by publius
Like Hilzoy and Josh Marshall, I think it’s important to address the “so what?” question in the ever-expanding U.S. Attorney scandal. And while I heartily endorse their excellent posts, I’d like to take a step back and put the scandal into an even broader context than they do. In particular, I think the scandal is an indictment of far more than the Bush administration alone, but instead extends to large chunks of modern conservative ideology as well. In this sense, limiting the critique to DOJ or Rove or even to the “rule of law” misses the forest for the trees.
If my critique of the Bush administration could be expressed in a single sentence, it would be this — they ignore and attack restraints on their power. This is the foundational conceptual thread that binds together so many of the scandals and controversies we’ve seen over the past few years. International law constraining your actions? Ignore it. War crimes statute limiting your interrogation methods? Ignore it (then delete it). Don’t like part of a congressionally-enacted statute? Issue a signing statement and ignore it. Pesky FISA cramping your style? Declare it unconstitutional. Geneva Convention got you down? Call it quaint. Is your habeas flaring up again? Delete it. Having problems with a special prosecutor? Lie to him. Are certain Democrats political threats? Prosecute them, or suppress their political base through fraud investigations or through not enforcing the Voting Rights Act. And if U.S. Attorneys refuse to go along? Fire them.
I could go on, but you get the point. And many similar critiques could be leveled against the Republican Party more generally on everything from Bush v. Gore, to the Texas redistricting, to the Medicare Rx bill vote, to the New Hampshire phone-jamming scandal, to the nuclear option, etc.
Note that these problems go beyond ignoring the rule of law. The rule of law is one type of restraint, but it’s not the only one. Deleting habeas, for instance, isn’t really ignoring the rule of law (like, say, the NSA scandal), it’s changing the law to maximize executive power. Again, the common theme here is ignoring or attacking that which prevents you from doing what you want to do. It’s almost like watching small children – they see something they want, and they try to get it without worrying about legal or procedural constraints.
Ok, fine you say — but so what? Why should we care? It’s not obvious, after all, that we should. Maybe ignoring the law is a net positive (from a utility perspective) in our bold new post-9/11 world.
That sort of thinking illustrates why it’s important to view these scandals from a consequentialist perspective. It’s not enough to say that Bush undermines and ignores restraints in some abstract, procedural sense. The public needs to better understand that ignoring these restraints causes real, concrete harm to both them and our nation.
Josh Marshall starts down this path by arguing that screwing with the electoral process is screwing with the foundation of civil society. I agree with that, but I want to take an even broader step back.
One benefit of coming of political age in the Dubya era is that I am now firmly convinced that man is, sadly, bad. Like many before me, I danced with Rousseau in college, but the Burkes, Madisons, and Tolkiens of the world have the better of the debate.
It is inherent in the very nature of man to abuse power. Even if the progressive netroots became magically institutionalized and assumed control of all political branches tomorrow, they too would eventually abuse power if it went unchecked. Thus, don’t assume that my critiques are directed solely at Republicans – the critiques simply recognize our shared universal weaknesses. It’s why Gandalf wouldn’t pick up the ring when it sat on the floor in Bilbo Baggins’ house — he knew that the ring of power would ultimately bend him to its will.
That’s why ex ante restraint (e.g., law) is really the key to a functioning civil society. It’s a lesson as old as Ulysses — to enjoy the Sirens, he first had to tie himself to the mast. Like Ulysses, we need to understand that we are congenitally incapable of policing our actions in the heat of the moment. Because passions and self-interest (like alcohol) cloud our vision and judgment when we’re actually in the moment, we need to follow rules and laws that were adopted ex ante, when (presumably) everyone was thinking more clearly about the consequences. For instance, saying “I’ll only have 2 beers tonight” is a more effective restraint than saying “I’ll stop drinking when I get too drunk.” I’ve tried both (well, not really, but I aspire to try Restraint #1 one day).
Here’s the point — the reason we have these restraints is to prevent abuse of power. If we ignore them, if we allow people (e.g., executive officials) to decide on the fly what they’re allowed to do, these people will inevitably abuse their power. This is the heart of why respecting restraints is more than an abstract concern — it’s necessary to prevent harmful consequences.
Don’t take my word for it – just look at the Bush administration. Name one area – one – in which they have exercised their (awesome) post-9/11 powers with appropriate restraint. I suspect you can’t. But there are tons of counter-examples. Look at the NSA program. Look at the Patriot Act and the FBI national security letters. Look at our detention policy. Look at our foreign military policy. Look at the occupation of Iraq. Look at the power given to replace U.S. Attorneys.
Again and again, in every single one of these areas, the administration abused the power entrusted to it. To be sure, some of these acts were initially motivated by good intentions (like Gandalf’s initial motivation to pick up the ring). But eventually, the ring of power wins.
These temptations, however, are not unique to Republicans. Humans – all humans, including Democrats – are predisposed to abuse the power conferred upon them. That’s why we have a Constitution of checks and balances, and that’s why we have laws.
The uniquely Republican problem here is that (Robert Bork – note the irony) Republicans have become politically supportive of efforts to ignore or remove these restraints. In other words, Republicans have elevated ignoring these restraints into their party platform. Straying about as far as one could possibly stray from their intellectual father, Edmund Burke, it is by and large the Republican Party (and outlets like the National Review) that have become the advocates for unchecked executive power. It is Republicans who stripped the Great Writ. It is Republicans who clamored for eliminating the filibuster. It is Republicans who supported narrowing (or ignoring) the Geneva Convention. It is Republicans who allowed the executive branch to do pretty much whatever it wants so long as it cites the words “war on terror” prior to doing it.
The Democrats may have had their problems, but they’re looking pretty damn good to me these days. They’re the ones trying to put habeas back in. They’re the ones trying to impose some limits on an administration that has proven many times over that it cannot be trusted with unfettered control over military affairs.
But anyway, that’s the point here. The U.S. Attorney scandal is an entirely predictable manifestation of this ancient temptation (recently incorporated into the GOP party platform). The provision was added, and it was (predictably) promptly abused. More to the point, it was abused to further the even worse action of screwing with the political process.
The way to prevent these things from happening again is to (1) repeal the provision; and (2) punish those who fired attorneys to either stop an investigation or to punish them from not bringing a frivolous prosecution. We can’t wait for angels – we just need to do what we can to make people from any party internalize the costs of abusing power. And we can only do that by standing firm on the legal restraints that make our system work.
This is a great post.
I’ll offer the short form. Here’s the line in the sand:
When the President does it, that means that it’s not illegal.
The quote is from Richard M. Nixon in an interview with David Frost, with reference to the Huston plan. If you’re not familiar with the Huston plan, it’s worth looking up.
The spiritual and political heirs of Nixon, that twisted man, are with us to this day. It’s time to root them out.
You’re on one side or the other. There’s no middle ground.
Sebastian, if you’re still trying to parse the difference between Bush and Clinton, there’s your razor.
Thanks –
Y’know, I’ve known some serious drinkers in my time, but never one who described alcohol as their self-interest…
Great post.
One disagreement (which doesn’t affect your larger point, I think): I don’t think you need to say that “man is, sadly, bad, or that “we are congenitally incapable of policing our actions in the heat of the moment.” All you really need to make your larger point is the claim that we have enough of a tendency to behave badly, abuse power, etc., that it’s deeply unwise to rely entirely on people voluntarily doing the right thing. (Especially since ‘the heat of the moment’ can prevent us from so much as identifying the right thing correctly.)
I think it would be nuts to rely so heavily on our own ability to police our actions that we dispensed with the actual police. But I think it’s important not to say that we’re incapable of policing our own actions. That lets those who don’t do the right thing off the hook, and probably also gets in the way of acknowledging the extent to which laws not only are necessary to a decent society, but rely on our decency in return. (Or so I’ve always thought: if the only thing keeping us in check was fear of arrest, if no one managed to police their conduct on their own, then I think we would be ungovernable, except perhaps by dictators and thugs.)
Still, I’m in complete agreement with everything else. I hadn’t thought of it that way, but it makes a lot of sense.
Now this is what original construction should be.
I’ll agree with you about every particular problem you have identified, but I won’t agree with you at all that it is a Republican problem (yes I know you are surprised). This particular manifestation of it is clearly a Republican problem, but that is only this particular manifestation. The progressive anologue is the destruction wrought on the role of the judiciary vis-a-vis the Constitution. The Constitution has been transformed from an actual guiding document into an excuse for judical law-creation–so long as progressive thought controls in the judiciary–otherwise we threaten court-packing.
The abandonment of discernable and even mildly predictable jurisprudential rules is exactly the kind of thing you are talking about when you say (correctly) about the Bush administration that “they ignore and attack restraints on their power”. Liberal court heros like Brennan saw restraints on their power to get what they want out of the Constitution and ignored them while using bankrupt intellectual games to corrode the traditional limits. Their error was in thinking that the attack on judicial limits and the freedom from the text of the Constitution could only work in their favor–instead of being a tool that once set free could work against their desires.
It is the same mistake that Bush supporters make.
As for Democrats and checks on their power, see my next post.
I’ll agree with you about every particular problem you have identified, but I won’t agree with you at all that it is a Republican problem (yes I know you are surprised). This particular manifestation of it is clearly a Republican problem, but that is only this particular manifestation.
Agreed. Think of it like an economic problem — free enterprise with only two sellers. Monopoly is like monarchy, they can do anything they want up to the point people are ready for open armed revolt.
Duopoly isn’t that much better. As long as the only thing Democrats need to do to win is be better than utterly-corrupt Republicans….
If all that utterly-corrupt Republicans need to do to beat Democrats who’re almost as bad is to cheat….
Election reform is vital. We desperately need to arrange the elections so that third parties have a decent chance. Something like IRV. You vote for your first, second, third, and fourth choices. If your first choice comes in last then your vote counts for your second choice. If the second choice comes in last then your vote counts for the third choice. So you can vote for a third party — and a fourth party — and your vote still counts.
If even 10% of the seats in Congress were held by libertarians we’d be in a completely different place. It wouldn’t be Democrats expanding government while Republicans complain and then Republicans expanding government while Democrats complain. The libertarians could join whichever side is losing at the moment to push back against abuse.
Sebastian, from what you’ve said, you ought to be a libertarian. You don’t belong in the GOP. The problem is that with only two choices you have no adequate choice. It’s like — it’s like being stuck in eastern europe during WWII. Do you support the germans or do you support the russians? And as a german supporter you’re stuck arguing that the russians are almost as bad.
That’s why you’ve been sounding so crazy! It’s like, you’ve been saying “We have to look at the long-term problem” while everybody else is saying “We have to beat the germans, that’s the first priority”.
The long-term problem we have is that the GOP is no longer even an adequate opposition party, and even if they were, it isn’t enough to have one minority opposition party.
The GOP has been losing support fast, and the democrats haven’t been gaining what republicans lose. A whole lot of people who wanted the GOP to be the party of small government are lost to the GOP and they don’t see democrats helping them either. It’s like being a libertarian in eastern europe in 1943….
I’ve been supporting democrats mostly because the alternative is so bad. The Democratic Party doesn’t seem to stand for anything any more, and many of the details of what it used to stand for — labor unions etc — don’t mean much to me. The GOP no longer stands for anything but raw power, like the Party in the novel 1984. Support one of these as your only way to oppose the other, and where does it get you?
How can we push election reform past these corrupt agents? I want you to vote libertarian and not throw your vote away. I want Libertarian candidates to win in at least 30% of Republican strongholds. And I want a fourth party to make inroads on the Democrats. Probably Greens, I’ve met Greens I’d vote for.
Imagine if Congress was:
35% democrat
30% libertarian
20% republican
15% green
Wouldn’t we be better off?
The systemic problem is duopoly. Vote for the second-worst candidate and the government keeps ratcheting down worse and worse. It doesn’t work to argue that the problem is systemic and that temporarily demolishing the GOP isn’t enough.
It’s necessary to actually improve the systemic problem.
J Thomas: We desperately need to arrange the elections so that third parties have a decent chance.
Actually, you also need to arrange the elections so that they’re honest and the representative the majority of voters selected actually gets to take up the position. The concept of elections where the results are close, no recount is permitted, large numbers of votes aren’t counted at all, and your ability to vote and have your vote counted depends on where you live – it all adds up to something very like the way elections used to be in the 18th century in the UK. In the current US system, the politicians currently in power get to run the election that may unseat them. No wonder incumbents tend to win!
I agree that IRV would be a better system than first-past-the-post – though there are other systems of voting reform that could be examined. But first and foremost, the US needs to have honest elections in which a person can vote and have their vote counted.
Jesurgislac, yes, a system where incumbents get to falsify the vote is beyond travesty.
But a fair system where you can only choose the second-worst candidate is not improvement enough. We need both.
IRC or any of its close relatives would be fine. If you have a good alternative that’s significantly different I’d like a link. If it comes time to choose among IRC or the various Condorcets etc, we could perhaps let voters rank their choices and then apply all the methods, and without excessive bad luck they’ll probably agree. I like IRV because it’s easy to explain, but any of the similar choices would be fine.
I would like to see something like IRV for Democratic Party primaries etc. By all accounts it results in less acrimony, and that would be a good thing for primaries — if the primary winner got 89% of primary votes while the first runner-up got 85% and so on, then they can all shake hands and get to work campaigning for the big election.
If you have a good alternative that’s significantly different I’d like a link.
Well, in the UK, while national elections are first past the post, in Wales and Scotland voters in their elections for Assembly/Parliament get two votes.
One vote is for the representative of their constituency, and this is counted first-past-the-post. The other vote is for a party: each party can submit a list of candidates for their region. (Wales and Scotland are divided up into large regions that comprise multiple constituencies.) Each region sends (8, I think) party representatives to the assembly/parliament. If the Conservatives (for example) get 50% of the list votes for a region, the first four candidates on the Conservative list for that region get to become representatives. If the Green party gets 13% of the vote in a region, the first candidate on the Green list gets to become a representative from that region. So in Scotland and Wales, people can get to vote both for an individual they like who they feel represents their constituency well, and for a party that they want to have power in their assembly. This works so well to put minority party representatives in, that it’s no wonder the UK government hasn’t adopted it for Westminster (cynically)….
Similar in Germany. 1 vote for party (all votes are pooled and seats distributed according to percentage), one for candidate (local winner takes all) with a few special modifications. Parties with less than 5% of total votes are not considered when the seats are distributed but if they win three seats through candidates they are given some extra seats (this helps parties that have mainly local support or don’t run in all states).
In case of a strong gap between party and candidate success a complicated (nonpartisan) system of balance is applied to even it out to a degree.
Neither head of state (president) nor executive (chancellor) are elected directly. The chancellor is elected by (federal)parliament and can only be ousted by electing a new one (constructive vote of no confidence). The president is elected by an assembly consisting of the members of the federal parliament and an equal number sent by the state parliaments.
There are usually 3-5 parties in federal parliament (2 big, 1-3 smaller) and most of the time a 2-party coalition is in power.
It’s far from perfect but usually works within tolerable limits. If transferred to the US, it probably would not work.
The system was designed to spread the power without allowing splinter groups to sabotage it from within (as in the Weimar republic).
Wouldn’t we be better off?
It’s not immediately evident to me that we would be better off. We’d have a Congress that would be substantially weaker vis-a-vis the Executive.
Liberal court heros like Brennan saw restraints on their power to get what they want out of the Constitution and ignored them while using bankrupt intellectual games to corrode the traditional limits. Their error was in thinking that the attack on judicial limits and the freedom from the text of the Constitution could only work in their favor–instead of being a tool that once set free could work against their desires.
Says you. Some people believe, in good faith, in the vision of individual liberty against undue intrusions of the state, deriving from the 14th amendment, as set forth in cases like Loving. Say we’re wrong all you want. Call us hypocrites, though, and expect to be asked to show some proof. Here, it’s proof that Brennan did not believe in the opinions he wrote.
The only bankrupt intellectual game I’m seeing is the continued insistence that the other side cannot possibly believe as it says it does, because, well, it just can’t.
Here’s an easy target for you: I think Loving was correctly decided, and I think that it’s logic conclusively requires that state restrictions on the marriage of people of the same sex be stricken. I know you don’t agree with me about the second point but I also know that you have no business at all saying that I don’t/can’t believe in the second point.
SH wrote: The progressive anologue is the destruction wrought on the role of the judiciary vis-a-vis the Constitution.
The Fifth Amendment states: No person shall … be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
The Bill of Rights is deliberately anti-majoritarian. The Constitution was written by and voted on by a tiny fraction of what would be the modern electorate. Anybody see a problem in relying on original intent in determining the scope of review of acts of the majority? So what is the appropriate lens to determine what the word “liberty” means? As Scalia himself has admitted, there is none. Relying on the accumulated wisdom of prior judges (eg, precedent) is about a good a way as any.
The existence of the BOR and the concept of judicial review has always meant that we citizens are subject to the tyranny of the Rule of 5. But it’s also worth noting that the Court, recognizing its anti-majoritarian power, continues to establish limits on those actions of the majority that it will seriously review.
not everything is about Roe v Wade (which didn’t arise in a vacuum — even Griswold cited precedent). Democratic corruption used to be worse than Republican corrupton (Rostenkowski). But that was legislative corruption. This Nixonian assertion of executive power, not subject to review by the courts or the legislature, really is a serious challenge to our notions about the rule of law.
“Wouldn’t we be better off?”
It’s not immediately evident to me that we would be better off. We’d have a Congress that would be substantially weaker vis-a-vis the Executive.
You could be right. With a collection of Libertarians always ready to back bills that limit government power over individuals, and a bunch of Greens always ready to back bills that limit corporate power over government, Congress might not be that weak relative to the Executive. I can imagine arguments either way. I think we should try it and find out.
But I’d like to see it done in primaries first. I think a party which did that would get an advantage, and if I’m wrong about that it would give me a chance to rethink.
“The Bill of Rights is deliberately anti-majoritarian. The Constitution was written by and voted on by a tiny fraction of what would be the modern electorate. Anybody see a problem in relying on original intent in determining the scope of review of acts of the majority?”
The Bill of Rights isn’t deliberately anti-majoritarian on everything. It is anti-majoritarian on some things. It isn’t as if there is an anti-majoritarian clause where the Constitution protects the minority from majority opinion on everything.
The rest of your argument is an argument against bothering with the written Constitution as it exists at all. Which is fine to argue, we just shouldn’t pretend it is a Constitutional argument at that point. It is an anti-Constitutional argument. But I do think you get at something which is common in liberal circles–the Constitution just isn’t enough in its current form. My response to that is–amend it or have a Constitutional Convention and chuck the whole thing.
With an alleged authorization for expansive judicial decrees in virtually every area, I don’t see why the founders bothered having an amendment process. It has long since gone past the point where you can use penumbras to justify anything. The judicial review power was traditionally checked not by overt limits, but by extreme deference to the legislature in most issues. That is exactly the kind of thing that has been subject to “they ignore and attack restraints on their power.” They didn’t like being limited to striking down laws that actually conflicted with the constitution, or actually conflicted with the basic historical rights protected in the United States, so they made them up. They didn’t like being limited by things like the takings clause so they ignored it. Modern Constitutional interpretation isn’t about looking anywhere near the Constitution on things–it is about guessing what will please 5 members of the sitting Supreme Court. 30 years of playing that game have left liberals with a distinct lack of strong arguments against Bush’s adoption of their own techniques. He uses it to pervert the Constitution in ways they don’t like, but he is using the tools that they gave him. Why shouldn’t habeas fall to emmanations of the amorphous executive power? According to Marshall the death penalty is always “cruel and unusual punishment” even though the Constitution specifically lays out the procedure for captial crimes. Why shouldn’t the specific fall to the general–in direct contradiction to both historical methods of jurisprudence where the specific always beats the general?
Why would I need to do that? Intellectuals are brilliant at fooling themselves. I’m certain Brennan never believed he was doing ‘wrong’. Rationalization is easier when you are smart, and I’m certainly not calling him an idiot. I just saying that what he did wasn’t ‘judging’. What he did wasn’t ‘interpreting the Constitution’. His actions make that very clear, however he justified it in his head. I’m not charging him with being a hypocrite, I’m saying he was wrong in his exercise of power, and that the intellectual justifications he used to rationalize that exercise of power are now being used by the side of the argument he doesn’t like.
In particular, I think the scandal is an indictment of far more than the Bush administration alone, but instead extends to large chunks of modern conservative ideology as well.
This isn’t even remotely justified by anything in the rest of your post. You’ve pointed out that specific self-identified conservatives have gone overboard in certain areas. True enough — I actually agree with most of what you’ve said — but this is precisely becuase I believe in “conservative ideology” about the importance of limited government.
So — how does unlimited executive power in any way disprove the traditional “conservative ideology” of limited government? Square that circle, if you can.
the intellectual justifications [Justice Brennan] used to rationalize that exercise of power are now being used by the side of the argument he doesn’t like
This I’m not seeing. What exactly are you talking about? If it’s ‘the intentional invention of constitutional principles out of whole cloth’ than we’ll have to agree to disagree on whether that is even remotely accurate as a description of the Warren court’s jurisprudence.
Look, I infer from your various writings on this subject that you don’t approve of the reasoning behind Gibbons v. Ogden or M’Cullough v. Maryland. That’s fine, I guess, but you shouldn’t then say that your problem is with liberals, Justice Brennan, or ‘the last 30 years.’
Y’know, I’ve known some serious drinkers in my time, but never one who described alcohol as their self-interest…
Posted by: Anarch | March 28, 2007 at 01:50 AM
“Every man should believe in something. I believe I’ll have a drink.”
W.C. Fields
For people who don’t know, the right that Brennan is said to have rationalized into existence is the right to privacy. The relevant quote is, “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted government intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” Rather libertarian, actually. As I’ve remarked before, it’s difficult for
me to see how one can reasonably devise ethics or laws based on individual rights that does not respect a person’s control over their own body–if that does not exist, what is left?
And, really, Sebastian, there is no reason I am aware of the believe that Brennan was a pious hypocrite. This is unlike the W. Bush administration, whose contempt for law is clear.
John Doe. Note the difference between the words “modern” and “traditional.”
I believe in “conservative ideology” about the importance of limited government.
So, you must utterly repudiate the GOP as it currently exists. It is your worst enemy.
And the Democratic Party is not much better. It makes sense to attack the GOP harder than the Democrats at the moment because the GOP is still in control of the administration and is doing horrible things, but getting them out of there won’t help nearly enough.
You *need* a viable Libertarian Party. You’ll never get control of the GOP. They’ll use you like they use fundamentalist christians. Trusting them is like being in romania in 1942 and trusting the germans to protect you from the russians.
Stop trying to protect the GOP. They’re your enemy. Work toward viable Libertarian party. The GOP deserves to be a third party, or a fourth party, or maybe a fifth party. Maybe the democrats do too.
I’m with CharleyCarp: I would like to see an explanation of the charge of hypocrisy against Brennan. To my mind, “he’s smart enough to convince himself” doesn’t really cut it — that’s a perfectly good thing to say given some reason to think that no one could possibly think what Brennan thought unless she was kidding herself, but without that, it seems to me on a par with “Oh, Sebastian, you can’t really believe that; you must be secretly motivated by a desire to defend Bush (or whatever.) I protest that line of thought when it’s deployed against Seb, and I don’t really care for it deployed against Brennan either — again, assuming the absence of the supporting explanation of why no one who wasn’t self-decieved could possibly believe X.
Plus, since CharleyCarp has offered himself up as an easy target, why not use him?
How did hypocrisy get into the mix here? It’s certainly not necessary.
Seems to me that Sebastian is setting up two parallel propositions:
1. Bush has sought to expand executive power at the expense of other branches of government.
2. Brennan (and Douglas, BTW) sought to expand judicial power at the expense of other branches of government.
Who cares whether any hypocrisy is involved? Aggrandizement of power is bad only if it’s hypocritical as well?
I’m going to quote my old weblog on some of these things:
Note 1 requires further clarification. Technically there are some small areas of federal common law, but when people invoke “common law” practices in Constitutional contexts they are almost never talking about those areas.
In any case, modern liberal jurisprudence has broken this system by reaching beyond the Constitution to get its favored results. It has used a concerted effort to “ignore and attack restraints on their power”
An example of that is indeed Brennan and Marshall on the death penalty (I’m intentionally avoiding Roe v. Wade). Katherine summed up the argument well in a previous comment two years ago. I’m not picking on her–I think her comment fairly represents the typical liberal train of thought on the matter when it is pointed out that it is surprising to find that the Constitution outlaws the death penalty when the Fifth amendment talks about protections when a citizen is charged with a capital crime:
The problem here is that the same style of logic is exactly what we all hate about the Gonzales.
There is no express grant of a Habeas right, and just because the Constitution provides a method of suspending habeas corpus in certain circumstances, doesn’t implicitly show that there is such a right. The logic is ridiculous under any normal textual understanding. But it is NOT ridiculous once you have set up an intellectual framework where the broad and general powers (in this case Presidential powers) get to over-rule specific narrow portions of the Constitution.
The intellectual arguments which defended Marshall and Brennan’s ridiculous rulings on the death penalty are now being used to destroy the habeas right. All of you here are absolutely correct that the Gonzales position is intellectually bankrupt. What you don’t seem to realize is that it is bankrupt in precisely the same way as much of modern liberal jurisprudence.
Seb — if my previous comment came off as snippy, it wasn’t meant to. Just bad thought-to-actual-written-words interface.
Anyway, Sebastian, aren’t you fighting last decade’s battles? If all libertarians joined the Democratic party tomorrow, it would not shift the judiciary back to a stance of expanding Constitutional protections beyond the text anytime soon, and probably never. If anything, the problem with the current judiciary is the opposite: it refuses to recognize protections grammatically or very strongly implied in the text — e.g., by making the warrant requirement nearly a dead letter, by finding ways to ignore habeas suspension, etc. I would think that a libertarian would find these tendencies, which are driven entirely by Republican appointees, at least as disturbing as Brennan’s expansive readings.
But since the judiciary is much slower to shift than the executive, why are you focusing so much, this decade, on securing the judiciary? The Warren Court methodology is already gone, the substantive Warrent Court innovations have either been overturned or whittled down, and are mostly pro-liberty in their effect anyway (e.g., Roe, Brown). And the judiciary is the weakest branch — it can only deal with cases that come to it. Isn’t the threat of executive tyranny much more pressing and grave? Why are we even talking about the judiciary?
I know your original point was that we liberals have only ourselves to blame if the executive ignores the Constiution’s text. Given that overreach of executive authority began at least with the Louisiana Purchase, and that Congress passed the Alien & Sedition Act even earlier, I find the idea that authoritarians in the other two branches needed liberal judicial activism to inspire them dubious, to say the least. But even if it were true, it’s a pedantic bit of snark that does not help in the least to deal with the problem we now confront.
In short, I don’t really care if Bush got his ideas from watching Brennan (a bizarre notion on its face), from reading about Lincoln (ditto), or from kegger-party chest-pounding (my personal guess). I care about stopping him.
I don’t see the connection between noting that the 5th Amendment does not explicitly prohibit the death penalty and a claim that the same reasoning can conclude that the Constitution does not explicitly grant habeus corpus rights.
The grant of habeas is a default position. Habeas has been the foundation of western jurisprudence since the 14th Century. I doubt it occurred to the Founders that they had to explicitly “grant” habeas any more than they would have to explicitly “grant” that property belongs to whoever holds the title deed.
The death penalty is not a default position; it is not assumed that every crime carries the death penalty, nor that every conviction will demand the death penalty. The dealth penalty is a specific penalty, prescribed under specific conditions, and the conditions must therefore be described.
In the absence of a specific, explicit prescription for the death penalty, it must be assumed that the death penalty is not levied because the death penalty is not the default.
But habeas is the default. In absence of a specific grant, in other words, one cannot assume the absence of habeas.
I’m curious: can anyone point to a significant branch — that is, significant both in numbers and political clout — of modern conservatism which was genuinely concerned with smaller government as opposed to reprioritizing its expenditures? I mean, I’m not even convinced that Grover Norquist et al. are genuinely interested in shrinking the size of the government (“drown it in a bathtub notwithstanding”) since he and his ilk are also cheerleading an expansion of the military, the police, the prisons, etc.
IOW: Yes, I’m aware it’s a rhetorical stance; is it actually a political one as well?
Seb-
This, I think, is well said:
If interpretations are too narrow, the Constitution ends up not applying to real life. For instance if you interpret ‘search’ to protect only against those types of searches which were known to the founders, you allow all sorts of invasive police techniques to occur wholly without Constitutional protections.
If interpretations are too broad, the Constitutional boundaries become extenstions of the whims of the judges. They expand and contract based wholly on the poltical (as opposed to judicial) pronouncements of the judges.
The problem with your application of this very reasonable statement is that you’re assuming that the judicial opinions you disagree with are self-evidently ‘too broad’, and that anyone who doesn’t disagree with the same opinions supports lawmaking based on the whim of a judge. I think pretty much everyone arguing in good faith would buy into the statement I quoted, we just disagree with you factually about where the ‘too narrow/too broad’ line is drawn in each case.
“The death penalty is not a default position; it is not assumed that every crime carries the death penalty, nor that every conviction will demand the death penalty. The dealth penalty is a specific penalty, prescribed under specific conditions, and the conditions must therefore be described.”
And they were in fact described. Which is why it is illegitimate to say that the 8th amendment instructs the Supreme Court to throw out all death penalty cases as unconstitutional. Even allowing very broad ambiguity in language–whatever the 8th amendment means, it cannot mean that the death penalty is broadly unconstitutional.
You can’t use ambiguity in a broad section of the Constitution to overrule a specific section of the Constitution. Even if you allow for changing meanings of the broad and allegedly ambiguous section, it can’t legitimately change enough to overrule other specific sections of the Constitution.
Gonzales attempts to use a broad interpretation of the sort-of ambiguous Constitutional grant of Presidential powers to overrule the very specific language oulining the process of suspension of habeas corpus. He also argues that outlining a procedure for the suspension of habeas DOES NOT imply that the Constitution really provides a habeas corpus right. That argument is an illegitmate Constitutional argument because A) the specific rules over the general in statutory construction, not vis versa, and B) of course if the procedure to suspend habeas corpus is outlined it is implied that the right to habeas corpus exists.
Gonzales is using the exact same intellectual tools that Brennan and Marshall use to argue that the death penalty is unconstitutional. They argue that the general overrules the specific in the same document and they argue that the existance of protections and a procedure regarding the death penalty does not demonstrate that the that the death penalty is implicitly constitutional.
I have a specific textual argument in the Constitution backing up my interpretation of the Fifth and Eighth Amendment.
The Fifth Amendment implies that they didn’t think the death penalty was NECESSARILY unconstitutional–probably the opposite– but if you’re not an originalist their expected application of the Eighth Amendment is not binding. And you do not read a rights-granting provision to REQUIRE a rights-denying interpretation of another constitutional provision, because of the Ninth Amendment.
Could you explain to me the comparable textual justification for Gonzales’ position? There’s no clause saying that you can’t construe the enumeration of certain rights to imply the existence of other rights.
1. Judges make mistakes. Shall we start parsing the record for all the dumb things written by “conservative” justices?
2. Much of what is written about the liberal movement at the Sup Ct in stopping the death penalty is mischaracterization. While there is plenty of language to suggest that certain justices believed that the death penalty was per se unconstitutional, there is plenty more language that states that it was the manner in which the states applied the death penalty that the justices felt violated principles of the 5th and 14th amendment.
Given the statistical evidence on how the death penalty is still applied today, they may have had a point.
3. The notion that Brennan “knew” that his method of constitutional interpretation was “illegitimate” but did it anyway is nowhere supported in any writings that I’m aware of.
frex, Brennan himself said that perhaps his single most important decision ever was “one person, one vote”. Is that concept a reasonable application of the equal protection clause? How can you tell? What tools do you bring to analyze the question?
Unfortunately the statement that habeas corpus is default and the death penalty is not is wrong historically (although I wish it were true). Historically habeas corpus is a rather new idea while the death penalty is at least as old as written law and probably as old as the idea of fixed law (i.e. a set of rules that is considered valid for a group of humans).
My personal opinion (correct me, if they actually did discuss it)is that the founders took the death penalty as natural part of law and had about as much reason to talk about abolishing it as talking about regulations for nuclear power plants (i.e. neither would have occurred to them).
From todays point of view the death penalty is just a detail and few would think it unthinkable to be without it (independent of considering it useful or not) while habeas corpus (or what the “commoner” understands of it) seems fundamental to our idea of justice. We should therefore neither try to project our own views on the founders and thus making them sacrosanct nor pretend that nothing changed since the constitution was written. The text is under severe strain anyway (and the repair method od amendments effectively both broken and of limited value long-term). One should at least think about dropping the idea of a “sacred text” (something the founders clearly did not intent) and either consider writing a new one (and give The People enough time [a decade or so] to examine it) or make changes easier first of all by going from “amending” to exchanging text and reserving the difficulty of change to the Bill of Rights (and shifting it up to the front instead of the appendix).
I’m curious: can anyone point to a significant branch — that is, significant both in numbers and political clout — of modern conservatism which was genuinely concerned with smaller government as opposed to reprioritizing its expenditures?
I can’t. I meet lots of republicans who want smaller government.
They are not actually represented by the GOP and as far as I can tell they never have been since 1980 at the latest. Before that my memory is fuzzy. Did Nixon work toward small government? I don’t think so. Eisenhower? Maybe, kind of. Hoover? It was a different era. Kind of. Coolidge? I think so, but I don’t really know.
Small-government conservatives have had no one to vote for, for at least the last 27 years. Except maybe Perot. Or perhaps some of the candidates who didn’t get elected, maybe they would have been good.
A great big constituency that keeps voting Republican even though the GOP never gives them anything. Because the GOP at least talks nice to them. Kind of like the black vote mostly goes Democrat without much reward, because the alternative is the former Dixiecrats’ party.
These people deserve a chance to vote Libertarian without throwing their votes away. The country would be a whole lot better off if the Libertarian party was the second party and the GOP was a third party.
The text of the Ninth Amendment, just for the record, is:
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
As far as I can see, Sebastian is using the enumeration of the right not to be deprived of life, liberty, or property without due process to narrow the right against cruel or unusual punishment.
You could see this as question-begging: assuming that the death penalty is cruel or unusual, when that’s precisely what’s at issue. I’m actually not saying that. I’m simply saying that the Fifth Amendment should not be read to narrow the Eighth Amendment. If the death penalty otherwise fails the Eighth Amendment test, you can’t use the Fifth Amendment to pass it–which is essentially what Sebastian does by saying that the Fifth Amendment by itself disproves Brennan’s and Marshall’s arguments that the death penalty is cruel and unusual.
Gonzales is arguing against an individual right that’s clearly implied by the constitutional text. The Ninth Amendment does NOT require this; it’s directly contrary to the purpose of the Ninth Amendment.
Hartmut, habeas corpus is not as old as execution but it’s 800-odd years old, and it’s in the main text of the Constitution, not an amendment. Jefferson wanted to make it impossible to suspend under any circumstances…
More to the point, habeas is required by the constitutional text; a death penalty is not. What you have are clauses that imply that they expected the 8th Amendment not to be intepreted to forbid the death penalty. But I don’t think the original expected application of the text is the same as the meaning of the text, and I don’t think it’s binding on future generations. People didn’t expect the 14th amendment to be applied to forbid anti-miscegenation laws; does that mean Loving is wrongly decided.
Brennan and Marshall have a colorable textual argument; Gonzales doesn’t.
Random question before I head out: does anyone know the origin of the word “colorable” in a legal setting? I keep seeing Katherine, von and Sebastian sitting at home with their big Crayolas trying to stay within the lines of the Constitution…
“As far as I can see, Sebastian is using the enumeration of the right not to be deprived of life, liberty, or property without due process to narrow the right against cruel or unusual punishment.”
No. I’m saying that the 5th amendment clearly implies that the ambiguity in the 8th amendment does not extend indefinitely to encompass the death penalty.
You don’t make a procedure for something if you think that it isn’t permissible. You don’t make a procedure for suspending habeas corpus unless you textually imply that there is a habeas corpus right to be suspended.
You don’t make a rule requiring certain procedures for capital crimes without textually implying that prosecuting capital crimes can be Constitutional.
You don’t make a rule requiring certain procedures for capital crimes without textually implying that prosecuting capital crimes can be Constitutional.
Sebastian, I agree — but so did the Warren/Burger Court. Furman and the other death-penalty decisions imposed considerable procedural restrictions on states’ abilities to impose the death penalty, but they simply never said that the 8th Amendment forbids execution of criminals. Yes, some of the Justices wanted to go that far, but they never got a majority. Their dicta and concurring and dissenting opinions were (literally)inconsequential.
Unlike, say, Gonzales & Yoo’s advice to the President.
J Thomas- I am a former libertarian, and almost pessimistic enough to agree with you, but hopefully we will end up better served with the Republican party as the recognized party of evil people.
Seb’s argument presumes that the Framers intended their personal understanding of what is “cruel and unusual” to be fixed for all time. This is not a self-evident proposition.
I could equally well conclude that whatever else the Eighth Amendment was intended to mean, it was intended to mean that the definition of “cruel and unusual” should not be determined simply by majoritarian processes – else, why have a constitutional amendment at all?
Frank, I’m fine with having the GOP be the recognised party of evil people, but I also want it to be a third party or fourth party.
What happens when the Democrats are running the government and doing bad things? Can we side with the Republicans to stop it? No, more likely the Republicans will be preparing for something like 9/11 to bring them back in power, and then when they get in power they’ll do stuff that’s even worse and say “See, the Democrats did it too!”.
We can’t depend on Republicans to oppose any kind of evil from Democrats. The most we can expect from them is to publicise Democrats in scandals. We need a second party, and they aren’t it.
Small-government conservatives are the biggest disenfranchised group I see. They deserve to have a political party that represents them.
“Seb’s argument presumes that the Framers intended their personal understanding of what is “cruel and unusual” to be fixed for all time. This is not a self-evident proposition.”
I’m not saying that at all. I’m saying that the ambiguity in the phrase is not infinite and that the allowable change is not 100% elastic. It is a completely normal part of statutory construction to observe that vague and/or ambiguous general principles don’t get stretched far enough to defeat specific and narrow questions in the same document.
For example, the Constitution says: “We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”
It also says: “The executive power shall be vested in a President of the United States of America. He shall hold his office during the term of four years, and, together with the Vice President, chosen for the same term, be elected, as follows:”
Now some judge may feel that it is completely obvious that insuring domestic tranquility would be better served by having fewer elections. That doesn’t mean that it could ever be legitimate interpretation to use “insuring domestic tranquility” to change the Presidential term to 6 years.
The Constitution says: “The President shall be commander in chief of the Army and Navy of the United States”
The ambiguity of “commander in chief” ought never be stretched to defeat “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.”
For me, the death penalty issue is resolved by an analysis like Steve’s. I don’t think that the precise factual contours of words like unusual, cruel, reasonable, were fixed on the day that the Bill of Rights was adopted (or imagined). Rather, like ‘necessary and proper,’ I think these are terms that have both a past and a current context. Remember, it is a constitution we are dealing with here.
It doesn’t mean that the words can mean anything 5 people says they mean — it does mean, though, that in some cases, the Founders built social context into the document. I believe this. I don’t ask you to agree with me. I do ask that you stop calling people who say they believe this liars. (Do you not understand that you are doing this?)
My Loving example, I think, illustrates another important point. i’m quite sure that in 1868, no one who wrote or who ratified the 14th amendment was thinking about abolishing gender restrictions on marriage. They did however, by the language that they used. No, the federal judiciary hasn’t recognized this yet. It will. And like Loving, when it does, plenty of people will be saying ‘well duh.’
I’m saying that the ambiguity in the phrase is not infinite and that the allowable change is not 100% elastic.
No disagreement here. It’s a big damn deal to reach a conclusion that, as we now exist, state sanctioned execution violates the Eighth Amendment. As noted above, some people have come to this, most justices haven’t. My own thinking is maybe a little more along the Blackmun line: maybe you could perfect it, if you added this that or the other safeguard, but as you look at decades of effort at doing so, you end up saying that while theoretically possible, it can’t be done in the real world.
The correct quote:
A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves. That this idea was entertained by the framers of the American constitution, is not only to be inferred from the nature of the instrument, but from the language. Why else were some of the limitations, found in the ninth section of the 1st article, introduced? It is also, in some degree, warranted by their having omitted to use any restrictive term which might prevent its receiving a fair and just interpretation. In considering this question, then, we must never forget that it is a constitution we are expounding.
Yeah, I’m closer to Blackmun than Marshall and Brennan too… I just think it’s possible to reach their conclusion in good faith.
Sorry to have been less than clear to the non-lawyers. All lawyer participants will have recognized my 3:05 as coming from CJ marshall’s 1819 opinoion in McCulloch v. Maryland — ending with the line I paraphrased in my 2:56. I went and looked up Blackmun’s dissent in Callins v. Collins, which is worth quoting at length here.
Blank Check
I’ll give the GOP credit for instilling me with a healthy respect for limiting government (albeit they’ve shown that I should focus on limitations less of the “minimum wage sucks” form than the “torture = illegal” issue). But as Publius notes, the pr…
I would call it modern Republican ideology, not modern conservative ideology, pub. This conservative–and multitudes like me–are fervent believers in checks and balances.
fair enough
This conservative–and multitudes like me–are fervent believers in checks and balances
and yet Bush was re-elected in 04 while both the House and Senate stayed R until 06. Apparently other values outweighed the need for checks and balances.
Sebastian–if the Constitution had a clause that said “the death penalty is not cruel or unusual punishment” you would be correct. What we have, though, is the Fifth Amendment, which does not say that. It can be read to imply that, but the Ninth Amendment tells us not to read it that way.
The 9th Amendment is irrelevant to the discussion. The text of it is: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
The 8th Amendment is an actually enumerated right. You don’t need to invoke the 9th amendment to get protection from “cruel and unusual punishment”.
Are you professing a belief in a separate “anti-capital punishment” right that is grounded in the 9th amendment? I’ll assume no, unless corrected.
The fifth amendment reads:
That is three mentions of the death penalty in a row. One of which is lumped in with liberty and property, and I assume you don’t believe in a 9th amendment absolute right to avoid government taking of property. So that brings us back to the 8th Amendment.
The 5th amendment and the 8th amendment were ratified simultaneously–so neither overrules the other. In standard interpretation, it is completely illegitimate to render a reading of a broad clause such that it would render useless a narrower clause. Your proposed reading of the 5th amendment is:
If your understanding of jursiprudence allows for that reading, you are in a very difficult position when you want to argue against the broad and general Presidential Power swamping habeas with this reading:
“The privilege of the writ of habeas corpus shall not be suspended, unless when [meaningless phrase]the public safety may require it.”
Or worse:
“The [meaningless phrase or otherwise not the normal meaning of the phrase]shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”
If even 10% of the seats in Congress were held by libertarians we’d be in a completely different place.
I think it would violate the Posting Rules of ObWi to describe what I think that place would be like.
SFAICT, Libertarians are no more monolithic in their beliefs than, say, Democrats. Some Libertarians are strictly anti-tax but support other governmental intrusions into private life; some support drug legalization but not legal abortion; some (grudgingly) support health and safety regulations and some don’t; and so on.
If 10% of Congress were Libertarians, they’d serve the same purpose as any other swing group: the two major parties would woo the ones whose brand of Libertarianism aligned with their position on a given issue. Libertarians might therefore be crucial to getting a particular bill passed (or keeping it from passing), but they would not themselves be drivers of legislation.
Also, while Libertarians might caucus with one or the other major party, they would never be Committee Chairs or even Ranking Members.
This isn’t exactly snark, though it sure sounds like it: Sebastian, do you interpret the “and limb” part of double jeopardy to imply that mutilation or amputation is likewise a punishment “permitted”, if that’s the word, by the 5th Amendment?
One assumes “of limb” might refer to public floggings and the like, no?
I actually always interpreted “life or limb” in the 19th century idiom sense meaning threat of death or serious injury and imagined it in the prison work-gang sense, but that is without researching it.
The Fifth Amendment contains this:
nor be deprived of life, liberty, or property, without due process of law
Unless I read this wrong, depriving someone of life involves capital punishment. So, I score one for Sebastian.
If I understand correctly, Stewart’s argument in Furman was based on the inconsistency with which capital punishment was carried out. To me, that’s arguably a Constitutional argument, based on the Fifth Amendment. Brennan’s argument was more along the lines of capital punishment being inconsistent with evolving societal norms, which is really not an argument based on the Constitutional merits. Score two for Sebastian.
Furman stood for all of four years before it was overturned by Gregg. None of the folks we’re talking about are on the court now. The raging liberals of the SCOTUS are gone. The problem we face these days is the executive.
So, the historical parallels are interesting, and I’m sure we all acknowledge that both liberals and conservatives have abused their offices over the years.
But the problem before us now is George W Bush and his administration.
I’d like to solve that problem.
Thanks
Here’s an partial link to an article about it, though it is on questia, so it is just the first page.
btw, is anyone on questia? If so, what do you think of it? I get links quite often, so I’m curious.
Just for the record, I’ve written on constitutional interpretation before, and though the dialogue with Sebastian is excellent, I would question the very concept of rule-following among his premises.
Sebastian seems to agree that power is part of the problem; he complains of Brennan’s exercise of judicial power. This is the factual basis for his normative claim, that the use of such power ought to be constrained by rules of interpretation. (Sebastian, if I am misattributing positions that you do not endorse, feel free to correct me).
Even if one were to agree that the exercise of such power is unjust (which is itself questionable), it does not follow that rules of interpretation actually can constrain interpretation in the manner presumed. I would argue that the semantic model of rule-following endorsed by such a premise was repudiated by Wittgenstein. Even realists, who comprise the majority of Wittgenstein interpreters, do not think the syllogistic model of rule-following used in positivist legal theorizing stands up to close analysis.
I will not subject anyone further in a blog comment to the details of why I believe rules do not constrain interpretation in the manner often presumed, but if anyone is interested please feel free to email me.
As for Publius’s post, Pub, I think you know we’ve had these discussions about power before. And I really do believe that power is at the heart of some of the most profound difficulties of republican (little “r”) government. Such government is, as Churchill pointed out, the worst form of government, except for all of those other forms that have been tried from time to time. Madison was acutely aware of it, and I believe that his perspective on power is just crucial. Power will be abused, but therein lies the paradox, for that is one of the chief reasons we need government to begin with.
If I argue that rules do not constrain interpretation in the manner often presumed by conservative (in the Burkean sense) models of jurisprudence, then we nonetheless need procedures or methods of reducing the worst effect of power abuses. Madison, heavily influenced by Montesquieu, saw the best answer in diffusing power across a network, to avoid the concentration of power in the hands of one nexus of government.
Republican government is marvelous, save that naked democracy runs terrible risks of tyranny of the majority. Western history alone reflects a devastating record of this phenomenon, and Madison, seeing the British Empire with its hegemonic shadow, was exquisitely aware of the problem. That’s why he viewed the judiciary as a check on the worst abuses of majoritarian power. A prime Madisonian justification of the judiciary is precisely to act as such a check.
Of course, Sebastian’s point is in part that vesting to much power in the judiciary is a means to tyranny by a judicial oligarchy. This is trivially true, as it is already assumed in the premises (that concentrations of power corrupt, or in Nietzsche’s terms, man exercises the will to power). To argue this is simply to name the initial problem.
Madison’s carefully thought out response to the problem of majoritarian tyranny includes a vision of the judiciary as a protector of minority rights. People have to decide for themselves whether they fear majoritarian tyranny more than the risks of concentrating judicial power, but I wonder if it isn’t the case that the scope of the harms inflicted on minorities by majorities exceeds by an order of magnitude that inflicted by judges. Which, again, is not to deny the dangers of concentrating power in a judiciary — this is the republican problem, or at least a major one.
BTW, I do not deny that being Jewish and understanding Jewish history lends itself to culturally powerful fears of majoritarian rule.
/end rant
Russell, you need to check your meter. No one is saying that when the Constitution was written, the people who wrote it thought it banned the death penalty, as of the date it was written. No one denies that at the time it was written, states executed prisoners. Finding these undisputed facts to be so is the same as finding water to be wet. Surely there’s no score for that.
On the Brennan question, you either think that the Eighth Amendment incorporates an evolving societal standard, or you don’t. Nothing in the text answers the question conclusively either way. I think the the interpretative framework suggested by John Marshall is sound, and that is that we look at the words and the principles, and try to figure out what kind of government we have. One that can, where the text permits, evolve with society, or one where regardless of text and society, we are stuck with past customs. To the people who think the answer must be the latter I suggest that if they want to change the meaning of the thing, from outline to holy writ, they ought to go through the amendment process.
First, though, they need to own up to the invalidation of all marriages made pursuant to Loving that would not have been permissible before. Because I don’t see how they can reconcile their interpretative framework with the result in that case.
“On the Brennan question, you either think that the Eighth Amendment incorporates an evolving societal standard, or you don’t. Nothing in the text answers the question conclusively either way.”
Even if it does, that doesn’t mean that it is legitimate (as the answer to a Constitutional Question) for the ‘evolving’ standards to invalidate other provisions of the Constitution. The flexibility of the ambiguity is not limitless.
What provision of the Constitution, what “shall” statement in the text, does a prohibition on the death penalty invalidate? Please supply the language, which explicitly says that the death penalty is constitutional.
You can’t. You have to imply it from the rights granted in other parts of the text. Which you’re not supposed to do. Rights protected in the text aren’t any less “retained by the people” than rights that aren’t.
If the Fifth Amendment is THE decisive factor that rules out an Eighth Amendment prohibition on execution, you are using the enumeration of the right to due process (and the others you cite) to disparage the right not to be subjected to cruel and unusual punishment.
I guess you’re just not capable of comprehending this argument (you don’t just seem to reject it, you sesem to just plain not understand), but if you don’t think I’m sincere….
(Of course, it is explicitly required by the text if you think the original expected application is the same as original meaning and is binding, but I don’t think so. I think that’s an indefensible theory, I’ve explained why at length. I know you disagree, but why you can’t understand the other side is behind me.
And I would really like to hear a straight answer on Loving).
As to the answer to my post above. I know that habeas corpus has a tradition going back to Magna Charta as a law and a bit longer as an idea. But it never was (and unfortunately still isn’t) universally accepted. True opposition to capital punishment on the other hand hasn’t got real traction until the 19th century (single voices against it notwithstanding). Thus “heads off” could be considered as a default that the writers of the constitution simply took for granted (It would be interesting to know, if any of them had any thoughts about a future without it). HC on the other hand became a bedrock of the constitution not because it was imo “taken for granted” but because the framers felt the need to firmly anchor this revolutionary principle at the foundations of the “new way of doing things” because they could see that it was not “normal” in the context of world history.
If one looks just at the semantics of the text without context then of course habeas corpus and capital punishemnt could be debated away Gonzales style or be considered as equal and mandatory dues to “you can’t take away what’s not there in the first place”.
In my opinion the framers saw capital punishement just in the light of procedure because it was “normal” but had to put some effort into guaranteeing habeas corpus because it was not (and simply could not imagine an AG doing 3rd level scholastics to debate it away by way of the “loss of horns” paradox).
For comparison, the German constitution says “The death penalty is abolished”, implying that it was there before* (=default) and had to be explicitly done away with. Otherwise the text of the constitution usually deliberately avoids the possibility of Gonzalean sophistry by avoiding negative formulations.
*One or two member states still have it in their state constitutions but can’t execute because federal law beats state law.
Even if it does, that doesn’t mean that it is legitimate (as the answer to a Constitutional Question) for the ‘evolving’ standards to invalidate other provisions of the Constitution. The flexibility of the ambiguity is not limitless.
As Katherine says, this implies a real misunderstanding of our argument. Including an evolving standard in the Constitution isn’t the same as ambiguity, and there aren’t any provisions that are “invalidated” when the standard evolves away from where it was at the time the document was written. The third amendment isn’t invalidated by our society’s having moved past quartering troops.
It’s OT, but do you, Sebastian, agree with Blackmun wrt the death penalty?
Finding these undisputed facts to be so is the same as finding water to be wet.
Sometimes it’s worth pointing out the obvious.
On the Brennan question, you either think that the Eighth Amendment incorporates an evolving societal standard, or you don’t.
The Eighth manifestly incorporates a societal standard. No explicit measurement for “excessive”, “cruel”, or “unusual” are given. All require human judgement to define them.
The reason that the ban on capital punishment did not stand is that an overwhelming number of folks, including, with the Gregg decision, enough members of the SCOTUS, did not agree with Brennan’s opinion on what level of punishment was cruel or unusual.
My post upthread was, actually, an attempt to refocus the discussion away from the perfidy of the liberal courts of the mid-20th Century, and back on the issues that are actually on our plate, here and now.
Discussing the evils of liberal judicial activism these days is like discussing the quaint practices of some archaic tribe. Barring holdouts like the SJC of Massachusetts, liberal judicial activism is more or less a dead letter.
Not so the original issue under discussion.
And, just for the record, I wholeheartedly support the court’s findings in Loving. Thankfully, and most of the thanks are due to those darned judicial activists, it’s not an issue that even comes up any more.
Thanks –
“You can’t. You have to imply it from the rights granted in other parts of the text. Which you’re not supposed to do. Rights protected in the text aren’t any less “retained by the people” than rights that aren’t.”
So you are flat out arguing that there is a “no capital punishment” right retained by the people in the 9th amendment. Is that correct?
“Including an evolving standard in the Constitution isn’t the same as ambiguity, and there aren’t any provisions that are “invalidated” when the standard evolves away from where it was at the time the document was written.”
Well first of all there isn’t much evidence that the real world standard of the United States of America has actually ‘evolved’ away from capital punishment. And you can’t invoke some general “protection of minority interest” duty of the Supreme Court to create an ‘evolving societal standard’. The two theories don’t exactly fit neatly together.
Frankly if you hang your hat on the evolving societal standard argument, Brennan and Marshall absolutely had to be arguing in bad faith because a large majority of the US still supports the death penalty. I have been arguing all along that they were deeply mistaken about interpretation. You seem to be arguing that they were deliberate obfuscators of what the societal standard was. And in any case, no workable view of a real Constitutional societal standard shift is measured at the 50% level. The federal system of government allows for states to do different things. (Not that opposition to the death penalty ever hits 50%). In your presentation of the argument, Brennan and Marshall act out of pure judicial power to invalidate the death penalty by pretending their was a societal consensus against it when there in fact was not.
“Discussing the evils of liberal judicial activism these days is like discussing the quaint practices of some archaic tribe. Barring holdouts like the SJC of Massachusetts, liberal judicial activism is more or less a dead letter.”
Hardly. This is in context of “they ignore and attack restraints on their power”.
As far as I can tell every Democratic presidential candidate supports a return to the kind of judging that attacks restraints on judicial power.
Seb: “Even if it does, that doesn’t mean that it is legitimate (as the answer to a Constitutional Question) for the ‘evolving’ standards to invalidate other provisions of the Constitution. The flexibility of the ambiguity is not limitless.”
I feel an argument about the difference between what a concept means and what it is understood to cover coming on. Possibly a reference to concepts like ‘carcinogen’, and to the fact that if carcinogens are banned by some law that nonetheless in some way acknowledges smoking in a way that seems to imply that the people who wrote the law didn’t think there was anything wrong with it, that law will ban tobacco without the least change of meaning once tobacco is determined to be a carcinogen.
Judicial power is at least kind of indirect. They can say how the laws have to work and they can rule on things that come to court, but they don’t get a lot of say about things that don’t come to court. If one branch of government is going to get excessive say, I think it ought to be them. And maybe they ought to get more protection from assassination than the President, too.
Still, I kind of like the idea of constitutional amendments to settle issues of changing societal standards. We’ve done that for various things the founding fathers didn’t consider. Slavery. Votes for women. Votes for 18-year-olds. Prohibition. Etc. It’s been laggy but maybe it ought to be laggy.
Speaking for myself, given the big deficiencies we’ve seen in the legal system, I’d prefer to allow capital punishment only for those in the upper half of the income distribution. If you don’t have the money for a fair trial, then you shouldn’t be executed.
Would rhyme well with the military principle of holding officers to a higher standard than non-coms and privates (despite its non-appliance in this administration, cf. bad apples).
“I feel an argument about the difference between what a concept means and what it is understood to cover coming on. Possibly a reference to concepts like ‘carcinogen’, and to the fact that if carcinogens are banned by some law that nonetheless in some way acknowledges smoking in a way that seems to imply that the people who wrote the law didn’t think there was anything wrong with it, that law will ban tobacco without the least change of meaning once tobacco is determined to be a carcinogen.”
That really can’t come into play for any of the issues discussed here. If you use a legal term to ban things that cause cancer, whether or not something causes cancer is subject to independently verifiable scientific proof.
If we accept that “cruel and unusual” in the Constitution is an evolving term, it still evolves based on actually existing societal standards. It isn’t subject to independently verifiable scientific proof in contradiction to the society’s judgment, because society’s judgment on the matter is all there is. Since the actual US society is not categorically opposed to the death penalty (unlike Brennan or Marshall) in order to justify reaching the conclusion that “cruel and unusual” eliminates the death penalty requires an incorrect understanding of the judicial role. While in SOME areas, the judicial role is to protect minority interests, this is not in fact one of those areas–if the standard changes based on societal consensus, you don’t get to invoke the minority opinon on the the matter.
If the standard is based on “societal consensus,” does it have any meaning at all? Isn’t the whole point of the Bill of Rights to be anti-majoritarian?
Sebastian, I’m the wrong person to be arguing this side of it because, as noted, I agree with Blackmun and not with Brennan. That said, I don’t think you measure the meaning of the clause simply by reference to an opinion poll, although an opinion poll would be among the evidence.
I disagree about (or, more properly, fail to understand) the ‘protection of minorities’ point: imo, the Bill of Rights protects individual human beings (sometimes citizens, sometimes all human beings) from intrusions by the state. The Eighth Amendment is precisely designed to protect an individual human being from a particular kind of state action.
I’m also the wrong person to be arguing this, since I have the quaint view that the ‘unusual’ part of ‘cruel and unusual’ means something that’s falsified by a punishment’s being the officially mandated punishment, and that ‘cruel and unusual’ means: judges don’t get to impose sentences they just dreamt up, as an alternative to the normal ones, when those sentences are also cruel. (You can dream up an interesting form of community service as an alternative to jail, but you can’t order that someone’s toenails be pulled out.) The only thing that might prevent me from ruling accordingly, in the unlikely event that I am nominated to the SC, would be respect for precedent.
That said, I thought that the general point Seb was making (sorry if I got it wrong) was: the 5th amendment explicitly countenances capital punishment. Thus it can’t be what the 8th rules out. The carcinogen case was meant to say: sure it can. You might want to argue that in this case it isn’t, but there’s nothing the least bit mysterious about how something that’s mentioned in a context that shows that the framers did not believe it to be X, which they banned, might nonetheless turn out to be X, and therefore something they did ban.
Nor does accepting this general form of argument tend in any way to show that someone doesn’t take the Constitution seriously. All it shows is that you accept that the meaning of a word can stay the same even when our understanding of what things that word refers to — what things actually are carcinogens, for instance — changes.
For what it’s worth, I’d go further and say: the Framers could easily have written a Constitution that banned not “cruel and unusual punishments”, but “those punishments that we, the Framers, take to be cruel and unusual.” They did not. People who substitute the latter for the former are (to my mind) distorting the actual words as much as anyone.
A little penal history goes a long way toward explaining the Framers’ thinking. Back in the day, in jolly old England, there was no such sentence as “life in prison.” For that matter, there was no such sentence as a year in prison. The reason, interestingly, is that prisons were so unsanitary and disease-ridden that any prison term longer than two weeks or so was effectively a death sentence.
So basically, at common law, any crime that was serious enough that two weeks’ imprisonment wouldn’t suffice simply had to be punishable by death. There was no middle ground, at least not until the remedy of “transportation” (banishment to Australia or to the American colonies) came along in the 18th century. It wasn’t until the late 18th century that imprisonment really came into its own as a punishment for crimes (as opposed to debtors’ prison, imprisonment pending trial, and the like).
So if you asked the Founding Fathers whether they could imagine a future day when the death penalty might come to be regarded as cruel and unusual punishment, it would have been an awfully hard hypothetical for them to wrap their heads around. The concept of a criminal justice regime which didn’t include the death penalty was incomprehensible in the 18th century, because they simply didn’t have the range of alternative punishments available to them that we understand today.
So when they wrote the Constitution complete with references to capital offenses, were they saying that they expected the death penalty to remain part of the law forevermore? I doubt they had an opinion one way or the other; it was more that the idea of an alternative never occurred to them.
That last paragraph is about what I wanted to say with my above posts.
Just a quick comment. This has been an extremely interesting thread, and I appreciate the various opinions that have been given. IANAL, but I have actually been able to follow this.
I question if the death penalty can be ruled unconstitutional, but I do believe that in time it will be outlawed in most areas.
I thought about putting a note on that at the end, but I think it only confuses things. Essentially those are two different issues. The 8th amendment protects minority interests in this way: posit a 20-year societal consensus (or maybe 70% of people agreeing) that tapping someone on the thumb once a day is cruel and unusual punishment (call it ‘tapping’). If someone does something really horrible, we can’t punish him with tapping–even if you can temporarily get 51% of the nation to say that he deserves tapping because he is so horrible. In that sense, the court is properly protecting minority interests AND accepting the general societal consesus on tapping.
It is not proper to ‘protect minority interest’ in determining whether or not there is a societal understanding that tapping is “cruel and unusual”. The societal understanding is by definition not a minority understanding. I would argue that it isn’t even a 50.1% understanding. It is something that approaches a societal consensus. But even if you don’t agree with that, it certainly is not the minority opinon. That would make no sense whatsoever. That would mean that ‘tapping’ is cruel and unusual for Constitutional purposes when 60% of people think it isn’t and CONVERSELY when 60% of people think it is, you should protect the minority opinion and recognize tapping as not cruel and unusual. If you are going to define something by evolving societal standards, you don’t get to evoke minority opinons–they aren’t the societal standards. You can do one or the other but not both.
Hilzoy, I think your conception of “cruel and unusual” has quite a bit of weight behind it, but it isn’t at all the direction things have gone in the past 75 years and some things I just accept and move on. 🙂
That is true for objective matters, but not for the 8th amendment as it actually plays out.
I’m going to go through all the steps and show where I think the problem is because I think I assumed a step in my head that people aren’t understanding. I’m objecting to judges like Brennan and Marshall finding the death penalty “cruel and unusual” BY OVERRULING THE ACTUAL SOCIETAL CONSENSUS ON THE ISSUE.
If you accept the societal consensus theory of the 8th amendment and there were an actual societal consensus on that the death penalty was “cruel and unusual”, the fact that it transformed to render moot part of the 5th would be fine.
The problem is that the Brennan and Marshall don’t try to do that. They try to latch on to “evolving standards” and then they turn right around and defy the actual societal understanding.
The problem here is that people are conflating in their mind a bunch of different things that the Supreme Court does, and applying them inappropriately.
Sometimes the Supreme Court is empowered to defy the majority will. If the majority wants to generally suspend habeas corpus, the Supreme Court both can and ought to say no.
But when they are claiming to latch on to evolving standards of decency, they aren’t in such a position. When you are latching on to that, you are appealing to the societal understanding. In a federal system that can’t be just a 50% proposition–the Constitution lets people disagree on basic standards of lots of things. If you are appealing to the societal understanding on things, you can’t then turn around and enact the minority opinon of the societal understanding. Even if you accept an evolving societal understanding theory of “cruel and unusual” you cannot enact a minority theory of it when doing so.
If the Fifth Amendment is THE decisive factor that rules out an Eighth Amendment prohibition on execution, you are using the enumeration of the right to due process (and the others you cite) to disparage the right not to be subjected to cruel and unusual punishment.
This is completely question-begging. What Sebastian is doing is using the enumeration of the right to due process (more specifically, the repeated references to capital punishment) NOT to “disparage” any actual 8th Amendment right, but to CONSTRUE the 8th Amendment to mean what it’s supposed to mean. If Sebastian is right, the 8th Amendment simply doesn’t bar capital punishment. And if the 8th Am. doesn’t bar capital punishment, it CANNOT be “disparagement” in the 9th Am. sense merely to point out that fact.
Steve: So basically, at common law, any crime that was serious enough that two weeks’ imprisonment wouldn’t suffice simply had to be punishable by death.
That’s an exaggeration. No, really, it is.
But you could be hanged for a theft over the value of 5 shillings, with the result that (I have read, though not in actual historical documents) a lot of people bringing a charge of theft would value what had been stolen at 4 shillings and sixpence, or something like that, because while they definitely wanted to see the thief punished, they didn’t actually want a hanging on their conscience.
“I have the quaint view that the ‘unusual’ part of ‘cruel and unusual’ means something that’s falsified by a punishment’s being the officially mandated punishment”
Look at the history of “hanging drawing and quartering,” the horrific traditional English punishment for rebellion and treason. If you’ve seen the movie, “Braveheart,” you know how it works.
That punishment was used on a number of Jacobite rebels from the 1740’s, within the lifetime of the founders. It continued to be authorized by statute for more than a century afterwards, but was used, if I recall correctly, only one more time, in the 1790’s. Despite the statute, the punishment became unusual over time, and a social consensus (although they didn’t use such language back then) evolved that the punishment was too cruel.
The founders probably gave this punishment some thought, given their personal histories.
There is no instance, of course, of this punishment being used in the United States.
I strongly suspect that the founders would have concluded that this punishment was barred by the 8th amendment, on the basis of evolving standards.
I always find it amusing when people talk about what “the founders” had in mind when they wrote the Constitution. Its as if “the founders” was in reality a monolithic creation or as if all the founders were in total agreement on everything.
Obviously this is not the case and to some degree the Constitution ended up being like a piece of legislation with earmarks. Much of the Bill of Rights was added so as to get various states to approve it, and the Second Amendment went through at least five revisions.
The best we can do is attempt to figure out what specific founders might have meant.
This has nothing to do with the topic at hand, just wanted to get it off my chest
Since Braveheart makes an appearance here, I’d just point out that there is some debate about what ‘drawing’ means and whether the execution portrayed is historically accurate. Here’s an interesting webpage about the process that seems quite good.
I’m objecting to judges like Brennan and Marshall finding the death penalty “cruel and unusual” BY OVERRULING THE ACTUAL SOCIETAL CONSENSUS ON THE ISSUE.
Didn’t they assume there was societal consenus in the entire Western world? Maybe even the entire world, since in 2005, 94 per cent of all known executions took place in China, Iran, Saudi Arabia and the USA.
Nine countries since 1990 are known to have executed 53 prisoners who were under 18 years old at the time of the crime – China, Congo (Democratic Republic), Iran, Nigeria, Pakistan, Saudi Arabia, Sudan, USA and Yemen. China, Pakistan, USA and Yemen have now raised the minimum age to 18 in law, The USA and Iran have each executed more child offenders than the other seven countries combined and Iran has now exceeded the USA’s total since 1990 of 19 child executions.
There’s a consistent liberal/conservative dichotomy as to whether the opinion of the rest of the world matters, in this as well as other areas.
Many conservatives have a very strong, negative reaction to the concept that because the rest of the world does X, that’s a reason for us to do it too.
Another really interesting discussion. Thanks to all. I love the legal arguments, although (or because?) IANAL.
Publius: very nice post, which airs a lot of things I’ve had on my mind for a long time but never put together so cleanly.
Sebastian: I’d like to step back from the death penalty question to the broader issue.
Your claim about liberal judges is that they are like the Bush administration in that “they ignore and attack restraints on their power.” And I am intrigued by the suggestion. I really am. I’ve been rolling it around in my head for a while now, and in some ways I see the parallels. And it’s fascinating to me to think that, however angry the Bushies’ repeated and horrifying attacks on the rule of law make me, that some conservatives are equally angry about the thought that the death penalty could be interpreted to be unconstitutional. (As a typical wishy-washy liberal, I am pathologically interested in seeing the other guy’s side of the argument.)
In other ways, though, I think the parallel is a very big stretch. At the end of the day, there’s something fundamentally different going on. Three points:
Point 1. The Bush administration *explicitly rejects* the concept that there are any rules restraining them. The liberal judiciary never did anything similar. Whatever you might want to charge the liberal judges with, they did do anything even vaguely parallel to the power grab implicit in the “signing statements” debacle. “We, the Supreme Court, reserve the right to ignore the laws we don’t like.” No, they never tried anything like that.
Second point. The parallel you draw with the ludicrous Gonzalez argument about habeus corpus is as follows: in both cases, “the broad and general powers (in this case Presidential powers) get to over-rule specific narrow portions of the Constitution.”
Again, this is close to being on-target, but I think it is just a bit off the mark. I just don’t think that’s what is happening in the death penalty jurisprudence. There is nothing being “over-ruled.” The 5th amendment does not say “The death penalty shall be legal.” It makes some references to imply that the justices thought that the death penalty was accepted, at that time, as normal. But that’s a very different thing, as others have pointed out.
If you’re going to find a parallel with the Gonzalez case, then you have to find a place where the liberal judiciary said “our very broad reading of clause X of the Constitution trumps the very specific clause Y of the Constitution.” So, for instance … oh, say some sub-group of gun owners was so crazy about their love of guns that they formed what amounted to a new religion. Then you would have to imagine Justice Brennan or whoever saying that the 2nd amendment (guaranteeing this religion access to guns) amounts to a form of religious establishment, and is therefore unconstitutional under the 1st amendment.
Something like *that* would be an attempt to over-rule one part of the Constitution with another, and would be parallel to what Gonzalez attempted. If you can find anything like that in the history books, I’d love to hear about it. Until then, I’m unconvinced.
Really, I don’t think the liberal judges “attacked or ignored restrictions on their power” at all. They just understand the nature of interpretation a teensy bit differently than you do. (Where exactly to draw the line between “too loose” and “just right” theories of interpretation is a pretty tough call.
Third and final point. The Bushies are doing everything they can to *hide* their consistent attacks on the limits of their power. The administration’s power grab is fundamentally illegitimate under our system of government, and they know it. The intellectual arguments being put forth really are just a fig leaf to cover the more important belief that their own power should be unchecked.
By contrast, the liberal interpretation of the nature of jurisprudence is not hidden. These people write books and legal briefs explaining their understanding of the nature of interpretation. They attend academic and legal forums and debate the issues openly. They don’t lie and deceive about what they’re doing. And their understanding of the nature of interpretation has hardly been shown to be intellectually incoherent. Nor has any other interpretive method been shown to be more coherent. At this point, it’s a good faith intellectual debate among fundamentally honest people.
At the end of the day, there’s just no comparison.
Many conservatives have a very strong, negative reaction to the concept that because the rest of the world does X, that’s a reason for us to do it too.
Yeah, because “everybody does it” is a stupid argument. If it had been made in the 1780s, we’d never have had a Bill of Rights in the first place.
Yeah, because “everybody does it” is a stupid argument.
Look, I wasn’t making a normative judgment. “The rest of the world is wrong and I’m right” is often a stupid argument, as well.
I might as well give an opinion about what the SC ought to do since lots of others are. Of course, what they actually do will depend on some combination of strong personalities and cold impersonal forces, pretty much independent of what I think.
I disagree a little with Sebastian — I think it’s fine for the SC to get out in front of the social consensus provided the social consensus catches up pretty quick. It’s good to do so when they’re heading in a good direction and their actions *help* the social consensus catch up quick.
I think it’s a bad idea for them to stray from the social consensus when their actions tend to push the social consensus against them. That weakens the SC and it doesn’t strengthen their cause.
How to tell which is which ahead of time? I’m not sure.
I think in general it’s better when the social consensus isn’t exactly a consensus for the SC to encourage diversity. So, when there aren’t enough states with s consensus against capital punishment to get a constitutional amendment, better to allow it in states that want to do it and that do it “correctly”, and allow states that don’t want it to forbid it. If there’s no consensus on gun control, let states taht want it try it and let states that don’t want it avoid it. That means no good result from gun control anywhere since it will be easy to smuggle guns from one place to another, but them’s the breaks. If there’s no consensus on gay marriage, let states that want to allow it and require other states to recognise out-of-state marriages. that’s bad for states that really want to ban it, but again them’s the breaks.
Allow diversity until a social consensus arises.
Where social consensus comes hard I’d like it if the SC could do something to encourage a peaceful settlement. We lived with diversity and no social consensus on slavery for a long time until it got settled with massive bloodshed. Let’s try to avoid that next time.
It isn’t just the death penalty. It is lots of things, but I chose the death penalty because, believe it or not it isn’t as emotionally charged as some areas (abortion for instance) and the power grab is pretty explicit (as opposed to say property seizure issues).
Some of the interpretation schemes strike me as pretty much that. The death penalty game strikes me as right on the edge of “because I say so”.
It is either a matter of simple interpretation or a matter of changing societal standards. You are combining the two inappropriately.
If it is mere interpretation, the 5th amendment clearly illustrates that the proper interpretation can’t extend as far as outlawing the death penalty.
If it is changing societal standards, the Court needs to wait until the societal standards have actually changed.
In neither case is the Brennan/Marshall finding defensible.
I can’t agree with you at all. For the most part, liberal jurisprudence is incredibly hodge-podge and has been perverted by the fact that it is necessary to defend really ridiculous ruling like Roe. However incoherent you believe textualism is, it isn’t likely you are going to find a liberal jurisprudence that is more coherent. You may find one that gets lots of results you like, but that isn’t at all the same as coherent.
As far as I can tell every Democratic presidential candidate supports a return to the kind of judging that attacks restraints on judicial power.
–Sebastian Holtzclaw
Uncontested and absolutely correct. A Democratic president in 2009, with a Democratic Senate, will only consider Supreme Court judges favoring unrestrained judicial power.
The reason, though, lies within the realm of “civil religion.” There’s a religious principle involved. If the 28-foot long magical egg of the Oval Office is occupied by someone who “cares” and “puts people first,” then this great white bwana will make life better for everyone.
This is the kind of fairyland that they live in, a politically progressive mirage that keeps receding before us as we march across a desert with insufficient water. What they try to do in an argument is make you prove a negative. They feel they are right unless you can demonstrate conclusively that the Emerald City doesn’t exist and the ruby slippers have no power.
Central to this religion are two beliefs, and these are more important than human life itself. 1: Man is perfectable through his institutions. 2: Government has a responsibility to act with compassion, and this is best exhibited by developing classes of citizenship (originally based on race, but that was repudiated, so…) based on age, economic conditions, past ethnic history or geography.
A man who persues #1 and #2 is progressive and moving “the people” forward, even if he kills 100 million of his own people in peacetime, as Mao did.
To this religion, the death penalty is an unholy horror, because the convicted murderer is still a human being –and that means — STILL PERFECTABLE THROUGH HIS INSTITUIONS.
So, to this religion, a jury awarding murder 1 or a judge pronouncing a death sentence is “cruel and unusual” punishment. Within that church, the phrase “cruel and unusual” never boils down to what the founders almost certainly intended — “torture.” The constition allows a federal death penalty, does not prohibit states from disallowing it, but denies torture (as “cruel and unusual”) at any level of government against any adversary.
How many liberals voted against the Patriot Act (written by Gonzales) in the fall of 2001? “Almost none,” because they wanted to look patriotic in order to get re-elected in order to pursue social perfectability and classes of citizenship. The political means serve the religious ends.
Sebastian, you’re not going to win this argument sitting in the alabaster temple of Absolute Fairness and offering legalistic arguments to the faithful. How do I know this? I’m a retired government auditor and CPA. The gross national product of the USA is roughly $14 trillion a year. The net unfunded debt of Medicare is approximately $66 trillion. Other unfunded debts push the federal unbooked guarantees past $100 trillion. “Universal health care” is not going to happen, ever. There’s no money for it. Eventually, certainly, Medicare is going to be sunsetted. If no action is taken, it will be sunsetted by hyperinflation.
End of discussion. Don’t argue with me unless you’re a CPA or PhD in Economics. What I just said isn’t a political opinion — it’s an expert talking within his specialty.
But followers of the civil religion of institutional perfectability and classes of citizenship are outraged by such a factual assertion. My character is attacked as barbarous. I’ve offended their utopia.
And this is what you’re doing with your legal arguments. Let me put it this way. The ivory billed woodpecker has been extinct since 1944, but that hasn’t stopped the Cornell ornithologists and spear carriers from spending $10 million to find it in Arkansas, even without any legitimate sightings, even after the fuzzy evidence has been roundly repudiated by refereed and published scientific analysis.
Your arguments based on the rights of Magna Carta, John Locke and the Federalist Papers do not encourage a single soul to leave the temple of Absolute Fairness. Specifically, expressly, La Rochefoucauld’s essay on Self-preservation-as-self-love (“Amour-propre”), though true and 300 years ahead of itself as sound psychology, was so scandalous it was not included in the subsequent editions of his Maxims. There’s a lesson there.
So your logological and philosophy of laws arguements are less than effective when presented to believers in a civil religion. And, lo, there is ANOTHER reason they aren’t going to listen to you: they are in grief. A dumber, cornier, laughable religion went to the sacred Supreme Court in 2000 and “won” the Presidency –and this is the good part — the same carnival side show actually won outright the next time inspite of an unpopular ongoing war.
They’re in no mood to listen to you. They think the country has come around to their view (because of the 2006 elections), but actually that victory was based on the desire to stop an irrational military adventure in Iraq. An adventure most liberals supported at the outset.
Perhaps America has become too stupid and superstitious a country to make geopolitical and Constitutional decisions based on logic.
Well, that was an enjoyable comment, especially the bit about Chairman Mao, liberal hero.
It’s surely “uncontestable and absolutely correct,” however, that liberals who oppose the death penalty do so because they believe all criminals can be rehabilitated and “perfected.” I’m sure that’s the only argument out there.
I have no problem with the death penalty in principle, by the way, although I still think Seb’s constitutional argument is composed mostly of snake oil.
Urban coyote, you aren’t really helping. Though I have a sneaking suspicion that may be intentional. 😉
End of discussion. Don’t argue with me unless you’re a CPA or PhD in Economics. What I just said isn’t a political opinion — it’s an expert talking within his specialty.
umm, that’s not really how we conduct ourselves around here. also, comparing one year’s GDP to the net present value of an obligation in perpetuity is, at best, grossly misleading and at worst is, well, flatly dishonest.
for example, what’s the net unfunded liability of the DOD? The military talks about needing 4-6% of GDP for the foreseeable future, yet we fund DOD expenses out of general revenues which are only good for one year! OMG! WE’RE ALL GOING TO BE SPEAKING FARSI!
feh.
As to the death penalty, there’s a couple of different analytical approaches being conflated in this thread.
SH theory — capital punishment is explicitly mentioned in the BOR. Therefore, arguing that capital punishment is unconstitutional has no basis in the BOR and there is no other possible source of authority for invalidating capital punishment.
One response — But the 8th Amendment specifically contemplates that cruel and unusual punishments are to be banned. So, either the Sup Ct can legitimately decide that capital punishment is now c&u, or the “evolving standards” test is wrong (and the determination of c&u is based on 18th century standards), or the evolving standards test cannot go so far as to ban capital punishment because of the 5th amendment recognition of the possibility of capital punishment.
(My own view — in the interplay between the 5th and 8th amendment, the Sup Ct does have the power to limit some conduct, but lacks the power to find that capital punishment is per se cruel and unusual.)
Second response — death is different because death is final. The 5th amendment imposes higher standards on states for the imposition of the death penalty than for even LWOPP (life without possibility of parole). Yet states have consistently failed to demonstrate that they have established Constitutionally minimally adequate procedures for imposing death.
(My view — I agree. For example, I don’t think that individual deputy DAs should make the determination. I would be much more comfortable if the decision were made by the AG pursuant to statutory guidelines.)
Yeah, because “everybody does it” is a stupid argument. If it had been made in the 1780s, we’d never have had a Bill of Rights in the first place.
1780s? 1689.
I didn’t mean to say that the US should do it because most of the world does it (though it might be an indication), I’m just saying that something might be viewed as ‘unusual and cruel’ if you look at the current civilized world and still be considered normal in the US. That does not mean it is not cruel though.
I think the American way of making laws is bad, ours is much better. But public access to info is on the whole better in the USA. Deliberately making last-minute changes in laws or putting completely unrelated things in contradicts all a law should be imho. But defending capital punishment feels much like defending that rapists should be raped, so I guess I’m a complete minority here 😉
Don’t argue with me unless you’re a CPA or PhD in Economics
To my great relief, this excludes me.
“So, either the Sup Ct can legitimately decide that capital punishment is now c&u, or the “evolving standards” test is wrong (and the determination of c&u is based on 18th century standards), or the evolving standards test cannot go so far as to ban capital punishment because of the 5th amendment recognition of the possibility of capital punishment.”
I believe that if we accept an evolving standards test, it could in theory ban capital punishment–but that there would have to be a real societal near-consensus on the issue. If 80% of the country believed that capital punishment was always wrong yet for some reason two or three states maintained it (perhaps they had 51% who thought it was ok in just those states) there would be a colorable argument for it. (Yes Anarch I still don’t know where that phrase comes from).
In reality, the US opinion is at about 60% favoring the death penalty as an option. There is no societal consensus that the death penalty is “cruel and unusual”. That is why the Marshall/Brennan concept of jurisprudence in this area seems so much like a blatant power grab–they don’t have a leg to stand on in pure interpretation, and they aren’t reflecting an actual societal consensus.
I’m not a lawyer or a Constitutional scholar. I write software, and I’m a freelance drummer. So, I am not in a position to discuss this stuff from a point of view of deep understanding of jurisprudence, ConLaw, or the like. I am therefore forced to discuss this stuff from the point of view of common sense, to the degree that I possess any.
The SCOTUS quite definitely got out in front of the then-prevailing societal consensus in the mid to late 20th century. It’s actually a damned good thing they did, because on a number of issues — civil rights notably — the societal consensus was not a very good point of view.
In some cases — again, notably in civil rights — the court’s leadership led to really notable improvements in the societal consensus. In other areas, for example the decision in Furman, the societal consensus did not follow their leadership. Whether that was a good or bad thing, I leave it to you to decide for yourself.
In my very humble opinion, judicial activism in the form of the courts leading, rather than simply responding to and reflecting, popular opinion is fine. Again IMVHO, the same is true of all other branches of government. I see nothing wrong with people in positions of public responsibility leading.
Others may disagree, the above are my two cents.
I don’t see the activities of the Bush administration as being of a kind with those of the activist courts of the 20th century. For one thing, they lie and hide their activities from the public. For another, they break the law. For another, many of their activities are not directed at furthering any agenda but the aggrandisement of their own power. Judicial activists may have grabbed for power, but I don’t see that as being their end. Not so for the Bushies.
Some may say that I’m simply less favorably disposed toward the power grabs of the Bushies because I disagree with their goals. That’s a hat I’m perfectly happy to wear, because in fact I am, by an order of magnitude, less favorably disposed toward the goals of the Bush administration than I ever was toward those of the liberal courts.
In any case, Brennan’s been dead for ten years. Burger, for twelve. Warren’s been gone for thirty-three.
Today, here and now, Bush, Cheney, Gonzales, Rove, and their buddies are doing their damndest to give the royal finger to any attempt to bring them to account, for any action or policy they have undertaken. When the sun rises tomorrow, while you’re eating your breakfast, they will be diligently working as hard as they can to expand and consolidate their personal political power, and to thwart any attempt any of our representatives may make to call them to account for their decisions and actions.
So, the theories of jurisprudence discussed here are, sincerely, very interesting, and the historical parallels with current events very enjoyable to discuss, but as we speak, the nation is going to hell in a handbasket.
That pisses me off. It ought to do the same for you.
Thanks –
The gross national product of the USA is roughly $14 trillion a year. The net unfunded debt of Medicare is approximately $66 trillion. Other unfunded debts push the federal unbooked guarantees past $100 trillion. “Universal health care” is not going to happen, ever. There’s no money for it. Eventually, certainly, Medicare is going to be sunsetted. If no action is taken, it will be sunsetted by hyperinflation.
End of discussion. Don’t argue with me unless you’re a CPA or PhD in Economics. What I just said isn’t a political opinion — it’s an expert talking within his specialty.
Well, urban coyote, I happen to be a Ph.D. in Economics, so I know what I’m talking about when I say that the degree of uncertainty involved in infinite-time-horizon forecasts of “unfunded debt” or anyting else makes such numbers useless for policy-making purposes. Period.
“umm, that’s not really how we conduct ourselves around here. also, comparing one year’s GDP to the net present value of an obligation in perpetuity is, at best, grossly misleading and at worst is, well, flatly dishonest.
“for example, what’s the net unfunded liability of the DOD? The military talks about needing 4-6% of GDP for the foreseeable future, yet we fund DOD expenses out of general revenues which are only good for one year! OMG! WE’RE ALL GOING TO BE SPEAKING FARSI!”
–Francis
This comes as close as possible to an admission of religious zeal (ie, I think we can restate this as “I know man is perfectable through his institutions and that the government should establish and maintain classes of citizenship –don’t bother me with facts! I don’t care how much it costs”)
GDP = 14 trillion yet current net unfunded debt of Medicate = 66 trillion
Other unfunded debts > 35 trillion
Does the word “bankruptcy” mean anything to you? When I say “unsustainable” and “must be sunsetted,” I am talking within my own specialty as an expert. Find me one CPA (out of about 300,000) who says otherwise. Good luck, Diogenes. You’ll die trying to find somebody.
How do you accumulate $65 trillion to sink this debt when you only get $14 trillion a year in annual economic activity? “It can’t be done.” Even with an implied interest rate of zero percent, it’s impossible. Either sunset it or accept resposibility when the inevitable hyperinflation occurs.
Jetek says:
“Well, urban coyote, I happen to be a Ph.D. in Economics, so I know what I’m talking about when I say that the degree of uncertainty involved in infinite-time-horizon forecasts of “unfunded debt” or anyting else makes such numbers useless for policy-making purposes. Period.”
My reply: Nonsense. It’s ALREADY bankrupt. It already takes larger and larger general funds every year to pay for it, and the trend is irreversable. As Alan Greenspan said when he retired, “The time for easy solutions is past.” The federal government has promised a level of benefits that are unsustainable. Medicare is bankrupt. Period. No infinite time horizon or interest rate projections needed. The cupboard is bare no matter how rosy the economic scenerio or imputed interest rate. It’s a Ponzi scheme, doctor.
I’m sure you’re sincere in what you say (in your RELIGIOUS viewpoint). I’m sure you’re mad at the revival tent politicians for winning in court in 2000 and winning outright in 2004. But the Dems had to pick a fellow civil religionist from Massachusetts rather than a moderate in 2004.
By the way, since I’ve established myself as an economic realist and public sector bean counter, what makes you think I support shoveling money into the Pentagon –especially for this outrageously poorly planned Iraqi occupation of indefinite time commitment? “What a gluttonous white elephant — move everything into Kurdistan, support Kurdish nationhood, and let the Shi’ites maul the Sunnis.” There is no “Iraq.” No one will die for it, no one understands pleuralistic democracy there. Get out of the near East and let the Kurds and Israeli’s irritate their neighbors into copying their successful examples through sheer, universal, human jealousy. Allah Akbar.
I’m a supporter of the death penalty. I don’t see how someone convicted of murder by a jury of peers still maintains their own right to existance. The liberal argument here seems to me preposterous unless the murderer is re-habilitatable through a correctional institution, and that dream is demonstrably unworkable.
I’m also a supporter of abortion. That’s right, I’m pro death penalty and pro abortion. I wish Roe vs. Wade was tied directly to the 9th amendment and to disallowing the establishment of a subordinate class of citizens, pregnant women, but the decision was worded poorly — so poorly that the subject remains an issue.
I also think the 9th amendment leaves the states free to exclude the death penalty for themselves if they wish to do so.
Furthermore, I think POTUS and Veep committed an impeachable offense when they ordered Air Force jets to shoot down the civilian airliner in Pennsylvania. The Constitution does NOT give the President power to kill American civilians in peace time. A governor can order a national guard jet to shoot down that airliner (as the Governor of Ohio ordered the Ohio National Guard to open fire at Kent State in May, 1970), but the President doesn’t have the right to do that. A crisis was averted only because the passengers themselves mutinied.
More than 98 “detainees” have died, unarmed, in our captivity. USC18 provides for penalties, up to and including death, for the death of prisoners. That means the highest official to authorize torture is a murderer, doesn’t it? Again, I think the death penalty is appropriate, “pour encourager les autres.”
“Urban coyote, you aren’t really helping. Though I have a sneaking suspicion that may be intentional. 😉
–Sebastian Holsclaw
No, I’m not helping. I have no duty to help. I’m a realist an an anti-utopian. Not only am I repulsed by the liberal utopia and the modern “conversative” (theocratic?) utopia, but I have no duty to make a choice – I deny the utility of comparative shopping as a valid technique for dealing with politicians.
I have one other crowbar to toss on this issue. This started with Gonzales’ outrageous conduct as A/G, which I have snottily touched on by noting the liberals mostly voted for Patriot Act I (which Gonzales wrote).
But I want to give all of you a little insight into the standard m.o. of the Department of Justice (DoJ). They are arrogant. They belittle and threaten their contractors. Their business manners are aweful. DoJ hands out federal grants and then harrasses and annoys and intrudes on the work of the auditors (who are hired as part of the grant language). I know CPA’s who’ve been through this mill and refuse to deal with DoJ again for any reason at any cost. What I’m saying is that honest auditors FIRE THE CLIENT when it’s DoJ. We tell each other horror stories about these turds –and– this is a long-standing problem with this particular agency.
This ugly arrogance was true when Clinton was President — true when Bush 41 was president… it appears to go back at least as far as Robert Kennedy in the early 1960’s.
It’s a rotten, arrogent, unprincipled agency that no one bothered to discipline. The zit popped under Gonzales. Couldn’t have happened to a more appropriate person, though. Poetic justice is a beautiful thing.
The gross national product of the USA is roughly $14 trillion a year. The net unfunded debt of Medicare is approximately $66 trillion. Other unfunded debts push the federal unbooked guarantees past $100 trillion. “Universal health care” is not going to happen, ever. There’s no money for it. Eventually, certainly, Medicare is going to be sunsetted. If no action is taken, it will be sunsetted by hyperinflation.
You are taking a problem with many variables and setting all of them constant except a couple. It’s a lot easier to think that way, but the results are generally not very good.
Look for a moment at Social Security. They’re in trouble in the long run, because they have a whole lot of government bonds that are unlikely to be paid. And it appears they are required by law to buy those bonds. Well, there’s a solution right there! Don’t require SS to buy US bonds. Let them sell the bonds they have on the open market for whatever they can get, and buy bonds from whoever they think is responsible and likely to actually pay their obligations. Buy british government bonds, german government bonds, italian government bonds, bonds put out by goldmining companies, anybody who’s more trustworthy than the US government.
From there it’s obvious that the problem isn’t SS. The problem is the US government. And perhaps a deeper problem is the US economy which is unable to support the current profligacy of the US government.
If we were to actually deal with those two big problems, maybe the far smaller problems of medicare and universal health care would be automaticly solved as side issues.
But you are assuming we do nothing, and then we will run into great big problems that leave us unable to deal with little problems like healthcare.
You may be right. Maybe we’ll all just line up like cattle in front of a slaughterhouse and nobody will take any initiative and it will all go completely predictably.
But that isn’t certain.
By the way, since I’ve established myself as an economic realist and public sector bean counter
I want to point out that you have established nothing of the kind. You have made a claim that has so far been completely unsubstantiated. Your public analysis is badly flawed (though the results may still be reasonable predictions — just because your logic is bad doesn’t mean your conclusions are wrong). You have given us no reason to think that you’re telling the truth about yourself beyond our natural tendency to assume that random anonymous people don’t lie.
If you want to establish yourself as a public sector bean counter, then give us your real name and title etc, and perhaps suggest ways we can look that up. Preferably give us a trustworthy source that also includes an email address under your real name we can contact you through, so you can vouch for your current alias. If you don’t care to do that it’s OK, and it isn’t evidence you’re lying — but your claim to expert status will still be unverified.
We can evaluate you as an economic realist from what you say here. I know an economic realist when I see one, being one myself.
Urban coyote, are you a lawyer? A theologian?
Hmmm…I confess that “pleuralistic” confuses me. Are we talking about elected government run by a bunch of folks with breathing problems?
Probably not, I’m guessing, but I just couldn’t stop myself, here.
Whatever U. C. is in real life, s/he isn’t particularly good at mindreading. I, for instance, am a liberal, but I do not believe in human perfectibility. (Though I think that each of us has an obligation to perfect ourselves — not others — as much as possible. But that’s like saying that we have an obligation to try to get a perfect score on an incredibly hard test.)
“Man is perfectable through his institutions” sounds an awful lot like something you might find in the Cliff Notes about Foucault… except that he (like pretty much everyone else I know) would’ve thought that was ludicrous on its face.
Urban Coyote, the numbers you keep tossing around (e.g., $66 billion unfunded liability for Medicare) are, as you should be aware if you really are an expert, infinite time horizon projections. They are not, as you are aware if you are really an expert, hard certain numbers, but very, very soft estimates, highly sensitive to the assumptions they incorporate. As such, they are useless for policy decisions. Any decision we make based on such uncertain numbers is virtually certain to be wrong.
For J. Thomas: Social Security will go broke eventually, too, probably in the 2040’s. The bonds aren’t backed by anything. You’re right, it’s really a US Government problem. Because there is still time to fix the problem (by cheating young people out of benefits) I didn’t say SS is bankrupt. It’s broke but not necessarily beyond repair.
This time frame for repair has slammed shut with respect to Medicare. It’s hopelessly broke now, and the only solution is to sunset the “entitlement.” Without that drastic action, hyperinflation will do the sunseting for us.
OK. No CPA I’ve ever known would sign an “opinion letter” about Medicare except to say one called an “adverse opinion” that the financial numbers are unsustainable and unreliable. In other words, Medicare is hopelessly bankrupt. Furthermore, a financial statement for the entire federal government used to be prepared each year and issued with one of these “adverse opinions” –think about that heroic accomplishment of honesty – yet this humble accomplishment petered out and stopped early in the administration of “W.” I emailed the office responsible to ask why the annual statement and opinion had ceased, but I never got an answer.
Dig this, J: Random, anonymous people are the LEAST LIKELY TO LIE. They lack motive for such action. It’s amazing. If people don’t know you, don’t care what you think of them and aren’t interested in ripping you off, they will almost certainly tell you the truth. My advice to you: “trust them anyway” until evidential matter accumulates that they are dishonest. It’s an old CPA trick. We could call it “auditor’s manners.”
My name is Edward Hussey Binns. I’m a retired CPA (Virginia certificate 15834). I was very active in the Greater Washington DC Society of CPA’s from 1991 through 2001. My master’s thesis (completed in 1978 when I was 26) was quoted 5 times by Dr. Stephen Zeff in his award-winning 2000 biography of American accounting pioneer Henry Rand Hatfield. I was quoted about my hobby (!), nature tracking and native American spirituality, in section D of the September 25, 2001, Washington Post.
Charley Carp asks if I am a lawyer or a theologian. I’m a CPA and an unholy terror at tax research, an expert, which has made me a fierce opponent of de jure classes of citizenship. But no, I’m not a lawyer. My father was an engineer who became a lawyer. I’m just a bean counter. As for being a theologian, for the last ten years I have been giving lectures to young adults about their ethical survival in this tricky modern world. I call this the “urban coyotes program,” analogous to the startling ability of coyotes to adapt and survive in urbanizing north America. They have extended their range spectacularly in the last century. I don’t think my seminars have made me a theologian, but I’m not sure.
My ethics seminars have received newspaper coverage that is posted on the internet (see http://www.mapsgroup.org/urban_coyotes.htm ). I have completed a book that describes how I learned these survival methods. Currently, my graduates are reviewing and editing this manuscript for me. My “theology” boils down to five short statements and a scientific conjecture. Email me if you want to consider it as a theology or dogma. I have some seminar graduates who can tell you, confidentially by email, whether they find me trustworthy or not.
Slartibartfast points out that I misspelled pluralistic. Maybe that’s Freudian (I used to suffer from occasional infectious bronchitis that required an antibiotic regimen).
Hilzoy himself says this: “Whatever U. C. is in real life, s/he isn’t particularly good at mind-reading. I, for instance, am a liberal, but I do not believe in human perfectibility. (Though I think that each of us has an obligation to perfect ourselves — not others — as much as possible. But that’s like saying that we have an obligation to try to get a perfect score on an incredibly hard test.)” My response is that I am chary about mind-reading those I’ve only known through written exchanges. Though I suspect Hilzoy is a closet centrist, possibly even a separation-of-powers anti-utopian.
Modern liberalism was greatly boosted through it’s increasing influence in the UK during the 19th century, where it practically began as prison reform movement and a belief that those incarcerated could be turned around to be constructive citizens; so there’s a lot of historical support for my contention here. However, I guarantee to Hilzoy that the teachers unions are the heart and soul at the center of the Democratic party, and that they believe in perfecting human beings through social institutions such as the schools. Nay, they believe this “socialization” process is the prime function of schooling. The last thing they want is a nation of engineers and geeks. Their group opposition to “no child left behind” rises to the level of religious hostility. Aside from my seminars, I am not a teacher. And I do want a nation of engineers, otherwise we’ll get stamped into the ground in the 21st century by engineer-producing nations like India and China.
I wish I’d been able to tease Hilzoy into his stated approval or disapproval of classes of citizenship.
Modern “conservatives” have their civil religion, too – worship of authority. This is horrifyingly, clearly depicted by Nixon jailbird John Dean in his brilliant recent book, “Conservatives without Conscience.” It also provides a cogent explanation of the GoP betrayal of small-government and financial resonsibility as defining elements of the party. See also Kevin Philips’ “American Theocracy” on the dryrot that has wreckec the Republican party.
If any of you want to know more about me, write me or email me. I’m practically an open book. Except that I’m not going to fink on my professional colleagues and name names about who grew disgusted with DoJ after auditing their grants. The observations were made in confidence and remain so.
Edward Hussey Binns
Founder, Urban Coyotes
Urbancoyotesfounder@yahoo.com
408 N 17th Street
Hot Springs, SD 57747
Dig this, J: Random, anonymous people are the LEAST LIKELY TO LIE. They lack motive for such action. It’s amazing.
With respect, you’ve never really been on the internet, have you?
And hilzoy’s a she, btw.
Oh hey, I missed this:
However, I guarantee to Hilzoy that the teachers unions are the heart and soul at the center of the Democratic party…
I’m fairly sure that that’s no longer true (if indeed it ever was). I’m not saying they’re unimportant, mind, but that they’re “the heart and soul at the center of the Democratic party” is hyperbole at best.
and that they believe in perfecting human beings through social institutions such as the schools.
Assuming you’re using the standard definition of “perfecting”, this is false. If you’re using a non-standard definition, e.g. allowing people to realize their full potential through an increased awareness of said potential and the opportunities it affords them, you might be right… but then you’re using the wrong language.
Nay, they believe this “socialization” process is the prime function of schooling.
I’ll be generous: what definition of “socialization” are you using here?
The last thing they want is a nation of engineers and geeks.
Of solely engineers and geeks, probably not, and neither does anyone else. Of people who are intelligent, hard-working, creative, capable of rigorous thought, etc? [The cardinal virtues of geeks and engineers IME.] Damn skippy.
Their group opposition to “no child left behind” rises to the level of religious hostility.
Their opposition is incredibly hostile, yes, but have you actually checked as to why it’s hostile? It’s got nothing to do with misplaced religious zeal, it’s that it’s a bad program badly implemented, whose sole function seems to be the rape of public education in this country. I’m not averse to tests and standards and eliminating bad teachers and all that rot, but you can’t use a blunt instrument like NCLB and hope to accomplish anything useful — or, for that matter, anything constructive whatsoever. Educational testing is hard, and it’s hard for the same reason that education is hard: people are individuals, they learn individually, and their learning (especially in youth) isn’t amenable to a uniformized testing procedure until much higher levels.
In fact, there are enormous amounts of research being done into the social aspects of learning, the upshot of which seems — at this juncture — to indicate that the primary source of degradation to the American educational system isn’t the schools, it’s the fact that our society places so little actual premium on education. The vast majority of students “socialize” into various forms of anti-intellectualism, particularly in math — if I had a nickel for every complacent sigh of “I was never any good at math” I’ve heard, I’d be a damn sight better off than I am now — because that’s what’s considered socially appropriate for an American youth. Any progress that’s going to be made on the problem has to be made at all levels of education and all levels of society; by the time people are dropping out of high school or failing freshman calc, it’s too late.
[Also, does anyone remember the fairly thorough smackdown of the meme that America is lacking the number of engineers required to be competitive? I seem to recall someone posting it here but I could well be wrong.]
Also, does anyone remember the fairly thorough smackdown of the meme that America is lacking the number of engineers required to be competitive? I seem to recall someone posting it here but I could well be wrong.
I’ve seen it. Without looking, the synopsis: just doing an head-count, the US lags India and PRC badly in science and engineering. But we’re not counting the same things: in the US, we count engineers and scientists having four-year degrees; in India and PRC the total includes 2-year degrees. When comparing like things, at a per capita rate, we come out looking quite a lot better.
Ok, now I’ve gone and dug it out, so enjoy, and feel free to note where my from-memory synopsis went face-down in its cereal.
As far as quality goes, who knows? I’d guess that in some sense, our engineers have a less broad education than those in Western Europe, and probably are educated less rigorously in math and the sciences. I’ve worked with engineers from France, Great Britain and Germany, and mostly they’ve been very, very good. Granted, those were the ones good enough (or, well, ok: bad enough. I mean, think of the penalties: for a Brit, bad beer, and then they have to go back to those ridiculous refrigerators) to be posted overseas, but I think it’s something to consider.
Slarti: for a Brit, bad beer
Having just spent 10 days in Belgium, I’m more than happy to agree that generic British beer tends to be bad. But, having spent a fair amount of time in the US, I can definitely say that no one who was moving countries to get better beer would ever go to the US.
My name is Edward Hussey Binns. I’m a retired CPA (Virginia certificate 15834).
Thank you! It’s rare I meet self-proclaimed experts who’re willing to actually stand behind their claims.
Now I’m ready to suppose you aren’t just a troll. You say that Medicare is bankrupt, and I’m ready to suppose you’re likely right. Now I’d like to ask you about the bigger picture for medical care in the USA.
I am not a public accountant, and I have a story that makes sense to me. I want to see whether you substantially disagree.
There was a time when americans had a level of medical care we could mostly afford. Like, the doctor would make house calls in his buggy, and he was willing to be paid in chickens.
But our catastrophic medical care got more effective and more expensive, to the point that most citizens couldn’t afford it. Communities would have drives to pay for medical care for children’s cancer treatment or expensive surgery. We got catastrophic health insurance and the conviction that people couldn’t get by without insurance. A catastrophic medical problem was too expensive for most citizens to handle on their own.
Insurance companies branched out from catastrophic health insurance to routine things. Routine care and medicines. How could they break even that way? Pay a fixed rate and small co-pay and you’ll visit doctors more often, far more than you could pay for on your own. Well, but insurance companies have a lot of leverage about negotiating payment, and you don’t. So I expect their prices for your routine care are far smaller than yours would be — and prices for the uninsured go up to make up the difference. So now most citizens can’t get by without insurance for routine care.
But what with one thing and another, insurance costs have gone up to the point that most individual people can’t afford them. That isn’t just the insurance companies ratcheting up prices on services that people believe they can’t do without. It’s also vastly-improved far-more-expensive medical care. Pharmaceutical companies claim they spend tremendous sums bringing new products to market — not just for marketing and for scientific studies designed to prove their products are safe and effective, but also for the product development. That justifies the very high prices. And new surgical procedures are more and more advanced and more and more expensive. Etc etc.
We started with insurance that took steady money from their customers and paid it out in occasional big gulps. Then that turned into lottery-insurance that paid some people far more than they could ever pay in, and balanced it against healthy people who were willing to pay more in case they *might* need it. Now it’s turned into insurance that on average pays out more than the individual customer could pay. How can that business model work?
Well, it can’t. So businesses took up the slack. Corporate health insurance works better than individual health insurance. The company has more money than you do, and also the company has a lot more bargaining power than you do for insurance rates. Of course, with corporations bargaining for low insurance rates, individual rates rose in simple compensation so that individual insurance got even more unaffordable….
A lot of people didn’t get covered by corporate health insurance. But more than that, a lot of businesses are having trouble picking up the tab. Health insurance for employees is getting to be a bigger and bigger burden. So they arrange deals that provide less, and they hire more temps and part-timers who don’t get insurance, etc. As businesses get less and less able to pay the money that individuals can’t afford, we get closer to universal health insurance of one sort or another — because the government is bigger than most businesses and it has even more leverage.
Most of us want more medical care than we can pay for. And rather than settle for what we can afford we look for a way to get somebody else to pay it for us. The US government is the last round of that strategy, and it can’t do it either. Medicaid should fold first because it’s for poor and disabled people — the voters who’re least effective at complaining. Harder for Medicare to fold because old people have lots of time to lobby.
I say it isn’t just Medicare. Our whole approach to health care is flawed. As a society we want more health care than we can afford, and all the schemes we’ve made to get it are ponzi schemes of one sort or another.
And politically it doesn’t work to restrict people to the medicine they can afford. Like the old song goes,
“If health was a thing that money could buuuuuyyyyy…..
“The rich would live, and the poor would diiiieeeeee…..”
OT: Does anyone know how to get in touch with “Anderson”? Please drop me a line.
Having just spent 10 days in Belgium, I’m more than happy to agree that generic British beer tends to be bad.
Westvleteren Abt 12. That is all I have to say.
Thanks –
Billions in DoJ grants were poorly closed out from 1997 to 2005 — very incompetent — precedes Gonzales and even this administration — I think Gonzales climbed out on a rotten limb and danced to shake out the un-supine prosecutors, the branch broke, and when the bough broke, the cradle fell.
It’s a rotten, favores-playing, mismanaged agency? OK? Has been for years! Following is a published newspaper report, 1/3/07, from USA Today:
=====
Audit questions costs, use of Justice grants
By Kevin Johnson, USA TODAY
WASHINGTON Jan 3, 2007 — Thousands of Justice Department grants aimed at assisting police and local public-safety programs have been mismanaged, and auditors questioned $726 million in costs over eight years, according to an internal review released Wednesday by the department’s inspector general.
Federal auditors found a backlog of more than 12,000 expired grants that had not been properly “closed out,” meaning any legal, compliance or audit issues were not fully resolved. Money that could have been applied to other crime-fighting programs was left unused.
“If the grants had been closed out more timely, hundreds of millions of dollars in questioned costs could have been used to provide the Department of Justice with additional resources to fund other programs or returned to the federal government’s general fund,” the Justice Department’s Office of Inspector General concluded in its report.
Federal auditors reviewed $25 billion in grants managed by the Community Oriented Policing Services (COPS), Office of Justice Programs (OJP) and the Office on Violence Against Women (OVW) between 1997 and 2005, before concluding that Justice had “substantially failed” to ensure that grants were closed out appropriately.
The audit also found that more than $106 million was awarded to recipients that did not comply with federal grant rules, such as reporting how the grant money was being used.
A sample of these unidentified grant recipients revealed 37 were awarded 129 additional grants.
Justice officials in the three designated
agencies, the primary sources of grant funding to state, local and tribal governments, acknowledged delays in settling grant accounts.
In a written response, Assistant Attorney General Regina Schofield said the department established a system in August to track the grant “close-out” process.
The department said the $290 million, which
the audit identified as “questioned costs,” were appropriate reimbursements to grant recipients for costs incurred during the funding periods, Schofield said.
The COPS program, established under the Clinton administration to hire an additional 100,000 police officers, has been the target of past criticism for its grant management program.
COPS Director Carl Peed said in a written response that the office was conducting an agency-wide review of “all current close-out policies and practices.”
“The inspector general’s report states the grant-making components of the Department of Justice are doing a better job of working with grantees to make sure that grants are spent in a timely effective manner,” Justice spokesman Brian Roehrkasse said.
In recent years, police agencies, dogged by recent increases in violent crime and thinning ranks, have called for a reinvigoration of the COPS hiring program, which is being phased out.
link: http://www.usatoday.com/news/washington/2007-01-03-grantwaste_x.htm
‘OT: Does anyone know how to get in touch with “Anderson”?’
His andersonblog seems not to exist any more.
I “saw” Anderson on TBogg yesterday, but I don’t know where he’s hanging out full-time any more. Maybe Unfogged?
Kinda funny. Probably a hog on slow machines.
It’s a rotten, favores-playing, mismanaged agency? OK? Has been for years!
A very interesting observation, but that’s not really the topic under discussion.
The question in the case of Gonzales is not whether he abused his office to do favors.
The question is whether US Attorneys were fired to prevent active investigations of Republicans from going forward.
The question is whether Gonzales and others lied to Congress when questioned about this.
The issue is not mismanagement, political deal-making, or petty corruption. At issue are impeachable offenses, and possible violations of law.
Thank you.
Russell,
Grow up. It’s a rotten agency. It got worse under Clinton. Nobody said or did anything about it.
Then it got worse under “W.” Then Gonzales became A/G and bam! It blew up on him. I’m sure the Nixonian thinking went through his head that he wasn’t doing anything worse than the worst of his never-charged precedessors.
The only people who’ve been doing their homework have been the CPA’s (auditing the grants) and the press. No one has been listening. And when that happens things snowball downhill.
A public that doesn’t care about selective enforcement and doesn’t care about equality under the law is the problem. Gonzales is just a predictable result of that.
Ya know, back around 1978 an ivy-league attorney was elected A/G for one of the states and, a couple of weeks after that election (but before he took office), his WIFE received $100,000 in skimmed futures trading profits from a large brokerage firm in that state. That A/G later became governor. His wife proved that she stays bought and stays quiet when given money. She’s had a wonderful political future because of that.
Does that favoritism and slant regarding a prosecutor — toward acquiesence — with corruption — bother you? It doesn’t bother most Americans. It doesn’t bother anyone in her party right now.
Now is the time to get the public to start caring about it. Make an example of Gonzales. Make an example of Bush. You can say they’re only the worst in a line of bad guys, but they’re the ones we have available right now to oppose. Get Gonzales and Bush in jail, and then we can look at reform, and at keeping the next guys straight.
What’s the alternative? Should we decide that these particular bad guys aren’t that much worse than the last bad guys so we’ll do nothing?
UC: “It got worse under Clinton. Nobody said or did anything about it.”
Perhaps the most bizarre sentences I’ve read this month.
UC: “It got worse under Clinton. Nobody said or did anything about it.”
Perhaps the most bizarre sentences I’ve read this month.
He might be right. Maybe he was there watching it get worse, and he knew all about it, but he didn’t say or do anything about it at all. So you didn’t find out. Only now, after 6 years of Bush, does he dare reveal the truth.
Grow up.
Too late, pal, I already did. Thanks anyway.
Then Gonzales became A/G and bam! It blew up on him.
Gee, poor Alberto. Nothing but bad breaks for our boy.
His worst break will prove to be the day he hitched his wagon to Bush’s star. My personal prediction is that we will see about another week to ten days of “the President stands behind Gonzales” before Bush throws him under the bus.
Ya know, back around 1978 an ivy-league attorney was elected A/G…
Oh yeah, Clinton again. Is he still President?
Pardon me while I yawn.
Thanks –
Urban Coyote is like Bob McManus without the honesty, passion, or genuine concern for others, as nearly as I can figure out.
Most of you are missing the forest for the trees. My contention is that most Americans do not want honest and ruthless prosecution.
Thomas E. Dewey was a great prosecutor and never won the Presidency. Nixon was a great interrogator, and I believe this cost him the election of 1960. John Kerry was a D.A., was he not? He lost even after winning three TV debates.
Robert Kennedy, A/G from 1961 to 1964, loved wiretaps. He lost the Oregon primary in 1968 because he was asked about them (by Bill Lawrence of ABC news). After his assasination, the DoJ headquarters building on Consistitution Avenue was named after him!
John Mitchell, a rich lawyer who brought Nixon into his firm after RMN lost the Calfiornia governor’s race in 1962, managed Nixon’s 1968 campaign and became his A/G. Mitchell was so crooked that, as happened to Iago in Shakespeare’s Othello, his wife got fed up and told everyone the truth about him. Since my contention is that the public doesn’t want competent prosecution, my question is “What honest reform came out of the Mitchell A/G fiasco?” N-o-n-e.
Campaigns are expensive — the hacks and the fatcats pick the nominee nowadays. In the Democratic party, they panicked when Tsongas won the New Hampshire primary, asked themselves “who stays bought?” and put enough money behind Clinton to nominat him.
The Republicans panicked when McCain won in New Hampshire in 2000, asked themselves, “Who stays bought?” and flooded “W”‘s campaign with money and resources.
Did the Democratic backers want a tough A/G? Did the careerists in the FBI and DoJ? They certainly hated Janet Reno and did everything to make her ineffective.
Did the Republican backers of “W” want a good attorney general?
What am I hinting at? “Read Prince of the City,” a book about the federal prosecutors look into the NYPD special investiagitive unit. The cop who naievely tried to make things better was Robert Leuci. The federal prosecutor was Rudolph Guliani.
Read the book, it’s better than a James Bond novel. It was made into a movie with Treat Williams, directed by Sidney Lumet. The movie premiered in New York and bombed. The critics hated it. Guliani went on to write the RICO statute for the Reagan administration. Then he ran for mayor and lost. That should have been the end of his career, but crime got worse, the winning mayor wasn’t even filing his taxes, and Guliani won the second contest.
If I’m right, both parties will smear Guliani at supersonic speed over the next year. Noah Cross and the other fat cats that buy the White House for one party or another don’t want this guy in charge.
Read Prince of the City and then tell me that “things are better now.”
I’ve never worked with DoJ.
I’ve never been in the building.
I just know how to listen to people and say things that keep them talking.
THere are other feuding, rotten federal agencies… FEC (stripped of all money to do anything under Clinton)… Dept of Energy (which is really the classified research branch of DoD)… EPA (now “hopelessly politicized,” as Dr. Michael Crighton has said) and others.
“W”s biggest contribution to corruption was the successful argument to the Supreme Court last year locking out and essentially ending government whistle-blowing. (I have much more on that –email me). I have to say that that anti-whistleblower caper, and Gonzales’s naked favoritism, are simply copies of what “W” did as Governor of Texas, as the late Molly Ivins frequently pointed out.
The point man on all of this is ROVE, the chief bagman in Texas in the 90s. If the hearings don’t get to Rove to spark further investigations, nothing important is going to get exposed.
UC: If I wanted to read the opinions of an “expert” who raved on about a variety of topics at length and bluntly told all non-experts, “Don’t argue with me,” I’d check your blog out, assuming you have one. Some people, I gather, love being told just what to think by some authoritarian git.
I don’t.
Why are you here, instead of at your own blog, where you can insult your readers (if any) at will and not disturb the rest of us?
Dr. Ngo, his website is down. Tom Brown’s tracker school vouches for him.
http://trackertrail.com/more/links/schools.html
He’s trying to teach his special point of view, breaking down the irrational cultural responses by getting his followers to read things like Games People Play. From what I found about it so far, I tend to approve.
Looking charitably at what he writes here, his point seems to be that the status-quo-ante-Bush wasn’t all that great either. I can sympathise with that, I just don’t see how to use it.
Now that pretty much the whole country is fed up with Bush, it’s getting easier and easier to oppose him. But once he’s no longer a threat we don’t have a good plan worked out — and we can’t, since the country is mostly unified in opposition, not *for* anything in particular.
Kind of like with WWII when a lot of the world agreed that the first thing was to get rid of Hitler and think about the aftermath later, and we wound up with the Cold War.
Binns might not have any alternative in mind. He might be focused only on how to survive independently without being loyal to any particular corruptible larger group. There’s a place for that too. But of course the people who’re ready to lead or follow would want him to get out of the way.
Dr. Ngo said, “Why are you here, instead of at your own blog, where you can insult your readers (if any) at will and not disturb the rest of us?”
Because I’m not passionate (an insult from a previous post which I accept as a high compliment).
The folks who comment here mean well but they are too passionate. The proof of that is that this old bookkeeper should arouse your boredom or scientific curiousity. If I make you angry (an intense form of passion), it is very likely that someone else conned you once upon a time. With a game.
What J Thomas has said is right, I “might be focused only on how to survive independently without being loyal to any particular corruptible larger group. There’s a place for that too. But of course the people who’re ready to lead or follow would want him to get out of the way.”
But if you’re passionate, you’re vulnerable and not ready to lead or follow. This is an enemy that must be fought without emotion.
I’ll give you a fighter who’se doing this stuff right — another former prosecuter — Senator Schumer of NY — notice how he got Jim Webb to run in Virginia and how Mark Warner’s political team ran the election to a hair’s-breadth victory.
Nothing could be done –utterly nothing — unless the Democrats won both houses of Congress in November of 2006. They won, not brecause of passion, but because of strategy. And because independent voters (like me) didn’t split 50/50, as we did in 2004 and 2002. We are fed up with the kids dying in Iraq, beyond disgust with the torture, and burn with shame that hundreds of thousands of Iraqi civilians are dead under an horrificly misplanned colonial occupation.
Gonzales is a pawn in a gigantic struggle between the Titans and the Olympian gods. The fight will rage until January of 2009. The winner won’t be the good guys or the passionate guys, it’ll be the realists smart enough to make a deal with the Gorgons.
We need to keep very cool heads and speak with dull, blase tongues, as the English did in London during the blitz.
Listen to Murtha. Listen to Webb. If you can get her to talk, listen to Sandra Day O’Conner.
Your own passion can be your own enemy. Have you folks figured out yet that if you’d been unemotional and let Robert Bork on the court in 1987, none of this would have happened. None of it. Not a bit of it.
The folks who comment here mean well but they are too passionate. The proof of that is that this old bookkeeper should arouse your boredom or scientific curiousity. If I make you angry (an intense form of passion), it is very likely that someone else conned you once upon a time. With a game.
I think that tends to be true. But so what?
This is an enemy that must be fought without emotion.
Say you were talking about a baseball game, or a revolution, or whatever. You get a whole lot of people who show up partly for the chance to express their emotions. What should you do with them? Tell them to go home and watch it on TV? Tell them they’re useless? If you’re unemotional you’ll find what use you can make of them, and also find what use you can make of th emotional people on the other side. To the extent that people who aren’t thinking straight get to make the decisions we get random action that might be counterproductive. But you can’t very well get rid of those people.
The fight will rage until January of 2009. The winner won’t be the good guys or the passionate guys, it’ll be the realists smart enough to make a deal with the Gorgons.
It won’t be over in 2009 and there won’t be any real winners. We’re all bozos on this bus. We’re all losers at this game. We might be able to reduce the damage somewhat, and delay the worst.
Your own passion can be your own enemy. Have you folks figured out yet that if you’d been unemotional and let Robert Bork on the court in 1987, none of this would have happened. None of it. Not a bit of it.
I strongly doubt you’re right. It’s easy to make claims about what things would be like if they were different, but very hard to validate them.
Sometimes you can pull out one thread from the tapestry and claim that’s such an important one that the other threads don’t matter much. I doubt that Bork is that important. Here’s what I think is vitally important:
We’re going to run out of oil. And I think some rich people looked at that, and they figured that they wouldn’t be able to afford much of a middle class. Maybe they liked having a big middle class with giant freezers full of steaks and pleasure boats to zoom around on the lakes and such — I don’t know what they liked. But they saw they wouldn’t be able to afford it and they started working to restructure us into a third-world economy with a third-world government. It’s fine to have a bunch of fat and happy voters who get distracted about abortion and gay marriage and such, but they sure don’t want a whole lot of angry poor people to have a decisive vote.
At the moment there’s no real good alternative. Maybe we could throw the rich people out and live together in egalitarian poverty? Most of our institutions are designed for an energy-rich society with a large middle class. They won’t survive the change, and it takes a lot of resources to build new institutions. And the rich control those resources.
If we had cheap alternative energy maybe everybody would agree to rebuild things more-or-less the old way. Or even build something better. But without that, entropy will take its course. Things will run downhill to their new equilibrium, and if we dam one route they’ll take another.
The most important response I can see would be to get a president who would direct DOE etc to work toward cheap alternative energy. At the moment their first priority is that we don’t reveal anything that might help other nations make nukes. Actually publishing data that might help with cheap energy is not a priority. If we were to accept that nonproliferation is already dead, and that we as a society need cheap energy as a very high priority, maybe somebody would be able to actually get the details together and make it work. And then we’d have an alternative available, and we could look at how we want our society to work. Without that all we patriotic americans can do is try to slow down the inevitable, and hope that somehow something fundamental changes so we don’t have to lose.
Just a question:
“None” of what would have happened if we had been less passionate and let Robert Bork on the Court in 1987?
They won, not brecause of passion, but because of strategy.
These things are not mutually exclusive.
And because independent voters (like me) didn’t split 50/50, as we did in 2004 and 2002
I’m an independent voter. I didn’t split in ’04 or ’02. I didn’t split because anyone with an eye to see could see our current circumstance coming a mile away.
So, welcome aboard, and thanks for your vote in ’06, but what the hell took you so long?
Gonzales is a pawn in a gigantic struggle between the Titans and the Olympian gods
He knew the job was dangerous when he took it. He could have lived his life out as a prosperous Texas real estate lawyer, but he decided to play in a bigger league.
Gonzales is no innocent patsy.
If I make you angry (an intense form of passion), it is very likely that someone else conned you once upon a time
To the degree that you make folks here angry, I suspect it’s because every statement you make is delivered in the form of a boorish, self-aggrandizing lecture.
A number of folks who post here are people of some accomplishment and insight. They have some experience of the world. They’ve done things, and their comments here give ample evidence of that. They don’t need you to “open their eyes” or tell them “the way it really is”. They can figure that out for themselves.
Your comments here have been interesting and thought-provoking, and that’s great. But, speaking purely personally, I haven’t seen anything in what you’ve written that is particularly original or illuminating.
If people are annoyed with you, maybe it’s because you’re acting in an annoying way.
If you’re not winning folks over to your point of view, maybe it’s because what you have to say isn’t that convincing.
Thanks –
To the degree that you make folks here angry, I suspect it’s because every statement you make is delivered in the form of a boorish, self-aggrandizing lecture.
No, I don’t think so.
What do you do when you see that? Somebody comes in and says that all we need is a single-tax system and everything will straighten itself out, and hee’s boorish and self-aggrandizing about it? Don’t you just sort of shake your head and ignore him?
Some of the trolls get people angry because what they say is important. It’s like “My big bully friend can beat you up and take your lunch money and there’s nothing you can do about it, nyaaah nyaah!”. And Bush really can have you beat up and he can siphon away your nest egg and all you can do is vote against him and watch your vote not get counted. Of *course* it makes people mad.
But when it’s just some blowhard who clearly doesn’t know what he’s talking about, don’t you just write him off?
If there are people getting angry about this guy, it isn’t really him they’re getting angry about. He must be reminding them of something that matters to them. On the other hand I haven’t actually seen much anger here.
If you’re not winning folks over to your point of view, maybe it’s because what you have to say isn’t that convincing.
Sure. on the other hand, that sort of interaction can leave both sides with a stronger sense of self. He can feel firmer in his opinions for being rejected by those who will not see. There can be more than one purpose for that sort of thing.
Hey J Thomas –
My issue with the urban coyote, to the degree I have one, has to do with his persona and tone, rather than with the content of anything he has said.
He can feel firmer in his opinions for being rejected by those who will not see.
You know, if that is what floats his boat, more power to him. More grist for his ethics seminars, if nothing else.
It’s not my intent to be a wiseacre. I just think this line of argument is about played out. Or, at least, I doubt I have anything more to add.
Thanks –
If Bork were on the Supreme Court then the 2000 election would have been decided by the Florida Supreme Court not the US Supreme Court. If Bork were on the court, I simply cannot imagine that people would be in federal jails for years without trial, the Geneva Conventions would be thrown out, and the President could shoot down civilian airliners over US territory in peacetime.
A chapter in Bork’s book “The Tempting of America” dealt with “Chief Justice Taney and Dred Scott: The Court Invites Civil War.” This is a brilliant chapter. Taney’s decision led to the great American bloodbath. More Americans died in the Civil War than all of America’s other wars combined. Bork understands that the Supreme Court has more blood on its gavel than any other American institution. I find that understanding to be wise and respectable.
Bork was also Solicitor General when Nixon fired his Attorney General in 1974 (the last time DoJ completely melted down). So I respect Bork’s firsthand knowledge of how bad the federal justice system can be.
I agree with the opinion that this administration has been grabbing power and is dangerous to all of us in the long run. The democrats have seriously gummed up that executive power plan by taking both houses of congress (mostly because independent voters are furious about Iraq and didn’t vote 50/50 as they did in 2004, 2002 and 2000).
An independent voter myself, I never voted for “W.” I voted 3rd party in 1988, 1992, 1996, 2000 and 2004. My goal was to knock the winner under 50 percent and make him humble. I don’t vote for people because they are likeable or fuzzy or appeal to me. I voted for that bad-tempered banty-rooster Ross Perot twice, even though I didn’t like him — he was right about budgeting. I wanted to vote for Paul Tsongas, but he wasn’t nominated by the Democrats. There waws no way in hell I’d vote for the senior Bush, who’d started 3 (count ’em) wars of no strategic importance whatsoever.
The less said about 1996 (a drive in movie, “Elvis versus the Mummy”) the better.
Voting in Virginia’s 2000 primary, I pretended to be a Republican and voted for John McCain (then openly fighting Jerry Falwell and Pat Robertson). Someone else was nominated (“W,” who’se campaign was saved by running to a photo op with bigots like the students of Bob Jones University).
In 2004, I pretended to be a Democrat and voted for Wes Clark in the primary, but a hack who once smeared Bork to appeal to his base (John Kerry) was nominated instead, so I voted third party.
Why on earth bother to be annoyed or offended by me? I’ve said jurisprudence has been off kilter for decades, and you can see this for yourself by reading “Prince of the City.” You will also see, through reading that, the coming smear against Guliani from both the left and right. If the book bores you, or if the smear doesn’t develop, email me and demand an apology for wasting your time and being wrong. Even Russell will get an apology from me if he does this and is bored. But I don’t think you’ll be bored, you’ll be riveted, sand-blasted, by it.
I get this feeling that it’s the footnotes, the examples and the objective correlatives that are so annoying about me. Believe me, I can live with that.
Alberto Gonzales came to DC, got Potomac Fever, got greedy, and deserves everything that’s coming to him. My contention is tangential, that “DoJ is a long-standing example of mismanagement and favoritism.”
I agree that nuclear non-proliferation is a dead, moot policy. So the world is suddenly more dangerous.
Dept of Energy has squandered 30 years pretending to look for alternative energy while actually doing Defense research. I supported Ronald Reagan’s efforts to burn it down as a complete waste of federal money.
The world is NOT running out of oil (there’s about 900 billion barrels in shale in Colorado and about 1,800 billion barrels in tar sands in Alberta). The world is fast running out of CHEAP OIL, and demand keeps going up, especially from India and China.
I guess what we need are more American graduates in engineering and the hard sciences like physics. Stop federal grants for useless social science degrees and give interest free loans to science majors? Use this Iraq fiasco as a “Sputnik” to drive home that we develop new technology or else send our kids to die near oil fields.
The comment that we are not out of the woods in 2009 is probably correct.
I think this thread is about done. I’ve made some fresh enemies, but my central point –that DoJ has been a dangerous, arrogant, arbitrary, loose cannon for a long time — has clearly not been defeated.
I think a lot of this will become clearer over the next couple of months as we watch an heroically able federal prosecutor — Guliani — slog through the political quicksands. There are some very powerful interests from both parties who don’t want a competent, fair-minded prosecutor to rise to the top.
UC: “Why are you here, instead of at your own blog, where you can insult your readers (if any) at will and not disturb the rest of us?”
Because I’m not passionate (an insult from a previous post which I accept as a high compliment).
This makes no sense at all. Your lack of passion, whether praiseworthy nor not, does not entitle, much less oblige, you to wander over and insult others at random. If anything, I would think it would encourage you to keep to yourself – unless your (secret?) passion is deliberate rudeness, which I begin to think is the case. Were you feeling a lack of attention on your own?
I get this feeling that it’s the footnotes, the examples and the objective correlatives that are so annoying about me. Believe me, I can live with that.
Believe me, it’s NOT that. It’s your bloody arrogance, pure and simple. ObWi’s posting rules prevent me from expressing my opinion of you beyond that. (FWIW, I’ve written more footnotes in my life than you’ve had hot lunches.)
I’ve made some fresh enemies, but my central point –that DoJ has been a dangerous, arrogant, arbitrary, loose cannon for a long time — has clearly not been defeated.
You haven’t made “enemies” – merely a lengthening list of people who think that you are an arrogant boor. And your declaration that your point has “not been defeated” proves nothing, since many of us have simply not bothered to engage your so-called “point,” on the grounds that any such activity would only encourage you. DNFTT.
If this is your idea of a victory, I’d like to see what an acknowledged debacle looks like.
OK, you like Bork and you like Giuliani.
I misspoke, cheap oil is the issue. Expensive oil does us no more good than expensive alternate energy — we wind up with a third-world economy either way.
Training lots of engineers doesn’t help us much unless we have jobs for them. Unemployed engineers don’t help the economy any more than so many cabdrivers — unless they also have the skills to create valuable products and start businesses.
You say that Medicare is bankrupt. I say that our whole medical care system is approaching bankruptcy. Am I wrong? What should be done? Who can do it?
You hold the Supreme Court responsible for the civil war. But surely Lincoln and the union army had something to do with it. And the legislature, they voted for war and they were the ones that got in a deadlock they couldn’t find a way out of. And the abolitionists, and the slave-owners…. We could easily have had war without that SC decision. We were ripe for it.
I doubt you’ve particularly made enemies here. I doubt many people here care. You’ve presented some ideas rather clumsily.
You’ve voted for third parties when you knew they couldn’t win. What would it take for us to get IRV, so you can vote for third parties and still have your vote count? I’m convinced that would be good for the country, but how could we get it past the duopoly parties?
=== following is a long post to clear up questions from J Thomas====
J Thomas: OK, you like Bork and you like Giuliani.
Not only that, smearing Bork was a mistake by liberals that “blew back” and hurt them later (in the sense of close Supreme Court decisions that would have gone the other way if Bork were on the court). Were Bork on the SC, he would have developed the essentially universal respect that, say, Sandra Day O’Conner developed. BTW, Bork was Solicitor General of the USA once, and O’Conner was an assistant D/A. O’Conner was the ONLY experienced prosecutor on the Court in the 90’s and zeros.
The Senate democrats “won” when smearing Bork at the confirmation hearings. But, I’ve noticed, not coincidentally, that no democrat has gotten 50% of the vote for President since then – twenty years ago. And the long arm of poetic justice has placed more and more conservative judges on the court anyway, none of them as brilliant. Dare I suggest a tactical victory and strategic defeat was engendered there?
I like Guiliani because he’s the best prosecutor in American history. And we need a tough guy like that, because crime is rampant in America, especially white collar crime, very especially crime involving politics. I also like Guiliani because he’s the Republican candidate without the awful baggage of the Christian right utopian civil religion. I feel strongly that with RG as President, and a probable Democratic house and Senate, the constituted divided government would be better than either the left or right utopian civil religions running the lawmaking, executive, and judge-picking. (You can talk me into the cis-trans isomer of this, a Democratic president with Republican congress, as we had in Clinton’s last six years in office, but I don’t see how the Democrats can lose Congress in 2008 –and I trust myself on this, since I called 33 of 33 Senate races correctly in 2006, which wasn’t easy).
J Thomas: I misspoke, cheap oil is the issue. Expensive oil does us no more good than expensive alternate energy — we wind up with a third-world economy either way.
Yeah, and demand from emerging economies is going to push up energy prices. The Iraqi quagmire also pushes prices, particularly since demand is at 99% of worldwide refining capacity. The notion that the USA occupation of Iraq would lead to vast Iraqi production and export was a weird hallucination (by Cheney? That the Iraqis would accept Chalabi as their leader? That hasn’t happened and won’t happen while we are on the ground with our occupation).
J Thomas: Training lots of engineers doesn’t help us much unless we have jobs for them. Unemployed engineers don’t help the economy any more than so many cabdrivers — unless they also have the skills to create valuable products and start businesses.
Yes. My guess as a MBA/CPA is that the future good jobs and businesses in America are going to be heavily skewed toward engineering, high value-added products and services, and a computer-savvy workforce. A lot of them don’t know it, but “software” itself is an engineering specialty. It’s easy for engineers to get jobs right now, but if they wind up in a tight market with high unemployment, these are our backup math and science teachers!
J Thomas: You say that Medicare is bankrupt.
It is my expert opinion as a CPA an experienced government auditor that Medicare is hopelessly insolvent. Plain English: it can’t be saved. You’ve got to sunset it or allow it to die suddenly and unpredictably as a result of hyperinflation (in which the benefits are adjusted annually but the costs go up 10% a day). As a baby boomer, I will receive benefits that cannot be continued to the next generation. I’m a privileged class of citizen because of when I was born. Since I’m not a liberal, “That’s not all right with me.” The Obsidian Wings blog wouldn’t let me post link after link after link supporting the insolvency of Medicare. I think it sees links as possible spam or corruption. I have saved posts like the Controller General of the USA saying the USA is itself bankrupt and that Medicare is the 800 pound gorilla. Concord Coalition says the same thing. Etc. Etc. There were repeated warnings from Greenspan, Chairman of the Fed from 1987-2005. If you want this stuff, email me.
J Thomas: What should be done? Who can do it?
We should sunset Medicare and kill the poison snake of prescription drug benefits. The hospital industry and equipment suppliers are helping, amazingly, with optical-scope procedures that greatly reduce hospital time, discomfort, and, especially, cost. The pharmaceutical industry is making amazing progress – a cheap, effective preventative for Alzheimers would be a financial godsend, but it wouldn’t solve the problem. There are some ingenious pharmaceutical treatments for cancer that are about ten years away, but again, they’ll help but not solve this.
I’ve read that the average old American sucks $150,000 in federal Medicare money into the grave with him in the last 90 days of life. I believe it. It would buy us a couple of years if we were to rewrite the PROBATE laws to state that after death, an estate owes back all the Social Security payments and then all the Medicare payments to appropriate lock-box funds of the federal banking system before any estate is destributed, with criminal penalties for any intentional impoverishment within, say, 15 years of death. Old people don’t vote, so politicians can rob their graves and pass this legislation (which, incidentally, would kill remaining multi-generation businesses as well as the “family farm.”) But Molloch must be fed somehow and worshipped.
It would also help to take away the right to vote for parasites. If you get a Social Security check or Medicare benefit, acceptance of the benefit cancels any right to make the decisions about it, you have to admit you’ve become a drone in the hive.
Another thing that can be done is to disallow expensive procedures, even if the patient dies without the technology. Of course, we already have to do this with respect to long-term care. So there’s another class of citizens, elderly orphans. Even the present crop of politicians realize that the country can’t afford to help these people – it’s too expensive and the political reward is paltry. Better to leave them to miserable conditions and under-inspection while posturing and pretending to care about it. This technique can be called “eastern European health care.”
The alternative is to “balance” Medicare by allowing hyperinflation, which is the solution of both major parties, though they are too cowardly and dishonest to say it. The problem with hyperinflation is that it represents the normal path to power of fascism (as was true in Argentina, Italy and Germany – the exception was Spain, where civil war was resolved on the side of the generalissimo backed by fascists). I can live with the historical lesson of FDR, Truman, Johnson, Nixon and “W” being the handmaidens of Fascism in America, if that’s how America decides to resolve the problem (by doing nothing until it runs away beyond control – which has been the m.o. for decades by the Social Security trustees and Medicare committee).
J Thomas: I say that our whole medical care system is approaching bankruptcy. Am I wrong?
My guess is that you’re right. For an expert opinion, don’t go to a CPA or to an economist, go to a “registered actuary” or actuarial firm like Mercer, DW Simpson or other actuarial consultants. Ask them if the federal pension guarantee corporation can absorb the miscalculations of corporate health plans. My guess is that the answer is “no,” by tens of trillions of dollars. Look at General Motors and see the future of bankrupt under-funded health care. Again, Medicare is orders-of-magnitude shakier than this, an observation that infuriates those who worship a particular civil religion.
J Thomas: You hold the Supreme Court responsible for the civil war. But surely Lincoln and the union army had something to do with it. And the legislature, they voted for war and they were the ones that got in a deadlock they couldn’t find a way out of. And the abolitionists, and the slave-owners…. We could easily have had war without that SC decision. We were ripe for it.
I think the north and south were locked into a radar-assisted-collision for war after Dredd Scott. Lincoln was willing to follow the Constitution and allow the South to secede, but Congress forced him into war. The Confederate Congress – what a terrifying chimera that was! Unspeakable. When it was over, there was “Reconstruction,” almost as bad a horror as the current Iraqi colonial occupation. Wise heads did not prevail on either side. And the bloodiest hands were those of the Supreme Court judges in 1857 who forced free state police to return runaways to slave states (contrary to ECL and the rights of states to make and enforce their own laws, wrote Bork).
J Thomas: I doubt you’ve particularly made enemies here. I doubt many people here care. You’ve presented some ideas rather clumsily.
Guilty. I’m McCartney’s “Fool on the Hill.”
J Thomas: You’ve voted for third parties when you knew they couldn’t win. What would it take for us to get IRV, so you can vote for third parties and still have your vote count? I’m convinced that would be good for the country, but how could we get it past the duopoly parties?
The parties won’t give up their duopoly unless they are tricked or bribed into it (as the South got out of Reconstruction when the democrats won the presidency but traded it away in 1876 for an end of their colonial status). There were 4 candidates and 4 parties in 1860, so multiple parties are also synonymous with sectionalism and a threat of schism. So instead of starting with IRV, let’s start with the “Nevada system” which is to include another selection on the ballot: “none of these candidates.” Ideally, this ought to apply to referenda and initiative, also – yes means adopt, no means reject, and “none of these” means unplug existing law without implementing the initiative… I want you to think about this…. There is a logical reason not to vote unless this “none of these candidates” is a standard option. The voter should be able to say “Mu” or “null” or “none of the choices are adequately competent.” I want to see that first, before IRV, and the duopoly absolutely hates it. If we go to IRV, there should be a potential for an “absolute” vote, meaning “I’m voting for this candidate first-last-and-always” and that “absolute” vote should be “open” to the “none of these” choice. Now, yes, finally, we got us a fair ballot, and there’s no logical excuse not to vote.
I have a bitchy comment to make about the statement, “You’ve voted for third parties when you knew they couldn’t win.” Whoa! Are you sure? I voted for Perot twice, with my usual lack of passion, of course. Perot said pure, brute force demographics of the baby boomers would cause a budget surplus on a cash basis in the late 1990’s (it was on his flip-charts). Well, it happened. Now dig this, pay attention. When the Congressional Budget Office caught these receipts, it notified the Speaker (Newt Gingrich) that the budget would have a small surplus that year. Gingrich immediately called the White House and asked for, and was granted, breakfast at the WH the next morning with Bill Clinton. They sat down and talked about how to ladle out that cash. Bill Clinton was elected with 43% of the vote in 1992 and 49.25% in 1996. Billy Jeff wanted 50 percent and never got it. Because of people like me. We Perotista found out about that surplus and that breakfast and howled like banshees. The surplus never got spent. Perfect –exactly what I wanted. By paying down the debt, we kept our credit rating, which has stayed up even during a trillion dollar non-strategic war. Interest rates haven’t skyrocketed yet. Medicare’s Ponzi scheme hasn’t hit with full force yet. Because within recent memory we’ve been paying down the national accounts. So I got the responsible agenda I voted for. My candidate didn’t win, no. But the country did.
It would buy us a couple of years if we were to rewrite the PROBATE laws to state that after death, an estate owes back all the Social Security payments and then all the Medicare payments to appropriate lock-box funds of the federal banking system before any estate is destributed, with criminal penalties for any intentional impoverishment within, say, 15 years of death.
You really can’t make this stuff up. I just hope we don’t have to waste too much of the money we save on all the posthumous criminal prosecutions of people who failed to die with enough money. Ideally, they’d have to forfeit their lands to the State, which could then parcel them out as political favors. Maybe in combination with a title of nobility, if that’s not asking too much.
You really can’t make this stuff up.
I’m fairly sure it’s actually written by an automatic text generator. I call for a TIO thread to discuss this…
Okay, based upon his last comment we know that UC is anti-democracy, for keeping life-saving care away from patients, likes to make statements about historical events without backing them up, and admits to not being very coherent. So why is anyone bothering to reply to him?
Ummm, okay, this is spoofery, right? Anyone who receives government benefits should have the franchise taken away from them? Or have I misunderstood?
So why is anyone bothering to reply to him?
Because there’s like a gold mine of humor in there.
Steve, I guess there is that.
I call for a TIO thread to discuss this…
We live to serve
“We live to serve”
Hopefully, and hit a few volleys, as well. Otherwise, it makes for a dull spectator sport.
We live to serve
“Sorry, you are looking for something that isn’t there.”
We live to serve
LJ: Weird, but that new post doesn’t come up on the main page. I can only get there via the link above. Just me maybe.
Ummm, okay, this is spoofery, right? Anyone who receives government benefits should have the franchise taken away from them? Or have I misunderstood?
If you accept his first claims, we’re in a situation that’s no-win or at least very hard to win. We simply don’t have the money to fund medicare, and we can’t expect to raise the taxes to fund it. What can we do? All our choices are bad. He chooses obviously-bad ones, but all the others are obviously bad too.
If I’m right then it’s even worse than he says. He says we can’t pay for medicare. I say we can’t pay for our current level of healthcare for, well, anybody. We have employers paying for it now because they have more money than employees, and they’re staggering under it. Maximising their part-time/temporary workers so they don’t have to pay benefits. Getting health-care programs that look good on the surface but that disallow expensive life-saving treatment — sometimes — so you don’t really know whether your catastrophic healthcare is covered or not.
We’ve had various proposals for national healthcare. It looks to me like those might remove enough inefficiency from the private insurance scheme that we could fund Medicare for awhile before the fundamental insolvency of the whole system brings down the whole shebang.
The central problem here is that in trying to have the best medical system in the world, we have more expensive healthcare as a nation than we can pay for as a nation. We can’t afford what we’re doing, and right down the line we’ve done scams to get somebody else to pay for it, and each time the scam gets bigger it has worse consequences when it fails.
This UC guy has crazy solutions because the problem is so big and bad that it’s driven him crazy. There is no political solution. People will die without more government assistance than we can afford to give them, and meanwhile rich people can get treatment that most people can’t. Deciding which voters live and which voters die has become a political issue. Anybody who faces the problem squarely will come up with an insane solution because there are no sane solutions.
I choose not to face the problem. I claim we can find a way to deliver quality healthcare much much cheaper. We can offer quality hospice services, and we can offer entirely voluntary assisted suicide. We can put more emphasis on public health and on keeping people well as opposed to giving them expensive treatment after they’re sick. We can reduce contagion by infectious disease, and we can do large-scale studies to find out which lifestyle changes to encourage.
We can fix this without having to decide who to vote off the island. I strongly prefer my fantasy because if I looked at the problem face-on it would scare me sily.
“We live to serve”
I can’t find it anywhere.
The central problem here is that in trying to have the best medical system in the world, we have more expensive healthcare as a nation than we can pay for as a nation.
And what you’re getting for what you pay is the worst healthcare system in the developed world, and worse than some in the developing world.
There’s a lesson there somewhere. If you’re already accepting that you pay twice as much as anyone else in a developed nation and accept you have to get an inferior product, well, switch to one of the better methods, continue to invest twice as much, and you really might end up with the best health care system in the world.
I’m not sure, but I tend to think that if you happen to be a rich old man you can get the best health care in the world in the USA.
But if somebody else is paying for your healthcare then you take your chances.
This fits the american ideal that you ought to be able to have whatever you can pay for, and nobody else ought to take care of you unless they choose to do it out of the kindness of their hearts.
And in the 1980’s some rich americans got the idea that molecular biology etc might someday let people live forever — and it might be in their own lifetimes. Some of what the USA is doing makes sense if you assume it’s primarily designed to allow a few rich people to live forever.
We have a whole lot of retail medical technology that was designed as if cost was no object — and then everybody wants the best.
Ane we have an expensive insurance system that was designed as if the main point is to keep anybody in particular from being blamed when somebody doesn’t get the health care they think they need. It isn’t your doctor, it isn’t your bank account, it isn’t the government. It’s some clerk on the twelfth floor of a windowless building in Chicago that disallowed your claim, and you can appeal, and then you can sue, and it isn’t anybody’s fault that you can’t switch insurance companies at this point, and so on. It’s an expensive system but it does a good job of diffusing the blame.
OK, we live to serve, but only after screwing up your dinner order. Will try and give you a comp dessert.