Archive for the ‘Accountability’ Category

Is It Too Late To Impeach Mr. Bush?

Written by Robert Justin Lipkin on August 6th, 2008

Is it too late to bring impeachment hearings against Mr. Bush? Consider the latest evidence: “President Bush committedtmpphpjbc84e1.jpg an impeachable offense by ordering the CIA to manufacture a false pretense for the Iraq war in the form of a backdated, handwritten document linking Saddam Hussein and al-Qaeda, an explosive new book claims. . . . The charge is made in The Way of the World: A Story of Truth and Hope in an Age of Extremism by Pulitzer Prize-winning journalist Ron Suskind, released today. . . . Suskind says he spoke on the record with U.S. intelligence officials who stated that Bush was informed unequivocally in January 2003 that Saddam had no weapons of mass destruction. Nonetheless, his book relates, Bush decided to invade Iraq three months later — with the forged letter from the head of Iraqi intelligence to Saddam bolstering the U.S. rationale to go into war.” Of course, we will probably never find dispositive evidence of Mr. Bush’s guilt. Consequently, Mr. Bush will probably never be held accountable by any American institution. Tragically, the United States government and American society will never get its house in order without discovering why this catastrophe occurred, why governmental institutions failed to provide accountability, and most important, why nearly one third of Americans still support this reckless, malevolent, and clearly unconstitutional venture and the president who orchestrated it.

Impeach or Arrest Bush-Cheney? Vermont Seems to Have the Answers

Written by Robert Justin Lipkin on January 28th, 2008

Vermont seems to be taking presidential accountability seriously. Consider: “To many, it seemed quixotic, in a season where so much attention is showered on prospective presidents-to-be, to raise flags about a lame duck. . . . But John Nirenberg, who has called for hearings into the conduct of President George W. Bush and Vice President Dick Cheney, with the possibility of impeachment, says rescuing America’s standing in the world demands it. . . . The 60-year-old professor from Brattleboro, Vt. argues that, with a year left in Mr. Bush’s term, there is still time to investigate his conduct of the Iraq war, as well as other issues which have brought criticism against his administration – the outing of a CIA agent, the surveillance of Americans without warrants, and the abuse of detainees. He . . . said he shudders with anger and fear in response to actions and statements, such as a willingness to redefine what is torture and when it can be used, made by Mr. Bush and Cheney: ‘Anger because we have stooped so low, fear because all of what we have cherished as a nation – indeed, all of the great things about the United States that we have shown the world – are being destroyed by the current administration.’ . . . With the White House refusing to turn over documents or testimony in response to Congressional subpoenas, the only weapon in the arsenal of lawmakers seeking accountability, critics say, is impeachment. Yet even before the Democrats officially took back control of Congress and she was elevated to House Speaker in January 2007, Rep. Nancy Pelosi announced that impeachment was “off the table. . . . And so Nirenberg, an Air Force veteran who built a career as a social studies teacher, college professor and organizational consultant, and is a former dean of the School for International Training, decided to take action. To read more click here.

In an unrelated (?) event, “Brattleboro residents will vote at town meeting on whether President George Bush and Vice President Dick Cheney should be indicted and arrested for war crimes, perjury or obstruction of justice if they ever step foot in Vermont. . . . The Brattleboro Select Board voted 3-2 Friday to put the controversial item on the Town Meeting Day warning. . . . According to Town Clerk Annette Cappy, organizers of the Bush-Cheney issue gathered enough signatures, and it was up to the Select Board whether Brattleboro voters would consider the issue in March. . . . Cappy said residents will get to vote on the matter by paper balloting March 4. . . . Kurt Daims, 54, of Brattleboro, the organizer of the petition drive, said Friday the debate to get the issue on the ballot was a good one. Opposition to the vote focused on whether the town had any power to endorse the matter. For more click here. Vermont, as David, taking on Goliath, our soft dictatorship, and the apathy of the American public regarding its criminal acts, puts the rest of the Union to shame. We can be thankful the Bush-Cheney regime will soon be over, but others are not as fortunate. The tragedy of George W. Bush is chillingly depicted in the following: “It is the end of the road for George Bush. The world takes less and less notice of him. He strutted and swaggered across the stage. He bellowed and raged. He plundered and murdered. And now he wants to be anointed as a peacemaker. His presidency, like his life, has been a tragic waste. But he at least he has a life. There are tens of thousands of mute graves in Gaza, Lebanon, Iraq and Afghanistan that stand as stark testaments to his true legacy. If he wants to redeem his time in office he should kneel before one and ask for forgiveness.” The remaining question is how long after Bush-Cheney leave office will America and the world be redeemed and healed.

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Move to Impeach Cheney Picking Up Steam

Written by Robert Justin Lipkin on January 4th, 2008 reports: “A House Resolution to impeach U.S. Vice-President Dick Cheney, Dennis Kucinich’s H.R. 333, is gathering more support. The national impeachment continues to grow and generate increasing interest since being referred to the House Judiciary Committee last month, a Kucinich spokesperson said. . . . As a member of that committee, Representative Robert Wexler and two other committee members, Luis Gutierrez and Tammy Baldwin, have joined together in demanding that the legal action against Cheney moves forward. . . . Congressman Robert Wexler of Florida is just one elected official who says the charges are too serious to ignore. . . . ‘There is credible evidence that the Vice President abused the power of his office, and not only brought us into an unnecessary war but violated the civil liberties and privacy of American citizens. It is the constitutional duty of Congress to hold impeachment hearings.’ . . . He went on to say that he believes Vice President Dick Cheney and the Bush Administration have demonstrated a consistent pattern of abusing the law and misleading Congress and the American people. . . . ‘We see the consequences of these actions abroad in Iraq and at home through the violations of our civil liberties,’ Wexler said. . . . Congresswoman Tammy Baldwin of Wisconsin, stated in August that published reports identify, “the Vice-President’s willful and repeated disregard for the rule of law, international treaties, environmental protections, and the common good.” To read more click here. As these representatives stated in a recent op-ed piece, ‘The point of ‘[h]olding hearings would put the evidence on the table, and the evidence – not politics – should determine the outcome. Even if the hearings do not lead to removal from office, putting these grievous abuses on the record is important for the sake of history. For an administration that has consistently skirted the Constitution and asserted that it is above the law, it is imperative for Congress to make clear that we do not accept this dangerous precedent. Our Founding Fathers provided Congress the power of impeachment for just this reason, and we must now at least consider using it.’

This administration has not paid for any of its misdeeds. Permitting Mr. Cheney to waltz away from office unscathed leaves a ticking time bomb in the heart of the constitutional government threatening the inter-departmental checks and balances so central to republican democracy. Dangerous precedents, like dangerous guns, lying around around for any future president to grasp while trashing the Constitution is something that both conservatives and liberals should take pains to avoid. Assiduously guarding the balance of power as well as the doctrine of checks and balances articulated in the Constitution needs fortification. That’s precisely what an impeachment attempt would begin to do.

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Levinson’s Fix for Our Broken Constitution

Written by Robert Justin Lipkin on December 24th, 2007

Last Friday evening, Bill Moyers interviewed Sanford Levinson, one of the most creative, provocative, and influential constitutional scholars of his generation. The topic of the interview was Professor Levinson’s 2006 book entitled Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Begin Correcting It) [hereinafter cited as “OUC”] which ECA discussed earlier this year. The book is an irreverent tour de force depicting how the Constitution prevents American government from consistently expressing the voice of the people. Levinson draws his bow and takes aim at the Senate, the Electoral College, the presidential veto, life tenure for federal judges, and a host of other undesirables hitting the bull’s-eye in every case. Unlike most other critics of the Constitution, however, Levinson is not content in merely presenting a litany of democratic complaints and leaving the matter there. Instead, Levinson calls on We the People to petition Congress to permit Americans to vote on the following proposal:

Shall Congress call a constitutional convention empowered to consider the adequacy of the Constitution, and, if thought necessary, to draft a new constitution that, upon completions, will be submitted to the electorate for its approval or disapproval by majority vote? Unless and until a new constitution gains popular approval, the current Constitution will continue in place. OUC, p. 11.

In the Moyers’ interview, Levinson amplifies on how the participants of this second constitutional convention will be selected.

Well, since this is the most often asked question, especially by friends and members of my family, I have an answer to it. And I’m not so fearful, for a number of different reasons. First of all, how would I choose members of the convention? My answer is to go back to ancient Greece, or to look at the way we choose juries. And I would have 700 or so of our fellow citizens chosen at random. Meet for two years, pay them the salary for those two years of a Justice of Supreme Court, United States Senator, because they would be fulfilling the highest possible function of citizenship. Give them time to reflect and learn about these issues.

Levinson wants to highlight the Constitution’s Preamble which says: “We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, [sic] promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” The Preamble, for Levinson, is the core sustaining value and end toward which the other Articles of “the single most important part of the Constitution” (OUC, p. 13) because:

It announces the point of the entire enterprise. The 4,500 or so words that followed the Preamble in the original, unamended Constitution were all in effect merely means that were thought to be useful in achieving the great aims set out above. It is intended the ends articulated in the Preamble that justify the meaning of our political institutions. And to the extent that the means turn out to be counterproductive, then we should revise them. Id.

The Preamble represents, in the words of the ordinary language philosopher J. L. Austin, a performative utterance. The Preamble doesn’t merely convey information. Rather, it brings into existence the very document for which it is an integral part. Alternatively stated, the Constitution is born with the collective speech act which is the Preamble. In Levinson’s view, the Preamble is “magnificent. And [he thinks] we ought to think about it almost literally every day, and then ask, ‘Well, to what extent is government organized to realize the noble visions of the preamble?’ That the preamble begins, ‘We the people.’ It’s a notion of a people that can engage in self-determination.” Levinson’s commitment to the Preamble reveals that any attempt to paint him as some naive, wide-eyed utopian willing to scrap the 200 plus year document without any idea of what to replace it with is decidedly erroneous. Levinson’s faith in the underlying normative core of the Constitution–the Preamble–is deep and pervasive.[1]

In defense of Levinson’s important project, one might say that the 1787 document together with the 27 amendments constitute a first draft of how Americans have chosen to express the Preamble’s ideals. Understood in this manner, Levinson’s proposal is far less of an intemperate and irresponsible rejection of the Constitution than a call for the redeployment of the Preamble’s ideals in contemporary America. Levinson’s proposal, then, is to initiate a conversation to consider whether to replace the 1787 document which may have been satisfactory for the founding generation with one which is more suitable to our current democratic needs.

It’s terribly important not to scrap this project by insisting upon a distinction between a democracy and a republic. While it may be true that some of the founders saw democracy as the enemy of republicanism, today these political ideals are far less distinguishable. The idea of a representative democracy, constrained by various filters designed to create a government capable of expressing the reflective will of the people, is a good bridge between narrower and ancient conceptions of democracy and republicanism. Few Americans embrace direct democracy whatever that would look like in contemporary America.[1] And even fewer democrats embrace unconstrained majority rule. Moreover, America’s constitutional culture looks askance at a republicanism which merely pays lip service to the reflective will of the people. Accordingly, the notion that the democratic defects of the Constitution can be papered over simply by insisting that the Founders sought a republic not a democracy is not especially illuminating; indeed, it’s downright misleading. Whatever we call the political philosophy underlying the Constitution, consent must be an ineliminable feature. And objections to the Constitution in contemporary society, along the lines of Levinson’s critique, are replete with obstacles for realizing systematically and consistently the consent of the governed. Of course, one can force a distinction between democracy and republicanism by transmogrifying one or the other conception into a distorted replica of itself–for example by defining democracy as simply majority rule–but other than scoring a polemical point such a transformation isn’t conceptually or practically significant.

No one need agree with Levinson regarding all, or even any, of his arguments. But everyone–constitutional scholars, and more important, reflective American citizens–should confront the arguments in his book. We are all indebted to Sandy Levinson, not only for his wonderful book on fixing American constitutionalism, but also for his extraordinary career as a public intellectual and as a patriot who always gives his best to America.
[1] It’s not clear whether Levinson believes the Preamble to be an entrenched feature of the Constitution, one that the second constitutional convention cannot amend. If so, the entrenched Preamble seems to have its own democratic deficits. If not, then Levinson must be willing to endure the new constitutional convention jettisoning the Preamble entirely, or amending it to say, “We the States” or some other reactionary change in its text, for example, adding “Under God” or “life begins at conception,” or “‘marriage is a union of one man and one woman.” Indeed, it is virtually guaranteed that some anti-democratic provisions will be included in the new constitution. Upon realizing this, one can reject Levinson’s entire project or acknowledge ruefully that a republican democrat must be prepared to lose some important battles even over the basic structure of the society.

[2] An exception might be Mike Gravel’s Philadelphia II project.

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It’s a Republic: If We Can Keep It

Written by Robert Justin Lipkin on December 20th, 2007

When Benjamin Franklin exited Convention Hall in the summer of 1787, a group of citizens asked him what sort of government the delegates had created. Franklin’s prescient answer was crisp, but pregnant with meaning. “A Republic, if you can keep it.” Indeed, the idea of “keeping” a republic is perhaps the least discussed and examined topic in our political culture; yet, the know-how to keep our republic is essential to the survival of our constitutional democracy. One absolute imperative in keeping a republic requires citizen involvement in continually holding governmental officials feet to the fire, especially when elected (or selected) officials trample on the heart of constitutional government. Now, it is the present generation of constitutional founders’ turn to keep our republic by holding the executive villains accountable for poisoning American constitutionalism.

That’s why Robert Wexler’s (D-FL) effort to initiate impeachment hearings against Vice-President Cheney is so critical to American democracy. Listen to his plea:

Next, consider Wexler’s more detailed argument: “”For the sake of history, and in order to be faithful to our Constitutional obligations, the Judiciary Committee must immediately convene impeachment hearings to determine whether the official actions of Vice President Cheney constitute ‘High Crimes and Misdemeanors’ and require that he be impeached. Each day we fail to act is a validation of the misdeeds of the Vice President and damages the credibility of the Democratic Party. . . . Vice President Dick Cheney and the Bush Administration have demonstrated a consistent pattern of abusing the law and misleading Congress and the American people. We see the consequences of these actions abroad in Iraq and at home through the violations of our civil liberties. The American people are served well with a legitimate and thorough impeachment inquiry. I will urge the Judiciary Committee to schedule impeachment hearings immediately and not let this issue languish as it has over the last six months. . . . Only through hearings can we begin to correct the abuses of Dick Cheney and the Bush Administration; and, if it is determined in these hearings that Vice President Cheney has committed High Crimes and Misdemeanors, he should be impeached and removed from office. It is time for Congress to expose the multitude of misdeeds of the Administration, and I am hopeful that the Judiciary Committee will expeditiously begin an investigation of this matter.” For more click here.Without checks on executive power, “[t]he principles of a free constitution are irrevocably lost,”[1]especially when, contrary to the written text of our Constitution, presidents dominate Congress by successfully rebuffing any feeble congressional attempt to defend its constitutional role. More importantly, failure to hold Mr. Cheney accountable sets an extremely dangerous precedent for future tyrannical executives to use to the detriment of the Constitution and to Americans generally. Accountability is, or should be, the name of the game in American constitutionalism. Permitting a soft dictator to leave office unpunished suggests that American citizens and politicians both lack the fortitude or interest necessary to keep our democratic republic.Credit for Image
______________________________________________[1] Edward Gibbon, The History of the Decline and Fall of the Roman Empire, Vol. 3.

The Invasion of Iraq: Bushian “Reality” and Real Reality

Written by Robert Justin Lipkin on November 15th, 2007

Mark Danner has an important article–“‘The Moment Has Come to Get Rid of Saddam'”–in the New York Review of Books (Vol. 54, No. 17, November 8, 2007). Take a look at a few introductory paragraphs:

Surely one of the agonizing attributes of our post-September 11 age is the unending need to reaffirm realities that have been proved, and proved again, but just as doggedly denied by those in power, forcing us to live trapped between two narratives of present history, the one gaining life and color and vigor as more facts become known, the other growing ever paler, brittler, more desiccated, barely sustained by the life support of official power.

At the center of our national life stands the master narrative of this bifurcated politics: the Iraq war, fought to eliminate the threat of weapons of mass destruction that turned out not to exist, brought to a quick and glorious conclusion on a sunlit aircraft carrier deck whose victory celebration almost instantly became a national embarrassment. That was four and a half years ago; the war’s ending and indeed its beginning, so clearly defined for that single trembling instant, have long since vanished into contested history.

The latest entry in that history appeared on September 26, when the Spanish daily El Pao published a transcript of a discussion held on February 22, 2003–nearly a month before the war began–between President Bush and Jose Maria Aznar, then prime minister of Spain. (See the transcript below.) Though the leaders met at Mr. Bush’s ranch in Crawford, Texas, some quickly dubbed the transcript Downing Street Memo II, and indeed the document does share some themes with that critical British memorandum, mostly in its clear demonstration of the gap between what President Bush and members of his administration were saying publicly during the run-up to the war and what they were saying, and doing, in more private settings. Though Hans Blix, the UN chief inspector whose teams were then scouring Iraq for the elusive weapons, had yet to deliver his report–two weeks later he would tell the Security Council that it would take not “years, nor weeks, but months” to complete “the key remaining disarmament tasks”–the President is impatient, even anxious, for war. “This is like Chinese water torture,” he says of the inspections. “We have to put an end to it.” For more click here.

These two narratives of which Danner speaks are always with us, since competing perspectives have so much riding on them. Nevertheless Danner is surely right about the fundamental disconnect between Bushian “reality” and real reality. Prior to the Bush administration the notion of “real reality: would be nothing more than a silly redundancy. But in our present circumstances it is not. The notion of “real reality” is necessary to contrast truth from a pernicious fiction. The insulated–solipsist–world created by the current administration, for so than any previous administration is committed to a radical nihilistic framework. In such a framework where truth, reason, and reality are empty vessels, anyone’s sense of these notions is as good as anyone else’s. And when you have the power to do so, you simply reconstruct reality to serve your own purposes. There’s surely an important philosophical book on the Bush administration and nihilism waiting to
be written.

The Dworkinian Commitment in American Constitutionalism

Written by Robert Justin Lipkin on November 13th, 2007

The controversial doctrine of judicial supremacy holds that the United States Supreme Court is the ultimate interpreter of constitutional meaning, of the scope and limits of constitutional powers, organization, and individual rights. The controversy over this doctrine has existed just as long as the doctrine itself was first articulated in 1803, 1857, 1954, 1957 or 1997, all contenders for the origination of the doctrine. Other constitutional actors–the two remaining branches of the federal government, the states, and the citizenry–might contribute to interpreting the Constitution, but when push comes to shove, the Court has the final say. Ronald Dworkin, a premier constitutional theorist, is committed to a conventional view of judiciary supremacy. In his view, rights trump the will of the majority, especially when these rights are essential to democracy. The elected branches cannot determine the existence and content of these rights; hence, the Court must do so. It’s ironic then that Dworkin can so harshly condemn the Roberts’ Court. Consider his words:

The revolution that many commentators predicted when President Bush appointed two ultra-right-wing Supreme Court justices is proceeding with breathtaking impatience, and it is a revolution Jacobin in its disdain for tradition and precedent. Bush’s choices, Chief Justice John Roberts and Justice Samuel Alito, have joined the two previously most right-wing justices, Antonin Scalia and Clarence Thomas, in an unbreakable phalanx bent on remaking constitutional law by overruling, most often by stealth, the central constitutional doctrines that generations of past justices, conservative as well as liberal, had constructed.

These doctrines aimed at reducing racial isolation and division, recapturing democracy from big money, establishing reasonable dimensions for freedom of conscience and speech, protecting a woman’s right to abortion while recognizing social concerns about how that right is exercised, and establishing a criminal process that is fair as well as effective. The rush of 5-4 decisions at the end of the Court’s term undermined the principled base of much of this carefully established doctrine. As Justice Stephen Breyer declared, in a rare lament from the bench, “It is not often in the law that so few have so quickly changed so much.”
. . . .

Skilled corporate litigators think ahead like pool players: they argue for their clients on narrow grounds hoping for incremental victories that turn into much bigger ones later. Perhaps Roberts will keep his word and try in future years to build a new consensus that more faithfully reflects the Court’s traditions. But I suspect that his Senate testimony was actually a coded script for the continuing subversion of the American constitution. The worst is yet to come. (New York Review of Books, August 30, 2007)

These are extraordinarily severe complaints. What is ironic about this condemnation is that it comes from Dworkin, a judicial supremacist par excellence. Dworkin believes there to be right answers to controversial constitutional conflicts, and that the Court is the proper institution to decide which answers are true. But why then doesn’t Dworkin recognize that in a world where constitutional interpretations are essentially contested and one in which the burdens of judgment virtually guarantee reasonable disagreement over such interpretations, that his disagreement with the Roberts Court’s. Is it simply because “[i]t
is not often in the law that so few have so quickly changed so much.” Why doesn’t the idea of revolutionary constitutional change accurately depict the history of American constitutional development? Dworkin’s answer is complex. He believes that any correct constitutional decision must cohere with past constitutional decisions and practice while at the same time presenting that practice in its best light. But what counts as “fitting” with past constitutional practice and especially what its “best light” are also essentially contested ideas. This does not entail that “everything is relative” or that constitutional decisions are “just a matter of opinion,” whatever these notions mean anyway. Indeed, from a God’s-eye view of American constitutionalism there very well may be right answers to every constitutional question. The problem is not a conceptual or ontological problem; rather it’s an epistemic one. Given a vibrant republican democracy–where judgment cannot be and certainly should not be compelled–reasonable disagreement over fundamental values, including constitutional values and what counts as “coherence with the past” will persist. Indeed, in a free society we should cherish this persistence. And when reasonable disagreement is inevitable and even desirable, the judiciary is the most dangerous branch to be entrusted with the virtually exclusive dominion over the Constitution.

Is Constitutional “Law” Law?

Written by Robert Justin Lipkin on October 4th, 2007

American politics is in the grip of two myths about judicial constitutionalism. The first myth is that hot-button constitutional controversies have one, definite right answer. The one right answer might be difficult to find, but there is no doubt that it exists. Usually these “one right answers” correspond to what the jurist, scholar, attorney, or citizen think the right answer is. How convenient! The second myth is that judges are conspicuously endowed with necessary expertise to discover these answers in the Constitution and constitution practice. As a result, the Supreme Court has the final say over how to resolve constitutional conflicts. Law is not like politics. Law is neutral, objective, and real unlike politics which is just a matter of opinion. Although the other branches of government, the states, and the people also have a say in ascertaining constitutional meaning, when push comes to shove, the Court typically, should have the final word. After all, elected officials and citizens are all partisan players; they are all represent Madison’s treaded factions or the building blocks of factions. Removing the Court from constitutional interpretation and construction or even disciplining the Court with electoral oversight is madness. Only the Court can say the people from themselves.

One need not deny the existence of constitutional truth to regard the two myths as fallacious and inimical to the common good. One only needs to say that no on ever has yet devised a methodology which can be embraced by all or most judges. None of the familiar methodologies–textualism, originalism, historicism, structuralism, stare decisis, or pragmatism–has achieved a reflective consensus as the correct methodology for authorizing judicial decisions. Ironically, in this view, thought there is one right answer for every constitutional controversy, candidates for the correct methodology for finding the one right answer are many and incompatible. So there’s one right answer, but no accepted means of finding it. Is this constitutional law, or have we mischaracterized of most fundamental political practice?
Attempts to include all the familiar methodologies into some hierarchical or lexical structure are bound to fail. Why? Because in a free society where different people are committed to conflicting political perspectives and to different methodologies in support of their perspectives, it is inevitable that reasonable disagreement will be inevitable and pervasive. Let’s be clear about what this means. The principle of the persistence of reasonable disagreement does not mean anything goes or that each and every person’s conception of the correct methodology is equal to each and every other person’s. What it does mean is that in any historical period certain candidates for the correct methodology will exist and no reflective consensus will emerge and stick around among the most informed and knowledgeable persons in the constitutional community; nor will such consensus be reached among the people. The concepts critical to constitutional “law” are essentially contested, and the burdens of judgment–the difficulties and mistakes associated with deriving justified belief–will prevent consensus.

If this is so, most, if not all, constitutional controversies will have more than one correct answer in the sense of more than one answer that is intelligible, coherent, defensible, historically grounded, passing for a rational picture of constitutional structure, and most importantly based in a plausible political philosophy. Consider the question of affirmative action. One side says that “racial equality” precludes using race in policy decisions even for benign intentions. The reason for this conception of “racial equality” is that race-conscious programs perpetuate a dangerous practice and will inevitably injure both the majority race–depriving its members of what they believe to be just deserts–and to the minority race–who are infantilized and stigmatized by race conscious public policy. The other side says “equality” in the first sense is a regulative ideal which must be tempered by context. When a community has practiced radical racial oppression through slavery and segregation, the members of the oppressed race would need to be super-human if their oppression did not prevent them from competing equally once racially invidious laws are no longer tolerated. This isn’t paternalism; it’s reality. Both these views are defensible and both derive from coherent views of “racial equality.” But rational argument will never settle this issue. Ideally, in a republican democracy after all the reflective deliberation and discounting distorting influences of the deliberative process, when consensus cannot be achieved, voting kicks in to settle the matter. And this reflects precisely our present practice. After reading briefs, conducting research, after oral argument and hearing the reflective views of one’s judicial colleagues, the members of the Court vote. In these cases, the result is typically 5-4 for whichever conception of “racial equality” a majority of the Justices embrace. Well, if voting is inevitable, why should the dispositive vote be in the Court? When Justices deliberate and vote on affirmative action plans, they are engaged in politics. Not partisan, smoke filled room politics perhaps, but certainly political philosophy and public policy. Why shouldn’t the people or the representatives decide what the will of the community is regarding affirmative action and other hot-button constitutional controversies? No satisfactory answer to this question has ever been given.

We need to re-think American judicial constitutionalism. One, but not the only, good place for that re-examination to begin is in a second constitutional convention. Last month ECA suggested one structural change that might promote constitutionalism in a republican democracy. Listen to some of the issues that might arise in such a convention, issues that transcend merely focusing on the poverty of judicial constitutionalism.

On 19 October 2007, a group of the constitutionally dissatisfied will hold a mock constitutional convention in the Andrew Mellon Auditorium in Washington, DC. From such beginning major constitutional change can emerge. But American citizens must be willing to pay their fellow citizens the required respect to listen to the complaints.

Why Not a Parliamentary Democracy for American Government?

Written by Robert Justin Lipkin on September 26th, 2007

Bruce Ackerman has a terrific piece on the dangers of failed leadership in parliamentary democracies as compared with presidential democracies. Here’s a taste: “Tony Blair and George Bush are both discredited, but only the British system has managed to arrange a not-so-graceful exit. While Blair makes way reluctantly for Gordon Brown, Bush will be contemptuous of public opinion for 18 more months. . . . This contrast challenges conventional wisdom. British prime ministers are supposed to be powerhouses while American presidents are weakened by the constant pressure of checks and balances. This bit of Anglo-American lore contains a grain of truth during normal times, but it is completely false during the worst of times, when a leader suffers a collapse of popular support. . . . Then, the British rely on the ultimate check: each party’s instinct for self-preservation. When faced with the grim prospect of electoral defeat, the ruling party ruthlessly turns on its leader and forces him out – with the mighty Blair following the mighty Thatcher to the exit, while the mighty Bush thrashes about defending his repudiated policies and henchmen to the bitter end. . . . If America had a parliamentary system, Bush would have been shown the door by congressional Republicans, probably before the 2006 election. But nothing similar can happen in today’s Washington. Bush has bought himself impeachment insurance in choosing Dick Cheney as his vice president.”

It is obvious that Mr. Bush does not intend to do anything to extricate American troops from Iraq on his watch. And, however, infuriating his arrogance, there’s not much we Americans can do about it. Sure, in theory we can impeach Mr. Bush and remove him from office. (ECA has posted several items urging Congress to begin hearings on impeachment.) But given the present political realities, this hasn’t a chance of succeeding. Urging Democrats to act, even by such persuasive leaders as Mario Cuomo, won’t do the trick. Powerful Republicans are the only option. John Warner made noises about standing up for principle but has subsequently reneged. Lefty bloggers, columnists, and writers generally need to begin to explain what’s wrong with American constitutionalism and politics that permits an exceeding unpopular president from continuing without an obvious end to a hated war killing thousands of Americans an Iraqis. A rational, viable republican democracy should provide a difficult, but effective, mechanism for recalling lawless leaders in order to prevent the continuation of hideous war. If a republican democracy cannot effective achieve this, what can it achieve? The Framers, at the constitutional convention in Philadelphia, struggled over the best way of electing the President. The People? The States? Congress? Had Congress been chosen Mr. Bush’s War might now be a despised memory of the past. Can’t we do better now that the dangers of a dangerously independent executive branch are so clearly evident?

Bush-Enabling Democrats

Written by Robert Justin Lipkin on September 25th, 2007

Glenn Greenwald’s piece in should be read by all Democrats. Here’s the first couple of paragraphs: “In the wake of the series of profound failures that define the 2007 Democratic Congress, there is much debate over what accounts for this behavior. There are almost 300 ‘Congressional Democrats’ and they are not a monolithic group. Some of them are unrelenting defenders of their core liberal political values and some are committed to providing meaningful opposition to the radicalism and corruption of the Bush administration. But as the sorry record of the 2007 Congress conclusively proves, they are easily outnumbered in the House and Senate–especially the Senate–by Bush-enabling and Bush-supporting Democrats. . . . The standard excuse offered by many apologists for Bush-enabling Democrats–that they support the Bush agenda and capitulate to the right-wing noise machine due to political fear of being depicted as too liberal or ‘soft on terror’–is clearly inapplicable to many, if not most, of the enablers. California’s Democratic Senator Dianne Feinstein provides a perfect case study for understanding why the Congress has done virtually nothing to oppose the most extreme Bush policies, while doing much actively to support it.” If ever there was a time for a new political party to replace the Democrats . . . that time is now.