Tuesday, December 13, 2005

Strict Constructionist II

The president is, of course, a politician. As an elected official, his views on the constitution can be expected to be, how shall I put this, more malleable.

But those justices who have spent their entire career within the legal establishment, in appointed government posts, or in the hallowed halls of academia, they’ve had time to hone that ideology, to fully develop their dogma, and we can expect a purity of thought and action.

Or can we?

Cass Sunstein on Clarence Thomas and Antonin Scalia from Fresh Air in September:

At their best, Justice Scalia and Justice Thomas will follow history wherever it goes, and as I’ve said on the right of privacy, they are dead on in terms of the history. But there are areas where their historical interest is relaxed… Justice Thomas and Justice Scalia have joined the constitutional assault on affirmative action programs. They have not said that whether states and localities have affirmative action is up to them in a federal system. They have not said that judicial restraint is the right approach in a system of separated powers. And then instead they’ve basically said no affirmative action ever.

Have they inquired into the history behind the 14th Amendment which are the basis for their decisions? Has either of them uttered even a sentence about the original understanding of the 14th Amendment? No is the sad answer to that question. There’s a lot of historical work suggesting that affirmative action was just fine on the original understanding. [...]

Many fundamentalists assert that our Constitution is color-blind, and there can’t be any racial lines drawn by government. But the Congress that ratified--that produced the 14th Amendment--was eventually ratified by the states--itself had a body called the Freedmen’s Bureau, and the Freedmen’s Bureau engaged in affirmative action. There was a lot of discussion of whether the Freedmen Bureau’s special favors to the newly freed slaves was a form of discrimination. That was discussed. And the answer was special favors for newly freed slaves--in fact, special favors for people who were African-American--were just fine. The ultimate view in the country was this form of discrimination, so-called, wasn’t discrimination in the bad sense. It was a way of equalizing.

Now maybe the people who said this were wrong. Maybe affirmative action is bad policy. That’s a legitimate argument to make. But what is to me astounding is that Justice Thomas and Justice Scalia, who normally use history in good faith, don’t even talk about history in asserting a principle of color-blindness, so those who like Justice Scalia and Justice Thomas and their method, they ought to be very happy with affirmative action, not as a matter of policy, but as a matter of constitutional law. If that’s not right, then they have a lot of historical work to do, and they haven’t done it yet.

Strict Constructionist I

The Carpetbagger Report:

If there’s one thing we know about the president’s philosophy about the Constitution, it’s that he loves strict constructionists. None of that “the law evolves” stuff for Bush; the president, like all good conservatives, claim that “originalism” - the Constitution should be interpreted as the Founding Fathers intended - is the only way to go.

The opposite of this belief, of course, is the notion of a “living Constitution” that develops and changes with society over time. Slate’s Dahlia Lithwick recently joked that conservatives view this approach as “judges swinging like monkeys from the constitutional chandeliers, making up whatever they want, whenever they want.” Indeed, Jonah Goldberg wrote earlier this year, “A ‘living Constitution’ denies us our voice in this regard because it basically holds that whatever decisions we make - including the 13th, 14th, and 15th Amendments - can be thrown out by any five dyspeptic justices on the Supreme Court.”

So he was surprised to find the presidsent share these thoughts with Brian Williams on NBC:

Williams: Have you ever entertained the thought, Mr. President, that Iraq’s natural state may be three separate pieces, three separate nations?

President Bush: No, I haven’t. I think - I know it will be united based upon, you know, kind of universal principles, the ones I outlined in the speech, freedom to worship, rule of law, private property, marketplace, all bound by a constitution which the Iraqis approved, and which the Iraqis will improve upon. And, you know, we improved on our own Constitution. In other words, it’s a living document. (emphasis added)

Diebold

I’ve been reading the rumbles without comment. But it sure does look like where there’s smoke…

The chief executive officer of electronic voting company Diebold who once famously declared that he would “deliver” Ohio for President Bush has resigned effective immediately, RAW STORY has learned.

“The board of directors and Wally [O’Dell] mutually agreed that his decision to resign at this time for personal reasons was in the best interest of all parties,” the company’s new chairman said in a statement.

O’Dell’s resignation comes just days after reports from BradBlog.com that the company was facing imminent securities fraud litigation surrounding charges of insider trading. It also comes on the heels of a RAW STORY interview with a Diebold insider, who raised new allegations of technical woes inside the company, as well as concerns that Diebold may have mishandled elections in Georgia and Ohio.

Immaculate Conception?

Sadly No

Gay Crèche from the Sadly No War on Christmas gift collection.
Via Michael Bérubé, who still got my vote.

Wi-Fi NYC: Would that it were true

I knew Gail Brewer from around the neighborhood for years. Now she is city council chairwoman of the committee on Technology in Government in New York, and introducing a bill that would create a special commission to advise Mayor Bloomberg and the council on how to bring affordable broadband to all residents:

New York’s interest in municipal broadband comes just as the citywide Wi-Fi buzz hits a fever pitch. Other cities, such as Philadelphia, New Orleans and San Francisco, have already started down the Wi-Fi path, but if New York builds out its own Wi-Fi network, it will be the biggest deployment of municipal Wi-Fi in the country, and perhaps the world.

“It’s likely not a question of ‘if’ but ‘when’,” said Craig Mathias, an analyst with Farpoint Group of Ashland, Mass. ”Every major city is going to have some kind of citywide Wi-Fi access. It will become an expectation like electricity or telephone service. But New York is definitely a challenge from a technology perspective. You may not be able to get it in every nook and cranny.”

I guess I’m not so optimistic on the “‘if’ but ‘when” question unless, of course, “some kind of citywide Wi-Fi” is very broadly defined. Telecom companies and their government toadies tamp down my enthusiasm.

Gail Brewer’s no toadie; I wish her well. But do see, for example, Larry Lessig on Why Your Broadband Sucks.