Woulda Coulda Shoulda

If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience.
Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harv. L. Rev. 457 (1897)

Almost exactly four years ago, I was fretting about Ralph Nader. You see, Nader had just announced his candidacy and I was worried about a repeat spoiler performance. As our (bad) luck would have it, Kerry lost to Bush by a sufficient enough margin that Nader wasn't the difference-maker.

Today, Ralph Nader has once again announced that he is running for President. As I look back on what I wrote in 2004, I realize that two ideas from my February 2004 post still ring true to me today:

The first point: Ralph Nader will not have an effect on the election in any way, shape, or form. In some bizarro alternative universe, Ralph Nader's star rose after the 2000 election, and he rode a groundswell of support into a renewed bid in 2004. We rallied around his message of battling the corporate kleptocracy, we decided to take the fight to a two-party duopoly and we railed against a flawed electoral system...

...but that world isn't our world. None of the above ever happened. What really happened after 2000 and again in 2004 was that Ralph Nader went back down the cultural rabbit/hobbit hole, disappearing from the national stage. Who knows? Maybe he was headlining policy wonk cruises the whole time and I just haven't been paying attention.

The second point: Ralph Nader is destined to join the ranks of Aaron Burr & Alger Hiss. Like Burr & Hiss, early Nader's contributions (remember that without him we would have neither the EPA nor OSHA) will be overshadowed in time by late Nader's hubris. 50 years from now, they'll remember Nader's contributions to the regulatory state? Not a chance. They'll remember him as the guy who was the but-for cause of George W. Bush's election.

Now, in that last sentence – linking Nader to Bush's 2000 win in Florida – I realize that I sound like the stock Nader critic. And the stock Nader critic should expect to hear from the standard Nader supporter: "It's his right to run," they say, pointing out that he's a natural-born citizen over the age of thirty-five.

But in responding to critics like me who say "Nader should not run" with the statement that "Nader legally can run," Nader's remaining supporters miss the point of Justice Holmes's passage above.

The law provides good guidance regarding what we can do. In a criminal context, the law tells us what we cannot do (unless we want to suffer the penalty). From this negative, we can infer that anything not prohibited is permissible. We can do it.

Yet, the law says nothing (or next to nothing) regarding what we should do. Even if something is legal, ought I to do it? You might find the answer to that question in a book, but it won't be a book of statutes or a bound book of legal opinions. When Nader's remaining supporters respond to critics who say he should not run by saying that he has every right to run, they substitute should for can.

As Bill Clinton has noted, Ralph Nader's 2000 run as the Green Party candidate "for the Presidency "prevented Al Gore from being the 'greenest' president we could have had."

O remaining Nader supporter,
I'm well aware of what Ralph Nader could do in 2000.
What should he have done?

Soundtrack for Obama '08

In the 1979 movie Manhattan, Woody Allen's character lists Louis Armstrong's 1927 recording of Potato Head Blues (RealAudio link) as one of a dozen reasons that life is worth living. Sitting in a jazz history course more than a decade ago, I recall my professor (the inimitable and irascible late Grover Sales) remarking to us that he agreed with Allen, and that if he were forced to choose one song to serve as a soundtrack to life, it'd be Potato Head Blues.

I know it's the sentimentalist in me, but since then I've found the notion of a "soundtrack to life" to be a potent one. Occasionally I'll stumble across a particular song and discover that it captures the emotion of a particular set of experiences in my life.

Now, I haven't written about it on this blog yet, but I'm keenly excited about the Barack Obama campaign. And I'm a bit stunned by how enthusiastically Senator Obama has been received by a needy public. When I read and watch the news, I see time and again stories of people who have invested their fondest hopes in him, and I see how he's responded to the moment, treating it as a call to action.

It's in this context that I stumbled across the song below. To me, this is the soundtrack to the Obama campaign as of February. The energy, the striving, the power, the feeling of being unsettled, the momentum — it's all there. Here's hoping that these themes continue to develop and build through November and then through the next four years.

Perpetuum Mobile by Penguin Cafe Orchestra
(Yes, it is in the completely unbelievable 15/16 time signature.)

A Toast to the Constitution: Temperance, A Benevolent Creator/Brewmaster, Happiness & Avoiding the Gout

(Crossposted from the American Constitution Society :: Columbia Law School)

Here's the toast from the 222^nd Annual Constitutional Law Mixer, held at Columbia Law School on February 4, 2008. As in years past, the event was jointly hosted by the local chapters of the American Constitution Society, the Federalist Society, and the Constitution Law faculty here at Columbia.

First, I want to thank ACS & FedSoc for inviting me to give a toast at the 222nd Annual Constitutional Law Mixer. It's an honor to be a part of a tradition that predates both interchangeable parts and modern plumbing.

As Chancellor Kent was known to say: "Our annual Con Law Mixer? Yeah, that's kind of a big deal."

---

Back in May of last year, I stumbled across Robert Harris's review of the Barbara Holland book The Joy of Drinking. In Harris's review, he noted Holland's research into the role alcohol played in the creation of the United States Constitution. Harris writes that:

[I]n 1787, two days before their work was done, the 55 delegates to the Constitutional Convention “adjourned to a tavern for some rest, and according to the bill they drank 54 bottles of Madeira, 60 bottles of claret, 8 of whiskey, 22 of port, 8 of hard cider and 7 bowls of punch so large that, it was said, ducks could swim around in them. Then they went back to work and finished founding the new Republic.” Note the 55 delegates and 54 bottles of Madeira. Which founder was slacking?

PG, a recent CLS graduate and the only person I know whose Constitutional leanings led her to be an active member of both ACS and the Federalist Society, speculated that Thomas Mifflin – at the time the sitting President of Pennsylvania and a Quaker prior to his expulsion for serving in the Continental Army – was the teetotaler; however, given the amount of drink involved, it's unsurprising that the identity of the true abstainer would be lost to history.
Perhaps it was the drink, but there's so much about the Constitution that's been lost to history, so much that the Founders forgot to tell us about the meaning and the crafting of this founding document:

• Dear Founders, is that a comma, a semi-colon, or a fleck of dirt?


• O Breech-pants-wearing Founders, is the office of the Vice President firmly seated within the executive branch, or is it an extra-constitutional floater, like the extra outfielder in a game of slow-pitch softball?


• O Founders, did you really believe that human nature would permit the loser of the Presidential election to serve as a good Vice-President to the winner?


• Founders, why-oh-why did you decide to capitalize nearly every noun in the Constitution? ...and what's the deal with the handful you didn't capitalize? (...and 1L's: That's a gangbuster note topic, by the way.)


• O Founders, are there secret messages in your tortured and inconsistent spellings?

Ultimately, we just don't know the answers to any of these vital questions, so we're left to make like the founders and drink a little Madeira, claret, whiskey, port and hard cider — maybe that will bring some clarity. (Incidentally, I was told that this event would have a bowl of punch so large that ducks could swim in it. Maybe that's coming later.)

In finishing my toast and finally raising a glass, I want to end with a meditation.

Let's meditate upon how the Constitution would have looked if Ben Franklin had had more creative control over the text. After all, historians report that when Thomas Jefferson sent Franklin a draft of the Declaration of Independence containing the line "We hold these truths to be sacred and undeniable," Franklin returned it to him with the last three words crossed out and replaced by "self-evident." Surely the person responsible for this memorable and meaningful term into the Declaration of Independence could have helped us more with the Constitution. (By the way, for those of you who are measuring the productivity of your lives against the lives of the Founders or choosing your political candidates on the basis of age, please note that Thomas Jefferson was all of 33 years old when he helped draft the Declaration of Independence.)

Now, I happen to know what Franklin would have done if he'd had his way with our overly short & oft-confusing Constitution. He would have included two final clauses.

In fact, I know which clauses Franklin would have inserted.

Truth be told, I find the tension between these two clauses to be roughly analogous to the on-going dialogue that occurs between the Federalist Society & ACS.

The first clause is a quote of Franklin's, taken from Poor Richard's Almanack, 1734. To me, this is the Federalist Society clause: "Be temperate in wine, in eating, girls, and sloth, or the gout will seize you and plague you both."

The second clause does not appear in any published writing of Franklin's, but has been broadly attributed to him. Naturally, the lack of textual basis for this quote (and its feel-good character) makes it more appropriate for ACS. The clause is: "Beer is proof that God loves us and wants us to be happy."

So please join me in raising a glass: Here's to Franklin, to the other Founders, to their strange and wondrous Constitution, to ACS, to the Federalist Society, to being happy, and – above all – to trying our best to avoid the gout.

CHEERS!

Free Publicity = the Dems Not to Lose?

So, Mitt Romney has officially withdrawn from the race for the Republican nomination (or "suspended his campaign," as the saying goes—if anyone can explain that one to me, I'd much appreciate it). His purported reason for doing so was that to remain in the race would "forestall the launch of a national campaign and . . . make it easier for Senator Clinton or Obama to win." [Really, Mitt, "Senator Clinton," but just plain ol' "Obama"?]

I'm pretty sure he's dead wrong. For at least the next month, Clinton and Obama will get free publicity, as they campaign for the couple states voting each week, and pundits endlessly dissect results that are far too close to call. Clinton has proposed four debates between now and March 4—free air time. One of them may even be on Fox News.

How does McCain stay on the air? Debating Ron Paul and Mike Huckabee? Spending his relatively small bank account on national ads? Sporadic appearances on the Daily Show? Living off Ann Coulter's hate?

Wouldn't a far better plan have been for the establishment to prop up Romney as long as possible, to continue to make McCain look principled and thoughtful by comparison? But presumably someone pointed out to Romney the benefits of McCain's quick exit in 2000. Unfortunately for him, he's not a Washington insider, so he will have trouble staying relevant for the next four years.

So while I think McCain is by far the most formidable opponent among a remarkably weak Republican pack, I think it's the Dems to lose at this point. There's so much time for Clinton and Obama to stay above the fold, talking about the issues and tearing into Bush, for the shine to stay on a lonely McCain and delaying his reengagement with the voters.

That's not to say that they won't find a way. They might do McCain's job for him, keeping him the spotlight by focusing on him rather than the issues. They may attack each other too negatively while McCain stays above the fray. Or perhaps most dangerous–and likely–of all, they may call into question the validity of the nomination process itself, by allowing the superdelegates to decide the nominee or suing over the Florida and Michigan primaries.

Any Given Sunday

New York @ 10:36 pm on Super Bowl Sunday, celebrating a shocking NY Giants victory: Cars honking & people yelling.

New York @ 10:36 pm on a normal Sunday: Cars honking & people yelling.

Way to go, Giants!