Epstein/Moglen Debate Webcast

is available at http://www.law.columbia.edu/news_events/2004/nov/digprop_debate. Enjoy.

Military Recruiters on Campus?

A federal appeals court in Philadelphia ruled today that universities may bar military recruiters from campus without losing their federal financial support

The ACLU and Supreme Court Nominations

Interested in helping the ACLU with a research project on Supreme Court nominations? Stop by Olati Johnson's office (JG519) at 12:15 today (Wednesday) or Friday.

A message from the Civil Rights Law Society

On Tuesday November 16, in JG 103 at lunchtime Chinh Quang Le will be dicussing how Gratz and Grutter, the University of Michigan affirmative action decisions, have impacted K-12 public school districts. He will discuss the ability of public schools to promote racial and ethnic integration after these decisions.

Chinh Quang Le is an Assistant Counsel at the NAACP Legal Defense & Educational Fund, Inc. (LDF) in New York, where he focuses primarily on issues of educational equity, school desegregation, and voluntary school integration. He has also assisted in matters relating to voting rights, school vouchers, and affirmative action in higher education.

Pizza will be served.

'values': we have it backward

Josh Marshall (Talking Points Memo) recently posted a thoughtful discussion of the 'values' divide,
http://www.talkingpointsmemo.com/archives/week_2004_11_07.php#003958.

He says many important things, of which one stood out for me. A common meme is that the Blue states are corrupt, godless, and amoral, while the Red states are righteous and good. But much actual data suggest the opposite: murder rates, divorce rates, etc., are significantly higher in many Red states than in the Blue states. His post discusses possible reasons for this difference and points out that it belies the high moral ground commonly assumed for the Red states.

Further, though, I think it helps to explain the 'values' divide. Why is it that half the country thinks the social revolutions of the last 30 years are a good thing and getting better, while the other half thinks the country is falling apart? Maybe in the second half, it actually is.

By pressing on the 'values' themselves, arguing for gay marriage, civil rights, and so on, we are ignoring the underlying problems that are worrying Red voters. If we address those problems directly, by thinking about crime or social policy or whatever it takes, perhaps we can remove the sting from the 'values' debate.

The "Values" Question

For those who couldn't make it, one of the dominant issues in our discussion with Olati Johnson yesterday was what "progressives/liberals" (appropriately non-partisan terminology) should do about the "God gap". Some of us argued that since there are many in this country whose personal religion could motivate them to support liberal social justice policies, we should seek a way to respect and embrace those religious motivations. Others voiced concerns about how to effect such an embrace without doing violence to the church/state separation. since this is a long discussion that has been ongoing and, I would argue, needs to continue, I'm posting an interesting piece from today's Wash Post outlining the work of some progressive clergy to address this issue.

http://www.washingtonpost.com/wp-dyn/articles/A38001-2004Nov9.html

The Columbia Law School Chapter of the American Constitution Society

Trivia Winners!

Hats off to Patty Li, Charles Kitchner and Michael Russo for winning lunch with Prof. Dorf! More trivia coming soon....

where to go from here

The election highlighted major, long-term changes in American society and politics. Many Americans feel threatened by the outside world. At the same time, the country is in the midst of a great religious awakening, comparable to those in the early 18^th and 19^th centuries, with church membership rising and ‘values’ questions dominating the election. Demographic change has amplified the electoral effects of these changes, shifting political power to southern and western states, which have been the most religious and most isolationist parts of the country. Economic change has weakened traditional Democratic power sources in labor-intensive industries.

However, none of these changes is necessarily fatal for the Democratic Party or for progressives. Times like this have been seen before, and at least one of them, in the early 19^th century, was one of the great flowerings of progressive politics in America. Although this is a dark period, it can be brighter, if we work at the hard task of building political strength in the changed country we live in. Success will come not from denying or decrying the changes, but from moving along a different axis.

In this post, I will propose a direction for the Democratic Party that I believe can recapture American politics from the left. At the outset, let me reemphasize that this kind of exercise is necessary. The recent election was narrow, but do not take that seriously. It was not as narrow as we expected, and it took place in the context of a disastrous war and a stumbling economy. If the occupation in Iraq had not been blatantly mismanaged, President Bush could well have won by a landslide.

This is not to say that the country is intrinsically conservative. The changes mentioned above are neither conservative nor liberal in themselves. With the right approach, the Democratic Party can take advantage of them just as the Republican Party did. They built a coalition from disparate groups that together accounted for more than half of the country. Many of those groups can just as naturally be Democratic voters, given the right policies. Those policies will need intellectual cohesion, to invite the trust of skeptical voters. They must relate to a central idea that is carefully chosen to appeal both to progressives and to the mass of American voters.

The idea I propose: The federal government is too far from the people to know what’s right. I know this sounds more Republican than Democratic. But as I will argue, that taint is an accident of history, and it is a temporary phenomenon. In the long term, and especially now, a small federal government is strongly consistent with core Democratic values.

What are these values, and what have they been historically? The Democratic Party has always been the party of individuals and the working class, opposed to corporations and the business class. Historically it has favored protecting civil rights, like the right to vote; protecting economic rights, like the right to work and be paid; and protecting human rights, like the right to marry your partner. Note that I do not mention opposition to capitalism. The party has approved or disapproved it to the extent that it can support the party’s real values.

These values are under threat from governments. Particularly, they have been threatened by the federal government. Consequently, a distrust of the federal government has been at the center of Democratic politics since the Constitution was ratified. It was this distrust that led to the insistence on a Bill of Rights, in the teeth of Federalist opposition. This distrust led Thomas Jefferson to repeal the Alien and Sedition Acts, that had been signed by the first Federalist president; and to cut federal tax rates. Later, Andrew Jackson dismantled the first Bank of the United States out of a conviction that powerful bankers were using it to exploit Western farmers. A desire to constrain the power of the federal government was the oldest plank in the Democratic platform.

In the last eighty years, that plank was abandoned. Two developments necessitated a stronger federal government. First, the modern industrial economy required government regulation, and federal regulatory agencies grew to fill that role. Second, the civil rights revolution was resisted by the southern states, and the power of the federal government was needed to overcome their resistance. In these two developments, the Democratic Party successfully used the federal government to achieve its ends of protecting economic and civil rights.

However, these revolutions are now in the past. The Democratic Party should revert to its traditional stance against the federal government, as the government is reverting to its historical relationship with business interests. Politics today provides myriad examples to show this change, of which I will mention only a few.

The war in Iraq has been run in a way that is very profitable to Halliburton, Bechtel, the Carlyle Group, and other companies. This is not just because Halliburton has ties to Dick Cheney, but also because they all, as companies, have ties to the government as a whole.

The Digital Millennium Copyright Act has strengthened copyright laws, to protect large companies from even the threat of improvements in copying technology. The term of copyright was extended, partly to keep Mickey Mouse under protection.

The government has resisted the reimportation of drugs from Canada. There is no doubt that these drugs are safe, but the reimportation will cut the profits of pharmaceutical companies.

At the behest of automobile manufacturers, the government has refused to increase automobile fuel economy standards. To achieve a de facto increase, the California government has tried to regulate carbon dioxide emissions.

In all these cases, the Democratic view stands opposed to federal power. Such opposition also accords with Democratic values with respect to non-economic matters.

<> The Patriot Act, hugely unpopular with Democratic voters, is an expansion of federal power.

In drugs policy, the federal government is resisting the effort of states to relax their drug restrictions. Note that in Montana, more people voted to legalize marijuana than to re-elect George Bush.

<> Defense of Marriage Amendment, need I say more?
Note that strengthening the states at the expense of the federal government does not mean destroying welfare or health care or education. These programs are largely state-run. Indeed, they are suffering today because the federal government has appropriated extra power over them without providing in any money. The idea I have proposed would improve these functions. <>
<><> Thus, the simple, single idea of strengthening the states the expense of the federal government should be attractive to Democrats, and it is consistent with our historical core values. In addition, it appeals to a large, important constituency that currently votes Republican. In my next post, I’ll talk about that constituency, and I’ll discuss how their politics can be separated from their politics.

Gitmo news

Earlier this afternoon, a federal judge halted the military tribunals set up to determine the "unlawful combatant" status of internees at Guantanamo Bay (the decision isn't up on Westlaw yet, but you can link to it at http://jurist.law.pitt.edu/paperchase/2004/11/breaking-news-judge-stops-guantanamo.php).

Judge James Robertson of the US District Court for the District of Columbia ordered that "unless and until a competent tribunal determines that petitioner is not entitled to the protections afforded prisoners-of-war under Article 4 of the Geneva Convention...he may not be tried by Military Commission for the offenses with which he is charged [murder, terrorism, and more]." Civ. Act. No. 04-1519 (JR). Further, he may not be tried by Military Commission unless and until the tribunals accord with the Uniform Code of Military Justice, including those provisions relating to confrontation of witnesses and evidence.

A couple of Classic Quotes from the learned Judge:

• "...the President has already determined that detained al Qaeda members are not prisoners-of-war under the Geneva Conventions...the President is not a 'tribunal,' however. The government must convene a competent tribunal..." at 18.
• "...the government has asserted a position starkly different from the positions and behavior of the United States in previous conflicts, one that can only weaken the United States' own ability to demand application of the Geneva Conventions to Americans captured during armed conflicts abroad." at 21.
• Judge Robertson's discussion of the "fatal" failure of the commissions to confront defendants with the evidence adduced against them begins at 31 (cf. "it is obvious beyond the need for citation that such a dramatic deviation from the confrontation clause could not be countenanced in any American court" at 32).

ACS Trivia

First three non-board members to respond with the right answers win lunch with Prof. Dorf. Email replies to Liz at eaa2101@columbia.edu.

1. This ACS National Guest Blogger argues that President Bush's victory last Tuesday obscures a larger threat to the integrity of our democracy.

2. True or False? Professor Dorf supported the Kerry-Edwards Medical Malpractice Reform Proposal.

3. Which law school did ACS Executive Director Lisa Brown attend?

An atlas of the difficult world

I know you are reading this poem listening for something, torn
between bitterness and hope
turning back once again to the task you cannot refuse.
--from "An Atlas of the Difficult World," Adrienne Rich

If you're like me, you've been attempting--in vain--to "unplug" from the national media since Tuesday. To the winner goes the spin, and I'd rather ponder the significance of the electoral results on my own for now.

But I do strongly believe that we, as dissenting patriots, need to discern a way forward for ourselves. Constitutional democracy enables pluralistic societies by protecting minority rights of all kinds. The American experiment has succeeded for more than 225 years because we have continually advanced in our understanding of what pluralism means, why it is just and right, and why it makes societies stronger. We began as a nation governed by white, property-owning (often slave-holding) men. Consider how far we have come.

And then make the pro-Constitution arguments in public, private, everywhere, as often and as passionately as you can. We have a responsibility to remind ourselves and others of what the Constitution is and what it protects. The other day, a fellow student asked me why I so vehemently argued that Bush should not govern solely according to his "mandate." If a majority of Americans believe that he ought to govern according to his religious beliefs, and if they voted that way, why shouldn't he do it?

The easy answer: that pesky thing called the Bill of Rights,and that often-difficult but immeasurably precious American diversity. But the question indicates perhaps the saddest result of the current ascendancy: a certain kind of Constitutional amnesia.

In my next post, I'll briefly discuss two minority-rights developments that I think we should watch closely. Until then, I'll be thinking about dissent: the atlas of the difficult world between bitterness and hope.

Where do Liberals go from here?

Clearly, the topic du jour is what now. What I'm going to say may piss off some of you, but I think its ultimately right. We need to sacrifice the present for the future.

How? A three-pronged strategy.

1) Give 'em rope to hang themselves

2) Starve the beast

3) Cut the fat.

Give 'em rope - Look, this was not a mandate election. Fine. It was, however, an equilibrium election. We can repeat this election repeatedly, and absent a shift, we will lose by 2 points every time. Maybe we will take Ohio sometime, maybe not.

So how do we win? We do so with a complete and utter rejection of their ideas. The only way for that to happen is to let them be enacted. Give the people no excuses. This country had a long history of isolationism, debated but never turned...until Pearl Harbor and the personal effect of the Holocaust. We had laissez-faire rejection of the administrative state and Lochner politics until Hoover. If we fight them tooth and nail, make them compromise, let them get some of their agenda off, and then failure can be blamed on compromise. Give it up...we are not going to get much concession anyway: and let them be free. FDR would NEVER have been elected; the Democrats never would have risen, had the GOP of the 1920s proven utterly incapable of leadership. Reagan would NEVER have been elected without Carter's failures. Give 'em rope. It may mean a draft, regressive taxes, the end of social security. Yet better a quick death and a mandate to rebuild from the ashes than a slow debilitation that is never solved.

2) Starve the beast: When I speak of failure, that failure must be political. How do we do that? By shutting down their constituency and taking away issues. I support a woman's right to choose, but a quick death to Roe v. Wade might take the issue off the table for social conservatives. Professor Dorf elaborates better below. They want to cut spending? Fine. Eviscerate the blue state subsidies of red states. Let's see how much people in Alabama like tax reform when New Yorkers are no longer paying for their farms and schools (and, no, I'm not saying screw them, but I do think the Red State worldview must be made aware of te costs of their decisions, and they're going to have to sacrifice too). By using their own rhetoric against them, we can starve the beast and bring in the mandate for replacement, where we as Democrats can determine the alternative.

3) Trim the fat. The only way to determine the alternative is to act like a real minority party and trim off our coalition fats. We don't need Zell Millers in our party. We need a party not broad but united. We need a party that will proudly put forth a real progressive when our turn to lead arrives. We should not cede the South, but we should stop competing there with Republicans-light. True progressives, who use faith as a reason for social justice, can win in the South, particularly as the South realizes that the dominance of their people will not be a panacea for the cultural and economic woes they face.

In 1960, the GOP was a moderate, economic libertarian and socially liberal party. They lost in 1960 in a razor thin election, suffered a setback in 1962, and then were crushed in 1964. They abandoned the Rockefeller Republicans and literally abandoned any control of Congress. Those that remained were intolerant, hateful, and regressive. Yet by cutting the fat, they got the platform, and with the ebbs and flows of politics their message was adhered to. They used their pulpit and the policies of Reagan to build first an ideological and then a governing majority. Its time for Liberals to take a stand, reclaim the party, and build a message so that when the next change of power occurs, Texans can revile Speaker Pelosi and Majority Leader Boxer the way we hate Frist and DeLay. Let them point to moderates such as John Edwards not with revile but with the desperate hope that the Democrats will return to that center, the way we pray with little hope for the return of the Republican party to which Lincoln Chaffee and John McCain used to belong to.

Food for Thought

Just got back from South Dakota, where some churches were refusing to give communion to individuals who had expressed support for Stephanie Herseth and Tom Daschle. How do we use ACS to fix this screwy world we live in?