"Originalism" Was Not Originally Intended

H Dog at the UPC has a post up about "Originalism," as Charles Krauthammer calls it, as a theory of Constitutional interpretation. His post is basically a recap of a Krauthammer piece that attempts to portray Clarence Thomas' opinions as being based on a logical and consistent theory. Of course, Krauthammer does not tell you what any of the criticisms of originalism are. I'll give you just a couple of "originalisms" fatal flaws.

First, the historical evidence indicates that the drafters of the Constitution did not intend for their intent to govern future interpretation of the Constitution. They used broad, vague and oftentimes ambiguous language in the Constitution. Yet, they did not use a stenographer to record their debates over the Constitution and, in fact, appear to have destroyed all evidence of their intent in drafting the constitution (w/ the exception of Madison's notes which were arguably kept in contravention of the desires of the other founding fathers). The founding fathers did not stop at just not making a record of the constitutional convention, they also did not argue that their intent governed constitutional interpretation at any of the states’ ratifying conventions. Nor, when the court was engaged in some of the seminal cases regarding constitutional interpretation, e.g. Marbury v. Madison, did they go to the court and insist that their intent apply.

As to Madison's notes, they, tellingly, were not published for more than 50 years after the constitutional convention. Yet, in his notes, he specifically derided the notion of original intent stating: "As a guide in expounding and applying the provisions of the Constitution, the debates and incidental decisions of the convention can have no authoritative character."

A second problem for "originalists" like Thomas is that the evidence indicates that the drafters of the Constitution did not intend the Bill of Rights to be an exclusive list of the rights retained by the People as Thomas suggests. Hamilton and the federalists, as Hamilton makes clear in the Federalist Papers, objected to the drafting of a Bill of Rights on the ground that it could wrongly be interpreted as an exclusive list of rights retained by the People. To ensure this wasn't the case, the Ninth Amendment was added. It states: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The Fourteenth Amendment made it clear that the rights retained by the people, whatever they may be, could not be overridden by the States. Undoubtedly, the Constitution has left an indefinite area regarding the rights retained by individuals and States' rights. Here, the courts must engage in line drawing based on the text, precedent, history and principle.

Krauthammer implies Thomas' opinion to uphold a Texas law criminalizing sodomy is rational because "the Constitution is silent on this issue." Yet, clearly it is not a rational position that silence by default renders a power to the States given the explicit history of the Bill of Rights. Indeed, turning Thomas' argument on its head ... where in the text of the Constitution are governments given the right to interfere with people's private sexual behavior? Thomas simply draws the line in favor of government over individual freedom in the social rights arena because the results are typically consistent with conservative political positions.

"Stay the Course" ... No Way!!!

Over at the UPC, Shamanic raises a serious issue for liberals and all others serious about the Iraq war.

None of the options are good - and setting aside politics - what is the best approach for America.

The way I see it, there are basically three options: (1) stay the course; (2) bring the troops home; or (3) dramatically change our policy by increasing our commitment in Iraq.

Shamanis favors the first course of action and I think that's the worst course of action. Obviously, this is an issue that will be much discussed over the coming months and which I plan to develop more fully through this discussion. For now, here are my initial thoughts as posted in the UPC comments section:

“Stay the Course” … I couldn’t disagree with you more.

The current course has been completely disastorous and will remain so. It is based on a misconception that we are going to be able to train integrated Iraqi Security forces that will “shortly” relieve our military of providing the little security that currently exists. In fact, as I posted about here, the training of Iraqi forces is going horribly. There is no integrated Iraqi security force even close to being on the horizon. In the meantime, the sectarian groups are consolidating their power by building up their militias and strengthing their grip over particular geographic areas through maltreatment of other ethnicities within the area of which control is sought (e.g. the Kurds extra judicial kidnappings and torture of Arabs from Kirkuk).

The two other choices are to get out now or to make a dramatic change in policy and strategy. The first option carries a high risk of civil war but it forces the Iraqis to face up to these inevvitable sectarian divides immediately and takes away one impetus for the continuing violence - an American presence. We also no longer have the daily death toll of American soldiers who have been charged with the Sisyphean task of holding off the inevitable sectarian discord.

The second choice would have to begin, as PSoTD notes, with the canning of Rumsfeld. In my view the dramatic strategic changes would require a dramatic increase in troop strength, a demand that the sectarian militias be ended and that those troops be melded into an integrated force, and end to the exclusion of the entire foreign community in the contracts of rebuilding Iraq with the reciprocal committment that those countries participate in an international security effort inside Iraq. This option would entail hundreds of billions more of the U.S. taxpayers money and a true “generational committment” militarily. We may then get to a fully free, democratic Iraq that respects minority rights and abhors extra judicial sectarian activities.

Unfortunately, I honestly don’t think the will exists, either in America or internationally, for this third option. Maybe we threaten the pull-out option in an attempt to get Iraqis and the international community to get on board the third. If that were to fail, I say go with the pull-out as its the best of all the horrible options.

I Am Not Spartacus!!!

Atrios abandons the rest of us loser bloggers for the good life.

This is my gutbuster of the week.

Macswain's Music Club

I was turned on to the Last Left Turn Before Hooterville site today and saw this post on setting out some cool music top fives.

I noticed that I'm overdue on putting up a music post, but now that I have some inspiration, here we go:

Macswain's Top Five Albums (these typically change for me on an hourly basis):

1. "Dirty Mind" - Prince
2. "Yankee Hotel Foxtrot" - Wilco
3. "Murray's Steps" - David Murray (gotta have some jazz shit)
4. "It Takes A Nation of Millions to Hold Us Back" - Public Enemy
5. "Furnace Room Lullabye" - Neko Case

Song I Played at "11" on the Drive Home from Work Tonight so as to Give the Two Twelves in the Trunk a Workout: "Like You Like an Arsonist" by Paris Texas.

Most Recent CD Purchase: "Blame the Vain" by Dwight Yoakam (Excellent ... has there been any musician who has consistently put out solid performances).

Last Concert Attended: The Pixies (As when I saw Prince last summer, I am realizing the importance experience plays in putting on incredible live shows).

The Incredible Shrinking Speech

I was going to offer some analysis of Bush's speech last night, but why bother. News coverage of the speech is vanishing and its been less than twenty-four hours since the networks were strong-armed into giving it primetime coverage. It sounds like the speech was watched by very little of the public and resonated with even less.

I'll make one statement - it seems incredible to me that the President would give a "stay the course" speech when the course we're on has been so disastrous. Can one hope the speech was all about posturing and that, behind the scenes, there are dramatic changes in the works? I doubt it.

In any event, Bill Scher has an excellent breakdown of the speech at Liberal Oasis.

The Golden Rule

Rarely in life do you get to see the Golden Rule starkly played out over the course of a mere couple of days.

Like many in the blogosphere, I post both from a work computer and home computer. On Monday, I learned I had been banned from posting at the website Rightwingsparkle. Oddly, the ban was placed on my work computer but not the one in my home. The banning was made without explanation and I can only assume it was for being too liberal.

Today I learned that Sparkle herself was banned from the Unpaid Punditry Corps website for, according to Sparkle, callling Bill Moyers a liar (ironically "liar" is a term Sparkle has stated she will not tolerate in reference to herself despite her repeated misstatements).

While her righty cohorts whine about liberals being afraid of conservative arguments, they hypocriytically ignore Sparkle's record of repeated bannings of liberals at her own site.

Poetic justice, I suppose.

Why There Should Not Be An Absolute Journalist's Privilege

Playing second fiddle to stories denying review of Judith Miller's and Matthew Cooper's appeal of the contempt orders against them is the assertion of privilege by four journalists in the Wen Ho Lee case.

"Lee has filed a lawsuit alleging government officials leaked information about him to reporters, violating the Privacy Act in pointing to him as a suspect in the possible theft of nuclear secrets for China."

There needs to be accountability when anonymous sources use reporters as conduits to violate an individual's legal rights or to commit crimes. I understand the need for the free flow of information, but the issues concerning the journalistic privilege only arise once there has been a lawsuit filed or a criminal investigation undertaken. The courts then only allow parties to seek the info from reporters once its determined it is relevant and other adequate efforts to obtain the information elsewhere have been made. I believe the courts have got it right. If an anonymous source is providing honest information and is not acting in violation of the law there will be no problem.

That reporters place a higher value on the privacy rights of their powerful sources over the privacy rights of less powerful people like Wen Ho Lee strikes me as self-serving. That reporters will aid their sources in engaging in smears of political opponents in exchanging for a hot tip on another good story (as I believe happens) strikes me as self-indulgent and, in fact, dangerous to a healthy and transparent debate.

Iraqi Police Death Squads???

Knight Ridder gives us this piece of investigative journalism on the "possibility" that the Iraqi police are operating death squads.

In a Heculean effort at objectivity, the authors note that U.S. officials claim "the murders are the work of insurgents posing as police."

But then we also have this telling admission:

"Iraqi and American officials said the murders aren't being investigated systematically, but in dozens of interviews with families and Iraqi officials, and a review of medical records, a Knight Ridder reporter and two special correspondents found more than 30 examples of this type of killing in less than a week. They include 12 cases with specific dates, times, names and witnesses who said they might come forward if asked by law enforcement."

Moreover, the authors present a mountain of evidence that points pretty conclusively in one direction --- it is not the Sunni insurgents who are torturing and executing these Sunni civilians but almost surely the Iraqi police (though I wouldn't rule out the Shiite militias either).

Are we looking at the new boss being the same as the old boss?

And one more question - Why do death squads seem to follow John Negroponte like children following the pied piper?

The Republican Patronocracy - The Other Side of the Coin

The other side of the patronocracy coin is to use government in an unprincipled manner to punish those who disagree with you.

O Dub has a post up on the not-so-veiled Republican threats against Major League Baseball regarding George Soros' involvement in a group looking at purchasing the Washington Senators.

Training the Iraqi Security Forces - "Mission Improbable"

Atrios notes how its Ground Hog day with those running the war hitting the same themes that they hit two years ago --- "we've trained a bunch of Iraqis and all we need to do is train a few more."

So how's the training really going? The short answer is "not good."

Two must-read articles for anyone serious about Iraq have come out in recent weeks. The first is from two Washington Post writers embedded in an American unit charged with training the Iraq Army's Chrlie Company; the unit for the reporters to cover was chosen by the U.S. military. Charlie Company disintegrated (all but 30 of the company's 250 soldiers quit) in December 2004 when its commander was killed. In effect, our trainers are starting from scratch though two years down the road. The piece contains much that is comedic though its implications are obviously tragic. For example:

They followed U.S. military protocol: Each soldier dismounted from the vehicle and cleared his weapon. Zwayid stayed in the truck, handed his gun to a friend and asked him to clear it.

"Get down and clear your own weapon!" Cpl. William Kozlowski shouted to Zwayid in English.

Zwayid answered in Arabic. "That's my weapon," he explained, pointing to his friend.

"Corporal, you're a leader!" Kozlowski shouted back. "Take charge!"

Zwayid smiled at him. "What's he saying to me?" he whispered.

Then there is the stark and candid assessment by our boots-on-the-ground soldiers:

"I know the party line. You know, the Department of Defense, the U.S. Army, five-star generals, four-star generals, President Bush, Donald Rumsfeld: The Iraqis will be ready in whatever time period," said 1st Lt. Kenrick Cato, 34, of Long Island, N.Y., the executive officer of McGovern's company, who sold his share in a database firm to join the military full time after the Sept. 11, 2001, attacks. "But from the ground, I can say with certainty they won't be ready before I leave. And I know I'll be back in Iraq, probably in three or four years. And I don't think they'll be ready then."

The second is from The Economist which is - unfortunately - subscription only. The article details more tragi-comedy. Here's the first paragraph:

"BAHRO TAHIR is not the brightest soldier in Iraq's new army. Last week, at an American-assisted military academy in Tikrit, Saddam Hussein's home town, he began basic training for the fourth time. It was not that he wanted to spend another month studying tedious human-rights law and drilling under a blistering sun; Mr Tahir did not want to do that at all. Rather, according to the academy's Iraqi instructors, Iraqi army commanders tend to send to basic training only those too friendless or dim to wriggle out of it, which included Mr Tahir. "They said they were sending me here for a computer course," he lamented, to the amusement of the recruits within ear-shot, except for another basic-training veteran, who turned out to be deaf."

Worse --- the article goes on to describe the myriad of problems that have arisen, including that the soldiers are not getting paid since the US turned over that responsibility to Iraq's Ministry of Defense and that many who go through the basic training end up fighting for the insurgents. "Asked to estimate how many of the academy's students were motivated by a desire to help their country, Major Donald McArdle, the American in charge, reckoned 5%; his colleagues thought this too high."

I suspect that a large part of the problem is that any Iraqi who truly wants to be part of a security force and is motivated by a sense of pride in serving his community is more apt to join one of the sectarian militias. The men joining the Iraqi forces the U.S. are training appear to be tricked into service or motivated by a desire to make a quick buck.

UH OH ... Bush is Offering "Therapy & Understanding" to the "Terrorists"

The AP reports:

"Secretary of Defense Donald H. Rumsfeld acknowledged Sunday that U.S. officials have met with insurgents in Iraq, after a British newspaper reported two such meetings took place recently at a villa north of Baghdad."

"Insurgent commanders "apparently came face to face" with four American officials during meetings on June 3 and June 13 at a villa near Balad, about 25 miles north of Baghdad, The Sunday Times reported."

TomY's Simple Formula for the Mentally Challenged

Many of the right-wing posts about Rove's hate speech ignore, of course, its most offensive aspects.

Over in O Dub's comments section to this post, TomY provides this simple formula for understanding one part of Rove's smear:

"Putting our troops in greater danger = motive of liberals."

"Liberals" or "Liberals"?

In an attempt to turn Rove's hate speech into a wedge issue, many on the right, led by RNC Chairman Ken Mehlman, have taken to arguing that Rove said "liberals" and not "democrats."

This is just so much semantic gamesmanship by these right-wingers. Many on the right have constantly referred to almost every elected Democrat as a "liberal." If the media ever allows a Democratic view to be voiced, it is accused of "liberal" media bias. Sheesh ... these right-wingers even have taken to refering to the likes of Anthony Kennedy, Sandra Day O'Connor and David Souter as "liberals" when they join opinions these righties don't like.

Given the full context of the speech and the setting it was delivered, Rove's speech clearly was an attack on all liberals and Democrats who voiced criticism of Bush's foreign policy.

Regardless, are we to believe broad-brush hate speech against liberals is, in fact, okay?