Quick Comments on Weinergate

Ok, this whole Weinergate thing is really, really, dumb. What is really does is confirm that Democrats are not really all that good at political warfare. Look, it sucks that Democrats are going to be held to a different standard than Republicans, especially given Democrats like Rep. Weiner campaign on sexual privacy and Republicans like Larry Craig on "family values." But that's the way of it. Period. So if you're going to be a Democrat and try to do some good in this world, you just can't do the stupid stuff like sending pics of your junk over the internet. The deck is stacked against our side, but we've got to overcome it for the good of the country.

Overton Defenestration

The Defenestration of Prague

There's been a lot of talk about Paul Ryan's budget. One thing I haven't seen though, is Ryan's budget discussed as a play for an expanded Overton Window, which is what I think it primarily is. For those unfamiliar with the concept, the idea of the Overton Window is that there is a generally acceptable range of positions that people are willing to debate on an issue. This is the Overton Window. If a player in the debate proposes something far outside of that window, then suddenly, more moderate proposals on that end of the window, or maybe even proposals previously outside the window, become debatable positions. The concept is similar to the negotiation strategy known as "anchoring," but in a political debate, rather than a two-party negotiation. The Bush Administration very successfully used this tactic all over the place, most notably with respect to torture, which went from never acceptable to suddenly being debatable to a large portion of the public, because some people were cheering for it outright.

The American Sovereign: Judicial, Political, Press, and Popular Immunity

But where says some is the king of America? I'll tell you Friend, he reigns above, and doth not make havoc of mankind like the Royal of Britain. Yet that we may not appear to be defective even in earthly honors, let a day be solemnly set apart for proclaiming the charter; let it be brought forth placed on the divine law, the word of God; let a crown be placed thereon, by which the world may know, that so far as we approve of monarchy, that in America the law is king. For as in absolute governments the king is law, so in free countries the law ought to be king; and there ought to be no other. But lest any ill use should afterwards arise, let the crown at the conclusion of the ceremony be demolished, and scattered among the people whose right it is. --Thomas Paine, Common Sense

"In America, the law is king." This one line is, quite simply, the single background principle upon which America was founded. It is the very idea that made the United States unique, interesting, and great. This is America's gift to the world. This is also, sadly, simply no longer true in law, in politics, or in media. When we talk about self-government, the conversation must start here, and this principle must underlie all discussions about holding the powerful accountable. It simply must, but it does not. The jurisprudence of the 11th Amendment, the lack of the political will to prosecute political officials for torture or warrantless domestic spying, and the media and popular reaction to Wikileaks all depict an American polity for whom this principle is not merely relegated to the sidelines, but for whom it exists only in the faintest wisps of memory of a fifth grade civics textbook.

I want to illustrate in this post how all the different sections of civic life: law, politics, media, and popular sentiment have embraced a vision of America radically different from anything Thomas Paine might have written over 200 years ago.

Can Party Realignment Ever Happen? Not If the Establishment Media Has Any Say.

I've been saying for a while now that if there were any sense in politics, we would see another party realignment like we haven't for a long while. The inevitable two-party system guaranteed by the structure of our voting systems would remain, but the new parties would essentially become the Blue Dogs and the Progressives, with the Republicans becoming irrelevant. If we think about the debates we've been having lately - mostly the economic ones: Social Security, stimulus, health care - all the substantive issues from both sides have come from Blue Dogs and Progressives. Anyone to the right of the Blue Dogs was busy yelling "socialism" and other various racist and classist things, and thus were not even trying to contribute, despite the media's constant amplification.

Today I learned that this alignment is pretty much how the debate is explicitly structured in Britain, and that there are more general terms that map pretty well onto Blue Dogs (or maybe more accurately Obama-liberals, a little to the left of the DINO Blue Dogs) and Progressives--"neoliberals" and "social democrats."

Obama Contributes to the Noise (Part II - The Not So Good)

This is the second half of the review of President Obama's commencement address at the University of Michigan this past Saturday. The first half is here, and the text of the speech is here.

Ok, so I still think that on the whole Obama's speech was fantastic, but there are two glaring flaws, one of which I'd like to just note - his hypocrisy on our democracy, and the other of which this post is primarily about - the false equivalence between right and left. After that, there's one more side point I'd like to address - the lack of even a mention of other problems with the media - particularly with respect to race.

Obama's Still Got It (Part I - The Good)

(updated below)

Yesterday, President Obama gave the commencement address at Michigan, and I immediately realized that a) I was basically the only law student that didn't see it (I was at a friend's wedding - congrats again Johnny and Jen!), b) it was worth the hours of waiting in line, and c) it was a speech that could have been designed just for me (I was told so by several friends). So I read through it, and I almost began tearing up and couldn't stop smiling, except in the points where I wanted to yell out that he's being a hypocrite. And again, this was just while I was reading (full text here). But I've also seen enough of his speeches that I could recreate the delivery in my own head. Anyway, given my varied and strong reactions to his address, I figured I'd write about the different parts. This post is incredibly long, so I'll write here about the good, and about the bad separately.

Legal Claims for Bogeyman Fundraising?

Does the bogey(wo)man have a legal claim when her name is invoked in political fundraising?



Scott Brown recently released a fundraising letter that claimed Rachel Maddow was running against him. Maddow has gone on the air several times saying that it is untrue that she is even considering running and that the Senator will not accept her calls. Even more bizarrely, the Senator denies she is calling at all, and seems to be claiming that the DNC paid for the full-page Boston Globe ad that MSNBC printed on her behalf, not once bothering to check with Maddow. This level of willful ignorance can only be called intentional. What I'm interested in here, is whether there are, can be, or should be legal remedies to such a blatant, fraudulent misuse of political fundraising.

An Attack on the Legitimacy of the State, Democracy, and the Law

(updated below)

Ok, so many of us either joke or cry about the Tea Party and the Great Republican Death Spiral. I've often personally speculated that eventually, this will shift us to two new parties - the Libertarians/Blue Dogs and the Progressives. But a couple of things have made me wonder whether the danger is greater than we imagined.

Some perspective, please?

How did our discourse get to this point?

I'm really just sick of discussing this health care bill already. Yeah, it passed. Cool. But we've been talking about it for, counting the campaigns, three years. I'm sick of it. But what people are actually saying about it fascinates me (in some horrifying train-wreck sorta way).