointed by President Reagan) sees it that way. Asked whether the process should wait until we have a new president, she said: “I don’t agree. I think we need somebody there now to do the job, and let’s get on with it.”

When Alexander Hamilton defended the Constitution’s appointment process in Federalist #76, he expected the Senate to examine an individual nominee’s character and ability, but never considered the possibility that the Senate might engage in the kind of blanket obstruction Republicans are proposing.

But might not [the president’s] nomination be overruled? I grant it might, yet this could only be to make place for another nomination by himself. The person ultimately appointed must be the object of his preference, though perhaps not in the first degree. It is also not very probable that his nomination would often be overruled. The Senate could not be tempted, by the preference they might feel to another, to reject the one proposed; because they could not assure themselves, that the person they might wish would be brought forward by a second or by any subsequent nomination. They could not even be certain, that a future nomination would present a candidate in any degree more acceptable to them; and as their dissent might cast a kind of stigma upon the individual rejected, and might have the appearance of a reflection upon the judgment of the chief magistrate, it is not likely that their sanction would often be refused, where there were not special and strong reasons for the refusal.

But, as I have often pointed out before, republics don’t run just on their rules, but also on their norms and mores. So it’s legitimate to wonder whether there might be some long-standing gentlemen’s agreement or common courtesy that would prevent Obama from nominating Scalia’s replacement. The answer is pretty clearly no. Republicans have been claiming all sorts of unwritten rules to that effect, all of which resemble the rules of Calvinball.

It is true that there have not been a lot of election-year Supreme Court vacancies. (I assume justices see an election year as an inconvenient time to retire, though I don’t really know.) The closest recent example is the vacancy filled by Justice Kennedy: Justice Lewis Powell retired in June, 1987, and Kennedy was not confirmed until February, 1988 — President Reagan’s last year in office. (The delay was caused by the Senate’s refusal to confirm Robert Bork, and then by the withdrawal of Reagan’s second nominee.)

If you go further back, you get clearer parallels: Presidents Taft, Hoover, and Franklin Roosevelt nominated justices in election years and got them confirmed. Wilson got two justices confirmed in 1916. Eisenhower (1956) and Johnson (1968) failed to get their election-year picks confirmed but (according to Amy Howe of SCOTUSblog) “neither reflects a practice of leaving a seat open on the Supreme Court until after the election.” In Eisenhower’s case, the Senate was already adjourned for the fall campaign (so he made a recess appointment). Johnson’s pick was the target of a bipartisan filibuster, having to do with the nominee’s ethical issues.

No one has come up with an example that supports the Republican position: a Supreme Court seat that was left open for a year to allow the next president to fill it. That would be unprecedented in the last 150 years.

There is also no unwritten rule saying that a new justice should fill the same ideological role as the justice s/he replaces. Arch-conservative Clarence Thomas, for example, replaced one of the Court’s most liberal judges, Thurgood Marshall.

It’s worth pointing out that even if any of these unwritten rules really existed, Senate Republicans are in a poor position to claim them. Throughout the Obama administration, they have blasted through the previous norms and mores of Senate behavior: making the filibuster routine; blocking nominees not for individual reasons, but in order to screw up the organizations they were supposed to head; brinksmanship with the debt ceiling; and many other examples. They have consistently refused to be bound by any unwritten rules of courtesy, so why should they get the advantage of one now?

There have been several attempts to claim hypocrisy on the part of Democrats who want to follow the constitutional process. One frequently cited example is a 2007 quote from Chuck Schumer to the effect that the Democratic Senate “should not confirm any Bush nominee to the Supreme Court except in extraordinary circumstances.”

Two things stand out about that: First, no more vacancies came up during Bush’s term, so we don’t know to what extent Schumer (who was just an ordinary senator at that time, and spoke only for himself) was just posturing in front of a liberal audience. (If today’s Republicans posture about blocking all nominees, but then go ahead and do their constitutional duty anyway, that would be fine.) Second, the quote is plucked out of its context, as Josh Marshall explains (with video of Schumer’s remarks):

What Schumer actually said was that Senate Democrats had been hoodwinked by President Bush’s first two Supreme Court picks – Roberts and Alito. They’d accepted assurances that they were mainstream conservative judges who would operate within the precedents and decisions of the Rehnquist Court but hadn’t. (Certainly, the experience since 2007 has more than ratified this perception.) Schumer said Democrats should try to block any future Bush nominees unless they could prove that they were ‘in the mainstream’ and would abide by precedent. …

Schumer quite explicitly never said that the Bush shouldn’t get any more nominations. He also didn’t say that any nominee should be rejected. He said they should insist on proof based on judicial history, rather than just promises that they were mainstream conservatives rather than conservative activists, which both have proven to be. But again, set all this aside. He clearly spoke of holding hearings and being willing to confirm Bush nominees if they met reasonable criteria.

Another attempt is to cite a 1960 sense-of-the-Senate resolution which the conservative American Thinker blog characterizes as “against election-year Supreme Court appointments”.

Except that’s not what it says. The resolution opposed recess appointments to the Supreme Court, which put a justice on the Court temporarily without Senate approval, not election-year appointments. Since Obama is not making a recess appointment — Republicans having fought tooth-and-nail to limit Obama’s recess-appointment power — the 1960 resolution has no connection to the current situation.

A tweet from Ken Wissonker puts a different slant on the wait-for-the-next-president idea:

As a friend put it: “Apparently, the GOP thinks that Black Presidents only get 3/5ths a term.”

The attempt to imply that Obama’s nominee will somehow be illegitimate is part of the larger effort to de-legitimize Obama’s entire presidency. And it’s hard to escape the conclusion that race has played a role in this project.

From the beginning, his opponents have never granted Obama the respect due a president of the United States. Whether it’s shouting “You lie!” during the State of the Union, or encouraging members of military to refuse orders, or spreading baseless rumors about his birth or religion, or complaining whenever he does things all presidents do, or expressing frustration that impeachment requires evidence, or warning foreign leaders not to make agreements with him — the consistent message has been that Barack Obama is not a legitimate president of the United States.

So we elect our first black president, and he’s treated with less respect than all previous presidents. Who could have guessed?

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This Is How It Ends

June 9, 2014 – 9:40 am

The anger directed at Bowe Bergdahl only makes sense if you remember what the War on Terror was supposed to be.

From this distance, it is hard to recall the heady days at the beginning of the Afghan War. Americans had been stunned on 9/11, and for some time afterwards we felt uncertain and sad. “Why do they hate us?” we asked. But then the rage came and blew our depression away. President Bush didn’t start that process, but he channeled it like this:

Our grief has turned to anger and anger to resolution. Whether we bring our enemies to justice or bring justice to our enemies, justice will be done.

We were furious, certain of the righteousness of our anger, and confident in our power to exact revenge. No other cocktail of emotions is quite so invigorating.

And we were not just powerful, we were great and beneficent. In our majesty, we would grant freedom and democracy to lesser peoples who might never achieve such good fortune on their own. Not just in Afghanistan, where the attack against us had been planned, but in Iraq, and perhaps later in Iran and Syria and even eventually in Saudi Arabia and the oil emirates. We were the avatars of the great goddess Liberty and no one could stand in our way.

Remember?

“Tell me how this ends,” said General David Petraeus, then a mere division commander, as his unit crossed into Iraq. He was wise and experienced enough to know that no amount of shock and awe was going make Jeffersonianism break out across the Middle East, so something else had to happen. But what?

Now we know. We spent trillions of dollars, lost thousands of American lives, and killed tens or maybe hundreds of thousands of Afghanis and Iraqis. And in the end we are leaving — without a parade, without a “thank you”, leaving a legacy of weak governments still beset by insurgents. Most likely, those governments will either get stronger until they rival the tyrannical ones we overthrew, or they will perish and be replaced by something tougher.

Not what we pictured, is it? Our recessional might be Peggy Lee’s “Is That All There Is?”

Anyway, this is how it ends: We leave. We leave on a date circled on someone’s calendar, a day that no doubt will look just like the day before or the day after. We leave, not because we have finished something or accomplished something, but just because it’s time. We left Iraq that way on December 18, 2011. Our combat mission ends in Afghanistan at the end of this year, and all our troops are supposed to be out by the end of 2016. President Obama said:

Americans have learned that it’s harder to end wars than it is to begin them. Yet this is how wars end in the 21st century.

Could we stay longer? Maybe. Probably, if we wanted to badly enough. But how long? Until we accomplish … what? If there’s no what, then that future date is just another circle on a calendar. If then, why not now? Why not a long time ago?

So this is how it ends. We give back their people, they give back the one guy of ours they still have, because … what else are you going to do? Keep them forever? Why?

It feels crappy, doesn’t it? If you think dispassionately enough about it, you’ll realize that it was always going to feel crappy eventually, because … how else could it come out? Our Liberty-avatar high was bound to crash. What were we going to do? Slay the dragon? Marry the princess? What? But as long as we stayed, as long as we kept it all going, we didn’t have to think about that. We could keep pretending we were on our way to somewhere, keep imagining that someday soon we would feel again the way we felt back in those let’s-roll rid-the-world-of-evil days at the end of 2001.

My best advice for how to deal with that crappy feeling is just to let it run its course. Embrace the suck, as the soldiers used to say. Emotions are like water; if you just let them wash over you, before long they drip off and head for the nearest drain (rather than mounting up behind a dam and sooner or later devastating everything in their path). Let this one wash over, and eventually, we’ll feel something else. Maybe the next wave will motivate us to do something constructive and realistic that we can all be proud of some day.

It could happen. Really.

Or we could try some hair of the dog. Get angry again. Get angry at the president who set the clock that is running out, because he wouldn’t let us push this crappy feeling any further off into the future. Get angry at the deal to return that last prisoner. Get angry at the prisoner himself, because this is all his fault really.

Isn’t it? It feels like it must be. If not for him … something, I don’t know. Fill in the blank. It’s got to be his fault because I know it isn’t mine. I didn’t do anything. I was a perfectly marvelous avatar of Liberty and it felt great. Why did it have to end?

I don’t how else to make sense of the fury that has been directed at Bowe Bergdahl and his family this past week. You can say “It’s politics”, but that just shifts the question rather than answering it. Why does the politics work this way? Sure, Republicans are always looking for something they can pin on Obama (and if you can work the word impeachment into the conversation, so much the better), but how did they know this would do such a good job of firing up their base?

Just a few months ago, the conservative base was demanding that President Obama get Bergdahl back. Vox noticed this pattern:

[J]ust before Bergdahl was released, conservatives on Twitter loved to blast Obama for not freeing Bergdahl. There was even a whole meme on conservative Twitter saying Bergdahl was “abandoned by this administration.” But all of a sudden after Bergdahl was released, these people changed their tune.

Numerous congresspeople have had to scrub their Twitter-feeds to remove the evidence that they briefly thought getting an American POW back was a good thing. Most obviously, John McCain has turned on a dime from saying that he could approve the deal that had been on the table for months — Bergdahl for precisely these five named guys — to denouncing the deal after President Obama made it. He’s not alone. The most you-can’t-make-this-stuff-up reversal came from Oliver North of Iran/Contra fame; nobody’s allowed to negotiate with the bad guys but Ollie and his boss Ronny, I guess.


Steve Benen, Jean MacKenzie, and Hesiod have done a good job of taking down most outrageous talking points about Bergdahl.

  • Bergdahl is not a deserter. He seems to have been AWOL when captured, but he had wandered away from his base before and come back. Five years imprisonment with the Taliban is far greater punishment than a soldier typically gets for temporarily going AWOL.
  • He isn’t anti-American. Before coming to Afghanistan, he had been idealistic about how our military was “helping” the Afghan people. The realities of the war, the dysfunctionality of his unit, and the attitudes of his fellow soldiers towards the Afghanis disillusioned and disgusted him (and may explain why some of those soldiers are trashing him now). That’s where those out-of-context quotes about being “ashamed to be an American” come from. A longer quote: “These people need help, yet what they get is the most conceited country in the world telling them that they are nothing and that they are stupid, that they have no idea how to live.” If that’s disloyalty, then a sizable chunk of the American public is disloyal, including me and probably most of my readers.
  • He didn’t get other soldiers killed. Men did die while on patrol, and Bergdahl was one of the things they were supposed to be looking for. But the NYT quotes an informed officer: “Look, it’s not like these soldiers would have been sitting around their base.”
  • He wasn’t turned. He even escaped once for a while.

Many of the talking points about the five men Bergdahl was exchanged for are equally ridiculous. Vox and CNN have more details, but here’s the gist.

  • They’re not terrorists. One downside of framing post-9/11 military operations as a “War on Terror” is that we started reflexively labeling all our enemies “terrorists” and equating them with the 9/11 hijackers. But at the time we invaded Afghanistan, the Taliban was a government fighting an insurgency. These men were involved in that government or that war. Granted, the Taliban was a horrible government and the tactics (on both sides) in that pre-9/11 civil war were reprehensible. So no one denies that some of the five are bad men — or at least they were 12 years ago. But to the extent that the word terrorist still means anything other than “enemy of America”, they were not terrorists. They weren’t even enemies of America until we invaded their country.
  • They’re not supermen. TV series like 24 and Homeland have created the myth of the Terrorist Superman: an unkillable mastermind who sees everything, has agents everywhere, and is always plotting ten moves ahead. But even in their prime, none of these guys were superhuman. And whatever they once were, they have been completely out of the loop for 12 years. A lot of the people they worked with and trusted are probably dead. No doubt they have symbolic value for the Taliban, but their military significance is questionable. Think about Mafiosi who get out after long prison terms, a situation that occurred more than once on The Sopranos. The gang celebrates their return, but doesn’t necessarily have a place for them now. And an imprisoned Mafioso isn’t nearly as cut off as these guys have been.

Finally, there’s the question of whether or not releasing the five detainees from Guantanamo broke the law — a decision Bergdahl himself had no part in. And the answer is: It’s a complex legal issue in which both parties justify themselves by switching the positions they held during the Bush administration. Adam Serwer describes the situation in detail.

To make a long story short: Ever since the Constitution divided responsibility for war and foreign policy between them, the President and Congress have been tussling over the boundary. Congress occasionally passes laws that limit the President’s power to do something-or-other, and presidents routinely claim these laws are unconstitutional. The War Powers Act is the prime example. Since 1973, when it passed over President Nixon’s veto, both branches have avoided a test case that the Supreme Court would have to rule on. Presidents have mostly complied with the Act, but always with the proviso that they were doing so as a courtesy; no president of either party has acknowledged the Act’s constitutionality. For its part, Congress has never tried to force a president to pull out troops he had committed.

So Section 1035 of the 493-page National Defense Authorization Act of 2014 regulates transfers from Guantanamo, and says:

The Secretary of Defense shall notify the appropriate committees of Congress of a determination of the Secretary under subsection (a) or (b) not later than 30 days before the transfer or release of the individual under such subsection.

President Obama signed the NDAA — the Pentagon would have gone unfunded if he had vetoed it — but attached a Bush-like signing statement.

Section 1035 of this Act gives the Administration additional flexibility to transfer detainees abroad by easing rigid restrictions that have hindered negotiations with foreign countries and interfered with executive branch determinations about how and where to transfer detainees. Section 1035 does not, however, eliminate all of the unwarranted limitations on foreign transfers and, in certain circumstances, would violate constitutional separation of powers principles. The executive branch must have the flexibility, among other things, to act swiftly in conducting negotiations with foreign countries regarding the circumstances of detainee transfers.

Citing a need to “act swiftly” to get this exchange done without endangering Sgt. Bergdahl, the Obama administration gave Congress only one day of notice rather than 30, having previously given Congress an “anticipatory briefing” laying out “the prospect of such an exchange”. In doing so, the administration claims to have respected the “spirit” of the law.

Jack Goldsmith, the head of the Bush Justice Department’s Office of Legal Counsel, describes this as “quite a hard legal issue, with few real precedents.”

So Obama is definitely violating the anti-signing-statement rhetoric of his 2008 campaign. He’s being hypocritical in exactly the same way as his Republican critics who accepted Bush’s signing statements without objection and waved their hands about the President’s “Article II power” — as long as the president was somebody they liked.

Is that legalism and mutual hypocrisy what the conservative base’s man-on-the-street is fired up about? I kind of doubt it. I think they’re remembering that intoxicating post-9/11 fantasy about setting the whole world right, and wondering what became of it.

Is that all there is?

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Restoring the Constitution Is Now a Liberal Issue

May 5, 2014 – 11:26 am

Justice Stevens proposes constitutional amendments to fix right-wing judicial over-reach.

Once upon a time, judicial activism was an issue that belonged to conservatives. Unelected liberal judges, they claimed, had re-interpreted the Constitution to mean things that neither the Founders nor any amending super-majority had ever intended, and so some plain-spoken constitutional amendments were necessary to put our legal house back in order: a Human Life Amendment to undo Roe v Wade, a School Prayer Amendment to undo Engel v Vitale and Abington School District v Schempp, a Flag Desecration Amendment to undo Texas v Johnson, and so on. Occasionally conservatives would propose an amendment to fix an oversight of the Founders — why didn’t they insist on term limits or a balanced budget? — but mostly the theme was: The Founders had it right, we just need to restore the Constitution to what it originally meant before liberal activist judges twisted it out of shape.

Levin’s Eleven versus Stevens’ Six. Given that history, it’s interesting to look at the 11 amendments talk-radio host Mark Levin proposed in his recent popular-on-the-Right book The Liberty Amendments. His rhetoric is still about restoration. (The book’s subtitle is “Restoring the American Republic”, and the National Review review  — from which I get the list of amendments; I haven’t read the book — styles it as “how to restore the Founders’ original vision of government”.) But only one of the 11 proposed amendments (a much-restricted Commerce Clause) is even arguably fixing a judicial misinterpretation.

Two of the 11 alter the clear intent of previous constitutional amendments: One repeals the 17th Amendment; it takes election of senators away from the people and returns the choice to the state legislatures. The other limits the income tax to 15%. That changes the 16th Amendment, which left the specifics of the income tax up to Congress, and corresponds in general with the Founders’ belief that regular elections are sufficient to restrain excessive taxation*.

But the other eight “liberty amendments” fix what Levin seems to regard as the Founders’ mistakes: They didn’t foresee what future generations would do within their Constitution, and so they should have locked things down better. Levin’s Founder-correcting amendments include: term limits on Congress and the Supreme Court, allowing 3/5ths of Congress to overturn a Supreme Court decision**, allowing 3/5ths of the states to reverse an act of Congress, requiring an across-the-board 5% budget cut if Congress fails to enact a balanced budget (not exceeding 17.5% of GDP) by a deadline, requiring government compensation for regulations that affect property values, requiring photo ID and proof of citizenship to vote, requiring Congress to reauthorize each federal agency every three years, and allowing 2/3rds of the states to approve a constitutional amendment without Congress’ involvement.

Other than photo ID, these are all things the Founders could have written into the Constitution, but they didn’t. And that should tell you something: Levin’s book isn’t about restoring anybody’s “original vision”; it’s about radically reshaping the American government into something it never was and was never intended to be.

Contrast this with the proposals in retired Supreme Court Justice John Paul Stevens’ new book Six Amendments. Only one of Stevens’ amendments — adding a phrase to the Eighth Amendment to define the death penalty as cruel and unusual punishment — would change what Stevens’ argues was the Founders’ original intent. (Hanging and the firing squad were common in the founding era.) He composed the other five to reverse the drift of wrong-headed judicial interpretation.

Anti-Commandeering and Sovereign Immunity. Two of Justice Stevens’ amendments address somewhat technical issues that are not widely debated by the general public. (So skip this section if you’re not interested.) In the Supremacy Clause (Article VI) the Constitution specifically says that federal laws outrank state laws and “the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” In the 1997 case Printz v United States, the Court interpreted this to mean that only judges are so bound, and that Congress is prohibited from (in Stevens’ words) “requiring state officials to perform federal duties”. Stevens points to the role state officials were assigned in the World War I draft as an example of “historical events in which the federal government relied on state officials to carry out federal programs” without lawsuits or other protests from the states.

The fact that throughout our history the federal government has required the states to play a critical role in providing the manpower to fight our wars demonstrates that the anti-commandeering rule was invented by the Printz majority.

Stevens’ amendment would change the Supremacy Clause’s “Judges” to “Judges and other public officials”.

Sovereign immunity is a principle we inherit from English common law, which said that the king could not be sued without his consent. After the Supreme Court ruled in Chisolm v Georgia in 1793 that the states did not have sovereign immunity, the Eleventh Amendment was passed:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

Through Reconstruction, this amendment was interpreted to prevent federal courts from ordering states to pay their debts to citizens of other states. It did not begin to become a blanket sovereign immunity until the 1890 decision Hans v. Louisiana. Stevens thinks that (and subsequent decisions relying on it) was a mistake, and would fix it by this amendment:

Neither the Tenth Amendment , the Eleventh Amendment, nor any other provision of this Constitution, shall be construed to provide any state, state agency, or state officer with an immunity from liability for violating any act of Congress, or any provision of this Constitution.

Gerrymandering. Gerrymandering means drawing the boundaries of districts of representation in an attempt to pre-determine the results of elections. (The current Republican majority in the House is largely the result of gerrymandering in states like Pennsylvania, where Republicans control 13 of the 18 congressional seats despite getting fewer total votes than Democrats.) Wisconsin Republican Congressman Reid Ribble described the situation like this:

I think the American people have a misperception of elections. We’re at a place now in this country where voters are not picking their representatives anymore. Representatives, through the gerrymandering process and redistricting, are picking their voters.

Current Supreme Court interpretation says that gerrymandering is illegal if its purpose is to disenfranchise a minority group — by, say, dividing up the black neighborhoods so that no city council district has a black majority — but that the courts can’t touch a gerrymander whose purpose is to gain advantage for one political party over another. In an era in which Republicans are increasingly becoming the “white man’s party“, it can be hard to tell the difference: Does Texas’ map under-represent Hispanic Democrats because they’re Hispanic, or because they’re Democrats?

That conundrum is an artifact of judicial interpretation rather than anything in the Constitution. Whether your right to choose your representatives is being undermined because of your ethnicity or your party, you’re still not getting the “equal protection of the laws” citizens are promised by the 14th Amendment, or the “Republican Form of Government” promised in Article IV, Section 4. In order to get back to the Founders’ one-man-one-vote vision, Stevens proposes:

Districts represented by members of Congress, or by members of any state legislative body, shall be compact and composed of contiguous territory. The state shall have the burden of justifying any departures from this requirement by reference to neutral criteria such as natural, political, or historic boundaries or demographic changes. The interest in enhancing or preserving the political power of the party in control of the state government is not such a neutral criterion.

Campaign Finance. You can’t blame the Founders for not addressing campaign finance or corporate rights, because neither was a major part of their world***. But Congress passed and Teddy Roosevelt signed a ban on corporate campaign contributions back in 1907, and it wasn’t particularly controversial.

For decades thereafter, Congress, most state legislators, and members of the Supreme Court apparently assumed that it was both wise and constitutional to impose greater restrictions on corporate participation in elections than on individuals.

That position was supported by a unanimous Supreme Court decision in Federal Election Commission v. National Right to Work Committee as recently as 1982. But then conservative justices started inventing the corporate right to free speech and discounting the corrupting effect of large contributions.

Such was the consensus that the first opinions written by any member of the Court arguing that corporate expenditures in election campaigns are entitled to the same constitutional protection as the activity of individual voters were not announced until 1990.

But that recent legal development is now the majority opinion on the Court. A similar evolution has happened with regard to large contributions from rich individuals. The Citizens United and McCutcheon decisions have moved towards a money-is-speech doctrine that has a perverse effect on democracy.

Unlimited expenditures by nonvoters in election campaigns —whether made by nonresidents in state elections or by Canadian citizens, by corporations, by unions, or by trade associations in federal elections —impairs the process of democratic self-government by making successful candidates more beholden to the nonvoters who supported them than to the voters who elected them.

Stevens focuses his free-speech concern on making sure that voters have access to all relevant information, not on the right of the rich to shout louder than everyone else. So while he worries that limits on campaign contributions might be set too low, he sees no problems with limits in general. He points to the limits the Court itself sets on the arguments it hears:

There are, however, situations in which rules limiting the quantity of speech are justified by the interest in giving adversaries an equal opportunity to persuade a decision maker to reach one conclusion rather than another. The most obvious example is an argument before the Supreme Court. Firm rules limit the quantity of both oral and written speech that the parties may present to the decision maker. Those rules assume that the total quantity permitted is sufficient to enable the Court to reach the right conclusion; they are adequately justified by interests in fairness and efficiency.

And so he proposes this amendment:

Neither the First Amendment nor any other provision of this Constitution shall be construed to prohibit the Congress or any state from imposing reasonable limits on the amount of money that candidates for public office, or their supporters, may spend in election campaigns.

Gun control. The Second Amendment is often abbreviated as “the right to bear arms”. But that right is set in a context:

A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

In the era of the Founders, this had nothing to do with sovereign citizens arming themselves in case they need to overthrow the government, as gun-rights enthusiasts sometimes claim today, twisting Founder quotes about arms and tyranny out of their original context.

You need to remember the security situation at the time: The federal standing army was miniscule, while state and local governments faced numerous local threats — armed gangs and Indian raids on the frontier, pirates on the coast, and slave rebellions in the South. Those threats were handled by citizen militias who were authorized and organized by the state and local governments. They were not self-appointed gangs of armed vigilantes or revolutionaries, like those currently at the Bundy Ranch.

The Founders worried about the possibility that the federal government might disarm the militias and create a need for an internal standing army, which then might either become the enforcers of a federal tyranny or arbiters of local laws. (For example, an abolitionist president might drag his feet about putting down a slave revolt.) The purpose of the Second Amendment was to ensure that state and local governments would maintain the right to their own law enforcement, rather than depending on a federal army.

The Second Amendment was understood that way for two centuries.

For over two hundred years following the adoption of that amendment federal judges uniformly understood that the right protected by that text was limited in two ways: first, it applied only to keeping and bearing arms for military purposes, and second, while it limited the power of the federal government, it did not impose any limit whatsoever on the power of states or local governments to regulate the ownership or use of firearms. … During the years when Warren Burger was chief justice, from 1969 to 1986, no judge or justice expressed any doubt about the limited coverage of the amendment, and I cannot recall any judge suggesting that the amendment might place any limit on state authority to do anything.

But then the NRA perpetrated what Chief Justice Burger called “one of the greatest pieces of fraud, I repeat the word ‘fraud,’ on the American public by special interest groups that I have ever seen in my lifetime.” In the Heller decision of 2008, the Roberts Court signed on to that fraud. Out of thin air, it decided that the Second Amendment protects weapons “typically possessed by law-abiding citizens for lawful purposes” from regulation by state and local governments. (Heller is an example of a Roberts-Court phenomenon I noted last month: the covert reversal. In practice, Heller reverses the Miller decision of 1939, but the Court never admits that it is doing so.)

As a result of the rulings in Heller and McDonald, the Second Amendment, which was adopted to protect the states from federal interference with their power to ensure that their militias were “well regulated,” has given federal judges the ultimate power to determine the validity of state regulations of both civilian and militia-related uses of arms.

He fixes it by changing the Second Amendment’s “right to keep and bear Arms” to “right to keep and bear Arms when serving in the Militia”.

Summary. The role of Constitution-amender is so powerful that it’s easy to be corrupted by it. At least in fantasy, you are re-writing the supreme law of the land, so it’s tempting to get all your digs in. Bad amendments are targeted at specific current outcomes that get over-specified, like Levin’s 15% income tax or limiting government spending to 17.5% of GDP. (Who knows what “income” or “GDP” will even mean 100 years from now?)

With that in mind, I find Justice Stevens amendments not just well intentioned and well thought out, but elegantly written. They are not wordy, they don’t create arbitrary limits and rules, they don’t invent procedures that have no precedent in American history, and they leave future Congresses and judges the room to do their jobs. I think I could support all of them.

* The taxing clause in Article I Section 8 (“The Congress shall have the power to lay and collect taxes”) is one of the most open-ended grants of power in the Constitution. Interestingly, the 16th Amendment was itself intended to overrule the Supreme Court’s limitation on that power. The first income tax was passed to finance the Civil War in 1861, but the Court found such a tax unconstitutional in the 1895 case Pollock v Farmers’ Loan and Trust, leading to the passage of the 16th Amendment in 1909 and its ratification in 1913.

** It’s widely believed on the Right that the Supreme Court’s power to declare a law unconstitutional was created out of thin air by Chief Justice John Marshall in Marbury v Madison in 1803, and so represents a judicial usurpation that the Founders never foresaw. Consequently, allowing Congress to reverse a Supreme Court decision might be seen as restoring the Founders’ vision. This is all completely false. Federalist #78, written by Alexander Hamilton in 1788 while the Constitution was being ratified, says:

The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. … [W]henever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.

Hamilton went on to explain why the Founders had rejected one of Levin’s other proposals, term limits for the Supreme Court:

If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.

*** But you should read Thom Hartman’s account of the Boston Tea Party as an anti-corporate (rather than anti-government) protest.

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