Anybody besides me disgusted and discouraged with the healthcare debate?

Don't get me started.... Let's just limit the topic for the moment to the entire idea that 41 senators can essentially destroy legislation a majority of Americans AND a majority of Congress want. This is egregiously anti-democratic. Harold Meyerson in his "The Do Nothing Senate" column in the Nov. 11 Washington Post describes the problem well:

"A catastrophic change has overtaken the Senate in recent years. Initially conceived as the body that would cool the passions of the House and consider legislation with a more Olympian perspective, the Senate has become a body that shuns debate, avoids legislative give-and-take, proceeds glacially and produces next to nothing. ... With each passing day, the Senate becomes more of a mockery of the principle of majority rule -- democracy's most fundamental precept."

So it's time to destroy the filibuster. (See, e.g., Chris Bowers' "Open Left" blog of November 10.) It used to be that the filibuster was used only rarely; now it is used on virtually any legislation - and this outrageously undemocratic practice is standing in the way of Progress.

Yesterday's announcement by Senate Majority Leader Harry Reid that he will include a government-run insurance plan (a public-option) in the health care bill that will now be debated in the Senate is excellent news.

Contrary to naysayers' arguments, including a public option does nothing to limit the ability of private insurers to compete - unless by "competition" one means the ability to impose unfair conditions on customers because they have nowhere else to turn under the current oligarchy.

The bottom-line is that a government-run public option would keep the private insurers honest, resulting in better, less expensive coverage for all.

Now the Democrats need to put aside their differences to get behind and pass a plan with the public option. One interesting aspect of Reid's proposal would allow individual states to "opt-out," & refuse to participate in the public option - a perfectly reasonable provision that respects America's federalist structure. This could lead to a very interesting side-show in the states - how many citizens would vote with their feet and leave states that opted out??

Sure, it would be nice if a Republican or two (or even more) would take off their partisan blinders for a moment and consider what Americans truly want and need instead of playing the same old politics, but given the experience of the recent past we won't hold our breath - so now it's up to the Senate Democrats to do the right thing and pass this bill.

The premise of my forthcoming book from Cambridge University Press, Radicals in Their Own Time: Four Hundred Years of Struggle for Liberty and Equal Justice in America,* is that the efforts (mostly unwelcomed, at the time) of certain individuals throughout the nation's history have played huge roles in first identifying, then guaranteeing the freedoms we enjoy today. In this book I focus on the lives of five so-called "free radicals": Roger Williams, Thomas Paine, Elizabeth Cady Stanton, W.E.B. Du Bois and Vine Deloria.

Yesterday's column by Bob Herbert in the NY Times, "Changing the World," speaks to the mind-set of these sorts of people:

"The tendency now is to assume that there is little or nothing ordinary individuals can do about the conditions that plague them.

"This is so wrong. It is the kind of thinking that would have stopped the civil rights movement in its tracks, that would have kept women in the kitchen or the steno pool, that would have prevented labor unions from forcing open the doors that led to the creation of a vast middle class....

"Being an American has become a spectator sport. Most Americans watch the news the way you’d watch a ballgame, or a long-running television series, believing that they have no more control over important real-life events than a viewer would have over a coach’s strategy or a script for 'Law & Order.'

"With that kind of attitude, ... Rosa Parks would have gotten up and given her seat to a white person, and the Montgomery bus boycott would never have happened....

"The nation’s political leaders and their corporate puppet masters have fouled this nation up to a fare-thee-well. We will not be pulled from the morass without a big effort from an active citizenry, and that means a citizenry fired with a sense of mission and the belief that their actions, in concert with others, can make a profound difference.

"It can start with just a few small steps. Mrs. Parks helped transform a nation by refusing to budge from her seat. Maybe you want to speak up publicly about an important issue, or host a house party, or perhaps arrange a meeting of soon-to-be dismissed employees, or parents at a troubled school.

"It’s a risk, sure. But the need is great, and that’s how you change the world."

Individuals like Williams, Paine, Cady Stanton, Du Bois and Deloria had plenty of reason to be discouraged - and they sometimes were, to the point of despondency. They bent, but they didn't break - and they ended up changing the world.

Who will be the free radicals remembered from our current era?

* Release date: summer/fall 2010

LAND: The week in review Jan.30- Feb.05Source: Liberty Action News DigestWe mourn the passing of two quite different activists this week ... Coretta Scott King [1927-2006] and Stew Albert [1939-2006]...free at last.In other news, NH residents reject the 'Lost Liberty Hotel', anti-war activist Cindy Sheehan is arrested at Bush's State of the Union address ... for the terrible crime of wearing a

In "Roosevelt, the Great Divider" in yesterday's New York Times, Jean Edward Smith explained that much of the meaningful progressive reform accomplished during the New Deal was done by a pugnacious president willing to exercise his majority in Congress even though he knew he would be highly criticized by his opponents.

“Never before in all our history have these forces been so united against one candidate as they stand today,” Franklin Delano Roosevelt said on national radio before the 1936 election, Smith recalls. “They are unanimous in their hatred for me — and I welcome their hatred.”

When he was seeking to make major progressive reform, FDR did not waste his time trying to work with the deeply entrenched obstructionist minorities interested only in maintaining an unjust status quo. He did not consult giant utilities, for example, when he sought to create the Tennessee Valley Authority which would provide affordable electricity throughout the poor South. He did not ask for the permission of Wall Street when he proposed the Securities and Exchange Commission to curb greed. Had he caved to the loud minority who believe that government has no role in providing a social safety net, we would have no Social Security. His arguments for maximum hours and minimum wage laws and the right to bargain collectively were over the heated objections of American business. And, to show that it was not always traditionally conservative vested interests that he faced down, organized labor was vociferous in its objection to the Civilian Conservation Corps because of the low wages paid by the corps.

In short, Smith explains, "majority rule, as Roosevelt saw it, did not require his opponents’ permission." He assuaged his Democratic colleagues to maintain his majorities, but "his Republican opponents were relegated to the political equivalent of Siberia.... [He] lambasted the 'economic royalists' who had gained control of the nation’s wealth. To Congress he boasted of having 'earned the hatred of entrenched greed.' In another speech he mocked 'the gentlemen in well-warmed and well-stocked clubs' who criticized the government’s relief efforts.... Roosevelt understood that governing involved choice and that choice engendered dissent. He accepted opposition as part of the process."

By contrast, President Obama's "fixation on securing bipartisan support for health care reform suggests that the Democratic Party has forgotten how to govern and the White House has forgotten how to lead." Smith suggests "[i]t is time for the Obama administration to step up to the plate and make some hard choices. Health care reform enacted by a Democratic majority is still meaningful reform. Even if it is passed without Republican support, it would still be the law of the land."

Really, what does Obama have to lose? Face it: the Right, marching to the tune of the likes of Rush Limbaugh, Glenn Beck, Bill O'Reilly, and Michael Steele, is never going to play ball. Their main agenda is political - whatever it takes to bring Obama down, they're for. So Obama might as well stand up, like FDR, and say, "to heck with 'em - we're going to pass reform with teeth that will create the sort of humane society of which we are all worthy."

What does that mean? As David Brooks suggests in his column today, "Let's Get Fundamental": "There are many people telling [President Obama] to go incremental. They’re telling him to just enlarge the current system a bit and pay for it by pounding down a few Medicare fees. But did Barack Obama really get elected so he could pass the Status Quo Sanctification and Extension Act?

"This is not the time to get incremental. It’s the time to get fundamental. Reform the incentives. Make consumers accountable for spending. Make price information transparent. Reward health care, not health services. Do what you set out to do. Bring change."

Much of what has made America great was brought about by progressive legislation. If President Obama wants to be a great president who makes lasting, meaningful progressive change, he should stand up, be brave (in his own way, if not in the outright combative manner of FDR), and commit to a strong progressive plan. Accept that the ever-present regressive 40% of American society will bitch and moan about it (but of course they will take full advantage of its benefits once available) - they'll never change, so might as well just move forward despite them.

Last Thursday the Ninth Circuit Court of Appeals re-heard oral arguments in the case of Nordyke v. King (discussed here previously), regarding whether the Fourteenth Amendment incorporates the Second Amendment to apply to the states.

As reported Friday on the Constitutional Accountability Center's "Text and History Blog,"

"Just a few hours after the 11-judge en banc panel heard argument, Chief Judge Alex Kozinski issued an order holding off on further consideration of the case until the Supreme Court disposes of three outstanding petitions for certiorari in similar cases –McDonald v. City of Chicago (No. 08-1521), in which CAC [and law professors Richard Aynes, Jack Balkin, Randy Barnett, Michael Curtis, Michael Lawrence, and Adam Winkler] filed an amicus brief urging Supreme Court review; National Rifle Ass’n v. City of Chicago (No. 08-1497), the companion case to McDonald, also out of the Seventh Circuit; and Maloney v. Rice, (No. 08-1592), the comparable New York “numchucks” case coming out of the Second Circuit. All three of these petitions present challenges to local laws restricting the sale or possession of arms, and are asking the Court to determine whether, and if so how, the individual right to bear arms is “incorporated” against state and local action.

"These three petitions are currently scheduled to be considered at the Supreme Court’s so-called “long conference” on September 29. The Court is expected to announce its decision on whether to hear the cases soon thereafter.

"The Ninth Circuit’s action suggests that the Supreme Court should not wait any longer for the Circuit courts to weigh in on the incorporation question. So far, both the Second and Seventh Courts have found no incorporation, citing binding Supreme Court precedent, thus there is technically no “split” on the matter. While the Court frequently waits until a pronounced split has developed among the federal circuit courts before granting review, here, the lower courts have indicated that they feel this is a matter for the High Court to decide."

Word just in that the U.S. Supreme Court has granted certiorari in (i.e., decided to hear) the McDonald v. Chicago case discussed here previously - and, most importantly, did not appear to have limited the arguments to due process, as Chicago had suggested.

Specifically, here's how the issue is framed in today's order (scroll down to Docket No. 08-1521): "Whether the Second Amendment is incorporated into the Due Process Clause or the Privileges or Immunities Clause of the Fourteenth Amendment so as to be applicable to the States, thereby invalidating ordinances prohibiting possession of handguns in the home."

Please forgive the momentary gloat, but this is precisely the question raised (which my thesis answers in the affirmative) in my 2007 Missouri Law Review article, entitled (in language virtually identical to the Court's stated issue): "Second Amendment Incorporation Through the Fourteenth Amendment Privileges or Immunities and Due Process Clauses."

So, the Privileges or Immunities argument we've been pushing, for so long, is ON in the Supreme Court. This is huge.

In her column last Sunday, "Fie, Fatal Flaw," Maureen Dowd makes a good point that President Obama does not want to compromise so much that his ideals get blurred out of recognition.

Quoting Leon Wieseltier in the New Republic, she comments: “'The demotion of human rights by the common-ground presidency is absolutely incomprehensible. The common ground is not always the high ground. When it is without end, moreover, the search for common ground is bad for bargaining. It informs the other side that what you most desire is the deal — that you will never acknowledge the finality of the difference, and never be satisfied with the integrity of opposition. There is a reason that ‘uncompromising’ is a term of approbation.'"

Dowd continues, "F.D.R. asked to be judged by the enemies he had made. But what of a president who strives to keep everyone in some vague middle ground of satisfaction or dissatisfaction, without ever offending anyone?

"F.D.R. asked to be judged by the enemies he had made. But what of a president who strives to keep everyone in some vague middle ground of satisfaction or dissatisfaction, without ever offending anyone?

"White House advisers don’t seem worried yet that Obama’s transformational aura could get smudged if too much is fudged. They say it is the normal tension between campaigning on a change platform and actually accomplishing something in office.

"Yet Obama’s legislative career offers cautionary tales about the toll of constant consensus building.

"In Springfield, he compromised so much on a health care reform bill that in the end, it merely led to a study. In Washington, he compromised so much with Senate Republicans on a bill to require all nuclear plant owners to notify state and local authorities about radioactive leaks that it simply devolved into a bill offering guidance to regulators, and even that ultimately died. Now the air is full of complaints that Obama has been too cautious on health care, Afghanistan, filling judgeships, ending “don’t ask, don’t tell,” repealing the Defense of Marriage Act and rebuilding New Orleans; that he has conceded too much to China, Iran, Russia, the Muslim world and the banks."

For the President to fulfill his promise, every now and then he needs to take a stand on core principle - especially when we're talking about human rights. But Obama appears to be all-too-ready to compromise even there. As 73-year old former Czech president Vaclev Havel said recently about Obama's caving to Chinese dictators by failing to meet with the Dalai Lama during his recent visit to Washington, “It is only a minor compromise. But exactly with these minor compromises start the big and dangerous ones, the real problems.”

Following from a couple amicus curiae (friend of the court) briefs in cases before the Ninth Circuit(Nordyke v. King) and Seventh Circuit (McDonald v. Chicago), an amicus brief filed by the Constitutional Accountability Center and signed by six law professors (Richard Aynes, Jack Balkin, Randy Barnett, Michael Curtis, Adam Winkler and I) was filed on July 10 in the U.S. Supreme Court. It is available here.

The brief asks the Court to take this case (ie, grant certiorari), in order to clarify the misunderstandings that have existed ever since 1873, when the Court decided the SlaughterHouse Cases, about the scope of the fourteenth amendment privileges or immunities clause. The brief asserts, based on persuasive historical evidence, that the Court got it wrong in SlaughterHouse when it gave the privileges or immunities clause a very narrow reading; instead, the history suggests it was intended to apply broadly to apply the Bill of Rights (and more) to the States.

My last post described the amicus brief filed by the Constitutional Accountability Center and signed by six law professors, including myself. Here is a comment on the brief and its signers from the popular legal blog, The Volokh Conspiracy.

In a column entitled "How We Can Achieve Bipartisan Health Reform" in today's Washington Post, Senators Ron Wyden and Robert Bennett describe the bipartisan approach to healthcare reform that offers the best hope for getting something done on this contentious issue.

Writing for 12 senators from both sides of the aisle (including Sens. Debbie Stabenow (D-Mich.), Ted Kaufman (D-Del.), Daniel K. Inouye (D-Hawaii), Mary Landrieu (D-La.), Joseph I. Lieberman (I-Conn.), Bill Nelson (D-Fla.), Judd Gregg (R-N.H.), Michael D. Crapo (R-Idaho), Lindsey O. Graham (R-S.C.) and Lamar Alexander (R-Tenn.)), they rightly state that "It's time to stop trying to figure out what pollsters say the country wants to hear from us and focus on what the country needs from us. The American people can't afford for Congress to fail again."

Here are some of the details:

"Democratic activists have long campaigned for universal coverage and quality benefits. Republican activists zero in on empowering individuals and bringing market forces to the health-care system. Our approach does both. In our discussions on the Healthy Americans Act, each side gave a bit on some of its visions of perfect health reform to achieve bipartisanship.

"The Democrats among us accepted an end to the tax-free treatment of employer-sponsored health insurance; instead, everyone -- not just those who currently get insurance through their employer -- would get a generous standard deduction that they would use to buy insurance -- and keep the excess if they buy a less expensive policy.

"The Republicans agreed to require all individuals to have coverage and to provide subsidies where necessary to ensure that everyone can afford it. Most have agreed to require employers to contribute to the system and to pay workers wages equal to the amount the employer now contributes for health care. The Congressional Budget Office has reported that this framework is the only one thus far that bends the health-care cost curve down and makes it possible for the new system to pay for itself. It does this by creating a competitive market for health insurance in which individuals are empowered to choose the best values for their money and by cutting administrative costs and spreading risk across large groups of Americans.

"First, we allow all Americans to have the same kind of choices available to us as members of Congress. Today, more than half of American workers who are lucky enough to have employer-provided insurance have no choice of coverage. Members of Congress who enroll their families in the Federal Employees Health Benefits Program often have more than 10 options. This means that if members of Congress aren't happy with their family's insurance plan in 2009 or insurers raise their rates, they can pick a better plan in 2010. Our plan would give the consumer the same leverage in the health-care marketplace by creating state-run insurance exchanges through which they can select plans, including their existing employer-sponsored plan.

"Beyond giving Americans choices, our approach also ensures that all Americans will be able to keep that choice. We believe that at a time when millions of Americans are losing their jobs, members of Congress must be able to promise their constituents that "when you leave your job or your job leaves you, you can take your health care with you." Our approach ensures seamless portability."

Good stuff. Hopefully Congress can see its way clear, past all of the millions of dollars of "donations" from the healthcare industry (more like bribes - the old saying applies here, that if in a baseball game the players gave the umpires money we'd call it a bribe; but if the same happens in politics we call it a campaign donation), to do what a strong majority of the American people want and which is morally right - provide the opportunity for good healthcare insurance to all Americans at a reasonable price.

Wyden and Bennett conclude:

"Our point is not that our framework is the only way to reform the system or to reach consensus. But our effort has shown that it is possible to put politics aside and reach agreement on reforms that would improve the lives of all Americans. Insisting on any particular fix is the enemy of good legislating. A package that will entirely please neither side, but on which both can agree, stands not only the strongest chance of passage but also the best chance of gaining acceptance from the American people.

"We didn't undertake this effort because we thought it would be easy; in fact, we started working together because we knew it would be hard. Passing health reform is going to require that we take a stand against the status quo and be willing to challenge every interest group that is jealously guarding the advantages it has under the current system, because health reform isn't about protecting the current system or preserving the advantages of a few. We can't forget that we are working on life-and-death issues facing our constituents, our families, our friends and our neighbors."

Voices of reason from the U.S. Senate - how refreshing.

Today's Washington Post contains a well-reasoned OpEd entitled "It's Time to Legalize Drugs" by two former Baltimore City police officers and members of Law Enforcement Against Prohibition. This is something I've blogged on before here, and this OpEd makes the case yet again.

Written by Peter Moskos (a professor at John Jay College of Criminal Justice and the author of "Cop in the Hood") and Neill Franklin, (a 32-year law enforcement veteran), the OpEd explains that:

"after years of witnessing the ineffectiveness of drug policies -- and the disproportionate impact the drug war has on young black men -- we and other police officers [have] begun to question the system.

"Cities and states license beer and tobacco sellers to control where, when and to whom drugs are sold. Ending Prohibition saved lives because it took gangsters out of the game. Regulated alcohol doesn't work perfectly, but it works well enough. Prescription drugs are regulated, and while there is a huge problem with abuse, at least a system of distribution involving doctors and pharmacists works without violence and high-volume incarceration. Regulating drugs would work similarly: not a cure-all, but a vast improvement on the status quo.

"Legalization would not create a drug free-for-all. In fact, regulation reins in the mess we already have. If prohibition decreased drug use and drug arrests acted as a deterrent, America would not lead the world in illegal drug use and incarceration for drug crimes. "
...

Moskos and Franklin continue, "We simply urge the federal government to retreat. Let cities and states (and, while we're at it, other countries) decide their own drug policies. Many would continue prohibition, but some would try something new. California and its medical marijuana dispensaries provide a good working example, warts and all, that legalized drug distribution does not cause the sky to fall.

"Having fought the war on drugs, we know that ending the drug war is the right thing to do -- for all of us, especially taxpayers. While the financial benefits of drug legalization are not our main concern, they are substantial. In a July referendum, Oakland, Calif., voted to tax drug sales by a 4-to-1 margin. Harvard economist Jeffrey Miron estimates that ending the drug war would save $44 billion annually, with taxes bringing in an additional $33 billion.

"Without the drug war, America's most decimated neighborhoods would have a chance to recover. Working people could sit on stoops, misguided youths wouldn't look up to criminals as role models, our overflowing prisons could hold real criminals, and -- most important to us -- more police officers wouldn't have to die."

Sensible words.

I'm pleased to report that my article entitled "Rescuing the Fourteenth Amendment Privileges or Immunities Clause: How "Attrition of Parliamentary Processes" Begat Accidental Ambiguity; How Ambiguity Begat Slaughter-House" will be published in the upcoming volume of the William & Mary Bill of Rights Journal.

The article is available at SSRN and BePress Selected Works.

Here is the abstract:

"This Essay addresses a topic of great academic and practical interest currently facing the Supreme Court: whether the Fourteenth Amendment Privileges or Immunities Clause, which has lain dormant since the Court's erroneous 1873 SlaughterHouse Cases decision, should be resurrected in order to apply the Second Amendment to the States.

The Essay makes the unique argument that the textual basis for the SlaughterHouse Court's holding regarding the clause - i.e., the lack of parallel textual construction in the Section One's first two sentences regarding citizenship - was in fact the wholly unintentional product of what we might call "attrition of parliamentary processes." This analysis is not new to the Supreme Court. Borrowed from an oral argument made before the U.S. Supreme Court in 1882 by Roscoe Conkling (a member in 1866 of the Joint Committee on Reconstruction), the analysis played a vital role in leading the Court ot its 1898 conclusion that the word "person" in Section One's Due Process Clause should be read to include artificial persons, including corporations - an interpretation substantially broader than that given previously by the SlaughterHouse majority.

Just as the Court in the last decades of the nineteenth century corrected the Court's too-narrow interpretation of Section One "personhood," so it should now - finally - begin to correct its earlier misreading of the distinction in Section One between U.S. and state citizenship in order to restore the privileges or immunities clause to its full intended effect of applying the Bill of Rights (and more) to the States."

(I have previously posted here on related topics.)

The Seventh Circuit Federal Court of Appeals in Chicago yesterday heard oral argument in National Rifle Association v. Chicago (formerly McDonald v. Chicago), a case in which the Constitutional Accountability Center, joined by law professors Richard Aynes, Jack Balkin, Michael Curtis and myself, filed an amicus brief arguing that the Fourteenth Amendment privileges or immunities clause should be interpreted to apply the Second Amendment (together with the rest of the entire Bill of Rights, and more) to the states.

If the judges’ questioning is any fair indication, it appears the Seventh Circuit will decline the petitioners’ and the CAC’s invitation to incorporate the Second Amendment under either the due process clause or the privileges or immunities clause – not because the court necessarily objects to the arguments, but rather because it believes such bold steps are more appropriately within the purview of the Supreme Court.

NRA counsel Stephen Halbrook was barely into his first sentence before the judges, particularly Judge Richard A. Posner and (presumably) Chief Judge Frank H. Easterbrook, began peppering him for explanations for why the appellate court should even be deciding the question.

For context, here are some of the relevant exchanges between the court and counsel, with a couple observations to follow:

Judge Posner (to Mr. Halbrook): I don’t see how you get around the Supreme Court’s admonition to us that we are not to anticipate overruling of Supreme Court decisions. You have Cruikshank and Presser and Miller and the Supreme Court’s footnote in Heller where it declines to reexamine those decisions, and it says they hold that the second amendment doesn’t govern state action…. [Those cases] may have overlooked grounds, they may be poorly reasoned, but there they are - they’re holdings.
…
Chief Judge Easterbrook (later): I entirely appreciate your argument that [the earlier cases] don’t discuss selective incorporation. Indeed, I entirely appreciate your argument that the SlaughterHouse Cases are wrongly decided…. But as is often said in the bureaucracy, that’s above our grade level.
…
Chief Judge Easterbrook (responding to co-counsel (for petitioner McDonald) Alan Gura): I actually don’t know why you’re so upset about the prospect that Judge Posner and I have raised with you. It doesn’t matter what we say. [In contrast to the Ninth Circuit in the recent Nordyke case,] we’re not going to resolve this issue; you’ve got yourself a conflict between the circuits. Why don’t you just say, ‘Our arguments are preserved – thank you very much.’

Mr. Gura: If that’s what your honor would like me to do, then I’ll certainly go ahead and do that. Our arguments are preserved and thank you very much. [Laughter] I’ll reserve the rest of my time for rebuttal.

Chief Judge Easterbrook: This is going to be resolved elsewhere. Yes, thank you, Mr. Gura.

Ms. Benna Solomon (counsel for Chicago): It does not matter that [Cruikshank, Presser and Miller] were decided before the Court embraced the process of incorporation under the due process clause.… Only the Supreme Court itself can limit or update its prior definitive holdings. They do not become non-precedential simply because one can imagine an argument against them, or because the Court itself might later discard them.

Chief Judge Easterbrook: There’s actually a pretty good argument against them. And it’s not simply because the justices have used a different approach in recent years. It’s that there’s a lot of rumbling about the Slaughter-House Cases even amongst the justices.

Ms. Solomon: That is correct. And as far as privileges or immunities go, ... of course it would be [the Supreme Court’s] prerogative to consider overruling, limiting, changing, modifying or clarifying Slaughter-House. And of course it’s not simply Slaughter-House. The rule that the privileges or immunities does not wholesale incorporate the Bill of Rights has been repeated many times…. The privileges or immunities ruling has never been disturbed. So we do respectfully believe that is binding on this court as well.

Chief Judge Easterbrook (referring to an early voice in the wilderness who advocated accepting Justice Hugo Black’s call to reexamine the fourteenth amendment’s history, especially the privileges or immunities clause): One can only imagine William Winslow Crosskey coming back to debate this issue.

Ms. Solomon: It will be ripe, no doubt, for someone to present to the Supreme Court.
…

Chief Judge Easterbrook (responding to Ms. Solomon’s observation that several other provisions of the Bill of Rights have still not been incorporated): One potential consequence of the line you’re taking is that the Supreme Court will overrule Slaughter-House and incorporate everything. And then all of Chicago’s administrative tribunals for handling parking tickets will suddenly become unconstitutional under the seventh amendment [right to jury trial in civil cases].

Ms. Solomon: The Supreme Court will no doubt consider that going down the privileges & immunities road would need either a limiting principle not evident in the arguments on the other side, or it would need to overrule the cases indicating that the grand jury clause and the seventh amendment, and the Court has reaffirmed those rather recently.
…
Mr. Gura (on rebuttal): In 1868, when the fourteenth amendment came about, it was with the express purpose and intent and common understanding, that it was to incorporate the Bill of Rights, and the second amendment was the right that was most at issue at the time. … . And we of course preserve our privileges or immunities argument for the upper court. But at the very least this court is still free, and bound actually by Duncan v. Louisiana, to reverse the judgment [and hold that the due process clause incorporates the second amendment,] which we hope this court does.

Reflections on the oral argument:

What is most striking about this sequence is that multiple federal courts, after having swept the privileges or immunities clause under the rug for over 135 years, are now talking in serious terms about the provision. To hear a jurist of Chief Judge Easterbrook’s stature express sympathy for arguments that the SlaughterHouse Cases (the 1873 case that buried the privileges or immunities clause) was wrongly decided is a major step. Add to that the Ninth Circuit’s recent Nordyke decision holding that the second amendment is incorporated through the due process clause (and acknowledging, but not deciding, the privileges or immunities arguments), and we see that the arguments being made by a growing number of scholars, the CAC and others are finally starting to gain some traction.

Second, regarding the suggestion that giving full effect to the privileges or immunities clause (i.e., incorporation of the entire Bill of Rights, and more, to the states) would be too disruptive to the states, the Constitution itself provides a tried and true mechanism to allay this concern: the Article V amendment process. If the people decide that they wish to retain the Supreme Court’s current doctrine of not applying certain of the Bill of Rights to the states, such as the Seventh Amendment right to jury in civil cases and the Fifth Amendment grand jury provision, it is within their power to do so. The amendment process would be the proper approach to achieve this goal – but it is not proper to continue holding the privileges or immunities clause hostage.

While it is true that amending the Constitution is very difficult to do (it’s only been done eighteen times in our history – first with the Bill of Rights and then 17 times since), it’s not impossible. Indeed, when the people put their minds to it, it can be done very quickly – witness the very first amendment to follow the Bill of Rights, the eleventh amendment, when it took Congress less than three weeks to approve the amendment after a Supreme Court ruling not to its liking; and the states less than a year to ratify.

*This post also appears at the CAC Text and History Blog.

Following is a paper I am presenting this week at the Law & Society Conference in Denver, "Reconciling Liberty and Progressive Government," that synthesizes a number my prior postings:

Libertarians with progressive sympathies (or progressives with libertarian sympathies) are confronted by a nagging conundrum: that individual freedom and the common-good, almost by definition, can seem to be mutually exclusive. If we indiscriminately elevate individual free-will, we risk tragedy-of-the-commons issues; by contrast, if we indiscriminately enact progressive legislation for the common good, we run the risk of inflicting death by a thousand cuts on individual liberty.

A concept we may call "Progressive Liberty" is an attempt to reconcile the seemingly contradictory concepts of individual liberty and the common-good. Looking first at the “liberty” half of the phrase, America was founded, first and foremost, to preserve individual freedom from oppressive government. This part is nonnegotiable. America's founding documents - the Declaration of Independence and the Constitution - make the point clearly: the single irreducible value eclipsing all else under the American constitutional regime is liberty. The eminent historian Eric Foner explains, “No idea is more fundamental to Americans’ sense of themselves as individuals and as a nation than “freedom” … or “liberty,” The Declaration of Independence lists liberty among mankind’s inalienable rights; the Constitution announces as its purpose to secure liberty’s blessings…”

Historian Bernard Bailyn reports that the most basic goals of the American Revolution were to “free the individual from the oppressive misuse of power, [and] from the tyranny of the state.” To conceptualize, imagine if you will the “Google-Earth” feature of Google; except here, written answers to basic constitutional questions may be viewed in greater or lesser detail by zooming-in or zooming-out. Zooming-out to view the question, “What single value does the Constitution stand for?,” from the widest possible angle, where all detail has been lost leaving only one answer to the question, the answer would read, “Liberty.” Zooming-in, we could next read, “Equality,” “Democracy,” then “Property,” and so on. These more detailed values are simply means to the ultimate end – which is liberty.

What to do when government intrudes upon liberty? The framers of the Constitution envisioned that the judiciary would play a key role in protecting liberty from majoritarian excess. James Madison, arguing in support of passage of the Bill of Rights before the First Congress, said, “independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive.” Addressing a French correspondent, Thomas Jefferson wrote, “the laws of the land, administered by upright judges, … would protect you from any exercise of power unauthorized by the Constitution of the United States.” And in Federalist 78 Alexander Hamilton commented that “the interpretation of the laws is the proper and peculiar province of the courts…. If there should happen to be an irreconcilable difference between [the Constitution and a legislative act]…, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.”

This is something upon which judges and scholars from across the political spectrum can agree. Conservative icon Robert Bork, for example, has written that “there are some things a majority should not do to us no matter how democratically it decides to do them. These are areas properly left to individual freedom…. Society consents to be ruled undemocratically within defined areas by certain enduring principles believed to be stated in, and placed beyond the reach of majorities by, the Constitution.”

In practice, however, conservative ideology has latched onto the idea that the use of judicial review is “undemocratic” and “activist”; and will almost always constitute inappropriate “legislating from the bench.” What this argument ignores, of course, is that the whole point of the Constitution’s scheme of majoritarian government in the first place is to protect liberty and equal justice. As explained by Madison, Jefferson and Hamilton, the true original intent of the framers was that constitutionally-protected liberty and equal justice are not to be sacrificed to majority will.

When the Court fails to properly exercise its power of judicial review, liberty and equal justice suffer, because there is simply no other institution left to protect individual and minority rights. During World War I, for example, the Court upheld vast legislative prohibitions on speech; and during World War II it refused to curb executive forced-relocation and internment of thousands of innocent Japanese-Americans. America would look quite different today if the Court – largely under the leadership of Chief Justice Earl Warren, whose strong support of judicial review prompted President Dwight Eisenhower to grumble that his 1953 appointment of Warren to the Court was “the biggest damn-fool mistake I ever made” - had not eventually returned to checking the unconstitutional excesses of the democratically-elected executive and legislative branches.

As for the other part of the progressive liberty equation, how are we to understand how progressive government may proceed in acting for the common good? The first thing to understand is that, as compared to non-negotiable liberty, the “progressive” part of progressive liberty IS negotiable. In a democratic republic, it is the will of the people what sort of society they will have. So long as the government is not infringing on individual freedom, it can set widely varying policy - anything from a minimalist caretaker state to a more progressive social welfare model of the sort seen in Western Europe (or indeed, something more different still than either of these).

An energetic position, one that a progressive libertarian would favor, suggests that it is the government's duty to enact humane policy that looks out for people who can't help themselves, and that provides equal opportunity to all. Among other things, this means that government should guarantee that every man, woman, and child have access to basic healthcare. (Incidentally, the framers appeared to be “progressives” of a sort themselves, in that they advocated an energetic government. “Energy in the [government] is a leading character in the definition of good government,” Hamilton wrote in the Federalist 70. Madison agreed. “Energy in government,” he said in No. 37, “is essential to that security against external and internal danger, and to that prompt and salutary execution of the laws, which enter into the very definition of good government.”)

Does this mean that the Constitution mandates such government involvement?In a word: No. The Constitution sets up the republican form of the government and imposes strict limits on governmental infringements of individual liberty; but it leaves the details of social and economic policy to be worked out by the people through the democratic process. Whether the people prefer a Progressive Society, a Minimalist Society, or some other sort of Society, they control their destiny by voting for representatives who will legislate to that end. That's republican democracy: accountable majorities enacting policy; and if the majorities don't adequately reflect the people's wishes, others are elected who will. Then if at any time the democratically-accountable majority legislates in ways that inappropriately infringe individual liberty, the Constitution (as enforced by the Court) steps in. That's what liberty is about - limited government constrained by a Constitution that protects, above all else, individual freedom.

. . .

Now that we have a definition for progressive liberty, let’s look closer at the title of this paper, “Reconciling Liberty and Progressive Government.” Specifically, how are we to know the threshold beyond which a progressive, energetic government may not go, lest it infringe upon constitutionally-protected liberty?

An excellent place to start (and perhaps end) is with the "harm principle" enunciated by J.S. Mill in his 1859 classic, On Liberty:

"[There is but] one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, … that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others…. The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign."

Putting this into practical terms that government policymakers can apply, we might “think of the harm principle as operating in two steps,” Professor Ian Shapiro suggests. “When evaluating a particular action or policy, the first step involves deciding whether the action causes, or has the potential to cause, harm to others. If the answer is no, then the action is in the self-regarding realm and the government would be unjustified in interfering. Indeed, in that case the government has a duty to protect the individual’s freedom of action against interference from others as well. [The second step occurs] if, however, the answer to the initial query is yes, [in which case] different considerations arise. We are then in a world in which harm is being committed willy-nilly, and the question is: What, if anything, should the government do about it?,” and it is up to the democratic process to work that out.

In other words, society may legislate – whether progressively or not – either when the legislation (a) simply does not affect individual liberty, and/or (b) when a person’s conduct in exercising individual liberty prejudicially affects, or harms, the interests of others. (Incidentally, some, such as Randy Barnett, would define this latter situation as not involving “liberty” at all, but rather as “license” (which is not protected by the Constitution); on the reasoning that liberty, by definition, cannot harm others). In either case it is open to discussion through the democratic process whether the common good will be promoted. So conceived, the society may strike a balance between liberty and progressive government.

It is important to re-emphasize Shapiro’s conclusion, however (perhaps to the point of tedium), that according to the Harm Principle, “short of the point at which a person's conduct affects the interests of no persons besides himself, there is no room for [memorializing into law any such policy discussion.]” Individual liberty prevails in such cases, not to be touched by government.

This last point is crucial, in light of government's unceasing, inexorable, and perhaps-inevitable tendency to interfere inappropriately in individual conduct. Alexis de Tocqueville presciently identified the danger of an overactive government in his 1830 masterpiece, Democracy in America, stating: “[In a maturing democracy,] a wholly new species of oppression will arise. Among citizens equal and alike, the supreme power, the democratic government, acting in response to the will of the majority, will create a society with a network of small complicated rules, minute and uniform, that none can escape. Ultimately, then, the citizens of a democratic country will be reduced to nothing better than a flock of timid and industrious animals, of which the government is the shepherd.” To some in America today, this scenario sounds uncomfortably familiar.

Once again, under our constitutional regime it is the role of the judiciary to prevent this sort of creeping tyranny from occurring. One difficulty, though, is that ever since 1937 the Supreme Court has applied a disproportionately deferential standard of review to government action - to the detriment of individual liberty. (This occurred largely as a backlash to the Supreme Court overstepping its bounds during the mid-1930s when it aggressively struck down FDR’s New Deal legislation. Throughout the rest of the 20th and into the 21st century, the Court has swung too far in the other direction by not going far enough in requiring government (particularly state and local government) to justify its actions that may potentially affect liberty interests.) A more deferential-to-liberty standard of judicial review is needed, perhaps modeled on the Court’s existing First Amendment “reasonable time, place and manner” doctrine, as I suggest in a 2007 Louisiana Law Review piece. This approach, already championed on a narrow basis by the Third Circuit Federal Court of Appeals in Lutz v. York in 1990, more accurately honors the Constitution’s core Liberty-first ideals, while also recognizing the proper constitutional role of government in maintaining law and order.

In conclusion, government is liberty’s servant in America. Government – and democracy itself - exists primarily to protect liberty, with the Constitution serving as the bulwark against inevitable government attempts toward overreaching. The framers understood that men are not angels and that power has the overwhelming tendency to corrupt, so they constructed a limited government of separated powers with the ultimate power reserved to the people to operate within their own self-imposed constitutional constraints.

That said, to the extent government action does not implicate liberty, the details of social and economic policy are to be worked out by the people through the democratic process. One can be a staunch supporter of liberty on one hand; while working actively through the democratic process to enact progressive, energetic policy. That, in essence, is progressive liberty.

One may justifiably criticize some of the decisions made by President Obama in continuing certain Bush administration policies (e.g., military commissions, state secrets, etc.), but there is one area where the new president truly shines: representing the United States abroad.

As I'd posted a couple times from the early days of his campaign, this was one of the primary reasons Obama was such an appealing candidate ... and now is such an inspiring leader.

With his landmark speech in Cairo on June 4, Obama used the bully pulpit of the American presidency to turn the discussions on Middle-East politics in more productive directions. Not that everyone in the region is enamored of everything he had to say, as reported by the BBC, but isn't it heartening to see once again a U.S. president who is able to speak respectfully and rationally in the international arena?

Eugene Robinson said it well in his June 9 column in the Washington Post, "The Importance of Being Obama":

"I used to fear that President Obama was overestimating the power of his personal history as an instrument of foreign policy. Now I wonder if he might have been underestimating."
....

"Taking a cold-eyed view of international affairs is never wrong," Robinson continued. "But it's also wrong to ignore the spectacle of an audience member, at Obama's Cairo University speech, interrupting an American president to shout, "We love you!" You will recall that the last memorable presidential appearance in the Arab world was the news conference in Iraq at which George W. Bush dodged two shoes hurled at his head.

"Not being Bush was a big factor. But at least as important was being Obama -- and being able to say, as the president did in Cairo, that "I have known Islam on three continents before coming to the region where it was first revealed."

"Obama was referring to the "generations of Muslims" in his father's Kenyan family, his early years in Indonesia and his experience working in Chicago communities where "many found dignity and peace in their Muslim faith." The most important word in that sentence, however, came at the end: By saying "revealed" rather than "born," Obama was acknowledging Islam as a divinely given faith.

"Obama quoted liberally from the Koran, drawing applause. Perhaps more important was that he opened the speech by putting Islam in the historical context that many Muslims believe the West willfully ignores. He spoke of how the Islamic world kept the light of civilization burning during Europe's Dark Ages -- and mentioned the Koran that Thomas Jefferson kept in his library.

"Obama was speaking the language of Islam in a tone of respect. What a concept.

"The rest of his speech consisted essentially of a summary of U.S. policy in the Muslim world, and in truth there were no real departures from traditional American policy. Prior administrations have called for a Palestinian state, and Obama hasn't been nearly as tough with Israel as, say, James Baker's State Department during the administration of George Bush the Elder. Obama had nothing substantive to announce on the wars in Iraq and Afghanistan, and he properly asserted the right of the United States to defend itself against terrorists.

"Familiar policies sounded different coming from Obama, though -- not just because of his identity but also because he showed a little humility. He acknowledged that in recent years our nation had acted in ways "contrary to our ideals," and noted that he had ordered an end to torture and the closing of the prison at Guantanamo. There are those who believe that admitting mistakes is a sign of weakness. I think it's a sign of confidence and strength, and I believe that's how it was received by Obama's intended audience.

"Perhaps the best indication of how Obama played in Cairo is the reaction of his competitors for the hearts and minds of the Muslim world. The Associated Press reported Sunday that the Iranian-backed, Lebanon-based guerrilla group Hezbollah, an influential radical Saudi cleric and the Egypt-based Muslim Brotherhood all warned followers not to be taken in by Obama's seductive words -- which suggests a fear that Obama had been dangerously effective. A Web site that often reflects the thinking of al-Qaeda referred to the president after the speech as a 'wise enemy.'

"The fact that many Muslims now see a sympathetic figure in the White House creates new possibilities. It turns out that being Obama matters more than I thought."

As expected, given the judges' tone while questioning counsel during oral arguments a couple weeks ago in the McDonald v. Chicago case on which I posted at the time, the Seventh Circuit Court of Appeals last Tuesday declined to incorporate the second amendment to apply to the states.

Because the Ninth Circuit in April held in Nordyke v. King that the second amendment IS incorporated, we now have a circuit split and the possibility of the U.S. Supreme Court taking up the case to resolve the disagreement.

The plaintiffs in the case, the NRA and (separately) McDonald, have already appealed to the Supreme Court - now we'll see if the Supreme Court takes the case (it requires four of the nine justices to agree to hear a case in order for it to get on the Court's docket).

As so often happens in the field of constitutional law, events converge that serve to illustrate how real-world practice often departs from constitutional principle. The same-day announcements on May 26 by President Obama of Sonya Sotomayor as his choice for the U.S. Supreme Court and by the California Supreme Court of its decision to uphold Proposition 8 is but another such serendipitous pairing.

First, constitutional principle suggests that President Obama owed the nation a strong nominee - and with Sonya Sotomayor, he delivered.

Those who framed the Constitution knew that it would take a special kind of person to guarantee equal justice to all - including the less powerful - even when majorities in the legislative and executive branches would not. “It is easy to see,” Alexander Hamilton wrote, “that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice in the community.”

Sonya Sotomayor understands the constitutional role of judges. As she commented in 1997, “I believe we should not bend the Constitution under any circumstances. It says what it says. We should honor it.” A strong judge like Judge Sotomayor knows that when majorities abridge the rights of individuals, it is the judge’s sometimes unpopular role to overcome the majority’s will.

Weak judges, by contrast, hide behind majority opinion to avoid protecting individual liberty and equality. The California Supreme Court’s decision Tuesday to uphold Proposition 8 (despite holding just last year that discrimination against gays is no less unconstitutional than discrimination based on race or religion) is an example of judging that is, well, weak.

As the lone strong voice, dissenting Justice Carlos J. Moreno, put it, “The rule the majority crafts today … weakens the status of our state Constitution as a bulwark of fundamental rights for minorities protected from the will of the majority.”

Exactly right.

These principles apply to the federal Constitution as well. The framers believed that the whole point of majoritarian government is to protect liberty and equality for all. As James Madison explained in arguing for the Bill of Rights before the First Congress, “independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive.” And Hamilton commented that “the interpretation of the laws is the proper and peculiar province of the courts…. If there should happen to be an irreconcilable difference between [the Constitution and a legislative act]…, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.”

In concept, the principle of judicial review is one upon which liberals and conservatives can agree. At his confirmation hearings in 2005, for example, Chief Justice John Roberts commented, “I don't think the Court should be a taskmaster of Congress. The Constitution is the Court's taskmaster, and it is Congress's as well.” Neither federal, state nor local majorities, in other words, may pass laws (including amendments to state constitutions) that abridge rights guaranteed by the federal Constitution - and it is the judge’s responsibility to make sure that they do not.

Viewed in this light, the “judicial activist” warhorse regularly trotted out by those opposed to judges doing their jobs to protect the rights of minorities (usually under the guise that such action constitutes inappropriate “legislating from the bench”) is exposed for what it is: a tired old nag ready for the glue factory.

As I've stated here previously on numerous occasions, the Barack Obama presidency is a vast improvement over the disaster of the prior eight years of the Bush/Cheney administration. But nothing's perfect, including the Obama administration's positions on national security.

In particular, the Obama administration has shown a disturbing tendency to hedge on the core principles of liberty and due process that it espoused during the campaign; capitulating instead to a disturbing number of discredited Bush-era "war on terror" rationale for maintaining arguably unconstitutional practices.

Specifically:

1. "Prolonged detention" - President Obama has continued the Bush/Cheney practice of allowing indefinite detention without trial or proof of guilt. He should instead insist that all prisoners have access to a fair and speedy trial, as basic constitutional principles of due process require.

2. Transparency - President Obama showed good instincts in releasing the torture memos, but dropped the ball in blocking release of photos showing American soldiers' abuse of prisoners in Iraq and Afghanistan. When they were released several years ago, the Abu Ghraib photos exposed the systematic allowance, if not encouragement, by the Rumsfeld Defense Department (with Cheney, as usual, lurking) of a sickening culture of prisoner abuse. In that case, public outrage fueled reforms; if that needs to happen again, so be it - President Obama should stick by his commitments to transparency.

3. State Secrets doctrine - the Obama administration is perpetuating in the federal courts the "state secrets" theory developed by the Bush Administration. This doctrine holds that certain lawsuits, such as those involving allegations of extreme torture in the Bush/Cheney extraordinary rendition program, shouldn't ever go to trial, since even discussing the facts in court could threaten national security. This is ridiculous. There are all sorts of protections available to keep certain aspects of court proceedings confidential (e.g., in camera review of sensitive evidence, etc.) (When I blogged on this issue previously, in February, I was inclined to give the administration the benefit of the doubt; but no longer, given the administration's other equivocations.)

There is a temptation among supporters of President Obama to let these matters slide, on the rationale that the Obama administration's approach is, at its core, based on respect, decency and due process; and that they will not abuse the power that they are attempting to maintain.

But we must resist this temptation. We must be vigilant on these matters, and insist that the Obama administration not equivocate; because as the founders and framers well knew and repeated often, constitutional protections are not necessarily designed for the benign government (after all, the benign government will tend to respect peoples' rights and liberties), but rather for the aggressive government that tends to abuse the peoples' liberties. Lest we think the latter is not possible or likely, we need only remember Bush/Cheney, 2001-09. Bush/Cheney opened the barn door on these unconstitutional practices; Obama needs to close the door and rein in the horses before they permanently escape.

Yes, President Obama is a pragmatist by nature; and politically that's probably a good thing. But on the "liberty" side of the progressive-liberty equation, some things are non-negotiable, such as due process - and the sorts of issues upon which the president is now equivocating go to the heart of due process.

Specifically, the fifth amendment to the Constitution specifies: "nor shall any person ... be deprived of life, liberty, or property, without due process of law." At the very foundation of the Anglo-American concept of due process (with roots in 1215 Magna Carta, the 1628 Petition of Right and the 1688 English Bill of Rights) is the principle that if the King/government is to hold a person against his or her will, the person must be given a fair and meaningful hearing. The Constitution memorializes this concept in a number of provisions, including the Article I, Section 9 habeas corpus clause; and the numerous criminal procedural provisions in the Fourth, Fifth, Sixth and Eight Amendments of the Bill of Rights. The practices now advocated by the Obama administration - indefinitely holding prisoners, keeping evidence secret, & preventing matters from going to trial - run disturbingly afoul of these core constitutional guarantees.

History will remember President Obama more kindly if he resolutely and unflinchingly restores American principles of liberty and due process; otherwise, by perpetuating the abusive practices initiated by Bush/Cheney, for history's purposes they become the Bush/Cheney/Obama practices.

Not the sort of historical association that President Obama should embrace.

If James Madison and Alexander Hamilton, signers of the Constitution and primary authors of the Federalist Papers (the indispensable work of 85 essays which Thomas Jefferson described as “the best commentary on the principles of government which has ever been written”), were magically able to transport themselves 222 years forward in time to the present day, they would find a lot to like about President Barack Obama’s first 100 days in office.

Madison and Hamilton would welcome American government’s return, after eight years in the wilderness, to the core constitutional principles for which they so passionately argued.

First, Hamilton and Madison would admire Obama’s ambitious – even audacious - domestic agenda. “Energy in the executive is a leading character in the definition of good government,” Hamilton wrote in the Federalist 70.

Moreover, Madison especially would appreciate Obama’s understanding of the Constitution’s limitations on executive power, as shown in his early executive orders repudiating the Bush administration’s use of torture interrogation techniques in Guantanamo Bay and CIA secret prisons. In the Federalist 47, Madison spoke of the dangers of such a go-it-alone approach, explaining, “the accumulation of all powers, legislative, executive, and judiciary, in the same hands … may justly be pronounced the very definition of tyranny.”

Finally, Madison and Hamilton would approve of Obama’s recognition (as demonstrated by his early reversal of the Bush administration policy of hiding information, and, more recently, the release of the torture memos) that government serves at the pleasure of, and thus must be held accountable to, the people. “The genius of republican liberty,” Madison concluded in the Federalist 37, “demand[s] not only that all power should be derived from the people; but, that those intrusted with it should be kept in dependence on the people.” “[T]he power of the people,” Hamilton added in No. 78, “is superior to [that of government].”

Immortal words that President Barack Obama, the former constitutional law professor, understands well.

* This entry also appears on the Constitutional Accountability Center's blog, Text & History.