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Essentially Contested America 
Features commentary and news involving law, legal theory, politics and culture.
Post Frequency: 1.5/day Last Entry: July 29, 2009 at 08:44:38 Recent Entries: 314
By Robert Justin Lipkin
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Gates, Crowley and Police Reports: The Teachable Moment
Posted on July 29, 2009One real and lost teachable moment in the Prof. Gates/Sgt. Crowley incident relates to how police reports ought to be read. From the start of the process, many (including Mika Brzezinski of MSNBC’s Morning Joe) have pointed to Sgt. Crowley’s police report and his statements as the truth regarding what occurred surrounding the Prof...
What is Single-Payer Health Health Care?
Posted on July 27, 2009Single-Payer health care systems vary but share similar features. For example, the Canadian single-payer system is the source of health care funds generally derived from taxes of various kinds. In Nova Scotia, hefty taxes on alcohol provide the funds to support the province’s health care...
Is a Reasonable Health Care Program Possible in the United States?
Posted on July 24, 2009Is an effective and fair health care program possible in the United States? Or will the insurance companies and their dupes in Congress once again defeat such a program? Why aren’t the proponents of such a program defending it rationally? For example, the Canadian “single-payer” system, on balance, is far better than ours...
The Most Dangerous Supreme Court Case
Posted on July 23, 2009There’s been a lot of talk recently about the Supreme Court’s Ricci case, but by far the most important case decided by the Court this year is Ashcroft v. Iqbal. In that case, the Court upheld the dismissal of a civil rights claim brought by a Pakistani immingrant held in the wake of 9/11 against [...
Henry Louis Gates and Bad Policing
Posted on July 22, 2009By now most have heard of the arrest for disorderly of Harvard scholar Dr. Henry Louis Gates at his home in Cambridge and the subsequent dropping of charges. The police report notes that the police officer involved was investigating a call of a possible break-in phoned in by one of Gates’ neighbors who saw Gates [...
Which Official Do You Want Between You and Your Doctor?
Posted on July 21, 2009Governmental heath care overhead, I’m told, costs approximately 6% of health care. Corporate health care overhead is approximately 20-30%. Why? Corporate insurance is designed to reject claims. That’s expensive. But that’s the insurance company’s raison d’etre...
Do Judicial Confirmation Hearings Help Us Get to Know Future Supreme Court Justices?
Posted on July 20, 2009The Senate confirmation hearings generated virtually no significant information about a nominee that would help the American people learn about the judicial philosophy of a future Supreme Court Justice. The explicit language and implicit interpretive norms embedded in that language set up enormous roadblocks for getting a sense of how nominees approach the Constitution and [...
Senator Coburn?s Misreading of the Tenth Amendment
Posted on July 17, 2009It sometimes seems that it is just those people who insist on understanding the Constitution by attending to its plain meaning that get this meaning wrong. No better example exists than Senator Tom Coburn’s misstatement of the Tenth Amendment in today’s confirmation hearings: You know, I — people call me simple, because I really believe this [...
Thoughts on the Sotomayor Hearings
Posted on July 16, 2009When I was a first year student at Yale Law School, some of the upper level students organized a conference on “Women of Color and the Law.” The speakers at this conference spoke about the failure of our law to adequately address the needs of women of color, and the role of women of color [...
Senator Coburn?s Misreading of the Tenth Amendment
Posted on July 16, 2009It sometimes seems that it is just those people who insist on understanding the Constitution by attending to its plain meaning that get this meaning wrong. No better example exists than Senator Tom Coburn’s misstatement of the Tenth Amendment in today’s confirmation hearings: You know, I — people call me simple, because I really believe this [...
The Hyde Amendment: No Need for Equal Protection of Law for Republican Causes
Posted on July 14, 2009Last night on the Chris Mathews’ Hardball a discussion arose with Senator Orin hatch about the possibility that President Obama’s health care program will reject the Hyde Amendment which prohibits spending federal funds on abortions. It’s okay to spend federal funds on childbirth, but not abortion...
Jeff Sessions: Empathy Towards One Litigant Means Bias Toward the Other Litigant?
Posted on July 13, 2009Senator Minority lead Jeff Sessions made the astounding remark on Face the Nation Sunday that when a judge shows empathy toward one litigator, it means he or she will show bias toward the other litigant. What can this possibly mean? Showing or experiencing empathy means taking the appropriate action to experience or appreciate the circumstances, [...
Why Women on the Court?
Posted on July 10, 2009It should astonish anyone with moderately progressive (fair and just) sensibilities that only two women have so far served on the Court. Can it be seriously argued that for at least the past fifty years, say, no more than two women have been qualified to serve? If not, male power directed toward discriminating against women [...
Racial Justice After Ricci
Posted on July 09, 2009As we sit back after the end of the Supreme Court term, and get ready for the nomination hearings on another Justice, it’s worthwhile to consider what the government can do to try to reduce racial injustice in our society. Despite the long history of race discrimination in our country which has subordinated racial minorities, [...
Sarah Palin and Quitting
Posted on July 08, 2009Regardless of what one thinks of Gov. Sarah Palin, she quit. Quitting itself is not necessarily problematic if one has a good reason to do so. It is unclear she has a good reason. At least three legitimate reasons exist to quit a public office before one’s term has ended...
?Saint? Michael: America?s Need for Gods, Saints, and Heroes
Posted on July 07, 2009Whatever one’s views of Michael Jackson are as either an entertainer or as a human being, why must we sanctify him; indeed, in this case, why must we divinize him? At best, he was a pop innovator, a superlative entertainer, and a unique, if mysterious, personality...
Is Deliberative Democracy Possible in Contemporary America?
Posted on July 06, 2009A deliberative democracy should inter alia address a diverse range of views to take seriously, critically evaluate, reject or accept as the circumstances indicate. Ghettoizing particular perspectives to that they are insulated from serious confrontation with other perspectives is anathema to deliberative democracy...
Shouldn?t Judges Use the Same Interpretive Methodology?
Posted on July 03, 2009Isn’t there something peculiar about judges using different interpretive methodologies in constitutional adjudication? If constitutional judgments are objective, inter-subjective, or in some other way reliable across judges, shouldn’t the form of reasoning and interpretation generating the judgments be the same? This doesn’t mean that if judges used the same methodology they necessarily would agree on [...
Out with a Whimper
Posted on July 02, 2009The Supreme Court’s season is over, and it ended not with a bang, but a whimper. The Court did not strike down the Voting Rights Act after all (thank goodness). The Court ruled in favor of the white firefighters in Ricci, as expected, but avoided the Equal Protection issue...
Ricci and Employment Tests
Posted on July 01, 2009The Supreme Court issued its opinion in Ricci v. DeStefano, the New Haven firefighters case, on Monday. It was a typical 5-4 decision in which the conservative wing of the Court declined to allow New Haven to attempt to guarantee racial equality in promotions...
How Should the Effects of American Racism Be Remedied?
Posted on June 29, 2009Given the irrefutable fact that hundreds of years of oppressing a class of individuals through slavery and Jim Crow discrimination and segregation will determine to a large extent the skills and abilities those individuals will possess, how does a rational, just society remedy the deficiencies imposed on the class of individuals by the oppressors? The [...
When Should Gun Ownership Be Regulated?
Posted on June 26, 2009I have a simple question addressed to those Americans who oppose gun control. Under what circumstances would they do an about-face and drastically change their opinion? To answer this question, let’s set aside the Second Amendment. This is critical to express the significance of my question...
The ?Public Option? and the Health of Our Nation
Posted on June 25, 2009As the health care reform debate shifts into high gear, we need to make sure that the reformers have the right priorities. The fundamental issue before us is what is the purpose of our health care system ? the health of the American people or the health of the private insurance companies? [...
What Do We Want in Iran?
Posted on June 24, 2009I have heard complaints about how the Obama Administration is handling the Iranian election and its aftermath. The problem with this line of complaint is that the complainers are not clear about what they want or what we as a country should want. The complainers may want one of three things...
We The Court
Posted on June 23, 2009Americans’ love-hate relationship to the Supreme Court is bewildering. We, Americans, pride ourselves on living in a republican democracy. Majority rules, but only within the restraining framework of individual rights. Hence, American democracy is perfectly compatible with constitutional “filters” to make sure that majorities abide by the rights of minorities...
What?s the Republicans? Game Plan?
Posted on June 22, 2009We all have our blindness, but I cannot fathom the criticism that President Obama should be acting aggressively in supporting the Iranian demonstrations beyond calling for the cessation of violence and out solidarity with the Iranian people. Anything the President does potentially damns the United States and harms the demonstrators...
What does the Iranian Election Contoversy Mean?
Posted on June 19, 2009First, the controversy is not merely about election fraud or irregularity. Second, the controversy does not devolve around two particular policy political platforms in contemporary around. More important, the controversy concerns just how power wit be distributed in Iran between the clerical elite, the religious conservatives, the army, the religious revolutionary guard, and most important, [...
Referenda on the Rights(?) of Others
Posted on June 17, 2009In a ruling a few days ago, election officials in Washington, D.C. decided that a referendum on whether the District of Columbia could recognize the marriages of same-sex couples who were legally married in another jurisdiction could not occur. The officials determined that allowing a referendum on the issue would itself authorize discrimination that the [...
The Controversy over Judicial Review Continues
Posted on June 16, 2009Lawrence Goldstone’s book, The Activist: John Marshall, Marbury v. Madison, and the Myth of Judicial Review (Walker 2008) promises to be an illuminating contribution to an ill the controversy over whether judicial review, let alone judicial supremacy, was made up, as Justice Scalia contends, or rather in some sense intended by the Founders and ratifiers [...
Justice Scalia?s Textualism: Brilliant or Perverse?
Posted on June 15, 2009Justice Scalia insists that the Constitution be understood according to the most reasonable interpretation of the language used at the time to formulate and ratify the document. Yet, he writes: The Constitution of the United States nowhere says that the Supreme Court shall be the last word on what the Constitution means...
Republican ?Political Discourse,? Hate, & Violence
Posted on June 12, 2009Check out Paul Krugman’s insightful column–”The Big Hate”–in today the NY Times here. Absurd Right Wing claims, lies, and distortions–uncontradicted by mainstream Republicans–have a way of translating into to violence.
Domestic Terrorism
Posted on June 11, 2009The attacks on our country on September 11, 2001 dramatically alterted our nation to the threat of international terrorism. Our lawmakers responded by authorizing attacks on the country that had harbored the 9/11 terrorists, and anti-immigration measures to keep the terrorists out...
Virginia Gubernatorial Election as Bellwether
Posted on June 10, 2009RNC Chair Michael Steele and others have suggested that Virginia’s gubernatorial election this fall will be the next test of the President Obama’s strength. However, the race is not terribly likely to offer a proxy referendum on President Obama’s agenda...
The Impoverished Character of American Political Media
Posted on June 09, 2009I’m posting an enormously important discussion of the poverty of American media aired on the Bill Moyers’s Journal one of the more important television programs on American politics and society.I wish I was able to post the entire video. June 5, 2009 ANNOUNCER: We now return to Bill Moyers in the studio...
When Will the Republican Attack on Civil Discourse End?
Posted on June 09, 2009Jon Voigt has joined the Republican distillers of venom and vitriol absent facts, arguments, and reasoning. Consider: “Are we supposed to sitting and waiting, watching for the possibility of a new Holocaust? Who?s going to take the responsibility to keep America, I mean Israel, safe...
When Will American Jews Insist on Peace between Israel & Palestine?
Posted on June 08, 2009Recently, the Israeli government announced it would not accede to President Obama’s request to stop constructing settlements on the West Bank. This refusal indicates the new Israeli government will continue its obdurate intransigence which can only be explained by a rejection of justice and peace in favor of power and domination...
The Cowardice of the Fringe Anti-Abortion Movement
Posted on June 05, 2009Why is it that the fringe anti-abortion movement target physicians who perform abortions at the request of woman, not the woman themselves. (Of Course, I’m not advocating targeting either.) The fringe movement calls these physicians “murders, ” “butchers,” “terrorists,” and so forth...
Sotomayor and Race
Posted on June 04, 2009Given the years of virulent racism that minorities in our country have faced throughout our history, it is a bit shocking to see right wingers like Newt Gingrich and Rush Limbaugh accuse Supreme Court nominee Sonia Sotomayor, the first Hispanic ever nominated to that Court, of being a “racist,” based solely on one remark that she made in a [...
Pringles, Potato Chips and the Law
Posted on June 03, 2009The internet is abuzz with the latest law-and-food question: Is a Pringles potato chip a real potato chip? A British Court of Appeal has decided that the Pringles chip is close enough to a potato chip to be taxed like one. The issue is important, as it was worth in excess of $100 million to [...
Taking Responisbility for Domestic Terrorism
Posted on June 02, 2009Rachel Maddow’s interview with Frank Schaeffer deserves wide spread dissemination and consideration. Both Maddow and Schaeffer should be commended for their courage and insight. “Rachel Maddow Show: Frank Schaeffer on How Hate Speech Leads to Violent Acts By Heather Tuesday Jun 02, 2009 10:00am DOWNLOADS: (467) [...
Why Senate Confirmation Hearings Must be Reformed
Posted on June 01, 2009The conventional justification for nominating and confirming federal judges, especially Supreme Court Justices with left tenure, is that this process provides some form of democratic accountability by having the elected branches selecting the members of the Court...
Why Sotomayor Is a Good Choice
Posted on May 28, 2009There are three reasons why I think Sonia Sotomayor is a good choice to be the next Justice on the United States Supreme Court. First, her nomination is historic. If confirmed, Justice Sotomayor will be the first Latina, the first woman of color, and only the third woman to serve on the United States Supreme Court [...
Sotomayor, Roberts and Empathy
Posted on May 27, 2009As Bobby has suggested in a few posts already, empathy is an important issue that ought to be properly understood. Empathy is, as my colleague has noted, the ability to put oneself in someone else’s shoes. Empathy can come from a mindset or a set of experiences...
Judge Sonia Sotomayor is President Obama?s Pick
Posted on May 26, 2009The moderate second circuit court of appeals judge Sonia Sotomayor has been nominated to fill Justice Souter’s seat on the United States Supreme Court. While not a truly progressive choice, Judge Sotomayor is a qualified and competent judge whose confirmation is very likely...
Is ?Empathy? a Code Word for Judicial Liberalism?
Posted on May 25, 2009When President Obama uses the term “empathy” as a virtue any desirable Supreme Court nominee should possess, it appears to some that he’s simply preparing the public for his choice of a liberal for the Supreme Court. But this is a radically misunderstanding of the nature of empathy as well as the President’s [...
Is Obama Proposing Preventive Detention?
Posted on May 22, 2009Preventive detention is incarcerating someone considered too dangerous to be permitted walk freely in American society. Such an individual cannot be tried either because he or she has not committed a crime or because for one reason or other they cannot be convicted in a court of law...
Consider Single Payer
Posted on May 21, 2009After years of woeful neglect, health care reform is now thankfully at the top of the national agenda. What’s missing from President Obama’s and Congress’ consideration? A single payer health care system. This omission is a huge mistake, since it is likely that only a single payer health care system can solve our nation’s health [...
Courting No Votes on a Supreme Court Nominee
Posted on May 20, 2009A reasonable process for choosing a Supreme Court nominee is to find the intersection of the people a president wants to appoint and the people the president believes he can get through the Senate. Given the makeup of the Senate and the unlikelihood that President Obama’s would nominate someone out of the mainstream, President Obama [...
Elite Law Schools as a Prerequisite to the Supreme Court
Posted on May 19, 2009Should Supreme Court Justices receive their legal education from an elite law schools? What about the thousands of graduates of non-elite law schools who arguably can bring diversity to the multi-faceted questions of social policy the Supreme court decides? The real question, in my mind, is this: Is it obviously the [...
Jusitice O?Connor?s Performance in the ?Bush v. Gore? Litigation: What Empathy is Certainly Not!
Posted on May 18, 2009Ever since President Obama mentioned the horrid E-word as reflecting for a virtue he sought in Supreme Court nominees should possess, the Right-Wing Robo-Jurisprudes have been having a field day mocking him. By giving examples of what empathy is not we might get some idea of what it is...
Will She or Won?t She? Rachel Alexandra at the Preakness
Posted on May 16, 2009Will this talented filly beat the Kentucky Derby winner Mine that Bird? Calvin Borell, Mine That Bird’s jockey in the Derby, has jumped ship, horses, that is. He’s chosen to ride the Kentucky Oaks winner, Rachel Alexandra. This horse is his regular mount and he was aboard when she won the Oaks...
How Long Can President Obama Remain Silent on Torture?
Posted on May 15, 2009President Obama is treading dangerously on his support from the Left given the reversal of his own position on military commissions and his failure to vigorously support prosecution of the Bush administration’s alleged war crimes involving torture...
Victory Gardens
Posted on May 14, 2009A beloved tradition from the World War II era, Victory Gardens are being revived throughout the country. This time, people are not planting those gardens to support victory over an enemy abroad, but instead to support our neighbors at home. In the Twenty-First Century, victory gardens are not about beating Nazis, but instead about defeating [...
Prosecutorial Discretion and the Torture Memos - Part II
Posted on May 13, 2009A few weeks ago, I wrote about prosecutorial discretion and the torture memos. No new information has been revealed about the memos. However, former Vice President Dick Cheney has continued to talk about enhanced interrogation techniques (read torture) and the good information they supposedly produced...
A Letter to President Obama from a Palestinian Doctor
Posted on May 12, 2009I’m reprinting this poignant letter I received in a Tikkun email. Dear President Obama: In approaching the task of addressing you directly about a personal issue, I feel daunted by the abyss that separates the two of us in status and power. I am a retired public health physician, attempting to maintain a hold [...
The Judicial Priesthood & Its Appointments Ritual
Posted on May 11, 2009The judicial appointments ritual begins. It is a ritual designed to fill the seat of an Associate Justice of the Supreme Court and it goes far beyond the simple constitutional imperative that the President must appoint and the Senate must confirm an appointment to the Supreme Court...
What?s Empathy Got To Do With It?
Posted on May 08, 2009It’s quite astonishing that President Obama’s mention of empathy as a virtue he seeks in Supreme Court Justices has caused such a commotion. The reason for the commotion is a commitment to a conventional, however preposterous, jurisprudential paradigm, namely, that law, or rules generally, must be understood simply in terms of the text they’re written [...
The Ideal Supreme Court Nominee
Posted on May 07, 2009As a constitutional law professor who spends so much of my time analyzing Supreme Court opinions, I cannot resist opining on what I believe to be the most important qualifications of the next Supreme Court justice. First, the qualifications which don’t matter as much to me: I would not apply any litmus test on any [...
President Obama versus the Hedge Funds
Posted on May 06, 2009In the wake of the failure to put together a plan to help Chrysler avoid bankruptcy, the recriminations have been flying. President Obama has suggested that the hedge funds that own senior Chrysler debt killed the deal with greed. He suggested that they should have taken the deal offered by the government that would have [...
Does Liberalism Move Conservative-Appointed Justices to the Left?
Posted on May 05, 2009There’s an interesting article at the Boston Review on the shift of conservative liberals toward the Left. Here’s a sample: When Justices William Rehnquist and Sandra Day O?Connor left the bench last year, conservatives were in an anxious mood: though pleased at the prospect of shifting the Supreme Court to the right, they were [...
God Talk with Fish on Eagleton, Dawkins, & Hitchens
Posted on May 04, 2009Stanley Fish “reviews,” if that’s the proper term, Terry Eagleton’s latest book ?Reason, Faith and Revolution.” Apparently, (I have not read Eagleton’s book), Eagleton attempts to defend the faith of his fathers against the attacks of such irksome atheists as Richard Dawkins and Christopher Hitchens...
Specter?s Defection & the Separation of Powers
Posted on May 01, 2009There’s a conventional understanding of why Arlen Specter defected. Basically, he defected because the Republican Party is on the cusp of imploding. There different versions of this story, one in which Specter is a cowardly villain the other which blames the contraction of the Republican Party...
Arlen Specter and a Postpartisan Landscape
Posted on April 29, 2009The Democrats have gone from minority status to almost filibuster-proof majority status in the Senate with blazing speed, at least in political years. The essential switch in party affiliation by Sen. Arlen Specter coupled with the anticipated eventual victory of Al Franken in Minnesota has nearly made the transformation complete...
Who Will Save the Republicans?
Posted on April 28, 2009The Republican Party risks imploding. With perverted ideologues like Kristol, obstructionists like Boehner, delusionals like Cantor, the comatose like Bachman, and the authentic loonies like Limbaugh, the Republicans are ripe for a person adhering to conservative principles, but a person of character, integrity of principle...
Solow on Posner & the Market Failure Crisis
Posted on April 27, 2009Throughout the course of systemic controversies, individuals line up on different sides of a controversy and typically remain there permanently. Sometimes there are defections, but usually not of major figures on either side. It is rarely that a major intellectual figure representing the gold standard on one side of the controversy switches sides...
Of Guns and Madness: Bob Herbert?s Account of Why America Tolerates the Posionous Pathology of Guns
Posted on April 25, 2009Check out Bob Herbert’s recent piece on gun violence. Here’s a sample: I remember writing from Chicago two years ago about the nearly three dozen public school youngsters who were shot to death in a variety of circumstances around the city over the course of just one school year...
Of Men and Nations: Obama?s Wisdom in Releasing the Torture Memos
Posted on April 24, 2009A relatively simple moral imperative requires the righteous to criticize their own conduct and when found wanting to admit and atone for the wrongdoing. Indeed, the capacity for moral correction and growth may just be the defining feature of being a person...
Do we Need More Women on The Supreme Court?
Posted on April 23, 2009Throughout the entire history of the United States Supreme Court, only two women, Justices Sandra Day O’Connor and Ruth Bader Ginsburg, have ever served on that institution. Since O’Connor retired and was replaced by Samuel Alito, there is only one woman on the Court...
Prosecutorial Discretion and the Torture Memos
Posted on April 22, 2009The discussion regarding what to do with the writers of the infamous torture memoranda continues to heat up. With President Obama arguably switching his position with respect to whether those responsible for the torture policy and the legal memoranda behind it will be allowed to be prosecuted, the controversy will not end quickly...
No, ?the U.S. Doesn?t Torture!?
Posted on April 21, 2009According to recent reports: “The CIA waterboarded two al-Qaida terror suspects a total of 266 times, according to a report that suggests the use of the torture technique was much more extensive than previously thought. . . . The documents showed waterboarding was used 183 times on Khalid Sheikh Mohammed, who admitted planning the [...
?The Wire,? American Cities, & ?Cheating the Stats?
Posted on April 20, 2009It is absolutely impossible to understand the decline of American cities and the marginalization of the inner city without appreciating how the performance of major institutions such as the police, the educational system, and the political structure are evaluated...
My Country, Right or Wrong & American Patriotism
Posted on April 17, 2009Will those insisting that any public criticism of the United States is disloyal cease and desist? The idea that America must always be right or that her errors be ignored is antithetical to Hamilton’s dictum that what distinguishes the United States from any other nation is “reflection and choice, not “accident and force...
Equal Access to Justice
Posted on April 16, 2009Our current economic crisis has caused thousands of people to face unemployment, home foreclosures, evictions, bankruptcies, domestic violence and other problems. However, too many people who find themselves in legal trouble cannot afford to hire a lawyer to help them - as many as 80% in some parts of the country...
Heat Pumps and the Stimulus Package Tax Credit
Posted on April 15, 2009A friend of mine needs a heat pump. The heat pump is old and has died. Luckily, for him, Richmond is not so cold that he had to buy a new heat pump from the first salesman who gave him an estimate. Heat pump manufacturers do not provide the kind of detailed price information that [...
The Virginia Tech Massacre & Arming the Good Guys
Posted on April 14, 2009With the second anniversary of the Virginia Tech massacre coming up and with the current increase of gun deaths, I am reprising an article posted in April 2007 about the massacre. It’s pertinent because we are again hearing the fallacious argument that arming the good guys will prevent or decrease gun deaths because armed good [...
American Exceptionalism, Arrogance, or Are They One and the Same?
Posted on April 13, 2009Many conservative pundits condemn those who criticize–even fairly and justly–the United States as “the blame America first crowd.” Not only is this charge generally groundless, but the charge raises an important question about the soul of America...
Sunstein on the Federalist Papers
Posted on April 10, 2009Check out Cass Sunstein’s essay on federalism and republicanism in the March 26th issue of the New York Review of Books. Here’s a sample. To many modern readers, the Federalist Papers seem formal, musty, old, and a bit tired?a little like a national holiday that celebrates events long past but lacks any sense of struggle and [...
Ted Stevens and Prosecutorial Misconduct
Posted on April 09, 2009The scandal surrounding the prosecution of former Senator Ted Stevens continues. The claims are fairly simple. The prosecutors in the false statements case appear to have withheld exculpatory evidence from Stevens’ defense team. The problems are not of the supposedly “technical” variety...
Sunstein?s Take on the Federalist Papers
Posted on April 08, 2009Check out Cass Sunstein’s essay on federalism and republicanism in the March 29th issue of the New York Review of Books. Here’s a sample. To many modern readers, the Federalist Papers seem formal, musty, old, and a bit tired?a little like a national holiday that celebrates events long past but lacks any sense of struggle and [...
Political Constitutionalism v. Legal Constitutionalism
Posted on April 07, 2009Richard Bellamy has written a new book, Political Constitutionalism: A Republic Defence of the Constitutionality of Democracy (Cambridge University Press 2007) that promises to be an interesting read. Consider the initial statement of his argument. “I shall argue that ...
Fraud & Cover-Up in the Financial-Government Complex
Posted on April 06, 2009Bill Moyers aired an absolutely “must-see” interview with William K. Black last Friday night. The financial industry brought the economy to its knees, but how did they get away with it? With the nation wondering how to hold the bankers accountable, Bill Moyers sits down with William K...
Choosing Equality: Brown After a Half-Century
Posted on April 03, 2009Congratulations to Professors, Robert L. Hayman, Jr. and Leland Ware on the publication of their new book Choosing Equality: Essays and Narratives on the Desegregation Experience. Choosing Equality is an excellent collection of articles celebrating the fiftieth anniversary of Brown v...
The Truth about the Surge
Posted on March 31, 2009Since 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...
The Ravages of the Mexican Drug Wars
Posted on March 30, 2009The 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 [...
Bruce Ackerman?s Proposal for a Truth Commission on Presidential Power
Posted on March 27, 2009There 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...
Judicial Non-Deference to the FDA
Posted on March 26, 2009The 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 [...
AIG Bonuses and Treating the Public Like Grown-ups
Posted on March 25, 2009The 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 [...
Was the Bush-Cheney Regime Guilty of Torture?
Posted on March 24, 2009Occasionally, 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...
Israeli War Crimes in Gaza
Posted on March 23, 2009Last 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...
How is the Ordinary Citizen to Understand the President?s Recovery Program?
Posted on March 20, 2009Consider James K. Gailbraith 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 [...
?Progressive Originalism?
Posted on March 19, 2009The 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...
March Madness, 65 Teams and A Question of Interpretation
Posted on March 18, 2009Today is either the eve of the NCAA Division I Men’s Basketball Championship or Day 2 of the tourmament 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...
?Bonuses? and the Effectiveness of Shame
Posted on March 17, 2009Yeaterday, President Obama instructed Secretary of the Treasury Timothy F. Geithner to take every legal step to prevent A.I.G. from paying out over one hundred and sixty-five million dollars in bonuses. New York Attorney General Andrew M. Cuomo has ordered A...
Tribe?s Invisible Constitution
Posted on March 16, 2009Constitutional scholars are inclined to dub their favorite conceptions of American constitutionalism as a Constitution of a certain kind. Here are some examples: the living Constitution, the perfect Constitution, the strategic constitution, the modest Constitution, the interpretable Constitution, the dynamic Constitution, the settled (or unsettled) Constitution, the sedimentary Constitution, the partial Constitution, the emergency Constitution, [...
What If Obama Fails?
Posted on March 13, 2009President Obama is being pilloried by the Left, Right, and Center. The Left doubts that his recovery plan is big enough. The Right contends that it is far too big, while the Center trembles and wonders why the recovery plan has not yet worked. To his credit President Obama defends is plan while at the [...
Earmarks and Executive Prerogative
Posted on March 12, 2009In his post a few days ago, Bobby ably discussed earmarks from the congressional perspective. There is no point in replaying that discussion. However, it is worthwhile to note that a congresswoman can quite sensibly say, “If a $787 billion stimulus bill is going to be passed, a particular project in my district had better [...
No Town Like Motown
Posted on March 12, 2009In many ways, the city of Detroit, Michigan, embodies the American dream - and its failings. In the Twentieth Century, Detroit was a center of industry - and not just any industry. The American romance with the automobile is central to the American dream, and for much of the Twentieth Century, most of our cars [...
Same-Sex Marriage & the African-American Community
Posted on March 10, 2009One of the saddest features of the controversy over same-sex marriage, in my estimation, is the African-American community’s overwhelming opposition to legitimizing this practice. Despite the critical constitutional decision in Loving v. Virginia banning laws against miscegenation which in one sense lies at the core of the struggle for civil rights, many African-Americans simply reject [...
The Wisdom of Negotiating with the Taliban
Posted on March 09, 2009Although not as widely discussed as it should be, there have been reports over the past week of President Obama’s possible endorsement of negotiating with the Taliban. Consider: “[L]ast Friday, in an interview with The New York Times, Mr. Obama opened the door to approaching elements of the Taliban, if his administration?s review recommends it...
Taking America Through Lent
Posted on February 26, 2009Barack Obama gave his first address to Congress on what we typically call Mardi Gras. Mardi Gras is the day before Lent begins on the Christian holy day Ash Wednesday. Typically, we think of Mardi Gras (Fat Tuesday) as the day of gorging before the day of reckoning...
Bobby Gindal?s Fallacy/The Republican Party?s Perennial Deception
Posted on February 25, 2009How many times have we heard that Democrats are for government, while Republicans are for ordinary citizens. What a choice! Between the two who could argue that government is a more comforting, a more deserving institution? But that’s not the real Republican choice...
Rupert Murdoch ?Apologizes??
Posted on February 24, 2009Rupert Murdoch apologized for the racist cartoon printed in the New York Post last week. Here’s the best he could do: As the Chairman of the New York Post, I am ultimately responsible for what is printed in its pages. The buck stops with me. Last week, we made a mistake...
The Persistence of Sociopathic Racism
Posted on February 20, 2009Expect the remnants of sociopathic racism—racism without a sense of shame—to persist even throughout the tenure of one of the most qualified individuals ever to assume the presidency, and, who is also black. Barack Obama’s ascendancy to the presidency has hit the failsafe mark of no return to American apartheid...
The Ghost of FDR
Posted on February 19, 2009This week, President Obama signed a stimulus bill that is designed to end our country’s downward economic slide. Given the dire circumstances we are in, you might expect that the Republicans in Congress would be open to the plan suggested by a new president whose victory last fall was based in large part on his [...
Bipartisanship
Posted on February 18, 2009During and after the battle over the stimulus package, many prominent Republicans complained about a supposed lack of bipartisanship demonstrated by Democrats and President Obama. Sen. McCain, Sen. Graham and Rep. Boehner all have pointedly noted the very small number of Republicans who voted for the stimulus package, claiming that this proves that the bill [...
Chief Justice Roberts & the Frankenstein Monster
Posted on February 17, 2009Just when some influential scholars are championing the idea that not all the members of the Court should be lawyers, Chief Justice Roberts embraces the view that it would be good for all the members of the Court to be former federal appellate judges...
Multiple Voices in Dream City
Posted on February 16, 2009The novelist, Zadie Smith, has a beautiful piece in the New York Review of Books on the multiple voices of biracial individuals. Indeed, once articulated we can discern multiple voices in everyone or at least those courageous enough to listen to their own multiple and diverse narratives...
Happy Birthday, Abe!
Posted on February 12, 2009Today is the 200th anniversary of Abraham Lincoln’s birth, an event worthy of at least a moment’s reflection. Unfortunately, many of the media reports today focus on Lincoln’s death, not his many and significant life accomplishments...
Sixty Votes and the Dark Side of Bipartisanship
Posted on February 11, 2009A constitutionally troubling concept seems to be gaining currency with those in the government and in the media. It is that it takes 60 votes to pass a piece of legislation in the Senate. Of course, the relevant parties understand that only 51 votes are required for the actual passage of legislation...
Naomi Klein Again
Posted on February 10, 2009Check out this piece on Naomi Klein: “In her best-selling book, The Shock Doctrine: The Rise of Disaster Capitalism, Naomi Klein outlines the disturbing trend of governments using crisis as a means for corporate profit-advancement. She cites Hurricane Katrina, 9/11, and Pinochet’s Chile as examples of the practice...
Scheming Republicans
Posted on February 09, 2009Why are congressional Republicans refusing en masse to support President Obama’s stimulus package? Are they sticking to their guns for conscientious reasons? Or are they just playing politics? If they latter they should keep in mind that 74% of the American public believe that President Obama is trying to compromise with the congressional Republicans while [...
When a Supreme Court Justice Becomes Incapacitated?
Posted on February 06, 2009Justice Ruth Bader Ginsburg has been stricken with pancreatic cancer, one of the more virulent forms of that dreadful disease. Her tragedy raises a series of critical questions concerning a short-handed Court. The most obvious question is how does the Court decide cases when it is short-handed? The answer is fairly clear...
Barack Obama and Post-Equal Protection Equality
Posted on February 05, 2009Much has been said about the relationship between Barack Obama and former civil rights leaders. On the one hand, the inauguration was full of parallels between Obama and Martin Luther King. Obama was said to have realized the dream that King spoke about in the 1963 March on Washington...
Wall Street Bonuses
Posted on February 04, 2009Wall Street has taken a beating in the press regarding the estimated $18.4 billion in bonuses firms paid out in 2008. Just for the math challenged, $18.4 billion in bonuses amounts to $10 million bonuses for 1,840 people or $1 million bonuses for 18,400 people or $100,000 bonuses for 184,000 people...
America, the World, Requires a Reckoning
Posted on February 03, 2009Is it morally conceivable that the Obama administration will fail to pursue some institutional mechanism for determining whether George W. Bush is responsible for war crimes? The moral core of American values requires a reckoning. Even if the former president is never tried, the United States must take it upon itself in whatever venue possible [...
Who?s Afraid of Bipartisanship?
Posted on February 02, 2009What is political bipartisanship and why do we think it represents an attractive form of politics? First, bipartisanship is an elementary form of political community. It requires taking other people seriously. Rather than attempt to brow beat our political opponents, bipartisan politics seeks to appreciate their conscientious convictions and genuinely try to incorporate them into [...
Is the Pope a Closet Holocaust Denier?
Posted on January 30, 2009The Pope has sent a terrible message concerning the Catholic Church’s position on Holocaust denial. In order to avoid a continuing “schism” in the Church Pope Benedict decided “to lift the excommunication of four ultra-traditionalist bishops, including one who has denied the Holocaust, has angered many Jews and Catholics who say the bishops represent repressive [...
James Ashley, another ?Great Emancipator?
Posted on January 29, 2009Next month, our country will celebrate the 200th birthday of The Great Emancipator, President Abraham Lincoln. Lincoln deserves his revered status in our history. He presided over the nation during the Civil War which preserved the Union; he freed the slaves with his Emancipation Proclamation and his advocacy for the Thirteenth Amendment...
Putting Away Childish Things, Part One
Posted on January 28, 2009In his inaugural speech, President Obama noted that it is time to put away childish things. This call to action and maturity was taken by some as a slap at the Bush Administration and taken by others as a slap at the entire political system. Regardless of what it was, it was a call to [...
Should President Obama Be Impeached?
Posted on January 27, 2009Based on the catastrophic lack of accountability of the past administration, perhaps Congress should form a standing committee to gather information on whether the 44th president should be, at some time in the future, impeached. By appointing such a committee the President has notice that he is accountable for his decisions, that his actions must [...
Community in Obama?s Deliberative Conversationalism
Posted on January 26, 2009President Obama’s political philosophy–what I call “deliberative conversation–has at its center piece, the idea of community. The moral imperative of the idea of community is simply that human beings are members of a community ab initio, but its a community we must work to perfect...
What Obama?s Victory Means for Racism in America
Posted on January 23, 2009Hank Chambers’ Wednesday’s post makes an important point, namely, the inauguration of Barack Obama alone neither fulfills Dr. King’s dream nor ends racism in our time. Hank insists that we must explore the reasons why people voted for President Obama, not just that they did...
My Journey to the Inauguration
Posted on January 22, 2009I just returned from Washington, DC, where I witnessed the Inauguration of President Obama on a jumbotron at the foot of the Washington Monument. To get there, my family and I drove past Youngtown, Ohio, and Pittsburgh, Pennsylvania, both cities which used to be the home of a thriving steel industry - an industry that is [...
What The Inauguration Does Not Mean
Posted on January 21, 2009A number of folks have suggested that the inauguration of President Barack Obama is the fulfillment of or a down payment on Dr. Martin Luther King Jr.’s dream. It is unclear it is either. Barack Obama’s election suggests that more Americans in particular states voted for Obama than voted for John McCain...
TO BEGIN THE WORLD A NEW
Posted on January 20, 2009The American Revolution and its constitutional expression–at least in the Constitution’s Preamble, the Bill of Right, and the Civil War Amendments–represent a commitment to the critical political values of liberty and equality. Ours was the first nation to be committed to an idea, to popular sovereignty...
The Legacy of Dr. Martin Luther King, Jr.
Posted on January 19, 2009Racial apartheid has taken a terrible toll on African Americans by shutting them out of America’s promise. But racism has exacted a terrible cost on all Americans. The symbol of this oppression can be best captured in the introduction to the film “Mississippi Burning...
Geithner and Vetting
Posted on January 15, 2009The newspapers have been abuzz over the last few days regarding the tax problems of Timothy Geithner, current New York Federal Reserve Bank Chairman and nominee to be Treasury Secretary in President-elect Barack Obama’s administration. The Geithner nomination and the ensuing uncertainty regarding it may stem from the speed with which Obama needed to name [...
What Safety Net?
Posted on January 15, 2009As more and more Americans lose their jobs, our system of unemployment insurance has come under strain. Last week, the Ohio unemployment insurance computer system crashed under the strain of overuse, and the phone lines followed, because they were receiving 80,000 calls a day...
Geithner and Vetting
Posted on January 14, 2009The newspapers have been abuzz over the last few days regarding the tax problems of Timothy Geithner, current New York Federal Reserve Bank Chairman and nominee to be Treasury Secretary in President-elect Barack Obama’s administration. The Geithner nomination and the ensuing uncertainty regarding it may stem from the speed with which Obama needed to name [...
Never ?Misunderestimate? W.
Posted on January 13, 2009George W. Bush has managed to become a transformative president after all. Consider how he has single-handedly metamorphosed presidential security surveillance by alerting us to the possibility that shoes can be used to injure and insult presidents. Of course, we already knew that shoes can be used as bombs on airplanes...
Traditions: What Are They Good For?
Posted on January 12, 2009Traditions, of every stripe, wear a canonical authority that often loses its connection with the circumstances engendering the tradition in the first place. This prevents us from criticizing ancient standards in order to evaluate their propriety in contemporary America...
W.?s Final Press Conference: What a Relief!
Posted on January 12, 2009With great pathos the man who never should have been president held his final press conference. His strident defiance, obtuseness, defensiveness, and absence of subtlety, and intellectual and emotional depth shown vividly throughout this exercise. Mr...
W.?s Legacy
Posted on January 09, 2009Salon.com has an important article evaluating the Bush-Cheney failures. Here’s a sample: “After a couple of presidential terms, mismanagement in every area of policy — foreign, domestic, even extraterrestrial — starts to add up...
The President?s Lawyer
Posted on January 08, 2009President elect Barack Obama’s appointments to cabinet positions give us a sense of what he may be like as President, and what policies he may pursue. The official who best reflects the President’s over-arching theory of his role in our constitutional structure is the head the Office of Legal Counsel, the agency that advises the president [...
Senator Reid?s Club
Posted on January 07, 2009When people speak of the Senate being the most exclusive club in America, it is meant figuratively. However, apparently, a number of senators have taken the reference literally in dealing with the Roland Burris affair. Clubs are allowed to determine their membership based on whatever criteria they choose...
President Obama Must Protect His Left Flank!
Posted on January 06, 2009President Barack Obama, if he wants to be effective and potentially become a great president, must not lose faith with liberals and progressive constituting his “base.” After all, it was the democratic Left that began his remarkable, successful quest to win the Democratic Party’s presidential nomination...
The Role of Journalists in Shaping the American Public?s Understanding of the Israeli/Palestianian Conflict.
Posted on January 05, 2009Jerome Slater has an intriguing piece in Tikkun Magazine on the role of journalists, specifically Tom Friedman of the New York Times, in distorting the history of the Israeli/Palestinian conflict. Here’s the editor’s note: [Editor?s Note: Jerome Slater?s critique of Thomas Friedman raises important questions about the role of journalists in mis-shaping public understanding of the [...
The Environment? Had McCain Won
Posted on January 02, 2009Check out Katharine Mieszkowski’s piece in Salon.com tracing an imaginary scenario implicating continued degradation of the economy had Senator McCain won the presidency. Here’s a taste: “Before hailing the close of the Bush administration’s eight-year attack on the environment and scientific integrity, and celebrating Barack Obama’s takeover, let us pause to imagine an [...
God and The Problem of Evil
Posted on January 01, 2009Isn’t it curious that people suffering the loss of a loved one due to the deadly work of wrongdoers or natural catastrophes often congregate in their Church to seek comfort from God. If God is understood to be an omniscient, omnipotent, morally perfect being, it would seem to follow that evil or suffering would be [...
Two American Pathologies: ?Guns Don?t Kill People, People Kill People? & ?Arm the Good Guys?
Posted on December 30, 2008Two incidents of gun violence occurred in the past week that underscore American pathology regarding gun ownership. First, a truck driver, at the end of his haul, was shot and killed by a passing motorist in a pickup truck. Subsequently, a former Utah police officer, dressed as Santa Claus, crashed a party at the home [...
Can President Obama Undo the Imperial Presidency?
Posted on December 29, 2008Over the past eight years the Bush-Cheney regime has virtually shredded the U.S. Constitution and the fundamental rights and ideals that help to define American society. From warrantless wiretaps, the abuse of signing statements, torture, data mining, unlawful detention, sending the military to fight a war on false pretenses, redistributing wealth from the poor and [...
The Economy in Free Fall
Posted on December 27, 2008With hundreds of billions already spent in bailing out the financial system, the American economy is still plummeting. For the latest on this crisis click here. It’s unclear whether American constitutionalism designed to deal with such critical financial and economic downturns...
Will Barack be a ?Goo Goo??
Posted on December 26, 2008Progressives supporting the President-elect may be asking themselves just what Barack must do to begin reclaiming American ideals–including, of course, a fair economic system–from the depredations of the past eight years. Here are some ideas from Paul Krugman: “Times have changed...
The Lincoln Bible
Posted on December 25, 2008I learned yesterday that president-elect Barack Obama has chosen to take the oath of office using the same Bible as Abraham Lincoln did when he was first sworn in as our 16th president. The choice is laden with symbolism. Obama, the first Black president, has chosen to use the same Bible as the Great Emancipator, the only other Senator [...
Obama and Warren
Posted on December 24, 2008Barack Obama’s choice of Rick Warren to give the inauguration invocation has caused much distress among the president-elect’s supporters. To hear the newspapers and some bloggers discuss the issue, one would think that Obama had engaged in the most treacherous act of betrayal since President Clinton’s acquiescence to don’t ask, don’t tell...
Should the Senate Negotiate a Settlement with Blagojevic?
Posted on December 22, 2008The Constitution grants governors the privilege of appointing a replacement for a vacated United State Senate seat. Given the insinuations about Governor Blagojevich’s character or lack of character, no independent appointment by the Governor would be or should be acceptable to the Senate leadership, and consequently the Senate arguably could prevent an independent gubernatorial selection...
Obama?s First Big Mistake
Posted on December 19, 2008Yesterday, the New York Times announced that Pastor Rick Warren, an ardent opponent of gay and lesbian marriage, will perform the invocation at the inauguration. This is an egregious mistake in judgment on the part of the President-elect. Pastor Warren is clearly a symbol of intolerance toward the gay and lesbian community...
Bush?s Poisonous Legacy
Posted on December 16, 2008George W. Bush will soon be leaving the White House. Unfortunately, his pernicious legacy will plague us for decades. His gratuitous and catastrophic invasion and occupation of Iraq, his failure in Afghanistan, his failure to prevent the ruination of the American economy, and his corruption both in awarding contracts in Iraq, the failure of the [...
President-Elect Obama Should Transform The Weekly Presidential Address
Posted on December 15, 2008President-elect Barack Obama hopes to be a transformative president. With the enormous challenges besetting the country, it remains to be seen whether he can chart a transformative course. Amidst an economy in crisis, two foreign wars, a health care system designed to help the upper middle class and the rich and placing a strain of [...
What?s Government for?
Posted on December 12, 2008What do most Americans want government to do? Libertarians embrace a minimal state, one in which government protects individual freedom by supporting national defense, law and order, and protecting the right to contract. Giving government any further responsibilities is incompatible with traditional libertarianism...
What is a public high school?
Posted on December 10, 2008For the second year in a row, the Thomas Jefferson High School for Science and Technology was named the best public high school in the nation by U.S. News and World Report. Though ranking any high school as the single best in the country is somewhat pointless, it is fairly clear that Jefferson is an [...
Hope for Israel?
Posted on December 09, 2008While the Israeli-Palestinian conflicts continues to percolate, it is gratifying to observe a respected Israeli civil rights organizations abandoning an entrenched taboo against comparing Israel’s occupation of the West Bank with the erstwhile apartheid regime in South Africa...
Unbounded Ambition: Thy Name is Ignatieff
Posted on December 08, 2008Michale Ignatieff, an early Canadian supporter of Mr. Bush’s invasion of Iraq, is now setting his sight on the leadership of the Liberal Party. Consider the report in the Globe and Mail: “Toronto MP Michael Ignatieff launched a bulldozer charge at the federal Liberal leadership on Sunday, campaigning for the party’s parliamentary caucus to [...
Who?s Afraid of the Shadow Constitution?
Posted on December 05, 2008There is a tendency in constitutional scholarship to posit the existence of a shadow constitution lurking behind the written constitution. Sometimes the shadow constitution refers to natural law. In other cases, the shadow constitution consists of presuppositions, postulates, or axioms which give the United States Constitution meaning or provide the necessary elements in constitutional reasoning...
Hockey: The New Gentleman?s Sport?
Posted on December 03, 2008Sean Avery, a National Hockey League player with the Dallas Stars, has been suspended indefinitely for crude comments made about NHL players going out with his former girlfriends. The comments were likely directed at Avery’s former girlfriend Elisha Cuthbert and her current datemate Dion Phaneuf, an NHL player with the Calgary Flames...
Bowl vs. Playoff
Posted on November 28, 2008As I am not yet ready to comment on the Mumbai tragedy, I will stick to the lighter fare of college football. The debate rages between opposing camps, those who favor a single national championship bowl game and those who favor a playoff to determine college football’s national champion...
Terror in Mumbai While the World Continues to Do Nothing
Posted on November 28, 2008The depraved had their way in Mumbai over the course of the past few days, while the world continues its blind response to terrorism. No doubt the terrorists and those who finance them are morally impoverished villains who trade in blood and ruin. But the real culprits are those “civilized” leaders who are simply unwilling [...
A ?Rust Belt? Thanksgiving
Posted on November 27, 2008Thanksgiving Day is a great time to stop and reflect about the state of the world and the reasons why I am thankful. Aside from the most important things - my health and my family, I am thankful for the following: 1) I have a job. This is not something I take for granted...
Constitutional Deficiencies
Posted on November 25, 2008Contrary to conventional wisdom our founding document suffers from a myriad of serious, even deadly deficiencies. One such deficiency is clearly the inability to control or even influence a rogue administration intent on imposing its own ideological dogma on on a nation even when sustained popular opinion and congressional elections indicate that the electorate opposes [...
The Logical Consequences of Judicial Supremacy?
Posted on November 21, 2008At one time the Indian Supreme Court assumed the power and authority to determine the legitimacy of constitutional amendments. Could that ever happen in the United States. Consider this humorous, but nevertheless scary (?), possibility: In a landmark decision Monday, the U...
Depression and War
Posted on November 18, 2008The current economic downturn has not yet reached bottom. Indeed, no one is sure where the bottom is. How many lives will be affected, ruined, and even lost before a significant economic recovery begins to develop? Will we reach the depth of depression? Should we prepare for years of devastating economic collapse? Will home ownership [...
Should Hilary Clinton Be Secretary of State?
Posted on November 14, 2008There’s speculation that President-elect Obama intends to select Senator Clinton for Secretary of State. If so why? One reason might be to repay her for so energetically campaigning for him in the general election. Another reason might be because she presumably has a great deal of knowledge how international relations operate...
What?s Wrong with Anti-Discrimination Law
Posted on November 12, 2008Last term in Engquist v. Oregon Department of Agriculture, the U.S. Supreme Court held that a state employee could not bring an Equal Protection claim to challenge her employer for treating her unfairly. Anup Engquist claimed that her Equal Protection rights were violated because her employer had no rational reason for treating her poorly and constructively firing her...
Does Bush?s Hypocrisy Know No Bounds?
Posted on November 11, 2008Although the Iraqi government insists that the American troop withdrawal from Iraq be given with a fixed date of withdrawal, the Bush administration rejected this proposal. Check out the following story: “Two days after the election of Barack Obama, Iraq’s chief spokesman said with unusual forcefulness Thursday that his government will continue to insist [...
Why Rahm Emanuel?
Posted on November 10, 2008Among the reasons President-Elect Obama chose Rahm Emanuel as his chief of staff might be his sharp elbows, abrasiveness, and attack dog demeanor. However, everyone assumes the reason for a chief of staff with these qualities is to bully Republicans and conservatives...
?Cheap Shots Against Palin?
Posted on November 08, 2008Professor Marci A. Hamilton posted the following item on ConlawProf Listserv moderated by Professor Eugene Volokh in a thread entitled “Cheap shots against Plain.” Professor Hamilton is the Paul R. Verkuil Chair in Public Law at the Benjamin N...
My Friend, Barack Obama
Posted on November 06, 2008I?m feeling pretty emotional about our president-elect. One reason is obvious ?Barack Obama is going to be the first Black president of the United States. This is a truly momentous event to me, a former legal services lawyer in a virtually all-Black neighborhood, and a scholar of the civil rights movement and the Reconstruction eras...
Barack Obama and Tiger Woods
Posted on November 05, 2008It may seem inappropriate to compare the accomplishments of the first African American president-elect and the first African American golfer to win a major championship. However, they are linked in more than one way. Both have been treated as supernatural chosen ones who have been touched from above...
BARACK HUSSEIN OBAMA: The Most Radical President in American History
Posted on November 05, 2008Congratulations to Barack Hussein Obama who, when the Electoral College meets next month, will become the President-Elect of the United States. On 20 January 2009, then President-Elect Obama will assume office as the most radical president in American history...
AMERICANS VOTE!
Posted on November 04, 2008Citizens of the United States of America go to the polls today in record numbers to begin a fundamentally new direction in the American experiment. (Click here.) Will the poisonous rot of the contemporary Republican Party remain in place or will the Party be punished for permitting itself to be hijacked by the most dangerous, [...
Will Conservatism Survive?
Posted on November 03, 2008If there’s an Obama mandate tomorrow, conservatism–Bush-Cheney’s radical, conservatism, as well as reactionary conservatism–will have imploded. A new, more principled, more sophisticated conservatism will need to be devised, if conservatism is to survive at all...
More on ?Socialism? and ?Spreading the Wealth Around?
Posted on November 02, 2008Americans concerned about “socialism,” “spreading the wealth around,” and “class warfare” might do well to check out this piece in CommonDreams.org. Here’s a taste: According to the Republican candidate for U...
Lind on the Question of Obama?s ?Socialism?
Posted on November 01, 2008Check out Michael Lind’s article in Salon.com. Here’s a sample: “John McCain, struggling to catch up with Barack Obama in the last days of the campaign, has finally found a theme for a campaign that until now has lacked one. He is running for the White House to defend capitalism against socialism...
McCain?s Impulsive Choice May Cost Him the Presidency
Posted on October 31, 2008According to an article in today’s NY Times, it’s becoming clear that Senator McCain’s choice of Sarah Palin as his running mate may be the reason he has not yet closed the gap between himself and Senator Obama in the battle for the White House...
Boots on the Ground
Posted on October 30, 2008During the Republican Party convention, many speakers derided Barack Obama?s background as a ?community organizer.? Next Tuesday, if the polls are to be believed, they will see just how hard it is to run against a good community organizer. Indeed, the benefits of the community based Obama campaign are likely to last [...
The Redistribution of Wealth and John McCain
Posted on October 29, 2008As we reach the final stages of the presidential campaign, John McCain has begun to call Barack Obama a redistributor of wealth. McCain presumably means that raising taxes on some, e.g., those making more than $250,000, and lowering taxes on others, e...
The Era Of Obama: Commuity and the Value of Reasoned Compromise
Posted on October 27, 2008An Obama mandate could potentially transform American politics for a generation. The Senator seems to embody a commitment to sincere deliberation, community, and compromise. He views the American republic as a rich assortment of diverse cultures, all attracted to the United States for its grounding in the ideas of liberty, equality, and especially community...
Will the Republicans Steal the Presidency Again?
Posted on October 24, 2008With Senator Obama steadily increasing his lead over Senator McCain, the single most important worry is whether the election will be conducted fairly. Or will the Republicans steal the election as they certainly did in 2000 and probably in 2004 also? (Yes, I know that some legal academics have engaged in sophisticated cognitive gymnastics in [...
Is this the Motive Behind the Addiction to Guns?
Posted on October 22, 2008I am committed to gun control. Yet, many years ago I learned to use a rifle and a revolver for target practice. Each time I used either weapon I was exhilarated. Merely holding the gun, fondling it, loading it, or using it generated a feeling I’ve never experienced before or after with any other artifact...
Will Lord Nader Do It Again?
Posted on October 20, 2008According to the latest Zogby poll Obama leads McCain by a mere four points with Ralph Nader garnering two percent of likely voters. Is it conceivable that Lord Ralph will do it again? Will he attract a sufficient number of voters in critical states to hand the election to McCain? If so, Lord Ralph will [...
Thw Washington Post Endorses Barack Obama for President
Posted on October 17, 2008Check out the Washington’s Post’s endorsement of Obama here.
David Brooks Almost Gets it Right
Posted on October 17, 2008Click here for David Brooks’ column which contemplates Barack Obama’s character and demeanor as President. And except for the last three paragraphs almost get is right.
Yes, the U.S. Does Torture
Posted on October 17, 2008Over the past few years various governmental officials, including President Bush, have categorically denied that his administration engages in torture. The truth is now out. WE DO TORTURE. Consider the following: “The Bush administration issued a pair of secret memos to the CIA in 2003 and 2004 that explicitly endorsed the agency’s use of [...
The Wrong Side of History
Posted on October 16, 2008Last week, I had the pleasure of visiting the Forest Hills cemetery in Boston, Massachusetts, the final resting place of abolitionists William Lloyd Garrison and Lysander Spooner. Nestled among the gravestones is a touching Civil War memorial entitled ?The Citizen Soldier...
What?s In A Name
Posted on October 15, 2008The irony that Barack Obama’s full name is used to attack him whereas John McCain’s full name is not used to define him is not lost on me. Hussein, the part of Barack Obama’s name that is causing many distress and is stressed by those wishing to cause Obama distress, is from Obama’s grandfather...
Frum Bushwhacks Maddow
Posted on October 15, 2008David Frum is not an ideal exemplar of intelligence, sophistication, or intellectual honesty. But not until Monday night did he appear as a vile bushwhacker. That night, on the Rachel Maddow show, rather than answer her questions he immediately inveighed against the sarcasm and playful comments typical of Ms...
The Second Great Depression?
Posted on October 10, 2008The contrast between a regulated market and an unregulated market is just the sort of shibboleth that has us on the brink to the second great depression. Any political, social, or economic institutions must be structured in a certain manner. This structure defines, empowers, and regulates the operations of the institutions...
The Judicial Activism of the Roberts Court
Posted on October 09, 2008It is the first week of the United States Supreme Court’s 2008-2009 term. What should we expect this year from the Roberts Court? More judicial activism. If the central meaning of “judicial activism” is the willingness of courts to second guess political bodies, then the Roberts Court is an “activist” Court...
Now the Dark Side
Posted on October 08, 2008Recent events indicate that the dark side of the McCain campaign may be running at full-bore. Twice within the past two days we’ve heard the campaign stress Obama’s middle name. Barack Hussein Obama. Racism? Xenophobia? Or is it only child’s play compared to what’s to come? We know, of course, that Obama “palls around” with [...
John McCain?s New Bailout Proposal
Posted on October 08, 2008During last night’s debate, John McCain unveiled a new bailout proposal called the McCain Resurgence Plan. That plan would require that the Treasury Department buy certain individual subprime mortgages then reissue affordable fixed-rate, government-backed mortgages to homeowners based on the home’s current market value...
Will You Vote For the Right Candidate?
Posted on October 06, 2008Word has it that thirty-eight percent of the American electorate vote for the wrong candidate. “Wrong candidate”? Isn’t it hubris in the extreme to condemn someone for voting for a candidate for whom they wish to vote? That’s just the point...
The Final (?) Word on Sarah Palin
Posted on October 04, 2008Take a look at Joe Conason’s piece on Governor Sarah Palin on in Salon.com. “Sarah Palin’s debate performance should signal the beginning of the end of her fad. But for the moment it is worth looking at the meaning of her nomination, without the protective varnish of what conservatives usually dismiss as [...
Capitalism & Democracy
Posted on October 03, 2008Check out David Sorota’s piece at TomPaine.com. Here’s a sample: “The United States has always struggled to balance its capitalist economy with its democratic ideals. We’ve spent the last many years telling ourselves that the two go hand in hand, only to watch capitalism thrive in China in the absence of democratic [...
From Fear comes Opportunity
Posted on October 02, 2008?The only thing we have to fear is fear itself.? Given recent economic developments, I feel that I now truly understand these words, uttered by President Franklin D. Roosevelt in his first inaugural address in January 1933. Roosevelt spoke as our country was in the depths of the Great Depression, the worst economic crisis [...
Bailout
Posted on October 01, 2008There has been so much written on the bailout/rescue plan that it almost seems pointless to write anymore. However, the confusion that has accompanied much of the writing on the bailout suggests that a quick post is in order. The point of the bailout can be understood by recognizing two simple points...
Kucinich on the Bailout
Posted on October 01, 2008Check out John Nichols’ piece on the views of Representative Dennis Kucinich (D-OH) on the financial crisis and how to remedy it.
The Mother of All Crises
Posted on September 30, 2008Check out Bob Herbert here and David Brooks here for their take on the bailout failure.
Going Back to Reconstruction
Posted on September 26, 2008At a constitutional law conference that I recently attended, a friend of mine commented, “We always seem to go back to Reconstruction.” I agreed. For many of us, Reconstruction was the Second Founding, when the People repaired the pro-slavery constitution and replaced it with one that commits the federal government to protecting individual rights...
The C-Word: Why Aren?t Conservatives Ranked?
Posted on September 24, 2008The Republican spin machine is far superior to the Democrats’ responses. We’re continuously barraged with the accusation that Senator Barack Obama’s voting record makes him the most liberal senator, and Joe Biden, his Vice-Presidential running mate, is ranked third most liberal...
Sarah Palin and the Deafening of Evangelicals
Posted on September 23, 2008In his single act of choosing Sarah Palin as his running mate, John McCain quieted the evangelical wing of the Republican Party. Palin has now deafened them. As a consequence, McCain can be himself without worrying that he will offend the religious right by being insufficiently religious...
Regulate Now or Invite Disaster Later
Posted on September 22, 2008Is it any wonder that deregulation of the financial markets can cause disaster? Consider the following: “The blood flowing this week from Wall Street, spilling over into the homes of most citizens and the economies of other countries, raised urgent calls for stricter regulation of major players in the U...
Can the Constitution be Fixed after Eight Years of Violations?
Posted on September 19, 2008John Nichols has a good piece on the Constitution. Here’s a taste. “Constitution Day has arrived without major statements from Democrat Barack Obama or Republican John McCain on the need to restore this country’s commitment to the rule of law...
Zanesville
Posted on September 18, 2008This year, Barack Obama’s historic candidacy for president has inspired a lot of people to think about the impact of race in our society. The pundits are asking, “Is out country ready for a Black president?” I believe that enough people are ready for a Black president for Obama to succeed...
Signing Statements & Constitutional Dictatorship
Posted on September 17, 2008Legend has it that when General George Washington learned of the plan to offer him the chance to become the first American king, he bristled at the idea and replied disdainfully: ?I did not spend seven years waging war against George III only to become George I...
Earmarks and Block Grants
Posted on September 16, 2008John McCain continues to discuss earmarks as though they are the second greatest threat to America, after radical Islam, of course. He suggests that earmarking ? the practice of a congressman or senator directing how specific funds in an appropriations bill will be spent - are the budget-busting bane of America?s existence...
Palin?s Stewardship of Alaskan Beauty & Republican Cynicism
Posted on September 15, 2008Take at look at Sarah Palin’s stewardship of the alaskan environment: “Seen from the air, Sarah Palin’s state is an environmental wonderland. From Anchorage to the Arctic National Wildlife Refuge, there is a vast landscape of snow-capped peaks, fjords, crystal glaciers, coastal lagoons, wide river deltas and tundra...
John McCain, Sarah Palin, and Country First
Posted on September 13, 2008Check out Bob Herbert’s piece on Sarah Palin’s experience in today’s NY Times. Here are some sample paragraphs. “With most candidates for high public office, the question is whether one agrees with them on the major issues of the day...
Can a Black Man be Elected President of the United States?
Posted on September 12, 2008Check out Andrew Hacker’s piece, “Obama: The Price of Being Black” in the New York Review of Books. Here’s a sample: “In May, Hillary Clinton described many of her core supporters as ‘hard-working Americans, white Americans...
Three Cheers for Due Process, Democracy, and Gosh Darn it, The Constitution!
Posted on September 11, 2008This summer, I spent a lot of time engaged in one of my guilty pleasures, reading about King Henry VIII and his wives. It?s fun to read about the pageantry, and the drama and intrigue of the British court. In reading about how the monarchy used to function, I can?t help but be [...
Should Karl Rove Go to Prison?
Posted on July 26, 2008Is it possible for Obama's vision of a "new politics" to take root when men like Karl Rove operate freely and without punishment in the halls of political power?Rovian politics, like Brooklyn Street Fighting, is heartbreakingly ruthless. One could, however, almost always opt out of Brooklyn street fights; just never join a gang...
Bush's Criminality & Restoring Constitutional Government
Posted on July 25, 2008Now that the catastrophic Bush-Cheney administration is slowly drawing to an end, talk of investigating this administration criminal abuse of power are beginning to echo throughout the nation. "The last several years have brought a parade of dark revelations about the George W...
Update on War Between Israel and Iran
Posted on July 23, 2008Consider this stunning observation: "ISRAEL will almost surely attack Iran's "nuclear sites in the next four to seven months--and the leaders in Washington and even Tehran should hope that the attack will be successful enough to cause at least a significant delay in the Iranian production schedule, if not complete destruction, of that country's nuclear program...
Who Decides U.S. Withdrawal from Iraq?
Posted on July 21, 2008Iraqi Prime Minister Nouri al-Maliki says U.S. troops should leave Iraq 'as soon as possible,' according to a magazine report, and he called presidential candidate Barack Obama's suggestion of 16 months 'the right timeframe for a withdrawal.' . ...
Will There Be War Between Israel and Iran?
Posted on July 14, 2008Words of war are heating up between Israel and Iran. "The sabre-rattling over Iran's nuclear progamme has grown louder as a defiant Tehran claimed to have conducted missile tests for a second day running, the US warned that it would defend its interests and its allies in the region, and Israel hinted it was ready to stage a preventive attack to destroy Iranian nuclear installations...
Obama Betrays His Supporters as well as the Better Angels of His Nature
Posted on July 11, 2008Progressive democrats supporting Barack Obama must be extremely disappointed regarding the senator's support of a quintessential (George W.) Bushian statute. Consider: "The Democratic-led Congress this afternoon voted to put an end to the NSA spying scandal, as the Senate approved a bill--approved last week by the House--to immunize lawbreaking telecoms, terminate all pending lawsuits against them, and vest whole new warrantless eavesdropping powers in the President...
U. S. Court Fails to Protect Basic Individual Rights
Posted on July 09, 2008Read about the latest injustice to Maher Arar, a Syrian born, Canadian citizen: "A United States appeals court decision upholding the dismissal of a lawsuit from Canadian Maher Arar essentially enables the U.S. government to send foreigners to be tortured, a lawyer with a human rights group representing Arar said Monday...
Has the Enthusiasm Generated by Obama's Campaign Fizzled Out?
Posted on July 07, 2008Sixties radical democratic leader Tom Hayden has this to say about Senator Obama's move to the center: "Call him slippery or nuanced, Barack Obama's core position on Iraq has always been more ambiguous than audacious. Now it is catching up with him as his latest remarks are questioned by the Republicans, the mainstream media, and the antiwar movement...
JULY 4th 2008
Posted on July 04, 2008Happy Birthday America! In honoring and celebrating the American attempt to begin the world anew, we might spend time considering how we can renew this attempt in the 21st century. Let's first reacquaint ourselves with the founding document:Happy Birthday America!
Is Senator Obama Listening?
Posted on July 03, 2008Yesterday's NY Times contained a must-read story for Obama supporters and for Obama himself. "Senator Barack Obama's decision to support legislation granting legal immunity to telecommunications companies that cooperated with the Bush administration's program of wiretapping withoutwarrants has led to an intense backlash among some of his most ardent supporters...
Is the Law for Judges or for the People?
Posted on July 02, 2008Something is extremely problematic in the American judiciary. Read almost any case, for example, the recent Second Amendment case, DC v. Heller. Both the Court's opinion and the principal dissent are replete with American history, English history, lexicography, and so forth...
Is Obama Becoming Hillary Clinton?
Posted on June 30, 2008Besides voting for the authorization for invading Iraq and never apologizing for doing so, the main reason many lefties voted against Hillary Clinton is that she seems willing to say and doing anything to win. Is Obama starting down this duplicitous path...
Taking Aim: The Supreme Court Runs Out of Ammunition in Interpreting the Second Amendment
Posted on June 27, 2008"A well regulated Militia[,] being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed." - ---- U...
Referenda & Democracy
Posted on June 26, 2008Check out the following commentary on Ireland's rejection of the Lisbon Treaty. . . . "The Irish No provides Europe with an opportunity to rethink its approach to referendums. Ever since Napoleon initiated the modern practice two centuries ago, referendums have been one-shot affairs -- the people going to the polls to say Yes or No without taking preliminary steps to deliberate together on the choices facing the nation...
Should Oil Company CEOs be Prosecuted in a Court of Law?
Posted on June 24, 2008Contemplate the following: "James Hansen, one of the world's leading climate scientists, will today call for the chief executives of large fossil fuel companies to be put on trial for high crimes against humanity and nature, accusing them of actively spreading doubt about global warming in the same way that tobacco companies blurred the links between smoking and cancer...
In Defense of "Fast Eddie Obama" and Shame on David Brooks
Posted on June 23, 2008David Brooks caused a whirl wind Friday with an op-ed piece condemning Senator Obama for opting out of the public campaign finance system after saying earlier he would campaign within its parameters. Here's the heart (perhaps another body part is more apt) of Brooks' complaint:Dr...
George Carlin, Dead at 71
Posted on June 23, 2008The NY Times reports today that "George Carlin, the Grammy-Award winning standup comedian and actor who was hailed for his irreverent social commentary, poignant observations of the absurdities of everyday life and language, and groundbreaking routines like 'Seven Words You Can Never Use on Television,' died in Santa Monica, Calif...
John Nichols on Democratic Blank Checks for Bush's War
Posted on June 23, 2008John Nichols' "Democrats Write a Blank Check for Bush's War" is a must-read. Check it out here. The Democrats complicity in this war is unconscionable.
Judicial Supremacy or Executive Supremacy: Which Should Prevail in the Gitmo Cases?
Posted on June 20, 2008Check out the following op-ed piece in the Wall Street Journal: "Last week's Supreme Court decision in Boumediene v. Bush has been painted as a stinging rebuke of the administration's antiterrorism policies. From the celebrations on most U.S. editorial pages, one might think that the court had stopped a dictator from trampling civil liberties...
The Idealist Trap: "Dr. Barack & Fast Eddie Obama"
Posted on June 20, 2008If you're an idealistic. don't run for political office. Why? Because you will inevitably be required to engage in smarmy, non-idealist behavior. Just listen to His Holiness, Lubavitcher Rebbe, David Brooks: "God, Republicans are saps. They think that they're running against some academic liberal who wouldn't wear flag pins on his lapel, whose wife isn't proud of America and who went to some liberationist church where the pastor damned his own country...
A Conservative Backs Obama
Posted on June 19, 2008If you wonder whether Senator Obama can appeal to conservative Republicans--even religious conservative Republicans--check this out.
McCain, Big Oil, & the Price at the Pump
Posted on June 18, 2008What can be done about the rising prices of oil? How about a gas tax holiday for the summertime? Well, that will gross the average American about fifty (?) dollars for the summer. Nice money to have, but what is sacrificed? How about safe, reliable roads and bridges? Senator McCain's pandering to us ordinary folks is cynical and insulting...
War Criminals? Traitors? Or Both? How Should Bush-Cheney Be Remembered?
Posted on June 09, 2008The truth was available for anyone to see; yet the administration managed to hoodwink the American people. Consider: "Claims by U.S. President George W. Bush and other top administration officials before the 2003 invasion of Iraq regarding Baghdad's ties to al Qaeda and its weapons of mass destruction (WMD) programmes were generally not supported by the evidence that the U...
AALS Mid-Year Conference in Constitutional Law
Posted on June 03, 2008This week I will attend the Association of American Law Schools Mid-Year Conference in Constitutional Law in Cleveland, Ohio from 3 June to 6 June 2008. Here's the statement of the reason for this conference: "Constitutional law is always changing, but the changes since the last AALS professional development program on constitutional law are particularly dramatic...
Chutzpah, Thy Name is William Kristol!
Posted on June 02, 2008William Kristol's column today in the NY Times "What Obama Left Out" says more about Kristol than it could ever say about Obama. Kristol, famous, inter alia, for being one of the most strident voices urging war with Iraq and then Iran, but never thought it necessary to serve his country during the Vietnam War has the gall to fault Obama for not recommending military service to Wesleyan graduates...
Hillary's "Playing to 15"
Posted on June 02, 2008On 13 January 2007, ECA published a post "Playing to 15." The point of that post was to show that as a young man George W. Bush could not accept defeat. Whenever he would be on the verge of losing a game, he would change the rules or alter what counts as victory...
THE BIG LIE": Bushian Style
Posted on May 30, 2008For many Americans, a little familiarity with human nature, made it quite clear that President Bush and company cooked the intelligence on Iraq. We knew that the administration and its neocon hit men wanted to invade and conquer Iraq for oil, to protect Israel, and generally to try to impose "democracy" on new governments in the area which would then owe their existence and allegiance to the great white father in Washington...
Truth, Justification, & American Law
Posted on May 28, 2008The concept of truth is the most obvious and (yes simultaneously) the most arcane concept in legal reasoning. In one sense, no lawyer or judge can do without the idea of legal truth. Indeed, the goal of a trial is to fairly arrive at the truth...
Audie Murphy: An American Hero
Posted on May 26, 2008I just saw (again) "To Hell and Back," the story of Audie Murphy, the most decorated combat soldier in American military history. He entered the Army at the age of 16, after being turned down by the Marines, Navy, and paratroopers. By 19, he had became an Lieutenant and won the Congressional Medal of Honor, the highest America decoration, and a host of other decorations from the United States Belgium, and France...
Has Hillary No Shame?
Posted on May 24, 2008In explaining why she should remain in the race for the Democratic Party's nomination for president, Senator Clinton ironically may have nailed the coffin of her campaign shut. By appealing to RFK's assassination as illustrative of a future contingency revivifying her chances for the nomination, Mrs...
Olbermann's "special comment" on Clinton's Invocation of RFK's Assassination
Posted on May 24, 2008Consider Keith Olbermann's "special comment" last night on Mrs. Clinton's remark about RFK's assassination.The only way to meet this justified firestorm is for Mrs. Clinton to offer a morally satisfactory apology to Mr. Obama and then withdraw from the race...
Protesting Yoo's Views on Torture
Posted on May 19, 2008Law students at the University of California-Berkeley protested at Saturday's graduation against Professor John Yoo's presence of the law faculty. "Some 50 protesters, clad in orange jumpsuits and black hoods to emulate the infamous photos of prisoners in Iraq, picketed UC Berkeley's law school graduation ceremony Saturday, demanding that the university fire Professor John Yoo for his authorship of the Bush administration's policies on torture...
Does Bush Equate Diplomacy with Appeasement?
Posted on May 16, 2008"Let us never negotiate out of fear. But let us never fear to negotiate." ---John F...
Rumsfeld's Master Plan
Posted on May 14, 2008Beginning in earnest with the end of the current regime, historians will document just how duplicitous the Bush-Cheney administration has been regarding the war in Iraq. Here's one littel-known item: "Three weeks after the 9/11 terror attacks, former U...
Hillary Plays the Race Card
Posted on May 12, 2008Race continues to play a role in American society, but there exist different ways to include it in political campaigns. Some ways are clearly benign and important while other ways are clearly suspect. Senator Clinton use of race is the latter. She is precariously flirting with racial innuendo...
"Hillary's Last Great Hope"
Posted on May 10, 2008Several remaining questions must be answered before Senator Obama will be in a position to concentrate his energies on the Fall election. First, when will Mrs. Clinton throw in the towel? Second, will she do irreparable damage to Obama, the Party, and herself in continuing to battle aggressively, some say ruthlessly...
Fox-News and Rush Limbaugh: Enemies of Democracy
Posted on May 09, 2008American "journalism" contributes to democracy's demise when it acts duplicitously, recklessly, or when it attempts to game the electoral system. Indeed, deliberative democracy cannot tolerate for long, intentional deception on the part of the media. Nor can civil society tolerate admonitions to game the electoral system by urging voters to cast their votes strategically in an opposing Party's primary in order to help select a weaker opponent in the fall...
Clinton's "Nuclear" Option to Win the Nomination
Posted on May 07, 2008After Tuesday's primaries, it seems the only possible way for Senator Clinton to win the nomination is to count her wins in Florida and Michigan. Can Senator Clinton win the nomination by persuading the Democratic Party's Rules and Bylaws Committee to seat the Florida and Michigan delegations? Will she deploy this "secret weapon" defying Party loyalty and commonsense? Consider Thomas B...
Is Obama a Deliberative Democrat?
Posted on May 02, 2008With Joe J. Andrew's jumping ship, Americans must decide whether there's any difference between the old and the new forms of politics. The old politics--"interest-group politics"--seeks to formulate policy goals, join with like-minded individuals, and then wage war against other interest groups without any active conception of a just war or appropriate ways to battle...
The Clinton-Obama Disgrace/Debate
Posted on April 25, 2008Click here for Jim Chen's jeremiad against the media's handling of the last Democratic presidential debate.
Hitchens & Sullivan: Boys Will Be Boys: No Matter How Homophobic
Posted on April 23, 2008I suppose even homosexuals, and their friends, can engage in homophobic jibes with temerity. Sullivan is a self-professed, proud gay man. I have no idea what Hitchens' sexuality involves. But Hitchens' homophobic remarks and Sullivan's enabling compliance is neither funny nor cute, but again reveals the dark side of Christopher Hitchens...
Why Not Hillary
Posted on April 21, 2008Democrats, devastated by the reign of George W. Bush, indeed, any American convinced the last seven years have dealt the greatest blow to American constitutional democracy since the Civil War, should support neither Hillary Clinton nor John McCain. Why? Because neither Senator Clinton nor Senator McCain has a commitment to honesty in politics...
Cheney's Criminal Conspiracy Continues
Posted on April 16, 2008Dick Cheney's repeated lies to the American people surely qualify him for the gold medal in mendacity. But the Vice-President's successful scheming to keep the President out of the loop concerning his own administration's decisions authorizing torture indicates the complete absence of even an elementary moral sense...
Cheney's Criminal Conspiracy
Posted on April 16, 2008Dick Cheney's repeated lies to the American people surely qualify him for the gold medal in mendacity. But the Vice-President's successful scheming to keep the President out of the loop concerning his own administration's decisions authorizing torture indicates the complete absence of even an elementary moral sense...
Why Doesn't Bill Clinton Just Shut Up?
Posted on April 14, 2008Bill Clinton is at it again. In the 1931 movie Frankenstein, Dr. Frankenstein admonishes Fritz, his disabled assistant who relished tormenting the creature to "Leave it alone, Fritz, leave it alone." Bill Clinton needs to heed the warning and leave his wife's campaign alone...
Will Billary Destroy the Democratic Party's Chances to Win in November?
Posted on April 11, 2008Recent reports suggest the extended campaign for the Democratic nominee for president is damaging, perhaps irreparably, the Democrats chance to defeat Senator McCain in November. Here's a taste: "Republican Sen. John McCain has erased Sen. Barack Obama's 10-point advantage in a head-to-head matchup, leaving him essentially tied with both Democratic candidates in an Associated Press-Ipsos national poll released Thursday...
John McCain: Bush Lite and Kerry Redux
Posted on April 09, 2008John McCain was repeatedly tortured during his imprisonment in North Vietnam. Understandably, he now says he opposes using torture as a method of interrogation in fighting the war on terror. Nevertheless, he has supported Mr. Bush's veto of a prohibition of torture, including such techniques as waterboarding which Senator McCain candidly acknowledges is torture...
Civil War, Proxy War, & America's 100 Years in Iraq
Posted on April 07, 2008Check out CBS-News story about our success in Iraq. While few people talk about civil war anymore, it seems that such a war has been on fire for some time. This civil war is fractionated between different parties. It's not just a civil war between Sunnis and Shiites; it's also between different factions of Shiites...
The Results of America's First Constitutional Coup D'etat
Posted on April 04, 2008The past seven years will be noted as resulting from the first genuine coup d'etat in American politics. No I do not mean that the military marched into he nation's capital, seized the president and elected leaders and began to govern. In the United States, coups have more insidious...
A Republic or a Democracy? The Revolution of 1800 and the Foundations of American Democracy
Posted on April 02, 2008Americans lionize the nation's Founders for crafting and successfully instantiating the enduring idea of self-government into our political traditions. Like everything else, the Founders' legacy consists of the good and the bad. The good finds itself in republican democracy, the only political organization that respects the inherent value of all members of the polity...
Tavis Smiley on Patriotism & the Media's Hypocritical Treatment of Black and White Provocateurs
Posted on March 31, 2008Tavis Smiley, PBS talk-show host and journalist, never impressed me as anything more than a pleasant man. Frankly, I could never sit through an entire episode of his show because Smiley seemed to lack any discernible substance. I've misjudged people before, but this time was a doozie...
Is Hillary This Sinister?
Posted on March 29, 2008Check out Maureen Dowd's column this week speculating on the reason Hillary's remains in a campaign she can't win: "Even some Clinton loyalists are wondering aloud if the win-at-all-costs strategy of Hillary and Bill--which continued Tuesday when Hillary tried to drag Rev...
Stanley Fish Should "Think Again"
Posted on March 28, 2008In a recent column, Stanley Fish argues that it is nonsense to believe that the recent flap over the role of superdelegates in choosing a Democratic candidate for president includes ethical considerations at all. Just as the purpose of the Electoral College is countermajoritarian, so too is the purpose of Democratic superdelegates...
Bill Clinton Is At It Again
Posted on March 23, 2008Bill Clinton once again revealed his treacherous dark side by his speculation about a possible presidential race between Senator John McCain and Clinton's wife Hillary: "I think it would be a great thing if we had an election year where you had two people "who loved this country and were devoted to the interest of this country...
Gitmo Isider Attacks Pentagon Brass
Posted on March 05, 2008The Toronto Star has this revealing story. "[u]ntil four months ago, Col. Moe Davis was the chief prosecutor at Guantanamo Bay and the most colourful champion of the Bush administration's military commission system. He once said sympathy for detainees was nauseating and compared putting them on trial to dragging 'Dracula out into the sunlight...
Lord Ralph Will Again Try to Play the Spoiler
Posted on February 27, 2008Ralph Nader has announced that he intends to run again for president. ECA has already opined on his role, as spoiler, in the 2000 election. (Click here if interested.) Nader has, of course, contributed to consumer safety and other progressive causes. He claims he's running to inform people that corporations are straggling American democracy...
FOX-NEWS: "Fair & Balanced"
Posted on February 26, 2008Fox-News is a caricature of even a bad cable news station. It's unfortunate that the only voice the American people have concerning the travesty that is Fox-News is to change the channel. Other media, however, can focus on the distortions, perversions, and lies with which Fox-News inundates the airwave...
THE OBAMA PHENOMENA
Posted on February 23, 2008Senator Barack Obama's campaign for president seems to be endowed with a larger than life appeal. Indeed, Senator Obama together with the tens of thousands new voters he is bringing on board constitute--"the Obama Phenomena," if you will--a movement that has a political and historical trajectory of its own...
Who's the Mallard's Choice for President? Obama? Clinton? Think Again?!
Posted on February 23, 2008For those Americans who believe that gun control is an important issue in the presidential race, which candidate should be the candidate of choice? Consider this piece in Friday's NY Times: "New York City Mayor Michael Bloomberg says he sent a questionnaire to all the presidential candidates asking what they would do to help get illegal guns off the street...
O'Reilly Says He Has Dirt on a Prominent Democrat
Posted on February 22, 2008Bill O'Reilly knows a rumor about a prominent Democrat that he is not reporting. Why not? Because he has journalistic scruples? C'mon. What's O'Reilly trying to insinuate? Is this just more O'Reilly innuendo or is there something to this story. We'll just have to stay tuned
The Supreme Court Takes Aim at the Second Amendment
Posted on February 17, 2008"A well regulated Militia[,] being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed." U...
Are Democratic Honchos Showing Good Sense? Will Wonders Never Cease?
Posted on February 16, 2008There's a significant chance that the Democratic Party can self-destruct and squander a presidential race that's theirs to lose. If super-delegates choose the candidate with fewer pledged delegates, the Party will be "Democratic" in name only. To avoid irreparable harm, these political bosses must follow the people's choice...
The Continuing Tragedy of Gun Violence in American Schools
Posted on February 15, 2008Yesterday's shooting rampage at Northern Illinois University should bring to focus the consequences of allowing millions of guns to blot the American landscape. But yesterday's shootings were not isolated or unique, not even within the past week: "On Feb...
It's a Bird! It's a Plane! It's SUPER-DELEGATES!
Posted on February 13, 2008The hallmark of American republican democracy is that sovereignty lies with the people. To ascertain the reflective will of the people certain filters are put in place, for example, federalism, and the separation of powers. Once the electorate's will passes through the requisite filters, its word is final...
Who Should Be the Progressives' Choice: Clinton or Obama?
Posted on February 11, 2008No authentic progressive remains in the race for the Democratic nomination for president. Senator Clinton is a centrist and Senator Obama is a center-left liberal. Neither are progressives. (Click here for an opposing perspective.) Should progressives sit this race out or wait forNader to enter the race? Savvy progressives should eschew Nader, especially after the 2000 election...
Is American Waterboarding Torture? Duh!
Posted on February 08, 2008Finally, the truth is revealed; the Bush-Cheney administration has used the technique of water boarding as an "interrogation" technique. Though Cheney contends the technique has saved American lives, neither Congress, nor the courts, nor the people have any way of verifying this claim...
How Democracy is Supposed to Work?
Posted on February 06, 2008Today's NY Times' editorial insinuates a peculiar conception of elections in a democracy: "Having run on the idea of broad participation across society's divisions, Mr. Obama's campaign often seems to teeter on becoming a cult of personality--a feeling that the candidate and those around him do nothing to dispel...
Will Obama Be as Thankful Tonight as He ws in Iowa?
Posted on February 05, 2008How many more states will Senator Barack Obama thank tonight? Listen to his inspiring Iowa speech. Charisma, inspiration, and rock-star status does not a better president make. Substantive values are also critical. Does Obama offer anything in the substantive department? Is he only a harbinger of change without any sense of how American should be changed? Change in itself is of little value, right? Maybe so...
"The Matthews Monitor"
Posted on February 03, 2008Kudos to Media Matters for America for taking up fight against Chris Matthews' distortions, biases, and sexism. These vices are matched only by his narcissism and, like other egomaniacal media ramblers-on, he has no ability to censor himself. (ECA has posted on Matthews distortions here...
Ann Coulter to Back Hillary Clinton?
Posted on February 02, 2008Whether she wants the support, Senator Clinton might have Ann Coulter, the marauding pundit, in her corner in November if the Republicans are foolish enough, in Coulter's view, to nominate Senator John McCain as the presidential candidate in November...
What's Stanley Fish's Beef with Constitutional Theory?
Posted on February 01, 2008This week in the New York Times, Stanley Fish, the gifted literary theorist and legal scholar, poses this question: "Does Constitutional Theory Matter"? Since many jurists and scholars believe that constitutional theory is indispensable to deciding cases correctly, an answer to Fish's question is critical...
Has American Democracy Finally Put Fox News in its Place?
Posted on February 01, 2008Why is Fox-News in a blue funk? Salon..com's answer is instructive. "My guess is that Fox News guru Roger Ailes has been reaching for the Tums more often than usual early in the New Year, and there are lots of reasons for the hovering angst. ...
Is this the First Step Toward Nuclear Holocaust?
Posted on January 30, 2008As if the state of the economy is not sufficiently dispiriting, the Guardian reports that senior, international, military figures have prepared a manifesto for NATO for the use of "preemptive" nuclear attacks. Consider this report: "The west must be ready to resort to a pre-emptive nuclear attack to try to halt the 'imminent' spread of nuclear and other weapons of mass destruction, according to a radical manifesto for a new Nato by five of the west's most senior military officers and strategists...
Impeach or Arrest Bush-Cheney? Vermont Seems to Have the Answers
Posted on January 28, 2008Vermont 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...
Do Democrats Really Want a Plural Presidency?
Posted on January 27, 2008Over the course of the last week Democrats must ask themselves whether they want a plural Presidency. Mr. Clinton's ruthless, even vicious, attacks on Barack Obama; his ubiquitous presence in the campaign; and his arrogant criticism of the media (the content of which is sometimes on target), provides a window into what life will be like under President Hillary Clinton and First Gentleman Bill...
The Burdens of Judgment in Law, Politics, & Culture
Posted on January 25, 2008The idea of "the burdens of judgment" in the subtitle of this weblog can be understood in this way: Reasonable disagreement--disagreement that is not resolvable by attending to an intersubjectively provable mistake by one of the parties--is caused by the burdens of judgment which consist of the following: (1) the complexity of empirical factors relevant to judgment; (2) the difference in weight given to the various empirical factors agreed upon as authentic; (3) the indeterminacy associated with the central concepts in political debate and consequently, the need for interpretation and theories of interpretation; (4) the important differences in life experiences and the effects these differences have on reasoning and judgments; (5) differences in various kinds of normative factors with concomitant differences in the normative force that generate different judgments; and (6) the difficulty in selecting the appropriate subset of values from society's actual set of "cherished" or fundamental values...
The Truth About Rudy Giuliani
Posted on January 25, 2008It's difficult to see how American citizens can be duped by Mayor Giuliani, a charlatan and a dictator wannabe in his successful, but duplicitous attempts to garner praise for his "heroic" to 9-11. What precisely did Giuliani do on 9-11 to warrant such fulsome praise? Run into burning buildings to save lives? Directed the attempt to save further devastation? No, Giuliani walked down the streets with his entourage, greeting New Yorkers, and surveying the damage, all the while making sure his presence was conspicuous...
Bush Continues to Trash the Constitution
Posted on January 25, 2008"Strict constructionist" President, George W. Bush who claims Supreme Court Justices should interpret the Constitution not rewrite it is up to his familiar, anti-constitutional games. alternatively stated, "Everyone's bound by the Constitution, except me...
Did Charlie Wilson Contribute Anything at All to the Nation's Secuirty?
Posted on January 23, 2008Check out Chalmers Johnson's critique of Charlie Wilson's War: "I have some personal knowledge of Congressmen like Charlie Wilson (D-2nd District, Texas, 1973-1996) because, for close to twenty years, my representative in the 50th Congressional District of California was Republican Randy "Duke" Cunningham, now serving an eight-and-a-half year prison sentence for soliciting and receiving bribes from defense contractors...
Should the Republican Party Be Punished in November 2008?
Posted on January 21, 2008The Guardian reported last month that: "The US vice-president, Dick Cheney, was behind a controversial decision to block California's attempt to impose tough emission limits on car manufacturers, according to insiders at the government Environmental Protection Agency...
Martin Luther King, Jr.
Posted on January 21, 2008(This post is a modified version of one originally published on 18 January 2007.) Dr. Martin Luther King, Jr. was one of the most, if not the most, important and inspiring leaders of the 20th century, perhaps in all American history. The reason: Dr...
AMERICA, THE BEAUTIFUL
Posted on January 19, 2008O beautiful for heroes proved In liberating strife,Who more than self their country loved,And mercy more than life!America! America! May God thy gold refineTill all success be nobleness,And ev'ry gain divine!Oh beautiful for spacious skies,For amber waves of grain,For purple mountain majestiesAbove the fruited plain!America! America! God shed His grace on thee,And crown thy good with brotherhoodFrom sea to shining sea!O beautiful for pilgrim feet,Whose stern impassion'd stressA thoroughfare for freedom beatAcross the wilderness!America! America! God mend thine ev'ry flaw,Confirm thy soul in self-control,Thy liberty in law!O Beautiful for patriot dreamThat sees beyond the yearsThine alabaster cities gleam,Undimmed by human tears!America! America! God shed His grace on thee,And crown thy good with brotherhoodFrom sea to shining sea!
Barack's Blunder
Posted on January 18, 2008Senator Barack Obama, championing a unifying progressivism, or so one thought, praised Ronald Reagan for in effect blocking the cultural dynamism of the sixties, namely, a greater concern with racial justice and the role of woman in American culture...
BET's Robert Johnson Swipes at Obama's Teenage Drug Use and Then Denies It
Posted on January 15, 2008BET's Robert Johnson is revealing Consider the following report: "Black Entertainment Television founder Robert Johnson says he was talking about Sen. Barack Obama's work as a community organizer -- not about the senator's admitted drug use as a youth -- when he said this yesterday at a rally for rival Democratic presidential candidate Sen...
Revealing More Disinformation about the Surge's Efficacy
Posted on January 15, 2008Again the IPS tries to correct the disinformation about the "surge." Consider: "Exactly one year after U.S. President George W. Bush announced that he would significantly increase the number of troops deployed to Iraq, the wisdom of his so-called 'surge' strategy remains very much in dispute here...
Is Chris Matthews a Bill O'Reilly Clone?
Posted on January 14, 2008There may have been a time when Chris Matthews was a serious journalist, but that time has receded into the distant past. The raison d'etre of his MSNBC show "Hardball" is to ask questions other journalists won't ask and insist upon getting his guests to answer them...
The Ghosts of Hitler?
Posted on January 13, 2008Today's NY Times includes this important book "To be neoconservative is to bear almost daily witness to the resurrection of Adolf Hitler. ''Truly Hitlerian,' the Washington Post columnist Charles Krauthammer pronounced Saddam Hussein's saber-rattling before Iraq invaded Kuwait...
Just How Good Was 2007 in Iraq?
Posted on January 12, 2008The International Press Service reports that "[d]espite all the claims of improvements, 2007 has been the worst year yet in Iraq. . . . One of the first big moves this year was the launch of a troop 'surge' by the U.S. government in mid-February...
So You Think You're Smarter Than James Madison, Eh? Well Why Not?
Posted on January 11, 2008James Madison, the so-called "father of the Constitution" was a bright guy. So were all the founders bright guys: George Washington, John Adams, Thomas Jefferson, Ben Franklin, Alexander Hamilton, James Wilson, and so forth. The Constitution they composed was perhaps the best they could do at the time...
What's the Next President's Job? To Clean Up the Detritus So Ably Created by the Bush Administration
Posted on January 08, 2008Rather than conducting the war in Afhganstan until Al-Qaeda and the Taliban were defeated, the malignancy that is Mr. Bush threw away moral and military capital by his Calmitious invasion of Iraq. Now the United States has lost the support of the Pakistani people in the war on terror...
Slate's Defense of Grand Caliph Bill Kristol
Posted on January 07, 2008In a recent column, Slate's Jack Schaffer inexplicably defends the NY Times' appointment of Bill Kristol to its op-ed. page. Here's a sample: "Last week's appointment of Weekly Standard Editor William Kristol to a once-a-week slot on the New York Times op-ed page induced grand mal seizures among the Huffington Post left and their political bedfellows...
Move to Impeach Cheney Picking Up Steam
Posted on January 04, 2008Salem-News.com 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...
Why the Caucus Process Should Be Eliminated
Posted on January 04, 2008Now that the titillating Iowa caucuses are over it's time for Americans to reflect on whether this process is democratic. Read today's NY Times for a negative answer. Here's the introductory paragraph. "The next president will serve 300 million Americans...
Tom Hayden's Open letter to Senator Obama
Posted on January 03, 2008In an open letter, Tom Hayden offers critical advice to Senator Obama on playing the centrist card: "More disturbing is what happens to the mind by setting up these polarities. To take a "centrist" position, one calculates the equal distance between two "extremes...
Hayden on Edwards' Solution to the Iraq Quagmire
Posted on January 03, 2008Tom Hayden, a leader of the sixties' new left student movement, files the following report on John Edwards' presidential campaign in Iowa: "One day before the Iowa caucuses, John Edwards has become the first major presidential candidate to favor withdrawing all American troops, including advisers, from Iraq, doing so in response to queries from a leading military correspondent, the New York Times' Michael Gordon...
Fixing Pakistan's Broken Constitutional and Political System
Posted on December 31, 2007In the aftermath of Benazir Bhutto's assassination last week in Rawalpini, one complex solution emerges to the problems endemic to Pakistani political and social organization. Without reform of the military, intelligence, and security forces in Pakistan, the democratization of Pakistani is unlikely to take root...
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Haw can I join with my family who live in the USA?
Only you are allowed to can join your sister....
How can a sexual harrasment case be dismissed even with evidence?
American law has very strict evidence requirements that are intended to insure t...
How to evict a roommate?
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How can my husband get visitation rights to see his daughter after she has't let him see her in 3 years?
Hello and thank you for your question.
Your husband needs to file a motion...
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