What’s to Be Done with the Burris Boy?

Roland Burris appears to be the one to fill Barack Obama’s sexy, well-toned shoes. Maybe. With Illinois Gov. Rod Blagojevich daring the Senate to do anything about it, what is the Senate to do?

The authors of Slate’s “Jurisprudence” column, Akhil Reed Amar and Josh Chafetz, believe that the Senate can stop Burris from taking office. For those of you following along at home, your relevant citations are Article I, § 5 and Amend. XVII. Oh, and don’t forget Powell v. McCormack, 395 U.S. 486 (1969). You’ll need that one later.

Prior to 1913, U.S. senators were chosen by state legislatures. Constitutionally, senators were seen as a liaison between the state government and the federal government; their election was too important to be left up to the people, who had their own representation in the House of Representatives, anyway. As might be expected, there was a lot of party wheeling and dealing that went on as potential senators exchanged favors in order to get the job. To sidestep the sleaze, many states enacted laws requiring their legislatures to appoint to the U.S. Senate the winner of a popular vote, effectively permitting direct election of senators.

The 17th Amendment finally permitted direct election of senators but with a twist: the “executive authority” of a state must call for a special election to fill a senator’s vacancy, but in the meantime, the state legislature must give that executive the power to name a temporary senator to the office in the meantime.

Amar and Chafetz argue that the use of the word “returns” in Art. I, § 5 is the key to this issue: “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members,” meaning each house of Congress can decide not to seat someone for one of those reasons. “Returns” in the 18th-century sense “involved a report of an appointment made by a sheriff or other official.” So, argue Amar and Chafetz, the Senate can just as readily exclude a member based on a corrupt appointment as it would based on a corrupt election.

Our friend Adam Clayton Powell, who had been duly elected to the House of Representatives in 1966, had been charged with misappropriating public funds. The House voted to deny him his seat based on these charges. Powell sued, alleging that the House couldn’t stop him from taking office, since he met all the “Qualifications” required of a House member (at least 25 years old, a U.S. citizen for seven years, and an inhabitant of the state he’s representing). The case is a little convoluted, since Powell was never seated in the 90th Congress to which he was elected. That Congress ended, but Powell was elected to the 91st Congress. The U.S. Supreme Court devoted about 90% of its ink to the question of whether or not it even had jurisdiction to adjudicate the issue. Lower courts concluded that they themselves did not have such jurisdiction, for a variety of reasons.

On the issue of whether or not the House had the power to exclude a duly-elected member, the court said it did not. It would be extremely dangerous, the Court said, to allow Congress to use the “Qualifications” clause to mean something other than merely raw qualifications, in this case a red herring to seat someone whom they felt was unseemly due to corruption charges. That would allow Congress to refuse to seat members who were chosen by the people. Appropriate relief, wrote Chief Justice Warren, would be for the House to initiate expulsion proceedings against Powell once the Congress convened.

The opinion, say Amar and Chafetz, emphasizes upholding the people’s choice, which doesn’t apply in the current Burris situation. But it does! Constitutionally, the governor acts in the people’s stead, for good or evil. What really should have happened is that the Illinois state legislature should have passed a bill stripping the governor of the authority to make the interim appointment. The legislature did not do that, however, partially due to Harry Reid and other Senate Democrats not wanting to risk losing the seat to a Republican in a special election. The U.S. Senate cannot make up for the lack of will of the Illinois legislature.

Certainly Senate Democrats are within their rights to refuse to let Burris caucus with them (although, Roland Burris can’t caucus with the Democrats because the person who appointed him initially demanded a bribe for the seat; Joe Lieberman can caucus with the Democrats, even though he actively campaigned against the Democratic presidential candidate to the point where he was stripped of his status as a Democratic superdelegate?). But I cannot see how excluding him from the Senate is possible. Sorry, Dems, you’ll just have to vote to expel him. You missed your opportunity.

Obama’s Progressive Street Cred

The selection of Rick Warren for the invocation at Barack Obama’s inauguration is troubling, to say the least. Many progressives are rightly outraged at the selection of a man who is virulently anti-choice and homophobic. Yet, this is only the latest in a series of Obama decisions that has left many progressives wondering who it was, exactly, they voted for. Apparently, “change” looks a lot like the Clinton administration. Rahm Emanuel is back. So is Eric Holder, formerly Deputy Attorney General. Most conspicuous of all, Hillary Clinton will be Secretary of State. A bevy of liberal-but-not-quite-progressive apologists have tried to explain away all of Obama’s decisions. Here is a list of some of their justifications:

• Obama is pursuing Abraham Lincoln’s “team of rivals” approach. Authors of this justification also cite Lyndon Johnson’s phrase: it’s better to keep one’s enemies “on the inside, pissing out” rather than “on the outside, pissing in.” By keeping his enemies in the White House, those enemies are not in Congress or on K Street trying to defeat his plans.
• Remember how we all said for six months that Obama’s qualifications don’t matter? Not so much. As such, he’s surrounding himself with a group of people who have experience working in a presidential administration, and the last Democratic presidency was Bill Clinton’s, so it only makes sense that he would choose people from there.
• Obama is sneakier than he seems (think I, Claudius, I suppose). He’s putting a lot of center-left (and, in some cases, center-right) Washington establishment politicians in key positions to pay lip service to that establishment. Don’t worry, it’s only a front. The real reforms are going to happen, but from behind a veil of mainstream non-reform. That’s the only way he can get things done down there.
• Obama does not want to continue the divisive politics of George W. Bush. Even though it might anger those on the hard left, Obama would rather heal and reconcile than punish.  Turn that cheek!

Some of these justifications are disturbing. The last one, that Obama should be conciliatory instead of punitive, is put forth by people who believe that the crimes of the George W. Bush administration should not be investigated. The country needs to heal, they say. It’s time to get on with the business of the United States, where “business” is defined so as to exclude investigations of the previous administration. Of course, this logic ignores the fact that the law has been broken. As Glenn Greenwald has observed, politicians are more than ready to throw the full force of the law at marijuana dealers, but when it comes to prosecuting their own, politicians are equally ready to be lenient, even though the marijuana dealer harmed no one and the politician may have, oh, I don’t know, been responsible for torture, extraordinary rendition, and warrantless wiretapping at the least. When crimes are committed, they should be investigated and prosecuted – not just for poor people, but for everyone, including politicians. For Barack Obama to suggest that Bush administration criminals should go free is to suggest that politicians live in a special class above the reach of the law. It also encourages more illegal activity in the future, once it is known that the government won’t prosecute those activities.

Furthermore, it’s not even up to Barack Obama to decide what is or is not investigated. The cult of personality surrounding him is great (in fact, it contributed to getting him elected), but even though we like him we must not forget that, as the president, he has constitutional limitations. It was irresponsible for the media to even ask what Barack Obama thought about Joe Lieberman being kicked out of the Democratic caucus. On November 5, Obama’s life as a senator ended, even though he didn’t officially resign the position until three weeks later. The president has absolutely no say – none! – in the operation of Congress. It would be different if Obama were acting in his capacity as a senator, but after winning the presidential election, especially in a nation eager for a new leader, any notion of Obama acting solely in his capacity as a senator would be extremely naïve. Obama must repudiate the unconstitutional powers that George W. Bush has claimed for himself, either through complete fabrication or malicious misreading of constitutional law.

Given his opinion of things like same-sex marriage (he tactfully says that same-sex couples should not be allowed to “marry” as such, but then says that they should have the same rights as heterosexual couples), NAFTA/CAFTA, and Israel, no one could confuse him for a true progressive. Obama’s apologists rationalize his decisions by pointing out that Obama never claimed to be a progressive at all!

Or could they? George W. Bush’s method of saying-without-saying is well-documented. While he never explicitly said that Saddam Hussein was behind the September 11 attacks, there is definitely a reason why, in 2001, virtually no Americans thought Saddam Hussein was responsible, but in 2003, one third of Americans thought Saddam Hussein was responsible.

Could it be that Barack Obama, whose campaign P.R. was spectacular, performed the same saying-but-not-saying function? Yes, it is entirely possible that Obama clothed himself in the cloak of progressivism while still wearing the mainstream Democrat’s clothes underneath. He has suggested massive new spending on entitlement programs, but he wants to increase the size of the military. He wants to let the Bush tax cuts expire, but he voted in favor of retroactive immunity for telecommunications companies that assisted the administration in warrantless wiretapping. His foreign policy goals consist of using real diplomacy instead of threats, but he voted in favor of NAFTA. He wants to provide government health care for people who have no health care, but he stops short of suggesting a universal-payer system like Canada’s or Great Britain’s. Obama’s positions are a wash: for every progressive-sounding idea, there is another conservative-sounding one to balance it out.

Or, on the other hand, it could be that Obama never suggested anything, but that he was forthcoming about his non-progressive credentials. It could be that we, the progressive Americans, were so thirsty for a change that we latched onto the only candidate (outside of Dennis Kucinich) who even brought up the issue of health care reform (at those early Republican primary debates, not a single candidate brought up the issue of health care), social reform, and getting out of Iraq (Hillary Clinton and John Edwards failed on at least one of these). We projected onto him the candidate we wanted him to be, ignoring the fact that he was not that candidate. Did we set ourselves up for disappointment? Yes, that is possible, too.

And then there’s the argument that all this complaining is pointless, that Obama isn’t even the president yet, and we should all just wait and see what happens on Jan. 20. Well, Rick Warren will happen Jan. 20, and that gives me even less optimism that, at noon on that day, Obama will suddenly throw aside his centrist mask and shout, “You fools! You thought I was just like Bill Clinton! But you were wrong! Free health care for everybody!” Agreeing to take part in Warren’s Saddleback (which sounds dangerously like “bareback”) debate with John McCain, Obama could conceivably have been seen as paying lip service to evangelical Protestantism, just like every president since Nixon has had to do. But putting Warren on the bill for Inauguration Day? Imagine if George W. Bush had hired Hillary Clinton to give a speech at his second inauguration. Yeah, it’s like.

Most troubling in my opinion, though, is Obama’s own insistence, ever since March of 2007, when he announced his candidacy, that he is not an ordinary politician. His grassroots, fifty-state strategy was unparalleled in its success. His speech about the Rev. Jeremiah Wright was intelligent and it treated the American people as though they, too, could understand long speeches that contained nuanced thoughts, as opposed to the Manichean sound bites of George W. Bush. His political maturity happened after the Vietnam War era, and, as Andrew Sullivan has suggested, the very core of his being is not instilled with a reflexive fear of Republicans and conservatism.

Conservatism demands the acknowledgment of a false dualism in every aspect of life, with the promise that conservatism will lead people to the correct side of this duality. Democrats buy into this framework and then try to argue the opposite side. The true progressive would never let the Republicans frame the debate and then proceed to work within their ill-conceived framework. To the progressive, there is no debate about whether or not health care should be free, or if there should be a premium for minimum services, or if the government should control it. The answer is: the current system of privatized health care doesn’t work and it should not be repaired, it must be rebuilt from the ground up. Obama appeared unafraid to work outside the existing framework and create a new framework that works in the interests of everyone. “Should it be a public solution or a private solution?” is not the correct question. “What solution is best for the country?” Now that’s the right question. It’s a question that Obama appeared to be asking during the campaign, but one that is being substituted by justifications for increasingly conservative behavior.

Circuit Court Strikes Down National Security Letters

One of the more controversial components of 2001’s USA PATRIOT Act is the expanded use of national security letters (NSLs). These are letters given by the FBI to people who have information the FBI wants. The letters, which do not require approval by a judge, amount to a combination search warrant/gag order. The letter requires the recipient to produce information about a third party, whom the FBI is investigating. The recipient is forbidden from discussing, with anyone, the nature of the information requested — but it doesn’t stop there! NSLs also forbid the recipients from even disclosing the fact that they received such an inquiry.

In 2006, an internal audit found that the FBI’s use of national security letters had increased dramatically from 2003 to 2005, and many of those letters were authorized by people who were not in a position to authorize them. In 2008, another audit revealed that the FBI was still improperly issuing NSLs, and what’s more, 60% of the letters targeted American citizens.

Well, in 2007, the ACLU decided it had had enough. It filed suit against the government on behalf of several John Does named in NSLs, alleging that the letters violated the First, Fourth, and Fifth Amendments of the Constitution, since the letters’ gag orders improperly curtailed freedom of speech without “due process of law” (that’s a Fifth Amendment guarantee that means a person cannot be deprived of “life, liberty, or property” without a trial), and the letters themselves were not issued with proper judicial authority. The U.S. District Court for the Southern District of New York agreed, rendering unconstitutional the NSL provision of the USA PATRIOT Act.

The government appealed. On Monday, the Second Circuit Court of Appeals affirmed the District Court’s decision in part. It agreed that the gag order provision violates the First Amendment because it is not “narrowly tailored” as is required by the strict scrutiny standard. It also agreed that the government, not the recipient of a NSL, has the burden of defending the validity of a gag order (under the statute, it was the recipient who had the burden of proving the gag order was not valid). The USA PATRIOT Act assumed that the government’s arguments in favor of a gag order were always correct.

With regard to the First Amendment, the Circuit Court found that the statute was overbroad specifically because the gag order does not have a temporal limitation. The government analogized the NSLs’ secrecy requirement to a jury’s secrecy requirement; however, the court disagreed, since a jury may talk about the case once it’s over, but the recipient of a NSL could conceivably be silenced forever, even long after the FBI’s investigation is over.

The court was troubled by the degree of deference to the Justice Department the USA PATRIOT Act requested of judges. I’ll let the Circuit Court speak for itself:

Assessing the Government’s showing of a good reason to believe that an enumerated harm may result will present a district court with a delicate task. While the court will normally defer to the Government’s considered assessment of why disclosure in a particular case may result in an enumerated harm related to such grave matters as international terrorism or clandestine intelligence activities, it cannot, consistent with strict scrutiny standards, uphold a nondisclosure requirement on a conclusory assurance that such a likelihood exists. In this case, the director of the FBI certified that “the disclosure of the NSL itself or its contents may endanger the national security of the United States.” To accept that conclusion without requiring some elaboration would “cast Article III judges in the role of petty functionaries, persons required to enter as a court judgment an executive officer’s decision, but stripped of capacity to evaluate independently whether the executive’s decision is correct.” Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 426 (1995).

Of course, that was the whole point of the USA PATRIOT Act: to strip from the law the requirement that a judge authorize a warrant. NSLs are designed to permit the executive, with the barest minimum of oversight (if any at all), to gather any amount of information, at any time, from any person, without the authorization of an independent third party. The Bush administration has shown that it would love nothing more than to turn judges into “petty functionaries” who are, at once, required to sign off on a warrant, giving it the appearance of third-party review (and thus legitimacy), while at the same time preventing those judges from conducting any actual, meaningful review. Bush’s Justice Department has argued that the September 11, 2001 attacks were so horrifying that the shock waves rippled through the Constitution itself, ostensibly amending it to create a parallel Constitution for “a post-9/11 world” in which the executive must have unquestionable power to arrest, detain, try, convict, and torture anyone it feels may possibly present a threat to national security. To follow the rule of law that has operated the United States for 219 years would only aid terrorists and put everyone at risk of another attack. These arguments have been refuted time and time again by courts, which — despite attempts at legislation to the contrary — still retain the authority “to say what the law is.” As it turns out, even an event as traumatic as the September 11 attacks cannot spawn into being a parallel, Bizzaro constitution that contains nearly-unlimited executive powers. There is no constitutional equivalent of a virgin birth.

Still at issue is whether or not the government is acting in good faith. Why is this secrecy necessary? Does it stem from an actual belief that disclosure of NSLs will endanger the country? Is it paranoia? Or is it something more sinister, a primitive desire for power and control? Vice President Cheney articulated “the one percent doctrine,” the idea that a 1% chance of a terrorist attack should be treated as a 100% chance of a terrorist attack. On its face, this belief is ludicrous: to be implemented properly, this policy would require a police state of the type seen only in China or the old Soviet Union. Cheney is no dummy, and must therefore understand that The One Percent Doctrine, from both a statistical, policy, and security standpoint, is foolish. Is it, then, a facile attempt to increase surveillance power?

These questions may end up never being answered; Cheney will take them with him to the grave. President Bush has no mind for complexity and thus cannot answer these questions, either. Bush is concerned about his legacy, not unlike Richard Nixon. But Bush’s mind is Cheney’s mind, and while Cheney may be as smart as Nixon was, Cheney does not have the same hang-ups about his reputation. Our only insight into the nation’s operation for eight years will be investigations upon investigations into what our government has been doing and why our government has been doing it.

Sometimes, Terrorism Doesn’t Happen to the United States

Joshua Micah Marshall made a good point yesterday: Secretary of Defense Robert Gates said that there may be some intelligence indicating that the Mumbai terrorists were plotting to kill “Americans and Britons.” But all the evidence points to the contrary. Mumbai was attacked due to its prominence, not the amount of westerners there. According to accounts of the violence, the terrorists appeared to be firing indiscriminately, not targeting particular people. Their purpose was to incite general terror with a “no one is safe” tone.

Is it American arrogance that makes Secretary Gates think that the purpose of the attack was to target Americans? Partially; American ubiquity demands it. Just like American clothing and pop culture is everywhere in the world, so too must American tragedies be recognized and venerated, and whenever a roughly analogous local tragedy happens, that tragedy must be understood through the lens of the American tragedy. In this case, since the local tragedy was terrorism, the American analogue is September 11.

President Bush (and now the rest of the country) seems to think that the Sept. 11 attacks were the first time any country has ever dealt with terrorist attacks on its own soil, and furthermore, that the United States, as a result of those attacks, is the only country that has experience dealing with terrorists. Prior to Bush’s tenure in office, the United States was not so cocky: of course we knew that Ireland has been dealing with terrorism since the 1920s, that Israel and Spain have been dealing with it since the 1960s, that India itself has been dealing with it from the Tamil Tigers, Kashmir separatists, and both Hindu and Muslim nationalists. Everyone seems to have forgotten, though, that the United States is not the world’s expert on dealing with terrorism.

So, no, it’s not likely that the attacks in Mumbai were designed to target Americans. But in order for the United States to lay claim to a War on Terrorism, it must lay claim to every instance of terrorism that occurs in the world in order to assert a leadership role in that war. The Bush administration has used the September 11 attacks as a throughway by which the United States may assert a “Me, too!” role in worldwide terrorism, even if the terrorism didn’t directly impact the United States.

It could be called the Cheney Doctrine after Vice President Cheney’s pronouncement earlier this year that the United States has a right to invade any country in the world, even if that country didn’t directly harm the United States, if the United States thinks that country has the capability or intent of harming the United States. Of course, the doctrine is nothing more than a unilateral pronouncement by Cheney and does not have the effect of law, but at least it shows us what he’s thinking. It’s the foreign policy equivalent of the “interstate commerce” clause, the section of the Constitution that has been interpreted so broadly as to allow Congress to control any aspect of business that could conceivably or theoretically impact interstate commerce (protecting endangered species in waterways that, through a series of even small creeks, eventually drain into interstate rivers, for example).

Diplomatic Implications

The United States would especially like to stick its nose into relations between Pakistan and India. Al-Qaeda is or was hiding in Pakistan on the Afghanistan border. Former president Pervez Musharraf didn’t send the military up there to investigate for fear of alienating those populations. The new Pakistani government will not be as America-friendly as the last one, since the United States supported the unpopular Musharraf. Without Musharraf, the United States has no reason or authority to be involved in India/Pakistan relations. Using the terrorism angle allows the United States to remain involved in that relationship.

We still think we are the gatekeepers to all the world’s diplomacy: no one anywhere in the world can have any bilateral talks without inviting the United States, as well. Every talk is necessarily multilateral because every relationship between any people anywhere in the world is relevant to the United States. It’s time for us to get over this attitude. When James Monroe asserted U.S. diplomatic hegemony in the Western hemisphere — essentially telling the rest of the world that, if you wanted to deal with Latin America, you had to go through the U.S. first — the arrogance was apparent, but at least it was confined to America’s sphere of influence in the world.

As the United States’ diplomatic clout has waned — particularly under the watchful eye of the Bush administration — its ability to assert leadership roles in negotiations in which it has no stake has similarly waned. Thankfully, there will always be the War on Terrorism there to insist that, by virtue of the United States being attacked on September 11, and its self-proclaimed doctrine of warfare against terrorism, the United States automatically has a stake in any negotiation that may even be tangentially related to terrorism.

It is a gross disservice to the people in Mumbai who were killed, wounded, and terrorized to narcissistically focus their tragedy in terms of our tragedy. Perhaps going through the same kind of event allows Americans to better understand what Indians are feeling right now, but we should no more shift the focus to our own attack any more than we would eulogize our own losses at someone else’s funeral.

I Bought Nothing Today

I take that back. I spent $1.85 on a cup of coffee from Great Harvest Bread Company, but it wasn’t even that good.

The irony of our financial crisis is that we are being asked by our leaders to do the very thing that got us here in the first place: consume. Especially with it being the Christmas season, the time when many retailers get most of their revenue. They need our money in order to stay in business, but we don’t want to give it to them.

And with good reason.

Consumption has been the United States’ mantra for a long time. Today’s sad story about a Wal-Mart employee trampled to death in New York should serve as a poetic reminder that consumption can be deadly. I mean, we already knew it was deadly in the countries where our stuff is made. Working conditions in industrial cities in China are deplorable, equivalent to the turn-of-the-century textile mills and meatpacking plants that we know today only by reading Sister Carrie and The Jungle. It’s worse in African countries where wars are started by diamond companies so that they can get cheap diamonds to sell at huge profits to Western men whom they’ve convinced to spend 25% of their salary on an engagement ring. It’s rare, though, for the pain and suffering caused by American consumerism to occur here on our shores.

Consumers are not so worried now about having the nicest house, the newest car, or the most stuff. They have bills to pay. President Bush’s stimulus idea of last year — to give taxpayers between $300 and $600 in free money — did nothing to help the economy. That’s probably because most people who received such a check didn’t do what they were supposed to with it. President Bush wanted them to go out and buy cars, refrigerators, computers, but consumers wisely decided to save it, or use it to pay their credit card bills. The time is nigh for rampant consumerism, fueled by an advertising industry designed to convince people that they need things that they really don’t. “Black Friday” deals this year were all the more enticing because retailers understand they won’t make that much money this year. Nevertheless, they want to get rid of whatever they can. Which entices consumers to spend, which means they’ll use credit, which means we’ll end up right back where we started.

John Kenneth Gailbraith, in The Affluent Society, bemoaned modern economics’ emphasis on production and output as the sole indicators of a healthy economy. These metrics tell us how well businesses and the wealthy are doing, but not much else. Even Simon Kuznets, the inventor of GDP — that most favored of the statistics that indicate economic health — thought that “the welfare of a nation can scarcely be inferred from a measurement of national income.” GDP (Gross Domestic Product) is the total output of all the goods and services produced by an economy. It can be calculated using the income method, or the expenditure method, with the latter preferred due to its simplicity. GDP is consumer spending plus government expenditures plus capital investment, plus net exports (exports minus imports). GDP places an emphasis on making stuff and spending money. Critics of GDP correctly note that it does not take into account volunteer activity, non-spending production (like that of housewives who don’t work), the black market, happiness, recycled goods, or the quality of goods and services being produced. Annual GDP growth in the United States is about 3%, but how much of that is fueled by cheap crap from overseas? The mantra is that any production is good production, but we have seen that not to be always the case.

And unrestrained production is not sustainable. I used to roll my eyes at phrases like “sustainability,” particularly due to the frequency with which I heard the phrase, due to living next to Berkeley. Maybe it’s the stuff they put in the water in Alameda County, but over the last few years, I’ve come to understand what sustainability means. It means growing a rate that can be sustained over a long period of time, not growing so much that resources are exhausted. If you’re wondering what to get this year for the people on your Christmas list who are hard to buy for, here’s two ideas: a DVD of Dr. Seuss’ The Lorax, a copy of Ishmael, and a copy of Ecotopia. (Even better, get all this from a used book store.)

Environmentalism, consumerism, national security — they’re all intimately related. They all depend on us changing our habits, buying less, and if we do buy things, buy recycled and re-used things, so that more resources are not needlessly spent. Consumption is the way to get us out of this financial crisis, but it’s also the way to get us right back into it.

The Litigation Begins

I was part of an anti-Proposition 8 demonstration this weekend. Not intentionally, though. As my friend and I walked down Market Street in San Francisco (on our way to find me some fashion), we saw a large crowd marching down the street, shouting slogans like “What do we want? (Equal rights!) Went do we want them? (Now!)” and “Gay, straight, black, white, marriage is a civil right!” So we walked along with the crowd, yelling the slogans, not only because it was an interesting way to get to Union Square, but because we agreed with what the crowd was saying. But then, as we approached Powell Street, my friend and I left the crowd and went to Urban Outfitters where I was to find fashion.

At the time, I thought, “This is an interesting diversion.” I was also aware, though, that for many, if not all, of the people in the chanting crowd, these demonstrations are not a diversion. This is their lives they’re fighting for. I can live comfortably in the assurance that I will never need to fight the government for the right to marry someone (if I even choose to marry anyone at all!).

But there are people whose lives have now been relegated to second-class status under the law.

The California Supreme Court has agreed to take up the issue. It will accept arguments for and against the constitutionality of Proposition 8 until January. At issue is whether or not Proposition 8 is merely an “amendment” or a “revision” of the state constitution. If the former, Prop. 8 stands, and same-sex couples can’t marry. If the latter, Prop. 8 is unconstitutional on its face, and same-sex marriage becomes the law of the land once again, since a 2/3 vote of both the state legislature and the voters is required to pass a constitutional “revision.”

Opponents of Prop. 8 argue that taking away the rights of a minority is so contrary to the spirit of the California Constitution and the U.S. Constitution that a simple majority cannot do it. Alexis de Tocqueville, during his sojourn through the United States in the very early years of the Republic, warned that the majority could conceivably strip a minority group of its rights by virtue of nothing more than majority’s size. This tyranny of the majority, he wrote, was a danger inherent in democracy and something that needed to be guarded against.

De Tocqueville would be disappointed to learn that his warning went unheeded.

The California Supeme Court has only twice overturned voter-approved constitutional amendments: in 1948 and again in 1991. In 1978, the Court said that “revision” referred to “substantial alteration of the entire constitution, rather than to a less extensive change in one or more of its provisions.” So, is removing a right of an entire group of people a “substantial alteration of the entire constitution”? That is what the court will be deciding.

Preliminary indications are not good. Last week, the court voted 6-1 merely to hear the challenge to Prop. 8’s constitutionality. The lone dissenter was Justice Joyce L. Kennard, one of four judges who sided with the majority in the May case that legalized same-sex marriage. Her vote will undoubtedly be crucial, but since she doesn’t think that the petitioners even have the ability to file their case before the court, it’s unlikely she would find in favor of the Prop. 8 opponents.

What’s next for Prop. 8? Opponents could place an initiative on the ballot to repeal the amendment. It’s up in the air as to whether or not that would pass. The Mormons, energized by their win this time, could certainly muster up enough money to defeat a repeal amendment.

Shame on Californians who voted for this. They now have the dubious honor of being the first people to amend a constitution so as to take away extant rights.

The Attorney General and the Unitary Executive

The attorney general’s is a strange office. On the one hand, the AG is appointed by the president (with the advice and consent of the Senate, of course). On the other hand, the AG may be required to defy the president, investigate him, or even indict him for criminal acts. It is this duality of the AG role that has put President Bush and Attorney General Alberto Gonzales into hot water over the past four years. As attorney general, it was Gonzales’ job to investigate wrongdoing; however, as a loyal member of the Bush cadre, investigating the boss would have been a capital no-no. So how does the president get away with such obvious nepotism?

Unitary executive.

The phrase has been bandied about for eight years by liberals who have something of an understanding of what it means. “The president has total power” is what they think it means. And that’s the conclusion that the unitary executive theory results in, but it is not the premise.

The unitary executive begins with the president as the head of the executive branch of government. The executive branch encompasses the president, the vice-president (despite what the current vice-president says), the cabinet departments (like the Department of Homeland Security), and the various agencies within those departments (like the Transportation Safety Administration or Immigration and Customs Enforcement, to use the example of Homeland Security). There are also other myriad agencies like the Office of Management and Budget that live under what is called the Executive Office of the President. So far, so good. We’re not entering unknown waters. Of course this is the structure of the executive branch. It makes sense.

The theory of the unitary executive has always been with us, but it was taken to extremes by lawyers from the ultra-conservative Federalist Society. Some of America’s most conservative jurists, including Justice Antonin Scalia, Almost-Justice Robert Bork, and Chief Justice John Roberts, are or were members of the Federalist Society. This is the group responsible for the bogus interpretive theory called “originalism,” which holds that we can divine the intent of the Founding Fathers from the text of the Constitution, and oh, by the way, the Constitution never changes, except and exclusively through the amendment process. (Originalism’s counterpart is the living Constitution or active liberty, which says that the Constitution’s meanings must necessarily change as society changes, otherwise, the Constitution will find itself irrelevant and unenforceable.)

Under the unitary executive theory, the president has complete and total control over every office of the executive branch. The president should be free to fire whomever he wants, for any reason (or no reason at all), at any time. Furthermore, no executive agency should ever defy the president’s wishes, since all executive agencies are, reducto ad absurdum, the president. The president is the Justice Department. The president is the State Department. The president cannot be in conflict with himself; therefore, cabinet departments and agencies cannot be in conflict with the president’s wishes. This theory has been taken to court by the Justice Department, which held that the Environmental Protection Agency cannot sue the U.S. military, since the president would ultimately be the party on both sides, and the president certainly cannot sue himself!

The unitary executive then goes one step further: it declares that the president’s constitutional requirement to “take Care that the Laws [passed by Congress] be faithfully executed” means that the president’s powers cannot be constrained by Congress, since the president has a duty to execute the laws, and any Congressional hindrance of that duty, in the form of statutory limitations on the president’s power, is unconstitutional.

This is where President Bush’s signing statements come into play. Presidents have always issued signing statements, which are little interpretive blurbs written by the president when he signs a bill into law. The signing statements have, until now, been used to set down guidelines indicating how the president will enforce the particular law.

I say “until now” because Bush has used more signing statements than all other presidents combined, and he has used them most often to indicate that he will selectively ignore the parts of laws that restrict his power. Take this example from the Detainee Treatment Act, which Congress thought was going to be used to reign in Bush’s use of torture:

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.

In these signing statements, the president has reserved for himself the right to interpret what his constitutional powers are, and in so doing, reserved for himself the right to ignore provisions of laws passed by Congress that he feels are inconsistent with his interpretation of his own powers. This is the unitary executive theory in action (also inaction): whenever Congress attempts to place a check on the president’s power, the president sidesteps Congress, claiming that Congress cannot place any checks on the president’s constitutional duty to enforce the law.

I hope I don’t have to say that this is all highly questionable in terms of constitutionality. The president most certainly does not have the authority, constitutionally or otherwise, to interpret the law. That is the sole responsibility of the judicial branch of government. Chief Justice John Marshall, writing in Marbury v. Madison, put it simply and elegantly 205 years ago: “It is emphatically the province and duty of the judicial department to say what the law is.” No signing statement has ever been taken to federal court, but were that to happen, I can only hope that the court (which would be the D.C. Circuit Court) would refuse to grant the president judicial powers just like it refused to grant President Clinton legislative powers when he tried to use the line-item veto.

Back now to the attorney general. The next attorney general, who may very well be former Deputy Attorney General Eric Holder, knows what his role as AG would be. We know that he’s independent, meaning that, unlike Alberto Gonzales, he does not owe his entire career to the president. We know that he acknowledges that the AG is a unique office that, at times, requires “a closeness at the same time there needs to be distance.”

As Glenn Greenwald reports, though, Holder made some comments after the September 11, 2001 attacks that people who voted for Change should find disturbing. Of the inmates at the Guantanamo Bay prison, he said, “It seems to me that given the way in which they have conducted themselves, however, that they are not, in fact, people entitled to the protection of the Geneva Convention. They are not prisoners of war.” Even the U.S. Supreme Court eventually recognized that prisoners at Guantanamo Bay were entitled to Geneva Convention protections.

Is there no one out there who has a more progressive view of indefinite detentions? The Constitution is quite clear: “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” And yet there are still people out there — lots of them, apparently, all in positions of power — who believe that there’s nothing wrong with a little indefinite detention among friends.

Is this the change we voted for?

Don’t You Want Summumbody to Love?

Toward the beginning of Mel Brooks’ film History of the World, Part I, there is a scene where Brooks, playing Moses, comes down from Mount Sinai with the three familiar stone tablets. “I bring to you these fifteen commandments!” he shouts, then accidentally drops one of the tablets. “Ten! Ten commandments!”

Summum takes this seriously. Sort of.

Summum is a religion founded in 1975 that, among other things, contains a set of rules similar to the Ten Commandments called the Seven Aphorisms. In fact, they believe that God gave Moses the Seven Aphorisms in addition to the standard ten commandments. Remember them; they’ll be important later.

Pleasant Grove City is a very pleasant city in Utah. Like many cities, it has a park, called Pioneer Park. The park celebrates Utah’s pioneer heritage (Utahans love to celebrate their pioneer heritage; in fact, the state of Utah has a sort of second Fourth of July, called Pioneer Day. There are fireworks). Unfortunately, like many other cities in very religious parts of the country, in that park is a sculpture of the Ten Commandments. I bet you can guess where this is going.

Representatives of Summum would like to place a sculpture containing their Seven Aphorisms in the park along with the Ten Commandments. Town leaders balked at this idea and offered a reason why: monuments in the park, they said, were donated by organizations with historical ties to the community. The Ten Commandments monument was donated by the Fraternal Order of Eagles thirty years ago. Summum sued, of course. The Tenth Circuit Court of Appeals agreed with Summum and brought the case down to an ultimatum that any student in an introductory First Amendment law class would recognize: either the city allows any organization to place a religious monument in the park, or it allows no organization to do so.

The Circuit Court believed that, since the displays were in a public park, freedom of speech was at issue, and employed a test known as “strict scrutiny.” Whenever a government entity wishes to curtail a constitutional right, that curtailing must be narrowly tailored to serve a compelling government interest. “Narrowly tailored” means that the curtailing must be limited only to prohibiting a very specific action, and it must be the least-restrictive option available in terms of restricting liberty. The Supreme Court, for example, has routinely struck down online pornography laws not because they like pornography, but because the laws are always written in ways that may accidentally prohibit protected speech. A unilateral prohibition on a certain kind of speech is not the least-restrictive approach. Additionally, the government always has the burden of proving that the statute in question would be less effective than the less-restrictive alternatives. Second, infringing a civil liberty is a very serious thing to do, but it can be done, as long as the government has a really, really good reason to do so. (I’m being flippant, of course; “really, really good” isn’t a legal doctrine. When government infringes on a liberty, it needs to demonstrate that doing so is necessary to performing some function that is ultimately for the greater good, Under the old “clear and present danger” doctrine, for example, the compelling interest was in making sure that people don’t get killed by remarks that could lead to violence.)

Observers of the case have correctly analogized it to the War on Christmas cases. Time after time, communities around the country place religious Christmas decorations in public places, and time after time, people sue for violation of the First Amendment, conservatives (who apparently don’t read the Constitution) complain, and we go through this all over again next year. Come on, guys, what part of “Congress shall make no law respecting an establishment of religion” don’t you understand? It’s pretty simple to me. Maybe you want someone more definitive to tell you this? I think George Washington is pretty definitive: “[T]he government of the United States is not, in any sense, founded on the Christian religion.”

The outcome of this case will most likely mirror the outcomes of two separate, but related, Ten Commandments monument cases from 2005. In Van Orden v. Perry, the Supremes decided 5-4 that a Ten Commandments monument in Texas could stay. On exactly the same day, the court released exactly the opposite opinion in McCreary County v. ACLU of Kentucky. In that case, McCreary County placed a large Ten Commandments display on the wall of its courthouse. The justices (correctly) determined that this could be construed as an endorsement of religion, as the Ten Commandments are an historical example of a legal code but are also religious tenets of Judaism and Christianity.

In Van Orden, it can be reasonably construed that the Ten Commandments monument was permissible as part of a larger display of other historical legal codes, although Chief Justice Rehnquist chose instead to emphasize the importance of religion in the United States’ history. Van Orden was decided correctly, but not for the reason that Chief Justice Rehnquist gave. In a park, amongst other displays — sure, fine. In a courtroom, by itself? Uh-uh. How can an atheist defendant believe that he’s getting a fair trial when explicitly Judeo-Christian tenets are up there on the wall? That’s “respecting an establishment of religion.”

But it’s a slippery slope. As soon as the state permits one religion to display something in public, it must either allow all religions to display something or allow no religion to display something. While The Wall Street Journal believes this case hinges on “government speech” (the government has no limitations on what it can say, and it does not need to provide time or space for opposing arguments), that’s just an easier method of argument that can be used to keep the monument. The religious argument is harder to work with, and the fact is that the Ten Commandments are religious in nature. If Pleasant Grove wants to erect a monument to one religion, then it had better be prepared to erect monuments to every religion.

Dear President Obama: Don’t Do These

Every pundit with a keyboard and at least one hand is writing about what President-Elect Barack Obama (I’ll never get tired of that) should do in his first fifteen minutes as president. Obviously, he should immediately rescind stupid Bush executive orders: over the weekend, he indicated that he would do as much. Two Bush executive orders are scheduled for the chopping-block: one that placed a moratorium on federally-funded stem cell research from new lines of embryonic stem cells (remember when that was the most our country had to worry about?) and another that prohibits federal funds from being used for overseas family-planning organizations that suggest abortion among their family-planning options. Obama also plans for his new EPA to reverse the Bush EPA’s decision to prohibit California and a dozen other states from enacting their own carbon emissions standards.

These are great! But there are two things that have been bandied about — with varying degrees of sincerity — that are not that great.

The Employee Free Choice Act

Democrats have been trying to get the Employee Free Choice Act (H.R. 800) passed for over a year. Bush promised to veto it. Obama has said he endorses it. EFCA provides another method for workers to form unions. Currently, the process for forming unions is as follows: a group of workers that wishes to unionize submits a petition to the National Labor Relations Board alleging that a “substantial” number of employees wishes to form a union. This is proven by 30% or more of the employees signing a petition indicating that they want to form a union. The NLRB schedules a hearing to determine if a question of representation exists. If NLRB determines that a question does exist, then it directs “an election by secret ballot” to occur.

EFCA would create an alternative method for forming a union: if a majority of employees signs a petition indicating that they wish to form a union, and those employees sign “valid authorizations” indicating as such, then NLRB will bypass the election process mentioned above and immediately certify the union. This is referred to as “card check” legislation.

EFCA contains other provisions, like permitting binding arbitration if management and the new union fail to agree on a contract within 90 days. It also strengthens protections for employees forming a union, more clearly defining what, exactly, an employer cannot do to employees forming a union (threaten to terminate employees or otherwise harass or discriminate against them during or after the union-organizing process, e.g.). The fine for such interference is increased from $5,000 to $20,000.

Strengthening penalties is the good part of this legislation. Eliminating the secret ballot is the bad part. Labor organizations like the AFL-CIO have been lobbying for this legislation for a long time, arguing that the union-creation process is long and difficult, and in the time between when employees sign the initial petition and when the NLRB calls for the election, management can attempt to dissuade employees from joining the union. If this is true, it still doesn’t explain why the Express process for forming a union must eliminate the secret ballot. The whole point of having a secret ballot in union elections is to protect employees from intimidation or retaliation, from the union as well as from the management. President Obama should veto this legislation or tell Democrats in the Senate to amend it so as to include a provision for secret ballots. There’s no reason why employees shouldn’t have secret ballots.

The Fairness Doctrine

Prior to 1987, there was a fairness doctrine, also called the equal time rule, present in broadcast television and radio. I’ll quote the above-linked website’s description of it, since it’s simple and good:

Simply put, a station which sells or gives one minute to Candidate A must sell or give the same amount of time with the same audience potential to all other candidates for the particular office. However, a candidate who can not afford time does not receive free time unless his or her opponent is also given free time.

(Upon reading the website linked above, I realized that it was written by Howard Kleiman, the very Miami University communications professor whose class first got me interested in First Amendment law!)

Obama and other Democrats have toyed around with the idea of resurrecting the fairness doctrine. A lot of them blame the rise of conservative talk radio (specifically, Rush Limbaugh) on the elimination of the fairness doctrine. With no requirement for equal time for all sides, the airwaves skewed to the right, creating a pulpit from which people like Rush, Michael Savage, Glenn Beck, Sean Hannity, et al. can spew their Republican talking points. Democrats have attempted, in Air America, to create a similar network of their own, but it isn’t nearly as popular.

Legislating “fairness” is a terrible idea, both in principle and in execution. Just last week, the FCC and Fox Broadcasting duked it out in the Supreme Court over the issue of “indecency.” I can only imagine the tremendous amounts of litigation that would ensue from such a doctrine. That’s just the execution. On the issue of fairness, who is the government to determine “fairness”? The idea that the government exists to provide equity of points of view runs contradictory to the First Amendment. All the government does is guarantee that any side has a platform free from government interference; what the sides choose to do with that platform, or the degree to which they choose to use it, is up to them. The fairness doctrine could also give false dichotomy to scenarios in which there really aren’t two points of view (evolution/intelligent design comes immediately to mind; to suggest that both theories have equal veracity and should be debated equally is ludicrous; intelligent design does not deserve to be legitimized by placing it on par with evolution).

President Obama, please don’t pass the Employee Free Choice Act — not unless it’s altered to specify secret ballot elections. And please, please, please don’t bring back the fairness doctrine; it may work pragmatically to stem the tide of conservative talk radio, but as a theory, it’s broken and could lead to the inclusion of points of view that might otherwise be correctly disdained through the marketplace of ideas.

It Wasn’t All Smiles

While the liberals among us were celebrating our victory over The Empire, there was a group of people for whom Tuesday night was bittersweet. By Wednesday morning, it had become clear that California’s Proposition 8 — which would amend the state constitution to ban same-sex marriage — had won a clear victory. 52% of voters in the most liberal state voted to ban same-sex marriage. Now the fight continues.

This is the first time a constitution has been amended to remove a right. As we have written before, California settled the issue of same-sex marriage in May when the state supreme court struck down a 2000 iniative statute, Proposition 22, which defined marriage as being between a man and a woman only. The California Supreme Court ruled that the statute was unconstitutional under both the California and federal constitutions. Thrity days from that ruling, until Wednesday morning, 18,000 same-sex couples were issed marriage licenses in California.

Prop. 8 supporters won through a combination of money and deceit. The money came mostly from the Church of Jesus Christ of Latter-Day Saints — the Mormons — who recognized that if they could get a constitutional amendment banning same-sex marriage passed in California, they could get it passed anywhere. They used all that money to espouse a bunch of lies, including, but not limited to:

• If Prop. 8 fails, churches that perform heterosexual weddings will be required to perform same-sex weddings, too
• If Prop. 8 fails, religiously-oriented adoption agencies won’t be able to discriminate against same-sex couples
• If Prop. 8 fails, schools will have to teach children that same-sex marriage is acceptable and ultimately condone the homosexual way of life

These are not true, of course. Prop. 8 opponents couldn’t successfully convince people that nothing would change if Prop. 8 failed, since the condition of marriage would be unchanged. Churches would still be free to engage in freedom of expressive association and choose not to hold same-sex weddings. Children might have had to learn about same-sex marriage, but only in as much as it was the law in California. Religously-affiliated adoption agencies are a complicated problem and cannot be distilled into a simple tagline. (Please read this article about Catholic Charities, Inc. to learn more about how religion pertains to adoption. Full disclosure: This is an article I wrote several years ago.)

Prop. 8’s opponents are trying as hard as they can to get the proposition overturned. Withdrawing a right, they argue, is so fundamentally against the nature and the spirit of California’s constitution (and, indeed, any constitution) that it amounts to a “revision” of the constitution, not an “amendment.” Words matter, here: an amendment can be passed by a voter referendum. A revision must be passed by the legislature. If Prop. 8’s opponents can get the state supreme court to agree with them, then the entire proposition would be invalidated and same-sex marriage would be restored.

But this tactic is a long-shot. Prop. 8’s opponents tried to get the proposition removed from the ballot back in June using the same logic, but the state supreme court dismissed the case without prejudice. Without prejudice is an important legal word — it means that the case can be re-filed in the future.

Prop. 8’s opponents are also starting a petition to get the Mormon church stripped of its nonprofit, tax-exempt status. The tax code requires that any organization that is tax-exempt must refrain from lobbying for legislation. The Mormon church, as an entity, not only implored its congregants to vote for Prop. 8, but it also provided financial support to the Prop. 8 campaign. If that doesn’t merit being stripped of tax-exempt status, then I can’t think of what does. It’s illegal for churches to take political positions on candidates or legislation — well, it’s illegal if the church has tax-exempt status. And the LDS Church does.

It will be a difficult legal battle, and the Prop. 8 opponents will probably lose. That won’t stop them from putting an initiative on the June ballot to have the new amendment repealed. And I hope they try. And I hope they succeed. Prop. 8’s victory has tainted the sweet victory of this election with an insidious return to the time when separate but equal was the law of the land.

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