Andrew Sullivan, Anwar Awlaki, and Obama’s Constitutional Overreach

I was at work on a post inspired by the discussion at the League of Glenn Greenwald’s post on the Obama administration and the assassination of American citizens, but I’m not going to be able to add anything other than the obvious; and my Akhilles analogies in an attempt to rebut Adam Kirsch on the Classics aren’t quite working out — yet.

And then I realized, that in my year-long blog detox which limited my regular online reading to the Daily Dish and only a few other sources, I had heard nothing of this until today.  So I checked, and Sullivan has just a single post about the Awlaki situation — and that was a commentless quotation of Spencer Ackerman.

Now, I really doubt that Sullivan’s going to stumble onto anything I say here (though it did happen once before! Hey — a boy can dream, can’t he?), but this is bothersome, given his stridency in hammering home the Bush administration’s record on torture and civil liberties.  Which is to say, I trust him to call out Obama on the same types of issues — and (in a post shortly after the election which I can’t find but recall clearly), he essentially promised to.  And I can’t be the only one whose sense of the day’s news is shaped in large part by the Dish.

I worry, in short, that the issue didn’t simply slip under the rug (because how could it?) and that it’s being ignored, for one reason or another.  So, from my little barstool in the far outskirts of the interwebs, I’m going to call him out on it and hope that he will, in the future, be just as vigilant now as he was when Bush was sitting at the big desk.

Apparently, Some People Don’t Read This Blog

Let me preface this by saying that the only news I’ve heard in the last week involves either the Final Four (Tom Izzo, go kick some Tarheel ass for me, would ya?), North Korea (really guys?), and that apparently Ichiro has a bleeding ulcer (ouch).  Now that we’ve gotten that out of the way, the New York Times on the Iowa gay marriage ruling:

“The new decision says marriage is a civil contractand should not be defined by religious doctrine or views.” [Emphasis mine — JLW]

Which is to say, the reason I’m wary of court decisions — as opposed to legislative action or ballot initiatives — encapsulated.  Having ctrl-F’d the decision itselffor the word “contract” (three of my last seven days have involved air travel; go easy on me), it appears the editorial is working from this passage:

“This contrast of opinions in our society largely explains the absence of any religion-based rationale to test the constitutionality of Iowa’s same-sex marriage ban. Our constitution does not permit any branch of government to resolve these types of religious debates and entrusts to courts the task of ensuring government avoids them. See Iowa Const. art. I, § 3 (“The general assembly shall make no law respecting an establishment of religion . . . .”). The statute at issue in this case does not prescribe a definition of marriage for religious institutions. Instead, the statute declares, “Marriage is a civil contract” and then regulates that civil contract. Iowa Code § 595A.1. Thus, in pursuing our task in this case, we proceed as civil judges, far removed from the theological debate of religious clerics, and focus only on the concept of civil marriage and the state licensing system that identifies a limited class of persons entitled to secular rights and benefits associated with civil marriage.” [page 65; emphasis mine — JLW] 

Now, I don’t have a problem with the opinion of the court that they should approach civil law as civil justices.  The problem is that the means require they modify marriage as a contract, as it is as defined by state law.  But this codification of marriage does not encompass the entirety of marriage (and was not meant to be more than a legal approximation) — marriage is a societal institution.  The court has no authority to treat it as such an institution — it must treat, and modify it as defined by the law: that is, as a contract.  Nothing more, nothing less.

Only society itself can modify marriage as a societal institution.  The citizen body votes on a ballot initiative; their elected representatives — with authority that stems from society — pass laws.  The law itself, I hear you say, defines marriage as a contract, etc.: but again — the definition of marriage as a societal institution goes beyonds the limits of the legal code’s authority.  It is a social institution; it is part of the tradition; the tradition is not simply what is defined by government.  The institution can only (? is best?) understood within the legal code as a contract: that does not mean that, as a societal custom, it is nothing more than a contract.  It is, then, a legal approximation of marriage.

So back to the original point.  The difference between a legislative means and a judicial means is how marriage is (must be) treated: as a social institution, or as a legal contract.  This is a problem — or something to cause a touch of worry — only if you believe, as I do, that to define marriage socially as a contract is to devalue it.  The decision doesn’t do that, and nothing I’ve said should be taken as any sort of comment about the validity of the decision itself.  But the decision does give the Grey Lady cause to declare in an editorial: “marriage is a civil contract.”  The thing to be wary of is that the approximation becomes the meaning.  If that happens, I think a lot of people who have fought a very long time for gay marriage will look around one day and realize that what they won was only an approximation of what they wanted.

Now on to the things that matter in life, like Opening Day.

Why the Oath Says ‘Constitution’ and Not ‘Politeia’

Joe Carter critiquing Andrew Sullivan is already well-trodden ground, so I’ll try to be freshly relevant:

The word ‘Constitution’ in the Oath of Office refers to a specific written document, which we know as the ‘Constitution of the United States.’  (I don’t mean that to sound as condescending as it does; diction requires it.)  ‘Politeia’ is the Greek for ‘constitution’, ‘state’, ‘government-of-the-state’, ‘body-of-laws’, ‘citizen-body’, etc.  It is a vague, ambiguous term, which is why, when you read Aristotle’s Athenaion Politeia, you have to be aware of the nuance within it.  Sometimes he is referring to body of law as aspect of politeia; sometimes to citizen body; sometimes to a far more esoteric term.  From a response paper last quarter:

“The politeia, for Aristotle, was distinct from the state. If, as he says, a state is “an association of citizens in a constitution” (Politics 3.iii, p. 176) then it is in part an the manner in which the state and authority in it are arranged. He goes on to say quite clearly that, “the citizen body is the constitution.” And he later refers to the Four Hundred as “trying to keep control of the constitution” (Politics 5.iv, p. 309): a politeia is an arrangement which can be controlled, and which lends power to those who hold it.

“This supports the view which is implicitly presented in AP that a change in constitution is dependent upon a change in who has control of the state, or a share in running it. At each constitutional change, the number of those who take part in the public life of the state either rises or falls. Solon expands political authority to a wider number of people, and so Pisistratus, even though he behaved “more like a citizen than a tyrant” (AP 16.1, p. 58), caused a constitutional change when he took power because “he would take care of all public affairs” (AP 15.5, p. 57). The aim of Kleisthenes’ reforms of the demes and tribes was to make it “so that more men should have a share in the running of the state” (AP 21.1, p. 63). The rise of the Areopagus is a change because it takes more control of public life, even if it left private affairs alone. Those who had a share in the state shrank, and when it was overthrown, it expanded again.”

If you’re still with me, the point is that, were we working with the Aristotelian concept of the word we roughly (for lack of anything better) translate as ‘constitution,’ Joe Carter would have a much stronger point.  Rather, in American politics and government, there is no ambiguity; ‘Constitution’ (note capitalization) refers specifically to a written document.  The Aristotelian conception is closer to (but still distant from) the model of the British Constitution.

Most notable is the American conceit that the Constitution is the state, directly contrary to the Aristotelian notion of separateness, or what might find in a more ambiguously defined use of ‘constitution.’  If, somehow, all of the current 50 states were lost and Americans forced into exile on previously un (or sparsely) inhabited islands, but kept the Constitution, the state (as well as both constitution and Constitution) would be continuous.

Now, of course protecting/defending the territory is essential to the survival of the state; no state can exist without a land or a people, and cannot long exist purely as an idea.  But preserving/defending the Constitution are also essential.  And because territory is potentially transitory, it can be defending extra-constitutionally, and only the Constitution grants authority, the Oath makes the point of saying it is most essential to the survival of the state: that the state itself is embodied in it.

UPDATE: It would behoove me to note that the Ath Pol was lost until the late 19th century, so, from a Foundational perspective, the Founders could not have been thinking of any portion that was not quoted elsewhere.  However, as can be seen above, the specificity of ‘Constitution’ to a document and the American conception of what it embodies are also contrary to the definition given in his Politics, which was not lost.  The Ath Pol merely serves as an example to better illustrate the matter.

Also, it would further behoove me to disclose that I don’t even think the Ath Pol was written by Aristotle himself but by two distinct students of his (at the same time, more or less, mind you, and on a joint assignment, and possibly edited/proofread by the man  himself).  As far as it pertains to this matter, as students of his and members of his school writing a text that was to be published by it, would be operating with his definition of politeia.  But this matter of authorship, I should note, puts me in a very small minority that runs afoul of the leading scholar of the text… in other words, makes me an eccentric.  (This despite being right.)

What Would My Life Be Like Without David Williams?

He’s the Republican Kentucky State Senate president, with reality-altering powers, and, now, apparently, a grand plan to take down Democratic legislators in a crazy kamikaze move where he calls for banning public smoking, statewide.  In Kentucky.  Or maybe it’s a crazy kamikaze move to take down a cigarette tax increase.  (Of course, it passed in Louisville and Lexington, so maybe it’s not so suicidal.)  Or, at the very least, he’s trying to bait Helen, which probably also qualifies as “a crazy kamikaze move.”

But the best part, which really enables this story to demonstrate everything I love about Kentucky politics, is Greg Stumbo, our wonderful new House Speaker, declaring, “I’m allergic to smoke on a personal level.”  I’m still trying to figure out how you could be allergic to something on either an impersonal or public level, and what it means that we now have modes of allergic-ness.

EDIT: I suppose I forgot to mention the point of this.  I’m against laws like this on a city/county level to begin with, but a statewide ban opens a different can of worms.  You can’t even begin to claim that the people of Louisville (or wherever) don’t want smoking in their bars and restaurants — all semblance of local autonomy on nanny-issues goes out the window.  Instead, the only justification is that the government knows what’s best better than the people.  A statewide ban, rather than being an objectionable law (and, to some, an irritant), is also a stepping-stone to nationalized Pink Police State provisions.  If we see a spate of statewide bans, we’ll eventually see calls for a national ban.  And while, by analogy, no one is going to argue that we should be feeding children lead via toys, this was certainly not the way to fix the problem.

(I guess I should add that my objection to this is more of a libertarian one than a glorification of smoking one — oh, the Pink Police State!)

Listen, I’ve Disliked Blago Since Before It Was Cool

Illinois Supreme Court: “No further action is required by the Secretary of State or any other official to make the Governor’s appointment of Roland Burris to the United States Senate valid under Illinois law.”

Dick Durbin, paraphrased by Reuters: “No one can occupy the U.S. Senate seat vacated by President-elect Barack Obama until the governor of Illinois is removed and a new appointment can be certified.”

Or, as Andrew Jackson so eloquently put it: “John Marshall has made his decision, now let him enforce it!”

Oh, remember the good ol’ days, when the Democrats were chastising the GOP for playing fast and loose with the Constitution?  Blago is Blago, but they have to seat Burris.  If they want to expel him after doing so for being friends with Blago, that’s a different discussion — but the only qualifications the Senate is authorized to judge an appointment on are those required by the Constitution of all Senators.  This whole schtick is getting really embarrassing to watch.  The Kentucky State Senate tried the same thing a few years ago (except to seat someone who clearly didn’t meet a residency requirement), and it was more or less when most people outside of the GOP Senate caucus agreed that David Williams had jumped the shark — his shining moment came when he declared (my numbers are likely wrong, but that doesn’t really hurt the point) that if the Senate voted to consider four years as ten years this vote would alter reality, more or less.

More from Durbin: “He said the Senate seat could remain vacant until Blagojevich is removed from office and the lieutenant governor takes over, making a fresh appointment.”  Right.  Because removal from office nullifies all the acts made by a governor while in office.  Neat trick, huh?

How to Pick a Fight with Kris Kristofferson (or, The Importance of Talking about Freedom)

“Yet even as they celebrate freedom, Americans exempt the object of their veneration from critical examination.  In our public discourse, freedom is not so much a word or even a value as an incantation, its very mention enough to stifle doubt and terminate all debate.” — Andrew Bacevich, The Limits of Power, pp. 5-6.

His book is mostly diagnostic.  This is hardly a flaw; what he diagnoses would be beyond the power of a single man to solve, or propose to solve.  One also senses that the very modesty he calls for in American policy prevents him from the consideration of grand solutions to our problems.  It’s more a warning — that the Iraq War, Dick Cheney’s claim for the president’s “monarchical notions of prerogative,” debt-savings ratios and the state of the economy are symptoms, and that we should not delude ourselves into thinking that merely treating the symptoms will cure the disease.  Setting aside whatever else I may disagree with in his writing, this seems essential, and true.

The question of freedom was like a rock he’d slipped into my shoe at the very beginning.  Now, I want to think that this was intentional.  Maybe I’m a cynic, but our understanding of freedom does seem awfully like what one would expect from a lazy student; or, to borrow from my own experiences in class, what happens when you’re tired and simply grab the first definition offered in the dictionary even though it’s not the best, and sometimes not even adequate.

Freedom, he writes, “has an underside.”  It is not entirely benign.  It is not entirely understood, except insofar as freedom to consume and freedom from consequences misunderstand it.  Indeed, freedom from consequences (and now I, and not Bacevich, am talking) is antithetical to the very idea of freedom, at least in my own limited understanding of it.  (An excuse for Americans: freedom isn’t easyto examine, by any means.  Nor is it a necessarily pleasant experience.)  Freedom entails obligations; it is the freedom to commit an act and have it be one’s own: that is, to bear full responsibility for it, whatever that may entail.

I’m of the opinion (this is subject to radical revision over the course of my life) that the most important part of Paradise Lost comes when God explains the purpose of free will:

“Not free, what proof could they have given sincere
Of true allegiance, constant faith, or love,
Where only what they needs must do appear’d,
Not what they would?” (III.103-6)

It goes on for a little longer, and discusses it more at length there (and elsewhere).  For Milton, free will was essential in man because without it, there could be no love, and without love… etc.  Which is to say, freedom is not the freedom to live a more or less unchanging lifestyle, to incur debt without repayment, but freedom to choose — to be responsible.  Freedom is not freedom without obligation.

Hopefully I’m not terribly wrong and just blathering on unknowingly.  I don’t pretend that anything I’ve said would be more than a very small beginning to such an understanding  — but it’s likely an understanding that grows with experience: getting a full grasp on the meaning of freedom would be immensely difficult (hopefully I’m not just making excuses now), but the endeavour of critical examination of what it means to us now, and what the concept independent of 21st century America means are of extreme importance.  The concept is foundational to the government and the state.  Citizenship, then, would seem to require some effort be expended.

Life Imitating Fiction Watch (II)

Quoth Rod Dreher, in my favorite 2009 prediction yet:

“I predict President Obama’s going to spend 2009 chain-smoking.”

My immediate reaction, as one who spent an hour a week for seven years watching The West Wing: if it talks like a Bartlet, and has advisors like a Bartlet, and smokes like a Bartlet…

Barack Obama.  Brought to you by Aaron Sorkin and the millions of television viewers who took refuge in a make-believe world where everything, in the end, turns out alright.

You Know, One Of The Reasons Kings Fell Out Of Favor Was That Whole Star-Chamber Incident

I started off in a good mood this morning because the Journal had this very entertaining and interesting piece on The Man Who Would Be Dauphin.  Oh, those silly Europeans — those silly, silly French!  Then they had to go opining about torture (or, in their terminology, “torture” — note deliberate use of scare-quotes throughout the article: oh yes, to call torture torture is to engage in dishonest — “dishonest” — “postmodern”/”relativist” shenanigans).

It’s mostly the usual case (Thesis: “It wasn’t torture, but even if it was, why complain?  It worked!”), but with a few exceptions.  For example, it’s ostensibly targeted at the Levin-McCain torture report, only you wouldn’t know until the penultimate paragraph that McCain had anything to do with it, and then you’d have no idea that he was recently welcome enough in the Republican Party to be its presidential nominee a few months ago.

Reading it, I’m inclined to agree with what John and Willhad to say about objecting to torture on purely pragmatic grounds — the editorial’s author is trying to shift the debate there.  It seems obvious that he senses the ground is more even if the moral debate is set aside.  And it is.  The most compelling case is not, “Torture does not work,” (then some question like, “What if we make it work?” and you’re convincing nobody) but, “Torture is a moral wrong,” or, “Torture is antithetical to democracy.”

Ignoring the moral level of the debate allows the author to utter this bit of pontificating in what appears to be good faith: “Why John McCain endorsed this Levin gambit is the kind of mystery that has defined, and damaged, his career.”

The answer, quite simply, is he was tortured.  But if you subscribe to the beliefs of the editorial, you couldn’t say so — acts committed against some of our prisoners that are the same or comparable to some of what McCain endured in Vietnam aren’t merely not torture; they are “light years away from actual torture.”

***

“Bush officials like John Yoo, Jay Bybee and Jim Haynes . . . acted in good faith to keep the country safe within the confines of the law.”

Who wants to bet that McCain’s North Vietnamese “interrogators” were also acting within the law of the land; or that any torture committed by any nation is defended as being within the law?  I’d suppose that, in totalitarian/dictatorial regimes, it always is.  So if you’re going to make this case in defense of those who gave the legal authorization of torture within the United States, you need to make it for the bad guys.

By this logic, McCain’s “interrogators” and those who authorized/ordered their techniques were also acting in good faith to keep their country safe within the confines of the law.

And this is why those scare quotes with their implication that I’m the one redefining language and standards irritate me so much.  The moral relativists and twisters of language here are those who would hold America to a lower standard than that to which we hold our enemies — than the one to which we hold those who, judging purely by their behavior, are worse than us.  You can’t have it both ways.

***

One thing that more reasonably deserves debate is the matter of torture prosecutions.  It was, like the Levin-McCain report, what the editorial claimed to concern, but it made no effort to really engage the matter.  That would be far more interesting, and far more important, if it were to be done honestly and rigorously — and doesn’t require that the Journal concede such crimes were committed.  But maybe they don’t have as much patience as I do for debates conducted entirely in hypotheticals.

Palin Agonistes?

Let me be clear to begin with: I did not want Sarah Palin as the next Vice President; as the campaign wore on, my opinion of her steadily declined; and I don’t agree with nearly all of what Camille Paglia says here.  (Via Poulos.) But it’s worth looking at this paragraph on its own:

“Liberal Democrats are going to wake up from their sadomasochistic, anti-Palin orgy with a very big hangover. The evil genie released during this sorry episode will not so easily go back into its bottle. A shocking level of irrational emotionalism and at times infantile rage was exposed at the heart of current Democratic ideology — contradicting Democratic core principles of compassion, tolerance and independent thought.”

There is some truth behind her bout of linguistic hyperbole. From my view from within one of those “plush, pampered commodes of received opinion” (I’m so using this the next time I have a chance!), that “emotional irrationalism” and “infantile rage” were not at all absent. You could have a conversation about the merits and demerits of John McCain and Joe Biden—even Obama was on the table—but not Sarah Palin. Every conversation either descended into, or was interrupted by, the simple declaration of her idiocy.

I’ll grant that’s more or less how she came across in interviews, and that her debate performance came across like she’d memorized the cue cards—in other words, like most political debates, but without the polish and spitshine. But the incoherence of her answers to Couric were rarely the reason for declarations about her, or her intelligence: it went back to the time it took her to receive a college degree, and the number of institutions; it went back to her inability (refusal?) to pronounce final Gs; and, on occasion, the size of her family—smaller than McCain’s, mind you—was given as evidence of backwardness.

This wasn’t everyone, by any means, and I don’t want it to be taken as such. But it wasn’t uncommon, and it prompted the repeated joke from a McCain-supporting friend of mine, “See who you’re associating with?” By the end of the campaign, though, the only response I could give was, “What are you talking about? I voted for Bob Barr. The man downs fifteen shots of espresso a day.”

It isn’t an undercurrent of elitism; I’m the elitist among my friends, and I think of that word differently than its thrown around commonly. It was a snobbishness centered not around the assumption that she was unfit, intellectually, for that office, but around the sensation some seemed to hold that they were better than Sarah Palin, on the mere basis of her background.

Maybe it’s some weird inherited cultural insecurity that comes from being around, you know, accents of the upper-Midwest and those damn Yankuhs! for too long, but I do, at times, worry that I’m acceptable as a Kentuckian/Southerner because I’m the token Kentuckian/Southerner. I say “y’all” without realizing it, and can’t say potat-oh, tomat-oh, or tobacc-oh without very deliberate diction (proper pronunciations are, of course, puhtaetuh, tuhmaetuh, tuhbackuh); this without a distinctively “southern” accent (the result of a deliberate—and now more or less regretted—decision at age 10ish to eliminate all traces).

But I also do that thing, sort of like Obama does, where I can talk very slowly and deliberately when I’m unsure what’s coming next, except with a smattering of repeated articles throughout. So add that, and some quirks of my enunciation, and the stereotype of Kentuckians, and the only thing that seems to stand in the way of being declared mentally incompetent for public office is the school I’m at—but that wasn’t really enough to protect George Bush.

These are traces of the left’s version of the partisan bitterness much of what’s left of the right in this nation seems to be exuding, and which rightly scares Freddie. Of course, it’s looking at what’s happened on that side of things that makes me worry how this sentiment reveals itself when the Democrats find themselves in the position of today’s Republicans.

It’s one thing to make a claim that, in the end, is right because the evidence is right; it reveals entirely different when you’re making a claim that is correct in spite of the evidence–even only some of the evidence.

More “More Of The Same”

Don’t have a good explanation for how I missed this paragraph this morning, other than I was barely awake:

“Mr. Obama said he opposed providing legal immunity to telecommunications companies that aided warrantless surveillance, but ultimately voted for the bill, which included an immunity provision. The new president could take a similar approach to revising the rules for CIA interrogations, said one current government official familiar with the transition. Upon review, Mr. Obama may decide he wants to keep the road open in certain cases for the CIA to use techniques not approved by the military, but with much greater oversight.”

(Italics are Sullivan’s; his post was where I noticed this.)

I’m not going to start launching into Obama for a decision he has yet to make, especially when the source is unnamed and we’re just starting up the transition.  But, if we’re in January and we hear more like this, or later, and nothing’s been done — actually, wait, I’m with Joe Carter on how to avoid waiting until then for an answer:

“Rather than asking silly questions about his hypoallergenic dog, the press should put the question directly to President-elect Obama: Will you sign an executive order prohibiting the use of any techniques that fit this legal definition of torture?”

And when it comes to torture, I’m basically with Andrew (who, no matter what one thinks of him, has undeniably done a damn good job hammering home the the extent of the torture problem in American policy):

“There is no centrism in adhering to the Geneva Conventions. Either we do or we don’t. We haven’t and we now must. There is no middle way here.  [. . .]  No torture ever. No exceptions ever. No separate CIA track. Executive power, allowed to torture, is dangerous regardless of which president is in the White House, of whichever party.”

I don’t have much else to say because I genuinely don’t want to start ranting prematurely.  But let’s be clear: an Obama Administration that meant even a modicum of anything it said on that campaign trail should not be within a flagpole of considering allowing our current torture policies and programs to stay in place.  Any president who does so is abusing his power; any media that refuses to press such a president has failed its responsibility to the public; any public that is complacent in the face of it has failed itself and its republic.