Barbara Ann Radnofsky, a Democratic candidate for Texas attorney general, claims a 2005 constitutional amendment designed to ban gay marriages actually bans all marriages.

The amendment, approved by the Legislature and overwhelmingly ratified by voters, declares that “marriage in this state shall consist only of the union of one man and one woman.” But the troublemaking phrase, as Radnofsky sees it, is Subsection B, which declares: “This state or a political subdivision of this state may not create or recognize any legal status identical or similar to marriage.”

Architects of the amendment included the clause to ban same-sex civil unions and domestic partnerships. But Radnofsky, who was a member of the powerhouse Vinson & Elkins law firm in Houston for 27 years until retiring in 2006, says the wording of Subsection B effectively “eliminates marriage in Texas,” including common-law marriages.

She calls it a “massive mistake” and blames the current attorney general, Republican Greg Abbott, for allowing the language to become part of the Texas Constitution. Radnofsky called on Abbott to acknowledge the wording as an error and consider an apology. She also said that another constitutional amendment may be necessary to reverse the problem. “You do not have to have a fancy law degree to read this and understand what it plainly says,” said Radnofsky, who will be at Texas Christian University today as part of a five-city tour to kick off her campaign.

While I don’t have any fancy law degrees, it’s pretty clear to me that the amendment does not endanger “marriage” in Texas.   The key word in the clause in question is “create.”  Given that 1) marriage existed in Texas before the amendment and 2) that the first clause in the amendment reiterates the existence of marriage, merely clarifying its definition, the subsequent clause rather clearly bans only the creation of analogous institutions.

Regardless, this controversy is amusing.

Story: Memeorandum.  Photo:  FlutterFly Events.

Barack Obama has been president for just under 10 months but he’s added two trillion to the national debt and will double it by the end of the decade.  CBS’ Mark Knoller:

This latest milestone in the ever-rising journey of the National Debt comes less than eight months after it hit $11 trillion for the first time. The latest high-point is not unexpected, considering the federal deficit for the just-ended 2009 fiscal year hit an all-time high at $1.42-trillion – more than triple the previous year’s record high.

Much of the increase in the deficit and debt is attributed to government spending outpacing revenue – both exacerbated by the recession and the government response to it – including hundreds of billions in bailouts and stimulus spending and tax cuts along with decreased tax revenues due to rising unemployment.

[...]

The National Debt has increased about $1.6 trillion on Mr. Obama’s watch, though less than $4.9 trillion run up during the presidency of George W. Bush.

But the White House budget review issued in August projects that by the end of the current fiscal year on Sept 30th, the National Debt could top $14 trillion.  It gets worse. The same document projects that by the end of the decade, the National Debt will hit $24.5 trillion — exceeding the Gross Domestic Product projected for 2019 of $22.8 trillion.

According to the Treasury Department, the debt stood at $5.727 trillion on January 19, 2001, Bill Clinton’s last day in office, and $10.627 trillion when Bush left office eight years later.  That’s $612.5 billion (or $0.6125 trillion) a year, during which we fought two major wars, had the 9/11 attacks, and at least two major bailouts to deal with a global financial crisis.

We’re thus far averaging $1.92 trillion a year under Obama, or a factor of 3.146 more.   And the government is projecting that we’ll continue spending at this crisis rate for the next decade, more than doubling the current record level?

That ain’t good.

Presumably, we’d have had another major bailout had Bush stayed in office for a third term (were that Constitutionally or politically possible) or had John McCain been elected.  So spending and thus the debt would have escalated substantially regardless.  But we likely wouldn’t be talking about adding a massive health care payment on top of the pile.

Ron Rotunda and Peter Pham argue in today’s WaPo that it would violate the Constitution for President Obama to accept the Nobel Peace Prize while in office.

Article I, Section 9, of the Constitution, the emolument clause, clearly stipulates: “And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or foreign State.”

The award of the peace prize to a sitting president is not unprecedented. But Theodore Roosevelt and Woodrow Wilson received the honor for their past actions: Roosevelt’s efforts to end the Russo-Japanese War, and Wilson’s work in establishing the League of Nations. Obama’s award is different. It is intended to affect future action. As a member of the Nobel Committee explained, the prize should encourage Obama to meet his goal of nuclear disarmament. It raises important legal questions for the second time in less than 10 months — questions not discussed, much less adequately addressed anywhere else.

[...]

An opinion of the U.S. attorney general advised, in 1902, that “a simple remembrance,” even “if merely a photograph, falls under the inclusion of ‘any present of any kind whatever.’ ” President Clinton’s Office of Legal Counsel, in 1993, reaffirmed the 1902 opinion, and explained that the text of the clause does not limit “its application solely to foreign governments acting as sovereigns.” This opinion went on to say that the emolument clause applies even when the foreign government acts through instrumentalities. Thus the Nobel Prize is an emolument, and a foreign one to boot.

Adam Blickstein argues that this contention is absurd, noting that General H. Norman Schwarzkoft, Fed Chairman Alan Greenspan, and others have accepted knightships and other awards whilst holding offices of trust with no complaint.  But that’s not much of a counter: Maybe nobody noticed before.

More to the point, though, he points to an old Newsmax article reporting Greenspan was in fact challenged on these grounds by Rep. Howard Phillips and wrote back with a note from the Fed’s chief attorney to wit:

Congress gave its consent to the acceptance of certain gifts and decorations in the Foreign Gifts and Decorations Act (originally enacted in 1966). The Act provides as follows:

The Congress consents to the accepting, retaining, and wearing by an employee of a decoration tendered in recognition of active field service in time of combat operations or awarded for other outstanding or unusually meritorious performance, subject to the approval of the employing agency of such employee.

The Act defines “decoration” to include “an order, device, medal, badge, insignia, emblem or award.” The Department of Justice has ruled that an honorary knighthood is an “order” as permitted by the Foreign Gifts and Decorations Act.

Rotunda and Pham do not make their argument out of pique; they quite charitably say Congress should provide their consent.  It turns out, they did so when Obama was five.

Related controversies roiling the blogosphere today point to the dark side of American politics.

First, NewsMax ran an article by a John L. Perry titled “Obama Risks a Domestic Military ‘Intervention.’” It has apparently been removed from the site (it’s now directing to the home page and isn’t showing along with the author’s other pieces) but the excerpt says “There is a remote, although gaining, possibility America’s military will intervene as a last resort to resolve the ‘Obama problem.’ Don’t dismiss it as unrealistic. — America isn’t the Third World. If a military coup does occur here it will be civilized.”  TPM has the full text.  Here’s a further taste:

Imagine a bloodless coup to restore and defend the Constitution through an interim administration that would do the serious business of governing and defending the nation. Skilled, military-trained, nation-builders would replace accountability-challenged, radical-left commissars. Having bonded with his twin teleprompters, the president would be detailed for ceremonial speech-making.

Military intervention is what Obama’s exponentially accelerating agenda for “fundamental change” toward a Marxist state is inviting upon America. A coup is not an ideal option, but Obama’s radical ideal is not acceptable or reversible.

Then, a Times of London editorial by Gore Vidal predicts “We’ll have a dictatorship soon in the US.”

Vidal originally became pro-Obama because he grew up in “a black city” (meaning Washington), as well as being impressed by Obama’s intelligence. “But he believes the generals. Even Bush knew the way to win a general was to give him another star. Obama believes the Republican Party is a party when in fact it’s a mindset, like Hitler Youth, based on hatred — religious hatred, racial hatred. When you foreigners hear the word ‘conservative’ you think of kindly old men hunting foxes. They’re not, they’re fascists.”

Another notable Obama mis-step has been on healthcare reform. “He f***ed it up. I don’t know how because the country wanted it. We’ll never see it happen.” As for his wider vision: “Maybe he doesn’t have one, not to imply he is a fraud. He loves quoting Lincoln and there’s a great Lincoln quote from a letter he wrote to one of his generals in the South after the Civil War. ‘I am President of the United States. I have full overall power and never forget it, because I will exercise it’. That’s what Obama needs — a bit of Lincoln’s chill.” Has he met Obama? “No,” he says quietly, “I’ve had my time with presidents.” Vidal raises his fingers to signify a gun and mutters: “Bang bang.” He is referring to the possibility of Obama being assassinated. “Just a mysterious lone gunman lurking in the shadows of the capital,” he says in a wry, dreamy way.

Finally, Thomas Friedman points to a Facebook poll that asked, “Should Obama be killed?” The choices were: “No, Maybe, Yes, and Yes if he cuts my health care.” Says Friedman:

The Secret Service is now investigating. I hope they put the jerk in jail and throw away the key because this is exactly what was being done to Rabin.

Even if you are not worried that someone might draw from these vitriolic attacks a license to try to hurt the president, you have to be worried about what is happening to American politics more broadly.

Our leaders, even the president, can no longer utter the word “we” with a straight face. There is no more “we” in American politics at a time when “we” have these huge problems — the deficit, the recession, health care, climate change and wars in Iraq and Afghanistan — that “we” can only manage, let alone fix, if there is a collective “we” at work.

Sometimes I wonder whether George H.W. Bush, president “41,” will be remembered as our last “legitimate” president. The right impeached Bill Clinton and hounded him from Day 1 with the bogus Whitewater “scandal.” George W. Bush was elected under a cloud because of the Florida voting mess, and his critics on the left never let him forget it.

Now, Friedman is overreacting a touch here to a poll on an Internet site with millions of members who are pretty much free to post anything they want.  Then again, seeing broad trends in a single anecdote is what he does.

But his larger point nonetheless has merit.  The mass political debate, as evidenced by the blogs, talk radio, talk TV, townhall meetings, and various other venues certainly seems to be increasingly vitriolic, ill tempered, and divided.  Gone are the days when those on the other side of a given political dispute were honorable fellow countrymen with different priorities; there are only those who agree and selfish, unpatriotic, evil people.

A recent survey of Oklahoma public high school students found that the overwhelming majority can’t answer even simple questions about U.S. government and history.

A thousand students were given 10 questions drawn from the U.S. Citizenship and Immigration Services item bank. Candidates for U.S. citizenship must answer six questions correctly in order to become citizens. About 92 percent of the people who take the citizenship test pass on their first try, according to immigration service data. However, Oklahoma students did not fare as well. Only about 3 percent of the students surveyed would have passed the citizenship test.

Below are the questions and results:

Question		% of Students Who Answered Correctly
What is the supreme law of the land?		28
What do we call the first ten amendments to the Constitution?		26
What are the two parts of the U.S. Congress?		27
How many justices are there on the Supreme Court?		10
Who wrote the Declaration of Independence?		14
What ocean is on the east coast of the United States?		61
What are the two major political parties in the United States?		43
We elect a U.S. senator for how many years?		11
Who was the first President of the United States?		23
Who is in charge of the executive branch?		29

Shocking, no?

This meme is spreading through the blogosphere with the consensus being that our education system is failing and our students are dumber than a bag of hammers.

But here’s the thing:  I simply don’t believe these results are accurate.   I taught Politics 101 to college freshmen for a decade, so I’m under no illusion that our kids have a strong working knowledge of how our system works.  (Indeed, having administered basic geography tests as part of my World Politics course, I’m shocked that 61% not only know the Atlantic Ocean but that they know east from west.)  I could see students not knowing the answers to several of the questions above, especially framed as they are.  But, seriously, your average 6-year-old knows who George Washington is.  They couldn’t tell you anything about his administration, of course, but they know:  wooden teeth, chopped down cherry tree, couldn’t tell a lie, Martha, and 1st president.  It’s, frankly, trivia.  (And hagiography in the case of the cherry tree fable.)  But they know it nonetheless.

Tom Maguire took the time to click the link to the actual survey results. He observes, “in defense of the Oklahomans, a ten question test was administered by telephone to one thousand high school students. That has to be an unfamiliar format for the respondents, and probably not all of them gave it their best shot. Still, this is pretty grim.”

Actually, it’s worse than that.  The exam was commissioned by a conservative activist organization whose mission is to show how lousy public schools are so as to advocate for home schooling and private, religious schools.  Read the long diatribe that serves as the press release for the survey’s results.

Here’s how they describe the methodology:

In Oklahoma, the telephone surveyors called a sample of 1,000 public high-school students and read the following statement: “On the next 10 questions, I will be asking you questions about American government and history. Give me your best answer, and it is permissible to respond ‘I don’t know.’”

Guess what the most popular answer was on just about every question was.  Yes sir: “I don’t know.”  It was the majority response on the two parts of the Congress (58%) and who’s in charge of the executive branch (51%) question and was in the 40’s on three others.  It was the number one answer on eight of ten questions.

How many of those were actually non-responses?  Given the purpose of the exam, I wouldn’t be at all shocked if the survey firm wasn’t instructed to code non-responses as “I don’t know” rather than going on to a student who would take the time to give thoughtful responses.  (The only thing holding back my confidence in this regard is that the Atlantic Ocean question is listed 6th and got a very high right answer rate.)

Interestingly, too, the right answer was the plurality actual response answer on almost every question.   And the runner-up answers were, for the most part, non-idiotic.  So, 17% thought the Declaration of Independence was the supreme law of the land, compared to 28% correctly identifying the Constitution and 41% “I don’t know.”  Abraham Lincoln, Thomas Jefferson, Franklin Roosevelt, and John Adams were the most popular wrong answers on 1st president.

The chief “wrong” answer on the “Who is in Charge of the Executive Branch” question was “the Governor,” which garnered 10%.  That’s actually right, since the question doesn’t specify federal or state.  Similarly, shouldn’t the 11% who answered that the two parties are Communist and Republican be scored correctly?  (I jest, of course.)

Again, I’m not Pollyannish on how much our kids know.  In 2001, Steven Taylor had a bonus question on a multiple-choice test he administered to 101 students at the university where we both taught at the time asking who the vice president was.  A woefully small number got it right.  (In fairness, Dick Cheney was  new in office and much less controversial than he’d be later.  Also, Steve’s eldest son, then perhaps 6, knew the answer.)   But a telephone survey of 17-year-olds who have no incentive whatsoever to take it seriously administered by a group that wants to prove how lousy our schools are is simply unfair.

UPDATE:  Kevin Drum emails to point out something I totally missed:  “not one single student got even 8 answers right.”

Kevin says, “That’s just not credible.”

No, it isn’t.   Indeed, few people got more than 4 right!  My strong guess is that:  1) they rotated the questions, rather than asking them in the order above and 2) the vast majority of students hung up after no more than three or four questions.

It appears that Sonia Sotomayor will be an activist judge after all.

During arguments in a campaign-finance case, the court’s majority conservatives seemed persuaded that corporations have broad First Amendment rights and that recent precedents upholding limits on corporate political spending should be overruled. But Justice Sotomayor suggested the majority might have it all wrong — and that instead the court should reconsider the 19th century rulings that first afforded corporations the same rights flesh-and-blood people have. Judges “created corporations as persons, gave birth to corporations as persons,” she said. “There could be an argument made that that was the court’s error to start with…[imbuing] a creature of state law with human characteristics.”

[...]

“Progressives who think that corporations already have an unduly large influence on policy in the United States have to feel reassured that this was one of [her] first questions,” said Douglas Kendall, president of the liberal Constitutional Accountability Center. “I don’t want to draw too much from one comment,” says Todd Gaziano, director of the Center for Legal and Judicial Studies at the conservative Heritage Foundation. But it “doesn’t give me a lot of confidence that she respects the corporate form and the type of rights that it should be afforded.”

For centuries, corporations have been considered beings apart from their human owners, yet sharing with them some attributes, such as the right to make contracts and own property. Originally, corporations were a relatively rare form of organization. The government granted charters to corporations, delineating their specific functions. Their powers were presumed limited to those their charter spelled out. “A corporation is an artificial being, invisible, intangible,” Chief Justice John Marshall wrote in an 1819 case. “It possesses only those properties which the charter of its creation confers upon it.”

But as the Industrial Revolution took hold, corporations proliferated and views of their functions began to evolve. In an 1886 tax dispute between the Southern Pacific Railroad and the state of California, the court reporter quoted Chief Justice Morrison Waite telling attorneys to skip arguments over whether the 14th Amendment’s equal-protection clause applied to corporations, because “we are all of opinion that it does.”

[...]

Subsequent opinions expanded corporate rights. In 1928, the court struck down a Pennsylvania tax on transportation corporations because individual taxicab drivers were exempt. Corporations get “the same protection of equal laws that natural persons” have, Justice Pierce Butler wrote.

From the mid-20th century, though, the court has vacillated on how far corporate rights extend. In a 1973 case before a more liberal court, Justice William O. Douglas rejected the Butler opinion as “a relic” that overstepped “the narrow confines of judicial review” by second-guessing the legislature’s decision to tax corporations differently than individuals. Today, it’s “just complete confusion” over which rights corporations can claim, says Prof. William Simon of Columbia Law School.

Rather clearly, the Court will not have 5 votes to overturn nearly two centuries of precedent.  By contrast, the conservatives on the Court may well have the votes to overturn decades of precedent in campaign finance law, finally deciding that the 1st Amendment fully applies to corporations and that money is speech.

Both of these directions are arguably activist; they’re certainly a violation of the stare decisis tradition.  But corporate personhood is a bedrock principle of American corporate law; the only question is how far it extends.  While being gradually limited in scope in recent years, the premise has never been seriously questioned by the Supreme Court.  Campaign finance law, conversely, has always been a balancing test, with the Court both recognizing that donating to candidates and political advertising have qualities of speech and yet deferring to the public policy interest in reigning in the appearance of undue influence.

Tomorrow, the Supreme Court is hearing a case that could overturn two recent precedents allowing the restriction of political speech by corporations for the purpose of curbing the appearance of undue influence.  There’s an excellent chance they will do so.

Justice Samuel A. Alito Jr., left, and Chief Justice John G. Roberts Jr. have backed challenges to campaign finance laws. (By Lucian Perkins -- The Washington Post)

That raises ageless questions about the role of stare decisis — the court’s custom of standing by its previous decisions. But it also raises new ones about the boldness of a court that has moved to the right with the addition of Roberts and Justice Samuel A. Alito Jr.  “Everyone knows this is a case about the chief and Justice Alito,” said Richard J. Lazarus, co-director of the Supreme Court Institute at the Georgetown University Law Center. “And the real question here is whether the chief is ready to pull the trigger” on declaring the restrictions unconstitutional.

Roberts’s instincts have been to move incrementally, Lazarus noted. But such a narrow and consistent chipping-away approach — Roberts and Alito have voted for every challenge to campaign finance laws since joining the court — may simply be a way to make more-sweeping decisions appear inevitable.

[...]

There are two precedents at stake in Wednesday’s rehearing of Citizens United v. Federal Election Commission. One is the court’s 1990 decision in Austin v. Michigan Chamber of Commerce, in which it upheld a state law that said corporations could be barred from spending their profits to urge a candidate’s election or defeat.

The second is part of the 2003 decision upholding Congress’s Bipartisan Campaign Reform Act, commonly known as the McCain-Feingold campaign finance law. The court ruled 5 to 4 that Congress may curtail corporate spending on advertising that mentions a candidate shortly before an election, even if it does not explicitly support or oppose that person.

Three current justices — Antonin Scalia, Anthony M. Kennedy and Clarence Thomas — have said Austin should be overturned, and all three said in McConnell v. FEC that McCain-Feingold violates the Constitution’s guarantee of free speech. Those who favor the restrictions said a recognition that government may treat corporations and individuals differently when it comes to political spending dates back more than 100 years.

I’m agnostic on the question of corporate personhood, both seeing firms as simply individuals bound together by contract and yet not necessarily entitled to every protection owed a  citizen.  On the specific matter of campaign finance law, however, it strikes me as obviously unconstitutional to restrict political speech.

Though I follow a number of lawblogs, I missed a rather interesting Supreme Court decision until reading about it on the blog of entrepreneur Mark Cuban. For reasons understandable to those who follow Cuban, he has a Google alert for “prosecutorial misconduct,” which yields more results than one would like.

It led him to Michael Dorf’s FindLaw essay “Did the Supreme Court Recognize an Innocent Person’s Right Not to Be Executed?”

“What,” you may be asking yourself, “such a right doesn’t exist already?! They find stuff emanating from penumbras and they haven’t found this one yet?!”

Nope:

In 1993, in Herrera v. Collins, the Supreme Court raised, but did not ultimately decide, the question whether it would violate the Constitution to execute an actually innocent person. Acknowledging an “elemental appeal” to the claim that the Constitution forbids executing the innocent, the Court nonetheless left open the question whether, “in a capital case a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitutional.” Even if such a demonstration would indeed render an execution constitutionally forbidden, moreover, the late Chief Justice Rehnquist said for the Court, “the threshold showing for such an assumed right would necessarily be extraordinarily high.” Finding that Herrera’s proffered evidence did not satisfy this standard, the Court denied relief in that case.

But, in a case decided August 17 involving a man on death row for murdering a cop, convicted on evidence that has since been recanted and with substantial new evidence pointing to the state’s star witness as being the actual killer,

Yet despite national and international attention–including pleas by former Georgia Governor and U.S. President Jimmy Carter, former Georgia Republican Congressman and federal prosecutor Bob Barr, and even Pope Benedict–neither the Georgia courts nor the Georgia Pardons and Parole Board has seen fit to stop Davis’s execution.

Last week, the Supreme Court offered Davis a ray of hope. In response to his petition for a writ of habeas corpus, the Justices ordered that a federal district court in Georgia “should receive testimony and make findings of fact as to whether evidence that could not have been obtained at the time of trial clearly establishes [Davis's] innocence.”

A key excerpt from the dissent:

This Court has never held that the Constitution forbids the execution of a convicted de-fendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent. Quite to the contrary, we have repeatedly left that ques-tion unresolved, while expressing considerable doubt thatany claim based on alleged “actual innocence” is constitutionally cognizable.

Now, as a practical matter, there is no such thing as innocence in the eyes of the law.  A person is either found guilty or acquitted.  And we obviously don’t want to routinely retry cases on the basis of the convict’s assertions of innocence.  After all, if the population at Shawshank is any indication, they’re all innocent.  Once convicted, the burden of proof for presenting new evidence of innocence ought reasonably be high.

But, surely, the basic idea of justice precludes the state from knowingly executing someone for a crime they didn’t commit?

How far does the 1st Amendment go?  Hal Turner is about to find out.

Hal Turner, an Internet radio host and blogger, posted photos of the three judges who displeased him and a map of the courthouse where they work. (By Jessica Hill -- Associated Press)

Internet radio host Hal Turner disliked how three federal judges rejected the National Rifle Association’s attempt to overturn a pair of handgun bans.

“Let me be the first to say this plainly: These Judges deserve to be killed,” Turner wrote on his blog on June 2, according to the FBI. “Their blood will replenish the tree of liberty. A small price to pay to assure freedom for millions.”

The next day, Turner posted photographs of the appellate judges and a map showing the Chicago courthouse where they work, noting the placement of “anti-truck bomb barriers.” When an FBI agent appeared at the door of his New Jersey home, Turner said he meant no harm.

He is now behind bars awaiting trial, accused of threatening the judges and deemed by a U.S. magistrate as too dangerous to be free.

[...]

Turner’s attorney said the prosecutors overreacted.  “He gave an opinion. He did not say go out and kill,” defense attorney Michael Orozco said last week after unsuccessfully seeking bail. “This is political hyperbole, nothing more. He’s a shock jock.”

That is not how U.S. Attorney Patrick J. Fitzgerald and his prosecutors see the case. They charged Turner, a blogger admired by white supremacists, with threatening the lives of three judges on the U.S. Court of Appeals for the 7th Circuit: Frank Easterbrook, Richard Posner and William Bauer.

[...]

Turner, 47, was first charged in June by Connecticut’s Capitol Police with inciting injury after he urged residents to “take up arms” against two state legislators and an ethics official when the lawmakers introduced a bill to give lay members of Roman Catholic churches more control over their parishes’ finances.  Later that month, federal authorities filed charges in the Chicago case.

[...]

First Amendment scholar Martin H. Redish said much of what Turner wrote is protected by the Constitution, including his declarations that the judges should be eliminated. But he said Turner probably crossed a line when he printed information about the judges, their office locations and the courthouse. “I would give very strong odds on a thousand bucks that once he said that stuff, it takes it out of any kind of hyperbole range,” said Redish, a professor at Northwestern University Law School. “I just don’t see him being protected.”

In a 1918 case called Schenck v US, the Supreme Court articulated the “Clear and Present Danger” doctrine, in which Justice Oliver Wendell Holmes, Jr. famously noted that “shouting fire in a crowded theater” is not protected speech.  This turned out to be impossible to nail down and was ultimately replaced with something called the “Direct Incitement Test” in Brandenburg v. Ohio in 1969.  It ruled that “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.’”

Proclamations that people “deserve to be killed,” while loathsome, are unquestionably protected speech.  When someone has a large following and urges the audience to take criminal action, it gets dicier.  Going further and providing maps and advice for circumventing protective barriers may well cross the line.

A superb essay at FindLaw concludes:

Complexities inherent in the myriad varieties of expression encompassed by the First Amendment guarantees of speech, press, and assembly probably preclude any single standard. For certain forms of expression for which protection is claimed, the Court engages in ”definitional balancing” to determine that those forms are outside the range of protection. 164 Balancing is in evidence to enable the Court to determine whether certain covered speech is entitled to protection in the particular context in which the question arises. 165 Utilization of vagueness, overbreadth and less intrusive means may very well operate to reduce the occasions when questions of protection must be answered squarely on the merits. What is observable, however, is the re-emergence, at least in a tentative fashion, of something like the clear and present danger standard in advocacy cases, which is the context in which it was first developed. Thus, in Brandenburg v. Ohio, 166 a conviction under a criminal syndicalism statute of advocating the necessity or propriety of criminal or terroristic means to achieve political change was reversed. The prevailing doctrine developed in the Communist Party cases was that ”mere” advocacy was protected but that a call for concrete, forcible action even far in the future was not protected speech and knowing membership in an organization calling for such action was not protected association, regardless of the probability of success. 167 In Brandenburg, however, the Court reformulated these and other rulings to mean ”that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” 168 The Court has not revisited these issues since Brandenburg, so the long-term significance of the decision is yet to be determined.

Ultimately, then, what we have is an ad hoc system, much as we do in obscenity cases.  Of the latter, Justice Potter Stewart famously admitted that, “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.”

We’re essentially in the same boat with incitement to violence. There are no bright lines, so we’re left up to the discretion of individual prosecutors and judges.  That is, to say the least, less than ideal.  But it’s likely as impossible to articulate an a priori definition here as it is for obscenity.

Matt Yglesias cites a 15-year-old essay by Hendrick Hertzberg arguing that the filibuster is unconstitutional:

It’s true that the framers did not specify that the Senate would do its normal business by simple majority vote, but that’s because it didn’t occur to them that they had to specify it, any more than it occurred to them to specify that senators should not dunk each other’s powdered wigs in the inkwells. For, as the Supreme Court noted in 1892, “the general rule of all parliamentary bodies” that “when a majority is present, the act of a majority of the quorum is the act of the body…has been the rule for all time.”…. Unfortunately, the Court, which is extremely shy of challenging the internal workings of Congress, is not about to outlaw filibusters.

Matt tends to agree but 1) thinks it’s a good thing that the courts are reluctant to weigh in here; 2)the Senate could fix this if it’s Members wanted to; and 3) it’s members don’t want to because “most senators care more about their personal power and prerogatives than they do about the welfare of the country or the world.”

While I think the widespread use of the filibuster and other supermajority requirements like the Byrd Rule are extraconstitutional, they’re rather clearly not unconstitutional. Why?  Because Article I, Section 5, Clause 2 specifies that “Each House may determine the rules of its proceedings.”  So long as the rules don’t violate other provisions on the Constitution, then, the Senate can run itself however it damn well pleases.  And it does!

UPDATE: Commenter TG Chicago writes, “I’d also be interested to know what you think of the good of the filibuster rather than just the legality of it.”  I’ve written pretty extensively on the topic in the past but most people reading this post likely haven’t read those old posts.

Short answer: I think it’s a good thing if used for truly huge legislation that will have a major impact on the way we govern ourselves and a bad thing if it’s used routinely on even basic legislation.  So, for example, filibustering a total overhaul of the health care system or a $1.3 trillion bailout is fair game but filibustering, say, Cash for Clunkers is not.

Additionally, I disagree with the use of the filibuster on presidential prerogatives, such as judicial and cabinet appointments, where the Senate’s intended role is merely advisory.  With legislation, Congress is the lead actor with a presidential signature as an institutional check.  For appointments, the president is the lead actor with the Senate there to prevent clearly unqualified nominees from getting through.

Ezra Klein and Steve Benen are recirculating this somewhat interesting chart on political polarization in America by political scientists Nolan McCarty, Keith T. Poole, and Howard Rosenthal.

Ezra argues that “this level of polarization makes it virtually impossible to govern in a system that is designed to foil majorities and require a constant three-fifths consensus. It’s not good if the country is virtually impossible to govern.”  Steve says this is especially true when, pace Harold Meyerson, the opposition party “is dominated by Southern neo-Dixiecrats.”

Given this situation, Ezra observes, “Problems don’t stop mounting while we try and figure things out. We could respond to this by making it easier for the majority party to govern and thus less likely that we have some sort of massive crisis that totally realigns our politics.”  He’s not talking about amending the Constitution but rather implementing unspecified rules changes in Congress that would strip power from the minority to get in the way.

Newt Gingrich made a bunch of changes in 1994. Democrats made a bunch of changes in 1975. John F. Kennedy made some big changes in the early 1960s. FDR changed the way Congress worked, and so too did Woodrow Wilson. This isn’t something invented by a bunch of bloggers in the early 21st century.

My recollection of both the Gingrich and post-Watergate reforms is that they were aimed at breaking down the power that came with seniority and to deal with public perception that Members were unduly influenced by outside interests rather than the ability of the opposition party to shape or block legislation.   And I’ve got no idea whatever of what Kennedy did to reform Congress; indeed, I’m not sure how he would have done that from the White House. In the cases of FDR and Wilson, they simply seized power for the presidency during extreme national crises with the acquiescence of Congress.

Regardless, as Thomas Mann and Norman Ornstein document, there have been numerous and nearly-continuous efforts to reform Congressional rules over the years.  And I’d be quite happy, for example, to do away with or seriously limit the use of the filibuster, secret holds, and various other measures which make it easy for the minority to block even relatively minor legislation.  Those are extra-constitutional at best and are not supposed to be used routinely as they now are.

At the same time, however, I disagree with the underlying premise of Ezra and Steve’s complaint.  The fact that we’re more polarized on politics as a nation than we have been in decades, by definition, means that there’s little national consensus.  That’s simply not a time for radical policy changes.  Ramming through unpopular programs in a very polarized nation is a recipe for more polarization.

George W. Bush was re-elected in 2004 along with Republican majorities in both Houses of Congress.  Among the signature programs he ran on was a radical overhaul of the Social Security retirement system that included a private option.   Once we got to the legislative phase, however, and the public saw the actual program rather than an abstract notion, it became decidedly less popular.  And the Democratic minority in Congress was able to block it.   We may well be on the road to the exact same thing happening on health care reform, with the public option failing to catch on for now.

That is how our system is supposed to work.  It’s precisely designed not to allow big change based on a small majority.

Furthermore, the Democrats have a reasonably comfortable margin in both the House and the Senate.  To the extent that they’re failing to get things done, it’s not because “Southern neo-Dixiecrats” in the minority party are using dastardly tricks to foil the popular will but because of fissures within the Democratic coalition.   Which, incidentally, the Republicans faced, too, back when they had the majority.

The nature of putting together a governing coalition in a politically polarized country is that getting over the top requires winning seats in states and districts that are either closely divided or are usually won by the other party.  “Blue dog” Democrats are no more in line with the Progressive wing of their party than the Northeastern Republicans of yore were with the Southern Conservative wing of theirs.

Glenn Greenwald rebuts those who think his strident attacks on Presidents Bush and Obama for abusing their power make his blog “an ideological wind tunnel” and that he is “oblivious to the practical considerations policymakers must contend with.”

By the design of the Founders, most American political issues are driven by the vicissitudes of political realities, shaped by practicalities and resolved by horse-trading compromises among competing factions.  But not all political questions were to be subject to that process.  Some were intended to be immunized from those influences.  Those were called “principles,” or “rights,” or “guarantees” — and what distinguishes them from garden-variety political disputes is precisely that they were intended to be both absolute and adhered to regardless of what Massing calls ”the practical considerations policymakers must contend with.”

We don’t have to guess what those principles are.  The Founders created documents — principally the Constitution — which had as their purpose enumerating the principles that were to be immunized from such “practical considerations.”  All one has to do in order to understand their venerated status is to understand the core principle of Constitutional guarantees: no acts of Government can conflict with these principles or violate them for any reason. And all you have to do to appreciate their absolute, unyielding essence is to read how they’re written:  The President “shall take Care that the Laws be faithfully executed.”  “[A]ll Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.” ”Congress shall make no law . . . abridging the freedom of speech.”  ”The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.”  ”No person shall be . . . deprived of life, liberty, or property, without due process of law.”  Even policies which enjoy majoritarian support and ample “practical” justification will be invalid — nullified — if they violate those guarantees.

Much more (of course) at the link.  And he’s right.

The advancement of technology have blurred some lines and simultaneously increased the potential costs to society of strict obedience to the Bill of Rights, and made it much easier for government to abuse its power.  I frequently disagree with Glenn as to precisely where the line ought be drawn on various matters but fundamentally agree with his insistence in the rule of law.  As Barry Goldwater famously put it, “Extremism in the defense of liberty is no vice. And moderation in the pursuit of justice is no virtue.”  Less famously, in the same speech, he observed,

Those who seek absolute power, even though they seek it to do what they regard as good, are simply demanding the right to enforce their own version of heaven on earth. And let me remind you, they are the very ones who always create the most hellish tyrannies. Absolute power does corrupt, and those who seek it must be suspect and must be opposed. Their mistaken course stems from false notions of equality, ladies and gentlemen. Equality, rightly understood, as our founding fathers understood it, leads to liberty and to the emancipation of creative differences. Wrongly understood, as it has been so tragically in our time, it leads first to conformity and then to despotism.

Many seem to think this notion only applies when their party is out of power.  Greenwald, at least, recognizes that it’s just as true when his own guy is in office.

Continuing a long-running theme at his blog, Matt Yglesias laments that Senators from small states wield so much power.  The latest fuel is a NYT feature on six moderates who are supposedly the linchpins to putting together a bipartisan health care deal and who routinely hash out the details of same over snacks.

[V]ast power is being wielded by people who, in a democratic system of government, would have almost no power. We’re talking, after all, about Max Baucus of Montana, Kent Conrad of North Dakota, Jeff Bingaman of New Mexico, Susan Collins of Maine, Mike Enzi of Wyoming, and Chuck Grassley of Iowa. Collectively those six states contain about 2.74 percent of the population, less than New Jersey, or about one fifth the population of California.

There’s no doubt that the small states have disproportionate power in a system wherein all states get equal voting power.  Then again, that was the whole point (see: Compromise, Great).

Would we design the system this way if we were starting from scratch?  Probably not.  But it made good sense at a time when the several states were sovereign entities banded together for national defense and international commerce.

Does this make our system undemocratic?  Not any moreso than, say, the fact that five unelected people on the Supreme Court (about 0.00 percent of the population!) can overrule an act of the legislature.  Or that it requires a supermajority to amend the Constitution or ratify a treaty.

Matt is also frustrated that the above-mentioned six come from predominately rural states and therefore ignore the interests of urbanites.  But that’s just a function of self-selection in a particular instance.  It’s certainly conceivable that a group of Senators from larger states who happen to be on the fence on some other issue could dine together regularly and use their informal gatherings to work out their policy positions.

I was able to find the exact text of the plebiscite that Manuel “Mel” Zelaya wanted to proffer to the citizens of Honduras this past Sunday. The text and a photo of the ballot that was to be used can be found here.

The odd thing, and a fact that hasn’t made it into a lot of press accounts or snap judgments about the situation, is that the language in question is not about re-election, but rather would have asked whether or not the public wanted to have a referendum in November about whether or not to call a constitutional convention to write a new constitution. As such, it is unclear to me at the moment why the accusation was that Zelaya was seeking immediate re-election, as even if his plebiscite had been approved, I cannot see how it would have led to be him being on the ballot in November (which is when the next presidential term, which starts in January, is set to be filled). I will continue to research that issue.

More discussion at the link above.

The events in Honduras today have been some of the more dramatic in recent Latin American (and especially Central American) politics. The events are certainly of relevance to the democratic evolution of Honduras. Dave Schuler asked that I post a few comments given my academic focus on Latin America.

If anyone is interested in the topic, I have written quite a bit about it today:

• Coup in Honduras, President Forced into Exile
• The Legality of the Honduran Coup
• Looking to the Honduran Constitution
• Wherefore art thou, O Veep? (More Honduras)
• More on the Honduran Constitution
• Yes, Yes it was a Coup

I think it is also worth noting that many are forming opinions simply based on the fact that ousted President Zelaya was a political ally of Hugo Chávez, but that fact is irrelevant to whether or not the actions taken by members of the Honduran government and military were legal. I do concur that Zelaya’s proposed plebiscite was unconstitutional and that he was violating a Supreme Court ruling in pursuing it. As such, I agree that action was warranted against Zelaya, but that doesn’t affect the fact that what was undertaken in Honduras was a coup, albeit a bloodless one.

Democracies are not made healthier by extra-legal moves even if they are made to block other extra-legal moves. Indeed, the inability of the congress and the courts to find an alternative means of blocking Zelaya’s plebiscite apart from arrest and exile underscores institutional weakness, not strength.