A Review of The Empire Strikes Out

The Empire Strikes Out: How Baseball Sold US Foreign Policy and Promoted the American Way Abroad
by Robert Elias, 418 Pages, The New Press, $27.95.

One thing you can’t accuse Robert Elias of being is a frontrunner. On the very first page of one of the most unusual baseball books you’re going to run across in this or any baseball season, he examines the origins of the name of the reigning champions of Major League Baseball and explains that we might as well be calling them the New York Wankers.  The Yankees don’t actually come in for any particular scorn, but Elias’s thoroughness requires that he start his story of baseball and foreign policy at the beginning, in the colonial era days when the song “Yankee Doodle” was at the top of the charts.

Any reader with a serious interest in both American foreign policy and the American League is going to love this book.  But I do mean a serious interest – with 97 pages of footnotes (so thorough as to include this writer) his book is no quick read but it is the sort you can open to any page and find something fascinating.  (For instance, when I just did so, I opened to Babe Ruth’s thoughts on Cuban independence and the story of the Washington Senators pitcher who led rebel forces against the Cuban dictator Machado in the 1920s.)  If you’re the kind of baseball fan who has thought about both Leon Trotsky and Hal Trosky, I’d say that Elias, who teaches history at the University of San Francisco, just may have written the definitive reference book for you. (He tells us that when the latter, a Cleveland Indians slugger of the 30’s, was having an off day fans might shout out that he should “go back to Russia.”)

Baseball’s earliest use in promoting Americanism abroad came in the world baseball tours that started in the late nineteenth century.  Elias reports that on the 1888 tour, organized by player, executive, and sporting goods magnate Albert Spalding, players tried to throw baseballs over the pyramids and to hit the sphinx in the eye. Their request to play nine in the Roman Coliseum was apparently nixed by archeologists with little appreciation for the game.

In 1878, the first league outside the US was established in Cuba, a country that would subsequently occupy a unique place in both strands of this book’s story. (Elias does appear to confuse the Cuban pitcher mentioned above with his brother who played outfield with the Senators, but as the serious fan knows, just as is the case with fielders, the best writers aren’t necessarily the ones that make the fewest errors, but the ones who make the most plays.)

The military has long held great fascination for the powers of the game who have had a particular thing for generals, starting with the now disproved claim that General Abner Doubleday invented the game.  Doubleday did actually serve at Fort Sumter, though, prompting baseball executive Branch Rickey to declare that “The only thing General Doubleday started was the Civil War.”  And the game served military purposes in sometimes surprising ways: Elias tells of World War I-era Boston Braves pitcher Bill James becoming an instructor in the U.S. Army largely on the strength of his expertise in throwing the new, smaller, more baseball-size hand grenade – the ability to throw a curve apparently being considered crucial at the time.  And one of the reasons Sun Yat Sen organized the Changsa Field Ball Society before overthrowing the Chinese monarchy was as a cover for teaching the art of grenade throwing.

So when baseball looked to hire its first commissioner, partially in response to the 1919 Black Sox scandal, it came as no surprise that there was serious interest in Generals John Pershing and Leonard Wood.  When they proved unavailable the club owners came up with someone who outdid the both of them in jingoism – Judge Kenesaw Mountain Landis. Named after a (similarly but not identically spelled) Civil War battle in which his father had participated, Landis once told a group of American Legionnaires that “It was my great disappointment to give [Milwaukee Socialist Party Congressman Victor] Berger only twenty years in Leavenworth” for his opposition to World War I, rather than “having him lined up against the wall and shot.”

After former U.S. Senator Happy Chandler was dumped as the game’s second commissioner (ironically, Elias tells us, the final straw was his suggestion that the major leagues might have to suspend operations due to the Korean War), the job was offered to Generals Douglas McArthur, Dwight D. Eisenhower, Emmett “Rosy” O’Donnell, and Maxwell Taylor before ultimately going to National League President Ford Frick.  (The owners finally landed themselves a general when they named William Eckert (the “Unknown Soldier” as some wags called him) commissioner despite the fact that he had apparently not actually been to a ball game in a decade.

The World War II era, when so many stars joined the military that the St. Louis Browns even won the pennant, is replete with baseball tales.  When Congress was considering the internment of Italians, Elias reports that a San Francisco attorney making the case against the policy used the example of its potential effect on a family such as Joe DiMaggio’s, that had eight American-born children but two parents who remained Italian citizens.

And then there was Hank Greenberg.  In his book “Baseball in 1941,” Robert Creamer noted that he’d “been surprised to discover that few baseball fans of my children’s generation know how good Greenberg was. I think the current preoccupation with career totals – 3000 hits, 500 home runs, 300 victories has diminished the appreciation of superb players who had shorter careers. But you ought to know about Greenberg.” As one of that generation, I know that when we first looked into the home run hitters of olden times, not just before steroids, but even before the 162 game schedule, we found there were three players who had hit 58 or more home runs in a single season – Babe Ruth, of course, Jimmy Foxx, who turned out to have been the game’s second most prolific home run hitter up to that time,  and Hank Greenberg.   With 331 home runs, Greenberg had obviously had a good career and yet he didn’t seem to size up to the other two.

Greenberg was Jewish and while there were never any bars to Jews playing in the major leagues, as there were for blacks, there were those who were not all that happy about it.  Elias writes: “Except for Jackie Robinson. No ballplayer took more abuse than Greenberg, who asked, ‘How the hell could you get up to home plate every day and have some son of a bitch call you a Jew bastard and a kike and a sheenie without feeling the pressure.”  SO there was considerable irony when Greenberg was accused in the media of bribing a doctor to be declared ineligible for the military in 1940. He responded by asking for a new physical, was inducted for a one year term, reenlisted after Pearl Harbor and was out of baseball until 1945.  Given that in the four full seasons before he went into the Army, Greenberg had averaged 43 home runs and 148 RBIs a year, but played only two more seasons afterwards, we have our explanation as to why people have to be told “how good Greenberg was.”

Ted Williams, probably the only player with career stats more negatively impacted by military service than Greenberg, turns out not to have been the total enthusiast some might expect.  Having already served in World War II, he thought he was called back into the service during the Korean War for his star value.  Although he flew thirty-nine combat missions in that war and was hit three times, he later said, “If it were an emergency, fine.  But Korea wasn’t an all-out war.  They should have let the professionals handle it. Vietnam was another undeclared war.  If I had a kid [there] I’d have been screaming.”

Baseball players served in the Cold War as well.  After Paul Robeson’s 1949 statement that “It would be unthinkable that American Negroes would go to war on behalf of those who have oppressed us for generations against the Soviet Union,” Jackie Robinson was brought before the House Un-American Activities Committee to say that blacks would, in fact, “help their country … against Russia or any other enemy.”  Years later he would call this testimony “the greatest regret of my life” in part due to his “increased respect for Paul Robeson who sacrificed himself … sincerely trying to help his people.”

Political definitions were about as loose in baseball as in the nation at large. When Dodger owner Walter O’Malley accused Cardinal owner Fred Saigh of being a socialist for suggesting revenue sharing between teams on TV contracts — well maybe.  But San Francisco Giants manager Alvin Dark claiming that “Any pitcher who throws at a batter and tries to hit him is a communist” ?  Now that does seem like too much. And naturally, the Brotherhood of Professional Baseball Players who organized the 1885 Players League were “terrorists” in the eyes of Albert Spalding. Elias even covers the Patriot League invented in Philip Roth’s The Great American Novel, written out of history because of the degree of its infiltration by Communists. And just like with Hank Greenberg, you should know how good The Great American Novel is.  You just couldn’t be too careful in those days – the Cincinnati Reds became the Redlegs for a decade or so, until it became clear that they weren’t really, you know, reds.

The beat goes on right through to the present day. The president of the Baseball Hall of Fame canceled a twenty-fifth anniversary showing of Bull Durham in 2003, because of stars Tim Robbins and Susan Sarandon’s opposition to the Iraq invasion. Two years later, then- Oakland A’s pitcher Barry Zito founded Strikeouts for Troops, noting that “Baseball is ingrained in the fabric of America, just like the military.  We thought it was a good marriage.”  Elias tells us that the organization’s funds are distributed by “the Freedom Alliance, a right-wing, pro-war organization featuring the conservative broadcaster Sean Hannity and Alliance founder Oliver North.”

I could go on, but really you should get the book.

Error: Unable to create directory /home/demockra/public_html/wp-content/uploads/2010/09. Is its parent directory writable by the server? Sarah Palin Embraces Nietzsche and Alberto Gonzales

Comics aficionados may remember Bizarro World (or something like that), an ugly, angular, twisted parallel universe in which Superman had a craggy face and was almost as evil as Glenn Beck.

In contrast to the dark side, there is also a fifth dimension. A dimension not only of sight and sound, but of mind. A journey into a wondrous land whose boundaries are that of imagination. That’s the sign post up ahead.  Your next stop—Perfect World!  A world in which congressmen and women are the opposite of what we experience in the here and now. Where Sarah Palin tells the truth and has an IQ of over 80. Where Dick Cheney shuts the hell up and peppers his own face with birdshot.

A Demockracy.com reporter inadvertently penetrated the inter dimensional portal into Perfect World after tripping over a mayonnaise jar on Funk & Wagnall’s porch. The White House press corps reporters all looked like Brad Pitt, Mandy Moore, Matt Damon and Julia Stiles and everyone spoke in very counterintuitive ways.  The calendar on the wall said February 2013.

“President Palin,” someone said, “After 9/11, don’t you feel we must sometimes ignore the ambiguous, the gray, and focus on good and bad, right and wrong, in the Middle East?”

“All sciences are now under the obligation to prepare the ground for the future task of the philosopher, which is to solve the problem of value, to determine the true hierarchy of values.  All things are subject to interpretation.  Whichever interpretation prevails at a given time is a function of power and not truth.  I reject power for its own sake and embrace the search for truth, always. Y’all don’t mind if quote Nietzsche now, do ya? Hee hee hee.”

Madam President, would not the U.S. be justified in invading Iran based on that country’s lies and deceptions?”

“No, for as I said, I embrace the search for truth, not power for its own sake, and certainly not for some barbaric notion of preemptive strikes or regime change. Arrogance on the part of the meritorious is even more offensive to me than the arrogance of those without merit: for merit itself is offensive.”

“Madam President, should the Republican Party take its rightful place among the creationist evangelicals in order to secure a landslide victory in the midterm elections?”

“The Republican Party will as always stand for intellectuality and the search for truth and not pander to religious lunacy. Nietzsche said, “In Christianity neither morality nor religion come into contact with reality at any point. How’s that for some philosophy for ya!”

“But what about the right to life issue, Madam President?”

“Judgments, value judgments concerning life, for or against, can in the last resort never be true:  they possess value only as symptoms, they come into consideration only as symptoms—in themselves such judgments are stupidities.”

Later, in the Oval Office with Vice President Alberto Gonzales…

“Al, although I appreciate personal loyalty, you must know that loyalty to your country and nation of laws is paramount, ya follow? Ask not what you can do for me; ask what you can do for your country.”

“Indeed, Madam President. And I pledge allegiance to the flag of the United States of America. And to the republic for which it stands, one nation, under God, indivisible, with liberty and justice for all.”

“Well said, Al, and with feeling. Tuggin’ at my heart strings, aren’tcha!”

“And I remembered all the words, Madam President.”

“Yes, ya certainly did, Al. What a wonderful photographic memory you have. You shoulda been a lawyer.”

“I am a lawyer, Madam Palin. That’s why our Constitution stands firm and strong.”

“You’re a unique man of integrity, Al.  I’d embrace ya but I don’t wanna distract ya. Ya know how hot I am.”

“Once a beauty queen, always a beauty queen, Madam President. In fact I am finding it exceedingly difficult to focus on my work with that blouse you’re wearing.”

“Yah! D’ja like it? Anyways, at bottom every man knows well enough that he is a unique being, only once upon this earth; and by no extraordinary chance will such a marvelously picturesque piece of diversity in unity as he is, ever be put together a second time.”

“Thank you, Madam. Well, the integrity of this administration is the envy of the free world. And now if you’ll excuse me, Madam President, it’s time for me to go out and rescue stray kittens.”

“Very good, Al.  I’ll be in the philosophy section of the Library of Congress if you need me.”

Error: Unable to create directory /home/demockra/public_html/wp-content/uploads/2010/09. Is its parent directory writable by the server? Teabagger Fossils Found on Noah’s Ark!

I think I can safely assume that Teabaggers believe only white Christians go to heaven, that the Big Bang and evolution theories are Satan’s fabrication to distract us from spirituality, and that dinosaurs were on Noah’s Ark. Does that about sum it up?

But perhaps it all makes sense. Genesis states that the Ark contained every “every creeping thing that creepeth upon the earth,” both “clean” and “beasts that are unclean.” No doubt, cool and scary dinosaurs not only thundered, and thumped, but also creepethed, and thus would qualify.

It’s not well known, but there were also prehistoric Teabaggers and evangelist preachers on Noah’s Ark. The reason it’s not well known is because the T-Rex ate them all. That razor-toothed Jurassic predator was probably hungry, but he also became cranky whenever fundamentalist ministers started yammering about creationism and family values. He was, moreover, confused and upset by the constant thumping of the Bible—which was admittedly a work in progress but already had a satisfyingly solid cover—and which he mistook for the footsteps of a dilophosaurus. The noise was all the more misleading because every time the Bible got thumped, Noah’s water glass shook like the one in Jurassic Park.

Enough already, so T-Rex simply chomped down on the preacher in mid-sentence: “We are all sinners in the eyes of Gawd! Ah have sin–arrghhghglugg!”

I suspect T Rex was smarter than we think, besides having big sharp teeth. He knew full well that when choosing a tasty appetizer, one should always eat the most annoying one–thus securing not only a half-day’s worth of protein but also some blessed silence.

Mrs. T, on the other hand, found herself enraged by one particular creeping thing that creepethed upon the earth, an overweight bald human given to incessant happy talk divorced of all reality. And so it came to pass that his happy talk was interrupted in mid-stream with a big gulp: “We have in fact made great progress, Noah. Now, I know some polls show that 78% of the creepy things that creepeth upon this Ark believe there’s a catastrophic flood in progress. But I believe most creepy things also want us to overcome this flood. We don’t need this Ark at all, Noah. Not only can we win the war, are win—arrghhhglugg!”

And God spake unto Noah, behold, this is the token of the covenant which I make between me and you, that all living things have a Purpose, and that the most fearsome and cool dino of all existeth to rid the earth of creationists and happy talkers and all wicked beings that creepeth upon the earth.

Error: Unable to create directory /home/demockra/public_html/wp-content/uploads/2010/09. Is its parent directory writable by the server? Sex Clubs, Nazis, Tea Parties, Oh My!

The party of “fiscal responsibility” (ignore the last eight years when a non-Democrat, non-black guy was in office) and “family values” was recently caught with its pants down and sweaty one dollar bills in hand.

Of course, I’m referring to Bondage Gate, or the news that The Republican National Committee reimbursed about $2,000 in expenses rung up by the Young Eagles at a Hollywood nightclub featuring topless dancers and bondage outfits.

The good news is that it the women were of age and, um, they were ACTUALLY women.

Whether obfuscating or obstructing, the Republican party lost its footing a long time ago and, more recently, has been taken over by a horde of fat, stupid, angry white men and their equally fat, stupid, and angry spouses.  A group that thinks Obama is some sort of secret radical, half-breed fabric.

A group that somehow and someway believes the ability to articulate oneself in public equates one to the murdering of six million Jews. The particularly ironic part of all this is that the National Socialists were of course right-wing fascists, much closer in ideology to many of the so-called Tea Partiers.

What about the claim that the Tea Party is apolitical? Gallup’s recent poll debunks this claim once and for all. First of all, the scary part:

Twenty-seven percent of Americans identify themselves with the Tea Party.

What about Republican vs. Independent vs. Democrat:

49% Republican

43% Independent

8%  Democrat

Since party affiliation can mean different things to different people, with many R’s and D’s claiming to be independents in mixed company, ideology might be a better indicator. The self-identified ideology of Tea Party members is:

70% Conservative

22% Moderate

8% Other

What can we make of this:

Besides that the fact that 8% of Teabaggers are apparently hipsters trying to be ironic, the only thing to conclude here is that Teabaggers are largely much more conservative and Republican than the public at large.

Oh yeah, and also according to Gallup… rich….and white…

No big surprises here.

Indeed, the new base of the Republican Party has nothing to run on but fear and fear itself.

In short, the salacious and lascivious peregrination on the part of Michael Steele and the GOP has finally brought back some dignity to the real, non-Teabagger, Republican Party. But at what cost?

Error: Unable to create directory /home/demockra/public_html/wp-content/uploads/2010/09. Is its parent directory writable by the server? Football and Politics

With the Super Bowl, politics, and a combination of the two leading the headlines in recent weeks, today’s Politics as Unusual satirical column attempts to counter the appalling and just plain weird anti-abortion ad aired during the Super Bowl by Focus on the Family. This is the ad that I believe Focus on the Family really wanted to show but couldn’t due to the fact that the equally creepy talking baby from the E-trade ads was already under contract:

Error: Unable to create directory /home/demockra/public_html/wp-content/uploads/2010/09. Is its parent directory writable by the server? The Boogeyman Cometh

Crisis and Command: A History of Executive Power from George Washington to George W. Bush is remarkable only for its author, John Yoo. Yoo famously worked for the Department of Justice from 2001 to 2003 and wrote memoranda providing legal justification and authority for the torture of captured terrorism suspects. Yoo is also slightly less famous for his opinion that the president, in his capacity as commander-in-chief of the military, somehow gains additional powers during wartime that cannot be checked by Congress. Sure, this opinion has no evidence to be found within the Constitution, but that hasn’t stopped Yoo from continuing to espouse this incorrect and dangerous view of near-total executive authority.

Yoo appeared last night at a meeting of The Commonwealth Club of California, a forum where political and social personalities can give speeches and answer questions (and promote their books). Outside the building were a bevy of protesters calling Yoo a torturer and demanding that he be fired from his job as a law professor at the University of California, Berkeley’s Boalt Hall School of Law.

Yoo’s hour-long speech and Q&A was interrupted about half a dozen times by protesters standing up and shouting at him that he was a torturer, that his victims will get their justice, that he’s a murderer, etc. The forum’s moderator, Stanford Law School professor Allen Weiner, insisted that we keep this civil and not resort to “self-indulgent theatrics.” I quite agreed with him, actually. Honestly, who did these people think they were talking to? If John Yoo thinks he’s responsible for torture, then he already knows it. If he doesn’t think he’s responsible, then the Harvard- and Yale-educated lawyer isn’t going to be persuaded by some people yelling at him. Plus, I paid $12 to listen to John Yoo try to justify his opinions about torture, not to listen to protesters scream.

Anyway, Yoo’s book. In a nutshell, it is about how presidents assuming authority during crisis situations isn’t anything new. Yoo’s philosophy is very deferential to the executive branch; in telling a story about George Washington and the Senate, he insinuated that the Senate was composed of egotistical demagogues who would rather give speeches than get anything done. While that may have been (and continues to be) true, it doesn’t justify seizing power from Congress all in the name of getting things done.

According to Yoo, “good” presidents “fully utilize the powers the Constitution grants them.” He then proceeded to talk not about how presidents used powers granted to them by the Constitution, but about how presidents have taken power in the absence of either Congress taking power first or Congress making a swift decision. This is one of the flaw’s in Yoo’s argument: the examples he gives are of presidents operating in an area of ambiguous power; far from utilizing powers granted to them by the Constitution, people like Washington, Lincoln, and Franklin Roosevelt took power that was not explicitly granted to them. He made reference to a president’s “commander in chief power,” apparently unaware that those powers do not grant a president carte blanche to do whatever he pleases all in the name of expediency.

He takes a dim view of Congress; Yoo would rather have a powerful executive that acts quickly instead of a deliberative body that takes a long time to make decisions. In this regard, he seems to be both a poor historian and a poor lawyer. Slowing down the decision-making process was the whole point of requiring decisions to go through two houses of Congress and a president. That is why Congress, and not the president, is granted sole authority to declare war; the authors of the Constitution wanted a declaration of war to be discussed before it happened, not signed at the whim of a single man. In Yoo’s perfect world, the opposite would be true.

Yoo seems to think there are three classifications of presidents:

1. Good presidents seize power that is not theirs, and good outcomes result.
2. Bad presidents do not seize power when they should, and bad outcomes result.
3. Bad presidents seize power that is not theirs, and bad outcomes result.

Pretty much, the ends justify the means. James Buchanan was a bad president because he didn’t declare war on the South when he could have. Richard Nixon is a bad president because his use of extra-constitutional powers ended badly. But Abraham Lincoln comes out smelling like roses because his use of extra-constitutional powers ended up going well for the United States. Of course, this requires the question, how do we know that good outcomes will result when a president takes power that is not his to take? Yoo didn’t have an answer to that; I do. The answer is, “If the Constitution doesn’t permit you to do it, then you can’t do it.” It’s really quite simple. He chided James Madison for not declaring war on Britain in the War of 1812; Madison didn’t think he had that authority. Why would Yoo think that Madison did have that power? There is no place in the Constitution where the president is granted the authority to declare war; only Congress has that ability. And Madison would be in a position to know what the Constitution said; he wrote the thing, after all.

Yoo’s expansive view of presidential power is not only startling in itself, but it’s startling that it’s so poorly argued. Again, Yoo went to Harvard and Yale. You’d think he’d be better at this. And as a lawyer, you’d think he would care more about the actual language of the Constitution rather than what Yoo would like the Constitution to say. Frighteningly, he dismisses the notion of due processes for terrorism suspects, suggested that our only options are torture and “reading them their Miranda rights.” I expect such a pejorative statement about one of our civil liberties from Sarah Palin, who is untrained in the law and in understanding the Constitution in general, but hearing a Justice Department lawyer speak so scornfully of an important right makes me queasy. If he doesn’t want to enforce that right, then what other rights does he think don’t need to be enforced?

After the speech, Weiner asked Yoo a few questions, both of his own and those that were submitted by the audience. He first took Yoo to task for mentioning only those usurpations of authority that ended well, instead of the ones that ended badly. He cited examples of people who were imprisoned for “sedition,” that most famously ambiguous and jingoistic of charges, for speaking out against World War I. Yoo responded that he did, in fact, mention people like Franklin Roosevelt, who ordered the interment of Japanese Americans during World War II, or Andrew Jackson, who forcibly removed Indians from their own land. “The Constitution doesn’t protect against bad decisions,” he said. I submit that it does: in the form of the deliberation I mentioned above. By requiring that decisions go through several people before being made, the Constitution tries to minimize the damage caused by people making bad decisions.

Then came the torture talk. Yoo admitted that he is not above the law, and if the Obama administration wanted to pursue criminal charges against him, it would be free to do so. Of course, no administration will willfully prosecute former administration officials; that would invite a precedent that people in power do not want. He invoked the spectre of September 11, saying that the War on Terrorism is a different war that required different tactics.

And then he said something interesting. Yoo said that he was merely doing his job. His office was asked by the CIA to decide whether or not they would be able to do certain things to high-value terrorism suspects. Yoo was tasked with coming up for a legal framework for it. Now, it’s highly probable that Yoo merely told them what they wanted to hear, or that they wanted a cover-your-ass type of legal justification. But at the end of the day, Yoo merely provided legal advice to his client, the United States. It was up to the people in power to decide whether or not to implement that advice. Yoo is not the boogeyman that he has been made out to be. While his justification of torture is evil, there are more evil people than him; namely, the people who made the decision to put that advice to work. To see Yoo, he is ambivalent about the torture issue. And he is ambivalent because he doesn’t think he actually did anything wrong. In his mind, he was merely providing advice; the truly bad people were the people who implemented the policy when they could have not implemented it.

And he’s sort of right. While Weiner criticized his memos, saying that any first-year law student would recognize them not as legal memos but “advocacy briefs” that didn’t advise his client about the legal policy risks, at the end of the day Yoo is not the most responsible party here. He was asked for legal advice, and he provided it. Yes, the advice was poorly defended, and yes, it is morally reprehensible for implicitly authorizing torture, but ultimate responsibility rests with the people who took that advice: the president, vice president, attorney general, et al.

This requires the question: should John Yoo be prosecuted for torture, as the protesters wanted? Consider the scenario if Yoo were a lawyer in private practice, advising a client. He may be guilty of shoddy lawyering, but determining actual malice would be hard, given that he can bring a defense that he was giving advice and doing his job like he should have been. (And let’s not start making hyperbolic comparisons to the Nuremberg “I was just following orders” defense; those people materially killed people. As in, performed the action. Yoo, not so much.) At the end of the day, Yoo is nothing more than a sub-par lawyer trying to imprint upon the Constitution a broad interpretation of executive authority that just isn’t there. While he mentioned that the founders of the country abandoned the Articles of Confederation in favor of a stronger central government, he ignores the debates they had about still having a limited government; fresh from their experience under a king, they didn’t want to be ruled by a strong executive again. Hence Congress’ ability to declare war and not the president’s, for example. And let’s not forget that the buck stops with President George W. Bush and former Attorney General John Ashcroft, who both signed off on these memos. While Yoo may have given them advice, they are the ones who took it and implemented it.

Error: Unable to create directory /home/demockra/public_html/wp-content/uploads/2010/09. Is its parent directory writable by the server? Speech Is Free — If You Can Afford It

It is a peculiarity of history that, in the United States, corporations are considered “persons” to the same degree that flesh-and-blood human beings are considered “persons” under the law. In 1886, the U.S. Supreme Court made an innocuous ruling in an unimportant case, Santa Clara County v. Southern Pacific Railroad. The issue at hand — in a new Constitution, California denied railroad companies the right to deduct mortgages from the taxable value of their property — is fairly unimportant. The court reporter, J.C. Bancroft Davis, wrote a note for the headnote of the opinion: “The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does.” Curiously, none of the justices had ever said this; Davis took it upon himself to include this sentence in the headnote, which later became part of the opinion. From then on, all courts could cite this sentence as approval on the Supreme Court’s part that a corporation is a “person.”

A look at the ruling

This week, we found ourselves faced with Citizens United v. Federal Election Commission, a case that should not have had to deal with corporate personhood, but which, nevertheless, has upheld some truly nefarious practices as being completely legal, in spite of their resoundingly negative public policy implications. Just as the Dredd Scott decision upheld slavery even though there was no finding in law for such a practice, the Supreme Court yesterday upheld corporate personhood even though it has no basis in law. (And, for the record, I am not suggesting that slavery is morally equivalent to corporate personhood. Put your pitchforks away.)

The case begins in January, 2008, when the nonprofit corporation Citizens United released a documentary about then-candidate Hillary Clinton, titledHillary. The Bipartisan Campaign Reform Act of 2002 (hereafter, BCRA) prohibits “electioneering communication” within 30 days of a primary election or 60 days of a general election. BRCA also prohibits corporations and labor unions from using their general treasury funds for “express advocacy,” which is explicitly encouraging voting for or against a named candidate. Express advocacy is determined by the “appeal-to-vote test,” which is described in BCRA.

With every grant of certiorari, the Supreme Court publishes a list of “questions presented” for a case. These questions limit the scope of the discussion. In the case of Citizens United, the Court wished to deal with only four issues:

1. Whether “disclosure requirements” for “electioneering communications” were resolved by the previous challenge to BCRA, McConnell v. FEC;
2. Whether the disclosure requirements impose an “unconstitutional burden” on communications that are not express advocacy (the appeal-to-vote test);
3. Whether the parameters of the appeal-to-vote test are clear enough;
4. Whether the Hillary movie is subject to regulation under BCRA’s “express advocacy” restriction.

If you didn’t notice the words “free speech” and “constitutionality of BCRA,” then you’re not alone. This case was never about the constitutionality of the BCRA per se; it was always about whether or not Hillary was electioneering communication. Period. End. I have always been of the opinion that it was not, since a documentary that casts Hillary Clinton in a negative light is not necessarily an entreaty to vote against her.

In addition to limiting when electioneering communication could take place, BCRA placed limitations on the amount of money that could be donated to political parties. Referred to as soft money, these donations were theoretically limitless before BCRA; the point of the legislation was to protect the political process from undue financial influence. BCRA also prohibited corporations from funding political advertisements, which is why, in the 2004 election, so many single-issue groups popped up, like Swift Boat Veterans for Truth. These “527 groups” (so named for the section of BCRA that allowed them to exist) filled the void left by corporate-sponsored political ads.

Justice Anthony Kennedy and the conservative wing of the Supreme Court disagree with all of this. From the outset, they decided that the case could not be decided without bringing the First Amendment into play. As such, they broadened the scope of the case from the four questions presented above to include the constitutionality of the BCRA’s spending limits.

The ruling comes in sixty-five-dozen parts. Hillary does constitute “express advocacy” under the BCRA and is therefore illegal. However, the free speech implications of BCRA must be looked into; specifically, the corporate expenditure ban. Kennedy, et al. suggest that, while limitations on corporate expenditures do not constitute prior restraint per se, the complexity of the regulations are tantamount to prior restraint (the legal term for censorship). Therefore, § 441b of BCRA — the part limiting corporate expenditures — is unconstitutional because its “prohibition on corporate independent expenditures is an outright ban on speech, backed by criminal sanctions.” This means that the restrictions on campaign expenditures by corporations upheld in 1990’s Austin v. Michigan Chamber of Commerce — for the purpose of preventing unfair corporate influence — is overruled. So much for stare decisis.

Some speech is freer than other speech

Throughout the opinion, Justice Kennedy cited the First Amendment and the need to prevent censorship as the reason for the ruling. The implicit argument is that any regulation of speech amounts to prohibition of speech. Corporations were not permitted to use general treasury funds to finance candidates or messages. They were, however, permitted to form their own political action committees (PACs). This is exactly how nonprofit corporations are currently required to work: in exchange for tax-exempt status, nonprofits (which include churches) cannot use their general treasury funds to lobby for candidates or legislation. But they can form affiliated lobbying organizations, so long as the money for the political organization does not come from the tax-exempt organization. (For example, the ACLU is not tax-exempt because it lobbies for candidates and legislation; however, the ACLU has an affiliate organization called The ACLU Foundation that is tax-exempt.)

Whither nonprofits? If for-profit corporations cannot be limited in the amounts of their expenditures, why should nonprofits be so limited? Whyshouldn’t churches be able to implore their congregations to vote for this candidate or that candidate? Under Citizens United, such a restriction amounts to censorship.

The majority opinion also ignores the “reasonable restrictions” that have always been placed on speech. These restrictions limit the “time, place, and manner” of speech because, to use the textbook example, yelling “Fire!” in a crowded theater could lead to people’s deaths. Religious organizations cannot proselytize in airports because — guess what? — airports are not a “public forum.” (Interesting fact: due to the language of the California Constitution, California is the only state in which a public shopping mall is a “public forum.”) You can shout all you want on a street corner, but your ability to use a megaphone can be restricted by law due to the nuisance a megaphone causes. Corporations themselves are even restricted in advertising; “commercial speech” must be true, so that a company cannot make outrageous claims about its product or use advertising to slander other products. All of these “reasonable restrictions” are in place to balance the free speech needs of a speaker with the needs of government to protect the rights of others.

Using the Constitution to rule on issues of corporate personhood is stupid on its face; the Constitution does not deal with the issue, and neither did the authors of the Constitution anticipate that corporations would need to be governed in such a way. Using the trope of a “person” to describe a corporation is advantageous in that it bestows upon the corporate entity the ability to file lawsuits. But the Constitution is ill-equipped for the job of deciding whether or not a corporation is a person. This is where, contrary to Chief Justice Roberts’ statement that justices are like umpires, the Supreme Court needs to make up the law. In the absence of guidance from the Constitution or from Congress, the Court becomes an instrument of public policy, and it can use that power for good or for ill. Specifically, the Court can decide to do what is best for the nation. In this case, it has not. Speech is not protected by allowing corporations — who, again, can neither vote nor hold public office — to influence elections. We do not allow non-citizens to vote, but nor do we allow them to donate money to campaigns (with the exception of permanent residents, which is a poor idea that should be changed) or hold public office.

The majority would like this case to turn on the issue of free speech, but more basic than that, it should turn on the issue of whether or not corporations areentitled to that freedom. I submit that they are not. The ball is now in Congress’ court to craft a statute that limits the rights of corporations and affirms, once and for all, that they are not “persons” the same way that flesh-and-blood humans are “persons.” Thomas Jefferson, et al. believed that humans were entitled to fundamental rights by virtue of their status as reasoning beings. Corporations cannot reason; they have no mind of their own. They are no functionally better than sock puppets, and the last time I checked, Kermit the Frog was not allowed to donate money to a political campaign.

Corporations’ rights must be limited and enumerated. While it is convenient for them to have some of the rights of human beings, it is not necessary — nor is it good for the public at large — for them to have all of the rights of human beings.

Error: Unable to create directory /home/demockra/public_html/wp-content/uploads/2010/09. Is its parent directory writable by the server? Haiting Haiti?

The entire world was brought to its knees in horror earlier this week as Jeff Zucker, I mean the tiny island country of Haiti, experienced a colossal 7.0 earthquake considered by many to be one of the worst in recorded history. The quake has taken as many as 100,000 lives and left many devastatingly poor Haitians uncertain about their future.  In addition, with the island’s already ramshackle water system badly damaged, clean water is  nearly impossible to find and waterborne disease could easily kill as many people as the quake as tens of thousands of victims are forced to scrounge for water in spoiled cisterns.

Naturally, the outpouring of global sympathy in the form of monetary donations, particularly in the form of text messages, has inundated this heartbroken region and will hopefully continue beyond the immediate aftermath.

So one would expect Pat Robertson, a man of the cloth and self-appointed spokesmen for Jesus, to lift the spirits of these poor unfortunate souls with some heavenly compassion.

Yes, according to Pastor Pat, the earthquake wasn’t brought on by a country resting on geological fault lines with a natural propensity for earthquakes. No, instead, it was a giant red devil that caused this disaster. Well, at least homosexuals and feminists were in the clear for once.

In the event that you’re head did not just spontaneously combust, allow me reiterate Pat Robertson’s explanation for this week’s horrific earthquake:

“Something happened a long time ago in Haiti, and people might not want to talk about it,” he said. “They were under the heel of the French … and they got together and swore a pact to the devil. They said, ‘We will serve you if you’ll get us free from the French.’”

“True story. And the devil said, ‘OK, it’s a deal,’” Robertson said. “Ever since, they have been cursed by one thing after another.”

For those of us with a fully functional cerebral cortex who are not permanent residents of Kookistan, what  actually occurred in Haiti near the turn of the 19th century was quite historic. In the 1790s, having witnessing the French Revolution, Toussaint L’ouverture inspired a successful slave rebellion against the French in the Haitian Revolution. The insurrection proved so powerful that it directly led to France selling most of its territories in the New World, or the Louisiana purchase, and inspired networks of American slaves to contemplate their own rebellions right up through the Civil War.

However, to be fair,  I actually consulted with a lawyer with respect to Pat Robertson’s claim and it seems that it was completely null:

First, it was NOT signed in blood. That maybe old fashion but that’s the rules. Second, NO blood sacrifice clause. Considering how long they have suffered, I think this a big loop. Third, NO certification about who won the fiddle contest.

So, using my expert source, it seems that Pastor Pat is miserably uniformed.

But in all seriousness, I strongly urge each and every one of you to take two mouse clicks or QWERTY keypad buttons and donate as much as you can to the suffering people of Haiti. I realize that many of you are skeptical about whether this money is actually going through the proper channels and reaching the right people, which is why I urge you to never text “madoff” to any charity whatsoever.

Error: Unable to create directory /home/demockra/public_html/wp-content/uploads/2010/09. Is its parent directory writable by the server? Proposition 8 Gets Kicked Up a Notch

A quick recap. In May 2008, the California Supreme Court ruled that the California Constitution requires that same-sex couples are entitled to “marriage” just as much as heterosexual couples. Soon thereafter, opponents of the ruling began the process of placing a proposed constitutional amendment on the November ballot, which would explicitly prohibit same-sex marriage. The ballot initiative was placed on the ballot as Proposition 8 and passed by a disturbing margin. Same-sex marriage proponents went to court in an attempt to argue that the initiative marked such a fundamental change in civil rights protections in California that it should be considered a revision, not an amendment. The California Supreme Court disagreed.

And now we’ve reached U.S. District Court for the Northern District of California, the Honorable Judge Vaughn Walker presiding. Judge Walker is a fan of the law, not of politics. He has shown that he has no qualms about ruling against the Bush administration when it comes to warrantless wiretapping; however, once Congress passed a law granting the administration immunity from prosecution, Judge Walker was forced to dismiss the case. Whatchagonnado, eh? (Michelle Malkin has unsurprisingly called Judge Walker a “liberal activist judge” despite his being a Republican. You stay classy, Michelle.)

Judge Walker heard oral arguments this morning in Perry v. Schwarzenegger, in which Judge Walker will decide whether or not Proposition 8 violates the federal Constitution’s Fourteenth Amendment guarantee of equal protection and Fifth Amendment guarantee of due process. A motley crew of litigants will appear before Judge Walker, including former U.S. Solicitor General Theodore B. Olson, a George W. Bush appointee, who will be arguing against Proposition 8.

Judge Walker wanted the trial broadcast on YouTube, but the U.S. Supreme Court, which has ultimate jurisdiction over all federal courts, blocked the coverage.

The trial is a very big deal for civil rights advocates. If the case were to make it to the U.S. Supreme Court (which it will no matter what; neither side would fail to appeal if it lost), every state statute and constitutional amendment forbidding same-sex marriage would hang in the balance, as would the federal Defense of Marriage Act, which prohibits the federal government from granting the rights of heterosexual marriage to same-sex couples.

Highlights from the oral arguments include Judge Walker wondering why the state even needs to be in the business of regulating who can marry whom, and how anti-miscegenation laws were once believed to be just as valid as anti-same-sex marriage laws are today.

Charles Cooper, speaking on behalf of Proposition 8, framed the defense this way: the voters approved it, so it’s the law now. And same-sex couples have California’s domestic partner statute, which explicitly states that no right given to married couples by the state can be denied to domestic partners. Cooper also argued that same-sex marriage laws are different from miscegenation laws because the former are designed to preserve “traditional marriage.” Cooper then raised the spectre of marriage being “pro-child,” but curiously does not address why, if that is true, the state does not require fertility testing as a condition of obtaining a marriage license. Clearly, if one of the state’s reasons for regulating marriage were to promote mating, then it would not permit infertile couples to marry. This issue is often not addressed by proponents of the marriage-is-for-children argument.

How could this end up? Lots of ways. Assuming that marrying someone of the same sex is a right (and, indeed, assuming that marriage is a right at all), the amendment is unconstitutional on its face. It denies “equal protection of the laws” to same-sex couples and denies them “liberty” without “due process of law.” The appropriate avenue for this to be legally supported would be the same way that anti-miscegenation laws were struck down.

The court could rule a different way; namely, that same-sex marriage is not a right. This would be difficult to support, given the fact that sexuality — like skin color, gender, or ethnicity — is clearly not a choice. It should also be disturbing to Judge Walker that the California Constitution allows a simple majority to deprive a minority of “life, liberty, or property” without “due process of law.”

The trial continues.

Error: Unable to create directory /home/demockra/public_html/wp-content/uploads/2010/09. Is its parent directory writable by the server? Joementum Strikes Again

With headlines of health reform, blue dogs, and pork barrel politics abound, this week’s Politics as Unusual will feature my favorite U.S. Senator from the insurance capital of the free world. As we look forward to reconciliation days to come, let’s take a look back, way back, past Christmas Eve votes, 1 am clotures, Nebraska purchases, and prayers for the speedy death of the President pro tempore:

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