SHELDON WOLIN

Sheldon Wolin is smart. I'm not quite sure what to make of this article, though (via Eschaton, where the link is introduced in the context of an extended quote on the rise of Italian fascism). Wolin claims that the Bush administration is pushing a "kind of fascism," or as he puts it in the middle of the piece, "inverted totalitarianism." I'm not quite sure what this is supposed to mean, and I doubt that a newspaper piece is going to tell me anyway. The only reason that I can tell that Wolin chooses "inverted" as a tag for totalitarianism is that he wants to claim that what we really have is a form of totalitarianism, just with manifestations that are the opposite of forms that appeared under mid-century varieties of totalitarianism (e.g., citizen apathy instead of mobilization, not "abolishing the parliamentary system" instead of abolishing it). At some point, however, the comparison becomes so strained that the only thing that is left is an assertion that there is a comparison. The difference between abolishing Congress and not abolishing it is quite significant. Just think of the fact that a myriad tiny factors could have made the 2000 election go for Gore, and think also of the fact that we really do not expect the Bush administration to call out the army if they lose the next election.

CHALLENGE IN NIGERIA PROCEEDS

Alhaji Mohammed Dikko Yusuf will at least have his day in court. He has challenged the results of Nigeria's April presidential elections, and an attempt by President Olusegun Obasanjo to convince the courts to dismiss the case has failed, as this article in the Guardian notes. See also the article in This Day, available here. And an article in Vanguard, here. A hearing is set for October.

FEDERAL COURT SAYS "NO" IN NEVADA

The U.S. District Court, District of Nevada ditched the temporary restraining order and dismissed the federal case [against the Nevada legislature in the school funding battle]. You can read the opinion here (pdf file).

Folks from Claremont defend the suit, here. More later.

MORE: Read the Las Vegas Sun article here (I got the tip there).

EU AND SEX IN ADVERTISING

Some EU commissioners want to set guidelines for advertising, especially in the area of [the] portrayal of female sexuality, according to this article in the Rheinischer Merkur. American visitors to Europe are sometimes shocked by the extensive use of nudity in advertising (for an example, see papascott's post here), but it seems to me that American ads differ not so much in the use of sex but only in the amount of skin they show.

See EU Commissioner for employment and social affairs Anna Diamantopoulou's defense of the EU's initial discussion of sexist advertising (and other issues) here.

I am generally sympathetic with efforts to criticize the advertising industry (see, for example, adbusters), although I have to admit that government regulation makes me nervous. The alternative, though -- allowing advertisers to engage in a moral race to the bottom in order to grab the attention of increasingly distracted and cynical consumers -- doesn't seem so great to me, either. First Amendment concerns for commercial speech are also often overblown: it seems to me odd to argue that self-interested purveyors of product images should be given the same kinds of protection as people who advance political ideas and seek the attention of the voting public. (And it's worth noting that free speech issues are also at the forefront of the debate in Europe, even if they get cast in terms different from 1st A jurisprudence in the states.)

HA

HA.

MICHELLE MALKIN, DAYCARE, AND WENDY'S

A dialogue, of sorts, over lunch. Very good.

MARCUSE'S ASHES BURIED IN BERLIN

This Tagesspiegel article is a little sad, actually: Herbert Marcuse's relatives lost track of his ashes, which were in a funeral home (the paper says, "cemetary") in lovely New Haven, CT. It's not clear from the article what made the family remember the remains, but you can read what is apparently Harold Marcuse's story, here. According to the paper, Harold Marcuse wanted to make sure that the burial happened while there was a politically sympathetic government in Berlin.

INFECTIOUS

California education officials want what Nevada's got. As this Oakland Tribune article and this Mercury News article note, California education chief Jack O'Connel hopes that the California courts will tell the legislature to disregard restrictive supermajority requirements for tax increases in the interest of fulfilling state constitutional obligations for education funding.

Challenges to state education financing under state constitutions have been common since the 1970s. For an overview of this litigation, see ACCESS's litigation page here. In a recent case in New York, the state's highest court ruled that the New York City public school system was not getting adequate support from the state and that the state was thus failing in its constitutionally mandated responsibility for giving its citizens a "sound basic education." Read a Philadelphia Inquirer article here and the decision in the case, Campaign for Fiscal Equity v. State of New York, here.

Again, many have argued that the Nevada Supreme Court was "disregarding the law" when it said that the legislature can ignore the supermajority requirement for tax increases if that's what's necessary in order to provide constitutionally defensible levels of free, public education. The Court would arguably have been "disregarding the law" if it hadn't claimed authority for protecting state constitutional requirements that education be funded adequately. The fact that the supermajority requirement is clear (i.e., numerical) shouldn't mean that it is any more important than the education requirement (which isn't numerical, but should exclude "lousy" education or it's meaningless, it seems to me). At the broadest possible level, the dispute is between those who don't want taxes and those who want education. There is a broad discussion going on in this country concerning how much education funding is necessary in order to fulfill state constitutional obligations. It's not clear to me why anti-tax folks should win this argument.

Education is a great issue because it dramatizes something that public opinion polls have picked up on regarding tax cuts. If you ask people if they want tax cuts or more government programs, they will choose tax cuts by a large margin. If you ask them whether they want tax cuts or more funding of education, environmental protection, and other popular programs, they prefer the spending on the programs. The strategy of anti-tax folks thus has to be to attack the programs as wasteful, ineffective, inefficient, or as "special interests." On public education, though, the anti-tax folks should not be allowed to carry the day. The Nevada case is merely one additional episode in a broader story that has implications for the future of free public education in this country.

MORE: For more critical takes on Jack O'Connell's glance eastward, see Daniel Weintraub's posts here and here, as well as another post at Claremont's blog, The Remedy. Weintraub notes that California's constitution exempts public school funding from the supermajority requirement for appropriations bills from the general fund; Weintraub thus concludes that O'Connell's suit amounts to political grandstanding. That might be; I defer to the "insider" here, given the fact that I've only been to California twice. . .

One thing I do find interesting about the federal suit in Nevada, however, is that it would seem that asking what are often contemptuously refered to as "unelected judges" to intervene in this matter is politically quite strange. As I read the Nevada Constitution, Nevada Supreme Court justices are already quite weak, institutionally speaking. They serve for staggered six year terms, are subject to popular election, and can be removed from office if 2/3 of each branch of the legislature votes to remove them. Here is Article 7, Section 3 of the Nevada Constitution (Article 7 carried the heading "Impeachment and Removal from Office"):

Sec: 3. Removal of supreme court justice or district judge. For any reasonable cause to be entered on the journals of each House, which may, or may not be sufficient grounds for impeachment, the Chief Justice and Associate Justices of the Supreme Court and Judges of the District Courts shall be removed from Office on the vote of two thirds of the Members elected to each branch of the Legislature, and the Justice or Judge complained of, shall be served with a copy of the complaint against him, and shall have an opportunity of being heard in person or by counsel in his defense, Provided, that no member of either branch of the Legislature shall be eligible to fill the vacancy occasioned by such removal.

I don't know anything about court history in Nevada, so I don't know how often removal from office has been employed as a weapon to keep judges in line (no Nevada justice has ever been impeached or removed by the legislature, see here). But Nevada judges can be impeached, recalled, and removed from office pursuant to a disciplinary board decision that they have engaged in "willful misconduct." It seems to me that the Nevada court system was designed to be institutionally vulnerable, and thus the people of Nevada have adequate means to punish the Supreme Court if they think they've gotten out of line.

MORE: Do I need to say it? The institutional weakness of the Nevada judiciary puts the lie to Rush Limbaugh's claim that "courts aren't answerable to the people." Nevada courts are answerable to the people at every election, and at least on paper they can be removed from office pretty easily.

GEARING UP

By the way, this site (linked below as well) might be a good one to bookmark in preparation for the Massachusetts Supreme Judicial Court's upcoming ruling on gay marriage, Goodridge v. Dept. of Public Health. Read GLAD's account of the case here. If you want to do your background reading, GLAD also has a link to the March 8 Superior Court decision, here. (pdf file)

TV IN THE COURTROOM

Are defendants harmed when their lawyers agree to wear wires for a TV documentary of the trial, without the consent of the defendant? It's possible. A Massachusetts appeals court wants an evidentiary hearing in the case of Commonwealth v. Downey. Read the opinion by going here, clicking on Opinions under Appeals Court, then clicking on the link next to the case name. The direct links won't work, apparently.

FBI COFFEEHOUSE READING MATERIAL STORY REDUX

Now it's in the first person. A while back, Eric Muller discussed a story in the Chapel Hill News about an FBI visit triggered by a "tip" someone in a coffeehouse gave regarding someone who was reading something suspicious. (He first thought the story was bogus, see here.) The original article by Carol Henderson is here.

Now, via Atrios, you can read a first-person narrative on the episode, here. Budding journalist Marc Schultz claims that he was reading this column at the coffee shop, and that that was enough to get him a visit from the FBI.

Is any or all of this story true? I wasn't there, so I really have no idea, but my "default rules" tell me that it is possible, especially in an age in which a conversation overheard in a Shoney's can lead authorities to block off Interstate 75 and activate the bomb squad.

UH-OH

The press from Tenet's briefing is not good for GBII. The Atlanta Jounrnal-Constitution has an aggressive headline -- "Senate panel probes possible White House blame" -- and the bipartisan quotes are not so great. Republican Pat Roberts called the administration "sloppy."

The Detriot Free Press's Desiree Roberts parses the phrase "darned good":

Well, I may not be from Texas, but I know side-winding when I hear it. "Darned good" implies low expectations. It's a lackluster endorsement, usually reserved for the little ones, the lily-livered and the long in the tooth. Moms assuage their children's humiliation by telling them they made a darned good effort. If the Tigers win a game, well, that's darned good -- considering. My efforts to squeeze into last year's bathing suit? A darned good try.

And, in other, related news, law professor Jeff Cooper nails the coffin shut on his chances for a federal judgeship nomination -- at least for the remainder of this presidential election cycle.

RADIO IS COOL

I like radio in general. Part of the reason why I like radio is because I did some research on radio in the 1930s, when people had all sorts of crazy ideas about using the radio waves in the public interest (rather than for corporations to make money by selling advertising revenue).

Today, I like radio even more. This is really cool. Via Ruminate This.

MEANDERING, IN THE DESERT, METAPHORICALLY

Taxes in Nevada. Thought you might like to compare this story about banks threatening to leave Nevada if they are taxed, with this one about banks in other states (here, Wisconsin) that don't pay taxes because they're headquartered in Nevada. And see this story as well, which apparently indicates that banks have lost one round. I wonder if state legislators bet that banks have nowhere to go if they want better tax deals (in the U.S.) than Nevada has provided for them.

The Nevada Supreme Court ruling has sent me looking for information on other state-level supermajority requirements for tax increases, as well as research on the ballot initiative process. I remember some student papers from graduate school but haven't seen any published research -- in depth, that is -- on this issue. Here's one site, BallotFunding.org, which has a bibliography and a bunch of links. And here's a list from the "Public Interest Institute" of state-level supermajority requirements for tax increases. Seems like the last ten years have been boom times for increasing transaction costs for those who would like to fund state-level services.

To my mind, this process is not just a way for "shortsighted" voters to get themselves into a funding pickle, as Ted at the Supreme Court Blog argues. (Ted is agreeing with Eugene Volokh that the Nevada Supreme Court got involved with political questions when it issued its controversial ruling last week. The political questions doctrine is basically about courts estimating the limits of their power. To my mind, if they guess right, then they can do good. If they guess wrong, well, they'll get criticized and look foolish. That's happened before. For my posts on the case, which are admittedly a bit scattered and employ pretty fantastic leaps of logic -- hey, it's a blog -- see here, here and here.) The process is much worse than voter "shortsightedness"; instead, the process seems to be highly manipulable by special interests with money (often decrying in their campaigns the influence of special interests). I would include under "special interests" those groups who see taxation as theft (in private) and "taking" (in public), like the extremists in the Libertarian Party of Nevada, whose wacky press release you can read here.

Rush Limbaugh has gone even further, picking up the conservative anti-government (and especially anti-court) cudgel and likening the members of the Nevada Supreme Court to wild west outlaws who "ignore the people's will" and make up policy according to whatever they happen to prefer. To his credit, Limbaugh mentions the Nevada Supreme Court's claim that the Nevada Constitution requires adequate education funding, but by the end of his rant this requirement looks less hallowed and important than respecting the "people's will" as expressed in the recent supermajority requirement for tax increases. He never explains why he has made the choice here, and he sure as heck never gives an account of why the Nevada Court thought it had to make a choice here -- a problem endemic to the critical commentary on this case, it should be noted. Limbaugh's implicit answer is that people like to exercise power, and here the Nevada judges were doing that. I suppose if that's all you can come up with, then you've got some hermeneutic defects that you should probably get checked out.

People can certainly "cuss the court" whenever they want -- indeed, it is fear over cussing and noncompliance that lead to the political questions doctrine. And as much as I am wary of the further judicialization of politics (and as much as I think that the judicial supremacy aspects of the opinion are pretty spectacular and probably the essence of what the court did here) I like the anti-tax drive even less because I think that it is a betrayal of democratic principles; this betrayal becomes most visible when education funding is at stake.

Whatever you think about the court's decision here, I still think that John Adams has the best take on the broader context of the current dispute in Nevada, and I like the quote so much that I'm going to post it again:

Adams feared that the "stinginess, the envy, the malignity of the base and ignorant, would be flattered by the artful and designing, and the education of every family left to its own expense, that the rich only might have their children educated." (R. Brown, The Strength of People, p.101)

KENYAN ANTI-TERRORISM BILL

Three articles in today's East African Standard discuss the dispute over Kenya's anti-terrorism bill. See here and here, as well as the editorial here.

"SIXTEEN WORDS"

A crude but effective response, from Opinionated Jerks (given the title, you can guess what the tone of the post will be, but I had to pass this on).

FEDERALISM IN GERMANY

If you're interested in how federalism plays out in German constitutional law, you can read this article in the Frankfurter Rundschau today. The Bundesverfassungsgericht decided yesterday that a national telecommunications policy was not sufficiently "clear" in how it allocated authority for granting contracts to lay telephone line. The policy was that states and localities could issue the contracts unless they were too involved, financially, with companies that sought the contracts. The constitutional court narrowly decided (5 to 3) that the policy was unconstitutional because it didn't provide clear guidance for when the national government could intrude on the prerogatives of states and localities.

I haven't been able to find an online copy of the decision, but will look for it.

COLUMBIA AND ICC

Last week the U.S. gave Columbia $31 million in aid. See the story on VOA. It appears that the U.S. will withhold around $5 million from Columbia if there is no deal on Columbia's exempting U.S. citizens from prosecution at the International Criminal Court. But the rest of the U.S. aid package (near $250 million) will apparently not be threatened.

Now five million dollars is five million dollars, to be sure, but we can classify Columbia as getting a "practical waiver" nonetheless; I imagine that if members of Congress and the executive branch really wanted to, they could classify more of the money that goes to Columbia as military aid and decide to withhold it, although Columbian aid is complicated by the overwhelming context of the war on drugs plus the intermitted criticism of its human rights record. Yesterday I heard a snippet of coverage from The World that noted that the U.S. presence in Columbia has actually increased over recent months, but their story isn't up right now. Here's the link in case it ever appears.

See also here.

MORE ON NEVADA

The Remedy (Claremont's blog) responds to my criticism of Claremont's suit in the Nevada tax case here. As I note there in the comments, I think that they still miss the point: that if you don't dismiss the Nevada court's portrayal of the issue, what you've got in Nevada is a state constitution with competing constitutional provisions, and a choice simply needs to be made between them. As I read the opinion, the Nevada Supreme Court was trying the best it could to balance what it sees as two competing constitutional imperatives. Either way they're going to end up disregarding the law, or at least be vulnerable to the charge that they're doing so. You can deny that the conflict exists (as Volokh does), but then you're just saying that the court got it wrong on that point. There is at least an argument that they got it right. The WSJ article section that The Remedy quotes ignores the constitutional backing for education funding and just portrays it as another "special interest," but that's the wrong view, in my opinion.

Which leads to my broader point. Lincoln's constitutionalism, as far as I understand it, is focused at least in part on a kind of religious loyalty for the laws. You can read Belz and Neely on Lincoln's wartime constitutionalism for the complications -- constitutional principles over constitutional text, to simplify -- but the main point is that for Lincoln, in the Lyceum speech, what's necessary is citizen reverence for the laws. You would have to be living under a log to believe that the referendum process as practiced out west is designed to encourage reverence of the law. It's a bad process if you care about Lincoln's concerns. I'm not saying that there aren't competing arguments, but I am saying that this is a much tougher issue if you care about citizen reverence than the official Claremont position here lets on. The reason the Nevada Supreme Court believes it is in the position of having to chose between two different ways of "disregarding the law" is, if you take the most realistic view of the matter, that the referendum process creates bad outcomes, and they're outcomes that have historical precedent (as I note in the post below with a quote from John Adams).

Elsewhere, Jim at OTB agrees with my policy goals but not with the position I'm defending with respect to the Nevada Supreme Court's decision. I would ask him: given his position that constitutions are meaningless if not enforced, what about Nevada's constitutional requirements for education? Volokh's position is that the state legislature can just pick any old "doable" funding level and that would satisfy the constitutional requirements here, even if the resulting education is "lousy." I find that hard to square with the constitutional requirement, and the Nevada Supreme Court did, too. That's the whole drama in this case, it seems to me.

MORE: For more on the Nevada case, see this post at HobbsOnline (btw, I love the metaphor of "shredding the constitution"; strikes me that the pile of metaphorical shreds that would result are akin to the "pieces of the true cross" that are out there or the "authentic pieces of the Berlin wall": put them back together again and you've got more than you started with), Random Thoughts, dcthornton.blog (which employs the ever-popular "toilet paper" metaphor), and Hoystory (which is concerned about CA courts getting some ideas from their neighbors). Colin Stewart of the Family Research Council has a commentary on the "Tyranny of Judges," and the Las Vegas Review-Journal has an editorial warning Democrats not to "overreach." Bruce Bartlett has also got an opinion piece on Townhall.com that employs the defenestration metaphor (but with respect to the Supreme Court).

GOD, ROBERTSON, AND THE SUPREMES

Read Jim Joyner's take on Pat Robertson's attempts to influence God to induce Supreme Court retirements. Robertson manages to be hilarious and scary at the same time.

While he's at it, perhaps Robertson should ask for some PR help on the whole support for Charles Taylor thing.

SELF-GOVERNMENT

Republican self-government requires education. In fact, it arguably requires high levels of public education funded through taxes. I am dismayed, but not particularly surprised, by the outraged reactions among some law professors concerning Guinn v. Nevada State Legislature. (See my reactions below.) It's not surprising that these professors are libertarian (at least Bernstein and Volokh); as Volokh's piece linked above argues, he is more concerned about private property than he is about education. Here is Volokh's description of the educational interests at stake in the decision:

As I mentioned, the education funding requirements in article 11 of the Nevada Constitution don't explicitly require a specific amount of funding. The Legislature could cut the funding for education, or for other services. It may be damaging to the state's educational system, but it is doable. And while the result might be lousy policy -- perhaps so lousy that the Legislature will muster the 2/3 majority needed for a tax increase, or find better places to cut, so that education would end up being better funded -- it would avoid what the court has done: A flat judicial nullification of an entirely explicit command of the Nevada people.

If I understand what Volokh is arguing, the basic claim is that the Nevada Supreme Court has thwarted the people's desire that the legislature enact tax bills with supermajorities, and that that desire is not offset by an important value or a clear enough principle. It is "doable" for the state legislature to fund education inadequately. And because there is no specific constitutional standard for education levels, it seems, for Volokh that means any amount that is "doable" is permissible. (It's also "doable" for the Supreme Court to just tell the legislature to ignore the supermajority requirement; in fact, it was just done. I don't get the "doable" standard.)

As an aside, I wish I had my library copy of Hegel's early political philosophy lectures with me, because then I could find the quote where he notes that some kinds of rules are not amenable to precise definition -- his example is the amount of a particular fine required for a particular offense, if I'm not mistaken. Hegel is making use of the Aristotelian insight that one needs to make sure that one is dealing with the appropriate level of precision in discussing a certain question.

"Lousy" educational policy is damaging to the health of a state, especially if you care about republican self-government. This concern of mine is partly a result of my research interests: for my writing this summer I've been reading Richard Brown's The Strength of a People: The Idea of an Informed Citizenry in America, 1650-1870 (Durham, NC: UNC Press, 1996) I recommend it to those who are interested in what self-government in the American context means. I also recommend it to those whose job it is to interpret constitutional provisions, because it seems to me that there is a strong case to be made that republican self-government actually includes a strong implied right to state-funded education, but I realize that that's not a water-tight case.

Let me quote a passage from Brown on John Adams:

As one who had been intimately acquainted with local politics [. . .] Adams knew all about education and tax resistance. In contradiction to enlightened political wisdom, "such is the miserable blindness of mankind," he admitted, that "it is very doubtful whether the pitiful motive of saving the expense would not wholly extinguish public education." Reflecting upon his own reading in political history and his personal experience with democracy in the town and in the legislature, John Adams believed that if "the people in one assembly ruled all," without the leadership of an enlightened upper house, it was unlikely that any people anywhere would be "so generous and intelligent, as to maintain schools and universities at the public expense." Adams feared that the "stinginess, the envy, the malignity of the base and ignorant, would be flattered by the artful and designing, and the education of every family left to its own expense, that the rich only might have their children educated." [. . .] As caustic as his analysis was, with respect to public expenditures, it was remarkably prophetic. Not surprisingly, those who had most real-life experiences with popular government anticipated its limitations. (Brown 1996: 101)

It is, frankly, amazing to me how little discussion there is regarding the necessity of high-level, tax-funded public education for the maintenance of popular government. The anti-tax Republicans (uppercase R) are doing precisely what John Adams saw similar anti-tax folks do in the late eighteenth century. You might say that it's a traditional stance, then, but as Brown documents, being concerned with education in order to produce an "informed citizenry" that will protect popular government is also a traditional concern. In my view, it's a more sensible concern than the mere desire to pay less taxes. Frankly, I have no idea how you can adjudicate between the concerns of property and the concerns of education aside from just prioritizing them. (At that level of abstraction, perhaps there is no adjudication.) The Nevada Supreme Court, the Nevada governor, and a supermajority of the Nevada legislature have made the right choice, in my view. If you're going to criticize their position, at least acknowledge that there is a choice to be made here.

AM I MISSING SOMETHING?

So the Nevada Supreme Court makes a questionable ruling interpreting a provision of the Nevada Constitution when it arguably interferes with other provisions of the Nevada Constitution. See the docs here (via Volokh). It is mostly questionable, to be sure, if you're an anti-tax activist, an advocate of retrenchment in the area of state-funded education and welfare services, a supporter of the referendum method of government, an enthusiast of judicial restraint, or someone who likes to criticize judicial supremacy in general. I fall into the last category but I'm still not sure where I stand with respect to the decision. If you agree with the way that the court has framed the matter -- that the supermajority requirement for tax bills conflicts with the requirement that public education be funded -- then you can stomach the conclusion, that the supermajority requirement must yield and a majority vote on a tax bill is permissible.

One thing that I find interesting in this case is that the majority opinion raises the issue of whether or not constitutions are actually judicially enforceable. Despite the strong judicial supremacy rhetoric (including a citation of Marbury), what the Nevada Supreme Court has done here is allow the Nevada legislature to ignore a section of the Nevada Constitution in order to fulfill the demands of another section of the Nevada Constitution. The question is a bit complex, since the court also ordered the legislature to fulfill its duty to fund education under the sections of the Nevada Constitution that require that legislative function. It's possible that the Nevada Supreme Court would enforce the 2/3 requirement for tax bills under other circumstances, just not in this one, so it's not necessarily the case that this requirement is judicially unenforceable in general. But if the majority members of the legislature had stood up in the state house after passing a tax bill by simple majority vote and said, "let's just ignore the supermajority requirement," and directed the tax collection officers to set about their work, then the shoe would have been on the other foot, and the anti-tax folks would be in the position of going to court to ask for the enforcement of a constituitonal provision. If the Nevada Supreme Court simply refused to enforce that provision, then the state would basically be in the same position that it is in right now with respect to the budget.

What the court has done here is tell the legislature to "proceed expeditiously [. . .] under simple majority rule." The legislature could refuse -- its members could issue a statement of public protest and then pack up and go home. Then we'd have a very interesting situation where the court would have to explore the limits of its own enforcement powers. Of course, the court is probably estimating that a minority of state legislators don't want a tax increase anyways, so the court is actually allying itself with the stronger party in the dispute, perhaps granting them cover for an unpopular decision to raise taxes. The court is also allying itself with education advocates and anti-anti-tax folks; the first is probably smart given the political popularity of education. As for the second, who knows. (I seem to recall an article by Martin Shapiro on the idea that the Supreme Court was seeking out a constituency when it ruled in favor of strong protections for sex equality, and it's that kind of judicial action that I'm thinking about here.)

Eugene Volokh sees this as an incredible case of judicial overreaching; he calls it an "an outrageous violation of the Nevada Constitution," but, contra the Claremont Institute folks, not a federal matter. I agree with him on the second charge. The Claremont Institute is trying to push the claim that the Nevada Supreme Court deprived the citizens of Nevada of a "republican form of government," among other things, and that the federal courts should get involved in this dispute between the Nevada governor, legislature, and Nevada Supreme Court over the meaning of the Nevada Constitution. I think that the Republican Guarantee Clause claim is simply risible: in order to make that claim, Claremont has to reduce the category "republican form of government" to the bare meaning of popular ability to structure its government "as they see fit" (see the memorandum of points and authorities here, pdf file). Most founders would find it nihilistic to reduce the term "republican form of government" to mean simple majority will at the ballot box. I haven't thought about all of the other claims that Claremont raises, but I will say at least this: Timoth Sandefur's argument (via Howard Bashman) that the courts could also enact a 1/2n - 1 rule (less than majority) if they wanted to is theoretically true but not fair to the Nevada Supreme Court's decision in the case, which relied on longstanding constitutional practice for its embrace of the majority rule for tax bills. What Sandefur doesn't mention but the Nevada Supreme Court does, is that for about 130 years, the Nevada Constitution didn't have a supermajority tax bill requirement. Then, when anti-tax advocates learned how to use the state's ballot initiative process in the mid-1990s, they put all sorts of (in my mind silly) things on the ballot, including the supermajority requirement for tax increases. The political arguments in favor of supermajority requirements for tax increases appear increasingly stupid and irresponsible in a time of state budget crunches, homeland security costs, and economic hard times. The successful ballot initiative allows anti-tax advocates to dispense with political defenses of their position and instead opt for the high ground of constitutional argument (as when Sandefur argues that the Nevada Supreme Court's decision "the most cherished principles of American government"). I find the production of constitutional arguments here very interesting, but I don't buy Sandefur's argument. The ballot initiative supporters are making policy decisions in a process that is acknowledged by fair-minded observers to be minoritarian and manipulable by the well-heeled, and their complaints should fall on deaf ears -- especially in federal court.

One more thing: I am actually aghast at the Claremont Institute for supporting this suit. I thought that these folks had a due regard for Lincoln's admonitions that the laws should be venerated (see his 1838 speech here). A constitutional amendment process by citizen initiative, at least as currently practiced out west, is hardly designed to encourage veneration of the laws. Defending the outcome of that process by bringing suit in federal court is an act of betrayal of the true republican heritage. I'm not saying that I agree with Lincoln, but I am saying that this should be a tougher call for the folks at Claremont than it apparently is. Support for conservative anti-tax and retrenchment policies, plus criticisms of judicial activism, have trumped attachment to the sober pieties of republican lawmaking. At least it's clear where Claremont stands.

MORE: For more on Guinn v. Nevada State Legislature, see Lawrence Solum's list of resources here. Daniel Weintraub tempts California legislators to ask the California Supreme Court to get them out of their budget mess, and Sandefur has a blog (apparently) in which he defends Claremont's approach here. See the posts here and here. All the fustigating about "rigid adherence to the fundamental law" ignores the disruptive effects of the contemporary referendum process as a means of crafting constitutional law, it seems to me.

MORE: (The second link on Sandefur's blog is a bit oblique, but I think that you can get what I'm hinting at. If not, don't worry: perhaps I'm off base.) See also David Bernstein's post here, where he simply ignores the fact that there is political pressure from the governor and a supermajority of Nevada legislators to raise taxes and fund education. It even looks like the legislators who voted for the tax increase in the first place also voted for the increase after the Nevada Supreme Court ruling, so there wasn't a "judicial overhang" in the first vote (I could be wrong on that, but if so only in the case of a few votes).

MORE: The Curmudgeonly Clerk is persuaded by Sandefur's dismal picture of Guinn as one stop on the road to judicial tyranny, because the Nevada Supreme Court picked substantive rights over "procedure." Given that the court saw this case as a conflict between two constitutional provisions (not between two something-or-others) and chose one, it seems to me that the court, at least, would see this question as a very narrow, special question regarding conflicting demands of the Nevada Constitution. Sandefur raises the (lawyerly) question of what the boundaries of the weakness of procedural rules are, in the eyes of the Nevada Supreme Court. He should at least look at what the court takes to be its own account of those boundaries.

HUBRIS

So Tom Delay wants to teach students about the Constitution. Sounds like a great idea to me, even if the text-bound approach that he employs doesn't strike me as complete; the Reconstruction Amendments don't get a lot of play, for example. As far as I can tell, the approach is clearly within what Sanford Levinson called the "protestant" approach to constitutional interpretation, namely, that the text is important and accessible independent of practices and traditions of intepretation that have grown up around the document. (Levinson contrasts the "protestant" approach to a "catholic" approach that is attentive to the ways that traditions shape text. See his Constitutional Faith.)

There are two things that are quite interesting about Delay's web site, though. The first is the suggested reading list, which so far includes The Courage of Their Convictions by Peter Irons and American Heroes by Nat Hentoff. I don't know the Hentoff book, but I doubt that Delay has read Irons, because if he had, I doubt that he would agree with the heroic portrayal of Hardwick (and the fact that Irons gives him a chance to speak in his own voice). That's Hardwick as in Bowers v. Hardwick, the sodomy law case that the Supreme Court recently overturned. Irons's portrayal of San Antonio v. Rodriguez, an unsuccessful challenge to inequities in school financing in Texas, probably wouldn't sit well with Delay, either, even though Delay probably likes the result.

Maybe Delay is trying to signal that he is broadening his horizons, however.

As soon as you have that thought, go to this page, titled "Other Great Documents of Freedom." There, at the bottom of the page, after Magna Charta, the Declaration of Independence, and the Bill of Rights, you'll find. . .THE CONTRACT WITH AMERICA.

Yes, folks. The Republican takeover of Congress in 1994: another great moment in the story of human freedom.

Absolutely brilliant.

Delay doesn't give a scorecard on the Contract's legislative successes and failures, however. Here's an outdated one from PBS, though. Apparently Delay's approach to the Contract is "protestant" as well: it's the text that matters, not what actually happened as a result of the text.

NOTE: Grammar and spelling edited, post-publication.

CAL RECALL

You can't have it both ways. CA recall partisans have argued at times that Governor Davis was not a responsible governor because he wasn't willing to make tough choices -- he was too concerned about his political capital and his poll ratings.

So the response to that problem is a procedure that is likely to produce even more of what Anthony King calls hyper-responsiveness to the will of the electorate (or that politically attentive portion of it that wants Davis gone)?

Lots of arguments are made in favor of the recall, and I'm not saying that Davis's poll watching is the strongest one in the eyes of his opponents. The argument is still grating, though, at least if you care about some kind of internal consistency in people's arguments.

NOTES

Kikuchiyo News responded to my earlier criticism here. It's a kind response.

CASE NOT CLOSED

The British are now defending their intelligence claims that Saddam Hussein did seek nuclear material from Africa, and apparently even from Niger, but that for a variety of reasons they did not share the additional evidence with the U.S. Read the Guardian article, "Straw Defends Iraq Uranium Claim." The Sueddeutsche also picks up on this story here, and N-TV does as well, here.

This approach by the Blair government is consistent with the somewhat baffling claim by Rice and others that the claim shouldn't have made it into the State of the Union speech but is nonetheless not untrue. (I wish "not untrue" was a direct quote but I don't think it is.)

I have to admit that I don't quite understand why the administration doesn't just defend the claim straight up instead of conceding that it shouldn't have been in the speech. Now they just look like they're in damage control mode when, according to their own arguments, they don't in fact need to do any damage control. I don't quite get what's going on here. A few times throughout the previous week, the administration picked up on the language of whether or not the claims "rose to the level" of what's required for a SOTU. This strange echo of the language of the Clinton impeachment debates might give a clue as to the context within which the administration is thinking about these issues. But that's weird, since, according to their own arguments, there's really nothing to be concerned with here.

At any rate, by blaming Tenet the administration plays to one of the worries of Bush's opponents: that Bush is not focused enough on the details of policy himself, either because of temperament or ability.

For a list of press reports and editorials on the issue, go to Sisyphus Shrugged's post, here. See also Dawn's recent articles here and here. And see the Frankfurter Allgemeine's comparison of Bush with FDR, here. According to FAZ, in an article here, the British government named the Italian and French intelligence services as sources for their Africa stories, but the Italians have disputed the claim.

MORE: I added the links missing links to Dawn.

MORE: Isn't it convenient for Bush II that he is the first President after the demise of the Independent Counsel statute? Haven't seen a lot of commentary on that fact recently. The demise of the statute is pretty important because it means that congressional committees and courts will have to pick up the slack left by the end of a regime for investigations of official misconduct, if indeed there is any such slack. A case can be made that the statute led to an unfortunate criminalization of politics and that the high-profile failures of the statute (in the manner of Rep attacks on the Clinton administration) were not offset by corresponding successes. At least that seems to have been the judgment of members of Congress who didn't renew the statute.

It's also possible that the statute relieved Congress of time-consuming and unpleasant oversight responsibilities while giving partisans in Congress a weapon with which to go after their political opponents. You can imagine that there would be pressures to appoint an independent counsel to investigate the use of intelligence in the run-up to the Iraq war; probably some members of Congress would have liked the option of an appointment since it could give them an opportunity to fob the question off to someone else while still taking credit for acting tough. Others would cry "partisan games" and block the appointment, to be sure, but it might be hard to resist if there was a certain critical mass of public opinion in favor of an investigation.

Alas, it is not to be. Instead we'll have to just pressure Congress to do what it should be doing already, namely, keeping the executive branch honest in areas where Congress and the Executive have shared responsibilites. (And thanks to Henry at Crooked Timber for the link to my letter to Congressman McHugh.)

A CROSS-CULTURAL EXPERIENCE

In German and hilarious. If you want to brush up on your German, on your knowledge of German politics (or should I say, "knowledge") and put to use those thousands of hours of video game skills that you acquired instead of learning how to hit a breaking ball, go here.