Friday, August 22, 2003
California's Crazy Constitutionalism...
or, Measure Twice, Cut Once...
Tony AdragnaI think the problem in California isn't so much that tension between whose view of the Constitution is better, and therefore makes a more effective application. The debate raging 'twixt we of the plebs and you patricians of good government is, though it's not been made explicit, about constitutionalism itself.
I don't mean that there's disagreement on the proposition that constitutions are good per se. But, there is disagreement on what makes a good constitution. This debate has been present since the Framers first began drafting our Federal Constitution, and argument on what the Constitution means often refers back to that Convention. That's where we end up talking about principles like federalism, separation of powers, limited government, representative government, individual liberties, etc. that the Framers thought important enough to include in the Constitution. And folks end up disagreeing on how those princples ought be applied.
What's happening in California gets at an even more fundamental question: How ought constitutions, and amendments to the same, be formulated? Some folk think a constitution should consist of broad guidelines bounded by some limiting principles that leave room for growth in understanding, and for a great amount of discretion in application. Other folk think constitutions ought be framed so as to be strict guidelines based on immutable principles, and applied only as the framers intended. This is related to the issue of constitutional interpretation in the same way that my mother's DNA is related to mine — I had to issue forth from her before folks could opine on what a cutey I am.
That's the background, now what's so crazy 'bout California? Well, I don't think voters have "thought about the approach" to framing constitutional provisions that they carry through the initiative process. I think that there are some good provisions that have come out of that process — i.e. the recall provision. But, I also think the voters have gotten themselves into some ugly messes by taking the "strict guidelines" approach to its extreme — i.e. Prop 98.
But I still like the initiative process, I'm just not so sure that folks understand the full implications of their actions. Maybe if there was a bit more measuring up before the voters start applying their plebiscitary tools, things wouldn't look so messy...
p.s. I'm not sure that "everything gets challenged", at least not the way I meant. I think most challenges involve particular applications & whether they meet either legislative intent or are constitutionally permissible applications. In those cases, courts won't usually reach the question not raised — whether the statute itself is constitutional. That's the little trick that Justice O'Connor wanted to play on Lawrence...
Tony, the People and the Professor
Will VehrsInteresting that you introduce us to Professor Marston, Tony. One of my daughters starts classes at SUNY Oswego in about a week. I hope she has the opportunity to study under your professor friend.
I certainly agree that we all should engage in constitutional interpretation. At the end of the day, however, any legislator or citizen's desire for a constitutional decision rests with the outcome of a legal challenge. My sense is that everything gets challenged, but most challenges die in lower courts.
Your discussion on the constitution and citizen involvement has some parallels in the California upheaval. Citizens, at least the more aroused of them, are, through initiatives and the recall, intimately involved in exercising the California constitution. One might ask if the gaggle of citizens in California are more or less effective as arbiters in their state sphere as the two old women and seven old men of the US Supreme Court are in theirs.
Thursday, August 21, 2003
A Peoples' Constitution
[Warning: semi-rambling, but hopefully interesting discussion to follow - ed
The several times I've gotten together with Brett Marston
, the subject of "civic legal knowledge" has come up — probably 'cause that's what his current scholarly work is on. Wrapped up in that discussion is the question of whose job it is to interpret the constitution.
One of the things we agree on is that reading and interpreting the Constitution isn't something only the courts can do. In fact, it's something that the Executive & Legislature do all the time.
For example, not too long ago Congress passed a campaign finance law. In considering the law, some lawmakers were concerned that some of the provisions would be found unconstitutional. Indeed, some of the lawmakers voted against the measure as they thought it unconstitutional. Each side had some kind of constitutional understanding that informed opinions.
Mr. Bush signed the campaign finance reform law even though himself thinks it, or parts thereof, unconstitutional — he has some kind of constitutional understanding that informed that opinion.
There would have been nothing wrong with the Executive going on his own constitutional understanding and exercising a veto. If Congress felt strongly enough about the measure, then they could override the veto, and their understanding prevails — at least 'til challenged in court. If the Executive's veto isn't overriden, then his understanding prevails — at least while he's in office and continues to veto similar measures and Congress remains unable to defeat his veto.
Now we get to the third branch. No matter how this law got enacted, there was bound to be a challenge to it in the courts. Why? Because each of us has an understanding of what the Constitution allows & disallows, and there's no agreement that this Act of Congress is constitutional. What is the role of the courts here? It is to settle the dispute between conflicting understandings of the Constitution.
Yes, the courts do interpret the Constitution. But they only do so when a justiciable dispute is properly brought to the courts. If nobody brings a challenge to court, then whatever Congress & the Executive agree is constitutional is
constitutional. In this way, the courts are actually the least
powerful of the three branches — while the Supreme Court's constitutional understanding is much deferred to, it undertakes not to opine on the constitutionality of every Act of Congress & every decision of the Executive. Indeed, such would be an unconstitutional undertaking.
This is where us regular citizens
join the fray. It's our job, too
, to understand the constitution — how else are we to hold the political branches, and the judiciary through them, accountable on their oath to "defend the Constitution"? How else are we to decide that a certain prevailing constitutional understanding not already found wanting by the courts is something that merits a challenge? Notwithstanding that a certain constitutional understanding may be constitutionally permissible, how else are we to conclude that some other understanding may be the better choice? It's not simply the three branches that have an interest in how the Constitution is interpreted & applied, so it oughtn't be just them deciding what the Constitution means.
Having said all of the above, I now turn to Brett's demi-defense of DeLay
, with my focus on this part of the last graf
[...]I doubt that he has thought about the approach to constitutional interpretation implied by his remarks (i.e., not textually anchored! not anchored in "original intent" explicitly!). Finally, it would be hard to sustain the argument that Democrats in the Texas legislature took an oath to uphold the Constitution as Republicans understand it and not as Democrats understand it. Still, I don't think it's a stretch to see Delay as advancing genuine constitutional arguments here. They might not hold up in court -- unless the Republicans are able to restructure the judiciary, that is![emphasis original]
I think he's correct, and the doubt
apply to much of public debate on the Constitution & its application [I hasten to note that even when reading opinions offered from the High Bench, I'm oft hard pressed to believe that the Justices have fully considered what it might mean to rigorously
apply "the approach to constitutional interpretation implied" — then I wake up
And I think it important that Brett defends DeLay's argument as "genuine" — too often the debate devolves into charges of insincerity of substance, focusing on the cynical. It's kinda hard not to be cynical, though, when the Legislature & Executive seem to be acting less than virtuously — standing on
or acting against
principle in ways that can't but lead toward quetioning sincerity.
But I think what's most important is what's wrapped up in the phrase "civic legal knowledge." I think we all should be well enough informed to engage these debates, rather than leaving it up to the political branches & judiciary — it is We the People
, and if we leave it to them
, then there really is reason to be cynical...
Are Islamic Fundamentalist Cooperating with Secular Ba'athists?
We've got reporting on the truck bomb that says the munitions were probably from Iraqi stockpiles. Sound like Ba'athist loyalists did the deed, right?
Well, that's still a possibility, but ther're others more probable
An Iraqi friend provided an even more graphic account of Baghdad's informal privatization at work the day after I talked to Kerik. A former army officer offered to dig up a Soviet-made T-72 tank that had been buried in the desert for safekeeping. He priced it at $10,000. Mr. X could also supply a trained driver and gunner as well, but they would cost extra.
I shook my head in disbelief -- until a few days later, when U.S. troops dug up an entire squadron of MIG fighter-bombers that had been buried in the sand in exactly the fashion described by Mr. X.
Could Hoagland have made that up? I don't think he's any reason to do so.
Then we get this report
Gen. John Abizaid, chief of U.S. Central Command, told a Pentagon news conference that elements of a small terrorist organization called Ansar al-Islam had migrated south into the Baghdad area and that foreign extremists are infiltrating Iraq from Syria to further destabilize it.
Abizaid said terrorists are now firmly established in the Iraqi capital and pose a growing danger...
Asked whether he saw links or signs of cooperation between remnants of Saddam's former Baath Party - believed to be behind much of the anti-American violence in Iraq - and terrorist groups entering Iraq, Abizaid said they are organized in similar ways but are not allies.
"I believe that there are some indications of cooperation in specific areas," he added. "Of course, ideologically they are not at all compatible. But on the other hand, you sometimes cooperate against what you consider a common enemy."
A point yours truly needs no convincing of
— remember, the Mujahedin
had no problem accepting Stinger missiles, etc. from the U.S...
Now, let's us do our sums:
Ansar al-Islam, a group which falls under as Qaeda's umbrage, is known to be in Baghdad +
Saddam's armorers are marketing their stock =
... well, you get the picture.
At a minimum
there's cooperation akin that between vendor & custom. But, I don't think it any more than that, 'cause I think the two camps really can't trust each other...
Maybe I'm wrong...
I'm With Busey, er, Kaus
Tony, Professor Sabato has been getting knocked around a lot lately. Virginia Democratic gadfly Paul Goldman
questioned state funding for Sabato's Center for Politics
. Newport News Daily Press
columnist Gordon Morse
trashed Sabato's seminar on former Governor L. Douglas Wilder becaue it went too easy on the first and only elected African-American chief state executive. Now, Kaus is calling Sabato "hidebound!"
I didn't agree with Goldman or Morse--their criticism was part of their own petty personal agendas--but Kaus took Sabato on in terms of substance and I think he carries the day against Virginia's premier pundit. Sabato is a Broder-like "good governik" figure, very wed to conventional cycles of nomination, campaign, and election. California's initiatives and recall provisions are messy democratic interference with the standard model, so it's not a total surprise that Sabato opposes them. It is surprising, however, that Sabato doesn't see the value of them as accelerators of public participation. He's big on getting more people involved in politics. Inititatives and the recall certainly do that.
It seems to me that California ought to tweak, not eliminate the initiatives provision and recall provisions. How about if the legislature had to have a 2/3 vote to overturn or amend an initiative, for example? The "people" would have the option of "throwing the bums out" who overturned an expression of popular will. I think the recall provision is bad government, but if no one is brave enough to lead a fight to eliminate it, I'm certainly in favor of more signatures to get on the recall ballot and some sort of run-off system if a governor is recalled.
Will Likes Riding With Mickey,
But Tony's On Board...
Will, apropos your Will versus Kaus
comparison, I present Kaus versus Sabato
Give LAT contributor Prof. Larry Sabato points: just when most hidebound East Coast pundits were waking up to the reality that California's recall had some good features and wasn't just an exercise in mindless plebiscitism, Sabato decides to publish an even more hidebound piece, denouncing the recall as "just the latest manifestation of mob-ocracy"! The first manifestation, of course, is the evil initiative process. Sabato declares:
Californians have piled foolish initiative upon foolish initiative in modern times.Yes, we Californians have passed some foolish initiatives, some of which (e.g., term limits) may have contributed to the current budget crisis. On the other hand, an initiative helped our state end the misguided experiment in bilingual education that persists in most of the rest of the country. And we've pioneered a democratic, legislated (not judge-decreed) end to racial preferences. Even if you disagree with these initiatives, you might recognize the utility of having California experiment with them before the entire nation does. There are now test scores, for example, with which to make the case against bilingual ed. ... It makes sense that, in a mature democracy, the problems that have gone unsolved will a) the more difficult problems and/or b) problems the solutions to which the normal political system conspires to block--because both parties are bought, or both parties are chasing after the same group of swing voters, or interest groups have otherwise clogged up the works ("demosclerosis"). In that situation, the judicious application of majority rule can sometimes work wonders. ...
Sabato's LAT contribution
is an extension of his earlier comments
... been there, done that
... What say you...
First I'm agreeing with Krauthammer, and now Kaus... what's my world coming to...
Wednesday, August 20, 2003
Chaos & Havoc
Just listening to The NewsHour
, and I wanted to link to some comments by "[f]our experts [who] discuss the attack and its potential impact on the international community's effort in Iraq,"
but today's transcript isn't up yet. What Tom Friedman said yesterday
is what I'm talking about
The U.N. was there in a purely humanitarian mission. You know, it's tragically ironic we're having this debate in this country - you know, should we have more U.N. troops or more American troops? And for the people out there, the people who are opposing us there, this is utterly irrelevant. They're opposed to the U.N. and they're opposed to the United States. They're opposed to any civilization there.
These are people who clearly want to wreak chaos and havoc. And they're certainly doing a good job of that.
That's what I meant
when saying that it's an assault against "maganimity," not just against "hegemony." In arguendo:
If we totally withdrew from Iraq today leaving a democratic, pluralistic nation of laws in place of what we found, al Qaeda still
wouldn't be happy...
Our rebuilding of Iraqi civil society is more worrisome to militant Islam than would be a thuggish occupation, and UN aid agencies are targets not just because they're "soft," but because — when they work the way they're supposed to — they present the Western world in a positive light... makes for a harder sale by al Qaeda et al
The UN mission in Baghdad wasn't a military target, but that doesn't matter — the success of that mission is just as fatal to bin Laden as is the military mission... both missions must be seen to fail
Two Minute Drill
Tony, just when I think I'll be a blogging fool again, something comes up and saps all my time. Let's see if I can get back in the swing.
Looks like the embattled California Governor is trying to tap into that deep-seated Democratic anger in order to keep his job. I don't think there's 50.01% of Democrats who'll buy that the recall is a right wing coup. There might be enough to give Bustamante the victory, though. That could be a silver lining for Republicans. If Bustamante is the lightweight he's been depicted to be, he'd be hard-pressed to defend the governorship. Of course, he'd also likely be challenged within his own party. The GOP could hope for a divisive primary campaign ....
It's a Boy!
I was hoping to announce that we were "blogfathers," Tony, but you beat me to it, linking to Mark Kilmer's blog
. We're regular abstinence-practicing bloggers compared to the "seminal" impact of the original blogfather, Daddy Reynolds.
I'm surprised that there hasn't been more coverage and more outrage over revelations about former Baylor basketball coach Dave Bliss and his role in covering up a murder investigation. There are allegations of pay-offs and deals with players. If Baylor was doing this, a lot of other schools are doing it, too. If someone starts really poking around, I think it'll blow the lid off the NCAA.
Nigerian Spammers Outraged at Worm's Spread
I never knew how much I appreciated a nice offer from a Nigerian dictator's cousin until my mailbox started filling up with worm-spawned emails. Poor Nigerians can't get their message through all the detritus.
Blame Game Slows
It's interesting how quickly the blame game over last week's blackout seemed to end. I think both parties saw it was essentially a no-win proposition, although I think Republicans had a better hand. Whenever there isn't enough energy, I think the GOP has a natural advantage; anytime prices are too high or there's an environmental problem, Democrats can make hay.
Updated 4:00 PM
Gov. Davis is "Contrite" And "Defiant"...
So says the headline
's coverage of last night's address by California's governor. And I was a bit confused, 'cause you can't really be the two at once — either you sincerely admit fault and take your lumps, or you make excuses/blame others/act the victim.
Davis is trying to sound like he's both,
but it's not contrition that I hear anywhere there...
Dan Weintraub — Sacramento Bee political columnist
— writes that Davis is "sort of"
when it comes to buck stoppage
At turns contrite and combative, Gov. Gray Davis on Tuesday began what he promised would be a concerted effort to defeat the historic attempt to recall him from office, calling on supporters to help him beat what he described as a right-wing conspiracy with parallels to the battle to impeach President Clinton.
In a speech to more than 300 union members and other invited guests in a UCLA auditorium, Davis tried to do what consultants from both parties have said he must if he is to survive: apologize for his failures. But he just couldn't bring himself to do it. Instead, he blamed the state's problems on others, or on circumstances beyond his control, and he portrayed the recall not as a popular expression of anger and frustration but as an anti-democratic political dirty trick.
Davis told his audience that he had come to the hall to "take responsibility." And his first words on the state's electricity crisis suggested that he might just do that.
"I know that many of you felt that I was slow to act on the energy crisis," Davis said. "I got the message. That's a fair criticism."
But Davis couldn't stop there...
Dan goes on to fisk Davis' attempt at record straightening
...He blamed private energy producers and federal regulators for the crisis and said he stood firm against raising electricity rates. He didn't mention that his appointees to the Public Utilities Commission did raise them, by 40 percent, or that he committed the state to 10 years of expensive electricity contracts after his appointees had stymied attempts by the utilities to secure low-cost energy with long-term deals.
Then Davis tried to contrast last week's power outage in the northeast, which has been blamed on problems in the still-regulated transmission system, with the relative calm in California since the rolling blackouts in early 2001, even though the only connection between the events is that both involved electricity
"I'm not looking for praise," Davis said. "We made our share of mistakes. And like you I wish I had known then all I know now. But if any Republicans in this recall campaign criticize the way we dealt with the energy crisis, ask them specifically what they would have done to keep the lights on."...
On the budget, Davis sounded a similar note, saying he was "not happy" with the budget he signed recently. And like a job applicant who says his biggest weakness is that he works too hard, Davis acknowledged that he "could have been tougher" in holding down spending increases when the state had a surplus. Then he turned defiant.
"Our increases on my watch went to education and health care, and I make no apology for that," he said...
It's true [...] that neither the energy crisis nor the budget mess could have been easily prevented. But it's also true that Davis' failure to act on them promptly is what turned them from problems into catastrophes. And his failure to act is exactly why so many Californians, including many Democrats, want to remove him from office.
This is the point I was trying to get across re what Davis did or didn't do vis a vis public policy on energy, education, etc. Set aside that California policy makers have their options limited by voters who at the same time
are anti-tax and pro-government services, 'cause even the best formed policies on the advice of best informed experts don't meet every exigency. That's where Leadership
needs to step into the breach during a "crisis", and that's
where Californians are finding fault with Davis — "his failure to act"...
By the way,
Gov. Davis' credit taking for education spending is akin Gov. Dean's self back slapage re civil unions
— neither of these men really had a choice. Just as Dean and the Vermont legislature were forced by that state's Supreme Court to sign a
law granting recognition of same-sex unions, Davis and California's legislature must comply with the state Constitutional requirement created by Proposition 98
Tuesday, August 19, 2003
SNAFU in Jerusalem
Makes you think somebody doesn't really want peace
JERUSALEM -- A suicide bomber blew himself up Tuesday on a packed bus on a main thoroughfare in Jerusalem, killing at least 13 people and wounding 80, authorities said.
Nobody immediately claimed responsibility.
The blast on the extra long bus, which had two passenger sections that were full, went off shortly after 9 p.m. Another bus nearby also was hit by the explosion.
The bus had started out at the Western Wall, Judaism's holiest shrine, in the walled Old City, and was headed to an ultra-Orthodox Jewish neighborhood, radio reports said.
The bus was badly damaged, with its windows blown out, and rescuers had to use blow torches to pry wounded from the wreckage.
"What is clear is that it was a very big bomb," Jerusalem fire chief Amnon Amir said...
The bombing threatened to restart the cycle of attacks and retaliation that could derail a U.S.-backed "road map" peace plan to Palestinian statehood.
Over the weekend, Israel and the Palestinians had reached agreement on the handover of four West Bank towns to Palestinian control. That deal was likely to be put on hold...
Every time there seems to be some progress, this happens... Makes me
think somebody really doesn't want peace...
Baghdad Bomb Blast
Folks have heard
by now of the truck bomb attack
at UN headquarters in Baghdad. Glenn "wonder[s] if there's a third force at work here" — I think he's being rhetorical...
It's possible that this was the work of Saddamite Ba'athist loyalists, as implied by the reporting on the temporal proximity to Taha Yassin Ramadan's taking into custody. But a couple of hours doesn't seem enough time to put this together. And a car bombing would be a change in tactic.
It's also possibly the work of Iranian supported terrorists working out of Syria, as suggested by Mr. Bremer. I think this more likely, but I still don't think it the correct answer — the targeting isn't right. Hitting the Jordanian embassy and using a car bomb à la
the attack on US Marines in '83 makes sense if the actors are of the type pursuing the Palestinian cause. But hitting the UN is too much like mining your own mess hall.
Al Qaeda is my pick — car/truck/boat bombs are the prefered choice from their bag of tricks i.e.
Khobar Towers, first WTC bombing, East Africa embassies, USS Cole, etc. And going after the UN humanitarian agencies makes perfect sense — it's not just an assault on Western "hegemony," but also is meant to turn Muslims off of dependance on Western magnanimity, and cause a turning back to Islam.
That's what I'm
Monday, August 18, 2003
How Big is The Blogosphere
Pretty darned big, and growing. And it seems that a couple bloggers who recently shined very brightly have contributed to the birth of another
I wanted to drop you a line and thank you both for the nudge.
I have written an e-mail political newsletter since early 1997, starting well before I had heard of a web log. After the bloggers appeared, I read around and loved the notion. (It is similar to what I have done, but more immediate and more personal. I publish thrice weekly, unless something comes up to warrant more.)
So, I loved the notion but was almost frightened to start a blog. I saw the two of you on C-SPAN's Washington Journal this (Friday) morning: I liked you, liked the idea, and visited blogspot.com.
Great job this AM. I liked your comportment, articulation, and candor. And if you ever decide to do an infomercial, feel free to use this letter as a testimonial, followed, of course, by over-eager audience applause. -g- Thanks again.
I asked Mark to forward me the url once the blog got up & running, and he did[easy, wasn't it, Mark...] Mark A. Kilmer's Political Annotation
has been covering the the California recall, incredulity in the Arab world, Rovian politiking, the struggle between State & Defense — I get the sense that Mark cares not much for Mr. Gingrich — and other interesting little orts since 8/15/03 12:49 PM
He also publishes The Rightsided Newsletter
thrice weekly since 1997... I'm sure I won't agree with everything he writes, but, hey, anybody who's been "writing about politics since the 3rd grade"
gets a plug from me just for the effort...
Sunday, August 17, 2003
On Reflection: The USA PATRIOT ACT, Health Care, and Education...
You know, Will, I should've told Brian Lamb that what I decide to write on a particular day oft has nothing to do with what I've read in that day's papers. Sometimes I might address an interesting [to me, anyway] question, and sometimes I've simply nothing to say... Today is of the former type...
On the Act,
I reiterate what I said then — I think it was in part unnecessary as a seeking after authority that the Executive already had in the context of National Security, and in other parts so controversial that I don't see any administration making much use of the provisions.
One thing that the Act didn't do, and which the Court has consistently held is something only the Legislature may do, is suspend habeas corpus
. You'd think that the government would want authority to hold indefinitely sans
judicial review alien persons suspected of terrorism. But Congress went the other way — the Act specifically allows judicial review, especially by habeas corpus
, on the merits of the AG's determinations and criminal & removal proceedings of aliens.
Now I come to Jose Padilla, who isn't an alien, and the issue seems to me the same as Chief Justice Taney — he of Dred Scott infamy — sitting as Circuit Justice in Baltimore addressed in Ex parte Merryman
. Judge Mukasey was correct to reject the government's assertion re designating a person "enemy combatant" and detaining indefinitely without judicial review. But Congress could've decided to use USA PATRIOT to provide for the supension of habeas corpus
in dealing with folk like Padilla — why not?
There's an authority that the administration logically should've asked for in a "war", instead of the laundry list of stuff that's arguably either redundant or not very useful
The easy answer to the emailer's friend is: You're simply wrong that our system "never works". Followed up with argument on how good our system is.
I think that answer too easy, though.
There is no question that our health care system is imperfect and can stand some improvement, My biggest concern is how to get universal access to quality care. Two extremes — a single payer nationalized system, or mandated pruchase of insurance by indivduals akin mandated auto insurance [there is another extreme, but it doesn't lead to universal coverage]. I don't particularly care for either of those two positions.
If this "foundation hospitals" idea
works, though, then I'm back to my old preference for something like
nationalized medicine for those who can't afford private insurance. Our current system of providing medical care to the poor & seniors is under too much stress from competing government bureaucratic forces & market pressures...
Again, the "easy answer" referenced above. But, again, the system is
broken. If we're worried 'bout giving students a fighting chance at college admission, the college admissions process is much too late a place to look for a fix. I've ever been an advocate of intervening at the earliest moment — my employer speaks much better to the issue
than I can... Start early & start strong.