States of Confusion

When it came to media coverage of the US Presidential election, back in the country of my birth, it actually received as much attention as one of our own national elections. Though we had no control over the outcome, we knew it would affect all our lives. Indeed in all but name we were witnessing the election of a World President, because as the sole remaining Superpower, what America says ultimately goes. Whilst it is true individual countries, or groups of countries, can stand up against America briefly, if the United States decides that something is opposed to its national interest, and utilizes its full economic and military weight, then successful resistance is simply not feasible.

Little surprise that the US President is frequently referred to as "the most powerful man on earth". However there is a problem with this perception. When it comes to international diplomacy, such as treaty negotiations, the US President is probably the weakest person around the table. Whilst most other leaders of countries come with a clear mandate from their electorate and the authority to negotiate, this is not true of the US President. He has no authority to agree to anything. Everything he says must be confirmed by Congress and therefore he cannot make any binding commitments. Whilst some other countries, eg Eire, have similar requirements that their parliament must ratify treaties, their electoral process is less likely to produce a parliament actively opposed to their leader than the US one. Perhaps because the President does not require approval for opposition to a treaty, or to refuse to sign one, American leaders are sometimes perceived as being more confrontational, than conciliatory, when it comes to negotiations.

Though the rest of the world believes that there is a single cohesive coherent country here, the reality is startlingly different. It was founded as a coalition of independent states, and whilst, in some ways, the power of the federal government has grown over the years, the states retain considerable power. Most foreigners are surprised over many aspects of life which remain under the control of states.

For example there has been considerable controversy lately about Arizona's immigration legislation and Texas's rewriting of its educational curriculum. To take the second of these, as the first I have discussed previously, whilst there is a US Education Department their role is limited to research and enforcing specific federal policies, as their website says:

Please note that in the U.S., the federal role in education is limited. Because of the Tenth Amendment, most education policy is decided at the state and local levels. So, if you have a question about a policy or issue, you may want to check with the relevant organization in your state or school district.

It certainly surprised me that there was no central curriculum but that individual states devised their own applying their own focus and biases. It was also unexpected to find that some states, such as Texas, also required classes in their state history. I am not sure why this unnerved me. I was an active local historian back in my original country and I do certainly believe people should learn about historical events in their area of residence. However it just appeared too inward-looking at a time when most Americans are woefully under-informed about world history and geography.

The reality is that while most of the world expects coherence from the United States, this is limited to international policy and that in reality it is highly disparate and there are substantial differences in laws between states. For example, if we look at a single issue, age of consent (for sexual intercourse), there is no consistency. Depending on individual circumstances, any age between 12 and 18 (inclusive) is potentially legal for sex in the USA somewhere. Members of the US military may normally have sex from 16 onwards but there are some situations where they could be liable for prosecution. Now, and I am not a lawyer, so this is an interpretation, not absolute fact - Two 16 year olds could legally have sex on a military base even in a state which had a higher age of consent, because on military property military rather than state laws apply. However if one of the 16 year olds, engaging in intercourse, is a civilian resident of that state and the sex takes place in a hotel, where the military does not have jurisdiction then there is the potential for the soldier to face a statutory rape charge where the state age of consent is greater than 16. Some states, for instance Florida, allow a modified age of consent where the two participants are of similar age (normally within 4 years) and under these circumstances it would be legal. However two 16 year old civilians could legally engage in sex, even in a state with a higher age of consent, such as Idaho, if they had been legally married in a state which permitted marriage at 16, such as Georgia. Under these circumstances the "full faith and credit" clause of the US Constitution would kick in, requiring that states recognize and honor legally-binding contracts made in other states. It looks to me like a confusing mess and even while most consensual sexual acts are unlikely to attract the attention of the authorities the potential danger remains. Indeed it seems that most US teen road movies should probably include a scene where birth certificates and local legislation is checked before they passionately fall into each other's arms.

To an outsider, this complexity seems unnecessary and counter-productive. Whilst its difficult to imagine states ever being willing to give up their rights to determine most matters, the consequence is a superfluous level of complexity, which benefits only lawyers, when it comes to most matters of regulation in the US. What real sense does it make for Hawaii and Arizona to be the only US states which do not practice Daylight Saving Time (DST)? Whilst I accept the benefit for them is limited, couldn't they make the sacrifice for the sake of uniformity? In some situations where public safety is involved diversity can be dangerous.

For example in the area of seat belt legislation. Whilst there are rare situations where a seat-belt can cause increased difficulty or injury, in the vast majority of cases, it saves lives and so would seem to be desirable. Yet again we find a difference in practice in the states. In 30 states the wearing of a seat-belt is mandatory for the driver and not doing so can lead to prosecution, in 19 further states it is an offense but will only be prosecuted if some other traffic offense is also committed and one state has no law about seat belts at all. Though even the 30 states do not all have the same rules when it comes to back seat passengers also wearing a seat belt.

States rights are important and having access to different options is a benefit for inhabitants in America. It is desirable that people be able to choose a taxation level and a legislative touch, whether lighter or more prescriptive, which suits their personal tastes. Freedom always has an attached price tag though and when the cost is measured in lives it is too high. Seat belt legislation is a good illustration of this. Whether to wear a seat belt or not might be seen as a matter of personal choice, particularly if one is in the back seat. However when that choice impacts, quite literally, others it should not be for a single person to decide. An unrestrained back-seat passenger during a collision will often strike the seat in front of them with such momentum that they dramatically increase the damage to the person in that seat, in many cases severely reducing their survival chances and in some situations causing their death. Whilst many Americans have a fear about federal intrusion, I have seen no evidence that states are any less bureaucratic or inefficient than the federal government. Sometimes we need to be willing to recognize that we are part of a wider society and give up individual rights for the greater good. States need to be willing to do this as much as citizens.

Obama and the Hawaii Birth Certificate Question

A great deal of time and energy has been devoted to the question of President Obama's birth certificate and whether or not he was indeed born in the USA. One question however remains - why?

You may think the answer is obvious, the US Constitution states clearly

No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.

Therefore according to US law only someone born within the USA can be President. This was probably a very sensible precaution in the 1700s. The Republic was recently established and still faced a lot of opposition. There is probably no force on this planet more devious or ruthless than the British nobility and it seemed likely that they would not accept defeat in war lightly. Indeed that they would do something to undermine the new regime was a serious threat and hence taking steps to limit spies and infiltrators was a wise move.

The question however remains why that provision is still in place today. The Framers of the Constitution were not opposed to those who became Citizens after being born elsewhere, otherwise why include that clause "At the time of the adoption of this Constitution"? There is a technical difficulty in that everyone in the US at that time was officially born as the subject of a foreign power and this provision therefore permitted its immediate adoption and execution rather than having to wait 35 years for a person eligible to become President to be born and reach the required age. However I think it was more than that, the Framers were concise and precise with language. If they wanted to they could have limited eligibility to only those born within the geographical area of what was to become the United States but they did not. Anyone who was a Citizen of the US was eligible to stand for President at the time the Constitution was formally adopted regardless of where they were born.

When you think about it, any person meeting that qualification had already proven their loyalty. They had adopted America as their home country and had been involved in a conflict with a foreign power to win independence. It seems only right they should be permitted to stand for the Presidency. Yet everyone who entered the US after that date or became a Citizen must be viewed with a certain caution and suspicion. There was a possibility of foreign agents usurping the political process and it was prudent to prevent this happening. Does such provision really need to be in place today though?

The Queen of England has surrendered a large amount of foreign territory during her reign, much of it peaceably. It is inconceivable that Britain would now seek to gain political control of the US and reverse independence. The UK is a staunch ally of the US during all recent conflicts including Afghanistan and Iraq. However when it comes to size and influence the UK is now very much the junior partner. No one could imagine it taking the US back either militarily or by political interference. Even if in 1787 the UK had the resources to fund a network of spies and infiltrators it no longer does being in the midst of an economic melt down. When the former Chief Secretary to its Treasury wrote there was no money.. he was only partially joking. So the UK is no threat. The US is no longer a new country, it is the only surviving Superpower, unrivalled across the planet, a shining beacon of democracy .. except when it comes to choosing its leader.

If in a couple of years time, I take the Citizenship examination and finally the oath, I will be pledging myself mind and soul to my new country, I will be giving myself wholly to America. However America will not be giving itself to me. I will always be a second class citizen with one key right denied me compared to those who were born here. Now I have no desire to be President but this denial irks me because of its symbolic importance more than its practical effect. It sends a message to the rest of the world that America is still afraid of them. That Americans can never wholly accept and be at peace with someone who was not born there.

Kagan is Here - Unleash the Lions!

Amongst people I talk to it is often assumed that once the Roman emperors embraced Christianity the cruelty of the gladiatorial games were brought to an end. Sadly the Christian emperors marked a period of deterioration of the Empire and in order to distract their people from this crumbling edifice they were forced to provide more and bloodier games than those that went before. I can only assume that Senate confirmation hearings serve much the same function since they appear to have little to do with actually determining suitability for the post.

An outside observer would assume that the purpose of the hearings was to question views on a number of areas of judicial debate. However in one of those uniquely American conventions, the candidate is permitted to answer any such question with a short statement saying that since such an case might come up before the Supreme Court they do not wish to offer a judgement without first hearing the facts of the issue. This is a reasonable response but renders almost entirely pointless the hearing process.

Also since Supreme Court appointments are for life, there is no accountability once in post and so the hearing appears to be a simple hurdle with the candidate saying simply whatever they believes will get them to office, regardless of whether or not they actually believe it. This is the ultimate in what George Orwell in 1984 called Doublethink.

to be conscious of complete truthfulness while telling carefully constructed lies, to hold simultaneously two opinions which canceled out, knowing them to be contradictory and believing in both of them

The frustration of Senators with this lack of accountability was clear during the Sottomayer confirmation where several of them drew attention to discrepancies between the testimony offered by Justice Alito and Roberts and how they had subsequently behaved when they reached the Court.

On first hearing about Sotomayer I felt she was an inspiring choice, however my respect for her considerably diminished during the hearings, as at every single opportunity she contradicted her earlier clearly stated opinions. Though she was a clearly intellectual person with excellent communication skills the audience were expected to believe that when she wrote she disagreed with X and Y what she actually meant was she agreed with them. Equally when she said she thought foreign law had a part to play in the intellectual stimulation of judges she meant that it had no part to play.

Had just once she stood up and supported and defended an earlier statement I might have thought her worthy but she did not. Our opinions change and evolve over time, what we believe in our twenties is not necessarily the same as we do by the time we reach forty. A view could have been valid at the time it was stated but revised by subsequent experience. This would at least have had a ring of honesty but that she was so poor about expressing herself did not. I would have liked her to have gone further and actually challenged the Senators about the assumptions they were making. Whilst there seems to be a fear of contamination by anything foreign in the US, the framers of the Constitution had no such trepidation when it came to foreign law. The Bill of Rights includes phrases lifted directly from the Magna Carta.

It was noticeable that Senators were rarely present unless they were actually due to speak suggesting they hardly gave the hearing process the high priority one might have thought it should hold. However, in total it gave each of them an unparalleled 45 minutes or so of television time to present themselves to their voters. Hence Senator Cornyn of Texas's narrow focus on the issue of abortion, no doubt an important topic of debate in American politics and life but hardly the only game in town when it comes to determining suitability for a judicial appointment. Both sides knew her confirmation was pretty much a shoe-in and therefore used the occasion to establish their differing positions and attitudes in the mind of the US people.

I hold out little hope that the Kagan hearings will be any different. We have however gone from the most judicially qualified candidate in living memory to probably the least, so there will be a change in approach but I think the mechanism will be ultimately as unsatisfying.

After the Sotomayer hearings I dug out the Constitution to see exactly what it said about this confirmation process. Regarding the Powers of the President

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

As was said during the Sotomayer debate the term "Advice and Consent" is ambiguous since it doesn't say clearly who makes the final determination, the President or Congress. However, that aside we see from this the following are required.

1) The President chooses and names the Candidate
2) S/he must listen to the advice of Congress about the Candidate
3) Congress must give its approval to a candidate (probably with a debate and vote)

Therefore I would like to offer my own alternative mechanism for a Supreme Court appointment.

Under its authority Congress establishes a non-partisan Appointments Office including nominees of each party and the ABA. This Office then determines a long list of candidates based on a variety of factors, including types of law practiced, judicial experience, other political or legislative experience etc. Potential candidates are asked if they are willing for their name to go forward and the list is published (publically). Candidates are rated in each criteria by the Office and a standard set of supporting documentation on each candidate is produced. The President choses their nominee from this list and this then goes to a full debate and vote in Congress. Whilst this is 2,1,3 rather than the 1,2,3 at present I still feel it satisfies the Constitutional niceties and has the benefit of everything being out in the open, Congress simply votes on the candidate they do not have to investigate every aspect of their past performance as that has already been done by the non-partisan Office and it should be far more rapid to move from nomination to approval in most cases. Of course, this is fantasy and will never happen.. but I can dream.