Balkinization

In his new book, Eric Lichtblau accuses Rep. Jane Harman of having supported the NSA wiretapping program until it was revealed, and then hypocritically opposing it thereafter. In defense, Harman gives this story, which sounds plausible:

1. She and seven other members of Congress were told the basic outlines of the program.

2. They were instructed that they could not tell anyone else -- including their staffs and other members of Congress.

3. They were assured by the Administration that the program "complied with the law and that the senior-most officials in the Justice Department conducted a full legal review every 45-60 days."

4. "The Gang of Eight was not told – nor did it occur to me – that the Administration was violating FISA, despite Congress’ clear legislative intent when FISA was passed that it was the 'exclusive means' for monitoring the communications of Americans connected to foreign intelligence."

5. When the New York Times broke the story, Harman "was finally free to consult constitutional experts on the legal issues it raised. My call to a former CIA general counsel that Saturday provided the first inkling that the program was in not compliance with FISA but was ...   more »

Balkinization

[Type the first couple of paragraphs of your post here.]

After some time of living in China, I have still not made it to Tibet, but I have a clear picture of the place in my mind. Maybe it was the 'Save Tibet' concert I went to college, but the image (one that I think I share with many Americans) intertwine mountains landscapes with elaborate monasteries and serene, saffron-robed monks.

In China's eyes, those monks and monasteries are much more subversive. Freedom of religion is guaranteed in China's current constitution, but the country's government has long sought to manage religious worship in the country, seeing it more often as a potential threat than as a right to be protected.

Their suspicion comes with a good deal of historical precedent--there have been a number of significant religious uprisings in China's past. A Taoist insurrection, for example, led by a group known as the "Yellow Turbans" contributed to the fall of the Han Dynasty. The Taiping Rebellion, led by a man who claimed to be the son of God in a unique interpretation of Christian tradition, took place just over a century ago, temporarily taking control of a swath of Southern ...   more »

Balkinization

Because of Jack's recent posts on living constitutionalism this might be viewed as a response, but I don’t mean it that way. His posts have been a wonderful and much-needed contribution to our understanding of living constitutionalism. I am recommending them to my students.

I have been thinking about how to define a “strong”, “robust” or “hard core” version of living constitutionalism in order to distinguish it in a clear way from opposing views. This is difficult if living constitutionalism is defined in a watered-down way that makes it too easy for most (not all!) to nod heads and agree that the judiciary has adapted the often vague text of the Constitution to changing historical circumstances.

Hard core living constitutionalism means the Constitution and constitutional change should be described, explained, interpreted, and justified in a fully historicized way. Properly understood, living constitutionalism is a full context sport. Let’s take interpretation, since in the DC gun case oral argument we had an outstanding example of undead constitutionalism, the kind that doesn’t live but talks. When interpreting the text or a principle, concept or institution (such as federalism, separation of powers, sovereignty) we first ask whether the context in which that ...   more »

DownWithTyranny!

Today's NY Daily News revealed that some of the 66 lobbyists driving the Double Talk Express have made close to a million dollars lobbying for a notorious predatory lender, Ameriquest, which lured people into unsustainable mortgages. McCain doesn't blame Ameriquest or his lobbyist pals-- one his chief liaison to Congress (John Green) and the other is his national finance co-chairman (Wayne Berman). Instead he blames the victims, calling them irresponsible and trying to paint them as somehow morally deficient and undeserving of society's help as they lose their homes. Of course, McCain himself has voted for every single piece of legislation that has wrecked a regulatory system that could have and should have prevented the business practices that led to this-- and those votes are paying off big time as scores of lobbyists he has helped flock to his campaign.

When Sen. John McCain addressed the nation's burgeoning mortgage mess last week, he insisted it was time for a little "straight talk."

"I will not play election-year politics with the housing crisis," the GOP presidential hopeful insisted while unveiling his plan, which many have since described as friendlier to the mortgage ...   more »

More problems for Obama

March 30, 2008
Four Stumps in the Water for Obama
By Charles Lipson

As the high-water mark for Barack Obama recedes, his campaign must now confront several dangerous stumps that were once hidden below the surface. The problems began with Obama's long attachment to Rev. Wright, Trinity United Church, and Black Liberation Theology, but they won't end there.

So, what issues are now lurking for Obama?

The first is the volatile mix of race and religion, begun with the Rev. Wright controversy. Videos have now surfaced of virulent race-baiting by yet another Chicago preacher with ties to Obama, the Rev. James Meeks. Obama was not a member of Meeks's church and their connection may be only a tactical alliance between prominent local figures. That's the question: how close are those ties?

Meeks is no ordinary pastor. He is an important political and religious figure in African-American Chicago. He not only leads a mammoth congregation, he is an Illinois state senator and a key player in Jesse Jackson's powerful local political organization, which is squarely behind Obama's run for the Presidency.

Meeks's sermons have called white mayors "slave masters" and denigrated moderate black politicians with the "n" ...   more »

Balkinization

Eric Posner remains insistent. He wants to know what I would tell judges about how to decide cases consistent with my views of the living constitution. As described earlier, I think that living constitutionalism is a theory about the legitimacy of the constitutional system as a whole rather than a theory that secures legitimacy by instructing judges to decide cases this way rather than that way. But Eric is certainly right that this emphasis does not exclude the possibility of giving judges general forms of advice as participants in the legal system. It's just that I don't think this sort of advice does much good for judges who are already well socialized into the mainstream of legal culture, and these are about the only sort of people who tend to get positions as judges in the first place. But Eric will not be denied: he wants an answer, so I guess I have to give him something.

Nevertheless, I should warn him that my advice for judges is, I fear, rather boring and humdrum; worse yet, I doubt it will help any judge decide any difficult case, for it will prove indeterminate in a wide variety ...   more »