"[T]he key to understanding David Brooks is that he hates the culture war."

"But when he says the 'similarities are more striking than the differences,'" Jonah Goldberg thinks "he gets it backwards. The differences are more striking than the similarities."

The Tea Partiers, fundamentally, love America. The hardcore New Lefters, simply, did not.

Towards the end, Brooks offers  this rhetorical flourish:

...both the New Left and the Tea Party movement are radically anticonservative. Conservatism is built on the idea of original sin — on the assumption of human fallibility and uncertainty. To remedy our fallen condition, conservatives believe in civilization — in social structures, permanent institutions and just authorities, which embody the accumulated wisdom of the ages and structure individual longings.

Some Tea Partiers may get all sorts of things wrong. No doubt conspiracy theories find fertile soil at Tea Party rallies. But unlike the New Left, they do not believe in starting over with a plan hatched from a new cultural avant-garde. They believe in getting back to basics. They take the founding, the Declaration and the Constitution seriously....

For years — decades — I've found insight into the way other people think with the simplification that there are 2 kinds of human minds: Those that focus on difference and those that focus on similarity. I think most people, like Jonah, figure things out by observing and heightening the ways in which things are different. We're taught to pursue that tendency from an early age. Think of the kindergarten/"Sesame Street" quizzes asking which of these things is not like the other. But the skill of likening things to others is also useful. Perhaps it should be encouraged by repurposing those old quizzes and asking kids: If you had to explain why all these things are alike, what would you tell me? And then you could grow up to be David Brooks.

Admit it! You're jealous of Jon Favreau!

"'He looks like he's in college and everybody calls him Favs, so you're like, "This guy can't be for real, right?"' said Ben Rhodes, another Obama speechwriter. 'But it doesn't take long to realize that he's totally synced up with Obama. . . . He has access to everything and everybody. There's a lot weighing on his shoulders.'"

Totally synced up with Obama... a 27-year-old guy... and he's the one writing those golden words.

Three months ago, Favreau lived in a group house with six friends in Chicago, where he rarely shaved, never cooked and sometimes stayed up to play video games until early morning....

Last month, Favreau met for an hour in Chicago with Obama... and they agreed to theme [the inaugural address] around, Favreau said, "this moment that we're in..."

Just like an "American Idol" finale song!

"... and the idea that America was founded on certain ideals that we need to take back."

Claim the Framers for your side. Good move! Make liberalism traditional.

Obama asked for a first draft by Thanksgiving. Favreau explained that he had planned a vacation and promised a draft by this week.

What a cocky guy! Imagine telling Obama -- who's entrusted you with the inauguration speech -- that you've got a vacation planned. Man, I would have just made a mental note to cancel my vacation, wouldn't you?

During his vacation, Favreau e-mailed notes to himself via BlackBerry while visiting friends in Manhattan and talked about structure at his family's Thanksgiving dinner.

Talked about structure at his family's Thanksgiving dinner... uh, okay. I guess that means the structure of the inaugural address. Not just structure, generally. Which is what we talk about chez Althouse. The structure of the universe, the structure of scientific revolutions, the structure of white and dark meat on the avian skeleton, etc.

Favreau... listens to Obama tell stories in his office and spins them into developed metaphors, rich in historical context. When Obama delivers a speech on the road, Favreau studies the recording and notes the points at which Obama departs from the text so he can refine the riffs and incorporate them next time.

In four years together, Obama and Favreau have perfected their writing process....

So he started this mind-merge when he was 23?

[I]n 2004, ... Obama, just elected to the Senate, needed to hire a speechwriter. He brought Favreau, then 23, into the Senate dining room for an interview on his first day in office. They talked for 30 minutes about harmless topics such as family and baseball before Obama turned serious.

"So," he said. "What's your theory on speechwriting?"

Theory! I love that. Now, what would you have said at that point? Theory? Speechwriting has a theory? Uh...

"A speech can broaden the circle of people who care about this stuff," Favreau said. "How do you say to the average person that's been hurting: 'I hear you. I'm there. Even though you've been so disappointed and cynical about politics in the past, and with good reason, we can move in the right direction. Just give me a chance.' "

"I think this is going to work," Obama said.

So, presumably, that was just about the best answer to an interview question anyone ever gave. Or do you think Favreau also has some magical charisma that Obama saw and saw himself in?

Two weeks after the election, Favreau accepted a new job that essentially came with a new life. He moved back to Washington, hired a real estate agent, bought his first apartment and ordered furniture from Pottery Barn that sits unopened in nine boxes lined against his wall. He will need to buy more jackets and ties to replace his preferred outfit of jeans and a sweater. Friends joke that Favreau suddenly turned 40 this year -- but he still shows flashes of 27.

At a party at his parents' house over Thanksgiving vacation, he danced and posed awkwardly next to a cardboard cutout of Clinton.

He cupped his hand over her "breast."

A buddy uploaded photos onto Facebook, reporters discovered them, and suddenly experts were debating Favreau's maturity on television. Favreau called Clinton and Obama to apologize. They told him not to worry, but he still does.

Don't worry, Jon, everyone is just hopelessly -- profoundly -- jealous. It's got to drive everyone crazy that you are 27.

IN THE COMMENTS: Palladian says:

Jealousy and disgust are not the same thing.

It says a lot about both Favreau and Obama that they apparently find it acceptable to generalize their supposed beliefs as "this stuff". I'm surprised that given Favreau's demographic and apparent lifestyle he didn't say "a speech can broaden the circle of people who care about this shit." Shit, stuff... who can be bothered to actually be specific about any of that "hopey-changey" nonsense? Apparently not even Obama or the guy who writes the crap for him.

In a way, though, this guy is the archetype of the Obama devotee. He doesn't really have much in the way of life experience or wisdom, but he's smart enough and educated enough that he can simulate it. Everything is simply meta-comment, removed from actual experiences, motivations or beliefs. He can cobble together lofty-sounding rhetoric while living in a house with six people, sitting up all night playing video games and then, presumably, sleeping all day while the "average person who's been hurting" is out there trying to pay the bills. He thinks it perfectly appropriate to tell his boss, the next President of the United States of America, that his deadline is getting in the way of his vacation and, amazingly, his boss accepts that. Because why let something trivial like another lofty, empty speech at the Presidential Inauguration get in the way of "visiting friends in Manhattan"? Now, of course, he's rolling in cash so he calls up a real estate agent and orders an apartment and calls up Pottery Barn and orders some furniture so he can set up something approaching one of those "home" things that the "average person who's been hurting" seem to like and want so much. Hell, maybe he should start thinking about getting one of those "family" things that everyone seems to have... Eh, who has time for that now? He's got so much "hope" and "change" to cram into another speech, so many ill-fitting suits to buy, so many raids scheduled in World of Warcraft... and he hasn't even shaven yet!

Jon Favreau: a blank slate writing aphorisms onto another blank slate.

And yet, what is undeniable is that this writing worked in the real world on millions of people. There is a mystery to writing, and some people have a gift, and they can give the impression of understanding all sorts of feelings and experiences that they have never had. I'm thinking of cheeky young novelists and songwriters who somehow make people believe they've tapped the depths. Stuff like this.

Or should I say shit. But I like stuff:

Let's read AG Lisa Madigan's brief against Governor Blagojevich.

Here's the PDF of the brief filed with the Illinois Supreme Court. As explained in previous posts, Madigan's attempt to oust the Illinois governor relies on Article V, Section 6 of the Illinois constitution:

If the Governor is unable to serve because of death, conviction on impeachment, failure to qualify, resignation or other disability, the office of Governor shall be filled by the officer next in line of succession for the remainder of the term or until the disability is removed.

Madigan needs to establish that Blagojevich's political and legal troubles amount to an "other disability" within the meaning of that text.

The legal argument in the brief is embarrassingly inadequate, quoting the dictionary meaning of "disabled" and saying over and over again that the meaning is "plain" and the "plain meaning" governs. (If I could do a word search on that PDF, I'd count the number of times the word "plain" is repeated. Just for a laugh.)

And that's the extent of the argument about the meaning of the constitutional text.

Madigan sweeps aside a quote from the debate about the provision that shows the framers intended "other disability" to refer to "physical or mental capacity." And she says nothing about the procedural safeguards of the impeachment process or the reasons why courts should or should not involve themselves in political questions.

ADDED: Beldar -- who links here -- says:

Even though it would remove the reins of power from the hands of a crook, using the "disability" provision of the Illinois constitution in lieu of impeachment would be legally, politically, and intellectually illegitimate....

That Blagojevich is a banal, petty crook has been "obvious" to anyone who cared to see such things long before he was indicted and arrested. Under a practical, common-sense standard, that should have been obvious to the voters of Illinois who nevertheless elected and then re-elected him.

But elections have consequences. Among them is the fact that once a crook is elected, constitutional niceties must be observed to remedy the situation.

Exactly! Of course, Beldar also thinks Blagojevich ought to resign, and I certainly agree. And he has a lot more than that to say, which you ought to go over and read. He's critical not just of Madigan and Blagojevich, but also of the legislators and the voters in Illinois who -- as the saying goes -- "got the government they deserve."

I also really liked this comment by Chicago Sun-Times columnist Mary Mitchell, on this morning's "Meet the Press," on the difference between what Blagojevich is accused of and the sort of trading favors that happens all the time in politics:

Reality check. Pay to play, everybody knows it, even--not just in politics. Office politics, pay to play. You know, if you know the boss and the -- and you, you, you need something from the boss, he's going to look around and find the person going to do him the most good. He's not going to hire -- you know, put somebody in a place of power that isn't doing him any good. That's the world. That's how the world works. But there is a line. You got to know how to play the game. And Blagojevich, Governor Blagojevich was tacky in playing the game. That's what people are upset about. They're embarrassed that this man had the nerve to get caught on the wiretap using foul language, actually giving voice to, you know, the wink and the nod thing. He didn't just wink and nod, he actually tried to shake people down, according to the wiretaps.

Governor Blagojevich was tacky in playing the game. And he got recorded saying dirty words.

AG Lisa Madigan's argument to the Illinois Supreme Court about ousting Governor Blagojevich.

Here's the transcript. [ADDED NOTE: This is only the press conference, not the argument before the court.]

As described here and here, Madigan is relying on Article V, Section 6 of the Illinois constitution: "If the Governor is unable to serve because of death, conviction on impeachment, failure to qualify, resignation or other disability, the office of Governor shall be filled by the officer next in line of succession for the remainder of the term or until the disability is removed." So she needs to argue that Blagojevich is disabled within the meaning of that text.

Here's the discussion from the transcript:

Q Did you give any consideration to the intent of -- the intent of the law as framed by the constitutional convention, whether it was meant for a political or legal crisis like this or simply for some kind of, you know, medical or emotional issue?

MS. MADIGAN: I think the question you're getting at is, how is disability or is disability defined correct? And so yes, we did. It's addressed in our briefs.

We would look to the fact that the term disability legally is very broad, that it is not simply isolated to a physical or mental disability. And you can read all about that in our pleadings.

Yes.

There's no follow-up on that.

Madigan is asked about whether this case would "set a dangerous precedent" -- and she seems not to understand the concept:

Q General, is there a way to prevent other people, whoever might be AG in the future, from -- any protections to prevent others from using this law -- since this is the first time to have a governor sort of declared disabled -- to sort of have it be done sort of when the circumstances might not be as extraordinary? Are those protections there, or could this be filed at any -- could this...

MS. MADIGAN: I'm still not understanding your question.

Q Are there enough protections in place to stop someone from doing what you're doing in the future?

Q For political ends.

Q From abusing the --

MS. MADIGAN: Oh, I'm sorry.

Q (Off mike) -- abusing the AG authority.

MS. MADIGAN: Yes. And here's one of the protections, as I mentioned. The Illinois Supreme Court has total discretion as to whether or not to even hear this matter. So the Illinois Supreme Court, Judicial Branch, serves as a check on the executive branch in the circumstance.

So the safeguard against the AG's abuse of power is that the court will have the role of deciding? How can it be the court's role to make the final call about things that belong in the realm of impeachment? Why do constitutions put impeachment trials in legislatures? Because courts are ill-suited to such decision-making.

Consider this discussion, from the U.S. Supreme Court, about why the Framers of the United States Constitution gave the Senate the sole power to try impeachments:

The Framers labored over the question of where the impeachment power should lie. Significantly, in at least two considered scenarios the power was placed with the Federal Judiciary. See 1 Farrand 21-22 (Virginia Plan); id., at 244 (New Jersey Plan). Indeed, Madison and the Committee of Detail proposed that the Supreme Court should have the power to determine impeachments. See 2 id., at 551 (Madison); id., at 178-179, 186 (Committee of Detail). Despite these proposals, the Convention ultimately decided that the Senate would have "the sole Power to Try all Impeachments." Art. I, §3, cl. 6. According to Alexander Hamilton, the Senate was the "most fit depositary of this important trust" because its members are representatives of the people. See The Federalist No. 65, p. 440 (J. Cooke ed. 1961). The Supreme Court was not the proper body because the Framers "doubted whether the members of that tribunal would, at all times, be endowed with so eminent a portion of fortitude as would be called for in the execution of so difficult a task" or whether the Court "would possess the degree of credit and authority" to carry out its judgment if it conflicted with the accusation brought by the Legislature--the people's representative. See id., at 441. In addition, the Framers believed the Court was too small in number: "The awful discretion, which a court of impeachments must necessarily have, to doom to honor or to infamy the most confidential and the most distinguished characters of the community, forbids the commitment of the trust to a small number of persons." Id., at 441-442.

In the Illinois case, you don't even have a legislative impeachment. You have a lower executive branch official, the Attorney General, bringing the accusation, and the state supreme court is asked to make the final call, deciding by fiat that a democratically elected Governor should be thrown out of office.

Now, there is that state constitutional provision -- Article V, Section 6 -- but the question is how broadly to interpret "other disability," a term that appears on a list that includes "conviction on impeachment." Clearly, "other disability" ought to be defined narrowly so that it does not obliterate the safeguards of the impeachment process.

At the end of the oral argument, the court flat-out confronts Madigan Madigan is confronted about her own political ambitions and conflict of interest:

Q I know you say that you haven't been thinking about politics at all, but there have obviously been a lot of questions about politics, and there wouldn't be questions about politics unless your political future was considered very bright and in play here. Given the fact of your possible interest in being governor, given the fact that you've been mentioned as a possible Senate replacement for Barack Obama, was any consideration given to your removing yourself from this issue because of a possible perception, if not reality, of conflict of interest?

MS. MADIGAN: No. And let me make two further statements. One is I never expressed any interest in even being considered for the U.S. Senate vacancy. I never contacted or talked to any -- the governor or anybody in the governor's office about that.

In addition, I am supporting putting the lieutenant governor in to serve as at governor of the state of Illinois. I think that is in the best interests of the people of this state. And I am happy to serve as the attorney general of this state. And I will continue in that role to do what is best for the people of this state.

Well, the answer is meaningless. The question says it all.

AND: Keep in mind that the legislative impeachment process is something under the control of Madigan's own father. The court asked her Madigan was asked "Do you know why your father has been appearing to be somewhat reticent on the -- (off mike)?" She told them to "ask him," which, the transcript notes, provoked laughter. Do you think that's funny?

Here's a Sun-Times article headlined "Why is Michael Madigan waiting to impeach Blagojevich?"

House Speaker Michael Madigan turned heads last spring by admitting his staff had researched impeaching Gov. Blagojevich, then followed up with a fall memo to Democratic candidates advocating impeachment.

So why on the eve of lawmakers returning to Springfield to address a full-blown political crisis won't the powerful Southwest Side Democrat commit to impeaching a man regarded by some as the most corrupt state officeholder in modern Illinois history?...
Even more baffling is the fact that plenty of votes exist in the House to get the job done.

On Friday, Cross had a conference call with his 52-member GOP delegation and said "at least" 45 favored launching impeachment proceedings immediately....

If Blagojevich resigns this week, Madigan's noncommittal stance on adding impeachment to the agenda would make perfect sense because the issue would be moot.

But if Blagojevich stays put and his saga drags out, then questions inevitably will grow louder about whether delaying impeachment is a tactic by Madigan not to divert political thunder from his daughter, Attorney General Lisa Madigan....

"The speculation is that the speaker is sitting back on this so Lisa can take the lead and get ownership on the issue," said one House member who favors impeachment but requested anonymity.

What a misguided notion of how to win glory!

"There are really only two ways to interpret the Constitution -- try to discern as best we can what the framers intended or make it up."

Says Justice Clarence Thomas. Of course, I don't believe that. Do you? Really?

Does Thomas? Really? He says this:

As important as our Constitution is, there is no one accepted way of interpreting it. Indeed, for some commentators, it seems that if they like or prefer a particular policy or conduct, then it must be constitutional; while the policies that they do not prefer or like are unconstitutional. Obviously, this approach cannot be right.

Fine, yes. So far so good. There's no controversy over that.

... No matter how ingenious, imaginative or artfully put, unless interpretive methodologies are tied to the original intent of the framers, they have no more basis in the Constitution than the latest football scores.

Now, that is controversial, yet all we have here is assertion.

To be sure, even the most conscientious effort to adhere to the original intent of the framers of our Constitution is flawed, as all methodologies and human institutions are; but at least originalism has the advantage of being legitimate and, I might add, impartial.

But you haven't excluded other interpretations that might also be legitimate. And as for impartiality, where did you prove that? You just conceded that "even most conscientious effort to adhere to the original intent of the framers of our Constitution is flawed," so why do you -- in the same sentence -- call it impartial? With such incoherence showing so plainly on the surface of your remarks, why should we trust your labyrinthine exegesis of the documents from the 18th century?

(Via Jonathan Adler.)

McCain's judges.

John McCain gave a speech on judicial appointments yesterday, and it made me want to go back to a conference call he did with bloggers — including me — on April 27, 2007:

Ah. I got my question in just now, which was to invite him to talk about what sort of person he would put on the Supreme Court, and specifically if he would strengthen a conservative majority or if he would work with liberals and others who care about preserving the balance that we've had on the Court for so long. He said he wanted, above all, a person with "a proven record of strict construction." This is "probably a conservative position, but," he said, "I'm proud of that position." He wants judges who won't "legislate." Then, he added that "this is new" and something we may not have heard: he'd like someone who had not just judicial experience but also "some other life experiences," such as time in the military, in a corporation, or in a small business. He would like to see "not just vast judicial knowledge, but also knowledge of the world."

Now, let's see what he said yesterday. Excerpts:

For decades now, some federal judges have taken it upon themselves to pronounce and rule on matters that were never intended to be heard in courts or decided by judges. With a presumption that would have amazed the framers of our Constitution, and legal reasoning that would have mystified them, federal judges today issue rulings and opinions on policy questions that should be decided democratically.

This is the standard conservative criticism of federal judges.

My two prospective opponents and I have very different ideas about the nature and proper exercise of judicial power. We would nominate judges of a different kind, a different caliber, a different understanding of judicial authority and its limits....

Of course, this is right.

One Justice of the Court remarked in a recent opinion that he was basing a conclusion on "my own experience," even though that conclusion found no support in the Constitution, or in applicable statutes, or in the record of the case in front of him. Such candor from the bench is rare and even commendable.

He's referring to Justice Stevens's opinion in the lethal injection case, Baze v. Rees. ("I have relied on my own experience in reaching the conclusion that the imposition of the death penalty represents 'the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment.'") Back to McCain:

Sometimes the expressed will of the voters is disregarded by federal judges, as in a 2005 case concerning an aggravated murder in the State of Missouri. As you might recall, the case inspired a Supreme Court opinion that left posterity with a lengthy discourse on international law, the constitutions of other nations, the meaning of life, and "evolving standards of decency." These meditations were in the tradition of "penumbras," "emanations," and other airy constructs the Court has employed over the years as poor substitutes for clear and rigorous constitutional reasoning. The effect of that ruling in the Missouri case was familiar too. When it finally came to the point, the result was to reduce the penalty, disregard our Constitution, and brush off the standards of the people themselves and their elected representatives.

This refers to Justice Kennedy's opinion in Roper v. Simmons. Tremendous hostility was aimed at Kennedy over this opinion, you may remember.

I'm skipping over his discussion of Kelo and the flag pledge case to shorten this post, but, like the whole speech, it's very well composed. McCain has fine legal advisors (and he will have them when he's picking his judges).

He goes on to a long criticism of the Senate's approach to judicial confirmations. He doesn't say how he can appoint fully conservative judges when he needs the Senate's confirmation. Won't some moderation be required — especially if one of the liberal Justices of the Supreme Court steps down? The answer is obviously yes.

Senator Obama in particular likes to talk up his background as a lecturer on law, and also as someone who can work across the aisle to get things done. But when Judge Roberts was nominated, it seemed to bring out more the lecturer in Senator Obama than it did the guy who can get things done. He went right along with the partisan crowd, and was among the 22 senators to vote against this highly qualified nominee. And just where did John Roberts fall short, by the Senator's measure? Well, a justice of the court, as Senator Obama explained it -- and I quote -- should share "one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy."

These vague words attempt to justify judicial activism -- come to think of it, they sound like an activist judge wrote them. And whatever they mean exactly, somehow Senator Obama's standards proved too lofty a standard for a nominee who was brilliant, fair-minded, and learned in the law, a nominee of clear rectitude who had proved more than the equal of any lawyer on the Judiciary Committee, and who today is respected by all as the Chief Justice of the United States. Somehow, by Senator Obama's standard, even Judge Roberts didn't measure up. And neither did Justice Samuel Alito. Apparently, nobody quite fits the bill except for an elite group of activist judges, lawyers, and law professors who think they know wisdom when they see it -- and they see it only in each other.

That's all very well put. It makes it clear that picking — and confirming — judges is not about quality and qualifications. There is an ideological element, and it determined Obama's Senate vote. Now, as President, Obama will be nominating the judges — moderated by what the Senate will accept — but his vote on Roberts makes it plain that he won't pick conservative judges.

McCain notes that he voted for Bill Clinton's nominees to the Supreme Court, Stephen Breyer and Ruth Bader Ginsburg. (The text of his speech on his website misspells her name "Ginsberg," making me wonder whether his legal advisors are as good as I'd thought.) He voted based on quality and out of deference to the President's constitutional role, he says. What? Do you worry that he voted out of a secret love for liberal judges? McCain assures us that he will nominate "people in the cast of John Roberts, Samuel Alito, and my friend the late William Rehnquist -- jurists of the highest caliber who know their own minds, and know the law, and know the difference."

To compare what McCain said in this carefully prepared text to what he said to me in the conference call a year ago: He doesn't fall back on the stock phrase "strict construction" — which is a good thing. Like the judges he says he admires, he now talks about being faithful to what the law requires. His judges aren't "strict" (or narrow) but correct, and those other judges are lawlessly ranging beyond the text. That's the better way to present conservative judicial ideology. He certainly didn't say, as he did to me, that he wants conservative judges. He wants judges who adhere to the law and don't legislate. That's the better way to put it, even if it does worry some people who want assurances that he will give them another Scalia or Thomas. And why shouldn't they worry? He didn't name Scalia and Thomas as his model judges. He named Roberts and Alito (and his "friend" Rehnquist). Does that mean he's a notch removed from the most conservative position? (Does it irk Justice Scalia not to be named here, especially when most of this speech reads like a Scalia speech?)

McCain also didn't talk about appointing persons who have experience in the business world. In fact, he avoided talking about the role of the courts with respect to business and commerce.

He also avoided the subject I tried to get him to talk about a year ago: the balance on the Court. We have lived for a long time with a Court balanced with conservatives, liberals, and swing voters. Do we really want what would happen if we lost a liberal Justice (or Justice Kennedy) and the conservatives got a reliable 5th vote? Do we understand what would happen then? But do we think McCain would give that to us – or that the Senate would let him? Frankly, I don't think so.

The Pope sends Rush Limbaugh into ecstasy about... American exceptionalism.

Did you listen to Rush Limbaugh enthusing about the Pope yesterday? It was really quite bizarre.

The Battle Hymn of the Republic was sung by the US Army Chorus, and you have to hear this, particularly if you haven't had a chance to have your TV on today or your radio, and you didn't hear this. You have to hear it and you have to imagine a crystal-blue sky, a crisp day in Washington, the pope and the president on the reviewing stand with others, the camera occasionally focusing on the US Army Chorus. You realize, this is at the White House, and a song written in tribute to God is being played at the White House. In this country there has been such an effort, and it has been way too successful, to remove God from anything public. Not only was God present, but the largest White House welcoming ceremony ever participated in a ceremony thanking God and respecting God and offering up a tribute to God, and you just have to hear this. It runs about 4:47. It's infectious, so well done. The US Army Chorus, The Battle Hymn of the Republic.

(playing of The Battle Hymn of the Republic)

That is just beautiful. I'm at a loss for words to describe the impact that had on me, and I was not even paying close attention. I was looking at the computer and I had the TVs on, which are to my left when I'm sitting at the computer. I heard this start, and I told Cookie up in New York, "Get me the song. I want the song as part of the audio sound bites." She said, "You can hear it?" I said, "I can always hear God's music."

So, now, wait. Did Rush have a religious experience, or was he just delighted by the thought of those people — those liberals — having conniptions about the intermingling of religion and government?

THE PRESIDENT: In a world where some treat life as something to be debased and discarded, we need your message that all human life is sacred and that each of us is willed, each of us is loved. And your message that each of us is willed, each of us is loved, and each of us is necessary. In a world where some no longer believe that we can distinguish between simple right and wrong, we need your message to reject this dictatorship of relativism and embrace a culture of justice and truth.

RUSH: This is just fabulous. This is exactly what this country needs at this time. It took the arrival of Pope Benedict XVI to bring forth a discussion -- a discussion I have been so desirous that happen at the highest levels of our elected leadership, a discussion of American exceptionalism.

Of course, the Pope is not bringing a message of American exceptionalism. So does he mean that the ceremony for the Pope gave President Bush a platform to proclaim American exceptionalism? But you see Bush's words. They aren't about American exceptionalism. They are about universal values, which is precisely appropriate for the occasion — as the proclamation of American exceptionalism would not be.

I've never seen a more vivid example of Rush Limbaugh hearing what he wants to hear.

You can hear it? I can always hear God's music. If by God, you mean the voices in your own head.

He goes on:

Once again, as you know, folks, I have been begging, I have been clamoring, I have been asking, "Where is the discussion in this country of American exceptionalism? Where is it in this presidential campaign?" It's nowhere to be found. You won't find it. It took the arrival of Pope Benedict XVI for a discussion and statement of American exceptionalism to be made.

POPE BENEDICT: From the dawn of the republic, America's quest for freedom has been guided by the conviction that the principles governing political and social life are intimately linked to a moral order based on the dominion of God the Creator. The framers of this nation's founding documents drew upon this conviction when they proclaimed the self-evident truth that all men are created equal and endowed with inalienable rights grounded in the laws of nature and of nature's God.

Is that American exceptionalism? It seems to me the Pope is speaking of the universal "dominion of God" and the way America's founders acknowledged it. Not that they were special, but that they, like everyone who ever lived and who ever will live is subject to God's moral order.

Limbaugh plays another Pope clip: "As the nation faces increasingly complex political and ethical issues of our time, I'm confident that the American people will find in their religious beliefs a precious source of insight and an inspiration to pursue reasoned, responsible and respectful dialogue in the effort to build a more human and free society." Really, that is nothing but a generic statement that religion is good and people should be religious and good.

Now, here's Rush, in that special slightly bonkers manner of his that listeners find either so endearing or so infuriating:

And he continued on, and he ended it by saying God bless America. He's a big fan of America, Joseph Ratzinger is his prepapal name. He's from Germany, as you can tell. But it was just uplifting to me. I take this stuff personally. I love this country. I love anybody else who loves this country, and I don't care who it is that requires or necessitates or creates this discussion, gets it started, of the concept of American exceptionalism, whether it's the pope or whether it's somebody else. But I really wish that some of our own elected officials in power, leadership positions, would have the guts to speak of it in that context rather than wringing our hands and whining and moaning about how hard we have it and how horrible things are and how unfair life is and all the other things that people have become comfortable whining about. Thanks to the pope and the president today for this remarkable, remarkable ceremony at the White House.

He's a big fan of America, you know, this Pope, this Joseph Ratzinger. And check out that accent. German! He's from Germany! Wow! I love anybody who loves this country!

The Supreme Court rejects the constitutional challenge to execution by lethal injection.

The Supreme Court has decided the lethal injection case — PDF — and I'm not surprised, having listened to the oral argument, to see that the Court rejected the argument that the 3-drug protocol violates the constitutional ban on cruel and unusual punishment. I'll read the opinions and update. For now, here's Lyle Denniston's summary:

The final vote was 7-2 in Baze v. Rees (07-5439), although there was no opinion that spoke for five or more Justices. The Court’s plurality adopted as a standard for assessing the validity of an execution method whether it poses a “substantial risk of serious harm.” It rejected the death row inmate’s proposal that the standard be “unnecessary risk.”...

Chief Justice John G. Roberts, Jr.’s plurality opinion said that a death-row inmate cannot win a challenge to an execution protocol “merely by showing a slightly or marginally safe alternative.” Instead, there must be proof that the options available must prevent a “substantial risk of serious harm.” A state is free to choose a procedure, Roberts wrote, if it is shown to be “feasible, readily implemented, and in fact significantly reduce[s] a substantial risk of severe pain.” The opinion then added: “If a state refuses to adopt such an alternative in the face of these documented advantages, without a legitimate penological justification for adhering to its current method of execution, then a state’s refusal to change its method can be viewed as ‘cruel and unusual punishment’ under the Eighth Amendment.”

ADDED: The Chief Justice, joined by Justices Kennedy and Alito, observes that it is well-settled that capital punishment is constitutional. That being the case, "there must be a means of carrying it out."

Some risk of pain is inherent in any method of execution—no matter how humane—if only from the prospect of error in following the required procedure. It is clear, then, that the Constitution does not demand the avoidance of all risk of pain in carrying out executions.

In fact, the Court has never invalidated a method of execution, he writes. In approving of execution by firing squad in the late 19th century, for example, the Court distinguished methods that were designed to add pain or degradation to the process of killing and noted that the English have sometimes disemboweled a living person before beheading him or dissected him in public.

The 3-drug protocol could be used deliberately to torture a person. If the first drug is insufficient, he could remain conscious while the second drug paralyzed him and the third drug stopped his heart. But the argument in this case was not that states were "superadding" torture, but simply that a mistake could be made. This is not, according to the Chief Justice, the "objectively intolerable risk of harm" that would count as cruel and unusual, in violation of the 8th Amendment.

But if the drug doses could be improved to reduce the risk, why not require it? Roberts says that would set a standard that would foment litigation whenever one could point to "a slightly
or marginally safer alternative... embroil[ing] the courts in ongoing scientific controversies beyond their expertise," and intruding on state legislatures, which, in fact, have a good record of adopting humane execution methods.

Justice Thomas, joined by Scalia, rejects Roberts's standard. He vividly describes 18th century executions conducted in a manner intended "to terrorize the criminal, and thereby more effectively deter the crime."

These “superadded” circumstances “were carefully handed out to apply terror where it was thought to be most needed,” and were designed “to ensure that death would be slow and painful, and thus all the more frightening to contemplate.”...

Although the Eighth Amendment was not the subject of extensive discussion during the debates on the Bill of Rights, there is good reason to believe that the Framers viewed such enhancements to the death penalty as falling within the prohibition of the Cruel and Unusual Punishments Clause. By the late 18th century, the more violent modes of execution had “dwindled away,” and would for that reason have been “unusual” in the sense that they were no longer “regularly or customarily employed,”...Embellishments upon the death penalty designed to inflict pain for pain’s sake also would have fallen comfortably within the ordinary meaning of the word “cruel.” See 1 S. Johnson, A Dictionary of the English Language 459 (1773) (defining “cruel” to mean “[p]leased with hurting others; inhuman; hard-hearted; void of pity; wanting compassion; savage; barbarous; unrelenting”); 1 N. Webster, An American Dictionary of the English Language 52 (1828) (defining “cruel” as “[d]isposed to give pain to others, in body or mind; willing or pleased to tor-
ment, vex or afflict; inhuman; destitute of pity, compassion or kindness”).

So it is enough, in Thomas's view, to avoid intentionally enhancing the pain of execution.

It is not a little ironic—and telling—that lethal injection, hailed just a few years ago as the humane alternative in light of which every other method of execution was deemed an unconstitutional relic of the past, is the subject of today’s challenge. It appears the Constitution is “evolving” even faster than I suspected.

Thomas thinks it's "obvious" that death penalty opponents will do what they can to obstruct the death penalty, which makes it important to establish a "bright-line rule" that will spare the states the pain of further litigation. But the Court has denied the states this mercy:

[T]oday’s decision is sure to engender more litigation. At what point does a risk become “substantial”? Which alternative procedures are “feasible” and “readily implemented”? When is a reduction in risk “significant”? What penological justifications are “legitimate”? Such are the questions the lower courts will have to grapple with in the wake of today’s decision.

Justice Breyer too concurs:

I cannot find, either in the record or in the readily available literature that I have seen, sufficient grounds to believe that Kentucky’s method of lethal injection creates a significant risk of unnecessary suffering.

Justice Stevens concurs. Noting that the case today does not foreclose further litigation of the issue, he gives the states some advice: consider ending the use of the paralyzing drug (pancuronium bromide). The Court won't find its use unconstitutional, but the states might be well-advised to end it on their own.

Stevens also writes at length to take the position that the death penalty itself — because of its "negligible returns to the State" — is "patently excessive and cruel and unusual" in violation of the 8th Amendment. This, as Justice Scalia puts it in his separate opinion, "repudiate[s Justice Stevens's] prior view and ... adopt[s] the astounding position that a criminal sanction expressly mentioned in the Constitution violates the Constitution." Because the 5th amendment text refers to "a capital, or otherwise infamous crime" (requiring a grand jury) and to the requirement of due process for the the deprivation of "life," Scalia writes, the Constitution must be read to approve of the death penalty.

The 2 dissenting justices are Ginsburg and Souter. Ginsburg writes the opinion. They would "remand with instructions to consider whether the failure to include readily available safeguards to confirm that the inmate is unconscious after injection of sodium thiopental, in combination with the other elements of Kentucky’s protocol, creates an untoward, readily avoidable risk of inflicting severe and unnecessary pain."

Scalia on C-Span.

Video accessible from the C-Span front page. He's talking to students at Thomas Jefferson High School in Alexandria, VA.

ADDED: A little simulblogging:

Scalia tells the kids he has 28 grandchildren.

I laughed at about 5:40, at the closeup of two boys reacting to the story of a woman in the 19th century who offered her grandson $5 if he would memorize the Constitution.

He tells them no other country has a term equivalent to "un-American." (Is that true?)

He tells them the Constitution mentions the death penalty "approvingly."

He says that Kelo is "a fragile decision" that will not "stand the test of the ages."

"You can murder anybody in the country and still not violate federal law, if you do it right."

A student asks what thinker has most influenced you, and he's stuck for a moment, then plugs in his tape loop on "The Federalist," then concludes that the answer is: the Framers... "James Madison, Alexander Hamilton, John Marshall... why don't I just say the Framers?"

Why did Scalia go to law school? He had nothing better to do. He says it again in French: Faute de mieux. Plus, he had an Uncle Vinnie who was a lawyer. And he loves process. And words. And he loves it. You kids should do what you love.

What does he like most about being a Justice? The law! He gets a "kick" out of figuring out "even the most insignificant legal problem." He finds writing "painful" but loves "having written." What does he like least? His first thought is "being a public figure," but he settles on "reviewing cert. petitions." Too many of 'em!

Does the Court have any traditions, like maybe "Movie Night"? "It used to be a tradition to wear these little pill box hats... oh, and... whenever we meet after robing — putting on our little Superman suits — before going out to the bench, we all shake hands with each other."

Why is he opposed to cameras in the courtroom? Most people would watch a 15-second sound bite that would not be characteristic of the oral argument, and he doesn't want to be part of the "miseducation" of the American people.

What was he like in high school? (Good question. Life is high school, right?) "I was something of a greasy grind." President of the Dramatic Society. Played the lead in "MacBeth." Played the French horn in the band. On the junior varsity rifle team. In the Boy Scouts. "Pretty normal childhood, yeah... Middle class, maybe lower middle class — eh, middle class."

When he was a kid, he didn't "aspire" to anything. The "secret" is to "keep your nose to the grindstone." And "a whole lot of luck."

At about 50:35, he impersonates a cop giving the Miranda warnings.

"In my social views, which I do not apply from the bench, I am a fairly conservative fellow."

Randy Barnett knows a few things about the DC gun case.

The Heller case will — he assures us — be decided on originalist grounds, because both sides are arguing the case that way:

The challengers of the law contend that the original meaning of the Second Amendment protects an individual “right to keep and bear arms” that “shall not be abridged.” In response, the District does not contend that this right is outmoded and that the Second Amendment should now be reinterpreted in light of changing social conditions. Not at all. It contends instead that, because the original intentions of the framers of the Second Amendment was to protect the continued existence of “a well regulated militia,” the right it protects was limited to the militia context.

Barnett also knows that the the Court will uphold the individual right to bear arms and not the collective right theory, because even the District of Columbia is saying it's an individual right (albeit "'conditioned' on a citizen being an active participant in an organized militia").

So it will be an individual right, but it won't change much of anything. Barnett explains: First, because it's a D.C. case, the issue of whether the 2d Amendment applies to the states won't be decided. Second, Heller presents an extreme fact pattern: the ban on having an operable gun in your house. The Court can strike that down without threatening other less drastic laws.

Barnett is reminding me of one reason why I haven't gotten too excited about this case. (Another reason is that it's a personal quirk of mine to get unexcited when I see other people getting too excited.) But Barnett tries in the end to say why the case is actually important:

For one thing, it would be a vindication of originalism. More importantly, the private ownership of firearms is a hallmark of American liberty....

This seems like a small pay off after so much work. There will be a right, but it won't be too useful. Barnett even frets that legislators will slack off on the protection of gun rights because they'll be able to act like the courts will take over. Announcing the individual right is a "risk," he says, but it's "worth taking," now that the case is before the Court. It would be worse for gun rights supporters to hear that the right isn't there at all, wouldn't it?

Dreaming of a heroically liberal Supreme Court.

Linda Greenhouse has a piece today about liberals scheming to "take back" the Supreme Court.

[S]ome liberal legal scholars suggest that beyond political tactics, what the left urgently needs is a long-term strategy built around an affirmative message of what the Constitution means and what the enterprise of constitutional interpretation should be about....

Exactly what that vision should encompass is now the question. It is easy enough to find consensus on a checklist that would include a robust reading of the guarantees of the Bill of Rights, including the notion that some rights are fundamental; a constitutional interpretation not tethered to a search for the framers’ original intent; invigorating the right to privacy to include personal privacy in the electronic age; restoring the shield of habeas corpus; and recapturing the government’s ability to intervene for the benefit of African-Americans and other minority groups without being constrained by the formal and ahistorical neutrality that liberals saw as the conceptual flaw in the chief justice’s opinion a little over a week ago invalidating two voluntary school integration plans.

Recapturing the government’s ability to intervene for the benefit of African-Americans and other minority groups without being constrained by the formal and ahistorical neutrality that liberals saw as the conceptual flaw in the chief justice’s opinion a little over a week ago invalidating two voluntary school integration plans. That's one hell of a snappy phrase.

Actually, the reason that item looked so awkward on the checklist is that it's different from all the other items. Greenhouse had to strain to try to make it not look different. Everything else is about expanding constitutional rights, and that one's about narrowing rights. The way you "recapture" "ability" (AKA power) for the government is by cutting out the rights.

Greenhouse interviewed a few liberal lawprofs who bemoaned the loss of the "heroic" liberal Supreme Court justice and spoke of a long time line for getting back to a Court that would resemble what we had in the days of Earl Warren. But there's no substance to this plan. It's just the expression of a wish about the future (or a longing for the past).

This grand vision for a Court that would expansively and actively enforce rights will be seen by present day voters as a political proposal. If people today really want that vision, they can get it from the political branches. They don't need a reactivated liberal Court.

The liberal lawprofs' dream seems to be that you could get people to believe that the expansive vision of rights is the proper way to do constitutional interpretation and they'd be willing to go along with that even if they didn't want these rights enough to support enacting them into law through statutes. But what are the chances that people today would allow liberal academics to convince them of such a thing?

Chris Wallace asks Giuliani about his statement that it's "okay" if Roe is overruled and "okay" if it's not -- but doesn't push him on his answer.

Yesterday, on "Fox News Sunday," Chris Wallace invited Rudy Giuliani to clarify what he'd said at the Republican debate on the subject of abortion, that it would be "okay" if Roe v. Wade were overruled and "okay" if it were not. How could be be so "indifferent" on a subject most Americans are so passionate about?

I'm very, very passionate about abortion and the whole issue of abortion. But it leads me to a conclusion that may be different than some, the same as others, which is I oppose it. That's a principle I've held forever, and I'll hold it forever. That's not going to change.

But I also believe that in a society like ours, where people have very, very different consciences about this, it's best for us to respect each other's differences and allow for choice.

So with regard to Roe against Wade, since I'm seeking the presidency of the United States and my view is that there shouldn't be a litmus test on Roe against Wade, it seems to me the best position to take is I don't want a litmus test for judges.

We didn't want Justice Roberts or Justice Alito to answer that question. They both answered that question they would consider it, they would look at it.

I'm going to select strict constructionist judges. They're free to take a look at Roe against Wade, take a look at the limitations. But I believe I should leave it to them to decide that.

WALLACE: But just to revise your answer last week, then, you personally, supporting choice, would not feel it's OK if the Supreme Court...

GIULIANI: What I meant to convey — if I didn't convey it correctly, I'll convey it again. The country could handle it. I mean, the country — we've got a federal system. What would happen is states would make decisions.

We're already doing that with the Hyde amendment. Federal funds for abortion are limited. States make their own decisions.

Wallace is a softball interviewer. He does not push Giuliani with what is a crucial question here. This is what I would have asked: But can't Congress regulate abortion? The Supreme Court just upheld a federal statute limiting abortion. If there can be federal statutes, without federal abortion rights, we could end up with a federal ban on abortions, a federal murder statute. How can you assure us that the states would make the decision?

Here's what Wallace actually asked at this point: "But would you personally be disappointed?" What's that, the old "how does it make you feel" question? What difference does it make if he's "personally ... disappointed"? We're not electing a National Oprah to feel for us.

Giuliani, to his credit, essentially tells Wallace that's a lame question:

I don't think it's a question of being disappointed or being happy about it. I think it's a question of not wanting to make this a litmus test for judges, so that a judge feels free to listen to the facts, listen to the arguments, and come to the decision they think is the correct interpretation of the Constitution.

Some strict constructionist judges are going to decide it was wrongly decided. Other strict constructionist judges may give more weight to the precedential value of it, the fact that it's been the law for this length of time.

And if you read Justice Kennedy's opinion for the court in the partial birth abortion ban, you can see the tension there between these two things. And I think the court should be allowed to decide this.

This is the right way to answer the bad question. The key abortion-related job for the President is nominating Supreme Court justices, and he should give us confidence that he will select individuals who deserve and can be trusted with the vast power they will have in their hands.

But again, I would want to say: Yes, about that partial birth abortion ban -- it is a federal statute, applicable in all the states, now, is it? How does that jibe with your enthusiasm for our federal system? And to make it interesting: Will you choose the kind of Supreme Court justices who, like Clarence Thomas, would find significant constitutional limitations on Congress's power? Do you think the Constitution reserves legislative power to the states on the subject of abortion? If Roe were overruled, would you veto any bill that intrudes on this power, whether it limits abortion or grants abortion rights?

Wallace allows Giuliani to go on generically about how one ought to want good judges and not use a "litmus test" about abortion.

I would consider the following about a judge. Are they someone who interprets the Constitution rather than legislates? Are they someone who seeks the meaning of the words of the Constitution?

A decision like Judge Silberman's decision in the D.C. Circuit is the kind of decision I'd point to where he found a constitutional right to bear arms, went way, way back to the framers, to the Federalist Papers, tried to figure out what did they mean when they put those words in the Constitution that the people have a right to bear arms.

That's the kind of judge I would want. I might not agree on every decision they make, but that's the kind of judge I would appoint.

This is safe territory for Giuliani. Pointing to Laurence Silberman's opinion -- which you can read about here -- was a nice touch, a nice way to convey the sense that what you want from a court is pure quality and competence that will allow it operate independently from personal or political opinion.

"Bad for You" books.

The NYT Book Review this week has a theme: "Bad for You." I don't think the individual books are anywhere near as interesting as collecting them together like this makes them seem.

For example, one book is about email -- don't you know you can get yourself in trouble via email? -- and even with Dave Barry writing the review, email is a dull topic. Don't tell me, let me guess. People hit the "send" button hastily, writing lacks the emotional cues of a face-to-face conversation, and blah blah blah.

NYT writer Gina Kolata has written a book about our fatness -- "Rethinking Thin" -- that is reviewed by Slate writer Emily Bazelon:

Kolata ends on a quixotic note, by wondering if perhaps Americans weigh more for the same reason that we’re taller on average than we were a century ago — because we’re in better health. Maybe the extra pounds even help contribute to this well-being.

What's "quixotic" about another repetition of the idea that fat people are actually healthy? I suspect this is the sort of thing you say in a book about fat to appeal to the people who would buy a book about fat. If we're getting fatter all the time for the same reason we're getting taller, why does that mean we're more healthy? It seems to mean we have steady access to food, and our bodies evolved to deal with scarcity, so we're really good at using food, loading up when we get the chance, and storing it away for a famine. When the famine never comes -- which is good -- it's bad.

Nirvana! Is Nirvana -- the band -- bad for you? Benjamin Kunkel reviews Everett True's "Nirvana":

[I]t is difficult to hold on, from year to year, to all the strength and pain of being young. It is also difficult to remain quite so completely confused. Yet there is honor in confusion — since figuring out how you feel usually means abandoning one of your truths. And the adolescent, like the artist transformed into a commodity, is right to be confused: right to want to be popular; right to be contemptuous of popularity; right to hate the faults in himself that make his popularity undeserved; and right also to hope that winning a deserved popularity might actually redeem, for a time, the entire category of the popular.

There, now, does that help? Should you listen to your Nirvana records again, or do they embarrass you? Would you read a bio of the band?

Camille Paglia reviews Jon Savage’s "Teenage: The Creation of Youth Culture":

Savage amusingly juxtaposes the earnest social prototype of the “muscular Christian” with the capricious iconoclasm of Arthur Rimbaud and Oscar Wilde. Missing, however, is the Romantic lineage of these writers in Théophile Gautier and other aesthetes : not everything in literature should be interpreted as a direct response to current events or social conditions.

Amuse me with juxtapositions and then piss me off by failing to juxtapose something that my capriciously iconoclastic mind juxtaposed.

Here's a review of "The Joys of Drinking." Barbara Holland has written a book about the history of alcohol use, and she's putting a positive spin on it. The Constitution's framers drank a lot, people socialize in bars, etc.

[Holland] can’t abide our current era of moderation. Hip urbanites, she writes, “turned drinking in moderation into a high-class avocation.” Wine tours caught on and microbreweries arrived. The devotees “aren’t drinkers. They’re connoisseurs and critics, priests of ritual, sniffers and tasters, discerning scholars scowling thoughtfully into their glass. Fun has nothing to do with it. ... In the metropolitan haunts of the highly sophisticated, the cocktail is no longer an instrument of friendship but a competitive fashion statement, or one-upmanship.”

Is that moderation? You can have different kinds of attitudes and tastes and still drink a lot. And hasn't there always been a high class and a low class approach to drinking? I don't get it. This review, by Robert R. Harris, is just not critical enough, but it is studded with tasty nuggets of information, gving me the feeling the "Bad for You" themed Book Review is just here to entertain us, to play the "most-emailed" list game to win.

I respond to letters about two NYT columns (on abortion and law school).

The NYT today has three letters on my Feb. 24 column, "Rudy & Mitt Hem & Haw on Abortion." And, check it out, the first one is from Floyd Abrams:

Ann Althouse’s apologia for the so obviously politically crafted shifts in position on abortion by Rudolph W. Giuliani and Mitt Romney is undeserved....

Mr. Giuliani and Mr. Romney have a similar problem, one not to their credit. Running as Republicans in liberal Northeastern areas, both sought to reassure pro-choice voters that they had nothing to fear from their election.

Now, both seek to appease pro-life Republicans elsewhere in the country by assuring them that their views are truly conservative, that they will appoint “strict constructionist” (read anti-Roe v. Wade) judges and the like.

Neither candidate deserves what Ms. Althouse refers to as “decent sympathy” for their expression of complex views, since there is nothing complex about waffling.

Who knows, after all, what views either of these politicians ever actually had or has now? All we do know is how far both are prepared to go to be elected.

I certainly concede these political realities. I simply defend their statements in spite of that. Of course, politicians are political. Deal with it! But abortion is a difficult issue and those who craft complex positions deserve some sympathy. Otherwise, you're left with those who stay at the crisp extremes.

Basically, I like the sort of liberal(ish) Republican that can succeed in a blue state, and the point of the column is to show that their convoluted statements are not as ridiculous as they appear on first read.

The second letter is from Nancy N. Northup, president of the Center for Reproductive Rights, and she mainly (and unsurprisingly) stakes out the position in favor of abortion rights (which, remember, I support). But let me focus on the last part:

Unless a woman can make her own decisions about her life, she isn’t in control of her future. Allowing states to take away women’s fundamental human rights is not a “part of our freedom,” as Ann Althouse writes, but rather the tyranny she fears.

This refers to my discussion of Giuliani's garbled sounding comment about "how it’s 'part of our freedom' for the legislatures in the various states to make their own decisions about law." I say:

If Roe were overruled, [state] legislatures would decide how to regulate abortion. And decentralized legislation really is fairly called “part of our freedom” because the Constitution’s framers saw the balance of power between the national government and the states as a safeguard against tyranny.

All I'm doing there is explaining the sense of what Giuliani said. It isn't my preference to return the question of abortion to the states, and I don't think it's Giuliani's. But if Roe were overturned, the question would go back to the states, and there is a question what that would be like. What would happen?

In thinking about this eventuality, it is helpful to remember that the federalism has long been considered a structural safeguard that has something to do with individual liberty. As I have written here before, there is plenty of reason to be suspicious of how well that kind of safeguard could work, but my point remains: It was not incoherent or bizarre for Giuliani to connect federalism and freedom.

The third letter comes from a reader who is pro-life, Richard H. Escobales Jr. He says he "appreciated" my column, but: "I find that the muddled positions of Rudolph W. Giuliani and Mitt Romney on this critically important issue do not inspire confidence." So, he kind of didn't appreciate my column.

And there was a letter yesterday, by David W. Massey, about my Feb. 20 column -- "'A Skullful of Mush'" -- which recommended a revival of Socratic teaching in law school:

There is an underlying premise in Ann Althouse’s plea for traditional law school instruction (“ ‘A Skull Full of Mush,’ ” column, Feb. 20), and that is that law school graduates, drilled in the case method, will leave knowing “how to think like lawyers.”

My law school experience long ago taught me to challenge pious premises.

If law school teaches students properly, it can only begin to prepare them to confront the unexpected in advising clients, working with other lawyers and arriving at acceptable results.

Last year, while celebrating a college reunion, I wandered back to the law school, and in the same classroom where the Charles W. Kingsfield Jr. of my acquaintance practiced his particular brand of intimidation, I observed a different approach: where the professor respectfully listened to volunteers and didn’t dictate to his class how they should think, because he knew that there wasn’t one way for lawyers to do so.

There's a paradox here. Did he learn from the method or not? He admits he did, even as he admires another method. Yet I'm not so sure he learned how to read all that well, because he's seeing something in my column that was not there: an endorsement of the use of intimidation, disrespect, and dictatorial indoctrination.

I emphasized that I didn't know any law professors who were the Kingsfield type, so that it was rather nonsensical for us to worry about acting like that fictional character, who the "Paper Chase" author, John Jay Osborn Jr. admitted was an exaggeration. I said that we lawprofs ought to have some respect for our own tradition and concluded:

The students who come into our law schools are adults who have decided that they are ready to spend a tremendous amount of time and money preparing to enter a profession. We show the greatest respect for their individual autonomy if we deny ourselves the comfort of trying to make them happy and teach them what they came to learn: how to think like lawyers.

Note that I didn't say we should try to make them unhappy, only that we default in our central responsibility if we structure class around the idea of trying to make them happy.

Actually, I think they are more likely to end up happy if the class teaches them what they need to know. What I was rejecting was a class that is too much about students "telling their stories." I am willing to bet that most students don't want to spend too much of their time listening to the stories other law students have to tell.

As for taking volunteers instead of calling on people, I have to confess that I've usually done that in my 20+ years of teaching. But I think it is self-indulgent -- it's much easier! -- and it invariably leaves too few students doing too much of the talking. When you call on students, you find that they really are all quite capable of speaking and responding well to questions, and it is important to demonstrate this and to provide them all with this experience.

Has Rudy Giuliani gotten incoherent about abortion?

Here's a NYT piece about how Rudy Giuliani is reframing his stance on abortion to appeal to conservatives. It contains a quote that I found puzzling:

“On the federal judiciary I would want judges who are strict constructionists because I am,” he said last week in South Carolina. “I have a very, very strong view that for this country to work, for our freedoms to be protected, judges have to interpret, not invent, the Constitution.

“Otherwise you end up, when judges invent the Constitution, with your liberties being hurt. Because legislatures get to make those decisions and the Legislature in South Carolina might make that decision one way and the Legislature in California a different one.”

How is "strict construction" supposed to protect liberty, and why would it help to have legislatures in different states making different decisions about "your liberty"? The NYT article leaves us hanging -- Rudy seems incoherent -- and moves on to what he said to Sean Hannity the other day about "partial-birth" abortion and parental notification laws.

This seems to be the full context of Giuliani's statement. It adds one more sentence that made me get his point, which in fact makes sense:

"On the Federal judiciary I would want judges who are strict constructionists because I am. I'm a lawyer. I've argued cases in the Supreme Court. I've argued cases in the Court of Appeals in different parts of the country. I have a very, very strong view that for this country to work, for our freedoms to be protected, judges have to interpret not invent the Constitution. Otherwise you end up, when judges invent the constitution, with your liberties being hurt. Because legislatures get to make those decisions and the legislature in South Carolina might make that decision one way and the legislature in California a different one. And that's part of our freedom and when that's taken away from you that's terrible."

The meaning is none too obvious, so I'm not criticizing the NYT for dropping that last line, but it was enough to tip me off that he was talking about federalism (a subject I teach and write about).

I'm not surprised that Giuliani didn't launch into a discourse on federalism in front of a crowd of non-lawyers. But there is a constitutional law point is embedded in these few words. The idea is that constraining the scope of federal constitutional rights leaves more room for legislatures to regulate in ways that suit the preferences of the people in the difference states, and this power to make different law in different places is an aspect of freedom. The people in South Carolina might like things one way and -- look at the other state he chose to name -- the people of California might like something else.

Why is federalism an aspect of freedom? Here's a good passage written by Justice O'Connor that ties federalism to the protection of freedom (from Gregory v. Ashcroft, 501 U.S. 452 (1991)(citations omitted)):

Perhaps the principal benefit of the federalist system is a check on abuses of government power. "The 'constitutionally mandated balance of power' between the States and the Federal Government was adopted by the Framers to ensure the protection of 'our fundamental liberties.'" Just as the separation and independence of the coordinate Branches of the Federal Government serves to prevent the accumulation of excessive power in any one Branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front. Alexander Hamilton explained to the people of New York, perhaps optimistically, that the new federalist system would suppress completely "the attempts of the government to establish a tyranny":

"[I]n a confederacy the people, without exaggeration, may be said to be entirely the masters of their own fate. Power being almost always the rival of power, the general government will at all times stand ready to check usurpations of the state governments, and these will have the same disposition towards the general government. The people, by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other as the instrument of redress." The Federalist No. 28, pp. 180-181 (A. Hamilton).

James Madison made much the same point:

"In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself." The Federalist No. 51, p. 323 (J. Madison).

One fairly can dispute whether our federalist system has been quite as successful in checking government abuse as Hamilton promised, but there is no doubt about the design. If this "double security" is to be effective, there must be a proper balance between the States and the Federal Government. These twin powers will act as mutual restraints only if both are credible. In the tension between federal and state power lies the promise of liberty.

So Giuliani was referring -- I think -- to the idea that the preservation of the legislative autonomy of the states is an important constitutional structural safeguard that works to protect individuals. We tend to be so used to the idea that courts protect freedom by enforcing individual rights that we forget to think about how the original Constitution embodies a belief in protecting the people from the abuse of power by dividing it up.

Of course, you're entitled to be suspicious about whether federalism protects freedom. O'Connor expressed the skepticism that the history of states rights in the United States demands:

One fairly can dispute whether our federalist system has been quite as successful in checking government in checking government abuse as Hamilton promised....

By failing to explore the idea that Giuliani was talking about federalism, the NYT deprived readers of an opportunity to understand the coherence of his remark, but it also spared him a criticism. There he was in South Carolina letting people know -- if they could pick it up -- that he cared about states' rights.

The Times article, as noted, moves on to the subject of what Giuliani said about "partial-birth" abortion:

[H]e told Mr. Hannity that a ban signed into law by President Bush in 2003, which the Supreme Court is reviewing, should be upheld....

[But when a]sked by Tim Russert on “Meet the Press” in 2000 if he supported President Bill Clinton’s veto of a law that would have banned the disputed abortion procedure, Mr. Giuliani said, “I would vote to preserve the option for women.” He added, “I think the better thing for America to do is to leave that choice to the woman, because it affects her probably more than anyone else.”

Is this a contradiction? No. To say that the Court should uphold a statute is to say that it is not a violation of constitutional law. The question from "Meet the Press" is about whether, as the executive with the veto power, he would sign the law. One could think a law should not be passed -- because you want "to preserve the option for women" -- without also thinking that the law would be unconstitutional. The language "the option for women" itself suggests that he was talking about what is good policy rather than the scope of rights that courts need to enforce.

If you look at the transcript of the Hannity show, you can see this:

HANNITY: There's a misconception that you supported partial-birth abortion.

GIULIANI: Yes, well, if it doesn't have a provision for the life of the mother, then I wouldn't support the legislation. If it has provision for the life of the mother, then I would support it.

Is that inconsistent with what he said in 2000 about Clinton's veto? The bill that President Clinton vetoed did contain exception for the life of the mother: It did not apply to "a partial-birth abortion that is necessary to save the life of a mother whose life is endangered by a physical disorder, illness, or injury: Provided, That no other medical procedure would suffice for that purpose."

There's room to wriggle out of the contradiction by saying that is not a proper "life" exception, and I would cut Giuliani some slack for not going into the details on the Hannity show. What "other medical procedures" would women be forced to endure to save their own lives? Would you require a woman with a life-threatening medical condition to have a Caesarean section -- as long as she could survive it -- in order to remove a fetus that was only going to die in the womb?

The NYT article also points to a seeming contradiction about parental notification laws. Here's what Giuliani said on Hannity (from the transcript) in response to the two word question "Parental notification?":

Parental notification, I think you have to have a judicial bypass. If you do, you can have parental notification. And I think the court -- I mean, that's the kind of thing I think the court will do with abortion.

And here's the NYT:

[O]n a 1997 candidate questionnaire from the National Abortion and Reproductive Rights Action League of New York, which Mr. Giuliani completed and signed, he marked “yes” to the question: Would you oppose legislation “requiring a minor to obtain permission from a parent or from a court before obtaining an abortion.”

This is definitely not a contradiction. On Hannity, Giuliani was clearly talking about how constitutional law should be interpreted. On the 1997 questionnaire, he was clearly talking about how he would exercise his role in the legislative process.

Now, you can say, but he's running for President now, and he'll have the veto power, so what matters is how he handles federal legislation. If he would veto anti-abortion bills, shouldn't pro-lifers reject him? I think you need to see how Giuliani's various statements point to the federalism solution. Let the law vary from state to state, reflecting the different preferences of decentralized majorities at the state level. This solution depends not only on the Supreme Court's interpreting rights narrowly enough to leave room for state regulation, but also on the absence of federal legislation that would preempt state law.

If your conservatism extends to federalism, you should see why Giuliani's seemingly complicated position is perfectly coherent.

UPDATE: Andrew Sullivan agrees with me about Rudy and goes on to say that he has long favored the federalist solution to the abortion controversy. Read his whole post, but let me highlight some of it:

The South is a very conservative place. Forcing them to move more quickly on issues of basic human dignity has historically led to even worse spasms of hatred...

It seems to me that if the conservative coalition is not going to fracture completely, then federalism is its only option. That way, centrists like McCain, Romney and Giuliani can actually become Republican presidents.... Opting to use federalism as the mechanism to allow the social conservatives to support him on other issues like national security and a more competent government, while personally supporting women's freedom and gay dignity, is extremely smart politics.

I think Rudy is the best and most viable candidate the Republicans now have....

Let me flag two posts of mine from last fall about abortion and federalism: this one (responding to a lecture from Harvard lawprof Richard Fallon) and this one (reprinting an op-ed I wrote in the Wall Street Journal).

Glenn Reynolds also links and writes:

First, Ann refers to federalism's role (under the inaccurate moniker of "states' rights") as a shibboleth for anti-desegregation forces.

I agree that "states' rights" is a misnomer and use it here only to refer to the historical rhetoric. I used to think only people who didn't like federalism would use the term "states' rights" other than to call to mind the bad old days of slavery and segregation, but I was surprised back in 2000, when I participated in the (now famous) "Constitution in Exile" conference at Duke Law School, that lawprofs Lynn Baker and Ernie Young used the term "states rights" in a positive way in their article "Federalism and the Double Standard of Judicial Review." I was one of the commenters on their article -- my piece is "Why Talking About 'States' Rights' Cannot Avoid the Need for Normative Federalism Analysis" -- and I wrote:

Baker and Young boldly employ the inflammatory term "states' rights." Before reading their wonderfully assertive new article, I had thought the term states' rights survived only in the vocabulary of opponents of the Supreme Court's recent efforts on behalf of the states. "Federalism," I would have thought, is the term of choice for supporters of the Court's current jurisprudence. The term federalism conjures up more functional and pragmatic ideas about the role of the states....

But Baker and Young openly, eagerly embrace not just federalism but "states' rights." Their use of the term "rights" is not accidental. The way they would treat states corresponds to the way American law treats individual human beings when it is said that they have rights. The law protects individual freedom of speech even though that freedom will be used by persons who have hateful, ugly, or disturbing things to say; the law, however, may justify this individual autonomy on the theory that, over time, good will emerge from the marketplace of ideas. By the same token, Baker and Young are willing to take the risk that some states might do bad things with their freedom. They want protection of state autonomy and rely on a belief that in the long run what the states do with their independence will accrue to the good. Just as some First Amendment libertarians advocate a marketplace of ideas, Baker and Young might be said to advocate a marketplace of states, offering Americans a choice of fifty different cultures....

This argument for diversity -- at least in cases in which uniformity is not necessary -- is a strong one, yet its appeal inevitably will vary depending on how one answers the normative question. As long as Americans fear that states will do too much harm and too little good if left to their own devices, they are likely to prefer not states' rights, but, at most, a flexible, pragmatic federalism.

(I hope regular readers of this blog see the resonance between what I was saying there and the dispute I had with the libertarians recently -- here, here, and here.)

Anyway, you should read the rest of Glenn's post. And Baker and Young's article is really good. More on the "Constitution in Exile" notion here and here.

"I'm sure that there are some conservatives out there who break out in hives when they hear a judge talking about activism."

Said Chris Wallace, interviewing Justice Stephen Breyer about his book "Active Liberty," on "Fox News Sunday" this morning. Breyer flipped out, turned bright red, and started accusing him of doing a right wing hit job. Just kidding. Can you even picture Breyer getting mad?

A taste:

WALLACE: Let's start with the title of your book, "Active Liberty." I'm sure that there are some conservatives out there who break out in hives when they hear a judge talking about activism. They get the idea you think it's OK to read all sorts of things into the Constitution so you get the results you want.

BREYER: I think the best description in one sentence of that title, "Active Liberty," is that the point of the book is we don't need activist judges; we do need activist citizens. And it's about not how judges should be activists. To the contrary, it's about how every citizen should participate in government.

WALLACE: But let's talk about that. Because in your book, you say that judges have various tools when they decide a case. And more important even than the language of the law, you say, are the purpose of the provision and the consequences of deciding it one way or another.

I want to put up a quote from your book and take a look at it, if you will. Here it is: "Since law is connected to life, judges, in applying a text in light of its purpose, should look to consequences including contemporary conditions, social, industrial and political, of the community to be affected."

Justice Breyer, when a judge takes it upon himself to interpret what purpose the founders, the framers meant when they put something in the Constitution, doesn't that allow them, a judge, to do almost anything?

BREYER: No, I think it's the contrary.

You see, it takes place in a context. I think whether you are a judge on my court or whether you are a judge on a court of appeals or any court, and lawyers too — and if you're interested in law yourself, you'll be in the same situation — you have a text that isn't clear.

If the text is clear, you follow the text. If the text isn't clear, you have to work out what it means. And that requires context.

The freedom of speech. Do you know what it means? Basically. But you don't know its entire content, and it doesn't tell you itself. Those words, "the freedom of speech," "Congress shall pass no law abridging the freedom of speech." Neither they, the founders, nor those words tell you how to apply it to the Internet.

So what can you use in a tough case to figure out how the First Amendment applies to cable television and requirements that cable carry over-the-air stations? How do you do it?

"Will a Democratic victory in today's election suddenly restore the integrity of America's political system...?"

Lawprof John O. McGinnis looks at two books that say American democracy is broken and thinks what he's seeing are two authors who don't like who's winning the elections these days:

In "Does American Democracy Still Work?" Alan Wolfe answers his own question with something equivalent to: if so, just barely and badly at that. For him, American democracy is in radical decline. Americans no longer get the information they need to make decisions properly, and politicians are no longer held accountable for the decisions they make in office. Emotional populist appeals, he believes, block out important facts....

In "Our Undemocratic Constitution," Sanford Levinson locates the flaws of the system in America's founding document itself--the Constitution....

He contends that the Electoral College, the Senate, the presence of two legislative chambers and the presidential veto all detract from "real" democracy. The Electoral College and the Senate give an unfair advantage to voters in less populous states; the requirement that both House and Senate approve of a bill makes it harder to fashion new law, and the veto makes it harder still, privileging the status quo.

Of course, the Constitution's design has a purpose--to make democracy republican and not "direct," to slow it down, lest wayward passions push the country too violently in one direction or another. Time seems to have vindicated the Framers' wisdom on such matters.... Mr. Levinson does not come close to showing why it would be prudent to rebuild this framework and put its redesign up for grabs.