Another academic year is now officially over. I’ve submitted all my grades, and now — as usual — I’m overcome by an enormous sense of panic as I wonder how I can possibly have enough time this summer to complete my research and prepare for next year’s courses.
For the next few minutes, however, I will permit myself to celebrate.
Andrew Jackson, in a message to the Senate, 6 May 1830, three weeks prior to the passage of the Indian Removal Act.
It is certainly desirous . . . that some agreement should be concluded with the Indians by which an object so important as their removal beyond the territorial limits of the States may be effected. In settling the terms of such an agreement I am disposed to exercise the utmost liberality, and to concur in any which are consistent with the Constitution and not incompatible with the interests of the United States and their duties to the Indians.
. . .
The great desideratum is the removal of the Indians and the settlement of the perplexing question involved in their present location–a question in which several of the States of this Union have the deepest interest, and which, if left undecided much longer, may eventuate in serious injury to the Indians.
Like Josh Patashnik, I’m puzzled by Anna Quindlen’s claim that the judiciary is the most powerful branch of the federal government. Patashnik notes the relatively narrow scope of the recent decisions Quindlen cites, which is terms of their impact are obviously dwarfed by, say, the Iraq War or Bush’s series of budget-busting upper-class tax cuts, both areas in which the courts have virtually no influence. In addition, many of Qundlen’s examples are hardly example of the unilateral power of the courts. The decision to uphold Indiana’s voter ID law was, in my judgment, a bad one — but it also would have been beside the point had the legislature not passed the bad law in the first place. Similarly, Ledbetter was bad, but the Court has been able to establish a new status quo because 1)the President vetoed corrective legislation, 2)a Republican minority in the Senate the filibustered, and 3)the Equal Pay Act didn’t allow for punitive damages in the first place, making the statute of limitations provisions of Title VII relevant in the first place. The court certainly matters, but in most cases its shaping of the policy generated by the other branches is marginal. And even where the progressive impact of the court is arguably the most important — abortion rights — such rights have substantial support among both the public and among elected officials, and indeed Roe could not have survived even in its current watered-down form if this wasn’t the case.
An additional point is that — as I think I’ve said before — Quindlen’s claim that “[h]istory tells us that virtually all presidents get blindsided by their court choices” is also not really true. Almost all alleged “surprises” were either selected for reasons other than ideology (Warren, Brennan, O’Connor, Souter) or were third choices reflecting the constraints of the Senate (Blackmun, Kennedy.) And even the extent to which Blackmun crossed Nixon has been overstated; there’s very little reason to believe that Nixon cared about abortion when making Supreme Court appointments. On the stuff that Nixon actually cared about, even Blackmun was pretty reliable vote for his first decade. All four Nixon appointees joined the 5-4 decisions that effectively gutted Brown by permitting states to maintain schools that were both de facto segregated and unequal as long as this was done by through district boundaries and funding rather than direct pupil assignment, for example. And no Nixon appointee ruled that the death penalty was unconstitutional until is was again well-established. In general, voters are actually perfectly rational in assuming that a President they otherwise support will appoint judges with more congenial constitutional views and using presidential ideology as a proxy.
None of this is to say that the public wouldn’t benefit from knowing more about the courts and what they do, but you can say that about almost any aspect of government. Regulatory decisions are also an extremely important part of modern government and will tend to be very different depending on who occupies the White House, but they attract if anything less public attention.
“One was enough troops for the major combat. A lot of people said we didn’t have it, and obviously we did. There was a very difficult balance that had to be struck between surprise, which meant a smaller force, and enough troops or a lot of troops, which meant a much slower force and potential of many disastrous consequences. I think I said in my comments quoting Doug’s book, no one anticipated this insurgency, a lot of people were slow to recognize it once it started,” Mr. Wolfowitz said. “And I do think a real failure — I assign responsibility all over the place — was not having enough reliable Iraqi troops early enough and fast enough, because I think a sensible counterinsurgency strategy would not be to flood the country with 300,000 Americans, but rather to build up Iraqi forces among the population.”
Phil concentrates on the “no one anticipated the insurgency”, but the bookends of that claim struck me as even less defensible. First, we needed a small force so that we could surprise the Iraqis? Uh…. seriously? Paul, we assembled an army in a neighboring state, then told them pretty much exactly when we were going to invade. There wasn’t any “surprise”; they knew where and when we were going to attack. This was the least surprising attack in modern military memory. And no, a large force doesn’t have to move slowly; elements can move very quickly, while other elements perform necessary mopping up, support, and occupation duties.
Possibly even more egregious is the claim about Iraqi forces. What exactly is Wolfowitz talking about? Was he planning to borrow a hundred thousand followers of Ahmed Chalabi, trained in counter-insurgency and ready to fight the good fight, from Imaginationland? Is this a slap at Bremer for disbanding the Iraqi Army? I think this latter can correctly be called a blunder, but getting the Army back into the barracks wouldn’t have solved the problems of looting and general chaos that immediately followed the invasion, and in any case the Iraqi Army was not well known for its counter-insurgency capability. Or is he proposing that we could have done in a few months what we’ve failed to do thus far in five years, which is to create a large, capable, loyal Iraqi Army from scratch?
It’s five years down the road, and I still find that I can be surprised by how inept our best and brightest turned out to be.
The more things change, the more they stay the same.
The New York Times reported today on two new reports (one from the Sentencing Project and one from Human Rights Watch) that confirm what any study of prison demographics could tell you: the war on drugs is still being waged only on some people and on some drugs. In other words, it’s still a racist crock.
Drug related arrests are up and more than 4 of 5 drug arrests are for possession (as opposed to sale or manufacture). And Black men are 12 times as likely to be incarcerated for a drug crime than are white men. Also, 1/3 of drug arrestees were black, despite the fact that only 12.8% of the population is Black.
The statistics would be bad enough. But the absolute worst part of the Times article is that the author cites a Manhattan Institute staffer as an “expert” on incarceration issues. What does she blame drug war disparities on? The “fact” that Black and Latino men are more likely to be involved in the distribution of heroin and cocaine.
Ms. MacDonald [of the Manhattan Institute] said it made sense for the police to focus more on fighting visible drug dealing in the inner city, largely involving minorities, than on hidden use in suburban homes, more often by whites, because the urban street trade is more associated with violence and other crimes and impairs the quality of life.
“The disparities reflect policing decisions to use drug laws to try and reduce violence and to respond to the demand by law-abiding residents in poor neighborhoods to clean up the drug trade,” she said.
Riiiiiight. The policy makes Ooooooh so much sense. When racism and “personal responsibility” are your starting points.
Not surprisingly, the Human Rights Watch study’s author gets it right:
“The race question is so entangled in the way the drug war was conceived,” said Jamie Fellner, a senior counsel at Human Rights Watch and the author of the group’s report.
“If the drug issue is still seen as primarily a problem of the black inner city, then we’ll continue to see this enormously disparate impact,” she said.
Herbert Hoover, in a message addressed to the National Conference of Parents and Teachers, 5 May 1929:
The state is all of us. Some of us have no home, some have known no school, some are outside the church. The state alone embraces us all. It is the one family to which we all belong, either by birth or by adoption. It is the one loyalty we all acknowledge, the one shelter we all enjoy, and the one discipline we must all accept.
In light of the passing of Mildred Loving, it’s useful to return to standard set out by Antonin Scalia to apply the equal protection clause in cases that don’t involve installing a political ally in the White House:
I have no problem with a system of abstract tests such as rational basis, intermediate, and strict scrutiny (though I think we can do better than applying strict scrutiny and intermediate scrutiny whenever we feel like it). Such formulas are essential to evaluating whether the new restrictions that a changing society constantly imposes upon private conduct comport with that “equal protection” our society has always accorded in the past [sic]. But in my view the function of this Court is to preserve our society’s values regarding (among other things) equal protection, not to revise them.
Under this standard, I think Loving is clearly wrongly decided. Bans on interracial marriage are not unambiguously prohibited by the Constitution, and there was an unbroken tradition of such bans in 1967. With Brown, at least, the traditionalist (while on exceedingly shaky ground) might be able to claim that apartheid was a minority, sectional tradition rather than a truly national one. But bans on interracial marriage existed in many states North and South, and in Gallup surveys taken in the 50s were supported by huge national majorities. If traditionalism is the right way of interpreting ambiguous constitutional traditions, Loving is wrong.
The point here, of course, if not that there’s any chance that Scalia would vote to uphold such a ban today, but rather that the idea that traditions of discrimination are self-justifying is a singularly unappealing way of reading the Constitution. The idea that we can’t consider inviduous gender distinctions (for example) an equal protection problem because they weren’t considered problematic in 1865 is unpersuasive in the extreme.
Surrounded as I am now by wonderful children and grandchildren, not a day goes by that I don’t think of Richard [NB: Richard Loving died in car accident in 1975] and our love, our right to marry, and how much it meant to me to have that freedom to marry the person precious to me, even if others thought he was the “wrong kind of person” for me to marry. I believe all Americans, no matter their race, no matter their sex, no matter their sexual orientation, should have that same freedom to marry. Government has no business imposing some people’s religious beliefs over others. Especially if it denies people’s civil rights. I am still not a political person, but I am proud that Richard’s and my name is on a court case that can help reinforce the love, the commitment, the fairness, and the family that so many people, black or white, young or old, gay or straight seek in life. I support the freedom to marry for all. That’s what Loving, and loving, are all about.—Mildred Loving, June 12, 2007, on the 40th anniversary of the Loving v. Virignia decision.
The Supreme Court’s decision in Loving is available here.