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Law and Constitutionalism

Bill of Wrongs: The Executive Branch's
Assault on America's Fundamental Rights by Molly Ivins and Lou Dubose

Ivins and Dubose chronicle tales (that many readers will find familiar) of BushCo's trampling on the Bill of Rights. They include those of Jeff and Nicole Rank, arrested at a Bush rally; Sue Niederer, whose son was killed in Iraq -- also arrested at a Bush rally; Steve Howards, arrested for expressing firm but polite disagreement to Dick Cheney's face; the case of the Dover School District, which had apparently never heard of the establishment clause; Brandon Mayfield, wrongly jailed in connection with the 2004 terrorist bombings in Madrid; Connecticut librarians, subjected to a gag order after the FBI demanded records about library patrons under the Patriot Act; and Murat Kurnaz, tortured at Guantanamo Bay. Say the authors,

Most Americans still believe this secret-police, secret-detention stuff applies only to foreigners, to illegals, to resident aliens -- to people who are not "real citizens." ... [P]ay attention, Americans: Your ass is on the line.

Bill of Wrongs ... published October 23, 2007 by Random House

Unruly Americans and the Origins of the Constitution by Woody Holton

In a tome that's a National Book Award finalist, Holton shows that America was in rough financial straits in the 1780s, and that "middling" farmers -- in many ways, that era's "middle class" -- bore the brunt of the economic distress. As a result, many ended up in ruinous debt, often facing war taxes (to pay for the Revolution) that they couldn't afford. State legislatures provided some tax and debt relief, but the wealthy men who framed the Constitution did so with an eye to stripping the states of that ability in order to reassure potential investors that America could and would pay its debts. Because the Constitution favored wealthy creditors to the detriment of middle class debtors, Holton says, the document would not have been ratified without major concessions from the aristocratic framers. Among those concessions, says Holton, was a Bill of Rights and much of what contemporary Americans now value most in the Constitution.

Unruly Americans ... published October 2, 2007 by Hill and Wang

The FBI: A History by Rhodri Jeffreys-Jones

Though the FBI is usually dated from a 1908 executive order by Theodore Roosevelt, Jeffreys-Jones makes a case for much earlier origins. During Reconstruction, says he, the Justice Department was responsible for federal investigations of Ku Klux Klan violence in the South, particularly against newly emancipated and enfranchised African-Americans. And as Jeffreys-Jones traces the development of the FBI over the following decades, race and racism are recurring themes. For example, the fact that the Bureau has traditionally been overwhelmingly white ensured its being unprepared to meet challenges that sprang to light on 9/11. Even two years after the attacks only six of the FBI's 11,500 agents were Muslim and a paltry 21 agents -- fewer than two-tenths of 1 percent -- could speak Arabic. But that's not to say that the author fixates on such issues. Overall, his work is a balanced, well-researched, fast-paced history of one of America's most important law enforcement agencies.

The FBI: A History ... published September 28, 2007 by Yale University Press

The Genius of America: How the Constitution Saved Our Country -- And Why it Can Again by Eric Lane and Michael Oreskes

A Hofstra law prof and the executive editor of the International Herald Tribune say that the U.S. Constitution can help us past these counterproductively partisan times -- if we let it. They argue that those who framed the Constitution in 1787 took a more realistic view of citizens than had those who'd signed the Declaration of Independence 11 years earlier. Whereas the men of '76 had hoped that "public virtue" might trump selfish interest, the framers of '87 saw such notions as naïve, and constructed their constitutional model of governance accordingly. Lane and Oreskes appeal to what they call the "Constitutional Conscience" that had historically led Americans to accept the checks, balances and above all compromises that have enabled America to survive longer than any other democracy in history. "We need a renewed willingness," say the authors, "to work out our differences and find compromises, consensus, and that other now-popular phrase, common ground."

The Genius of America ... published September 18, 2007 by Bloomsbury USA

The Nine: Inside the Secret World of the Supreme Court
by Jeffrey Toobin

CNN's senior legal correspondent, a New Yorker staffer, portrays vividly the Court's personalities and politics since the 1980s. And it's raw politics, we see -- not differing judicial theories -- that underpin the court's most important decisions, with the rich and often quirky personal traits of the justices also playing major roles. Sandra Day O'Connor emerges as something of a heroine: the swing vote who for many years prevented the court from straying too far from the preferences of Middle America. The quarter-century that Toobin covers was that in which the tide of the Right's long war on the federal judiciary began to turn in the conservatives' favor, finally culminating in the appointments of far-right ideologues John Roberts and Samuel Alito. It becomes clear that if the GOP retains the White House next year, the Court won't merely tilt toward the far right -- radical conservatives will write majority opinions from now until Chelsea Clinton starts hearing from AARP.

*Also available, in abridgment, on Audio CD

The Nine ... published September 18, 2007 by Doubleday

The Supreme Court: An Essential History
by Peter Charles Hoffer, Williamjames Hull Hoffer and N. E. H. Hull

A family of academics (husband, U-Ga.; wife, Rutgers; son, Seton Hall) produced this thorough yet comfortable-to-read history of the U.S. Supreme Court from its pre-American origins through 2006. The book's chapters are built around the court's successive chief justices (i.e., "The Jay and Ellsworth Courts," "The Marshall Court," etc.), so it necessarily covers a lot of ground quickly, and the 450 pages of text slip by easily. Nevertheless, the authors provide good explanations of many of the individual cases that have defined not only the court, but the nation in general. There's also a wealth of incisive biographical information here regarding the significance and legal proclivities of many individual justices, both chief and associate. Beyond the fact that it's a surprisingly enjoyable read, this volume should serve as an handy reference for anyone wishing to maintain a sound, layperson's understanding of the Supreme Court.

The Supreme Court: An Essential History ... pub'd Sept. 15, 2007 by U of Kansas Press

United States v. George W. Bush et al. by Elizabeth de la Vega

Forget impeachment -- a retired federal prosecutor says that BushCo is guilty, under U.S. Code, of defrauding the American people in a sense roughly comparable to that in which Ken Lay, et al. defrauded the public. De la Vega presents a plausibly imagined transcript of how grand jury proceedings might unfold if a federal prosecutor were actually to seek indictments -- a course the author strongly advocates. Says she,

[W]e already have more than enough information to allow a reasonable person to conclude that the President conducted a wide-ranging effort to deceive the American people and Congress into supporting a war against Iraq. In other words, in legal terms, there is probable cause to believe that Bush, Cheney, Rumsfeld, Rice, and Powell violated Title 18, United States Code, Section 371, which prohibits conspiracies to defraud the United States. Probable cause is the standard of proof required for a grand jury to return an indictment. Consequently, we have more than sufficient evidence to warrant indictment of the President and his advisers.

United States v. George W. Bush et al. ... published Nov. 1, 2006 by Seven Stories Press

The Best Intentions: Kofi Annan and the UN
In the Era of American World Power by James Traub

As UN Secretary-General Kofi Annan completes the last of his two terms, a regular contributor to The New York Times Magazine recounts the UN's tumultuous decade under his leadership. Traub enjoyed extraordinary access to Annan and his top aides, interviewing the Secretary-General 18 times and sitting in on high-level meetings. Traub shows that the characters of Annan's two terms have been very different from one another. During the first, he enjoyed something of a diplomatic Midas touch, while in the second very little has gone right -- in large part because of the Bush administration's unilateralism and its scorn of the UN. In the face of that and other adversity, though, Annan has soldiered on. Says Traub, "[N]o matter how much abuse gets ladled out at him, and no matter how despairing the situation is, he just keeps pushing ahead."

Traub spoke with Terry Gross on NPR's Fresh Air.

The Best Intentions ... published October 31, 2006 by Farrar, Straus and Giroux

The Genius of Impeachment:
The Founders' Cure for Royalism by John Nichols

One of America's leading progressive columnists reviews the salient historical realities of impeachment with his usual plainspoken lucidity and understated wit. The founders intended that impeachment be used regularly (and it turns out that it has been), and it's supposed to be a fundamental tool of U.S. governance. Says Nichols,

George Mason, who along with James Madison was a definitional figure in the drafting of the Constitution, put it best when he said of the document's contents: "No point is of more importance than that the right of impeachment should be continued." [ ¶ ] Madison's notes from the summer in which the Constitution was drafted, as well as his letters to Jefferson regarding the product of that summer, leave no doubt that the founders intended for impeachment to be utilized whenever necessary in defense of the Republic. They did not want the power to impeach treated as a fetish or a fantasy, nor did they intend for its application to be seen as a Constitutional crisis. ... [T]hey wanted impeachment to be recognized for what it is: the cure for the crisis of executive excess.

The Genius of Impeachment ... published October 30, 2006 by New Press

Justice for All: Earl Warren and the Nation He Made by Jim Newton

An award winning LA Times reporter delivers a fine bio of Earl Warren -- arguably the 20th century's most consequentially progressive U.S. Supreme Court Chief Justice. Warren's "liberal" CV notwithstanding, before a Republican president made him Chief Justice, he'd been one of America's most powerful mainstream GOP politicians. Newton offers a big, sure handed exposition of Warren in his many contradictions. Among them is the fact that the jurist who forged -- against seemingly impossible odds -- a unanimous decision in Brown v. Board had no previous judicial experience. And while he helped extend the "right to privacy" (or, as Brandeis had called it, "the right to be let alone") via Griswold v. Connecticut, he had earlier -- as California's governor (1943-53) -- pushed hard for the internment of Japanese civilians during World War II.

Newton appeared on the Tavis Smiley show to talk about his book and its subject.

Justice for All ... published October 5, 2006 by Riverhead (Penguin)

Brave New Ballot: The Battle to Safeguard
Democracy in the Age of Electronic Voting by Aviel Rubin

A top computer security specialist says America's touch-screen voting systems are profoundly vulnerable to vote rigging and fraud. Rubin told the PBS program NOW that he could rig an election: "[I]f I or one of my graduate students were working for a primary vendor in the right place at the right time -- we know that we could do it." Says Rubin,

The facilitation and securing of the voting process cannot be left to the private sector, where legitimate concerns about profitability inevitably lead to conflicting priorities. Governments, presumably interested in staying in power, cannot be allowed to act on balloting technology without a proper public oversight and total transparency. Questions cannot be adjudicated by our legal system, which pits the interests of one side against another in adversarial trials that do not seek to find objective truths. We will find the answers only through a commitment to a publicly funded, non-partisan, multidisciplinary research initiative in which no individuals stand to gain and yet the entire nation stands to benefit.

Rubin spoke with NPR's Diane Rehm.

Brave New Ballot ... published September 5, 2006 by Morgan Road Books

Democracy Reborn: The Fourteenth Amendment and the Fight for Equal Rights in Post-Civil War America by Garrett Epps

It's easy to be skeptical when reviewers use words such as "thrilling" to describe a book about Constitutional history. But Garrett Epps' journey to the crucible in which the 14th Amendment was forged is indeed thrilling -- and then some. See for yourself: two years ago Epps published a major paper on one aspect of the story. Nineteenth-century America's "slave power" terrorized not only its black thralls, but the rest of the republic as well with ceaseless threats, bullying, mob violence and murder. After the slave power had seemingly been crushed by Mr. Lincoln's Army, Andrew Johnson tried to use his woe begotten presidency to help a resurgent slave power resume and even surpass the dominance it had wielded before the war -- when it had controlled all three branches of American government. And it could have happened -- it was a close-run thing. Blocking the way, however, were men such as John Bingham, who were determined essentially to redefine the profoundly flawed republic that the Founders had created. The 14th Amendment has in many ways done just that -- although Epps explores ways in which many of the old battles are still being fought.

Democracy Reborn ... published August 22, 2006 by Henry Holt and Co.

A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America by Saul Cornell

An OSU history prof and director of the Second Amendment Research Center says that both sides of most gun control arguments are reading the Constitution incorrectly. Those claiming that gun rights apply only to 18th-century militias and those who back the individual's right to own guns for whatever reasons he sees fit: both are wrong. Cornell shows that history supports a third understanding: that "the Second Amendment was about an obligation citizens owed their government and communities to contribute to public defense," and that there's also a historically rooted "right to be free from gun violence." Cornell further advises,

Proponents of gun control must not demonize gun owners, particularly given the fact that most gun owners support reasonable gun regulation. Any solution to America's gun problem must have the support of gun owners.

A Well Regulated Militia ... published June 23, 2006 by Oxford University Press, USA

The Parliament of Man: The Past,
Present, and Future of the United Nations by Paul Kennedy

A Yale history prof, one of the world's foremost authorities on international relations and the West's Great Powers (The Rise and Fall of the Great Powers; 1987), turns his attention to the UN, drawing on work he'd done helping to draft official reports in association with the UN's 50th anniversary. After a brief sketch of the organization's genesis and early development, Kennedy explains some of its structure and provides concrete examples of both successes and failures. But on balance, says he,

[I]t is difficult to imagine how much more riven and ruinous our world of six billion people would be if there had been no UN social, environmental, and cultural agendas -- and no institutions to attempt to put them into practice on the ground.

Kennedy also suggests ways in which the United Nations will need to develop in the 21st century.

The Parliament of Man ... published June 20, 2006 by Random House

The Most Democratic Branch: How the Courts Serve America
by Jeffrey Rosen

A GW Law prof and New Republic legal affairs editor who calls himself a "moderate liberal" sets forth a judicial doctrine not likely to sit well with many U.S. progressives. The courts work best, says Rosen, when their decisions defer to the legislative and executive branches, thereby reflecting mainstream American public opinion. When, on the other hand, the courts engage in what Rosen terms "unilateralism," backlashes result, such as those prompted by Dred Scott and Roe v. Wade. Rosen makes the now familiar argument that Roe may have harmed women's interests by depriving abortion policy making of the processes of legislative debate and compromise. He's not sanguine, though, about what might happen if Roes's overturned; state legislatures may not be "equipped to engage in passionate debate about the finer points of ontology." One needn't agree with all Rosen says to appreciate his thought-provoking conversation starter of a book.

The Most Democratic Branch ... pub'd June 19, 2006 by Oxford University Press, USA

Was the 2004 Presidential Election Stolen?
by Steve Freeman and Joel Bleifuss

Freeman and Bleifuss show that Nov. 2, 2004 exit polls presaged Kerry's winning by 5 million votes nationwide, while the official result had Bush up by 3 million. The authors maintain that exit polling tends to be highly accurate, and that the statistically improbable (if not impossible) 8 million-vote swing demands further investigation. On election night, the MSM "explained" the enormous swing as a function of oversampling Kerry voters ... or too many women, maybe ... or perhaps Bush voters were ashamed of their crimes against humanity (okay, I'm paraphrasing). Not so fast, say the authors: those assertions simply don't stand up to closer scrutiny. The margin of error for the exit polls, they say, should have been under 1 percent, but was over 6 percent. Further, the swing between exit polls and official results was largest in overwhelmingly pro-Bush precincts -- exactly where Republican partisans, the authors say, would have found it easiest to pad Bush's votes. Robert Kennedy, Jr. recently stirred up quite a controversy in these regards with a 10,000-word article in Rolling Stone, major elements of which were based on Freeman's findings.

Was the 2004 Election Stolen? ... published June 19, 2006 by Seven Stories Press

Armed Madhouse by Greg Palast

Palast's subtitle gives a sense of the unconventionality of his investigative journalism: "Who's Afraid of Osama Wolf? China Floats, Bush Sinks, The Scheme to Steal '08, No Child's Behind Left, and Other Dispatches from the Front Lines of the Class War." Here Palast follows up his successful and acclaimed The Best Democracy Money Can Buy with a dark, entertaining tour de force through American democracy in the Age of Dubya. One of the most striking assertions Palast makes is that Kerry won the 2004 election. While the notion that GOP minions stole the election is has been repeated often, the case Palast makes is persuasive, especially regarding the number of "spoiled" ballots that were simply never counted. In several states that Bush won narrowly, the number of uncounted ballots greatly exceeded the Bush margin of victory -- and most uncounted ballots were for Kerry. And, says Palast, the GOP's planning to do it again in 2008.

Palast was featured on Democracy Now! and on Wisconsin Public Radio.

*Also available, in abridgement, on Audio CD -- read by an impressive list of lefty celebrities.

Armed Madhouse ... published June 6, 2006 by Dutton Adult

Stealing Democracy: The New Politics of Voter Suppression
by Spencer Overton

A GW Law prof specializing in voting rights explores the many ways in which millions of U.S. citizens are robbed of their votes. Says Overton, "The will of the people is channeled by a pre-determined matrix of thousands of election regulations." Many of those, we see, are blatantly and profoundly anti-democratic. Among the worst are partisan gerrymandering (which proportional representation could eliminate) and felon disenfranchisement: "Over 1.6 million people in the United States had completed their sentence but could not vote in 2000," says Overton; "the number grew to 2.1 million by 2005." Inequitable funding for voting facilities also disenfranchises voters. Voters in wealthy districts may find voting fast, easy, and technologically dependable, while the less well-off sometimes must stand in line for hours only to find that they're obliged to vote using technologies that may or may not count their ballots.

Stealing Democracy ... published June 5, 2006 by W. W. Norton

James Madison and the Struggle for the Bill of Rights
by Richard Labunski

Virtually nobody knows James Madison as the Father of the Constitution, yet he was that and much more to a nascent republic. Without his work to ensure Virginia's ratification of the Constitution, America would likely have begun as a weak, fractured confederation of states pursuing disparate interests. Madison, says Labunski, was a

five-foot-four, 100-pound, shy intellectual with a quiet voice, who worried almost constantly about his health and mortality. James Madison was a most unlikely candidate for this daunting task. Yet he played an indispensable role at the most important events that shaped the nation's founding period, including the Constitutional Convention, the Virginia Ratifying Convention, and the First Congress where he worked tirelessly to see the Bill of Rights approved. Without Madison, those ten amendments, which became the foundation for individual liberty, may not have become part of the Constitution then or perhaps ever.

*Also available on Audio CD

James Madison and the Struggle for the Bill of Rights ... published May 31, 2006 by Oxford University Press

The Case for Impeachment by Dave Lindorff and Barbara Olshansky

On the merits, the articles of impeachment detailed in this book should be an open-and-shut case. ... The evidence of George W. Bush's constitutional transgressions, violations of federal and international law, abuse of power, and criminal negligence as chief executive -- all laid out in this volume -- are so blatant one might think conviction would be a foregone conclusion.

And there may be worse criminality yet to be uncovered. "It was only during the Watergate impeachment hearings," Lindorff and Olshansky correctly note, "that Richard Nixon's most serious crimes came to light." They say that "the American public is way ahead of the Congress" on impeachment, an assertion borne out by polling commissioned by AfterDowningStreet.org and conducted last fall. Most importantly, perhaps, they remind us, "The Constitution was not conceived as a document for the good times. It was meant to guide the nation through times of conflict, trouble, and stress as well."

The Case for Impeachment ... published May 2, 2006 by Thomas Dunne Books

Conned: How Millions Went to Prison, Lost the Vote, and Helped Send George W. Bush to The White House by Sasha Abramsky

At any given time, at least 5 million Americans are effectively barred from voting because they've been convicted of felonies -- in many cases, even though they've served their sentences in full and have since led productive, law-abiding lives. Abramsky observes that because disproportionately high percentages of the disenfranchised are blacks or Hispanics (due in large part, he shows, to the catastrophic failures of the "War on Drugs"), America now faces the worst mass-disenfranchisement of specific racial groups since Jim Crow. Beyond questions of justice and democratic principles, the disenfranchisement (which is especially prevalent in Southern states, we see) creates grave political problems for America's non-Republicans. For example, given more democratic election laws in Florida, Al Gore would almost certainly have won there in 2000.

Conned ... published April 28, 2006 by New Press

Articles of Impeachment Against George W. Bush
by the Center for Constitutional Rights

ARTICLES OF IMPEACHMENT AGAINST GEORGE W. BUSH [sets forth] four separate articles of impeachment detailing four separate charges -- warrantless surveillance, misleading Congress on the reasons for the Iraq war, violating laws against torture, and subverting the Constitution's separation of powers.

The book "details th[e] evidence, the relevant laws and the legal precedents. It also explains what the Constitution says about impeachment," and provides other pertinent supplementary materials as well. Michael Ratner's the president of the Center for Constitutional Rights (which produced this book); there's no shortage of opportunities to check out what he's got to say. He appeared on Democracy Now! yesterday; an article of his ran a few weeks ago in Counterpunch; he spoke with Wisconsin Public Radio's Jean Feraca Jan. 11; and he appeared on Democracy Now!

Articles of Impeachment Against George W. Bush ... March 1, 2006 by Melville House

Terrorism and the Constitution by David Cole and James X. Dempsey

First published just seven years ago but already in its third update and expansion, this important volume explores some of the tensions between America's constitutionally guaranteed civil liberties on one hand, and the nation's inarguable need to thwart terrorists on the other. One of the book's central ideas has been argued many times, but apparently not often enough: the most effective way to combat terrorism is to focus on its criminal aspects rather than on its motivating ideologies. The authors show that reversals of that formula in the recent past have often led to appalling civil and humans rights abuses while proving counterproductive in anti-terrorism efforts. Cole has become one of liberal America's highest profile civil liberties lawyers, working extensively with both The Nation and NPR. Among his more recent appearances are those last week on NPR's Talk of the Nation and in December on Day to Day; and in The Nation currently and in December.

Terrorism and the Constitution ... published January 16, 2006 by The New Press

America's Constitution: A Biography by Akhil Reed Amar

Akhil Amar, a graduate of Yale Law School and a member of its faculty for the last 20 years, has produced what Larry Tribe has called the Constitution's "only real biography." Said Tribe, "What David McCullough is to John Adams, what Walter Isaacson is to Benjamin Franklin, Akhil Amar is to the Constitution." Alan Dershowitz said of Amar, "He writes like Jefferson, thinks like Madison, and speaks like Lincoln." The author traces the development of the Constitution from the 18th century to the present, devoting ample time and evidence to teasing out what those who wrote and ratified the document actually had in mind, and showing how and why it's evolved through time. Progressive readers may be disappointed that Amar doesn't provide confirmation for liberal readings of the Constitution, but rather explains the salient historical circumstances and textual nuances that show both dogmatic right- and left-wing readings to be inadequate. He does so thoroughly and in detail, but so that legal laypersons can readily grasp the concepts.

America's Constitution ... first published September 13, 2005 by Random House