March 2010

  • March 18, 2010
    The Annotated U.S. Constitution and Declaration of Independence
    By: 
    Jack Rakove

    By Jack Rakove, William Robertson Coe Professor of History and American Studies, Professor of Political Science and (by courtesy) of Law, Stanford University

    When Harvard University Press asked me to prepare an annotated edition of the Constitution, I was at once deeply intrigued and somewhat daunted. On the one hand, having a chance to say what one wished about every clause of the Constitution seemed a challenge worth taking up-even if many of those clauses were rather removed from my immediate interests. On the other hand, each of these clauses has its own independent history of application and interpretation, and who knows how many legal scholars would be lying await out there, eager to pounce on my doctrinal errors, major and minor. As a reader of web-sites like Balkinization and ConLawProf, I knew that the entire corpus of constitutional interpretation ran well beyond my poor power to add or detract.

    Fortunately, there were two saving graces to the invitation that I thought would work to my benefit. One was that the edition was never meant to be a massive disquisition or commentary. It was designed to be reasonably short and snappy, with something of importance or interest said about every clause, but no pretension of being comprehensive or doctrinally exhaustive. Second, if the publisher really wanted that kind of work, he would turn to someone better qualified to prepare it, not an 18th-century historian. Having the chance to annotate meant that I should know what the main lines of doctrine and interpretation have been. But I remained professionally free to focus on particular clauses as a historian would, paying special attention to origins.

  • March 17, 2010
    ACSblog reported yesterday on a number of senators who have expressed frustration over the lagging pace of judicial confirmations. In one statement, Judiciary Committee Chairman Patrick Leahy condemned the "delays and obstruction" of President Obama's nominations. Other senators, though, joined the chorus charging Republicans with abusing the filibuster to delay or scuttle the administration's judicial selections and to obstruct other important business of the Senate. 

    Senator Al Franken (pictured) took to the senate floor to deliver a pointed rebuke of his "colleagues [who] seem more interested in using every procedural method possible to keep the Senate from doing anything." Franken cited multiple instances in which senate Republicans attempted to filibuster nominations that were ultimately confirmed by unanimous or near-unanimous votes. This practice, he charged, is a "perversion of the filibuster and a perversion of the role of the Senate." 

    Franken continued:

    In February, the Senate finally confirmed the noncontroversial administrator of the General Services Administration after 9 months. The vote was 94 to 2. Similarly this month, my colleagues forced a cloture vote, they forced a cloture vote to approve a judicial nominee for the Fourth Circuit Court of Appeals. She was then confirmed unanimously, 99 to 0. Yet we are forced to vote for a filibuster. That is nuts. This is a perversion of the filibuster and a perversion of the role of the Senate. It used to be the filibuster was reserved for matters of great principle. Today it has become a way to play out the clock.

  • March 17, 2010
    According to reports from The New York Times and The Washington Post, the U.S. Chamber of Commerce, a big business lobbying group, is planning to spend even larger sums of money to influence this year's midterm elections. Thomas J. Donohue, leader of the chamber, told The Post that its electioneering plans are "the most aggressive voter-education and issue-advocacy effort in our nearly hundred-year history." The Times reported yesterday the chamber is also unleashing a "multimillion dollar wave of advertising that rivals the ferocity of a presidential campaign" and will target Democrats "whose votes will determine the fate of President Obama's top domestic priority," heal care reform.

    The Post notes:

    The chamber's potential impact on the November elections was bolstered further by a recent Supreme Court decision, which allows corporations and their surrogates to spend freely on political ads for and against specific candidates right up to Election Day.

    The newspaper also reports that the White House, recognizing the growing public opposition to the Supreme Court's decision in Citizens United v. FEC, is trumpeting its efforts to mitigate the ruling.

  • March 17, 2010
    Attacks leveled by conservatives against Department of Justice (DOJ) attorneys who provided legal representation to military detainees before joining the government continue to reverberate with lawyers, including many with ACS affiliations, have countered the tactics in newspaper op-ed pages across the country. The attacks triggered by Sen. Charles Grassley's criticism of the DOJ attorneys have been fueled by Liz Cheney's group called Keep America Safe.

    In a Chicago Tribune column published today, Seattle attorney Harry H. Schneider Jr. and Chicago attorney Thomas P. Sullivan lambasted Cheney's Keep America Safe group for producing an inflammatory YouTube video tagging the DOJ the "Department of Jihad," and the attorneys the "Al Qaeda Seven."

    Schneider and Sullivan write:

    It is hard to imagine a more reckless charge. Well, on second thought, we can think of one. Her video is reminiscent of similar tactics used during one of the darker episodes in American history, when Sen. Joseph McCarthy charged that those who insisted on due process for anyone he accused must be a Communist sympathizer or a closet enemy of the U.S.

    The two defend the DOJ attorneys' previous work on behalf of military detainees, writing:

    Our constitutional system requires that we afford due process to defendants even in times of genuine threat to our nation and attacks on our people. The courts depend on the willingness of lawyers to represent those accused of crimes, although their clients may be feared or hated. We have long since accepted that a lawyer who is acting as counsel for a person accused of a crime does not make the lawyer a criminal.

    In an op-ed piece for the Boston Globe, Sabin Willet, an attorney with Bingham McCutchen, who has represented military detainees, wrote, "Some Americans will see the rule of law as a threat, and lawyers as the enemy. Small men with loud voices will exploit their fears on cable television. Petty politicians will mine them for votes."

  • March 17, 2010
    Guest Post

    By Rob Boston, senior policy analyst, Americans United for Separation of Church and State
    Once again, the Texas State Board of Education has made the Lone Star State a national laughingstock.

    The board spent the past few months examining social studies/ history standards. A faction on the board aligned with the Religious Right was determined to rewrite American history. Among other things, the new standards eject Thomas Jefferson from a list of influential Enlightenment-era figures and replace him with theologian John Calvin. The standards extol the influence of right-wing groups like the Eagle Forum and the Heritage Foundation.

    Study about some important minority figures was summarily axed. Hispanic leaders in the state had pressed for more inclusion of Latino civil rights pioneers, but the board rebuffed the move. The New York Times reported that one board member, Mary Helen Berlanga was so upset she walked out of a meeting, proclaiming, "They can just pretend this is a white America and Hispanics don't exist."

    The new standards reflect a bogus and long discredited "Christian nation" revisionism that has more to do with promoting a right-wing political ideology than educating young people. When one board member proposed teaching about how separation of church and state and secular government protects religious freedom, the board rejected it on a party line vote.

    This disgrace comes just months after the board flirted with creationism in state science standards, adopting new guidelines that many observers believe are designed to encourage teachers to sneak creationist concepts into science classes.

    Texas can't say it wasn't warned. Last year, the board appointed David Barton and the Rev. Peter Marshall, two notorious "Christian nation" propagandists, to an advisory body that examined the social studies standards. To no one's surprise, Barton and Marshall (neither of whom is a legitimate historian) proposed a raft of suggestions that reflect Religious Right dogma.

    Texas has plenty of well-regarded public and private universities full of actual historians, so why did the board appoint these two? (Marshall doesn't even live in the state.) It was obvious that the battle all along was about ideology, not education. The board, unhappy with actual U.S. history that shows our country was founded with a secular government, demanded a rewrite.