I’m increasingly disturbed by reports (or perhaps merely polls) that some Democrats will “boycott” the general election, or even vote for John McCain, if their preferred candidate doesn’t win the Democratic nomination.

After nearly 8 long years of the Bush White House, scandals and wars and torture, after the twisting of the meaning of “executive power” and constitutional rights, after the trashing of America’s image to its allies and the world….after all of that, are you seriously ready to vote for “a third Bush term with a different face” simply because your favored candidate ends up not getting the nomination?

If you can really look at the last 8 years, and still decide to throw your vote away or vote for McCain in order to protest not getting your favorite nominee, then shame on you.

As I’ve said previously, both here and to many friends, I’m supporting Barack Obama. Perhaps not surprising, given my demographics. But as I’ve also said, I will happily vote for either Hillary or Barack in the general election. We’re in the middle of a particularly protracted and hard-fought primary battle. And the reason why it’s hard-fought and protracted is that — surprisingly — the Democrats actually fielded two viable candidates this time!

We need to recall that the number of viable candidates for President we typically field is somewhere between ZERO and one. If we’re damned lucky it’s been one per election. In my whole lifetime, it’s often it’s been closer to zero.

So two strong candidates is an embarrassment of riches, and we ought to stop the incendiary language and threats of boycotts. First of all, there’s another six long months for all of us Democrats, regardless of who we support now, to really get to know John McCain and our chosen nominee, whomever it turns out to be. And are you really going to say, right now, that you’re willing to irretrievably throw your vote to McCain, before you know what we’re all going to find out once the general election campaign begins in earnest?

Frankly I don’t buy it. I think you’ll reconsider once the difficulty of this primary season fades into the “swift-boating” and right-wing media blitz to come. I think you’ll come home to the party and support our chosen candidate, whomever it turns out to be. And yes, I know it’s difficult to read my references to “whomever” it turns out to be and not think that I’m simply gloating over Obama’s perceived chances of victory. But I really mean it — whomever our nominee is, has my support, and my vote.

And if some of you choose to make good on your threat and abandon our nominee — then I ask of you one simple thing. Look back at the last 8 years, in detail. Look at the run-up to Iraq, at Abu Ghraib, at Guantanamo Bay, at the torture memos, the attitude to constitutional rights, the Supreme Court nominees, at Valerie Plame and the politicization of intelligence, at the secret energy committee we still don’t know much about….look at the last 8 years as a whole, and know for certain that if you make good on your threat then you’re voting for more of the same, and that when it gets even worse because of all the precedents set by the Bush Administration, that you have only yourself to blame.

But I don’t think you’ll throw your vote away. I think that no matter what happens in the primaries, Democrats on both sides of the nomination fight cannot, and will not, look at the last 8 years and decide to — in effect — vote for more of the same.

That’s why I think it’s going to work out, why the party will remain unified, and why we’ll all rally around whichever candidate soon emerges as the nominee. I hope I’m right.

I’ve been holding my breath, I think, hoping that the “practicalities of winning” don’t overwhelm this election far too early. Ever since a mostly-unknown Barack Obama stood up in Boston at the 2004 Democratic National Convention and delivered the most stunning political speech of my lifetime (I’m too young for JFK), there’s been the possibility of idealism this time around.

Politics, at least in my adulthood, has been a grim, pragmatic affair, split by dry-as-dust tinkering in the boiler room of the Great Society welfare state for Democrats, and rigid adherence to a set of litmus tests among Republicans aimed at enforcing ideological purity on tax cuts, guns, and abortion. Politics has been thoroughly computerized, mapped, analyzed like baseball box scores and run by experts on polling, advertising, demographics, and mass fundraising. In other words, it’s a gigantic commercial ecosystem, and both sides increasingly treat it that way.

Obama has seemed, since his declaration became all but inevitable last year, like our generation’s best hope for short-circuiting the wiring of the increasingly robotic Body Politic, and perhaps — even if in small ways — re-envisioning the rules of the game. Perhaps even re-imagining them in ways which cross-cut, and thus defuse, the power of our current definitions of “red” and “blue.”

Naturally, Obama’s relative youth has laid him open, on both sides of the aisle, to those who wonder about his toughness, his experience, his ability to win. Once the primary campaigning got seriously underway, moreover, it has seemed like Obama hasn’t lived up to his 2004 performance. Early debates showed him quiet, almost deferential, and he left us underwhelmed. Polls showed Clinton with an early and massive lead, and one had to wonder, as recently as the holidays, whether it truly was the case that Obama needed more time and experience before running. A series of fairly lackluster press events and appearances have done little to change that impression.

I have to admit that despite never wanting anyone else as nominee, I have fallen prey to all of these species of doubt and skepticism, and probably a few others.

No longer. I don’t know whether Obama will make it and become our nominee, but I think it’s very possible. Nothing magical has happened, except for one thing: he’s made it thus far, all the way through Super Tuesday, and his momentum does seem to be building.

But the uphill climb is seeming more and more like a social movement, and less like a political campaign. Obama’s message of change is largely in the eye of the beholder, but it resonates precisely because much of the voter base today has only experienced the type of politics I described above. We want something more. We’re all slightly cynical about the ability of politics and government to change anything for the better; some of us are much more than slightly cynical. In part, our generation’s growing flirtation with libertarian economics and even politics stems from this disillusionment with government.

Some of that disillusionment is quite proper; we are the inheritors of a New Deal and Great Society that turned out to have noble goals but often methods that were flawed, either in the short or long terms. We are also the inheritors of the social world created when the Supreme Court short-circuited a slowly developing social consensus, as they did with Roe v. Wade, and handed a minority of the nation a rallying cry that would drive judicial nomination and set much of the political landscape for a generation.

That landscape now seems frozen and unalterable. Acquiescence in, and intimate knowledge of, this landscape, is now the mark of a “serious” politician or staffer. An entire industry of political staffers, pollsters, lobbyists, advisors, and of course politicians have a vested interest in that landscape, since knowledge of it is crucial to their employability or electability.

Obama may or may not be serious about changing that landscape, and even if he is successful in beating the odds and securing the nomination, as well as winning the general election, he may only succeed in making small alterations. But the chance — just the chance — that we may see something other than the politics of “culture war,” or the politics of “triangulation” — both manifestations of a politics of cynicism — during our lifetime, makes it well worth supporting his campaign.

We deserve something more from our collective efforts at self-government, and although we might not get it during the next President’s term, a social movement starts somewhere, somehow. Social changes always start out as small, seemingly fragile things, laughed at by the “grownups” who know “how the world works” and label anything but the status quo as “impractical” or simply sheer nonsense. In retrospect, of course, social changes always seem inevitable, when observed through the lens of history, growing seemingly logically out of preceding conditions given our knowledge of the outcome.

In the hazy middle, when those who laughed or ignored it in its early stages are caught short, and forced by the size of the crowds or vote counts to wonder whether a movement or change should be taken seriously, is the crucial moment. The moment when growth could feed on itself, or fizzle out. A moment when a little extra support and encouragement could make all the difference to whether a social movement succeeds in changing the way we think, and act.

That’s why I’m supporting Barack Obama, with a vote on my primary ballot, at the caucuses tomorrow, with donations, and hopefully on November’s ballot. And it’s why I hope you will as well.

San Francisco in the middle sixties was a very special time and place to be a part of. Maybe it meant something. Maybe not, in the long run, but no explanation, no mix of words or music or memories can touch that sense of knowing that you were there and alive in that corner of time and the world….There was a fantastic universal sense that whatever we were doing was right, that we were winning. And that, I think, was the handle – that sense of inevitable victory over the forces of Old and Evil. Not in any mean or military sense; we didn’t need that. Our energy would simply prevail. There was no point in fighting – on our side or theirs. We had all the momentum; we were riding the crest of a high and beautiful wave. So now, less than five years later, you can go up on a steep hill in Las Vegas and look West, and with the right kind of eyes you can almost see the high-water mark – the place where the wave finally broke and rolled back.

Hunter S. Thompson, “Fear and Loathing in Las Vegas”

Today is the eleventh anniversary of Carl Sagan’s passing, and like last year many people are writing today to commemorate Sagan and contribute to the second annual Carl Sagan Blog-a-Thon. This is the first of several from me, and one that I’ve been thinking about for awhile.

Not too long ago a friend asked why I still was enamored of the old Cosmos episodes, and periodically went back to watch them. I had to think about it a great deal, because ultimately my friend was right: they’re outdated, and even in their depiction of history are occasionally inaccurate. I keep coming back to an answer, however, which makes me think about Hunter S. Thompson and the quote above.

At least for me, Carl Sagan and his work with Cosmos and planetary exploration represent the “high-water mark” for American scientific culture. Cosmos is redolent with the sense of knowing that we lived in a time when science and democracy and rationalism were winning out over superstition and fear. As Thompson says, not in any military sense, but simply that a particular sensibility would ultimately prevail.

It has not. Not long after Sagan completed the Cosmos series, the Moral Majority (and its descendants, the modern Religious Right) became a major force in American politics, and so-called “postmodernism” became a major force in American scholarship. Today, less than 30 years later, the prestige of science and rationalism are at their lowest in my lifetime. Watching Cosmos, and reading Sagan’s writings are the equivalent, in my view, of seeing the “high water mark” — the place where the wave of mid-20th century secular rationalism finally broke and rolled back.

This isn’t entirely a bad thing. A bit of skepticism is always a good thing. Feyerabend and Arthur Fine bring to the philosophy of science a needed skepticism about the uniqueness of “scientific method” and most of us now view science as a socially conditioned process. But still one whose essential feature is self-correction across the efforts of many. We may have no solid ground to claim that anything we learn is really true, in any ultimate sense, but Popperian falsification still seems to work: we can know when we’re wrong.

But the skepticism of the postmodern critique of “scientism” has crept into policy-making and politics. The shameless manipulation of science and expert testimony under recent (and especially the current) Administration is shocking, and it’s not clear how to reverse this trend. A whole generation of Americans is growing up without much significant training in math and science, which are increasingly viewed as specialities which it’s OK for most people to skip because they’re “not interested in that sort of thing.”

The elevation of personal choice as the sole arbiter of value is a difficult topic in a capitalist democracy (see Michael Sandel on this topic, among other political philosophers), but one thing is clear: we face choices as a country that virtually require us to understand the issues. And it is far from clear that the electorate does understand the evidence on global warming, or peak oil, or biodiversity, or genetic research, to name just a few topics.

So to some extent, I continue to remember Sagan and watch Cosmos as a reminder of what we need to regain, of what we’ve lost in the past 30 years.

Frankly, Americans on both sides of the aisle have reasons to dread the latter two events.  With respect to the politically motivated among Americans (however large that population truly is), neither side will actually get anything they want, and much noise and ink will be deployed in trying to convince us otherwise.  One side will not see the US signal a willing end to the Iraq War and an admission that the policy was a mistake, whether deliberate or not — because as is apparent, this is what the "anti-war left" wants.  And the other side will not see a country that "sees the light" and finally agrees unanimously that everything in the last six years is more than justified by the gravity of the threat we face — again, as everybody in the country knows, this is what the "conservative" and traditionalists in this country want.  I leave aside the less salient but still significant aspects of political opposition in this country because, honestly, these are the big issues of the day.  As with Vietnam, the nation today is split over different models of what "patriotism" requires of citizens in our current situation.

I use the term "requires" deliberately, because I believe that we’re not talking enough about what patriotism is, and thus what might be required
of citizens who think of themselves as "patriotic Americans."  Each
side seems to think the other is unpatriotic (or worse).  Either
because one group seems to blindly support a President and his policies
despite the evidence of bad decision-making, outright lying,
power-hunger, and downright incompetence, or because the other side
appears to value abstract arguments more than "standing with your
people," "unity in time of war," and "looking after our own." 

Given how long it took me to finish this post I lost the reference, but
in the LA Times recently a veteran was interviewed who stated flat out
that opposition in war time was unpatriotic — his point was that this is not the time for discussion and opposition.  I think this sums up one model of patriotism quite nicely:  we line up behind our leaders and stand united.
From the perspective of a serving soldier or a veteran of war, this
makes sense.  It makes even more sense after watching Ken Burns’s
masterful documentary The War this past week, for loyalty is
precisely what is important to those serving in war.  Key to this view
is loyalty to country, the loyalty of one’s peers, and the idea that
loyalty exists at home to the cause for which one is fighting.

But there is another patriotism, equally strong. A loyalty to principles, foremost among them the principles along which our country was founded.
And regardless of what fear-mongering TV and radio pundits want us to
think, those principles do not include blind loyalty, whether in time
of war or not.  Democracy virtually requires an exchange of
views, not a lining-up behind a powerful personality.  Think about how
our country was founded:  in opposition to monarchy, in opposition to
royal power, in opposition to the personal rule of one man or rule by a
small aristocracy.  And yet we are told that questioning those trends
in our own country is "disloyal" and "unpatriotic."  Along with many on
the left today, I prefer to think that patriotism requires me
to question, to draw attention to the lessons of history, to be loyal
to principles (among which are the Declaration of Independence with its
strong opposition to monarchy and executive power, and the
Constitution, with its separation of powers and limited Executive
branch). 

To some extent, these models of patriotism are also different models of
democracy.  I’ll try to make more of this pair of oppositions in a
future post, but one model of democracy and patriotism is majoritarian,
the other anti-majoritarian.  In one model, the majority elects
leaders, and then the whole country is supposed to follow those leaders
until it’s time to elect a different set.  The majority, and those
leaders, get to "have their way" while in power or in the majority.  In
the second model, democracy is designed to represent all views
simultaneously, and through an adverserial process of negotiation and
legislation, our elected representatives come to compromises which
please many, and displease the rest as little as possible.  It’s fairly
clear that the right, and much of the non-political public, views
democracy through the majoritarian lens.  And it’s clear that the left,
out of power, wants to view democracy as the anti-majoritarian,
adverserial and Madisonian process of balancing viewpoints. 

It’s getting harder and harder for folks who subscribe to each of these
views to talk civilly about our country’s problems.  To remain one
country and one constitutional democracy, we need to find common
ground.  I have no problem putting my support behind leaders who lead
within the rules, who lead without lying and manipulation.  In short, I
have no problem lining up behind a leader who deserves to lead.  A
couple of days ago I got invited to a fundraiser and meeting with
Senator Clinton, a fairly pricey affair.  I’m hesitant to go, because
the price of admission is declaring my support through my checkbook.
I’m not sure which of the Presidential candidates on either side are
really suited to lead this country and I’m certainly not yet willing to
pay ahead of time for the privilege of being convinced in person.  Their job, over the next year, is to convince us that one or more candidates has what it takes to unify and lead, while working within the laws and principles we hold dear.  Not that one or more candidates looks
Presidential, or has the right gravitas, or folksiness, or does the
best impression of Reagan, or talks the toughest about 9/11, or
energizes the crowd the most at rallies, or is the natural heir of JFK,
or any of the other silliness one hears constantly in political
commentary.

The multiple patriotisms in this country can and should find common ground in demanding just one thing:  whether
you believe in unity behind a leader or fidelity to principle, let’s
demand more of the people to whom we hand power and authority.
In return for our unified support, in return for putting aside our
differences, we require you, the prospective leader of the free world,
to cease being a partisan politician while you’re sitting in the Oval Office, and be instead the leader of all Americans.
This is a tall order, but it’s one that was ably accomplished by all of
America’s greatest Presidents, from George Washington to Lincoln to
FDR. 

The bashing has already begun by the RNC, who called it an irresponsible idea, requiring “devastating tax hikes on hard-working families” and would “grow the size of government at a massive rate.”

Leaving aside comments about precisely which party has been “growing the size of government” and creating skyrocketing unfunded fiscal liabilities for our country (hint: read the GAO’s GAAP accounting estimates for the federal deficit, rather than the White House’s, if you want to know what the country’s finances under the Bush administration really look like), let’s talk about the merits of the proposal.

The idea is a variant on Anne Alstott and Bruce Ackerman’s proposal in The Stakeholder Society, which argued that our efforts at remedying the effects of income inequality should come on the front end, with children, rather than on the back end, with adults and assistance programs. There are many good reasons for “front-ending” such assistance, including arguments that conservatives and libertarians should be attracted to.

Arguably, adults should be responsible for their actions and life choices, and except for dire circumstances, government and tax dollars should not be spent to remedy poor personal choices. Even Hayek and Friedman argue for assistance in extremity, so I would expect conservatives and libertarians to follow this line of reasoning fairly closely.

Equally, we can all agree that children, prior to achieving independence and some age of majority, are not responsible for their own socio-economic status nor the life choices made by their parents and remoter ancestors. Hence, if we are to ensure that all citizens have equal opportunity (not equal outcomes!), equalizing the starting line status and success probabilities of children is the appropriate way to do it.

This is precisely what Alstott and Ackerman argue in the Stakeholder Society, and point out that $80,000 per child born in the United States would accomplish precisely this — allowing all children the ability to go to any school, commensurate with their intelligence, ambition, and abilities, or to pursue the opening of a small business or training in a trade or specialty.

The $80,000 figure has a fair amount of analysis behind it, and clearly it’s much higher than the $5000 described by Senator Clinton. Perhaps one is more than we can afford, but the smaller figure is also less help than we need to give: $5000 compounded for 18 years at today’s money market rates ain’t a college education by any standard, even in-state tuition at a state university.

But it’s an idea that’s on the right track. Both those who believe both in fighting the effects of income inequality on life chances, and those that believe we need to hold adults responsible for their choices but help children; in other words both principled liberals and principled libertarian conservatives, ought to come together and discuss Clinton’s proposal, and the Alstott-Ackerman research that underlies it, in good faith, and without the duplicitous rhetoric that the RNC pays its spokespeople to shovel out.

McConnell’s top priority for Congress on revising FISA legislation is gaining retroactive immunity for the telecom companies who have assisted the NSA with the illegal wiretapping program over the last five years:

Now if you play out the suits at the value they’re claimed, it would bankrupt these companies. So my position was we have to provide liability protection to these private sector entities. So that was part of the request. . . .

The issue that we did not address, which has to be addressed is the liability protection for the private sector now is proscriptive, meaning going forward. We’ve got a retroactive problem. When I went through and briefed the various senators and congressmen, the issue was alright, look, we don’t want to work that right now, it’s too hard because we want to find out about some issues of the past. So what I recommended to the administration is, ‘Let’s take that off the table for now and take it up when Congress reconvenes in September.’ . . . No, the retroactive liability protection has got to be addressed.

Glenn Greenwald is right, I think this is the first time a top official has pretty much admitted the complicity of telecom companies in the illegal wiretapping program. And that gives the Congress a possible plan, an investigatory path into the lawlessness of this Administration, and beyond, into Executive overreach in general (as previously discussed.)

When Congress returns, it should re-convene hearings on the FISA legislation, especially since that “six month” clause forces them to re-authorize or re-examine. In the process, they should indeed address retroactive immunity for the telecom companies.

The price for retroactive immunity must be full, public, and complete cooperation by the telecom companies. Not disclosing technical detail; any hearings that require sensitive information as part of testimony will naturally follow the usual rules for classified briefings and testimony. But policy decisions and directives from the Administration and especially the White House must be fully and publicly disclosed. On the record, under oath.

No oath, no testimony, no immunity. And no CEO, after their respective boards of directors get done with them. Regardless of political affiliation, political donations, or ties of friendship, no telecom company CEO and its board will pass up the deal. Major shareholders, mutual funds, and the holders of corporate debt won’t let them.

And we’ll get the testimony and hearings we need in order to shape FISA law in accordance with both constitutional principles AND the exigencies of our current situation.

And we’ll see what happens once it’s all out, on the record. Everyone, even a President with the track record of this one, is innocent until proven guilty. But let’s just say the data isn’t trending in the right direction for Mr. Bush. Or will the Republicans decide this is their “Barry Goldwater visits the Oval Office” moment?

    Q: Even if it’s perception, how do you deal with that? You have to do public relations, I assume.

    A: Well, one of the things you do is you talk to reporters. And you give them the facts the best you can. Now part of this is a classified world. The fact we’re doing it this way means that some Americans are going to die, because we do this mission unknown to the bad guys because they’re using a process that we can exploit and the more we talk about it, the more they will go with an alternative means and when they go to an alternative means, remember what I said, a significant portion of what we do, this is not just threats against the United States, this is war in Afghanistan and Iraq.

    Q. So you’re saying that the reporting and the debate in Congress means that some Americans are going to die?

    A. That’s what I mean. Because we have made it so public. We used to do these things very differently, but for whatever reason, you know, it’s a democratic process and sunshine’s a good thing. We need to have the debate.

This is a pretty bizarre twist on the whole wiretapping discussion, and really has to call into question McConnell’s own claims of being "apolitical."   Americans will die as a direct result of having Congressional debate on the subject?  Seriously?

Apparently, McConnell’s "reasoning" (and we’ll use that term loosely for the duration) is that debate in Congress informs our enemies about our tactics and capabilities.  Of course, there’s a point to secrecy about detailed capabilities and tactics, and Congress and the Executive Branch have in place practices for closed hearings and briefings, and for handling law-making concerning classified activities.  These practices appear to work, as far as any of us can really tell. 

But at a high level — the level we’d read about in the news — I’d be shocked to hear that anyone doesn’t know that the NSA routinely monitors electronic communications internationally, and has done so for decades, across many generations of technologies.  After all, the NSA is an outgrowth of WWII signals intelligence groups. 

Or we might assume that folks overseas, including perhaps the bad guys, had read James Bamford’s history of the NSA, "Body of Secrets:  Anatomy of the Ultra-Secret National Security Agency," (a good book by the way), or his previous book, The Puzzle Palace.  Or you could extrapolate from fiction and entertainment and watch the Will Smith/Gene Hackman action thriller Enemy of the State.   Or literally dozens, if not hundreds, of other sources. 

Really.  Seriously.  McConnell clearly knows, as the former director of the NSA itself, and a player in D.C., that (1) the bad guys know we tap phones, monitor email and other electronic transactions, and gather a variety of other non-human-source intelligence, and (2) Congressional debate will be on the legality and processes involved in authorizing such activities, not the details of the technology for acquisition and processing.

So nice try, Mr. McConnell, on the "I’m apolitical, just doing my job" bit.  I’m not buying it.  Your comments are, at best, a misstatement.  At worst, they’re deliberately inflammatory hogwash of the kind we keep seeing from this Executive Branch, which will say anything to avoid having oversight, rules, or statutory limits to its authority.

In short, I’ve become convinced that impeachment proceedings against President Bush and Vice President Cheney are not just the appropriate remedy for the massive executive overreach we’ve seen in the last eight years, but an essential corrective for ensuring that future administrations — Democrat or Republican — do not simply continue where Mr. Bush leaves off.  Given massive expansions of executive power during the 20th century, and especially from Nixon onward (including the Democratic Clinton Administration), we have ample evidence that normal electoral process is insufficient as a corrective to executive overreach.  Stronger medicine is required.  And fortunately, strong medicine is precisely what the Founders gave us, in the form of impeachment.

Up front, I want to note that the previous paragraph doesn’t claim that the entire list of things that Democrats (or indeed, Republicans) dislike about this administration are best handled through impeachment, only that certain critical issues are best handled this way.  For example, the Administration’s dismissal of scientific and expert advice from within their own Federal departments is a matter of policy, not constitutional fidelity.  I don’t like the Administration’s handling of science and expert opinion, and I think it’s dangerously short-sighted to ignore evidence, but they’re fully within their powers to disregard it for policy-making purposes (one caveat here is that the Administration is not within its powers, given previous legislation, to manipulate aspects of the government that are intended to be non-partisan, career bureaucracies, for PR or political gain.  Such manipulation would be important to investigate and consider when drawing up articles of impeachment or censure).  But in general, if I dislike much of the Administration’s policy directions, the appropriate remedy under our Constitution is to gear up to elect someone else, often someone of an opposing party.

Impeachment proceedings are specifically designed to be a remedy for removing elected (and appointed) officials that overstep their powers, engage in treasonous activity, or use their position for personal gain.  In 18th century "Founder-speak," this is what the traditional phrase "high crimes and misdemeanors" refers to.  Misdemeanors and crimes here doesn’t refer to criminal law, of course, because it’s well understood that a President or elected official that breaks criminal law is still subject to prosecution like any other citizen.  So the "misdemeanors" and "high crimes" mentioned in the Constitution’s impeachment clauses are inherently political crimes. 

In other words, impeachment was intended by the Founders of our country to be the Constitution’s principal remedy for willful transgressions against the Constitution’s principles, strictures, and traditions.  Crimes against the Constitution therefore being crimes against the Republic, and against the People.  In such cases, the Founders intended, the principles of our Republic, and of constitutional democracy demand more than simply waiting for the next election and choosing someone else.  Especially in the case of a lame-duck Administration, for whom no electoral defeat is possible. 

At the end of the Constitutional Convention in Philadelphia in 1787, as Benjamin Franklin left the building, a woman asked him directly: "Well Doctor, what have we got, a republic or a monarchy?" Franklin’s memorable response is especially relevant here:  "A republic, if you can keep it."  Franklin, as with many of the Founders, had no illusions that building and keeping a "republican form of government," or what we would now call a constitutional representative democracy, would be easy.  As reported by Madison, Executive authority was the second most hotly debated item at the Convention (right behind the formula for Congressional representation given slave vs. free states).  The Founders were anxious not to trade a hereditary King for one that differed only through being elected. And consequently, George Mason, Gouverneur Morris, and Madison ensured that impeachment was thoroughly woven into the fabric of our constitutional life.  Nor was the founding generation loath to employ this tool:  several impeachment discussions or proceedings occurred during the first several administrations (albeit none against the President).   

So the Founders gave us the right tool to use in cases of crimes and transgressions against the Constitution, and they plainly expected the tool to be used whenever required.  And it’s been amply documented that the current administration has engaged in many actions which might meet the required standard.  This Administration’s use of executive orders, signing statements, as well as outright dismissal of Federal law (1) to accomplish activities which normally are considered illegal or unconstitutional will form the principle charges in any articles of impeachment.  For all its impressive legal jargon, judicial rulings, and patina of constitutional scholarship, the doctrine of the "Unitary Executive" is nothing more than the "Imperial Presidency" tarted up for the 21st century; nothing more than an elected King who serves a limited term.  Those who stand on the sidelines and help justify the unitary executive theory should go back and read their Madison, their Federalist Papers, and indeed the history of England from the Magna Carta onwards, with special attention to the English Civil War. 

But those of our elected and appointed officials who make it their business to adopt and implement the doctrine of the unitary executive are guilty of "high crimes and misdemeanors" against our Constitution.  And if we expect future Presidents to act within their Constitutional authority, and if we expect future Congresses to enforce that this occurs, then this Congress has only one option:  holding the current Administration accountable for their transgressions against the Constitution.  Accountability is what private contracts are all about; accountability is what the criminal justice system is about.  And accountability, at root, is what the Constitution is about:  the principle that no elected official is above the law, no elected official gets to simply disregard the rules, regardless of imminence of threat, seriousness of situation, or plausibility of justification.

The need for the remedy is clear.  The prospects for its success, however, are not. 

The reality is that impeachment proceedings will likely fail.  The House will be able to muster sufficient support for investigation if enough Americans demand it, and it’s possible that Articles of Impeachment could be laid against the President and Vice-President.  But the Senate will never muster a 2/3rds supermajority to convict and remove Bush and Cheney from office.

And the prospects for failure don’t matter.  Americans — not just Democrats — need to stop worrying so much about the inability to convict that we don’t even try.  And here’s why. 

Historically, nobody succeeds at impeaching and removing a President.  We have never yet succeeded in removing a President by impeachment, but in several cases the attempt has been sufficient to secure lasting benefits to our democracy and political process.  When articles of impeachment were submitted against Mr. Nixon for a vote, Nixon (urged by Goldwater and others) decided to resign.  Moreover, in the aftermath of Watergate, a great deal of legislation was passed to strengthen oversight of intelligence, campaign finance, and other areas which Nixon and previous Administrations had abused.  When Andrew Johnson was impeached, but not convicted in the Senate, the power of the southern states to resist ratification of the 14th Amendment (perhaps the most critical amendment in the Constitution beyond the original Bill of Rights) was broken. 

In other words, we will more than likely fail in the actual attempt to convict and remove Mr. Bush and Mr. Cheney from office.  But we would accomplish two very important goals.  First, we will signal to future administrations, of both parties, that Congress and the public stand ready and willing to police the unwarranted expansion of executive power.  We send the message that Presidents are servants of the Republic, the Republic isn’t the servant of the President.  Democrats, Republicans, independents, and libertarians can all agree on the importance of this political principle.  Second, the mere attempt to impeach will serve as a powerful "backstop" for a variety of lesser but more achievable reforms.  Legislation can be passed and reforms accomplished under the "penumbra" of the impeachment proceedings, perhaps that cannot be accomplished in normal politics today given campaign finance and powerful special interests. 

Both of these goals are quite separate from simple disapproval of policies, up to and including the Administration’s general foreign policy and national security stance (I say general stance since specific actions might be impeachable, even if the general policy is not).  Elections are designed to force policy change through the dissatisfaction of the citizenry.  Impeachments serve a different function:  defending the core principles of our Constitution, in a very public and visible way.

So regardless of our chances of ultimate conviction, fidelity to our own principles and the need to drive real, concrete reforms before a future administration treats the Bush years as a source of "useful precedents" demands that we undertake the attempt. 

In order to make impeachment proceedings happen, we need to do two things:  step up pressure on our Representatives and Senators, and educate everyone we know about why impeachment isn’t just "sour grapes" or being a "sore loser" — i.e., that impeachment isn’t about disagreeing with policy.  It’s about standing up and defending our rights, as the Founders did, and as they expected future generations to do as well whenever the situation demands.

NOTES:

(1)  I include treaty and international obligations under the rubric of "Federal law" since the Constitution explicitly defines these as the "law of the land," along with enactments of Congress.  The Bush Administration’s stance that our treaty obligations are, at best, advisory and can be set aside by the Commander-in-Chief is just one more example of a blatant twisting of the Constitution’s actual structure and dictates.

Marty Lederman, writing at Balkinization, analyzes the key ambiguities in the Senate version of the bill:

The key provision of S.1927 is new section 105A of FISA (see page 2), which categorically excludes from FISA’s requirements any and all "surveillance directed at a person reasonably believed to be located outside of the United States."

For surveillance to come within this exemption, there is no requirement that it be conducted outside the U.S.;no requirement that the person at whom it is "directed" be an agent of a foreign power or in any way connected to terrorism or other wrongdoing; and no requirement that the surveillance does not also encompass communications of U.S. persons. Indeed, if read literally, it would exclude from FISA any surveillance that is in some sense "directed" both at persons overseas and at persons in the U.S.

There are many aspects of electronic surveillance which present serious constitutional "grey" areas, and as a society we haven’t even begun to discuss these issues seriously.  But one issue is not grey, and I highlighted it in bold in Lederman’s analysis.  The Fourth Amendment requires that people (by which we can read "citizen" or "legal resident" although it’s not clear whether the Founders wished that distinction to be made) be immune from search (which now includes electronic search or surveillance) without a due process requirement that demonstrates the "reasonableness" of the search, which hundreds of years of Anglo-American legal tradition, American constitutional law, Congressional and state statute, and Federal case law says means probable cause, judicial consideration and issuance of warrants. 

Congress, in its second most spineless act in quite awhile (the Military Commissions Act and restriction of habeas corpus was worse), has ratified the Administration’s previous warrantless wrongdoings and gutted the Fourth Amendment in a wide variety of situations.  So why did a Congress cut the Judicial Branch out of the loop and give the Executive Branch the power not only to legally conduct surveillance on U.S. citizens, but also to be the arbiter of when it was acceptable to conduct such surveillance?

My guess is that Congress has shown yet again that the "potential attack on American soil" trump card works every time:  no rational discussion of threats and potential courses of action is possible when the opposing side can shout you down with the simple mention of 9/11.  The major challenge we face in American politics today is getting beyond sloganeering so we can have a rational national discussion about how we are conducting the defense of the Republic against criminal and military threats we face.  Congress will not do this by itself:  right now the 16 Democrats in the Senate (and others in the House) that voted for this unconstitutional bill likely did so because they’re afraid for their re-election prospects if they don’t vote to give the President every power he asks for, should something happen.

Instead, Congressional Democrats are going to try to tell us that the bill was a good compromise, that there’s an automatic 6 month "sunset" provision in the final version, that the "real" debate will happen this fall.  This is utter bullshit, meant to misdirect those who don’t read past the headlines.  Again, I strongly recommend Marty Lederman’s post this morning on Balkinization:

As several of our commenters have noted, the so-called six-month sunset provision of the "Protect America Act of 2007" is a bit of a ruse. Although section 6(c) provide that the operative provisions of the Act "shall cease to have effect 180 days after the date of the enactment of this Act," i.e., on February 1, 2008, there is an express exception in section 6(d), which reads as follows:

AUTHORIZATIONS IN EFFECT.—Authorizations for the acquisition of foreign intelligence information pursuant to the amendments made by this Act, and directives issued pursuant to such authorizations, shall remain in effect until their expiration. Such acquisitions shall be governed by the applicable provisions of such amendments and shall not be deemed to constitute electronic surveillance as that term is defined in section 101(f) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.

6 1801(f)).

Thus, "acquistions" authorized by Attorney General Gonzales will be permissible for one year, even if that period extends beyond the ostensible February 1, 2008 sunset date. I think it’s fair to assume that the Attorney General with authorize a system of such acquisitions on or close to February 1, 2008, which will mean that the warrantless surveillance can continue until . . . February 1, 2009, or twelve days after the next President is sworn in.

Lederman shows that the "six month sunset" has an escape hatch for Gonzales and the President:  anything they authorize right before the sunset will remain active and legal, unless Congress takes extraordinary action, through the end of the Bush Administration.  Congressional Democrats in both houses need to be pressured by their constituents to close this loophole when the sunset provision kicks in.

And lest you think that the Administration will only use this power in surveillance of actual terror suspects, think again.  They can’t just listen in on those phone calls, faxes, or emails, without watching everything.  Citizens traveling overseas and calling their families at home.  Citizens doing legitimate business with companies overseas.  For that matter, citizens calling somebody who works at the same company but an overseas office.  Citizens talking to foreign relatives.  Scientists publishing their work in the prestigious journal Nature.  None of these ordinary activities, once essentially private matters that the Fourth Amendment was designed to keep private from government interference, are protected anymore.

In fairness, I should note that this isn’t a new problem.  We all know that the NSA has been tasked with, and struggles to keep up with, the job of electronic intelligence gathering worldwide, and has done so for decades.  So the reality is that much of our telecommunications has always been an open book.  What has changed is that with barely any fight at all, Congress just gave away the store, betraying long-established and well-understood civil liberties.  And for what?  Because the secret FISA court wasn’t enough?  Wasn’t fast enough?  Turned down too many warrants?  The evidence shows exactly the opposite.  FISA rarely ever turned down a warrant request, and FISA judges were on-call and maintained secrecy about the proceedings of the court.  FISA worked, from everything we’ve been told — by everyone except the Administration itself.  And nobody, including Congress, really trusts them anymore. 

So the only apparent explanation is another epidemic of butt-covering by Congress.  The only way such behavior will stop is if voters penalize elected officials that go spineless on us.  No campaign funding, no "automatic" votes just because the candidate is a Democrat.  Make these folks sweat their re-election, not for the reasons they do today, but because THEY know that WE know they’re selling our constitutional freedoms down the river in return for not being targeted by Fox News and right-wing pundits.  There’s an epidemic in America today, where a free people are willingly embracing the most authoritarian, the most unamerican measures, simply because our national conversation is dominated by fear-mongering.  And the only way to stop the spread of this is to make it perfectly plain to political candidates the grounds on which we’re judging their performance.    

I hate to say it, because I think ideological libertarians get economics wrong (I’ve talked some about this in the past, but it’s another post to discuss in detail), but I’m starting to wonder whether a principled libertarian stance isn’t the right solution here, at least until we get back to a place where Americans and their government take civil liberties seriously.  I’ll be pulling for Ron Paul in the Republican straw poll in Iowa, because from where I sit, the whole rest of the Republican pack look like knee-jerk authoritarians to me, and on the Democratic front I’m pretty sure Hillary is the most hawkish and authoritarian of the bunch. 

Wouldn’t Barack Obama, a constitutional law professor, versus Ron Paul, an avowed civil libertarian, be an interesting match-up in the general election?  Paul doesn’t stand a chance, but at least the debates between them might actually have substance.

===

Warning for visitors to Orwell’s gravesite:  stay well back, as George is probably spinning pretty close to escape velocity by now.   

It seems clear to me that Rowling’s series will have an enduring place in both the fantasy and children’s canons, in much the same way that Tolkien does, and for many of the same reasons. Naysayers aside, Rowling has created a deeply imagined world, and although she may not have actually written a grammar for Parseltongue or endless volumes of back history notes, the world itself is rich enough to interest children and adults alike as long as the genre itself remains part of our shared cultural heritage.

Her legacy as more than fantasy, more than children’s literature, however, depends entirely upon the relevance of her themes to the concerns adults face in our society — as with so much literature. And I need to add that I discuss Rowling along these lines only because she herself appears to have invited such comparisons by writing a series rich in historical parallels; by writing a morality tale steeped in modern life.

As I finished Rowling’s final book in the series, I was reminded immediately of Richard Rorty’s commentary upon Orwell’s historical legacy:

Orwell’s best novels will be widely read only as long as we describe the politics of the twentieth century as Orwell did. How long that will be will depend on the contingencies of our political future: on what sort of people will be looking back on ours, on how events in the next century will reflect back on ours, on how people will describe the Bolshevik Revolution, the Cold War…..Someday this description of our century may come to seem blinkered or shortsighted….Our descendants will read him as we read Swift — with admiration for a man who served human liberty, but with little inclination to adopt his classification of political tendencies or his vocabulary of moral and political deliberation….In the forty years since Orwell wrote, as far as I can see, nobody has come up with a better way of setting out the political alternatives which confront us. Taking his earlier warnings against the greedy and stupid conservatives together with his warnings against the Communist oligarchs, his description of our political situation — of the dangers and options at hand — remains as useful as any we possess. (Richard Rorty, Contingency, Irony and Solidarity, pp. 169-170).

One need not have read the seventh and final book to understand the shape of Rowling’s allegory (but naturally, the force of it becomes much clearer as one sees the details of Voldemort’s return and rise to power). I do claim, though, that Rowling has done a superb job in describing a particular phenomenon: the ordinariness and mundanity of tyranny’s origins.

The Lord of the Rings may inspire us, and we may see in it the quintessential struggle between good and evil, but very little of Tolkien’s morality tale is of much use to us today. We simply do not describe modern life the way Tolkien did, and thus in Rorty’s words we read him as we read Swift. Rowling’s tale, on the other hand, was crafted precisely to describe us. The Wizarding world is palpably our own, with an overlay of magic — but even the magic is law-like and “ordinary” (i.e., wizards must work for basic necessities, and cannot simply conjure food or shelter).

Most importantly, over the course of the series, but especially from book 4 onwards, we are treated to a compressed history of 20th century absolutisms. Dark power has reigned in the past, but was conquered by an alliance of the good. Years later, people are tired of grand struggles and appear more than ready to dismiss all the signs of evil’s return. Vested interests combine with those who simply wish to protect their skins (e.g., the Malfoys), or are in denial (e.g., early Dolores Umbridge?) to wield the power of media, the state, and peer pressure to deny that anything is amiss. Those who preach vigilence against the return of evil are dismissed as fools or worse. Only a few are truly committed — either to evil or to fighting its return. And because most are simply seeking “the quiet life,” the actual battles, when fought, are the province of a tiny minority who fight on behalf of their different visions of society.

I’m not claiming that Rowling literally replays the history of the 20th century for us in the Harry Potter books. She doesn’t. But, at least to me, there are elements (especially in the final book, which I won’t spoil) which recall the Nuremburg Laws, Hitler’s rise to power, and to look for wider parallels, the search for “purity,” whether racial or national. Nor are the triumphs of the left ignored: Hermione’s long-standing crusade on behalf of house-elves (even more critical in the last book) mirrors the 20th century civil rights movements and its cultural offspring, with the message that democracy and freedom depend upon equality and inclusiveness. The latter point will sound like a bit of a stretch, until Book Seven.

Clearly it’s possible to read the Harry Potter series without hearing serious echoes of Kristallnacht. But for an adult, with basic familiarity with 20th century history, it seems difficult to read the series and ignore its essential point: our vulnerability comes from complacency and comfort, but so does our security, because only our relative abundance and our freedom of speech allows us to expand our moral universe to include those traditionally excluded: the Muggle-born, house-elves, goblins, and giants, and in our world, those of different colors, beliefs, and cultures.

Rowling has written the morality tale for modernity, and indeed likely for our “post-modern” century as well, because “evil” in our world tends to come in the same form as hers: the belief that purity — of one sort or another — is the cure for our dissatisfaction, and that diversity, hybridity, and difference are weakness. As long as we continue to describe our struggles and dangers in the same way, as long as those who seek to destroy liberal democracy (in the broadest sense of the term) do so in the name of a hypothetical, “pure” state of religion, culture, or race, we will still have much to learn from J.K. Rowling.