Essentially Contested America

Since the increase in American troops in Iraq, everyone–Republican and Democrat alike–insist that the “surge” is responsible for the decrease in violence in Iraq.  The truth, of course, is that violence has decreased in Iraq only as a result of the United States buying off former Sunni insurgents who are part of “the Awakening.” What decreased the violence in Iraq had little to do with the decision to increase the number of troops in Iraq.  Rather the cause of the decrease in violence was the decision  of insurgent leaders to cast their lot with the Americans and expel Al-Qaeda. The proof that the Awakening is the reason for decreased violence in Iraq is now complete.  Read what happens when Awakening forces become temporarily (?) estranged from their relationship with the Americans. Click here for the story. We purchased decreased violence in Iraq with tax payers dollars.  What happens when we leave Iraq?  Will we still be paying extortionate tribute to the former Iraqi insurgents? And will we still duplicitously insist that the surge worked?

The Mexican drug wars threaten potentially devastating consequences for both Mexico and the United States. Fueled by America’s pathological addiction to drugs and guns, the border has become riven with violence and death. The prohibition of drugs has failed even remotely to be effective just as prohibiting alcohol failed even remotely to be effective decades earlier. De-criminalizing drug use takes the profit motive out of the sale of drugs. The attraction of drug dealing is made possible by its illegality. The alternative–regulating and taxing drug production and distribution–is not an inherently attractive prospect; it is simply a better solution than the failed “war” on drugs. Political sanity requires the capacity to appreciate realistic solutions to social problems. Keep drugs illegal is not a realistic solution. How many more devastated lives will it take before American politicians will muster the courage to face the scourge of drugs?  One final note. Integrally tied to the Mexican drug wars is the easy access to sophisticated and deadly firearms. Unless and until Americans develop the determination to impose strong regulations on the manufacture and sale of firearms, the war on drugs will continue to be ineffective. From a practical political perspective, regulating or eliminating guns might require a judicial re-interpretation of the Second Amendment or the Amendment’s repeal. But if that’s what it takes, let’s get on with it. 

There are at least two reasons for a Truth Commission on the last eight years of executive malevolence.  First, we need to know what happened so that the historical record will be complete.  Second, completing the historical record makes it possible for guarding against the lawlessness of the past. Bruce Ackerman, Yale professor of law and political science, has a slightly differently take on this issue.

President Barack Obama started strong by announcing the end of torture and the closing of Guantánamo, but he has recently taken a more equivocal attitude toward the Bush constitutional legacy. While rejecting his predecessor’s extreme claims, he continues to assert the presidential power to hold terrorists without trial and to keep state secrets from the courts. And he has already issued his first signing statement denouncing a few provisions of the stimulus package as unconstitutionally limiting his executive prerogatives.

These decisions have unleashed a flood of anxious commentary about Obama’s ultimate intentions. But the discussion has only served to divert public attention from the real question confronting the new administration. Barack Obama is no George W. Bush — he will indeed cut back substantially on unilateral assertions of power. The big question is whether he will take effective steps to prevent the next president from reversing course yet again and using the precedents of the Bush years as a springboard for even more extreme assertions of executive authority.

To read the complete article click here.  This piece is worth consideration, It concludes with the following:

We should not look upon presidential lawlessness as if it were an odd aberration of the Bush years. The abuses of the war on terrorism represents the third wave of illegality in a generation, coming after Watergate and the Iran-Contra fiasco. It is not enough for President Obama to resist the temptations of power. He should take the lead in a collective effort to diagnose the causes of and potential cures for the systematic tendency of the modern presidency to abuse its powers.

I am not calling for a truth commission that is primarily concerned with establishing the sordid facts about past abuses of power. The commission should be resolutely forward-looking, mining the past only to understand why existing statutes failed to effectively restrain presidential power. The challenge is to learn from experience and design better systems of checks and balances for the future.

This can only be accomplished by creating a special commission in which members of Congress and the administration don’t try to score political points but work together to come up with serious proposals. This exercise might fail, of course, but it might also catalyze a serious collective effort to control the presidency’s recurrent tendencies to break free of the rule of law. And if it did succeed, the resulting landmark legislation would serve as one of Obama’s great legacies to future generations.

Unfortunately, the reasons for interbranch battles between Congress and the Presidency are both structural and adventitious. The heralded separation of powers pits the two branches against one another even one both are controlled by the same party. The party system itself make it inevitable that the two branches will seek battle first and consensus a sorry second. A new constitutional design is necessary for Ackerman’s worthy aspirations to have a chance.

The Food and Drug Administration has been taking it on the chin in the courts – and for good reason.  For years, it has been apparent that the FDA process for approving and evaluating drugs is flawed.  Far too many drugs have been approved only to be recalled due to deadly side effects that were uncovered only after the drug’s approval.  This problem has gotten so bad that recently, one of my doctors told me that he waits a year after a new drug is approved by the FDA before he prescribes it.  The doctor said that he waits a year in order to ensure that the drug is safe and find out more about the drug’s side effects.  Removal of approved drugs from the market is surely embarassing to FDA officials, but it is profoundly disturbing to those of us who are potential users of those drugs.   It is also evidence that things are not working right at the FDA.  Maybe the drug industry has too much power, and maybe the agency has become too politicized.

In two recent high profile cases, courts have confirmed that the FDA’s decision making process is problematic.  In Wyeth v. Levine, the United States Supreme Court upheld a state court judgment against a leading drug company and in favor of a patient who lost her arm because her doctor used the risky “IV push” method to administer a drug to her.  Wyeth sold the medication with a label did not warn against using the IV push method.  The SCOTUS rejected the company’s argument that the claim was preempted by the FDA’s approval of its label.  Under the Bush administration, the FDA had changed its regulation to provide that “FDA approval preempts contrary or conflicting state law.”  However, the Court held that the new regulation had no authority because it was contrary to the legislative history of the Food and Drug Act, because the FDA had finalized the regulation without giving states or interested parties any opportunity to comment on the change, and because the FDA had failed to provide any reasoned explanation for overturning its long standing policy of non-preemption.  Why would the FDA unilaterally act to preempt state tort claims against drug companies?  It doesn’t take a rocket scientist to figure out that the Bush administration FDA wanted to protect drug companies from lawsuits regardless of the cost to public health.

This week, a New York federal district judge overturned an FDA regulation prohibiting girls under the age of 18 from purchasing the controversial “morning after” pill without a prescription.  The court held that the FDA’s rule was entirely unsupported by scientific evidence, and that there was strong evidence that the rule was based not on science, but on politics.  Why would the Bush administration FDA want to raise the age limit for girls to buy this form of contraception without a prescription?  The “morning after” pill is a hot button issue in the conservative “right to life” movement, a key constituency of President Bush.

We deserve a government that works, and a Food and Drug Administration that bases its policies on protecting our health, not protecting drug companies or religious principles.  Thank goodness our courts are doing what they can to make the FDA accountable for its shoddy performance.

The furor revolving around the AIG bonuses continues.  Mention was made of the situation yesterday in President Obama’s second nighttime press conference.  Though the press has continued to fan the flames and the Obama Administration has not done all it could to put the controversy to rest, blame for the continuing story should be laid directly at AIG’s feet.  AIG has failed to end the story by failing to treat the public like grown-ups.  Rather than search for whatever tack it thought could allow it to weather the storm, AIG should have explained for what purpose the bonus money was paid and stood by the rationale.  By treating the public like it could not possibly understand a supposedly complex issue like compensation at AIG’s Financial Products Division (AIG-FP) and declining to explain why the bonuses were acceptable, AIG allowed the press and public to continue to paint the story as one more example of corporate greed and stupidity financed by the taxpayers.  Consequently, a number of extraordinary actions have occurred.  The House of Representatives voted to tax the bonuses at 90%.  The head of AIG has suggested that the executives who received bonuses return them.  Government officials have expressed outrage that particular individuals were paid particular amounts of money based on contracts signed between the individuals and their employer.  If only AIG had explained for what purpose the bonus money was paid, the public might have accepted the explanation.  The public can digest the fact that people who work for faililng entities may yet be paid significant amounts of money.  However, the why has to be explained.

The AIG bonuses can likely be explained in one of four ways, each of which a sentient grown-up ought to understand.  First, the bonuses may be for a job well done.  If AIG explained the relevant job as being the winding up of the business that caused the company to crater and explains that the quality of the job done really was extraordinary given the circumstances, the public might have been unhappy with the size of the bonuses, but might not be so unhappy with the existence of the bonuses.  At least, the press and Congress might not have been willing to fan the flames.  Nonetheless, the bonus as bonus is likely the least palatable explanation, though getting it out might have been a single-news-cycle event.  Second, the bonuses might have been retention payments.  Put differently, the promise of a bonus at the end of the year may have been what got people to stay and wrap up AIG-FP.  Of course, the public would still ask, “Who was going to hire these people?”  However, the ready response would be that the point of retaining the people is to get them to work for AIG-FP, not to stop them from working for someone else.  Again, there may have been some grumbling about the size of the “bonuses”, but not much legitimate complaint about the existence of the “bonus pool.”  Third, the bonuses could be thought of as deferred salary.  Even though AIG lost incredible amounts of money, no one would expect its workers to work for free or even for below market rate.   If the bonuses were really deferred salary, structured to be paid later so that AIG could alter the amount up or down based on final receipts, the public’s problems would again likely be with the size of the pool rather than its existence.   Of course, such an explanation would make the claims in the New York Times letter to the editor written by a resigning AIG executive that he worked for a $1 a year salary ring hollow.  Working for a $1 a year while expecting a seven-figure bonus does not really qualify as working for $1 a year.  Fourth, the bonuses might be thought to be deferred commissions.  If AIG could make the argument that its workers were winding up trades that would bring lots of money into the firm and that those workers were being paid a standard Wall Street commission on the money they recouped.  Of course, the money would be paid at the end of the year.  Public outrage may have been nonexistent if this really is the reason the bonus pool existed and was paid as it was.  Presumably, one of these explanations or a combination of all four explains some, if not all, of the bonuses paid.  Had AIG just explained for what purpose the money was paid, rather than merely claiming that the money had to be paid pursuant to contracts, the firestorm might be over.

The American public can deal with automobile company executives who make more than $10 million annually while their companies collapse.  It can deal with coaches at public universities who resign after a string of bad years receiving seven-figure contract buyouts.  It can deal with the real estate agent who make 6% on the sale of a home that has lost significant value.  The American public can understand that compensation may come in many forms and may be justified in many ways.   However, the American public will not understand justifications that are never put forth or that appear to be conveniently fabricated.  That lack of understanding will be supplanted with the kind of outrage that AIG is still seeing.  For that, AIG has no one but itself to blame.

Occasionally, a literary piece emerges that provides poignant insight into some troubling issue in politics or culture.  Mark Danner has written such a piece that every American should read before embracing any position of whether the United States under Bush-Cheney was guilty of flagrant war crimes, including torture. Here’s the introductory paragraph:

We think time and elections will cleanse our fallen world but they will not. Since November, George W. Bush and his administration have seemed to be rushing away from us at accelerating speed, a dark comet hurtling toward the ends of the universe. The phrase “War on Terror”—the signal slogan of that administration, so cherished by the man who took pride in proclaiming that he was “a wartime president”—has acquired in its pronouncement a permanent pair of quotation marks, suggesting something questionable, something mildly embarrassing: something past. And yet the decisions that that president made, especially the monumental decisions taken after the attacks of September 11, 2001—decisions about rendition, surveillance, interrogation—lie strewn about us still, unclaimed and unburied, like corpses freshly dead.

Thus compelling narrative should be read, reread, and then invoked whenever the subject of Bush-Cheney torture arises. To read further click here.

Last week, Haaretz.com reported extensive excerpts from a meeting of Israeli soldiers indicating their treatment of civilians in Gaza.  Here’s a sample:

I am squad commander of a company that is still in training, from the Givati Brigade. We went into a neighborhood in the southern part of Gaza City. Altogether, this is a special experience. In the course of the training, you wait for the day you will go into Gaza, and in the end it isn’t really like they say it is. It’s more like, you come, you take over a house, you kick the tenants out and you move in. We stayed in a house for something like a week.

Toward the end of the operation there was a plan to go into a very densely populated area inside Gaza City itself. In the briefings they started to talk to us about orders for opening fire inside the city, because as you know they used a huge amount of firepower and killed a huge number of people along the way, so that we wouldn’t get hurt and they wouldn’t fire on us.

At first the specified action was to go into a house. We go into the house, they have five minutes to escape, we check each person who goes out individually to see that he has no weapons, and then we start going into the house floor by floor to clean it out … This means going into the house, opening fire at everything that moves , throwing a grenade, all those things. And then there was a very annoying moment. One of my soldiers came to me and asked, ‘Why?’ I said, ‘What isn’t clear? We don’t want to kill innocent civilians.’ He goes, ‘Yeah? Anyone who’s in there is a terrorist, that’s a known fact.’ I said, ‘Do you think the people there will really run away? No one will run away.’ He says, ‘That’s clear,’ and then his buddies join in: ‘We need to murder any person who’s in there. Yeah, any person who’s in Gaza is a terrorist,’ and all the other things that they stuff our heads with, in the media.

And then I try to explain to the guy that not everyone who is in there is a terrorist, and that after he kills, say, three children and four mothers, we’ll go upstairs and kill another 20 or so people. And in the end it turns out that [there are] eight floors times five apartments on a floor – something like a minimum of 40 or 50 families that you murder. I tried to explain why we had to let them leave, and only then go into the houses. It didn’t really help. This is really frustrating, to see that they understand that inside Gaza you are allowed to do anything you want, to break down doors of houses for no reason other than it’s cool.

“You do not get the impression from the officers that there is any logic to it, but they won’t say anything. To write ‘death to the Arabs’ on the walls, to take family pictures and spit on them, just because you can. I think this is the main thing in understanding how much the IDF has fallen in the realm of ethics, really. It’s what I’ll remember the most.

One of our officers, a company commander, saw someone coming on some road, a woman, an old woman. She was walking along pretty far away, but close enough so you could take out someone you saw there. If she were suspicious, not suspicious – I don’t know. In the end, he sent people up to the roof, to take her out with their weapons. From the description of this story, I simply felt it was murder in cold blood.

To read the full account click here.

It’s critical to understand that these reports are not the work of Hamas or some other Palestinian terrorist group, nor are they accusations lodged by anti-Israeli Americans.  These descriptions are from Israeli soldiers themselves reported in a respected Israeli medium. Consequently, talk of Jewish self-hatred or vitriolic inquiries demanding to know why Hamas’ atrocities are not reported is completely beside the point.

One crucial question remains.  Why aren’t these events, reported in an Israeli newspaper, discussed in the United States?  Is the reason that one faction in the multi-faceted American Jewish community virtually controls what Israeli news is disseminated in the American press?

Consider James K. Galbraith article on President Obama’s economic policies: “Barack Obama’s presidency began in hope and goodwill, but its test will be its success or failure on the economics. Did the president and his team correctly diagnose the problem? Did they act with sufficient imagination and force? And did they prevail against the political obstacles—and not only that, but also against the procedures and the habits of thought to which official Washington is addicted? The president has an economic program. But there is, so far, no clear statement of the thinking behind that program, and there may not be one, until the first report of the new Council of Economic Advisers appears next year. We therefore resort to what we know about the economists: the chair of the National Economic Council, Lawrence Summers; the CEA chair, Christina Romer; the budget director, Peter Orszag; and their titular head, Treasury Secretary Timothy Geithner. This is plainly a capable, close-knit group, acting with energy and commitment. Deficiencies of their program cannot, therefore, be blamed on incompetence. Rather, if deficiencies exist, they probably result from their shared background and creed—in short, from the limitations of their ideas.” To read further, click here.

This is disturbing. How is the ordinary citizen to understand the process of revivifying the economy when the experts adhere to different paradigms of what’s necessary for an economic recovery?  In a crisis affecting virtually every American, few Americans are able to understand the nuances of the debate over the proper way to proceed. It seems certain, however, that the key to the turnaround rests with the banks.  If they cannot do the trick, what’s so wrong with letting government nationalize the banks for the common good?

The Wall Street Journal had an interesting article this week about the surge of interest in originalism among constitutional scholars and advocates.  These scholars and advocates focus not on the original constitution, but on the Reconstruction Era, also known as the Second Founding because the Reconstruction Amendments changed our constitution so fundamentally.  I am happy to see the Framers of the Reconstruction constitution getting attention in the mainstream media, especially John Bingham, the original author of Section One of the Fourteenth Amendment and one of the leading constitutional theorists in the Reconstruction Congress.  The article also provides an opportunity to consider the question of originalism as a method of constitutional interpretation, and whether “preogressive originalism” is an oxymoron.  “Originalism” as a method of constitutional interpretation has long been associated with conservative ideology.  Indeed, originalism is a fundamentally conservative method of constitutional interpretation in the classic sense of conservatism.  There are varying schools of originalism, but basically originalists ask judges who are interpreting the constitution to look back at the past and to be bound (to varying extents depending on the scholar or judge) by the meaning of the constitution at the time that it was drafted.

Given the fundamentally conservative nature of originalism, how could any originalist consider him or herself to be “progressive?”  For scholars such as myself who research and write about the Reconstruction Era, the answer is simple.  The members of the Reconstruction Congress were progressive, very progressive, even radical.  They intended the Reconstruction Amendments to alter our system of federalism by transfering the primary responsibility over individual rights from the states to the federal government.  They also had a very broad vision of what these individual rights would be, ranging from the rights to life, liberty and property to all of the fundamental rights.  Finally, and perhaps most importantly, they were the first to give Congress the power to define and protect our individual rights by including congressional enforcement clauses in the Reconstruction Amendments.

Focusing on Reconstruction enables scholars to be originalists and believe that the constitution is a progressive document at the same time.  But this attitude does not answer the fundamental dilemma of constitutional interpretation – whether those interpreting the constitution must always look back to what constitutional provisions meant at the time that they were written, or whether they can consider what those provisions mean in contemporary times.  Conservative originalists like originalism because it cabins the discretion of unaccountable judges when they are interpreting the constitution.  They argue that considering the contemporary meaning of constitutional provisions is an invitation to judges to allow their political and personal views to color their interpretation of the Constitution.

The dilemma of “progressive originalism” is less problematic when we understand that the members of the Reconstruction Congress did not believe that judges were the sole, or even the primary interpreters of the constitution.  Like conservative originalists, members of the Reconstruction Congress were very skeptical of the judicial branch, which they recognized as the author of Dred Scott and an apologist for the Slave Power.  They also believed that members of Congress had a large amount of autonomy to interpret the constitution themselves, and they intended the congressional enforcement clauses to reflect this vision of constitutional interpretation.  When members of Congress interpret the constitution, they need not look back to the meaning of those provisions at the time that they were adopted.  Instead, they may take their political views and contemporary circumstances into account.  That is their job, and that is the task assigned to them by the Reconstruction Congress.  The Framers of the Reconstruction Amendments assumed that those interpreting the broad provisions establishing individual rights in those amendments would take contemporary circumstances into account.  They just didn’t expect the Court to monopolize that interpretation the way that it has in cases such as City of Boerne v. Flores.  Thus, an originalist understanding of the Reconstruction Amendments is progressive, both politically and institutionally.

Unfortunately, the current Supreme Court, comprised primarily of “originalists,” has failed to take an originalist approach to the Fourteenth Amendment.  In Boerne, the Court restricted the Congress’ power to enforce the Fourteenth Amendment in a manner that would have made Reconstruction Framers such as Bingham, James Ashley and Lyman Trumbull roll over in their graves.  Let’s hope the new originalist approach to Reconstruction makes its way to the US Supreme Court, so that the progressive vision of the Reconstruction Framers can be restored – not just in the courts, but also in Congress.

Today is either the eve of the NCAA Division I Men’s Basketball Championship or Day 2 of the tournament colloquially known as March Madness.  How the issue should be resolved is an interesting one.  Until several years ago, the NCAA tournament was a 64-team affair.  Sixty-four was the perfect number of teams for the tournament and for television.   A sixty-four team tournament requires 6 rounds of head-to-head play.   Those six rounds were divided two to a weekend for three weeks.  The first week allowed for an orgy of 16 games each on Thurday and Friday and 8 games each on Saturday and Sunday pairing the first-round winners.  The first week created the group of remaining teams known as the Sweet Sixteen.  Three days of discussion about the first four days of the tournament ensued until the Sweet Sixteen teams played on the Thursday and Friday of week 2 when round three was played.  Round four was played on Saturday and Sunday, yielding the Final Four teams.  Another round of discussion ensued until those teams played during prime time of the Saturday of week 3, with the winners playing the national championship game two days later on Monday.

However, a few years ago, the tournament added one team to make 65.  The problem arose because of how the teams were selected to participate in the tournament.  When the field consisted of 64 teams, the invitees included 30 conference champions who were automatically invited.  in addition, 34 at-large teams were invited.  However, several years ago, the Western Athleticc Conference split into the WAC and the Mountain West Conference.   The NCAA decided to give an automatic bid to both the WAC and the Mountain West and keep the number of at-large teams at 34, even though it could have dropped the number of at-large teams to 33.  The NCAA’s decision created a 65th team.  Consequently, the NCAA decided to have the two weakest conference champions play on the Tuesday of the first week of the tournament.  The winner then plays a first-round game on the Thursday of the first week of the tournament.   If Tuesday’s game is considered the first game of the NCAA tournament, today is the second day of the tournament.  Conversely, if Tuesday’s game is considered a “play-in” game, tomorrow is the first day of March Madness.  Not surprisingly, the NCAA considers Tuesday’s game to be the opening round of the NCAA tournament.  It does not want to downplay the importance of the game to the teams that have to play it.  However, the NCAA yet appears to call Thursday’s games first-round games.  How to deal with the issue is a question of interpretation, but a very interesting one.  Indeed, it is no less interesting than watching the former Bush Adminstration try to figure out what behaviors qualify as torture, though of far less import.

Let the games begin and let the Madness begin.