The Origins of Originalism

As usual this time of year, I'm trying to re-prep my brain for teaching American Political Thought in the late summer session. Last month, wandering through an unfamiliar used book store in VA, I stumbled on Jack Rakove's Original Meanings (1996) selling for a buck. One friggin dollar! I think I can safely say that that is the best value shopping for a book I've ever pulled off. Not just because it was cheap, but because Rakove (a Stanford historian) does a great job sorting out the politics of the founding era and connecting them to the debate over constitutional "originalism."

I always enjoy revisiting that era and its personalities, and Rakove's got some nice twists on the tale that I either didn't know or had forgotten. Not surprisingly, he places a lot of emphasis on Madison, who he depicts--rightly--as a strong nationalist in 1787. That's old hat. But what I didn't know is how hard Madison fought against the Great Compromise, believing as he did that equal state representation in the Senate was a stupid and vicious idea. Frances knows this turf well, so I've heard the outlines before, but somehow I missed the intensity of this issue for JM, who brings this point up ad nauseam until other delegates must have been sick of hearing it. Rakove himself is bitterly critical of the Compromise, arguing that historians err in blasting the 3/5 Comp. while hailing Roger Sherman and the Connecticut delegation for solving representation in the Senate. As Rakove sees it, the malapportioned Senate did far more to protect and promote slavery than the House, to which the 3/5 clause applied. Sherman does not come off well in this account: a fussy aristocrat who elevated vapid bipartisanship over principle and pandered to Southern racists, foreshadowing generations of Copperheads and Liebermanites.

Rakove's most interesting argument, however, is probably his effort to trace the origins of "originalism" in constitutional interpretation. He spends a lot of time on issues of interpretation, making the obvious but often overlooked point that there was never a settled meaning for the document, which was subject to heated hermeneutic debates form the start. Not that there are no boundaries beyond which an interpretation becomes untenable, but, as Randolph noted in the Convention, the document's language should be kept to "essential principles only; lest the operations of government should be clogged by rendering those provisions permanent and unalterable, which ought to be accommodated to times and events" (342). A constitution and a statute differ, and the precision required in the latter would be out of place in the former. Interestingly, this point tended to divide federalists and antifederalists in the ratification debates. Although both sides saw themselves as Newtonians, the antifeds depicted the natural laws of politics as fixed dogma of established and inflexible rules, whereas federalists offered a practical and experimental view that made room for future experience.

In other words, the most dogmatic of today's "originalists" actually come closer to the antifed position on law than they do to that of the constitution's original supporters. Two examples: federalism and separation of powers. Rakove shows that Madison had basically pragmatic understandings of these ideas, recognizing that no separation could be complete since all powers overlapped to some extent, and believing that political contests between branches or levels of government would allow for flexible adjustments over time.

Rakove also documents the first appearance of "originalist" arguments in the early Congress as disputes arose over presidential "removal" power, the national bank, and the Jay Treaty. Although Rakove credits Madison himself with having "invented" originalism, he takes pains to show just how opportunistic this debate is on all sides. By this point, Madison and Hamilton had become opponents, Madison having come the conclusion that he had been wrong in 1787 to fret about limiting legislative power when the real threat to republicanism came from the executive. Hamiltonians and Madisonians sparred over the meaning of the constitution, appealing to framers' intent, ratifiers' understanding, English common law, or an open-ended pragmatism, all depending on whose ox was getting gored, and frequently switching interpretive theories on a dime when the need arose. Fittingly, the first time "Publius" was ever invoked to prove a point, during the removal debate (did the Senate have to approve cabinet firings as well as hirings?), BOTH Madison and Hamilton disavowed their argument in the Federalist, having become convinced that they had been wrong.

One key implication of Rakove's analysis is that the originalist dream of a pristinely "neutral" legal standard that lives above politics is a futile one. But he doesn't turn from here toward relativism or "legal realism." Instead, he shows how, despite their disagreements, some arguments (often Hamilton's in debates over the bank or treaty power) were more firmly grounded than others. The real lesson here is one of hermeneutic moderation and humility. I sometimes wonder if we'll ever see such virtues in the Supreme Court.

Another Vacation Photo

It's been a while, but I really enjoyed that vacation.

Are they Radicals, Racists or Retards?

A truly Orwellian decision today by the Supreme Court on the issue of whether school districts can take race into account when making school assignments. Apparently, Brown v. Board serves as the major precedent for the idea that you cannot even LOOK at racial composition when trying to keep schools desegregated. As if the 14th amendment positively requires a kind of racial laissez-faire by local governments and school officials. Golly, good thing we don't know of any cases where white parents have conspired to keep their kids in all white schools. I am sick and tired of this Court pretending that the only discrimination prohibited by the 14th amendment is that which harms whiny privileged white people. There is simply no moral equivalence between Jim Crow policies designed to maintain a racial caste system on one hand and integration policies designed to eradicate such caste divisions on the other, especially when the latter make absolutely NO trade-off for student "merit."

Can someone say judicial activism? And of the worst sort. Right-wing, brain dead, consequences-be-damned activism. This case reminds of the infamous Civil Rights Cases (1883) when a very similar Court ruled that Congress had no power to fight discrimination in public accommodations. Except here, of course, we have a state endeavor.

If zombie Earl Warren were to pop up out of his grave tomorrow, I suspect he would bludgeon John Roberts with a shovel and then eat his brain. If he could find it.

I Actually Agree with Gen. Kristol

Watching Faux News Sunday--which, actually, is a low blow, because whatever one thinks of Faux News, in general, the Sunday morning show is probably the best one of the traditional format shows right now--this morning, I actually heard the good General say something I agreed with. The Faux All-Stars were discussing Michael Bloomberg, and Kristol asked, "Why are we talking about Michale Bloomberg? Because he's rich. [paraphrase] He can write a check and make himself a candidate. But a retired general can't do that." Kristol went on to say that the Bloomberg "phenomenon" (not his word) shows how campaign finance laws in the United States don't make much sense. The laws force everyone but the mega-rich to raise campaign funds in small amounts from thousands of donors, and that keeps many folks from running for office because, while they might want to serve, they don't want to do what you have to do to be able to serve.

Kristol asked why, if Bloomberg can fund his own campaign, why couldn't he instead fund someone else's? He stressed that, if the system were transparent, the influence of great wealth wouldn't be any different, whether Bloomberg was using his money or someone else's--it's the same money, the same interests.

I basically agree with that. If the problem is "big money," then Bloomberg shouldn't be allowed to use his own billion dollars to run for office. The Supreme Court has said that that (spending your own millions, or more) is protected, though. But if so, then does it make sense to say that only the billionaire is outside the campaign finance laws? In some ways, that's the worst of all situations, isn't it?

I suspect that Kristol and I disagree on the "best" fix of the situation. My guess is that he would prefer that all contribution caps be eliminated. I would prefer that the contribution caps would apply, even to one's own millions (or billions), or, even better, public financing (which won't, of course, happen). But I agree with Kristol that the billionaire's loophole points to the absurdity of the campaign finance laws at the present time.

I Love Running

Running is something that I rarely blog about, chiefly because I suspect that the joys of running do not translate easily to the blog medium. But as I was running this morning, I kept coming back to how much I really love to run.

This morning, I ran down through Logan Circle, then west on P, through Dupont Circle, across Rose Park, across M and Pennsylvania to the C & O towpath, took that to the Glover-Archbold Trail, which goes 3 miles north to Van Ness (only four road crossings), then east to the Hazen trail, down that trail to the Rock Creek multi-use trail, south on that, past the zoo, to P, then back home through Dupont and down Q. Whew.

The Glover-Archbold Trail is a really beautiful, and largely unknown, trail in Rock Creek Park. It's a little rocky for running in spots--I managed to twist both ankles, but only minimally--but really shady, which can be important on a sunny, if not too-hot, Sunday morning.

What Took So Long?

Steve Benen, posting at TPM, asks why the "Veep isn't part of the executive branch" position of Darth Cheney is news now that Rep. Henry Waxman's committee has issued a report, when the blogosphere was all over this story in February. The answer, of course, is that establishment MSM never gets out in front of a story. They are more than happy to report on a story when someone in power, or when a governmental institution, like a House committee, puts out a report, making something a story, by the rules of the game. But MSM reporters don't actually speak in their own voices in such stories--note, they report, "According to a report by . . . ."

The short answer is, Power makes all the difference. With the Democrats in power, all kinds of stories only blog readers knew about will get reported on now. Because people in power can be quoted on them. That's one of the rules of the MSM.

Vacation Photo

This is the view from the top of Half Dome, looking toward Glacier Point, in the middle of the frame, roughly, and Yosemite Valley, on the right (the green stuff).

Are We Safer?

I do a fair amount of flying over the course of a year, mostly for work, but some for recreation. And as a frequent-ish flyer, I've become very familiar with the "routine" at American airports: shoes off, jacket off (the definition of jacket is quite broad), laptop out of the case, toiletries out and in the 3-1-1 baggy, all through the x-ray machine; no liquids through the security checkpoint (including what appears to be a number of common cosmetic products women carry in their purses), boarding pass in hand, etc. The new rules are no matches and no lighters, even in checked baggage (?)--those rules don't really affect me, though.

To be honest, the nuisance of all this doesn't really bother me--I've gotten used to it.

What bothers me is the nagging suspicion that this stuff actually makes us less safe in going through the airport. Why? Well, here's the reason. I think I understand the bureaucratic mind, and the typical TSA screener is a bureaucrat, a low-level one, doing a pretty boring job. ("Security is boring," as Frances always says.) Bureaucrats become very good at enforcing process/procedural rules, but in doing so, they become very, very bad at substance. The TSA airport rules are just a long list of process rules--see the list above. And if you've flown lately, you know that an inordinate amount of energy is actually expended to enforce those rules.

TSA agents swoop in like hawks to police the no liquid rule. I'm a few days late to the party, but this recent flap over the sippy cup at National Airport is Exhibit A.

Now, it's possible that terrorists, in the guise of middle-class women pushing baby strollers, with babies in them, may try to infiltrate security checkpoints with explosive liquids in small quantities in their babies' sippy cups, but I think that everyone has to admit that this is not that likely a possibility.

The same goes for women's cosmetics, or water bottles. I carried an empty water bottle in my backpack in going through security last weekend--you know, in that pouch on the side of the backpack that's made for the water bottle? The TSA agent gave that completely empty water bottle a close examination. Now, I'm sure that that is what the rules say to do. I mean, a Nalgene bottle could have a false bottom in it, hiding liquid explosives. And there was a woman nearby who had her purse searched because of some cosmetic item--I didn't see exactly what--that she hadn't realized was, more or less, liquid.

But the question I would ask is what are the TSA agents missing while they are expending so much energy in enforcing these extensive process rules? Or, to put it in a slightly different way, couldn't a savvy evildoer think of ways to exploit the TSA's obsession with water bottles, women's cosmetics, and shoes to actually do something dangerous?

This is not to blame the TSA people themselves. They are just doing their job, and they have strong incentives to enforce the (process) rules, no matter how silly or asinine. And each of the rules, taken by itself, probably makes some sense (although the jacket thing--why doesn't the metal detector suffice to check out my fleece?). But we are expending a lot of energy in this country making sure that shoes are x-rayed and that no one carries liquids through security checkpoints at airports.

Of course, all these procedures may give people (travellers) a sense that things are safer, even though the actually rules are neglibly related to that end. On the other hand, nothing may be so dangerous as a false sense of security, no?

TMcD posted on another interesting case last year.

One more, I can't resist: at BWI, there is a sign that says that it is a violation of Maryland law to take photographs of the security checkpoint. I'm pretty sure that this law is unconstitutional, at least "as applied" in certain circumstances I can easily imagine.

OK, just one more "funny" example of this: Where I work, if you go out of the building for coffee, and you set off the metal detector coming back in, with coffee in hand, they wand you, and then, just to make sure, the security guards make you open the coffee cup's lid so that they can see whether the coffee cup contains coffee. They don't, of course, make sure that the cup contains only coffee. So I'm not sure what this rule actually achieves, although it is followed, to the letter.

Vacation's Over

Back to work this morning, after about a week of vacation. Yosemite National Park is a really, really amazing place. This is a photo of Tuolomne Meadow, from Pothole Dome at its western end, looking toward Tioga Pass. I have to say that this vacation, even tacked on to a work trip, really "worked" in the sense that, even a day or two in, I was feeling more relaxed than I have in a long time. And that was even with some pretty vigorous hiking--we hiked to the top of Half Dome on Friday, which was about a 17-mile hike, with more than 4,000 feet of elevation gain. (Coming back down is the hard part, of course.)

Travel also provides the opportunity to read. Read Pelecanos's Sweet Forever, which is a classic crime novel, set in D.C. If you like that sort of thing, you should definitely read it. Then I read Michael Connelly's Angel's Flight, which was also really good--L.A. noir, in a more or less contemporary setting. On the return trip, read most of Everything's Eventual, a collection of Stephen King stories. As a collection, OK, but some of the stories are better than others. Speaking of which, one of the stories in the collection, "1408," was made into a movie, which is being released this week. I've seen the commercials for the moie (stars John Cusack), and I'm not sure how you film the story, at least not without elaboration. The story is kind of trippy, not to put too fine a point on it. (Neither the Reno nor Vegas airports have a good bookstore, which is not that surprising, I guess.)

Breach (2007), Dir. Billy Ray

Go rent this if you haven't seen it. It's the story of Robert Hanssen, the worst spy in modern American history, a high ranking FBI counterintelligence analyst who was caught in early 2001 after almost two decades of treason. It's one of those thrillers that maintains its intensity despite our knowledge of the ending, and Chris Cooper, playing Hanssen, is just great (even if you can see traces of his roles in both American Beauty and The Bourne Identity).

Then there's the political commentary. Since we're dealing with a true story here, the politics emerges more naturally than in most potboilers. In retrospect, Hanssen looks like a harbinger of the decade: a bitterly resentful and entitled right-wing wackadoo spins paranoid schemes from his drab desk job, one where he has no window (literally) onto the outside world, only a crucifix for the daily prayer that he also imposes upon his subordinates. Hanssen rants about "fag" photographers, women in pants suits, Hillary Clinton, and national security, as if they're all intimately connected. He promotes Opus Dei and marital bliss while gorging on violent porn. And he depicts himself as the ultimate patriot-victim even as he's destroying our capacity to conduct overseas intelligence operations. He's obsessed with money and status, although he needs desperately to believe that he's acting from higher motives, twisted though they may be.

In short, Hanssen might as well be Dick Cheney or George Bush or Karl Rove or Paul Wolfowitz or John Ashcroft (whose face opens the movie). He's our wingnut surveillance culture writ large. And when he goes down, it is not a pretty sight.

Schrodinger's Gat

Who knew, when the Transient Gadfly wrote this, that Tony Soprano would turn out to be Schrodinger's Cat? Undecidability be damned, I'm betting "dead."

Wasting Time

Republicans in the Senate have been widely quoted accusing the Dems of wasting time with a no confidence vote on AG Gonzalez. As Gordon Smith (R-OR) said, "This decision is the president's, not the Congress'. So it is a waste of the Senate's time and taxpayers' money for us to be debating this today." And this from a guy who has himself declared that Gonzo should step down.

Would someone please please tell him that you can't complain about the other guys wasting time if your team is engaged in a filibuster? (And has anyone in the media even bothered to use that dreaded word? Good thing that GOP hypocrisy doesn't count as news anymore.)

A Requiem for Rorty

The lack of NYT obit is pretty surprising. If there's a more famous American philosopher who was living as of a week ago, I'm pained to name him/her.

#3 remembers correctly--and, really, given some of the battles we had in grad school over this, how could he forget?--I've never much liked Rorty. In merging American pragmatism with European post-modernism, he damaged both, producing a smug, lit crity, know-nothingism that managed to scorn truth, science, and religion, all at the same time. His celebration of the "ironist" reflected a self-satisfied elitism more interested in mocking the world (from a privileged height) than in evaluating or improving it.

Here's an irony: although he meant to champion "perspective" a la Nietzsche, by denying "truth" he degraded literature into mere amusement, implicitly rejecting the notion that lit might liberate through its ability to REVEAL the world's difficult or hidden realities. For Rorty, there was nothing to reveal: one "language game" was as good as another, as long as it distinguished public and private, a line that Rorty could nonetheless never hope to ground in any "reality" other than his own aesthetic vision. To deny truth is to empower power (and the powerful), a point that Nietzsche understood but that Rorty did not.

For me, Rorty symbolized the collapse of liberal intellectual endeavor. No longer believing in anything beyond its own aimlessly peripatetic search for new and different perspectives, liberalism descended into a navel-gazing relativism incapable of inspiring either serious art or committed citizenship (not to mention religious devotion, metaphysical speculation, or spiritual striving). He helped turn liberalism into the lame caricature long-promoted by conservatives. To be fair, having come of age in the late 60s and 70s, he probably reflected this trend more than he initiated it. There were better ways to accomplish similar objectives. Isaiah Berlin embraced "value pluralism" to a point I found unacceptable (and got tangled up in a problematic conception of "liberty"), but showed degrees of historical understanding, analytical rigor, and literary flair that Rorty lacked. Unlike Rorty, Berlin made pragmatist relativism look good.

I wonder about Rorty's influence. My best guess is that the Bush era's contempt for truth and science will produce a long-term liberal recoil from the sorts of doctrines with which Rorty is most closely associated. Ironically, he foreshadowed more in the emrging conservative mind than in the liberal. In the long run, I suspect that Orwell, Berlin, Shklar, and even Rawls will be better touchstones of 20th century liberal ideals than Rorty. If liberalism survives, that is.

Travel Plans

So, I'm off to a work meeting out west, and then a few days of hiking etc. in Yosemite. I don't know how much posting I'll be doing in the next week or so, but I will try to check in, from time to time.

Richard Rorty (1931-2007)

I read about this on a sometimes philosophical blog, but Richard Rorty died yesterday.

Paul probably doesn't have a take on Rorty--he died yesterday, not 2000 years ago--and TMcD has never been a fan, but I've always thought that his Contingency, Irony, and Solidarity is a pretty good book. (I suspect Frances agrees with me, more or less.)

In a better world, Rorty's passing would get news attention, and a spoiled socialite's incarceration would be a purely private concern. I couldn't find an obit at either the Post or NYTimes--yet. Let alone a news story. Maybe I missed something? I realize that Rorty was not a household name, but he was a pretty prominent intellectual, no?

Paris in Sprung-Time

Finally, the news media have gotten it. Wealth and power buy justice in this country. There are "two Americas." Welllll [finger wag, finger wag, smoking ears, red contorted face], I for one am fed up. Hang those bastards high! Fry em, all!

Oh, wait. You mean we're not talking about Dick Cheney? Gonzo? Rove? Abramoff? DeLay? Scooter Libby? Come on, not even William Jefferson? That breathless 24-7 coverage is about. . . who? . . . . Paris Hilton? The celebutante?

Well, I sure as hell am glad that FOX News has spent all its precious "two minutes hate" today giving airtime to the airhead heiress. I don't know if I've seen pants-wetting coverage this melodramatic since they impeached the Big Dog. Let me get this straight. Her offense was drunk driving with a .08 BAC, the bare minimum to test as "drunk," a line 20% lower than a decade ago, when .10 was the almost universal standard, and then she broke probation by speeding on a suspended license? Now, I loathe Hilton and all she stands for as much as a straight man can loathe a beautiful woman he's never met and who has never done him wrong in any way. She broke the law, and I'd like to see her do her time. But could we dial back the histrionics? You know, from Lewinski-level to say Hillary "ain't baking no cookies like Tammy Wynette" level? Or maybe just treat it as a good laugh--you know, like psycho astronauts in diapers? Baby steps.

Corinth blogging

That's the temple of Apollo at ancient Corinth. It's great to be back in Corinth after a 12-year hiatus...

Raging Broderism!

In today's edition, the Dean finds, somehow, false equivalency b/w the predicaments of the Republican and Democratic contenders for the White House.

Here's the bulk of the horror:

But the dynamic on both sides is trending toward extreme positions that would open the door to an independent or third-party challenge in 2008 aimed at the millions of voters in the center.

The danger may be greatest for the Democrats, even though President Bush's failings have put them in a favored position to win the next election. Prodded by four long shots for the nomination and threatened by the rhetoric of former senator John Edwards, a serious contender, the two front-runners, Hillary Rodham Clinton and Barack Obama, have abandoned their cautious advocacy of a phased withdrawal of U.S. forces and now are defending votes to cut off support for troops fighting insurgents in Iraq.

[snip]

The broader question of Persian Gulf policy in the likely event of a drawdown of American forces in the coming year is also a blind spot for the Democrats. Beyond exhortations to the weak Maliki government in Baghdad and a vague hope of convening an international conference on Iraq, the leading Democrats have little to suggest that could mitigate a possible foreign policy disaster.

OK, where to start? First, it's possible that "the millions of voters in the [political] center" are waiting for "an independent or third-party challenge in 2008," but I'm VERY skeptical. My guess is that this is much more the dream of the pundit class, which has already decided that no one is going to play their game this time around--at least, no one they want to play with.

The talk of a Bloomberg-Hagel ticket seems to set the heart of the political talkers atwitter, but who, exactly, would vote for this ticket? If you'd actually be willing to vote for Bloomberg, doesn't that make you basically, um, a Democrat? And what does hard-right-on-everything-other-than-the-Iraq-war Chuck Hagel as Veep add to the ticket? (He's reportedly a global warming skeptic.)

Second--it's just not plausible that "[t]he dangers may be greatest for the Democrats." In a two-party system, the party out of the White House benefits from the f**k-ups of the party in the White House. That's the way it works, even when the problems the party-in-power faces are not actually its fault. (Not the case here.)

Third. Sigh. The reason the Democrats "have little to suggest that could mitigate a possible foreign policy disaster" is that . . . the "possible" disaster has already happened. No one--not even the Great Center Hope, with his or her team of Establishment advisers--could undo this Pottery Barn problem.

Of course, that is the sort of thing that is un-sayable in the political process--unless you're not a viable candidate. Ron Paul or Dennis could say it, but none of the leading candidates in either party can. So we'll continue to "lack a real-world clue." Oh, wait, that's what Broder was complaining about.

Don't feel like you have to read the whole thing. I'll add that Broder points to Biden and McCain as the exceptions to the rule. Now, there's an Establishment pundit class ticket for you.

Thoughts on the Last Thirty Minutes of the GOP Debate--'Cause That's All I Saw

1) Romney is the Ken-doll panderbot that Bill Frist always dreamed of being (or being with).

2) Tom Tancredo is the geekiest and least articulate demagogue since Steve Forbes.

2a) I am soooo oppressed by having to "press '1' for English" that I might just vote for him.

3) Thank you, God, for giving us Duncan Hunter to remind us what Republicans look like when they genuinely believe the whack job stuff they say.

3a) "Nuking Iran" platform may be just what he needs to jump into the top tier.

4) No one seems to understand that running on the premise that George Bush is "too liberal" seems an unlikely winning theme for 2008.

4a) Blaming Bush's failure primarily on his being a "big spender" (which was EVERYONE'S answer to the "what's wrong with the big bad W" question) is a wee implausible.

4b) Multiple audience members (all GOP) practically beg the debaters to embrace moderation. Moderation does NOT look good in clips on FOX News, bitches.

5) McCain looked genuinely statesmanlike for the first time in three years when he embraced Hispanics while talking about immigration reform. It almost--almost--makes me want to respect him again.

Big Ridge Straw Poll

Forget South Carolina. At my annual Memorial Day get-together in the NC mountains with old college buds, we took a presidential straw poll. This is about as scientific as the new Creationism Museum in KY. But we've got some moderate diversity: roughly a dozen men, 37-40 yrs. old, living in SC, NC, GA, TN, VA, and WA; made up of several lawyers, a couple of college profs, an architect, a city planner, a minister, a former judge, and a Major in the army reserves slash corporate technology consultant. Most are centrist-leaning Dems, but with two traditional GOPers.

The results? About half are leaning toward Obama. Richardson and Edwards trailed with two votes each. HRC got one vote. And Rudy got one, from the stronger Republican (a former NYker). The other Republican likes Obama and says that the only thing that could possibly make him him vote for the GOP next year is HRC. Take it for what it's worth.