Tag: Constitution

Ported by request

An old political friend of mine – whom I describe after the jump – has written a book on the 1780s, the decade that led from victory in the Revolutionary War to the enactment of the Constitution.  It’s called Unruly Americans and the Origins of the Constitution; I think it’s brilliant.  Given that it’s by an old friend, you shouldn’t take my word for it; consider instead that it was up for a National Book Award last month and is now ranked #6111 at Amazon.

I have rarely seen a more perfect book for netroots bloggers, who are among today’s Unruly Americans.  It focuses on the period between victory in the Revolutionary War and ratification of the Constitution.  It argues that what we love about the Constitution – primarily the Bill of Rights – derives not so much from the political philosophy of the great and familiar Framers of the document, but from the common men of the time who refused to bend to them unless their interests were secured.  On reading it, you will recognize the arguments and passions of their day, which echo into ours.

(More below.)

Coming off an Impeachment Teach-in (info here) and a strong Constitution own Hall Meeting (info here), Dennis Kucinich is holding a day-long Dialogue for Democracy Today!

Sure, he’s not popular with our Great Orange Overlod.  Good for Kos.  No, really!  He has set up a ‘progressive’ community, and we have the right to ignore his dissmissive ‘Ughs.’  Why should we ignore those ‘Ughs?’

If I have seen further,

it is by standing on ye shoulders of Giants.

            – Sir Isaac Newton

I remember when I was in junior high school, we had to read a book called Flatland. It wasn’t a very long book – more like a novella, really – certainly not a weighty tome like The Iliad, or a classic work of literature like Great Expectations, both of which we also read. It was a small book, paperback, not much bigger than The Elements of Style, a book you could read in one sitting easily, if you stayed focused. I took two or three sittings, as I recall.

As I say, Flatland was no Iliad. But while Edwin A. Abbott’s opus didn’t carry the physical or cultural heft of Homer or Dickens, I remember to this day its lesson, a lesson about perspective, ignorance and arrogance.

Which brings me, unavoidably, to the Democratic Party.

The full quote, sans links, from a current Presidential candidate goes (my formatting of text):

I am introducing a comprehensive piece of legislation to restore the American Constitution and to restore the liberties that have been sadly eroded over the past several years.

This legislation seeks to restore the checks and balances enshrined in the Constitution by our Founding Fathers to prevent abuse of Americans by their government. This proposed legislation would

• repeal the Military Commissions Act of 2006 and
• re-establish the traditional practice that military commissions may be used to try war crimes in places of active hostility where a rapid trial is necessary to preserve evidence or prevent chaos.

It continues:

Another reprint on the Constitution. This is leading up to something I promise.

In discussing Scott Lemieux's piece on Dred Scott (Lemieux responded here), I touched upon the issue of Constitutional Interpretation. On Constitutional interpretation I wrote:

It seems undeniable to me that Dred Scott was a results oriented decision. And in that respect, Lemieux's statement that “[a]spirational” jurisprudence is only as good as the aspirations of the judge involved” is obviously correct. However, that does the “theory of a living Constitution” short shrift. The theory (or at least my theory) of a Living Constitution does not rest on “aspirational jurisprudence”, but rather on common law judicial principles and the Constitution itself.

More on this on the other side.

Originally published at Talk Left in October 2006. Warning, will likely put you to sleep.

Scott Lemieux pens a very interesting article on the Dred Scott decision and its merits  and meaning in today's law and politics. It is worth reading in its entirety but  I want to focus on a few points made by Lemieux:

. . . George W. Bush — demonstrating the forthright advocacy of conservative jurisprudence for which Republicans are famous — went out of his way to assure the public during one of the 2004 presidential debates that he would not, in fact, appoint Supreme Court justices who would interfere with the ability of Congress to ban slavery in Puerto Rico. Bush's strange remarks were widely interpereted as a dog-whistle signal to his anti-abortion-rights base, some of whose intellectuals (most notably Justice Scalia in his dissents in Planned Parenthood v. Casey and Stenberg v, Carhart) have compared Roe v. Wade to Dred Scott. Jeffrey Rosen turned this comparison against Scalia in his merciless evisceration of the justice's support for the Court's egregious Bush v. Gore decision. And on it goes. But should this much weight really be put on Dredd Scott?

. . . The most common attack on Dred Scott, however, does not concern the finer points of interpretive theory. Rather, it's a critique borne out of a romanticized view of legislatures as being better able to resolve difficult social questions than courts. . . .

It may have been the most common attack but it was not the best one. Abraham Lincoln, most notably in his Cooper Union address, presented, to me at least, the most devastating arguments against the legal correctness of the Dred Scott decision. I'll discuss that and a few other things on the other side.

What does should the Democratic Party stand for, as determined by you and me, a wild bunch of liberal/progressive bloggers?

There are issues, and then there are principles.  I’m a principles and process person, so this post is about principles.  (It’s okay, you can put the stem cell research funding on the entry table, it’ll still be there for you on your way out.)  Of course issues are hugely important, since they’re what impact people’s everyday lives.  To have a coherent platform – to have something which the whole party stands for – I believe those positions on issues must flow from our principles.  I want you to question the biiiiiiiiiiig, obvious ones.  I want you to ask “Why?” ad nauseam, like a seven-year-old child questioning a parent.

What principles of government can we all agree upon?  Pointedly, I am not saying, “Why can’t we all get along?”  If you disagree on a point, I want to hear why.  If there’s nothing you disagree with off the bat, I challenge you to find something.  What is missing or miscategorized?  If you think something is of core importance, even if it’s blindingly obvious, I want to hear about that most of all.

Crossposted at Daily Kos

I think there is some confusion about the unitary executive theory and what it has become under the Bush Adminstration. Initially, it meant something less ambitious than what the Bush Administration turned it into. The older theory was describe by now Justice Alito, as follows:

In a speech to the Federalist Society in 2001, Alito said:

When I was in OLC [] . . ., we were strong proponents of the theory of the unitary executive, that all federal executive power is vested by the Constitution in the President. And I thought then, and I still think, that this theory best captures the meaning of the Constitution’s text and structure . . . .” “[T]he case for a unitary executive seems, if anything, stronger today than it was in the 18th Century.

Frankly, this is not a remarkable nor important view of the theory. The problem is what is has become under the Bush Administration:

Here’s what it means for Bush:

The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.

The Bybee Memo put it this way:

Any effort by the Congress to regulate the interrogation of battlefield combatants would violate the Constitution’s sole vesting of the Commander in Chief authority in the President. . . . Congress can no more interfere with the President’s conduct of the interrogation of enemy combatants than it can dictate strategic or tactical decisions on the battlefield.

This is the pernicious Unitary Executive theory as we know it today. It is utterly unsupported by the Constitution and the jurisprudence. I’ll explain on the flip.