Saturday, March 08, 2008

I Miss the Constitution (Or "Hey, I Was Using That!")

The United States wishes to enter into a "bilateral agreement" with Iraq concerning security assurances and American troop presence. Traditionally, a bilateral agreement between two sovereign nations is called a "treaty." According to the U.S. Constitution, in order for the United States to enter a treaty, the president must sign it and two-thirds of the Senate must ratify it. This is part of something that used be known as "checks and balances."1 Thus, one might be forgiven for presuming that in order for a treaty with Iraq to go into effect, it would require ratification by two-thirds of the Senate. But, according to the Bush Administration, you'd be wrong!

And what, you must be dying to know, is the justification this separation-of-powers-destroying argument? 9/11. Well, indirectly anyhow. More directly, it's the Authorization for Use of Military Force Against Iraq (AUMF). You may remember its passage as the moment Congress abdicated its Constitutional responsibilities related to the declaration of war. That was bad enough. But now the Administration is arguing that the Legislative Branch ceded not only the power to declare war (Art. I, s. 8, cl. 11) but also its Advice and Consent power.

Here's how the argument goes - In the AUMF, Congress provided:

"(a) AUTHORIZATION- The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to--
(1) defend the national security of the United States against the continuing threat posed by Iraq; and
(2) enforce all relevant United Nations Security Council resolutions regarding Iraq."

Maintaining troops in Iraq is an essential component of maintain a stable Iraq and a stable Iraq is necessary to eliminate any threat from Iraq, which in turn is necessary to defend the national security of the United States. Therefore the AUMF authorizes the President used the Armed Forces in this way, which necessarily allows him to take steps (i.e. negotiate agreements) to do so.

That argument, of course, is bunk. On many levels, but one in particular. You see, no plausible reading of the text allows for this. The only power granted to the president is to "use the Armed Forces of the United States," which is well-short of any sort of express waiver of the "Advice and Consent" requirement (if, indeed, such a provision might be waived - that's an argument for another day). The logic of this argument would also support the conclusion that Congress doesn't actually need to approve funds for the military because that's a necessary component of complying with the AUMF. In other words, this logic is one of an unconstrained Executive Branch.

At the end of the day, the Administration's view is a misreading of the AUMF. But far worse is the fact that Congress passed a document that even arguably allows for such a reading. (As a reminder, here's the Senate roll call vote and the House roll call vote.)

1 This was before it was was reinterpreted to mean that Congress writes "checks" to pay for the President's foreign expeditions, regardless of any negative "balances" in the country's pocketbook.

Sunday, February 17, 2008

Disaster! (or "On the Seating of the FL and MI Delegations")

Recently the Hillary Clinton campaign has been advocating the seating the delegations from Florida and Michigan. Such a move would be illogical, unjust, and could quite possibly result in an outright theft of the Democratic nomination. Calls to seat the delegations are merely examples of the anything-to-win political gamesmanship that has poisoned our system for so long.

To begin with, I am not addressing the wisdom of the DNC in stripping those states of their delegations in the first place. There is an important debate to be had about the propriety of that decision, but it is irrelevant on whether or not to seat the delegations from Florida and Michigan. That decision is a sunk cost; it has been made and its consequences have occurred.

First, I should make clear that I view the purpose of a primary election or caucus as a means of determining the will of the voters in a given state. The will of the voters is then converted into delegations to be sent to the party's convention. The transitive property does not apply here; you simply cannot remove the will of the voters from the equation. If will of the voters cannot be discerned, the delegations are worthless and should be excluded. And that is why the Florida and Michigan delegations must not be seated. Let's examine them one at a time.


We cannot know the will of the voters in Florida. For weeks in advance of the primary, voters there were told by the media that their votes wouldn't count. We cannot know how many chose not to vote as a result of that nor can we know what proportion of supporters for each candidate decided not to vote. If we can assume Clinton supporters and Obama supporters avoided the polls in equal proportions, that would be one thing. But until someone affirmatively demonstrates that to be the cause, it is a risk we musn't take.

Given these uncertainties, the least-bad option is to do with the results precisely what Florida voters were told would be done with them: disregard them. To do otherwise risks disenfranchising the voters of Florida. (For those from Washington State, imagine that in this beauty-pageant of a primary we're having, Hillary Clinton crushes Obama and the state party then decides to base half its delegates on that result. You chose not to vote because you were told over and over again that it was meaningless. That is the danger in Florida.)


In the case of Michigan, you have all the problems of Florida. But Michigan is worse. Its results have all the legitimacy of a Saddam Hussein election. You see, just as in Iraq under Saddam Hussein, there was only one candidate on the ballot. Despite this, 40% of voters cast their ballots for what effectively amounted to "Not-Hillary-Clinton." In addition to knowing how many scores chose not to vote, we have no way of knowing how many of those "Not-Hillary-Clinton" votes were for Obama, Edwards, or Biden. Simply put, we have NO WAY of knowing how to apportion the Michigan delegation. No informed neutral observer could possibly argue this delegation should be seated; to even suggest as much is a staggering display of either ignorance or, worse, win-at-any-cost politics.

(For those interested in other aspects of the nominating process, I recommend the excellent treatment of the subject over at Pro Bono Geek.)

Sunday, January 27, 2008

"Vie one with another in good works." (5:48)

Hello friends,

This is kinda serious, so don't bother if you don't want to. :)

I just read a short letter signed by over 100 Muslim scholars, theologians, clerics, and leaders from throughout the world. It was put together by a Muslim institute in Jordan near the end of last year.

On the surface, it's yet another "call for unity" between people of different religious/political/social/etc. persuasions for the sake of not blowing each other (and everyone else) up. These seem to be a dime-a-dozen these days. Not to say that they're not important, and not to recuse myself from having made many of them, but for the large part they've lacked a rigor to which to bind any consequent commitment.

The problem seems always to be that wherever there are similarities, there are differences, too. And certain types of difference (religious, especially) carry with them entire identities and convictions and certainties that can’t lightly be primed over like an old coat of paint – they always show through, enough to distract at best, and to undermine at worst. Who’s work is it to examine the structure and stuff of our differences and find those shared spaces where we can engage each other?

Everyone’s, of course. But scholars can often initiate these conversations that, at first, stay amongst themselves, but hopefully over time, become the talk of the rest of us.

The Common Word statement is the result of a Muslim search of shared ground between Christians and Muslims. And as a Christian, I was deeply moved and satisfied. Many of my skepticisms were directly addressed. (Notably, about Jesus’ saying, “He who is not with me is against me.”)

One question: will this satisfy Christians (and Muslims) who believe that the end goal of their religions is the total submission and dominion over the entire world of their way of thinking, seeing, and believing? If you're Billy Christian from Colorado Springs, does it make sense to pause to find a common word with Muslims when their salvation is at stake? I wonder. I also don't think it matters (more on that below), but I still wonder.

I wonder what more conservative Christians will think. I wonder what agnostic or atheist friends will think. I wonder what my Muslim friends think. And I also wonder how these conversations can start to spread among people everywhere – after all, a “common word” needs “common people”.

The basis of the letter is a section of the Qur’an quoted by the authors, where God commands Muslims to reach out to Jews and Christians:

Say: O People of the Scripture! Come to a common word between us and you: that we shall worship none but God, and that we shall ascribe no partner unto Him, and that none of us shall take others for lords beside God. And if they turn away, then say: Bear witness that we are they who have surrendered (unto Him). (Aal ‘Imran 3:64)

You might ask, “Wait – isn’t this just telling Muslims to convert everyone to Islam? Isn’t this just telling Muslims that until everyone is alike, they must not rest?”

The letter addresses this. The authors refer to God’s recognition that the “People of the Scripture” (a Muslim name for all Jews, Christians, and Muslims) are not alike. In the Qur’an, God points out that there are difference not only between the People of the Book, but also within each religion as well.

They are not all alike. Of the People of the Scripture there is a staunch community who recite the revelations of God in the night season, falling prostrate (before Him). They believe in God and the Last Day, and enjoin right conduct and forbid indecency, and vie one with another in good works. These are of the righteous. And whatever good they do, nothing will be rejected of them. God is Aware of those who ward off (evil). (Aal-‘Imran, 3:113-115)

For me, the key is the implicit command in this section for all people of faith to “vie one with another in good works.” What a transformation that would be, and why not?

Finding a common word isn’t some fanciful utopian notion where a sea change is the prerequisite. A common word is the prerequisite for a sea change. We, each one of us, can decide that our actions and motivations be oriented towards the contest of good works that God is inviting us to join. It doesn't matter if Billy Christian from Colorado Springs is convinced or not - what about you? What about me? Can a common word be true, just for us? Because I think that it would be enough. Isn’t it invigorating to think about what our “staunch community” could accomplish, trying to outdo each other in reconciliation, compassion, mercy, and humility? And why wouldn't Billy Christian, in a moment when all else seems broken or beat, receive the same love? Why shouldn't he be converted to us?

What other staunch communities are possible? How about a staunch community of feminists and traditionalists, united to improve education and services for children? How about a staunch community of scientists and spiritualists, united to explore and conserve the world we live in? How about a staunch community of LGBT folks and their opponents, united to strengthen the place of love and family in fractured times? How about a staunch community of Democrats and Republicans, who instead of vying for power and influence, vie in good works, as the Qur'an suggests?

Why not then:
...they shall beat their swords into ploughshares,
and their spears into pruning-hooks;
nation shall not lift up sword against nation,
neither shall they learn war any more.
(Micah 4:3)

Here I go again – dime-a-dozen calls for unity. But the Common Word letter lays out a model for how these kinds of calls can go beyond the polite greetings that they often are: assemble people of conviction and integrity, identify what is essential, let go of what is not, expand the shared spaces, and spread the good news.

Please tell others.
And by the way - I am doing fine.