Archive for January, 2010

The Culture of the Constitution

Sunday, January 31st, 2010

The US Constitution is the longest living constitution that has provided an effective framework for self government for over two hundred years. It has served a country that began as thirteen relatively independent states that grew into a continental nation. Although there have been twenty-seven amendments, the document has remained largely intact. The longevity of the US Constitution is not just a consequence of its clever design. Indeed, is product of both considerable political genius as well as the compromises necessary to weld together the original disparate states.

Despite the genius of the US Constitution, it can not be simply adopted by any country with the same success. The functioning of the US Constitution also relies upon a deference to the disciplines of the US Constitution by government officials and the people. A president must rely on the Congress to pass legislation, Congress must grant latitude to the chief executive to manage the government, particularly in foreign relations. Both must respect the Constitutional limits adjudicated by the US Supreme Court. Because the Supreme Court is the least democratic branch of government, it must be reticent overrule the decisions of the other two branches.

Of course, the Civil War was the ultimate challenge to the Constitution and the Union, but there have been cases where the three branches of government have chafed up against one another. President Andrew Jackson largely ignored the US Supreme Court when it ruled in favor of Cherokee Indians over the depredations of the state of Georgia (Worcester v. Georgia). President Franklin Roosevelt tried to pack the Supreme Court with additional justices, when it ruled against hist initiatives. Congress has tried to constrain the discretion of the President with War Powers Act. And many have suggested that sometimes the Supreme Court has exceeded its authority, particularly the Warren Court.  Despite these and other important lapses, it is important to maintain the forms of respect, especially between the different branches of government.

In Citizens United v. Federal Election Commission, the Supreme Court ruled earlier this week that the speech of corporations were protected by the First Amendment. Specifically, corporations and other associations of people could spend money on independent — uncoordinated with the candidates’ campaigns — efforts to persuade people to vote one way or another. There is some disagreement with the ruing both those who believe, as George Will explains, “Americans need to be swaddled in regulations of political speech.”

Despite the attendant controversy, it remains remains disconcerting for President Barack Obama to use his the latest State of the Union address to lecture Supreme Court to the applause of Congress for a decision he disagreed with.  Obama said:

“With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests –- including foreign corporations –- to spend without limit in our elections. (Applause.) I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities. [Applause.] They should be decided by the American people. And I’d urge Democrats and Republicans to pass a bill that helps to correct some of these problems.”

Leave aside for the moment that the President’s remonstrance was based on false premises. The Court in its decision explicitly allowed restrictions of foreign expenditures in US campaigns. It was disrespectful and rude to argue with and criticize the justices, when they are in no position to respond. The remarks smacked of presidential imperialism and was beneath Obama who is supposed to be a Constitutional scholar. Obama knows better. He may come to regret undermining the Court when some time in the future  the Court must suffer under diminished authority and respect when issuing a ruling with which Obama is sympathetic.

One the other hand, Obama is to be congratulated when he met with the Republican caucus this week. The exchange was civil and benefited both the Republicans and the President. Obama should consider institutionalizing the meeting on perhaps a quarterly basis.

Edward Kennedy’s Gifts

Sunday, January 24th, 2010

All politicians make political calculations, weighing different options in the messy process of legislation and forming political arrangements. Political compromise and adjustment is a necessary and important skill for free societies governed by a combination of chief executives and legislatures, often of different political parties. However, is it wrong to admit a guilty pleasure – schadenfreude – when Machiavellian manipulations, outside the scope of political good faith and respect for free institutions, backfire?  For at least a couple of these pleasures, we can turn to the late Senator Edward Kennedy.

Perhaps Edward Kennedy’s greatest unintentional gift to Conservatives came during the 1980 presidential campaign. High inflation, high unemployment, and high interest rates had severely eroded the political popularity of President Jimmy Carter. The political positions of  Kennedy and Carter did not differ much substantively, but a weak incumbent gave Kennedy an opportunity for a primary challenge and ti serve personal ambition. Although Kennedy won only ten primaries to Carter’s twenty-four, Kennedy ate away at Carter’s support by continuing his challenge to the convention, hoping for rules changes there that might give Kennedy the nomination. The number of Carter delegates was too overwhelming and they defeated Kennedy’s procedural challenges at the convention. Out of respect, Kennedy was given the opportunity to address the convention. In a rousing conclusion, Kennedy acknowledged defeat but despite his loss “the work goes on, the cause continues, the hope still lives, and the dream shall never die.”   The speech made Carter’s later performance seem mediocre. Although Carter survived the Kennedy challenge, he emerged from the Democratic National Convention weaker, leading a demoralized and divided Democratic Party, helping in part to usher the Reagan era. Thank you.

In 2004, the other Senator from Massachusetts, John Kerry, was running against President George W. Bush. If Kerry managed to defeat the incumbent president, under state law, Republican Governor Mitt Romney would appoint a Senator to fill out the term. A Republican Senator from Massachusetts was too much for Democrats to stomach. With the encouragement of Kennedy, the Democratically-dominated state legislature gamed the system. They changed the law to establish a special election to fill vacancies.  Reasonable and well-intentioned people can disagree about  the appropriate procedure  for filling a senatorial vacancy. However, this change was not based on principle, but was intentionally designed to gane the system for immediate political advantage. This decision would ultimately come back to haunt Kennedy and Democrats in Massachusetts.

Kennedy’s signature issue was health care. He has always advocated a government managed and financed health care system. When he unfortunately took ill in 2009 with what proved to be terminal cancer he knew that he might not survive to usher through health care reform. His last votes in the Senate were in early April 2009. If Kennedy had resigned under these circumstances, he could have provided ample opportunity for a hand-picked successor to win election as Senator with his direct endorsement. However, political vanity was more important and Kennedy hung on to his office until his death in August, 2009. The cause of health care reform would have been better served if he resigned, but a personal desire to keep his office-for-life overwhelmed this calculation. Kennedy did not know with certainty that  clinging to office would undermine the cause of his life, but he did know that he was no longer capable of leading or even participating in the fight in the Senate. Kennedy clutched to his office until the end. Is it too mean-spirited to exploit the metaphor that while health care legislation was drowning, Kennedy was swimming to the shore of personal political indulgence?

If the Massachusetts senatorial succession procedure had not been altered in unashamedly political manipulation in 2004,  Democratic Governor Deval Patrick would have appointed a Democrat to fill out Edward Kennedy’s term. There would have been no opportunity for Republican Scott Brown to ride a wave a political dissatisfaction with conspicuous manipulations and payoffs to arrive at medicare legislation, and  to  upset the Democratic candidate Martha Coakley. Scott’s election killed health care legislation in its current form and wounded the Democratic Party. For this we, we can in no small measure thank Edward Kennedy and recognize the justice that self-aggrandizement and political corruption was not in this case rewarded.

Cool and Sedate Reflection

Sunday, January 17th, 2010

There are two traditional models for political representation: that of  a “delegate” or a  “trustee.”

A delegate is sent to a representative body to vote the way he believes his constituents would want him to. Such a delegate aligns his views directly with the collective views of the people he represents. He embodies his constituency. The delegate theory of representation is favored by populists and some early founders.  In the extreme limit, the delegate theory reduces to a more efficient way to implement a plebiscite democracy — the kind of democracy that through referenda has made California almost ungovernable.

The trustee model of representation holds that a constituency votes for a representative whose judgment they trust and rely upon. A trustee has the time to consider legislation in detail, and pursues legislation that would balance the benefits of the whole polity and the local constituency – even if the constituency disagrees with a particular position. In the extreme limit, a trustee model of the representation can degenerate to rule by the elite.

Some Congressional and Senatorial representatives subscribe to a hybrid of the above models. They believe they are sent to Washington to vote a certain way on one or two conspicuous issues  (e.g., gun control, abortion, farm legislation), while they are free to exercise their judgment in most other areas.

Conservatives, at least those who have not surrendered to populist temptations, subscribe to the trustee theory of representation, as advocated by William Burke and articulated by Alexander Hamilton in Federalist 71:

“The republican principle demands that the deliberate sense of the community should govern the conduct of those to whom they entrust the management of their affairs; but it does not require an unqualified complaisance to every sudden breeze of passion, or to every transient impulse… When occasions present themselves, in which the interests of the people are at variance with their inclinations, it is the duty of the persons whom they have appointed to be the guardians of those interests, to withstand the temporary delusion, in order to give them time and opportunity for more cool and sedate reflection.”

How should the trustee model of representation apply to the current debate about health care “reform?” A clear majority of Americans are doubtful of and opposed to the current version(s) of health care reform as they understand it (them) . Nonetheless, if in its  best deliberative judgment, Congress believes the reform is in the best interests of the country, then  the trustee model of representation would suggest that they vote in accordance with their best judgment.

There remain, however, several mitigating factors. The current health care reform proposal represents very radical adjustments of present arrangements,  and prudence suggests that we can expect comparably large unintended consequences. The results of truly “cool and sedate” deliberation rarely result in abrupt or radical changes.  Moreover, the ultimate success of such a complicated enterprise depends in part on its acceptance by the polity. Even if one believes that health care reform could theoretically produce better results, if the country does not subscribe to the same conclusion, it may reduce the probability of success. Strong public animosity to legislation is not an irrelevant consideration to someone entrusted as a representative.

It would be disingenuous for Democrats to argue that they are modulating the passing whims of the people with “cool and sedate  reflection,” while negotiating behind closed doors and buying  off special interests with targeted deals for Louisiana, Nebraska, and the unions. Rather than reducing volatility, Congress seems to be rushing headlong to pass a bill before popular sentiment makes it more difficult for representatives concerned about re-election to support the bill.

Liberal Democrats would be understandably disappointed if they cannot manage health care reform. However, the compromises  being agreed to (and supported by large pharmaceutical and  insurance companies) will likely create a system far different from the one they originally envisioned. Indeed, if presented with the current proposal a year ago, they would likely be embarrassed by it. The drive to get something — anything — rather than calm consideration is the driving ethos. Part of the discipline of a democracy is to maintain the good judgment not to push the polity too far from the direction they can be persuaded to travel. This political discipline and respect for the governed has been trampled in the stampede to health care. It is time for Congress to step back, pause, and reflect coolly and sedately about appropriate changes to current health insurance arrangements.

Progressive Justice

Sunday, January 10th, 2010

Colleges and universities are unique and critical constituents of the culture. They can be monastic refuges where professors are permitted to live the life of the mind, free to pursue ideas and knowledge for their own sake, unfettered by the necessity of immediate practical benefit. At the other end of the spectrum, professors can both seek knowledge and pursue remuneration for the practical benefits of their research.

Universities and colleges are also businesses that must pay the bills. They exist in an in between world, more or less dependent on tuition income, government grants or subsidies, and alumni contributions. Recently, universities and colleges — especially the elite ones — have become islands of “progressive” thought in a sea of a center-right republic. As a consequence, they can provide a glimpse into what the world would look like ruled by progressives free of the accountability to a constituency.

In 2006, members of the Duke lacrosse team were falsely accused of rape. In a complex society, there will always be serious accusations both with and without merit. It is the responsibility of law enforcement and the courts to sort through these. In this particular Duke case, it turned out that the district attorney in Durham North Carolina, Mike Nifong, did not conduct himself properly. It came to light that he withheld exculpatory DNA evidence, while at the same time insisting on the guilt of those charged. Fortunately, the parents of the accused were sufficiently affluent to hire quality legal representation.  If not for their representation, the accused might have been ground down under the wheels of aggressive district attorney. Ultimately, Nifong was disbarred and served one day in jail for criminal contempt of court.

Part of Nifong’s motivation was the necessity of re-election in Durham, NC. Eighty-eight Duke faculty members (eleven from the History Department) signed a statement implicitly assuming  that the rape charges were not only true, but symbolic of the behavior of white males. It was in this context that Nifong came to the case. It may have been Nifong’s eagerness to demonstrate his sensitivity to minority groups that clouded his prosecutorial judgment.

One might have thought that the whole situation would have caused those who rushed to judgment, particularly the Duke faculty, to be self-reflective and recognize the importance of waiting for due process.However, progressive thought is not so easily contained. None of the eighty-eight faculty who signed the petition apologized. Perhaps they assumed that even if these individuals were not guilty in this case, there must be something that the white jocks were guilty of.

Current actions by Duke are more revealing of the perverse logic of progressive justice. According to the National Journal, Duke has adopted a new sexual misconduct policy that creates a situation ripe for the same notorious injustice perpetrated by the lacrosse player accusations. The new rules assume very simple-minded and easily swayed Duke co-eds who must provide very explicit consent lest some male Duke student uses his high IQ to persuaded a fellow Duke student into sex. The new rules do not allow the someone accused of sexual misconduct the representation of an attorney or the right to face the accuser. The accuser can also receive copies of the investigative documents, while the accused can not.

The rules are an invitation to a lawsuit by someone falsely accused,  an alternative mostly available to one who afford an attorney. The irony is that this example of progressive justice was developed and adopted by those, one would be willing to wager, who are convinced that the former President George W. Bush eviscerated the Constitution by granting limited due process to illegal enemy combatants.

Health Care and the Consent of the Governed

Sunday, January 3rd, 2010

It is easy to fall into the conceit that we face greater political challenges than our predecessors; that politics now is meaner and more divisive than it used to be. One virtue of studying American history is to remind us that the many of the same challenges we face now were faced before, albeit on a different political terrain and by almost certainly greater minds.

Modern students should also be suitably chastened to recall that political positions have shifted over time in unanticipated ways. Contemporary Democrats, who worship at foot of their political patron saint Thomas Jefferson, should remember his visceral antipathy to a strong national government. Republicans, who trace their political heritage to the first Republican president, Abraham Lincoln, may be disconcerted as his willingness to use strong national power when necessary.

In their eagerness to pass heath care reform, Democrats should perhaps consider the counsel of the first chief justice, John Marshall.  In 1823, many were focused on legislation to limit the power of the national judiciary. Ultimately, the effort failed in no small part because the passions of the moment created bills that were so single-minded that legislators failed to provide due deliberation on the full impact of what they were considering. It seems that the perceived necessity of passing something is overwhelming the true necessity of passing something well considered.

With the current health care bill widely unpopular and that structure of the bill complex to accommodate the necessity of cobbling together a narrow majority, Democrats would do well to consider the words on Marshall in a letter to Henry Clay.

“One of the most dangerous things in legislation is to enact a general law of great and extensive influence to effect a particular object; or to legislate for a nation under a strong excitement which must be suspected to influence the judgment. If the mental eye be directed to a single object it is not easy for the legislator intent on that object to look all around him and to perceive and guard against the mischief with which his measure may burn.”

If we are to embark changes of wide consequence in a society ruled by the consent of the governed, it is undoubted wise to do so only buttressed with wide public acceptance and support.