Category Archives: Books

judicial review

Making the Constitution a Legal Document

During the early years of the American republic, the Constitution existed simultaneously as a political and legal document to which all three branches of government — and, according to some, states — had the right to interpret, a far cry from today’s understanding of the Constitution as a solely legal document over which the legislative and executive branches may present arguments, but the judiciary held unilateral final interpretative power.

“Excesses of Democracy”

The American judiciary began as a weak institution during the Articles of Confederation.  Almost religious-like belief in the people to elect an enlightened and liberty-respecting legislature meant that no executive and no strong judiciary would be needed to protect the rights of citizens.  People, acting selflessly and dispassionately, would uphold a social contract between themselves and with the government.

That utopian vision failed as the Founders realized that the “excesses of democracy” brought factious interests to power and legislatures, empowered by the people, transgressed on rights (usually the property or rent rights of the landed American aristocracy, inasmuch as the early gentry could be considered “aristocratic”).  Coming to fear the people, the Founders drafted and ratified a powerful and expansive constitution that brought the national government and its coercive powers directly to the people of the arguably sovereign, yet united, states.



A New Regime

Even with faith in the people diminished, many Founders did not see a need to imbue the judiciary interpret the Constitution and strike downs laws contrary to its text.  Richard Dobbs Spaight, a North Carolina delegate to the Constitutional Convention, argued that allowing unelected judges to strike down laws made by a popularly elected legislature “absurd” and “operated as an absolute negative on the proceedings of the Legislature, which no judiciary ought ever to possess.”

Even James Madison, an ardent nationalist, believed that such a judiciary would be “paramount in fact to the Legislature, which was never intended and can never be proper.

Despite misgivings of a powerful judiciary, the Founders and early executors of the government recognized that the judiciary could interpret laws under a quasi power of judicial review, but they balked at the judiciary having sole authority over constitutional interpretation.  All branches had a “concurrent right to expound the constitution,” Madison and Jefferson believed, and only “an appeal to the people themselves…can alone declare its true meaning, and enforce its observance.”



The American people, the ultimate sovereigns, determined the extent of the Constitution.  All legislatures had to abide by it, but the people would guarantee enforcement.  Judicial review and action would not necessarily delimit the powers of the various legislatures since judges arguably did not represent the people.

Some delegates wanted representatives of the people to revise laws along with the judiciary.  James Wilson, future Supreme Court justice, and George Mason urged creating a council of revision that included the president — representative of all people — and the judiciary.  Interpretation had to include popular elements.  Introducing overtly political figures in constitutional interpretation clearly that early theorists believed the Constitution to be a political document to which those whose power came directly from the people had a right to interpret.



Judicial Review and Supremacy

Chief Justice John Marshall disagreed with this idea.  He found the Constitution a strictly legal document, which naturally gave the judiciary power to review laws and the supremacy to unilaterally declare them unconstitutional.  Such actions would be legal in nature, not political, and not a rare occurrence to take place in only the gravest of circumstances (as many Founders believed early on; the first federal court to find a federal unconstitutional did so in an apologetic and conciliatory manner).

Marshall and other contemporaneous judges remade the Constitution as a legal document by interpreting it as they would a statute passed by a legislature.  This included applying a derivative of English common law to the document and reading the Constitution for intent, context, and reasonableness — just as they would a law.  Reading the Constitution as a type of super statute necessarily stripped it of any political interpretation and thus made obvious his argument in Marbury v. Madison  that it was “emphatically the province and duty of the judicial department to say what the law is” — to say what the Constitution is.

Judges as Representatives of the People

This shift came with a reframing of the judiciary’s connection with the people.  Alexander Hamilton first suggested that judges were in fact agents of the people to the same extent as were members of the legislature in Federalist 78writing that it is logical “to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned their authority.”



The people, who willfully entered into the constitutional arrangement and ceded various pwoers to the federal government, needed judicial agents to keep the legislatures in check.  “It only supposes that the power of the people is superior to both [the legislature and the judiciary]; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.”

Concurrently, and in response to shifting thoughts about the nature of the judiciary as representatives of the people, judges began to isolate themselves from political affairs and society began to embrace the idea of law as a science.  An independent and powerful judiciary mandated qualified individuals to serve the people admirably and dispassionately.  Though not an immediate transformation, changing legal theory in the 1790s and 1800s onward established the powerful judiciary we know today and enshrined the Constitution as the ultimate legal document; the supreme statute to which all individuals cede power and whose legitimacy arises only from the consent of those very people.


For more information on the early judiciary and history of the young republic, read Gordon S. Wood’s masterful “Empire of Liberty”and “Launching the ‘Extended Republic’: The Federalist Era” by Ronald Hoffman and Peter J. Albert.

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Hillary Clinton’s “What Happened”

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Hillary Clinton’s “What Happened” Explains Why She Lost

Months after her shocking defeat to Donald Trump, Clinton has released a new memoir detailing how she lost the election.  Hillary Clinton’s “What Happened” offers a raw look into her mind, both as a candidate and after deep reflection of her campaign and its tragic ending.  While there are many reasons that Clinton lost last year — many, if not most, related to the candidate herself, to which she owns up — the blame must also fall on one particular group: Voters.

Blaming voters for an undesired outcome may seem elitist, or simply whiney, but to avoid casting even an inkling of guilt on the actors who knowingly and willingly decided to vote for a charlatan ignorant of American values and laws would itself be an act of the utmost condescension by ignoring the agency inherent in everyone’s decision making.  We’re all responsible for our choices and those choices, especially when they affect hundreds of millions, invite critique.



Ignoring History

The Founding Fathers despised demagoguery and populism, fearing both (though especially the latter) would undermine the Constitutions and the institutions put in place to protect it.  A demagogue would corrupt the rule of law and use his majority for insidious means.

They also envisioned great individuals holding elected office, including the presidency.  Trump’s election represents a dramatic break from the Founders’ vision of the country.  Trump, first and foremast, is a demagogue.

Our Constitution’s structured to separate powers, offer checks and balances, and leave voters only indirectly in charge of government in order to stop demagogues from seizing power (Shays’ rebellion, which prompted the constitutional convention, only heightened fears among the Founders of demagoguery).

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That’s why America is a republic and not a direct democracy.  John Adams himself wrote “Remember Democracy never lasts long. It soon wastes exhausts and murders itself. There never was a Democracy Yet, that did not commit suicide.”  Federalist 1 warns

“On the other hand, it will be equally forgotten that the vigor of government is essential to the security of liberty; that, in the contemplation 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 forbidden 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.”

Hillary Clinton’s “What Happened” may not mention the historical ignorance of the electorate, but it’s important that we understand voters deviated from the will of the Founding Fathers.

Encouraging Ignorance

Supporting and voting for Trump only encourages ignorance, both in candidates and the electorate.  Trump knew — and still knows — nothing of policy.  Whenever pressed to explain policies, he failed to do so, often blabbering or simply repeating himself numerous times in a garble of largely incoherent rambling.  But he seemed to revel in his ignorance, not once willing to engage in actual policy discussions and showing little interest to meet with experts.

That shouldn’t come as a surprise from someone who proudly screamed about how he “love[d] the poorly educated” and bragged about “knowing more than the generals” because he watched “the shows.”  His vile antipathy for experts bled over to his voters, with whom he shared and encouraged this hatred.

Needless to say, a poorly informed electorate will not perform well when it goes to the polls.  Ditto one misinformed because it chooses to listen to one man and one man only.  Such actions fundamentally undermine democracy because when a polity entrusts its citizenry with such awesome power, there lies with the citizens a civic duty know what they’re doing and be well-informed on issues settled by elections.

Voting for a man who ran and now governs in ignorance only encourages other political hobbyists to run for office because they realize that knowledge is not a barrier.  Charisma and yearning for self-enrichment suffice.  It tells candidates that voters don’t value thought and policy, instigating a race to the bottom as candidates forego meaningful discussions in order to appeal to grievances and base emotions.

what happened hillary clintonForgiving Bigotry

Hillary Clinton’s “What Happened” naturally touches on Trump’s disturbing bigotry and the willingness of voters to simply overlook what he said or twist his words in such a way that clear bigotry lost its bite.  We mustn’t forget that Trump began his presidential campaign by claiming Mexico sent its “rapists” and “drug-dealers” into the United States out of malice or some dark motive.  These actions continued throughout the campaign, such as his remarks that a Mexican judge couldn’t do his job because of his heritage, which Speaker of the House Paul Ryan labelled the “textbook definition” of racism.

Other minority groups also received Trump’s ire.  Trump frequently ranted against Islam and Muslims, claiming universal Muslim hatred of the United States, threatening to illegally close mosques, and wanting to ban an entire religion from entering the country.  The fool went actually said that “I think Islam hates us. There’s something there that — there’s a tremendous hatred there. There’s a tremendous hatred. We have to get to the bottom of it. There’s an unbelievable hatred of us.”

Of course, Donald Trump also led the birther crusade against President Barack Obama, falsely claiming that the president was not born in America.  These lies stirred the right-wing fever swamps, which embraced and pushed false claims about Obama, and, under Trump’s leadership, surged into a powerful grievance movement.

Voters knew all of this.  They recognized Trump’s inherent racial animus, his animosity for Islam that bordered on paranoid delusions, and the lies he for years pushed, yet cast a ballot for him anyway.  Supporting such clear bigotry should not be overlooked and those that chose to make the Ku Klux Klan and neo-Nazis’ beloved candidate president should be held responsible for enabling and legitimizing grievanced racism.



Read Hillary Clinton’s “What Happened”

Clinton lost for many reasons.  No one reason explains the loss.  Her book rightly analyzes many culprits and ultimately she accepts her primacy in defeat.  Read Hillary Clinton’s “What Happened” to gain and understand her inside perspective.

While a politician cannot blame voters for a reprehensible decisions, I most certainly can, and I will.  Overlooking Trump’s clear historical flaws, his deep-seated ignorance and promotion of stupidity, and his all-too-obvious bigotry to vote for the demagogue deserves criticism.  We should all be held responsible for our actions.  And so, above all else, I blame and repulsed by the voters who opted for Donald J. Trump.

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Lyndon Johnson in “The Path to Power”

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Lyndon Johnson’s Character

For many liberals, myself included, the name Lyndon Baines Johnson brings to mind the Great Society, the Civil Rights Act, the Voting Rights Act, and, unfortunately, the Vietnam War.  Liberals point to all but the last as legacies of a great president committed, first and foremast, to racial equality and helping the nation’s poorest.  For those reasons, many on today’s left look to Johnson as a Democratic idol whose domestic achievements and aims must again be channeled and pursued.

But these characterizations of Lyndon Johnson rely on historical accounts and studies that, for want of time, do not actually examine the man’s character.  High school history tells us about Johnson’s virtues, but not his many almost unforgivable vices.  To really understand Lyndon Johnson, to understand what motivated him, what drove his personality, what inspired the man today remembered for domestic benevolence and foreign blundering, one needs to read Robert Caro’s series.

Becoming Lyndon Johnson

Caro spares no detail in his examination of Lyndon Johnson.  “The Path to Power” begins generations before Lyndon’s birth with a detailed account of the Texas Hill Country and its settlement.  These chapters outline the harsh and wholly unforgiving Hill Country that tormented ranchers who happened to settle just past nature’s point of fertility.  Unfortunately, that’s where the Johnson clan laid its stake.

The infertile soil of the arid Hill Country created a poverty passed down generations, unremitting in its anguish and unforgiving in its totality.  Despite the miserly conditions of Hill Country farmers, the Texas state government by and large ignored them, focusing instead on helping special interests.  As such, many Hill Country ranchers — including Johnon’s forefathers — embraced the great populist wave that roared through the country in the late 19th Century.

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Populism sought to fundamentally change how the government treated its residents.  Instead of kowtowing to special interests, populists argued that government should use its might to protect individuals by regulating business, busting monopolies, and fighting the amassed power of utility corporations.  Lyndon’s father, Sam Ealy Johnson Jr, elected to office office after the initial populist surge, embraced the populist tradition and epitomized honest public service.  For a few short years, Sam Ealy and the entire Johnson clan — namely Lyndon — earned the respect and admiration of their neighbors.

Formative Years

But that didn’t last long.  Sam Ealy, whose character Caro goes to great lengths to describe and does so in a way that the reader feels an understanding, almost kinship, with the man, dreamed of revitalizing the one-time Johnson ranch.  So he purchased, at an inflated price, the lands of his forebearers and set to work.

Sam Ealy failed.  His failure plunged the Johnson family into abject poverty, living paycheck to paycheck as Sam Ealy performed ridiculing work and faced the scorn of the neighbors he once helped in Austin.

This had a profound influence on Lyndon.  Caro focuses on these years, interviewing scores of people who knew Lyndon when the Johnson family hit its low-point, so the conclusions Caro draws and the stories he tells don’t feel like a biographer’s imaginative work, but the true description of a man’s life.  And a bleak description Caro relays.  Lyndon felt humiliated as his family became outcasts and he lost the respect of his peers because of his father’s shortcomings.  His relationship with Sam Ealy permanently fractured as a result and his relationship with his mother didn’t fare much better.

Lyndon emerged from these years with a mission: Don’t be like his father.  Value pragmatism over principles and, in doing so, attain power.

The Lust for Power

These lessons forever shaped and defined Lyndon.  After telling the story of Lyndon’s youth with such a magnificent touch readers feel as if they watched Lyndon’s childhood through a window into his actions, thoughts, and desires, Caro turns to the beginning of Lyndon’s adulthood.

The following chapters build on the character Caro brings to life and describes how Lyndon embraces pragmatism over principles to gain power.  Rarely does Lyndon come across as at all likable.  His need to win and the lengths to which he would go in order to beat others may well shock the reader.  Lyndon has no principles or core beliefs.  No contemporary account can point to a Lyndon who acted to further some ideological goal.  Instead, Lyndon did whatever he could to benefit himself and those loyal to him.

It’s a truly repulsive character and while readers may have sympathy for Lyndon given his roots in poverty, it remains hard for that sympathy to excuse his rather ruthless actions (ruthless even in the face of meaningless desires, such as student council elections at San Marcos Teacher’s College).

And yet, though conniving and wholly unpleasant to those his own age, Caro understands and makes readers understand that Lyndon had one quality that would serve him over the coming decades: He was a “professional son.”

The Professional Son

While the phrase may seem weird, Caro aptly describes in The Path to Power its meaning and how Lyndon used it to attract the support and goodwill of elders.  Lyndon paid obsequious court to the holders of power, realizing, again as Caro brilliantly describes, how he could manipulate their feelings such that they showered him with favors.

This helped him pay for college, but also provided him with his first entree in public life.  A

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variety of seemingly chance events (again, masterfully flooded with details by the author) resulted in Johnson working for a congressman in DC.  This congressman had little interest in the job, rarely coming into the office or pursuing work to help constituents.  Lyndon happily took up those tasks while also currying favor with the congressman and his ultra conservative friends.

Together, the two events — single-handedly doing a congressman’s work while donning his professional son persona to be held in high graces by powerful reactionaries — describe Lyndon best: A man with an unmatched work ethic willing to go to incredible lengths to help those whose votes he might later need and a pragmatic soul able to make all like him by believing he shared their ideology.

The first point almost makes Lyndon likable.  He worked and worked and worked for the benefits of the congressman’s constituents.  This included waking at ungodly early hours and returning to bed long after midnight.  His dedication truly helped many.  But this is tempered by its transactional nature — Lyndon only helped them to his name would be tied to that help and thus the beginnings of a political base formed — and the extent to which he whipped others into echoing his feverish work pace.

Lyndon regularly belittled coworkers in the rudest ways imaginable, from routine cussings to exploiting their sensitivities.  This behavior drove many to exhaustion or a perverse psychological dependency on Lyndon, another confusing concept that Caro explains well.  His wife, Lady Bird, would frequently experience the same deplorable treatment.  It’s hard to look upon Lyndon favorably given how he treated his peers.

Liberal and Conservative

Lyndon also had a unique ability to either a true New Deal liberal or a staunch conservative, depending on his audience.  With whomever he spoke, Lyndon would agree with that person’s ideology, fully embracing his companion’s policy viewpoints and arguments.  He did so with enough knowledge and persuasion that if a liberal spoke with Lyndon, that liberal truly believed Lyndon embraced the New Deal; a conservative speaking with Lyndon came to believe Lyndon supported the New Deal for political gain only and was actually a conservative.

This posturing could only be possible by a man who didn’t have any principles — that is, by a man who believed in no ideology.  Again, Caro’s expose into Lyndon’s upbringing lends understanding to this: Pragmatism necessitated that Lyndon have no core beliefs.  By agreeing with all, he would anger none and thus build a strong web of connections all of whom believed Lyndon to be an ally in their causes.  Lyndon could thus gain favor with the rising New Deal class while also cultivating the support of wealthy Texas donors, reactionaries each and every one.

Opportunistic

Caro brilliantly describes Lyndon’s opportunism and the lengths to which he’d work to create opportunity and exploit it wherever it appeared.  He lusted for power and wanted it by any means possible — and so worked to attain power even to his mental and physical fatigue.  An admirable work ethic met with questionable actions and downright shady dealings to capitalize on opportunity.

“The Path to Power” includes a detailed account of Johnson’s first race for the House and how Johnson overcame numerous obstacles to win a seemingly unwinnable race.  But we quickly see that in the House, even after cultivating a strong (professional son) relationship with the almighty Sam Rayburn, that Lyndon was not satisfied.  He had higher aims.


And to achieve those goals, he had to wiggle his way into connections with power — namely, with President Franklin D. Roosevelt.  To become Roosevelt’s go-to Texan, Lyndon betrayed his mentor and dealer of favor, Sam Rayburn, in a move chronicled by Caro and which leaves readers with a sick taste in their mouths.  Lyndon demanded the loyalty of his staff and subservients, but didn’t offer that loyalty to those on whose favors he relied.

Almost a Senator

Caro’s masterpiece concludes with Lyndon’s first run for the Senate.  In these accounts, we learn of politics darker side, include the demagoguery that dominated far too many campaigns and to which voters succumbed as well as the corruption and illegal behavior that, for a time, dominated Texas politics.

Lyndon, to his credit, did not embrace demagoguery (his opponent, and eventual victor, Pappy O’Daniel, on the other hand, used populist and demagogic overtones to establish a rabid base of supporters who voted for the know-nothing), but corruption and illegality defined his campaign.  Vote buying throughout Texas, especially in minority areas, provided Lyndon with thousands of votes.  Illegal laundering of money from corporations into his campaign coffers enabled such buying and extensive campaigning.  Lyndon and his wealthy benefactors skirted campaign finance laws to such an extent that without President Roosevelt stymying an IRS and DoJ investigation into the matter, Lyndon and his donors would have been in deep legal trouble.

Not Who We Think

“The Path to Power” challenges our assumptions of Lyndon Johnson.  It portrays a power-hungry man, ruthless in action and despicable in treatment of his peers.  It shows someone valuing pragmatism over any semblance of ideology — who would, in fact, go to great lengths to avoid voice his actual opinion on any matter, regardless its triviality.

Caro’s work is a truly magnificent book that reveals Lyndon Johnson, the man, not the liberal icon.  Everyone hoping to learn more about the 36th president should read it and the series.

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