GMU Law School Will Have First Year Course In Constitutional History

A required course that is, that will focus on

a large number of important original legal sources familiar to the founding generation, ranging from Magna Carta and the English Bill of Rights to the Federalist (and Anti-Federalist) Papers, along with constitutional debates at the Philadelphia Convention and in the First Congress.

To be honest, my law school did a very poor job dealing with constitutional history and it is an important part of understanding both where our law originated and where it is going now.

Modern constitutional law classes focus largely on the development of the law since just before and then after the Warren Court. Sure cases like Marbury v. Madison, Dred Scot, Lochner and a few others from the pre-World War II era are covered, but not nearly in teh level of detail of the Warren Court and beyond. the constitutional history I learned in my undergrad days (I wrote a thesis about Anti-federalist/federalist thought) gave me more background than anything I studied in law school. In fact, when Justice Scalia spoke to my constitutional law class, he was shocked that the Federalist papers were not part of the curriculum (an omission my con law professor quickly rectified) and was similarly shocked that most of law students before him, save for about a dozen of us, had never read the Federalist papers, let alone any of the Anti-Federalist papers.

I wonder if any of Blackstone's Commentaries will be included in the GMU course as it was probably the one series of books that every lawyer in America read in the late 18th Century.

Why Study War?

The short answer is that warfare is a common human state and a fact of every nation's history, studying war is studying history. But Victor Davis Hanson explains it far better than I could:

It’s no surprise that civilian Americans tend to lack a basic understanding of military matters. Even when I was a graduate student, 30-some years ago, military history—understood broadly as the investigation of why one side wins and another loses a war, and encompassing reflections on magisterial or foolish generalship, technological stagnation or breakthrough, and the roles of discipline, bravery, national will, and culture in determining a conflict’s outcome and its consequences—had already become unfashionable on campus. Today, universities are even less receptive to the subject.

This state of affairs is profoundly troubling, for democratic citizenship requires knowledge of war—and now, in the age of weapons of mass annihilation, more than ever.

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What lay behind this academic lack of interest? The most obvious explanation: this was the immediate post-Vietnam era. The public perception in the Carter years was that America had lost a war that for moral and practical reasons it should never have fought—a catastrophe, for many in the universities, that it must never repeat. The necessary corrective wasn’t to learn how such wars started, went forward, and were lost. Better to ignore anything that had to do with such odious business in the first place.

The nuclear pessimism of the cold war, which followed the horror of two world wars, also dampened academic interest. The postwar obscenity of Mutually Assured Destruction had lent an apocalyptic veneer to contemporary war: as President Kennedy warned, “Mankind must put an end to war, or war will put an end to mankind.” Conflict had become something so destructive, in this view, that it no longer had any relation to the battles of the past. It seemed absurd to worry about a new tank or a novel doctrine of counterinsurgency when the press of a button, unleashing nuclear Armageddon, would render all military thinking superfluous.

Further, the sixties had ushered in a utopian view of society antithetical to serious thinking about war. Government, the military, business, religion, and the family had conspired, the new Rousseauians believed, to warp the naturally peace-loving individual. Conformity and coercion smothered our innately pacifist selves. To assert that wars broke out because bad men, in fear or in pride, sought material advantage or status, or because good men had done too little to stop them, was now seen as antithetical to an enlightened understanding of human nature. “What difference does it make,” in the words of the much-quoted Mahatma Gandhi, “to the dead, the orphans, and the homeless whether the mad destruction is wrought under the name of totalitarianism or the holy name of liberty and democracy?”

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A wartime public illiterate about the conflicts of the past can easily find itself paralyzed in the acrimony of the present. Without standards of historical comparison, it will prove ill equipped to make informed judgments. Neither our politicians nor most of our citizens seem to recall the incompetence and terrible decisions that, in December 1777, December 1941, and November 1950, led to massive American casualties and, for a time, public despair. So it’s no surprise that today so many seem to think that the violence in Iraq is unprecedented in our history. Roughly 3,000 combat dead in Iraq in some four years of fighting is, of course, a terrible thing. And it has provoked national outrage to the point of considering withdrawal and defeat, as we still bicker over up-armored Humvees and proper troop levels. But a previous generation considered Okinawa a stunning American victory, and prepared to follow it with an invasion of the Japanese mainland itself—despite losing, in a little over two months, four times as many Americans as we have lost in Iraq, casualties of faulty intelligence, poor generalship, and suicidal head-on assaults against fortified positions.

I have tended to study warfare from two angles, one is the manuevering that took place during battle. Since the end of the American Civil war, the last great war in which armies faced each other across a field (yes, I know World War I ended up that way, but it didn't start that way), battles, whether on land, on sea or in the air, have been battles of movement. The second angle is the decision making processes that went into the battles, the decisions of generals and admirals on a grand scale, the micro decisions of ship captains and platoon leaders, all made in split seconds and then studied for ages.

Military history is the history of humanity and we ignore it at our peril.

Pajamas Media: History Lessons

History Lessons talks about how modern history education does not address those questions kids have most:

Lately, my daughter has been peppering me with questions familiar to anyone who has ever spent time around children and/or been one. Who invented stairs? What was the first language? When did people start using toilet paper? You can add to this list yourselves, I’m sure.

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When I reflect on my history education, I recognize two distinct problems. The first I have already mentioned. It was full of holes. It didn’t flow in any logical progressive order.

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As for the history I was taught, I learned it well enough at the time, memorized dates, battles, presidencies, with ease and comprehension. But here’s the second problem. Over the years, I have retained little. Much of it has vanished from my memory. I’d blame it on age, but this forgetfulness hasn’t plagued me to such a degree in other disciplines. Even ones I didn’t enjoy nearly as much.

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Now, thinking about history, about what I remember and what I don’t, I have a different reaction. I wonder if we aren’t using a hopelessly irrelevant, archaic framework to teach a subject that is absolutely vital to our children if we care about the future of the modern world. How about basing primary school history education on the evolution of the material, of inventions, of progress? From the evolution of toilet paper will come a thousand other history lessons, touching on everything from economics to politics to religion. And those lessons will be remembered, because they will be answering questions that children (and adults) naturally have.

Imagine a new generation of young people with a working, practical knowledge of the history of progress… We’d better do more than imagine them, because we’re going to need them.

For kids of the middle school age and high school, I suggest the Connections series with science historian James Burke. I saw the first series as a youngster and loved them. I am planning on buying them for my daughters' history education because they helped me understand the connections between science, society and historical development.

Here are the espisode Guide for Connections, Connections2 and Connections3. As sample from Connections:

Volume 3: Distant Voices. Telecommunications exist because the Normans wore stirrups at the Battle of Hastings- a simple advance that caused a revolution in the increasingly expensive science of warfare. Europe turned its attention to making money to wage wars. As mine shafts were dug deeper, they became flooded, stimulating scientists like Galileo to investigate vacuums, air pressure and other natural laws to mine deeper silver. This led to the discovery of electricity and magnetism’s relationship and to the development of radio, and deep space telecommunications that may enable contact with galactic civilizations.

Hisotry, presented as kids can understand it.

What a Spectacularly Bad Idea

Robert Dallek writing in the Washington Post posits the idea of a presidential recall. his reasonng seems based on the continued poor popularity ratings of the President and the fact that there is no viable constitutional grounds for removing the president.

The political argument against Bush's continuing tenure is not frivolous. There are good reasons to see him as a failed president whose remaining time in office will be unproductive at best and destructive to the country's well-being at worst. But given the constitutional rules by which the presidency operates, there is no serious prospect of removing him from office.

A fine solution would be a Nixon-style resignation, but anyone who thinks that Bush and Vice President Cheney would give in to such a demand is dreaming. With no serious threat of impeachment looming, Bush and Cheney can afford to dismiss calls for their departure as the outcries of political extremists. Instead, the president, determined to stay the course, declares that his strategy in Iraq needs more time to work, that the many charges of abuse of power are unsubstantiated, and that, as with Harry Truman, who also lost his hold on the public in the last two years of his presidency, history will vindicate him.

Halleck talks about a recall provision that would require supermajorities of both the House and Senate followed by a simple up or down vote by the American people.

Sounds sensible, right? Well maybe, if we could be better assured of what Halleck, a historian, was getting at. Here is a hint:

However limited the use of this initiative might prove to be, its availability could help to pressure an ineffective, unpopular president into abandoning policies or altering actions that had turned the country against him. Would Presidents Ulysses S. Grant and Warren G. Harding have been so casual about the wrongdoing in their administrations if they knew that a device other than impeachment existed for ousting them? Might Herbert Hoover have been less rigid or more receptive to fresh ideas for dealing with the Depression if he had a greater sense of urgency about satisfying public demands for economic remedies? Would Lyndon Johnson have been so unyielding about escalating the war in Vietnam if he feared voter wrath before the end of his four-year term?

Such an amendment would compel presidents to think about public support or government by consensus throughout their time in office, rather than as they approached reelection, particularly during a second term, when they would otherwise have no reason to fear voter repudiation.

So what Halleck wants is a more "responsive" president, one more malleable to a public opinion that is hard to pin down.

So what about current pulic opinion? There is a great deal of support for ending the war in Iraq, but hardly overwhelming. There have been calls for a "new direction" in Iraq, but no concrete counterproposals to follow. In reality, President Bush is not popular, but may yet still be vindicated--even within his own term.

The framers no doubt thought about the impact of a president who was unpopular, but truth be told, they were not all that concerned about a President who was no popular or effective. They had envisioned a Congress that is much more active and engaged that the Congress we have now or have had in the past decade. Congress penchant for investigation over legislation has not provided teh necessary check on presidential power or presidential politics. A strong president must be countered by a strong Congress in order for our constitutional system to function properly. President Bush has an agenda, we not only expect him to have one, but we demand of him to have one.

So a significant portion of the country does not like the President. Perhaps the Framers figured it is better for a nation to suffer "a fool" for four years or a portion of four years as a reminder that elections must be taken seriously.

A Weak Congress Does Not an Imperial President Make

The New York Times' Adam Cohen discusses in a fairly well researched op-ed about the Bush Administration's assertions of executive power, calling the it an imperial presidency.

Cohen discusses how the Founders felt when dealing with the presidency. Cohen accurately notes that the Founders were indeed worried about too robust an executive. Cohen writes:

Given how intent the president is on expanding his authority, it is startling to recall how the Constitution’s framers viewed presidential power. They were revolutionaries who detested kings, and their great concern when they established the United States was that they not accidentally create a kingdom. To guard against it, they sharply limited presidential authority, which Edmund Randolph, a Constitutional Convention delegate and the first attorney general, called “the foetus of monarchy.”

The founders were particularly wary of giving the president power over war. They were haunted by Europe’s history of conflicts started by self-aggrandizing kings. John Jay, the first chief justice of the United States, noted in Federalist No. 4 that “absolute monarchs will often make war when their nations are to get nothing by it, but for the purposes and objects merely personal.”

Many critics of the Iraq war are reluctant to suggest that President Bush went into it in anything but good faith. But James Madison, widely known as the father of the Constitution, might have been more skeptical. “In war, the honors and emoluments of office are to be multiplied; and it is the executive patronage under which they are to be enjoyed,” he warned. “It is in war, finally, that laurels are to be gathered; and it is the executive brow they are to encircle.”

George W. Bush is not the first president, nor will be be the last, to test the limits of his authority. That fact that he does so does not make him an imperial president any more than Theodore Roosevelt, Franklin Roosevelt, Lyndon Johnson or Richard Nixon, all men who pushed the limits of presidential authority.

While the Founders were correct in their feeling that the Presidency was the "foetus of monarchy," that is an incomplete picture at best. The Founders struggled mightily with the question of a chief executive. Even fressher in their minds than the tyranny of King George III was the highly ineffective manner in which the national government under the Articles of Confederation dealt with military and diplomatic matters. Under a government structure that demanded unaminty among the colonies, a difficult proposition at best, Congress during the Revolutionary War had to entrust the prosecution of the war to a single man--George Washington. During the waning days of the war, there was concern that the immense popularity of Washington would lead to his usurpation of the government to establish a monarchy. Imagine their relief when Washington resigned his commission in Annapolis.

Because of their internal intellectual and political struggles to create an executive capable of quick action in times of national emergency, a task for which Congress, even today in the era of rapid transit and even faster communication, is ill-suited at best. The Framers knew that a military and diplomatic campaign cannot be run by committee. As Cohen properly notes of the framers,

They gave Congress the power of the purse so it would have leverage to force the president to execute their laws properly. Madison described Congress’s control over spending as “the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.”

The framers expected Congress to keep the president on an especially short leash on military matters. The Constitution authorizes Congress to appropriate money for an army, but prohibits appropriations for longer than two years. Hamilton explained that the limitation prevented Congress from vesting “in the executive department permanent funds for the support of an army, if they were even incautious enough to be willing to repose in it so improper a confidence.”

The President has asked for annual appropriations for the military and the Congress has given it to him. That is not the hallmark of an imperial presidency, but the normal functioning of a federal government. Congress has within its Constitutional power to effect change, and even the President and the most rapid hawks acknowledge that fact. Should Congress pass a bill limiting appropriations for Iraw, there will be show down since it is unlikely that Congress could sustain a presidential veto of a war funding bill that zeroed out appropriations for the war in Iraq. I may not be sure of much regarding Congress, but I can be certain the Senate Minority Leader Mitch McConnell and House Minority Leader John Boehner are keeping a close eye on that whip count, making sure they can defeat a veto override measure.

The fact that the Congress has not taken advantage of its role and its power of the purse does not mean the Bush Administration is an "Imperial" presidency. In a deeply divided country, the Framers made sure that neither side of this dispute could run away with the issue--thereby creating an imperium of one or a oligarchy of many. The current struggle we face is the legacy of the Framers, a mechanism by which they sought to ensure that any course of action had legitimate public support before being followed. In this, we see the true genius of the Framers.

Sara Taylor, Harriet Miers and Executive Privilege

To be frank, I have only marginally followed the matter regarding Congress' desire to question former White House political operative Sara Taylor and former White House Counsel Harriet Miers. (Why is it when I write her name, all I hear in my head is that line from Mike Myers' movie So I Married an Axe Murderer, "Harriet, sweet Harriet"?) In essence, to me is seemed like a pretty open and shut case of executive privilege. The President is entitled to full, frank and private conversations between himself and his advisors. Similarly, his advisors need to be able to talk to each other without haveing a nosy Congress or the Courts, absent a compelling reason, poking their snouts under the tent flap. John Yoo writes about the matter:

Republicans aren't exactly racing to defend President Bush's assertion of executive privilege against Congress's investigation of his firing of nine U.S. attorneys. This leaves former political director Sara Taylor and Harriet Miers, former White House counsel, facing possible contempt sanctions. If this sword of Damocles drops, an important constitutional showdown between the branches might well reach the Supreme Court.

Rather than run from this fight, supporters of the constitutional system ought to stand firm with the president. Presidents, Congresses, and the courts have long accepted a president's right to keep internal executive discussions confidential. Even when the Supreme Court ordered Richard Nixon to hand over the Watergate tapes, it recognized "the necessity for protection of the public interest in candid, objective, and even blunt or harsh opinions in Presidential decisionmaking."

Without secrecy, the government can't function. No one thinks conversations between federal judges and their clerks, or members of Congress and their staff, ought to be aired publicly without good reason. The same goes for presidents--even if their poll ratings are low.

Yoo goes on to point out the hypocrisy of Democrats who jumped to President Bill Clinton's defense and now attack President Bush. Yoo points out a critical difference--Bill Clinton asserted executive privilege on matters not related to his official duties, George Bush asserts privilege on matters at the heart of his Constitutional mandate as chief of the executive branch. The President's executive privilege is strongest in areas of diplomacy, national security and law enforcement.

The Supreme Court held in 1959 that, "Since Congress may only investigate into those areas in which it may potentially legislate or appropriate, it cannot inquire into matters which are within the exclusive province of one or the other branches of the Government." In the 1974 Watergate tapes case, the Supreme Court said that the president's right to protect information is strongest when law enforcement, national security or his other constitutional powers are involved. Under that rule, Mr. Leahy has no right to see the president's communications about the firing of federal attorneys, the nomination of John Roberts or Samuel Alito to the Supreme Court or the reduction of Scooter Libby's sentence.

That doesn't mean the president's power is limitless. Congress can conduct oversight needed to pass legislation. On the fig leaf that Congress is superintending the Justice Department's funding or statutory authorities, DOJ has accommodatingly turned over thousands of documents and made its senior staff available for testimony. Congress can always engage in good old-fashioned horse trading to get its way. If Senate Democrats really cared to see any of Mr. Bush's communications, as opposed to lobbing allegations of "scandal" endlessly on the front pages, they could refuse to confirm any new U.S. attorneys, high officials or judges until they got what they wanted. Not bothering suggests that there is no real wrongdoing here, just an intent to keep the scandal machine running.

the fact that Congress keeps bringing up the potential contempt of Congress charges against Ms. Taylor or Ms. Miers indicates that their legal advisors are telling them they have no leg to stand on legally, leaving only the political force of propaganda to get their way.

Let's assume that Ms. Taylor has information on the U.S. Attorney firings as does Ms. Miers. So what. The President fired them as was his right. No one would argue that the President can't fire the attorney general just because he didn't like Alberto Gonzalez's choice of necktie that day. Why then are the rules different for the Attorney General and the U.S. Attorneys? Is a firing for a subjective fashion faux pas ludicrous-sure, but that doesn't mean it is constitutionally suspect.

Let's assume further that Harriet Miers and Sara Taylor said the U.S. Attorneys should be fired for the very same reason--poor fashion sense in their eyes, or the fact that they were too tall, too short, too blond or went to Harvard instead of Yale. All of these reasons for dismissing someone are silly. Dismissing someone for not following orders is common practice in the private sector and should be in the public sector as well. The position of U.S. Attorney is a political appointment, is a political job at its heart and tenure on the job is subject to political whims.

Congress too has its own political agenda and the threat of contempt of Congress charges are part of its political theater. Congress can't seem to legislate anything so it is left with the only things it does well--investigate and spin.

Yoo points out that the dispure betweeen the President and Congress could go to the Supreme Court--and it could. But if it does, here is my guess as to what the Roberts Court will do---Nothing.

The Court should and probably will declare the dispute a political question and let the two sides sort it out themselves.

Victor Davis Hanson on Lessons of D-Day

From Real Clear Politics, Hanson reminds us that despite the glory of D-Day, it was still a horrific battle with ten times as many killed in a two month period as has been lost in Iraq in five years. But there are lessons that can be applied to today's battle for freedom:

What can we learn, then, on this anniversary of the Normandy campaign?

By any historical measure, our forefathers committed as many strategic and tactical blunders as we have in Afghanistan and Iraq - but lost tens of thousands more Americans as a result of such errors. We worry about emboldening Iran by going into Iraq; the Normandy generation fretted about empowering a colossal Soviet Union.

Of course, World War II was an all-out fight for our very existence in a way many believe the war against terror that began on 9/11 is not. Even more would doubt that al-Qaida jihadists in Iraq pose the same threat to civilization as the Wehrmacht did in Europe.

Nevertheless, the Normandy campaign reminds us that war is by nature horrific, fraught with foolish error - and only won by the side that commits the least number of mistakes. Our grandfathers knew that. So they pressed on as best they could, convinced that they needn't be perfect, only good enough, to win.

The American lesson of D-Day and its aftermath was how to overcome occasional abject stupidity while never giving up in the face of an utterly savage enemy. We need to remember that now more than ever.

Read the whole thing.

Fred Thompson Also Cites Orwell

George Orwell is getting a work out today. Fred Thompson also cites Orwell while dicussing the watering down and rewriting of history in Great Britain. Of course, one could say that we are not British, but the point Thompson is making nonetheless holds true in the United States, we cannot ignore historical fact in order to avoid offending people.

The British are, in the main, a particularly polite people, but there is a point when the desire not to offend the easily offended becomes an even bigger problem. We’ve already seen an English organization ban images of Piglet, the harmless character from the classic Winnie the Pooh books, because of protests by those who imagine that simply seeing a cartoon pig is a violation of their civil rights. We’ve even seen the banning of pins bearing St. George’s cross, because it reminds some of the Crusades — accompanied by demands that Great Britain get rid of the venerable Union Jack for the same reason.

These views, common in the Middle East, are not just an academic or intellectual challenge. We have seen homegrown British terrorists act on the same lies and conspiracy theories that are now being used to silence teachers. Ideas do have consequences and we all need to understand that the war on terror is taking place as much in the realm of ideas as it is on the battlefields of Iraq and Afghanistan.

America is a free country and we do not tell people what they can believe or say. We should realize, however, that there are people in America who are also telling their children that the Holocaust is a lie and that those who say otherwise are their enemies. We cannot prevent them from doing so, but we also cannot let them promote their agenda by claiming they are victimized by historical facts.

This would be a good place to quote an important British writer, George Orwell, who wrote, “Who controls the past controls the future. Who controls the present controls the past.” Even in America, our children are often taught a watered down, inoffensive, and culturally sensitive version of events ranging from the Crusades to the battle at the Alamo.

It’s time for people who believe that they have a stake in Western civilization and its traditions to get a little backbone — even if it offends somebody.

We Americans seem to be on a path that whatever we say, we have to make sure that we don't offend people. So we use terms that are politically correct rather than accurate. There is of course a need to be civil in civil society, but that is not a license to speak in falsehoods and euphemisms. Nor is it a license to ignore history and the present.