David Brooks today:
When I first heard this sort of radically optimistic speech in Iowa, I have to confess my American soul was stirred. It seemed like the overture for a new yet quintessentially American campaign. But now it is more than half a year on, and the post-partisanship of Iowa has given way to the post-nationalism of Berlin, and it turns out that the vague overture is the entire symphony. The golden rhetoric impresses less, the evasion of hard choices strikes one more. . . .
In Berlin, Obama made exactly one point with which it was possible to disagree. In the best paragraph of the speech, Obama called on Germans to send more troops to Afghanistan. The argument will probably fall on deaf ears. The vast majority of Germans oppose that policy. But at least Obama made an argument.
Much of the rest of the speech fed the illusion that we could solve our problems if only people mystically come together. . . . The great illusion of the 1990s was that we were entering an era of global convergence in which politics and power didn’t matter. What Obama offered in Berlin flowed right out of this mind-set. This was the end of history on acid.
Public radio's Marketplace is doing a series of reports on leadership PACs. The reporters also compiled a searchable, sortable database. Here are links to the money Sen. John Sununu raised and distributed and to the money Sen. Judd Gregg raised and distributed between December 2004 and December 2007. You can sort the results by date, giver/receiver, amount or purpose.
Here are the corresponding links for Sen. John McCain (raised and distributed) and for Sen. Barack Obama (raised and distributed). Because you can also sort by state, you can get a quick sense of the money each dropped in New Hampshire -- more from McCain than from Obama.
Larry Sabato considers New Hampshire (4 electoral votes) one of only eight states that's a complete toss-up in the general election. The others, he says, are Colorado (9), Michigan (17), Nevada (5), Ohio (20), Pennsylvania (21), Virginia (13) and Wisconsin (10). He lists five other states as leaning to one side but reversible (Iowa and New Mexico for Obama and Floria, Missouri and North Carolina for McCain).
Other takes: As of this morning, Nate Silver projects a 77 percent chance of Obama winning New Hampshire. Real Clear Politics lists New Hampshire among 11 toss-up states.
Here, according to the Center for Responsive Politics, are the top contributors this cycle to the Democratic and Republican governors associations. This story in last week's Wall Street Journal made clear that the governors groups -- to which individuals may make unlimited donations -- will play an enhanced role in the presidential race, not just in statehouse elections.
The Journal piece is also Exhibit 329 in the case against the campaign finance regime John McCain championed in his last run for president:
Allies of Sen. John McCain have found new loopholes in the campaign-finance law he helped write -- and they're using them to reel in huge contributions to help him compete with Sen. Barack Obama.
In one method, a Republican Party fund aimed at electing governors has started marketing itself as a home for contributions of unlimited size to help Sen. McCain. His 2002 campaign law limits donations to presidential races to try to curtail the influence of wealth.
Perhaps McCain's current run for president, which is forcing him to contend with what he wrought, will persuade him that his critics indeed had a point.
Jack Balkin, who agrees with yesterday's decision in the Second Amendment case, adds this ironic commentary:
Despite its long and occasionally dreary originalist exegesis, the Heller majority is not really defending the values of 1791. It is enforcing the values of 2008. This is no accident. Indeed, the result in Heller would have been impossible without the success of the conservative movement and the work of the NRA and other social movement actors who, over a period of about 35 years, succeeded in changing Americans' minds about the meaning of the Second Amendment, and made what were previously off-the-wall arguments about the Constitution socially and politically respectable to political elites. This is living constitutionalism in action.
Like Lawrence v. Texas, Heller is another example of how the Supreme Court exercises judicial review in response to successful social and political mobilizations, regardless of what individual Justices understand themselves to be doing. The only difference is that in Heller, it is conservatives who have successfully changed public opinion, a change that has now become reflected in Supreme Court opinions.
Welcome to the living Constitution, Justice Scalia. We couldn't have done it without you.
Elsewhere, Andy Siegel adds: "To a degree that current political and judicial rhetoric masks, all of the current Justices share a conception of the judicial role that gives Courts the right and the obligation to independently assess the meaning of ambiguous constitutional rights guarantees and then follow their own best judgment, letting the chips fall where they may. The Justices have differed on their vision of the society that the Constitution's rights provisions are designed to protect, not on their vision of the judicial role."
In other words, we're all activists now.
Justice Scalia wrote the main opinion. The Second Amendment protects an individual right. The court split 5-4. Justices Stevens and Breyer wrote dissents. More details here.
You can read the opinions (pdf) here.
John McCain's campaign plans an 11 a.m. conference call to make a campaign issue out of Barack Obama's position on guns.
UPDATE: From the summary of the opinion provided by the court:
The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. . . .
Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. . . .
The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home.
Scalia's opinion concludes with this comment: "We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns. . . . But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct."
From Stevens's dissent:
Until today, it has been understood that legislatures may regulate the civilian use and misuse of firearms so long as they do not interfere with the preservation of a well-regulated militia. The Court’s announcement of a new constitutional right to own and use firearms for private purposes upsets that settled understanding, but leaves for future cases the formidable task of defining the scope of permissible regulations. Today judicial craftsmen have confidently asserted that a policy choice that denies a “law-abiding, responsible citize[n]” the right to keep and use weapons in the home for self-defense is “off the table.” . . .
The Court properly disclaims any interest in evaluating the wisdom of the specific policy choice challenged in this case, but it fails to pay heed to a far more important policy choice—the choice made by the Framers themselves. The Court would have us believe that over 200 years ago, the Framers made a choice to limit the tools available to elected officials wishing to regulate civilian uses of weapons, and to authorize this Court to use the common-law process of case-by-case judicial lawmaking to define the contours of acceptable gun control policy. Absent compelling evidence that is nowhere to be found in the Court’s opinion, I could not possibly conclude that the Framers made such a choice.
From Breyer's dissent:
To assure 18th-century citizens that they could keep arms for militia purposes would necessarily have allowed them to keep arms that they could have used for self-defense as well. But self-defense alone, detached from any militia-related objective, is not the Amendment’s concern. . . .
[T]he District’s law is consistent with the Second Amendment even if that Amendment is interpreted as protecting a wholly separate interest in individual self-defense. That is so because the District’s regulation, which focuses upon the presence of handguns in high-crime urban areas, represents a permissible legislative response to a serious, indeed life-threatening, problem.
Barack Obama and Hillary Clinton will campaign together in Unity, N.H., Friday. Along with its name, the town has the distinction of having cast an equal number of votes for Obama and Clinton in the presidential primary.
Last week's Supreme Court ruling on the rights of detainees at Guantanamo Bay quickly became an issue in the presidential campaign. (See the latest from John McCain and Barack Obama here.) With only days left in the court's term, more than a dozen cases remain to be decided (at least one will be announced tomorrow). Which other ones are most likely to make it into the campaign? Three good bets:
D.C. vs. Heller -- on the meaning of the Second Amendment and whether the handgun ban in Washington, D.C., is constitutional. Background info here and an analysis of what to look for here.
Kennedy vs. Louisiana -- on whether someone who rapes a child may be executed. Background info here.
Davis vs. FEC -- on a portion of the campaign finance law that was once McCain's signature issue. Background info here.
Based on typical workloads for the justices, multiple remaining opinions are likely to be written by David Souter, Stephen Breyer and Antonin Scalia, though the hot-button majority opinions might still be written by others.
Thursday update: Five decisions today (three by Breyer), none from these three cases. Ten cases remain. The next decision day is Monday.
Monday update: Three more decisions today (one each by Breyer, Souter and Ginsburg). The big three cases (four, if you count the Exxon oil spill case) all remain. Tea leaf readers see a strong chance that Scalia will write the Second Amendment case. The next decision day is Wednesday.
Wednesday update: Justice Kennedy wrote a 5-4 opinion in the death penalty case, ruling that the death penalty is an unconstitutional punishment for a crime where there is no death or death is not intended. Justice Alito dissented, joined by Chief Justice Roberts and Justices Scalia and Thomas.
The Second Amendment case and the campaign finance case are among three decisions that will be announced tomorrow (Thursday).
Thursday update: The D.C. handgun ban and the so-called millionaire's amendment to the McCain-Feingold campaign finance law were both struck down.
John Sununu is the subject of a Weekly Standard piece by P.J. O'Rourke, who came away impressed with what he heard. A few excerpts:
I went to see Senator Sununu at his office in the Russell Building and said that I assumed he had a political philosophy. "I like to think so," he replied. "But it's not something I have written down on an index card."
As a gut reaction conservative myself, I take the senator's point. In fact, however, Senator Sununu could write his political philosophy on a small piece of paper: "I have a deep-seated belief that America is unique, strong, great because of a commitment to personal freedom--in our economic system and our politics. We are a free people who consented to be governed. Not vice-versa." (Italics added for the sake of the multitudes in our government's executive, legislative, and judicial branches who need to fill out that index card and keep it with them at all times. And if the multitudes are confused by "Not vice-versa" they may substitute, We aren't a government that consents to people being free.) . . .
I asked Senator Sununu if there were many politicians in Washington with a political philosophy. "There are many," he said, "that would make the argument that they have a core set of values. But these values don't reflect a philosophy. Rather, they reflect a personal goal. 'I believe government should be fair and just.' 'I believe government should represent both the strong and the weak in America.' They're describing characteristics of what they'd like the government to be. They aren't describing principles of organizing a government." . . .
"Applying the philosophy isn't difficult," he said. "Applying the principles isn't difficult. The Patriot Act, for instance. It was a tool to find and prosecute criminals. Some of the laws we had were outdated. The biggest trouble with the Patriot Act was that the earliest version contained provisions for unlimited detention of suspects.
"Under no circumstances should we be allowed to detain people indefinitely. The provision was dropped, and we put a sunset on the whole Patriot Act. It had to be reauthorized in '05. You make sure, if you're giving powers to law enforcement, they're balanced with powers for civil liberties.
"Guantánamo, on the other hand--even if everything you're doing is legally approved, something can still be implemented in a way that's counterproductive to our moral perspective. We must be right and seem to be right. Guantánamo is a political, diplomatic, and moral liability. Give the Guantánamo detainees access to federal courts to appeal the determination."
O'Rourke also came away impressed with something he saw, but you'll have to read the piece to the end to find out where.
(AP photo by Jim Cole)
David Broder recalls 1968.
Both the Chicago Tribune editorial board and John Hood of the John Locke Foundation suggest John McCain and Barack Obama deserve to be lumped together. But where the Trib sees two excellent candidates, Hood see two mediocrities.
Bob Barr is the nominee for president of the Libertarian Party. (Note the similarities in presentation between Barr's website and Ron Paul's.) According to the Barr campaign blog, he believes his support will "come from 'disaffected Republican voters, Ron Paul supporters and independent voters and Democratic voters who believe in a strong message of civil liberties.' To him, both the Republican McCain and Democratic Sens. Hillary Rodham Clinton (N.Y.) and Barack Obama (Ill.) fail to offer 'a real choice' in November, especially on his No. 1 issue, reducing the size of government."
Back when John McCain was rallying toward, but had not yet clinched, the Republican nomination, conservatives trying to stop him sought to make much of his alliances with Democrats: e.g. McCain-Feingold (campaign finance reform), McCain-Kennedy (immigration) and McCain-Lieberman (global warming). The attacks didn't derail McCain, and as it turns out, his crossover appeal may be precisely what wins him the White House. Hence, fresh calls for McCain to drive the point home by choosing Lieberman, the Democrat-turned-independent, as his running mate.
Lieberman has said he's not interested in running for vice president again, but he hasn't stopped campaigning for McCain, and there's no question they enjoy each other's company.
Ultimately the question for McCain is whether he sees his veep pick more as a way to reassure conservative skeptics or more as a way to attract swing voters. Just having the debate, meanwhile, makes clear that the Democrats aren't the only party with a deep fissure.
David Brooks wrote about the McCain-Lieberman "party" back in 2006. Rush Limbaugh has long made clear that it is not a conservative party. It might be the George W. Bush party. Others might term it, more optimistically, the victory party.
(AP photo by Gerald Herbert)
The Hill got all 97 senators not still running for president to answer whether they would accept a vice presidential nomination:
Judd Gregg: "No. I don't like going to funerals."
John Sununu: "I am focused on my election. And frankly, I don't think John McCain should pick any member of Congress or the United States Senate."
Joe Lieberman: "Once is enough. I already have the T-shirt and I'm proud of it. I yield to my colleagues."
The mud was flying between Team McCain and Team Obama yesterday, but last night candidate McCain offered a very gracious toast to candidates Obama and Clinton:
It’s a tough business. And though we are rivals, we should respect each other’s willingness to hazard it. Senator Obama is a man of unusual eloquence, who has performed the very worthy service of summoning to the political arena Americans who once wrongly thought it of little benefit to them. Senator Clinton has demonstrated great tenacity and courage, two qualities I have always esteemed. I count myself among their many admirers. Please join me, then, in a toast to my opponents and compatriots, Senators Clinton and Obama, and to the noisy, contentious, striving, beautiful country we hope to lead.
McCain also toasted "someone who has influenced our lives" -- in his case, "the people of New Hampshire."