A New Constitutional Convention?

July 6, 2010

Over at Balkinization, Sandy Levinson points out that residents of Maryland will have the opportunity this fall to vote on a new constitutional convention for the state. Evidently a number of US States (Levinson mentions New York and implies there are others) have a similar clause allowing the public to vote on a new constitutional convention once per generation.

Levinson is in favor of a new constitution for Maryland, and I’m inclined to agree. The underlying WaPo article provides a much clearer justification than the blog post. In a nutshell, Maryland’s Constitution dates to the Reconstruction era, includes a vast number of amendments, some dealing with issues that can only be described as minutiae, and spans a word count nearly eight times that of the combined US Constitution + Bill of Rights. Levinson uses this particular issue as a springboard  for a discussion of his belief that states have proven they require an fairly robust federal government to remain viable. I think that perhaps he overreaches here — the problems with, say, California’s Constitution, or New York’s, are fairly unique. The former is crippled by the ballot initiative system, while the latter suffers from gridlock due to disproportionate representation of its less populous regions.

Though Maryland’s Constitution is not as broken as either of these examples, I believe an opportunity to update a vast, unwieldly document reflecting all of the state of the art political thinking of 1867 would prove fruitful. I’ll throw a plug in here for unicameralism while I’m at it, but I won’t hold my breath on that.


More on FISA

August 7, 2007

The FISA amendments, (disgustingly titled the “Protect America Act”), which I discussed briefly yesterday, are still the big controversy today. Most of the buzz is pretty negative.

A New York Times editorial slammed PAA as “yet another unnecessary and dangerous expansion of President Bush’s powers, this time to spy on Americans in violation of basic constitutional rights.” Reason’s Julian Sanchez wonders if the country isn’t, “[l]ike Bill Murray’s hapless weatherman in Groundhog Day… locked in a perpetual September 12, 2001.” Obsidian Wings reminds Americans to “understand that FISA didn’t arise out of abstract policy debates. Congress enacted FISA in response to decades of well-documented, egregious abuses of secret, unchecked surveillance authority (generally in the name of fighting the enemy, who was then Communism).” TPM Muckraker also suggests that the Administration’s assurances of careful targeting should be taken with a grain of salt.

NRO Online’s Andrew McCarthy is apparently not a student of history. He argues that FISA allows judges to manage national security and that the law should be taken off the books altogether. He claims that the Constitution “empowers the chief executive to conduct warrantless surveillance of foreign threats.” Ignoring the facts altogether, he even states that “a judge on the FISA court outrageously ignored the FISA statute.” In fact, that isn’t true at all, which was, in theory, the reason an amendment was needed in the first place. Know-nothingism at its finest, ladies and gentlemen.

Mayer on Torture, Plus FISA Updates

August 6, 2007

The big news today is, of course, the Jane Mayer piece in the New Yorker describing the secret CIA detention facilities used post-9/11. Some truly frightening stuff in there. Example:

Finally, [Rep Alcee Hastings] received some classified briefings on the Mohammed interrogation. Hastings said that he “can’t go into details” about what he found out, but, speaking of Mohammed’s treatment, he said that even if it wasn’t torture, as the Administration claims, “it ain’t right, either. Something went wrong.”

There’s much worse in there than that, too. Here‘s Marty Lederman’s pretty thorough discussion of the article.

On a related note, the Democrats capitulated to the Administration on an update to FISA. Jack Balkin is disgusted. TPM’s Greg Sargent responds by pleading with the Democrats to remember why they were elected. Orin Kerr isn’t as critical. I tend to agree with Balkin on this. Even if the amendment isn’t so bad on its face, the potential for abuse is enormous, and I remain unconvinced that this was the best (or even a particularly good) solution to the Administration’s FISA problems.

Democrats, Republicans, doesn’t seem to matter most of the time. All worthless. Being informed is such a drag.

The Rundown

August 6, 2007
  • Harvard’s Kenneth Rogoff has an interesting piece on healthcare in the Guardian’s “Comment is Free” feature.
  • The Tenth Circuit held that Oklahoma may not treat out of state adoptions by gay couples differently than it treats such adoptions by straight couples.
  • Senior Senator of my home state Arlen Spector, has a pretty level-headed editorial about immigration in today’s WP. Unfortunately, he is probably not doing himself any favors in his next contest with this stance.
  • A challenge to the NSA wiretap program may have a chance, since the Department of the Treasury accidentally gave the defendant’s lawyers a copy of the NSA Call Log. Oops.
  • Stephen Bainbridge, guest-blogging for Andrew Sullivan, demonstrates that the similarities between the president and his father are greater than they would seem, and not in a particularly flattering sense.
  • Matthew Yglesias conveys some foreign policy wisdom Obama dropped re: China at YearlyKos.

The Rundown

July 31, 2007
  • Princeton’s Anne-Marie Slaughter urges a new approach to promoting democracy.
  • Eugene Robinson finally gets around to pointing out the 800-lb gorilla in the room in an article entitled “Will White America Elect Obama?”
  • Lilly Ledbetter, she of the recent controversial Supreme Court case Ledbetter v. Goodyear Rubber & Tire Co., calls for Congress to take a stronger stance against gender-based pay discrimination.
  • Matthew Yglesias, responding to Stanley Kurtz, basically agrees with the position I took yesterday regarding academic tenure.
  • Tom Ridge and Gen Barry McCaffrey argue for a renewed commitment to improving American soft power and diplomacy.

The Hollow Horn

July 30, 2007
  • One pretty solid positive for Fred Thompson: he has spoken out against the growing federalization of criminal law.
  • Is Barack Obama, as this Slate article suggests, “all sizzle and no steak”? Meanwhile, Matthew Yglesias weighs in on the Clinton-Obama foreign policy spat here, and I agree.
  • I am not the only one who thinks Edwards’ advocation of capital gains tax hikes may not be the best way to go about raising the funds our government needs to pay its debts. Tyler Cowen weighs in here.
  • Good news, travelers: David Kopel makes a fairly compelling case that sometimes flying really is better than driving.
  • Foreign Policy asks, “What’s wrong with this foreign policy?”

Good Samaritan Laws

July 28, 2007

Amitai Etzioni suggests over on TPM Cafe that the US should enact “duty to assist” or “Good Samaritan” laws that legally obligate individuals to assist others in distress. He argues that such laws would provide our society with moral grounding in uncertain times. He points to other states, including Israel, Japan, and several in Western Europe that have similar laws.

I am not persuaded.  First, Etzioni relies far too heavily on anecdote and emotional appeal. He opens with a shocking story of an innocent woman stabbed in a convenience store who died of her injuries while others ignored her with callous indifference. (I suppose we are to infer she might not have died if she had received care, although Etzioni conspicuously fails to state it). He later suggests that those who don’t support such laws would reconsider if their child died as a result of similar indifference. This is simply bad form, particularly the “think of the children” argument. It is intellectually lazy and does not contribute anything substantive to the debate.

Second, I am with the libertarians on this one. I am fairly certain a number Constitutional arguments could be made against such a law. Even if they couldn’t, such a law would by necessity be incredibly vague and subject to a huge range of interpretations, some of which I find unappealing. Etzioni is not persuaded, because we have a number of other vague laws on the books, but I don’t buy that argument either. Simply put, I believe a sense of civic duty can and should be instilled by educators and family, and not the government.