Like a lot of people my age, the infamous "Limits to Growth" issued by the Club of Rome in 1972 made a profound impression on me when I read as a youngish, Gene McCarthy liberal, shortly after returning from a stint in the Peace Corps. I offer that as a confession of sorts, since it is a bit embarrassing to admit that I was so credulous as to actually take the predictions in the report seriously. Many of the premises of the report were demonstrably wrong and the results of their modeling wildly exaggerated. That realization coupled, now, with 25 years of working as an environmental lawyer have made me profoundly skeptical of claims that "the end is near." For some people, the "end" is always "near" -- even though they have to keep finding new causes for the demise. (Right now the doomsday scenario is global warming.) As a result, I have come to consider claims that growth will kill us to be little more than natterings of hysterical luddites.
But even I have to admit that with oil at $60 a barrel despite record levels of production and with the breathless press coverage of arguments about when we did or will pass "Hubbert's Peak," even I have been getting a bit queasy. Could it be that, for all of its simplism and speciousness, the Club of Rome might actually have been right in some broad general sense? Could it be that there might actually BE "Limits to Growth"?
Well, given that frame of mind, this came as what I see as ENORMOUSLY good news: France to Host World's First Nuclear Fusion Plant . Perhaps this is news to no one but me, but there is enough confidence in the feasibility of generating electricity from fusion (think infinite energy with no by-products but water) that the US, EU, Russia, China, Japan and South Korea are prepared to plunk down in excess of 10 billion Euros to build a fusion powered electrical generating station.
I looked it up: Enrico Fermi and friends built the first nuclear fission reactor at the University of Chicago in 1942. By late 1955, Arco Idaho had become the first town to be powered by nuclear energy, and by 1962 nuclear power had been fully commercialized with six nuclear generating stations in operation, two of them built entirely with private capital.
I would like to think we could duplicate that schedule here. Even though the pace of scientific achievement is accelerating, today there is one big impediment today that didn't exist in 1945-55: the hysterical luddites. The people need to believe the end is near and will oppose tooth and nail, hand and tong, anything that might actually reduce the likelihood or imminence of catastrophe. Also, the development effort is being pursued by multiple countries rather than only one. But still, the key to our energy future is right there being built even now in France. Let's hear it for human ingenuity!
Tuesday, June 28, 2005
Ten commandments
What could possible be sillier than this:Christian Groups Plan More Monuments. The issue that distinguishes the Supreme Court's two recent decisions on posting of religious materials in public places is the question of intent: given the totality of the circumstances, does the posting manifest an intent to promote religion. If so, then the display is improper. So, the Right goes out a promises to erect more monuments, thereby demonstrating exactly the intent that is fatal. The just don't get it: they can not use the instrumentalities of government to promote religion.
Monday, June 27, 2005
Supreme Court Armegeddon
This is so sad:
One of the lessons of World War I was that mass mobilizations tend to make war inevitable even if there is nothing worth fighting for. You can't take the tropps, whip them up to a fever pitch and then say "Oh, never mind." You end up inventing a reason to fight just becuase you are prepared to do so.
Can't Bush find a jurist that 5 Democrats will support?
Can't the Left at least wait to see who will be nominated before declaring war?
And, can't BOTH sides recognize that the fate of the Republic depends much more on civility in the political processes than it does on the politics of the person appointed to the Supreme Court?
Sigh.
By most accounts, it [a Supreme Court nomination battle] would rival a presidential campaign, complete with extensive television advertising, mass e-mails, special Internet sites, opposition research, public rallies and news conferences. Both Democrats and Republicans have been raising money for this moment for years. The president's allies have promised to bankroll an $18 million public relations blitz, and administration opponents have set up a war room and enlisted veterans of the campaigns of Bill Clinton and Al Gore to devise strategy.We don't even know if Rehnquist will resign. Nor do we know whom Bush will nominate if he does. Yet, we are gearing up for total war nonetheless.
One of the lessons of World War I was that mass mobilizations tend to make war inevitable even if there is nothing worth fighting for. You can't take the tropps, whip them up to a fever pitch and then say "Oh, never mind." You end up inventing a reason to fight just becuase you are prepared to do so.
Can't Bush find a jurist that 5 Democrats will support?
Can't the Left at least wait to see who will be nominated before declaring war?
And, can't BOTH sides recognize that the fate of the Republic depends much more on civility in the political processes than it does on the politics of the person appointed to the Supreme Court?
Sigh.
Friday, June 24, 2005
Medical Marijuana -- The lighter side
The lighter side of the Medical Marijuana issue.
And the NYT's prudish response.
Ed. Note: As you can tell (see the Update to this post), the NYT editorial page is on my feces list today. They can be so insufferably pompous at times.
And the NYT's prudish response.
Ed. Note: As you can tell (see the Update to this post), the NYT editorial page is on my feces list today. They can be so insufferably pompous at times.
Thursday, June 23, 2005
The Supreme Court's "Takings" Decision: Maybe I am conservative after all
As much as Bush has done to re-awaken my innate but long-dormant liberalism, the "liberals" on the Supreme Court have made me yet again reconsider. First, there was the medical marijuana case, discussed here and here. Now there is this, KELO v. CITY OF NEW LONDON , another triumph of the State over individual rights.
The facts are pretty easy to summarize. New London is a "distressed city" with relatively high unemployment and declining population. Pfizer wanted to build a facility there, and, in an effort to parlay that investment into a broader effort at economic development, the City decided to convert the area adjacent to the proposed Pfizer facility -- a peninsula sticking out into the Thames River -- into a mixed use development zone consisting of hotels, office parks, marinas, etc. that would be leased to private parties. The City was able to buy most of the property involved, but 15 parcels were owned by private residents who did not want to sell their homes. The City moved to take these properties by eminent domain and the homeowners sued to enjoin the taking.
The Fifth Amendement to the US Constitution provides that "private property [shall not] be taken for public use, without just compensation." The homeowners argued that this provisions allowed takings only for "public use" and that the takings at issue here were not for "public use" but were rather transfers from the exisiting homeowners to other private parties (i.e the future lessees of the anticipated improvements). The four liberals (Stevens, Breyer, Douter and Ginsburg), joined this time by Justice Kennedy, held that "public use" requirment did not really mean that the public had to be entitled to actually "use" the improvements. It was enough that the improvements would redound to the public benefit. Further, the State did not have to demonstrate that the public would actually benefit. It was enough that the City concluded that it would. The four "conservatives" -- Rehnquist, O'Connor, Scalia and Thomas dissented.
To my mind Justice O'Connor is right when she says that if a state prediction of a public benefit is enough to justify a taking, then the "public use" restriction in the Fifth Amendment is of no practical effect. It would prevent a taking only if the state were silly or incompetent enough to "find" that there was no public benefit to what it proposed to do. Perhaps more important, though, is this point, also from Justice O'Connor's opinion:
Update: The NYT editorial page today applauds this decision, characterizing it as "a welcome vindication of cities' ability to act in the public interest [and] a setback to the 'property rights' movement, which is trying to block government from imposing reasonable zoning and environmental regulations." That last bit about trying to block reasonable zoning and environmental regulations is gratuitous, facile and utterly beside the point. Kelo and her co-petitoners were not battling "reasonable zoning and environmental regulations." Indeed, they weren't battling "regulation" at all. They were battling to prevent the City of New London from evicting them, bulldozing their homes and giving their land to another private person whom the City concluded would put the land to "better" use. To treat this case as blow against those battling "reasonable" regulation demeans what is actually at issue.
The earlier characterization of the case as a "vindication of cities' ability to act in the public interest" is closer to the point, but whether that "vindication" is "welcome" is debatable. The problem here is that the Times has a lot more confidence than I do in (a) the integrity and competence of government and (b) the ability of the government to identify and then effectively pursue "the public interest." Even when pursued with the best of intentions and planning, these sorts of grandious "economic development" projects are little more than tax-payer-financed gambles in which the only sure winners are the developers. And many of them are not pursued with the best of intentions and planning. Indeed, there is a significant history of outright graft in connection with such projects. Still, I do not disagree that a government of a distressed City has the duty to at least try to make things better, and I also agree that individual landowners should not be able to derail these types of projects. Thus, where the property in question is purely commercial property, I guess I can live with the Court's approach, since, in theory at least, the owner of purely commercial property can always be adequately compensated with money. But where people's homes are at stake, I would sure like to require more from the government than a simple ipse dixit that the result of evicting them will be "in the public interest."
Update 2: And so it begins.
The facts are pretty easy to summarize. New London is a "distressed city" with relatively high unemployment and declining population. Pfizer wanted to build a facility there, and, in an effort to parlay that investment into a broader effort at economic development, the City decided to convert the area adjacent to the proposed Pfizer facility -- a peninsula sticking out into the Thames River -- into a mixed use development zone consisting of hotels, office parks, marinas, etc. that would be leased to private parties. The City was able to buy most of the property involved, but 15 parcels were owned by private residents who did not want to sell their homes. The City moved to take these properties by eminent domain and the homeowners sued to enjoin the taking.
The Fifth Amendement to the US Constitution provides that "private property [shall not] be taken for public use, without just compensation." The homeowners argued that this provisions allowed takings only for "public use" and that the takings at issue here were not for "public use" but were rather transfers from the exisiting homeowners to other private parties (i.e the future lessees of the anticipated improvements). The four liberals (Stevens, Breyer, Douter and Ginsburg), joined this time by Justice Kennedy, held that "public use" requirment did not really mean that the public had to be entitled to actually "use" the improvements. It was enough that the improvements would redound to the public benefit. Further, the State did not have to demonstrate that the public would actually benefit. It was enough that the City concluded that it would. The four "conservatives" -- Rehnquist, O'Connor, Scalia and Thomas dissented.
To my mind Justice O'Connor is right when she says that if a state prediction of a public benefit is enough to justify a taking, then the "public use" restriction in the Fifth Amendment is of no practical effect. It would prevent a taking only if the state were silly or incompetent enough to "find" that there was no public benefit to what it proposed to do. Perhaps more important, though, is this point, also from Justice O'Connor's opinion:
Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms. As for the victims, the government now has license to transfer property from those with fewer resources to those with more. The Founders cannot have intended this perverse result.In the never-ending struggle to balance the interests of the government against the rights of the individual, the interests of the government have prevailed again. It is just so strange to see this happening -- as it did on the medical marjuana cases -- at the hands of those Justices commonly thought to be "liberal".
Update: The NYT editorial page today applauds this decision, characterizing it as "a welcome vindication of cities' ability to act in the public interest [and] a setback to the 'property rights' movement, which is trying to block government from imposing reasonable zoning and environmental regulations." That last bit about trying to block reasonable zoning and environmental regulations is gratuitous, facile and utterly beside the point. Kelo and her co-petitoners were not battling "reasonable zoning and environmental regulations." Indeed, they weren't battling "regulation" at all. They were battling to prevent the City of New London from evicting them, bulldozing their homes and giving their land to another private person whom the City concluded would put the land to "better" use. To treat this case as blow against those battling "reasonable" regulation demeans what is actually at issue.
The earlier characterization of the case as a "vindication of cities' ability to act in the public interest" is closer to the point, but whether that "vindication" is "welcome" is debatable. The problem here is that the Times has a lot more confidence than I do in (a) the integrity and competence of government and (b) the ability of the government to identify and then effectively pursue "the public interest." Even when pursued with the best of intentions and planning, these sorts of grandious "economic development" projects are little more than tax-payer-financed gambles in which the only sure winners are the developers. And many of them are not pursued with the best of intentions and planning. Indeed, there is a significant history of outright graft in connection with such projects. Still, I do not disagree that a government of a distressed City has the duty to at least try to make things better, and I also agree that individual landowners should not be able to derail these types of projects. Thus, where the property in question is purely commercial property, I guess I can live with the Court's approach, since, in theory at least, the owner of purely commercial property can always be adequately compensated with money. But where people's homes are at stake, I would sure like to require more from the government than a simple ipse dixit that the result of evicting them will be "in the public interest."
Update 2: And so it begins.
The Prospects For Victory in Iraq
David Brooks had an Op-Ed Piece in the NYT today arguing that it is too early to give up on beating the insurgency in Iraq.
Some liberal bloggers have taken Brooks to task for this. See, e.g. Ivo Daadler at TPM Cafe. Coincidentally, though, Max Boot at the L.A.Times makes essentially the same argument, albeit much more persuasively:
I hope Max is right.
Still, one thing is for sure: since we don't have the evidence upon which to pass judgment on the overall trajectory of this war, it's important we don't pass judgment prematurely.
It's too soon to accept the defeatism that seems to have gripped so many. If governments surrendered to insurgencies after just a couple of years, then insurgents would win every time. But they don't because insurgencies have weaknesses, exposed over time, especially when they oppose the will of the majority.
It's just wrong to seek withdrawal now, when the outcome of the war is unknowable and when the consequences of defeat are so vast.
Some liberal bloggers have taken Brooks to task for this. See, e.g. Ivo Daadler at TPM Cafe. Coincidentally, though, Max Boot at the L.A.Times makes essentially the same argument, albeit much more persuasively:
No wonder public support for the war is plummeting and finger-to-the-wind politicians are heading for the exits: All the headlines out of Iraq recently have been about the rebels' reign of terror. But, lest we build up the enemy into 10-foot-tall supermen, it's important to realize how weak they actually are. Most of the conditions that existed in previous wars won by guerrillas, from Algeria in the 1950s to Afghanistan in the 1980s, aren't present in Iraq. . . . .
The biggest weakness of the insurgency is that it is morphing from a war of national liberation into a revolutionary struggle against an elected government. That's a crucial difference. Since 1776, wars of national liberation have usually succeeded because nationalism is such a strong force. Revolutions against despots, from Czar Nicholas II to the shah of Iran, often succeed too, because there is no way to redress grievances within the political process. Successful uprisings against elected governments are much rarer because leaders with political legitimacy can more easily rally the population and accommodate aggrieved elements.
I hope Max is right.
Tuesday, June 21, 2005
Limits On The Commerce Power
From a comment by Mr. Scoggin on an earlier post:
At the outset, though, it is important to recognize that the 10th Amendment itself is really not all that helpful in trying to define the scope of the commerce power (or indeed any other federal power). It provides, simply, that
Article I, Section 8 of the Constitution explicitly provides that Congress has the power:
As with so much of the Constitution, these sweeping generalities are of little help in deciding specific cases. Inevitably, therefore, the scope of the Commerce Power (and by corollary the scope of the 10th Amendment) is whatever the Supreme Court says it is at a given point in time.
The Supreme Court's commerce clause decisions have never been a model of consistency. However, a fundamental shift in the Court's approach occurred in the 1930s. Prior to the New Deal, the Supreme Court took a fairly narrow view of the scope of the commerce power and invalidated a number of laws, particularly those regarding working conditions, on the grounds that those laws were regulating purely local activities occurring entirely intrastate and were therefore beyond the reach of the federal commerce power. See, e.g. Schecter Poultry (1935). Under this line of cases, only activities with a "direct" effect on interstate commerce fell within the Commerce Clause. Otherwise, the courts (presciently) opined, there would be no limit to what Congress could regulate:
However, it was exactly this line of argument and the resulting invalidation some of the New Deal legislation that led to Roosevelt's famous "court packing" scheme. While that scheme was met with widespread popular opposition and went nowhere, the Supreme Court "got the message". And, in 1937, only two years after Schecter Poultry, the Supreme Court decided J&L Steel. While purporting to distinguish Schecter, the J&L decision effectively guts it by holding that it is primarily up to Congress, not the Courts, to determine what activities have a sufficient impact on commerce to warrant federal regulation:
In recent years, the Rehnquist Court has appeared to be trying to step back from this abdication and to undertake a more searching inquiry into the reality of the impact on interstate commerce, and this led to the invalidation of several federal statutes and regulations on the grounds that the nexus between the regulated activity and interstate commerce was simply too remote to be within the commerce power. For instance, in United States v. Lopez, the court struck down a federal statute making it a crime to possess a firearm within a school zone. In United States v. Morrisonn, the Court struck down a federal statute providing a federal cause of action to victims of gender-motivated violence. And in my personal favorite, Solid Waste Agency v. U.S. Army Corps of Engineers, the Court held that an isolated water body having no connection with interstate waters was beyond the reach of the Commerce Clause even if it might be used by migratory birds.
All three of these cases were 5-4 decisions with Rehnquist, O'Connor, Kennedy, Scalia, and Thomas in the majority and Stevens, Souter, Ginsburg and Breyer in the minority. And together, these cases led to a widespread belief (hailed by conservatives and condemned by liberals) that the Rehnquist Court was in the process of breathing new life into the idea that there were actually limits to Congress' power under the Commerce Clause.
It is this that makes the recent medical marijuana case so interesting. Relying directly on Lopez and Morrison, the plaintiffs in that case argued that the purely personal possession of marijuana with no intent to sell or distribute it to third parties was an activity whose connection to interstate commerce was so remote as to place it beyond the reach of the Commerce Clause. Given those prior cases and the presumed desire of the Rehnquist Court to place limits on the Commerce Power, one could well be excused for assuming that the Lopez/Morrison/SWA majorities would hold. Indeed, given the privacy implications and the humanitarian purposes of the State law at issue, one might well have expected some of the more "liberal" justices who dissented in the prior cases to join the conservatives in the medical marijuana case. But, it did not happen. The liberal bloc (Stevens, Souter, Ginsburg and Breyer) held fast in its belief that there really were no limits to the Commerce Power and it was the "conservative" bloc that splintered with O'Connor and Scalia joining in asserting that the federal law banning marijuana possession was within the commerce power. This reversal has led some to question whether the "Rehnquist revolution" might well have already run its course.
Frankly, I hope not. Still, it has to be recognized that the outcome of this analysis is very result-oriented. For instance, it is the Commerce Clause that underlies many federal statutes that I fully support -- the 1964 Civil Rights Act being by far the best example of this. Yet it is not hard to argue that the connection between interstate commerce and racial discrimination at Joe's Diner is pretty remote. Thus, a more narrow interpretation of the Commerce Clause could well call into question some of the federal legislation that many of us value most. At the same time, the admonition in Schecter Poultry quoted above has proved all too true: construing the commerce clause to reach anything that can be said to have an indirect effect upon interstate commerce has in fact extended federal authority to practically all the activities of the people. That, it seems to me, is not a good thing either.
In the end, I guess, how you come out on this question depends a lot on whether you believe in federalism itself. Insofar as the United States is a single country, should its laws be essentially uniform or should differences among the states be allowed, even encouraged? Allowing differences among the States tends to make the Country more free. But, allowing states to have different rules also allows them to depart from what the vast majority of the Country as a whole believes to be "acceptable". Consider, for instance, Mississippi in 1964. It is this very tension that has led to the shifting views of the Court on this issue over time, and I for one have no better way of addressing this issue that the essentially ad hoc approach that has been used by the Court so far, reflecting, as it does, the evolving values of the Country as a whole.
Here's the thing about the commerce clause I never understood: How did this one phrase come to overwhelm the 10th amendment?That is a really fascinating question. Actually it is two fascinating questions: one historical -- how have the interpretations evolved over time? -- and one normative -- what limits should be placed on the Commerce Power given the 10th Amendment (and other aspects of the Constitution)? Answering either of these fully would probably require an entire book -- and a lot more knowledge than I have at my disposal right now. Still, I think I can give you the general outlines.
In passing the 10th amendment, it seemed to me that the framers explicitly wanted to limit the Federal government's role over the states. Given this expressed intent, how was the definition of "interstate commerce" so broadly interpreted as to make the 10th amendment almost forgotten.
At the outset, though, it is important to recognize that the 10th Amendment itself is really not all that helpful in trying to define the scope of the commerce power (or indeed any other federal power). It provides, simply, that
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."As Gary notes, the purpose of this Amendment is to make it clear that the powers of the federal government are limited to those enumerated in the Constitution. However, having said that, one has not said much, since the scope of the enumerated powers is far from clear. And nowhere is this lack of clarity more obvious that with respect to the Commerce Clause.
Article I, Section 8 of the Constitution explicitly provides that Congress has the power:
"To regulate Commerce . . . among the several States" and "To make all Laws which shall be necessary and proper for carrying into Execution th[at] Power[].Thus, the power to regulate interstate commerce is one of those powers that is "delegated to the United States by the Constitution, [and] prohibited by it to the States." And, consequently, the effectiveness of the 10th Amendment as a check on that power is entirely dependent on what is meant by the delegation to Congress of the power to "regulate Commerce . . . among the several States."
As with so much of the Constitution, these sweeping generalities are of little help in deciding specific cases. Inevitably, therefore, the scope of the Commerce Power (and by corollary the scope of the 10th Amendment) is whatever the Supreme Court says it is at a given point in time.
The Supreme Court's commerce clause decisions have never been a model of consistency. However, a fundamental shift in the Court's approach occurred in the 1930s. Prior to the New Deal, the Supreme Court took a fairly narrow view of the scope of the commerce power and invalidated a number of laws, particularly those regarding working conditions, on the grounds that those laws were regulating purely local activities occurring entirely intrastate and were therefore beyond the reach of the federal commerce power. See, e.g. Schecter Poultry (1935). Under this line of cases, only activities with a "direct" effect on interstate commerce fell within the Commerce Clause. Otherwise, the courts (presciently) opined, there would be no limit to what Congress could regulate:
If the commerce clause were construed to reach all enterprises and transactions which could be said to have an indirect effect upon interstate commerce, the federal authority would embrace practically all the activities of the people, and the authority of the state over its domestic concerns would exist only by sufferance of the federal government.Schecter Poultry.
However, it was exactly this line of argument and the resulting invalidation some of the New Deal legislation that led to Roosevelt's famous "court packing" scheme. While that scheme was met with widespread popular opposition and went nowhere, the Supreme Court "got the message". And, in 1937, only two years after Schecter Poultry, the Supreme Court decided J&L Steel. While purporting to distinguish Schecter, the J&L decision effectively guts it by holding that it is primarily up to Congress, not the Courts, to determine what activities have a sufficient impact on commerce to warrant federal regulation:
Over the next 60 years, this "deference" to Congress became almost complete: regardless of how tenuous the connection or impact, a "finding" by Congress that a particular activity "affected interstate commerce" was seen as sufficient to allow Congress to regulate that activity.The congressional authority to protect interstate commerce from burdens and obstructions is not limited to transactions which can be deemed to be an essential part of a 'flow' of interstate or foreign commerce. Burdens and obstructions may be due to injurious action springing from other sources. The fundamental principle is that the power to regulate commerce is . . . the power to enact 'all appropriate legislation' for its 'protection or advancement'. . . ; to adopt measures 'to promote its growth and insure its safety' . . . ; 'to foster, protect, control, and restrain.' . . . That power is plenary and may be exerted to protect interstate commerce 'no matter what the source of the dangers which threaten it.' . . . Although activities may be intrastate in character when separately considered, if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions, Congress cannot be denied the power to exercise that control. . . . Whatever amounts to more or less constant practice, and threatens to obstruct or unduly to burden the freedom of interstate commerce is within the regulatory power of Congress under the commerce clause, and it is primarily for Congress to consider and decide the fact of the danger and to meet it.
In recent years, the Rehnquist Court has appeared to be trying to step back from this abdication and to undertake a more searching inquiry into the reality of the impact on interstate commerce, and this led to the invalidation of several federal statutes and regulations on the grounds that the nexus between the regulated activity and interstate commerce was simply too remote to be within the commerce power. For instance, in United States v. Lopez, the court struck down a federal statute making it a crime to possess a firearm within a school zone. In United States v. Morrisonn, the Court struck down a federal statute providing a federal cause of action to victims of gender-motivated violence. And in my personal favorite, Solid Waste Agency v. U.S. Army Corps of Engineers, the Court held that an isolated water body having no connection with interstate waters was beyond the reach of the Commerce Clause even if it might be used by migratory birds.
All three of these cases were 5-4 decisions with Rehnquist, O'Connor, Kennedy, Scalia, and Thomas in the majority and Stevens, Souter, Ginsburg and Breyer in the minority. And together, these cases led to a widespread belief (hailed by conservatives and condemned by liberals) that the Rehnquist Court was in the process of breathing new life into the idea that there were actually limits to Congress' power under the Commerce Clause.
It is this that makes the recent medical marijuana case so interesting. Relying directly on Lopez and Morrison, the plaintiffs in that case argued that the purely personal possession of marijuana with no intent to sell or distribute it to third parties was an activity whose connection to interstate commerce was so remote as to place it beyond the reach of the Commerce Clause. Given those prior cases and the presumed desire of the Rehnquist Court to place limits on the Commerce Power, one could well be excused for assuming that the Lopez/Morrison/SWA majorities would hold. Indeed, given the privacy implications and the humanitarian purposes of the State law at issue, one might well have expected some of the more "liberal" justices who dissented in the prior cases to join the conservatives in the medical marijuana case. But, it did not happen. The liberal bloc (Stevens, Souter, Ginsburg and Breyer) held fast in its belief that there really were no limits to the Commerce Power and it was the "conservative" bloc that splintered with O'Connor and Scalia joining in asserting that the federal law banning marijuana possession was within the commerce power. This reversal has led some to question whether the "Rehnquist revolution" might well have already run its course.
Frankly, I hope not. Still, it has to be recognized that the outcome of this analysis is very result-oriented. For instance, it is the Commerce Clause that underlies many federal statutes that I fully support -- the 1964 Civil Rights Act being by far the best example of this. Yet it is not hard to argue that the connection between interstate commerce and racial discrimination at Joe's Diner is pretty remote. Thus, a more narrow interpretation of the Commerce Clause could well call into question some of the federal legislation that many of us value most. At the same time, the admonition in Schecter Poultry quoted above has proved all too true: construing the commerce clause to reach anything that can be said to have an indirect effect upon interstate commerce has in fact extended federal authority to practically all the activities of the people. That, it seems to me, is not a good thing either.
In the end, I guess, how you come out on this question depends a lot on whether you believe in federalism itself. Insofar as the United States is a single country, should its laws be essentially uniform or should differences among the states be allowed, even encouraged? Allowing differences among the States tends to make the Country more free. But, allowing states to have different rules also allows them to depart from what the vast majority of the Country as a whole believes to be "acceptable". Consider, for instance, Mississippi in 1964. It is this very tension that has led to the shifting views of the Court on this issue over time, and I for one have no better way of addressing this issue that the essentially ad hoc approach that has been used by the Court so far, reflecting, as it does, the evolving values of the Country as a whole.
Friday, June 10, 2005
A Guide to the Patriot Act
As you must know, unless you have been living under a rock for the last couple of years, a number of the most controversial provisions of the Patriot Act will sunset this year unless Congress extends them. The battle lines over these provisions have been drawn, with civil libertarians pushing hard for repeal and the Administration pushing hard to retain and even broaden federal investigative powers.
I am a passionate supporter of civil liberties and, having come of age during the Nixon Administration, I am deeply, deeply skeptical when the government asserts "national security" as a basis for significant privacy invasions. As a result, I was pretty much dead set against the Patriot Act even when first adopted shortly after 9/11, and I have become even more opposed since then as I have watched the Bush administration's aggressive moralism and the influence the Religious Right has over that Administration.
Still, I must confess with some embarrassment that my opposition has been purely instinctive. I have never read the Act itself, nor have I even tried to learn from other sources what it actually does or does not do. I decided to rectify that today, but was dismayed to find that it is several hundred pages long. So, to try and ease my way into this effort, I decided to look for an analysis. That took a while, since most of what is written about the Act is either very superficial or pure screed -- or both. However, after some looking, I did find an excellent four part summary and analysis that was published in Slate. To save all of you the trouble of looking yourself, here are the links:
Patriot Act, Part 1
Patriot Act, Part 2
Patriot Act, Part 3
Patriot Act, Part 4
I urge you to read all four parts. Then, if you're really into it, you can read the Act itself here.
I am a passionate supporter of civil liberties and, having come of age during the Nixon Administration, I am deeply, deeply skeptical when the government asserts "national security" as a basis for significant privacy invasions. As a result, I was pretty much dead set against the Patriot Act even when first adopted shortly after 9/11, and I have become even more opposed since then as I have watched the Bush administration's aggressive moralism and the influence the Religious Right has over that Administration.
Still, I must confess with some embarrassment that my opposition has been purely instinctive. I have never read the Act itself, nor have I even tried to learn from other sources what it actually does or does not do. I decided to rectify that today, but was dismayed to find that it is several hundred pages long. So, to try and ease my way into this effort, I decided to look for an analysis. That took a while, since most of what is written about the Act is either very superficial or pure screed -- or both. However, after some looking, I did find an excellent four part summary and analysis that was published in Slate. To save all of you the trouble of looking yourself, here are the links:
Patriot Act, Part 1
Patriot Act, Part 2
Patriot Act, Part 3
Patriot Act, Part 4
I urge you to read all four parts. Then, if you're really into it, you can read the Act itself here.
It Really Wasn't About Marijuana At All -- A Quiz
A number of States, including California, have adopted laws authorizing people to grow and possess marijuana for personal medical use when such use is prescribed by a doctor. That virulent prude, defender of federal power (when used in righteous ways of course), and scourge of State's Rights (when used in the promotion of evil)John Ashcoft did not like that. Using marijuana is a sin don't you know, even when being used under a doctor's supervisions by terminally ill cancer patients for palliative reasons. So, righteous John ginned up a test case by sending the DEA into some private homes in California to seize marijuana being grown in conformance with State law.
On Monday, the Supreme Court issued its decision in the case: federal law controls and States may not allow anyone to possess marijuana for any reason. That's too bad, of course, but, for the Justices at least, the case had almost nothing to do with marijuana. One can divine this much simply by looking at how the Justices split.
I want you to guess how each Justice voted. To help you here is a list of the Justices ordered (approximately) from most "liberal" to most "conservative":
Ginsberg
Breyer
Souter
Stevens
Kennedy
O'Connor
Rhenquist
Scalia
Thomas
Don't cheat now. Given their political leanings, try to guess who voted for allowing medical marijuana and who voted against. The answer -- and the reasons -- will be provided in the next post.
On Monday, the Supreme Court issued its decision in the case: federal law controls and States may not allow anyone to possess marijuana for any reason. That's too bad, of course, but, for the Justices at least, the case had almost nothing to do with marijuana. One can divine this much simply by looking at how the Justices split.
I want you to guess how each Justice voted. To help you here is a list of the Justices ordered (approximately) from most "liberal" to most "conservative":
Ginsberg
Breyer
Souter
Stevens
Kennedy
O'Connor
Rhenquist
Scalia
Thomas
Don't cheat now. Given their political leanings, try to guess who voted for allowing medical marijuana and who voted against. The answer -- and the reasons -- will be provided in the next post.
It Really Wasn't About Marijuana At All -- The Answer
Here the decision:Gonzalez v. Raich. The split:
For John Ashcroft and his campaign to stamp out reefer madness among cancer patients:
Ginsburg
Breyer
Souter
Stevens
Kennedy
For allowing the terminally ill to use marijuana:
O'Connor
Rhenquist
Thomas
And Scalia? He's off by himself, voting with the majority but writing a separate (and amazingly tortured) opinion.
The reason for this split was, again, that the real issue was not medical marijuana, but the scope of Congress' power to regulate interstate commerce. This power provides the foundation for virtually every regulatory statute enacted by Congress in the last 75 years. As a consequence, those who believe in federal control and activism favor a broad interpretation of the commerce clause. Those who distrust federal power and favor federalism (i.e. greater power of the states to make their own rules free of federal interference) tend to want to read the commerce power more narrowly.
The federal Controlled Substances Act, which was the federal statute at issue in Gonzales, is based on the commerce clause. It is, literally, a ban on "commerce" in controlled substances. The Plaintiff medical marijuana users argued that the activities at issue in Gonzales did not involve commerce and did not significantly impact commerce. Thus, they argued that applying the prohibitions of the CSA to those activities in derogation of state laws authorizing them exceeded Congress' power.
The five most "liberal" members of the court rejected that argument. Why? Because, in the end, they were more interested in preserving federal power than they in vindicating the rights of states to depart from federal standards. The conservatives (Scalia excepted) would have accepted the argument for precisely the opposite reason.
Perhaps the wierdest thing about this whole case is that, in it, we have the most conservative Administration since Calvin Coolidge urging the court to confirm (and perhaps expand) federal power in derogation of State's rights. My how the worm has turned from 1964. Liberals have always favored federal intervention. After all, that's how civil rights law and other aspects of the liberl agenda was imposed on recalcitrant states. We no learn, hawever, that, despite their historic peaens to federalism, State's Rights and limited government, Conservatives are not actually opposed to federal power in principle. They are only opposed to liberals wielding it.
For John Ashcroft and his campaign to stamp out reefer madness among cancer patients:
Ginsburg
Breyer
Souter
Stevens
Kennedy
For allowing the terminally ill to use marijuana:
O'Connor
Rhenquist
Thomas
And Scalia? He's off by himself, voting with the majority but writing a separate (and amazingly tortured) opinion.
The reason for this split was, again, that the real issue was not medical marijuana, but the scope of Congress' power to regulate interstate commerce. This power provides the foundation for virtually every regulatory statute enacted by Congress in the last 75 years. As a consequence, those who believe in federal control and activism favor a broad interpretation of the commerce clause. Those who distrust federal power and favor federalism (i.e. greater power of the states to make their own rules free of federal interference) tend to want to read the commerce power more narrowly.
The federal Controlled Substances Act, which was the federal statute at issue in Gonzales, is based on the commerce clause. It is, literally, a ban on "commerce" in controlled substances. The Plaintiff medical marijuana users argued that the activities at issue in Gonzales did not involve commerce and did not significantly impact commerce. Thus, they argued that applying the prohibitions of the CSA to those activities in derogation of state laws authorizing them exceeded Congress' power.
The five most "liberal" members of the court rejected that argument. Why? Because, in the end, they were more interested in preserving federal power than they in vindicating the rights of states to depart from federal standards. The conservatives (Scalia excepted) would have accepted the argument for precisely the opposite reason.
Perhaps the wierdest thing about this whole case is that, in it, we have the most conservative Administration since Calvin Coolidge urging the court to confirm (and perhaps expand) federal power in derogation of State's rights. My how the worm has turned from 1964. Liberals have always favored federal intervention. After all, that's how civil rights law and other aspects of the liberl agenda was imposed on recalcitrant states. We no learn, hawever, that, despite their historic peaens to federalism, State's Rights and limited government, Conservatives are not actually opposed to federal power in principle. They are only opposed to liberals wielding it.
Thursday, June 09, 2005
Bush Things I Like
I had dinner the other night with a friend from Texas. He is one of the few people to have actually left tracks here on occasion, and he was needling me a bit, suggesting that I had become boringly predictable in my constant Bush bashing. I'm not sure it's really as bad as all that, but it is true that I have rarely had much good to say for Georgie. So, as a change of pace, let me confess that there are a number of Bush's ideas I do support. There may be more, but here are five that jump immediately to mind:
Invading Afghanistan: This is probably the no-brainer in the bunch. Immediately after 9/11, when talk about going into Afghanistan first started circulating, I was appalled. Not by the idea, mind you. I shared with most people the sense that the United States had to take effective action in response to the 9/11 attacks, and, given the despicable nature of the Taliban in general and its support of bin Laden in particular, nothing would have pleased me more than to take the bastards out. No, it was not the concept that horrified me, it was the "obvious" impracticality of an invasion. After all, the Soviet Union at the height of its power had tried the same thing and had failed miserably despite having a common border with the country. Not only did the United States not have a common border, it did not even have any friends or vassals that had a common border. And the country was completely landlocked, so invasion forces could not even be supplied by sea. An invasion seemed to me to offer only two possible outcomes, one very bad and the other even worse. Either it would turn out like Viet Nam, getting us permanently bogged down in a war we could not win and in so doing vitiating the international sympathy support that the 9/11 attacks generated. Or, worse yet, it would turn out like Reagan's foray into Lebanon or Bush's/Clinton's foray into Somalia, with the US turning tail and running, an outcome that would only serve to make us look helpless and scared and to further embolden Al Queda. The only practical option for "punishing" the Taliban appeared to be bombing and cruise missiles. But in a country as backward as Afghanistan, could anything be more futile? Indeed, Clinton had already tried this, and the net result was to make us look silly and impotent.
But Bush had the courage to act despite the odds and he and his administration had the diplomatic and military skill to pull it off. Had he stopped there and focused on building a working country in Afghanistan, he would have been my hero. Instead, the success of the Afghan operation, which probably surprised even Bush, gave him and his administration a bad case of megalomania, and they decided that if they could do it in Afghanistan, then they could do it anywhere. Thus, we took our triumph in Afghanistan and threw it down the rat hole of Iraq. That is so sad. (For a description of what I think might have been, see this). But, the aftermath should not blind us to the remarkable courage and skill involved in the Afghan operation itself.
Israel/Palestine: I am slightly more ambivalent about Bush's actions with respect to Israel and the Palestinians. The ambivalence stems from Bush's April 2004 letter to Sharon, saying that "[i]n light of new realities on the ground, including already existing major Israeli populations centers, it is unrealistic to expect that the outcome of final status negotiations will be a full and complete return to the armistice lines of 1949." That statement, which appears to endorse Israeli retention of at least some of the West Bank settlements represented a major shift in US policy and is something I believe the United States will come to regret. Having given that prize to Sharon, though, enabled Bush to continue to pressure Sharon to follow through on the Gaza withdrawal (an truly wrenching event for Israel) and to pursue a policy, with which I whole heartedly agree, of providing financial and political support for the Palestinians. As I have argued elsewhere, the threat to US interests posed by radical Islam cannot be won by force of arms alone. The US must also address some of the causes of Arab antipathy to the US. And, while the plight of the Palestinians is not the only one of those causes, it is probably the single most important of them. Nothing would do more to improve US relations with the Arab world than for the Arabs to begin to see the US as an honest broker, as concerned about the Palestinians as it is about the Israelis. Bush seems to be moving in that direction, and, as such, this is another area in which he has my support.
Clean Air Act Reform:This one is a bit esoteric, but it is something I know a bit about, since I have been working with the Clean Air Act for over 25 years now. With the possible exception of his rejection of the Kyoto Treaty, Bush's efforts to reform the Clean Air Act's "new source review" programs have been the most wildly controversial of any of Bush's environmental policies. See, for instance, NRDC's attack, which is (believe it or not) one of the milder of the distortions leveled at Bush's proposals. I am not going to bore you with a point-by-point rebuttal, but virtually every statement made by NRDC is simply wrong as a matter of both fact and law.
The NSR program was originally designed, not to force reductions in emissions, but to prevent new sources and significant modification to existing sources from causing significant increases in emissions. Requirements for reductions needed to meet various health-based standards are contained in other provisions of the Act. Until the mid-90s, the NSR programs functioned fairly well in this regard, although there was widespread recognition that there were elements of the NSR program that needed to be changed. Indeed, EPA conducted NSR reform proceedings and rulemaking for nearly two decades. However, late in the Clinton Administration, USEPA's enforcement branch decided that it could use the NSR programs to produce emission reductions by initiating lawsuits and launching extraordinarily burdensome administrative investigations based on a theory that entire industries (refining, electric utilities, paper, etc.) had systematically violated NSR requirements for over 20 years. This claim appealed to environmental groups, who are readily inclined, even eager, to accept the notion that all companies are scofflaws. But anyone other than a dedicated conspiracy theorist would have realized, had he actually thought about it, that a claim that entire industries were ignoring the law is preposterous. It's like arguing that the entire Army is out of step. When everyone is out of compliance, no one is. Nevertheless, EPA launched its various NSR "enforcement initiatives" basing its claims on interpretations of the rules which were at least arguably at odds with EPA's own prior interpretations and which were clearly at odds with the common understanding of those rules that had emerged over the 20 or so years they had been in effect. Purporting to have "discovered" widespread (actually universal) noncompliance, what EPA actually did was to create it.
Not surprisingly, industry cried foul, and when Bush/Cheney were elected, industry gained an audience willing to listen. The result has been what the environmental mafia characterize as a sell-out. What Bush/Cheney actually proposed, though, was nothing of the kind. First, they adopted changes to the NSR rules that served to clarify what was required and to return the NSR program to its original purposes: assuring the significant new projects would not result in significant increases in emissions. Far from gutting these rules, the Bush changes are in a number of respects more stringent that what at least two courts have determined is required under the pre-existing rules. Second they proposed legislation that would have directly mandated significant emission reductions in nitrogen oxides, sulfur oxides and mercury -- exactly what the enviros had said they wanted from NSR.
The enviro response: they opposed both. They want EPA to keep the NSR rules and continue to pursue emission reductions through enforcement actions. And, they oppose Clear Skies because it doesn't do enough.
This position is absolutely perverse. Despite almost ten years and millions upon millions of dollars, EPA has achieved almost nothing in it's litigation efforts. And, after a couple of early favorable judicial decisions, it has now lost three straight cases. In one of these, the 11th Circuit declared part of the Clean Air Act unconstitutional. And, in the two others, district court judges adopted interpretations of the "old" NSR rules that have been advocated by industry for years and that are actually substantially less stringent that the "reformed" rules the enviros so despise. And, by opposing Clear Skies because it didn't go far enough, they have successfully assured than nothing would be done in terms of mandating additional emission reductions.
I am very, very skeptical of the need for significant additional emission reductions. So, I am not alll that unhappy that the enviros have been so effective in preventing them. But, this is a case study in why liberal willingness to vehemently oppose "anything Bush just becuase it is Bush" is so totally counter- productive to the liberals' own interests.
Private Accounts For Social Security: For reasons discussed in more detail here, I agree with Bush that private accounts should be a component of Social Security reform.
CAFTA: While I must confess to knowing little about the details of CAFTA, I am a true believer when it comes to reducing trade barriers. So, I support anything which moves in this direction.
It's true, I do not believe Bush's "virtues" make up for his "vices." However, neither to I oppose everything he is doing.
Invading Afghanistan: This is probably the no-brainer in the bunch. Immediately after 9/11, when talk about going into Afghanistan first started circulating, I was appalled. Not by the idea, mind you. I shared with most people the sense that the United States had to take effective action in response to the 9/11 attacks, and, given the despicable nature of the Taliban in general and its support of bin Laden in particular, nothing would have pleased me more than to take the bastards out. No, it was not the concept that horrified me, it was the "obvious" impracticality of an invasion. After all, the Soviet Union at the height of its power had tried the same thing and had failed miserably despite having a common border with the country. Not only did the United States not have a common border, it did not even have any friends or vassals that had a common border. And the country was completely landlocked, so invasion forces could not even be supplied by sea. An invasion seemed to me to offer only two possible outcomes, one very bad and the other even worse. Either it would turn out like Viet Nam, getting us permanently bogged down in a war we could not win and in so doing vitiating the international sympathy support that the 9/11 attacks generated. Or, worse yet, it would turn out like Reagan's foray into Lebanon or Bush's/Clinton's foray into Somalia, with the US turning tail and running, an outcome that would only serve to make us look helpless and scared and to further embolden Al Queda. The only practical option for "punishing" the Taliban appeared to be bombing and cruise missiles. But in a country as backward as Afghanistan, could anything be more futile? Indeed, Clinton had already tried this, and the net result was to make us look silly and impotent.
But Bush had the courage to act despite the odds and he and his administration had the diplomatic and military skill to pull it off. Had he stopped there and focused on building a working country in Afghanistan, he would have been my hero. Instead, the success of the Afghan operation, which probably surprised even Bush, gave him and his administration a bad case of megalomania, and they decided that if they could do it in Afghanistan, then they could do it anywhere. Thus, we took our triumph in Afghanistan and threw it down the rat hole of Iraq. That is so sad. (For a description of what I think might have been, see this). But, the aftermath should not blind us to the remarkable courage and skill involved in the Afghan operation itself.
Israel/Palestine: I am slightly more ambivalent about Bush's actions with respect to Israel and the Palestinians. The ambivalence stems from Bush's April 2004 letter to Sharon, saying that "[i]n light of new realities on the ground, including already existing major Israeli populations centers, it is unrealistic to expect that the outcome of final status negotiations will be a full and complete return to the armistice lines of 1949." That statement, which appears to endorse Israeli retention of at least some of the West Bank settlements represented a major shift in US policy and is something I believe the United States will come to regret. Having given that prize to Sharon, though, enabled Bush to continue to pressure Sharon to follow through on the Gaza withdrawal (an truly wrenching event for Israel) and to pursue a policy, with which I whole heartedly agree, of providing financial and political support for the Palestinians. As I have argued elsewhere, the threat to US interests posed by radical Islam cannot be won by force of arms alone. The US must also address some of the causes of Arab antipathy to the US. And, while the plight of the Palestinians is not the only one of those causes, it is probably the single most important of them. Nothing would do more to improve US relations with the Arab world than for the Arabs to begin to see the US as an honest broker, as concerned about the Palestinians as it is about the Israelis. Bush seems to be moving in that direction, and, as such, this is another area in which he has my support.
Clean Air Act Reform:This one is a bit esoteric, but it is something I know a bit about, since I have been working with the Clean Air Act for over 25 years now. With the possible exception of his rejection of the Kyoto Treaty, Bush's efforts to reform the Clean Air Act's "new source review" programs have been the most wildly controversial of any of Bush's environmental policies. See, for instance, NRDC's attack, which is (believe it or not) one of the milder of the distortions leveled at Bush's proposals. I am not going to bore you with a point-by-point rebuttal, but virtually every statement made by NRDC is simply wrong as a matter of both fact and law.
The NSR program was originally designed, not to force reductions in emissions, but to prevent new sources and significant modification to existing sources from causing significant increases in emissions. Requirements for reductions needed to meet various health-based standards are contained in other provisions of the Act. Until the mid-90s, the NSR programs functioned fairly well in this regard, although there was widespread recognition that there were elements of the NSR program that needed to be changed. Indeed, EPA conducted NSR reform proceedings and rulemaking for nearly two decades. However, late in the Clinton Administration, USEPA's enforcement branch decided that it could use the NSR programs to produce emission reductions by initiating lawsuits and launching extraordinarily burdensome administrative investigations based on a theory that entire industries (refining, electric utilities, paper, etc.) had systematically violated NSR requirements for over 20 years. This claim appealed to environmental groups, who are readily inclined, even eager, to accept the notion that all companies are scofflaws. But anyone other than a dedicated conspiracy theorist would have realized, had he actually thought about it, that a claim that entire industries were ignoring the law is preposterous. It's like arguing that the entire Army is out of step. When everyone is out of compliance, no one is. Nevertheless, EPA launched its various NSR "enforcement initiatives" basing its claims on interpretations of the rules which were at least arguably at odds with EPA's own prior interpretations and which were clearly at odds with the common understanding of those rules that had emerged over the 20 or so years they had been in effect. Purporting to have "discovered" widespread (actually universal) noncompliance, what EPA actually did was to create it.
Not surprisingly, industry cried foul, and when Bush/Cheney were elected, industry gained an audience willing to listen. The result has been what the environmental mafia characterize as a sell-out. What Bush/Cheney actually proposed, though, was nothing of the kind. First, they adopted changes to the NSR rules that served to clarify what was required and to return the NSR program to its original purposes: assuring the significant new projects would not result in significant increases in emissions. Far from gutting these rules, the Bush changes are in a number of respects more stringent that what at least two courts have determined is required under the pre-existing rules. Second they proposed legislation that would have directly mandated significant emission reductions in nitrogen oxides, sulfur oxides and mercury -- exactly what the enviros had said they wanted from NSR.
The enviro response: they opposed both. They want EPA to keep the NSR rules and continue to pursue emission reductions through enforcement actions. And, they oppose Clear Skies because it doesn't do enough.
This position is absolutely perverse. Despite almost ten years and millions upon millions of dollars, EPA has achieved almost nothing in it's litigation efforts. And, after a couple of early favorable judicial decisions, it has now lost three straight cases. In one of these, the 11th Circuit declared part of the Clean Air Act unconstitutional. And, in the two others, district court judges adopted interpretations of the "old" NSR rules that have been advocated by industry for years and that are actually substantially less stringent that the "reformed" rules the enviros so despise. And, by opposing Clear Skies because it didn't go far enough, they have successfully assured than nothing would be done in terms of mandating additional emission reductions.
I am very, very skeptical of the need for significant additional emission reductions. So, I am not alll that unhappy that the enviros have been so effective in preventing them. But, this is a case study in why liberal willingness to vehemently oppose "anything Bush just becuase it is Bush" is so totally counter- productive to the liberals' own interests.
Private Accounts For Social Security: For reasons discussed in more detail here, I agree with Bush that private accounts should be a component of Social Security reform.
CAFTA: While I must confess to knowing little about the details of CAFTA, I am a true believer when it comes to reducing trade barriers. So, I support anything which moves in this direction.
It's true, I do not believe Bush's "virtues" make up for his "vices." However, neither to I oppose everything he is doing.
Wednesday, June 08, 2005
Liberals Rethinking Senate Filibuster Deal
Not surprisingly, some Democrats are unhappy that the result of the filibuster deal worked out a couple weeks ago will be the confirmation of several judges they have long opposed. This, they say, was too high a price. Indeed, they are coming to believe that they may not have accomplished anything, since there is no guarantee that Bush will not continue to push the same slate of judges he would have before the deal in any event. Given that Bush's most obvious character trait is an absolute refusal to ever depart from a particular course once he has set out on it, I must say that the Democrats were silly to think the filibuster deal would make Bush more moderate on this point.
James Taranto has a lot of fun with the Democrats' discomfiture in this regard. Here's a sample:
Democratic angst over the filibuster deal would be justified only if there were some reason to believe that the Democrats could have stopped any of these judges from being confirmed had they "hung tough". They could not have. In the face of an obdurate refusal of Bush to compromise and of moderate Republicans to oppose any of Bush's nominations, a 55 to 45 Republican majority is simply too big for the Democrats to overcome. If they had decided to go to the mat on the issue, all they would have succeeded in doing is losing the right to filibuster at all. This, in fact, would have made things a lot worse from their perspective. In the end, having a sizable majority matters. Given this situation they are in, the most the Democrats could have hoped for was to live to fight another day. This is what the filibuster deal gave them. And it is silly to suggest that that is worthless.
On the other hand, James Taranto's glee is probably unwarranted as well. What Bush has won so far is only this: He has gotten five or so additional Court of Appeals judges appointed. Frankly, even if these five people were as "extreme" or as "out of the mainstream" (whatever THAT means) as the Democrats claim them to be, having five more such judges spread among the 11 Courts of Appeals is simply not going have all that much of an effect. Taranto, in short, greatly overstates the significance of these appointments. The battle that is potentially significant is the one over the next Supreme Court nominee. And, no one doubts that given the significance of such an appointment it would be exactly the sort of "extraordinary circumstances" that would leave the Democrats free to filibuster. In short, all the Republicans have won so far is an initial and not very significant skirmish. The important battle is yet to come.
The really interesting question, then, is what impact the filibuster deal will have on a Bush Supreme Court nomination, assuming there is one. Initially, atleast, such a nomination is likely to put the Senate back where it was before the filibuster deal, with the Democrats vowing to filibuster and Frist vowing to end filibusters altogether. One could hope for a different outcome, of course -- some sort of compromise -- but Bush seems irreversibly in the thrall of the Christian Right and the Democrats are so pathologically ant-Bush that they would probably oppose Earl Warren if Bush nominated him. So a fight seems inevitable. The outcome of that fight will depend on how the Republican "gang of 7" responds.
The expectation, of course, is that, when push comes to shove, party discipline will prevail and the 7 will fall in line. If so, the Democrats will lose, and the only question will be whether they lose only the confirmation or both the confirmation and the filibuster. But, I'm not sure that's what will actually happen. A lot depends, of course, on how outrageous the nominee is. If the Dems are opposing someone solely because Bush nominated him/her, they will lose. But, if Bush actually proposes someone that is a right wing idealogue, my guess is that the Republican gang of 7 is going to be in a tough, tough spot.
This then is the principal benefit of the filibuster deal for the Democrats: it creates risk for Bush. And the existance of risk tempers action. That is about the best the Democrats can do right now.
PS: I think the importance of this whole issue is vastly overblown. As I pointed out in an earlier post, there is something about becoming a Supreme Court Justice that changes people. They become very concious of their place in history and the awesome power they wield. That, coupled with the freedom from political pressure provided by a lifetime appointment makes even very apparently doctrinaire nominees considerably more introspective about what positions they take. Witness Justice Kennedy.
James Taranto has a lot of fun with the Democrats' discomfiture in this regard. Here's a sample:
The first stage of the compromise--the end of the filibusters of Priscilla Owen, Brown and William Pryor--is a political disaster for the Democrats. Not only are the three judges they condemned as "extremist" almost certain to be confirmed (Owen already has been), but the smear campaigns against them are being exposed as ridiculous.But, I think his gloating is as overblown and premature as is the Democratic hand-wringing.
Democratic angst over the filibuster deal would be justified only if there were some reason to believe that the Democrats could have stopped any of these judges from being confirmed had they "hung tough". They could not have. In the face of an obdurate refusal of Bush to compromise and of moderate Republicans to oppose any of Bush's nominations, a 55 to 45 Republican majority is simply too big for the Democrats to overcome. If they had decided to go to the mat on the issue, all they would have succeeded in doing is losing the right to filibuster at all. This, in fact, would have made things a lot worse from their perspective. In the end, having a sizable majority matters. Given this situation they are in, the most the Democrats could have hoped for was to live to fight another day. This is what the filibuster deal gave them. And it is silly to suggest that that is worthless.
On the other hand, James Taranto's glee is probably unwarranted as well. What Bush has won so far is only this: He has gotten five or so additional Court of Appeals judges appointed. Frankly, even if these five people were as "extreme" or as "out of the mainstream" (whatever THAT means) as the Democrats claim them to be, having five more such judges spread among the 11 Courts of Appeals is simply not going have all that much of an effect. Taranto, in short, greatly overstates the significance of these appointments. The battle that is potentially significant is the one over the next Supreme Court nominee. And, no one doubts that given the significance of such an appointment it would be exactly the sort of "extraordinary circumstances" that would leave the Democrats free to filibuster. In short, all the Republicans have won so far is an initial and not very significant skirmish. The important battle is yet to come.
The really interesting question, then, is what impact the filibuster deal will have on a Bush Supreme Court nomination, assuming there is one. Initially, atleast, such a nomination is likely to put the Senate back where it was before the filibuster deal, with the Democrats vowing to filibuster and Frist vowing to end filibusters altogether. One could hope for a different outcome, of course -- some sort of compromise -- but Bush seems irreversibly in the thrall of the Christian Right and the Democrats are so pathologically ant-Bush that they would probably oppose Earl Warren if Bush nominated him. So a fight seems inevitable. The outcome of that fight will depend on how the Republican "gang of 7" responds.
The expectation, of course, is that, when push comes to shove, party discipline will prevail and the 7 will fall in line. If so, the Democrats will lose, and the only question will be whether they lose only the confirmation or both the confirmation and the filibuster. But, I'm not sure that's what will actually happen. A lot depends, of course, on how outrageous the nominee is. If the Dems are opposing someone solely because Bush nominated him/her, they will lose. But, if Bush actually proposes someone that is a right wing idealogue, my guess is that the Republican gang of 7 is going to be in a tough, tough spot.
This then is the principal benefit of the filibuster deal for the Democrats: it creates risk for Bush. And the existance of risk tempers action. That is about the best the Democrats can do right now.
PS: I think the importance of this whole issue is vastly overblown. As I pointed out in an earlier post, there is something about becoming a Supreme Court Justice that changes people. They become very concious of their place in history and the awesome power they wield. That, coupled with the freedom from political pressure provided by a lifetime appointment makes even very apparently doctrinaire nominees considerably more introspective about what positions they take. Witness Justice Kennedy.
Tuesday, June 07, 2005
Thinking Big On Civil Rights
Casting about for something interesting to opine on today, I came across Kevin Drums' challenge to "think big" on the issue of civil rights:
As noted, there is one exception to this: gays. Discrimination based on sexual orientation is probably the last form of de jure discrimination still widely practiced in this country. As such, it is a form of discrimination where legislation could make a huge difference. So, my first reaction to Kevin's question was that what I would most want to see (ignoring as he suggests the practicalities of achieving this) would be legislation outlawing discrimination based on sexual orientation.
But, as I thought about it, what I would really like is something broader; something that would achieve the same result for gays and yet offer benefits to us heteros as well. That something is an explicit and general right of privacy: a right to be "let alone" both by the government and by private institutions with respect to my personal, private actions and activities so long as those actions and activities do not unreasonably interfere with the correlative right of others to be similarly left alone. In fact, as long as we are thinking big, I would eschew legislation and incorporate that right into the Constitution itself. Something along the following lines:
The right to marry the person of one's choosing, even if of the same gender, would also be protected. This too is a quintessentially private matter and there is no evidence to suggest that such marriages have any adverse impact on the health, safety, welfare or property or rights of any third party.
Even laws against such things as prostitution and polygamy would be inherently suspect and before the state would be permitted to ban or regulate such activities, it would have to show (a) that such activities posed an appreciable threat to the safety, health, welfare or property of third parties and (b) that the a ban or lesser methods chosen to regulate such activities imposed no greater constraint on the right of privacy than was necessary to protect such third parties.
But what I have in mind is broader than sex. For instance, laws criminalizing possession or use of drugs vel non would also be suspect, although laws banning or regulating the trafficking in such drugs would be acceptable. Also, it would still be permissible for the government and private entities to exclude drug users from certain positions based on a demonstrated potential for harm to third parties that might result from drug use in those positions.
Also, the right of privacy would extend to government and private investigations into private activities, except as authorized by legislation that has itself been shown to be necessary to protect third parties.
I am sure that this proposal is fully subject to the law of unintended consequences, and I will not pretend to have thought through all of the problems that might arise under such an amendment. But, I do believe that the right of privacy is by far the single most important right inherent in the concept of freedom, and I would like to at least hear a debate on ways to better protect that right.
BIG IDEAS....PART 1....Here's a question for you. I am going to choose a series of broad subjects and ask my readers what single thing they would like to see done about them. Today's subject is....civil rights.As the quote indicates, Kevin was thinking primarily in terms of race. But I agree with several of his commenters that race is probably not the "big" civil rights issue anymore, especially if you are talking about what might be accomplished through legislation. This is not to say that racism has ceased to exist or is no longer a concern. It does exist and it is a concern. But it is hard to see what more could be accomplished legislatively at this point. At best, laws can only regulate overt conduct. Racism and, with one notable exception, other forms of suspect class discrimination (gender, religion, national origin, etc.) are today much more a matter of attitude that they are of overt action, and the law is a very poor instrument by which to seek to change attitudes. Indeed, seeking to use law to change attitudes is when civil rights and civil liberties come most clearly into direct conflict.
You may interpret that broadly to mean race issues of any kind. So here is my question: if you could pass any single piece of federal legislation related to civil rights, what would it be? Think big! Assume we have a liberal president and big liberal majorities in Congress. Don't worry overmuch about the Supreme Court. The only real rule is that you only get to choose one thing.
What would it be?
UPDATE: Quick note: the subject is "civil rights," not "civil liberties." I'm thinking primarily of race issues, but you're welcome to suggest legislation dealing with other aspects of civil rights if you wish. I do intend to address feminist issues separately, though.
As noted, there is one exception to this: gays. Discrimination based on sexual orientation is probably the last form of de jure discrimination still widely practiced in this country. As such, it is a form of discrimination where legislation could make a huge difference. So, my first reaction to Kevin's question was that what I would most want to see (ignoring as he suggests the practicalities of achieving this) would be legislation outlawing discrimination based on sexual orientation.
But, as I thought about it, what I would really like is something broader; something that would achieve the same result for gays and yet offer benefits to us heteros as well. That something is an explicit and general right of privacy: a right to be "let alone" both by the government and by private institutions with respect to my personal, private actions and activities so long as those actions and activities do not unreasonably interfere with the correlative right of others to be similarly left alone. In fact, as long as we are thinking big, I would eschew legislation and incorporate that right into the Constitution itself. Something along the following lines:
Sex is the area in which a need for such a right is most obvious. Nothing could be more personal or private than sex. And, so long as the sex is between consenting adults, nothing could have less of an impact on the rights of others to be similarly left alone. Thus, the right of privacy I have in mind would be explicitly designed to invalidate most state and private regulation of adult, consensual, sexual activity and would make both government and private discrimination based on those choices unlawful.Section 1. The right of privacy being the cornerstone of liberty, neither the United States nor any State shall make any law prohibiting, regulating, or authorizing inquiry into the private activities of any person who is 18 years of age or older, except insofar as such a prohibition, regulation or inquiry is shown by the United States or the State to be reasonably necessary to protect the health, safety, welfare, or property of another person or the rights guaranteed to such other person under the Constitution.
Section 2. Except as may be authorized by legislation consistent with Section 1 of this article, no person shall unreasonably discriminate against another person based on that person's private activities or inquire into the private activities of another without consent.Section 3. The Congress shall have power to implement and enforce this article by appropriate legislation.
The right to marry the person of one's choosing, even if of the same gender, would also be protected. This too is a quintessentially private matter and there is no evidence to suggest that such marriages have any adverse impact on the health, safety, welfare or property or rights of any third party.
Even laws against such things as prostitution and polygamy would be inherently suspect and before the state would be permitted to ban or regulate such activities, it would have to show (a) that such activities posed an appreciable threat to the safety, health, welfare or property of third parties and (b) that the a ban or lesser methods chosen to regulate such activities imposed no greater constraint on the right of privacy than was necessary to protect such third parties.
But what I have in mind is broader than sex. For instance, laws criminalizing possession or use of drugs vel non would also be suspect, although laws banning or regulating the trafficking in such drugs would be acceptable. Also, it would still be permissible for the government and private entities to exclude drug users from certain positions based on a demonstrated potential for harm to third parties that might result from drug use in those positions.
Also, the right of privacy would extend to government and private investigations into private activities, except as authorized by legislation that has itself been shown to be necessary to protect third parties.
I am sure that this proposal is fully subject to the law of unintended consequences, and I will not pretend to have thought through all of the problems that might arise under such an amendment. But, I do believe that the right of privacy is by far the single most important right inherent in the concept of freedom, and I would like to at least hear a debate on ways to better protect that right.
Thursday, June 02, 2005
How Mark Felt Became 'Deep Throat'
I am sick of the coverage of the "Deep Throat" revelations. It somehow seems so seedy, so self-serving, and so yesterday. But this, at least, is interesting: How Mark Felt Became 'Deep Throat' It is Bob Woodward's story of how he first met and cultivated Felt as a source.
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