Review: Takeover: How a Conservative Student Club Captured the Supreme Court by Noah Feldman

In this short audiobook, based on a series of podcasts, Feldman describes the origin and impact of the Federalist Society.  It arose from a feeling on the part of numerous conservative law school students that they were viewed as 2nd class lawyers and buffoons by what they considered an overwhelmingly liberal law school environment.

Scalia was chosen as the groups quasi mentor because, even though he was not an academic at the time, he had “real-world experience” as an Assistant Attorney General.  They needed information on how the system worked so they could learn how to become part of, and dominate, that system.

The appointment of Alito was a direct result of the sabotage of Bush’s nomination of Harriet Miers to the Supreme Court.  The Federalist Society  had been disappointed in Anthony Kennedy, not a member, and were determined to place more conservatives on the court, so they began a well-funded campaign to prevent the successful nomination of Miers to the Court.  The result was that conservative presidents now felt impelled to only nominate Federalist Society members. Alito, a long-time member was the result.  He satisfied their wildest dreams.

Fascinating interview with Justice Sutton, Chief of the 6th Circuit  with regard to the Federalist position on judicial restraint, originalism, i.e. the original meaning, and  textualism.  Feldman brought up Bush v Gore arguing that nothing in the Court’s decision regarding due process that all the counties had to count ballots the same could ever be justified from an originalist point of view.   Sutton’s response was that when originalism fails at least there is a way to judge that failure, whereas without any set of principles or guidelines one has no way to judge the validity of a decision.  The point of “originalism” is that it serves as a set of principles that prevent judges from doing whatever they want. Sutton said that if you can’t figure out what the original meaning is, you defer to the legislature and democracy. See also Living Originalism by Jack Balkin and A Debt Against the Living: An Introduction to Originalism by Ilam Wurman.

Feldman sees fractures growing within the Society. If Gorsuch can render a decision based on textualism in Bostock, interpreting the 1964 Civil Rights law to protect gays and transgenders from discrimination, then, as Josh Hawley (former president of the Federalist Society at Yale) said, originalism and textualism are basically dead. Clearly, the original intent of the 1964 legislators did not mean “sex” to include gays and bisexuals.I think the problem for them is much deeper in that both concepts have simply been used to ground a decision they wanted personally to see. James Staab, in his excellent  Limits of Constraint: The Originalist Jurisprudence of Hugo Black, Antonin Scalia, and Clarence Thomas, says something similar, i.e.., if Justice Black, Scalia, and Thomas all claim to be originalists but come to vary different conclusions on the same cases, then originalism is a hollow philosophy. The whole point of iroiginalism is that it would bring consistency to results, conservative, of course. Gorsuch and Roberts, Federalists both, have broken that mold.

Review: The Man in the Middle: The Autobiography of the World Cup Final Referee

In my thirties and early forties, I was a soccer referee, working my way up from kids games until I was head referee for a large AYSO organization and certified as a FIFA referee that got me doing many college games (always welcome because they paid a lot more and added travel expenses. This was around 1978-83. In today's dollars, around $500, pretty good for a young man raising a family. High school games were about a fifth of that.)

I played soccer in high school, was mediocre at best, but really got into refereeing. I loved it.  This was at a time when we used the two-man system rather than a ref and two linesmen.  It’s a system that I still think has some advantages, but requires much training and teamwork on the part of the two on-the-field officials. (Remember this was some 35 years ago. That system no longer exists.) I did in fact get FIFA certified, passed all the tests, etc., etc., but never had the chance to work the middle.

Some of my colleagues had far more presence of mind than I ever would.  I remember Nels, a former Swedish ref who, after a kid kicked the ball high in the air following a call he disagreed with, just said, "If that ball comes down, you're out of the game." Or Howie, a ref I always enjoyed working with, who compassionately told a player who had just lost a front tooth after receiving a ball to the face, (we had located the tooth) to head off to the dentist. The player protested, but Howie just told him, in thirty years "you'll have forgotten this game, but if you don't get the tooth fixed, you have thirty years to regret it."

We had a very active association that scheduled all the refs and negotiated the fees. I was lucky that I had a job from which I could take off a couple afternoons a week to drive the considerable distances to the games.

Of course as a former ref, when I watch games now, I spend as much time watching the officials as the players. Some of them become celebrities in their own right, like Babiana Steinhaus, a first-rate woman official who was the first female ref to do the premier men’s German league games.  She also, in real life, is a Police Chief Inspector. She retired from officiating in 2020, but I discovered she also married Howard Webb, a premier World Cup referee, also a policeman. Howard, as it happens, wrote this book about his career, the culmination of which was officiating at the World Cup final in 2014.

I was surprised to learn of all the technology required of and for referees at the Premier level.  Each wore a heart rate monitor that would record every five seconds and then be uploaded to the league's headquarters, where fitness experts would pass judgement on the referee's fitness. Another was the laser device that would register when a goal was scored with an audible signal to the refs earphones.

I suspect unless you have some interest or background in soccer — it really should be called football all around the world; that other sport could be called pointy-ball or boring-ball — this book will probably not interest you.  I really enjoyed it.  The training program and learning experience of top-of-the-line referees is extensive, and that includes a great deal of analysis of mistakes.  Webb is not afraid to discuss his blunders, and in soccer, the buck truly stops with the man in the middle.
 

Review: The Cycles of Constitutional Time by Jack Balkin

Balkin looks at American history as a series of cycles resulting from four factors all related to polarization and its negative effects on our political system: a.) generations polarized by an event die off; b.) party coalitions change as they begin to fracture; c.) income inequality becomes more pronounced leading to corruption and political protests; and finally d.) immigration slows in response to events or policies and that diminishes a source of anger.

He has identified three of these cycles that cause the rise and fall of political parties and alternate what he calls constitutional rot and renewal through its affect on the courts and constitutional interpretation.

Race is a crucial element in the rise and fall of these cycles.  Even though Balkin doesn’t explicitly use race as one of the organizing principles of the book, race is clearly a fundamental factor in all of American politics, as he acknowledged in a recent law review article. 1  Each of the cycles has deep connections to successive political struggles in the United States over race and racial equality. The coalitions that rise and fall often do so because of massive disagreements regarding slavery (before the Thirteenth Amendment) and race (after it, often intertwined with immigration.) Nothing is more polarizing than race in American society.

The cycles are characterized by what he calls regimes, each dominated by one particular party. The dominant party may not win all the elections in a given regime, but it sets the agenda. The three he identifies are Federalists v Agrarian Republicans and Jacksonian Democrats; Republican domination during and after the Civil War;  the Democratic domination during the   New Deal; and the waning one we are currently in of the Reagan Republicans.  

In the first cycle, Jefferson won over John Adams only because of the 3/5ths clause (see also Garry Wills’ book)2 That clause determined the presidential winners for the next half century by giving power to the slave-holding states. Eight of the first nine presidential elections were won by candidates who were plantation owners from Virginia. As there was a requirement that Supreme Court justices had to live in the state where they rode circuit,  Jacksonian Democrats made sure that a majority of the circuits were composed of slave-holding states. This, in turn, helped ensure that a majority of Justices were from slave-holding states, or were otherwise sympathetic to the interests of slavery.  “The defense and expansion of slavery had become a dominant force in American politics.”

The second major regime cycle was the dominance of the Republicans (1860-1932). Again, race was crucial, as the ending of the slave-state dominance became a goal of the new regime. Initially concerned primarily with the rights of newly freed slaves, as the years wore on, the Republican regime became less concerned about racial equality and more concerned about the defense of business interests. Support for black suffrage was also undermined by white violence and terrorism so the goals of the regime changed. As the Democrats began to win more elections (1874 they won both houses) they changed state constitutions to make black voting more difficult and the Republicans interests were more focused on economic issues. Their Supreme Court emphasized the protection of capital and business, in 1888 reinforcing the idea that corporations had the same rights as persons, thus using the 14th Amendment in a way completely foreign to its creators. “These decisions reflected the evolution of the Republican regime during the Gilded Age. The Republican Party transformed from a multi-racial coalition  devoted to equal rights for all citizens into a coalition primarily concerned with the protection of business interests, including the interests of railroads and other corporations.”
The thirties saw the rise of black migration to the north, where they could vote with less hindrance.  The Depression fueled antagonism toward the moneyed classes and big business, so northern Democrats created a new regime that relied on emphasis on individual and civil rights.

 “Political depolarization allowed cross-party alliances on different issues. But the success of the New Deal coalition always rested on a Faustian bargain concerning race. Southern and northern Democrats agreed on economic issues, but not on race. Democratic unity frayed following the election of Truman who infuriated southern Democrats with his integration of the military and other support for civil rights, so they began to flee to the Republican Party.  This was deliberately accentuated by Nixon who courted southern racists.  The New Deal coalition was doomed over differences in race. Even though Johnson beat Goldwater handily, he managed to win five southern states, a harbinger of the future.  Opposition to desegregation, court-ordered busing and affirmative action became key issues in American politics. A racist demagogue, Alabama Governor George Wallace, managed to attract a large number of Democratic voters in the 1968 presidential election.

The Reagan regime was formed by a coalition of Catholics, evangelicals, southern Democrats, and white voters concerned about black civil rights. They swept presidential elections for the next 20 years. Republican politicians and conservative political entrepreneurs discovered that the key to becoming the nation’s dominant party was to fight the culture wars and make issues of race, religion, morality, and culture the central focus of their campaigns.  It was very effective at splitting the Democratic Party. Law and order became a euphemism for keeping the blacks in their place.  For example, the Reverend Jerry Falwell, who founded the Moral Majority, was first drawn to the New Right not because of opposition to abortion but because the federal government refused to allow tax exemptions for private “segregation academies” that discriminated on the basis of race. Falwell’s decision to focus on abortion came in the late 1970s, well after Roe v. Wade was decided.

Continuing the campaign, Trump found multiple ways to invoke race and racial stereotypes both during the 2016 campaign and throughout his presidency. Republican political strategies on culture and race have made Republicans increasingly a white person’s party. Moreover, the party has been losing college-educated professionals and suburbanites – who became independents or Democrats – for white working-class voters, especially in the South and rural areas.  Balkin notes this is not a good strategy for a party that wants to remain in power.  Indeed, “since George H.W. Bush’s victory in 1988, the Republican Party has won the popular vote for the Presidency only once, in 2004. This is not good news for a political party that wants to remain dominant.”

This would seem to imply that the Reagan/Republican cycle is nearing an end.  Not necessarily write Balkin. “In the 2020 election, however, Donald Trump attracted a slightly larger number of Black and Latino voters – particularly male voters – than he had in 2016....Trump’s modest inroads with non-white voters probably surprised Democrats, who assumed that these voters would never vote for an overt racist like Trump. But this neglects several factors. First, minority voters are not monolithic. They have conflicting and cross-cutting values, which will become ever more salient as the percentage of non-white voters in the population grows. Second, many non-white voters are culturally conservative and aspire to be prosperous members of the middle class; this may attract them to the Republican Party.” Republican talent for winning in smaller states that hold the balance in the Electoral College may also become a factor, as it did with Trump in 2016 and George Bush in 2000. 

The Founders feared despotism. Benjamin Franklin lectured his colleagues at the end of the convention: “I think a general Government necessary for us, and there is no form of Government but what may be a blessing to the people if well administered, and believe farther that this is likely to be well administered for a course of years, and can only end in Despotism, as other forms have done before it, when the people shall become so corrupted as to need despotic Government, being incapable of any other.” To prevent this, the Founders decided on a divided government, a separation of powers. That worked until what Belkin describes as Constitutional rot sets in.  It’s characterized by polarization, a lack of trust in government and fellow citizens, increased economic inequality, and failures in decision-making, a whole host of which led up to the Civil War. The Gilded Age was another example of constitutional rot with huge disparities in wealth, vast immigration, polarization, distrust in government because of policy mistakes, and violence including riots and anarchy.

Belkin thinks the GOP is coming to the end its regime that began with Reagan and we’re in a situation very similar to the end of the Gilded Age. There’s a donor class of wealthy individuals who seek and gain power to enrich themselves, thereby increasing economic disparity, vast distrust in government and fellow citizens, as well as extreme polarization fueled by the mediatainment empires. As I’m writing this, Kevin McCarthy has just failed the 13th ballot for Speaker, a suitable punctuation to Belkin’s thesis.

Related.:
1.    Jack M. Balkin, Race and the Cycles of Constitutional Time, 86 MO. L. REV. (2021)  Available at: https://scholarship.law.missouri.edu/mlr/vol86/iss2/6
2.    Wills, G. (2005). Negro president: Jefferson and the slave power. Houghton Mifflin Harcourt.
3.    Conlin, M. F. (2019). The constitutional origins of the American Civil War. Cambridge University Press.
4.    Wilentz, S. (2016). The politicians and the egalitarians: The hidden history of American politics. W. W. Norton & Company.
5.    Balmer, Randall. " The Historian’s Pickaxe: Uncovering the Racist Origins of the Religious Right." The Changing Terrain of Religious Freedom, 2021, pp. 173-185.
6.    Balkin, Jack M. (2019) "The Recent Unpleasantness: Understanding the Cycles of Constitutional Time," Indiana Law Journal: Vol. 94 : Iss. 1 , Article 6.. Available at: https://www.repository.law.indiana.edu/ilj/vol94/iss1/6

Review: The Inevitability of Tragedy: Henry Kissinger and His World By Barry Gewen

 How did Henry Kissinger go from being the man the Playboy Bunnies would most like to have for dinner to a man hated by both left and right; a man who became an issue in a presidential campaign forty years after he had left government.  Gewen answers that question in this intellectual biography.  It's fascinating.

Kissinger was fond of citing the following story:  When the nefarious Cardinal Richelieu died in 1642, Pope Urban VIII is said to have declared: “If there is a God, the Cardinal de Richelieu will have much to answer for. If not … well, he had a successful life.”  I have never been fond of Kissinger, considering some of his policies and actions to be wrong-headed, if not criminal.  That being said, Kissinger was the great realist and perhaps the most influential Secretary of State in the 20th century.  How he got there is the intriguing subject of this book.

Kissinger distrusted democracy, suggests the author, after witnessing the rise of Hitler through the democratic process. (The early section of the book details how quite precisely.) The lesson Kissinger learned from that is that democracy fails at thwarting tyranny and totalitarianism.  Free speech can co-exist in a non-democratic society. He had the choice of returning to Germany following WW II but having served in the Army and achieved his American citizenship, he had been thoroughly Americanized, even coming to appreciate those from the fly-over states as being a more accurate representative of American culture. He wrote in his memoirs, “Nowhere else is there to be found the same generosity of spirit and absence of malice, as in small-town America.”

Kissinger despised pieties, believing that, like Richelieu,  chaos can be a useful instrument of policy and furtherance of  goals for the nation-state. He ultimately lost his position in government by losing support of both the left and right. His mantra was simply that the end (order and stability) justified the means. National interest was paramount, and morality in its service was futile and counter-productive.

The author goes into some detail discussing the influence of Leo Strauss, Hans Morganthau and Hannah Arendt on the politics of Kissinger. All  were of German Jewish background. Arendt is best known for her seminal works on the origin of totalitarianism, a pertinent topic given that the 20th century gave rise to innumerable tyrannical isms: Communism, Nazism, Fascism, and now Islamism. All of them had seen the failure of democracy during and following the Weimar Republic and the democratic rise of Hitler.  This left all of them suspicious of democracy and populism in particular.  Each opposed quantification as a way of making decisions (the direct opposite of Robert McNamara.) Foreign policy and history have a subjective quality, and one needs to beware of idealism, marching into some place you don't understand even with the best intentions.

Kissinger’s role under Nixon was surprising, given Nixon’s constant belittling of Jews and overt anti-Semitism. So many in both parties feared Nixon’s irascible temper and general craziness, they saw Kissinger as a temperate restraint on Nixon. He was the ultimate realist, believing power should be used in the service of the nation, and he initially opposed MAD (Mutually Assured Destruction) arguing that the Russians would be emboldened by the policy as they could never believe the West would initiate its own destruction.  His preference was for tactical nuclear weapons, and it was important the enemy believed the U.S. would use them.  That was the only realistic self-defense strategy.

A very readable and intriguing book.

Packing the Court: Some Musings

 I am reading James MacGregor Burns'  Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court. 

 I cannot recommend this book highly enough. If you are worried about current trends in politics, this will calm you.  We’ve been there before. The battle between the Court, Executive, and Legislature began with Marshall’s court; unenumerated rights and processes were at the forefront of debates constantly in the early 19th century, the decisions in Marbury (judicial review) and McCullough (national bank) plus numerous others also illustrate the battle over national v. state rights; extreme partisanship; the division of the country by sectional and class  interests, east v. west, industrial and financial v. agricultural and rural; and not the least, the Electoral College and election of the President with the election of 1800, and 1824 (John Quincy Adin ams defeated Andrew Jackson in 1824 by garnering more votes in the House of Representatives, even though Jackson originally received more popular and electoral votes.) And so it goes, with only the personalities changing.  The issues have never been resolved.

The book’s title is perhaps misleading. When we think of "packing the court" FDR's attempt to add justices to the court immediately springs to mind, yet ever since Marshall's Marbury decision that shifted an enormous amount of power to the court with judicial review, presidents have used political cronyism to add their political adherents to the court. Some one-term presidents, like Trump, have been very fortunate to be able to change the balance of the court in their favor by adding numerous justices that favor their political view. Until Trump, Ronald Reagan had appointed the most justices. William Harrison, Andrew Johnson, Zachary Taylor and Jimmy Carter, all had none. Washington (obviously) and FDR each had eight, so FDR got to pack the court anyway, given his many terms in office.

I won't go on about the validity of Marshall's decision even though one would think that "originalists" would be appalled by judicial review as it was certainly unenumerated, but it does make one stop and pause to realize that unelected judges can have an enormous influence on the direction of the country for many years, an influence even contrary to those in elected office.

FDR was appalled by judicial review.  During a radio talk in 1937 he referred to Marbury v Madison.  The power to declare a law unconstitutional was nowhere in the Constitution, he remarked, and, in fact, Justice Bushrod Washngton almost admitted as much just a little later when he argued the Court should "presume in favor of [a law's] validity until its violation of the Constitution is proved beyond all reasonable doubt. "The Court", Roosevelt continued, " has beem acting not as a judicial body, but as a policy-making body."

I was surprised to learn that following the failure of the Jefferson administration to impeach Pickering and Chase in their effort to get rid of Federalist judges, Marshall was so terrified of the prospect of impeachment that he wrote a friend proposing to mollify the Republicans by giving Congress in concert with the president the right to overturn decisions of the Supreme Court.

The antagonism toward a court that is of opposite political bent probably began with Thomas Jefferson following the packing of the court with Federalists by John Adams. Jefferson wrote Spencer Roane (a vigorous opponent of Marshall’s nationalism and an advocate of slavery, who, ironically, came close to being chosen as Chief Justice in place of Marshall, an appointment that would have drastically changed the nature of the court in the United States):

The constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist, and shape into any form they please. It should be remembered, as an axiom of eternal truth in politics, that whatever power in any government is independent, is absolute also; in theory only, at first, while the spirit of the people is up, but in practice, as fast as that relaxes. Independence can be trusted nowhere but with the people in mass. They are inherently independent of all but moral law. My construction of the constitution is very different from that you quote. It is that each department is truly independent of the others, and has an equal right to decide for itself what is the meaning of the constitution in the cases submitted to its action; and especially, where it is to act ultimately and without appeal. I will explain myself by examples, which, having occurred while I was in office, are better known to me, and the principles which governed them.*

Ultimately, I think Joshua Braver has it right in his article on court-packing:

Whether court-packing continues to be a live political option will depend on the vagaries of politics. Unless dispelled, however, the common historical narrative will continue to lie like a half-buried loaded gun, ready to be unearthed whenever the Supreme Court threatens the agenda of a new or realigned political party. .... Rather than colonize and infiltrate the Court, Congress curbed it and forced it to retreat through targeted and reversible measures, such as jurisdiction-stripping. [my emphasis] That kind of retaliation against the Court is the “hallowed American political tradition.”

Today, liberal democracy is on the decline, and court-packing has helped

push it there. New times demand reformulations of old theories that encourage

resistance against courts. One response is a knee-jerk reaction that goes to the

opposite extreme and accepts judicial supremacy. But this hermetic sealing off

of politics from law would be just as much a break with American tradition as

court-packing. Going forward, the question is not how to shut down the fierce

and inevitable conflict between the elected branches and the Supreme Court,

but how to manage it. **

**Braver, Joshua. "Court-Packing: An American Tradition?" Boston College Law Review, vol. 61, no. 8, 24 Nov. 2020, pp. 2749-2808. Accessed 1 Nov. 2022. https://core.ac.uk/download/pdf/361263545.pdf 

*"Article 1, Section 8, Clause 18: Thomas Jefferson to Spencer Roane." Electronic Resources from the University of Chicago Press Books Division, press-pubs. http://press-pubs.uchicago.edu/founders/documents/a1_8_18s16.html

For more information on Spence Roane (whom I had never heard of) see https://en.wikipedia.org/wiki/Spencer_Roane

 

The Deserter and the General's Daughter by Nelson DeMille

The General's Daughter

"As a CID warrant officer, Brenner had to play many roles. "I was a cook and a chemical weapons officer, which, in the army, are the same thing." That sets the tone for this book.  I had seen the movie with John Travolta, who did a great job, and this is one of those rarities where the movie and book complement each other very well. The movie captures the spirit of the book.

It's rare that I give a novel 5 stars.  I usually reserve that many for important works of non-fiction.  I make an exception for this novel. Aside from Brenner's wise-cracking, always enjoyable, the book has an intriguing mystery, a thorough investigation, lots of suspects, and even a bit of romance. 

This is one of those books which some of the more puritanical among us will complain is unnecessarily graphic.  I disagree. The novel is about honor, disgrace, writing past wrongs, a whole panoply of emotional responses and how they affect us. The scenes are incredibly uncomfortable and necessarily so because they pull the reader into the moral quagmire faced by the participants. 

I listened to it as an audiobook read by Scott brick who is the perfect narrator for this title.

The Deserter

I worry when established writers take their protagonists out of the country.  Usually, I suspect it is because they want to be able to write off a trip to some country they've always had a hankering to visit so they do in order to collect local color for the book.  But Venezuela? Why would anyone want to go to a country on the verge of ruin and chaos -- at least that's the way it's described in this extended travelogue.

 Scott Brodie and Maggie Taylor, both CID officers, (think Paul Brenner and Cynthia Sunhill from the General's Daughter with whom they bear striking similarities in looks and speech) need to go undercover to Venezuela to bring back a Captain Kyle Mercer who deserted his unit and committed some heinous crimes in Afghanistan.  He has now been seen by a less than reliable witness in Venezuela in a brothel for underage girls in the slums of Caracas. Clearly, the Army has way, way too much money if it were to indulge in such a risky venture, kidnap (or kill) this guy Mercer.

 

I really admire many things about Venezuela, the foremost being the conductor Dudamel and the truly magnificent Youth orchestra and high school music programs. That is not the country of this book and I found the plot to be a mish-mash of plot holes. I did like the Paul Brenner-like banter of the thinly disguised Brodie.  Why invent a new character when you already had one on the books? (Perhaps because he wrote this with his son, Alex DeMille, another puzzler, the way to get his son a head start in the writier's market.)

 

I have read (or listened to) several DeMille and enjoyed the Brenner and Corey characters. I was disappointed in this one and certainly won't read the The Cuban Affair, which other readers have described as being similar in its travelogue nature. I enjoy reading the history and current affairs of other countries be they failed or successful; I also enjoy a good mystery/thriller/police procedural like the General's Daughter (5 stars); I do not enjoy one that succeeds at neither.

 

 

The Ninth Amendment v Substantive Due Process and rights.

 My Goodreads friend Alan Johnson, author of several very interesting books has been writing lately on the use of the Ninth Amendment as a better way to protect unenumerate rights, which, after all, is what the ninth is all about.

I quote from a passage he posted to Goodreads that I find particularly enlightening and look forward to a book I hope he writes.

During the last couple of days, I have been studying the Dobbs decision and planning an essay on it with the working title “Originalism Gone Wild: A Critical Analysis of Dobbs v. Jackson Women’s Health Organization (U.S. 2022).” The joint dissenting opinion of Justices Breyer, Sotomayor, and Kagan is one of the most brilliant and beautiful judicial opinions I have ever read. (I was a practicing lawyer for more than three decades, focusing especially on constitutional and public law litigation.) This dissenting opinion eviscerates originalism and offers a clear and compelling alternative mode of constitutional analysis. As did I in The Electoral College, 137–39, they rely, in part, on Chief Justice John Marshall’s analysis in McColloch v. Maryland, 17 U.S. 316 (1819). I will elaborate on such matters in my forthcoming paper, which I will post on academia.edu and link in the present Goodreads topic.

Dobbs and most of U.S. constitutional jurisprudence have studiously avoided the Ninth Amendment. I find it interesting that your proposed constitutional amendments replace the language of the Ninth Amendment with new substantive constitutional provisions. It is an interesting question whether it is advisable to delete the original language of the Ninth Amendment. In law school (1977), I wrote an 81-page paper titled “The Ninth Amendment as a Constitutional Reference of Individual Rights.” I will never publish that paper, because I now disagree with some of its positions and applications. However, the historical background of the Ninth Amendment is very interesting. In particular, it is highly questionable whether the Supreme Court’s substantive due process theory, based on the liberty component of the Fourteenth Amendment (or the liberty component of the Fifth Amendment Due Process Clause in cases involving federal legislation or executive action) is sound. And it is substantive due process—which Justice Scalia once called (not without reason) an “oxymoron”—that the Dobbs majority, especially Justice Thomas, wishes to cast into oblivion, together with constitutional protections regarding privacy, contraception, and same-sex marriage. A much sounder analysis, in my view, is to base these constitutional rights on the Ninth Amendment, as Madison and other of the Framers arguably intended. Your proposed constitutional amendments attempt to codify such substantive rights (clearly in order to avoid any future textual or originalist attack on them). That is all to the good. But the problem, as Madison recognized, is to avoid the legal maxim of expressio unius est exclusio alterius (“the expression of one is the exclusion of others”)—the principle of construction that, for many centuries, has been applied to statutory and contractual interpretation by British and U.S. courts. This is exactly the reason why Madison proposed the language that became the Ninth Amendment. I will develop these ideas further in my forthcoming paper as well as in the third book, Reason and Human Government, of my philosophical trilogy on free will, ethics, and political philosophy. The paper will be completed sometime in the next week or two. The book will require at least another year or two to prepare; it will cover many other things in addition to constitutional interpretation.

Alan E. Johnson, author of The Electoral College: Failures of Original Intent and Proposed Constitutional and Statutory Changes for Direct Popular Vote, 2nd Edition, The First American Founder: Roger Williams and Freedom of Conscience, and Reason and Human Ethics

 

"Give Me Liberty, or Give Me Death"

That phrase, attributed to Patrick Henry in a speech before the Second Virginia Convention, credits himwith swinging the delegates to supporting the revolution by providing troops. Too bad it only applied to white colonials.

Henry in his attack on ratification of the Constitution adopted a very different tone with regard to slaves who most definitely were to be given the choice of liberty or death (well, death maybe.)  Robin Einhorn examined the documents and records** of the history of the ratification in an enlightening article.* Henry was adamantly opposed to ratification on several grounds.  He thought it too democratic for one, as it would institute majority rule  at the national level. He also was afraid of what the national government could do to abolish slavery.  "They're coming to take your niggers," was his cry.

Even though he decried slavery as an evil, its abolition should never happen as it was so tied to the economics of the south. :"We ought to possess them in the manner we have inherited them from our ancestors, as their manumission is incompatible with the felicity of the country." The "felicity"of owning should not be subject to the will of the majority because not everyone understood the importance of owning slaves, the decision " should not be "in the hands of those who have no similarity of situation with us."

His attitude was interesting in that the Constitution's compromises heavily favored that "peculiar institution." The Fugitive slave clause was a gift to slave-holding states. Protection of property was paramount and the slave-holding states had a decided advantage in Congress thanks to the 3/5ths rule.

Einhorn proposes that even though many historians saw politics as encompassing both national and state ideals, the interests of southern slave-holding states differed radically from those where slavery was not present. A national government with majority rule could easily overwhelm the interests of slave-holding states.  It was much like the argument for maintaining and arming state militias in the 2nd Amendment. The southern states desperately feared slave uprisings and didn't trust a national army to protect them.  In time of war, white southern males could be called upon to serve and that would leave their plantations without supervision.

Taxation on the national level was also a fear. Henry argued a majoritarian national government could impose "ruinous" taxation on southern plantation leading to the necessity of manumitting or selling slaves to pay the taxes. Even though it was never levied, the $10 tax on imported slaves before 1808 when the trade could be prohibited, displayed the dangers of a national government. "Those feeble ten," he lamented, "cannot prevent the
passing the most oppressive tax law." (He meant the 10 representatives Virginia would have in Congress even with the 3/5ths Clause.  Henry was not impressed by the direct tax clause that apportioned tax based on population, which Federalists argued would prevent such a broad tax.)

"The oppression arising from taxation,"he explained,"is not from the amount but, from the mode." The direct tax clause governed only the amount of Virginia's total tax liability, "yet the proportion of Virginia being once fixed, might be laid on blacks and blacks only. For the mode of raising the proportion of each State being to be directed by Congress, they might make slaves the sole object to raise it of."

Einhorn has written a fascinating analysis of the economic arguments made by Henry and his supporters against ratification. His analysis also sheds light on Madison's famous piece in the Federalist Papers regarding factions and the advantages of a larger republic in protecting property. . In a large republic, a majority sharing any "passion or interest"can "be rendered, by their number and local situation, unable to concert and carry into effect schemes of oppression." In the United States, as Madison famously wrote in Federalist 51, society "will be broken into so many parts,interests and classes of citizens, that the rights of individuals or of the minority, will be in little danger from interested combinations of the majority."  Little did he know...

 *Society for Historians of the Early American Republic
"Patrick Henry's Case against the Constitution: The Structural Problem with Slavery"
Author(s): Robin L. Einhorn
Source: Journal of the Early Republic, Vol. 22, No. 4 (Winter, 2002), pp. 549-573
Published by: University of Pennsylvania Press on behalf of the Society for Historians of the
Early American Republic  http://www.jstor.org/stable/3124758

**The Documentary History of  the Ratification of the Constitution,(vols. 9-10,
Madison, WI, 1990, 1993)

Review: Adams vs. Jefferson: The Tumultuous Election of 1800 by John Ferling

Anyone who believes we are in a period of unprecedented partisanship should read this book. I have always found history to be calming because it's obvious humans have changed little and the issues and enmities repeatedly appear with only minor adulteration. The issue of whether we should have more or less government that we argue about today was a battle royale among the Founders. Adams, Hamilton, and Washington, all having seen the powerlessness and inefficiency of the colonies acting independently in the fight against the King, and then in the Articles of Confederation, America's first Constitution, wanted a stronger, national government that could better defend against outside interests.  Jefferson and Madison, romantics both, believed less government was always better.  Sound familiar?

The seeds of that dispute lay with disagreements much earlier.  Spain was willing to make considerable concessions regarding land if ownership of west Florida and New Orleans could be decided and traffic on the Mississippi ceased. Southern states were furious, while northern ones didn't care and the issue was never resolved, but a failure to have a national policy rankled. Couple that with the inability to get colonies to pay their share to support the troops, who were starving at Valley Forge while monarchists partied in Philadelphia, and you had more impetus for a stronger, more national government. That resulted in the 2nd Constitution of 1789 unfortunately delivering more land mines (the 3/5ths clause and support for slavery) leading to the Civil War. The  battles between Adams, Hamilton and Jefferson in the Cabinet presaged the election of 1800, a democratic debacle. Each side mobilized its own social media, buying newspapers which were partisan rags.

The campaign was ugly. War service of the candidates was an issue then as now, with opponents reminding the electorate (white property owners only then) that Thomas Jefferson had sat out the revolution at home in Monticello. Thomas Jefferson had hired James Callender, a British immigrant to write anti-Adams essays. "Calumny dripped from Callender's pen." Jefferson bankrolled many anti-Adams journalists. He unsparingly "flayed Washington," who, he claimed, had wanted to be a dictator, called Hamilton the "Judas Iscariot of our country," and called Adams a war monger and "poor old man who is in his dotage." The Federalists under Adams were no better. Callender was arrested and charged under the Alien and Sedition Acts -- and we thought the USA Patriot Act was bad -- passed during the Adams' administration. Callender later turned on Jefferson when he was not awarded a plum political post in addition to his monetary rewards. He then went on the dig up the story of Jefferson's affair with Sally Hemmings, a charge that seems now not to have been true, the DNA evidence being somewhat inconclusive given the number of other Jefferson males in the area, although I suppose the jury is still out in some minds. But I digress, the only point being that campaigns in the early 18th century were often more bitter than those today.

Thomas Jefferson had hired James Callender, a British immigrant to write anti-Adams essays. "Calumny dripped from Callender's pen." Jefferson bankrolled many anti-Adams journalists. He unsparingly "flayed Washington," who, he claimed, had wanted to be a dictator, called Hamilton the "Judas Iscariot of our country," and called Adams a war monger and "poor old man who is in his dotage." The Federalists under Adams were no better. Callender was arrested and charged under the Alien and Sedition Acts -- and we thought the USA Patriot Act was bad -- passed during the Adams' administration. Callender later turned on Jefferson when he was not awarded a plum political post in addition to his monetary rewards. He then went on the dig up the story of Jefferson's affair with Sally Hemmings, a charge that seems now not to have been true, the DNA evidence being somewhat inconclusive given the number of other Jefferson males in the area, although I suppose the jury is still out in some minds. But I digress, the only point being that campaigns in the early 18th century were often more bitter than those today.

Hamilton doesn't come off as well as he did in Ferling's earlier books; Jefferson and Adams better. Hamilton is portrayed as power hungry and responsible for the ostensible sins of the Adams administration such as the Alien and Sedition Acts. Personally, I admire Adams for his peacefully relinquishing power -- I believe the first instance in history a leader stepped down from power without some kind of violence -- but Hamilton is getting a bad rap. His emphasis on honoring the debts and fiscal stability was very important. You have to feel sorry for Adams, sandwiched between Hamilton and Jefferson.

Adams was chained to the Alien and Sedition Acts which were wildly unpopular, especially following the arrest and imprisonment of Callender for his calumnious broadsides against the Federalists (which eponymous society today appears to have completely abandoned.) Republican (same problem -- it's certainly ironic that the name became associated with abolitionism several decades later even if the pro-slave party of Jefferson and Madison became just the Democratic Party) papers sprang up all over supported by wealthy landowners and even in one case by a corporation that sold shares for just that purpose.  Their rhetoric was bitter: The Aurora called Washington's Farewell Address the "loathings of a sick mind," asked whether he was "an impostor or an apostate" and accused him of being traitorous, like Benedict Arnold. Adams was but "old, querulous, bald, blind, crippled and toothless" and,  "like polluted water to be cast out the back door, "a repulsive pedant...a gross hypocrite".

Read this with America Afire Jefferson, Adams, and the Revolutionary Election of 1800. There were times when listening to this book was like listening to news programs today. Virginia threatening to secede if Jefferson was not elected,  militias formed to storm the Capitol if their candidate was not elected, Jefferson warning that he couldn't control his supporters, extreme politicking and horse trading, and this was just the third election in the nation's history.  I think a good case could be made that the 1789 constitution was certainly not worth much and a civil war just a few decades later adds credence to this view. Given the number of times in our history when the winner of the popular vote did not become president, I wonder if it isn't time to dump a system that didn't even work from the start. The story of the friendship and then enmity between these two giants is well known, but Ferling has written a very readable account that sets the scene well.

"The Domestic Roots of Perpetual War"

 Eisenhower warned of a "military industrial complex".  Shortly thereafter a "missile gap" with the Soviet Union was discovered and the Kennedy administration poured money into resolving that gap which it was discovered later never existed.  That series of coincidental events has repeated itself for the past seven decades.  Whenever the increase in military spending falls to just 5% some external threat will be discovered that requires an immediate spending increase in order to maintain our national security. Alexander Cockburn in his article, "The Military Industrial Virus"** documents the virtual sine wave of military spending increase as a result of some imagine external threat every time spending reaches the magic floor of 5% annual increases. 

We have become immune to military excess. Remember the kerfuffle over the $640 toilet seat?  It cause quite a stir at the time, yet in 2018 it was revealed that the Air Force was now paying $10,000 for a toilet seat cover and there was nary a ripple of protest.  When asked to explain, an Air Force official justified the cost  because it was required to save "the manufacturer from 'losing revenue and profit.'"

So now we have really expensive weapons and the evidence is accumulating they don't work very well and the money spent comes at the expense of training and maintenance. Mines are an inexpensive yet devastating threat to American warships but the Navy has only 11 dilapidated minesweepers of which only three are allocated to the Middle East where Iran has thousands that could be laid in the Straits of Hormuz through which a large portion of the world's oil supply must travel.  The Navy is said to rely on the MH-53E mine search and destroy helicopter that has proven to be the most dangerous machine for those who fly them, killing 132 crewmen in some 58 crashes since their introduction in 1980.  They are the most dangerous aircraft in the military's arsenal, just not for the enemy.  The Osprey follows close behind. The new multi-billion dollar Littoral ships, nicknamed "little crappy ships" by the crew that was supposed to be able to sweep for mines has yet to get that equipment working.  New helmets worn by soldiers in Afghanistan and Ira have been shown to cause more damage to solder's brains from explosions rather than less. And the F-35 that saw its first combat operations 17 years after the program was initiated could make only one sortie per plane every three days because of maintenance and cost issues. The Pentagon's former chief testing official said they would not have survived combat without protection from other planes. They are so expensive only a small portion of the original order could be purchased.

Has it helped? Indeed, we have become a fearful nation, a bunkered nation, bogged
down in never-ending wars abroad accompanied by shrinking civil liberties at home. We now spend almost as much on defense as the rest of the world combined, yet the sinews of our supporting economy, particularly the all-important manufacturing sector, are weakening
at an alarming rate, threatening the existence of the high-income, middle-class consumer society we built after World War II.

 

That quote is from an essay by Franklin Spinney*** that he wrote after he retired entitled "The Domestic Roots of Perpetual War"* in which he argues that the current war-centric foreign policy has placed Congress and the White in a straitjacket with regard to military funding which has made the control much less safe. The end of the Cold War, rather than producing a "peace dividend" had precisely the opposite effect.  The military bureaucracy, politicians, and business interests had become so intermingled and dependent on one another that cutting back on defense expenditures would ha e caused massive disruptions to the economy. Even Bernie Sanders, for example, who fought against the F-35, was more than happy to approve their purchase when assured some would be based in Vermont. 

 

The corruption of the system affects the military as well. While Seventh Fleet ships were colliding with civilian tankers and freighters, killing several seamen, the admirals, many of them senior, were being bought off with prostitutes and money to have the ships serviced by "Fat" Leonard's shipyards.  So far, sixteen admirals have been found guilty of bribery and fraud.  Twelve more await trial.  Politicians of both parties will do anything to get parts for new weapons manufactured in their districts, so contracts are spread around the country to make sure of political support.  

 

 The beauty of the system lies in its self-reinforcing nature. Huge cost overruns on these contracts not only secure a handsome profit for the contractor, but also guarantee that the number of weapons acquired always falls short of the number originally requested... These bureaucratic belief systems  slowly  insinuated  themselves  deeply  and  almost  invisibly into a domestic political economy that nurtures financial-political  factions  of  the  Military-Industrial-Congressional  Complex  (MICC). The result is a voracious appetite for money that is sustained by a self-serving flood of ideological propaganda, cloaked by a stifling climate of  excessive  secrecy.  President  Dwight  D.  Eisenhower  warned  us  to guard against the corrosive danger of exactly this in his 1961 farewell address.2  He  was  ignored,  and  today,  fifty  years  later,  the  domestic political imperative to steadily increase the money flowing into the MICC reaches into every corner of our society. It distorts and debases our economy, our politics, our universities and schools, our media, our think tanks, and our research labs, just as Eisenhower predicted it  would. [p.57]

Continuous small wars (or the threat of them) are essential to the MICC. Those companies are usually not in a position to convert their business to civilian use. Having been tied to the military procurement system that virtually guarantees them a profit, moving into the civilian realm would require expertise in marketing and dealing with competition they're simply not prepared for.  It's much easier and rewarding to simply have a Congressman in the pocket and a system that feels constantly under threat. Congressional and bureaucratic staff who deal with procurement of weapons systems are virtually guaranteed a job at one of the big military conglomerates at substantial salaries when they decide to leave government. 

We have fallen into the trap of believing that ever-increasing complexity and complicated technology is the answer to military success, yet we have failed to learn the lessons of Vietnam and Afghanistan nor the Soviet experience there that showed how simple local forces can beat better technology. It does not appear we have learned the lessons of the Millenium 2002 War Games in which a vastly inferior force in Iran destroyed an American naval battle group. "“The impact of the [opposing force’s] ability to render a U.S. carrier battle group — the centerpiece of the U.S. Navy — militarily worthless stunned most of the MC ’02 participants.”  It was all over in ten minutes.**** "The dogmatic belief that greater weapons-system complexity and, even worse, greater organizational complexity enhance combat effectiveness is at the epicenter of the belief system sustaining the MICC." After a seventy-nine day bombing campaign in Kosovo (a tiny country with an economy smaller than Fairfax County, Virginia) the Serbs left. Sophisticated radar of the US planes was defeated by microwave ovens used to decoy expensive homing missiles.

Fans of Reagan continue to brag how he caused the decline of the USSR, mostly by forcing them into an unsustainable weapons development and purchase cycle that corrupted and  bankrupted them.  Should we fail to rein in the MICC, I fear we will follow them down the same path? 

*https://www3.nd.edu/~druccio/Spinney.pdf

**https://archive.harpers.org/2019/06/pdf/HarpersMagazine-2019-06-0087519.pdf

***In 1983, Franklin Spinney, was "a thirty-seven-year-old analyst in the Pentagon’s Office of Program Analysis and Evaluation, who testified to Congress that the cost of the ever-more complex weapons that the military insisted on buying always grew many times faster than the overall defense budget. In consequence, planes, ships, and tanks were never replaced on a one-to-one basis, which in turn ensured that the armed forces got smaller and older. Planes, for instance, were kept in service for longer periods of time and were maintained in poor states of repair owing to their increasing complexity. As to be expected, the high command did not react favorably to these home truths. They allowed Spinney to keep his job, but stopped assigning him anything of importance. He spent the rest of his career ensconced in a Pentagon office at the heart of the military-industrial machine, pondering and probing its institutional personality."

****https://nationalinterest.org/blog/reboot/millennium-challenge-iran-destroyed-america-war-game-197261  and https://warontherocks.com/2015/11/millennium-challenge-the-real-story-of-a-corrupted-military-exercise-and-its-legacy/

Review: Dred Scott and the Problem of Constitutional Evil by Mark Graber

 We tend to place the Constitution on a pedestal, although if you asked the average person which Constitution (Articles of Confederation, 1789, or post-Civil War) he revered, his eyes would glaze over.  J.P. Morgan famously said, "I don't hire a lawyer to tell me what I can't do... I hire him to do what I want to do."  So it is. We want lawyers to be advocates, to find the "right" legal interpretation that will best serve our interests. So it is with the Constitution. Political theorists of all political persuasions display less interest in determining what is constitutional than making arguments that will advance their own social agenda within a constitutional framework.

Graber makes the startling claim that the Dred Scott decision may have been constitutionally correct given its emphasis and protection for property rights, (I have made similar arguments in the past to gasps from my listeners) but he does so in the context that the Constitution that existed before the post-Civil War amendments --13th-15th - the third Constitution I call them -- was essentially evil in that it supported the institution of slavery and how Taney's decision influenced judicial interpretation ever since.

 

People can hold diametrically opposed positions on many subjects: abortion is murder, capital punishment is barbaric, etc.  For each there is an opposing view that may be just as strongly held.  Constitutionalism is the theory that these divisive disagreements can be adjudicated through interpretive means using the Constitution's various interpretations to "prove" one side or another is correct. It's the "challenge of creating and preserving political relationships among people who hold conflicting conceptions of justice [that] requires that compromises be forged in every dimension of political life." But, compromises (like that in 1850 and those in writing the Constitution) he argues merely dilute the arguments and postpone resolution. Social groups in power are unlikely to accept any policy or opinion they view as constitutionally incorrect.

 

The book consists of three sections followed by a coda. The first essay criticizes constitutional theorists who misuse the case. The second defends Chief Justice Roger Taney's ruling as consistent with the vision of the framers. The third criticizes Abraham Lincoln's constitutionalism as inconsistent with the vision of the framers. 

 

The 1857 decision in Dred Scott v Sandford said that blacks could not be citizens regardless of where they had been or come from and more secondly that the Missouri Compromise which had banned slavery in northern territories was unconstitutional.  Nor could they delegate that power to territorial legislatures. African Americans could not be citizens because there was a consensus among the founders that "they had no rights which the white man is bound to respect." Congress could not ban slavery in the territories because slaves were "property" and therefore protected by the due process clause of the Fifth Amendment ("an act of Congress which deprives a citizen ... of his ... property, merely because he ... brought his property into a particular Territory of the United States ... could hardly be dignified with the name of due process of law").

 

The first essay argues that Taney's judgement was not the "bad judging" fostered by current scholars both on the right and left. He argues they are wrong and that to suggest the decision was anti-majoritarian, simply the result of pro-slavery judges, or a misinterpretation of the founders' wishes is just wrong. The original intent of the framers was much more pro- than antislavery, despite the Northwest Ordinance, which had banned slavery in one territory but "acquired a strong antislavery gloss" only later (p. 72). "If the persons responsible for the Constitution intended that Congress have the power to ban slavery in every territory, then this was the best-kept secret in American politics during the late 1780s" .

 

The second section discusses the compromises and predictions for the future made by the authors of the Constitution. The theory, he argues, was that the southern slave holding states would hold power in the House and presidency (with the 3/5ths rule) while the smaller but more numerous northern states would hold sway in the Senate where, by design, they would also control nominations to the Supreme Courte. That way a balance of power was achieved giving both slave states and free states a virtual veto on national policy.  All this would lead to bi-sectional coalitions.  

 

By 1857, northern growth foresaw domination of both houses by the north and Graber says the logical result was Taney's decision in Dred Scott was favorable to the wishes of the Framers. It effectively removed abolition from national policy.  But at what cost!

 

The third section of the book deals with Lincoln and his abandonment of bi-sectional coalitions.

 

The last section is the most troublingly problematic, and I hate to indulge in any spoilers here.  Let's just say it involves an argument for why the candidate of choice in 1860 should have been John Bell.