Colby Cosh notes, in the midst of decrying Howie Kurtz’s lack of permalinks, that the people most upset that George W. Bush doesn’t read The New York Times are print journalists. Fancy that.

Steven Taylor’s Boxing Day edition of the PoliBlog Toast-O-Meter is now available. And, for those of you living in a hole, it shows Dr. Howard Dean with a commanding lead—but facing a serious uphill struggle in head-to-head polling against George W. Bush.

Also of note: Jeff Quinton has the latest South Carolina primary news, while Robert Prather doesn’t see Anyone But Dean (a.k.a. Dick Gephardt) looking much better than Dean himself.

Robert Prather of Insults Unpunished has reevaluated the MSA component of the Medicare reform/prescription drugs bill, and thinks it goes much further toward introducing more of a market-based approach to health care than he originally thought. However, James Joyner correctly points out that the bill’s other provisions greatly expand the role of the government in health care in ways that won’t be easily rolled back and which may lead to subsequent expansion.

Kyle Sing of The Chicago Report posts on Neal Boortz’s scheduled appearance at the 2004 Libertarian Party convention and the fissures in the party that Boortz’s appearance has brought to the forefront. I’m not sure I’d cast the conflict as one between the “anarchist” and “Objectivist” wings—I really don’t subscribe to either philosophy, personally, being more of a pragmatist—but it’s an interesting one nonetheless. And, for what it’s worth, Boortz is something of a cult hero to the Georgia Libertarians, who have put together quite an impressive local organization—the national party could use the backing of someone of his stature.

I love the smell of hypocrisy in the morning.

Update: Patrick Carver begs to differ with me and Rand Simberg, helpfully pointing out that the Florida state constitution does explicitly recognize a right to privacy. Now, if only Rush would recognize that all people (not just Floridians) have an inherent liberty interest in privacy absent a compelling governmental interest to the contrary—the Lawrence v. Texas standard in a nutshell—I’d be more inclined to be sympathetic.

Via Bill Hobbs comes the bizarre tale in The New York Times of Howard Dean’s rather odd claims surrounding his younger brother Charles, who went missing—and was presumed killed—in the Laotian jungle in 1974, and whose remains have now apparently been identified. Quoth the newspaper of record:

Asked by The Quad-City Times, which is based in Davenport, Iowa, to complete the sentence “My closest living relative in the armed services is,” Dr. Dean wrote in August, “My brother is a POW/MIA in Laos, but is almost certainly dead.”

Charles Dean, however, wasn’t a member of the armed forces at all—he was, in fact, by all accounts a civilian tourist and anti-war activist, something Dean the elder claims was common knowledge:

“The way I read the question was that they wanted to know if I knew anything about the armed services from a personal level,” he said. “I don’t think it was inaccurate or misleading if anybody knew what the history was, and I assumed that most people knew what the history was. Anybody who wanted to write about this could have looked through the 23-year history to see that I’ve always acknowledged my brother’s a civilian, was a civilian.“…

Dr. Dean called the editorial, which referred to his brother as a “renegade,” “one of the greatest cheap shots I’ve ever seen in journalism.”

“It’s offensive and insensitive not to understand what the impact of this is,” he said, “writing about this in such a tawdry way.”

Personally, the only thing I consider tawdry is the attempt by Dean to link his brother, who was apparently playing Hanoi Jane on the cheap and—amazingly enough—got mixed up with the wrong people in the process, with the real American POWs and MIAs who suffered at the hands of the Vietnamese and Laotian communists. Sorry, but to me little wayward Charlie’s vanity trip to Southeast Asia doesn’t exactly scream “empathy with American servicemen,” either.

I’m not sure what galls me more: that Dean thought he could get away with this, that he genuinely thinks that all there is to empathy with our armed forces is the experience of having a loved one disappear, or that Dean’s circle is so far removed from the military that he can’t even name so much as a sixth cousin with some genuine connection to America’s armed forces. What a truly loathsome creature.

The Quad-City Times editorial is here.

Update: Geitner Simmons of Regions of Mind—whose excellent blog I’d read far more often if he pinged weblogs.com when he made new posts—has thoughts on another concern regarding Howard Dean’s candidacy.

James Joyner excerpts at length from a Stuart Taylor National Journal piece on the Supreme Court’s latest entry into the fray of legislative redistricting by state legislatures and the courts, Vieth v. Jubelirer. Much of Taylor’s discussion echos the discussion in the amicus brief of Bernard Grofman and Gary Jacobson, two political scientists who know a thing or two about legislative redistricting.

Also of interest: Erick Erickson’s post on the oral argument in the case.

Both Matt Stinson and Robert Garcia Tagorda (via Matt Yglesias, who has substantive comment at TAPped and who in turn links Jon Chait’s Dean-bashing blog at TNR—got all that straight?) note the Franklin Foer cover story in The New Republic on Howard Dean’s secularism and how that will affect his campaign for both the Democratic nod and the White House.

Robert responds to Yglesias’ suggestion that the eventual Democratic nominee at least pretend to have devout religious faith by wondering whether or not Dean has the temperment to pull it off—and I generally agree with Robert that he probably doesn’t. Stinson (who I’d normally call “Matt,” but we’ve got too many Matts running around in this post), on the other hand, asks the interesting question:

The question left unasked in Foer’s piece is whether Dean might seek to balance against his secularism in the general election with an evangelical-friendly VP. Would a Methodist like Edwards suffice?

My guess would be no—it’d have to be someone who wears his religion on his sleeve for it to make a real impact with the public. An interesting finding of the 2000 American National Election Study is that Americans consistently misidentified the religion of both Bush and Gore: Gore was overwhelmingly believed to be a Methodist, while Bush was believed to be a Baptist. In fact, Gore—like Bill Clinton—was an avowed Southern Baptist, while Bush is a Methodist. (No, I’m not just raising this point to show the American public is stupid. Bear with me.)

Now, let’s play political psychologist and explain why people would have this apparently glaring misbelief. Most people see Baptists, and particularly Southern Baptists, as more evangelical than Methodists—because most, in fact, are; they don’t call the United Methodist Church the “Home of the Ten Suggestions” for nothing. But in the persons of Bush and Gore, the typical relationship was reversed: unlike Clinton, Gore never really wore his religion on his sleeve, while Bush often talked about his personal faith. Coupled with the heuristic that says “the Democrats are more secularist than the Republicans,” and the lack of widespread publicity about the specific branch of protestant teaching the candidates followed, the typical voter would be led to conclude that Bush was a member of more evangelical branch of protestantism (like the Southern Baptists), while Gore was part of a more traditionalist strain (like the Methodists).

Now, let’s look at the 2004 Democratic field. The only serious candidate with a clear religious bent is Joe Lieberman, whose Jewish faith is well-known (and was correctly identified by most voters in the 2000 ANES). The rest aren’t really clearly identifiable as men of faith… and religious voters are much more likely to favor candidates with strong faith (like Bush) over secularists like Dean or other, less devout candidates. Even if a candidate like Edwards who can make some claim of religious belief is on the ticket, most voters aren’t going to think of him as more religious than Bush. So it seems unlikely that religious considerations would be effective for Dean (or another Democrat) in assembling the ticket.

As Steven Taylor notes, a recent poll shows Howard Dean with a (statistically insignificant) lead in South Carolina, where voters will head to the polls on February 3rd. If Dean can hold the lead over a deeply divided field, it may be the knockout punch he needs to secure the nomination—and may go some way to rehabitating Dean’s image in the South.

Dan Hoover of The Greenville News had a lengthy piece this weekend on what the S.C. primary means to the leading contenders, including quotes from several intelligent political scientists, including legendary Southern politics experts Merle and Earl Black and fellow Ole Miss Ph.D. Scott Huffmon.

UPDATE: Of course, South Carolina blogger Jeff Quinton has more links on the SC primary than you can shake a stick at.

Val of Val e-diction thinks the latest unilateral withdrawal proposals by the Sharon government are part of an orchestrated, but clandestine, plan involving the British and U.S. governments as well to force the Palestinians to come to the negotiating table with realistic expectations. I don’t know if I necessarily believe that, but it’ll be interesting to see how this all shakes out.

Daniel Drezner has an analysis of the polling numbers on gay marriage that leads him to believe that an effort to amend the Constitution to ban gay marriage will fail. He may be right—if that is, indeed, what the actual amendment proposed does. Of course, there is no real movement on an amendment—and the necessity of an amendment, the proviso attached to the president’s support, has yet to be shown.

One thing to be seen is the Massachusetts legisature’s response to the court decision that legalized same-sex marriage—and whether the court will accept a civil unions provision as a substitute. If the state legislature implements Vermont-style civil unions, and the court accepts them, there’s no immediate federal issue—the only states that have to accept civil unions under “full faith and credit” are ones who already have them. Everyone breathes a sigh of relief until the next state court goes “off the reservation,” and no amendment is necessary.

But what if the Massachusetts legislature does implement full-fledged same-sex marriage? Then it becomes a “full faith and credit” question, which asks the Supreme Court whether Congress can decide what things are subject to full faith and credit—in other words, whether the existing federal Defense of Marriage Act is constitutional. If the Supremes say yes, again no amendment is immediately necessary—however, some states may still face the question of whether their state constitutions require them to recognize same-sex marriages, the same question faced by the Massachusetts court, which starts another iteration.

Now suppose instead the Supremes decide DOMA is unconstitutional. Then necessity becomes the mother of invention—and the question becomes, what form will the amendment take? An outright ban on same-sex marriage is one possibility; another is a narrower amendment that allows the states to decide what marriages performed outside their own states they will recognize.

The other question, somewhat lost in the debate, is how Congress will demand ratification. Dan’s analysis assumes that Congress will require ratification by state legislatures, as is normally the case; however, the procedure used for ratification of the 21st Amendment (the repeal of prohibition)—ratification by special state conventions in 38 states—is also available, which turns ratification into more of a referendum process. In such a scenario, same-sex marriage opponents have an advantage in elections to these state conventions: not only are the opponents more numerous in most states; they also are more passionate about the issue. And unlike other failed amendments—think of the Balanced Budget Amendment, the flag desecration amendment, or even the Equal Rights Amendment—more people genuinely care about the issue. That could be enough to tip one or two states that Dan enumerates into the “yes” column, particularly for a narrowly-tailored amendment that simply says “my state gets to decide whether or not to recognize a same-sex marriage performed elsewhere.”

That being said, Dan is essentially correct to point out that amending the Constitution is a long, drawn-out process with a lot of veto points along the way. But a relatively large, passionate group can succeed in doing so, and I think the chances of a narrow amendment succeeding are fairly strong.

As anyone who’s viewed Signifying Nothing’s sidebar can probably guess, I don’t think much of the homeland security threat level thingy—mainly because it’s a bogus five-point scale, since we all know it’ll never fall below yellow nor go higher than orange (making it a dichotomous variable for all practical purposes, a weakness that James Joyner expounds upon here), but also because it’s essentially meaningless to the public at large. That being said, Dean Esmay does have a bit of a point worth considering.

Steven Taylor’s latest PoliColumn in the Birmingham News attempts to explain the undercurrent of anger in the Democratic Party. In particular, he notes one factor that many have overlooked: the impotence associated with losing control after decades of dominance, particularly in Congress.

The fourth reason for Democrats’ anger, and perhaps the most abstract—but in many ways the most significant—is their deep abiding frustration that the Democratic Party as a whole is experiencing in its role as the minority. Since the 1994 midterm election, the Democratic Party has not controlled the House of Representatives, and only briefly controlled the Senate (and then only because of the defection from the Republican Party of Jim Jeffords of Vermont).

For a party that convincingly, and often by dramatic margins, controlled the House for four decades, and indeed for 29 of 36 Congresses since the New Deal era (1933) and the Senate for all but eight years of that same period, this lack of control is a devastating fact to which I would argue they have not yet adjusted.

To reiterate: Prior to 1994, the last time the Democrats lost control of the whole Congress was in 1953, and that loss of power lasted a mere two years. Given that many members of Congress were in Congress during the era of Democratic domination, it is hard to forget those halcyon days of power.

Of course, anger has been a driving force in American politics since, well, the Mayflower landed, occasional “eras of good feeling” notwithstanding. To the extent there’s more anger in the political ether these days, it probably reflects the relative parity of the parties more than any clear change in tone.

One other point Steven raises in passing is that Democrats “considered [Bush] something of a dim bulb.” This point should not be minimized. Few things are more frustrating than being outsmarted by someone you regard as mentally inferior—and when it’s been happening for three years on a near-daily basis, it’s got to chafe mightily.* Yet there is no sign that Democrats have given up on the “dim bulb” theory—which must make every defeat seem even more frustrating.

Nice to see Congress has nothing better to do these days (via Gary Farber).

Will Baude is less impressed than usual with my thoughts on the relative value of legalistic and attitudinal approaches to the law and, by extension, on the whole Guantanamo Bay thing.

First, to clarify, I was making an empirical rather than a normative argument. The nature of the Supreme Court is mixed—when there is a clear, controlling precedent that was ignored by a lower court, the behavior of the Court is usually to reverse and remand the decision without scheduling an oral argument (sometimes known as the “Ninth Circuit Smackdown” manoeuver), and when the lower-court decision was legally correct and consistent with precedent, the Court doesn’t grant certiorari. However, when the Court does grant cert—admittedly something it only does in a small minority of cases—the decisions are much more likely to be based on attitudinal considerations, or what normal people call “politics.” That’s the nature of the beast: work hard enough, and you can find a precedent for anything, or find a reason why Case X is distinct from the precedent that decided Case Y. If we’re going to analyze the Court’s decision-making, it should be viewed through this prism. This is one area—and perhaps the only area—where I think a number of political scientists understand more about the judiciary than lawyers do.

One normative issue, then, is how judges on lower courts should behave. The U.S. judiciary is designed as a principal-agent system: there’s a Supreme Court, and inferior courts. The Supremes decide what The Law is, the inferior courts implement The Law, and the Supremes make sure The Law is implemented correctly. Due to workload, however, the Supremes don’t function as a pure principal—some decisions escape their notice, and sometimes the system is gamed to ensure they don’t actually function as the principal (for example, see Piscataway v. Taxman, where a case was deliberately removed from the system to avoid intervention by the principal). Because of this, politicians want to fill the lower courts with mini-Scalias and Reinhardts, rather than wishy-washy O‘Connors,which politicizes the lower courts to no end. Is this a good thing? Probably not. As much as is possible, the law ought to be based on regular, institutionalized procedures—based on laws passed by the legislature, common law, and precedent. However, at the pinnacle of the system, I’m not sure it can be.

However, the larger normative question in this particular case is whether or not Reinhardt (more properly, the 9th Circuit) is right to intervene. On balance, I’d have to say intervention is right. The cost to the administration to justify its action before the judiciary is minimal compared to the potential cost to human liberty if the judiciary defers to executive judgment. At some level, it’s the Carolene question: nobody to the political right of Dennis Kuchinich is going to stick up for the people at Gitmo. At another level, it’s a question of separation of powers—the executive is essentially asserting the right to do whatever it wants without effective oversight from either Congress or the judiciary, including inventing its own secret judicial system out of whole cloth. Surely this ought to be troublesome, particularly to lawyers like Glenn Reynolds and Eugene Volokh, but their collective response seems to be “eh, it’s just Reinhardt” and micro-analysis of how, since we did the same thing with Germans in 1944, or because the sovereign status of Gitmo is subject to some obscure treaty provision, this is all just peachy.

Now, at some level I could care less about the people at Gitmo. I realize to some extent the foreign bleating about them would just be bleating about some other topic if we’d given them an all-expenses paid vacation at Club Med. As a diplomatic matter, I realize that we’re probably carrying water for the Australians and Brits with their detainees (god knows Tony Blair doesn’t want the headache of dealing with the British collaborators with the Taliban). The rest of the detainees are probably much better off at Gitmo than they would be in the hands of the Afghan, Saudi or Pakistani authorities—which is probably what I’d have done with them. That still doesn’t mean that I have to like it—or approve of the administration’s handling of the issue.

As Steven Taylor notes in the latest edition of the Toast-O-Meter, Howard Dean is leading the other Democratic contenders in a lot of national and state polls, including in the key early primary state of New Hampshire, even while his rivals—most notably Joe Lieberman—step up their attacks on him.

So far, attacks from the remainder of the pack have had little effect; however, if this AP account from the campaign trail in Iowa is to be believed, Dean may be starting to feel some heat:

Howard Dean appealed to fellow Democratic presidential candidates Saturday to stop the bitter attack politics that have come to dominate the race for the party’s nomination. The race needs “a little character transplant,” he said.

“It’s not necessary to tear down the other opponents,” said Dean, whose front-running campaign has come increasingly under fire from Democratic rivals.

However, it may be too late for his rivals to do anything about Dean’s long march to the nomination. It’s December 20th, only five weeks before the New Hampshire primary, and all the members of the ABD faction are still in the race, which—as I’ve explained before—is deadly to their collective chances of stopping Dean from gaining the nomination. The electoral rules are clear on this point: the more ways the anti-Dean vote is split in a state, the more delegates Dean will receive. Make no mistake: coalescing around a single ABD candidate won’t stop the Deaniacs’ lemming-like procession behind their leader, but it will mean that credible candidates will get more delegates—you need 15% of the vote in a Congressional district to get delegates, and judging by the polling numbers the only candidates who will be able to do that consistently are Dean and Sharpton, the latter due to the effects of majority-minority districts.

The bottom line: Lieberman, Kerry, and Edwards need to step aside today and let Clark and Gephardt have a fighting chance to get enough delegates between them to stop Dean, or it’s going to be a very long year for Democrats.

Michael Jennings has a fascinating post at Samizdata that explains, in part, why I’ve been to Stansted and Gatwick more times than I’ve ever been to Heathrow—and also, in part, why I haven’t set foot in any of those airports (or, for that matter, anywhere else outside North America) in 12 years.

To some extent, the practical problems Michael describes have been reduced by code-sharing and mergers; for example, I could now fly to Britain from Memphis—the relative boonies in American aviation, at least when it comes to "hub" airports—in several dozen different ways, the most convenient of which is probably to take the every-other-day Northwest/KLM flight from Memphis to Amsterdam then any of a number of flights to major British airports via KLMuk from Amsterdam.

Steven Taylor finally got around to reading the Ehrlich piece I discussed below (in terms of Mickey Kaus’ reaction to it). Quoth Dr. Taylor:

The second problem [with his argument] is more profound: Erhlich seems not to understand American parties. Parties in the US are primarily three things: the candidates themselves, the officeholders who manage to win election, and, above all else, the voters who are willing to put those candidates into office. The institutional existence of the party (the party committee, and so forth) is really minor by comparison to the other aforementioned elements.

This is a restatement of the classic “tripartite division” of the party in political science: the party in the electorate, the party in government (which subsumes both the “candidates” and “officeholders” from Steven’s description), and the party organization (or institution). While parties are institutionally weak, as I reviewed in my previous post, that’s not the whole reality of the situation—parties still have a strong resonance in the electorate (even in the elite bits of the electorate, like the blogosphere: you’ll find relatively few nonpartisan “warbloggers”), and they still help organize competition both in elections and in government.

Anyway, go read what Steven said, as well was what Professor Bainbridge had to say too. (Bonus points: Prof. Bainbridge talks about one of my favorite topics, heuristics, and the value of those heuristics in political decision-making.*)

James Joyner, Dan Drezner and John Cole are among those who note that the United States and United Kingdom have reached an agreement with Libya on dismantling the latter’s nuclear, biological, and chemical weapons programs. Fancy that.

Of course, we all know it was really just Tony’s doing.

I was going to write a long rant about lawyers’ obsessions with such whimsical notions as stare decisis and legalistic reasoning, in connection with the Padilla and Gitmo cases. Thankfully, Will Baude points out a book review by Richard Posner that—while dealing with the seemingly completely different issue of gay marriage—makes a basic point about the judicial construction of rights that seems to escape everyone else who’s ever attended law school:

It should be apparent by now what the problem with Gerstmann’s approach is. Though he is a political scientist as well as a lawyer, his approach to the question of homosexual marriage is legalistic. Find a precedent…, and analogize it to the present case, and use the analogy to put an impossible burden of proof on your opponent, and limit the scope of your rule by rejecting further analogies on however arbitrary a ground, so that the right of a prison inmate to marry is deemed analogous to a right of homosexual marriage but not to a right of polygamous marriage, because the polygamist, unlike the homosexual, is not denied the right to marry the person of his (first) choice.

This is what is called “legal reasoning,” and it is hard to take seriously. For one thing, there is nothing sacrosanct about precedent, especially in the Supreme Court. In Lawrence, the Court overruled a precedent that was not merely analogous to the case at hand, as Turner and Zablocki might be thought analogous to a case involving homosexual marriage, but identical to it. (The case was the notorious Bowers v. Hardwick, which had upheld the validity of criminalizing homosexual sodomy.) For another, it would be child’s play, as a matter of legal casuistry, to limit those two cases to conventional, monogamous, non-incestuous, heterosexual marriage.

Judges like to pretend that their decisions are dictated by “logic,” or by an authoritative text or precedent, because it downplays the element of judicial discretion, which worries people. The pretense wears particularly thin in constitutional cases about marriage and sex, because the Constitution does not say anything about these subjects, and the framers of the Constitution, and of the major amendments, in particular the Fourteenth Amendment, which is the principal source of constitutional rights against the states, were not thinking about marriage, sex, homosexuality, or related topics when they drafted these founding documents. (Neither were the ratifiers.) Decisions such as the four that I have mentioned, together with the Supreme Court’s other well-known sex-related decisions, such as Griswold v. Connecticut (holding that a state cannot forbid married couples to use contraceptives) and Roe v. Wade, are all “political” decisions—not in the narrow Democratic versus Republican sense, but in the sense of being motivated by values not dictated by the orthodox materials of judicial decision-making. Precedent and analogy operate as fig leaves in such cases.

Fundamentally, I don’t think it matters whether or not there’s a legal precedent for Padilla’s detention or the indefinite limbo of detainees at Gitmo. What matters is whether or not they are the right things for the government to be doing, and in my opinion, neither are consistent with American values. Belittle popular punching bag Stephen Reinhardt all you want for saying that—god knows I think he’s an idiot at least half the time—but don’t pretend that your cites are any better than his, because fundamentally they aren’t. It’s all politics, and those who dabble in constitutional law would be well-advised to keep that in mind when discussing the judiciary.

Meanwhile, PG of En Banc gets to the heart of the substance of my uneasiness with Eugene Volokh’s position on the Gitmo detainees. Eugene’s position may (or may not) be legally correct, but it strikes me as morally wrong. Elsewhere: Robert Prather agrees on Padilla and disagrees on Gitmo.

This is my entry in the OTB Beltway Traffic Jam for today.

It’s been a busy day for wanna-be terrorists in the courts; as James Joyner and One Fine Jay note, the 2nd U.S. Circuit Court of Appeals has ordered the release of alleged dirty bomber José Padilla, a decision both agree with, while the 9th Circuit’s decision that detainees at Guantanamo Bay deserve access to counsel and the normal judiciary, contradicting a decision of the D.C. Circuit, has met with a tepid reaction from Glenn Reynolds and outright disagreement from Professor Bainbridge.

Not being a lawyer—or playing one on TV—myself, my gut instinct is that both decisions are correct, and while there may be some (as yet unclear) value to holding the Guantanamo detainees, I don’t think that value is sufficient to justify the ongoing diplomatic fiasco attached to them—even if countries like Britain and Canada, whose citizens are among the detainees, would probably prefer that the U.S. deal with them at Gitmo rather than dealing with them themselves, even if they won’t say so publically.

Jacob Levy says pretty much everything I had to say about the French government’s decision to go ahead with efforts to ban the display of religious symbols by students in public schools.

Russell Fox is none to impressed by the proposal either.

James Joyner has some thoughts on a Mickey Kaus blog entry exploring the possibility of a third party run by Howard Dean if he doesn’t win the nomination. I honestly don’t think that is likely, or even logistically possible. The two major parties, while at their institutionally weakest state in modern history, still serve an important gatekeeping function in our system; while it’s arguably harder to win a major-party nomination than to gain ballot access on a third-party ticket, the reward of the major-party nomination is the virtually automatic vote of more than 30% of the electorate.

That is not to say that to win the nomination, candidates have to appeal directly to the party base. Registration rules in most states are now weak to nonexistent (part of a 100-year trend started by the “progressive” reforms that reflected a belief in a Tocquevillian ideal of a well-informed rational public rather than the reality of widespread political ignorance) and increased soft money regulations have meant an end to the financial ties between parties and candidates. Instead, the successful candidate in a large field can simply recruit disaffected apartisan ideologues* to his cause and use their support to create an air of inevitability around his campaign to recruit the support of institutional loyalists—the “true partisans,” if you will.

However, Kaus’ belief that we’ll see a breakdown of the two existing parties, at least on the ballot, is at best misguided. There are thousands of Democratic and Republican state legislators who would have to be convinced to remove the existing institutional advantages of their own parties to open the door for a new third party, while the idea of separate parties competing at the presidential level than in other elections seems a tad absurd (I could see separate parties at the state and national levels, but that’s not the same thing, really). There’s enough value attached to the Republican and Democratic labels that it’s likely we’ll see candidates fight over them long after the institutions they represent have been further eviscerated by further campaign finance “reform” and the continued march of the “progressive” legacy.

By the way, I hope some political scientist out there is doing a study of Dean activists, if only so I can steal borrow their data and test some of the hypotheses floating around in my head about them…

Randy Barnett, in writing of his clients’ victory in Raich v. Ashcroft, clings to hopes of legalistic reasoning by the Supreme Court.

It is supremely ironic that the Ninth Circuit is the court of appeals that is taking the Supreme Court’s new Commerce Clause jurisprudence the most seriously. This case illustrates that Federalism is not just for political conservatives, and is a doctrine that provides benefits across ideological lines. If this case does go to the Supreme Court we will learn whether the conservative justices who developed this doctrine have the courage of their convictions when it applies to activities of which they may disapprove, and whether the liberal justices will put their disdain for Lopez and Morrison above the commitment to stare decisis, which would let them do justice in this case.

Excuse me while I snort derisively at the thought of either of these hypothetical scenarios (liberals supporting stare decisis or conservatives sticking up for the principle behind Lopez) coming to pass.

Link via Unlearned Hand at En Banc, who “would love to see the Fab Four grant cert.” I assume that the Fab Four is either the set of liberal or conservative justices, and does not include the notoriously fickle Sandra Day O‘Connor, but I’m at a loss as to which set (the conservative Scalia/Thomas/Kennedy/Rehnquist or liberal Breyer/Souter/Ginsberg/Stevens) is particularly “fab.”

Amazing how all the news seems to happen while we’re down. (The appropriate parties have been executed for their roles in our period of downtime, in case you were wondering.)

To review:

• I got rid of about half the beer in the house at a grad student party on Friday night. Less crap to move. Yipee! (Thanks to Brooke and Lindsey for organizing the gathering.)
• I turned 28-going-on-60 on Sunday.
• Someone actually wants to cite part of my dissertation in a book. I’m stunned.
• Steven Taylor had the latest Toast-O-Meter update, with Howard Dean widening his lead over the pack despite increased attacks from the trailing candidates.
• The presumptive Democratic nominee made a speech on foreign policy that somehow failed to mention North Korea.
• Everyone’s favorite Dixiecrat apparently didn’t mind dipping his pen in different-colored ink, so to speak.
• Signifying Nothing went down to ignominious defeat in the Wizbang 2003 Weblog Awards balloting. I blame the butterfly ballot and the use of a first-past-the-post system.
• And, last but not least, coalition forces arrested a biker dude near Tikrit and gave him a lovely shave and a fight to Qatar at taxpayers’ expense.

This is today’s entry in the Beltway Traffic Jam, in case you were wondering about such things.