On government eavesdropping: Just because you can't find the body doesn't mean there wasn't a murder

Over at No Left Turns, Justin Paulette drops a bomb in the middle of a complaint about Great Britain:

I've previously mentioned several of his examples on NLT, but Mark Steyn sums up the absurd charade of "rights"-based oppression prevailing in Great Britain. It's shamefully ironic that George Bush was consistently denounced for rights-depleting policies by which (as in the "domestic spying program") not a single American can be located who was in any manner harmed in the slightest - yet Democrats merrily seek to silence conservative talk-radio and liberals would arrest pro-life prayer groups as organized crime syndicates without the slightest sense of contradiction or hypocrisy.

I think the last bit of Paulette's claim here is either overstated or outright wrongheaded, but let's leave that alone for his second. I'm struck by his claim that we can't find a "single American" who was harmed by the domestic spying program.

Well of course we can't. We're not allowed to know who was spied upon! And thus we don't know who might've been harmed. Here's the ACLU's summary of the dismissal of its lawsuit against the program:

In July 2007, the Sixth Circuit Court of Appeals dismissed the case, ruling the plaintiffs in the case - which includes scholars, journalists, and national nonprofit organizations - had no standing to sue because they could not state with certainty that they have been wiretapped by the NSA.

The decision "insulates the Bush administration's warrantless surveillance activities from judicial review and deprives Americans of any ability to challenge the illegal surveillance of their telephone calls and e-mails," said ACLU Legal Director Steve Shapiro. He added the ruling "did not uphold the legality of the government's warrantless surveillance activity. Indeed, the only judge to discuss the merits clearly and unequivocally declared that the warrantless surveillance was unlawful."

Because the appeals court refused to rule on the legality of the program, Americans were denied the chance to contest the warrantless surveillance of their telephone calls and e-mails.

When a group came forward with proof it had been surveilled -- the evidence was accidentally given to them by government lawyers -- the government tried to invoke the State Secrets Act. If there was harm (both the Bush and Obama administrations argued) too bad: It couldn't be talked about in court. It would just have to be swept under the rug.

I don't mind if Justin Paulette is concerned about political correctness swamping the rights to free speech; I even share some of his concerns. But his point is undermined by invoking an example where the absence of evidence a "single American" who was harmed by a government spying program might, in fact, be evidence of the government's overreach.

Federalist Interlude: On the Perils of Public Autodidactism

Here's the problem with a project like live-blogging your way through the Federalist Papers -- it quickly becomes apparent to everybody else how much you might not know. In a classroom, you can mostly hide -- and when the moments come to prove your knowledge, well, often those tests are literally tests, and the results of them remain between you and your instructor.

Here, I'm liable to embarrass myself before literally tens of people. Some of them my friends.

I mention this because several people -- Glomarization in the comments, another friend behind the scenes -- have gently suggested that perhaps I'm reading the Federalist Papers in a bit of a vacuum: That I'm not really accounting for or explaining how badly the Articles of Confederation (America's constitution before the Constitution) were broken while I toss around insults like "douchebag" at Alexander Hamilton and "strawman" at John Jay.

And, well, they're right.

Part of this, I think, is a problem of my own expectations: I knew that the Federalist Papers were authored, basically, in support of ratifying the new Constitution. And the new Constitution was created, basically, because those Articles of Confederation weren't really working all that well for the new United States. So I guessed -- incorrectly? correctly? -- that part of the process of persuading the public to ratify the Constitution would involve a little bit of comparison. Not just "This new Constitution is awesome!" but "This new Constitution is awesome -- and here how it's better than the old Articles!"  In other words, I think I expected the context to reveal itself somewhat.

Which is perhaps fine for me as a reader. Maybe less fine for those of you who kindly bother to follow me on this little journey.

The other part of the problem is this: I don't have a teacher in this process. A classroom instructor can guide you through a text, providing context and information along the way. I don't have that; I'm improvising. In my defense: I've got a copy of "The Antifederalist Papers" open side-by-side with my copy of "The Federalist Papers." Additionally, I've spent considerable time with each chapter trying to Google my way to contextual knowledge.

Absent that, though, my knowledge of the Articles boils down to a 20-year-old drive-by from basic civics class: In those days, the United States was led by a weak Congress with no power to tax or, really, lead the country in a unified direction: The states possessed more power in this configuration than they do now. States didn't necessarily respect the laws and regulations of their neighboring states. It was a bit chaotic.

And ... that's about it. Which, for this project, probably isn't enough.

The smart thing to do right now would probably be to abandon this project, or at least the public portion of it. But lordy, that's not what the Bloggy Age is about! Frankly, I'm doing this in public in  large part because I hope I'll get some  pushback and education from my knowledgeable friends. I'll hazard looking stupid, because I figure that's the best way for me to get smarter. It's either that, or go back to college. And I ain't got time for that.

So onward ho. We'll return to "The Federalist Papers" tomorrow.

Federalist No. 2- Federalist No. 5: "Concerning Dangers from Foreign Force and Influence"

If you were a late 18th-century resident of New York reading the Federalist Papers for the first time, I think there's a small-but-not-insignificant chance you'd only be a few pages into Federalist No. 2 before you started wondering if "Publius" -- the supposed author of these papers -- is a touch bipolar. Behind the scenes, of course, "bad cop" Alexander Hamilton has turned over the writing duties to "good cop" John Jay. The shift in tone is abrupt, even if the goal is the same.

Still, if Detective Hamilton looks bad because he's bringing rubber hoses and lead pipes into the interrogation room, we can't let Jay off the hook too lightly. Because his job here is to make the case that -- despite what opponents of the proposed Constitution tell you -- it's important that the United States actually remain united states. So Federalists No. 2 through 5 are all about the wisdom of sticking together. Unless I'm missing something, though, Jay is arguing against strawmen.

It is well worthy of consideration therefore, whether it would conduce more to the interest of the people of America that they should, to all general purposes, be one nation, under one federal government, or that they should divide themselves into separate confederacies, and give to the head of each the same kind of powers which they are advised to place in one national government.

And later:

With what propriety, therefore, or for what good purposes, are attempts at this particular period made by some men to depreciate the importance of the Union? Or why is it suggested that three or four confederacies would be better than one?

Yeah! Why do those guys want to break us all up?

Wait a minute. Which guys are those?

Damned if I know. Remember: I'm not an academic. I've got what I think is a decent knowledge of American history, but I can't remember the names of anybody who suggested -- at this point in time -- that America would be better off breaking into pieces. A quick Google search does me no good. I even download a copy of "The Anti-Federalist Papers," hoping to find an example. But what I find, skimming through chapter headings, are a series of other objections: the Constitution's lack of a Bill of Rights (it would later be added), along with a whole host of what might now be called "big government" concerns about taxes and tyranny. What I don't find, though, is a "let's call the whole thing off" attitude about the Union.

Skimming through the Antifederalists, in fact, what's striking is that they -- like the Federalists -- believe the Articles of Confederation (basically: the constitution before the Constitution) are broken. They just think the proposed Constitution isn't necessarily the right solution. Here's "Centinel," writing in Antifederalist No. 21:

That the present confederation is inadequate to the objects of the union, seems to be universally allowed. The only question is, what additional powers are wanting to give due energy to the federal government?

Well, that seems to be a fair question, doesn't it? Even an enduring one.

But we're moving into Federalist No. 3 now, and Jay finally sets himself to the task of answering his strawman question: Union (unh!): What is it good for?

Safety, basically.

Thirteen separate states, he says, will have 13 different ways to give offense to the wider world, increasing their chances of stumbling into war. A unified nation is less likely to go to war over, say, border problems than a border state itself would. Jay doesn't really explain, though, why Massachusetts should care if (say) Virginia goes to war. He's assuming the attachment to Union, I think, because he knows he's already got it -- he knows he's arguing against strawmen.

There's also safety -- and quality -- in numbers. Bigger city high schools usually have better basketball teams than small towns because they have a bigger talent pools to draw from; Jay figures the same thing. Jay starts this case in No. 3, and continues making it in No. 4.

One government can collect and avail itself of the talents and experience of the ablest men, in whatever part of the Union they may be found. It can move on uniform principles of policy. It can harmonize, assimilate, and protect the several parts and members, and extend the benefit of its foresight and precautions to each. In the formation of treaties, it will regard the interest of the whole, and the particular interests of the parts as connected with that of the whole. It can apply the resources and power of the whole to the defense of any particular part, and that more easily and expeditiously than State governments or separate confederacies can possibly do, for want of concert and unity of system. It can place the militia under one plan of discipline, and, by putting their officers in a proper line of subordination to the Chief Magistrate, will, as it were, consolidate them into one corps, and thereby render them more efficient than if divided into thirteen or into three or four distinct independent companies.

Bigger is better. Less likely to be messed with. More able to achieve unity of purpose. And if it weren't for the whole "nobody seems to be arguing against Union, just about how it's going to be governed" thing, I'd think this case was pretty compelling.

Jay's got one last card to play along these lines, though. Unity, he says, will make Americans safer ... from each other. Splitting into separate states or confederacies, he says in Federalist No. 5, will only pit those states and confederacies against each other. North and South will most likely end up competing with and distrusting each other.

The North is generally the region of strength, and many local circumstances render it probable that the most Northern of the proposed confederacies would, at a period not very distant, be unquestionably more formidable than any of the others. No sooner would this become evident than the Northern Hive would excite the same ideas and sensations in the more southern parts of America which it formerly did in the southern parts of Europe. Nor does it appear to be a rash conjecture that its young swarms might often be tempted to gather honey in the more blooming fields and milder air of their luxurious and more delicate neighbors.
(snip)
Hence it might and probably would happen that the foreign nation with whom the Southern confederacy might be at war would be the one with whom the Northern confederacy would be the most desirous of preserving peace and friendship. An alliance so contrary to their immediate interest would not therefore be easy to form, nor, if formed, would it be observed and fulfilled with perfect good faith.

And here I'm tempted to give John Jay a break. The tensions between North and South were already apparent at the time. The Constitution's framers were doing the best they could to keep everybody together, even making concessions that let Southern states count their slaves as almost-people for the purpose of Congressional representation. So maybe the Constitution did delay the inevitable conflict.

What I don't know, though, is if that delay was worth it. Did the history of Union help the states patch their differences after the Civil War? Did slaves go free sooner or later because of the early compromises and the later war? Who knows? But it looks as though the shadow of the Civil War will be looming over upcoming chapters, so we'll have a chance to discuss this more.

A final thought: Back in Federalist No. 2, Jay makes the case for the Constitution by noting that its framers were, well, good guys -- patriotic and wise veterans of the Revolution. And no one can deny those men did good and useful work. Yet even where the Founders are concerned, I'm more than a little enamored of this reply by "Brutus Junior" in Antifederalist No. 38:

If we are to infer the perfection of this system from the characters and abilities of the men who formed it, we may as well determine to accept it without any inquiry as with. ... I confess I think it of no importance what are the characters of the framers of this government, and therefore should not have called them in question, if they had not been so often urged in print, and in conversation, in its favor. It ought to rest on its own intrinsic merit. If it is good, it is capable of being vindicated; if it is bad, it ought not to be supported. It is degrading to a freeman, and humiliating to a rational one, to pin his faith on the sleeve of any man, or body of men, in an affair of such momentous importance.

Maybe I'm wrong, but I feel like I'm finding something closer in spirit to modern, populist Tea Party conservatism in the Antifederalist Papers -- lots and lots of talk about tyranny -- than in the Federalist Papers. And maybe I'm just partial to contrarians, but I'm liking the pluck of the Antifederalists, too. All of which has me worried: Is this reading project going to turn me into a weirdo libertarian?

John Yoo's weird column about Elena Kagan

I'd say that John Yoo's Inquirer column about Elena Kagan is fairly standard talking points stuff -- hates the military, loves her ivory tower, mean to Clarence Thomas -- except for one kind of weird point that he makes. He's critical of Kagan's now-famous decision to support efforts to keep military recruiters off the Harvard Law campus because of Don't Ask Don't Tell. Which is fine, except...

I happen to agree that the president and Congress should allow gays to serve in the military. But Kagan announced her policy while the United States was fighting in Afghanistan and Iraq. And she defied a federal law - the Solomon Amendment - that ordered schools to provide equal access to the military for campus recruitment or risk losing federal funding.

Remember: John Yoo once suggested the president has the power to suspend even the First Amendment under his war powers, so it's no surprise that he criticizes Kagan for sharing his opinions -- but acting on those opinions during wartime. Which leads us to Yoo's summing up of his critique:

But it was more than just striking a pose. Kagan declared that excluding gays from the military was "a profound wrong - a moral injustice of the first order." Her argument, which lost 8-0 before the Supreme Court, shows she was an activist before she was nominated to be a judge.

Wait. What? "She was an activist before she was nominated to be a judge?" That's clearly meant to be a slam, but what the heck's wrong with that? I get why Republicans say they hate "activist" judges; are we now to believe there's something wrong with activist private citizens? And if so, what would Yoo say about Tea Parties or abortion protesters?

There's only two ways Yoo's argument makes any sense here:

* That he's so loyal to the GOP that he's gotta find a way to criticize Democrats even when they share his positions.

* That he honestly believes the duty of an American citizen -- at least in wartime -- is to submit without challenge to the decisions of government, even if those decisions are (by Yoo's own lights) wrong. In this universe, then, there is no right "to petition for redress of grievances," no check-and-balance provided by the judicial branch. The time-honored tradition of American dissent -- and of nonviolent resistance to laws deemed by citizens to be morally wrong -- is thus "activist," and thus potentially disqualifying when it comes to judicial nominations.

You might think Kagan was wrong to criticize the Don't Ask Don't Tell policy. You might think she was wrong for barring recruiters from Harvard campus. Fine. But Yoo goes a step further: He broadly criticizes Elena Kagan for acting on her beliefs at all because they conflicted with the laws and policies of the government. It's an argument that makes sense coming from torture advocate John Yoo, but that doesn't make it any less at odds with the American democratic tradition.

Federalist No. 1: America's Founding D-Bag

Alexander Hamilton has always seemed to me to be America's Founding Douchebag. That's probably unfair, but there's something about duelling -- Hamilton's involvement in an act that conferred "civilized" rules on a savage, life-taking act -- that struck me as ur-fratty. And though he's now celebrated for helping bring about the Constitution's ratification as one of the co-authors of "The Federalist Papers," his apparent monarchist streak still strikes me as at odds with the democratic nature of the government he actually helped launch.

Plus, there's the whole $10 bill thing.

So I'm not surprised, just a page into Federalist No. 1 -- written by Hamilton -- to discover that he was also possible America's Founding Negative Campaigner. Writing under the "Publius" name, he tells New Yorkers that backers of a new Constitution just want candy and kitties and charity for their fellow Americans. Opponents, he suggests, are merely motivated by selfish interests:

Among the most formidable of the obstacles which the new Constitution will have to encounter, may readily be distinguished the obvious interest of a certain class of men in every State to resist all changes which may hazard a diminuition of the power, emolument and consequence of the offices they now hold under the State-establishments -- and the perverted ambition of another class of men, who will either hope to aggrandise themselves with fairer prospects of elevation fromt he subdivision of the empire into several partial confederacies, than from its union under one government.

Let's step back a second: The purpose of the new Constitution was to centralize authority in the United States under a federal government. It was, in some respects, a power grab -- and Hamilton, as one of the framers and campaigners for the new Constitution, might reasonably be expected to be one of the chief beneficiaries of that grab. But Hamilton starts his campaign by criticizing the Constitution's critics -- they're the power grabbers, petty men who'd rather rule over several small fiefdoms than one big empire. At a vantage point of 200 years, at least, it's kind of hard to take Hamilton seriously when his approach is so naked and, well, unsubtle.

But Hamilton is smart, though, because he acknowledges as much in the next paragraph:

Ambition, avarice, personal animosity, party opposition, and many other motives, not more laudable than these, are apt to operate as well upon those who support as upon those who oppose the right side of a question.

This is the 18th century equivalent of sending Sarah Palin out to proclaim that "Barack Obama pals around with terrorists," only to back down a few days later with "He's an honorable man" utterances. The damage is done. We have, however, already learned a valuable lesson: Our Founding Fathers weren't demigods residing on Mount Olympus; they were politicians, with the willingness to roll up their sleeves and start hurling muck if needed. Folks fed up with the "tone" of our politics today should realize it was ever thus.

We're moving quickly, though, and Hamilton -- while he's probably not thinking about a 21st century audience for his words -- is quickly demonstrating not only that the tone of American politics has always been fractious, but the substance of the debates can be unchanging as well. At issue? The authority of a central government versus the rights and liberties of people under that government.  Conservatives these days argue that more centralized government means less freedom for citizens, but Hamilton goes out of his way to pooh-pooh that idea.

An overscrupulous jealous of danger to the rights of the people, which is more commonly the fault of the head than of the heart, will be represented as mere pertence and artifice; the bait for popularity at the expense of the public good. It will be forgotten, on the one hand, that jealously is the usual concomitant of violent love--

Get that? If you're too worried about the rights of the people, you're just like an abusive husband!

--and that the noble enthusiasm of liberty is too apt to be infected with a spirit of narrow and illiberal distrust. On the other hand, it will be equally forgotten that that the vigour of government is essential to the security of liberty; that, in the conteplation of a sound and well informed judgment, their interest can never be separated; and that a dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people, than under the forbidding appearance of zeal for the firmness and efficiency of government. History will teach us, that the former has been found a much more certain road to the introduction of despotism, than the latter, and that of those men who have overturned the liberties of republics the greatest number have begun their career, by paying an obsequious court to the people, commencing Demagogues and ending Tyrants.

Get that? If you're too worried about the rights of the people, you're probably a tyrant in waiting! Real liberty is to be found under the protection of a "firm" government. Sorry, folks, but I'm not losing the "douchebag" vibe from Hamilton here.*

*Don't get me wrong: Revolutions in "the name of the people" have given us tyrannies in Russia, China and a whole bunch of other places. Seeing as how Hamilton had somewhat recently participated in a Revolution aimed at throwing off a tyranny in the name of the proposition that "all men are created equal" his assertion here seems ... convenient.

Hamilton is winding down at this point. But he's also getting started. Yes, he says, he favors the new Constitution -- and the aim of the coming series of articles is to convince New Yorkers to ratify it, as well. Otherwise, he says, the United States will disappear.

For nothing can be more evident, to those who are able to take an enlarged view of the subject, than the alternative of an adoption of the new Constitution, or a dismemberment of the Union. It will therefore be of use to begin by examining the advantages of that Union, the certain evils and the probable dangers, to which every State will be exposed from its dissolution. This shall accordingly constitute the subject of my next address.

NEXT TIME: What's so great about the Union, anyway?

LeBron James and Ohio: Why President Obama might not be that smart

You know, if you're planning on running for president in 2012, alienating the population of Ohio might not be the smartest thing to do:

Include President Obama as another Chicago Bulls fan rooting for LeBron James to move to Chicago.

"He doesn't want to tamper," senior adviser to the president -- and former Bulls season-ticket holder -- David Axelrod said. "But as a Chicago fan, the president thinks LeBron would look great in a Bulls uniform."

Tens of thousands of Cleveland fans are beside themselves with worry that LeBron James will flee to a bigger market and the president -- or his representatives -- tweak that anxiety? It's not like Ohio is a swing state or anything. Voters notice these kinds of things. Jeebus.

Bag O' Books: 'The Federalist Papers'

I've never read "The Federalist Papers."

This is a little bit embarrassing to admit. I've spent a considerable portion of the last few years thinking and writing about government and politics, with arguments about the nature of the American Constitution often residing somewhere near the center of my debates. Yet I've never delved into the document that -- outside the Constitution itself -- does more to illuminate the thinking of the Founders who created the government that we still live with today.

It's even more embarrassing because many of those debates have been with my conservative friend and collaborator Ben Boychuk -- and, well, he has read "The Federalist Papers." And he's drawn on them, not infrequently, to make his case against the arguments I've made. I've felt slightly overmatched at times, as a result.

In my defense, I don't think I'm alone in this. I might be wrong, but I've noted that smart conservative commentators tend to invoke "The Federalist Papers" far more often than smart liberal commentators. (Everybody quotes Tocqueville, but that's another project.) I don't think it's because of any anti-intellectualism on the part of liberals: I suspect that liberals -- while respecting much of the founding legacy -- don't feel nearly as chained to it conservatives do. Conservatives, I think, feel that if you can successfully invoke the Founders, you've probably won the argument. Liberals, on the other hand, consider the founding vision to be a critical part of the argument -- but not the trump card. And truth is, I'm sympathetic to the latter vision. I don't think of the Founders as "dead white males" but I do think they built a government for a society that was more rural, more racist, more homogeneous and much less egalitarian than today's.

Still, I feel like I'm missing a critical piece of political literacy. So starting today, I'm going to start reading my way through "The Federalist Papers." And I'll be documenting my journey here. I'm not sure if it matters, but I'll be using a Bantam Classics version of the collection, complete with an introduction by Garry Wills. (Which, yeah, he rubs elbows in liberal circles pretty extensively -- but he started out in the conservative tradition.) I'll update my progress very few days.

Let's be clear, though. I'm not an academic. (Obviously.) I'm guiding myself through this as I go along. So ... I might go down some blind alleys in this journey. We'll find out.

And who knows? Maybe I'll get some "Julie & Julia" style book-and-movie deal out of this gig, with the interweaving stories of me reading the book and Alexander Hamilton dying a bloody, painful death.

More likely I'll come out on the other side of this an Antonin Scalia-style originalist conservative. Anything could happen.