bowles

I saw Erskine Bowles at an evening rally last night at UNC. Quick observation: he's much better at this than two years ago. Namely, he presents himself as a bit more natural of a public speaker while maintaining a certain discomfort with politics that gives him an assured un-sliminess.
He seeks a centrist route (one spectator asked him if he is proud to be a Democrat) that echoes his dad and Terry Sanford, and, of course, Clinton. He does well to stress the ability to bring partisans together, and makes his policy ideas (which are not novel) sound like unassailable common sense.
I like Erskine Bowles. I think he really wants to do this (2 years ago, one could doubt). Hopefully, he'll have the opportunity.

saying what you mean?

More verbal weird-age from Bush. Just what does he want to do with these 527s? Here is what he says, from this weekend's interview with the Times:

Let me talk about a larger issue, and that is 527s. I spoke to John McCain today, and I think these ought to be outlawed. I thought they ought to be outlawed a year ago, when I--whenever I signed the bill. I think they're bad for the system.

Wow. Outlaw the 527 groups altogether? Pretty aggressive, and, as noted in a post below, quite contrary to Bush's previous statements about the importance of protecting individual speech. Thus, the campaign chairman, Marc Racicot, corrected the President's remarks,

to say that the campaign would ask a court to order the Federal Election Commission to treat the so-called "527s" the same as other political action committees.

The difference, of course, between abolition and regulation happens to be significant. As McCain remarks,

"I want to emphasize if I could that we're not saying that 527's should be abolished. We're just saying they should live under the same campaign finance restrictions" as so-called hard-money groups "because they are engaged in partisan activity."

And, as it turns out, the lawsuit Bush speaks of when saying he wishes to outlaw 527s simply seeks to regulate the groups under existing FEC regulations over PACs. From the Journal:

Bush's lawsuit would mean that a $5,000 limit on individual contributions to 527s would take effect immediately instead of as scheduled in 2006. McCain, a co-author of the 2002 campaign-finance reform law, supports that.

I'm not sure whether Bush's confusion over his own lawsuit is a matter of simply mispeaking, or something else. He seems to push the "getting rid of all the ads" fairly hard--too much so to not either think that's what he's doing or to purposefully imply that. But, it seems rather politically disadvantageous to want to shut down the groups entirely, in the face of speech concerns.

My guess is: the tough language on 527s sounds absolute, and non-complex. That is the character Bush wants, and to get into details of regulations would make him sound more like Kerry. I prefer the complex reality to simplistic jingo...but I reckon that's why I don't like Bush.

terror and no news?

Two Jet Planes blow up over Russia, almost assuredly terrorism...and cable news is covering, with great dedication, Scott Peterson.
Current suspicions are on two Chechen women that may have detonated explosives aboard the two planes- that exploded nearly simultaneously.
Further, the Russian backed Alu Alkhanov just won the Chechen presidency, mixing some politics into this major terrorism story.

So where in the world are the media? Two damn jets blew up in, apparently, suicide attacks. Isn't this what we're fighting in the war on terror?

PS:
I reckon I should add this: certainly the various media have covered this story. But ask yourself, what if the same thing had happened over Ohio?

Surely, more media attention ought to be paid to events in our hemisphere. But the difference, I'm guessing, between the present coverage and the quality/quantity of coverage had the event happened here reveals our still too much isolated attention. This is a terrorism story, for crying out loud.
Mike's comment below adds more reason to be all over this story--possible political desires to cover up the conclusion that this was terrorism. Echoes of Spain's previous elections and the government's attempt to tag the terrorism on the Basques.

american life

I heard a short story read on This American Life, called The Rememberer, by Aimee Bender. Here is the beginning:

My lover is experiencing reverse evolution. I tell no one. I don't know how it happened, only that one day he was my lover and the next he was some kind of ape. It's been a month and now he's a sea turtle.
I keep him on the counter, in a glass baking pan filled with salt water.
"Ben," I say to his small protruding head, "can you understand me?" and he stares with eyes like little droplets or tar and I drip tears into the pan, a sea of me.

Midway through the story:

On his last human day, he said, "Annie, don't you see? We're all getting too smart. Our brains are just getting bigger and bigger, and the world dries up and dies when there's too much thought and not enough heart."

making up charges

Somehow, Josh Marshall found a way to mix the themes of the last wo posts into one: 527s and loose languaged Repubs.
The basic theme is this: have you heard the GOP talking points complaining about anti-bush 527 ads attacking him for poisoning pregnant women? If you watch any cable news or Sunday talk show, you have.
Now- say Bush allows more mercury emmissions into water, and a group puts out an add pointing to the consequent dangers of mercury emmissions. Ask yourself: is it easier to argue the policy shift, or to make up an intent of the ad (the conclusion that Bush 'poisons' pregnant women) and laugh it off. That's what these guys do: they change the wording of legit criticisms and laught them off, a'la 'sensitive war.' Give Marshall a read.

Right out of his mouth

A sensitive war.
Dana Milbank offers a series of quotes from Kerry followed by the BS version of that quote from Bush. Lordy don't you love stupid politics.

issue ads, 527s, et al

A brief word on issue ads, independent 527 groups, and swift boats.
Let me put this idea up the flagpole, and see who salutes. Why not allow groups that are not connected at the hip to a particular candidate or party to publish their material? If an ad strikes a candidate or society as unfair or baseless, the candidate can repudiate and/or condemn the ad. If a candidate refuses to do either of these, the public can come up with their conclusions as to the politician's campaign tactics.

Kerry condemned the MoveOn PAC's* ad that attacked Bush's National Guard Service, while Bush repudiated the swift boat ad, and called for an end to all 527 spots. The difference between repudiation and condemnation is entirely important in the context of my first paragraph, and recognizing that difference would allow a voting society to have some guard against baseless ads while protecting first amendment rights to speech.

To condemn is to call the ad or group out as baseless. To repudiate is to say, merely, 'hey, I didn't say that.' If a candidate separates himself from the messenger but does not dismiss the message- well, let the voter decide how to finish that sentence. Likewise, if a candidate condemns an ad or a group's tactics, the voter can make due conclusions. A problem with 527 ads is in a group's message being wrongly attributed to a candidate. In my mind, though, condemnation allows a candidate to say 'I do not support the message.' The lack of condemnation, meanwhile, suggests support for the message.

Here, anyway, is a bit of backgroud.
PACs and traditional candidate spending are regulated by the Federal Election Commission--with, among other things, limits on spending and requirements for the candidate to appear personally in the ad. 527s, a tax category existing since 1974, are politically motivated groups, but are not under the FEC's jurisdiction. Since 1996, and prevalent in the 2000 election, the big issue has been whether 527 groups should be treated like PACs and candidate committees (ie- under FEC regulation) if the group's primary purpose is to affect a particular election.

In 2000, Clinton signed a law requiring 527s to disclose their political activities (contributions and spending- in other words, much like FEC regulations). The National Federation of Republican Assemblies sued, arguing the law violates the First and Tenth Amendments and unconstitutionally gives the IRS broad and unchecked authority over political activities and expression. After the trial court ruled the disclosure requirements unconstitutional, the Appeals Court (11th Cir.) reversed, upholding the law. From the Campaign Legal Center:

In reversing the lower court, the 11th Circuit unanimously held that the disclosure requirements, rather than imposing an unconstitutional penalty, were merely a condition placed upon the government subsidy of a voluntary tax exemption. The court noted that "any political organization uncomfortable with the disclosure of expenditures or contributions may simply decline to register" for the exemption in order to avoid the requirements. Further, the court reasoned, "the fact that the organization might then engage in somewhat less speech because of stricter financial constraints does not create a constitutionally mandated right to the tax subsidy."

When Bush signed the Campaign Finance Reform Act into law,this ruling had not come down. Rather, the standing rule was as the district court ruled: the disclosure provisions were unconstitutional. In that context, here is Bush's statement at signing the Campaign Finance Reform Act:

However, the bill does have flaws. Certain provisions present serious constitutional concerns. In particular, H.R. 2356 goes farther than I originally proposed by preventing all individuals, not just unions and corporations, from making donations to political parties in connection with Federal elections.

I believe individual freedom to participate in elections should be expanded, not diminished; and when individual freedoms are restricted, questions arise under the First Amendment.

I also have reservations about the constitutionality of the broad ban on issue advertising, which restrains the speech of a wide variety of groups on issues of public import in the months closest to an election. I expect that the courts will resolve these legitimate legal questions as appropriate under the law.

As a policy matter, I would have preferred a bill that included a provision to protect union members and shareholders from involuntary political activities undertaken by their leadership.

Individuals have a right not to have their money spent in support of candidates or causes with which they disagree, and those rights should be better protected by law. I hope that in the future the Congress and I can work together to remedy this defect of the current financing structure.

From what I can tell, Bush was primarily concerned with unions and corporations hiding their campaign spending- but was concerned about preventing individuals from supporting various issues and campaigns. As he said, he had "reservations about the constitutionality of the broad ban on issue advertising, which restrains the speech of a wide variety of groups on issues of public import in the months closest to an election."

Now, he says this:

And in response to reporters' questions, the president once again condemned the so-called 527 groups, which can raise unlimited donations and run attack ads, but cannot directly coordinate their efforts with the campaigns. One of them, called Swift Boat Veterans for Truth, has been running an anti-Kerry ad that has accused Mr. Kerry, the Democratic nominee, of lying about activities in Vietnam that won him four medals. But this time Mr. Bush went a bit farther, and said the ads run by such groups should be stopped.

"All of them," the president said, when asked whether he specifically meant that the veteran's group's ad against Mr. Kerry should be stopped. "That means that ad, every other ad. Absolutely. I don't think we ought to have 527's. I can't be more plain about it, and I wish — I hope my opponent joins me in saying — condemning these activities of the 527's. It's — I think they're bad for the system."

I do not like the president's proposal of complete destruction of 527 groups. I am more inclined to lean toward his position at the signing of the campaign finance bill- although with remaining disagreements. It seems, though, me and the 2002 George W. could have met some compromise with my proposal above.

Let groups speak. They will surely say stupid things- and those stupid things will sometimes unfairly hurt their target, and sometimes will unfairly hurt the candidate they purport to support. Let the candidate speak out in favor or against the ads, and let a responsible public determine how to set up the fragments landing in their living rooms.


*MoveOn, the group commonly and mistakenly attributed by Repubs and the Media as a 527, is actually three things. There is a MoveOn PAC (this group issued the ad against Bush's Nat. Guard service, and the ad was condemned by Kerry); the MoveOn 527, that has not run an ad in four months; and the MoveOn.org- an advocacy under the 501 tax category.

Lithwick

We will have more to say about this; (and see update, bleow). In back and forth emails, a friend and I had a discussion stemming off this post below. The discussion started with my observation that left and right leaning folks offer inconsistent support for the authority of a court's ruling, and inconsistent theories of ultimate constitutional interpretation. Example:

1. Mayor Newsome permitted homosexual couples to be married in San Francisco despite a clear California law, made through California's initiative procedure, disallowing such marriage. While Newsome was not acting despite a court order directed to him, he did take the role of constitutional interpretation upon himself and deemed the California law banning same sex marriage unconstitutional- as violating equal protection. This move by a local government figure found applause from individuals and from several media outlets.

In my mind, and necessarily implicit in this applause, was the issue of non-judicial constitutional interpretation; in other words: the power of government officials to not abide with or not wait for judicial rulings. Here, Newsome simply did not wait for a ruling from California's courts supporting his constitutional vision. Rather, Newsome came to a constitutional conclusion--that the law is unconstitutional--and applied that decision.

Supporting Newsome's position in the Constitution. Before Justice Marshall decided the landmark Marbury v. Madison, there was no real expectation of what is now a given: judicial review. The Constitution does not make courts the final arbiters of whether laws are constitutional--rather, Congress and the Executive, by making laws, make them constitutional.

Supporters of Newsome had to take this view--that a local government official has some power to step on the court's prerogative. (of course, once the California court did rule, Newsome discontinued the homosexual marriages. )

2. After a recent 4th circuit ruling barring such action, several town counsels continue to make prayers specifically to Jesus before meetings. The 4th circuit ruled that prayers directed specifically to Jesus violate the establishment clause, a ruling fitting very comfortably within Supreme Court precedent. The power to disobey a court ruling, while in many respects different from the above discussion of disobeying a law, relies on much the same reasoning regarding constitutional interpretation. To wit, it relies on de-emphasizing judicial review. The town counsel members, goes the reasoning, should be able to determine whether their prayer constitutes an establishment of religion. Along with the Constitution's support for this argument, as recited above, is the populist argument. Why should 9 unelected elites in DC decide these important issues exclusively? Again, those 9's precedent is clear: the specific prayers violate the 1st amendment. But shouldn't a town be able to tackle this issue, and determine whether the Court was wrong in so interpreting?

The two arguments above flow along the same reasoning stream. But, I betcha, the arguments are picked up and dismissed by the left and right according to their desired results. Many on the left love the court's authority in the prayer case (why, don't these city counsel members respect the authority of the law?); while the right loves the court's authority against Mr. Newsome. It isn't difficult to imagine one person arguing for Newsome's power to decide California's law unconstitutional while flipping around his position to argue against the city counsel members that are ignoring the 4th circuit's ruling.

My friend added to this discussion the differing treatment that media companies give to the Mayor (violating law to further gay rights) as compared to various madias' treatment to those, like Judge Moore, that violate court rulings that clash with their more government-religion-permissive view of the first amendment. That's a long discussion, drawing from many subsidiaries (for my friend and I, we could not get past a divide as to what is big media?)

But, the article linked to above may provide something to all this. Ms. Lithwick, in the Times today, notes several government officials that seek to overcome a perceived court-attack on their faith.

----------------------------------------------
Update.

Professor Amar has a few columns in FindLaw that are on point and may be interesting to the reader. Professor Amar writes about Mayor Newsome's argument that, as Mayor, he swore to uphold the Constitution and, as such, allowed gay marriage under equal protection. Ultimately, Amar disagrees with the Mayor's position. First this:

One of Mayor Newsom's more forceful claims, however, is that complying with the California constitution here would compel him to violate the U.S. Constitution -- which trumps the state constitution, according to the U.S. Constitution's Supremacy Clause.

In addition to the Supremacy Clause, the Mayor also points to the U.S Constitution's Oath Clause. The Oath Clause says that "all executive officers [including mayors] . . . of the several states . . . shall be bound by oath or affirmation to support this Constitution." Mayor Newsom points out that he himself took such an oath, and must abide by it.

Mayor Newsom furthers notes that he holds the good faith belief that supporting the U.S. Constitution's Equal Protection and Due Process Clauses requires him to support equal marriage rights for same-sex couples. And, conversely, he argues that he also holds the good faith belief that refusing equal marriage rights to same-sex couples would violate the federal Constitution, and therefore violate the oath he took.

Complicating the matter, the California Constitution addresses what is unaddressed in the US Constitution:

The problem for Mayor Newsom is a specific provision of the California Constitution. Article III, section 3.5 of the California Constitution says that an "administrative agency has no power to refuse to enforce a statute, on the basis of its being unconstitutional unless an appellate court has made a determination that such statute is unconstitutional."

In other words, the California Constitution itself says that when an agency thinks that a statute violates the Constitution, the agency should continue to obey the statute until appellate courts have resolved the matter. Section 3.5 thus sets up an orderly process to prevent each agency from going its own way and disregarding the will of the legislature in the name of constitutional conscience.

Amar then discusses what I discussed above--the argument for non-judicial determination of constitutional law. I will quote this discussion below. For now, to cut to the chase--why does Newsome lose in California, in Amar's view:

If Mayor Newsom is right that sometimes there is room for independent executive judgments on constitutionality, and right that his position won't lead to chaos, then why -- in my view -- is he still wrong in the bottom-line position he has taken?

For one simple reason: California has the right to choose -- and has apparently chosen, in Section 3.5 -- to have a uniform position within the state executive branch concerning the constitutionality of state statutes. And that position, according to California's choice, is the Governor's position in defense of all statutes that haven't yet been struck down -- not the Mayor's.

Read his articles for more substance- that is the basic argument. Here, though, is the Professor's telling of what I attempted above: a discussion of judicial review and its discontents:

Newsom Is Right that the Executive Can Sometimes Make Constitutional Judgments

Some opponents have suggested that Mayor Newsom has no business making constitutional judgments in the first place; that is for the courts, and only courts, to do. But that argument defies both the oath he took, and history.

Mayor Newsom is right that in some circumstances, executive officers are entitled to make independent constitutional judgments. Or, put another way, it is not the case that only courts can undertake constitutional review - it is not true that other branches of government always need to wait for, and defer to, the judiciary's determinations of which statutes are constitutional and which are not.

As the California Attorney General's brief points out, Marbury v. Madison does say that "it is emphatically the province and duty of the judicial department to say what the law is." But "emphatically" is not "exclusively," and history suggests that sometimes the Executive -- and not just the Judiciary -- has also pronounced on the constitutionality of laws.

Indeed, many a President has historically, and I think properly, asserted a power to decline to enforce a Congressional statute that he believes is unconstitutional -- a power deriving from both the oath he takes to support the U.S. Constitution, and his duty to see that the law, especially the Constitution, is "faithfully executed."

Historical Examples of Constitutional Judgments By Presidents

For example, in the 1798 Alien and Sedition Acts, Congress sought to outlaw criticism of incumbents -- an obvious First Amendment violation. The federal courts, however, held otherwise.

Thomas Jefferson pardoned all those who had been convicted under the old Act, despite these court decisions. To Jefferson, the question was not simply what courts had done or might do, but what his own independent constitutional conscience dictated.

In 1832, President Andrew Jackson vetoed a bill on constitutional grounds -- again, using independent judgment despite a prior court ruling. There, the Supreme Court had already upheld a similar bill against constitutional challenge. But Jackson wrote:

The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision.

Even the Supreme Court itself agrees to some extent: As Walter Dellinger observed when he served in the Office of Legal Counsel during the Clinton administration, the Court has "endorsed" the practice of a President's declining to enforce statutory requirements he views as unconstitutional.

Independent Constitutional Judgment By the Executive Will Not Always Lead to Chaos

Opponents also claim that Newsom's position is inherently unworkable: Allowing a Mayor to follow his own constitutional conscience would lead to chaos.

But that's simply not the case. As a general matter, allowing local officials to disregard state statutes they think are unconstitutional would hardly lead to anarchy -- for there are relatively few instances where an official in good faith can allege he believes a statute is unconstitutional. A state could, if it wanted, choose not to have a section 3.5 analogue in its state constitution.

Opponents' more specific predictions of how Mayoral exercise of constitutional conscience would lead to chaos are also overstated. For instance, they suggest that, according to Newsom's logic, a pro-life Mayor could order prosecutors to criminally charge doctors who perform abortions, despite Planned Parenthood v. Casey's affirmation of the basic principles behind Roe v. Wade.

But that's not correct. Newsom's position allows Mayors to protect federal constitutional rights more broadly than courts have yet protected them, but not more narrowly.

Consistent with his position, Mayor Newsom's expansive interpretion of federal equal protection would allow him to authorize same-sex marriage. In so doing, he would be thwarting California statutes to be sure -- but not violating anyone's constitutional rights. There is no federal constitutional right of heterosexuals to enjoy the exclusive protection and benefit of the marriage laws, and no one -- given the state of American law -- could believe in good faith that there might be such a right.

Go Panthers.

Off to the Queen City.

the lord's air

Fourth Circuit Atheists?

Sallie Peake, Mayor of Wellford,South Carolina, responds to the recent fourth circuit ruling:

Those atheists on the Supreme Court, don't they know the air they breathe comes from my Lord.

The fourth circuit Court of Appeals recently ruled that prayers specifically naming Jesus Christ at the beginning of town council meetings in Great Falls, South Carolina, violate the first amendment.

inactive judges

Dahlia Lithwick must have read our comments section. The legal writer and editor at Slate gives an interesting contribution to the always fun issue of a judge's job, and attacks the repeated-until-true fiction of "activist judges." Such judges, goes the story, make law rather than interpret law; they read the Constitution through individualized lenses and create rights for individuals or restrictions on government action out of whole cloth.
Rather than jumping into the normative debate on living vs static constitution, though, Lithwick offers a new term to the politicalized world of judge-ness: "re-activist judges." Read her article for a sampling of what judge-types fall into this category. A sampling:

Re-activist judges are the ones trying to roll back time to the 19th century. Re-activists are the judges who have reactivated federalism by rediscovering the "dignity" of states. Re-activists view Lawrence v. Texas - last year's gay sodomy case - as having all the jurisprudential force of a Post-it note.

Her new lingo is fun, but I'm not sure whether it promotes a key argument with which I'd wager Lithwick and I would agree: there is no such thing as "activist judges;" or, more clearly, there is no such clear division in the judge world into those, on one side, that liberally and recklessly perform the task of deciding cases and those, on the other, that apply the laws consistently and true-to-the-law's-letter to each case.

The false "active" divide.
Judges receive (at least) two briefs for every case wherein capable people argue for opposing interpretations of the law. If a proposed interpretation is laughable, the case is thrown out with potential fines levied on the lawyer. Thus, every case a judge hears has at least two plausible applications of the law to the facts. In this regard, every judge is so-called activist, because every judge must, at this point, decide on a decision-making method. You see, already, the inanity in arguing that one judge interprets and the other makes law, here. If interpreting law in-actively is possible, we need only a machine to apply such law to each case. As it turns out, it is impossible not to be "active."

Here, one argues: But, some judges' method consistently applies the letter of the law, while other judges feel free to liberally interpret laws to meet their desired ends. Submitted evidence will primarily be substantive due process (privacy rights, abortion rights, consensual sex, et al). The argument asks, where in the Constitution does it provide for the right to an abortion?
So goes for restrictions on government action: why does "establishment of religion" mean anything other than the establishment of a national church?

1. Interpreting words
The latter is easier to tackle, as a specific example. The first amendment bars Congress from making any law respecting the establishment of religion. If you are a judge and a case arrives on your desk where one party argues that Congress violated the Constitution in passing a law to put a nativity scene in front of the capitol with a sign reading "All glory to Christ our Lord, may he bless our country," how do you rule? If you decide it is no violation because it does not establish a national church, what led to that interpretation of the first amendment?
In point of fact, such an interpretation is a judgment call. The interpretation asserts that the words say something that they do not; the amendment does not say "respecting the establishment of a nation church," nor, even, does it say "respecting the establishment of a religion," (although earlier drafts did include the article. Because the Constitution does not contain a footnote describing just what establishes religion, a judge must make one up.

The overarching problem here is that we deal with words- and in the Constitution, we deal with a very skeletal arrangement of words. As such, there are two possible ways forward: 1) add an amendment to clarify each issue coming under Constitutional law, or 2) rely on the layers of precedent- judicially evolving the Constitution's language. For better or worse, our country takes choice # 2. (another topic, but I'll assert it is the better choice- as the plethora of amendments would amount to an impossible legislative duty).

In interpreting the words of statutes and the Constitution, the problems arise as soon as the facts do not align to the text (where the law doesn't provide an obvious answer). Here, the judge has the various methods of textualism, statutory intent, reliance on precedent, and on and on. No method is perfect, and none less active than the next. For instance, relying on original intent requires an historical inquiry. Talk to a history professor for an hour if you think one can make such an inquiry without personal interpretation. Deciding, for instance, the meaning of religion in the context of the first amendment involves a massive choice: is the term general or specific (merely baring a national church)? What does "militia" mean in the second amendment? These questions are thoughtfully debated, and one must choose sides.

2. Creating rights.
Our other indictment is against the rights creator. Here, I have less to say because the issue vexes me too. I'm in a grey space on this- not really against substantive due process, but with no huge love for it. For now, as this is already turning into a paper, let me say this: a pox on both houses. No group of judges is more or less "activist" here.
For instance, Justice Douglas relied on a "penumbra" of rights that are created in the aura of the bill of rights- and this generalized liberty gives us the protection of privacy interests. Because of the politicization of abortion, the substantive due process right to privacy is most condemned and attributed to "activist judges."

The eleventh amendment reads, very literally, that a citizen of one state cannot sue another state. But, the Court has interpreted the sovereign immunity to extend to suits by a citizen against his own state, and further, sovereign immunity under the 11th amendment protects states from suits where the state has not given consent to be sues.
Which Justices interpret these provisions that are clearly not in the amendment? Rehnquist, Scalia, Thomas, O'Connor and Kennedy. As Kennedy wrote in Alden v. Maine: sovereign immunity derives not from the Eleventh Amendment but from the structure of the original Constitution itself." Sounds, to me, like Douglas' penumbra.

The point, for now, is that substantive due process is a gum on every judges' shoe--providing commentators with easy gotcha points with little research required. We'll debate further on what to do about this gum.

Kerry and Education

In education policy, teachers matter most. And Kerry's ideas reflect this truth. Jonathan Schorr, in The Washington Monthly, discusses John Kerry's "New Bargain with American Teachers" plan. Details of the plan are on the Kerry website, here. As Schorr notes, Kerry's plan challenges some policies dear to the teachers unions; namely, the seniority based pay increases and the more-or-less guaranteed veteran tenures. Quickly, the plan offers pay raises in return for student performance, some greater ease in firing bad teachers, and incentives to keep excellent teachers in poor schools.
From Kerry's site:

This is what the Kerry-Edwards plan will offer:

* Recruit great teachers by raising pay where we need them the most, as well as scholarships and loan forgiveness through a new teacher corps.
* Retain teachers through better preparation and support, including holding schools of education accountable for improved results, and offering more mentoring on the job.
* Increase parental involvement using new technology and proven successes.

This is what the Kerry-Edwards plan will ask:

* Require all new teachers to pass rigorous entry tests.
* Require fair, fast procedures for improving or replacing teachers who do not perform.
* Require greater pay for teachers who excel in participating schools, including excellence that is demonstrated through improved student performance.
* Provide more support for schools to turn around and more rewards when they do.

Teachers come first.
From Schorr:

Look carefully at the education reform literature, however, and you'll find evidence that is both hopeful and frustrating. The hopeful finding is that good teachers can make all the difference. Over the last 15 years, dozens of studies examining failing schools that have been turned around have shown that the secret to success is high quality teaching. OneTexas study showed that putting strong teachers into weakly performing classes nearly closed the gap between poor and affluent students' math scores. The Teaching Commission, a blue-ribbon bipartisan panel headed by former IBM chief Louis Gerstner that has studied the available school reform data, concluded: "The proven value of excellent teaching all but demolishes the notion that socioeconomic status is the most important determinant of what kids can learn."

The problems, Schorr continues, are numerous: low pay compared to other professions, a "mind-numbing credentialing process," the best teachers are too often not in the worst schools, and so many of those that are in the worst schools have devolved to merely babysitting the kids.

Kerry's plan would work like this: Teachers who can demonstrate excellence--by proving through standardized tests that their pupils are learning well--would be eligible for pay raises of about $5,000. Kerry would use similar bonuses to attract teachers to schools that are suffering from staff shortages (typically low-performing urban and rural schools) and to subject areas that have too few teachers, such as math and the sciences. Kerry would use the money not just as rewards for teachers, but also to provide incentives for schools and districts to create paths for career advancement, so that high-performing teachers could be promoted to master-teacher or mentor spots.

And apparently, even Chester Finn likes the plan.

Prayers

Can we expect an en banc hearing?
The most conservative of our appeals courts, the fourth circuit, just handed down an opinion striking down a town's pre-council-meeting prayers. The case is Wynne v. Town of Great Falls.

Wynne, a wiccan, brought the case in response to the opening prayers at each town council meeting--meetings she attended regularly. The prayers consistently invoked Christ particularly. Thus, Wynne asked the counsel to alter the prayer, invoking a more general "God." The town addressed the issue and decided to adhere to the traditional Christ-centric prayer.
Wynne attempted to participate in the council meetings while avoiding the prayer, but found the practice difficult. If she showed up late (to avoid the prayer) she lost her speaking place. She also found herself being taken less seriously, et al.
Thus, the establishment clause challenge.

The fourth circuit avoids the various tests floating about regarding what exactly is an establishment. Instead, the appeals court relies on some sturdy precedent regarding particulars in public prayer; to wit, particulars are a no-no; to further wit, government can acknowledge God (or religion), government can even make religious overtures. But, government cannot go so specific as to prefer a specific kind of religion. (As we look at the fourth circuit's review of the precedent, one sees the reasoning is most akin to O'Connor's endorsement test.)
The Appeals Court takes on the primary case for the Town's defense, Marsh v. Chambers, 463 U.S. 783 (1983). There, the Supreme Court allowed the Nebraska state legislature to open sessions with a non-sectarian prayer. But the recipient of prayer becomes key.
The Supreme Court has consistently held against "denominational preference."

Regardless of the context or applicable "test," one "command of the Establishment Clause" is absolutely "clear": "one religious denomination cannot be officially preferred over another."

Importantly, Marsh discusses and relies on what is one of the major arguments in support of public prayer: tradition. Namely, the practice of opening governing sessions with prayer has been a consistent part of said sessions since our earliest days. Marsh, as our Chief Justice does now, goes into significant historical review. Of particularly poignant evidence, our first Congress authorized paid chaplains just three days before deciding on the words of the establishment clause--and the history of pre-session prayer has been uninterrupted.
But, the fourth circuit notes, Marsh "emphasized, however, that the legislative prayer at issue there did not attempt 'to proselytize or advance any one, or to disparage any other, faith or belief.'"
As said above, the recipient of the prayer matters. Since the town council prays specifically through Jesus, it violates the establishment clause quite clearly.

Now, coming off that reasoning, I have a question. (not to deny the remarks disparaging the precedent...I know you're coming)

What in the world is a non-specific prayer? The Allegheny case, amongst it's reasoning-brothers (setting the no-specific endorsement standard), always confuses me. Prayers are necessarily directed to something. The cases establish that, as long as the something is left unclear by the prayer, the prayer is OK. While the reasoning stands, the common sense fails me.
I won't go far into that for now...but it drives me batty.

leaker confidential

I remember in my media law course discussing leaker confidentiality. As you know, much of our juicy information comes from a "senior administration official." Reporters refrain from id-ing the leak for fear of losing future leaks. It's a subject close in kin to lawyer/client, doctor/patient, and president/advisor confidentiality. The idea is to promote candid communication between the parties.
For a reporter's perspective on the issue, I commend Josh Marshall. His post, today, contemplates the two reporters threatened with contempt (more specifically, jail time) for failing to identify a leaker in the Valerie Plame affair. Marshall has watched the issue particularly and wants some conclusions; however, the reporter in him supports the reporter that faces contempt. A good read on the subject.

Buyout Waffle

Waffling close to home.
A candidate's saying what his audience wants to hear, and in doing so changeing his position on an issue is truly disturbing. A candidate that changing his mind after reflection and debate is not at all disturbing. It is left to our best estimates and biases which above activity a candidate practices when that candidate shifts gears mid-issue. Because the GOP primary mode of attack against Kerry is and will continue to be focused on any such changes in policy positioning, it is only fair to, as a partisan, hold up the mirror.

President Bush changed position quite clearly on an issue dear to NC vote-seekers. Early this past May, Bush said this:

They've got the quota system in place -- the allotment system -- and I don't think that needs to be changed.

Oops. The buyout is supported without real dissent in all the old tobacco states. Richard Burr, amongst other Republicans, educated Bush to this after the comment. Then, we have this:

After the House vote Thursday, White House spokeswoman Jeanie Mamo said "the administration is open to a buyout. We will work with Congress."

Profiles in....

Michelle Malkin has a book out defending profiling in the war on terror and, to boot, offering a "courageous defense" of the Japanese internment during World War II. Professor Muller (UNC Law) has a blog out to argue her conclusions. (OK, he has a blog, but his arguments are on the Volokh blog, starting here.)
As Muller wrote the book (literally- "Free to Die for their Country) on the internment, this should be an interesting exchange. A bit or two from Muller:

As I continue liveblogging my own thoughts about Michelle's book "In Defense of Internment," I'll note a part of the book where I think Michelle is quite right. In her introduction (pages xiii to xxxv), or at least in certain parts of it, she makes the case that the civil liberties Left and representatives of the Japanese American community have not helped anyone think clearly about the Roosevelt Adminisration's policies by attacking each step of the Bush Administration's domestic antiterrorism policy since 9/11 as a reprise of the worst mistakes of WWII. This was one of the two main points I made in my article "Inference or Impact? Racial Profiling and the Internment's True Legacy," which Michelle graciously cites in her book.
...

OK, enough about research methods and terminology and book covers. Let's get to the meat of Michelle's claim, shall we? Her argument is that intercepted and decrypted Japanese "chatter" about efforts (a small number claimed to have been successful) to recruit Japanese aliens ("Issei") and American citizens of Japanese ancestry ("Nisei") was "the Roosevelt administration's solid rationale for evacuation." (page 141) It's a claim of causation she's making: notwithstanding the scholarship of the last 30 or so years, based on exhaustive perusal of available archival records, which shows the overpowering influence of racism and various sorts of nativist and economically motivated political pressure on the various decisionmakers' actions, these MAGIC decrypts, viewed by only a few of the key decisionmakers, were "the Administration's rationale"--a rationale grounded in military necessity.

springsteen

Because we've talked about performers and politics, let me mention Bruce Springsteen's op-ed in today's Times.
There....mentioned. Here are some sound bites:

Through my work, I've always tried to ask hard questions. Why is it that the wealthiest nation in the world finds it so hard to keep its promise and faith with its weakest citizens? Why do we continue to find it so difficult to see beyond the veil of race? How do we conduct ourselves during difficult times without killing the things we hold dear? Why does the fulfillment of our promise as a people always seem to be just within grasp yet forever out of reach?

I don't think John Kerry and John Edwards have all the answers. I do believe they are sincerely interested in asking the right questions and working their way toward honest solutions. They understand that we need an administration that places a priority on fairness, curiosity, openness, humility, concern for all America's citizens, courage and faith.
...
Like many others, in the aftermath of 9/11, I felt the country's unity. I don't remember anything quite like it. I supported the decision to enter Afghanistan and I hoped that the seriousness of the times would bring forth strength, humility and wisdom in our leaders. Instead, we dived headlong into an unnecessary war in Iraq, offering up the lives of our young men and women under circumstances that are now discredited. We ran record deficits, while simultaneously cutting and squeezing services like afterschool programs. We granted tax cuts to the richest 1 percent (corporate bigwigs, well-to-do guitar players), increasing the division of wealth that threatens to destroy our social contract with one another and render mute the promise of "one nation indivisible."
It is through the truthful exercising of the best of human qualities - respect for others, honesty about ourselves, faith in our ideals - that we come to life in God's eyes. It is how our soul, as a nation and as individuals, is revealed. Our American government has strayed too far from American values. It is time to move forward. The country we carry in our hearts is waiting.

Why do I quote Bruce's lines? He's a performer, eh?
Here is an end to the spectrum of performer/politics wherein I can imagine no argument: an opinion article written to the Times. And quite well done. Springsteen has always been passionate about certain issues, while not getting involved for particular candidates. It isn't suprising to see his thoughtful lines. Had they been on the opposing side of politics, it would be likewise un-arguable as reasonable and worthwhile political involvement--hence, I would regard an objection based on his being a performer unreasonable. Object, if you do so, on its substance, not the delivery.

If that is established- where is the line wherein performers get unreasonable with their politiking? (I'm not sure there is one- but I know a many of you find the performer/politiker unreasonable.)

bad politics

The Bush re-election team shows, once again, how those Republicans rise above the normal, dirty fraw of negative campaigning. From the Times:

Mr. Bush's advisers plan to cap the month at the Republican convention in New York, which they said would feature Mr. Kerry as an object of humor and calculated derision.

...

Mr. Bush's aides said they were determined to use the weeks ahead to highlight Mr. Kerry's 20-year record in the Senate, using votes he has cast and what they described as his lack of accomplishments to portray him as ineffective, ideologically out of step, and a slacker for missing crucial votes while campaigning.

"He has 20 lost years," Mr. Dowd said. "It's amazing." Mr. Kerry's voting record - he has cast more than 6,000 votes in all - has long been considered vulnerable by Democrats and Republicans, not just because it can be characterized as liberal, but also because it is so vast and touches on so many complicated and politically fraught issues over so many years. The decision by Mr. Bush to turn on Mr. Kerry's voting record, while hardly a surprise, underlines why members of Congress are sometimes viewed as less than ideal candidates for president.

The decision by Mr. Bush's aides to continue the attacks on Mr. Kerry up to and including the convention is in keeping with the aggressive tone the White House has struck against Mr. Kerry from the moment he effectively won his nomination in March.

Yes yes. Let us focus on the past, and on making the opponent the butt of jokes. This is truly the way forward.
The decision to have Kerry as the laughing stock of the GOP convention, rather than taking on his ideas head on, is simply shrugg-able. I could really give a durn if the Repubs can't talk straight on the issues. What gets my goat is their gleeful use of Kerry's voting records. I'm not sure the extent to which Kerry has changed his mind--thoughtfully--about something. Nor am I sure the quantity of Bush mind-changes. I am sure, though, that I prefer the politician with a sense of vulnerability as opposed to the log of wood. And if voting record negative-campaigning is a tool that prevents Congress from voting with their minds and hearts- than I believe such campaigning ruins a whole big deal.
In any event, it is my belief this Bush campaign is much more comfortable with the tried and true politics of nagative campaigning than is Kerry/Edwards. The funny thing: Bush Co. will convince Americans that Kerry/Edwards are the negat-os.