I Can't Believe That Today Has Come

I'm a fan of the alternate history genre of fiction, because it forces us to look at history as a malleable and flexible thing. Sure, this country averted disaster when the Cuban Missile Crisis was resolved, but what would have happened if it had not been resolved? What would have happened to the world if World War II had resulted in a different outcome, or if the U.S. Civil War had turned out differently?

Looking at major world events and the aftermath they wrought, it is clear that history is a close question. The world that we know is the result of individual conversations that happened (or didn't happen) between people whose actions determined the shape of our reality. Things could very easily have gone another way.

I'm reminded that I think that our world could easily be a vastly different place today because today is the inauguration of Barack Hussein Obama as the 44^th President of the United States. I simply cannot believe that this day has come.

It's as if we've been suddenly pulled into an amateur alternate history that defies all belief. We have, apparently, elected the right person for the right time — a professorial, wise individual with a complex worldview for complicated times. Yet, more amazingly, we have elected an African-American man whose mother was only 18 when he was born, a man whose father was Kenyan and left his mother, a man whose first and last names are so unique to an American ear that Al Sharpton mispronounced them during the 2004 Democratic National Convention, and a man whose middle name evokes fears about a recent U.S. enemy.

I cannot believe today has come.
     I cannot believe today has come.
          I cannot believe today has come.

And it is wonderful.

The Chicago Tribune's Crystal Ballcirca January 2005

On January 20, 2005, Chicago Tribune writer Eric Zorn penned a blog post entitled '08 reasons why Obama will run for president in 2008.

Looking ahead almost 4 years, Zorn observes:

• "Sure, Obama is a huge celebrity now" but his star might fade
• Democrats would not choose Clinton due to her status as a "poisonously polarizing figure"
• Senator John McCain will be too old to run for President in 2008
• "Obama is the Midas of fundraisers" because he had $600k in his campaign fund (Obama's campaign raised $150 million September 2008 alone)

He ends the article with the following:

[Then Obama spokesman Robert] Gibbs denied again Wednesday that Obama will run in 2008.
Don't you believe it.

Thanks, Ryan!

McCain Campaign Now Officially a Joke (Albeit a Dangerous One)

Steve Harvey's comedy routine from a few years back contained a commentary on communications between men and women. In his routine, Harvey famously concluded that men lie when the truth will do.

As the past two weeks have revealed, the same is true of the McCain campaign. They will lie when the truth will do. There's no shame in saying that Sarah Palin visited Alaska National Guard troops when they were stationed in Kuwait, but that – apparently – is not sexy enough. So they said she visited them in Iraq. She has not been to Iraq.

They've become so comfortable lying, the McCain campaign now lies when the truth will do.

Some Heroic Moments for this Independence Day

At some point, our society began holding lawyers in low regard. This cultural contempt goes beyond despising the relatively more affluent or detesting ambulance chasers.

As I navigated my way through law school, it occurred to me that one of the primary sources of frustration against lawyers is our frustration with society itself. Our society – like any developed society – can be a morass of regulations and requirements, limitations that are (at least in theory) designed to protect us from ourselves and others. Since we can't lash out against this faceless system, we choose to vent our frustration at those who seem to guard the gates to this machine.

Although going to law school means choosing to become one of these social pariahs, most (many?) would say it was worth it. On this Independence Day, I want to celebrate a hidden benefit of law school. Although law school's tour of legal history reveals more than a few legal villains, it also uncovers a number of legal heroes.

Here are a couple lawyerly actions that I first learned about in law school and which make me proud to be an American today. The first is heroic for its effect, if not its intent. The latter, for both.

1. President Dwight D. Eisenhower on September 8, 1953: Chief Justice Fred Vinson died on September 8, 1953, after the rehearing of Brown v. Board of Education had been reordered but not heard.
   
   Had Vinson survived to rule on Brown's rehearing, Justice Felix Frankfurter believed there would have been 4 dissenters. According to legal legend, Frankfurter remarked that Vinson's death was "the only evidence I have ever had for the existence of God," for it permitted the nomination of Earl Warren to replace him on the bench.
   
   At Vinson's death, Eisenhower kept a promise to then California governor Earl Warren to nominate him to the first available seat on the Supreme Court. With Warren at the helm, the Supreme Court unanimously ruled in Brown's rehearing that separate but equal facilities were unconstitutional.
   
   Though Eisenhower would go on to consider his nomination of Warren to be a mistake, Eisenhower's promise to Warren led to the creation of the Warren Court and the dramatic expansion of civil rights in the decades that followed.


2. Senator Clair Engle on June 10, 1964: The Civil Rights Act of 1964 was filibustered in the Senate for 57 days and its passage looked uncertain.
   
   California Senator Engle, who had been struggling with brain cancer since 1963, returned to the Senate floor on June 10, 1964, to participate in the vote to end debate. Unable to speak due to his advanced cancer, Senator Engle pointed to his eye to indicate "aye" as his name was called in the roll-call vote. Engle's vote ultimately was one of the deciding votes, as cloture was met, ending the filibuster and permitting the Civil Rights Act of 1964 to become law.
   
   Clair Engle died one month later.

Goodnight nobody Goodnight mush

I think it's my current familiarity with the original that makes this parody seem so entertaining. There's a look-inside preview of the book on the site and they've done a good job of copying the meter and the imagery of the children's classic.

This book appears to skirt the unprotected realm of satire, and I'm not sure that a suit on the book would come out differently than Dr. Seuss Enterprises v. Penguin Books, 109 F.3d 1394 (9th Cir. 1997), where the court found that a book using the imagery of Dr. Seuss to riff on the O.J. Simpson trial constituted copyright and trademark infringement. Alternatively, a court might find the send-up of Goodnight Moon to be direct enough to qualify as a fair use parody under U.S. copyright laws.

If there were a lawsuit pitting the owners of Goodnight Moon against Goodnight Bush, it wouldn't be the first time that disharmony visited the Goodnight brand. The most recent scrape occurred in 2005, when HarperCollins faced a minor bookseller revolt after the 60^th anniversary edition of the book included an image of illustrator Clement Hurd on the book jacket with a cigarette airbrushed out of his hand.

Putting Obama's Portland Rally in Perspective

According to MSNBC, Obama's rally in Oregon yesterday attended by 75,000 supporters was not the largest US political rally ever. That honor goes an 80,000 person rally held by Kerry/Edwards back in the 2004 campaign.

The big difference? The Kerry/Edwards rally was one week before the general election. Yesterday's Obama rally was 169 days before the general election.

It's not going out on a limb to say that Democratic rallies this year are only going to get bigger — a LOT bigger.

Obama in the Tacky, Tacky Driver's Seat

When Michigan held its Democratic primary on January 15 of this year, Barack Obama did not appear on the ballot. After Michigan breached party protocol when it moved its primary ahead in the season, Obama (along with Richardson, Biden, and Edwards) removed his name from the ballot. Although Clinton, Dodd, Kucinich, and Gravel appeared on the January 15 ballot, 40.1% of Michigan Democrats voting in this voided primary preferred someone else, voting for Uncommitted.

If you accept the tortured popular vote math offered these days by the Clinton campaign – math that requires you to add count the votes from both Florida and Michigan (without adding any portion of Uncommitted to Obama) – Clinton leads in the popular vote. If you don't engage in this intelligence insulting exercise, Obama leads by every meaningful metric.

Of course, Obama's insurmountable lead doesn't sell ads for news outlets. And it won't stop ABC from creating a photo illustration with Obama losing to Hillary in an effete half-purple, half-pink Indy car:

Volunteers

When it comes to the Iraq War, I try to have sympathy for the Bush Administration.

Conspiracy theories aside, the planners of Iraq War – even if they are today dashing away from claiming responsibility for their actions – did not hope for a bungled war. These planners wanted a war where the U.S. would achieve quick victory, a war where our national self-interest would be improved. (I'll turn it back to the conspiracy theorists regarding what that self-interest was: Cheaper oil? Permanent U.S. military bases in the Middle East? The removal of Saddam Hussein and his WMDs?)

I try to have sympathy for these war planners, but then Dick Cheney – who appears to be the central figure of the entire Iraq War effort – starts talking, and my ability to have this sympathy is destroyed.

The recent public display of heartlessness by Dick Cheney concerning the pain that the Iraq War has wrought in the U.S. (...to say nothing of the much greater pain it has heaped upon the Iraqi people) literally takes my breath away. In a pair of interviews over the past week, Cheney provides a shocking window into his psyche.

So?
Last week, Cheney remarked "So?" when confronted by an interviewer with a poll indicating the public's broad current opposition to the Iraq War. Cheney claimed that it was important to not "be blown off course by the fluctuations in the public opinion polls."

Of course, today's broad opposition to the Iraq War is hardly a "fluctuation." Polls on Iraq have indicated majority opposition against the war from late 2005 onward. A fluctuation? Maybe on a clock that is tracking time on a geologic scale.

Much as I hate this "So?" comment, our Constitution has set the bar for impeachment inadvisably high for people like Cheney. However strongly critics of the President and Vice President might argue for their impeachment, until Bush et al. do something that looks like "Treason, Bribery, or other high Crimes or Misdemeanors" in the eyes of today's Supreme Court, our best hope is to use the other machinery of the federal government to limit the executive branch's influence for the remainder of Bush's lame duck term.

In the end, I hate Cheney's "So?" attitude, but I understand where he's coming from. We elected them. Barring impeachment, we're stuck with them. Let's demand Congress exercise its power to limit their influence. Someone has to be the least popular Vice President ever, and Cheney appears content to play the role.

Yet, I was not compelled to write about "So?" It's Cheney's comment from today that compels me to write.

They Volunteered
Confronted in an interview with the fact that the U.S. has just passed the grim milestone of 4,000 Americans dead in the Iraq War, Cheney reminded his interviewer several times that these soldiers volunteered.

Reading the article, I'm simply awestruck by how jaw-droppingly heartless Cheney comes across. He rationalizes that whatever burden communities, spouses, relatives, friends, and children bear at the loss or injury of a family member, this burden is somehow greatly eased by the fact of our all-volunteer force.

This August, I will have been writing this blog for 5 years. Over the course of writing 800 or so blog posts during this time, I've tried to develop a tone that is less confrontational than when I started blogging. Writing in a manner that tries (and, of course, fails) to see issues in shades of gray has been a continual challenge, but it's worth it — especially in developing my ability to talk about issues with people with whom I strongly disagree.

Cheney's words erase these shades of gray: Vice President Cheney, you have said and felt a horrible thing. You (and those around you?) have created a rationalization that helps you sleep at night. You've shared this rationalization with us, and it is disgusting.

As with "So?", Cheney's words carry a kernel of truth. We have an all-volunteer army. The military interests of our nation are protected by volunteers in a way that they weren't at Antietam, at Cold Harbor, on Omaha Beach, or in the Ardennes.

And let's ignore that our military draws heavily on disadvantaged populations and minorities to fill its ranks. Let's grant Cheney that, yes, we have a "volunteer" force.

Being a conscript is not the same thing as being a volunteer; however, the military requires that ALL soldiers follow orders. When rank and file soldiers confront death, even certain death, they do so at the order of another. It doesn't matter whether they're a volunteer or a draftee. An ordered military presumes – it demands – that a soldier abandon a significant portion of his or her free will in the name of achieving an objective. They must trust the system and the objective.

Iraq is a failed objective, and our continued project in Iraq is driven as much by the well-understood theory of Irrational Escalation as it by an effort to achieve ever-shifting military and geopolitical objectives.

Our soldiers volunteered to join the military. And then they were asked to do the impossible in Iraq, all the while staying in theater longer than any other soldiers in US history. They have obeyed orders and fought bravely.

That they fight and die as volunteers should do nothing to help us sleep better at night.

Volunteers & Conscripts. Side By Side.

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!

The Russians Get Fyodor Dostoevsky, We Get Pat Robertson

Historians have long suspected that Fyodor Dostoevsky, a Russian novelist of immense talent, had temporal lobe epilepsy. This condition – which also appears to have afflicted Lewis Carroll, Edgar Allan Poe, Gustave Flaubert, Philip K. Dick, & Sylvia Plath – can cause the individual to feel a euphoric connection with the divine, to experience an ecstatic array of visual images, and it may be implicated by some people who report UFO or other paranormal experiences.

I wonder if Pat Robertson has something like temporal lobe epilepsy.

You see, Pat's a wonder to me. I'm astonished that there is an individual who can time and again intrude upon our national consciousness, say something crazy, and then retreat back to his relative obscurity only to emerge later in the year. Here's like a hibernating bear of nuttiness. For a chronicle of Pat's previous predictions, threats, and promises, click here.

Of late, God's been talking to Pat. What's He/She/It been saying, you ask? Well, a couple things.

First, God told him the outcome of the upcoming U.S. Presidential election. Sadly, Pat's not going to tell us who the victor shall be, but if he is at all like Biff in Back to the Future Part II, we'd expect Pat to increase his already massive wealth by betting on the election.

Second, God has informed Robertson that China is going to by-and-large convert to Christianity. Since God didn't provide a timeline to Robertson, we'll just have to wonder when the miraculous mass conversion of China will occur. Tomorrow? How about 2010? Tell us, Pat. Please.

God told me you should tell us.

(1) Clink.(2) Eye Contact.(3) Sip.

Given the myriad protocols governing interactions with members of the British Royal family, it was a given that President Bush was going to insult the Queen in one way or another during last night's state dinner.

Most journalists have focused on Bush's speech gaffe earlier in the day, where he implied the Queen was over 200 years old. At this point, Bush's malapropisms and oratory blunders should surprise no one, so I'm not sure why this most recent fumbling is even news.

More frustrating was this scene:


It appears that the head of the Executive Branch does not know Thing One about toast etiquette. To keep it simple, let's just review the culmination of the average toast:

1. Touch glasses.
2. Eye contact with fellow toaster.¹
3. Sip.

Immediately after clinking glasses with Her Majesty, Bush looked away, set his glass on the table and looked down, leaving the Queen to feel clearly awkward and reminding us that, of late, the Special Relationship has become the Especially Awkward Relationship.

Perhaps our ever-recovering President found himself with a glass of wine in hand and didn't want to consume any. This, of course, is a laudable reason to avoid sipping, but doesn't forgive the break in etiquette. Next time you toast a titular monarch, Mr. President, remember that it's perfectly appropriate to toast with a non-alcoholic beverage.

---

¹ During my days working with some young Dutch entrepreneurs during the dot-com bubble, I was informed of a developing toasting custom in Holland where the toasters intentionally look away, mocking the dominant custom. In this case, I'll assume that Bush wasn't mimicking Dutch hipsters.

Romney on Robertson: He's A-OK (Psst! GOP Base — is That the Right Answer?)

Mitt Romney, the presidential candidate prepared to believe whatever it takes to win the 2008 GOP nomination, just gave the commencement address at Pat Robertson's Christian Broadcasting Network School of Law Regent "University." In his remarks, Romney noted Robertson's "dedication to strengthening and then nurturing the pillars of this community and our country."

Think Progress responded to Romney's Robertson shout-out by detailing a number of Robertson's positions and predictions.

Think Progress's list of notable Robertson statements is limited. For a larger set of Robertson foibles, check out this blog's Pat Robertson channel.

Abraham Lincoln on Executive Options for Unauthorized, Preemptive War

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

On October 10 and October 11, 2002, the House of Representatives and the Senate, respectively, passed a joint resolution that came to be known as the Authorization for Use of Military Force Against Iraq Resolution of 2002. This resolution, signed by President Bush on October 16, 2002, specifically authorized the President to use our armed forces to "(1) defend the national security of the United States against the continuing threat posed by Iraq; and (2) enforce all relevant United Nations Security Council resolutions regarding Iraq." At the time of the resolution, the Executive Branch wanted a resolution authorizing military action throughout the Middle East, however, the Joint Resolution only authorizes military action in Iraq.

Current bellicose bluster from administration officials, direct White House involvement with intelligence assessments, military brass presentations, and aggressive troop movements in the Persian Gulf indicate that the Executive Branch may be interested in provoking a military or paramilitary response from Iran.

Beyond merely provoking an Iranian response, other sources close to the current administration claim that the Executive Branch may contemplate a preemptive, unprovoked strike against Iran, even without Congressional authorization.

If the Executive Branch's behavior were to constitute a first strike in a shooting war between the U.S. & Iran, Abraham Lincoln would likely consider the behavior unconstitutional at best and anti-republican at worst. He wrote this letter to his law partner, William Herndon, shortly after the culmination of the Mexican-American War. In an earlier letter, Herndon had argued that the President could initiate war against Mexico without Congress's prior authorization.

WASHINGTON, February 15, 1848.

DEAR WILLIAM:--Your letter of the 29th January was received last night. Being exclusively a constitutional argument, I wish to submit some reflections upon it in the same spirit of kindness that I know actuates you. Let me first state what I understand to be your position. It is that if it shall become necessary to repel invasion, the President may, without violation of the Constitution, cross the line and invade the territory of another country, and that whether such necessity exists in any given case the President is the sole judge.

Before going further consider well whether this is or is not your position. If it is, it is a position that neither the President himself, nor any friend of his, so far as I know, has ever taken. Their only positions are--first, that the soil was ours when the hostilities commenced; and second, that whether it was rightfully ours or not, Congress had annexed it, and the President for that reason was bound to defend it; both of which are as clearly proved to be false in fact as you can prove that your house is mine. The soil was not ours, and Congress did not annex or attempt to annex it. But to return to your position. Allow the President to invade a neighboring nation whenever he shall deem it necessary to repel an invasion, and you allow him to do so whenever he may choose to say he deems it necessary for such purpose, and you allow him to make war at pleasure. Study to see if you can fix any limit to his power in this respect, after having given him so much as you propose. If to-day he should choose to say he thinks it necessary to invade Canada to prevent the British from invading us, how could you stop him? You may say to him,--"I see no probability of the British invading us"; but he will say to you, "Be silent: I see it, if you don't."

The provision of the Constitution giving the war making power to Congress was dictated, as I understand it, by the following reasons: kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This our convention understood to be the most oppressive of all kingly oppressions, and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us. But your view destroys the whole matter, and places our President where kings have always stood. Write soon again.

Yours truly,
A. LINCOLN.

Letter from Abraham Lincoln to William Herndon (Feb. 15, 1848), in The Writings of Abraham Lincoln - Volume 2: 1843-1858 (Arthur Brooks ed., 1923) (emphasis added).

Hat tip to Andrew Sullivan.

Nixon Coin Enthusiasts Will Have to Wait

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

New U.S. dollar coins featuring former Presidents go into circulation this week. The coins will feature the Presidents in order, 4 per year.

Unfortunately for Nixon enthusiasts, this means that the 37^th President of the United States will not grace a $1 coin until 2016.

Ignoring Ambition Checking Ambition

At the founding of our country, James Madison felt confident that a system of checks and balances between different branches of the federal government would work, because "[a]mbition must be made to counteract ambition." Neither Madison, nor the founders generally, anticipated the role that dominant political parties would play in harmonizing the goals of the various branches when those branches were instructed to toe the party line.

Today, Senator Chuck Hagel (R-Ne) is valiantly and eloquently standing up to the Bush surge-scalation effort, vocally opposing the White House and demanding that his fellow Senators take a position. In chiding his fellow colleagues into being clear about where they stand on Iraq, Hagel offered this:

What do you believe? What are you willing to support? What do you think? Why were you elected?

If you wanted a safe job, go sell shoes. This is a tough business. But is it any tougher, us having to take a tough vote, express ourselves and have the courage to step up on what we’re asking our young men and women to do?

I don’t think so.

If you wanted a safe job, go sell shoes is probably the most concise, memorable statement about political responsibility that I've heard during my adult life.

So how does the neoconservative establishment respond to Hagel's ambition? By ignoring it. In the 58 posts and 8,604 words that National Review editors have written today on their blog, the word "Hagel" appears exactly once — and then, only in reference to an immigration bill he co-sponsored last year.

Until the authors of the current debacle — whether it be the intellectual authors at the National Review or the strategic authors like Dick Cheney — learn to address their critics in a forthright and authentic manner, it will be impossible for them to repair any of the erosion that has so completely undermined their credibility.

A Toast to the American Constitution Society, the Federalist Society, and the Agreed-upon Constitution

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

By popular demand, here's the toast from the Columbia Law School's ConLaw Mixer, held on January 23, 2007. 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.

When ACS President Jon Sherman asked me to say a few words for this event, I initially thought I’d focus on the differences in how the American Constitution Society and the Federalist Society approach the Constitution.

I mean, every ACS member knows that the members of the Federalist Society look longingly at the days before pasteurization — that they fancy themselves as yeoman farmers on the New Jersey frontier where they dream of a world in which interchangeable parts will someday be a reality.

Similarly, every FedSoc member knows that when the members of the American Constitution Society hear someone talking about "penumbras formed by emanations," they promptly instruct the bartender that they’ll have what that guy’s having.

. . . but these differences are minor. Today, let’s celebrate the similarities — of which there are many. I’ve spent the past couple days pouring over this document, locating areas of significant agreement. I’ve found three areas of broad agreement about the Constitution. Interpretations upon which we can all agree, areas that we can all toast.


AREA #1: We agree on many of the powers assigned either to the states or the various branches of our federal government.

What does this mean?

For the States, we shall not rest until states stop granting Letters of Marque and Reprisal and until they stop granting Titles of Nobility. We insist they settle their past debts using gold or silver.

For the Congress, we demand that it not shirk its duty to establish post Roads, to erect needful Buildings in D.C., and — as stated in Article 1, Section 5, clause 2 and reiterated the 20^th Amendment — that it meet at least once every year.

For the Judiciary, we insist it remain vigilant to the needs of justice, that it insure no Attainder of Treason work Corruption of Blood, and that no one shall not be convicted of Treason without a rigorous trial consisting of at least 2 witness presenting evidence against her.

Most importantly, we ask that the judiciary fully enforce the 11^th Amendment, whether that amendment actually means what it says . . . or whether actually every word of that amendment means the exact opposite of what it appears to mean.

Finally, concerning scope and appropriate exercise of Executive power, we… you know what, let’s just move on to Area #2.


AREA #2: I know I speak for everyone in this room when I say we supports the passage of the original 1^st Amendment — the Congressional Apportionment Amendment.

As many of you know, on September 25, 1789 the 1^st Congress introduced 12 — not 10 — amendments to the states as the Bill of Rights.

The original 2nd Amendment — barring Congress from granting itself immediately effective pay raises — became the 27^th Amendment on May 20, 1992. However, the original 1^st Amendment was only ratified by 11 states — 2 shy of passage at the time. Since Coleman v. Miller makes clear that all amendments are considered pending before the state indefinitely unless Congress establishes a deadline within which the states must act, only 27 states are now needed to ratify this amendment for its passage. Hey 27 states, pass the original 1^st Amendment.

If passed, the Congressional Apportionment Amendment would establish guidelines for the size of the House of Representatives. The Amendment’s math is a little hazy, but it ends with this important instruction: "there shall not be . . . more than one Representative for every 50,000 persons."

With a present US population of more than 300 million people, this introduces the possibility of a 6,000-member House of Representatives. I know I speak for everyone here when I say that if there’s one thing that the august body of the House needs to be truly effective, it’s to have 5,565 members added to its ranks.


In closing, Area #3 is really a pledge:

AREA #3: We pledge from this day forth that we shall write like the authors of our Constitution.

Not only shall we employ capitalization seemingly at random and use either British, tortured, or inconsistent spelling whenever possible, but — like the Constitution’s signatories — we shall sign our name to documents using absurd abbreviations.

I mean, why grace the document with your full name — it’s only a Constitution? These people, these founders, signed the Constitution with all the formality of someone signing a traffic ticket. William Blount went with the predictable "Wm." but William Livingston chose the path of a hipster, abbreviating "Wil:" Jonathan Dayton became "Jona:" Robert Morris became "Robt." . . . and anyone who has studied with Professor Hamburger will know who I’m talking about when I tell you that one of them merely signed "Gouv."

5 of the signatories determined that their signatures constituted little micro-sentences, worthy of ending with a period. We, too, shall end our signatures with periods. From this day forward, if you see a document signed "And: Brad:." know that it is me.


As you can see folks, our points of agreement are broad and substantial. So here’s to our agreements and our differences, here’s to our faculty and our constitutional societies, and here’s to the wig-and-tight-pants-wearing founders who made it all possible. Cheers!

As a Fellow Morning Person, I've Got Some Sympathy

Then again, I'm not the most powerful person in the the world.

As reported by the New York Times:

At President Bush’s ranch in Crawford, Tex., a White House spokesman, Scott Stanzel, said Mr. Bush had gone to bed before the execution took place and was not awakened. Mr. Bush had received a briefing from his national security adviser Friday afternoon, when he learned the execution would be carried out within hours, Mr. Stanzel said. Asked why Mr. Bush had gone to sleep before hearing the news, he said Mr. Bush “knew that it was going to happen.”

Hussein's execution was widely reported (here and in Iraq) at 6:10 am Baghdad time, which is 9:10 pm Crawford, Texas time. In 2004, President Bush fell asleep during the first half of the Super Bowl, missing the Janet Jackson brouhaha.

Pelosi '07

I think I'm going to wait until the T-shirt is available.
For the impatient, you can order your Pelosi '07 bumper stickers today.

Wikipedia: U.S. Presidential Line of Succession
Wikipedia: Impeachment in the U.S.