I suspect that some of you find me tiresome on the point that we should analyze at least aspects of our current system through the analytic lens of "constitutional dictatorship." But consider the following exchange yesterday between the White House Press Secretary, Dana Perino, and Helen Thomas:

Thomas: "The American people are being asked to die and pay for this. And you're saying they have no say in this war?"

Perino: "No, I didn't say that Helen. But Helen, this president was elected --"

Thomas: "Well, what it amounts to is you saying we have no input at all."

Perino: "You had input. The American people have input every four years, and that's the way our system is set up. . . . "

Kofi Annan announced today that a power sharing agreement has been reached between Kenya leaders Mwai Kibaki, the incumbent who claimed victory after a disputed presidential election in December, and Raila Odinga, the opposition leader. According to news reports, Odinga will hold the post of Prime Minister, an innovation in Kenya, and Kibaki’s and Odinga’s parties will each hold 50% of cabinet positions.

It appears that the post-election crisis, and the negotiations to stop the killing, have accomplished what several years of efforts to reform the Kenya constitution have been seeking: divided executive power, with leadership shared between a President and a Prime Minister.

While the agreement may succeed in bringing the immediate crisis to a close, it will be interesting to see how this divided government will function pending the next round of elections.

Dan Froomkin's blog for the Washington Post asks "Are We Closer to War?" The question, and most of the post, is sparked by the unceremonious dumping of Adm. William Fallon as head of the overall Middle East (and Afghanistan) command following his comments in an Esquire article about the unwisdom of going to war with Iran. Yes, I know that Adm. Fallot "voluntarily" resigned, but only after, apparnetly, Secretary of Defense Gates stopped returning his calls. Froomkin suggests a linkage between the Israeli attack on Syria (to smoke out the defensive electronics of recently acquired equipment from Russia) and the Cheney trip to the mideast re the possibility of a new war.

During the past decade, prominent political scientists have written terrific essays under the rubric "political regimes." Many essays cite as foundational such previous work as Robert Dahl’s "Decision-Making in a Democracy: The Supreme Court as a National Policymaker," 6 Journal of Public Law 279 (1957). Neither Dahl nor the first studies which elaborated his thesis, however, used the term "political regimes" to describe their analysis. Indeed, these foundational works had a somewhat different point than works which self-consciously employ the "political regimes" label. At least, this is true of an essay I wrote that is sometimes cited in this vein. With some luck, this post (and possibly a few others) will clarify matters and not add to the confusion.

Ralph Nader announced today on Meet the Press that he was running for a third time for the presidency. The reaction so far has been predictable.

Democrats, remembering 2000 and blaming him for the Bush Presidency, are annoyed and a little bit frightened that he is injecting himself into the race. Republicans are secretly delighted, in the hopes that he might swing a few close states like Ohio, or dare one say it, Florida, to the Republican nominee.

I think that Democrats have much less to fear this time. Nader's candidacy means something quite different in 2008 than it does in 2000. In 2000, Nader was one of several factors that put George W. Bush in the White House. And in fairness to him, he was only one factor.

My guess is that there is very little chance that Nader will decide the outcome of the 2008 election; he will probably have very small numbers, as he did in 2004. Third parties who do not quickly displace one of the two major parties (as the Republicans displaced the Whigs in the 1850s) tend not to wear well on repeated attempts.

Frank Rich has another excellent column in tomorrow's New York Times on "The Coup at Home," pointing to the erosion of our democracy during the Bush Administration. (He notes that George W. Bush is perhaps not in the strongest position to be giving Perez Musharoff lectures on fidelity to democracy or to constitutional norms in the face of perceived threats to his authority, especially if one can label one's opponents as 'terrorists.")

While everyone seems to be focused on which sermons Barack Obama heard from his minister and what the Second Amendment means, the United States, and by extension the world, is on the brink of a financial melt-down, which the Federal Reserve Board is doing its best to prevent.

The Fed is now taking emergency actions-- for example approving a 30 billion dollar loan to J.P. Morgan to purchase Bear Stearns-- that it would not dream of taking in ordinary circumstances. In essence, the Fed is trading loans that are very low risk for loans that are very high risk and while simultaneously taking control of Bear Stearn's portfolio in order to protect itself. It has also announced that it will offer loans to other similarly endangered Wall Street investment firms.

It appears that John McCain is the anointed (at least by the press) nominee of the Republican Party, not least becasue he carried a number of Northeastern states in which he basically stands no chance of winning in November and because he won 33% of the vote in Missouri and, apparently, 44% of the Republican vote in California. As to the former, the winner-take-all feature had been engineered to slingshot Rudy Giuliani into the lead. Obviously, things changed. (California is not winner-take-all for the Republicans.) Missouri is also a winner-take-all state, which means, by definition, that a candidate rejected by 67% of the relevant electorate can nonetheless "win" because of being first-past-the-post. Perhaps McCain might have won in a run-off or alternative transferrable vote, but there is certainly reason to doubt this in Missouri.

Over at the Washington Post, Lou and Carl Cannon try to offer a balanced assessment of George W. Bush's Presidency, comparing him to Ronald Reagan, whom they have studied in depth. They argue that at least domestically, Bush was "a worthy inheritor of the Reagan mantle," especially in the area of tax cuts and judicial appointments. They don't blame him for increased federal spending and earmarks; although this seems to be overly generous, since he did promote his Medicare program heavily. Moreover, he was the leader of his party at a time when that party controlled both Congress and the Presidency, and, moreover, he had the veto power. If Bush had really wanted to limit the growth of federal spending, he could have used at least some political capital to do so.

One would think from the recent excitement over the possibility of a bipartisan political movement that Hillary Clinton was running on a platform calling for confiscation of corporate property, reestablishment of the moderately progressive tax structure of the 1970s, the return of all American troops from abroad, the abolition of capital punishment, and (heaven forbid), gay marriage. With the exception of a stray remark by John Edwards, Democrats polling more than 10% continue to run to the right of Richard Nixon. Indeed, judging by their legislative activity this year, the Democrats as a whole have almost no ambition to push any program that is substantially to the left of center. The real issue ought to be why some journalists are so excited about the possibility of a third party that might take a middle position between the party clearly to right of the electorate and the party that on its best day sometimes lurches very slightly to the left.

All of the presidential candidates seem to be picking up Barack Obama's theme of change and portraying themselves as agents of change. If things keep going the way they have been, the 2008 election now looks to be as defining a moment as 1932, 1968 or 1980. (If things keep going, that is. A lot can happen in ten months).

If 2008 turns out to be a pivotal election, defining a new political era, it is important to give credit where credit is due. Two key reasons for the change will be the crackup of the coalition of the dominant party of the era, the Republicans, and the almost complete political failure of George W. Bush and his chief political adviser, Karl Rove. Let me begin with the second feature, and move to the first.

George Packer's article in the New Yorker on "The Fall of Conservatism" reports that "most" of the younger conservatives he spoke with "predicted that Republicans will lose the Presidency this year and suffer a rout in Congress."  He quotes Republican strategist Ed Rollins:  "Today, if you're not rich or Southern or born again, the chances of your being a Republican are not great."

Suppose these predictions and analyses are correct.  What are the implications for the Supreme Court and especially for the continued vitality of Roe v. Wade?

For those interested in avoiding work and/or learning about the new scholarship on race and American Constitutional Development, Professor Michael Klarman of the University of Virginia Law School and I are blogging about his new book, Brown v. Board of Education, and the history of racial equality in the United States over on the website of the American Constitutional Society. Our conversation has ranged from the influence of the Supreme Court on race policy to the political construction of judicial review to the extent to which racial progress in the United States is a function of virtue or interest. Happy reading.

The current situation in the Democratic and Republican parties is almost entirely a function of the fact that they operate under two strikingly different election systems. It is "natural experiment" that has much to teach us about institutional design. The Democrats are operating under a classic system of proportional representation. The only real surprise is that it so quickly was reduced to a two-person contest, probably a function of the enormous amounts of money needed to finance a modern campaign. The Republicans, on the other hand, have chosen to operate, in many states, under a classic first-past-the-post winner-take-all system. This means that John McCain was able to get all of Missouri's delegates by getting, I believe, 34% of the total vote in that state. I haven't done the numbers to know what would be happening in the Democratic race if states operated on a first-past-the-post winner take all system. At the very least, Clinton would have hundreds of additional delegates from New York, New Jersey, and California, for starters, not to mention similar possibilities in Texas and Ohio, should she win either by even one vote. If Republicans had adopted a p.r. system similar to the Democrats, then John McCain would by no means have the nomination locked up, and we could all look forward to a circus at the Republican convention in Minneapolis.

Following up on Mark's previous post, I think the correct analysis of why a Republican dominated court is unlikely to overturn Roe is not that the Justices themselves are primarily motivated to keep the Republican coalition together. Rather, the argument has to do with Presidential motivations in nominating particular Justices to the Supreme Court. That is, if you focus primarily on the motivation of Justices after they get on the bench you are looking in the wrong place for an explanation.

Since the failure of the Bork nomination in 1987, it has become clear that Republican Presidents and the party itself would pay a political cost if the Supreme Court appeared ready to overturn Roe v. Wade. Hence they have chosen people who were likely to weaken Roe but not directly overrule it. Ronald Reagan, for example, appointed Anthony Kennedy as a compromise candidate who could win easy confirmation. Kennedy has turned out to be far more moderate than Robert Bork would likely have been, and indeed, one can hardly imagine Robert Bork writing either Casey or Lawrence v. Texas.

Needless to say, many pundits are now commenting on the rules of the Democratic Party re the selection of its presidential candidate. See, e.g., E.J. Dionne's column in today's Washington Post, where he writes that "Democrats have contrived a nominating contest that even Rube Goldberg would have considered too convoluted, too dysfunctional and too improbable to name as his own." Save for the certainly peculiar way by which Texas names its delegates--I had the pleasure of voting twice for Barack Obama, once in early voting (in a secret ballot) and then several days later at my local caucus (which is definitely not secret)--I don't share the hostility to a preference-sensitive proportional representation system that does not negate the votes of everyone who doesn't vote for "the winner" (who may, as with McCain in a number of states, get distinctly less than a majority of the vote). But I've already made such arguments, and I won't rehearse them again. My current grumpiness is about something else, though regular readings of Balkinization shouldn't be surprised by what I'm about to write.

Today President Bush vetoed an intelligence authorization bill which would have required the CIA to abide by the Army Field Manual. The Army Field Manual outlaws waterboarding and a variety of other coercive techniques that the Administration euphemistically calls "enhanced interrogation techniques." The White House announced previously that it had waterboarded people before and might do so again in the future. Bush's veto is, in effect, an attempt to retain the option to violate the Geneva Conventions, the Federal Anti-Torture statute, and the McCain Amendment. He would only retain this option, however, because his lawyers have made unreasonable interpretations of U.S. law to conclude that the most egregious of these techniques-- including waterboarding-- are lawful, instead of what they actually are: violations of federal law and breaches of Geneva.

Before making some general observations about Charlie Savage’s new book Takeover, I want to say that this is one of the best journalistic accounts concerning presidential power (a topic difficult to explain to a lay audience) published in a long time. Savage appears to be a tireless reporter and he takes on many interesting issues in the book. I agree with him (or his sources) on many specific points concerning the Bush II administration’s use of power. Here are a few: trying to set up military commissions from scratch (or even use them at all) was a major error; the analysis of presidential power in the torture memos was incompetent; trying to conduct NSA domestic surveillance outside of FISA was illegal; and there is no such thing as unilateral presidential authority to ignore an otherwise valid congressional statute.

There was a story in the NYT today which repeated an argument Hillary Clinton has been making for awhile -- that only she and John McCain cross the "commander in chief threshold." This argument is meant to stress her experience and readiness for the presidency, but there is a shadow issue that few have noticed although it dogged the first Clinton presidency. That's the relationship between the officer corps and the Democratic party. So far I've noticed one story on this issue in the Washington Times which gave expression to the serious doubts the military has about both Democratic candidates. The conservative and Republican tendencies of the officer corps have been noted but I'm not advancing a Seven Days in May scenario and those tendencies are inherently no more worrisome that the liberal and Democratic tendencies of law professors. The issue is rather whether the gulf between most of the officer corps and Democrats has reached the point where alienation, lack of common ground, and mistrust would lead to unnecessary conflict, misunderstandings, and serious policy mistakes in a Clinton or Obama administration. Remember the opening months of the first Clinton administration -- gays in the military? That conflict featured the military brass drawing on their contacts in Congress to oppose an initiative featured in the presidential election.

In a word, no.

It is true that the Administration's most extreme theories of the Presidency have been rebuffed both in the courts and in public opinion. But the more important question is whether the next President will find him or herself significantly limited in what he or she seeks to do because of the Bush Administration's failures. The answer to that question is: almost certainly not.

Over at the Washington Post, Eugene Robinson gets what is at stake in the 2008 election-- a reconstructive presidency:

Obama's candidacy not only threatens to obliterate the dream of a Clinton Restoration. It also fundamentally calls into question Bill Clinton's legacy by making it seem . . . not really such a big deal.

That, I believe, is the unforgivable insult. The Clintons picked up on this slight well before Obama made it explicit with his observation that Ronald Reagan had "changed the trajectory of America in a way that Richard Nixon did not and in a way that Bill Clinton did not."

Grading constitutional law examinations provides an interesting window into what students are thinking and not thinking. As is the case with most professors, I find grading rather tedious, save for the occasional amusing mental typo. This year’s winner, on an examination that was quite good, was "the theory of the unitary executive gives the president the power to lead a rebellion against the United States." I hope no one tells Dick Cheney. Still, several points might be of broader interest and do not seem to be a violation of confidentiality.

Bob Bauer

On Thursday Bob Pastor offered a measured defense of the Carter-Baker Commission's recommendation on voter identification against criticisms that we (along with Brad Smith) levied in the wake of the Supreme Court's Crawford decision. One of us agrees with a good deal of what Pastor says about the merits of shadow institutions like the Carter-Baker Commission and the useful purpose the Commission served in Crawford (see here); the other is more skeptical (see here). But there are a few issues where we both part company with Pastor.

We remain convinced that the public deserved something better than what the Carter-Baker Commission produced on the photo i.d. question. The main source of disagreement between us and Pastor turns on the difference between a bipartisan compromise and a nonpartisan decision. There are many issues for which a bipartisan compromise will be a satisfactory, even superior alternative. This is not one of them.

The Democratic Party has just stripped Michigan of its votes at the national convention because, in violation of Party rules, Michigan is holding a primary before February 1. The Party has also done the same to Florida. Under party rules, only Iowa, New Hampshire, Nevada, and South Carolina are allowed to hold primaries before February 1.

Losing both New Hampshire and Iowa can destroy a candidacy. Winning both is a sure path to the nomination.

Today in Washington, D.C., Doug Kendall will announce the formation of a new public interest law firm, the Constitutional Accountability Center. The new center will be dedicated to litigation that promotes a proper understanding of text, history and structure and that demonstrates that our Constitution, correctly interpreted according to its original meaning, is a progressive document. I'm a member of the Board of Advisors and I wish Doug every success in his efforts.

The question I'm asking here is not the question of individual characteristics, but their structural placement within the succession of Presidents.

Many supporters of Second Amendment rights are, pardon the pun, up in arms over the Bush Administration Justice Department's amicus brief in Heller, the Second Amendment case now before the Supreme Court. The government's brief recognizes an individual right to bear arms but argues that historically the right excluded felons (even though they are presumably part of "the People"). Moreover, it argues that the Second Amendment may permit a wide range of reasonable regulations of firearms.

As I noted in a previous post, I have been having an exchange with Professor Michael Klarman over at the American Constitutional Society. My last post seems particularly relevant to some concerns of Balkinization, so as either a public servive or, more likely, pathetic self-promotion, I've reproduced an edited version.

Michael Klarman’s work on the constitutional history of race correctly notes that American racial politics have historically been subject to periods of polarization, and that this polarization has had surprising consequences. Every major burst of civil rights activism in the United States has been preceded by an intense period of polarization, marked by increased militant commitments to the racial status quo in the south. To an extent rarely commented on, the Constitution of the United States may be responsible this polarization and may also bias ordinary politics toward more conservative racial views.