Tag Archives: constitution

What is impeachment for?

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.

The Asterisk* in the Bill of Rights

*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.

Are we overdoing the Founding Fathers?

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.

Replacing Scalia (or not)

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?

This Is How It Ends

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?

Restoring the Constitution Is Now a Liberal Issue

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 Schemppa 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.

Cliven Bundy and the Klan Komplex

Why the rancher’s racist rant shouldn’t have surprised anybody


If you’ve been paying attention to the Cliven Bundy situation at all (as I started doing last week) you no doubt heard that Wednesday night he went off script in front of a New York Times reporter:

“I want to tell you one more thing I know about the Negro,” he said. Mr. Bundy recalled driving past a public-housing project in North Las Vegas, “and in front of that government house the door was usually open and the older people and the kids — and there is always at least a half a dozen people sitting on the porch — they didn’t have nothing to do. They didn’t have nothing for their kids to do. They didn’t have nothing for their young girls to do.

“And because they were basically on government subsidy, so now what do they do?” he asked. “They abort their young children, they put their young men in jail, because they never learned how to pick cotton. And I’ve often wondered, are they better off as slaves, picking cotton and having a family life and doing things, or are they better off under government subsidy? They didn’t get no more freedom. They got less freedom.”

Reactions varied. Bundy’s own first reaction was to claim he had been misquoted — “I didn’t say nothing about picking cotton” — until Media Matters released the video of him saying it.

Mainstream Republicans who had made a hero of Bundy — Rand Paul and Sean Hannity in particular — claimed to be shocked, and dropped the rancher like a hot rock. But the true believers promoted a smeared-by-the-liberal-media theme. InfoWars posted a longer version of the video that it claims vindicates Bundy: “his argument is actually anti-racist in that it laments the plight of black families who have been caught in the trap of dependency on government.” (I invite you to click through and examine the larger context for yourself. I don’t think it vindicates much of anything, probably because I already see the “dependency on government” meme as a racist dog whistle. I mean, we all know who those dependent-on-government people are, don’t we? We’re not talking about my white mother depending on Medicare to pay her hospital bills.)

One of the best responses came from satirist Andy Borowitz, whose invented quotes nail the hidden meaning of the mainstream Republican reaction:

“We Republicans have worked long and hard to develop insidious racial code words like ‘entitlement society’ and ‘personal responsibility,’ ” said Sen. Rand Paul (R-Kentucky). “There is no excuse for offensive racist comments like the ones Cliven Bundy made when there are so many subtler ways of making the exact same point.”

Fox News also blasted the rancher, saying in a statement, “Cliven Bundy’s outrageous racist remarks undermine decades of progress in our effort to come up with cleverer ways of saying the same thing.”

If you hear someone saying that Bundy just wasn’t “politically correct” — or that the problem is “an old man rancher isn’t media trained to express himself perfectly” —
that’s what they really mean: It’s fine to imply that slavery wasn’t so bad and to characterize black people receiving government assistance (i.e., all of them) as lazy and promiscuous and criminal, but you have to use the right words, like Paul Ryan did in March:

We have got this tailspin of culture, in our inner cities in particular, of men not working and just generations of men not even thinking about working or learning the value and the culture of work. There is a real culture problem here that has to be dealt with.

Ryan presumably does have some media training, so he didn’t say Negro or mention slavery or picking cotton —  and it’s those words (and not the ideas behind them) that make Bundy’s quote racist, right? Ryan criticized the “culture” of the “inner city” rather than black people, so his comment couldn’t be racist — “I don’t have a racist bone in my body” he said afterward — even though everybody knew who he was talking about and what he meant.

By contrast to the apparent shock of Sean Hannity, liberals mainly expressed surprise that anybody would be surprised by the discovery that Bundy is a racist. Matt Yglesias found it “clarifying” that Bundy had gone off on race “because race has not been far from my mind since the story first hit the papers.”

On Bill Mahr’s Real Time, Daily Beast editor John Avlon explained:

The reason it’s predictable is that we’ve seen a pattern, especially at a time when the face of the federal government is an African-American. The association with racists is becoming the black lung disease of the conservative movement. It’s an occupational hazard. … You start seeing a pattern and at some point you’ve got to confront it: “How come we keep making common cause with racists?” Maybe it’s got something to do with some of the appeals they’re making.

Rachel Maddow did the best job of laying that pattern out: Much of what Bundy had been saying all along were the kinds of bizarre ideas that are not themselves racist, but are way more popular in white supremacist circles than anywhere else. (It’s like an accent; you don’t have to be Canadian to end a question with “eh”, but if you do you probably are.) Rachel drilled down into the history of one particular strange notion: that county sheriffs are the ultimate in legitimate legal authority. Bundy had been urging his own county sheriff to disarm the federal agents, as if the sheriff’s authority were paramount. (In 2012, a fringe candidate for sheriff in my own Hillsborough County, NH professed a similar view of the job he imagined himself to be running for. He lost.) Rachel chased that notion back through the 20th-century Posse Comitatus movement, and from there back to the Southern resistance to Reconstruction in the 19th century.

Something I’m just beginning to appreciate is how influential the Southern anti-Reconstruction movement that birthed the KKK has been in forming the ideas that are still running around on the extreme Right. If you want initiate yourself into this mindset, I recommend reading Thomas Dixon’s 1905 best-seller The Clansman: a Historical Romance of the Ku Klux Klan, which inspired the 1915 movie classic The Birth of a Nation, and whose themes were still echoing in 1936’s Gone With the Wind. Dixon drops you into a world where the Klan are the good guys. Evil Washington politicians have conspired with corrupt and rapacious local blacks to upend the natural order and create a black-dominated society. Unable to take any more, the noble Southern whites arm and organize themselves into a freedom-seeking secret society, the KKK. Once they do, the fundamentally cowardly black troops that Washington has tried to stand up against them scatter like nine-pins.

This “historical romance” has essentially nothing to do with the actual history of the KKK, which from the beginning was focused on terrorizing blacks out of claiming their rights.

But there’s a configuration of ideas we might call the Klan Komplex — a combination of Lost Cause mythology, John Calhoun’s* misinterpretation of the Constitution and miscasting of the Founders, love of guns, and hatred of the federal government — that survives to this day in radical right-wing fringe groups. Today many of these ideas sound like nonsense to outsiders, but the whole Komplex makes sense if you picture yourself as a defeated Southern aristocrat watching victorious Union troops side with your former slaves against you, and looking to the heroic knights of the KKK to restore you to your rightful dominance.

  • The federal government is illegitimate, having grossly exceeded the authority legitimately granted by the Constitution. Government officials have no claim to represent the American people.
  • The Founders were divinely inspired men whose vision has been betrayed.
  • The true federal government was an agreement among the states, and had no direct authority over the American people.
  • The Founders intended states’ rights to be paramount and the federal government to be weak.
  • Slavery in the old South was a benevolent institution. Through slavery, African savages were civilized and taught Christianity. They were treated well by their masters.
  • Slavery is the worst thing that can happen to a white man. Any time the federal government forces a white man to do something he doesn’t want to do, he is being enslaved.
  • Federal taxes are confiscation.
  • The federal government has corrupted blacks by removing them from the benevolent authority of whites and giving them goods that it has confiscated from whites. Blacks are addicted to these government handouts, and through that addiction the government dominates them more completely than their masters ever did.
  • The United States was founded to be a white Christian nation. Non-whites and non-Christians have been generously allowed to settle and prosper here, but now they are illegitimately taking over.
  • States can nullify federal laws.
  • States have the right to secede, and the South was right to do so.
  • The Second Amendment was put into the Bill of Rights so that citizens could overthrow the federal government if it exceeded its authority.
  • The vast armament of private citizens is the only thing that keeps the federal government from establishing tyranny. Armed citizens ready to revolt against the federal government are the true American patriots.

The three-percenters are fighting a new American Revolution.

Those ideas are not related to each other in any logical sense, so it would certainly be possible to believe a few of them without the others. But they originated together in the defeated South and have spread through the same channels ever since. As a result, although lots of people believe one or two of these ideas, if you hear more than a few of them from someone, probably you’ll eventually hear all the rest. When well-armed white men are rabidly opposed to the federal government and talk at length about their love of their own freedom, chances are excellent that they will eventually start waxing nostalgic about slavery, as Cliven Bundy did.

That shouldn’t surprise anyone.


* I keep meaning to write a longer article on the seminal influence of Calhoun on the Right. (Sam Tanenhaus has already done one, but I have a different take.) Whenever right-wingers talk about “the Founders” or “the Constitution” in ways that make no historical sense, they are probably invoking John Calhoun without realizing it. Calhoun re-interpreted (i.e., misinterpreted) the Founders in a way that allowed Jefferson Davis and the other Confederate secessionists to claim that they were the true heirs of the Revolution. In particular, Calhoun cast the Constitution as a confederation agreement among the states (similar to the Articles of Confederation it replaced), ignoring that it begins “We the People” rather than “We the States”.

Combining freedom-loving rhetoric with a positive attitude towards slavery goes back to Calhoun’s 1837 Senate speech “Slavery a Positive Good“. Slave-holding founders like Washington and Jefferson had been ambivalent about slavery, regarding it as an evil but not willing to support any of the schemes to end it. (Jefferson described slavery as holding “a wolf by the ear, and we can neither hold him, nor safely let him go.” Lincoln’s campaign platform that slavery should not be extended the territories — the cause of the South’s secession — was originally Jefferson’s idea.) But by the 1830s, abolitionism had progressed to such a point that Calhoun foresaw the slave system’s destruction unless the South full-throatedly defended it as good. Already in the first paragraph, though, he uses slavery as a vision of horror, if it should happen to white people.

[E]ncroachments must be met at the beginning, and those who act on the opposite principle are prepared to become slaves.

So Calhoun urges Southern whites to stand up to the abolitionists, lest they metaphorically become slaves of the North. But he holds literal slavery to be a good thing, when it happens to an inferior race like the Africans. That fundamental hypocrisy has been with us ever since.

This Court Sucks

Whatever you think of the results, the majority opinions in both the Voting Rights Act and the DOMA cases are unworthy of the highest court in the land.


Sometimes I imagine that a judge is brilliant just because he or she agrees with me, or that judges are idiots when they don’t do what I want. That’s what made this week’s Supreme Court decisions so interesting for me.

On Tuesday the Court announced a decision whose result I thought was terrible (Voting Rights Act) and on Wednesday one I thought was great (Defense of Marriage Act). Reading the two back-to-back qualifies me to make the following non-partisan judgment: This Court sucks. Whether you love or hate the consequences, both decisions are awful pieces of legal reasoning.

Justice Kennedy’s DOMA decision. Let me start with the decision whose conclusion I like: DOMA. I’ve read all the major same-sex marriage decisions since 2003, and they are all structured the same way because they all hang on the same two issues:

  • Do laws discriminating against gays and lesbians deserve heightened scrutiny? Laws that single out a class of citizens for better or worse treatment can’t be arbitrary; some rational thought process needs to connect the discrimination to some legitimate goal of government. How good that reasoning needs to be depends on how likely it is that the law is based on simple bigotry. If a history of bigotry against the singled-out group makes that explanation seem very likely (as in race or gender cases), then the law faces some form of heightened scrutiny. At the lowest level of scrutiny, the law just needs to have some rational connection to some legitimate goal. At the highest level (strict scrutiny) the government has to have a very important goal, and the discrimination in the law has to be the minimal amount necessary to achieve it.So in a same-sex marriage case the first thing a judge needs to do is announce a standard of scrutiny: Does a history of bigotry against gays and lesbians make a law restricting their rights inherently suspect? How much so?
  • Do the justifications of the law in question meet that standard? If you want to uphold a law discriminating against same-sex couples, you announce a low standard of scrutiny and argue that the law’s justifications meet that standard. Conversely, a decision overturning a discriminatory law will announce a high standard and say that the law’s justifications don’t meet it. Really sweeping decisions, like the original 2003 Goodridge decision establishing same-sex marriage in Massachusetts, say that the law can’t even meet the lowest standard, because treating same-sex couples differently has no rational relationship at all to any legitimate government goal.

For ten years, lower courts have been practically begging the Supremes to settle the level-of-scrutiny issue with respect to gays and lesbians. With that in mind, Justice Kennedy’s majority opinion on DOMA reads like mush. When the decision was released, the initial commentary said he had defined a new standard, careful consideration. But that turned out to give him too much credit. Kennedy used the phrase, but when analysts had time to read more closely they saw that he must have meant it in its everyday sense, because he never defined it as a legal term. He just meant that he was considering carefully.

Gay-rights advocates (among whose ranks I count myself) love quoting from Kennedy’s opinion, because it is full of polemic sound-bites about “second-tier marriage” like:

The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence, 539 U. S. 558, and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples.

Now that sounds really bad, but legally it amounts to nothing, because governments demean and humiliate people all the time. (I feel demeaned and humiliated when I have to take off my belt and shoes at the airport, and then let them blast me with radiation to make an image of my naked body.) The question is why they do it and how their reasons stack up against our rights.

Kennedy never lays that out. He lists many ways that DOMA disadvantages same-sex married couples, and then concludes:

The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State [of New York], by its marriage laws, sought to protect in personhood and dignity.

That’s exactly the result I want, Justice Kennedy, but how did you get there? The purposes Congress imagined DOMA serving — whatever they were; you don’t list them or examine them — don’t “overcome”, but are they failing to overcome a high standard or a low standard? Or are you saying that Congress didn’t have a legitimate purpose at all, or even that none can be imagined after the fact? That would be really sweeping … if that’s what you’re saying. But who can tell?

As my high school algebra teacher used to say: “Show your work.” You’re an effing Supreme Court justice! You can’t just list a bunch of facts and then state a conclusion, as if the logic connecting them must be obvious to everybody.

Justice Roberts’ VRA decision. I was primed to find fault with Kennedy’s decision because just the day before Justice Roberts had published a similarly mushy decision tossing out Section 4 of the Voting Rights Act, and so making Section 5 meaningless. Roberts’ failures jumped out at me, because I disagree with his conclusion and think his decision will lead to major injustices.

Some quick background: After the Civil War, black men’s right to vote was established by the 14th and 15th amendments. (Black women got the right to vote at the same time white women did, with the 19th amendment in 1920.) During Reconstruction, blacks were a majority in several southern states, and many were elected to office. But after federal troops left the South in 1877, white paramilitary groups like the KKK intimidated black voters sufficiently for whites to regain control of state governments. That led to a series of laws and practices that effectively disenfranchised blacks.

The Supreme Court initially upheld such laws (to the shame of otherwise great justices like Oliver Wendell Holmes Jr.), but started over-ruling them in 1915. The legislative process works faster than the judicial process, though, so for half a century new disenfranchising laws were passed faster than courts could throw them out. Justice Roberts notes that at the time the Voting Rights Act was passed in 1965, only 6.4% of the black population of Mississippi was registered to vote.

The VRA [text] has two key provisions: Section 2 concisely restates the rights implied by the 15th amendment:

No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color.

And Section 5 says that areas with a history of disenfranchisement have to  pre-clear any changes in their voting laws with the Justice Department. Section 4 spells out how those areas are defined. Mostly that turns out to be southern states, but a few other places (including parts of my state of New Hampshire) have had to endure the Justice Department looking over their shoulders whenever they change voting laws.

But in essence, the VRA puts the South on probation. Initially that was for 5 years, but the term keeps getting renewed; most recently it was renewed for another 25 years in 2006.

That’s what Roberts has a problem with. Section 4 is based on evidence that was current in 1965, and the basic formula has barely changed since. In the same way that laws need to have a reason to discriminate between citizens, they have to have really good reasons to discriminate between states, which are assumed to have “equal sovereignty”.

Past Supreme Courts have weighed the VRA’s justifications and found them sufficient. Jim Crow was an exceptional problem that required an exceptional solution. (My personal opinion: If you’re going to make an exception, voting rights is a good place to make it, because once voting gets screwed up all the non-judicial ways our system corrects itself are screwed up too.) But Roberts notes that:

Nearly 50 years later, things have changed dramatically.

This is a point you’ll hear often in conservative circles. Nobody wants to explicitly defend Jim Crow any more, but that’s all ancient history. The Age of Obama is post-racial. Things have changed.

Roberts goes on at some length about how things have changed. Minority voter-registration rates are close to parity with white Anglos, and in some elections minority turnout is above average. Minority candidates now get elected to Congress in section-5 states like Texas or South Carolina.

In 1965, the States could be divided into two groups: those with a recent history of voting tests and low voter registration and turnout, and those without those characteristics. Congress based its coverage formula on that distinction. Today the Nation is no longer divided along those lines, yet the Voting Rights Act continues to treat it as if it were. … Congress—if it is to divide the States—must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions.

Of course, Robert’s characterization of the VRA is not exactly true, because it has a bail-out provision: States and counties can permanently escape section 5 by convincing a court that they’ve stopped trying to discriminate. Parts of Virginia, North Carolina, and New Hampshire have all successfully used that procedure. So a state’s failure to bail out is itself a “current condition”. The plaintiff, Shelby County, could not meet that condition, because it continues to try to disenfranchise blacks. (During oral arguments, Justice Kagan summed it up: “You’re objecting to the formula, but under any formula Congress could devise, it would capture Alabama.”)

But never mind all that, because even making that point draws us down the rabbit hole Roberts has dug. Here’s what’s important: “Things have changed” is not a legal argument. It’s a fine point to make on a blog or at a dinner party, but a Supreme Court justice has to do better than that.

If Roberts were being a real judge here, he’d spell out what “equal sovereignty” has and hasn’t meant in American legal history. He’d enunciate an abstract standard by which Jim Crow was “exceptional” in 1965 and which justified the steps taken then. He’d explain how that standard was violated by the renewal of the VRA in 2006. And he’d lay down a set of conditions that Congress would need to satisfy to make the VRA acceptable today. (If you want to see what a real legal opinion looks like, read Justice Ginsburg’s dissent. Whether you agree with her or not, she is clearly doing something far more rigorous than what Roberts is doing.)

Roberts doesn’t do any of that. The VRA was vaguely justified in 1965 and is vaguely unjustified now, because “things have changed”. If I were a congressman, I would have no idea how to revise the VRA so that it passes constitutional muster. If Congress does revise it, lower court judges who rule on it will just be guessing about its constitutionality. It will have to go back to the Supreme Court before anyone knows whether it’s really a law again, because there are no standards in Roberts’ opinion by which a revision can be judged.

This isn’t law. It’s politics. It’s mush.

So after “careful consideration” of how “things have changed”, this is my judgment: Whether you agree with its conclusions or not, this Court sucks.

What the Court Decided About ObamaCare

Thursday, the Supreme Court announced its decision that the individual healthcare mandate, and hence the Affordable Care Act as a whole, is constitutional. It was a 5-4 decision, with Chief Justice Roberts siding with the Court’s four liberals and Justice Kennedy (the usual swing vote) joining the other three conservatives.

I was thrilled. Yes, Roberts got to that decision in an odd way (more on that later), and states were given the option to opt out of the Medicaid expansion. (I expect Republican governors to posture a lot about this, but I have a hard time believing they’ll actually refuse.) But the alternative was stark: We’d be back to square one on health care, stuck with 50 million uninsured Americans, spiraling healthcare costs that are already the highest in the world, and no plan on the table to fix any of it.

So we should all take a moment to do a happy dance.

Done? OK, now let’s look at this in a wider perspective.

History. Democrats have been trying to get some form of national health insurance since Truman. LBJ got Medicare and Medicaid passed in the 60s. Clinton tried and failed to get universal health care in the 90s.

Fear that Democrats might someday succeed in passing a Medicare-for-everybody plan that put private health insurance companies out of business caused the conservative Heritage Foundation to propose an individual mandate in the 1989 report Assuring Affordable Health Care for All Americans. The Republican alternatives to HillaryCare in the 90s usually claimed not to have mandates, but tax credits were jiggered to produce the same result: If you chose not to have insurance, you paid more to the federal government.

And of course, an individual mandate is a key and necessary provision of RomneyCare in Massachusetts, which Mitt explained here:

The interesting detail in all of this conservative campaigning for an individual mandate was that its constitutionality was never addressed as a problem. As long as it was a conservative alternative to Democratic proposals, no one challenged the mandate’s constitutionality.

In May, Salon’s Andrew Koppelman asked the question: When did the individual mandate become a constitutional issue?

The first exploration of Congress’s authority to enact a mandate was a paper by Mark Hall, which he posted on SSRN in February, 2009. (I have not been able to find even a hint of the constitutional objection before Obama’s election, even though mandates have been proposed, mainly by Republicans, since the early 1990s.) He concluded that the mandate easily followed from existing commerce clause jurisprudence. … The first published claim of unconstitutionality that I have been able to find is a July 10, 2009, Federalist Society paper by Peter Urbanowicz and Dennis G. Smith. They created the now notorious action/inaction distinction, declaring that “Congress would have to explain how not doing something – not buying insurance and not seeking health care services – implicated interstate commerce.”

Before that, nothing. Crickets.

What Roberts Said. So this is where we are: I did a happy dance because the Court’s partisan Republican majority only managed four votes to shoot down a Republican healthcare idea that Democrats finally managed to pass. Their constitutional objection was based on an ad hoc legal theory that simply did not exist until a few months before Congress passed the law.

Worse, in giving his OK to ObamaCare, Roberts still signed off on the ad hoc action/inaction theory and rejected the Commerce Clause justification that seemed obvious to everybody only two years ago. Instead, he re-interpreted the mandate as a tax and found justification for it in Congress’ constitutional power to tax:

The Federal Government does not have the power to order people to buy health insurance. Section 5000A  would therefore be unconstitutional if read as a command.  The Federal Government does have the power to impose a tax on those without health insurance. Section 5000A is therefore constitutional, because it can reasonably be read as a tax.

Now, I can’t complain too much about this, because I’ve been lamenting for months that the mandate would obviously be constitutional if Congress had just replaced the word penalty with tax. Of course, if they had done that, it’s possible that conservatives would have trumped up some novel legal theory that limited the Taxing Clause. Who knows? If you want to throw out a law badly enough, you can always come up with something.

The Ginsburg Dissent. If you want to see what would have been a 9-0 decision in the 1990s, and probably even an 8-1 or 7-2 decision two years ago, scroll past the 59 pages of Roberts’ decision and read the dissent by Justice Ginsburg. (She dissents from Roberts’ reasoning, but not his conclusion that ObamaCare is constitutional. So she is also technically part of the majority that Roberts is writing for.)

There is a very striking difference in tone between Ginsburg’s opinion and both Roberts’ opinion and the joint dissent by the four conservative justices. Ginsburg consistently talks about reality, giving examples and statistics about what is happening here and now in the healthcare market. Meanwhile, Roberts and the conservative bloc mainly discuss bizarre fantasies in which Congress might force everybody to buy broccoli.

At the root of the conservative rejection of the Commerce Clause justification is the idea that Congress’ power to regulate commerce does not include the ability to “create” commerce by forcing people to buy a product (health insurance) they otherwise would not. The objection rests on two points:

  • Individuals should be able to escape Congress’ commerce-regulating power by not participating in the regulated markets.
  • Individuals can choose not to participate in the healthcare market by not buying insurance, not going to the doctor, etc.

The first point sounds reasonable, but has no real basis in legal precedent. And Ginsburg correctly observes that because accident and illness strike even young and apparently healthy people without warning, and because emergency rooms are obligated to treat first and ask for payment later, the second point is just false. Individuals actually cannot avoid adding risk to the health-care system.

Insurance companies and health-care providers know that some percentage of healthy, uninsured people will suffer sickness or injury each year and will receive medical care despite their ina­bility to pay. In anticipation of this uncompensated care, health-care companies raise their prices, and insurers their premiums. In other words, because any uninsured person may need medical care at any moment and because health-care companies must account for that risk, every uninsured person impacts the market price of medical care and medical insurance.

This is also inherently a national problem, precisely the kind of thing that the Founders wanted Congress to have the power to solve.

States cannot resolve the problem of the uninsured on their own. Like Social Security benefits, a universal health-care system, if adopted by an individual State, would be “bait to the needy and dependent elsewhere, encouraging them to migrate and seek a haven of repose.” Helvering v. Davis, 301 U. S. 619, 644 (1937).

In normal times, that would be that. As a unanimous Court wrote in Katzenbach v. McClung (1964)

Where we find that the legislators, in the light of the testimony and facts before them, have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end.

But these aren’t normal times, so Ginsburg has to attack Roberts’ examples directly.

An individual “is not ‘active in the car market,’” the Chief Justice observes, simply because he or she may someday buy a car. The analogy is inapt. The inevitable yet unpredictable need for medi­cal care and the guarantee that emergency care will be provided when required are conditions nonexistent in other markets. That is so of the market for cars, and of the market for broccoli as well. Although an individual might buy a car or a crown of broccoli one day, there is no certainty she will ever do so. And if she eventually wants a car or has a craving for broccoli, she will be obliged to pay at the counter before receiving the vehicle or nour­ishment. She will get no free ride or food, at the expense of another consumer forced to pay an inflated price.

So no, it doesn’t follow that Congress can make us eat broccoli if the Commerce Clause allows an individual mandate.

The Medicaid expansion. One of the ways ObamaCare increases the number of people with coverage is that it expands eligibility for Medicaid. Everybody under 65 with a household income less than 133% of the poverty line becomes eligible.

Medicaid is a federal/state partnership, so the expansion can only happen if the states go along. The ACA tries to make it painless for the states to cooperate by covering 100% of the cost of the expansion for the first two years, and 90% thereafter. It tries to make the expansion painful to turn down by saying that Medicaid is a take-it-or-leave-it deal. States can go along or lose the Medicaid funding they already get.

Roberts found that this was too coercive, though he didn’t specify what makes a non-cooperation penalty too high. Ginsburg finds that the Medicaid expansion is within the normal power of Congress to offer funding with conditions, and does not see the take-it-or-leave-it part as a penalty at all, since each year is a new appropriation, subject to its own conditions.

Future Congresses are not bound by their predecessors’ dispositions; they have authority to spend federal revenue as they see fit. The Federal Gov­ernment, therefore, is not, as the Chief Justice charges, threatening States with the loss of “existing” funds from one spending program in order to induce them to opt into another program. Congress is simply requiring States to do what States have long been required to do to receive Medicaid funding: comply with the conditions Congress prescribes for participation.

As I said above, I doubt the states will opt out anyway. If they do, then ObamaCare will cover somewhat less than 30 million new people, and the opting-out victims will be poor and near-poor people.

The conservative dissent. Justices Scalia, Thomas, Alito and Kennedy combine in a dissent that is both radical and polemic, full of scary quotes about the Commerce Clause turning into “a font of unlimited power” or “a general authority to direct the economy”.

Its conclusion is that the ACA must be thrown out in its entirety.

Think about that: Based on a legal theory that did not exist two years ago, and whose advocates are almost entirely in conservative think tanks, the Court came within one vote of striking down the biggest piece of social legislation in half a century.

Salon’s Paul Campo has an even scarier theory: Looking at internal evidence in the text, Campo speculates that the conservative dissent was originally written to be the majority opinion, and that Roberts changed his mind late in the game.

So we dodged a bullet, and the country gets to have RomneyCare. Unless it elects Romney. Then the Happy Dance will be over.

What the Court Decided About Immigration

Last Monday, the Supreme Court struck down three of the four challenged sections of Arizona’s anti-immigrant law, S.B. 1070. As usual, the media covered the event as if it were nothing but a pivotal game in a partisan play-off series, and went back and forth on whether this was victory or defeat for the Obama administration.

Don’t be distracted or confused. If you read the decision, the outcome is pretty clear: It’s a victory for people who want to see immigrants (documented or undocumented) treated fairly. It’s a defeat for anybody who wants the police to hound Hispanics out of Arizona.

S. B. 1070 was passed by the Arizona legislature and signed by Governor Jan Brewer in April, 2010. The Obama administration challenged the law in court before it could take effect, and a federal injunction has prevented Arizona from enforcing it until the case was settled.

Well, now it’s settled. Three of the four challenged provisions were struck down immediately:

  • Section 3 made it a state crime for a non-citizen to fail to carry documentation authorizing their presence in the country.
  • Section 5C made it a state crime for an undocumented alien to seek or accept employment.
  • Section 6 authorizes Arizona state police to arrest without a warrant any non-citizen who they have reason to believe has committed an offense that would make them deportable.

Justice Kennedy wrote the majority opinion, with Chief Justice Roberts and three justices from the Court’s liberal wing (Breyer, Ginsburg, and Sotomayor) concurring. Justice Kagan recused herself because she was in the Obama administration when the case was being prepared, and so might appear to have a conflict of interest. (Recusal decisions are up to the justices themselves. Liberal justices take these decisions seriously. Conservatives like Thomas and Scalia do not, even when money is involved.)

The reason Governor Brewer claimed victory and some liberals complained of defeat was that the Court did not strike down the fourth provision, 2B, which Justice Kennedy summarized like this:

Section 2(B) of S. B. 1070 requires state officers to make a “reasonable attempt . . . to determine the immigration status” of any person they stop, detain, or arrest on some other legitimate basis if “reasonable suspicion exists that the person is an alien and is unlawfully present in the United States.” Ariz. Rev. Stat. Ann. §11–1051(B) (West 2012). The law also provides that “[a]ny person who is arrested shall have the person’s immigration status de­termined before the person is released.”

This section is why S.B. 1070 became known as the “papers please” law. It conjures up visions of police harassing anybody with brown skin or an accent, and locking them up until they can prove they’re in the country legally. (You always go swimming with your passport, don’t you?) Such behavior is certainly in line with the expressed purpose of the law, which is to pressure undocumented immigrants until they “self-deport”. And I’m projecting here, but I’d guess that many S.B. 1070 supporters will consider it a bonus if legal Hispanic immigrants leave the state too.

So why didn’t the Court strike 2B down? Justice Kennedy’s reasoning shouldn’t give any comfort to the people who want to harass Mexicans. It all hangs on the timing of the case and on that phrase “reasonable attempt”.

The administration sued before the law went into effect, before Arizona police came up with enforcement guidelines, and before the state courts had a chance to rule on whether those guidelines follow the state constitution. Kennedy doesn’t want to assume that those people won’t do their jobs properly.

At this stage, without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume §2(B) will be construed in a way that creates a conflict with federal law.

Justice Kennedy could imagine state courts toning 2B’s interpretation down to something like this: As long as we’re holding you for something else already, we might as well check with ICE to see if you’re in the country legally, and if not, see what they want us to do with you.

However, Kennedy also envisioned an interpretation where police would hold brown-skinned jaywalkers (rather than just ticketing them as usual) or extend the detention of other suspects while waiting for immigration information, which (since the rest of the ruling established that immigration is federal territory) is none of their business anyway. Kennedy left little doubt that this would be seen as an unreasonable attempt to determine a person’s immigration status.

So the Court didn’t endorse 2B, it just let Arizona off with a warning. If 2B comes back to the Court as a racial profiling case with actual victims, it will get struck down then.

If you doubt that reading of the Court’s decision, think about this: None of the liberal justices felt the need to write a dissenting opinion. That should tell you who won.