Strengthening Constitutional Self-Government

No Left Turns

Five More Biden Points

1. The word is that Kaine was finally tossed out because he’s somewhat pro-life. And I imagine one fear there was that the Hillary people are spoiling for a fight at the convention.

2. One reason Biden was picked is that he was perhaps the least offensive non-Hillary choice to Hillary. Another woman (Sebelius) would have angered her, as she is THE woman.

3. It turns out, contrary to what you might read here, almost everyone likes Biden in DC. Jesse Helms, we read, liked him. And so one talent it’s hoped he will display is being aggressive without seeming mean.

4. NLT writers and readers, for understandable reasons, are rather singularly Thomas-centric. The fact that Joe did him wrong (and he did) I doubt will be a major factor in the campaign.

5. The general perception of Biden is that he’s no towering genius, but hardly the lightweight you sometimes read about here. He’s viewed as a fairly dignified man of great experience, if not quite a statesman. Pawlenty, in truth, will seem puny by comparison. So I think it’s somewhat more likely now that McCain will have to go with Romney. He likes Mitt even less than Barack likes Joe (and I’m not at all sure Barack dislikes Joe). So if you have last-minute advice for Mac here, you should give it.

Biden’s Greatest Hits, Installment One

Preview time! The following passages are drawn from Chapter 13 of the next volume of The Age of Reagan:

Indeed, the new chairman of the Senate Judiciary Committee, Joe Biden, never at a loss for words—even if they were someone else’s—had told a reporter in 1986: “Say the administration sends up Bork, and, after our investigation, he looks a lot like another Scalia. I’d have to vote for him, and if the groups tear me apart, that’s the medicine I’ll have to take. I’m not Ted Kennedy.”

Well, dropping that didn’t take long. I suspect he’s spending today dropping lots of his other sensible views to conform to Obamaworld.

Second excerpt:

Of all people, Sen. Biden was on to this weakness in Bork’s narrow originalism, and took after Bork from the right:

I believe all Americans are born with certain inalienable rights. As a child of God, I believe my rights are not derived from the Constitution. My rights are not derived from any government. My rights are not derived from any majority. My rights are because I exist. They were given to me and each of my fellow citizens by our creator and they represent the essence of human dignity.

The irony is that when Clarence Thomas came before the Judiciary Committee for his Supreme Court confirmation hearings in 1991 espousing that very basis for his jurisprudence, it became the reason for which Biden opposed him.

O Ba Ma and Blah, Blah, Blah

So, the Democratic vice presidential nominee will be Joseph Biden of Delaware, a man whose satisfaction with the sound of his own voice is limitless and legendary. To stand out from 99 other United States Senators in that regard is, in its way, heroic.

It’s a bad thing in life, and especially in politics, to be known as the guy who always has to prove that he’s the smartest one in the room. Al Gore and Newt Gingrich each had this problem. It’s a worse thing, however, to be that guy when you’re never the smartest one in the room.

In August 1993 The New Republic helpfully printed, on an entire page, the transcription of a single question that Sen. Biden posed to Ruth Bader Ginsburg during her Supreme Court confirmation hearings before the Senate Judiciary Committee. It’s five times as long as the Gettysburg Address. Read it, if you are stout-hearted, and judge for yourself the quality of Sen. Biden’s mind and his contribution to our experiment in self-government.

SENATOR BIDEN: . . . [If] I had to be on an island with a man for any extended period of time, I might pick Judge [Antonin] Scalia. And the reason I would, sincerely, is I think he’s brilliant, I think he’s dead wrong most of the time, as he thinks I am, and it would be, as another nominee who came before us once said when asked why he wanted to be on the court, he said it would be an intellectual feast.

I now – a slight digression – I had a conversation with Justice Scalia after he had been nominated to tell him that I was about to say in an interview the vote I most regretted casting out of all the ones I ever cast was voting for him because he was so effective. He said, "What are you doing now?" And I thought he was asking me about something – I said, "I’m teaching a course in constitutional law at Widener University." He said, "Oh, my God. I better come and tell them the truth." So I’m sure he would have an opportunity to educate me if we were on an island together.

But having said that, Justice Scalia, on a very serious note, has offered one method – one method of – a methodology to determine whether or not a right of privacy, a personal right that is not enumerated, not mentioned in the Constitution, warrants constitutional protection. And he has written that the only interests protected by the liberty clause of the Fourteenth Amendment are those interests which are defined in the most narrow and specific terms where historical safeguards from government interference [have] existed.

Now, as you know better than I do-again at the expense of offending my brethren in the press, I’m going to be very fundamental about this, to use a phrase from another – in another context – when in the past we have determined whether or not fundamental rights of privacy exist, one of the things they go back and, courts have done, is go back and look at history. They say what have we done in the past as a people? What has our country done? What has our English jurisprudential system recognized, not only here in the states but in England in the common law? And they looked back at that as one of the guideposts – not the only one, not necessarily determinative, but that’s what they do – they have done.

And I think, by inference, Justice Scalia acknowledges that is an appropriate method, at least a starting point, to determine whether or not an unenumerated right should be recognized as protected by the Constitution. And so Justice Scalia says that when you go back to determining whether or not there is a – there’s an interest protected by the liberty clause of the Fourteenth Amendment – you go back and look at those interests defined in their most narrow and specific terms when you look back at history.

So the question for Justice Scalia in deciding whether the Constitution protects a particular liberty, including a particular privacy interest, is whether years and years ago the government recognized that precise, specific interest. Now, that approach of Justice Scalia, which was outlined by him in the Michael H. case, that approach is very different from another, and I would characterize as the traditional approach for determining whether or not these unenumerated rights that we have recognized exist, an approach which – the traditional approach, in my view, looks to whether the Constitution expresses a commitment to a more general interest and then asks how that commitment should be applied in our time [to] a specific situation.

The difference between these two approaches can make all the difference in the world where a justice comes out on the finding of whether such a right exists or doesn’t.

For example, under Justice Scalia’s approach, the right to marry someone of a different race is not protected by the Constitution – at least arguably, based on things he has said, because the right to marry is nowhere specifically mentioned in the Constitution. And when you go back to look at whether or not – which is one of the methods used by all justices to determine whether or not there is an unenumerated right that should be protected – when you go back in history and look, there’s no place you can say that under our English jurisprudential system, our courts or the English courts, have traditionally recognized the specific right of blacks and whites to marry. And since you can’t find that back there, then the right doesn’t exist.

Whereas, in footnote 6, for example, as you well know, although Justices Kennedy and Souter – I mean Kennedy and O’Connor – agreed with the overall finding on that case, which I won’t bother you with the facts, which you know well and are not particularly relevant to my point – they said we dissent from the methodology used by Justice Scalia in arriving at a decision which is the right decision – my words – but for the wrong reason. And they said you go back and you look at the general proposition of whether or not the general interest seeking protection under the Constitution is in fact one we’ve historically protected. So they say when you go back, you should look at have we historically protected the right and recognized the right of individuals to marry who they want to marry? So you go back and, depending on what question you ask, you get a different answer.

And if you go back and say okay, we’ll recognize – and I’m oversimplifying – if we recognize we’re going to recognize – determine whether or not anti-miscegenation laws are constitutional, and the basis on which they’re being challenged is I have a privacy right to marry who I want to marry, so let’s see if that right is protected by the Constitution.

Scalia’s approach, you go back, you look at all the history and you say, hey, there’s no place where blacks and whites were protected – because that’s the issue – are blacks and whites – can they marry? But if you use the O’Connor approach you go back and say have we recognized the right to marry? And they say yeah, we’ve done that; ergo we can say, using that methodology of looking at the general proposition, there may be a rationale to acknowledge--a principled rationale to acknowledge or recognize the right to marry a black man or a white woman or a white woman – or I mean a black white man or black woman. That may fall within the domain of my right of privacy guaranteed by the Constitution.

[At this point, Senator Biden was asked a question by Senator Orrin Hatch of Utah. After a ninety-nine word response, the Delaware senator picked up where he left off.]

Now, in contrast, as I said, under the more traditional approach of recognizing unenumerated rights, the courts asked not whether the legal system historically had protected interracial marriages but whether the legal system historically had protected the institution of marriage generally.

Because it had, because our legal system long had understood the importance of family integrity and independence, the court held in Loving v. Virginia that the particular right to marry someone of another race is also protected.

Now, in thinking about how the Constitution protects unenumerated rights, including rights of privacy, will you use – I’m not asking you where you’re going to come out on any issue, but will you use the methodology that looks to – going back to a specific right being sought guaranteed, or will you use the more traditional method of more broadly looking at the right that is attempting – seeking constitutional protection before the court? What methodology will you use? What role will history and tradition play for you in determining whether or not a right exists that is not enumerated?

JUDGE GINSBURG: Mr. Chairman, if I understand your question correctly. . . you are asking whether I would have subscribed to both parts of Loving, that is, both the equal protection and the due process -

SENATOR BIDEN: No. Let me be very clear . . .

Biden Time

Didn’t Biden stick his foot in his mouth a year back by calling Obama "articulate" and "clean"?

I think I disagree with Peter below (and David Brooks); I think Obama is rattled, and just succumbed to a clever rope-a-dope from McCain’s camp.

UPDATE: CNN has the original quote here, plus the fallout:

"I mean, you got the first mainstream African-American who is articulate and bright and clean and a nice-looking guy," Biden said. "I mean, that’s a storybook, man."

I mean that’s really clunky, man. Add the "Audacity of Dope" to this campaign.

Here It Comes

Jacob Weisberg, writing in Slate, says that if Obama loses, it is because of racism. Couldn’t be that he’s another northern liberal elitist, like Dukakis, Gore, and Kerry? Nah. It’s because we’re racists. Rinse and repeat.

Biden a strong, astute choice. It’s the choice of a confident man who’s not desperate to carry one more state. It connects Obama to the Democratic establishment and to non-bobo (bourgeois bohemian) currents in his party’s tradition. It’s the choice of a boring, blowhard white guy who couldn’t be more experienced. Obama’s task, to repeat, is to show that he’s not a crazy extemist, that his brand of change is safe. His choice of Biden will suggest that to at least some voters, including some of the working class, white Hillary primary voters. Of course Biden has plenty of warts, but they’re already displayed in neon letters for all to see, and it’s very unlikely that new ones will be discovered. Let’s hope McCain can do as well in connecting himself to his party.

WEEKEND UPDATE: Everyone should read Rob’s smart and challenging post below. I’m using my awesome NLT power to respond to here. Where’s the panic? The boring white guy scenario of Biden or Bayh has been there for months, and I’ve always thought it was the way for him to go. Biden is a bit better because of his foreign policy "leadership" and because he’s the less boring of the two. Hillary or Kaine or some gimmicky guy or gal (such as Wesley Clark or the woman from Kansas) would have been panic choices. Of course Obama couldn’t really like Biden that much. He chose with his head, not with his heart, contrary to the advice (we read) of the lovely Mrs. Obama. But I haven’t seen much real evidence (contrary to what he says) that Obama has much of a heart (and I mean that as Machiavellian praise). He’ll do, as he says, what he has to do to win, and Machiavellians don’t panic (and there is, objectively, not that much reason for him to do so, although he should be concerned that he’s been unable to seal the deal). Biden is boring and silly some of the time, but to be really fair and balanced, he was often pretty good in the pre-primary debates. He is certainly more charming than Bayh. Anyone who remembers and is bothered by (like me) Biden’s performance in the Clarence Thomas hearings is not a likely Obama voter. What Obama himself said about Thomas was more of cheap shot than anything I remember Biden saying, and probably studies have shown Obama that taking shots at Thomas is a good way of energizing his base.

I got a really mean private email criticizing me for saying good things about Obama strategy. But I really think the tendency among conservatives is to underestimate this guy. McCain is going to have to be really savvy to be competitive, and I really do want Mac to win. (And I just read Pete’s comments--which are very similar to and more pithy and eloquent than mine.)

Biofuels and Biafra

Okay, so "Biafra" is a bit dated, but this old Jay Leno video from the 1980s has one of my all time favorite routines of his, about Mr. Potatohead. (See about the 2 minute mark.)

How do you explain to a starving kid in Biafra, Leno asks, that in America we grow food for amusement purposes? He quotes Kimba: "Kimba eat potato." "No, no, Kimba--you put this little hat on it."

Well, he can update this routine now with corn-based ethanol as his example.

Jefferson and Modern Nihilism

While looking for a Jefferson quote, I happened upon this website. Note the name: "" I suppose they are unfamiliar with the Sage of Monticello’s comment: "I consider belief to be the assent of the mind to an intelligible proposition." Jefferson, of course, believed that a "Wall of Separation" was a reasonable way to disestablish religion in America precisely because he believed that the teachings of natural law were intelligible, and therefore could be comprehended by reason. He left speculative opinions outside the wall, for people to entertain in private. Nowadays, we have many Americans who believe in the wall of separation, but no longer believe in natural law. The result is what one would expect.

Obama’s Convention

Andy Busch has some advice for Obama and his team: Don’t use your convention to try to connect McCain with Bush. Rather, use it to define Obama and what he stands for. Andy is right, of course.

Do note that all the polls (see realclearpolitics) are showing that McCain has gained on Obama during the last week. In most polls Obama has been ahead by six or seven points, but now he is down to only three or four. Also note that Reuters/Zogby has McCain up by five points (in July he was down by seven). Despite the Obama hype in some quarters--he appears on the front of Time magazine for the seventh time in a year--he is not gaining any voters. This is a bad love affair: the more folks see of him, the less they are inclined to vote for him. He is not as pretty as they thought on first sight.

This would indicate to any serious Democratic actor that Obama needs to re-define himself, while throwing a lot more substance around than he has thus far (and also he should stop changing his mind on issues). The convention is the best place to start talking about the new, substantive, aggressive, no-more-mind-changing-on-major-issues Obama. This is it. He has to pull in the Hillary supporters because of what he says and does. If he can’t do that, he will never be able to attract any independents. In short, he will lose, and not by a small margin, if he keeps up what he has been doing.

So Andy Busch is right: The question mark around Obama has to be removed, and he is the only one that can remove it. Further, if he thinks that a great speech at the convention will do that, or the so-called perfect VP nominee, he is wrong. In short, he is now at the tail-end of a collapsed longest campaign already, and the convention is his great opportunity to crawl out of the whole he has dug for himself and start a brand new campaign. He is now at a massive disadvantage and his people know this. They are near panic. This is not the position they expected to be in just before their convention.

Guelzo on the Debates

Allen Guelzo in conversation with Bennett the Lincoln-Douglas debates. Excellent. Circa 12 minutes long. You’ll find the link on the right.

More VP Gossip

Here Byron York speculates, based on what he’s learned from his sources, that Mac would definitely pick Lieberman or Ridge if he knew for certain he would win. I have to admit that if I had to choose between the two, I’d go with Joe. I have to add that choosing either would make winning a lot more unlikely.

The other big issue: Does Obama, given his recent multifaceted swoon, now need Hillary? Experts disagree. I think not.

The Vital Center?

Jim Geraghty notes Chicago Mayer, Richard Daley’s effort to suggest Senator Obama’s friendship with William Ayers was no big deal:

Daley comments: "It’s really unfortunate. They’re friends. So what? People do make mistakes in the past. You move on. This is a new century, a new time. He reflects back and he’s been making a strong contribution to our community."

A few mistakes in his past? Andy McCarthy reminds us about who, exactly, Ayers is:

Bombing the Pentagon is one of those “mistakes” that people make? Bombing the U.S. Capitol, too? And a police headquarters? Most of the people I know of who’ve made such “mistakes” now receive their mail at the United States “Supermax” Penitentiary in Florence, Colorado.

And Ayers hasn’t “moved on.” When he “reflects back,” he brazenly says he’s sorry only that he didn’t do more in the way of terrorism.

But from the perspective of much of the mainstream Left, Ayers is an ally. In this context, we should remember comments that the current Publisher of the New York Times made a couple of years ago, addressing college graduates:

’I will start with an apology,’ Sulzberger told the graduates, who wore black gowns and hats with yellow tassels. ’When I graduated in 1974, my fellow students and I ended the Vietnam War and ousted President Nixon. OK. OK. That’s not quite true. Maybe there were larger forces at play.’"

He went on to lament that his generation "had seen the horror and futility of war and smelled the stench of government corruption. Our children, we vowed, would never know that. So, well, I am sorry." ...

"It wasn’t supposed to be this way. You weren’t supposed to be graduating in an America fighting a misbegotten war in a foreign land. You weren’t supposed to be graduating into a world where we are still fighting for fundamental human rights, be it the rights of immigrants to start a new life, the right of gays to marry or the rights of women to choose."

To the people who run the Times, and to those who share their perspective, Ayers is only slightly out of the mainstream.

Union Business as Usual

From today’s L A Times:

The head of California’s largest union local has stepped aside in the wake of Times reports that the organization and a related charity paid hundreds of thousands of dollars to firms owned by his wife and mother-in-law.

And the Democratic party wants to get rid of the secret balott for Union organizing?

Which is Truth and Which is Fiction?

You be the judge.

Allen Guelzo on Bennett’s show

Allen Guelzo will be on Bill Bennett’s "Morning in America" tomorrow at 7:30 a.m. for you non-academics who get up that early. It’s a call-in show, so you can talk to him about his new book, Lincoln and Douglas: The Debates that Defined America. The academics can pick it up later, as it gets archived.

A Fairly Gentle Criticism of McCain’s Reckless Rhetoric

......from, of course, the fair and balanced WASHINGTON POST. We shouldn’t even seem to make promises to countries like Georgia that we aren’t prepared to keep or rachet up the confrontational rhetoric against countries we aren’t really willing to confront. That’s why I have real reservations about bringing Georgia into NATO, especially in view of Europe’s timid response to the recent invasion. Whatever Mac’s shortcomings, however, Obama is clearly worse. When it comes to real tyrants or even just real imperialists, displays of "soft power" just provoke contempt.

Tilting at Windmills

Michael Bloomberg as Don Quixote. (H/t the Corner).

Please Do My Homework for Me--Part 1.

I ended up on three panels at next week’s American Political Science Association Meeting in Boston. That means I have lots to do over the next week. The easiest and hardest of these three assignments is being on a roundtable on social consservatism and the upcoming election. It’d be easy to shoot the bull for 10 minutes, and all you wise and wordy threaders have given me plenty of amunition there. But to display my brilliance to the best effect, I probably need to make only or two amazingly cogent points. My question to all of you: What would you say under such circumstances and why?

More on the Rick Warren Show

This article seems to be based on the theme that McCain’s simplistic directness may have played better with swing voters than Obama’s thoughtfulness. But it actually shows with some "specificity" how thoughtless, illogical, and inaccurate Barack’s abortion answers were.

AND it’s reported on NRO’s THE CORNER that McCain and/or his people are calling around to conservative leaders to check out how ticked off they would be if he picked a pro-choice running mate. Amazingly enough, I haven’t been called yet, maybe because they don’t have my new cell number. But here’s my advice: Don’t blow this big advantage you now have on this key issue. Listen, Mac, please: You can’t pick a running mate who can’t honestly say that, in his or her opinion, ROE v. WADE was wrongly decided. No Ridge, no Lieberman, and no some maverick nobody has ever heard of.

Jim Ceaser Vindicates the Kansans

...against a famous author who thinks he knows what’s the matter with them. Kansans know that the Republicans have been more right than not when it comes to national security and the economy, although, God knows, they haven’t always been right. So Jim is confident that they won’t vote to turn the whole government over to the Democrats. Don’t let the Democrats have it all has to be one McCain battle cry among many this fall. (Thanks to Ivan the K.)

Gerson on the Rick Warren Show

Michael’s official message is that McCain did well. My own view is that, overall, Obama did too, and he was probably more comfortable with the format. BUT Gerson’s big news concerns what Barack said that was lame, illogical or evasive enough for Republicans to exploit.

Why Michael Phelps Reminds Me of Senate Elections

Since NLT’s sports editor Pat Garrity seems to have gone on strike, I’ll have to pick up the slack. One of the most impressive aspects of Michael Phelps’ terrific tun in the pool in Beijing (aside from his 12,000 calorie-a-day diet--three fried egg sandwiches and a five-egg omelet for breakfast each day; that’s a man after my own heart attack) is how he wins the close ones. I assume everyone has seen the footage of the butterfly where he was clearly trailing in the last five meters but managed to get his hand to the finish line first anyway. That’s what happens when everything is clicking.

Senate races remind of this. We’ve seen four cycles over the last couple generations where most of the key senate races fell to one party or the other, even in cases where the other party should have won: 1980, 1986, 1994, and 2006. I’d predict another Democratic sweep this year except that Obama may have reverse coattails, as several commentators have suggested. It will be a good test of whether some voters consciously favor divided government, in which case three or four embattled GOP senators will hang on. Unless of course Obama collapses (not out of the question in my mind) and McCain breaks it open, in which case we’d have the paradoxical situation of a Democratic sweep in the senate races. All of which makes handicapping politics this year more peculiar than Olympic gymnastics scoring.

So What? A Thought Experiment

Okay, I suspect this could be a hot potato, but what the heck. Our friends over at have debunked yet another Obama is a secret muslim story. Good that someone in the right-blogosphere is policing pure rumor-mongering from our side of the aisle. It seems to me that Obama’s connection with the Rev. Wright is more damaging than being a muslim.

In fact, let’s stipulate for the purposes of a clarifying discussion that Obama was an actual muslim, and not a supposed closet muslim. So what? Beyond the Article VI clause that there is no religious test for office, why would it make a difference if Obama were a muslim? Do we really think he would try to hand the country over to Osama, or to the mullahs and clerics of Tehran or the West Bank? Or try to impose sharia law on America’s women? Liberal Democrats would lead the charge to impeach him faster than Nancy Pelosi runs into a botox clinic. I’m more worried that he’ll merely want to turn the country over to Jimmy Carter.

To be sure, Americans broadly speaking want their presidents to be religious (polls show that Americans would not want an explicit atheist in the White House), so being a devout muslim, while exotic, should not in itself be a nonstarter. The real problem here is that we can’t make up our mind whether Islam is compatible with Anglo-American democracy, and are afraid to talk about this problem openly. As Pope Benedict found out, if you do try to bring up the deepest roots of this uncertainty, you often get a bad reaction.

Smart Reforms?

The always interesting Charles Murray’s next book will be on education reform. He published a piece on the subject in the Wall Street Journal last week, and has another piece on the New York Post today.

Does the Election Turn on Colorado?

That’s what this expert claims, at least if it were held today.

The Rick Warren Show

Well, both candidates did pretty well on the event MCed by that hugely influential nice guy pastor. One big opportunity was presented to McCain, and I hope he sees it and chooses to use it: Obama said both that he was for ROE v. WADE and that he has no idea when a foetus/baby got human rights. (His defense of ROE--that we have to assume that women are morally serious when they make abortion decisions--was exceptionally lame.) Obama also said that, although he was personally against same-sex marriage, the Constitution leaves mrriage to the states. McCain agreed on where the Constitution places decisions concerning marriage, while being tough on opposing activist, judically lelgislating judges. McCain added said he was certain that babies get rights at conception, and we assume that Mac meant that, although his opinion is quite reasonable, he was far from claiming that Courts should simply identify it with what the Constitution says. The reasonableness of his opinion, by itself, would be enough to negate ROE, without producing a kind of pro-life judicial activism.

Now if even a man of Obama’s great intelligence doesn’t know when unborn babies get rights, or even if they have them at all, doesn’t it follow that such decisions should be left to legislatures? Such decisions have to be made, and our Courts should trump our legislatures only when the evidence is clear. And if marriage is also left to the states, then surely the federal Courts should have nothing to say about any rght to same-sex marriage.

Wouldn’t it be great if McCain actually began a populist campaign (see George Will today on McCain’s need to get populist on something) against rights-based judicial activism? The danger, for example, is not that the people acting through the states might choose same-sex marriage, but that it be imposed on them as a matter of individual rights. Because that campaign would be against judicial mandates that seems to force evangelicals to choose between being good Christians and good American citizens, maybe the enthusiasm gap that plagues Mac so far would start to close.