Memorial Day

The Title of this blog is linked to a brief history of Memorial Day and the first proclamation about it by Gen. Logan. One of the great aspects of Memorial Day is that it was not decreed from on high by political leaders, rather it slowly emerged out of the practices of the citizens who naturally thought it proper to honor their war dead after the Civil War. The North and South practiced different days until after WWI when the whole nation settled on May 3oth. Now that I have pointed out that it did not start by proclamation...here is the first proclamation about Memorial Day by General Logan in 1868:



"The 30th day of May, 1868, is designated for the purpose of strewing with flowers or otherwise decorating the graves of comrades who died in defense of their country during the late rebellion, and whose bodies now lie in almost every city, village, and hamlet church-yard in the land. In this observance no form of ceremony is prescribed, but posts and comrades will in their own way arrange such fitting services and testimonials of respect as circumstances may permit.
We are organized, comrades, as our regulations tell us, for the purpose among other things, "of preserving and strengthening those kind and fraternal feelings which have bound together the soldiers, sailors, and marines who united to suppress the late rebellion." What can aid more to assure this result than cherishing tenderly the memory of our heroic dead, who made their breasts a barricade between our country and its foes? Their soldier lives were the reveille of freedom to a race in chains, and their deaths the tattoo of rebellious tyranny in arms. We should guard their graves with sacred vigilance. All that the consecrated wealth and taste of the nation can add to their adornment and security is but a fitting tribute to the memory of her slain defenders. Let no wanton foot tread rudely on such hallowed grounds. Let pleasant paths invite the coming and going of reverent visitors and fond mourners. Let no vandalism of avarice or neglect, no ravages of time testify to the present or to the coming generations that we have forgotten as a people the cost of a free and undivided republic.

If other eyes grow dull, other hands slack, and other hearts cold in the solemn trust, ours shall keep it well as long as the light and warmth of life remain to us.

Let us, then, at the time appointed gather around their sacred remains and garland the passionless mounds above them with the choicest flowers of spring-time; let us raise above them the dear old flag they saved from hishonor; let us in this solemn presence renew our pledges to aid and assist those whom they have left among us a sacred charge upon a nation's gratitude, the soldier's and sailor's widow and orphan.


It is the purpose of the Commander-in-Chief to inaugurate this observance with the hope that it will be kept up from year to year, while a survivor of the war remains to honor the memory of his departed comrades. He earnestly desires the public press to lend its friendly aid in bringing to the notice of comrades in all parts of the country in time for simultaneous compliance therewith.

Department commanders will use efforts to make this order effective.
By order of

JOHN A. LOGAN,
Commander-in-Chief

N.P. CHIPMAN,
Adjutant General

Official:
WM. T. COLLINS, A.A.G."

Antietam or Cuban Missile Crisis...you be the judge

My two cents…

Only time will tell if the deal means the Democrats lost this battle and the deal allowed them to save face (Cuban Missile Crisis) or whether it just postpones an inevitable battle (Antietam) of this same issue at some latter date. I suspect the latter…

I will risk using an inappropriate Civil War analogy here…This reminds me of the numerous blunders by Union generals during the Civil War who repeatedly had their enemy outnumbered and weakened and were in a position to deal crushing defeats to the Confederates. However, being timid and overly cautions these generals lost the initiative, did not seize the day and prolonged the conflict making the war much more bloody and costly than it needed to be. For instance, the battle of Antietam (military historians are free to add or correct me here) saw McClellan overestimate Lee’s strength. Being overly cautious and risk averse, he did not commit his forces into battle during a crucial moment even though he greatly outnumbered Lee’s forces. This caused him to lose the initiative, allowed the enemy to regroup and live to fight another day.

The Union had McClellen and the Republicans have McCain…
(the difference being McCain was never appointed to this position he has tried to seize leadership by usurping Frist)…

While recognizing the limits of analogies, I believe the Republicans had the initiative, had the numbers, and had the Democrats back-peddling and now the “squishy seven” led by McCain have prevented the Republicans from dealing a decisive blow to the judicial filibuster and it will likely come back to haunt them.

Like Antietam I believe the “Deal” was a victory for Republicans, but a costly one (two nominees likely lost) and it will prolong this conflict over the filibuster and which will likely explode with even more force and devastation in the midst of a Supreme Court nomination battle. The Republicans will likely regret not having put this issue to rest here and now.

Of course McCain and company would prefer to use the Cuban Missile Crisis analogy. With two powers minutes away from “pushing the button” he, a modern day JFK, rushes in and saves the day by initiating a compromise that prevents the utter devastation of the “nuclear option.”

Perhaps this is the correct model. I don’t know, but I doubt it. While the stakes are high, they are not quite as high as during the Cuban Missile Crisis. While it is possible that the Dems are merely retreating from battle and the deal was a face saving matter I don’t believe that is the likely explanation. There is too much at stake for them. They have more to lose by letting sound jurists on the court than they do in losing a Senate showdown.

They will likely try to use the judicial filibuster again…but only after seeking to destroy the career and character of the next Supreme Court nominee first…then if that doesn’t work they will save the filibuster as their last line of defense.

Lets just hope McClellan…I mean McCain isn’t there to prevent the Republicans from doing the right thing next time around.

Thanks

My thanks to Jack of Clubs to adding this site to his blogrole. I will obviously reciprocate and look forward to reading his blog regularly.

The Deal...The Fallout

Confirmthem.com has a great survey of reactions and analysis of the "Monday Night Mischeif" where moderates of both parties pieced together a compromise deal on Judicial nominations...

The Deal Stinks Perspective...

From Confirm Them.com:

"Hugh Hewitt wonders:


It is impossible to say whether this is a “terrible” deal, a “bad” deal, or a very, very marginally “ok” deal, but it surely is not a good deal.

It’s terrible, Hugh.

1. Democrats agree to allow votes on three nominees, but make no commitment on the others. [It’s amazing how a minority of Senators is able to dictate terms to a fairly large majority.]
2. Democrats reserve the right to filibuster: “Nominees should only be filibustered under extraordinary circumstances, and each signatory must use his or her own discretion and judgment in determining whether such circumstances exist.”
3. Republicans give up any check on the minority’s power: “…we commit to oppose the rules changes in the 109th Congress.”

The commitment to oppose rules changes is unconditional. There is no out clause such as, “We commit, so long as Democrats are not abusing their discretion in our eyes. ” Instead, it says, “We trust that the Democrats won’t filibuster Luttig, McConnell, Estrada, Alito, or whomever is nominated to the Supreme Court unless they, in their own discretion, decide they want to. For our part, we put it in writing that we won’t support any rules change because our trust in those Democrats is absolute. Trust but verify? Nah. That’s mean. We just trust–period.”


The Upside perspective....

Again from Confirmthem.com:

"Much hand-wringing on all sides, in wake of the McCain for President Announcement compromise on judges. Many on both sides think they’ve lost.

This is a bad deal, no question. It undermines Senator Bill Frist, Senator McConnell - and frankly, the entire Senate leadership.

On the other hand - Democrats are surely screwed. They get their little scalps - Myers and Saad will not soon see the inside of an appellate court. But the Democrats have simply grabbed enough rope to hang themselves.

Why? Because they’ve defined extraordinary - if not specifically, by who they’ve “allowed” on the courts to date - and when Chief Justice William Rehnquist retires on June 27th of this year - all President Bush need to do is select one of the 30-some odd appellate juddges confirmed since he took office and elevate him/her to the Supreme Court. In that case, the Democrats have completely surrendered any opportunity to block such a nominee on any grounds.

Plus, it doesn’t hurt that Nan Aron, Ralph Neas, Nadine Strossen, and the New York Times will be nursing some wicked headaches in the morning.

P.S. John McCain is dead to me."

Why This Fuss Over Judicial Nominations?

Americans don’t like squabbling. They don’t like to get mixed up in the antics of selfish parties fighting over narrow interests…after all who would? Especially when both sides paint each other as protecting “extreme” positions and responding to pressures from “narrow” interest groups. There are times however, when what appears to be petty partisan squabbling is really a deep philosophical disagreement about the nature and future of the American regime.

While many seek to portray this as a trivial quarrel between two parties acting as mere proxies for extreme interest groups on both sides of the political spectrum there is much more here than meets the eye. The Republicans are not merely responding to pressures from the “religious right” and the Democrats are not just protecting the interests of NARAL.

There is a great principle at stake and the American people should not tune out this debate as simply another round of “Washington politics.” Rather they should brave the shallow rhetoric from both sides, realize what is at stake, and support the side they agree with.

In broad terms what is at stake is nothing less than the future America’s written constitution. I don’t mean this in an alarmist manner, the Constitution will not disappear overnight, but in the long run these are the stakes and the American people need to affirm what they expect from their judges in terms of jurisprudence, if they want to preserve our Constitutional tradition.

Put more concretely the principle at stake is whether or federal judges are, or should be, accountable to anyone but themselves and their own conscience. That is to say, should judges feel bound by the Constitutional text or some outside sense of wisdom or justice?

Republicans, in general, have held that judges ought to hold a judicial philosophy of self-restraint. They believe that judges should defer their own political views to the letter of the law, whether that law is a statute passed by Congress or it is the fundamental law of the Constitution as ratified by the people. They believe the best way to pursue the common good is to let the people speak through their elected representatives, and judges should be very hesitant to overrule them. The only time a judge should strike down a state law or a congressional law is when it clearly violates a plain reading of the Constitutional language, not when it violates their political sensibilities. A judge should never substitute their will for the will of the people as expressed in the law.

Democrats, in general, have held that judges ought to hold a judicial philosophy in which they should not restrain their own conscience or political beliefs. Judges are free to “find new meanings” in the law and expand it if need be to conform to what they feel is just or wise. Simply deferring to established precedent and established law may not serve the judge’s view of what policy is best for the common good. As such they do not feel constrained by a plain meaning of the Constitutional text and in the end they are accountable to their own conscience and perhaps in some sense to history. It is acceptable for the judge to substitute their will for the people’s when the judge believes the people are wrong. While Democrats are not comfortable admitting that judges amend the constitution, they are comfortable admitting that judges should continue to find new meanings in the Constitutional text.

Neither of these legal views is new, and in that sense it seems odd to refer to either as “extreme.” The Republicans are drawing on a legal tradition that dates back to the founding and the Democrats are drawing on a legal tradition that rose to prominence during the progressive era over 100 years ago. In the past both parties have honored the electoral process and generally allowed the President to choose justices that reflect his judicial philosophy.

Currently the Democrats have decided that the President should no longer have this prerogative and are seeking to prevent any appointment of judges who do not share their judicial philosophy. They are seeking to paint as “extreme” any judge who simply holds an opposing judicial philosophy. Even though they are no longer the majority party they believe their judicial philosophy should reign exclusively. Republicans having won the Senate and the Presidency reasonably expect that it is their turn to appoint judges that share their judicial philosophy and they are refusing to yield to the establishment of a precedent that would allow these judges to be systematically excluded from the bench.

So how does this relate to the future of the American Constitution? As a simple point of logic one of these approaches is more compatible with written constitutionalism and one is not. That is to say, if judges uniformly defer to the Constitution’s text, then that text will maintain its authority, conversely if judges do not defer to the text then the authority of that text will diminish over time. As the authority of the text is diminished we begin to move from a written Constitution to an unwritten one. As one judicial philosophy becomes more dominant than the other, so goes the future prospects for maintaining a written Constitution.

Ideally both parties would both share a judicial philosophy that is compatible with our written constitution and simply work to enact their different policy visions through the representative branches of government. As we know the world is not ideal and it is not unusual to use the authority of the Constitution to pursue partisan policy.

Of course the embrace of a judicial philosophy that shows impatience with the Constitution and its forms and formalities is not new, nor is it to be unexpected. As Alexis de Tocqueville observed the pursuit of immediate policy goals at the expense of important forms is to be expected and guarded against:

“Equality awakens in men several propensities extremely dangerous to freedom, to which the attention of the legislator ought constantly be directed. I shall only remind the reader of the most important among them.
Men living in democratic ages do not readily comprehend the utility of forms: they feel an instinctive contempt for them, I have elsewhere shown for what reasons. Forms excite their contempt and often their hatred; as they commonly aspire to none but easy and present gratifications, they rush onwards to the object of their desires, and the slightest delay exasperates them. This same temper, carried with them into political life, renders them hostile to forms, which perpetually retard or arrest them in some of their projects.
Yet this objection which the men of democracies make to forms is the very thing which renders forms so useful to freedom; for their chief merit is to serve as a barrier between the strong and the weak, the ruler and the people, to retard the one and give the other time to look about him. Forms become more necessary in proportion as the government becomes more active and more powerful, while private persons are becoming more indolent and more feeble. Thus democratic nations naturally stand more in need of forms than other nations, and they naturally respect them less. This deserves most serious attention.”

In the end this showdown between the Republican and Democrats has much larger implications than the current media coverage would suggest, and it would behoove the American people to pay attention and throw their support behind the party that is more likely to appoint judges who respect the authority of the Constitution and its forms.

Lincoln's Faith: Excerpt from CUANAS and New York Times

My friend Pastorious posted this over at CUANAS, enjoy:

Lincoln's Faith
From David Brooks, in the New York Times:

"On Sept. 22, 1862, Abraham Lincoln gathered his cabinet to tell them he was going to issue the Emancipation Proclamation. He said he had made a solemn vow to the Almighty that if God gave him victory at Antietam, Lincoln would issue the decree.

Lincoln's colleagues were stunned. They were not used to his basing policy on promises made to the Lord. They asked him to repeat what he'd just said. Lincoln conceded that "this might seem strange," but "God had decided the question in favor of the slaves."

I like to think about this episode when I hear militant secularists argue that faith should be kept out of politics. Like Martin Luther King Jr. a century later, Lincoln seemed to understand that epochal decisions are rarely made in a secular frame of mind. When great leaders make daring leaps, they often feel themselves surrendering to Divine Providence, and their strength flows from their faith that they are acting in accordance with transcendent moral truth.

And I also think back on Lincoln at moments like these, when other boundaries between church and state are a matter of hot dispute. Lincoln is apt, because this emancipation moment was actually exceptional. Lincoln was neither a scoffer nor a guy who could talk directly to God. Instead, he wrestled with faith, longing to be more religious, but never getting there.

Today, a lot of us are stuck in Lincoln's land. We reject the bland relativism of the militant secularists. We reject the smug ignorance of, say, a Robert Kuttner, who recently argued that the culture war is a contest between enlightened reason and dogmatic absolutism. But neither can we share the conviction of the orthodox believers, like the new pope, who find maximum freedom in obedience to eternal truth. We're a little nervous about the perfectionism that often infects evangelical politics, the rush to crash through procedural checks and balances in order to reach the point of maximum moral correctness.

Those of us stuck here in this wrestling-with-faith world find Lincoln to be our guide and navigator. Lincoln had enough firm conviction to lead a great moral crusade, but his zeal was tempered by doubt, and his governing style was dispassionate.

The key to Lincoln's approach is that he was mesmerized by religion, but could never shake his skepticism. Politically, he knew that the country needed the evangelicals' moral rigor to counteract the forces of selfishness and subjectivism, but he could never actually be an evangelical himself.

So, like many other Whigs, he was with the evangelicals, but not of them.

Lincoln believed in this cause as fervently as anybody, but he was always trying to slow down his evangelical allies. As the great historian Allen C. Guelzo argues, Lincoln favored the classical virtue of prudence, which aims at incremental progress and, to borrow a phrase from Lincoln, at making sure that politics doesn't degenerate "into a violent and remorseless revolutionary struggle."

Lincoln came to believe in a God who was active in human affairs but who concealed himself. The only truths he could rely upon were those contained in the Declaration of Independence: that human beings are endowed with unalienable rights. We Americans can be ardent in championing that creed, but beyond that, it's best to be humble and cautious.

One lesson we can learn from Lincoln is that there is no one vocabulary we can use to settle great issues. There is the secular vocabulary and the sacred vocabulary. Whether the A.C.L.U. likes it or not, both are legitimate parts of the discussion.

Another is that while the evangelical tradition is deeply consistent with the American creed, sometimes evangelical causes can overflow the banks defined by our founding documents.

Lincoln's core lesson is that while the faithful and the faithless go at each other in their symbiotic culture war, those of us trapped wrestling with faith are not without the means to get up and lead."

Comments from Pastorius:
"My faith is of the wrestling with God variety. I do not absolutely believe in the tenants of my faith, nor do I absolutely believe that God loves me cares about us. I doubt.

I spend many long nights tossing and turning, sweating and pondering decisions. Nothing ever comes easy to me. But, I have learned during the course of my lifetime to use my faith as my starting and ending point. In other words, to defer to that which I do not have absolute certitude.

It may not make sense to me, and I may disagree and argue with it, but that isn't the point. The point is, that in which I have faith has a better track record than I, in making important decisions.

That's faith, not certainty, but a struggle with and against doubt, guided by a scripture and a relationship which you believe to be a higher authority than yourself.

Maybe believers aren't that shallow and self-deluding after all."

Frankenstein and the Battle over the Judicial Filibuster

A couple of thoughts on the ongoing confrontation over judicial nominees…

I am a bit concerned that in their zeal to win the battle over the judicial filibuster Republicans and their conservative supporters may be seeking to win a battle at the expense of the war.

A common refrain from the Republican side is that the Democratic filibuster in some ways constitutes religious discrimination against Catholics (or anyone) whose religious beliefs would cause them to question abortion laws or Roe v. Wade, etc. I have heard more than one conservative commentator lament something along the lines of, “If the Democrats had their way, anyone who took their faith seriously would be disqualified from the bench.” Or “One simply can’t be a devout Catholic and be confirmed by the Democrats.” It is certainly understandable that conservatives would use this argument because it paints Democrats into a corner of religious bigotry; furthermore, the charge is likely true, most Democrats would certainly love to exclude deeply religious Catholics from the bench. It is effective politics and puts the Democrats on the defensive rhetorically.

However, what is potentially damaging about this line of argument is that it implicitly concedes the much larger and more important point; that the religious views of judges should not matter at all, because judges should not engage in policy making when issuing their rulings. Rather than infusing their policy opinions into court rulings, judges must be experts at interpreting and applying the policy judgments of others; therefore, their religious views are and should be irrelevant.

Hypothetically, a devout Catholic or Evangelical judge may have to rule that a given statute is indeed constitutional or legitimate in a given state even though it violates their religious convictions (say allowing abortions). Their private views should have no impact upon their interpretation of the law and what it allows or does not allow. Therefore when Republicans argue that devout Catholics or Evangelicals are being excluded because of their religious views, they are implicitly conceding the point that their views should matter at all.

The religious views and convictions of the judges should be a non-issue for both parties. Democrats should not bring it up as a source of disqualification and Republicans should not use it as a tool to pry Democrats into a corner.

The only views that should matter are the judges’ views on the limits of their power and their role as judges.

Republicans should take the occasion of this confrontation to remind the American people why this conflict over judicial nominees matters. More is at stake than the mere policy preferences of either party. What is at stake is the very soul of the Constitution and the survival of written constitutionalism in America. The United States cannot maintain a written constitution in perpetuity if its text is subject to the whims of the Supreme Court. Its text must be honored as authoritative until altered by an “explicit and authentic act of the people,” which is how George Washington put it in his farewell address. The judicial philosophy of most Supreme Court justices and of those judges the Democrats would like to appoint undermines this fundamental aspect of our American system of written constitutionalism.

Democrats have advocated and defended a judicial philosophy that allows the judiciary to engage in policy making with very little Constitutional restraint. They have in effect turned the Supreme Court into a counter-majoritarian legislature that is insulated from public opinion or the more representative branches. By empowering the Supreme Court to act as a sitting Constitutional convention over the decades the Democrats have created a “monster.”

Like a Democratic Frankenstein, the Supreme Court has long done left wing bidding on key cultural touchstone issues such as abortion, school prayer, death penalty, criminal justice, etc. Only now having created this powerful tool, the Democrats are fearful that they will lose control of the Court and now the monster, their creation, may turn on them.

Having lost Congress and lost the Presidency, and threatened by the portent of becoming a national minority party, the Democrats are panicked and deathly afraid of losing control of this counter-majoritarian legislature (aka Supreme Court) to the Republicans. They are on the verge of becoming victims of their own un-constitutional jurisprudence. This is why they are willing to risk so much and expend so much political capital on this confrontation.

The Republicans, particularly conservatives, have long advocated the proper role of a constitutionally limited and responsible judiciary. In their zeal to pin Democrats in the corner, conservatives need to avoid embracing rhetoric that subtly concedes this larger goal. Moreover Republicans must resist the corrupting temptation, to tame the “monster” by appointing justices that will pursue conservative policy from the bench. So far they have resisted this temptation, but they should also avoid rhetoric that implies they haven’t. Instead they must stay focused and simply engage in the long struggle to restore the judiciary to its proper function as an interpreter and not a creator of the law.

Roper v. Simmons pt III: The "risk" of Democracy

Roper v. Simmons is a key example of where the Court has overstepped it's Constitutional bounds and ultimately seems to have little patience or faith in representative democracy.

Let's step beyond the policy argument for a minute. There are good arguments on both sides of the policy issue of whether or not our society should sanction the death penalty for minors. For the sake of argument let's even assume that the Court was indeed correct; that it is unjust to subject minors to the death penalty.

Do we want five graduates of law school to be the ultimate authority on such complex social issues?

Are we capable as a democratic people to work throught these issues in our own states by petitioning our legislators?

Do we need the paternalistic hand of the Court even when they are right?

If a segment of the American citizenry wants to eliminate the juvinile death penalty then there is a democratic process to be followed:

1. Mobilize like minded citizens in each state.
2. Push each state legislature to eliminate the juvinile death penalty
3. If the Legislature does not respond, then convince a majority of your fellow citizens in each state to elect legislators who agree with your position.
4. Vote out legislators who do not agree with your position.
5. If your position is just and the rest of the American people agree with you, in time the law will be changed in each and every state.

The problem with this? It takes work. It takes convincing fellow citizens you hold a just and moral position and that your policy makes sense and will make sociey better. It takes mobilizing enough citizens to do something about it. It is difficult, it is democracy.

But democracy is so messy, it is so hard to convince my fellow citizens I am right. It is much easier to find a good test case channel resources into talented lawyers and seek to convince a handful of judges that you have a just position...who needs to bother with your fellow citizens.

At most the Court could have said, "We may agree with your policy position, but unfortunately the Constitution does not take a position on the juvenile death penalty. The term "cruel and unusual" has never been construed to prohibit such penalties. In this case the Constitution may allow for an unjust policy. Go back to your respective states and change state law. Or convince enough of your fellow citizens to enact a Constitutional amendment."

Democracies are not infallible, they simply seek to honor every person's natural right not to be ruled by another without their consent. Along with democracy comes the risk that the people will not always choose well. In the end, the lesson of Roper v. Simmons seems to be that the Court is just not willing to accept this risk...