Federalist No. 22: Why the U.S. Senate and Jimmy Stewart both suck

Let's talk about the filibuster.

Back up: There's no discussion of the U.S. Senate or the filibuster by Alexander Hamilton in Federalist 22. Hamilton's wrapping up a long discussion of why the Article of Confederation are a bad way to run the United States -- and while he touches on a few topics here, he spends most of this essay talking about one particular evil: Under the Articles, it's all too easy for a minority of states with a minority of the U.S. population to obstruct the will of the majority.

And what becomes clear is this: If the pre-Constitution U.S. government was unworkable because of such problems, well then: Today's U.S. government is unworkable.

Under the Articles, see, each state -- no matter how thickly or thinly populated -- had an equal voice in the national governance. What's more, it took the consent of two-thirds of the states to pass major legislation: In an era where the United States comprised just 13 states, that meant that five states could block action.

And that, Hamilton huffed, was no way to run a republic.

Its operation contradicts the fundamental maxim of republican government, which requires that the sense of the majority should prevail. Sophistry may reply, that sovereigns are equal, and that a majority of the votes of the States will be a majority of confederated America. But this kind of logical legerdemain will never counteract the plain suggestions of justice and common-sense. It may happen that this majority of States is a small minority of the people of America;3 and two thirds of the people of America could not long be persuaded, upon the credit of artificial distinctions and syllogistic subtleties, to submit their interests to the management and disposal of one third.

He adds later:

The necessity of unanimity in public bodies, or of something approaching towards it, has been founded upon a supposition that it would contribute to security. But its real operation is to embarrass the administration, to destroy the energy of the government, and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority. ... When the concurrence of a large number is required by the Constitution to the doing of any national act, we are apt to rest satisfied that all is safe, because nothing improper will be likely to be done, but we forget how much good may be prevented, and how much ill may be produced, by the power of hindering the doing what may be necessary, and of keeping affairs in the same unfavorable posture in which they may happen to stand at particular periods.

Here's the thing: Hamilton's critique of the Articles of Confederation is precisely applicable to the United States Senate.

Equal representation for each state, regardless of state size? Montana and New York both have two senators each, even though the population of Montana wouldn't even fill out Manhattan.

And a supermajority requirement for major legislation? That's pretty much the case in the Senate, where 60 votes are required to break a filibuster -- and a filibuster is brought, by one account, against 70 percent of all legislation.

George Will, who likes the filibuster, did the math in February after Scott Brown's election to the Senate:

Liberals fret: 41 senators from the 21 smallest states, with barely 10 percent of the population, could block a bill. But Matthew Franck of Radford University counters that if cloture were blocked by 41 senators from the 21 largest states, the 41 would represent 77.4 percent of the nation's population. Anyway, senators are never so tidily sorted, so consider today's health impasse: The 59 Democratic senators come from 36 states containing 74.9 percent of the population, while the 41 Republicans come from 27 states -- a majority -- containing 48.7 percent. (Thirteen states have senators from each party.)

Enjoyable how Will counts the number of states as a majority, and not the number of voters. As the Senate is currently constructed, though, the minority -- both in the number of senators and in the amount of population they represent -- routinely frustrates the will of the majority.

And Hamilton likened this state of affairs to "poison."

Should he have known that his critique would also be a problem under the new Constitution? Kinda, maybe. After all, the Senate was always proportioned to give each state an equal say. And since any legislation that would pass Congress would have to pass the Senate, it was always going to be the case that more-populated states would be proportionally less powerful in the national governance.

Where Hamilton maybe gets a pass: The filibuster isn't written into the Constitution. It's part of Senate rules, which the Senate itself adopts. Every few years there's talk of abolishing the filibuster, but whoever is in the minority -- sometimes it's Democrats and sometimes its Republicans -- usually starts waxing eloquent about the rights of the minority, and nothing ever comes of it.

And I wonder: Why don't they bring up Hamilton's critique of the Articles of Confederation? And why aren't conservatives like Will -- who seem to think they're more faithful than thou on matters of fidelity to the Constitution and the Founders -- the loudest voices on this? True, Hamilton wasn't directly criticizing today's U.S. Senate, but that doesn't matter. The state of affairs he describes is exactly the same.

Deborah Solomon answers questions!

In the New York Times Book Review. An excerpt noted without comment:

How does one train to ask good questions?

It’s probably not a learned skill so much as a personality defect.

Heh.

President Obama's tin ear about BP

Well, this is just dumb:

President Barack Obama said Friday that some members of Congress should share the blame for the Gulf of Mexico oil spill.

In an exclusive one-on-one interview with POLITICO, the president said: “I think it’s fair to say, if six months ago, before this spill had happened, I had gone up to Congress and I had said we need to crack down a lot harder on oil companies and we need to spend more money on technology to respond in case of a catastrophic spill, there are folks up there, who will not be named, who would have said this is classic, big-government overregulation and wasteful spending.”

Dumb. Transparently dumb. I know you're taking a lot of heat right now, but blaming Congress for its hypothetical reaction to your hypothetical proposal is ... dumb. You might be right about the hypotheticals, but here's the problem: You never actually took any such proposal to Congress.

Let's remember: I'm someone who wants to support you!

Maybe because of that, I suspect that a lot of the blame headed your way for not fixing the spill is unfair. But this effort to spread the blame stretches credulity. It's so inartful, in fact, that all it really does is embarrass you. Start doing better, Mr. President.

George Washington and Abe Lincoln: Founding Gay Bashers?

Via Andrew Sullivan, a little bit of patriotic gay-bashing:

Yuma Mayor Al Krieger said he spoke from the heart in a Memorial Day speech at Desert Lawn Cemetery. Krieger said, "And I cannot believe that a bunch of limp-wristed, lacey-drawed people could do what those men have done in the past."

Over a week after those comments, Krieger said there's nothing he would change. "I'm reluctant to compare myself to George Washington or Abraham Lincoln, but I did get some feedback, and I don't think I said anything different than what they would have said."

Well sure, who can forget the stirring climax to Lincoln's Second Inaugural?

With malice toward none, with charity for all, with firmness in the right as God gives us to see the right, let us strive on to finish the work we are in, to bind up the nation's wounds, to care for him who shall have borne the battle and for his widow and his orphan, to do all which may achieve and cherish a just and lasting peace among ourselves and with all nations. Except for the queers.

Or the finale of Washington's Farewell Address?

Though, in reviewing the incidents of my administration, I am unconscious of intentional error, I am nevertheless too sensible of my defects not to think it probable that I may have committed many errors. Whatever they may be, I fervently beseech the Almighty to avert or mitigate the evils to which they may tend. But at least I'm not a pansy. Wait. Did that sound gay?

Brings a tear to your eye.

What's more important? Cutting the deficit or spurring job growth?

That's the question for this week's Scripps Howard column. I take a slightly fatalistic approach:

Actually, the debate is already over. Americans may be worried about their jobs, but it's possible they're even crankier about the growing national debt. Politicians in Washington D.C. are responding accordingly, with President Obama even calling on most federal agencies to reduce their budgets by 5 percent. With a bipartisan deficit commission now on the job, those cuts may just be the beginning.

Perhaps that's as it should be: The bill for decades of deficit spending – in good times and bad, under both Republican and Democratic presidents – was going to come due sooner or later. It appears now may be the time. But Americans should understand one thing about the belt- tightening: It's gonna hurt.

Federal spending doesn't just prop up unpopular programs, after all: Right now, it's helping keep teachers and police officers on the job while states and cities deal with their own budget problems. Austerity will threaten such efforts. There is even talk the deficit commission will recommend big changes – and, perhaps, big cuts – to Social Security benefits. Americans won't like that one bit, but it's a logical result of efforts to bring spending under control.

The problem, as economist Paul Krugman explains, is that cutting spending during a recession is costly and ineffective. "Costly, because it depresses the economy further," he writes. "Ineffective, because by depressing the economy, fiscal contraction now reduces tax receipts."

So: Job growth or deficit reduction? Austerity now might give us very little of either. But it will still hurt a lot.

Federalist 16-20: Alexander Hamilton's hopey-changey thing

Here we are, once again: The shadow of the Civil War -- about 70 years in the future -- keeps popping up as we make our way through the Federalist Papers. Why? Because Alexander Hamilton, John Jay and James Madison keep making the case that the United States under the Articles of Confederation is prone to such a war.

Hamilton revisits this theme in Federalist 16, suggesting that the states under the Articles have so much latitude to act on their own -- instead of falling in line under a central government -- that conflict is more likely to arise between the states. "The first war of this kind," he warns, "would probably terminate in a dissolution of the Union."

There's another possibility, though, as Hamilton admits: If one state went its own way in defiance of the national government, the other states would probably do likewise -- rather than make a big deal and incite war. "And the guilt of all," Hamilton writes, " would become the security of all."

And I admit: I'm having a hard time finding a major flaw in that arrangement. It appears there are two possible ways of insuring against a civil war: building a central government with the power to keep the states in line, or giving the states the freedom to act on their own and not impose laws and rules on each other.

Indeed, the antifederalists argue that building and empowering a centralized government will make a civil war more likely -- and more devastating when it occurs. "A Farmer" is one of those who made the argument.

Whether national government will be productive of internal peace, is too uncertain to admit of decided opinion. I only hazard a conjecture when I say, that our state disputes, in a confederacy, would be disputes of levity and passion, which would subside before injury. The people being free, government having no right to them, but they to government, they would separate and divide as interest or inclination prompted-as they do at this day, and always have done, in Switzerland. In a national government, unless cautiously and fortunately administered, the disputes will be the deep-rooted differences of interest, where part of the empire must be injured by the operation of general law; and then should the sword of government be once drawn (which Heaven avert) I fear it will not be sheathed, until we have waded through that series of desolation, which France, Spain, and the other great kingdoms of the world have suffered, in order to bring so many separate States into uniformity, of government and law; in which event the legislative power can only be entrusted to one man (as it is with them) who can have no local attachments, partial interests, or private views to gratify.

That kind of sounds like what happened, doesn't it? But Hamilton argues for big gubmint. Get this:

The government of the Union, like that of each State, must be able to address itself immediately to the hopes and fears of individuals; and to attract to its support those passions which have the strongest influence upon the human heart. It must, in short, possess all the means, and have aright to resort to all the methods, of executing the powers with which it is intrusted, that are possessed and exercised by the government of the particular States.

There's a lot of talk here about pretty mushy concepts like "hopes" and fears" and "the human heart." It sounds, in fact, almost Obama-like. Hamilton isn't really talking about limited government staying out of the way of citizens, who are then free to make their own way by dint of their rugged individualism. He's talking about using the power of the state in the service of citizen self-actualization. When Democrats talk like this these days, my conservative friends react with horror and contempt. Am I missing something?

Don't worry, Hamilton says in Federalist 15. The federal government under the U.S. Constitution will be too limited to really infringe on the people, or even to displace state governments. And it's here that I confess: My conservative friends are probably right when they say Hamilton et al could never have imagined the huge federal government we have today. Here's Hamilton talking about those limitations:

I confess I am at a loss to discover what temptation the persons intrusted with the administration of the general government could ever feel to divest the States of the authorities of that description. The regulation of the mere domestic police of a State appears to me to hold out slender allurements to ambition. Commerce, finance, negotiation, and war seem to comprehend all the objects which have charms for minds governed by that passion; and all the powers necessary to those objects ought, in the first instance, to be lodged in the national depository. The administration of private justice between the citizens of the same State, the supervision of agriculture and of other concerns of a similar nature, all those things, in short, which are proper to be provided for by local legislation, can never be desirable cares of a general jurisdiction.

Mr. Hamilton: I give you the Department of Agriculture -- which has done more to affect why, how and what we grow and eat than any other institution in human history, perhaps. So there's that.
He keeps going.

There is one transcendant advantage belonging to the province of the State governments, which alone suffices to place the matter in a clear and satisfactory light, -- I mean the ordinary administration of criminal and civil justice. ... This great cement of society, which will diffuse itself almost wholly through the channels of the particular governments, independent of all other causes of influence, would insure them so decided an empire over their respective citizens as to render them at all times a complete counterpoise, and, not unfrequently, dangerous rivals to the power of the Union.

Mr. Hamilton, I give you the FBI. Bank robberies, no matter how third-rate and niggling, aren't really a local matter anymore -- they're prosecuted in federal courts. Just last month, the Supreme Court ruled that federal officials could civilly commit sex offenders who've served out their criminal prison sentences -- a role that used to be exclusively reserved to the states. And that ruling came from a conservative Supreme Court -- based on the so-called "necessary and proper clause" of the Constitution that gives Congress the power to make any law it needs to carry out its duties.

And hoo boy: The Antifederalists saw that one coming. Here's "Brutus," writing in Antifederalist 17.

The legislature of the United States are vested with the great and uncontrollable powers of laying and collecting taxes, duties, imposts, and excises; of regulating trade, raising and supporting armies, organizing, arming, and disciplining the militia, instituting courts, and other general powers; and are by this clause invested with the power of making all laws, proper and necessary, for carrying all these into execution; and they may so exercise this power as entirely to annihilate all the State governments, and reduce this country to one single government. And if they may do it, it is pretty certain they will; for it will be found that the power retained by individual States, small as it is, will be a clog upon the wheels of the government of the United States; the latter, therefore, will be naturally inclined to remove it out of the way.

Now it's not true that state governments have been "annihilated." But it is true that the trend has been that federal power has increased and state power has contracted. Which brings us to Hamilton's most flatly untrue statement -- though, perhaps, he couldn't have known it at the time.

It will always be far more easy for the State governments to encroach upon the national authorities than for the national government to encroach upon the State authorities.

It didn't really work out that way, did it?

Now, I don't think that's entirely bad. But if I'm honest here, I've got to say, the Antifederalists were generally right and the Federalists were generally wrong: The government being built under the new Constitution did morph into something big and powerful and giant, reaching into many areas of the lives of its citizens. Maybe that growth is a distortion of the Founder's vision -- probably, to some extent, it is -- but Hamilton's pretty blase about the possibilities. "It can't happen here," is what he seems to be saying. But it did.

Federalists 18, 19 and 20 also concern themselves, ostensibly, with the insufficiency of the Articles of Confederation -- but rely mostly on a verrrry dry reading of history from throughout the ancient world. I'm not familiar enough with Greek or German or Dutch history to judge the interpretations offered by Hamilton and Madison here, so I won't try.

But now I'm faced with a question: Will reading the Federalist and Antifederalist papers turn me into a libertarian weirdo? It's a possibility!

You know what? I hope that Sarah Palin runs for president. And loses. Badly.

I'm so tired of Sarah Palin's sense of grievance. But I know it's not going to go away -- it defines her. It is the reason, at this point, for her political existence. Don't believe me? Here's a Palin post offering President Obama advice on how to handle the BP oil spill.

My experience (though, granted, I got the message loud and clear during the campaign that my executive experience managing the fastest growing community in the state, and then running the largest state in the union, was nothing compared to the experiences of a community organizer) showed me how government officials and oil execs could scratch each others’ backs to the detriment of the public, and it made me ill.

You'd think Barack Obama had never, ever been a senator -- one elected to federal office two years before Sarah Palin became a governor. But you know what? I'm not going to replay the resume pissing match that indeed was resolved by voters two years ago.*

*OK, one item: A big chunk of Sarah Palin's gubernatorial experience with oil companies was using their money to send checks to Alaskans instead of taxing them. That looks nothing at all like the world non-Alaskans  live in.

But, lordy, a little class wouldn't hurt the woman would it? Showing respect for the president's actual accomplishments would be a good place to start -- unless Palin wants us to refer to her primarily as a onetime local sports anchor as the prime way we refer to her pre-2008 experience. It's true, of course, but it's not accurate. And showing a little respect for the voters -- instead of sneering at their judgment as she does here -- wouldn't be a bad second step.

The Flyers and feminism

You don't have to be a Flyers fan or a feminist to think this Chicago Tribune "pullout poster" is simply stupid:

Get it? HE'S A GIRL! Hahahahahahaha!

Jeebus. Flyers play the Blackhawks tonight. Now I doubly hope the Flyers win.

Federalist 15: Do today's Tea Partiers know about this?

I had thought I'd be taking these Federalist chapters in big chunks, rather than one-by-one, but it turns out there's a lot to think about in all of these. So we're going to have to go slowly.

You might remember that I said -- somewhat near the outset of this project -- that I expected some of the context of the Federalist would reveal itself as we proceeded through the papers. I wasn't entirely wrong, because we're now at Federalist 15, and Publius is ready to start telling us why the Articles of Confederation stink.

Not, of course, that he needs to make the case. From what I can tell skimming through the Antifederalist Papers, there's no great love for the Articles among any huge segment of the nascent American society. And Publius -- Alexander Hamilton in this particular chapter -- acknowledges as much.

The point next in order to be examined is the "insufficiency of the present Confederation to the preservation of the Union." It may perhaps be asked what need there is of reasoning or proof to illustrate a position which is not either controverted or doubted, to which the understandings and feelings of all classes of men assent, and which in substance is admitted by the opponents as well as the friends of the new Constitution.

So what's the problem here, exactly?

Well, as Hamilton puts it, the antifederalists know the Confederation doesn't work -- but they're unwilling to countenance a government strong enough to overcome the Confederation's problems.

While they admit that the government of the United States is destitute of energy, they contend against conferring upon it those powers which are requisite to supply that energy. They seem still to aim at things repugnant and irreconcilable; at an augmentation of federal authority, without a diminution of State authority; at sovereignty in the Union, and complete independence in the members.

Hmmm. Let me say right here I'm not trying to score any political points. But I've increasingly suspected -- reading the Federalist Papers and skimming over the Antifederalist Papers -- that today's Tea Party/GOP/conservative crowd might be heir more to the antifederalist tradition rather than the federalists. I'm not ready to mount a definitive case here -- I've not done enough reading, and in any case I've already suggested that Alexander Hamilton may not be the most reliable narrator -- but this passage here adds to my sense of things. Because it sure sounds like Hamilton is describing the kind of schizophrenia that characterizes a movement that roots on a president who breaks wiretapping and torture laws while decrying slightly higher marginal tax rates as "tyranny."

But I might be overreading things. I'm not ready to make the case. So let's move on.

Because of the antifederalist bipolar approach, Hamilton says, he's going to have to show how the Confederation really doesn't work. And he starts off with the biggest problem: The national government has too little power, while the states have too much. That means the states can -- and do -- ignore the laws made by the national government. It's an untenable situation.

The United States has an indefinite discretion to make requisitions for men and money; but they have no authority to raise either, by regulation extending to the individual citizens of America. The consequence of this is, that though in theory their resolutions concerning those objects are laws, constitutionally binding on the members fo the Union, yet in practice they are mere recommendations which the States observe or disregard at their option.

Up till now, Publius has talked long and hard about the need for the United States to remain, well, united. Now he takes a different tack: It would be better for the states to exist as separate nations -- though allied, like the NATO alliance -- rather than allow the national government to continue in such an emasculated state. Otherwise, Hamilton writes, it's time to give a national government the power to enforce the laws it makes -- even over the objections of the states.

Government implies the power of making laws. It is essential to the idea of a law that it be attended with a sanction; or, in other words, a penalty or punishment for disobedience. If there be no penalty annexed to disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation.

He continues:

There was a time when we were told that breaches, by the States, of the regulations of the federal authority were not to be expected; that a sense of common interest would perside over the conduct of the respective members, and would beget a full compliance with all the constitutional requisitions of the Union. ... In our case, the concurrence of thirteen distinct sovereign wills is requisite, under the Confederation, to the complete execution of every important measure that proceeds from the Union. It has happened as was to have been forseen. The measures of the Union have not been executed; the delinquencies of the states have, step by step, matured themselves to an extreme, which has, at length, arrested all the wheels of the national government, and brought them to an awful stand.

And here again, I'm thinking of today's Tea Party/conservative/GOP folks who regularly assert the rights of states to nullify federal laws. (Take a look at the states attorneys general bringing legal challenges to the Affordable Care Act.) They claim to be acting in the traditions of the Founders; yet the Founders really did act to centralize power -- take it away from the states -- instead of distributing power to the states.

I have no doubt I'll come up against a flaw in this theory -- or that somebody will point it out to me -- as I continue reading. But so far, I'm finding it harder to avoid this idea: Today's Tea Partiers might actually be heirs to folks who wanted nothing to do with the Constitution. There's nothing inherently wrong with that, assuming I'm right. But it might cast a very different flavor to our modern debates.

Does your Miranda "right to remain silent" still exist?

That's the question for this week's Scripps Howard debate between Ben Boychuk and me, asked in the wake of the Supreme Court ruling this week that criminal suspects must speak up to claim their Fifth Amendment right against self-incrimination. My take:

The Supreme Court's ruling boils down to this: Police get to assume you don't want your Constitutional rights. The Miranda warning -- the one you've heard cops say on TV a million times -- is now essentially meaningless.

"Today's decision turns Miranda upside down," Justice Sotomayor wrote in her dissent. "Suspects will be legally presumed to have waived their rights even if they have given no clear expression of their intent to do so."

Imagine if the government treated our other Constitutional protections this way. Federal agents would be free to shut down church services unless prayer was preceded by a pastor's public statement that churchgoers were exercising their First Amendment rights. Newspapers and bloggers would have to print the First Amendment on their front page to stave off a crackdown against criticizing the president. Gun owners would have to sign documents affirming their Second Amendment rights, or the government would be free to seize their firearms.

Sounds ridiculous, even un-American, right? So why should the Fifth Amendment right against self-incrimination be treated differently? Why should the government get to assume that you don't want your rights? Yes, there is a public interest in investigating and prosecuting crimes. But the Founders knew that interest could be abused, which is why they limited the government's police powers in the Constitution. Police don't like that, of course, but they're not supposed to. They're supposed to obey the rules anyway.

Constitutional rights are something that all American citizens are supposed to have. We're not supposed to have to jump through hoops in order to keep them; the government is supposed to jump through hoops in order to take them away. The Supreme Court, ironically led by "small government" conservatives, has now ruled otherwise. The Tea Partiers who routinely decry government tyranny might want to take notice.

Michael Smerconish's crazy, unfactual sympathy for BP and the oil spill

Michael Smerconish isn't joining a boycott of BP -- because if the boycott succeeds, maybe BP will go out of business. And if they go out of business, who will provide the money and expertise to fix the oil spill in the Gulf of Mexico?

I intend to drive out of my way to fill up at a BP pump.

Why? Because it's imperative that the company doesn't tap out before plugging the leak and cleaning up the tens of millions of gallons of crude oil marring the Gulf of Mexico.

If BP goes under before either of those tasks is complete - or if the company can't afford to complete them itself - the federal government will be sucked into picking up the tab. Or worse, actually taking the lead in trying to stop the flow of oil into the Gulf and mop up the mess.

Here's the thing: the mess is proving very costly to BP -- both in terms of its stock market value and in terms of how much it's spending. And yet those enormous costs pale in comparison to how much money BP still has left over. Tuesday's New York Times:

One analyst calculated that in a worst-case scenario, BP’s cleanup liability would be around $14 billion, which would account for the entire loss of all fishing and tourism revenues for coastal states closest to the spill, said Kevin Book, a managing director at ClearView Energy Partners. Even then, Mr. Book said, the market overreacted, and BP can easily handle the cleanup bill.

BP remains a formidable corporation, with the ability to withstand penalties that would easily bankrupt most companies. On April 26, a few days after the Deepwater Horizon rig that it had rented from Transocean sank, BP reported first-quarter profits of $6.2 billion. Because of its considerable profits and size, it does not buy outside insurance for such disasters.

The market drop means that while BP is not at risk of bankruptcy, the crisis could potentially turn it into a takeover target if the slide continues.

So the worst that can happen to BP right now -- aside from the unlikely scenario of the federal government deciding to take it over -- is that some other capitalist will take the company over, not that the company will go under. And honestly: Why should I care if some other Richie Rich is making profits and assuming liability for the oil spill? It's too bad Michael Smerconish didn't decide to use some actual facts in his column, instead of indulging in baseless speculation.

Bag O' Books: "The Big Short" by Michael Lewis

Michael Lewis' great talent is to take abstractly nerdy topics and turn them into bestsellers by grafting a compelling human narrative on them. "Moneyball" took baseball stats revolution and made Billy Beane into a hero; "The Blind Side" took a look at football's left tackle position -- a position that even most die-hard fans don't watch that closely, except in slow-mo instant replays -- and turned it into an Oscar for Sandra Bullock. So it's difficult to read "The Big Short" -- a chronicle of the subprime housing market collapse, and how it nearly took the entire financial system down with it -- ­and not  think of the movie possibilities.

Certainly there's characters aplenty, each with wacky distinctiveness but who share a common bond: They were the few people who saw the collapse coming -- despite the "nobody could've known" rationalizations afterward -- and who got rich because of it. There's Michael Burry, a one-eyed former doctor with Asperger's syndrome whose condition gave him advantage: he was one of the few financial analysts obsessed enough to sift through subprime bond documents to discover how tenuous the market was. There's Steve Eisman, whose great talent in life was to be an asshole contrarian. There's Eisman's sidekick, Queens-bred Vinny Daniels, who entered the financial industry not from an Ivy League school but from SUNY-Binghamton. And there's Charlie Ledley, a "diletantte" who made his fortune with shrewd guesses about which companies would rebound from disaster better than others.

Cross the cast from "The Dream Team," maybe and stick them in "Wall Street," and "The Big Short" is what you get. (And it's probably no accident that two movies from the 1980s fit perfectly here: As Lewis makes clear, the subprime collapse marked the end of the exuberant "financial 1980s" some 20 years late.)

Only Lewis' cast of characters is real. And they got rich predicting the collapse of the subprime market because they did what very few individuals -- and even fewer big banking institutions -- did: They tried to make the subprime market explain itself. Why are subprime bonds given such good ratings? Why isn't there better information about the quality of loans that are bundled into the bonds? Why is the process so opaque? The answers they got didn't make sense, but nobody else was asking the questions because everybody was making too much money. Until they weren't. (The similarity to "Moneyball" is astounding, actually, except that the fate of capitalism itself rests in the balance.)

In the end, the success (until it failed) of the subprime bond market depended on a bit of weirdness: Housing prices had gone up, up, up for 60 years, and nobody thought they would ever go down. Combine that faulty assumption -- computer models used by big banks wouldn't even let you input a decline in home prices to see what would happen to the value of the subprime bonds -- with the collapse of lending standards, and, well, what happened was always going to happen. Lewis describes an immigrant strawberry picker who got a loan to buy a $700,000 house ... on an income of $14,000 a year. How did that happen?

One thing the book drives home -- something that we want to forget -- is how close the entire financial world came to collapsing in 2008. One of Charlie Ledley's partners calculates that the city of Chicago has eight days of chlorine available to treat the city's water supply -- a calculation he makes because he thinks it might be relevant. Other characters come to question the viability of democratic capitalism -- even as they're making a killing -- because the heart of Wall Street's (and thus America's) economic engine was dependent on opacity, near fraud and Ponzi-like scheming for success.

We're still fighting about how to regulate the financial markets, but Lewis doesn't offer much in the way of solutions -- only anger about the messed-up nature of the system. That's ok: movies don't need to offer solutions. And Matt Damon would be great as Michael Burry.

John Waters is less obnoxious than Deborah Solomon

I've mentioned before my abiding distaste for the Deborah Solomon's Sunday interviews in the New York Times. Her questions tend to be confrontational -- even rude -- to no great purpose.

So I was delighted to see today that she interviewed John Waters. Who would come off more tasteless -- the man who got Divine to eat dog feces on film? Or a New York Times reporter?

You already know the answer. Highlights:

It has been more than a generation since your films “Pink Flamingos” and “Polyester” established you as a champion of the trash-into-art aesthetic. But now that bad taste is so prevalent in America, does it still carryan artistic charge for you?
Bad taste per se does not, because today it’s reality television and gross-out, big-budget Hollywood comedies. Everything we export — it’s all about bad taste, so it’s not new anymore. You have to know the rules to break them with happiness, and thank God my mother taught me proper table manners.

It gets better:

We should mention that your career went mainstream in 1988, when you directed the film “Hairspray,” which subsequently opened as a musical on Broadway in 2002 and then was made into a second movie starring John Travolta. Has it made you vastly rich?
Last month, I got the very first profit check from the original movie.

How much was it for?
Don’t ask about money. That’s just plain rude.

And, speaking of Waters' new book:

There’s a chapter on Leslie Van Houten, one of the so-called Manson girls, who was convicted of murder in 1971, when she was 21, and who you argue should be released.
I do believe that. Today she is the woman she would have become if she had never met Charles Manson. Leslie is a good friend and someone who has taken full responsibility for the terrible crime she participated in.

What about the families of her victims, who don’t want her released?
They can never be wrong in their arguments, and I would never criticize their viewpoint.

There you have it: John Waters -- despite all he's done -- comes across as mannered, civilized, even a little elegant. Deborah Solomon comes across as ... being Deborah Solomon.

At The Corner, Shannen Coffin smears the New York Times

Over at The Corner, Shannen Coffin -- Dick Cheney's lawyer during the Bush Presidency -- goes after the New York Times for its apparent hand-wringing over the "unauthorized disclosure" of the so-called "Climategate" e-mails. The post is called "Propriety in Newsgathering" and it deserves to be fisked a little bit.

Let's start at the beginning:

Since at least the Pentagon Papers case (and surely before even then), the New York Times has made many a nickel on unauthorized leaks of sensitive national security information.

It's true the New York Times is a for-profit concern, but I think it's unseemly to suggest the Times tries to profit from -- as Coffin is going to get around to implying -- killing American soldiers. Most newspapers operate with two missions: A) to turn a profit and B) to serve the public. At their best, for-profit media has offered defenders of capitalism a success story: Doing well by doing good. Sometimes, "doing good" means publishing information that's of public interest -- even if the government wants it hidden. Which leads us to the next bit...

The biggest, though certainly not the only, whopper during the Bush administration was its exposure of the Terrorist Surveillance Program — the NSA wiretapping program targeted at al-Qaeda. With as much self-righteousness as he could muster, executive editor Bill Keller at the time explained that the paper published the leaked information because “we were convinced there was no good reason not to publish it.”

So the “unauthorized disclosure” of classified or sensitive information is not something that the Times generally loses sleep about.

In fact, the Times lost about a year of sleep over the warrantless wiretapping story. That's how long the paper declined to publish the piece ... because of national security concerns raised by the Bush Administration. In fact, that information was a critical part of the original story:

The White House asked The New York Times not to publish this article, arguing that it could jeopardize continuing investigations and alert would-be terrorists that they might be under scrutiny. After meeting with senior administration officials to hear their concerns, the newspaper delayed publication for a year to conduct additional reporting. Some information that administration officials argued could be useful to terrorists has been omitted.

So why did the Times proceed with the story? Because its reporting revealed there were substantial concerns within the Bush Administration about whether the program was legal. Eric Lichtblau, one of the reporters, later recounted:

Jim and I had already learned about much of the internal angst within the administration over the legality of the NSA program at the outset of our reporting, more than a year earlier in the fall of 2004. Still, the editors were not persuaded we had enough for a story—not enough, at least, to outweigh the White House's strenuous arguments that running the piece would cripple a vital and perfectly legal national-security program. It was a difficult decision for everyone.

Risen's book was a trigger, but we realized we weren't in the paper yet. We still had to persuade the editors that the reasons to run the story clearly outweighed the reasons to keep it secret. We went back to old sources and tried new ones. Our reporting brought into sharper focus what had already started to become clear a year earlier: The concerns about the program—in both its legal underpinnings and its operations—reached the highest levels of the Bush administration. There were deep concerns within the administration that the president had authorized what amounted to an illegal usurpation of power. The image of a united front we'd been presented a year earlier in meetings with the administration—with unflinching support for the program and its legality—was largely a façade. The administration, it seemed clear to me, had lied to us.

The Times, it seems to me, did exactly what you'd hope a newspaper would do in a free society: It weighed arguments about the program's warfighting utility against the possibility that the program was illegally usurping Americans' civil liberties. It held the story a year out of an abundance of caution. But it did publish the story, eventually, when concerns about the program's legality couldn't be resolved behind closed doors. A lot of people were angry at the Times for holding the story so long.

Anyway, back to Coffin:

Indeed, an editorial in September 2009 trumpeted the fact that “the abuse of prisoners at Abu Ghraib, the secret CIA prisons in Eastern Europe for terrorists and warrantless wiretapping all came to light through the unauthorized disclosure of classified information.”

Yup. And I say: Hooray for leakers!

Coffin -- like James Taranto at the Wall Street Journal -- then goes on to decry the Times' apparent "anguish" about the "unauthorized" nature of the Climategate e-mail release. (Personally, I think Coffin and Taranto are very much overreading the Times' apparent anguish here, but whatever.) And that leads to Coffin's coup de grace:

Perhaps the Times is turning a corner, and we can expect similar concerns to be raised whenever they root out classified government information that may — oh, I don’t know — result in the loss of American lives.

Here's my challenge to Shannen Coffin (not that he'll ever read this, but still):

Show me the bodies of Americans who lost their lives because of the warrantless wiretapping story. I don't think they exist, frankly, because if they did former Bush Administration officials and their allies would've been parading them around for years in order to get news organizations like the Times on the defensive. So Coffin's invocation of (hypothetical) American deaths is, well, a cynically questionable assertion in the service of letting the government commit legally questionable acts.

I admire conservatism when it urges limits on government in the name of individual freedom. What Coffin's advocating here is somewhat the opposite.

Federalist 14: Something old, something new

The entire live-blog of "The Federalist Papers" can be found here.

My friend Ben is fond of distinguishing American conservatism from its European forebears; American conservatives, he has told me on several occasions, are conserving a revolutionary heritage. I thought about his statement quite a bit while reading James Madison in Federalist 14.

This chapter is, ostensibly, about whether the United States is too big to be governed effectively. (Madison's answer: If we were a pure democracy, with every man given a direct voice in governing, sure. But since we're a republic -- with representatives sent from the 13 states to the heart of the union -- we'll do fine. And hey, we managed to pull off a revolution together!)

But as we near the end of 14, it's apparent that Madison has another topic on his mind: Whether the type of government embodied in the proposed Constitution is so new, so radical, so unfamiliar that its very novelty increases the risks of failure. Madison's answer, of course, is "no." The Constitution might look like a new animal, he suggests, but it's really a hybrid of the best parts of governments found elsewhere in the world, and throughout history. At the same time, though, Madison offers a defense of the spirit of experimentation:

Is it not the glory of the people of America, that, whilst they have paid a decent regard to the opinions of former times and other nations, they have not suffered a blind veneration for antiquity, for custom, or for names, to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience?

(Snip)

Had no important step been taken by the leaders of the Revolution for which a precedent could not be discovered, no government established of which an exact model did not present itself, the people of the United States might, at this moment have been numbered among the melancholy victims of misguided councils, must at best have been laboring under the weight of some of those forms which have crushed the liberties of the rest of mankind. Happily for America, happily, we trust, for the whole human race, they pursued a new and more noble course. They accomplished a revolution which has no parallel in the annals of human society. They reared the fabrics of governments which have no model on the face of the globe.

I noted at the outset that conservatives tend to cite "The Federalist Papers" more often than liberals and progressives, and I still think that's true. But it's here that I start to see signs that progressives can also claim a heritage from the Founding Fathers. Today's conservatives, I think, want to bind us to the vision of the Founders in a way that, perhaps, the Founders would've found alien. A reason I hear for that, often, is that human nature hasn't changed so much in 200 years. And that's right. But I don't imagine it had changed all that much, frankly, in the 200 years before the Constitution was written, either. The Founders, in other words, were not the last wise men to walk this earth.

Still, the Founders might've been experimenters and progressives, but they were rationalists and empiricists as well. They didn't build the Constitution out of a sense of pure novelty, but sought foundations in history and experience for what they were trying. And they expected, as Madison notes, that their successors would both "improve and perpetuate" what they built. If we are to conserve a revolutionary heritage, then, perhaps it was intended from the beginning that we preserve both the revolution and the heritage.

Should BP end offshore oil drilling?

That's the topic of my Scripps Howard column with Ben Boychuk this week -- and a trickier topic than usual. Because I want the answer to the above question to be "Yes, yes, a thousand times yes!" But given the realities of American politics and the country's energy consumption, it seems impossible to end offshore drilling entirely.

So my answer? Regulate the hell out of the industry, and rigorously enforce those regulations.

It would be nice if we could unilaterally end offshore oil drilling. Nobody likes to see the oily bird carcasses washing up on beaches, nor the plaintive looks in the eyes of suddenly idled Louisiana fishermen. The widespread damage being done right now in the Gulf of Mexico should be intolerable.

But we will tolerate it. We have to. America's energy demands are simply too great to give it up - our politicians are not going to ask us to sacrifice our comfortable lifestyles; we won't let them in any case - and the country isn't anywhere close to ready to switch over to "alternative" energy sources like wind and solar to pick up the slack.

If some environmentalists are ready to declare a moratorium without ready alternatives, however, drilling enthusiasts can be much too cavalier about the safety of offshore drilling. Large-scale energy production of any sort is almost always a complicated and dangerous proposition, whether at Chernobyl or in the Atlantic Ocean. Disasters - the devastation of whole swaths of the planet - are inevitable. So regulations on drilling should be tight, and rigorously enforced.

That hasn't been the case. The New York Times reported that the federal government gave permission to dozens of oil companies - including BP - to drill offshore even though they hadn't completed "required" environmental reviews. That's inexcusable.

We rely on oil energy because, for now, we have to. However, that's no reason to let the oil companies essentially regulate themselves. Getting rigorous about the rules and their enforcement will probably make energy a little more expensive for all of us, but the cost will be necessary. Our own ability to survive on the planet depends upon it.

I didn't draw Mohammed today

I've got nothing against blasphemy -- in fact, I kind of love it.

I love "South Park," enjoyed "The Last Temptation of Christ" more as a novel than as a movie, think "Dogma" is overrated but enjoyable and, generally, like to see sacred cows nudged a little bit. I think it's wonderful, essential and necessary that we can do such poking in America -- and it pisses me off, frankly, when the "South Park" guys come under threat for depicting Mohammed. Or, looking abroad, when European cartoonists face violence, threats and censorship for doing the same.

Still, I didn't draw Mohammed today. And I won't be publishing any of the cartoons. At least, not for now.

Why? Simple. I have Muslim friends and acquaintances -- at least one of whom, I know, is very offended when Mohammed is drawn or otherwise depicted. Not to the point of threatening or undertaking violence, thank goodness, but still: It's an act that wounds her.

And that, I think, beyond strength in the face of censorship and threats, is part of "Draw Mohammed Day" is supposed to be about: Offense.

Some more hawkish and conservative types have pointed out -- rightly -- that Comedy Central, "South Park" and other American institutions have skewered Christianity for years without facing death threats. But I can't help but notice that many of the people who make that observation have also gotten the vapors -- or are closely allied with those who get the vapors -- about having their religious sensibilities trampled upon. And that many of those people are very, very gleeful about the chance to offend Muslims en masse today.

So yeah, there's a double standard. But I suspect the double standard goes both ways.

Me? I admittedly feel more comfortable blaspheming Christianity because, well, Christianity is mine to blaspheme: I grew up in it, was immersed in it and (yes) fell away from it. Even at a distance of nearly a decade, its rhythms and habits are still etched in my bones. And my own adventures in blasphemy were part of rebelling against a culture that had dominated my outlook and behavior.

But Mohammed was never my prophet. Between that and the fact of my friends' sensibilities, a day devoted to angering his followers seems ... rude. It seems too easy to me, even a little bullying, to blaspheme against somebody else's god.

And I'm weird: I've always felt my principles must be balanced and shaped by the impact that they have on real people. Right now, I don't think I have enough cause to hurt my friends.

Make no mistake: I still find the threats and censorship despicable. There may come a time when I feel that committing a little blasphemy against Islam's sacred cows is necessary. That day isn't today. I won't draw Mohammed.

Federalist 11 - Federalist 13: Moneymoneymoneymoney! Money! (Also: The persistence of Euro-bashing in American politics)

I don't have a lot to say about Federalists 10 through 13. They're chiefly about how a unified United States will fare economically. Considering the United States went on to become the richest nation the planet's ever seen, I don't know that there's much to argue about here, even with hindsight fully engaged. But just to recap, keeping the states together will:

* Make it easier for everybody to make money. A unified America will be able to fend off competition from Europe, bargain from a stronger vantage point and -- very importantly -- be able to field a navy capable of protecting its commerce. Alexander Hamilton:

Under a vigorous national government, the natural strength and resources of the country, directed to a common interest, would baffle all the combinations of European jealousy to restrain our growth. This situation would even take away the motive to such combinations, by inducing an impracticability of success. An active commerce, an extensive navigation, and a flourishing marine would then be the offspring of moral and physical necessity. We might defy the little arts of the little politicians to control or vary the irresistible and unchangeable course of nature.

And, Hamilton adds, a bigger country means a more economically diverse country -- which will make it easier to ride out tough times in any particular industry.



* Make it easier to collect revenue to fund a national government. Remember, this is back before the IRS had really even been thought off, so many of the government's revenues came from import duties and that kind of thing.

* Get economies of scale. This idea might seem farcical at this point, now that the government is buried in debt, the idea was that one big government might be able to do things less expensively, on the whole, than if the 13 states were all spending money on their own and duplicating efforts. Some of that depends on the United States being a much smaller country; Hamilton at one point boasts that the Navy would only have to defend the country in the Atlantic. Projecting power around the globe wasn't really under consideration here.

But speaking of the rest of the globe, there's a kind of bizarre moment at the end of Federalist 11. Hamilton's been playing up the ability of the United States to make money and compete against Europe -- when all of the sudden he launches a sort of ur-Freedom Fries campaign.

Europe, by her arms and by her negotiations, by force and by fraud, has, in different degrees, extended her dominion over them all. Africa, Asia, and America, have successively felt her domination. The superiority she has long maintained has tempted her to plume herself as the Mistress of the World, and to consider the rest of mankind as created for her benefit. Men admired as profound philosophers have, in direct terms, attributed to her inhabitants a physical superiority, and have gravely asserted that all animals, and with them the human species, degenerate in America -- that even dogs cease to bark after having breathed awhile in our atmosphere.1 Facts have too long supported these arrogant pretensions of the Europeans. It belongs to us to vindicate the honor of the human race, and to teach that assuming brother, moderation. Union will enable us to do it. Disunion will will add another victim to his triumphs. Let Americans disdain to be the instruments of European greatness! Let the thirteen States, bound together in a strict and indissoluble Union, concur in erecting one great American system, superior to the control of all transatlantic force or influence, and able to dictate the terms of the connection between the old and the new world!

Which just goes to prove: There's no topic in American politics -- and never has been -- that can't be livened up with a little bit of good old-fashioned Euro-bashing. The French suck! USA! USA! USA!

A quick, final thought about Arlen Specter

Unlike Gov. Ed Rendell, I doubt very much that yesterday's rain in Philadelphia sent Arlen Specter to his defeat in the Democratic primary. And unlike a lot of other people, I'm not so sure that generalized anti-incumbent sentiment was all that big a factor either. I think that after 30 years of watching Arlen Specter put political advantage over principle at seemingly every turn, Pennsylvania voters were simply tired of the guy.

It doesn't have to have a bigger meaning than that.

Federalist No. 6 - Federalist No. 10: Let's not fight with each other

I said last time that the shadow of the Civil War would loom heavily over my reading of "The Federalist Papers" -- and starting in Federalist No. 6, it really, really does. Because it's here that Alexander Hamilton starts to make the case that a strong union won't just protect the individual states from wars with external powers -- it'll also keep the states from making war on each other.

So, ummm ... how did that work out for you?

No. Wait. Snark is a little too easy here. Truth is, Hamilton's got history on his side -- but he's going to take his time getting to the most useful parts of it. Instead, he tells us in No. 6 that the problem with leaving the states to proceed forward as autonomous nations is that each small state will be more likely to see the rise of a leader who makes war on neighboring states for his own vainglorious reasons.

Men of this class, whether the favorites of a king or of a people, have in too many instances abused the confidence they possessed; and assuming the pretext of some public motive, have not scrupled to sacrifice the national tranquility to personal advantage or personal gratification.

He goes on at length about this, citing examples from Pericles and Henry VIII, and well, he's right. That's absolutely a danger -- but it's not the ONLY danger, and sometimes it's not even the most important one. (And in any case, both large nations and small ones are subject to the danger.) The Civil War came about not because (say) Robert E. Lee dreamed of a thousand monuments to his name, but because there were very real moral (slavery) and philosophical (the role of the federal government) differences between the Northern and Southern states.

To be fair, Hamilton acknowledges as much in No. 7, listing out a series of reasons individual states might make violence upon each other: territorial disputes, including claims to territories in the west; "the competitions of commerce;" the settling of debts already owed by the Union (mostly leftover from the Revolutionary War); differing approaches to settling contracts; that kind of thing.* It's notable, though, that Hamilton speaks here in generalities -- because there's a specific notable omission: SLAVERY! WHAT ABOUT SLAVERY?!?!

*I don't want to spend too much time on a tangent here, but there's been a theory advanced among (for lack of a better word) neoconservatives in recent years that America preserves its security by establishing democracies in other countries because democracies don't tend to make war on each other. After reading Federalists No. 6 and 7, I think it's safe to say that Alexander Hamilton, drawing from history, might pooh-pooh that notion.

The result of all these potential sources of conflict, Hamilton says in No. 8, would be that each state and/or small confederacy would probably end up more militarized -- and thus more injurious to personal liberties -- than if they stuck together under the proposed Constitution. This is kind of a sly argument: One of the main concerns of the Antifederalists, I gather, is that the new Constitution would allow a central government to form a standing Army. Well, Hamilton says, the raising of a standing army can only be inferred from the words of the Constitution -- but it's a dead certainty if the states go their own way. They'll be so likely to come in conflict with each other -- and here Hamilton drops a number of examples from Europe -- that they'll have to raise their guard against each other.

In making this case, he says a few words about the militarization of a society that seem to be worth considering in 21st century America.

The perpetual menacings of danger oblige the government to be always prepared to repel it; its armies must be numerous enough for instant defense. The continual necessity for their services enhances the importance of the soldier, and proportionably degrades the condition of the citizen. The military state becomes elevated above the civil. The inhabitants of territories, often the theatre of war, are unavoidably subjected to frequent infringements on their rights, which serve to weaken their sense of those rights; and by degrees the people are brought to consider the soldiery not only as their protectors, but as their superiors.

This kind of society, of course, is what the new Constitution is meant to protect against. And that's the promise Hamilton makes.

But if we should be disunited, and the integral parts should either remain separated, or, which is most probably, should be thrown together into two or three confederacies, we should be, in a short course of time, in the predicament of the continental powers of Europe -- our liberties would be a prey to the means of defending ourselves against the ambition and jealousy of each other.

Or, as he says more succinctly at the outset of No. 9:

A FIRM Union will be of the utmost moment to the peace and liberty of the States, as a barrier against domestic faction and insurrection.

It is in Federalist No. 10 that James Madison (finally!) makes an appearance and starts to explain why a union under the proposed Constitution will be able to tamp down -- though never eliminate -- factionalism between the states. Basically, the proposed form of government -- a republic -- will allow for democracy but not too much democracy; populist passions will be cooled by the filtration of a small group of elected men, who will thus be able to keep the passions of the day balanced against each other. Maybe one state could come under the sway of crazy men with crazy ideas, he says, but certainly not all of them at the same time. A republican form of government will "refine and enlarge the public views," he says,

by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations. Under such a regulation, it may well happen that the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves, convened for the purpose.

Which brings us back around to the Civil War. If the Constitution was supposed to tamp down conflicts between the states and temper their passions ... well, why didn't it?

Maybe it did. I've been reading the Federalists with the idea that the Civil War disproved some of the assertions made about the effects of unity, but maybe I'm wrong. Maybe the Civil War is just a huge, glaring, bloody exception to the rules that Madison, Hamilton and Jay are setting forth here. And it would be 70 years or so before the divisions between North and South turned bloody. We have stuck together -- despite some turbulent times -- since then. So who knows?

In any case, these first 10 Federalists have felt -- to this reader at least -- like so much throat-clearing. There's been a lot of talks about the benefits of unity and the dangers of splitting up into separate states or confederacies. There's been precious little talk about the proposed Constitution itself, as well as the deficiencies of the Articles of Confederation. We've got a few more chapters to go discussing the benefits of union, but just over the horizon we're about to get some answers to our main questions: Why do the Articles suck? And why is the Constitution so awesome?