Eugene Volokh reports on what may be the most disgusting appellate court decision since Plessy v. Ferguson. Apparently the Nevada state supreme court has decided it can elide parts of the Nevada Constitution it finds inconvenient when promoting its activist agenda. I’ve seen some absolutely contortionist legal reasoning in state supreme court decisions before (most notably, the Tennessee supreme court’s behavior in deciding the so-called “tiny towns” cases in the mid-1990s), but never in modern times have I seen a decision so absolutely horrible I thought impeachment was warranted. Until today.

You can read more on the story in the Las Vegas Review-Journal, and at Rick Henderson’s blog. Glenn Reynolds is rather unimpressed as well.

The latest Chicago School piece in The New Republic by Daniel Drezner argues that Howard Dean is about as credible as his fellow Democratic candidates on national defense, although Dean does share Dick Gephardt’s isolationist views on trade. (A number of relevant links are at Dan’s blog.)

Meanwhile, James Joyner thinks the combination of frontloading and proportional delegate allocation may lead to a brokered convention. Since nobody’s going to completely run out of money before the primaries are effectively over, there is a fair chance that no candidate will get a majority of the delegates; if any candidates are going to drop out, they’re probably going to do it before Iowa. And given that the presidential primaries often are both standalone (with no other races on the ballot) and open, there’s a reasonable chance there will be significant cross-over voting among Republicans, which may help fringe candidates and those who may be perceived as too liberal to win the general election—Sharpton and Dean could quite possibly pick up a large chunk of delegates in the South with a combination of black votes and Republican crossover voters acting as “spoilers.”

Conrad is starting a pool on when the main leaders of China’s puppet regime in Hong Kong resign. Apparently the people of Hong Kong actually want the puppet masters in Beijing to live up to their promise of “one country, two systems.” Imagine that.

My bets: Regina Ip is out by next Monday (July 14), with chief toady Tung Chee-hwa gone by Labor Day (Monday, September 1).

Meanwhile, I’m sure the people of Taiwan are sitting around saying, “Man, am I glad we didn’t sign up for that deal!”

I haven’t written about the Supreme Court’s decision in Lawrence v. Texas until now for a number of reasons. First and foremost, I’m still working on dissertation revisions (which are going fairly well, much to my surprise), but also because I’m in broad agreement with where the Court came out. My general view on matters of individual liberty is that intrusions upon them by government should be subject to the strictest of tests: namely, in court parlance, strict scrutiny all-around. Absent a compelling governmental interest, there’s no good reason to restrict speech, religion, possession of firearms—or what forms of consensual sex people can engage in. Not only did the Court do the right thing for homosexuals, they did the right thing for millions of heterosexuals across the nation.

However, there’s a lesson in Lawrence—and the Supreme Court agenda at large—for my liberal and conservative friends alike, who decry the Court pronouncing against their preferred policies. It’s pretty simple: don’t pass laws that will invite activist behavior by the Supremes. If Texas’ legislature hadn’t been stupid enough a few years back to enact a new law against sodomy, the Court wouldn’t have been in a position to decide the issue. Don’t want affirmative action thrown out? Don’t pass laws that practically beg the Court to overturn it.

I won’t deny there are problems with the Supreme Court as currently constituted. The way the two halves of the court are polarized risks turning the interpretation of the Constitution into a barometer of Sandra Day O‘Connor’s current mood (as we’ve seen before during the absolutely horrid period where Powell was the swing vote—anyone who’s read Buckley v. Valeo, the current controlling precedent for campaign finance law, knows exactly what I mean). And, given the current polarization on Capitol Hill, I don’t see the Court improving anytime soon. But, on the other hand, they are the only branch whose current members at least show some semblance of having read and understood the Constitution, so for now I reluctantly cast my lot with them.

John Cole thinks Dean’s going to win the Democratic nomination. I guess if I had to put my money on anyone, I’d probably put it on Dean too—even though there are some Democrats who don’t think Dean is credible on national security. But when credibility on national security in the field of candidates is solely differentiated by whether or not you served in a war that half of the Democratic primary voters don’t remember (hi, John Kerry!) and the other half opposed, I don’t believe that’s much of a handicap.

Mark Kleiman writes:

If a republic is to maintain itself as a republic, rather than degenerating into an oligarchy or party dictatorship, it must be the case that the party in power can’t reliably maintain itself in power. Imagine, just as a hypothetical, a republic whose campaign finance system gave a big natural advantage to whichever party was most favorable to big personal wealth and corporate interests. Imagine further that the party favorable to those interests managed to get control of both the executive and the legislative branches. Now imagine further that the leadership of that party had no scruples about exploiting to the fullest its powers to help friends and punish enemies, in the interest of making its dominance permanent.

He goes on to claim that this is currently the case. Of course, it was also the case for the Democratic Party between 1961 and 1969; the Democratic Party between 1977 and 1981; and the Democratic Party between 1993 and 1995. In each case, the Democrats had the unqualified financial backing of “big personal wealth and corporate interests,” “control of both the executive and the legislative branches,” and “no scruples about exploiting to the fullest its powers to help friends and punish enemies.” Furthermore, unlike the Republicans today, these Democratic majorities had a Supreme Court that was broadly inclined to promote their social and economic agenda (even during the brief Clinton period). Yet, amazingly, we still have a republic, despite all of these shocking assaults on the separation of powers.

I won’t dispute the fundamental truth of Madison’s insights in Federalist 10. But a few years of unified government isn’t going to undermine the republic today, especially when the party in control of that government is essentially continuing the substantive policies of the previous Democratic administration with some fiddling at the margins of the tax code.

CalPundit tries to figure out what it means to be moderate. Money quote:

First, there’s a difference between policy moderation and rhetorical moderation. John Kerry, for example, is probably about as liberal as Howard Dean if you look at his actual policy positions, but Dean uses more fiery rhetoric. Likewise, aside from a regrettable weakness for sarcasm, my writing tends to be pretty sober compared to someone like Atrios. But on actual political positions, we’re fairly close.

And that, in a nutshell, is why I take Kevin seriously but would rather get hit by a bus than visit Atrios again in my lifetime, and hence why Kevin actually has a decent shot at persuading me that he’s right on the issues.

James at OTB has more, including a money quote of his own:

Indeed, the mere fact that we spend a lot of time thinking, let alone writing, about politics and have developed somewhat coherent positions almost by definition puts us into the extremes.

I’d probably elide the “almost.” Having a coherent personal belief system puts you in the tails of the bell curve, at least relative to the public at large. I think moderation is more a function of whether you allow the belief system to dictate how you feel about people who don’t share your beliefs, and not so much what the content of your belief system is. Which, incidentally, gets back to what I was saying about political sophistication and perceived media bias.

James at OTB links to a Mark Steyn piece in today’s Washington Times in which Steyn argues that Howard Dean will peak soon. I’m not particularly convinced, mainly due to the lackluster Democratic field and the diminished appeal of potential Dean vote-splitter Ralph Nader to the “progressive” fringe (or, as Dean would put it, “Democratic wing”). And, with the highly compressed primary schedule, there’s a good chance Dean could remake himself into a centrist in time for Labor Day 2004 if the party grandees don’t panic and bring in an outside candidate as the nominee.

Dean Esmay, meanwhile, also ponders (the other) Dean’s prospects (via One Hand Clapping).

Peter W. Davis has a guest post at Electric Venom, giving his perspective on what’s changed—and what’s still the same—in the Democratic Party over the past fifty-odd years. A brief—unedited—excerpt:

Up until the 1948 Presidential election there were two kinds of campaigns run in the Southern Democratic Primaries. One type was a candidate making a speech about how he was going to clean out the County Courthouse and bring paved roads, electricity and honest law enforcement to the rural and small town population of the day. They talked about running water and jobs and opening hospitals. These candidates seldom won. This was the Harry Truman Wing.

The other kind of candidate—of the Strom Thurmond wing—won their elections by shouting “Nigger! Nigger! Nigger!”[*] A memory of George Wallace’s first campaign for an elected office comes to mind. He tried to win the primary by talking about jobs, clean running water and paved roads. After losing the election he swore he’d never be outniggered again. He wasn’t.

I don’t know that I agree with all his conclusions, but it’s definitely worth reading.

[*] Like Peter, I’m not very comfortable with putting that word in this post. However, in this case I think it’s important—precisely because of its shock value. I don’t think you can truly understand how vile the campaigns of men like Maddox, Wallace, and Thurmond were unless you’re confronted with their rhetoric in all its unadorned ugliness.

My friend and former colleague Scott Huffmon, an assistant professor of political science at Winthrop University in Rock Hill, S.C., gives his perspective on Strom Thurmond’s legacy:

Couple of brief points about Strom (as an expert on southern politics…):

1. [Steven] Taylor is wrong, he never actually had to use the bucket that had been placed in the cloak room during his 24 hr 18min filibuster (he had purged his body of all excess water by drinking hardly anything and taking constant steam baths for days prior)
2. He forgot about the wrestling match with [Ralph] Yarborough about [Leroy] Collins’ appt to the Community Relations [Service] in the wake of the CRA of 1964
3. Strom DID change…he was the first white southern member of Congress to hire a black staffer (in 1971), he was a supporter of the national MLK Jr. holiday in 1986, and he voted to extend the VRA in 1991
4. it is correct that he is not known for sponsoring any landmark legislation, but he DID serve his constituents amazingly well…including black constituents…eventually
5. even as a segregationist governor, he helped SC with a business friendly approach that helped alleviate the pain of being virtually abandoned by the navy and bringing SC kicking and screaming out of an agricultural based economy
6. his REAL impact on the political landscape came with his prominent switch to the Republican party in 1964 along with his help in developing the “southern strategy” (with aid Harry Dent) ...this paved the way for white conservatives across the South to switch parties and irrevocably changed the state of presidential politics, the nature of the Republican party, and (by default with the exodus of southern conservatives) the Democratic party.

Obviously, I am appalled by 90% of his life and career, but to say that he had limited national impact is a fallacy. For good or ill, this man fundamentally altered politics in America.

(I've added a few links and clarifications in brackets.)

Nevada Gov. Kerry Guinn (R-Neptune) is worse than fellow Republican outer-solar-system resident Don Sundquist (R-Pluto), according to Bill Hobbs. It’s some mean feat, but Bill has the goods:

A group of legislators is willing to raise taxes, just not enough the would-be dictator of Nevada wishes, so he’s going to court to make them do it, claiming the state constitution requires them to vote for the higher taxes because it requires sufficient taxes to balance the budget.

Somehow, I don’t see all those Democrats who were incensed that the Texas Rangers were sent out to round up legislators who were blowing off quorum calls being all that upset about this development.

The Dissident Frogman reports on his vacation in Normandy, and notes the disappearance of the American flag from le Musée Mémorial de la Bataille de Normandie (a place I had the honor to visit about 13 years ago).

Does this bother me? Perhaps a little. But the Americans who died liberating France, like the Americans who died liberating Iraq, died so the French people and their government would be free to make their own choices. That the French don’t always make the decisions we’d like for them to make is a part of that freedom.

So are they being ungrateful? Yes. Spiteful? Undoubtably. But the freedom they were given was a gift from us (and the British, Canadians, and Poles and others who fought along side us)—the greatest gift America can give the world—and we can no more expect them to use that gift the way we’d want than we can expect a friend to not throw a birthday gift in the back of the closet. And I’d much rather have the French—and the Iraqis—free to decide their own fate in the world, and sometimes getting it “wrong,” than continuing to live under totalitarian rule.

Link via Matthew @ A Fearful Symmetry.

Eugene Volokh thinks that this behavior is worse than the whole “Freedom Fries” nonsense that took place on these shores. He’s probably right on that score at least. Meanwhile, judging from the trackbacks, maybe I’m the only one feeling even vaguely charitable.

Megan wonders why the Germans don’t come in for near as much bashing in the blogosphere. My guess is because (a) they didn’t tell everyone who disagreed with them that they were “missing a good opportunity to keep quiet” and (b) they aren’t French. Now, granted, the second reason is far more compelling if you’re English than if you’re American, but I don’t really pretend to understand it either.

The Dissident Frogman has some important amplifications and clarifications (via Amy).

Matthew has a stance on marriage—gay or straight—guaranteed to annoy anyone who’s never read Locke (and probably some of them, too). I won’t spoil it; just go RTWT™.

James Joyner likes the idea in principle, but is concerned about some of the implementation of the details. Given the burgenoning industry surrounding pre-nuptial agreements, I’m not sure we’re that far from solving those problems. And, in terms of inheritance, avoiding probate is largely a matter of having a proper will, and with the inheritance tax on the way out the door the potential tax issues are greatly simplified for people in most states.

Overall, it seems to this non-lawyer like most of the practical benefits of marriage (excepting the tax benefits) are largely duplicated in existing contract law; the trick is to create a “civil union” contract that contains those provisions—durable power of attorney, the method of disposal of assets upon dissolution, etc.

Steven Taylor, in response to Bryan’s post at Arguing with signposts…, makes some fairly good points about the legacy of the late Strom Thurmond.

I’m not sure that it requires a political scientist’s perspective, although I’m sure that prominent specialists in southern politics like the Black brothers (Merle and Earl) may have more insight than others. He, like any other politician of any longevity, had a fairly good mastery of the nuts and bolts of politics: most notably, securing a “personal vote,” including attending to constituency service and bringing home the pork. Beyond that, though, political science offers no special insight.

I can see why he was a polarizing figure. In many ways, he represented the worst of the Republican Party, both in the casual appeal to racism in his campaigns and in his selective approach to the principles of federalism. In other ways, like George Wallace and others of his era, he eventually built a bridge between the races—even though they weren’t particularly concerned about burning it when they weren’t in the position of needing black votes. Few can argue with the proposition that he stayed in the Senate far longer than he needed to, and far longer than he was of any value to the institution.

On the other hand, as Jeff Quinton argues, Strom-bashing for some is a convenient shortcut to southerner-bashing in general. Racism lurks beneath the surface all over the country and is not the sole province of our part of it (George Wallace got plenty of votes outside the South). Strom may have been a particularly prominent exemplar of those attitudes, but many Americans of his era—whether in Philadelphia, Miss. or Philadelphia, Pa.—had those same attitudes.

I can’t be particularly charitable to Strom, because the fundamental wrongness of the system he and others like him helped perpetuate far outweighs the good he eventually did. Do I think he deserves to rot in hell? No. God has forgiveness for each of us. But I think I—and history—would look far more charitably on him if he had used his power and leadership to promote racial equality at a far earlier date.

Via OTB and others, I discovered my best matches for 2004:

1. Libertarian Candidate (100%)
2. Bush, George W. – US President (82%)
3. Sharpton, Reverend Al – Democrat (50%)
4. Gephardt, Cong. Dick, MO - Democrat (50%)
5. Kerry, Senator John, MA - Democrat (49%)
6. Dean, Gov. Howard, VT - Democrat (48%)
7. Lieberman Senator Joe CT - Democrat (47%)
8. Edwards, Senator John, NC - Democrat (43%)
9. Kucinich, Cong. Dennis, OH - Democrat (42%)
10. Phillips, Howard – Constitution (39%)
11. Graham, Senator Bob, FL - Democrat (23%)
12. Moseley-Braun, Former Senator Carol IL - Democrat (15%)
13. LaRouche, Lyndon H. Jr. – Democrat (-6%)

Judging from the negative number on LaRouche, I think there are some bugs yet to be worked out…

It is perhaps ironic that presidential candidates Dick Gephardt and Dennis Kuchinich decided to celebrate the 200th anniversary year of Marbury v. Madison by endorsing the idea of a presidential override of Supreme Court decisions by executive order. Not only is this a constitutionally stupid idea, anyone with even an inkling of the concept of “separation of powers” (much less anyone who’s read Federalist 10) would recognize that it’s a recipe for demagoguery and disaster.

Such an incredibly stupid policy is not entirely unprecedented. Andrew Jackson, institutionalizer (if not founder) of the modern Democratic Party, infamously overrode the Marshall court when it sided with the Cherokee Nation over the federal government, leading to the Trail of Tears. Of course, Jackson also had some redeeming qualities, which does not appear to be the case for either Gephardt or Kuchinich, particularly the latter (who combines populism with sheer idiocy in one convenient package).

Now, I’m not going to pretend that the Supreme Court has a great deal of democratic legitimacy. It is, by its nature, a political institution, by the very definition of politics: they decide, at least in the cases brought before them, how resources (money, liberty, legal protections, etc.) are allocated in our society. But I’m pretty sure I’d rather have nine people who are don’t have to appeal to popular passions to make sure they get their next paycheck deciding those things than some two-bit politician (or, more likely, his political appointees) whose every decision is a result of focus groups, opinion polls, and political calculations in the pure, Mayhewian sense—in other words, because presidents (at least in their first terms), like members of Congress, are “single-minded seekers of reelection.”

I haven’t digested either of the Michigan decisions yet, and probably won’t have time to think about either in any detail soon. So rather than spout off an opinion based on the clear-as-mud descriptions of the decision I read in today’s Daily Mississippian, I’ll just say “go elsewhere for insight.”

The only interesting thing I noted was a quote from Sandra Day O‘Connor that indicated that she thought AA would outlive its usefulness within the next 25 years. I guess I’ll be around to determine empirically whether or not she was right…

I think that Jeff Licquia has hit the nail on the head about the “whiteness studies” story that’s been going around the web the last couple of days. No excerpts, go RTWT™.

Bill Hobbs argues that Tennessee’s “Choose Life” license plate isn’t a political statement in and of itself, but rather that “pro-abortion” politicians are “racing to politicize it anyway.” Bill argues:

Of course, the lawsuit would fail—as it has in other states—because the two-word phrase “Choose Life” is neither political nor religious. In fact, the phrase is objectively pro-choice: it acknowledges that people have a choice and simply urges them to choose life over death. Courts across the nation have already shot down the kind of legal arguments the Tennessee ACLU is threatening to make.

Bill may be right about the legalities (although in the comments at PolState.com, Wyeth points out that South Carolina’s courts have accepted the ACLU’s argument), but he’s being highly disingenous here—at least at the level of Glenn Reynolds’ “objectively pro-Saddam,” and James Taranto’s “Y is raising questions about X’s patriotism.”

Furthermore, the “Choose Life” plate places the state in the position of advocating a particular choice by its citizens, and, worse than the activities of the odious Office of National Drug Control Policy (but on a par with the CDC’s anti-tobacco efforts), it advocates that choice over other legal choices. Just because the message is on a individual license plate rather than a billboard doesn’t make it less offensive.

James Joyner (Outside the Beltway) has a good discussion going about the politics and mechanisms for sorting out the D.C. voting mess. The possibilities, in ascending order of seriousness:

1. A buyout. Bribe every single citizen of the District to leave, bulldoze the privately-held land, and move the rest of the federal government in. Fill up the rest with parkland (if there’s any rest left once you’ve moved half of West Virginia into the District). Oh, and finish I-95 while you’re at it.

2. Put it on eBay. Like the buyout plan, but more fun. Whoever wins has to finish I-95.

3. Trade it to Canada for Alberta. As a sweetener, we’ll give them any part of the Lower 48 where 50% or more of the population uses the word “eh” as a comma.

4. Give ‘em the “Puerto Rico” deal: no federal taxes if they (a) stop taking federal money and (b) shut up about the “no taxation without representation” thing. If they want to vote, they can declare residency in a state of their choice, pay their state and federal taxes, and vote absentee. Oh, and they’re getting I-95 like it or not.

5. Give the damn place back to Maryland. Except they don’t want another Baltimore. Especially one without either Camden Yards or a nice aquarium. And they’re not gonna like having to build the missing part of I-95. (Detecting a pattern here?)

6. Give the damn place back to Maryland, and guarantee them an extra representative or two for being kind enough to take D.C. off the rest of our hands. (Screw Baker v. Carr.) We’ll even pay for I-95.

Ok, so none of them are serious. Ah, well.

Neo-conspirator Randy Barnett has a couple of interesting posts on the privileges or immunities clause of the 14th Amendment, probably my favorite dusty corner of the Constitution (ahead of the contracts clause). One of the small perks of teaching is that you get to do a little bit of agenda setting, and so I typically spend a few minutes on it in my POL 101 lecture.

I promise to get back to vaguely substantive posts later this week, now that I’m out of the woods on this dissertation stuff for a few days. But my brain’s kinda mushy at the moment, so no good posts today. Instead, you can look at a pretty Trellis graph produced in GNU R. Bonus points if you can figure out what it demonstrates.

Dan Drezner thinks the way to repairing the rift between the U.S. and the “International Community” (that’s France to those not who don’t have their international relations decoder rings handy) is for the U.S. and Europe to take “concerted action against any authoritarian government that thinks it can exploit divisions within the West to crack down on their own populations.”

That’s a lovely sentiment, as far as it goes, but I’m not sure it’ll work in practice. Take Dan’s three examples of prominent problem children in the international community:

1. Cuba: The country that the Europeans and Canadians have been propping up ever since the Russians withdrew their support in the early 1990s, and one of the few remaining dictatorships in the western hemisphere. The new EU sanctions hardly compensate for decades of the international community thumbing its nose in Washington’s direction by fêting Castro.

2. Zimbabwe: The country whose serial-human-rights-abuser-slash-dictator Jacques Chirac invited to Paris to take part in his “Africa united against America” summit on the eve of the Iraq war.

3. Burma: The country whose leaders have been spending most of the last decade courting European companies, and where French-Belgian oil giant TotalFinaElf (remember them?) has allegedly been involved in laundering the dictatorship’s drug money.

So, forgive me for not being all that optimistic about the prospects for Euro-American cooperation on democratization, even though I agree with Dan that this is one area in which U.S. and European (noncommercial) interests clearly coincide.

Via Glenn, it’s nice to see my good Republican friends in Congress haven’t been reading Article I of the Constitution lately. Not that the Democrats have either, but at least they’ve been consistent since they rejected the doctrine of enumerated powers around the time of FDR.

Also, Jacob Levy points to a rare worthwhile Corner post that debunks more conservative arguments for federal regulation of abortion.

Radley Balko (of the excellent The Agitator) and I have been trading comments over whether ONDCP director (aka “Drug Czar”) John Walters violated state and federal laws by campaigning against Nevada’s drug legalization referendum last fall. In the course of the discussion, I dug up 21 USC 1703, which apparently gives the head of the ONDCP broad authority to oppose any efforts at legalization.

Anyway, the debate also raises some interesting broader questions about how much authority the federal executive branch has to meddle in state and local politics.

Geitner Simmons of Regions of Mind has an interesting post talking about a seismic shift in Minnesota politics, with the state GOP (er, the Independent Republicans) very much in ascendence.