May 2009

  • May 2, 2009
    Guest Post

    By Jamie Raskin, professor of constitutional law at American University's Washington College of Law and director of its Program on Law and Government. He is also a Democratic State Senator in Maryland where he introduced the first National Popular Vote bill in America to be signed into law. Jamie can be reached at [email protected]

    Every major progressive current in our political history has dismantled antidemocratic filters and blockages-like selection of U.S. Senators by state legislatures or property, wealth, sex and race qualifications for voting-in favor of direct and universal enfranchisement. The whole trajectory of American politics moves toward the beautiful, lawyerlike vision of our last great Republican president, who spoke of "government of the people, by the people, and for the people."

    So it goes without saying that Americans have been trying since the beginning to overthrow our undemocratic, arbitrary, incomprehensible, racially tilted and dangerously manipulable electoral college regime in favor of a direct national popular vote for president of the United States.

    This impulse-which has long commanded the support of upwards of 60% of the American people-has been thwarted by two false assumptions: (1) that no change is possible without a constitutional amendment and (2) that any change will disadvantage smaller states. But there have been dramatic political breakthroughs made recently by the National Popular Vote (NVP) movement, which seeks not to pass a constitutional amendment but to create an interstate compact in which states-all of them, it is hoped, but certainly enough to equal 270 in the electoral college-will agree to cast their electors for the winner of the national popular vote. With strikingly sophisticated analysis and remarkably little fanfare, 27 state legislative chambers (out of 99)-some in big states (California) and some in small (Vermont) and some in in-between (Washington)-have passed legislation to join the NVP compact, which has been signed into law in five states: Maryland, Hawaii, Illinois, New Jersey and, yesterday, Washington.

    Why is the NPV plan spreading like political wildfire? The core reason is that it presents an irresistible proposition: that the person we elect president should be the one who collects the most votes. This is how we elect Governors, Mayors, Senators and Congresspeople, and it is how presidents are elected in most democratic nations that have presidents. On the other hand, the current electoral college regime can produce farcical upside-down results like the one we saw in 2000, a dismal turning point in American history, when the popular vote loser (by more than a half-million votes) tortured out a "victory" in the electoral college after the most dubious sequence of assaults on voting rights and political participation by state and federal actors like Katharine Harris and five Supreme Court justices. There have been four such "wrong winner" elections and numerous razor-close calls throughout our history.

  • May 1, 2009
    American Blacklist:
    The Attorney General's List of Subversive Organizations
    Robert Justin Goldstein, Emeritus Professor of Political Science at Oakland University, Rochester MI, and Research Associate at the Center for Russian & Eastern European Studies at the University of Michigan.
    In his 1951 book The Loyalty of Free Men, Alan Barth described the so-called "Attorney General's List of Subversive Organizations" (AGLOSO), which the Truman administration began publishing in late 1947, as "perhaps the most arbitrary and far-reaching power ever exercised by a single public official" in American history. AGLOSO played a critical and central part of the post-World War II "Red Scare," far more important, in my view, than the role of Sen. Joseph McCarthy, who arrived on the anti-communist scene only in early 1950 well after the Red Scare was underway.

    It was a ubiquitous part of the early Cold War/Red Scare atmosphere, so much so that Elks Magazine began an article entitled, "What the Attorney General's List Means" by noting that "there are few Americans who have not heard of 'the Attorney General's subversive list' " and concluded by summarizing AGLOSO's clear message: "There is no excuse for any American citizen becoming affiliated with a group on the Attorney General's list today." Although most American today probably are unfamiliar with AGLOSO or its legacy, its significance is all the greater in light of our continuing examination of the Bush Administration's national security policies as part of its "War on Terror" and their deleterious impact on individual liberties.

  • May 1, 2009
    Guest Post

    By Martin Flaherty, Leitner Family Professor of International Human Rights Law at Fordham School of Law

    Debate continues over whether the United States government - prosecutors, Congress or a commission - should undertake some type of investigation into the now extensive allegations that Bush Administration officials facilitated torture and mistreatment of detainees in Guantanamo, Abu Ghraib, "black sites" and elsewhere.

    But the debate appears to have stalled. Advocates of an investigation emphasize, simply and surely, the law. The Federal Anti-Torture Statute, to say nothing of the Eighth Amendment, prohibits many if not most of the techniques employed during the last eight years. If officials have broken the law, they should be tried and punished, whether Lynndie England or Donald Rumsfeld (below).

    Opponents offer a more muddled rejoinder based less on law than on politics. Prosecuting those responsible for torture may respect the law, but the political cost is simply too high. Domestically, pursuing such individuals may be seen as partisan, and so undermine support for initiatives that may require votes from both sides of the aisle. It might also lead to retribution, fair or not, down the road should the GOP rise from the dead. In foreign affairs, further revelations could only further damage our image abroad no matter how deft President Obama has been at rehabilitating the world's opinion of the U.S.

    Those who would investigate torture have it only half-right, since in a sense they have relied on only half the law. Beyond the domestic level, international law not only makes the argument for inquiry stronger, it makes it compelling. Fulfilling our binding obligations under international law, moreover, helps to belie false charges of partisanship precisely because they make meaningful investigation obligatory.

  • May 1, 2009
    Balkinization notes today's release of Keeping Faith with the Constitution and a companion volume called It Is a Constitution We Are Expounding: Collected Writings on Interpreting Our Founding Document. Jack M. Balkin writes:

    These two books are part of a flowering of debate and discussion about the constitution and constitutional interpretation in the past five years that has arisen naturally as liberals have once again found their political voice. This should not be surprising. The rise of movement conservatism also led to a great deal of rethinking about constitutional interpretation. This is all to the good. The Constitution belongs to everyone; as each generation rethinks what the Constitution means in their time, they make it their own.

  • May 1, 2009

    Justice David Souter is reported to be stepping down from the Supreme Court at the end of this term. From NPR's Nina Totenberg:

    Souter was apparently satisfied that neither the court's oldest member, 89-year-old John Paul Stevens, nor its lone woman, Ruth Bader Ginsburg, who had cancer surgery over the winter, wanted to retire at the end of this term. Not wanting to cause a second vacancy, Souter apparently had waited to learn his colleagues' plans before deciding his own.

    Souter has served on the high court since October, 1990. He was nominated by President George H.W. Bush to fill the seat vacated by Justice William J. Brennan Jr.