"The globalist billionaire who funded the woke transformation of Thomas Jefferson’s Monticello paid for a similar overhaul of James Madison’s house..."

"[B]lindsided tourists are hammered by high-tech exhibits about Madison’s slaves and current racial conflicts, thanks to a $10 million grant from left-leaning philanthropist David M. Rubenstein.... Visitors to Montpelier get to see just three rooms in the sprawling mansion.... Outdoors and in the house’s huge basement, dozens of interactive stations seek to draw a direct line between slavery, the Constitution, and the problems of African Americans today. 'A one hour Critical Race Theory experience disguised as a tour,' groused Mike Lapolla of Tulsa, Okla., after visiting last August. Hurricane Katrina flooding, the Ferguson riots, incarceration, and more all trace back to slavery, according to a 10-minute multi-screen video. Another exhibit damns every one of the nation’s first 18 presidents — even those, like John Adams and Abraham Lincoln, who never owned slaves — for having benefited from slavery in some way. The only in-depth material about the Constitution itself appears in a display that pushes the claim, championed by the controversial 1619 Project, that racism was the driving force behind the entire American political system.... Even the children’s section of the gift shop leans far left, with titles like 'Antiracist Baby' by Ibram X. Kendi and 'She Persisted' by Chelsea Clinton."

From "Founding father James Madison sidelined by woke history in his own home" (NY Post).

"[T]he framers believed that a republic— a thing of the people—would be more likely to enact just laws than a regime administered by a ruling class of largely unaccountable 'ministers.'"

Writes Neil Gorsuch, citing Federalist No. 11, concurring in yesterday's case, West Virginia v. EPA.

He continues:

From time to time, some have questioned that assessment.¹ 

That footnote goes to an attack on Woodrow Wilson (I've replaced the citiation with a hot link and added boldface):

For example, Woodrow Wilson famously argued that “popular sovereignty” “embarrasse[d]” the Nation because it made it harder to achieve “executive expertness.” The Study of Administration. In Wilson’s eyes, the mass of the people were “selfish, ignorant, timid, stubborn, or foolish.” He expressed even greater disdain for particular groups, defending “[t]he white men of the South” for “rid[ding] themselves, by fair means or foul, of the intolerable burden of governments sustained by the votes of ignorant [African-Americans].” He likewise denounced immigrants “from the south of Italy and men of the meaner sort out of Hungary and Poland,” who possessed “neither skill nor energy nor any initiative of quick intelligence.” To Wilson, our Republic “tr[ied] to do too much by vote.” 

Sometimes the Critical Race Theory comes from the right!

That's at page 4 of his opinion. At page 16, attack the dissent, he brings back Woodrow Wilson:

"Why the Past 10 Years of American Life Have Been Uniquely Stupid/It’s not just a phase."

A good headline... for a piece in The Atlantic by Jonathan Haidt.

Excerpt:

The notion that it's an unfair burden on the black students of Madison to attend a school with the name Madison on it.

One of our high schools here in Madison is called James Madison Memorial High School, and, because Madison owned slaves, the School Board set up a committee to change that name — the name of the school not the name of the city. 

Now, the Wisconsin State Journal reports on the 4 finalists in the naming process. Those behind the petition to change the name were pushing for Vel Phillips Memorial High School. Vel Phillips, a black woman, was successful in Wisconsin politics. But Vel Phillips Memorial High School is listed 3rd in the committee's ranking.

In first place is Bruce Dahmen Memorial High School. Who was Bruce Dahmen? He's a white man, so you might think that would exclude him. But he was the school's principal from 2004 until his death in 2014. I suppose we'll need to hear all about this man's character and reputation, including from those who are pumping for Vel Phillips. 

In second place is Memorial High School. Of all the effrontery! Just not honoring anyone at all! I like that solution. I've always heard the school called Memorial High School, and the other high schools here have neutral names — West High School and East High School. Memorial High School solves the stated problem — eliminating the recognition of James Madison. 

Hello, my "today name" is Addison.

In the comments to the previous post — which is about naming schools — I was just wondering: "Hey, what about all the little girls who've been named Madison in the last couple decades when it's been one of the most popular names? It's like calling your baby Slaveowner? What were you thinking?!!" 

Here's a place where you can type in your name and year of birth and find out what your name you would have today if you were given the name that is as popular now as your name was the year you were born. I get to be Addison. Not Madison. Screw that guy, lop off the M, and there you have it: Addison. There once was a girl named Addison/Who happened to live in Madison....

Actually, Madison seems to have become a girl's name as a consequence of a joke in the 1984 movie "Splash!" The mermaid-turned-human character suddenly needs a name for herself, looks up at the nearest street sign — this is in NYC — and says "Madison." Check the name calculator I linked to and you'll see. It's not a girl's name at all in 1983, appears for the first time in in 1984, and climbs year by year after that. 

Bonus fact: Mitch McConnell's full name is Addison Mitchell McConnell Jr.

No, not Austin. The real city that deserves the name Shed Legacy is my own city, Madison, Wisconsin!

On July 29th, you may remember, we saw the crazy fake news on Drudge:



"AUSTIN, TX CONSIDERS NAME CHANGE TO SHED LEGACY."

It was just an accidental ambiguity, of course. The proposed new name for Austin was not Shed Legacy, though it was funny to think about that. The idea was just that Austin should want to shed any names that are the legacy of slavery, such as the name of the city's found Stephen F. Austin. The article Drudge linked to didn't highlight any suggested new name, but I carried on about the silly idea of a town called Shed Legacy. What could possibly have happened to make Shed Legacy the right name for a town?

Lo and behold, I stumble across an article in my local alternative newspaper Isthmus: "Save a shed/Trachte buildings are a piece of Madison history. And they’re disappearing fast." This was published on July 26th, so it's certainly not a response to my musings. But check this out. Madison, Wisconsin has a shed legacy!

San Francisco has its Queen Anne Victorians, Portland its bungalows, Baltimore its rowhouses. And Madison has its Trachte buildings.

“They are uniquely Madison,” says Jim Draeger, architectural historian and state historic preservation officer of the Wisconsin Historical Society. “You see them outside of the city, but you see most of them right here in Madison.”

These steel-paneled, barrel-roofed sheds and work buildings have been a big part of defining Madison’s look, particularly on the near east side, for more than a century. They can be spotted across the city — in backyards as garages, along East Main Street and East Washington Avenues as businesses and factories, off Sycamore and Walsh streets and along Lexington and Fair Oaks Avenues as warehouses. They are a part of almost every Madison Gas and Electric substation....

... [T]he strong verticals with multiple horizontals paired with the softness of the rounded roof line... contrast[] beautifully with nature, from weeds to blossoming trees to blue skies with angelic white clouds. Rust, rips, the buildup of many years of paint — Trachte buildings, as they decay, are catnip for the sort of photographer who likes to capture urban decay, the kind of photos known as “ruin porn.”

They are “ephemeral architecture,” says [Jason Tish, former executive director of the Madison Trust for Historic Preservation.] “They’re not made to last for long periods of time, though many of them have proved to be remarkably durable.”

So we have what it takes to make Shed Legacy a proper name for this city. And, as with Austin, our city's current name carries the legacy of slavery:

By the early 1780s, the Madison family possessed well over one hundred slaves, and the Montpelier plantation had more slaves than any other in the county. Madison depended on slave labor to earn his income and admittedly felt financially “unable” to free the human beings he had legal title to. Thus both Madison and his neighbor Jefferson indicated that they could not afford to emancipate their black slave captives. Following the emergence of the anti-colonial movement for American independence and the democratic republican wave of humanist ideology, Madison professed to have developed a distaste for slavery. Like Jefferson and Washington, Madison indicated that he was searching for an alternative means of income that would allow him and his family to continue to enjoy a wealthy and privileged lifestyle. Madison contended, as did Jefferson, that slavery was on the road to gradual extinction on its own. Left alone it would eventually die.

Shed Legacy!

"Attorney General Jeff Sessions is being lambasted as the uncool parent in Washington, and maybe the universe..."

"... for rescinding an Obama Administration directive that decriminalized marijuana in states that have legalized the drug. But even if you're a legalizer, you should give the AG some credit for forcing a debate on the rule of law that Congress should settle.... [I]nstead of taking the cop-out of blaming Mr. Sessions, legalizers in Congress ought to have the courage of their convictions and try to decriminalize pot nationwide. Let Senators Cory Gardner and Kamala Harris persuade their colleagues that what's good for Colorado and California is good for the country."

Say the editors of The Wall Street Journal.

It's annoying that you can't read that without a subscription, but I've quoted enough to allow you to enjoy the subtle political snark that goes along with what is a good policy proposal.

It's too easy for liberals to take shots at Sessions. Let's see some leadership in Congress, where the real work needs to be done, and let's see it from Democrats who — we keep hearing — are presidential material.

Gardner and Harris currently represent people in states who've said — through their democratic process — that they want legalized marijuana, so let's see these Senators show what their leadership is made of. They don't have to be populists ,of course, and that's not the traditional view of what Senators are supposed to do.*

But I'd like to see journalists do what they are supposed to do and question Gardner and Harris about whether they will lead the way on this issue, and — if they won't — make them explain why they decline to give their people what they want.

___________________

* From Robert A. Caro's "Master of the Senate: The Years of Lyndon Johnson III" (pp. 7-8):

“The use of the Senate,” [James] Madison said, “is to consist in its proceeding with more coolness, with more system, and with more wisdom, than the popular branch.” It should, he said, be “an anchor against popular fluctuations.” He drew for parallels on classical history, which, he said, “informs us of no long-lived republic which had not a Senate.” In two of the three “long-lived” republics of antiquity, Sparta and Rome, and probably in the third— Carthage (about whose governmental institutions less was known)— senators served for life. “These examples … when compared with the fugitive and turbulent existence of other ancient republics, [are] very instructive proofs of the necessity of some institution that will blend stability with liberty.” Thomas Jefferson had been in Paris during the Convention, serving as minister to France. When he returned, he asked George Washington over breakfast why the President had agreed to a two-house Congress. According to a story that may be apocryphal, Washington replied with his own question: “Why did you pour your tea into that saucer?” And when Jefferson answered, “To cool it,” Washington said, “Just so. We pour House legislation into the senatorial saucer to cool it.” The resolution providing for a two-house Congress was agreed to by the Constitutional Convention with almost no debate or dissent. 

ADDED: Who the hell pours their tea into a saucer to cool it anymore? Speaking of uncool... We're drinking coffee. We like it hot. It comes in a mug. You don't get a saucer. And if you did, and you poured your hot beverage into the saucer and drank from the saucer, people would regard you as a lout.

I'm so enjoying rooting for Dershowitz in this ongoing Tribe vs. Dershowitz tweet fight.

And here's a new Dershowitz column, "Trump doesn't need to fire Mueller - here's why."

[A]ttacking Mueller may appear to be a win-win tactic for the [Trump legal] team – certainly a lot better than firing Mueller. Fortunately for the Trump team, Mueller has played into their hands by his sloppiness in conducting the investigation. He has been incautious with his choice of personnel – too many of them seem biased against Trump, not only by their backgrounds, but by their tweets and messages.... Moreover, the manner by which he acquired emails and other documents from the Trump transition team may raise some legal questions. The same may be true if he used the questionable dossier against Trump as a basis for securing warrants....

Mueller can improve his situation in several ways. First, he should appoint an ethics expert to advise him – a former judge who is beyond reproach. Names like George Mitchell, Louie Freeh, and Justice David Souter come to mind....

As James Madison wrote in Federalist 51 “Perhaps everyone will agree that if we were all angels, no state would be necessary, and if angels were the governors, they would require neither internal nor external constraints to ensure that they governed justly.” Neither the Trump team nor the Mueller team are angels. They are human beings with human limitations. But an investigation of a president must be as close to angelic as any human endeavor can be. Otherwise the public will not have confidence in the results.

Why I didn't blog Adam Liptak's "Donald Trump Could Threaten U.S. Rule of Law, Scholars Say."

I see that our longtime commenter Saint Croix put this in last night's Garage Door Café:

Interesting article in the NYT by Adam Liptak. "Donald Trump Could Threaten U.S. Rule of Law, Scholars Say." I read this and I go, no shit. It took you until June to figure this out? I guess only some lawyers are hot-tempered and Jeffersonian. "Be sure to wear a brown shirt so I know who to punch in our street brawls," is what I was saying, like nine months ago. I could have had a baby in the time it took Adam Liptak to figure out that Donald Trump could threaten the rule of law. Anyway, slow and methodical Adam Liptak is now helpfully pointing out to the citizens of the world that Donald Trump could threaten the rule of law.

I notice he only cites Republicans and libertarians in his article. That's one of my favorite rhetorical moves! Find somebody on the other side who agrees with you, and cite the shit out of them. If Al Sharpton ever said, "Obama is an ass," I'd be citing Al Sharpton as a smart thinker. "Even the Reverend Al Sharpton, who has studied the words of Christ, says that Obama is an ass." And all the judges would be going "point," except for the French guy going "touché."

Of course, I'd already seen and read the article. I read The New York Times. Does anyone blog NYT things more than I do? I chose not to blog it. First, every word of the headline annoyed me. That's not to say that I turn away from what annoys me. Quite the contrary.

In fact, an obvious riposte popped into my head immediately: All Presidents threaten the rule of law! That's supposed to cause you to understand the levels of my annoyance at the headline. I don't like the "could," since mere possibility is already built into the word "threaten." Any governmental power can be abused, so there is always a threat. Don't back off and portray the threat as mere potential. The threat is omnipresent.

Let me just quote James Madison, Federalist 51:

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

The other level of annoyance is, as my riposte makes clear, that the headline singles out Donald Trump. What about Barack Obama? What about Hillary Clinton? But I settled down and read Liptak's article and Obama's name did come up:

Republican officials have criticized Mr. Obama for what they have called his unconstitutional expansion of executive power. But some legal scholars who share that view say the problem under a President Trump would be worse.

“I don’t think he cares about separation of powers at all,” said Richard Epstein, a fellow at the Hoover Institution who also teaches at New York University and the University of Chicago.

President George W. Bush “often went beyond what he should have done,” Professor Epstein said. “I think Obama’s been much worse on that issue pretty consistently, and his underlings have been even more so. But I think Trump doesn’t even think there’s an issue to worry about. He just simply says whatever I want to do I will do.”

Mr. Trump has boasted that he will use Mr. Obama’s actions as precedent for his own expansive assertions of executive power.

So, I didn't blog it yesterday, but — prodded by Saint Croix — I still like my original gut-reaction snark: All Presidents threaten the rule of law!

The problem with "The Tolerant Jeweler Who Harbored an Impure Opinion of Same-Sex Marriage."

All Right, you've probably seen this Charles C.W. Cooke headline at The National Review for a story about a lesbian couple in Canada who ordered wedding rings and then wanted their money back when they found out the jeweler opposes same-sex marriage.

When the couple “found out what he really believed about same-sex marriage,” Dreher writes, they “balked, and demanded their money back — and the mob threatened the business if they didn’t yield.” Which is ultimately to say that White and Renouf sought to break their contract — not, you will note, because he was rude or because he failed to deliver on his promises, but because they made a window into his soul and they did not like what they saw — and then, when he objected, to subject him to bullying and to threats until he caved. Is that “tolerance”?

1. It's not breaking a contract to ask to be released from a deal. The very fact that Cooke added "sought" shows that "breaking" (like "breaching") is the wrong word. Parties to a contract can reach a new agreement, ending the deal. That doesn't break the contract. It rescinds the contract by mutual agreement.

2. Cooke leaves readers to think that the jeweler merely held an opinion — in his mind, in his soul — and people peered into that secret, personal space and took umbrage. But — click on the link in Cooke's article and get to the news story — the jeweler posted a sign in his store: "The sanctity of marriage is under attack. Let's keep marriage between a man and a woman." This sign was posted after they made the deal to buy the rings, and at that point they felt bad about having their rings — the rings that are highly symbolic to them — coming from that place. The jeweler displayed a message of disrespect to them and they objected.

3. What if a black person made a restaurant reservation and showed up to find racist posters on the wall but the maitre d' was perfectly polite and ready to seat him? Wouldn't you support the customer's request to be released from the reservation without having his card charged? If the restaurant had a policy of charging customers who don't follow through on reservations, that policy was clearly explained at the time of phone call making the reservation, and the restaurant insisted on charging, what would you think if the customer went on Facebook and told his story and got a lot of negative PR for the restaurant, hurting its business?

4. Businesses may choose (or be required) to provide service without discrimination against gay people, but that doesn't create a reciprocal obligation in consumers, requiring them not to take gay-friendliness into account at all. There's nothing hypocritical about expecting businesses not to discriminate against you and still, when choosing which business to patronize, selecting the one that you think really respects you and other people you care about.

5. "Toleration" is a good standard, but it's not the best. (You may remember that James Madison, participating in the drafting of the Virginia Declaration of Rights, changed the word "toleration" — written by George Mason — to "free exercise.") You wouldn't go to a party where the invitation said your presence would be tolerated. You'd feel bad about needing to accept a job offer that said you would be tolerated as an employee. If you have a choice of businesses to patronize, you might say: I don't give a damn what they really think of me as long as they're polite — I'll pick the one with the best product. Fine. That's you. But somebody else might say: As long as the products are pretty similar, I'm going to patronize the business that shares my politics (or my religion or my culture).

6. A jeweler who puts up signs expressing various religious messages is seeking the advantages to be gained by customers choosing businesses according to the politics/religion of the proprietor. He's stimulating the marketplace with the expression of opinion, getting some customers and losing others. Let's not pretend he's a humble little shopkeeper getting bullied by mean people who won't let him harbor thoughts deemed impure. When you speak, you might cause others not to like you and to want to avoid your business. That's part of free speech!

Founder foundering at CNN.

Here's the teaser in the sidebar...



... for a Jeffrey Toobin piece titled "Supreme Court faces new reality on marriage equality."

The picture is of James Madison, who died in 1836. The 14th Amendment, the source of the rights asserted in the same-sex marriage cases, was adopted in 1868. 

Toobin has nothing new to say on the subject of constitutional interpretation. He says things like:

[W]hen it comes to Supreme Court decisions, it is usually safe to bet that a majority of the justices will come down on the side favored by most of the public. In any case, as we head into the argument, it looks like most of the justices have already made up their minds.

The only real problem he sees with that is that "the justices have imperfect instincts when it comes to measuring public attitudes." Oh, come on. It's not about accurate measuring of public attitudes. It's about glomming onto the best attitudes of the educated, enlightened people (without running into too much resistance from ordinary people).

Toobin's column is utterly boring, but I only have something even more boring to say about the cases that are to be argued this morning: Precedent — the cases already decided — will determine the outcome.

"The Founding Fathers!: Those Horse-Ridin', Fiddle-Playin', Book-Readin', Gun-Totin' Gentlemen Who Started America."

That title and illustrations by Barry Blitt were enough to get me to put this book in my Kindle.

ADDED: This book is aimed (according to the publisher) at children in grades 2 to 5. I did a screen shot of a bit about James Madison to give you an idea of the style and attitude. (Click to enlarge.)



I picked Madison not because I'm a conlawprof or because I live in Madison but because — I see here — Madison was the "first president to wear long pants."

AND: In case you think Madison's owning a parrot was special, here's a website called "Presidential Parrots & Birds - A Brief History." Today I learned that Ulysses S. Grant had a parrot, Teddy Roosevelt had a parrot, Andrew Jackson had a parrot that he taught to swear, William McKinley had a parrot named "Washington Post," and George Washington had a parrot that he disliked.

"Defining constitutional deviancy down."

From the new David Brooks column titled "Obama in Winter":

Usually presidents at the end of their terms get less partisan, not more... Usually presidents with a new Congressional majority try to figure out if there is anything that the two branches can do together... But the White House has not privately engaged with Congress on the legislative areas where there could be agreement. Instead, the president has been superaggressive on the one topic sure to blow everything up: the executive order to rewrite the nation’s immigration laws.... Instead of a nation of laws, we could slowly devolve into a nation of diktats, with each president relying on and revoking different measures on the basis of unilateral power — creating unstable swings from one presidency to the next. If President Obama enacts this order on the transparently flimsy basis of 'prosecutorial discretion,' he’s inviting future presidents to use similarly flimsy criteria. Talk about defining constitutional deviancy down.

"Defining deviancy down" is a famous alliterative phrase — less alliterative with Brooks's extra word "constitutional" thrown in. It was coined by Daniel Patrick Moynihan in a 1993 article titled "Defining deviancy down," which, as Mickey Kaus once put it, "blames the left for treating mental illness and single motherhood as acceptable 'life styles.'" The deviancy in question was the private citizen's deviancy from social norms. It's a catchy way to decry the lowering of standards (similar to Bush's "soft bigotry of low expectations").

It's interesting to transfer "defining deviancy down" to the context of the behavior of Presidents within a constitutional system, and in fact the behavior of Presidents does influence the way courts later interpret the power of the President. As Justice Felix Frankfurter wrote long ago in a very significant case:

The Constitution is a framework for government. Therefore, the way the framework has consistently operated fairly establishes that it has operated according to its true nature. Deeply embedded traditional ways of conducting government cannot supplant the Constitution or legislation, but they give meaning to the words of a text or supply them. It is an inadmissibly narrow conception of American constitutional law to confine it to the words of the Constitution and to disregard the gloss which life has written upon them. In short, a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part of the structure of our government, may be treated as a gloss on "executive Power" vested in the President by § 1 of Art. II.

That proposition was warmly embraced in Justice Breyer's opinion for a majority of the Supreme Court in last term's case about the President's power to make recess appointments:

[T]e longstanding “practice of the government”...  can inform our determination of “what the law is”...

That principle is neither new nor controversial. As James Madison wrote, it “was foreseen at the birth of the Constitution, that difficulties and differences of opinion might occasionally arise in expounding terms & phrases necessarily used in such a charter . . . and that it might require a regular course of practice to liquidate & settle the meaning of some of them.” Letter to Spencer Roane (Sept. 2, 1819), in 8 Writings of James Madison 450 (G. Hunt ed. 1908). And our cases... show that this Court has treated practice as an important interpretive factor even when the nature or longevity of that practice is subject to dispute, and even when that practice began after the founding era. See Mistretta, supra, 400–401 (“While these [practices] spawned spirited discussion and frequent criticism, . . . ‘traditional ways of conducting government . . . give meaning’ to the Constitution” (quoting Youngstown, supra, at 610) (Frankfurter, J., concurring)); Regan, supra, at 684 (“[E]ven if the pre-1952 [practice] should be disregarded, congressional acquiescence in [a practice] since that time supports the President’s power to act here”); The Pocket Veto Case, supra, at 689–690 (postfounding practice is entitled to “great weight”); Grossman, supra, at 118–119 (postfounding practice “strongly sustains” a “construction” of the Constitution).

So Presidents really can define constitutional deviancy down. They can acquire power by claiming and using it, especially if Congress doesn't put up much of a fight.

"Whether on the right or the left, paranoid libertarianism... is marked by 5 defining characteristics."

Cass Sunstein describes the symptoms that distinguish the insane libertarians.

1. A "wildly exaggerated sense of risks — a belief that if government is engaging in certain action... it will inevitably use its authority so as to jeopardize civil liberties and perhaps democracy itself." I guess the key word there is "inevitably," or I just don't see what's wildly exaggerated about thinking something like, oh, say, NSA surveillance jeopardizes civil liberties.

2. A "presumption of bad faith on the part of government officials." It's the presuming that's nutty, right? I guess we're allowed to be skeptical of the government without looking crazy. Hey! I'm beginning to feel like Cass Sunstein is the government official and he's in bad faith, trying to make us feel that we're crazy if we suspect the government isn't really all about helping us.

3. A "sense of past, present or future victimization." Should I delete my comment at #2? To be safe? Or does the government already know that comment is there, will still see it even after I delete it, and will count the deletion itself as further evidence of my paranoia, when they decide to round up the paranoid libertarians.

4. The "belief that liberty... is the overriding if not the only value, and that it is unreasonable and weak to see relevant considerations on both sides." The sane people balance values on both sides.

5. The "passionate enthusiasm for slippery-slope arguments." The paranoids think if you let the government take "an apparently modest step today," it will do one more thing and then another, and tyranny lies ahead. Only a nut case would think it proper to take alarm at the first experiment on our liberties.

Is government an "impetuous vortex" or a "hideous monster [with] devouring jaws"?

Reading the Obamacare case in class preparation today, I notice those 2 metaphors, both taken from the Federalist Papers, both used in the process of saying that the Commerce Power doesn't support the requirement that everyone buy health insurance. "Impetuous vortex" — from The Federalist No. 48, written by James Madison — is quoted in  Chief Justice Roberts's opinion:

The Government’s theory [of the scope of the commerce power] would erode those limits, permitting Congress to reach beyond the natural extent of its authority, “everywhere extending the sphere of its activity and drawing all power into its impetuous vortex.”

The "hideous monster [with] devouring jaws" — written by Alexander Hamilton in The Federalist No. 33 — appears in Justice Scalia's opinion:

If Congress can reach out and command even those furthest removed from an interstate market to participate in the market, then the Commerce Clause becomes a font of unlimited power, or in Hamilton’s words, “the hideous monster whose devouring jaws... spare neither sex nor age, nor high nor low, nor sacred nor profane.” The Federalist No. 33, p. 202 (C. Rossiter ed. 1961).

Many have noted that Scalia (joined by Kennedy, Thomas, and Alito) did not join the Roberts opinion on the Commerce Clause, even though they said basically the same thing about it. Their spirit of resistance shows even through their choice of a different Federalist Paper with a different author and a different metaphor for government's voracious maw.

"How many of you all believe that there is a movement to take away the Second Amendment?"

Democratic Senator Joe Manchin asked a group of his supporters back home in West Virginia.

About half the hands in the room went up.

Despite his best attempts to reassure them — “I see no movement, no talk, no bills, no nothing” — they remained skeptical. “We give up our rights one piece at a time,” a banker named Charlie Houck told the senator.

That's the anecdote that leads off the NYT article "Democrats in Senate Confront Doubts at Home on Gun Laws." The article ends:

During the lunch, Mr. Manchin shared a recent conversation he had with Vice President Joseph R. Biden Jr., the Obama administration’s point person on gun control.

“I said, ‘Mr. Vice President, with all due respect, I don’t know how many people who truly believe that you would fight to protect their rights.’ ”

The senator added, “That’s what we’re dealing with.”

How are we to think about rights? It's good for politicians to hear the deeply engrained American attitude: We give up our rights one piece at a time. There's a long tradition — predating the Bill of Rights — of thinking like that. Here's James Madison in 1785:

[I]t is proper to take alarm at the first experiment on our liberties. We hold this prudent jealousy to be the first duty of Citizens, and one of the noblest characteristics of the late Revolution. The free men of America did not wait till usurped power had strengthened itself by exercise, and entangled the question in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle. We revere this lesson too much soon to forget it.

The issue there was not guns but the use of tax money to pay for teachers of religion. In the paragraph quoted above, Madison went on to say that citizens should object to the requirement of paying even "three pence" to support a religion because a government that extracts even that trifle may go on to coerce religious conformity. The small things are not small. The small things are where the people still have the capacity to fight authoritarian government.

Democrats know this. They are part of this American culture of deeply engrained belief in constitutional rights. What is different to the Democrats is that they don't believe that the right to keep and bear arms is a constitutional right. They think the Supreme Court misinterpreted the Second Amendment when it found a constitutional right. District of Columbia v. Heller was a 5 to 4 decision, and the 5 are the 5 Justices, still on the Court, whom the Democratic Senators would love to have a chance to replace.

The NYT portrays the folks back home in West Virginia as misinformed, troublesome, and hysterical. That’s what we’re dealing with.

"53% of American Adults agree that the United States is a nation with liberty and justice for all..."

Rasmussen learns.

Forty percent (40%) disagree and say the United States is not like that....

Still, 79% of Americans say that if they had a choice to live anywhere in the world, they would still choose to live in the United States. Just 11% disagree, while 10% more are undecided.

For the first time since 2006, more Americans now consider Thomas Jefferson the greatest Founding Father. Thirty-five percent (35%) name Jefferson, the chief author of the Declaration of Independence, as the most important Founder, while 32% feel that way about George Washington.  In a distant third is Benjamin Franklin with 11%, John Adams at 10% and James Madison with just one percent (1%). With the exception of Franklin, the others constitute the first four presidents of the United States.

Most Republicans (56%) and Democrats (58%) believe America is a nation with liberty and justice for all. Adults not affiliated with either political party are evenly divided on this question.

GOP voters are more likely to name Washington as the greatest Founding Father, while Democrats and unaffiliated voters lean more towards Jefferson.

America, love it or leave it. That's the old saying, popular with right-wingers back in the Vietnam era. There was a lefty response — what was it? — America, love it and change it? Something like that.

GOP voters are more likely to embrace the long American tradition and see it in a positive light. It's always been good, always exceptional. The City on a Hill. They pick George Washington.

Democratic voters are more the love it and change it type....



... and that tends to draw you to Jefferson, with the strong association to the revolution — to the Declaration — and not to the Constitution. He was in France when the Constitution was drafted, and his stay there continued until 1789, the year the French Revolution began.

Only after his return to America in 1789 did Jefferson's rhetoric about the revolution become more heated...

The execution of aristocrats by popular tribunals led to nervous arguments in America and Jefferson's famous letter on which he falls into arguing that the revolution's glorious ends justified apocalyptic means: "My own affections have been deeply wounded by some of the martyrs to the cause, but rather than it should have failed, I would have seen half the earth desolated. Were there but an Adam & Eve left in every country, & left free, it would be better than as it now is."...

When Jefferson wrote these words, he did not know that Louis XVI had been executed... By the end of the year... Jefferson concluded that the French people were not yet "virtuous" enough to accept a sudden republicanism after so many years of superstition and despotism and that Louis XVI could have been retained as a limited monarch, thus staving off "those enormities which demoralized the nations of the world, and destroyed, and is yet to destroy, millions and millions of its inhabitants."

What's your American orientation, Washington or Jefferson? Or will you give the 1-percenter his due? I mean James Madison. What would he have had to have done to get more than 1% in that poll?

"What would James Madison do if he was staring down a four-hour, closed book Constitutional Law final?"

"I mean besides, you know, not writing the Constitution. I like to think he would have just broken down and started destroying stuff rather than confront the reality of his own intellectual inadequacy and poor post-graduate educational decisions."

"The Constitution is the rules; politics is the game."

"The alternatives to organized political contention are anarchy or sheep-like passivity."

Richard Brookhiser speaks in one aphorism after another in this dialogue with Kathryn Jean Lopez about his new book about James Madison, "James Madison." (Buy it here. I just did.)

The headline on the interview is "Politics Is Madison," and I was delighted to see, that it wasn't about my crazy little city in the Midwest.

More from the interview:

LOPEZ: What accounts for Madison’s scorn for John Adams and his love for Thomas Jefferson? Does either man’s relationship with Madison provide essential insight into Adams or Jefferson?

BROOKHISER: Madison never spent much time with John Adams, and could not see beyond his obnoxious qualities to the good ones. Thomas Jefferson was the cool older brother Madison never had — brilliant, eloquent, quirky — but at the same time a fellow Virginian and an ideological soul mate....

LOPEZ: What might Madison think about Barack Obama?

BROOKHISER: Jefferson’s vices, without the charm.

"I’m sorry, your sexual choice is not a God-given right."

"You’re talking about a choice and you’re talking about elevating a choice to an inalienable right, which is impossible, you can’t, not under the definition of American documents.”

Said David Barton, as if choice and rights are unrelated concepts. The document in question is the Declaration of Independence:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

How can you understand liberty and the pursuit of happiness without seeing choice as a necessary part of the right? You are free to do — what? — only one thing? It is true that, in recent years, gay rights proponents have fixated on the idea that gay people have no choice in their sexual orientation, but their demand for rights has to do with letting people make their own choices about what to do with their preferences and desires. Those who oppose gay rights know that perfectly well: They predictably respond to the argument that sexual orientation is inborn and unchangeable by saying that sexual behavior is a choice.

If you don't believe sexual freedom is a fundamental right, think of some rights that you are fond of — freedom of religion, the right to bear arms, freedom of speech — and try to explain them devoid of choice. To focus particularly on religion: Do you think that the Founders saw religion as something apart from choice? Here's a famous American document, James Madison's Memorial and Remonstrance against Religious Assessment:

If "all men are by nature equally free and independent," [Virginia Declaration of Rights, art. 1] all men are to be considered as entering into Society on equal conditions; as relinquishing no more, and therefore retaining no less, one than another, of their natural rights. Above all are they to be considered as retaining an "equal title to the free exercise of Religion according to the dictates of Conscience." [Virginia Declaration of Rights, art. 16] Whilst we assert for ourselves a freedom to embrace, to profess and to observe the Religion which we believe to be of divine origin, we cannot deny an equal freedom to those whose minds have not yet yielded to the evidence which has convinced us. If this freedom be abused, it is an offence against God, not against man: To God, therefore, not to man, must an account of it be rendered.

That's all about choice, my friend.

ADDED: Barton presents himself as a Christian, so it's especially interesting that Madison relied, in part, on principles he found in the Christian religion itself:

[T]he Christian Religion itself... disavows a dependence on the powers of this world: it is a contradiction to fact; for it is known that this Religion both existed and flourished, not only without the support of human laws, but in spite of every opposition from them....