September 1, 2009

Federalist Paper 24: Nothing More Than an Experiment Upon the Public Credulity

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This Paper is intended to answer a specific objection advanced by the Anti-Federalists:  that the 1787 Constitution did not provide adequate safeguards against the existence of a standing army in peacetime (an outdated objection in our day and age).  Hamilton’s counter-argument, in a nutshell, is that we don’t have to worry about the President using the army to undermine the remainder of the government and to usurp kingly power, because it is the legislative branch who keeps the military’s purse strings.

What I found most interesting about F24 was Publius’s sizeable digression into what he saw as the Anti-Federalists’ dishonesty in advancing this objection to the Constitution.  In some of the strongest language we’ve seen yet, he wrote that the Anti-Feds’ argument regarding the standing army “was nothing more than an experiment upon the public credulity, dictated either by a deliberate intention to deceive or by the overflowings of a zeal too intemperate to be ingenuous.”  Later, he rants that the Anti-Federalist position results from “the dishonest artifices of a sinister and unprincipled opposition to a plan which ought at least to receive a fair and candid examination from all sincere lovers of their country!” (exclamation point original!)

222 years later, these bitter criticisms seem equally applicable to much of the public discourse.  Sarah Palin has been offering rhetoric about “death panels” in connection with the current health care debate – and her stance is being condemned even by her fellow Republicans.  Are her remarks the result of “a deliberate intention to deceive” or “the overflowing of a zeal too intemperate to be ingenuous”?  And the nonsensical flap over President Obama’s citizenship and religious persuasion – seems like a great example of  “an experiment upon the public credulity.”

Certainly both the 2009 rhetoric and the 1787 rhetoric appear to be directed at manipulating the public’s fears (although it is not always obvious to what end – accumulating more power, I guess?).  The Anti-Feds in 1787 were, according to Hamilton, trying to get the public to freak out by insinuating that the President would have sole command of a standing army on American soil, which he would likely use to oppress the people and bend them to his will.  Similarly, Palin has been trying to get folks to believe the Democrats’ health plan would force doctors to engage in triage and ultimately refuse to give health care to the very weakest, most helpless members of our society (everybody has two grandmas, after all, and no one wants the government to pull the plug on them!).  Likewise, those who constantly repeat their refrains about the President’s citizenship and alleged Muslim ties are trying to take advantage of the fears created by 9/11 and people’s general fear of other people unlike themselves.

 

August 25, 2009

a quick thought, a drawing, and someone’s cartoon

Posted by Andrew under constitutional law | Tags: , |
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the quick thought:

I’m currently leafing through a book that argues our arguments over Constitutional interpretative methodology are a regrettable distraction from “substantive reasoning in support of one interpretation or another.”  The little book ,Keeping Faith with the Constitution, is the American Constitution Society’s vision of Constitutional interpretation, as delivered by Goodwin Liu, Pamela Karlan, and Christopher Schroader; and it serves to unveil a new phrase: Constitutional fidelity.  ”Keeping faith” might mean sticking to plain textual meaning, like the requisite age of a President; or, it may mean adapting broad text to context, like including non-physical searches within the scope from which we are protected in the Fourth Amendment.

Without going any further with the book, though (as I’m only a few pages in), I bring it up now because it got me thinking about interpretation.  Yes, the book urges against the endless loop of debate on interpretations – but it is a book about interpretation, so we can be forgiven to indulge a bit here on OR.

I started drawing out a diagram today – I’m thinking out loud whether dedication to original intent and dedication to text are two extreme positions between which most judges reason.  We will re-work this based on comments.

interpretation diagram

All that aside, this showed up on my google reader today:

toothpastefordinner.com
toothpastefordinner.com

 

August 19, 2009

more jumping jacks for the energetic government

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A few days after posting on Hamilton’s vision of an energetic government in F23, I listened to an archived debate from the Constitution Center in Philly. John C. Bogle and Peter J. Wallison offered opposing views on financial industry regulation; and in the mix, Bogle quoted a David Brook’s column from the Times that, in turn, evoked our energetic government. So I’ll do the same; perhaps these segments from Brooks’ column can help us get at what Hamilton envisions in F23:

There are two major political parties in America, but there are at least three major political tendencies. The first is orthodox liberalism, a belief in using government to maximize equality. The second is free-market conservatism, the belief in limiting government to maximize freedom.

But there is a third tendency, which floats between. It is for using limited but energetic government to enhance social mobility. This tendency began with Alexander Hamilton, who created a vibrant national economy so more people could rise and succeed. It matured with Abraham Lincoln and the Civil War Republicans, who created the Land Grant College Act and the Homestead Act to give people the tools to pursue their ambitions. It continued with Theodore Roosevelt, who busted the trusts to give more Americans a square deal.

…

Members of this tradition are Americanized Burkeans, or to put it another way, progressive conservatives.

…

The Hamiltonian-Bull Moose tendency is the great, moderate strain in American politics. In some sense this whole campaign was a contest to see which party could reach out from its base and occupy that centrist ground. The Democratic Party did that. Senitor Democrats like Robert Rubin, Larry Summers and Jason Furman actually created something called The Hamilton Project to lay out a Hamiltonian approach for our day.

F23 is about the minimum power that government needs in order to do those things that it appropriately ought to do: the “necessity of a Constitution, at least equally energetic with the one proposed, to the preservation of the Union, is the point at the examination of which we are now arrived.”

So Brooks ties together energy and limitation in his third (and, to his sadness, unheard) political tendency.

I don’t get that pairing out of Hamilton’s F23; indeed the essay seemed quite removed from a call to limits. To be fair, though, I doubt Brooks is basing his Hamiltonian-Bull Moose 3rd stream on F23. So we shall have see whether Brooks rightly describes Hamilton’s understanding of an energetic government as we go through future Federalists.

I wonder if Hamilton’s governmental energy is more synonymous with action or vigor. Action, as in activity, doing things, taking on responsibilities. Or vigor, as in a quick jolt, an ability to act quickly, effectiveness. I can imagine the former weeding out, and swallowing up jurisdictions; while I can imagine the latter possibly pairing with limits.

 

August 6, 2009

The Maniac, Maniac on the Convention Floor (Federalist 23)

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Lest, by the 23rd installment of pro-Constitution newsprint, the reader grow dull-eyed, Hamilton awakes any sleepers with a new title urging an energetic government. The Necessity of a Government as Energetic as the One Proposed to the Preservation of the Union.

I like that adjective. Civics classes echo with “powerful” and “centralized,” but I don’t remember hearing “energetic” to describe federal government, in a good light nor dimly. Indeed, the government staff employee union’s PR rep would do well to pick up the moniker in defense against the paradigm of bureaucratic do-nothing laziness.

In any event, Hamilton focuses the essays, with F23, on government power, and proposes three clear questions for deliberation on the subject: (1) what ought the federal government provide (2) how much power is needed to provide it, and (3) upon whom ought that power operate?

Federal government, writes Hamilton, provides for defense, peace (ie, stability against internal riots and revolts, and against external attacks), interstate and foreign commercial regulation, and foreign relations.

Hamilton frames the question of power as he does because he wants the answer to #2 to flow from #1. Rightly, it seems to me, he stresses throughout the essay that the allowed extent of power ought relate to the goal for which power is granted. So, I initially thought Hamilton would urge a spectrum of power relative to the nature of the particular goal.

For the goal of common defense, the federal government needs power to raise armies, build fleets, and govern and provide for both. To do this, the federal government needs, writes Hamilton, limitless power. Also, the government needs that power to operate over individuals, rather than state and local governments; … “we must discard the fallacious scheme of quotas and requisitions as equally impracticable and unjust.”

So, in my notes I drew a two-sided arrow that I figured would represent the sliding scale of power-quantity, with “limitless” at one pole.

But, all of Hamilton’s goals of federal government turned out to require limitless power. “The government of the Union must be empowered to pass all laws, and to make all regulations which have relation to them. The same must be the case in respect to commerce, and to every other matter to which its jurisdiction is permitted to extend.

So much for my power diagram.

 

July 29, 2009

Federalist Paper # 22: Ten Things I Hate About the Articles of Confederation, Part II

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We left off a few months ago* with F18, F19, & F20’s romp through world history, which served to explain how weak federations of small sovereigns always tend fail as effective governments. The next two Papers are Publius’s gripe list about the United States as constituted under the Articles of Confederation (AoC). As my colleague Andrew discussed assiduously in our last Federalist post, F21 contains three complaints: (1) the AoC provides no way for the federal government to enforce its laws against the states; (2) in the case of either homegrown insurrection or foreign invasion, the AoC does not oblige, or indeed permit, other states to come to the assistance of the beleaguered state; and (3) there is simply no efficient or fair way to split up the costs of governing among the existing states, so the AoC necessarily fails at it.

F22 lists the following additional gripes: (4) the USA under the AoC lacks the power to regulate commerce, so no foreign countries want to enter into trade agreements with us; (5) the power to raise a federal army exists in theory but is way too weak; (6) the states have equal suffrage even though they are very different in size, wealth, and power; (7) there is no federal judicial power, leaving the country subject to the vagaries of 13 state supreme courts; and (8) the AoC was approved by the states, but never by the people directly. It is on this final point that F22 waxes most eloquent:

“[There is a] necessity of laying the foundations of our national government deeper than in the mere sanction of delegated authority. The fabric of American Empire ought to rest on the solid basis of THE CONSENT OF THE PEOPLE. The streams of national power ought to flow immediately from that pure original fountain of all legitimate authority.”

Here we have the strongest statement yet of a major (maybe even the major) Federalist theme: that sovereignty should flow directly from the people — not from the people to the states, and only then on to the federal government. This was the whole point of F18-F20, which discussed examples from both ancient and modern history in which attempts to form a coalition of governments failed miserably. (Incidentally, I think it is really funny that, in four of the last five Federalist Papers we’ve discussed on here, Publius uses the word “imbecility” to describe governments of governments.)

Wonder what Publius would think about the United Nations? Or the World Trade Organization? NATO? The EU? The list goes on . . . . Certainly these bodies suffer from many, many, many of the defects Publius deplores. But arguably, they are not all TOTAL disasters. Has the world changed so much since Publius’s time, that his concerns no longer encompass the whole story . . . or has he just been wrong all along?

* One cross-country move, one job change, and one bar exam later, Lily is finally jumping back into blogging The Federalist! Thanks to APO for keeping the flame alive!

 

January 27, 2009

Sanction-monious Hamilton; F21

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Federalist 21 provides our first (or one of the first) direct attack(s) on the Articles of Confederation; namely, the Articles’ failures to establish sanctions against disobedient states or a federal guaranty, and the Articles’ system of states’ contributions to the treasury via quotas.  Perhaps we’ll come back to the guaranty and tax issues.  For now, though, let’s think about sanctions and Article 2 of the Articles of Confederation.

With the buildup to the direct attacks on the present system, I wondered how the Articles would be introduced to the Federalists audience.  It’s interesting, then, that Hamilton unceremoniously brings AoC Article 2 without a general introduction to the Articles.  To be sure, his readers lived under the Articles and needed an introduction as much as we do to the Constitution.  Still, with the history lesson that preceeded this essay, I thought we might get something.   Rather, Hamilton slides in this quote:

Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.

Hamilton brings out Article 2 while bemoaning the inability of states to sanction other states that rang on agreements.  Indeed, he suggests, without mapping it out, that this passage is the sole potential source (“by inference and construction”) of authority for states to “use force against delinquent members.”  On a hunch, the argument goes like this: the Articles of Confederation do not delegate authority to the United States (central government) to sanction disobedient states; thus, the “power, jurisdiction, and right” to enforce interstate agreements lies with each state.  Hamilton, though, presents the notion in order to dismiss it – apparently states were not  sanctioning each other pursuant to the AoC.  

 

The Articles’ have an image problem of being chili without heat – that is the basic setup to any Constitutional history of law course.  Apart from the truth of the presumption, I’m curious if it was a given for Hamilton’s audience.  Or, did the Federalists win a PR battle that set the paradigm for US history courses to come.  

 

Putting aside F21′s argument, I appreciate the essay for reminding me of the similarity between the above noted the Article 2 of Confederacy and the 10th Amendment.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Hamilton’s quick, albeit dismissive, evocation of Article 2–that it can be interpreted, that an important power or right can be teased out–is familiar to today’s reader.  We are quite used to agreeing or disagreeing with the Court’s expansive or restrictive interpretations, often of the initial amendments capped with Number 10.  As such, Hamilton allusion to what I suppose was an existing debate about the boundaries of Article 2′s scope has me wondering: how much pre-Constitutional debate did we have that mirrored Constitutional debate (scope, interpretation, textualism…was there debate over a ‘living’ Articles of Confederation)?

 

April 20, 2008

applicability

Posted by Andrew under constitutional law | Tags: |
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A few days ago, the Court gave an opinion on whether a State program of capital punishment was unconstitutionally cruel and unusual. Prior to that, the Court listened to arguments about a District’s gun regulations that may, or may not, run afoul of the second amendment. I thought it’d be fun to think aloud about how two amendments written specifically about the Federal government came to be relevant to state governments.

The Constitution demands that states can’t inflict cruel and unusual punishment. I only know that, of course, through the hearsay of the Court’s telling me what the Constitution says (which is fine, being that the Constitution is happily not a precise instrument). The Constitution unambiguously tells the Federal government to stay away from cruel and unusual punishment. It ambiguously tells the states to respect the basic rights of all citizens, to refrain from arbitrary deprivations, and apply laws equally. So:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

and that

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Before that 14th amendment, the latter here, a person had no reason to talk about the former 8th amendment unless it was the federal Congress, to whom the words were addressed, doing the inflicting, imposing, or requiring. The first ten amendments, limiting he power of the new federal government, were ratified in 1791. Three score and seventeen years later, our Congress brought forth some hefty structural changes to the Constitution, with the proposition that those amendments could limit state powers.

(more…)

 

July 31, 2003

Lawrence v. Texas and marriage:

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a little delayed, but I saw this as I was shifting through my computer- thought I’d post it here for kicks…

The ruling:

Many commentaries are critical that Justice Kennedy failed to clearly articulate: 1) whether there is a fundamental right to consensual sexual activity, and 2) the standard of review applied (strict scrutiny or rational basis). Thus, the critics contend that it is difficult to find the guiding law from this case. I do not agree—there are clear principles in the case:

1) The case rules on Substantive Due Process grounds. The plaintiffs are “free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution.” See beginning of § II. While Justice Kennedy does not go the typical route in Substantive Due Process (finding a fundamental route and then applying strict scrutiny), it is not clear that his chosen route is inadequate. Rather, Kennedy establishes consensual sexual activity within the boundary of protected privacy under the precedents of Pierce v. Society of Sisters, Meyer v. Nebraska, Griswold v. Connecticut, Eisenstadt v. Baird and Roe v. Wade.

2) Bowers v. Hardwick is overturned. This is the precedent case that contained many similar facts to Lawrence. There, as here, police officers observed two adult males engaging in intimate sexual conduct with each other. In Bowers, the court upheld a Georgia sodomy statute. Finding no fundamental right to engage in sodomy, that court applied rational basis review—considering historical roots and the legislature’s valid enforcement of morals.

a. In Lawrence, Kennedy calls into question the historical roots relied upon in Bowers. He also makes it clear that morality alone will no longer serve as a legitimate government purpose in creating legislation. See pg 7 of my printout.

3) The court’s ruling is limited in scope: the case involves “two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle.” This limitation—namely consent and adulthood—is an important to the established precedent on privacy law.

a. Kennedy gives an extended list of what the case is not about; in summary, it does not involve minors, persons that might be injured or coerced, prostitution, or whether the government must give formal recognition to any relationship that homosexual persons seek to enter. From his list, we can see that legislation with purposes including public safety or legal relationships remains valid under Lawrence. What Kennedy says in this opinion is that the court can find no purpose in the Texas sodomy law other than morality. As such, the law cannot survive in light of it’s invading the liberty interest involved.

While this case should certainly make invalid the existing North Carolina sodomy laws, it has no direct on marriage. This is made clear by Kennedy’s insistence that the case does not involve a government’s legal recognition of relationships. However, note Ms. Grossman’s argument in FindLaw that the interest in marrying a person of the same sex is at least as strong as the interest I intimate sexual relations. She notes that it will be strange if the court recognizes a right to all forms of intimate relations without recognizing the right to a “permanent, legally sanctioned” relationship.

I disagree with her reasoning because at center of Lawrence is a privacy interest—and marriage is not a private affair. It is a legally recognized institution, and thus, appropriately in the public sphere. Kennedy argues that the government has no place in the bedroom of consenting adults engaged in non-harmful activity. The liberty interest that protects this conduct is in no way analogous to the liberty interest in marriage. There, a couple seeks a formal recognition of their relationship that extends beyond the private sphere. Indeed, one might say marriage is the public manifestation of a private relationship. Because government is the entity that deems a marriage valid, it is necessarily involved. Conversely, Kennedy could find no legitimate reason for the government’s involvement in adult, consensual sex.

It is my opinion that another case is needed to bridge the gap created (or recognized) by Lawrence between private and public. This will be either an Equal Protection case (marriage laws discriminate against gay couples) or a Substantive Due Process case that finds a fundamental right to marriage extending to gay couples.

 

July 24, 2003

Posted by Andrew under politics, Uncategorized | Tags: , |
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Go listen to Nina Totenberg’s story on yesterday’s vote in the judiciary committee on sending Pryor to a vote- and explain to me why I shouldn’t think the GOP are a bunch of thugs.

This commercial sent out by the GOP, declaring that the Democrats are discriminating against Pryor because of his Catholicism is especially distressing, because of the layers of intellectual dishonesty involved. Listen to Totenberg’s story to see why.

The commercial, put out by a group supporting President Bush’s judicial nominees, showed a locked courthouse door with a sign reading, “Catholics need not apply.” During Pryor’s confirmation hearings, Senator Hatch, asked him to acknowledge that his beliefs stemmed from his strict Catholicism. The beliefs being those of anti-abortion and favoring policies to further the role of Christianity in public life. The GOP ad bluntly says that the Democrats, because of Pryor’s Catholicism, are blocking the nominee.

Hmmm…the GOP and that ‘technically true’ thinking: Here, the GOP is asserting a discriminatory effect- because Catholicism doctine opposes abortion, and becasue Democrats traditionally oppose anti-abortion judges, the Democrats oppose Catholics. Pretty nifty reasoning, ain’t it?

Of course, that’s B.S. Democrats don’t oppose anti-abortion judges, they oppose judges that rule on their own principles rather than the principle of law. One’s beliefs regarding abortion should never dictate their role as judge- and any Democrat that turns down a nominee on that belief I will disagree with forever. However, it is certainly right to have concerns about a judge who was nominated largely because of his anti-abortion views- and with the expectation that the judge would rule in accordance with those views. Why, it is perfectly obvious to wonder, is this belief such a qualifying criteria in the selection of judges? Namely, does the nomination of judges who despise Roe v. Wade arise out of an academic agrement that that decision was a mess- or does it arise out of a mutual hatred of abortion, and an expectation that the judge will do whatever possible to end abortion? If this is the case, the judge is an activist who cares more about his agenda than about the particular case before him.

Further, as was mentioned in the comittee meeting, Cathlolics oppose the death penalty. And even though Antonin Scalia gave a speech once arguing that those opposed to the death penalty should perhaps not be judges, I submit that such judges make perfectly wonderful judges to the extent that their belief does not capture their legal mind. Is Scalia anti-Catholic for his remarks? Seeing that he is a Catholic, I doubt it. I’m guessing that he is arguing that the anti-death penalty belief causes judges to slip into activist roles. Much is similar to anti-abortion judges. The Dems should have Scalia explain all this to the GOP.

Perhaps I should summarize my complaints as such: it is too simplistic to “wave the bloody shirt” of discrimination in this circumstance. Or more directly, it is a corrupt deception.

Note: I am being overly simplistic on the Scalia/Catholicism/death penalty discussion. For greater depth, see the forum in the National Catholic register here, and here.

 

June 27, 2003

Suttons and George

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Late Edition quotes of the day

Today’s quotes arrive from the very same source- the “Breakfast Table” email conversation between Walter Dellinger and Dahlia Lithwick. Dellinger is a lawyer and local law professor, Ms Lithwick is a Slate editor.

First to Dellinger…and this is purely local favoritism on my part:

I did head down to Sutton’s Drugstore yesterday (a Chapel Hill landmark since 1923) to see what the regulars at the breakfast counter were talking about, but, by the time I got there, almost everyone had eaten and left for work. George Tomasic, our barber, and realtor Jim Crisp, who were leaving as I arrived, offered to tell me what everybody said at breakfast so I could write it up as if I had been there. I was tempted, but then I remembered that whole New York Times fiasco. I’d hate to see my brief career in journalism come to such an early and ignoble conclusion. (“Exposed Breakfast Table Essayist Is Toast!”�New York Post)

(good to see ole Sutton’s Drugs getting full fledged e-props.)

And here, from Ms. Lithwick’s responding email:

But instead we have Justice Kennedy, writing for the majority, using the broader substantive due process rationale (you may remember it from such favorites as Roe v. Wade) to carve out a zone of privacy for consensual gay sex! O’Connor declined to overrule Bowers, a decision in which she had joined the misguided majority, but still sided with the majority today to invalidate the Texas law, on the Equal Protection grounds you outlined this morning. My goodness, could Kennedy and O’Connor have had some sort of conversion�some Dickensian visitation? Did the ghost of Justice Warren appear to them in the night, terrorizing them with visions of an apocalyptic America where strict construction and originalism blight the land?

 

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