"In decades of covering campaigns, I’ve seen plenty of historical relics... But none of that prepared me for the morning last fall..."

"... when my dog was running around with her pack of neighborhood playmates, and my friend Ledge turned to me and asked a question so bizarre that for a moment I was sure I’d misheard him. 'Hey,' he said, 'did I tell you I have John Marshall’s gallstones?'... You can still visit Marshall’s house in Richmond, where any mention of a troubled urinary tract is conspicuously missing. I suppose someone who lived in a normal city, maybe Akron or Omaha, would have nervously laughed off Ledge’s question and started talking to someone else. But in Washington, where we practice what Abraham Lincoln called our 'political religion,' we cling to creepy totems, proof that the Founding Fathers and their celebrated successors once walked among the living...."

So begins "My neighbor found Lincoln’s hair in his basement. I found a mystery" by Matt Bai (WaPo).

You'll have to read the story, but it ends: "All that remained of the world of Aunt Judy and her parents was an unbearably sad legacy, and it had come to rest in his basement, where the easiest thing to do was to look away. We’re all collectors of something, whether we choose to be or not."

When Ketanji Brown Jackson said "Can I provide a definition? No. I can't... Not in this context I can't."

You can listen to the video here. Take note that the Republican National Committee Research gives us a distorted transcript, omitting key words and not using ellipses to show that there were omissions:

SEN. BLACKBURN: "Can you provide a definition of the word 'woman'?"

JACKSON: "No, I can't"

BLACKBURN: "You can't?"

JACKSON: "I'm not a biologist" pic.twitter.com/i7Rg83z5Y4

— RNC Research (@RNCResearch) March 23, 2022

"Can I provide a definition? No. I can't... Not in this context I can't."

I find these omissions quite deceptive, though the video is there, so the deceptions stare you in the face. I suspect that if you're rooting for the GOP here, you think this is a fabulous gotcha and you won't absorb what I'm about to say. If you're rooting for the Democrats, keep reading an you might find a new perspective on this troublesome clip that's delighting your antagonists.

Blackburn asked "Can you provide a definition of the word 'woman'?" And Jackson's response — listen to the video — stressed the word "provide": "Can I provide a definition?" Jackson shows a judicial temperament: Instead of jumping to giving an answer, she inspects the question, its precise wording. What does it mean to provide a definition? 

I know I'm restraining myself from looking up the words "provide" and "definition" and spending the next 10 minutes contemplating whether providing a definition of a word is substantially different from saying what a word means. And then, can you ever really say what a word means?

"It is emphatically the province and duty of the judicial department to say what the law is," wrote Justice John Marshall in Marbury v. Madison. "Those who apply the rule to particular cases, must of necessity expound and interpret that rule."

Judges say what words mean when they have particular cases — concrete disputes to resolve — that require the understanding of words. Their powers of understanding unfold within a real context. They don't — like a dictionary — yield instant definitions of words. They refrain from giving answers in the abstract. 

Thus, it was entirely appropriate for Jackson to expand with "Not in this context I can't." I think that means: As a judge, I wait until I am presented with a real dispute that can only be resolved by determining what the word "woman" means. What would that context be? 

If I'd been in the Jackson's position, I wouldn't have made myself vulnerable by saying "I can't," and I certainly wouldn't have laughed at Blackburn in a manner that can read as contemptuous. I'd have turned the questioning back on Blackburn: When would a real case depend on finding the meaning of that word? As a judge, I need a concrete and particularized dispute to resolve. I have no expertise in defining words outside of that judicial role. 

Jackson gestured at that when she said "I'm not a biologist." Would it have been better to say "I'm not a lexicographer"? Yes, because she was asked to "provide a definition." By saying "I'm not a biologist," she suggested that if she were confronted with a real case that depended on the meaning of "woman," the expert she'd most want to hear from is "a biologist." That might have disappointed some people on the left. Is there a whiff of transphobia?

Is there any Senator who would would want to follow up with a question like "Biologist?! You're saying that biology determines who is a woman and who isn't?" It never rose to that level of sophistication, but it's obvious to me that the right answer is: It would depend on the relevant facts and legal texts in the particular case or controversy before the court, and multiple areas of professional expertise may very well come into play.

Bear in mind: the "mead paw."

I've got "bear" in mind today, because I'm teaching District of Columbia v. Heller — the main case about the right to bear arms. I was looking up the word "bear" on the theory that it connected to the word "embarrass," which comes up in older constitutional law cases about the power of Congress, including McCulloch v. Maryland, also in today's assignment. When the people gave Congress its various powers, Chief Justice Marshall says in McCulloch, they couldn't have meant "to clog and embarrass its execution by withholding the most appropriate means."

But the "-bar-" in "embarrass" isn't like the "bear" in "bear arms." It comes from "baraço" which was the kind of cord or leash you'd use to restrain an animal — perhaps a bear. But the "bear" in "bear arms" is an extremely old root that has always referred to carrying a burden. "Bear," the animal, takes us somewhere else entirely, to the word "brown." Northern Europeans took to calling a bear "the brown one," disconnecting from the Latin "ursus" because — the theory goes — hunters had a taboo on saying the names of wild animals.

Wanting to know more about this taboo, I found a blog post that caught my eye because it inadvertently said the name of my husband: "'Mead Paw' the Original 'He-Who-Must-Not-Be-Named'":

... Bronze-Age hunters came to believe that using the bear’s true name allowed the animal to hear and comprehend the hunter. This would allow the bear to either elude the hunter or come seeking him, who would then become the hunted. The bear was the only really dangerous animal in the great Germanic forest, so to reduce this danger, men changed the rules....

In the Slavic lands, a similar taboo deformation resulted in the Russian name медведь (from *medu-ed) meaning ‘honey-eater’. This compares with our familiar Beowulf which literally means ‘Bee-wolf’ – an obvious poetic euphemism for Bear, in light of the bears notorious liking for honey. Beowulf is ‘bear-like’ in his great strength....

Of all the animals, the most sacred was the bear, whose real name was never uttered out loud. The bear (“karhu” in Finnish) was seen as the embodiment of the forefathers, and for this reason it was called by many euphemisms: “mesikämmen” (“mead-paw”), “otso” (“wide brow”), “kontio” (“dweller of the land”), “lakkapoika” (“cloudberry boy”).

That post proceeds the issues of not saying the name of God and the Harry Potter taboo on naming Lord Voldemort, but my mind wandered to the subject of Donald Trump. It was just 2 posts down that I was writing about an Andrew Sullivan essay, which I had searched for the word "Trump" and, finding nothing, praised for not mentioning Trump, and which I had to come back to and update when I realized that Sullivan was treating Trump as one who must not be named. It was right there in the one paragraph I'd excerpted: "a walking human Snapchat app of incoherence."

Suddenly, I realized that I'd started out doing the same thing. I would not accept the existence of Donald Trump as a candidate for President. Look at this post from June 16, 2015:

Look at that tag: Nothing! June 16th. I wouldn't say the name. That was this day:

50 years ago today: The Supreme Court announced its decision in Miranda v. Arizona.

That's how it looked on the front page of the NYT. Here's the Wikipedia article on Miranda:

Chief Justice Earl Warren, a former prosecutor, delivered the opinion of the Court, ruling that due to the coercive nature of the custodial interrogation by police (Warren cited several police training manuals which had not been provided in the arguments), no confession could be admissible under the Fifth Amendment self-incrimination clause and Sixth Amendment right to an attorney unless a suspect had been made aware of his rights and the suspect had then waived them:

The person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him.

In dissent, Justice John Marshall Harlan II wrote that "nothing in the letter or the spirit of the Constitution or in the precedents squares with the heavy-handed and one-sided action that is so precipitously taken by the Court in the name of fulfilling its constitutional responsibilities". Harlan closed his remarks by quoting former Justice Robert H. Jackson: "This Court is forever adding new stories to the temples of constitutional law, and the temples have a way of collapsing when one story too many is added."

But Miranda was a fine added story, and the temple held up pretty well.

(That other case on the NYT front page is important too: "Dissenters Fear Widening of Congressional Power." That was Katzenbach v. Morgan.)

"Will the G.O.P. Response to Antonin Scalia’s Death Hand the Election to the Democrats?"

Asks John Cassidy at The New Yorker, and you might wonder why the question doesn't work the other way too: Why not ask Will the Democratic Response to Antonin Scalia’s Death Hand the Election to the GOP?

The way I asked the questions yesterday was:

Will liberals overreach and show too much of a raging desire to control the Court and make it solidly liberal at long last, touching off a reaction among conservatives? Or will conservatives flare up with hostility to women's rights and gay rights and affirmative action and all the many issues that make them look too mean and ugly?

I gave some balance to it, a question for both parties, but you can see by the difference between my questions that the GOP is tempted in a different way, lured to move the social issues forward and alienate people. Like what happened back in the War of 2012, the War on Women.

But let's see why Cassidy thinks the GOP is exposed in a way that the Democrats are not. He's saying that political maneuvering to hold the nomination for the next President is an "apparent contravention of precedent and the U.S. Constitution." Nice use of the word "apparent" to avoid responsibility for an actual constitutional law interpretation.

But, really, does it matter what the Constitution means? (Especially now that Scalia is dead. It can mean whatever we need it to mean now. The bulwark is gone. Let creativity run wild.)

Just as Donald Trump wrings political energy out of saying that Ted Cruz is not a "natural born citizen," Democrats can get something out of saying Obama has the right to fill the vacancy. The President has a power to nominate new Justices, subject to the check of the Senate, which must confirm. It's balanced power, to be played out politically.

So what if the GOP-dominated Senate plays hard? Cassidy says it will "prompt" "outrage" "among Democrats and independent-minded Americans who dislike partisan warfare." The GOP "appears to be intent on hurtling into a deep pit." Obviously, Cassidy wants to scare the Republican Senators away from pushing back, checking the President's power with their own power, but you've got to play chess games looking ahead several moves.

The GOP will also say it's partisan politics, and this argument will be boosted by the usual claim that liberal Supreme Court Justices infuse their opinions with political preference that does not belong in constitutional interpretation. They'll celebrate their dead icon Scalia, whose method of interpretation will be presented as politically neutral and legally solid. We need another Justice like him, they will say. How terrible to allow Obama to install the 5th vote that achieves a liberal majority on the Court, they will say. Not only is the delay crucial, but the next President must be a conservative, they will say.

Cassidy says:

If the Republicans block the nomination without properly considering it, which also seems likely, a huge political row will ensue, enveloping the Presidential race....

Small wonder, some senior Democrats already appear to be dancing a jig. 

"Dancing a jig"?! Dancing on a man's grave? Is it not obvious how the GOP will respond? That was the basis of my question yesterday: "Will liberals overreach and show too much of a raging desire to control the Court and make it solidly liberal at long last, touching off a reaction among conservatives?"

The jig of raging desire is revolting to those who do not share the Democratic orientation.

ADDED: The title of this post is the title of Cassidy's essay that appears with the essay, but in the sidebar "Most Popular" list the title is "Will Scalia’s Death Boost the Democrats?" That's a much uglier image, depicting the dead body as a step stool. The Democrats are just hopping up on it. In the more sober title, the bad behavior comes from the Republicans and the Democrats stand by decorously, merely accepting what is handed to them.

AND: Here's the membership of the Senate Judiciary Committee, through which any nomination must pass. One notable face: Ted Cruz. What an opportunity for him to perform in The Theater of Proper Constitutional Interpretation. The GOP hold the majority and can calmly control the vote. The trick will be maintaining scrupulous dignity and veneration of constitutional principle. Expect Antonin Scalia to be canonized as the Saint of Constitutional Principle. The Democrats will not have him as their scary monster anymore. Dead, he's an angel. It will be hard to say his seat should be filled by someone unlike him.

That game has been played successfully: I'm thinking of the vicious fight that flared up when George H.W. Bush nominated Clarence Thomas to take the seat that Thurgood Marshall had vacated. That happened in 1991, with the presidential election a year away. Bush won that fight, even with a Democratic majority on the Judiciary Committee, but he proceeded to lose the election. Obama doesn't face reelection, so he can perhaps absorb the heat, and he has an opportunity to pick someone that will be very damaging for the other party to attack. I'm sure he's working on an exquisitely strategy.

ALSO: "Scalia's Grave-Dancers Deserve a Harsh Verdict," by Stephen Carter. 

Oliver Sacks has died.

We knew he was dying. He wrote about it. (Eloquently, as always.) But it's very sad to see that he has departed. He gave us so many fascinating books over the decades. What a terrible loss!

Here's the NYT obituary, which — amid the good — includes the criticism:

Dr. Sacks began his medical career as a researcher but gave up early.... “I lost samples,” he told an interviewer in 2005. “I broke machines. Finally they said to me: ‘Sacks, you’re a menace. Get out. Go see patients. They matter less.’ ”...

Reviewers [of his books] praised his empathy and his graceful prose. Scientists could be dismissive, however, complaining that his clinical tales put too much emphasis on the tales and not enough on the clinical. A London neuroscientist, Ray Dolan, told The Guardian in 2005: “Whether Dr. Sacks has provided any scientific insights into the neurological conditions he has written about in his numerous books is open to question. I have always felt uncomfortable about this side of this work, and especially the tendency for Dr. Sacks to be an ever-present dramatis persona.”

In an otherwise laudatory review of “The Man Who Mistook His Wife for a Hat” in The New York Times Book Review, the neuropsychologist John C. Marshall took issue with what he saw as Dr. Sacks’s faux-naïve presentation (“He would have us believe that an experienced neurologist could fail to have read anything about many of the standard syndromes”), and called his blend of medicine and philosophy “insightful, compassionate, moving and, on occasion, simply infuriating.”

More damningly, the disability-rights activist Tom Shakespeare accused Dr. Sacks of exploiting the people he wrote about, calling him “the man who mistook his patients for a literary career.”

ADDED: "I feel grateful that I have been granted nine years of good health and productivity since the original diagnosis, but now I am face to face with dying.... I cannot pretend I am without fear. But my predominant feeling is one of gratitude. I have loved and been loved; I have been given much and I have given something in return; I have read and traveled and thought and written. I have had an intercourse with the world, the special intercourse of writers and readers...."

"The very idea of cooking up opinions in conclave begets suspicions," said President Thomas Jefferson, criticizing the Supreme Court.

Quoted in a New Yorker article (by Jill Lepore) about the theft of 1000+ pages of the Felix Frankfurter papers from the Library of Congress. Context:

The secrecy surrounding the U.S. Supreme Court derives from a policy set by the fourth Chief Justice, John Marshall, who wanted the Court to issue single, unanimous decisions and to conceal all evidence of disagreement. His critics considered this policy to be incompatible with a government accountable to the people. "The very idea of cooking up opinions in conclave begets suspicions," Thomas Jefferson complained. This criticism has never entirely quieted, but every time things get noisy the Court simply brazens it out. To historians and journalists who are keen to have the Court’s papers saved and unsealed, advocates of judicial secrecy insist that the ordinary claims of history and of public interest do not apply to the papers of U.S. Supreme Court Justices; the only claim on the Justices is justice itself.

Jefferson is suspicious of the very device that makes the Court look politically neutral and bound by the strictures of legal analysis.

By the way, I like Lepore's use of the verb "to brazen it out." "Brazen" means "Made of brass" — literally or figuratively — including "Hardened in effrontery; shameless." The OED has, among its quotes for the adjective "brazen," the Jonathan Swift poem "An Epistle to Mr. Gay" (1731)

I knew a brazen minister of state,
Who bore for twice ten years the public hate.
In every mouth the question most in vogue
Was, when will they turn out this odious rogue? 

The verb "to brazen out" means "to face impudently or as with a face of brass." We see this usage in John Arbuthnot's 1712 work: "Lewis Baboon turned honest, and John Bull politician. Being the fourth part of Law is a bottomless-pit":

"When I us'd to reprimand him for his Tricks, he would talk saucily, lye, and brazen it out, as if he had done nothing amiss. Will nothing cure thee of thy Pranks Nic. (quoth I?) I shall be forced, some time or another, to chastise thee... After I have beggar'd myself with his troublesome Law-Suit..."

This is a book about a lawsuit, presented as a metaphor for war. "Lewis Baboon" = the king of France, Louis Bourbon. John Bull = England:



Looks a little like Scalia, no?

In the context of the (arguably) destroyed IRS email, let's revisit an old question: Why didn't Richard Nixon destroy the Watergate tapes?

I've taught the Watergate Tapes case — United States v. Nixon — for 20 years, and I think I always include what I believe is a central question about that case and about law more generally: Why didn't Richard Nixon destroy the Watergate tapes?

Nixon had possession of the tapes, and no physical force prevented his people from starting an "accidental" fire or causing a chance encounter with magnets... Yeah, bitch, magnets....



Here's the description in the book "The Brethren" of how Nixon reacted to the news of the Supreme Court's decision:

His Chief of Staff, Alexander M. Haig, told him that the Supreme Court decision had just come down. Nixon had seriously contemplated not complying if he lost, or merely turning over excerpts of the tapes or edited transcripts. He had counted on there being some exception for national security matters, and at least one dissent. He had hoped there would be some “air” in the opinion. 

“Unanimous?” Nixon guessed.

“Unanimous,” Haig said. “There is no air in it at all.”

“None at all?” Nixon asked.

“It’s tight as a drum.”

After a few hours spent complaining to his aides about the Court and the Justices, Nixon decided that he had no choice but to comply. Seventeen days later, he resigned.

So, why didn't Richard Nixon destroy the Watergate tapes? 3 ideas for an answer:

1. Nixon was part of the American culture of the rule of law that had grown and deepened over the years. We were long past the days when Andrew Jackson (supposedly) said: "John Marshall has made his decision; now let him enforce it!" This is the answer I've always liked, and I can see that if I like it too much I'm falling prey to the age-old human foible of believing what you want to believe.

2. Nixon knew that if he said the tapes were destroyed, no one would accept any attempt to explain it away as a mishap, and he'd be impeached forthwith. It was nothing other than the best self-serving political move he could make at that point.

3. Nixon was, in fact, a fool not to destroy the tapes.

"I had bad advice, bad advice from well-intentioned lawyers who had sort of a cockeyed notion that I would be destroying evidence," Nixon said years later in a videotaped interview. "I should have destroyed them."

Let's compare the IRS email story. There are some differences:

1. Nixon was more hated and people weren't apt to cut him any slack, and Obama, whatever he does, is relentlessly liked.

2. The press was bearing down hard on Nixon — "They're after me! The president. They hate my guts. That's what they're after." — and the press is ever ready to give Obama a boost.

3. Nixon seemed tricky and shifty, unlike Obama, whose lies seem less... lie-like.

4. Tapes are bigger, bulkier objects, and email is evanescent.

5. Nixon, actually, at some level, felt shame about transgressing what another branch of government says is the law, and Obama has great confidence in asserting his view of the law and sticking to it. 

6. The Watergate scandal was about unlawful actions intended to help reelect the President, and... oh, wait... that's not a difference.

An artsy-fartsy photo project lifts the lid on that "Death" box in your psyche, almost causes me to start another new blog, and gets us back to how John met Yoko.

"Philip Seymour Hoffman looks chillingly vacant in this tintype photo he posed for at the Sundance Film Festival on Jan. 19, just two weeks before his death Sunday from an apparent heroin overdose."

I had noticed that set of Sundance tintypes — here, at Esquire — but I'd passed on blogging it because it seemed artsy-fartsy. I like the one of Sam Shepard. That takes advantage of the effect nicely. (The movement of the subject causes the hair to resemble a white bird in flight.)

The Philip Seymour Hoffman one is among the best in the group, but how can you separate the old-timey artsy-fartsiness from all of your emotions in that box in your head labeled "Death" that this picture now opens?

But wasn't that the artsy-fartsy idea of doing tintypes in the first place — to take people alive today and position them in a past so long ago that they all look like people who must certainly now be dead and to plunge us into an angsty state of awareness that all of the pictures of ourselves and everyone we now love will some day be pictures of the dead?

Lawprof sues law school claiming failure to accommodate his depression and Asperger’s syndrome.

Joel Cornwell, who's taught at The John Marshall Law School in Chicago since 1985, bases his claim on the Americans With Disabilities Act. The school — calling his behavior "disrespectful, intimidating and insubordinate" — suspended him from teaching and barred him from campus. He says the school is "stereotyping and harassing him, creating a hostile work environment" and explains the incidents in terms of his disability, which makes it hard for him to read "nonverbal cues" in social interactions.

"We have no relation to Mr. Snowden, his relations with the American justice or his travel around the world."

"He chooses his route himself, and we have learned about it from the media," said Russia's foreign minister Sergey Lavrov.

"We consider the attempts to accuse Russia of violation of U.S. laws and even some sort of conspiracy, which on top of all that are accompanied by threats, as absolutely ungrounded and unacceptable," Lavrov said. "There are no legal grounds for such conduct of U.S. officials, and we proceed from that."

I think back to what Michael Haz wrote in the comments to yesterday's Edward Snowden post:

Mr. Snowden, his computers and everything stored in his brain are now in possession of the KGB. He will now fully understand the meaning of the word 'disappeared'.

The press, the Department of State and Barack Obama have all been played for the rubes they are by Vladimir Putin. And there is nothing any of them can do about it. The amateurs have met the pro, and the pro won, then erased all tracks.

Meanwhile, 20 or so reporters were thrown way off the track as they happily enclosed themselves in a Snowdenless, Cuba-bound metal tube for 12 hours. What newsless meditations did they hammer out for publication? The New Yorker's John Cassidy lambasted the on-the-tube, not-in-the-tube newsmediafolk like David Gregory who, he asserts, have demonized Edward Snowden:

Snowden took classified documents from his employer, which surely broke the law. But his real crime was confirming that the intelligence agencies, despite their strenuous public denials, have been accumulating vast amounts of personal data from the American public. The puzzle is why so many media commentators continue to toe the official line. About the best explanation I’ve seen came from Josh Marshall, the founder of T.P.M., who has been one of Snowden’s critics. In a post that followed the first wave of stories, Marshall wrote, “At the end of the day, for all its faults, the U.S. military is the armed force of a political community I identify with and a government I support. I’m not a bystander to it. I’m implicated in what it does and I feel I have a responsibility and a right to a say, albeit just a minuscule one, in what it does.”

In the end, for all its faults... Marshall's going all last-paragraph-of-"1984." ("O cruel, needless misunderstanding! O stubborn, self-willed exile from the loving breast! Two gin-scented tears trickled down the sides of his nose. But it was all right, everything was all right, the struggle was finished. He had won the victory over himself. He loved Big Brother.") Except... Marshall never resisted.

Back to Cassidy:

I suspect that many Washington journalists, especially the types who go on Sunday talk shows, feel the way Marshall does, but perhaps don’t have his level of self-awareness. It’s not just a matter of defending the Obama Administration, although there’s probably a bit of that. 

Oh, just a tad. Probably! But...

It’s something deeper, which has to do with attitudes toward authority. Proud of their craft and good at what they do, successful journalists like to think of themselves as fiercely independent. 

Like to... but trapped on Aeroflot flight to Cuba, you start noticing your lack of independence. And those journalists who didn't get bamboozled into your lamentable predicament look so enragingly smug.

It’s not surprising that some of them share Marshall’s view of Snowden as “some young guy I’ve never heard of before who espouses a political philosophy I don’t agree with and is now seeking refuge abroad for breaking the law.”

A political philosophy I don’t agree with.... What is that? Resistance to big government? Cassidy — who says — he's "with Snowden" because he's "the underdog" — ends with "Which side are you on?" which is the title of an old union song. Here's Pete Seeger singing it. Bob Dylan repurposed it in "Desolation Row":

Praise be to Nero’s Neptune
The Titanic sails at dawn
And everybody’s shouting
“Which Side Are You On?”

Unlike the Titanic, the Aeroflot flight reached its destination uneventfully.

All these people that you mention
Yes, I know them, they’re quite lame
I had to rearrange their faces
And give them all another name

"Katzenbach finally interrupted and said he knew about the Constitution, but a man could be a damn fool and be constitutional."

From David Halberstam's "The Best and the Brightest" (p. 345), reporting what the Attorney General Nicholas Katzenbach said when Secretary of State Dean Rusk, not wanting to pressure LBJ about Vietnam, "gave Katzenbach a long dissertation on the constitutional prerogatives of the President."

Nicholas Katzenbach died yesterday. He was 90.

Romney needs to be more like McCain... Obama supporters insist.

Isn't it funny, this "treason" incident? Obama supporters everywhere are chastising Romney and holding up McCain as the exemplar of how to respond to overstatements about Obama:

A backer introduced Romney by slamming President Obama for taking credit for the killing of Osama bin Laden, comparing Obama to Ronald McDonald. And when a woman said Obama should be tried for treason, Romney didn't disagree and asked the woman to follow up her question.

Later, when asked by reporters about the treason comment, Romney said he did not believe the president should be tried.

But by then, the moment was already being compared unfavorably to Sen. John McCain's handling of a similar situation during his 2008 run against Obama.

When a woman said she couldn't trust Obama because "he's an Arab," McCain responded immediately and forcefully: "No, ma'am. He's a decent family man, citizen, that I just happen to have disagreements with on fundamental issues, and that's what this campaign is all about."

That was awfully nice of McCain, but let's remember he lost. And I think I remember him having a rather exaggerated fear of criticizing Obama. Now, I think McCain had some reason to worry that people in the audience would say something racist or arguably racist or somewhat racial and that anything like that would be exploited by the Obama campaign. But at this point in American history, 4 years later, we are free to criticize Obama. Romney doesn't need to go all beta when an audience member states her antagonism to Obama in a strong way. He doesn't need to scold and discipline Obama's antagonists. Romney's approach to answering the question asked was just fine, though it is perfectly understandable why the Obama campaign would like Romney to get sidetracked into defending Obama.

***

Do you remember the 1964 book "None Dare Call It Treason"?



John A. Stormer's polemic sold 7 million copies in its day. Here's Daniel Pipes reviewing the "25 Years Later" republication, in 1991:

Arguing that the United States had been betrayed by its elite, it is a classic in what Hannah Arendt has called "backstairs political literature." Surprisingly for the genre, it did not contain the usual virulent animosity toward Catholics, Jews, and the like; rather, it blamed communist sympathizers. Nor did it unambiguously point to a plan: "Is there a conspiratorial plan to destroy the United States into which foreign add, planned inflation, distortion of treaty-making powers and disarmament all fit?" Stormer went no further than to resort to a metaphor about the pieces all fitting, whether planned by communists or not.

The "treason" label has a venerable tradition. Anyone who has taught Constitutional Law — like me or the President of the United States — is familiar with the way Chief Justice John Marshall used it in Cohens v. Virginia: to express the wrongness of exceeding the bounds of the Constitution:

It is most true that this Court will not take jurisdiction if it should not; but it is equally true that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the Constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given than to usurp that which is not given. The one or the other would be treason to the Constitution.

With Marshall's great example, the word treason belongs in the American tradition of free political speech.

IN THE COMMENTS: Bryan C reminds us of an even earlier venerable use of the word treason in American history. Patrick Henry said: "If this be treason, make the most of it." The country was founded on treason. We celebrate the treason we like.

"Are you serious?" — a constitutional law argument in the Bowers v. Hardwick tradition.

On Monday, I took Josh Marshall (and Nancy Pelosi) to task for resorting to constitutional argument by laughter. They were addressing the "individual mandate" — the federal law requiring private citizens to buy health insurance, which a federal judge said is beyond the reach of Congress's enumerated powers. In my post, I chided liberals and lefties about using their own sense of ridiculousness as a legal argument because "There was a time when people laughed at the idea of gay rights."

An emailer reminds me of the precise language that appeared in the Supreme Court's case that ruled that states could criminalize homosexual sodomy. In Bowers v. Harwick, Justice Byron White (a JFK appointee) wrote for the majority:

Proscriptions against that conduct have ancient roots.... In 1868, when the Fourteenth Amendment was ratified, all but 5 of the 37 States in the Union had criminal sodomy laws. In fact, until 1961, all 50 States outlawed sodomy, and today, States and the District of Columbia continue to provide criminal penalties for sodomy performed in private and between consenting adults.... Against this background, to claim that a right to engage in such conduct is "deeply rooted in this Nation's history and tradition" or "implicit in the concept of ordered liberty" is, at best, facetious.

When Bowers was reversed 17 years later, in Lawrence v. Texas. Justice Scalia — the liberals' least (or second-least) favorite Justice — saw fit to quote those words in his dissenting opinion.

My emailer was James Taranto, author of the Wall Street Journal's "Best of the Web," which quoted my blog post yesterday and said:

We recall a conversation with a young liberal lawyer we met at an event in late March, a few days after the House passed ObamaCare. When we pointed out that there were likely to be court challenges to the new law, particularly the mandate to purchase insurance, she was dismissive. She asserted that the constitutional questions were well settled. When we offered arguments to the contrary, she did not engage them but became emphatic to the point of belligerence, insisting that it was "crazy" to harbor any doubts about the constitutionality of ObamaCare.

Our position was not that ObamaCare was clearly unconstitutional or that it was likely to be struck down, merely that there were serious constitutional arguments against it that had some possibility of prevailing. This modest claim so shocked our new acquaintance that an initially pleasant encounter turned rancorous and left us feeling she had insulted our intelligence....

Well, you'll feel better if you dance like Fred Astaire:



Here's Fred with the words to the Gershwins' "They All Laughed."

They all laughed at Rockefeller Center
Now they're fighting to get in
They all laughed at Whitney
and his cotton gin
They all laughed Fulton and his steamboat
Hershey and his chocolate bar
Ford and his Lizzie
Kept the laughers busy
That's how people are
They laughed at me wanting you
Said it would be, "Hello, Goodbye."
But oh, you came through
Now they're eating humble pie

But speaking of Robert Fulton and his steamboat, and who gets the last laugh, Fulton was a famous loser in the most famous Commerce Clause case of them all, Gibbons v. Ogden, and Fulton was on the side that argued for the narrow interpretation of Congress's enumerated power.  Chief Justice John Marshall laid down the broad interpretation:

This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution.... [T]he sovereignty of Congress, though limited to specified objects, is plenary as to those objects....

The wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections are, in this as in many other instances, as that, for example, of declaring war, the sole restraints on which they have relied to secure them from its abuse.

This is the beginning of the line of expansive interpretation of the Commerce Clause that the proponents of health care reform will rely on as they take their case up on appeal to the 4th Circuit and, presumably, to the Supreme Court. We'll see who's dancing and who's eating humble pie then.

"The Top 100 Influential Figures in American History."

I'm going to click through all this, beginning with Herman Melville at #100 — he's "the American Shakespeare." Come with me. #99 is Nixon! Why's Nixon only 99? I know. He's ugly. And we hate him. Have to click to 86 to get to the first woman. It's Mary Baker Eddy, who, of course, influenced health care reform. Another lady at 81. It's Margaret Mead, famous for being had by 3d world pranksters. Nothing more American than that. A woman at 77: Betty Friedan. I never read her book. I thought it was for my parents' generation. My — my my my — generation transcended sex roles. We were star dust, we were golden.

Frank Lloyd Wright is 76. Architects may come and architects may go, and never change your point of view. Not Frank. He'd sock you in the head with a low-hanging roof as soon as look at you. He was from Wisconsin. That's important. So was Georgia O'Keeffe, who might be on this list. She's a woman, you know. 20 bonus points for being a woman? Here's Jane Addams at 64. Another woman. And I, your humble female blogger, would like to register a complaint against my high school speech teacher who rejected my proposal to do a speech on the topic of Jane Addams. He said she wasn't important enough. I used to want to be a social worker.

Oliver Wendell Holmes Jr. is 53. The only judge so far. Another woman at 51: Margaret Sanger. (A "thoroughgoing racist" says Jonah Goldberg.) Not too many Presidents. After Nixon, you have to wait until #44 for another President. It's Lyndon Johnson. I call him "LBJ." Works better in rhyming chants. LOL! It's Eleanor Roosevelt at #42. "She used the first lady’s office and the mass media to become 'first lady of the world.'" Women playing the media to focus attention on themselves. Yeah, I guess that's a big deal in American culture. She's responsible for that? All right then. 

Harriet Beecher Stowe. #41. The power of novels. Rachel Carson is #39. She saved the eagles... and the mosquitoes. Susan B. Anthony is 38. Elizabeth Cady Stanton is #30. Women's rights. Earl Warren is 29. A second judge. Eisenhower is 28. A third President. Eli Whitney deserves to be 27: "His gin made cotton king and sustained an empire for slavery."

John Adams at 25? Come on? Is HBO/David McCullough the arbiter of history? But yeah, he was President. Truman is 21. A 5th President. Man, get a David McCullough biography about you to cement your historical importance. Andrew Jackson is 18. A 6th President. Reagan's 17. That's 7. Theodore Roosevelt is 15. The 8th Prez on the list, and the 2d of what I predict will be 3 Roosevelts. James Madison is 13. The 9th President, a Founding Father. Ulysses S. Grant gets to be 12. A 10th Prez. And he won the war. Woodrow Wilson is #10 and the 11th President on the list. Martin Luther King Jr. is only #8. John Marshall is #7, the 3d judge. Ben Franklin is 6, deservedly. Another Founder at 5: Alexander Hamilton. FDR snags #4 and is the 12th President on the list. Jefferson is #3, so you know who ##1 and 2 are. And Lincoln beats Washington for the top spot. A total of 15 Presidents.

The final count for women was 10. 10 out of 100. (I think.) Fair enough. I'm not going to say there should have been more. If they'd counted femaleness as a plus factor, they'd have had to "plus-factor" a lot of other groups, and they didn't. Not one Native American?! That's politically incorrect.

ADDED: Actually there were a couple more Presidents, Polk and John Quincy Adams. I'm noticing this leaning over Meade's shoulder as he clicks through. Sorry. My effort was studiously haphazard.

"We are not planning on investigating individual bloggers."

Oh, good. You're not planning...

I'm so relieved.

"We’re not interested in playing gotcha in the gray areas."

Not yet. But once the law is on the books, will you never feel tempted? Nothing will motivate you to venture into the gray?

IN THE COMMENTS: Meade said:

As Chief Justice John Marshall might have remarked, "the power to [call 'gray' 'black & white'] involves the power to destroy."

Very, very apt...

But don't go to law school.

How Dahlia Lithwick would like you to think about Supreme Court appointments: liberal = moderate, conservative = extreme.

Dahlia Lithwick has this new piece about the kind of Justices we might expect Barack Obama to appoint to U.S. Supreme Court:

The prospect of a liberal slot on the court being filled by a liberal president has some liberals dreaming big—as was evidenced in a piece last weekend, by Adam Liptak, asking whether President Obama should appoint someone "who by historical standards is a full-throated liberal, a lion like Justice William J. Brennan Jr. or Justice Thurgood Marshall?"...[

[Liberals tend to grouse] that there is no left-wing counterpart for Justice Antonin Scalia.... [The complain that the] court's liberals are just not very persuasive.... [that they] lack a revelatory constitutional vision.... [and that they lack fervor].....

If, then, we're totting up all the qualities the current court's liberals ostensibly lack, we'd need to blend boldness with passion and persuasiveness with volume and then hope the next candidate also comes with some sort of just-add-water Sweeping Constitutional Vision kit....

My own guess is that moderate, centrist Barack Obama is unlikely to name any such creature to the high court, even if she did exist, and that we need to yank our wish list out from under the enormous shadow cast by Antonin Scalia, William Brennan, and Thurgood Marshall, anyhow. Yes, they are forces of nature, and the court is a better place for having each of them. But pining for a liberal Scalia isn't the way to push the Roberts Court into the future. The day of the lions may be ending at the court. And that might not be a terrible thing.

So Lithwick's read of Obama is that he's a centrist, and he's not going to give us The Scalia of the Left/The Resurrection of William O. Douglas.

Now, here's Lithwick just about exactly one year ago, talking about what sort of Supreme Court Justice John McCain would be likely to inflict on us:

[The conservative legal movement is] a multifaceted organizational and institutional structure that has become the only game in town. Despite some missteps, today's conservative legal movement has become as powerful as it is through coordinated and careful effort.

The practical upshot is that when McCain constructs his legal team, he will have just one institutional framework from which to pick—the same movement conservatives that produced Roberts and Alito.... [And] McCain has already agreed to fall in line....

I wrote at the time that that didn't make sense to me:

McCain has embraced the generality of a conservative judge, but within that category, there will always be an array of judicial minds. Once he is elected, he'll be choosing from that array, and it remains fair to wonder whether he will pick more flexible pragmatic judges like O'Connor and Kennedy.

In fact, I think that is the line he probably perceived between Roberts and Alito... [McCain had seemed to express a preference for Roberts over Alito.] I think people at the time did see a distinction like that, and even if McCain doesn't have a deep, lawyerly knowledge of law, he very well may have heard talk that Alito was more of an ideological conservative and Roberts had a instinct toward moderation and consensus.

What's striking me now is the difference between the way Lithwick thought about Obama and the way she thought about McCain. What can account for it other than a preference that she has for a strong liberal judge? Why is it that Obama is seen as having centrist, pragmatic inclinations and McCain was not? I can't help thinking Lithwick is running interference for some very liberal nominee to come. She has a strategy to portray that person as actually a moderate, someone to whom fair-minded conservatives should not object. But when faced with McCain, back when the presidency was still up for grabs, she had reason to scare readers that McCain would appoint a hardcore conservative.

You know, it's not just Dahlia Lithwick. This is the stock argument that you hear again and again from people who want the Supreme Court to move to the left: liberal = moderate, conservative = extreme. I'm just writing this up as a blog post because I happened to run across that old McCain item on the same day I read the Obama thing. Usually, I just sigh and think, yeah, that again.

***

By the way, did you know there have only been 2 Supreme Court Justices named Henry? The first was Henry Baldwin (1780 - 1844), appointed by Andrew Jackson:

Baldwin found himself at odds with the dominant personalities on the Court he joined, especially Joseph Story. Within a year of his appointment, Baldwin expressed the wish to resign. He missed an entire Term due to illness; and, a mental condition progressively disabled him....

Baldwin wrote almost nothing of interest for the Court on the Constitution...

He appeared to suffer from occasional bouts of mental illness that made him obstreperous and even offensive to others. He did not get along with his fellow justices; and he was violent and ungovernable on the bench in his last years.

Well, that didn't go very well!

The other Henry was Henry Billings Brown (1836 - 1913), appointed by Benjamin Harrison:

Brown authored in excess of 450 majority opinions during his years on the Court....

Brown will probably be forever marked by a single opinion he authored for a majority: Plessy v. Ferguson....

Ah, my... Things did not go well for the Justice Henrys.

Blagojevich: "They’re just hanging me. They’re hanging the 12 million people of Illinois who twice have elected a governor."

Are the impeachment proceedings fair?

Lawmakers say they sought guidance from the impeachment trials of President Bill Clinton in 1999 and Gov. Evan Mecham of Arizona in 1988, and the Senate procedures will be largely modeled on those used in Mr. Clinton’s trial. Chief Justice Thomas R. Fitzgerald of the State Supreme Court will preside, though senators, serving as judges and jurors, can choose to vote down rulings they disagree with. Hearsay is allowed. The standard of proof is essentially up to each senator to decide....

Among those scheduled to appear as witnesses for the prosecution next week are state representatives who were members of the impeachment committee.....

“I found it stunning,” said Ann M. Lousin, a law professor at the John Marshall Law School and an expert on the Illinois Constitution. “What are the legislators from the House going to say they know personally?”

Complicating the impeachment trial is the ongoing investigation of federal prosecutors here. At least one federal agent is expected to testify at the trial, but others connected to the criminal accusations are not. One Senate rule bars witnesses from being subpoenaed if federal prosecutors believe it might compromise their case, a fact Mr. Blagojevich complained bitterly about to reporters on Friday.

Though he has filed no request for witnesses, the governor said he wished to call a long list of people who were not permitted to be called by the rules, including Rahm Emanuel, the president’s chief of staff; Valerie Jarrett, an Obama senior adviser; and governors of other states who would testify, he said, to his upstanding behavior.

Josh Marshall cannot believe what John Hinderaker wrote.

Link to Marshall (who misspells Hinderaker -- think rake, Josh, not rack). Here's the quote:

Obama thinks he is a good talker, but he is often undisciplined when he speaks. He needs to understand that as President, his words will be scrutinized and will have impact whether he intends it or not. In this regard, President Bush is an excellent model; Obama should take a lesson from his example. Bush never gets sloppy when he is speaking publicly. He chooses his words with care and precision, which is why his style sometimes seems halting. In the eight years he has been President, it is remarkable how few gaffes or verbal blunders he has committed. If Obama doesn't raise his standards, he will exceed Bush's total before he is inaugurated.

Political stories I'd blog if I felt more like it.

1. Obama wants to bankrupt to bankrupt the coal industry (and the SF Chronicle sat on the audiotape).

2. Josh Marshall slurs Joe the Plumber as "Joe the Skinhead."

3. Jonah Goldberg pretend-looks back on the Obama presidency -- his "precipitous fall from would-be messiah, to near pariah."

4. "We’ve got to have a civilian national security force..."

5. Sarah Palin receives a (Canadian) prank call.

6. Old radical rag referred to community organizing and had a circular logo.

7. Fred Thompson speaks for John McCain, and John Kerry speaks for Barack Obama. Both do a nice job.

8. Another Senatorial candidate files a defamation lawsuit. The matter in dispute: godlessness.

9. Instapundit had more traffic in September than in October. Me too. Political fever peaks in September. By October, we're just trying to make it to the end.

10. And now, it's November, and this list hits the round number 10. The feeling is: Let it end!