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By Adrian Vermeule

A trope of tyrannophobic political discourse compares the American presidency with the government of the Caesars. T.B. Macaulay addressed a comparison between the Caesars and the Tudor monarchs (Henry VII, his son, and his grandchildren) in terms both withering and illuminating:

It has been said … that the Tudors were as absolute as the Caesars. Never was a parallel so unfortunate. The Caesars ruled despotically, by means of a great standing army, under the decent forms of a republican constitution. Our Tudors, on the other hand, under the titles and forms of monarchical supremacy, were essentially popular magistrates. Though the legal checks on their activities were feeble, the natural checks were strong. It was impossible for them to carry oppression beyond a certain point. They knew that, if the patience of the nation were severely tried, the nation would put forth its strength, and that its strength would be found irresistible.(Macaulay, Burleigh and His Times, in the Essays).

In The Executive Unbound: After the Madisonian Republic, Eric Posner and I offer a picture of the American presidency, and the executive branch generally, that partakes of both the Caesars and the Tudors (as Macaulay portrays them). On one hand, the President commands a great standing army or indeed several of them, if we count his army of bureaucrats and advisers. Although the President rules “under the decent forms of a republican constitution” – the one from 1789 – his powers vastly exceed anything that could be inferred from the text of that document, principally because of the ever-increasing rate of change in the policy environment in the 20^th century and the ever-diminishing institutional capacities of the Congress, both of which conspire to ensure that an ever-increasing amount of policy is made by the executive under broad and vague statutory delegations. Moreover, the presidency is the sole institution capable of acting in the real world, beyond the law books, and often proceeds through unilateral action, wielding “power without persuasion.”

On the other hand, the President, like the Tudor monarchs, is substantially constrained by the ambient force of mass public opinion and the implicit threat of political backlash. “Though the legal checks on [his] activities [are] feeble, the natural checks [are] strong.” Any modern President is a curious pushme-pullyu: possessing sweeping statutory and constitutional powers, he is enslaved to the opinion polls. Indeed, the administrative state over which the President reigns, and which is both a wellspring and a symptom of his power, itself tends to generate and sustain those political checks, in part because it helps to create a large class of secure, educated and wealthy elites who have both time and inclination to scrutinize executive action, donate to the American Civil Liberties Union and the Center for Constitutional Rights, and agitate against executive abuses.

So the answer to “the Caesars or the Tudors?,” as to the American presidency, might be “some of both.” But the even better answer – and this is actually the answer we give – is “neither,” because neither the Caesars nor the Tudors were elected (putting aside the need to maintain the loyalty of the legions or nobility). We envision the Constitution in 2020 as a plebiscitary, president-centered electoral democracy in which Congress and the courts have been reduced to marginal actors , who carp fr

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Today is a very important day in American history, the anniversary of when the 13th Amendment to the Constitution was passed by Congress, that which formally abolished slavery in the U.S. in 1865. The Thirteenth provides that “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” It was ratified later that year on December 6. In honor of this anniversary, we offer an excerpt from The Oxford Guide to United States Supreme Court Decisions, which provides an overview of the Civil Rights Cases.

Civil Rights Cases, 109 U.S. 3 (1883), submitted on the briefs 7 November 1882, argued 29 March 1883, decided 15 October 1883 by vote of 8 to 1; Bradley for the Court, Harlan in dissent.

Few decisions better illustrate the Supreme Court’s early inclination to interpret narrowly the Civil War Amendments than the Civil Rights Cases. There the Court declared unconstitutional provisions of the Civil Rights Act of 1875 that prohibited racial discrimination in inns, public conveyances, and places of public amusement. The decision curtailed federal efforts to protect African-Americans from private discrimination and cast constitutional doubts on Congress’s ability to legislate in the area of civil rights, doubts that were not completely resolved until enactment of the Civil Rights Act of 1964.

The Civil Rights Cases presented two conflicting views of the Thirteenth and Fourteenth Amendments. The conservative view saw the amendments in narrow terms: the Thirteenth Amendment simply abolished slavery; the Fourteenth granted the freed people citizenship and a measure of relief from state discrimination. The more radical view believed the amendments helped secure to the freed people and others all rights of free people in Anglo-American legal culture. Moreover, the amendments gave the national government authority to protect citizens against both state and private deprivations of rights.

Justice Joseph P. Bradley’s majority opinion rejected the more radical interpretation of the new amendments. He held that the Fourteenth Amendment only prohibited state abridgement of individual rights. In Bradley’s view the 1875 Civil Rights Act was an impermissible attempt by Congress to create a municipal code regulating the private conduct of individuals in the area of racial discrimination. He asserted in dicta that even private interference with such rights as voting, jury service, or appearing as witnesses in state court were not within the province of Congress to control. An individual faced with such interference had to look to state government for relief. Bradley also rejected the contention that the Thirteenth Amendment allowed Congress to pass the 1875 legislation, declaring that denial of access to publ

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By Elvin Lim

The new House rules require that bills be posted online for 72 hours before they come to the floor for a vote.

If this is a nod to the Tea Party movement, either the nodders are naive or the Tea Party movement has no clue what the Constitution really means.

One needs quite a lot more than a public reading of the US Constitution to unpack its meaning. For to understand the Constitution is not only know what it says, but how it works.

The more the House succeeds as a check against itself, the less it would be able to be a part the original checks and balances the Framers invented. The checks they envisioned were mostly inter-branch, not intra-branch.

Consider the various rules the House has now adopted to constrain its own powers. The Supreme Court doesn’t do this. The President certainly does not. Whereas the House has mandated its members to post bills online for 72 hours before they are brought to the floor of the vote, presidents in the 20th century have been happy to conceal their actions behind the protective veil of “executive privilege.” Whereas all bills and resolutions sent to the House now have to be accompanied by a statement of constitutional propriety, we are not likely to see a president voluntarily tie his/her hand like that. If anything, presidents purport to have independent authority to interpret the Constitution as they so please. Congress has now ceded its prerogative to do so.

The Tea Partiers do not appear to understand that power is a zero-sum game between the executive and legislative branches, and this is particularly ironic given that not a few of them are routing for the current president’s political demise.

A weak legislative branch may beget a weak American state, and the latter, to be sure, is ultimately what the Tea Partiers want. But there is more than one branch able to the task of expanding the state. Tea Partiers might have missed the fact that whereas Republican legislators helped to expand the scope and size of the federal government during the Civil War and Reconstruction, in the 20th century, presidents have been the motive force behind the expansion of the American state. Think of Theodore Roosevelt and the civil service, Franklin Roosevelt and Social Security, Lyndon Johnson and Medicare. Crippling the legislature only makes it more susceptible to the executive whim. Betimes the executive exercises impulse control, but most of the time, presidents grow the state. Whether it pertains to the social security state or the military industrial complex, it’s still the federal budget that has been exploding, and the emboldened executive of our times has quite a lot to do with it.

There are real consequences for our republic whenever someone one or one movement purports that someone else does not have the privilege of interpreting our Constitution. Quite often, they are simply ceding the interpretative power to someone else – either the President or less often, the Courts. Worse still is when the would-be constitutional purist reserves interpretation only for himself by purporting that the Constitution only needs to be read for its meaning to be manifest.

No, I am not talking about John Boehner, but Jared Loughner, the man taken into custody for the shooting of Representative Gabrielle Giffords, who wrote on a Youtube video [3:15] the following:

“The majority of citizens in the United States of America have never read the Constitution of the United States of America.

You don’t have to accept the federalist laws.

Nonetheless, read the United States’ of America’s Constitution to apprehend all of the current treasonous laws.

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By Elvin Lim

Mandate claims in American politics are hogwash, and they are especially dubious in mid-term elections where an entire branch was not evaluated for re-election. Mandates imply that there is a clear date on which majorities are counted. There isn’t, because ours is a republic in which the staggered electoral calendar introduced the principle that republican “truth” would emerge from a conversation between different majorities at different cross sections in time. The president elected in 2008 is still around – so as far as the Constitution is concerned, the Democratic mandate from 2008 is no less relevant and carries over into 2011 as much as the Republican mandate from 2010.

The Constitution understands that what you and I believed in 2008 and what we believe in 2010 could be the same or it could be different – but what matters is that the Constitution predicted our fickleness and finds its average between the two. The change that Obama promised in 2008 was as much mandated as the change that the Republicans and the Tea Partiers resisted in 2010. This is an important lesson for both Republicans in Congress and the President. If mandates are fragile, even meaningless things, then at the very least, neither should make too much of their own.

But still, since we are committed to majoritarian rule, it would be worthwhile to try to divine exactly what the American people are looking for in the next two years. Just where is the median position between the electoral mandate of 2008 and 2010? Should Barack Obama try to do what Bill Clinton did, and find a “third way” compromise with Republicans, and John Boehner should try to, like Newt Gingerich, push a purist Republican agenda? On balance, I think Obama should resist the urge to over-react, and Boehner should resist the urge to over-reach.

Bill Clinton’s mandate from 1992 was not only much smaller (with 45 million Americans voting for him, he received a plurality but not a majority of the popular vote), it was also a mandate (“Putting People First”) that wasn’t based on a campaign that was categorically and emphatically about change. When his party lost 54 seats in the House in 1994, it was certainly humbling compared to the relatively paltry size of his own mandate.

Less so for Barack Obama. About 90 million voters turned out last week. Assuming that a vote for a Republican candidate for the House and the Senate and in any state can be meaningfully clumped together to articulate a generic Republican mandate for 2010, then about 47 million voters (52 percent of 90 million) signed on to the Republican Pledge for America in 2010.

That leaves an undiluted and quite unambiguous vote for one man, Barack Obama, in 2008 that was one and a half times the number of votes cast for 286 Republican women and men (239 in the House plus 47 in the Senate) in 2010, since 132 million Americans turned out in the 2008 elections, and about 70 million chose Barack Obama and his version of change. That’s a pretty hefty differential, and if so 2011 should not be replayed as if it were 1995.

If Obama should not over-react, neither should Republicans over-reach. Republicans should not be blamed for playing the hype game today. It sets the bargaining position in their favor when they take control of Congress in January. But, Republicans should be careful with too much of a good thing. The higher the expectations they set, the harder they can fall. (Obama found that out.)

Obama and the new Congress should understand that the system under which they operate was designed to facilitate a conversation between voting generations. And since the system, in effect, anticipated the fickleness of voters, it is incumbent on those we have selected to represent us in government to enact a careful titration of two mandates loudly articulated against

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By Elvin Lim

When the dust has settled on the electioneering frenzy of these final days, 2010, the third “change” election in a row, will better be read as an equilibrium restoring election.

In the Senate, Democrats are about to hand back just over half of their recent wins (5 seats in 2006, and another 8 in 2008) to the Republicans. Most predictions for the number of seats the Republicans will pick up in the House hover around 50 because there are currently 49 Democrats occupying seats in districts that voted for McCain in 2008, and they are about to relinquish these seats. Put another way, Democrats picked up 31 seats in 2006, and another 21 in 2008, and they’re about to return just about every one of them back to the Republicans.

This is not coincidence. It is the revealed majesty of the Newtonian system that the Framers of the Constitution set up, and our subliminal internalization of its logic. The Founders weren’t too fond of waves of popular passion, which is why they applied “a new science of politics” and created institutions arrayed alongside each other with the specific principle that “ambition must be made to counteract ambition.”

The invisible constitutional hand appears to be working. Now that Barbara Boxer has pulled ahead of Carly Fiorina in California, as has Joe Manchin over John Raese in West Virginia, it is likely that the Democratic firewall will hold just enough to prevent a Republican takeover of the Senate. To take over the Senate, Republicans must take the seats in CO, IL, NV, PA, and WA. Indeed, because Republicans are polling ahead in each of these last 5 races, a nearly perfect partisan equipoise is likely to occur in the Senate. That means the 112th Congress which starts business on January 3, 2011, will likely see a slim Republican majority in the House, and an even slimmer Democratic majority in the Senate.

Another way to think about this election as equilibrium restoring is to observe the net neutral effect of the Tea Party movement. In some places, Tea Party candidates are giving seasoned politicos a run for their money. Marco Rubio and Rand Paul now look like shoos-in for the senatorial seats in Florida and Kentucky, and Sharron Angle is in a statistical dead-heat with Senator Majority Leader Harry Reid of Nevada – which means, given the enthusiasm gap in favor of Republicans this year, Reid has a mountain to climb in the next two days.

Other Tea Party candidates, however, have turned out to be poor candidates. Principally, they don’t know how to handle the media and the rough-and-tumble of electoral politics. Some, like Joe Miller, think it’s OK to hand-cuff journalists; others, like Christine O’Donnell failed to realize that telling us “I’m not a witch” does not kill a rumor but sustains it. Others who have been inducted into office, like Scott Brown from Massachusetts, have long since forgotten their patrons. Like all third party movements since time immemorial, the Tea Party movement – now a flick of sunshine on a strange shore – is not likely to last more than one or two more electoral cycles.

All told, the Republicans are going to regain the seats they lost in 2006 and 2008. But, the electoral tsunami would most likely not be enough, as it was in 1994 or 2006, to flip both houses of Congress. And because of the truncated constitutional calendar, this year’s wave will stop short of the White House. The greatest prize of them all will stay in Democratic hands (a prize that will become especially valuable now that the Vice-president’s tie-breaking vote in the Senate will likely be activated in the months to come.)

A tsunami which converts half a branch is, arguably, no tsunami at all. For this to be a really significant wave that is more than equilibrium restoring, Republicans would need

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Election Day is almost upon us here in the United States. This year, it's to be held tomorrow, Tuesday, November 2, 2010.

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By Elvin Lim

For the third election in a row, voters will be throwing incumbents out of office. In 2006, the national wave against Bush and the Bush wars gave Democrats control of both houses of Congress. In 2008, the same wave swept Obama into the White House. In 2010, incumbents are yet again in trouble. At least some of them will be expelled from Washington, and if so, the vicious cycle of perpetual personnel turnover and ensuing cynicism in Washington will continue. This is what happens when we become a government of men.

We need only look to the last anti-incumbent election, 2008, for lessons. The Republicans and the Tea Party Movement are running the risk of doing what Barack Obama did in 2008. They are promising change in the campaign, but they do not realize how difficult, by design, change is in Washington. But politicians aren’t usually in the habit of thinking about the election after the one right before them.

Should Republicans take over the House in 2011, they will quickly learn, as Obama has learned, that change does not come via elections in American politics. Elections only change the publicly visible personnel at the top; at best they open the door to potential change. The permanent government persists, the political parties survive, the interests endure. Most important, the constitution and its precise method for law-making remains. The political candidate who promises wholesale change makes a promise that cannot usually be delivered in a few years, and s/he runs the risk of becoming the victim of a new political outsider, a Beowulf who will promise to slay Grendel, but who shall soon find out that with Grendel dead, a dragon still remains to be slayed.

Watch the triumphant Republicans who sweep into office in January 2011. They will be filled with as much hubris as Obama was. Fresh from the winds of the campaign trail, they will think the world their oyster. How could they feel otherwise? The applause and rallies which flatter every politician confirm in their own minds that they are kings and celebrities, the invincible crusaders swept in by a tide of popular love.

Then government begins. And boy did the tough job of governing begin in 2009, Obama might now recall. When the tough sail of real governing fails to catch wind the way a campaign slogan did in the year before, a politician stands humbled. Befuddled, to be sure, but ultimately humbled. Worse still, a people sit dismayed. Tricked again, we withdraw into our private lives. Disgusted at government, resentful that we allowed our hopes to go up, furious that we believed the boy who cried wolf thrice. All signs point to this happening again in 2011, especially if there is divided party control of government and the Constitution is activated to do what it does best: check and balance, and thereby ensure gridlock. Then the cycle begins anew. With both sides disillusioned, the question will then become, which side will be less disillusioned to believe in a new anti-incumbent politician who shall cry wolf a fourth time?

This is a vicious cycle, and the only way to stop it is for every citizen to take a civic lesson or two in American government. Our Founders believed only in incremental change, in hard choices, in the give-and-take of inter-branch negotiation. The system of checks and balances was biased against seismic chances by design. No one, and certainly no branch monopolizes the truth, and no truth can be told ahead of time (i.e. as they are in campaigns) until all branches agree. Despite the message of the get-the-vote-out armies of either party, there are no messiahs, no crusaders in the system the Founders invented. The heroes we have constructed in modern campaigns are just demagogues exploiting the impatience of the frightened or the unemployed. There are no quick and easy solutions, and politicians know it, but they only want our votes for rig

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Elvin Lim is Assistant Professor of Government at Wesleyan University and author of The Anti-intellectual Presidency, which draws on interviews with more than 40 presidential speechwriters to investigate this relentless qualitative decline, over the course of 200 years, in our presidents’ ability to communicate with the public. He also blogs at www.elvinlim.com. See Lim’s previous OUPblogs here.

Americans celebrate Independence Day on July 4, the day the words of the Declaration of Independence were set on parchment. John Adams had famously predicted that this day “ought to be solemnized with Pomp and Parade, with Shews, Games, Sports, Guns, Bells, Bonfires and Illuminations from one End of this Continent to the other from this Time forward forever more.” Because these celebrations have become annual rituals, we have stopped thinking about exactly what it is we are celebrating.

For a glaring fact stares at us in the face. The Declaration of Independence has absolutely no legal or constitutional status. Presidents and journalists alike appropriate the principles it articulated in their rhetorical flourishes, but for all its symbolic power, the Declaration cannot be quoted by a judge on the Supreme Court to justify an opinion.

A National Day ought to commemorate what it is to be American, and the truth is, the Declaration may well have been the necessary, though certainly not the sufficient part of what made America America. In 1776, the Continental Congress severed our ties to the British crown. That was only a negative act which did not positively define who we were. That positive definition would only come in 1789, when “We the People” would constitute the American nation.

Two hundred years after the fact, Americans commemorate the events of the 1770s and the 1780s as if they were the same decade. But (in order to understand the strive in our contemporary politics) it is important to recall that the 1770s (and the Declaration) and the 1780s (and the Constitution) represented two opposite world-views. The revolutionary generation and the Founding generation were not always on the same page.

The Declaration, ultimately, was an act to guarantee our negative liberties. (Independence = freedom from.) It was a revolutionary act by “one people to dissolve the political bands which have connected them with another.” The revolutionary generation thought, contrary to what most modern liberals believe, that government was evil. The less of it we had to endure, the better.

The Constitution, in contrast, was an act to guarantee our positive liberties or our freedom to do certain things. The American People came together “in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity.” The Founding generation, chastened by the inadequacies of the Continental Congress, came to see government in more benign terms. Contrary to Glenn Beck, 1789 was the culmination of a collective call for more government, not less. By 1789, memories of government as a source of evil had receded into the background, while promises of government as a force to do good hovered in the foreground.

The Declaration and Constitution are not of a piece, but are in fact the book-ends of the American ideological spectrum, presenting two competing visions of government; whether it is the so

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Elvin Lim is Assistant Professor of Government at Wesleyan University and author of The Anti-intellectual Presidency, which draws on interviews with more than 40 presidential speechwriters to investigate this relentless qualitative decline, over the course of 200 years, in our presidents’ ability to communicate with the public. He also blogs at www.elvinlim.com. See Lim’s previous OUPblogs here.

In September 2009, General Stanley McChrystal stood before an audience in London and advocated for an increase of troop levels in Afghanistan. He was out of line then, and he was out of line last week, when he mocked a number of key Obama administration officials on Rolling Stone magazine. But if the President insists on being the Commander in Chief, he should have known that his generals’ insubordination is encouraged if not guaranteed, and there was little to be gained by so publicly dismissing McChrystal.

General McChrystal’s firing brings into sharp relief the martial sub-culture in American politics–our deference to things and persons military. What is less often admitted, even by the President himself, is that this culture begins with three specific words in the Constitution–”Commander in Chief”–an anachronism in our age of republican self-government.

The first thing a soldier learns as a recruit in the military is that s/he does not think. An effective war machine enlists the complete obedience of nameless and dog-tagged soldiers, not the reflective judgment of citizens. The military is a good fit with monarchy like that (as it is said, war is the sport of kings). At every rung of the rank ladder, there is total obedience from subordinate to superior. All authority culminates in the King–the only person who does any thinking.

By this account, General McChrystal has been a bad soldier, for he dared to think, and worse still he dare to think aloud. The General did not understand that no good could be done for America’s effort in Afghanistan if he or his aides publicized their differences with Vice President Joe Biden, Ambassador Karl Eikenberry, and Special Representative to Afghanistan Richard Holbrooke. For all his talk about winning the hearts and minds of the Afghan people, it is almost as if the General wanted to ensure, by his indiscretion, that there would be no diplomatic solution to the problems in Afghanistan, so that we will forever be seeking a military one.

But I think the problem is rather deeper than one soldier’s insubordination or indiscretion. It is about a militaristic political culture intertwined with our democratic outlook–for we do not have a King doing the thinking, but a Congress of the People–and there is an uneasy juxtaposition formalized in our constitution which President Obama failed, perhaps understandably, to effectively navigate last week.

Our constitution is quite conventional in accepting the norm that soldiers should not think. What is less noted is that this principle applies to the Commander in Chief as well. The Constitution states that it is Congress who declares war and who controls the purse strings. That is to say, even the President, designated the Commander in Chief, is in the end, only a executor to whom is delegated the job of implementing the legislative will.

Of course, this has not transpired in practice. And the framers of our Constitution are not guilt-less despite t

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Britain is going to the polls today for what is shaping up to be one of the closest general elections in recent years. The is even a possibility of a hung parliament, with no party winning an overall majority – we can only wait to see what Friday morning brings us. Today, though, I have this short excerpt from The English Constitution by Walter Bagehot. Written in 1867, it is generally accepted to be the best account of the history and working of the British political system ever written. As arguments raged in mid-Victorian Britain about giving the working man the vote, and democracies overseas were pitched into despotism and civil war, Bagehot took a long, cool look at the ‘dignified’ and ‘efficient’ elements which made the English system the envy of the world. The English Constitution was also the inaugural non-fiction book on the week on the Oxford World’s Classics Twitter.

‘On all great subjects,’ says Mr Mill, ‘much remains to be said,’ and of none is this more true, than of the English Constitution. The literature which has accumulated upon it is huge. But an observer who looks at the living reality will wonder at the contrast to the paper description. He will see in the life much which is not in the books; and he will not find in the rough practice many refinements of the literary theory.

It was natural––perhaps inevitable––that such an undergrowth of irrelevant ideas should gather round the British Constitution. Language is the tradition of nations; each generation describes what it sees, but it uses words transmitted from the past. When a great entity like the British Constitution has continued in connected outward sameness, but hidden inner change, for many ages, every generation inherits a series of inapt words––of maxims once true, but of which the truth is ceasing or has ceased. As a man’s family go on muttering in his maturity incorrect phrases derived from a just observation of his early youth, so, in the full activity of an historical constitution, its subjects repeat phrases true in the time of their fathers, and inculcated by those fathers, but now true no longer. Or, if I may say so, an ancient and ever-altering constitution is like an old man who still wears with attached fondness clothes in the fashion of his youth: what you see of him is the same; what you do not see is wholly altered.

There are two descriptions of the English Constitution which have exercised immense influence, but which are erroneous. First, it is laid down as a principle of the English polity, that in it the legislative, the executive, and the judicial powers, are quite divided,––that each is entrusted to a separate person or set of persons––that no one of these can at all interfere with the work of the other. There has been much eloquence expended in explaining how the rough genius of the English people, even in the middle ages, when it was especially rude, carried into life and practice that elaborate division of functions which philosophers had suggested on paper, but which they had hardly hoped to see except on paper.

Secondly, it is insisted, that the peculiar excellence of the British Constitution lies in a balanced union of three powers. It is said that the monarchical element, the aristocratic element, and the democratic element, have each a share in the supreme sovereignty, and that the assent of all three is necessary to the action of that sovereignty. Kings, lords, and commons, by this theory, are alleged to be not only the outward form, but the inner moving essence, the vitality of the constitution. A great theory, called the theory of ‘Checks and Balances,’ pervades an immense part of politica

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Elvin Lim is Assistant Professor of Government at Wesleyan University and author of The Anti-intellectual Presidency, which draws on interviews with more than 40 presidential speechwriters to investigate this relentless qualitative decline, over the course of 200 years, in our presidents’ ability to communicate with the public. He also blogs at www.elvinlim.com. In the article below he looks at political bargains. See Lim’s previous OUPblogs here.

To those disheartened by the compromises tagged unto the health-care bill before Congress, I say, c’est la vie.

When there is politics, there are bargains. To bargain is to attempt to purchase or acquire something at a steal or at a lower cost than usual. Because a bargain is by definition a transaction that would not normally have occurred without negotiation or haggling, all political bargains are corrupt to some extent. The Connecticut Compromise, the “corrupt bargain” of 1824, the Missouri Compromise, the Compromise of 1876, today’s “Cadillac” Compromise – you name it – they all had something shady in them, though shadiness is in the eye of the beholder (usually the loser).

And so it is on the road to healthcare reform in 2010; among them are the new Louisiana purchase ($300 million for Mary Landrieu’s vote) and the Cornhusker hustle or the Nebraska Compromise (Ben Nelson got Nebraska exempted from Medicaid increases). Ironically, the reason why these deals had to be brokered in the Senate is directly attributable to the Connecticut Compromise of 1787, which had proposed proportional representation in the House according to the population size of districts and equal representation of each state in the Senate in order to secure the support of the Constitution from delegates from states big and small. Out of the Connecticut Compromise was born the idea of a minority veto, and that’s in part why the Senate has become the preeminent institution it is today even though the Founders had intended that the House be the first legislative branch.

One compromise always begets another. This is the story of politics. Consider the Bill of rights – the deal-making compromise or condition that allowed Anti-Federalists sitting on the fence to come on board with the new Constitution. The Bill, of course, wasn’t so much a Magna Carta as it was an instrument to defend states’ rights and peculiar practices such as slavery and segregation. One compromise begets another.

The Democrats will do whatever they need to to pass health-care reform before the president’s State of the Union address. And the solution will be imperfect and tainted by compromises. It cannot be otherwise because we desire more to lead than to be led, and compromise allows us to find the tolerable medium between the two.

Whatever health-care legislation we pass will lock into place a peculiar settlement that is a reflection of the contingent set of circumstances that had to be addressed to deliver the current solution but in so doing it will also set up the conditions for a future political debate. And perhaps this is as it must be, for our founding document itself had paved the way in being little more than an elaborate list of compromises, article by article.

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Elvin Lim is Assistant Professor of Government at Wesleyan University and author of The Anti-intellectual Presidency, which draws on interviews with more than 40 presidential speechwriters to investigate this relentless qualitative decline, over the course of 200 years, in our presidents’ ability to communicate with the public. He also blogs at www.elvinlim.com. In the article below he argues that the coverage of Balloon-Boy wasn’t all bad. See his previous OUPblogs here.

Last week, America came to a stand-still as we stood enraptured by television images of a runaway balloon carrying, so we thought, a six-year-old boy. Flimsy as the silver contraption appeared, we gladly suspended all disbelief that the balloon contained enough helium to be carrying a boy within so we could enjoy the side show. (Just as we did for Pixar’s animated movie, “Up,” which featured an old man who used balloons to move his house to a South American paradise.) So for almost two hours, most of the major news networks displaced all coverage of “hard” news to cover what Latimer County Sheriff Jim Alderman has now concluded to be a “publicity stunt.” And I’m going to argue that this was not a bad thing.

As the Balloon Boy story continued to dominate the weekend news cycle, the president and his advisers continued to deliberate on whether or not to send more troops into Afghanistan, and Senators worked behind the scenes to reconcile two different bills on healthcare. So let it be said that our “watchdog” media will switch its attention as soon as it is thrown an infotaining bone. But this is not necessarily a bad thing as long as we are clear-eyed about the media’s priorities. Instead, I think there is something strangely comforting that we allow ourselves such trivial pleasures. If we do not need an ever-vigilant watchdog, it is because we believe – by revealed preference – that government will mind government’s business, and we can tend to our own. Better no coverage of “hard” news than bad coverage, I say.

And this is exactly what the media did at least momentarily last week even as the President and Congress debated world and country-changing policies. Instead of another round of predictable punditry, or fact-checking of the CBO’s estimates of heath-care reform, we were fed images of a helium-filled balloon shaped like a UFO traversing the Colorado landscape. As we are with car chases, we, and therefore the media, were drawn to the balloon chase like flies are drawn to a light. We weren’t so much interested in the outcome – indeed knowledge of the outcome would have waken us up from our trance – as we were in the process, which was visually enrapturing.

For over a year we have watched a presidential campaign turn into a permanent campaign, and the American public is fatigued. We see this in Barack Obama’s dwindling approval numbers; and we also see it in our captivation by a drifting balloon. We are tired, and we are withdrawing from the public political sphere. The infotaining media detected this, and gave us a welcome reprieve.

And perhaps this is as it should be. Ours is a representative, and not a direct democracy. We vote and delegate; they, the elected officials, decide. The constitutional calendar is very clear that the people speak only every 2, 4, and 6 years. As far as the US constitution is concerned, our voices do not matter when we speak at any other time at the federal level. (Though our voices do matter at the state level where such devices as recall and refederanda are sanctioned by state constitutions.) If we didn’t believe this, than we have to deal with the conundrum that if last year’s elections were held in the second week of September, John McCain would have won. Clearly then, what you and I believed on November 4, 2008 matters much more than what you and I believe in October, 2009 (or September, 2008). Opinion polls may capture majority or minority sentiment at any moment in time, but these sentiments (should) have no import on constitutionally sanctioned officers exercising their delegated powers.

The deliberation of troop increases and health-care reform involve complex proceedings in closed-door war room meetings and conference committees reconciling details many Americans know and care little about. Such decisions make bad television, so maybe we shouldn’t try to force a message into an unreceptive genre lest we alter the message. Maybe those we put in charge should simply be let alone to do their job, for our constitution envisioned and sanctioned a low-effort, Rip Van Winkle approach to citizen participation. Sometimes we care a lot and we participate, but other times we tune out; and perhaps that is just as it should be. Last week, as we sat enraptured by the alleged antics of Balloon Boy, we embraced the implicit satisfactions of a representative democracy.

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Last week I reported on efforts to ban SPEAK in CA, and TWISTED in KY and PA. Thankfully, all of the attempts to remove the books were defeated.

This week, things are worse.

Teachers at Montgomery High School in Mt. Sterling, KY have been banned from wearing Banned Books Week tee-shirts that feature a quote from To Kill A Mockingbird.

(Yes, that is where they tried to ban TWISTED, UNWIND, LESSONS OF A DEAD GIRL, DEADLINE, THE RAPTURE OF CANAAN, WHAT MY MOTHER DOESN'T KNOW and WHAT MY GIRLFRIEND DOESN'T KNOW)

The rationale for the ban was that wearing the shirts constituted political activity.

God, I wish I was making this up. But I am not. I will post a link to news coverage of this horrifying nightmare as soon as it is available.

Other book banning notes:

John Green blogged about parent demands in Leesburg, FL, that tighter restrictions be put on 40 books in the public library, included LOOKING FOR ALASKA. Be sure to watch the replay of John's vlog, "I Am Not A Pornographer." Genius.

Lee Wind has an EXCELLENT roundtable discussion with Ellen Hopkins, E. Lockhart, Jo Knowles, Jacqui Robbins, Sarah Brannan, and Frank Portman about challenges to their books. Read Part 1 now!

What can we do to protect books and readers and teachers and librarians?

If you live in Central New York, you can go to the Onondaga County Public Library at 5:30-7:30pm tonight to listen to Sonya Sones talk about her experience with book banning.

Read this wonderful interview with Chris Crutcher. Heed his advice about how to deal with censorship: "Never be intimidated.  The loud voices for censorship actually represent a very small number of people.  Judge yourself by your enemies as much as you judge yourself by your friends."

YALSA has some great suggestions on its blog.

If you don't have book banning attempts in your community, take the time to thank your local school superintendent and library board for their intelligent understanding of the Constitution. If you do have challenges to books in your community, speak out loudly.

And last, some wonderful news for a change: attendance records at the National Book Festival were shattered as more than 130,000 book lovers turned out to listen to authors in Washington, DC.

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(Yes, I know this is a long post. With no pictures. It's important. Please read through to the end. And then pass it on.)

While I was out of town last week, I received word of three attempts to remove two of my books from high school classrooms, TWISTED and SPEAK.

The challenge I have the least information on is apparently taking place at Downingtown West High School in Downingtown, PA. TWISTED is on the 9th grade summer reading list there. Some parents object to the book because of the description of sexual behavior in it.

The second TWISTED challenge is taking place this week at Montgomery High School in Mt. Sterling, KY. A parent there feels the book is inappropriate.

Here is a quote from the draft of the letter I am sending to the Mt. Sterling superintendent:

"I suspect the roots of the parental concern about TWISTED are the scenes in which teenagers make stupid, dangerous, and occasionally horrifying decisions.

Why on earth would someone like me put things like that in a book?

Because readers who can experience those decisions – by reading about them – and appreciate the consequences of those actions - by seeing those consequences affect the lives of a book’s characters - are less likely to do the stupid, dangerous and occasionally horrifying things themselves.

Jesus knew this. He did not simply reiterate the Ten Commandments, or tell us to love one another and walk back into the desert. He told stories that made his listeners think. They make us think two thousand years later.

Storytelling is the traditional vehicle mankind uses to pass wisdom from one generation to the next. TWISTED contains a lot of bad decisions, hard consequences, and wisdom.

In an addendum to this letter, you will find a listing of the state and national awards TWISTED has received. They were all very flattering, but none of them mean nearly as much to me as the email I get from readers. Here are a few quotes from them.

“I just wanted to say thank you for writing this book. I have been considering killing myself for many years and now i am entering my junior year of high school and about 10 minutes ago finished this book. It has given me a new perspective on life and that death isn’t the easy way out. I can relate to Tyler in many ways… I greatly appreciate this book because now I know that there is hope in my life and that death is not the answer. And one more thing this is the only book I have been able to pick up and not put down from start to finish. I finished it in one day.”

“… I read "Twisted" today. I started around 4, and I couldn't stop, I finished at 9:40. This book, was so eerily similar to my life, not completely, because I haven't done any "Foul Deeds" (haha), and I don't have the same "Bethany" situation, but my father is so much like Tyler's, it sounded like he was based off him. He yells about grades constantly, to the point of making my house unhappy. I've considered suicide before and told no one, just buried it. I know this sounds strange, but I connected to this book in a very strange way. I can't explain it, I just did. I've never sat down and read a book cover to cover, but for some reason, I couldn't stop… But, I mean, this sounds silly, but I just want to thank you for writing that book. I feel different now, I know it may not make perfect sense, but this book changed part of me. So, thank you.”

 

"...Twisted really got to me. I've had 3 suicide attempts and the way you wrote the way he was feeling, and the hopelessness and complete unhappiness he had to deal with really hit home with me. You really nailed it... After finishing twisted I realized how much of a miracle life is, and how problems are only temporary. I could honestly bore you with a 3 page email explaining to you all I've learned and connected with from your writing. Basically I really appreciate and look up to you and your work."

 

 

Those emails, sir, are the reason I write hard, true, literary books for teenagers."

If you are looking to get a head start on observing Banned Books Week, feel free to write to the schools involoved with these challenges. PLEASE, I BEG YOU: be civilized and polite!! Our country is suffering an influenza of rudeness. Calling names and heaping scorn does not further discussions or change attitudes. It just builds the barricades higher.

If you have personal experience with TWISTED, as a reader, a parent, an educator, or a librarian, please share those experiences (in a positive, constructive way) with these people:

DOWNINGTOWN WEST HIGH SCHOOL, DOWNINGTOWN PA

Nancy Robinson
English Dept. Chairperson
Downingtown High School, West
[email protected]

John Nodecker
Principal
Downingtown High School, West
[email protected]

Dr. Lawrence J. Mussoline
Superintendent
Downingtown Area School District
I was unable to find a direct email for Dr. Mussoline. Try [email protected]. Maybe [email protected] might work.


MONTGOMERY HIGH SCHOOL, MT. STERLING, KY

Tammy Haydon
Review Committee chair
[email protected]

Dr. Daniel Freeman
Superintendent of Montgomery County Schools
[email protected]

Please also remember to send prayers and support to the teachers forced to deal with these challenges. Being a teacher is one of the most important, and one of the hardest jobs in the world. Having your professional integrity called out by an attempt to ban books in your classroom is a devastating attack. My heart goes out to all of the students, teachers, staff, and community members who are standing up to the attempts of a vocal minority to impose their will and their taste in literature upon an entire school.

In the Good News column, SPEAK has survived a book banning attempt in Temecula, CA. The complaining parent in Temecula said SPEAK was "smutty" and "pornographic." The LA Times newspaper did a great job covering the controversy; it published an article about the background of the challenge, and another one after the school board voted to keep the book in curriculum.

The American Booksellers Foundation for Free Expression and the National Coalition against Censorship have joined forces to create the Kids' Right to Read Project (KRRP). It is a brilliant, powerful, and much-appreciated collaboration. KRRP wrote to the Temecula Valley Unified School District to protest the attempt to ban SPEAK.

I love the KRRP letter.

I used to get really angry at these things because I felt they were a personal attack on me. Then I grew up.

Now I get angry because book banning is bad for my country. It is an attack on the Constitution and about the core ideals of America. It is the tool of people who want to control and manipulate our children.

Supreme Court Justice William O. Douglas wrote in 1953 that the “Restriction of free thought and free speech is the most dangerous of all subversions. It is the one un-American act that could most easily defeat us.”


What do you think? What are you doing to fight book banning?

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Megan Branch, Intern

The Constitution in 2020, edited by Yale Law professors Jack M. Balkin and Reva B. Siegel, contains progressive essays on the future of the Constitution from over twenty contributors. The book is the result of a conference held at Yale in 2005, where the year 2020 was chosen because it was close enough to be practical and realistic, yet far enough away for the writers to imagine that the Constitution could be interpreted very differently. About half of the essays are available on the Constitution in 2020 website, free of charge. In the excerpt below, from the introduction, the editors use the Constitution’s flexibility in the past as the basis for the idea that we must interpret it flexibly in the future so that the Constitution can accurately express the beliefs of the many individuals that it belongs to.

To say that we have imperfectly realized the Constitution’s commitments is not to deny the nation’s achievements. To the contrary: this understanding of our Constitution is the source of the nation’s greatness. Each generation builds on the best of the past and strives, as the Preamble instructs us, to create a better future for our posterity.
For proof of this idea, we need only look to history: The Constitution once protected slavery. It does no longer. It once sanctioned Jim Crow. It does no longer. The Constitution once permitted a wide variety of forms of political and artistic censorship; it once treated women as men’s servants, and gays and lesbians as criminals. It does no longer. All these changes came about because people believed in their Constitution and in the importance of continually examining our practices in the light of our principles.

Because each generation must honor the Constitution’s commitments in its own time, the Constitution as it is applied in practice will inevitably change, responding to altered circumstances and conditions. This is not a defect; it is a feature of our constitutional tradition. It is how each generation makes the Constitution its own.

Americans honor their constitutional heritage, but they do not worship it uncritically. The Constitution of today draws on a rich history of past accomplishments, starting with the Declaration, the Revolution, the founding, the second founding of Reconstruction, the New Deal, and the civil rights revolution. In these great epochs, those who forged the constitutional understandings that we today take as foundational did not treat the past as sacrosanct—it was their opponents who did.

There have been long periods in which unjust policies and defective interpretations of the Constitution reigned supreme. We often hear people talk as if the greatness of our nation and the justice of our Constitution were fixed and guaranteed at the founding; if we only would bind ourselves to the wisdom of the framers, all would be well. But those who fetishize the founders do not keep faith with them; those who framed the Constitution forged a framework for nation building, a framework for developing a political community committed to justice. As we strive to realize this commitment, we are more faithful to the constitutional project than those who supported slavery, segregation, sex discrimination, and religious intolerance in the name of the fathers. In every generation, people have defended injustice in the name of an imagined past. And in every generation, people have countered this complacency by invoking a different conception of our origins and traditions, remembering our history as a people in quest of justice.
Constitutional argument appears backward-looking, to consist in little more than appeals to text, history, and precedent. But this obscures its true genius. Americans appeal to history to make claims on one another about our deepest commitments as a nation. We appeal to history as we debate with one another how to face the future.

The Constitution, Justice Oliver Wendell Holmes once said, is made for people of fundamentally different views. We live in a world of heterogeneous beliefs and sustained conflicts about values. And we live in a democracy: a system of government in which we must live together and rule together despite deep normative disagreements. We turn to the past not because the past contains within it all of the answers to our questions, but because it is the repository of our common struggles and common commitments; it offers us invaluable resources as we debate the most important questions of political life, which cannot fully and finally be settled. In this process, we draw on the text, history, and traditions of the U.S. Constitution to make the founders’ Constitution our own. Over and over again, we have looked to our collective past to imagine our collective future.

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William N. Eskridge, Jr. and Darren R. Spedale are the authors of Gay Marriage: For Better or For Worse? What We’ve Learned from the Evidence. Eskridge is the John A. Garver Professor of Jurisprudence at the Yale Law School. Spedale spent two years on a Fulbright Fellowship in Denmark researching Scandinavian same-sex partnerships. He received his J.D. and M.B.A. degrees from Stanford University, and continues his work on same-sex marriage through his pro bono activities.  Here, they comment on the recent decision by the California Supreme Court to uphold Prop 8.

The California Supreme Court’s decision upholding Proposition 8 will be analyzed as a referendum on gay marriage. That would be a mistake. There are much higher stakes in the case. At bottom, it posed the question, What is a Constitution for? The Justices did not address that issue explicitly, but their action spoke volumes.

Prop 8’s ratification by the voters in the 2008 election overrode the Court’s earlier decision invalidating the state’s marriage exclusion of lesbian and gay couples. Lesbian and gay couples challenged Prop 8 as an “unconstitutional constitutional amendment.” Their argument, rejected by the Court, was that Prop 8’s fundamental change in minority rights should have gone through the more deliberative process for constitutional “revisions.” California Attorney General Jerry Brown made a similar argument, that a Constitution cannot be amended to retract “inalienable” rights.

At war in the Prop 8 case were two competing visions of what a Constitution is for. Representing the supporters of Prop 8, former Judge Kenneth Starr argued that a Constitution (or at least the California one) is an expression of the values held by the citizenry. To use Aristotle’s language, the Constitution is the “soul of the city.” Modernizing Aristotle, California provides its citizens with formal opportunities to express their constitutional commitments, through popular initiatives. Once the voters had spoken, the Court itself would have been engaging in unconstitutional usurpation if it had insisted on same-sex marriage.

Attorney General Brown and Shannon Minter (representing the challengers) argued that a Constitution demands more from the democratic process. Inspired by John Locke, their constitutional assumption is that the constitution is a social contract that guarantees basic rights to everyone. The Declaration of Independence called them “inalienable rights,” which means that even the Constitution cannot take them away without risking dissolution of the social contract. Because the Court itself had in 2008 held that marriage was a fundamental, inalienable right for lesbian and gay couples, Brown and Minter maintained that Proposition 8 was a constitutional betrayal.

A superficial reading of the Court’s opinion suggests that Starr prevailed. The Court upheld Prop 8, consistent with Starr’s democratic updating of Aristotle. But the Court rejected Starr’s argument that Prop 8 nullified the estimated 18,000 same-sex marriages performed between June 15 and November 8, 2008. The effect of the Court’s interpretation is to recognize those marriages, consistent with Brown and Minter’s stance in the litigation.

What is one to make of this Solomonic resolution? It may have been politically motivated, splitting the baby so that neither side would feel disrespected, on an issue that evenly divides the citizenry. It may been motivated purely by rule of law considerations. The Court would have had to stretch its precedents to strike down Prop 8, but the well-established canon against retroactive application of new amendments provided a legally hard-to-question rationale for narrowly interpreting Prop 8.

In our view, the Court was operating, at least in part, under a third understanding of what a Constitution is for. Constitutions establish processes for deliberation about important policies and values we should commit ourselves to. A Deliberative Constitution keeps the channels of political discussion open, insists that representative bodies be accountable to the people, and from time to time nudges the political process.

This is probably what the Court was up to. On the one hand, the Justices were persuaded that citizens were not settled in the gay marriage debate. Even as it allowed Prop 8, the Court reminded voters that a future initiative could overturn its rule. The Court was channeling both supporters and opponents of gay marriage back to the persuasive process; judges would not decide the issue for the people.

On the other hand, the Justices gave a nudge to that deliberation by validating the existing gay marriages. This provided an opportunity for gay marriage supporters to falsify stereotypes of gay people as anti-family. (The biggest anti-gay trope, and one exploited during the Prop 8 campaign, is that rights for gay people will corrupt children.) These lesbian and gay married families might also put to the test traditionalist arguments that gay marriage is bad for the community.

Gay marriage will still come to California, through a future initiative rather than a judicial decision. As we argued in our recent book, the new wave of marriage recognition has been coming in state legislatures (Vermont and Maine, with others to come).

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