PENGUINS

Compare this (especially the avian metaphor) with this.

Coincidence?

MORE (2/9): (That was supposed to be a humorous "hmmmm" moment, BTW.)

HUH?

Perhaps Randy Barnett can explain precisely what he thought was interesting about this silly little piece by Jonah Goldberg. Boiled down to a simple argument, Goldberg argues that Democrats should stop saying that we are a "deeply divided nation" and that Dems have the policies to heal the divide. No, in case you're wondering, Goldberg most assuredly does not dwell on the fact that this kind of appeal is precisely what lulled many Americans to vote for Bush last time around. As I've said before, I am bitter about this, not because I voted for Bush, but because I actually believed that he would be a "uniter, not a divider." My own fault, perhaps, but at the very least it has led me a) to a greater appreciation of the significance of party as a governing institution, b) to a greater appreciation for the public's lack of appreciation for the role of party (see Hibbing and Theiss-Morse on "Stealth Democracy)," and c) to a greater appreciation of the appeal of non-partisanship, which is essentially meaningless in the current electoral climate, but which may hold electoral attraction for some centrist voters nonetheless.

Basically, Goldberg writes a little less than 2000 words to tell us that there was a civil war a while back, that divisions among rich and poor are a natural part of politics ("sown in the nature of man," perhaps?), that Democrats want to win at the polls, and -- hinting darkly -- that the New Deal was fascistic in focusing on common purposes pursued by government. I'm beginning to think that Goldberg has such an attraction to the "you can't criticize X since you approve of Y" line of argument because, secretly, he sees it as the main vulnerability in his own arguments, but by virtue of his role as an ideological hamster for NRO, he can't get off the wheel and make it stop spinning. I mean, for the sake of God and all that is right in the world, DEMOCRATS should stop talking about being uniters, not dividers? Democrats should stop talking about common purposes of government (in the middle of the war on terror)? And, perhaps more subtly, Democrats should stop appealing to their constituency by flattering them that their interests are actually the general interest? (Consider the "rising tide lifts all boats" argument in favor of tax cuts for the wealthy.) As a move in an elaborate but predictable partisan game, well, fine, but as a description of what people should or should not be saying, this is really, really shallow.

MORE (2/9): So far I've seen three links to this story (Michael at Southern Appeal, Ed Driscoll, and Randy Barnett's link, seeabove); a shortened version of the piece also appeared in the Washington Times. No one is particularly interested in evaluating Goldberg's substantive response to Kerry, Edwards and Dean, which is not surprising I guess. I am trying really hard to resist the (morally corrupting) habit of calling foul -- as in, "wait, Bush gave a reprise of the 'uniter not a divider' line just this past weekend and Goldberg didn't care, so he clearly is just out to pick on Democrats." Telling people what to say is fundamentally imperious. Plus, I mean, who really cares whether or not Goldberg levels the same charge against Bush? Again, in ideological commentary, the main point, the first premise, is harm your enemies and help your friends. If the facts get in the way, ignore them or explain them away. I'm fine with that, I suppose, although it does give me heartburn on occasion.

The interesting points here are why a "uniter" line appeals to voters in the first place. Perhaps the kind of hard-nosed reference to the inevitability of social conflict over economic issues is not appealing to voters because people do really want to believe in common purposes. A belief in common purposes probably helps to fulfill deep-seated human needs to believe in the impartiality and fairness of authority, which, at the end of the day, help to cement bonds of trust. Decrying divisiveness is a way of appealing to deep-seated human fears of being taken for a sucker. I don't see anything surprising in any of that. In fact, it's so unsurprising that all of the candidates do it at least some of the time. Some, like Bush and Edwards, have built campaigns around these ideas. Fair enough.

MZOUDI

Thomas Nephew has a good round up of coverage of the Mzoudi trial in Germany, here.

MORE SUSKIND FILES

Perhaps no one else will be surprised by this, but as someone who has never had talking points written up for me and otherwise never participated in any kind of communications plan, I find this document absolutely fascinating. Note in particular how similar the arguments for tax cuts in February 2001 are to the arguments for tax cuts in February 2004. [Hint: they're mostly the same. Still. . .] It's hard to imagine any more complete disassociation of tax policy and fiscal policy than that advanced by this administration: tax cuts because we have a surplus (then), tax cuts because we have a deficit (now) -- at all costs tax cuts. Also, note the dodge in the first item under likely questions, where the likely questioner asks which programs are to be cut, and O'Neill's scripted non-response is supposed to remain vague and refer to "duplication." I heard someone on the Diane Rehm show take pretty much the same tack today. Now that's an all-purpose communication plan for you, I'll tell you what.

BUSTIN' OUT THE FREON

Wow. Via Kevin Drum, I found [found?? sorry] this site where Ron Suskind (buy that guy a beer!) has been uploading the files he got from Paul O'Neill. Extremely cool.

Sample of this collection's coolness: this letter from Chuck Hegel's office (2/26/2001). The letter starts with six pages of facts and myths on global climate change. Check out this claim:

Health Impacts:

CONTENTION: Future warming will cause serious health affects [sic] by increasing the spread of tropical diseases.

EVIDENCE: Scientific epidemiological studies show that climate has a minimal impact on the rates of disease transmission and human death. The statistically significant factors are the level of economic development, infrastructure, access to health care and potable water, and availability of air conditioning.

I've omitted citations to a few sources, and I haven't checked those sources. Still, about that "availability of air conditioning" part: so global warming won't be a problem as far as diseases are concerned if everyone just has air conditioning. Brilliant. I'm not sure why Carrier Corporation is downsizing. (Seriously, though, how much correlation do you think there is between availability of air conditioning and the other factors mentioned in the section, namely, economic developement and infrastructure?)

I'll bet there are a bunch of folks who are mutilating their Paul O'Neill voodoo dolls as we speak.

Aside from the (shocking?) comic value of these documents, thanks to O'Neill and Suskind for giving us an inside look at how high-level government offices operate -- and at how this administration and its allies have operated.

YEAH, BUT IS IT ALSO "PROPER"?

What does the word "proper" mean in the Necessary and Proper clause? In his recent book, Randy Barnett argues that the Necessary and Proper clause establishes judicially enforceable limits on congressional power. In his argument, the word "proper" here carries a lot of weight. See 184-9, where he searches for the meaning of the term, and the entirety of chapter 11, titled "The Proper Scope of Federal Power: The Meaning of the Commerce Clause." At the beginning of chapter 11 we read:

The Necessary and Proper Clause commands that all laws passed by Congress shall be proper. When a government restriction of liberty is challenged by an affected citizen, a Presumption of Liberty means that the citizen wins, unless the government can justify its restrictions as proper. A "proper" exercise of power is one that is within the jurisdiction of the branch or department in question and that does not violate the rights retained by the people. (274)

(As a side note: the uninitiated might not realize how big a game animal Barnett has in his sights, but suffice it to say that Barnett's position would probably lead him to condemn much of congressional activity throughout U.S. history as unconstitutional and would probably lead him to recommend that the courts begin to invalidate whole chapters of the statute book. Most current congressional regulation in commercial matters would probably fail Barnett's test for constitutionality, as would the 1960s-era civil rights laws that were based on congressional powers to regulate interstate commerce; he may have an alternate reason for agreeing with these civil rights laws, but in the absence of congressional disavowal of the Commerce Clause basis for them, Barnett's position requires that the courts strike them down. The general form of the book's argument -- that constitutional law can only be legitimate if it is fundamentally different from the form it takes today -- is a feature of libertarian thought that in itself needs to be taken seriously, but I'll try to say more about that later.)

It's not clear to me at all that the word "proper" should carry that much weight, however. George Washington asked his first attorney general, Edmund Randolph -- present at the Constitutional Convention but not a signer of the document, because he feared that the government it created was "the foetus of a monarchy" -- whether it was his considered opinion that the Constitution allowed Congress to charter a national bank. He thought it didn't, but what is interesting about Randolph's argument is that he also hinted that the word "proper" in the phrase "necessary and proper" didn't have a separate meaning:

The phrase, "and proper," if it has any meaning, does not enlarge the power of Congress, but rather restricts them. For no power is to be assumed under the general clause, but such as is not only necessary but proper, or perhaps expedient also. But as the friends to the [bank] bill ought not to claim any advantage from this clause, so ought not the enemies to it; to quote the clause as having a restricting effect; both ought to consider it among the surplusage which as often proceeds from inattention as caution. (from Brest, Levinson, Balkin, Amar, Processes of Constitutional Decisionmaking, p.12; emphasis added)

Students always find this passage quite stunning, and they should, coming as it does from a member of the Constitutional Convention and the first Attorney General. Barnett cites Randolph approvingly in several passages in the book; he even refers directly to the letter from Randolph from which the above passage was drawn. As far as I can tell, however, Randolph's suggestion that the word "proper" is essentially meaningless does not draw Barnett's attention, nor, as far as I can tell, does it draw the attention of Gary Lawson and Patricia Granger, whose 1993 article "The 'proper' scope of federal power: a jurisdictional approach to the sweeping clause" in the Duke Law Journal (43 Duke L.J. 267) Barnett relies on in his argument as well.

Perhaps Randolph was suffering from massive cognitive dissonance. Earlier in his book, Barnett quotes approvingly from another of Randolph's opinions as Attorney General, in which Randolph argues that the records of the constitutional convention are not decisive in determining what the meaning of any given clause might be. Instead, Barnett takes Randolph to mean, what is critical is the "original public meaning" of the phrase in question (93-4). To the extent that Randolph is arguing that inattention in the drafting of the document has any significance, he would seem to be conflicting with his general views on constitutional interpretation as understood by Barnett.

Unless, of course, the "original public meaning" of the word "proper" is that it was a kind of formality, a rhetorical flourish, of no more structural significance than a raking cornice. Given Barnett's constant references to the need to take "the text" seriously, I suppose that it's understandable that Randolph's subversive suggestion didn't make it into Barnett's argument, but I would like to see him grapple with this problem nontheless. It seems to me that the problem is quite fundamental. If even the language in the Constitution can have rhetorical significance that might reasonably be said to crowd out any reference or command, then constitutional interpretation itself needs to be looked at in a much more pragmatic, multifaceted way than Barnett seems interested in advancing. I'm fine with that, but in order to cover the revolutionary potential of his approach, Barnett needs to clothe the argument in the comforting garb of constitutional originalism, interpretive authenticity, a reference to our *Founding Document*. Over at Southern Appeal, the word is "fiction," and I'm inclined to agree as a preliminary matter. This is not to say that the book isn't good, of course. I'm definitely enjoying my time with it.

NOTE: Minor grammatical corrections made above.

THOMAS WEST ON SPEECH

In a recent article reprinted on Claremont's web site, Thomas West argues that "our speech today is much less free than it was in the early republic," and cites three areas of law that create what he perceives to be our current condition of relative unfreedom: campaign finance law, FCC broadcast licensing, and sexual harassment law. [Just harassment law in general, actually.] He then argues that the regulation of speech under the framers was bounded by three important principles (actually, four): the principle of punishing "clearly injurious speech" only, the rejection of prior restraint, and the requirement that advance notice (through the criminal law) and a jury trial be used in any punishment of speech. The fourth principle was that obscenity could be banned because it interfered with the proper approach to sexuality (must be tied to the family and procreation). According to West, liberals have "rejected" the free speech regime of the founders because it promotes inequality and because it was too restrictive of sexual behavior, but this rejection is unwise and should be reversed.

I like these kinds of arguments in general even when I don't agree with them, in the following sense: constitutional norms are part of an ongoing civic dialogue, and this dialogue should at times strive for simplicity (and will often tend, as Bruce Ackerman has argued, toward the cultural jeremiad). West raises an important question: how can one compare degrees of "freedom" across time? West's argument here is quite subtle, in one sense: freedom can only be understood in the context of an account of human goods and their relationship to the political order. He doesn't say so explicitly, but he is invoking the founding-era distinction between liberty and license. Stated sympathetically, the basic claim here is has two elements, as far as I can tell. First, engaging in "injurious speech" can never be an act of liberty, it can only be an act of license, so restrictions on what can credibly be labeled as injurious speech cannot be restrictions of liberty. Yet restrictions on noninjurious speech in the guise of restrictions on injurious speech are in fact restrictions on liberty (and liberal law professors like Cass Sunstein are prone to this error, according to West; he quotes Sunstein thus: "Left unregulated, the modern media could present serious threats to democracy."). So there must be an authoritative and relatively noncontroversial account of what is "injurious" in order for restrictions on speech to hit the right mark and only limit speech that is truly injurious. "Liberals" err in their account of injury.

Second, the distinction between liberty and license that West alludes to, stated sympathetically, is geared toward the fulfillment of human goods, including, ultimately, the human good of self-rule. The reason why pornography is licentious, on this view, is that there are uncontroversial human goods called procreation and the family; an inability to restrain one's passions in pursuit of these goods will lead to an inability to govern oneself effectively. West is unclear on the extent to which these goods are a matter of concern primarily to the political community as opposed to the individual, but in either case, the good of procreation and the family provides the criterium for distinguishing between speech that can be criminalized because it is licentious and speech that should be permitted because it is an exercise of liberty. "Liberals" want to cast off these wholesome restraints on sexuality and allow everyone to act as they please. Again, this approach puts self-government at risk, according to West:

The Founders would have replied that we are precisely not free to define our own concept of existence and meaning. God and nature have established the "laws of nature and of nature's God," which have already defined it for us. Human beings, Jefferson wrote, are "inherently independent of all but moral law." If men defy that law, they are not free. They are slaves, at first to their own passions, eventually to political tyranny. For men who cannot govern their own passions cannot sustain a democratic government.

There is a lot here, of course. I'm not sure that West is fair in his cursory dismissal of any indication that the modern broadcast media might be different than the print media of old. I suppose that if he were to continue the argument by saying that we need to roll back mass politics and return to the indirect forms of political representation that prevailed during the early Republic, then the distinction between the modern mass media and the print media of old is of no account. West doesn't make such an argument here, though, so in its absence, I am forced to conclude that West thinks that no characteristic of modern politics -- the extreme responsiveness of politicians to public opinion, the mobilization of interest groups, the price of mass political communication, and the consequent influence of both the media themselves and those who provide the cash for access to it -- none of these characteristics gives rise to any serious argument in favor of the propriety and permissibility of federal regulatory power, either in the area of campaign finance reform narrowly, or in the area of the broadcast media more broadly.

For West, attempts to regulate the broadcast media are old wine in new bottles, namely, tyranny in the guise of administrative authority. [Bad metaphor in a sense: new wine bursts old wine skins, and this metaphor is used in the gospels to indicate the need for a fundamental transformation in order to attain salvation. Not quite what I was getting at, but you get my point, I hope.] And it's clear to West which party wants to use these powers: the Democrats. West darkly warns that if and when the Democrats retain control of the White House, the FCC will be used to silence political opponents. He also infers from Democratic support of campaign finance reform that the bill was designed to "make[] it harder for citizens to criticize liberal politicians when they disagree with their policy views." Under the pretense of taking account of the relationship between the modern media and modern politics, then, Democrats have already forged the tools that will facilitate political oppression once they regain power.

According to West, Democrats have pulled off an amazing stunt with respect to campaign finance reform legislation: they have passed a law that will serve to silence their political opponents -- and no one on the Supreme Court seemed to notice! Republican nominees O'Connor and Kennedy missed it. Ginsburg, Stevens, Breyer and Souter missed it (perhaps they're in on the conspiracy?) Rehnquist missed it. And, amazingly: both Scalia and Thomas missed it. This, despite the fact that Scalia's dissenting opinion in the BCRA case (here) produced the very quotes from Democratic lawmakers that West uses to justify his conclusion about Democratic motivations. Contra both West and Scalia (who sees BCRA as a means of incumbent protection, the benefits of which are neutral across parties), there is a more believable story about campaign finance reform that involves not Democratic intentions to silence conservative critics (and, the flip side, conservative Republican unwillingness to acquiesce in such silencing), but genuine concerns about the relationship between ad financing, the appearance of corruption, and the fact that lawmakers spend too much time fundraising and too little time legislating. Once again I recommend Anthony King's Running Scared to any of those who are interested in that argument. Whether BCRA will actually help to alleviate these problems is, of course, another story.

Two more fundamental flaws pervade West's argument, however. Probably the most famous attempt to silence political opponents through speech restrictions occured not in the 20th century, but way back in the 18th. The Sedition Act of 1798 was passed by Federalists, members of the founding generation, far away indeed from the lures of permissive Millian liberalism. In fact, they framed their views in the precise language that West recommends. The Act targets categories of injurious speech, including "false, scandalous and malicious writing" aimed at bringing the government into disrepute or stirring up sedition. The problem that this Act poses for West is that here are the Founders in action, on both sides of a debate about what is now called "core political speech." It is too easy to dismiss the Federalists as mere tyrants. Anti-sedition laws raise a series of profond questions left entirely unaddressed by West's account precisely because such laws involved a central ambiguity in the free speech understandings of the founding generation. Isn't seditious speech by its very nature "injurious"? Why aren't the safeguards of sufficient notice and jury trials enough to counter concerns about government overreaching? West's account is surprising because he is more interested in pornography than sedition, even though sedition laws would seem to be the central example of a stifling of political criticism, supported by significant numbers of the framers -- not to mention myriad courts at the state and federal level well into the twentieth century. Even though the categories of the seditious and the obscene often overlapped in the case law (think of the Masses litigation, for example) I'm even willing to give West restrictions on obscenity if he's willing to give me the permissive political speech regime that is the heritage of the late twentieth, not the eighteenth, century.

On that point, the final major problem with West's account is that he ignores the knotty problem of state-level restrictions of political speech in the founding era. At least as important with respect to the question of whether or not we are "more free" in matters of speech now or in 1787 would bethe question of the relationship between the free speech notions he finds in the federal constitution and the on-the-ground reality in state and local courtrooms. I don't know much about state- and local-level restrictions of speech, but in terms of actual freedom (however measured), I would guess that it mattered more what folks in Boston, Hartford or Annapolis said about restrictions on speech than whatever ideals may have been applied with respect to constitutional restrictions on congressional power. According to Norman Rosenberg, state-level criminal libel prosecutions for political reasons were part of the publishing landscape in the founding and antebellum period. (see Protecting the Best Men, Chapter 5) Did state legislators and judges misunderstand the natural rights-based free speech regime expressed in the federal constitution? At the very least, criminal libel and sedition prosecutions -- and their absence in the twentieth century -- would have to be part of any comparison of freedom now and in the fouding era. West's version of founding era principles does not clearly point in the direction of a rejection of such prosecutions.

Give me the twenty-first century any day!

MORE (2/5): Added a few notes above to clarify some points. NPR this morning (audio file available here) reported that BCRA has been "hardest on Democrats," which is why they are turning to things like party-linked credit cards. So, if West's account of Democratic motivations with BCRA is correct, then they are the either phenomenally stupid -- by supporting a law that actually hurts their chances at regaining power -- or unbelievably crafty -- reckoning that they can better use the allegedly oppressive characteristics of the bill once they do, in fact, retain power. On that level alone I don't buy the [West's] story.

RANDY BARNETT

Reading Randy Barnett's Restoring the Lost Constitution and hoping to have something semi-intelligent to say about it before too long. If I could have my constitutional-theory-death-match wish and Randy Barnett were one of the participants, I'd like his opponent to be Tulane's Stephen Griffin, author of this book, or, perhaps, Grinnell's Ira Strauber, author of this book. Both Griffin and Strauber attempt to situate the practice of constitutional theory itself in the context of ongoing civic contestation over constitutional meaning, something that Barnett is relatively reluctant to do, it seems to me. Instead, he pitches his project as one of straightforward restoration, albeit restoration of a particular kind, namely, restoration of the correct kind of advice for the judiciary. Both Griffin and Strauber are skeptical about the value of such advice. More later, though. . .

MORE SCHALLER

If you missed it, take a look at Tom Schaller on C-Span's Washington Journal from Saturday (here), defending his argument that the Democrats should forget about the south and concentrate on the "new swing region" of the southwest. I would be most persuaded of the wisdom of this strategy if the Democratic nominee didn't make an official, public announcement that he was, in fact, writing off the south as unwinnable (not that anyone is counseling the Dem candidate to do that, and not that they would). Take a look also at Ruy Teixeira and Cliff Schechter's argument that a "non-southern strategy" is almost assured because of basic "electoral arithmetic."

DIAGNOSING DEAN

Tom Schaller has a good piece today in slate called "Dean's Dizzying Descent." He brings three charges against both Trippi and Dean (but you'll have to read the article to get them). Here's a taste, though, on Dean:

Dean's third major error was to continue emphasizing his antiwar position above all his other positions. Dean deserves credit for showing the courage to criticize President George W. Bush about Iraq when others were too timid to do so. Though many Democrats eventually arrived at the same conclusions as Dean about the war, polls from autumn 2002 indicate that many Democrats did not start where Dean started. Put another way, the evolving views of many Democrats on the Iraq issue more closely mirror the political journey of Kerry or Edwards.

TWO WMD-RELATED ARGUMENTS FOR WAR

Ran across this paragraph in a NYT op-ed written by Richard Perle, 12/28/2001:

With each passing day, [Saddam Hussein] comes closer to his dream of a nuclear arsenal. We know he has a clandestine program, spread over many hidden sites, to enrich Iraqi natural uranium to weapons grade. We know he has the designs and the technical staff to fabricate nuclear weapons once he obtains the material. And intelligence sources know he is in the market, with plenty of money, for both weapons material and components as well as finished nuclear weapons. How close is he? We do not know. Two years, three years, tomorrow even? We simply do not know, and any intelligence estimate that would cause us to relax would be about as useful as the ones that missed his nuclear program in the early 1990's or failed to predict the Indian nuclear test in 1998 or to gain even a hint of the Sept. 11 attack. (emphasis added)

There were two WMD-related cases for war and only one of them relies on intelligence estimates. First is the standard argument among folks who are worried about reigning in the possibilities of "preemption," and it goes like this: if we're going to have a declared policy of preemption, we need to have good intelligence. Otherwise, we will wage war in cases where the threat does not justify an invasion and incur emnity and mistrust.

Then there's the second case for war, outlined in Perle's argument above. I like the term "categorical" for this approach: any state that fits into the category of "rogue state" is a possible target for preemption, because the risk is too great that such states may possess WMDs and either use them or transfer them to terrorists. The case is "categorical" partly because it doesn't require additional information in order for war to be an option. A state goes in the "rogue" box and right away war is on the table, probably even preferable.

Folks who pushed the first argument want reliable intelligence estimates in order to be able to avoid invasions when they are not necessary. They should also be concerned about the process by which intelligence is communicated to the White House and then used in the service of policy.

Folks who pushed the second argument don't need neutral intelligence services at all. Whether Iraq actually has WMD's is, according to this argument, irrelevant; it's enough that Iraq was what it was, a state in the "rogue" category. Again, as Perle noted in December 2001, intelligence estimates may need to be ignored in order to see the larger, more dangerous picture. Note that this second argument implies a standing criticism of intelligence estimates: they will always be wrong if they distract from the bigger picture, so there will always be reasons to discount intelligence agencies and attempt to weaken -- or, perhaps, transcend -- their influence. This also means that criticisms of the intelligence agencies from the hard-line preemption crowd should be viewed as the intellectual equivalent of a yellow card: hold up the card when intelligence is spoken of, we know what the message is, duly noted.

I'LL TRADE YOU "EVOLUTION" FOR THE CIVIL WAR

Nathan Newman points to this AJC op-ed by high school teacher Joseph Jarrell on Georgia's proposed curriculum changes. While the elimination of the word "evolution" from the science curriculum has gotten most of the attention (at least in the media I consume regularly), to me the most startling part of the proposed high school history curriculum is that the Civil War and Reconstruction are left out entirely:

The present 11th-grade U.S. history course covers the Exploration period to today. In the proposed changes, teachers will spend two or three weeks discussing the foundation of our country, with the remaining time devoted to studying events from 1876 to the present. Gone is any mention of the Louisiana Purchase or Lewis and Clark. There will be no discussion of Indian removal and the Trail of Tears.

Students probably will not be remembering the Alamo; it won't be a topic of discussion in Georgia's high schools. Daniel Webster and Henry Clay will be omitted, as well as Harriet Tubman, Frederick Douglass and the Underground Railroad.

Search in vain for discussion of the Civil War; that topic is off limits. In a course entitled "American History," students will not study our most devastating war. There is no mention of Fort Sumter, Abraham Lincoln, Robert E. Lee or anything else associated with those years.

This of course means no discussion of the failed promises of reconstruction, the court's evisceration of the 14th Amendment as a protection for African-Americans, the legal foundations of either slavery or segregation, or the relationship between constitutional government and civil war. This is not to say that the status quo is all that great on these issues, either, as Jarrell notes. Still, it's hard not to see the curriculum changes as embracing a false view of American constitutional development: Fouding. . .blip. . .twentieth century.

If you really have to, leave the word "evolution" out, but please don't skip constitutional evolution.

PRESIDENTIAL ELECTION WEB SITE

This should be good: Rick Hasen calls attention to a site at LMU LA dedicated to the Presidential election contest, here. Prof. Hasen also has some thoughts on the election law landscape as November moves closer, here. Hasen argues that Bush v. Gore made court involvement in challenges of election technology less likely, but that the withdrawal or death of a candidate could produce interesting legal action.

DOING IT "OUR WAY"?

(With apologies to Paul Anka.) Canadian Prime Minister Paul Martin's throne speech glossed over one of his most controversial proposals: public parliamentary hearings on Supreme Court nominees. Martin first mentioned the idea of giving parliament a chance to vet nominees in October of 2002 (see the Globe and Mail's article here). The Toronto Star's editorial page thinks that such hearings would be an unwise americanization of the nominations process. Currently, the Prime Minister selects judges to sit on the high court.

Is Martin's plan a good idea? Like any institutional change, it is likely to have rippling effects that are unforseeable. Critics of the plan argue that the Canadian judiciary's reputation as an impartial body would be harmed by open, public dialogue about the views of judges on controversial topics of the day -- the predictable result of political scrutiny at the crossroads of deeply divisive cultural and political issues like gay marriage. Perhaps. I don't know about public opinion data on Canadian views about their high court, but if it is anything like American public opinion data, the court probably has a great deal of room to enter into controversial issues and still retain a reserve of latent public support. That said, I suppose that the novelty of the proposed vetting process could itself increase the salience of the court; although it's difficult to compare across political systems, a new forum could in fact be more effective at politicizing the Canadian judiciary than the continuance of the public forum in the U.S., because more people might tune in and pay attention.

DAVID SIEMERS

Just before break, Choice sent me a copy of The Antifederalists: Men of Great Faith and Forebearance by David Siemers. My review was positive. If you're looking for a somewhat unconventional selection of antifederalist writings -- with a heavy emphasis on placing the antifederalists in both chronological and political contexts -- this collection might be for you. I say "unconventional" because Siemers includes -- sensibly, in my view -- selections from the notes on the Philadelphia convention and from the state ratifying conventions as well as the more traditional selections from the vigorous newspaper / pamphlet writings. This should allow students to trace antifederalist arguments from the beginning, as it were.

One thing that I particularly like about his collection is that Siemers attempts to give students a flavor of the wide variety of rhetorical practices that antifederalists used: he includes a few satirical and spurious pieces, for example. That's pretty cool. Unlike Storing, for example, Siemers does not seem to have been looking for the most theoretically rigorous articulations of antifederalist arguments, but his approach should allow students to get a good typology of the arguments that were actually presented and more or less widely disseminated at the time. And the collection is not only useful for students narrowly understood: I certainly learned a great deal about the progess of and divisions within antifederalist argument, and I spent only a short amount of time with the book.

UNIMPRESSED

Huh?. Didn't hear a lot of complaints from NRO on the armies of Catholic school kids who were definitely "rewarded" for attending anti-Roe v. Wade rallies last month. But it's clear that NRO bile bubbleth leftward only. Jeesh.

AJPS GOODIES

The AJPS has three important articles this quarter for students of law and courts.

• In "Civil Liberties vs. Security: Public Opinion in the Context of the Terrorist Attacks on America," Darren Davis and Brian Silver (both at Michigan State) ask "[h]ow much are American citizens willing to sacrifice to make themselves feel safe from the threat of terrorism?" (29). The authors attempt to answer this question using a "national survey conducted shortly after the September 11, 2001 attack on America." Their basic findings are that "in the face of a terrorist threat both liberals and conservatives endorse granting greater authority to the state," and "regardless of race or ethnicity people are more willling to exchange civil liberties for security if they are more afraid of a terrorist attack" (43). Individuals who express more trust in the federal government are more likely to express willingness to give up civil liberties, but "at every level of trust in the federal government, increased sense of threat leads to a greater willingness to concede some civil liberties in favor of security and order." At the very least, these results show that civil liberties advocates have a tough road ahead of them in the immediate aftermath of terrorist attacks, but I suspect that no research is needed to confirm that fact. In addition -- and the authors do mention this briefly -- the research shows how significant the media can be in situations like that after the attacks of 9/11/2001. Constant reminder of the attack, like constant portrayal of acts of violent crime, may serve to heighten the public's estimation of the terrorist threat and may increase public willingness to trade civil liberties for security. One interesting question would be the extent to which judges are similarly affected by their perception of terrorist threats. A recent 9th Circuit case, Cheema vs. INS, provides one example where the estimation of the threat influenced the votes of the individual judges, or at least influenced the way that they justified their votes. See my post on the case here.


• In "Comparing Attitudinal and Strategic Accounts of Dissenting Behavior on the U.S. Courts of Appeals," Virginia Hettinger (UConn), Stefanie Lindquist (UGA), and Wendy Martinek (Binghamton) develop a model of strategic dissenting behavior on three-judge courts of appeals panels and ask whether judges actually engage in such behavior. They argue that their analysis of cases from 1970 to 1988 fails to provide evidence of strategic dissenting behavior; judges are more likely to dissent when their ideology differs from that of the majority opinion writer, and minority judges are more likely to dissent than whites, but judges are not more likely to dissent (or refrain from dissenting) in order to send strategic signals (or non-signals, as it were) to the full circuit. The research is impressive -- and the models of strategic dissenting behavior should prove useful to future researchers -- but it is no accident that Epstein and Knight developed their account of strategic decisionmaking on the U.S. Supreme Court using in-depth case studies rather than large-scale mathematical analyses. Much depends on the characteristics of the cases and personalities involved, and, as the authors concede, some important differences in cases might be masked by the data they use (135).


• On the face of it, these are the only two articles that have any direct connection to the study of law and courts, but I would nominate a third article for consideration, John Hibbing (Nebraska) and John Alford's (Rice) "Accepting Authoritative Decisions: Humans as Wary Cooperators." The article is a fascinating attempt to employ a low-stakes "ultimatum game" in an attempt to test the extent to which people care about the process of decisionmaking as well as the outcome. Briefly, the authors promised a group of subjects from Rice University that they would receive at least $10 for participating in an experiment and that they could receive up to $20 more depending on the decisions of a randomly selected "partner" in a computer-mediated interaction. In reality there were no "partners"; each subject was promised an additional $2 after a computer program simulating the "partner's" decisionmaking process in dividing up the hypothetical $20 (after the experiment was over, though, the subjects did receive the additional $20). If they rejected the $2, however, they were told that neither player would receive any additional money. Thus, the subjects were led to believe that their "partner" had proposed to "take" $18 and give $2. There were several variations on this exchange and the purpose of the experiment was to test how satisfied the recipients of the $2 were with different decisionmaking criteria on the part of their partners. The subjects were told that their "partner" had chosen one of the following criteria for the allocation (a) complete discretion, (b) a formula of merit (distance traveled to site), and (c) a random number. An additional group of subjects was told that the partner had no discretion in choosing the allocation criteria. The subjects were more willing to be satisfied with the $2 if they believed that the allocation was due to merit, and even more willing to be satisfied if they believed that the allocation was random. In addition, subjects who believed that their partner "had discretion thrust upon him" were more likely to accept the same $2 allocation than subjects who believed that the partner sought discretion and then used it to "his" advantage.

  
  One of the reasons why this research is important for the study of courts is that it meshes in an interesting way with Patricia Ewick and Susan Silbey's brilliant The Common Place of Law. Ewick and Silbey argue that Americans have three basic narratives about legal legitimacy: (1) law is a hallowed place where decisions are made in an impartial fashion and ordinary life is "refigured in importance and consequence" (they call this narrative "Before the Law" after Kafka's parable), (2) law is a "game" in which the basic rules are fair but the outcome is determined by the skills and resources marshalled by the parties to the suit ("With the Law"), and (3) law is a powerful, arbitrary, clumsy process that must be evaded by acts of "resistance" ("Against the law") (see 47-49). They argue that these narratives are not exclusive; people can switch back and forth between them while recounting the same basic legal event. Hibbing and Alford might help to explain why individuals accept the legitimacy of courts when they use the "before the law" narrative: the rules and procedures appear so complex and specialized as to be, effectively, random; the byzantine complexity (or imagined complexity) described by Kafka and evoked by Ewick and Silbey's respondents turns into the phenomenological equivalent of randomness, which is perceived as legitimate -- even when the result is destructive (as in Kafka's parable). The same might be true in some phases of the "against the law" narrative, to the extent that the outcomes, while bad, are not necessarily the product of bad intentions, but are instead the results of an intractable "system."
  

  Following Kafka another step, I wonder how many of Hibbing and Alford's subjects kicked themselves when they only got the $2, or when they received the $20 after all, in the same way that we expect the "man from the country" experienced shame the moment the guard tells him that the entrance was "only for you." In contrast to the fate of the man from the country, dying within a few yards of the site of his life-long efforts, for the subjects in Hibbing and Alford's experiment, having the additional $20 in their pockets was some consolation, I imagine.

OLD MAN WINTER IS A BIG FAT BULLY

"Lake Effect Snow Pummels County," Palladium Times, yesterday.

"Oswego County Frozen in Place," News 10 Now, yesterday. Watch the News 10 video clips for some good footage of stressed-out safety officials, weary adults showing signs of the onset of cabin fever, and smiling kiddies happy that school is out and they get to play in towering snow piles.

Apparently, Oswego got over four feet of snow in the past few days. At least one town got six feet.

I haven't been on the web since Wednesday (don't have a connection at home, and probably couldn't have made it to campus Thursday or Friday anyway, if I had wanted to defy the mayor's warning against "unnecessary travel"). Shoveled out my car four times, though. Didn't really want to give up the parking space this morning.