From Yahoo! News:

Former President Jimmy Carter will travel to North Korea soon to win the release of an American held prisoner there, the U.S.-based Foreign Policy journal reported on its Web site on Tuesday.

Now if we could just find a siege for Janet Reno to diffuse.

The thumped US Attorney “absolutely intends to retry” the case. I wonder what exactly he intends to do next time, having failed to convict a defenseless Defendant.

The moral of this story: never, ever, talk to the Feds

“He once had a fleeting association with the Ku Klux Klan, what does that mean? I’ll tell you what it means. He was a country boy from the hills and hollows from West Virginia. He was trying to get elected,” former President Bill Clinton said of Sen. Robert Byrd.

“And maybe he did something he shouldn’t have done come and he spent the rest of his life making it up. And that’s what a good person does. There are no perfect people. There are certainly no perfect politicians,” he added.

I’m pretty sure good people* just don’t do these things in the first place. But it’s little wonder that Mr. Clinton thinks we should quickly brush unseemly indiscretions aside.

(*The issue of depravity has been shelved for the sake of brevity)

Now, it’s not like normal people on both sides of the Great Partisan Divide don’t bend history toward their druthers and try to enlist the Founders for their cause—it’s de rigeur these days, and that’s fine. But Ellis is largely known as an accredited historian when dealing with other than current issues.

And sure, as a gentleman of the left, he was entitled to stretch a thin point in making his preferred candidate Barack Obama into some sort of Founding Father. His transformation of the Tea Party movement into the Whiskey Rebellion was even more banal and baseless, but what the hey. But now Dr. Ellis has gone and simply committed scholarly malpractice, and enough’s enough.

Ellis quote-mines Thomas Jefferson, who wasn’t even a framer of the Constitution:

“Some men look at constitutions with sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did beyond amendment. . . . Let us follow no such examples, nor weakly believe that one generation is not as capable of taking care of itself, and of ordering its own affairs . . . Each generation is as independent of the one preceding, as that was of all which had gone before.”

He was telling us, in his own lyrical way, that we are on our own. Jefferson would vote against any nominee who claimed merely to be an umpire calling balls and strikes in a strike zone already determined by the Founders.

The scholarly problem here is that Jefferson was writing about Virginia meeting to discuss amending its 1776 state constitution, whose flaws Jefferson had opposed for decades. [Letter to Kercheval, 1816.]

But the original context has zip, nada, zero to do with “judicial review.” The subject, as the reader can see for himself, is the legislative and amendment processes. [The US Constitution itself is amendable via Article V.] Invoking Jefferson here against the Supreme Court is simply a non sequitur.

Ellis goes on to invoke Madison’s apparent evolution from his centralist Virginia Plan to a lover of states’ rights and federalism. If it’s Madison’s credibility Ellis wishes to attack, I leave the rebuttal on that point to the equally accredited and far more judicious historian Gordon S. Wood.

Regardless, Ellis gets completely out of his depth in a patent and blatant misunderstanding of contemporary jurisprudence. Ellis attacks the judicial philosophy of those SC justices as “original intent,” but that’s a complete misnomer. Their philosophy is “textualism” and/or “original meaning,” exactly as Madison himself wrote:

“As a guide in expounding and applying the provisions of the Constitution, the debates and incidental decisions of the Convention can have no authoritative character. However desirable it be that they should be preserved as a gratification to the laudable curiosity felt by every people to trace the origin and progress of their political Institutions, & as a source perhaps of some lights on the Science of Govt. the legitimate meaning of the Instrument must be derived from the text itself; or if a key is to be sought elsewhere, it must be not in the opinions or intentions of the Body which planned & proposed the Constitution, but in the sense attached to it by the people in their respective State Conventions where it recd. all the authority which it possesses.”

Add to that Jefferson himself, not as an authoritative witness as Madison, but Ellis seems to prefer him:

“On every question of construction [of the Constitution] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probable one in which it was passed.”

There’s more I could write contra Prof. Ellis the Democrat, but the predictable partisan battle can be found in the WaPo comments section itself. I’ll restrict myself to Prof. Ellis’ formal errors and the rebuttals from the Founders themselves.

But yeah, this one made me angry. Ellis builds his case on heated partisan rhetoric and a single out-of-context Jefferson quote. As he is a Jefferson biographer himself, there’s no excuse for this.

So what would Jefferson really have said about the other side of today’s Supreme Court, which Ellis clearly favors? Oh wait, Jefferson his ownself already did, right between the eyes:

“Time and changes in the condition and constitution of society may require occasional and corresponding modifications. One single object, if your provision attains it, will entitle you to the endless gratitude of society; that of restraining judges from usurping legislation.

And with no body of men is this restraint more wanting than with the judges of what is commonly called our General Government, but what I call our foreign department. They are practising on the Constitution by inferences, analogies, and sophisms, as they would on an ordinary law. They do not seem aware that it is not even a constitution, formed by a single authority, and subject to a single superintendence and control; but that it is a compact of many independent powers, every single one of which claims an equal right to understand it, and to require its observance.

…

This member of the government was at first considered as the most harmless and helpless of all its organs. But it has proved that the power of declaring what the law is, ad libitum, by sapping and mining, slyly, and without alarm, the foundations of the Constitution, can do what open force would not dare to attempt.”—Letter to Livingston, 1825.

If Prof. Ellis wasn’t aware of this Jefferson letter, he’s a bad scholar. If he is, he’s a dishonest man.

[HTs and acknowledgement of some arguments borrowed from NRO. Source quotes verified by this author.]

Congress Becomes Madison’s “Overbearing Majority“ from The Weekly Standard.

Let’s cut to the chase. Madison:

“[M]easures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority…By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community…”

The usually worthy Volokh blog recently made a hash of “democracy” vs. “republicanism.”

What the Georgia legislature was trying to get at, I think [and they did it poorly as well], is that a “republic” implies much more than majoritarianism, which would be a strict reading of “democracy.” [The introduction in the Volokh discussion of "representative" also gummed things up.]

A republic requires and effort toward consensus, hence the Electoral College, and even moreso the Senate: the smaller states are not at the mercy of the larger ones, and indeed in the Senate have equal say.

From the official Senate website:

A key goal of the Framers was to create a Senate differently constituted from the House so it would be less subject to popular passions and impulses. “The use of the Senate,” wrote James Madison in Notes of Debates in the Federal Convention of 1787, “is to consist in its proceedings with more coolness, with more system and with more wisdom, than the popular branch.” An oft-quoted story about the “coolness” of the Senate involves George Washington and Thomas Jefferson, who was in France during the Constitutional Convention. Upon his return, Jefferson visited Washington and asked why the Convention delegates had created a Senate. “Why did you pour that coffee into your saucer?” asked Washington. “To cool it,” said Jefferson. “Even so,” responded Washington, “we pour legislation into the senatorial saucer to cool it.”

[Our republic also places limits on majoritarianism via the Constitution, although I doubt the Obamacare legislation will be found unconstitutional in any significant way.]

But the disposition towards consensus instead of mere majority has a long history as the American political ethos. Social Security, Medicare and the Civil Rights Acts passed with a significant number of votes from both parties. Indeed, the American Creation blog had a behind-the-scenes controversy recently, and the “winning” side was actually the minority.

Good faith requires such things, and good faith is essential to the smooth running of a republic. This is the essential truth that was lost in the recent Congressional controversy. The parties just can’t take turns steamrolling each other—that threatens stability.

We all don’t have to agree, but agreeing to disagree only gets us halfway there.

We have to agree to agree, despite our reservations. That’s the heart of “consensus,” and of this American republic.

It’s sort of—if I may—like “love, honor, and obey” in a Christian marriage:

As a nation, we “love and honor” each other quite seldom, like how we responded to being attacked by The Axis in WWII, and even for a brief time after 9-11.

But who, in any decent marriage, doesn’t “obey” their husband or wife when push comes to shove in a Big Decision, no matter who’s “stronger” or weaker?

As citizens of a republic, we obey each other. That’s how it works. Sometimes majority rules. Sometimes the majority obeys the minority, out of respect for the other. This is good will, and good faith, because no republic, no marriage, can survive without both.

I think even the congressional Democrats realize now that they steamrolled their fellow Americans on this Obamacare thing, in pursuit of what they honestly thought is good for the country. And regret it, because it wasn’t right and it was disrespectful to the rest of us.

They didn’t get a single GOP vote. They ignored the polls. They made no effort at consensus. It was un-republican [small "r"], and it was un-American.

This from LifeNews:

Stupak first faces a primary election challenge from a hardcore abortion advocate who, today finds herself getting national support from NARAL. … “Over the last several months, we’ve been forced to witness Rep. Bart Stupak’s despicable attempts to hijack health-care reform because of his extreme anti-choice agenda,” NARAL president Nancy Keenan said today an in [sic] email LifeNews.com obtained.

And if Stupak makes it through the primary, there will be a pro-life republican waiting to challenge him. But to make it through the primaries, he will likely have to downplay his ostensible pro-life stance which will make it tough to win many pro-life Michiganders.

Such is the fate of weak men.

You know, this is an amazing week. Massachusetts goes Republican, health care dies and the Supreme Court unshackles the First Amendment. It’s the best week I’ve had since spring break in medical school — and I don’t even remember it. And there was another item . . .  Air America, the liberal talk show network went out of business — which is a redundancy because nobody was listening anyway. ~ Charles Krauthammer on Fox

Just came down the wire. Coincidentally [or perhaps not], I tuned in for a little schadenfreude this morning, and after the Scott Brown victory, they were in particularly miserable form.

Details here. R.I.P., if that means it stays dead.

Do not be idle – join the fight for your children and grandchildren.