Monday, December 31, 2012
Monday, November 12, 2012
James MacGregor Burns' newest book, Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court, will not increase his reputation.
The basic premise of the book is that the Supreme Court invented the power of judicial review out of whole cloth back in 1803, in Marbury v. Madison, without any grounding in the actual Constitution.
It is true that the Constitution does not explicitly grant the courts the power to strike down laws which violate its rules. But it does provide that "This Constitution, and the laws of the United States which shall be made in pursuance thereof . . . shall be the supreme law of the land . . . ." (Article VI.) Note that it only refers to laws which have been made "in pursuance" of the Constitution.
A contemporaneous analysis by Alexander Hamilton, a member of the Constitutional Convention which drafted the present document, can be found in The Federalist Papers, #78:
"The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of the courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing."
The Federalist Papers were written by Madison, Hamilton, and Jay and published under the penname "Publius" in the newspapers of New York, attempting to convince New Yorkers to ratify the proposed new Constitution. They are considered a very authoritative indication of the intentions of those who drafted the Constitution.
The very first Congress elected under the new Constitution proposed what became the Bill of Rights as the first 10 amendments to the new document. They did this to satisfy critics who opposed ratification because the original document did not have a bill of rights. And the very first Amendment, which set the tone for the whole set of amendments, states that "Congress shall make no law ...." doing a whole lot of things.
What possible purpose would have been served by adding this language to the Constitution if the courts were required to enforce anything enacted by Congress no matter how flagrantly it came into conflict with the Bill of Rights?
Judicial review is so firmly established in the clear language and intent of the Constitution and in over two centuries of precedent that Burns is reduced to a desperate recommendation for how to put an end to it. He wants the President Obama to defy the Court the next time it makes a decision he doesn't like and announce (in effect) that "John Roberts has made his decision; now let us see him enforce it." (My wording, modeled on President Jackson's famous fight with Chief Justice John Marshall, not Burns'.) The president would say that he would respect judicial review only if its supporters formally amend the Constitution to explicitly provide for it. Of course this would take years to do.
Obama, who knows a lot more about constitutional law than Burns does, is highly unlikely to follow this recommendation. But I am not sure that Burns himself would care for the uses to which his own logic could be put if we elect a right-wing president sometime.
Such a president could, with much more grounding in the language and history of the Constitution than Burns has, proclaim that Roe v. Wade, the original abortion rights decision, did not have a legal leg to stand on. Our right-winger would announce that Roe v. Wade would no longer be enforced unless abortion advocates formally amend the Constitution to explicitly provide for it. Again, this could not be done overnight, if at all.
Burns needs to remember that we need to be cautious when we articulate principles, since they have a way of coming back to haunt us.
Monday, October 15, 2012
Sunday, September 9, 2012
Thursday, July 26, 2012
Tuesday, July 10, 2012
Sirota argues that ignorance doesn't mean people are stupid. Rather, they have "logically concluded that the information no longer matters." This, he opines, is because "elections are bought and paid for by huge money, ... presidents of both parties ignore the basic tenets of the Constitution, ... the lifetime-appointed judiciary spends much of its time helping Big Business tilt the law against the population, and ... the major parties resemble each other on most policies."
Sirota concludes: "Many Americans so accurately perceive the fraud being perpetrated on them that they have decided to simply tune out."
But public ignorance can be explained on general principles, without relying on any of Sirota's dubious explanations.
At some point, the costs of seeking further knowledge may outweigh its benefits, and at this point, it becomes rational to stop seeking extra knowledge. It is not paradoxical to speak of a "principle of rational ignorance."
This principle has special applicability to politics. Each voter is one among thousands or millions, and can often be outvoted. As a consumer, this same person is one of two parties to every transaction, and because private transactions require mutual consent of both parties, the consumer actually has a veto over every transaction. Knowledge gained about matters subject to private decision -- what car to buy, whom to marry, which church to join, which doctor to go to -- is therefore worth more to the individual than political information costing equal time and effort to acquire. Although many people overdo "rational ignorance" about politics, it is easy to see why the quality of public opinion is not very high.
Sirota lambastes "huge money" but ignores evidence that elections are often won by the lower-spending candidate and that we have had no presidents named Rockefeller or Perot. He ignores the fact that candidates often raise more money precisely because they are expected to win. He cites no examples of presidents ignoring "basic tenets" of the Constitution.
Sirota's complaint about the parties resembling each other suggests that he doesn't understand the logic of competitive elections. Of course they do, precisely because both must appeal to voters whose views cluster around the middle of the road. When a party nominates people too far from the middle (examples: Goldwater, McGovern), they lose big.
When I was a student at Willamette University, a group of us met with Gov. Mark Hatfield. I still remember his comment when asked about the belief that politicians are all crooks: If people believe that, said Hatfield, the honest won't seek office and only crooks will do so. To the extent readers fall for Sirota's cynical analysis, which suggests we are fools if we don't tune out, it will render us even less able to vote intelligently in our own interests than we are now.
Paul F. deLespinasse, who lives in Corvallis, is professor emeritus of political science at Adrian College in Michigan. His college textbook, "Thinking About Politics," which attempts to teach students how (not what!) to think about politics, is available online for free reading at www.deLespinasse.org . He can be reached via this same website.
This piece has appeared in the (Portland) Oregonian.
Friday, June 29, 2012
- I'm asking several people for feedback on this, because I reached these conclusions after a conversation with just one person. I remember 20 years ago I decided to go to graduate school after a conversation with another student and didn't discuss it with anyone else. I later realized that going to graduate school had not been what I wanted at all (although other people are welcome to go to graduate school.) So for this decision, I'd like to get several people's feedback.
- I haven't read The World Peace Diet yet. It's someone's opinion about the relation between animal issues and human issues.
- Does anyone know of other movements that are similar to Unlike Minds, or of websites or social media sites that help people learn about good ways to study issues?
- I also want to try praying/meditating in case that gives me any insight.
- I think that for working on animal issues, I'd like to mostly spend my time handing out literature to college students like I've been doing.
- My understanding of things is always evolving, but this is my current impression of what I should work on.
- Sometimes I wish the world were different than it is. I wish it were better for both animals and humans.
Thursday, June 7, 2012
Wednesday, April 25, 2012
This piece has run in the Daily Telegram, Adrian, Michigan, and on CommonDreams.org .
Wednesday, April 11, 2012
No matter how the Supreme Court decides the medical insurance cases, we face prolonged uncertainty. If it upholds the law, Republicans will sabotage implementation and promise to repeal it when they return to power. If it strikes down the law, the uncertainty will be what, if anything, Congress will do next. Confusion will be even greater if the Court only strikes down parts of the law.
The only way to avoid crippling uncertainty will be to stop the Supreme Court from making any decision at all. President Obama could do this by announcing that he is now convinced—after considering the arguments at the Court---that the 2700 page law is unconstitutional. He would add that he has also concluded the law is unwise: too complex, precarious in its financing, too many provisions added merely to gain votes needed for passage. He can say we must do better than this and ask Congress to repeal the entire mess, depriving the Supreme Court of any opportunity to make a further mess. Congress would undoubtedly comply with this request.
Obama would explain that the obvious solution to our insurance problems would be a single-payer system (“Medicare for all”) financed by taxes, which would clearly be constitutional. Unfortunately he had to rule this out during his first term because he had promised not to raise taxes on anybody but the rich. He would apologize for making a promise that prevented him from doing what he thought best for the country.
Obama would announce that his re-election campaign will focus on showing voters why a single payer system is the best idea, noting that his promise not to raise taxes was only for his current term. He will note that elimination of insurance premiums (now paid directly or indirectly by employees) will make up for the tax increases required by a single payer system. In fact the average person will come out ahead since money now paying for insurance company management will be greatly reduced.
The President’s principal goal would be to convince conservatives and Republican voters, since most Democrats and liberals would already agree. He should stress the simplicity and efficiency of single payer systems and the experience of foreign countries with such systems. He should ask conservatives to consider whether, even if they feel secure with their present insurance, they can be sure that they won’t lose their jobs (and hence their insurance), and whether they can be sure that their children and grandchildren will be equally fortunate.
To guarantee enactment of single payer, Obama would ask voters—including Republicans--- to elect overwhelming Democratic majorities to Congress, “just this once.” If he can convince enough people, single payer could be implemented and not be reversed later on. Republican politicians, if they see overwhelming voter support for single payer, will get religion in a hurry. (Remember George “segregation forever” Wallace, who hastily abandoned this idea after the Voting Rights Act of 1965 brought large numbers of black voters to the polls.)
If he fails to convince enough people, Obama will lose the election. But he will be remembered as a great president who did his best to lead Americans in a direction he honestly thought desirable and was not afraid to admit making mistakes. And he will have helped educate public opinion so that a single payer system could become politically possible in the future.
Does President Obama have the imagination and courage to repudiate Obamacare? We will see.
Thursday, March 29, 2012
Americans often assume the Constitution is perfect. Our founders, however, made no such assumption and therefore made provisions for amending it.
One of the most mischievous clauses in the Constitution is section 1 of article 2:
“No person except a natural born citizen . . . shall be eligible to the office of president . . . .”
Several presidents and major presidential contenders have been accused of violating this requirement: President Chester Arthur, Charles Evans Hughes (later appointed Chief Justice) , Barry Goldwater, George Romney (Mitt Romney’s father) , and most recently John McCain and President Barack Obama.
Though it disqualified various prominent individuals (including Henry Kissinger and
Some wits wondered if people delivered by Caesarian section were eligible.
Today, however, “birthers” and conspiracy theory devotees have made this requirement a major distraction from serious issues of public policy and from the actual strengths and weaknesses of presidential candidates. The requirement also conflicts with the widely shared value of equality before the law by establishing two classes of citizens, those eligible to be president and those not eligible.
Of course there are other constitutional requirements to be president, most notably the age requirement. But this requirement has minimal practical impact since few people younger than 35 are likely to be serious contenders.
Foreign-born individuals who are naturalized citizens might even be more qualified than the average natural born citizen. After all, they have been certified by the naturalization process to have actual knowledge about the American political system. Some recent candidates for president and vice president seemed to have some gaps in this regard.
There is an interesting contrast in the Constitution between the eligibility rules for the presidency and the total absence of any rules for Supreme Court members. For Supreme Court justices there is no age requirement, no requirement that they be lawyers, and no citizenship requirement. Mikhael Gorbachev would be a perfectly constitutional justice, as would a 14 year old like Malia Obama.
Our founders apparently trusted presidents and the senators who confirm judicial appointments to do the right thing. Is there any reason to think we cannot equally trust American voters when they select a president?
It is high time to get going on the necessary amendment. If we start soon, it could be ratified before Barack Obama, if re-elected, completes a second term. Eric Sevareid once compared being president with treading water while swatting bees. This amendment will remove a few bees from the bonnets of conspiracy theorists and reduce the number of bees distracting future presidents from getting their job done.
This article has appeared in the (Adrian, Michigan) Daily Telegram and in the (Portland) Oregonian.
Friday, March 23, 2012
This is an outstanding book, so much so that I’ll probably buy a copy as soon as the paperback version comes out. Since I am a Certified Public Cheapskate, and already having trouble finding bookshelf space, this is high praise! I cannot remember ever buying a book after reading a library copy, except when our book discussion group later decided to use it.
Pinker correctly says that this analysis is “unsentimental history” based on “statistical literacy.”
A great strength of this work is Pinker’s extensive and persuasive documentation of how violent and nasty life in previous centuries was. The massive torture of people and animals in the past, which Pinker does not shrink from describing in gory detail, is sobering and depressing, but very educational.
Pinker admits that we are far from having arrived at utopia. But a number of graphs illustrate how the chances of being murdered or raped over the long haul have been greatly reduced from one century to another, and even the likelihood (expressed as a percentage of the current populations) of being killed in wars has gone way down.
The author capably explores a number of possible explanations for the improvements, accepting some and rejecting others.
Although Pinker’s thesis is very upbeat, he pointedly refrains from arguing that the trends toward improvement he documents will inevitably continue. He says our appropriate attitude should be “gratitude” rather than “optimism.”
This book would make a wonderful basis for reading and discussion in college political science classes, and its 700 pages (before footnotes kick in) would probably mean it would have to be the main text for a one-semester undergraduate class.
Thursday, March 15, 2012
The scandal about outrageous prices ($51 for two minutes!) paid by soldiers phoning the
Years ago I was faculty advisor to a fraternity some of whose members cut down and stole a valuable blue spruce to use as a Christmas tree. They got caught. The tree’s owner said it was worth $600 and the guilty brethren coughed up this money to avoid being prosecuted . Buying a tree would have been cheaper.
Afterwards, I pointed out that one advantage of buying things is that you learn the value placed on them by their owners and, if you find that price excessive, you don’t buy. But this advice is worthless if the seller states a false price, or no price.
It is easy to find examples of false prices or no prices. At restaurants, for example, the waiter may announce specials of the day without informing diners of the prices, hoping that some diners will order without asking the price in order to avoid looking like cheapskates to others in their party.
On a grander scale, we find adjustable rate mortgages with low initial interest charges which always seem to go up, sometimes way up, after a year or two. Some of the recent housing meltdown was aggravated by interest increases that homeowners could not afford to pay.
Then there are hotels and car rental agencies which advertise rates without bothering to state the taxes which will be collected on top of these rates, taxes which are often substantial percentages of the advertised prices. Of course the customers are often from out of state and in no position to know what the state and local taxes are in the city in question. This is on top of the unannounced “fees” some even more unscrupulous hotels have been adding to their bills lately.
And how about TV cable or internet service providers offering bargain prices “for 6 months?” Or phone companies whose prices don’t include “taxes and fees?” Or TV commercials offering things for so many dollars “plus postage and handling.” Customers might be able to estimate postage costs, but “handling” is another matter, and sometimes exceeds the advertised price of the goods.
I won’t even comment on advertised airline fares or credit card interest rates!
Most of these practices are currently legal, but that does not make them right. One wonders if business executives are so obsessed with maximizing profits that they don’t care if they are giving their organizations a bad name. They obviously are not living by the Golden Rule.
It would be interesting to see if these problems could be ended by simple legislation without a lot of complications and loopholes requiring prices to be stated before any business transaction can occur, and requiring that all such prices be honest, “bottom-line” prices.
This article has appeared in the (Portland, Oregon) Oregonian, and the (Adrian, Michigan) Daily Telegram.
Sunday, February 19, 2012
Tuesday, February 14, 2012
I had to pick which article to comment on, since I knew full well the WSJ would not publish two letters from me at the same time. I picked the birth control issue, sent off a letter, and the very next day the WSJ published a lengthy op-ed piece making exactly the same points I had made in the letter!
So obviously they would not use my birth control letter. I thereupon wrote the letter on Iran which they have indeed published.
In order to avoid totally wasted effort in writing the first letter, here it is.
In “Obama Seeks Deal on Birth Control” [WSJ, Feb. 8, p. A5], a Hawaiian model
is suggested as a possible compromise: Religious employers could enroll workers in a plan not covering contraceptives, but a reduced premium for the plan (presumably passed along to the employees in their paychecks) would allow “employees who want contraception to pay for the coverage out of their own pockets directly to the insurer.”
It would make more sense for employees wanting contraceptives to just pay for them themselves, eliminating the overhead associated with all money passing through insurance companies. Since only people intending to use contraception would pay for the extra insurance coverage, the additional premium would have to be more than they would pay for the contraceptives.
A critic of any concessions by the Administration is quoted to the effect that “If people can opt out of [paying for] specific services, the whole idea of of insurance falls apart.” Actually, the idea of insurance has already fallen apart when insurance is allowed, let alone required, to cover something like birth control that is a normal operating expense (like food and clothing) rather than an unusual but financially catastrophic expense (like your house burning down or major surgery requiring lengthy hospitalization).
Much of what passes for medical insurance today is actually prepaid expenses and makes sense only because it allows people to avoid paying income tax on substantial parts of their earnings.
The February 15 edition of the Wall Street Journal includes a letter-to-the-editor that I recently wrote. I appreciate their decision to publish it, but do not appreciate a few "small" but important deletions.
Here is the original version of my letter:
Charles Robb and Charles Wald claim [“Bolstering the Military Option on
Machiavelli warned rulers to avoid injuring their enemies without also destroying their ability to retaliate. We must annihilate or conciliate. A “surgical” strike would do neither and would also violate the “Powell doctrine” that in military actions one should never under-do.
To guarantee Iranian inability to produce atomic weapons would require a massive, bloody and expensive military occupation of the entire country, overthrow of the regime, and prolonged forcible repression of insurgent-style nationalist resistance to the occupation. To incur these costs because
An alternative, of course, would be for us to use atomic weapons to destroy
In the end we are going to have to rely on deterrence, employing atomic weapons as a regrettable necessity only in response to actual Iranian use of such weapons. And it is always possible [Mehdi Khalaji, “It’s Time to Bypass