Month: October 2005

I just got back from a two week trip to Germany.  I had a wonderful time, and came back in love with Munich and Berlin.  My best friend just moved to Berlin.  I went to Germany for the baptism of his son, my godson Otto.

Last week I visited a place where 200,000 Jews, gays and others were either killed, moved someplace else to be killed or made slaves by their government.  A few days before that I visited an exhibit on law, justice and torture during the Dark Ages.   I can’t help but think of how these two places connect to the upcoming debates about Harriet Miers.  

originally posted at my blog: Politcal Porn

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     The nomination of Harriet Miers to the Supreme Court has again brought the issue of how judges should interpret our Constitution to the fore. It is an issue that scholars and jurists have wrestled with since our Constitution was written, and for good reason.  As a nation that prides itself on democracy, the idea that a handful of unelected judges can lay down the ultimate law of the land is a potentially scary proposition.  Surely there must be some way to assure that they aren’t simply acting on their own personal whims and prejudices.

    President Bush has assured the nation that Ms. Miers will handle this problem by sticking to a “strict construction” of the Constitution.  She will not “legislate” from the bench.  Now this may sound perfectly clear to many Americans, especially those who have been frustrated by the direction the Court has taken in recent times, but there’s just one problem: The idea of “strict construction” is a myth.

        The complex truth about the U.S. Constitution is that many of its most important concepts are written in ambiguous terms.  We are all guaranteed the freedom from “unreasonable” searches.  “Equal Protection” and “Due Process” are among our most cherished rights.  Yet while we may all agree that these protections are laudable, we often have considerable difficulty deciding exactly what these terms should mean.  The Constitution surely means what it says, but very often it falls short of saying what it means.    How are we to know what “process” is “due?”  When will we be able to tell that “protection” is “equal?”  What kind of searches are “reasonable” and what kind are not?  No, the idea of “strict construction” doesn’t get you very far when it comes to figuring out what these words, among the most important in our law, are to mean.

    Constitutional scholars will tell you that there are numerous theories about how judges should go about filling in these blanks.  Justice Scalia calls himself an “originalist.”  He looks for what the founding fathers would have meant by the term when they adopted it, and that’s the meaning he tries to give it.  Yet this approach is also beset with at least two major problems.   First, figuring out what a group of men meant 200 years ago is not always easy.  Where records exist at all, they are often far from clear and frequently contradictory.  The Founders were a spirited bunch and they often disagreed about the meaning of what they were writing.  Second, deferring to the intent of a handful of long-dead men from a different century doesn’t seem a great deal more “democratic” than deferring to a group of judges on the bench today.  Is legislating from the grave really better than legislating from the bench?

    “Non-Originalists” take a whole different approach.  Scholars and judges who subscribe to this school take many forms, but generally tend to see the ambiguity of clauses like “due process” and “equal protection” as a good thing.  To their way of thinking, the vagueness of these terms is part of the genius of our Constitution because it invites the Constitution to evolve over time, incorporating changing notions about our most basic principles. Current perceptions of equality would never tolerate making African Americans sit at the back of a bus.  Fairness in this era means we give people a lawyer before we attempt to take away their freedom.  “Non-Originalists” believe it is right and good to interpret the Constitution’s ambiguities according to modern realities, even if those realities are in themselves sometimes ambiguous or at odds with the way the Founders might have done things.

    This is but a glance at a subject that has consumed some of our greatest legal minds since the principle of judicial review was first established in Marbury v. Madison in 1803.  It’s important and it is not simple.  Neither Harriet Miers nor anyone else who might serve on the Court will be able to “strictly construe” the U.S. Constitution.  To suggest that this is possible is to perpetuate a myth upon the American public.   Harriet Miers, like all Justices, will need to find the meaning of the Constitution’s ambiguous but critical guarantees elsewhere.  The “elsewhere” she finds will not derive from any simplistic absolute about how the Constitution should be interpreted.  It will derive from who she is as a person and whether or how she might evolve as a person over time. That’s the nature of our Constitutional beast, and it is exactly as simple or complex as the person who is wearing the robe.  

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Ah, the good ol’ days of “pet issues” and ideological purity… sweet sweet nothings in my ears…

Let’s see… Kostradamos* has spoken and we must all abandon our ships of principles and just follow the omnipotent ones down the path to glory and salvation that brings us a Dem majority for as far as a bi-focaled 80 year old who’s had 5 too many can see…

Now that I’ve been released of my burdens it got me thinking about “pet” or “single” issues or “ideological purity” and history.

What are some of the favorite pet issues of the past?

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I remember in the early 70’s, even during the Arab oil embargo, GM strutted around the automotive world like a colossus commanding nearly 50% of the automotive market and looked down on all the upstarts from Japan like Nissan(Datsun), Toyota and others.Its business model was working very well in the absence of true competition.That model said make as many lookalike cars as possible.To go from one model to another, simply change hood ornaments, grilles, head and tail lights.Forget technology, research and other time consuming things.Cash is the only thing that matters and that requires the dealers to get the cars out the door.

The results from the first two weeks of October are now in. GM has reported a whopping $1.6 billion dollar loss which comes on the heels of another monster loss last quarter. GM may have cannibalized its own sales for this year by offering deep discounts on the leftovers from last year’s models.The October sales are off by a whopping 57% over last year’s. The prognosis doesn’t look good either because GM has bet the house on its gas guzzling SUV’s and big trucks and has been caught with its pants down as gas price has raced past the $3 a gallon mark. GM’s choices are limited.Because of its legacy costs( retirement and health) it is simply unable to make any money on any cars other than its gas guzzlers.First of all, nobody wants their cars.Second, they have acquired an image of low quality and technology, partly as a result of the disdain they have shown for such things in the past and aggravated that problem by their arrogance and poor service over the years. And true to their tradition, they have belittled the hybrid car technolgy that is now all the rage and in which the Japanese have established an insurmountable lead.

If current trends continue, GM may well be headed for the scrap heap following its big parts division, Delphi.And that would be a shame for all Americans.

Now for the lessons for a hubris soaked ignoramus like Bush on what GM teaches us.At the end of WWII, this country was revered as the savior of all peoples from Nazi tyranny and Japanese Imperialism.Over the next fifty odd years, that image of a humanitarian giant has been slowly transformed into an ogre that grinds down poor peoples all over the world, supports tyrants and launches wars at the slightest pretext in pursuit of real or imagined threats.The War on Vietnam, launched with a manufactured incident has pretty well demolished the myth of America the benign giant.Now comes Iraq and the myriad violations of international norms that the U.S. was instrumental in developing and enforcing.This pretty well nails the door on our image.

It is apt that an ignoramus and coward like Bush is presiding over the liquidation of American hegemony.He, like GM, has no clue why other people do whatever it is they do.He has only to convince himself that he is better than the people who are at the receiving end of his imperial swagger.His contempt seems to know no boundaries.It is likely to be directed at hapless Iraqis just as much as at the people of New Orleans.

As his Iraqi venture breaks apart in disarray, he keeps clinging to his belief that he is still the colossus and a change of scenery like he is so eager to put himself in would change his fortunes. Like the hood ornaments at GM, the public is no longer buying his wares.

In the meantime, countries that Bush used to deride are stealing a march over us by devoting their meager resources for the betterment of their people’s lives rather than be swallowed by pride and wasteful expenditures on futile wars.In this way, GM’s demise, brought on by its hubris may well be a warning to our Caesar.But then this Caesar is incapable of understanding anything that is not written on his teleprompter.

The end of George’s excellent adventure need not be mourned.It may well mean  a chance for the rebirth of this country and its true values.

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Crossposted on Big Orange, My Left Wing, and Street Prophets.

Here in Sarasota, we are fortunate to have Sarasota News and Books(SN&B), which is owned by Caren and Dick Lobo, a couple that has been very sympathetic to Democratic and progressive causes.  In addition to the bookstore itself being a great place to find publications and have a cup of  coffee, SN&B brings in a number of authors that are of great interest to us.

So this is a good time to advertise for some west central Florida meetups!  More below the fold.

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