Obama's Approval Ratings Still Low ....

but everyone else's are lower.
I suppose that's good news for the president.

Let's Hope We Pay Off the Iraq and Afghanistan War Debt Sooner Than This

Germany has paid off WWI debt, just now.

Obama Has a New Chief of Staff

Rahm Emanuel is out, Pete Rouse is in.

- Wikipedia.

Should Bills Passed by Congress Contain Language Stating What Part of the Constitution Authorizes It?

The Republicans' Pledge to America states that they should. Andrew Sullivan highlights dispute concerning the requirement:

The passage makes Ben Adler of Newsweek uncomfortable: "Not so harmless, however, is the promise to require every bill to be certified as constitutional before it is voted on. We have a mechanism for assessing the constitutionality of legislation, which is the independent judiciary. An extraconstitutional attempt to limit the powers of Congress is dangerous even as a mere suggestion, and it constitutes an encroachment on the judiciary."


Ramesh Ponnuru cries foul: "There's nothing -- nothing in the Constitution, nothing in Marbury v. Madison, nothing even in Cooper v. Aaron -- that suggests that congressmen cannot consider the constitutionality of laws while voting on them. That they can do so, which one would have hoped would be a banal idea, does not even challenge judicial supremacy: The courts can still be the final arbiter of constitutionality. The Pledge provision in question is "extraconstitutional" only in the trivial sense that the Constitution neither requires nor forbids it. And the provision is better understood as a spur to congressional self-restraint than as a "limit" on congressional power."
My two cents: It's a great idea. All laws have to have a basis in the Constitution anyway, so why not establish this up front? Supreme Court decisions often begin with language that explicitly links the legislation to the relevant part of the Constitution. Supporters of a given law should actually be anxious to do so because instead of relying on legal reasoning fabricated by litigants to a suit regarding the law (people who may have had nothing to do with the making of the law), they can pre-determine what argument ought to be made to the court. They can, perhaps, cut off constitutional challenges before they get legs. Judges and justices would not be able to claim that they could not determine the constitutional intent of the law, because that would be made clear in the law's language. It is, tactically, a great idea.

It also serves a greater purpose. It contributes to civic education by fostering a more intelligent conversation about the Constitution and how it should be interpreted. For those who argue for a broader interpretation of constitutional language, it would also provide a stronger platform to argue that the legislation is in fact based on a reasonable interpretation of constitutional language, even if it is not always convincing to opponents. This could (could, I don't want to be naive) help raise the level of discourse about public affairs. Democrats should support this proposal (it would be so post-partisan to do so). By not engaging in this conversation, they simply help strengthen the Tea Party position that they, and they only, speak for the Constitution.  

Dahlia Lithwick Comments on NBC's Outlaw

As much as we talk about the importance of the rule of law, we don't seem to really like it. And while due process has taken centuries to evolve, and has been central to the gradual restraint of arbitrary governing powers, we seem to support arbitrary power when it suit us. As with many other things, the public seem conflicted. We don't seem to believe that our legal system, based on due process, provides justice. We must go beyond the law to achieve justice. This is a contradiction and heads us down to the path to vigilantism and arbitrary justice (Texas Justice!).

Here's commentary to that effect in regards to the merits of a new show about the Supreme Court: Outlaw:

I wasn't particularly bothered by the show's mangled legal universe, a world in which wiretapping is conveniently permissible so long as the conversations are "patently illegal," and evidence of actual innocence is magically admissible in death-penalty cases because, um, one time it was legal in a tort case. Nobody is going to make a show about successive habeas petitions interesting. The real sin of Outlaw isn't the bad writing or the gratuitous sexism or the liberties it takes with the rules of evidence. It's the cynical view of the legal system, a view that holds that the law is fundamentally unjust and lawyers must go outside the system if they are ever to achieve moral results.

When Justice Garza departs the Supreme Court, he does so with a lofty-sounding speech about how he "used to be satisfied being cautious and neutral—being Switzerland." Garza says he's spent years mechanically applying "the law," but now he's ready to get out there and change things. Or as he puts it: "Following the rules doesn't always lead to justice. When that happens, you've got to change the rules."



The problem isn't that Garza turns to lawyering in order to help people. It's that the way he goes about changing the law seems to be by breaking it. His private eye gets hold of classified information the old fashioned way: "by flashing my boobs." His clerks track down a reluctant witness with illegal wiretaps. So he's not just saying that justices can't deliver justice. He's saying that the only way to deliver justice is through a life of crime.
Perhaps you agree with the sentiment?

Washington Wins

David Axelrod, Obama's chief strategist -- a key member of both his campaign and White House Staff -- leaves office. His attempt to help change the culture of Washington didn't work out to well. It was naive to think he could.
____

Update: Here's interesting commentary. Who says Washington needs to change anyway? Why do we automatically assume its "broken?"

The same charge is routinely voiced by liberals, conservatives, and nearly everyone in between: If we could transform “how Washington works,” then our country would once again accomplish great things. But, like all tales about a bygone political golden age, this notion ignores historical reality. Since the Gilded Age, when both a large and permanent federal bureaucracy and massive national corporations emerged, there has been a Washington “system.” Corporate lobbyists, lavish donations, arcane and undemocratic Senate rules, dishonest campaigns bankrolled by millionaires—all were familiar to perceptive commentators from Henry Adams and Lincoln Steffens to Walter Lippmann and I.F. Stone. As long as the United States is a capitalist nation with a government ruled more by self-interest than great ideals, the system will endure.



Successful presidents like William McKinley and Lyndon Johnson soberly analyzed how “Washington” operated and made it work in their favor. Transformative presidents like FDR and Reagan eloquently bashed entrenched interests in the name of “the people,” while they and their advisers played those interests against one another for maximum legislative and electoral gain. Despite Roosevelt’s assault on “economic royalists” and Reagan’s fondness for Tom Paine’s phrase about “beginning the world anew,” neither man was naïve enough to think he could uproot the system. FDR needed some of the most noxious Southern Democrats who ran key committees to push through the signature bills of his New Deal, while Reagan cut a deal with Tip O’Neill to drop his proposal to freeze a cost-of-living raise for Social Security recipients if the speaker would back an increase in the military budget in the House.
Is Washington really broken or are we the people simply ignorant -- naive? childish? -- about how the world really works? In 2301 we are analyzing Madison's comments regarding human nature and the constitutional order. Men are not angels. Why do we continue to expect angelic behavior?

The Space Shuttle Will Continue

For another year at least...

NYT Updated Votes - 9/29/10

For my 2302s as we wrap our discussion of the legislative branch: NYT's Inside Congress page with its review of recent votes in thr House and Senate.
For information about activity in our out of session state legislature, go here for the House and here for the Senate.

Videos for 2302

Here are links to the videos I'm showing -- separately -- in each of my two 2302 lectures classes:

- $10 Trillion and Counting.
- The Warning.  

Super PACs

Here's evidence that the decision in Citizens United v the FEC is leading to increased spending on elections, as critics suggested: The rise of "super PACs."
A political action committee is simply a private organization that collects money and uses it to influence elections. Until the Citizens United decision these organizations were regulated and limited to some degree. Now, they've exploded in influence and size. Many of the contributions are undisclosed, leading critics to argue that they facilitate corruption by making it difficult to determine who is financing whom and what favors might be received for political support.

The Supreme Court Adds to Its Docket

From the NYT:

The U.S. Supreme Court has added several cases to its docket, including some touching on the rights of corporations and the states secrets doctrine.

One Out of Every Eight Judicial Seats is Vacant

Should we be worried?

We're #38!

According to Foreign Policy Journal, Houston is the 38th most important city in the world -- out of a list of 65. Dallas (and their stupid little cowboys) didn't make the list ... and don't even think about Austin.

From the rundown: Long famous for its energy companies, Houston is now striving to also be a leader in medicine. The Texas Medical Center in Houston, renowned as a top-flight research center, reportedly conducts more heart surgeries than anywhere else in the world.

Divided and Confused About Health Care

That's the conclusion regarding the public from the Pew Research Center's latest poll on the topic.

A couple points stick out:

• some opposition comes from people who think the law did not go far enough.
• there is a difference in attitudes between the old and young. The old are more likely to oppose it while the young are more likely to favor it.
• people are more confused about what's in the bill now than they were six months ago.

Have a Question About Religion? Ask an Atheist.

They, along with agnostics, apparently know more about religion than the religious.

China Inc.

Thomas Friedman thinks we should be worried.

Forecasting the 2010 Elections

On the economy and the vote.

Revolving Door Lobbyists

An academic inquiry into the revolving door between interest groups, lobbyists and members of Congress:

We study how ex-government staffers benefit from the personal connections acquired during their public service. Lobbyists with experience in the office of a US Senator suffer a 24% drop in generated revenue when that Senator leaves office.

This tells us that Senate staffers who leave their positions to lobby, make a chunk of cash lobbying their old bosses.

Mayors Recalled Across the Nation

Mayors who have dealt with budgetary crises by either raising taxes or cutting spending have been recalled by voters across the nation. Does this support or undermine the notion of direct democracy? Is the public serious about prudent budgetary policy? This fits into our larger discussion about whether the public can actually govern itself, which is the heart of the American Experiment.

Preparing to Gerrymander

How to Tilt an Election Through Redistricting.

Presidential Addresses to School Children

After a discussion with some friends about whether Obama is the first president to address school children, I decided to look it up. Here's info from Politifact. Both Reagan and HW Bush addressed school kids. And yes, Democrats had the same type of objections to the address (Bush's) as as Republicans do now to Obama's.

Two Economies? Poverty Rates Rise, but so do the Number of Millionaires

Perhaps this is more evidence that we are living in two different economies. While the Census Bureau reports that the number of people living in poverty (under the federally defined poverty threshold) has increased from 13.2% in 2008 to 14.3% in 2009, the number of millionaires living in the United States increased.

Will there be political fallout from this?

FYI:
- Quality of Living vs. Quality of Life.

Does the Republican National Committee Matter Anymore?

Juan Williams reports on efforts of Republicans to bypass the RNC and promote Republican candidates and ideas by other means. Karl Rove has set up independent groups that will take advantage of recent court decisions that allow unlimited spending on campaigns by third party groups, and of course Tea Party candidates are taking on the Republican establishment at least as much as they are taking on Obama and the Democrats.

Sp does this strenghten or weaken the party? While it may make the party more receptive to the various passionate viewpoints among its identifiers (which is essential if it to be effective electorally), it might also compromise the party's cohesiveness (its willingness to vote together as a solid block), which has been the source of its strength. Expect a power struggle within the party -- especially if it wins the House or Senate -- centered on what agenda it will pursue. Someone will win, someone will lose. Will the losers -- especially if it is the Tea Partiers -- follow the winners lockstep, or will internal rebellion ensue?

NYT: Karl Rove is building a "shadow" Republican Party.

Regarding Standing: Who Has the Right to Sue?

The concept of "standing" refers to whether the court has the jurisdiction to hear a particular case, which is a nice way of saying that a litigant does not in fact have the right to sue, or take a case to court. The current court has increasingly restricted the concept of standing, meaning that access to the courts has contracted recently. Cases, like the one involving  have been the inclusion of "under God" in the Pledge of Allegiance, not on the merits, but because the person who brought the case forward was not directly affected by the law.

Linda Greenhouse predicts that the Supreme Court will get tangled up now that conservatives want to challenge the constitutionality of the health care law, among other things.

The Tea Party and the Proper Interpretation of the Constitution

Ron Chernow, who has written about Alexander Hamilton among others, disagrees with the Tea Party's claim that they speak for the founder's vision of the Constitution. He tells us that disputes over proper interpretation stem from the question about whether the Constitution authorized the creation of a national bank, even though that power is not specifically delegated in the document. Hamilton and Washington believed that the bank was authorized through the necessary and proper clause, while Madison and Jefferson said it didn't.

John Marshall would claim that this episode led to the development of the two party system:

John Marshall, the famed chief justice, traced the rise of the two-party system to that blistering episode, and American politics soon took on a nastily partisan tone. That the outstanding figures of the two main factions, Hamilton and Jefferson, both belonged to Washington’s cabinet attests to the fundamental disagreements within the country. Hamilton and his Federalist Party espoused a strong federal government, led by a powerful executive branch, and endorsed a liberal reading of the Constitution; although he resisted the label at first, Washington clearly belonged to this camp.


Jefferson and his Republicans (not related to today’s Republicans) advocated states’ rights, a weak federal government and strict construction of the Constitution. The Tea Party can claim legitimate descent from Jefferson and Madison, even though they founded what became the Democratic Party. On the other hand, Washington and Hamilton — founders of no mean stature — embraced an expansive view of the Constitution. That would scarcely sit well with Tea Party advocates, many of whom adhere to the judicial doctrine of originalism — i.e., that any interpretation of the Constitution must abide by the intent of those founders who crafted it.
And that helps explain political controversies ever since.

The Elected Iowa Judiciary

Iowa voters aim to vote out state judges who approved the recognition of same sex marriages. This is a reminder that it matters whether judges are appointed or elected.

On the Supreme Court's Use of History in Fourth Amendment Cases

For our upcoming discussion of civil liberties: Grits for Breakfast provides a link to a recently published critique -- The Fourth Amendment: History, Purpose, and Remedies, by Arnold Loewy --  of the Supreme Courts' Fourth Amendment rulings.

Grits highlights the following from a talk by Loewy:

Frankly, I would rate the Supreme Court’s use of history as spotty and inconsistent. Let’s compare, for example, Watson v. United States and Tennessee v. Garner. In Watson, the Court examined the history of the right to arrest without a warrant for a felony which the police officer has probable cause to believe was committed by the arrestee. The Court concluded correctly that at common law arrests for a previously committed felony without a warrant were permitted. Substantially, but not exclusively, because of this history, the Court upheld the right to make a warrantless arrest for a previously-committed felony.

So far so good, but there is one major question that the Court did not ask, despite the urging of Justice Marshall’s concurrence: That question is whether the concept of felony meant the same today as it did at common law when the “no need for a warrant” rule developed. The answer seems to be pretty clearly “no.” At common law, all felonies were both violent and capital. Consequently when a police officer saw a felon at large, it was likely a violent individual, who, if he escaped, would escape the hangman.

Watson, on the other hand, was a non-violent credit card defrauder, who in modern times, is a felon. Well, does history demand that this type of felon be treated the same way as the violent felons for which the common law did not require a warrant? My answer would be either “no,” or at least “not necessarily.” Surely the common law rule calling for the arrest of violent, capital felons tells us little about whether the same rule applies to non-violent defrauders, such as Watson.
Loewy highlights, repeatedly, the requirement that searches be "reasonable" but criticizes its consistency in how it defines what is and isn't reasonable, and whether the court thinks that it is its job to apply it in every case where a question is raised.

Again, an extended Loewy quote from Grits -- this involves a court case that stemmed from an incident in Lago Vistam where Highway 6 intersects I-45:

The operative word in ... the Fourth Amendment ... is “reasonable.” Indeed, in case after case, the Court has emphasized that the overarching principle of the Fourth Amendment is reasonableness. Most of the time when the Court cites “reasonableness” as the overarching principle, it does so to uphold a search; e.g. There is no need for a warrant here because the search comports with the overarching principle of reasonableness. Without regard to the correctness of those decisions, one would have thought that the same principle (if indeed it is a principle) would have applied in Atwater. But it did not. The Court conceded that as applied to Atwater herself, the arrest was clearly unreasonable. As the Court so starkly put it: “Atwater’s claim to live free of pointless indignity and confinement clearly outweighs anything the City can raise against it specific to her case.”

So, one might have thought that the finding of individual unreasonableness would have ended the case, but it did not. Rather, the Court continued: “But we have traditionally recognized that a responsible Fourth Amendment balance is not well served by standards requiring sensitive, case-by-case determinations of government need, lest every discretionary judgment in the field be converted into an occasion for constitutional review.”

Yet just five years earlier, in Ohio v. Robinette, the Court had said: “We have long held that the ‘touchstone of the Fourth Amendment is reasonableness.’ Reasonableness in turn is measured in objective terms by examining the totality of the circumstances. In applying this test we have consistently eschewed bright-line rules, instead emphasizing the fact specific nature of the inquiry.”

I suppose that a cynic could say that it all depends on whose ox is gored. If the police win with a bright-line rule (as in Atwater) then bright-line rules are good. But if a citizen wins by employing a bright-line rule (as in Robinette) that is bad. I am inclined to favor flexibility (so that Atwater would have won, and frankly so would Robinette, if flexibility had been applied properly). But, however one might resolve that question, we can surely expect more consistency (and more reasonableness) from the Court than we saw in Atwater.

He's a Cactus!

I knew it.

Stephen Colbert Testifies Before Congress

Enjoy.

A Conservative Reappaises Carter's Presidency

And likes what he sees.

Presidencies are reconsidered from time to time, today's success is tomorrow's failure, and vice versa. Jimmy Carter began increasing the size of the military, deregulated tracking and the airlines, and a few other things that conservatives normally like. Being a Democrat, they'd be naturally inclined to discount his achievements, but things change.

The Road to Serfdom

Frederick Hayek's Road to Serfdom has been promoted recently by opponents of policies passed by Democrats in Congress and supported by President Obama. Written during World War II and the heyday of Nazism and the rise of Communism, the book argued that a society where governments centrally plan their economies inevitably become tyrannical. The debatable question is whether universal health care, countercyclical economic policymaking (the stimulus), and banking re-regulation pushes the nation towards tyranny, or whether they are sensible means of addressing national problems. It's a worthy argument.

One writer argues that he sees tendencies towards "serfdom" in each party's agendas. Are both Democrats and Republicans supporting (separate) policies that enhance the power of the state? Democrats seek to expand government's power over the economic sphere while Republicans support expansions of police activity.

This article is useful in many contexts, including our upcoming discussion of civil liberties in 2301.

For more background:
- Wikipedia: The Road to Serfdom.
- Google Books.
- The Illustrated Road to Serfdom.
- Ummmmm...What's a Serf?

I'm Back ...

I'm back in town after four days camping out in Colorado. I'll adjust eventually.

I'll begin grading last week's written assignments soon. Hopefully they will all be done by Sunday, just in time to begin grading this week's. My apologies for the delay.

The schedule for 2301 will stay the same. We will begin lecturing on the separated powers, the nature of the three institutions of government, and how the checks and balances are designed to keep these powers separate. This will continue our analysis of the principles embedded in the Constitution.

2302 will be a bit different. After spending the previous weeks looking at the evolution of legislative branches, the constitutional design of the U.S. and Texas legislatures, and how each institution has evolved over time, we will use this background as a way to constructively analyze recent legislative activity with a special focus on budgetary policymaking. In order to open things up, I'm going to cancel the assessment this week, but ask you to address -- probably -- three written questions related to current legislative issues. We'll go over these next week.

In the mean time I'll catch up on ongoing events and post items useful to our discussion.

Is the Government Broke?

An instructive read from Richard Posner.

Conventional Wisdom - The Week of 9/18/10

The general consensus this week among commentators is that Christine O'Donnell's win in the Delaware Republican primary contest for the U.S. Senate completes the Tea Party's takeover of the Republican Party for this electoral cycle, and perhaps for 2012. By winning a decent handful of primary contests, they have defined the positions the party will take to the voters in the general election in less than two months. This aplies to a number of items we will cover in 2301, especially our discussion of the decentralized nature of political parties and the interplay among the various factors that influence what positions they take on issue in a given election.

Some random related readings:

Here, Mike Castle articulates his policy positions, the positions refuted by Delaware Republican Primary voters. They include support for cap-and-trade and stem cell research, he is also pro-choice on abortion. His loss helps explain how the two parties arrive at the positions they take on legislation. It's more bottom-up than top-down. 

Nate Silver argues that O'Donnell's ideological positions make her less likely to win the general election in Delaware than would her more moderate opponent. He downgrades the chance that a Republican will win the Delaware Senate seat, as well as the chance that the Republican Party will take over the Senate.

TNR wonders whether a more conservative House will elect existing minority leader John Boehner Speaker.

Andrew Sullivan surveys the field opining about whether this makes Sarah Palin the front runner for the Republican 2012 nomination.

A Confused Public?

Next week my 2301s start digging into the constitutional principle of republicanism and how James Madison justifies it in Federalist #10. Pure democracies are turbulent and short lived, he argues, and an elected class is necessary in order to ensure that passion is filtered out of the governing process. The following comment might explain why:

Are voters confused? For a while now, there has been a seeming disconnect in the polls. In the most recent CBS News poll we see it again, more voters say they have an unfavorable view of Republicans (58 percent) than of Democrats (56 percent), and more disapprove of GOP policies (68 percent) than of Democratic ones (58 percent). On key questions about the economy, they also like Democratic policies better than Republican policies. For example, when CBS asked which party was better at helping small business, respondents preferred the Democrats 49 percent to 41 percent. Asked about creating new jobs the response was 44 percent to 38 percent in favor of Democrats.



Yet when you ask people if they will be voting for the Republican over the Democrat, they say yes. The margin is only two points (40 percent to 38 percent), but given those other numbers, wouldn't you expect people to favor Democrats?

The answer is probably that given current hardships, a large segment of the voting population wants to punish someone, and the people in charge happen to be Democrats. It seems pointless to punish the party not in charge regardless what their policy positions are. The content of policy proposals matters less than who controls the governing institutions. Does this make for a rational public?

Update:

Jonathan Cohn and Joe Klein make much the same point. One point made by angry voters. They don't government spending or deficits, but they want quick government spending on jobs, apparently even it if leads to larger deficits.

How the Political Brain Works

We cover some of this material in 2301 when we discuss the formation of public opinion and how people process media information, so there's nothing new in this story pointing out that we can be made to believe propaganda except additional evidence about how it can happen:

In recent years, dozens of psychological studies have shown that we shape incoming information as much as it shapes us. We sift and sort, choosing what we like and discarding what we don't. Much of this happens unconsciously in what I call the hidden brain. We see the effects of these mental gymnastics all the time: Few people change their minds on hot-button issues, even when new information is provided to them. Political commentators generate lots of heat, but when was the last time you heard about a liberal who was persuaded by Rush Limbaugh? Or a conservative who switched parties after watching a Michael Moore movie? The partisan divide in the country has barely budged for over a decade—hardly what you'd expect if the hyper-partisan information we see all around us was having much effect.

Speaking of Innovation

While we are speaking of design innovation, here's a new wrinkle on manufacturing. NASA has apparently played a key role in spurring 3D printing technology, among many other technologies. One of the roles the federal government has played over its history has been to pump funding into the development of technology that has yet to prove itself in the marketplace yet. Here's the latest example. Could 3D manufacturing make factories obsolete?

Can Fashion Designs be Patented?

In both 2301 and 2302 we touched on Article I of the Constitution and the delegated power Congress has:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
This authorizes Congress to pass Patent Laws, which it first did in 1790 when it created the Patent Office. The power is based on the idea that allowing people monopoly control over their ideas and the products of those ideas encourages innovation. That this control is time-limited allows the idea to enter into the public domain and spur additional innovation. But not everything can be patented.

NPR reports on a controversy involving fashion designers and their efforts to obtain the right to patent their designs. Design has historically been considered a craft and not subject to patents. Designers wouldlike to have the ability to profit from their creations -- they are commonly, easily, and often copied.

Patent lawyers certainly would be interested in gaining the opportunity to ply their trade tracking down copycats. While listening to the story, it occurred to me that if designs were patented it would be crucial how the term "design" was defined. Imagine creating an ensemble off the cuff one morning and while walking in a public place you were informed that what you were wearing violated a designers patent rights. Could you argue that you had a right to wear what you wished and that this right superseded the designer's patent rights? There is no right to fashion in the Constitution -- you'd probably have to argue self-expression, but that involves a loose interpretation of the free speech clause.

This might not be a proper example, but limits on who could wear what are not novel in history.

Harris County Public Defender Board Appointed

From the Chron:

Commissioners Court has appointed the 15 members of the first Harris County Public Defender Board, which will oversee the public defender office scheduled to launch early next year.



The members are:


Commissioner El Franco Lee
Commissioner Sylvia Garcia
Judge Mike Anderson, criminal district courts
Judge Mike Schneider, juvenile district courts
Judge Jean Hughes, county criminal courts
Bob Wessels, manager of county courts
Clay Bowman, administrator of district courts
George McCall Secrest, Jr., Houston Bar Association
Andrew G. McGee, Houston Lawyers Association
Joel Edward Salazar, Mexican American Bar Association
Lawrence D. Finder, attorney at Haynes and Boone
Mark Hochglaube, indigent defense attorney
Kathryn M. Kase, senior staff attorney at Texas Defender Service (Disclosure: Kase is the wife of Chronicle Editor Jeff Cohen)
Rev. James Edward Nash, Sunnyside Place Community Development Corporation
Marcia Johnson, Thurgood Marshall School of Law at Texas Southern University
- Wikipedia: Public Defender.

START Treaty Approved by Senate Committee

From The Hill, constitutional checks and balances in action:

The Senate Foreign Relations Committee on Thursday approved a critical first vote on the START arms-control treaty between the U.S. and Russia, setting up a final ratification vote likely after the November elections.
The committee voted 14-4 to approve the treaty, signed in April by President Obama and Russian President Dmitry Medvedev. The pact will reduce missiles, warheads and launchers in both countries and would replace a previous agreement that expired in December.
.
- Wikipedia: The Senate Foreign Relations Committee.
- Wikipedia: Start Treaty.

Major Votes of the 111th Congress

For a future discussion in 2302 about Congress: NYT has a list of the major legislation passed by the 111th Congress.

Are Both Party Establishments in Trouble?

Rhodes Cook says yes, and gives evidence.

The Regulate, Control and Tax Cannabis Act of 2010

For our upcoming discussion of direct democracy -- recall that the Constitution establishes a republic -- here's the latest from California, the center of initiative activities, which in turn can influence the nature of policy policy change elsewhere: the Regulate, Control and Tax Cannabis Act of 2010. The bill would effectively legalize marijuana (Click here for lists of other initiatives considered in the states). .

Past heads of the DEA are threatening to sue the state if this passes, but here's a question about what the suit would be based upon.

Aside from whether this is good idea substantively, there is the federalism issue. Marijuana would remain illegal nationally, which sets up the obvious fight.

Some Thoughts While Grading 2301 -- Assignment #2

A asked my 2301 a random vague question designed to stir thoughts about consent and how it impacts governmental institutions through periodic elections -- such as the one we're about to have.

Some reactions from my end:

- The decision to offer, or not offer, consent is strictly voluntary -- assuming you have the right to vote. Voter turnout may be a reflection of which group wishes to offer consent or not. Studies of voter turnout suggest that people are more likely to turnout to vote when they do not consent to existing policy rather if they do consent. Intensity matters.

- The system of separated powers -- with its various term lengths and means of gaining office -- allows the public different degrees of consent depending on the office. We can only offer consent on a regular basis to what the House of Representatives does. While voters might be motivated to oppose policies proposed by Obama, that opposition cannot -- purposely -- be directed at him because his term of office allows him to skip this election out. The framers of the Constitution wanted the president to have a longer time frame to accomplish objectives before being held out for evaluation. In addition, the public has a limited opportunity (one-third at a time) to offer consent to what the Senate does.

- We might want to discuss why the people have no opportunity to offer consent to the actions of the national judiciary. Lifetime tenure was meant to provide judges and justices strength and independence. The people seemingly have no role to play in their decisions. This isn't entirely true since the courts respond to cases brought to them by the public, and the public can always exercise consent or opposition to the actions of the judiciary through the legislative and, to a lesser degree, executive branches. While the courts interpret the law, the law is subject to modification.

To Be Continued ....

Liberals Unhappy With Obama

Democrats are also dealing with disaffected ideologues within their ranks. Obama has been too centrist for their taste. (These two links require subscriptions -- check in the ACC library for them.)

Tea Party Candidates Beat Republican Establishment in Primaries

Democrats think this makes their candidates more competitive in November. They hope to paint these candidates as extreme. No telling if this strategy works until the elections happen.

How Reliable are Confessions?

How can innocent defendants be persuaded to not only confess to crimes they didn't commit, but do so convincingly?

Media Informant

A peculiar revelation about a civil rights photographer: He was an FBI informant while doing his work.

Constitutional Reforms Proposed in Turkey

From the NYT:

Turkish voters approved a sweeping package of constitutional reforms by a wide margin on Sunday, handing a major victory to the Islamist-rooted government and marking another concrete step in an inexorable shift in power away from the secular Westernized elite that has governed modern Turkey for most of its history.

Appropriate subject matter as we begin discussing constitutions this week.

Forecasts for 2010

From smart guy Nate Silver:

- Republicans have a 67% chance of taking the House.
- Republicans have a 25% chance of taking the Senate.
- Republicans are likely to win 30 Governors races.

Unemployment To Stay High Indefinitely?

Economists are increasingly saying it will.

Two Analyses of the Media

1 - How the Koran burning story became a "story."
2 - How Twitter has helped people survive the Colorado wildfires.

Is the Tea Party Movement Pulling the Republicans Party Too Far to the Right?

E .J. Dionne argues that they are.

We will have evidence soon enough, but it is commonly argued that highly motivated, ideologically driven party members, even if they are a minority, can pull either of the major political parties far enough to either ideological extreme that they become uncompetitive in the long run. It happened to Democrats in the 1960s, 70s and 80s and it could, possibly, be happening now to Republicans.

One culprit may be the primary election process which -- through the miracle of low voter turnout -- allows a small, focused group of people to select a party's candidates and issues. These candidates and issues might be competitive for an election cycle or two, but overtime they might turn the party off to the moderate middle (the one's who tend not to get worked up over politics and are often likely to vote only in presidential elections).

That's the theory anyway. It looks like it might get tested in the next couple of years. Of course this only matters if the aggregate opinions of the general public are fixed. If public opinion moves to the right, this doesn't matter. But considering how volatile the electorate has been over the past few years, it is not unreasonable to suspect that a motivated and highly conservative voting bloc might control Congress after this election, but will set an agenda that will lead to a moderate to liberal counter mobilization in 2012. That's basically what happened after 1994. So will Obama 2012 be a replay of Clinton 1996? That's my prediction.

"Don't Ask Don't Tell" Found Unconstitutional

From the NYT.

Lobbying Firms Prepare for Possible Switch in House Control

After hiring Democrats for the past four years, they are hiring Republicans.

What Issues Are The Parties Running On?

A nice breakdown from the NYT's Nate Silver.

Redistricting Edge to Republicans

Republicans hope nationwide success in state races will allow the party to control the redistricting process after the 2010 census results roll in.

Lawsuits, Torture and States Secrets

Here's an illustration of several principles we'll cover in both 2301 and 2302: An appeals court has ruled that the need for secrecy outweighs the right of alleged torture victims to sue an executive agency. The lawsuit itself might reveal information the agency -- the Central Intelligence Agency -- would rather not have revealed.

Here's where it applies:

It's simple checks and balances, except that in this case the judiciary has not checked the executive, it has in fact enhanced its strength. In a sense, the judiciary has rubber stamped a further expansion of executive power.

It involves an interpretation -- loose certainly --  of executive power, and whether the executive has the right to keep its actions secret. There is nothing about secrecy written in the Constitution, but there had always been an assumption that secrecy -- like executive privilege -- is central to executive effectiveness. The "states secrets doctrine" was established for the executive by the Supreme Court in a court case: United States v. Reynolds. Again, this is an expansion of executive authority established by how the Supreme Court decided to interpret constitutional language. Executive authority can also be expanded by Congress, in this case the creation of the CIA, and the intelligence community in general after World War Two. Congress effectively authorized the creation of a permanent peacetime military.

It also involves the rights of individuals (civil liberties), in this case of course the denial of such rights. We can look at those rights in two ways. One has to do with 4th Amendment rights against unreasonable searches and seizures. Interrogation -- whether by torture or otherwise -- is an attempt to seize evidence. The 5th Amendment right against self-incrimination was specifically established to prevent torture or similar coercive means to obtain information. The other right has to do with access to the courts, the right to sue. This is a form of the right to petition for a redress of grievances. In this case the right to sue has been considered less important that the ability of government to preserve state secrets.

A final point regards judicial process. Since this was an appellate court decision, it is likely to be appealed to the Supreme Court. They will have the last word on whether this, and other similar lawsuits can go forward. If they cannot it may be the same as stating that the executive does in fact have, if not a right to torture, the ability to do so without a substantive backlash against it.

The Financial Stability Oversight Council

The Washington Post outlines a new regulatory agency created by recent financial reform legislation to monitor "systemic risk."

- Here's a brief overview of the Dodd-Frank Act which created the agency.

If You Are Not Confused You Are Not Paying Attention

One week ago the Gallup Poll measured the largest lead it ever recorded in the general ballot question ("If you had to vote today for a generic Democrat or a generic Republican, who would you vote for?). Republicans had a ten point lead: 51% to 41%.

Now each party is tied at 46%. What gives? Are people really confused about which party they will support? Is it a reflection of Obama coming out of how shell and starting to campaign? Or is the poll simply in error?

- Analysis from the Washington Post.

Recession or Depression

John Judis helps sort out the difference between the two. Depressions have these three characteristics, and yes he suggests we are undergoing a depression:

The current downturn resembles the great depressions rather than the post-World War II recessions in three significant ways:


1) The Financial Crisis: The downturns of 1893, 1929, and 2007-8 were precipitated, and deepened, by a financial crisis. In 1893, gold outflows resulting from a downturn in Europe (in the 1890s, London was the center of world finance) caused deflation and a spate of bank runs. In 1929, it was the stock market crash, and in 2007-8, the subprime mortgage crisis.


2) Overcapacity in a Leading Industry: After the Civil War, railway construction had driven the development of capital goods industries. In the years before 1893, it started to slack off, leading to a slowdown in private investment. Before 1929, the production of automobiles and streetcars tapered off, and before 2007, the growth of computer/telecommunications/Internet industries began to slow, along with construction, housing, and auto sales.


3) The Global Dimension: During recessions, a downturn in one country has been eased by prosperity in another, but in depressions, the downturns have been global. During the early 1890s, the downturn spread from Europe to the United States; in the 1930s and late 2000s, it spread from the United States to Europe and Asia.

He doesn't seem hopeful that we have the political will to effectively confront it.

- Neither does Paul Krugman.
- Thomas Friedman speculates on what the economic downturn means for our global clout.

More Evidence of an Ideologically Divided Supreme Court.

Partisanship and ideology influence which clerks are hired by which justice.

- Wikipedia: Law Clerks
- Wikipedia: List of Law Clerks.

Republicans Promote the Green Party

The following supports a point we will hit later this semester in 2301, minor parties draw votes from majors parties and make them less competitive. The Libertarian Party tends to hurt the Republican Party while the Greens hurt Democrats. With that in mind, the effort of the Republican Party to place Green Party candidates on the ballot in Arizona and Texas makes perfect sense.

It was great electoral news for the Republican Party that Tea Party supporters were less a real party than a faction of the Republican Party. Now the question becomes, if Tea Party candidates win as Republicans, what does this do the party's famous ability to cohere as a tight unit?

Religious Tolerance Then and Now

Here's a link to a story that points to controversy in 1879 regarding the construction of a Catholic Church in an unfavorable location.

Is the current controversy regarding Islam simply the latest in a series of similar controversies going back centuries?

- Anti-Catholicism in the United States.
- Anti-Semitism in the United States.
- Guy Fawkes.
- Anti-Mormonism.
- Anti- Jehovah's Witnesses.

A Meritocracy or an Oligarchy?

Here's text copied from Daily Dish that raises questions about what factors really provide opportunities for success. In case you dont; knwo what (Philips) Andover Academy is, here's a link, as well as a link to a list of their alumni.

I teach at an Ivy, so I could go on at length about the privileges my undergraduates receive. Even in this most recent class, I still had a fair number of students who started at 100k+, flights to the Hamptons, etc... However, what I really wanted to discuss is the effect of elite high schools, which I think is far greater than that of the Ivies. My wife attended Andover, did well, etc... but chose to attend a large public university in the South (read academic burnout here).



After college, from which she barely graduated, she delivered flowers for a living. In short, nothing doing financially or in life. However, a move to NYC (as I was on an academic odyssey) led to an immediate job in finance at a major company. Mind you, this is a person with a degree in communications, who had not taken math since high school. As part of this job, she had a full six months paid to acquire a variety of licences and skills. The interviews for this position extended over a week and nearly every interviewer inquired not about college but Andover.


This pattern has repeated itself as she has changed jobs. Andover is always discussed. If an interviewer went to Exeter or St. Pauls, that must be mentioned. Her college has never been discussed. Even positions which require minimum GPA's, which she could never meet, are waived. She actually leaves this block blank often on applications, and it is never asked about. Currently, she is a manager at top hedge fund without ever having a degree in finance or an MBA.


I think what is missing in this debate is perspective on numbers. The best high schools are very small affairs. The Ivies actually graduate a far greater number of kids. Boarding schools build life long bonds as well that are much stronger due to their size. They take care of their own in ways that Harvard cannot imagine.

Makes you want to work harder huh?

On Deliberative Democracy

Some ruminations on a unique type of government: deliberative democracy. 

GPS and the Right to Privacy

From Time Magazine:

Government agents can sneak onto your property in the middle of the night, put a GPS device on the bottom of your car and keep track of everywhere you go. This doesn't violate your Fourth Amendment rights, because you do not have any reasonable expectation of privacy in your own driveway — and no reasonable expectation that the government isn't tracking your movements.

That is the bizarre — and scary — rule that now applies in California and eight other Western states. The U.S. Court of Appeals for the Ninth Circuit, which covers this vast jurisdiction, recently decided the government can monitor you in this way virtually anytime it wants — with no need for a search warrant.

This fits both 2301 and 2302. What is the extent of privacy and our security against unreasonable searches and seizures? What make a search unreasonable anyway? And how might the current Supreme Court decide these questions? This also makes clear the degree to which our understanding of the Constitution is impacted by improvements in technology.

The Lobbying Activities of Mariner Energy and Apache Corp.

The Center for Responsive Politics details the political activities of Mariner Energy and Apache Corp. One of Mariner's oil platforms exploded recently and they are about to merge with Apache.

Sobriety Checkpoints Return

Just in time for the holiday weekend, Montgomery County will bring back sobriety checkpoints in order to combat drunk driving.

The checkpoints, which allowed police to stop random motorists and check to see if they were drunk without any actual evidence that they were in fact drunk (like driving erratically), were used quite often in the 1980s, but were challenged in the courts. They were argued to be illegal searches, in violation of the 4th Amendment.

The U.S. Supreme Court disagreed in 1990 (Michigan v. Sitz), the greater interest provided by discouraging drunk driving outweighed the individual right to be free from unreasonable searches, but many state argued that these searches violated their constitutions, including the Texas Court of Criminal Appeals. Montgomery County officials claim that their's is not an unconstitutional program because they will only test drivers who commit traffic violations ( I have no idea if that will in fact prove constitutional if challenged -- is commiting a traffic violation probably cause that one is drunk?).

It will be a no refusal program, meaning that you can be punished for refusing to submit to a sobriety test.

For background:
- Opinion.
- Anatomy of a DWI "no refusal weekend."
- Austin DWI Attorney.
- Texas Senate Bill 298. (news item on the bill)
- State Sobriety Checkpoint Laws.
- Checkpoints on Twitter.

This applies to both 2301 and 2302. It involves how the constitution helps define the relationship between government and the individual, but it does so in a very problematic area, one where we might in fact want some governmental intervention. No one wants to share the road with drunk drivers. Its a perfect illustration of the balancing act the courts have to engage in when they consider the relative merits of individual liberty and the greater interests of society.

2302s might want to pay attention to the legislation linked to above -- which would have allowed expanded use of checkpoints has it not died in committee. You might also want to take a look at the Supreme Court case above.

PS: Can we really tell who is drunk?

Meritocracy

I made an error this week by not discussing meritocracy with my 2301s. Its a cousin of oligarchy. Rule by an elite established by merit, not class. We often credit the U.S. with being a meritocracy, and claim that to be one of our principle virtues, but critics often wonder whether we are truly meritocratic, do family connections matter more than we let on? And is a meritocracy perhaps more viciously inegalitarian than class based oligarchies?

Some items to peruse:

- Flaws in the Meritocracy.
- The Meritocracy Party.
- Wikipedia: Meritocracy.
- The Meritocracy Myth.
- Opinion: It's Time to Bring Back the Estate Tax.