Centerfield

This attitude that you either support the war or you’re a RINO is very troubling. Republicans won’t have a hope in ’08 if they don’t get beyond blind allegiance to the mistakes of the Bush administration.

Republicans would do better to return to their traditional message of smaller government and individual liberty, than the tangent they’ve followed lately.

Posted by: Michael Smith at August 23, 2006 11:22 AM

I don't think you have that right, BK. McCain is a, "George W. Bush," that cares what the people think and doesn't just threaten people with, "Cut and Run." He'd actually take the American people through events in Iraq, and be more forthcoming. To that extent, I think he would comfort any moderate, "Lieberman," Democrats who had a problem with the anti-war tendencies of the Democratic party.

As for the RINO charge, that one may be leveled at McCain for his domestic agenda, but on the Iraq war McCain is more likely to add troops and effort. Given the degree to which even Neo-Cons think Bush has gotten soft, McCain is likely to be heralded as the , Can-do," guy.

This is the ONE area where McCain CAN'T be called a RINO.

Posted by: Cavalier829 at August 23, 2006 11:29 AM

Michael,

Thanks for posting. Interesting mix of positions. I'd have to say I agree with you on many, disagree with you on a few.

Would you term yourself a Goldwater Conservative? For me, such a term is wonderfully redundant as Sen. Goldwater set the agenda for the GOP for 40 years. We forget that the 1964 fight for the GOP nomination had a greater impact than his fateful loss to that no-class THUG Lyndon Baines Johnson whom we may partly credit for the gutter quality of today's politics.

Certainly your stress on the Constitutional pre-eminence of States and localities in terms of social policy is one we have almost entirely left. Repeal the income tax? I agree with that, too.

One thing I would council is not to let the more strident element claim the space to your right. They're the liberals in the race, NOT you. The party can be reclaimed for smaller governent, but you have to stay on the offensive in the primaries. The very definition of conservative is on the line in 2008.

Good Luck to you.

Posted by: Cavalier829 at August 23, 2006 11:53 AM

What dont I have the right to do Cav? You haven't made that clear enough for me to respond.

My point is that I know that there's a component of the GOP that's already convinced that McCain is a RINO, and among such folk, my impression is that the issue seems to be just as often about loyalty as about positions.

I don't think McCain deserves all such beatings, but I know that sometimes "deserve's got nothing to do with it."

I hope McCain IS heralded. That's what I'm doing, but will that occur within the GOP as well? Perhaps. We'll see.

Posted by: bk at August 23, 2006 11:56 AM

No, no, BK.

You misread me. I'm saying I don't agree with your assessment. I should say I don't think you have that Correct.

Posted by: Cavalier829 at August 23, 2006 12:02 PM

It will be interesting to see, BK, how Rudy Giuliani positions himself on the War. Whether he can get to the Right of McCain the way some pollsters think he can. McCain is definatively to the Right of him on the social issues, but do Republican primary voters see the Vietnam War hero as the greater Hawk or the Mayor of 9-11?

I think Rudy is perhaps McCain's biggest challenge.

As for McCain's criticisms, I don't know that they amount to challenging the President in a manner that detracts from the War. It would be one thing if McCain was challenging the wiretaps, but criticism of Guantanamo is something quite short of that. Criticism of the prosecution of the War. Another take on it's effectiveness. But not one inch a slow-down from where we are today.

Posted by: Cavalier829 at August 23, 2006 12:17 PM

And I guess I'm also saying that the questioning of President Bush's prosecution of the War has gotten enough criticism from some of its pundit authors that McCain would have cover from unfriendly political fire.

Posted by: Cavalier829 at August 23, 2006 12:26 PM

What does any of you think about the possibility (or probability) of Giuliani (eventually) running as VP on McCain's ticket. Given McCain's and Giuliani's respective ages, that would seem like an approach that could capture the center for the GOP for some time to come. I also think that VP experience would be helpful for Giuliani in future runs at the presidency. It's now or never for McCain, but not for Giuliani. Any thoughts?

Posted by: WHQ at August 23, 2006 02:11 PM

Brian,

My guess is that this has little to do with trolling for votes, and that McCain is giving a preview of things to come during his Administration, should we choose to accept him-- a President who is going to ask our society to get more involved in the Iraq War (and indeed the Long War in general), to understand what a significant and demanding challenge it really is, and that the nation as a whole should be making sacrifices in order to serve the effort.

One of the things that Andy Krepinevich noted was that, while visiting the Army's Command and General Staff College, when a colleague mentioned that "America is at war," the audience immediately retorted "America isn't at war-- the Army is at war; America is at the mall!" Almost alone in Washington, Senator McCain has understood this frustration -- his May 2004 confrontation with Dennis Hastert over tax cuts and sacrifices being one such example.

So I don't see this so much as a departure from the President and/or an opening to assault his loyalty to the GOP (although, in the 2004 exchange with Hastert, the Speaker apparently did "question whether he is really a member of Bush's party"). I see this much more as a continuation of what he has been saying and doing for quite some time.

Now for the record, I'm not sure that tax cuts were necessarily a bad idea-- Eisenhower would have phrased it as something like during this long war ahead of us, we will only prevail if we can sustain long-term vibrant economic growth-- but I do believe that the Bush Administration has done a substandard job engaging the population in the Iraq War, and that we need to do a lot more to get Americans involved and rallied behind our effort if we're going to leverage the tremendous social, cultural, and economic power in helping the moderate Muslims defeat Islamist jihad.

I only hope that it's not too late, and that the anti-war opinion doesn't unthinkingly crowd out better positions and better alternatives.

Posted by: Bobby at August 23, 2006 02:18 PM

Cav,

Thanks for taking a look. I haven’t really considered myself a “Goldwater Conservative” but that comparison might have some validity. I wrote on that subject just the other day and struggled a bit with the “Extremist,” “Conservative,” and “Moderate” distinctions. In fact, I closed that post with a reference to Goldwater.

I think there’s room for us all to carry strong convictions on principles, yet strive for moderation in the tone of the debate. In recent years the two Parties have both seen their time in the majority as a mandate to have their way with the government; their time in the minority as a duty to obstruct wherever possible. It would be nice if they both prioritized their duty to Constitutional governance, and viewed their time at the steering wheel as a privilege to navigate toward common goals.

Posted by: Michael Smith at August 23, 2006 02:47 PM

In recent years the two Parties have both seen their time in the majority as a mandate to have their way with the government; their time in the minority as a duty to obstruct wherever possible. It would be nice if they both prioritized their duty to Constitutional governance, and viewed their time at the steering wheel as a privilege to navigate toward common goals.

Hear hear!

Posted by: Bobby at August 23, 2006 02:56 PM

Sure thing, Michael, and I'll be listening to what you have to say on 2008 as thing progress. Personally, I think it's a make or break election for some of the principles you espouse.

I agree with what you say about having a more civil tone to our politics, but I wish the liberals shared that conviction. I don't expect you to respond to this post necessarily; some of us tend to get a little long in the tooth around here, myself included. BUT, I will just say that given the way these campaigns are fought out I would suggest you fight the primary from the Right (as you might define it) and then work on the civil tone with the Left in the General. I think Republicans could use a dose of their own medicine, which is to say we talk about how indecent the Democrats and their rhetoric can be, then we allow our own rhetoric to go out of control because we can't seem to respond without getting personal. It seems to me there is a way to do this and come out looking like the better man (or woman, as the case may be).

I'll take a look at your post and comment, in a bit.

Posted by: Cavalier829 at August 23, 2006 03:06 PM

Bobby,

You've got me wondering if I'm an even poorer communicator than Pat's recent blasts have suggested...

I agree with what you say. I don't think McCain's doing this to troll for votes either. I'm just saying that I worry that such statements aren't going to help his cause.

And I also agree that it's not a departure from what Bush has said, it's more a matter of McCain saying that Bush has not led as vocally or as seriously as he should have.

I hope I AM wrong and that McCain's statements don't lead to reflexive defenses of President Bush and rejection of McCain. In fact, I'll be greatly consoled by whoever seconds McCain's views on this. As someone who has more respect for McCain than many other politicians, I know that a vocal contingent of GOP partisans revels in calling McCain a rino. That disturbs me, but then I tend to like iconclasts where partisans value loyalty to ideology.

I do believe that the Bush Administration has done a substandard job engaging the population in the Iraq War, and that we need to do a lot more to get Americans involved and rallied behind our effort if we're going to leverage the tremendous social, cultural, and economic power in helping the moderate Muslims defeat Islamist jihad.

Me too, Bobby. Me too. Lest my statements elsewhere confuse or confound you, let me say that I still want us to succeed in Iraq. When I recently said that some centrists are worried about current events and contemplating lowering expectations, what I left out was my personal view, which is that EVEN IF circumstances suggest we must lower our sights, we have a responsibility to do much more than simply bail for the sake of our expedience.

I'm not convinced yet that we have to lower our sights, but then my sights were never especially high...Iraq's not going to be America's twin, is it? I'd settle for "look, he's got our eyes, but oh, he has Allah's nose." You know what I mean?

But I am deeply concerned about the current trends in public opinion. As I've been trying to express these concerns about what people think here, i continually run the risk that some readers will leap to the assumption that I share these views or that I think they are right. That's not the case. I just worry that if public opinion turns any more strongly against our efforts, failure will become a fait accompli regardless of the merits.

It's unpleasant to entertain the notion that having the facts on your side may not be enough, that opiniuon can carry the day even if it's iuniformed or wrong, but there it is. It happens.

Posted by: bk at August 23, 2006 03:13 PM

Brian,

Actually, the poor communicator would be me. I didn't mean to imply that you thought he was simply trolling for votes-- I was just responding to the notion that this position might de facto lose him votes, since Democrats won't feel it goes far enough and Bushites will feel it is a rejection. My sense is that he probably knows this, and probably doesn't care (during the 2000 campaign, he had a confrontation with his handlers who disapproved of him saying something like "I have grown from a young man into an old man in service to my country"-- they felt it emphasized that he was over the hill and would cost him some appeal. He said it anyway).

I hope I AM wrong and that McCain's statements don't lead to reflexive defenses of President Bush and rejection of McCain. In fact, I'll be greatly consoled by whoever seconds McCain's views on this.

Well, there's always the sycophants for whom anything less than reverential worship is seen as being tantamount to apostasy. But I think McCain merely has to convince most Republicans that the distance between his position-- staying the course, but implementing different tactics to get us to victory-- and the President's is FAR shorter than the gap between McCain and the probable (likely anti-warish) Democratic nominee. George Seifert, for example, embraced Bill Walsh's West Coast offense and guided the San Francisco 49ers to two Super Bowl victories-- much more continuing the legacy than, say, Steve Mariucci.

But I am deeply concerned about the current trends in public opinion. As I've been trying to express these concerns about what people think here, i continually run the risk that some readers will leap to the assumption that I share these views or that I think they are right. That's not the case. I just worry that if public opinion turns any more strongly against our efforts, failure will become a fait accompli regardless of the merits.

And I agree with you. The Administration chose to execute this war nearly in isolation from the American public-- a strategy that might have actually worked had different tactics (perhaps something like the Downing Plan) been implemented. Instead, we got something of a hybrid effort, and once the immediate victory proved elusive, casualties started to mount, the insurgent bombs started going off in markets and mosques, and Americans came to believe they were getting little return on their investment... Well, support turned against the War, and public pressure is mounting to end our involvement in Iraq, regardless of the consequences (and many have deluded themselves into thinking that there will be no consequences and that this remains a "war of choice"). That's my fear as well.

Having said that, I still maintain (as I have all along) that the best course for the future would downsize the Coalition's conventional footprint, while heavily increasing the number of US advisors embedded within the Iraqi security forces. Paired with Provincial Reconstruction Teams (which are a natural conduit to channel American soft power into the country) enhancing and improving the Iraqi political and administrative institutions, my sense is that we could extend the sustainability of the operation and probably better achieve our objectives. Unfortunately, this isn't the kind of reflexive anti-war position that many of the Democrats demand (i.e., set a timetable and withdraw our troops along that timeline, regardless of our conditions on the ground), and is unlikely to be a vote-getter.

Posted by: Bobby at August 23, 2006 03:41 PM

Michael, just as a follow-up...

I especially like what you wrote about citizenship, and I think that was quite right. We need everyone to be committed to a sense of shared destiny, even if we don't share the same views.

But I don't think I can stress enough that in dealing with the Religious Right it will be important for you to deal from a position of strength, not compromise. They've got the Party at the moment and as decent and reasonable as you are, they're only going to see your argument as an afront to their monopoly on the dialogue.
Don't try to start one. With THEM anyway.
It's not in their interest.

I've always thought social policy Federalism was a fantastic idea, a salve for the Center-Right conflict within the GOP over such things as Abortion and Gay Rights, and also a credential for a limited-government conservative. I refer you to the attempt to pass a Constitutional amendment defining marriage at the Federal level, when they could have proposed one that allowed the states to decide for themselves without being bound by the decisions of other states, on this question.

Whether you disagree with the second avenue or not, the point is, these folks just didn't respect the Constitution in doing what they were trying to do here: reducing the State's role in social policy.

One last thought. One aspect of conservatism that has been absent (and whatever positions you hold it would behoove you to call it that in the campaign, even if you chose to hyphenate it: eg. citizen-conservatism, as President Bush did with his Compassionate-Conservatism) from the dialogue is the anti-establishment, anti-government aspect. The trend, lately, has been towards holding the voters accountable to their elected-leaders, when we need to get back to them being accountable to us. By stressing the out-of-touch nature of the party I think you'd tap into a resevoir that's not only been ignored lately, but, I think, even denigrated by the party.

I'd be an insurgent.

Just a few thoughts as you campaign. Good luck.

Posted by: Cavalier829 at August 23, 2006 03:57 PM

Iran Another something McCain is probably reading.

Smaller government and individual liberty? Kind of late for that now, isn't it?

Posted by: Maxtrue at August 23, 2006 04:28 PM

I refer you to the attempt to pass a Constitutional amendment defining marriage at the Federal level, when they could have proposed one that allowed the states to decide for themselves without being bound by the decisions of other states, on this question.

That's not quite correct, although it's getting there. You're correct that they could have done it another way: what they could have done is to pass a constitutional amendment that explicitly reserved the right to define marriage to the people; although I would argue that that is explicitly already done by the Tenth Amendment, the legitimate concern is that a liberal judge will decide that some other provision of the Constitution trumps the Tenth Amendment and deprives states and their populations of the right to define marriage at the state level. Equally, your proposed solution seems to propose a solution to a problem that doesn't exist: the full faith and credit clause does not require other states to recognize a marriage performed by another state, so an amendment exempting marriage from that would be seeking a remedy for a non-existent problem. But again, the problem becomes, what happens when a Federal judge decides that marriage is a fundamental right that cannot be regulated by the states or Federal government?

My problem with the FMA is that it sort to explicitly define marriage at the Federal level, and I object to that on Federalism grounds: the fewer issues are in the Federal remit, the better. If the Congress had proposed a wording which simply made it explicit that the definition is entirely at the discretion of the states -- or better yet, stepped up to the plate and started impeaching activist judges -- I would have supported that change, albeit without real enthusiasm. I think it's kind of lamentable that we even have to be having such a debate over an issue already explicitly addressed by the Constitution as already amended, but that's just where we are.

Posted by: Simon at August 23, 2006 04:33 PM

"the full faith and credit clause does not require other states to recognize a marriage performed by another state, so an amendment exempting marriage from that would be seeking a emedy for a non-existent problem."

Is that the current understanding of the Courts, Simon, or is that you assessment of the Constitution in Exile. As I understand it, if you're married in one state, your married in all. Otherwise, why would the Religious Right be working overtime to get some kind of Constitutional amendment?

But I hear your point in that the main focus was to prevent judges from finding in some other clause the right to marriage.

The problem with the ninth and tenth amendments is that there is so much more verbage in the Constitution defining the powers of the Federal Government than defining those of the states. Add the necessary and proper clause and it doesn't seem like there is much of anything left out that isn't simply an interpretation rather than some kind of explicit assertion.

One reason why perhaps the Founders were counting on a Senate elected by the legislatures to select judges respectful of Federalism.
My understanding was that the Founders saw the States as the main guarantors of the People's rights. So to reserve a power to the people was to reserve it to the individual states.

Posted by: Cavalier829 at August 23, 2006 05:40 PM

Cav:
You're absolutely right that the Senate was originally designed as the primary bulwark against Federal infringement on state prerogatives, and that bulwark was meant to extend not only to the selection of judges, but primarily to the passage of laws. The unbalancing of the federal system is one of several reasons I advocate, in practical effect, the repeal of the Seventeenth Amendment.

Re the full faith and credit clause, jurisprudence other than of a recent vintage has accepted the public policy exception:

[T]here are some limitations upon the extent to which a state may be required by the full faith and credit clause to enforce even the judgment of another state in contravention of its own statutes or policy. And in the case of statutes, the extrastate effect of which Congress has not prescribed, as it may under the constitutional provision, we think the conclusion is unavoidable that the full faith and credit clause does not require one state to substitute for its own statute, applicable to persons and events within it, the conflicting statute of another state, even though that statute is of controlling force in the courts of the state of its enactment with respect to the same persons and events.

Pacific Employers Ins. Co. v. Industrial Accident Comm'n, 306 U.S. 493 (1939) (emphasis added; citations omitted); see also Milwaukee County v. M. E. White Co., 296 U.S. 268 (1935) ("consistently with the full-faith and credit clause there may be limits to the extent to which the policy of one state, in many respects sovereign, may be subordinated to the policy of another"). There is a paper on SSRN that explains this point at considerable length, but SSRN are doing something with their website that prevents me from finding it right now. Posted by: Simon at August 23, 2006 05:59 PM

States do NOT have to recognize any marriage made in another state that would be banned under their laws. That simple. If you want emulate Jerry Lee Lewis and marry your 12 year old first cousin, fine and dandy if your state permits it. But the state next door with a 16 year minimum and cousin-marryin' bans doesn't have to recognize it, and can prosecute you for statutory rape or and/or consanguinatal incest if you move there with your child bride. Which Simon said, just not very directly.

Posted by: Tully at August 23, 2006 06:35 PM

O.k., good to know, Simon.

A few questions regarding your amendment:

1)Why is it necessary or helpful to have a second clause declaring a candidate ineligible if the 1st clause indicates, "No person...?"

2)What is the purpose of paragraph 4? To prevent a President from serving longer than eight years should they serve less than two of another's? I must say, though, I do like the idea of preventing V.P.s from running for President from that office. No appointed Presidents, thank you very much.

and

3) if control of a legislature is split between two parties wouldn't one of the houses simply decline to sit knowing their number in the other body would outvote them?

What do you think of having a joint session nominate two candidates by a vote of 1/3 each of the total body and have them run in the general or special election? Granted a nominee might be considered invaluable to a party's re-election effort, but in turn that might the nomination of more modest Senators. In any case, Senators would still be foolhardy to flaunt the legislature, especially when an additional 3rd, at least, of its members were superfluous to the previous nomination?

Posted by: Cavalier829 at August 23, 2006 06:48 PM

It's perhaps also worth adding that the power of the Federal government - which includes the Federal judiciary - to void a state's laws, or to prohibit a state from making certain laws, must flow from a power delegated to the Federal government in the Constitution. That is, a state cannot make a law of class explicitly forbidden by the Constitution, or that infringes upon an area delegated to Congress' management, or which abridges a freedom that the Constitution has given the Federal government the power to enforce against the states. Although we aren't accustomed to thinking of it in such terms, the flipside of declaring rights is granting the power to abrogate or enforce them, and per the Fourteenth Amendment ("No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States"), in my view, the Federal judiciary was empowered to strike down acts of the state which abridge the freedoms guaranteed by the bill of rights).

"The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite," The Federalist No. 45; that is, all which is not surrendered is retained by the authority which delegates the power in the first place, namely the people. The power to define marriage was not surrendered by the people, and the Federal courts thus lack the power to strike down state laws defining marriage -- but sadly, that is not a line of reasoning that all judges subscribe to, and it is doubtful that it can be reconciled against Lawrence (which, for that very reason, should be overruled, in my view).

Posted by: Simon at August 23, 2006 07:08 PM

Tully/Simon,

"And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof."

"And in the case of statutes, the extrastate effect of which Congress has not prescribed, as it may under the constitutional provision,"

"the full faith and credit clause does not require one state to substitute for its own statute,"

Does this mean that Congress has to determine what documents qualify in order for the Full Faith & Credit clause to have effect? It's up to Congress, subject to the legislative process?

What laws then, Tully, require Full Faith & Credit?

Posted by: Cavalier829 at August 23, 2006 07:08 PM

Cav,
§4 encourages the executive branch to make decisions regardless of their political consequences by removing the incentive for such calculations: it disallows a President from serving a second concurrent term, prevents a Vice-President from seeking election to the Presidency while serving as the Vice-President, and permits a person to serve only two non-concurrent terms as President.

It's funny you mention that (about disagreements between two chambers of a state legislature deadlocking the process) - that was one of the problems that lead to the Seventeenth Amendment in the first place, and I think you're absolutely correct that it would recur. That's why I kind of hedge a bit when I say I want to repeal the Seventeenth Amendment: because that's really an inadequate shorthand way of saying that what I really want to do is to repeal the Seventeenth Amendment but also to make a different change to the original plan, which had problems of its own. Hence §3(d), which is designed to ensure that such bickering between the chambers will not deprive the state of its representation in the Senate.

Posted by: Simon at August 23, 2006 07:16 PM

By the way, I should add that given I've been painted as our resident doctrinaire conservative (inaccurately, I fear; it would be just marvellous if my views really were representative of doctrinaire conservatives, but sadly, it just ain't so), this amendment might seem at first glance to be my "get out of jail free" card - it does seem at first glance like it would be an extremely radical shakeup of the Constitution. And not just any part of the Constitution either - I tend to think that legal conservatives and legal liberals are easily identifiable by what the consider to be the more important part of the Constitution: the rights-bearing pprovisions (legal liberals) or the structural provisions (legal conservatives). I fall into the latter group, and this amendment operates on the spinal column of the structural Constitution. However, for all that, I think this is a deeply conservative amendment, insofar as I think it actually conforms very closely to the original design of the Republic; if it is radical, that is only because of how far we have wandered from first principles.

(For much the same reasons, I support the repeal of the 23rd Amendment and the recession of the population of the District of Columbia to Maryland. See comments here and forthcoming post at Stubborn Facts).

Posted by: Simon at August 23, 2006 07:38 PM

"However, for all that, I think this is a deeply conservative amendment, insofar as I think it actually conforms very closely to the original design of the Republic; if it is radical, that is only because of how far we have wandered from first principles."

Now, Simon, you know you never have to justify radical Constitutionalism to me, your resident Lunatic Reformer. Well, you can if you want to, but outside of making the President like Renaiassance Kings of Poland, there isn't a check or balance I'd not consider.

Posted by: Cavalier829 at August 23, 2006 07:45 PM

The interesting part will be finding out where such statements leave McCain. I don't see these views as collecting him many votes from democrats should he make it that far, and the heresy component of them is likely to bring out all the "McCain's a RINO" true believers, especially come primary time.

In their hearts, they know he is right. Deep down the average conservative Republican knows the administration fumbled the case for war, and they are pissed off about it. We have seen for months the intellectuals of the right wing, like George Will, lambaste the crap out of this President's handling of the message. I think if you could get them to stop spinning, they would tell you one on one that they are ticked that public opinion is so low for the war they supported, and they blame George W. Bush's inability to sell it. Furthemore, they also believe McCain has been right all along about troop levels and like his rhetoric on fiscal responsibility.

I am not saying the McCain crazies will not come out, but something tells me it will not be over this issue. In fact, I think some will vote for McCain, if they can get over immigration, because they are glad he is rightly calling the administration out on this one... Call it a hunch.

I think as establishment conservatives realize that it's McCain or Giuliani, or a Hillary Clinton presidency, the venom toward both individuals will be quelched for the most part. Who else have they got? Mitt Romney, who has shown he is wiling to sell conservatives down the river in the past and wasn't man enough to run for re-election in his own state? Sam Brownback, who is less electable than Pat Buchanan? George Allen, who is as smart as a bag of hammers? Newt Gingrich and his past? Barring a surprise run from somebody such as Minnesota Governor Tim Pawlenty, who has said "no" more times than I can count, I think the best possibility for conservativess to mount an anti-McCain/Guiliani campaign is Governor Mike Huckabee of Arkansas, and he is a long shot at best.

Posted by: Mathew at August 23, 2006 08:12 PM

Tully, that's not right. It was and is quite common, for example, for third cousins to go get married in another state which allows such things. When they come back to their home state, they are still married, and their home state must, generally, recognize the marriage.

Posted by: PatHMV at August 23, 2006 08:35 PM

outside of making the President like Renaiassance Kings of Poland, there isn't a check or balance I'd not consider.

Are you referring to the system John C. Calhoun noted in his Disquisition on Government:

It is, then, a great error to suppose that the government of the concurrent majority is impracticable — or that it rests on a feeble foundation. History furnishes many examples of such governments — and among them, one, in which the principle was carried to an extreme that would be thought impracticable, had it never existed. I refer to that of Poland. In this it was carried to such an extreme that, in the election of her kings, the concurrence or acquiescence of every individual of the nobles and gentry present, in an assembly numbering usually from one hundred and fifty to two hundred thousand, was required to make a choice; thus giving to each individual a veto on his election. So, likewise, every member of her Diet (the supreme legislative body) consisting of the king, the senate, bishops and deputies of the nobility and gentry of the palatinates, possessed a veto on all its proceedings — thus making an unanimous vote necessary to enact a law, or to adopt any measure whatever. And, as if to carry the principle to the utmost extent, the veto of a single member not only defeated the particular bill or measure in question, but prevented all others, passed during the session, from taking effect. Further, the principle could not be carried. It, in fact, made every individual of the nobility and gentry, a distinct element in the organism — or, to vary the expression, made him an Estate of the kingdom. And yet this government lasted, in this form, more than two centuries; embracing the period of Poland's greatest power and renown. Twice, during its existence, she protected Christendom, when in great danger, by defeating the Turks under the walls of Vienna, and permanently arresting thereby the tide of their conquests westward.

It is true her government was finally subverted, and the people subjugated, in consequence of the extreme to which the principle was carried; not, however, because of its tendency to dissolution from weakness, but from the facility it afforded to powerful and unscrupulous neighbors to control, by their intrigues, the election of her kings. But the fact, that a government, in which the principle was carried to the utmost extreme, not only existed, but existed for so long a period, in great power and splendor, is proof conclusive both of its practicability and its compatibility with the power and permanency of government.

Posted by: Simon at August 23, 2006 09:09 PM

I am not saying the McCain crazies will not come out, but something tells me it will not be over this issue. In fact, I think some will vote for McCain, if they can get over immigration, because they are glad he is rightly calling the administration out on this one... Call it a hunch.

Well, the reality is, I think, that McCain's view on immigation can be rendered moot if Congress can pull its finger out of its ass in the next two years and take action on the matter. If an acceptable solution to immigration - be it final and definitive or just for the time being, but at very least involving securing the border - can be hammered out before the primary, it seems to me - someone who disagrees with McCain on immigration in many ways - that it will be far less of a concern. Posted by: Simon at August 23, 2006 09:14 PM

NYT I wonder where McCain stands on this one. With Syria refusing to allow troops near its borders, North Korea possibly planning an A test, it is important to get down to the core of what McCain would do,

Posted by: Maxtrue at August 24, 2006 07:57 AM

I don't know where people are getting this idea that W said it was going to be easy. George Tenet, yes. But I remember "the announcement" back in 2003 and W said it was going to be long. He *never* said it was easy...since when was war easy?
I think what's actually happening is people's own illusions of the war is fading away (that should have faded away by summer 2003 IMO). Maybe W told them something off camera, which I doubt. Also, I think many Reps including McCain are trying the CYA approach for the upcoming elections using Tenet's words.

Posted by: Rachel at August 24, 2006 09:46 AM

"Must" recognize, Pat? "Generally?" It's not nearly as clear cut as I stated it, by any means, but I believe you're wrong (and it's not often I can say that to you regarding a point of law--wouldn't this be the first?). States generally do recognize such marriages, but there is no "must" about it.

Most states recognize all (opposite-sex) marriages legally made in other states, often by explicit state statute, but they are not constitutionally obligated to do so by the "Full Faith and Credit" clause. There's two hundred years of case law affirming the "public policy" exception to "full faith and credit" as applies to marriage recognition by states, and no sustained ruling has ever held otherwise.

Not that it couldn't happen in the future. Who knows what a judge will rule? But as of this moment "full faith and credit" does NOT require states to recognize ALL marriages made in other states if those marriages would be illegal in their state and against the deeply held public policy in their state. Note that Loving was decided on grounds of racial discrimination, not "full faith."

The DOMA boosters trot out "full faith" all the time as a scarecrow in their arguments, but the anti-DOMA forces know better, and keep working on the "fundamental right" angle instead so they can get nation-wide same-sex in the door under "equal protection."

Posted by: Tully at August 24, 2006 10:17 AM

What laws then, Tully, require Full Faith & Credit?

You're asking for a list of ALL state laws in the US that don't fall under the "public policy" exception, Cav. Got a few decades or centuries? And an expert? I'm not a lawyer, just a layman who has intensely researched some small specific areas for various reasons.

Posted by: Tully at August 24, 2006 10:26 AM

I suppose you could say it was something of a rhetorical question, Tully. Or amounts to one, at least.

From what you guys are saying it sounds like Congress, subject to the legislative process, completely defines Full Faith & Credit. I'm just wondering if that's correct or if there is some category of document that is fundamentally covered under the clause.

Posted by: Cavalier829 at August 24, 2006 11:29 AM

It's somewhat a matter of semantics, Tully. The full faith and credit clause requires one state to recognize the marriages of another state. That's the basic rule (hence the "generally"). Louisiana cannot refuse to recognize a marriage simply because the wedding took place in Massachusetts.

BUT the "public policy" exception to the full faith and credit clause allows a state to decline to do so if the other state's policy would offend a "deeply held" public policy of the first state. Thus, Louisiana could refuse to recognize a marriage which took place in Massachusetts if the character of that particular marriage would offend the deeply held Louisiana public policy against bigamy or polygamy or age or gay marriage or whatever.

Posted by: PatHMV at August 24, 2006 11:45 AM

Yes indeed, Simon. That's the one. We wouldn't want to adopt a system like that. Though it seems Calhoun didn't completely count it out, amazed as he was by its resilience.

I'm just not part of the Dick Cheney school of Consititutional interpretation. I think you've said as much about yourself, as well. IN my case, I'm dismayed by the President's ability to wage war at the drop of a hat, for one. Even before 9-11 the attempts of the Presidential "TAIL" to "wag-the-dog," as they say, were FAR too frequent. I think it's telling that the one area where the Founding Father's sunseted legislation was on appropriations for the Army. (It would be nice if the Constitution mandated a few others to be, too.)

Since the end of WWII the Republican Party has gone from being a party of the whole Constitution to being the party of the Presidency.

Even after the Republicans took Congress it seems that upon the accession of George W. Bush, there has been a near-parliamentary acquiesence to his wishes.

But long before this, the GOP became the party of the Cold War. I prefer seeing Congress reign the President in a bit, AND the judiciary, and on rare occasion the other House of Congress.

Even given their reckless spending I trust the Congress more to safeguard our rights. Though this bunch as sorely tested that thesis.

I'm also on record as favoring some kind of reform that would create an independent Attorney General. I don't see any reason why the President should supervise this function, especially since an independent Attorney General would be quite useful in watchdogging the Feds.

You've indicated, Simon, that the Independent Council Law is Unconstitutional. Perhaps that's so. It certainly does seem they're accountable to NO ONE, which isn't good. But an elected Attorney General, I think, would solve that problem. And because the Vice Presidency seems to be, as one old Pol put it, "not worth a pitcher of Warm Spit," and because I don't care to multiply the national elected offices, I think the fusing of the two would be worthwhile.

So, no Polish Kings, but there are a few defects in the Constitution that only the most bent of Republicans could love. The Impeachment Process, for one, Legislative Redistricting for another.

I just know that SOME Republicans hide behind and indeed exult in, the Constitution's more corruptible parts. And yes, the Dems are abusive in their own way, but it doesn't excuse Republican indulgences.

Posted by: Cavalier829 at August 24, 2006 12:29 PM

Sounds like an area that could be stretched to the limit, Pat, making Full Faith & Credit useless.

Posted by: Cavalier829 at August 24, 2006 12:32 PM

Sounds like an area that could be stretched to the limit, Pat, making Full Faith & Credit useless.

And yet we persist in trying to abolish wiggle room. :-)

Yeah, it could be stretched to the limit, but at least there'd be a semi-rationale basis for reviewing any such stretches...we'd have to examine what a deeply-held public policy meant, and I'm sure some standards have evolved, and that future challenges might reveal more patterns and ideas for better standards. We might end up having to back up 3 steps and figure out exactly where we screwed up.

Posted by: bk at August 24, 2006 12:57 PM

You've indicated, Simon, that the Independent Council Law is Unconstitutional. Perhaps that's so. It certainly does seem they're accountable to NO ONE, which isn't good. But an elected Attorney General, I think, would solve that problem.

It may or may not, but such a law would also be unconstitutional, absent an amendment, for the very same reason that the independent counsel law was. While Congress has great power to create and modify the executive departments - that is, to shape the executive - the Constitution ineluctably vests "The executive power ... in a President of the United States of America," U.S. Const., Art. II §1 (emphases added); there can be no executive function that is not subordinate to the President's authority over it. The executive is pyramidical in its structure, and Congress has immense power to define and delineate all that is beneath the apex of that pyramid, but what it may not do is to create executive structures that are not beneath that apex. Hence, the independent counsel was unconstitutional because it was an office that exercised executive functions while not being accountable to the President (thus violating both the separation of powers, and, if structural arguments don't appeal to you, the appointments clause); a fortiori (on both counts), a law stipulating an elected AG would have the same flaw.

Whether the unitary executive is a normatively good or desirable system of government is open to debate, but that it is required by our present Constitution is, in my view, settled beyond doubt. Indeed, the very fact that we have a unitary executive, in my view, strengthens the case for an active and assertive Congress which constricts the size and height of that pyramid.

Posted by: Simon at August 24, 2006 03:16 PM

But isn't that pretty much what I said in the first place, Pat? Which was:

States do NOT have to recognize any marriage made in another state that would be banned under their laws. That simple.

I'll admit there can be some rhetorical nuance there about the diff between "banned under their laws" and "against deeply held public policy," and I freely admit that states most often forego any criminal prosecution in such cases and simply "disrecognize" the union if they please, but by then we're dancing on pinheads.

The practical bottom line is the states don't have to recognize unions legally made in another state that would be against their laws, and the "full faith and credit" clause doesn't make them do so. Which is why the "full faith and credit" clause argument is (currently) just smoke in the same-sex marriage argument.

Posted by: Tully at August 24, 2006 03:56 PM

Yes, an amendment WOULD be required for an elected AG, Simon. My whole post was in regards to Constitutional checks-and-balances that COULD be amended short of choosing some foreign Monarch as our Puppet King.

I agree with you about the Unitary Executive, but there seems to have been some wiggle room conceded by the Supreme Court to Congress in the establishment of committees and agencies with "quasi-judicial powers," I think the term is.

The Independent Council doesn't seem very quasi-judicial. Why hasn't the Supreme Court struck the statute down, then? Do you know what their argument was for upholding it?

But I would, at some point in the future, like for an elected AG to run independently of the President, though still be elected by the Electoral College. The IDEA of independent law enforcement is a good one, I believe.

Also it seems to me that of all the Cabinet departments the AG serves in office with the least amount of Presidential supervision, even when HE DOES set policy. An Independent one would have his/her own policy on the law.

Posted by: Cavalier829 at August 24, 2006 10:29 PM

In terms of quasi-judicial tribunals, I think you're talking about Article I courts? I'll reserve judgement on the elected AG question, but regarding the independent counsel law, the keystone decision is Morrison v. Olson, which upheld the law over a lone dissent from Scalia (as with Dickerson, though, I suspect that Rehnquist voted strategically in order to control the opinion assignment). You can read it here. Scalia's dissent in that case is arguably the classic Scalia dissent - if you read only one, read that one - and in my view, a leading candidate for the best, most lucid and most intellectually forceful opinions any Justice handed in since Rehnquist's "you felt the earth move beneath you" dissent in Fry v. United States.

Posted by: Simon at August 24, 2006 10:40 PM

But of such fine distinctions are lengthy trends in jurisprudence made, Tully. The federal courts, because of full faith & credit, are required to examine into those state laws and determine if they are "meaty" enough to allow the state to not recognize a marriage performed in another state.

And it's one of those things that, despite decades if not centuries of jurisprudence, which hasn't been fully fleshed out. It is easily possible to determine, without any more overt violence to the language and jurisprudential history of the FF&C than is normally done these days to other constitutional provisions, that the FF&C would require one state to recognize all marriages performed in another state. That would be a much easier determination to reach than, say, Roe v. Wade. A Supreme Court looking to further a social agenda without getting to more difficult equal protection claims could get rid of the "deeply offend public policy" exception to FF&C with the snap of their collective fingers.

Which is why the FF&C argument is NOT just smoke at the current time.

Posted by: PatHMV at August 25, 2006 08:43 AM

I was thinking of the Federal Reserve in this instance, Simon, but I didn't realize the Courts made that distinction tracing SOME of law interpreting agencies as based outside of article III.

Now that you mention it, it is obvious since Article III requires life tenure and no change in salary for judges. Something that doesn't apply to the Fed, or FEC, or FTC, etc. etc.

I'll have to take a little more time to read the Scalia decision.

Posted by: Cavalier829 at August 25, 2006 06:25 PM

Re the Full Faith & Credit clause, the SSRN paper I mentioned above can be found here, or the cite is P.J. Borchers, The Essential Irrelevance of the Full Faith and Credit Clause to the Same-Sex Marriage Debate, 38 Creighton L. Rev. 353.

Posted by: Simon at August 28, 2006 10:46 AM