Is government an "impetuous vortex" or a "hideous monster [with] devouring jaws"?

Reading the Obamacare case in class preparation today, I notice those 2 metaphors, both taken from the Federalist Papers, both used in the process of saying that the Commerce Power doesn't support the requirement that everyone buy health insurance. "Impetuous vortex" — from The Federalist No. 48, written by James Madison — is quoted in  Chief Justice Roberts's opinion:

The Government’s theory [of the scope of the commerce power] would erode those limits, permitting Congress to reach beyond the natural extent of its authority, “everywhere extending the sphere of its activity and drawing all power into its impetuous vortex.”

The "hideous monster [with] devouring jaws" — written by Alexander Hamilton in The Federalist No. 33 — appears in Justice Scalia's opinion:

If Congress can reach out and command even those furthest removed from an interstate market to participate in the market, then the Commerce Clause becomes a font of unlimited power, or in Hamilton’s words, “the hideous monster whose devouring jaws... spare neither sex nor age, nor high nor low, nor sacred nor profane.” The Federalist No. 33, p. 202 (C. Rossiter ed. 1961).

Many have noted that Scalia (joined by Kennedy, Thomas, and Alito) did not join the Roberts opinion on the Commerce Clause, even though they said basically the same thing about it. Their spirit of resistance shows even through their choice of a different Federalist Paper with a different author and a different metaphor for government's voracious maw.

"How many of you all believe that there is a movement to take away the Second Amendment?"

Democratic Senator Joe Manchin asked a group of his supporters back home in West Virginia.

About half the hands in the room went up.

Despite his best attempts to reassure them — “I see no movement, no talk, no bills, no nothing” — they remained skeptical. “We give up our rights one piece at a time,” a banker named Charlie Houck told the senator.

That's the anecdote that leads off the NYT article "Democrats in Senate Confront Doubts at Home on Gun Laws." The article ends:

During the lunch, Mr. Manchin shared a recent conversation he had with Vice President Joseph R. Biden Jr., the Obama administration’s point person on gun control.

“I said, ‘Mr. Vice President, with all due respect, I don’t know how many people who truly believe that you would fight to protect their rights.’ ”

The senator added, “That’s what we’re dealing with.”

How are we to think about rights? It's good for politicians to hear the deeply engrained American attitude: We give up our rights one piece at a time. There's a long tradition — predating the Bill of Rights — of thinking like that. Here's James Madison in 1785:

[I]t is proper to take alarm at the first experiment on our liberties. We hold this prudent jealousy to be the first duty of Citizens, and one of the noblest characteristics of the late Revolution. The free men of America did not wait till usurped power had strengthened itself by exercise, and entangled the question in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle. We revere this lesson too much soon to forget it.

The issue there was not guns but the use of tax money to pay for teachers of religion. In the paragraph quoted above, Madison went on to say that citizens should object to the requirement of paying even "three pence" to support a religion because a government that extracts even that trifle may go on to coerce religious conformity. The small things are not small. The small things are where the people still have the capacity to fight authoritarian government.

Democrats know this. They are part of this American culture of deeply engrained belief in constitutional rights. What is different to the Democrats is that they don't believe that the right to keep and bear arms is a constitutional right. They think the Supreme Court misinterpreted the Second Amendment when it found a constitutional right. District of Columbia v. Heller was a 5 to 4 decision, and the 5 are the 5 Justices, still on the Court, whom the Democratic Senators would love to have a chance to replace.

The NYT portrays the folks back home in West Virginia as misinformed, troublesome, and hysterical. That’s what we’re dealing with.

"53% of American Adults agree that the United States is a nation with liberty and justice for all..."

Rasmussen learns.

Forty percent (40%) disagree and say the United States is not like that....

Still, 79% of Americans say that if they had a choice to live anywhere in the world, they would still choose to live in the United States. Just 11% disagree, while 10% more are undecided.

For the first time since 2006, more Americans now consider Thomas Jefferson the greatest Founding Father. Thirty-five percent (35%) name Jefferson, the chief author of the Declaration of Independence, as the most important Founder, while 32% feel that way about George Washington.  In a distant third is Benjamin Franklin with 11%, John Adams at 10% and James Madison with just one percent (1%). With the exception of Franklin, the others constitute the first four presidents of the United States.

Most Republicans (56%) and Democrats (58%) believe America is a nation with liberty and justice for all. Adults not affiliated with either political party are evenly divided on this question.

GOP voters are more likely to name Washington as the greatest Founding Father, while Democrats and unaffiliated voters lean more towards Jefferson.

America, love it or leave it. That's the old saying, popular with right-wingers back in the Vietnam era. There was a lefty response — what was it? — America, love it and change it? Something like that.

GOP voters are more likely to embrace the long American tradition and see it in a positive light. It's always been good, always exceptional. The City on a Hill. They pick George Washington.

Democratic voters are more the love it and change it type....



... and that tends to draw you to Jefferson, with the strong association to the revolution — to the Declaration — and not to the Constitution. He was in France when the Constitution was drafted, and his stay there continued until 1789, the year the French Revolution began.

Only after his return to America in 1789 did Jefferson's rhetoric about the revolution become more heated...

The execution of aristocrats by popular tribunals led to nervous arguments in America and Jefferson's famous letter on which he falls into arguing that the revolution's glorious ends justified apocalyptic means: "My own affections have been deeply wounded by some of the martyrs to the cause, but rather than it should have failed, I would have seen half the earth desolated. Were there but an Adam & Eve left in every country, & left free, it would be better than as it now is."...

When Jefferson wrote these words, he did not know that Louis XVI had been executed... By the end of the year... Jefferson concluded that the French people were not yet "virtuous" enough to accept a sudden republicanism after so many years of superstition and despotism and that Louis XVI could have been retained as a limited monarch, thus staving off "those enormities which demoralized the nations of the world, and destroyed, and is yet to destroy, millions and millions of its inhabitants."

What's your American orientation, Washington or Jefferson? Or will you give the 1-percenter his due? I mean James Madison. What would he have had to have done to get more than 1% in that poll?

"What would James Madison do if he was staring down a four-hour, closed book Constitutional Law final?"

"I mean besides, you know, not writing the Constitution. I like to think he would have just broken down and started destroying stuff rather than confront the reality of his own intellectual inadequacy and poor post-graduate educational decisions."

"The Constitution is the rules; politics is the game."

"The alternatives to organized political contention are anarchy or sheep-like passivity."

Richard Brookhiser speaks in one aphorism after another in this dialogue with Kathryn Jean Lopez about his new book about James Madison, "James Madison." (Buy it here. I just did.)

The headline on the interview is "Politics Is Madison," and I was delighted to see, that it wasn't about my crazy little city in the Midwest.

More from the interview:

LOPEZ: What accounts for Madison’s scorn for John Adams and his love for Thomas Jefferson? Does either man’s relationship with Madison provide essential insight into Adams or Jefferson?

BROOKHISER: Madison never spent much time with John Adams, and could not see beyond his obnoxious qualities to the good ones. Thomas Jefferson was the cool older brother Madison never had — brilliant, eloquent, quirky — but at the same time a fellow Virginian and an ideological soul mate....

LOPEZ: What might Madison think about Barack Obama?

BROOKHISER: Jefferson’s vices, without the charm.

"Where is the 9,000-foot cow?"/"What do you think about Satan?"/"What did James Madison think about video games?"

Justice Ginsburg lists the strangest questions asked last term at oral argument.

"From the foregoing samples, you may better understand why the court does not plan to permit televising oral arguments any time soon."

Are you kidding? This is why it should be on television?

You know, the fabulous 7th Circuit judge Richard A. Posner wrote a great chapter titled "What Am I? A Potted Plant?"

And I just saw a potted plant on television.

Now, the potted plant was scintillating compared to the live — that is, barely animated — speech by President Obama that preceded it. But the point is: We want the Supreme Court on TV!

Bring on the 9,000 cows! We're dying out here in TV-land!

"4 Reasons Why Egypt’s Revolution Is Not Islamic."

By Haroon Moghul:

1) The political Islamism that ended up triumphing in Iran was a much more authoritarian interpretation of Islam....

2) Iran’s Islamist opposition to the Shah was shaped by the peculiarities of Shi’a Islam and Iranian history....

3) People who study Iran know how vexed the relationship is, and has been, between Persian cultural identity and Islam. While many Iranians before the revolution were religious in a non-political way, the country’s elite tended to see Islam and Persianness as mutually incompatible. On the other hand, Egypt is a proudly Arab society... which has never seen Islam as incompatible with their specific ethnic and national project....

4) Egypt’s revolution doesn’t have to be Islamic because Islam isn’t at the heart of the problem on the ground.... Egypt’s society is a deeply Muslim one, and the very success of this non-political religious project has negated the need for a confrontational Islam. Egyptians know their religious identity is not under threat....

As an aside, I might also add that Muslim societies often have flourishing religious institutions and practices, organic and varied. But in the case of Iran, the regime paradoxically undermined that popular and organic religiosity when they sought to enforce faith through the state. This is an argument for keeping religion and politics separate in the Muslim world: in the interest of defending both from the negative effects of the other....

Interesting. I hope it's true. That last insight — valuing the separation of religion and politics  to defend each from the negative effects of the other — has been fundamental to the separation of religion and government in American history. (Read James Madison, Roger Williams, and all the rest.)

Roy Edroso imagines that Leslie Savan had the courage to "dispute Muslim articles of faith."

He's presenting something I wrote to his readers, who follow his direction and call me an idiot, but he's got it wrong. I blogged (and agreed with much of) Savan's piece in The Nation and tweaked her by asking if she was "paying enough attention the the way she is expressing contempt for Muslim beliefs?" I also snarked that "I didn't know you could do that in The Nation."

Roy Edroso pretends to laugh at my joke ("Tee hee") and lobs the sarcasm: "Because libs are so cowardly they cannot dispute Muslim articles of faith. Which Savan proves by just having done so."

But Savan did NOT do so in the paragraph that precedes my joke. Savan savaged Americans. First, she said:

Regardless of what the Muslim world may or may not believe, this whole seed fixation is profoundly un-American. 

In other words: Put the beliefs of Muslims to the side; I want to talk about American values. Then:

It says that genealogy is destiny, that a man is Muslim regardless of what he espouses or believes. It’s all about descent—and nauseatingly close to the “one drop rule” of the post-Reconstruction South. That rule held that if a person had any African or Indian ancestry whatsoever, he or she was classified as “colored” and subject to anti-miscegenation laws, voter disenfranchisement, and segregation at large. At least eighteen states adopted some form of the rule; Virginia’s 1924 law, for instance, was called the Racial Integrity Act.

Having purported to limit herself to American values (as opposed to universal truths), she goes through a litany of historical wrongs, committed by Americans, a comfortable and familiar place for readers of The Nation. This is the point at which I asked my question whether she's "paying enough attention the the way she is expressing contempt for Muslim beliefs."

I think she thought that she'd limited her inquiry at that point to American values and American racism. Although some Muslims are Americans and could presumably be swept up into an inquiry about American values, Savan has specifically set aside what Muslims believe. Plus, she's switched to talking about race. What interested me is something I don't think she meant to do but only unwittingly implied.

Did Edroso even understand my point? I deliberately write in an elliptical style sometimes. You have to think a minute to get it, and I don't think Edroso did. The writing may look simple, but there is a challenge in that simplicity that you'd better be sure you see and meet before you decide you've done the easy reading and are now in a fine position to call me stupid.

I'll be heavy-handed so he can rethink his insolent attitude toward me. I think that Savan didn't mean to say that the Muslims are repellent if they believe that a person is a Muslim because his father is a Muslim. She only meant that Americans violate American values if they perceive someone — such as Obama — as Muslim because his father is a Muslim. I would guess that she subscribes to the cultural relativism that accepts Muslims (even American Muslims) viewing their religion as a genetic matter. I don't think she wanted to deal in higher level philosophy about individual freedom and autonomy (which is the subject that I went on to talk about, quoting James Madison).

So, Roy, imagine that an editor at The Nation had responded to Savan's draft with these direct questions: Did you mean to imply that you are disgusted by a Muslim's belief that religion is inborn? Did you mean to say that that Muslim belief is like racism, because it looks like you may have implied that? I think you probably meant to say that Muslims should be judged by Muslim values and that you are leaving that judgment for other Muslims, and that you only mean to say that Americans are judged by American values and that you are all about being very critical of Americans who say that Obama was a Muslim — right?

Do you think Savan would have answered yes or no to those questions? If she answered yes, don't you think the editor would be likely to say: Could you rewrite this to make that really clear? And if she said no and wanted to make that absolutely clear, don't you think that the editor would have killed the piece?

"The False and 'Seedy' Claim That Obama Is Muslim."

Get it? "Seedy"? The Nation quotes Franklin Graham:

“I think the president's problem is that he was born a Muslim. His father was a Muslim. The seed of Islam is passed through the father like the seed of Judaism is passed through the mother. He was born a Muslim. His father gave him an Islamic name. Now it's obvious that the president has renounced the Prophet Muhammad and he has renounced Islam and he has accepted Jesus Christ. That's what he says he has done. I cannot say that he hasn't. So I just have to believe that the president is what he has said.”

When religionists talk about semen...

Personally, I’m stuck on the word seed. Graham meant it in the Biblical (or Koranical) sense, but when I hear about a “seed passing through” in the context of an American president, I can’t help but see Monica Lewinsky and her “semen-stained blue dress.”

Regardless of what the Muslim world may or may not believe, this whole seed fixation is profoundly un-American. It says that genealogy is destiny, that a man is Muslim regardless of what he espouses or believes. It’s all about descent—and nauseatingly close to the “one drop rule” of the post-Reconstruction South. That rule held that if a person had any African or Indian ancestry whatsoever, he or she was classified as “colored” and subject to anti-miscegenation laws, voter disenfranchisement, and segregation at large. At least eighteen states adopted some form of the rule; Virginia’s 1924 law, for instance, was called the Racial Integrity Act.

Is the author of this piece — Leslie Savan —paying enough attention the the way she is expressing contempt for Muslim beliefs? I didn't know you could do that in The Nation. I mean, I agree that religion originates within the mind of a human being (and not in some guy's testicles!). I agree with James Madison:

... "... religion or the duty which we owe to our Creator and the manner of discharging it, can be directed only by reason and conviction..." The Religion then of every man must be left to the conviction and conscience of every man...

This is one of several arguments for freedom of religion and the separation of church and state that were influential in the development of rights in America.  It isn't the way everyone in the world thinks about religion, but it is presented by Madison as "a fundamental and undeniable truth." Of course, under that truth, you are free to believe that religion arrived via semen. And we're also free to laugh at such a ridiculous belief.

***

Another point. Graham didn't "claim that Obama is a Muslim." So ironically, it's false to say that he did. If you want to write an article lambasting people for making false claims, be careful that you don't make any false claims. (Savan has a grievance against whoever wrote that headline.)

And I'm wondering who did say Obama's a Muslim? But no one has to say it for people to come to think it. So it's fair to say that statements like Graham's have a causal relation to what people will answer when a pollster asks them "What is Obama's religion?"

So... is anyone doing anything bad? I think so, but you talk now. I'll come back to this discussion later.

We like our Presidents tall and not too thin.

This chart illustrates the proposition that the more substantial -- physically substantially -- man wins. Think about it:



(View that clip in its 4 minute context here.)

Say what you want about weight -- and give Barack some cheeseburgers if he needs to bulk up -- I think the chart mainly demonstrates the shocking advantage of height in politics.

You just know those men were lording it over others all their lives. Any short ones probably had to develop their bullying tendencies to get as far as they did.... like that little bastard James Madison, the shrimpiest President. 5'4" and 100 pounds? Like a 13-year-old girl with bulimia! Picture him in the school yard! And here's the woman who married him:



Now, what is it about these successful, little men?

"This is why I've often said that legal ethics is to actual ethics as Madison, Wisconsin is to James Madison..."

"... the former is vaguely inspired by the idea of the latter."

Sasha Volokh disses Madison in the comments to a Volokh Conspiracy post by Judge Paul Cassell.

The post is about whether it's ethical for a judge to perform a marriage ceremony for the defendant he's just sentenced. Lawprof Stephen Gillers had said "It would show very poor judgment for the court to perform this ceremony or even to entertain the possibility. He should have shot this down as soon as they asked. He's not there to perform weddings; he's there to send a man to jail" and "I suspect that in 232 years of American history, it's never happened that a [federal] judge has performed a marriage ceremony for a defendant awaiting sentencing in a serious felony case in his own court."

But Cassell himself had performed such a marriage. He says: "I thought it was important to honor the request for the defendant for the service because I thought it would improve his prospects for rehabilitation if he knew he had lovely wife willing to wait for him." But he concedes that it might be a ploy for leniency or inadvisable for some other reason. (Gillers was commenting on a child pornography case where the 42-year-old defendant was marrying a 21-year-old.) In classic judicial fashion, Cassell thinks the matter can be trusted to the discretion of the trial judge.

So that's the post. It's interesting.

But what's with dissing Madison? If we could reanimate James Madison and show him this place, would he really have such a problem with us?

***

Several other commenters at VC bring up "The African Queen." I couldn't find a YouTube clip for the glorious scene they were referring to, but I did run across the trailer, which might make you want to rewatch the whole movie to get to the part the commenters were talking about. (Not sure what they meant to prove there, as the ethics are demonstrated by a Nazi.)



AND: Thanks to commenter Bearbee, here's that marriage scene (a big spoiler if you haven't seen the movie):



AND: Just watched the clip. "By the authority vested in me by Kaiser William II, I pronounce you man and wife. Proceed with the execution." So those weren't Nazis. The movie takes place in 1914, at the outset of WWI. Sorry for the vague memory. So Rosie's dress wasn't all that old-fashioned. Note too that it's the ship captain who performs the marriage (and gives the sentence), not a judge.

MORE: In the comments, Sasha denies that he dissed Madison, I argue with him, and he responds. Also, Sasha's analogy inspires a contest.

AND: Eugene enters the fray.

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."

Mitt Romney on "Meet the Press."

I'll write more when I can quote from a transcript, but I wanted to say that I thought Romney was excellent on "Meet the Press" just now. (And so was Tim Russert. Russert rules.)

Romney's voice was much improved over the high-pitched piping I've heard in the debates. Is it the one-on-one setting, the special TV microphones and computer processing, or is someone giving him lessons in how to sound like Ronald Reagan? I was multitasking so most of the time I was listening and not looking, and I thought he sounded really Reaganesque — the tone, the pauses, the personal warmth.

Warmth? From Romney?

I'm not kidding. Russert questioned him about his Mormonism. How could he accept a religion that did not abandon discrimination against black people until he was well into adulthood (age 31)? Romney carefully avoided saying anything negative about Mormons and instead concentrated on his family. His father, George Romney, walked out on the Republican convention in 1964 because of Barry Goldwater's position on civil rights. This chimes nicely with his repeated use of the phrase "faith of my father" or "faith of our fathers" when talking about his religion.

(Like most people, he's in the religion he's in, most likely, because it was his parents' religion. He doesn't come out and say: Oh, come on, don't needle me about the details of Mormonism; I'm just following a family tradition. But I think most of us understand that's how religion works, and that's why we don't bully people about why they believe (or "believe") the various odd doctrines of their sect.)

At this point in his story, he says that he still remembers when he heard that the Mormon church announced that it was abandoning its belief in discrimination. He was driving his car, he says. I am moved to tears. He then says, after I've started to cry, that he pulled over to the side of the road and wept. Now, that was well done. I felt the emotion in the story and cried before he says he cried. I don't normally cry at anything a politician says. I tend to laugh at anything sentimental, especially when it's at all self-aggrandizing. So I'm going to say he showed some fine — Reaganesque — skill.

Russert began the hour by asking Romney about his Mormon speech and focused in particular on the statement that "Freedom requires religion." Romney said a lot of things at this point that were designed to appeal to religious conservatives, but he finally got around to saying atheists and agnostics have their place in America too and that the key is to judge everyone as an individual. In his elaborate response, he kept invoking John Adams and George Washington, and I don't think most listeners understand the classic debate about religion and government that this refers to (which had James Madison and Thomas Jefferson on the other side). So it may have either sounded garbled or impressively grounded in history — perhaps depending on whether you like a good dose of religion in your government. It's the old debate about whether, generally, people need religion to be good citizens. Romney is trying to strongly ground himself in religion, while avoiding saying anything terribly offensive to those who think religion belongs in a separate realm from politics. Some of this felt a little off to me, but I understand what he was trying to do and that it's an immensely difficult task, so I still give him high marks as a candidate (for his party).

On abortion and health care, Romney relied heavily on federalism. He was especially persuasive talking about relying on the states to experiment with different solutions on health insurance. Here, he was able to confirm his belief in the value of the mandatory approach he instituted in Massachusetts, without saying he's ready to impose it nationwide. Conditions in Texas are different, but in the end, he hoped we might learn that what he did in Massachusetts was best. This was nicely moderate.

On abortion, he was clear that he wanted Roe v. Wade overturned, and this says a lot about the kind of Justice he would appoint to the Supreme Court. Russert tormented him with questions about his change of position on abortion, and he clearly conceded that he'd changed. He has a huge problem dealing with this issue, but I thought he handled it well, under tough questioning. I don't agree with him on this issue (as he presents himself now), so I'm only talking about his skill as a candidate here. I think it is very strong.

An excellent performance.

ADDED: Here's the transcript. Here's the key passage with the phrase "faith of my fathers" and the story of his family's commitment to civil rights:

I'm very proud of my faith, and it's the faith of my fathers, and I certainly believe that it is a, a faith--well, it's true and I love my faith. And I'm not going to distance myself in any way from my faith.

What went through his mind here? He's got a commitment not to criticize his church. But he's said enough for it to mean: I have criticisms and I could voice them, but part of my religion is not to voice them. Or part of my political strategy is to behave as if I'm taking the higher ground by leaving my sect uncriticized.

But you can see what I believed and what my family believed by looking at, at our lives. My dad marched with Martin Luther King. My mm [sic] was a tireless crusader for civil rights. You may recall that my dad walked out of the Republican convention in 1964 in San Francisco in part because Barry Goldwater, in his speech, gave my dad the impression that he was someone who was going to be weak on civil rights. So my dad's reputation, my mom's and my own has always been one of reaching out to people and not discriminating based upon race or anything else. And so those are my fundamental core beliefs, and I was anxious to see a change in, in my church.

I can remember when, when I heard about the change being made. I was driving home from, I think, it was law school, but I was driving home, going through the Fresh Pond rotary in Cambridge, Massachusetts.

Rotary.

I heard it on the radio, and I pulled over and...

Here's where I am moved to tears.

... and literally wept. Even at this day it's emotional, and so it's very deep and fundamental in my, in my life and my most core beliefs that all people are children of God. My faith has always told me that. My faith has also always told me that, in the eyes of God, every individual was, was merited the, the fullest degree of happiness in the hereafter, and I, and I had no question in my mind that African-Americans and, and blacks generally, would have every right and every benefit in the hereafter that anyone else had and that God is no respecter of persons.

Russert asks a near-perfect follow-up: "But it was wrong for your faith to exclude it for as long as it did." Answer:

I've told you exactly where I stand. My view is that there--there's, there's no discrimination in the eyes of God, and I could not have been more pleased than to see the change that occurred.

Again, we see that commitment not to criticize his religion.

ADDED: "Tears have always been viewed as non-presidential."

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.

The Nation, not helping the argument for separating Church and State.

There's an article called "Our Godless Constitution" in the current issue of The Nation. The author, Brooke Allen, sets out to expose a Bush Administration "whopper about America having been founded on Christian principles." If you're going to begin an article by accusing the President of being a big liar, it's probably a good idea to show a lot of fidelity to the truth, so let's see what we've got here. The article is largely a collection of decontextualized quotes of various founding fathers saying things that are antagonistic to religion. I'm not going to pick through this whole article, just point out one egregious distortion that jumped off the page at me. Allen writes:

James Madison ... spoke of the "almost fifteen centuries" during which Christianity had been on trial: "What have been its fruits? More or less in all places, pride and indolence in the Clergy, ignorance and servility in the laity, in both, superstition, bigotry, and persecution."

Here is the real context of that quote, from James Madison's Memorial and Remonstrance against Religious Assessments, which is not an argument against religion but an argument against the government establishment of religion:

Because experience witnesseth that ecclesiastical establishments, instead of maintaining the purity and efficacy of Religion, have had a contrary operation. During almost fifteen centuries has the legal establishment of Christianity been on trial. What have been its fruits? More or less in all places, pride and indolence in the Clergy, ignorance and servility in the laity, in both, superstition, bigotry and persecution. Enquire of the Teachers of Christianity for the ages in which it appeared in its greatest lustre; those of every sect, point to the ages prior to its incorporation with Civil policy. Propose a restoration of this primitive State in which its Teachers depended on the voluntary rewards of their flocks, many of them predict its downfall. On which Side ought their testimony to have greatest weight, when for or when against their interest?

Madison was not denouncing Christianity, but government established Christianity. He's arguing for the separation of Church and State. It's not Christianity that produces "pride and indolence in the Clergy, ignorance and servility in the laity, [and] in both, superstition, bigotry, and persecution." It's the government's alliance with a single, chosen religion! The Nation has outrageously misrepresented Madison's quote, in this bizarre effort to expose Bush Administration's lies.



What is so pathetically sad about this effort is that there is no need to push away religious believers to justify the separation of Church and State. This article is harmful to its own cause, by making it seem as if one has to hate religion to support the separation of Church and State. Atheists and devout believers alike should want the same thing. Look at Madison's argument: he's saying Christianity had its "greatest lustre" back when it lacked the support of government. At the beginning of his Memorial, Madison premises his argument on religious values:

Because we hold it for a fundamental and undeniable truth, "that Religion or the duty which we owe to our Creator and the manner of discharging it, can be directed only by reason and conviction, not by force or violence." [Virginia Declaration of Rights, art. 16] The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right. It is unalienable, because the opinions of men, depending only on the evidence contemplated by their own minds cannot follow the dictates of other men: It is unalienable also, because what is here a right towards men, is a duty towards the Creator. It is the duty of every man to render to the Creator such homage and such only as he believes to be acceptable to him.

That is a religion-based argument against compelled religion, not a hate-spew against religion. Elsewhere in the Memorial, Madison argues that establishment isn't needed to support the Christianity, and in fact it is "a contradiction to the Christian Religion":

[E]very page of it disavows a dependence on the powers of this world: it is a contradiction to fact; for it is known that this Religion both existed and flourished, not only without the support of human laws, but in spite of every opposition from them, and not only during the period of miraculous aid, but long after it had been left to its own evidence and the ordinary care of Providence. Nay, it is a contradiction in terms; for a Religion not invented by human policy, must have pre-existed and been supported, before it was established by human policy. It is moreover to weaken in those who profess this Religion a pious confidence in its innate excellence and the patronage of its Author; and to foster in those who still reject it, a suspicion that its friends are too conscious of its fallacies to trust it to its own merits.

Madison's Memorial makes a brilliant appeal to religious people to see the importance of separating Church and State. Convincing religious people to want to see religion separated from the government remains one of the very most important efforts in the world today. The Nation is not helping!



UPDATE: Jim Lindgren at Volokh Conspiracy takes me to task for using the expression "separation of Church and State" instead of "disestablishment": "What Madison wanted in the 1780s was disestablishment of religion and equal liberty for different religions, not a 'wall of separation.'" Of course, I did not mention a wall, and I am only trying to read Madison's "Memorial" closely, not bring forward any more elaborate history. But I do I stand by my position that Madison's "Memorial" is a brilliant argument for the separation of Church and State. I am not attempting in this post engage over the subject of how extreme the separation ought to be, but I don't see the ground for objecting to the word "separation" simply because it may not be absolute. We refer to "separation of powers" when speaking of the three branches of government in constitutional law, even though the Constitution permits some interplay between the branches. Lindgren refers to recent historical work that attempts to tie modern day notions of separation to 19th century anti-Catholic bigotry. I'm in no position to refute that story -- I'll leave that work to historians. I'm only reading Madison's text and connecting it to the debate about religion and government that exists today. I won't hide the fact that I think the separation of religion and government is one of the most powerful and important ideas, both in the United States and in the world.