Let me be clear, I sympathize with the pro-piracy crowd (or are they anti-stopping-piracy? Or anti-“censorship”? Is this the reverse of the anti-life vs. anti-choice conundrum?) I find the prospect of having to pay for content that could be free intensely annoying. To think, the only thing standing between me and watching the new Katherine Heigl movie for free is the greed of some multinational corporation! I’ll try not to consider the possibility that my desire to avoid parting with my own hard-earned cash is fundamentally similar to the desire of an artist to be paid for their work.

Leaving aside the individual moral implications of internet piracy, let’s take a look at some of the blogosphere’s arguments on the economic and policy implications.

Our own Tom Leberg runs down the ways that SOPA and PIPA were hopelessly flawed and would have negatively impacted sites that don’t help people pirate. These problems make the proposed legislation unpalatable. The idea of enforcing intellectual property protections online in general, though, deserves a more realistic discussion than the one it is currently receiving.

Matt Yglesias, in his infinite trendiness, is against stopping internet piracy and in favor of “illegal competition [as] a valuable consumer pressure on the industry.” ¡Viva la revolucion!

Yglesias argues that the deadweight loss created when a producer charges money for an extra copy of a TV show episode that was essentially free to produce is mitigated by illegal downloading. This blatantly ignores the fact that while the copy of the episode was free to produce, the episode itself was not. Yglesias, perhaps, would prefer if producers covered their costs from the ticket fees of live studio audiences only.

Caleb Crain, also of Slate, does a fairly good job of taking apart Yglesias’s argument that piracy is OK because the money not spent on a pirated item enters the economy in other ways:

If I were to visit the Slate cafeteria, sit in Yglesias’ chair, and eat his lunch, it’s not as if the money that I failed to spend on a lunch of my own would vanish into a black hole. No! The economy will not suffer! Yglesias, after all, will have paid for the lunch I ate, and the money that I didn’t spend would still be in my pocket or my checking account or whatever. So I could take that money and spend it on, say, the new Shins album. Now I can afford vinyl! Flourish, Keynesian multipliers, flourish!

Still, I think he misses the point as much as his colleague. Poking holes in a flimsy Yglesias argument is a far cry from suggesting a better intellectual framework for the discussion.

Yglesias takes a stab at using deadweight loss to justify his position, and Crain somehow manages to take apart this justification despite the fact that he clearly doesn’t know what deadweight loss is. I think it makes sense, then, for me to take a stab at explaining the reality of internet copyright laws with another topic from introductory economics: the excludability of goods.

As defined by Harvard Economist, Mitt Romney’s continually ignored economic advisor, and prolific textbook author N. Gregory Mankiw, a good is excludable if “someone can be prevented from using it.”

Congress can't stop you from looking at these fireworks. Can they stop you from downloading songs?

So, for example, a private party with N. Gregory Mankiw is excludable because I can station bouncers at the door to prevent you from entering unless you’ve paid the cover charge. Conversely, a fireworks show in celebration of N. Gregory Mankiw’s birthday is not excludable, because I can’t realistically prevent you from standing 100 yards away from where I’m launching the fireworks and enjoying all of the pretty colors.

What isn’t immediately obvious, but is immensely important to this analogy, is the government’s role, or lack of role, in these two scenarios. In the case of the private party, if you somehow manage to overpower my bouncer and get into the party, the government will intervene by sending a police car and arresting you for trespassing.

In the case of the fireworks, the government isn’t going to help much. But they could. If Congress decided that you “stealing” my fireworks show was a grave concern worthy of sparing no expense to solve it, they could build really high walls around my fireworks display, or put together a special anti-fireworks-stealing-task-force to hunt you down and shield your eyes. The reason they don’t do these things is because they’re impractical. The cost of government enforcement of my profit-earning-potential outweighs the benefit.

This same logic holds for things like music and movies. If the government can cheaply and easily prevent you from pirating stuff (and if our elected officials want to), they should. If, on the other hand, the costs—which might include, I don’t know, the internet shutting down in protest—outweigh the benefits, they shouldn’t. This issue isn’t so much one of morality, or even of government incompetence (although it is that too). It’s an issue of practicality. If a law isn’t worth enforcing, it shouldn’t be enforced.

The other interesting wrinkles to this are the international implications. Whereas Yglesias’s argument about the health of the market might hold to a certain degree within the US—that is to say, the US economy probably isn’t hurt a great deal by something like an American pirating a song owned by an American record label, assuming they spend the money they’re saving from pirating on American products, a big caveat—it’s a whole other ballgame when we go global.

At the risk of generalizing, the US has a competitive advantage over the rest of the world in creating things (designs for iPhones, pharmaceuticals, and even media), and a competitive disadvantage over the rest of the world in making things (assembling those same iPhones). Because of this, the US government is right to be preoccupied with international intellectual property law. It’s why you see it near the top of the agenda for every trade negotiation with a foreign country. The relationship to copyrighted material on the internet is this: even if it isn’t worth the government’s time and resources to prevent Americans from pirating, it certainly is worth at least some resources to prevent foreigners from pirating.

Unfortunately, this is where practicality rears its ugly head once again. The internet has no borders, and there’s a good chance that any site that assists Russian kids in pirating music helps American kids do the same. From there, things are complicated further by the fact that the Russian kid might spend that surplus income on an American product, and the American kid might spend his surplus on a Russian product. In the end, the walls that would have to be built to keep American intellectual property excludable may be just too tall. Our conversation, at the least, should be about what shape those walls would need to take, and if they are worth building.

And Speaker of the House Newt Gingrich deserves much of the credit, or blame. During the campaign season, Rep. Gingrich tirelessly visited 137 congressional districts elucidating and selling his vision of the future and renewal of American civilization. Time labels him the “GOP guerrilla” spreading the “politics of anger,” but Rep. Gingrich and other Republicans respond that they are the reflection, not the creators, of this anger. A recent New York Times/CBS News poll seems to agree, reporting that Americans trust the Republicans of the new Congress more than President Bill Clinton to change social policy.

At the same time, Rep. Gingrich and other Republicans have proven adept at making headlines for saying and doing things that, at least on the surface, belie the popularity of their beliefs. To help make sense of the implications and the source of the GOP sweep, the Harvard Political Review had the opportunity to conduct an interview with Rep. Gingrich.

HPR: Judging by the results of the election, the mood of the electorate has changed. In what way has the mood changed, and how do Republicans plan to either change or tap into the new political climate?

Gingrich: While the results of November 8 were a stunning victory, that does not necessarily mean the mood of the public has changed, except that the American people—who are generally centrist-conservative—realized that the Republican party best represented what they were thinking. The nation voted, woke up the following day, and was delighted with what happened. The nation voted decisively at every level, from state legislature to county commissioner, from governor to the House and Senate; at every level there was a Republican tide in every part of the country. We carry a much larger burden than we would have expected because of the country’s decision that it, in fact, wanted a new leadership team and that it wanted the president to compromise with the Congress. It did not want to the Congress to compromise with the president.

HPR: You have planned an intense legislative agenda when the Congress convenes in January. How will the Republicans pace themselves over the next two years, and do you see this Republican-controlled Congress as a one-shot deal or the beginning of a new era?

Gingrich: We are going to do everything we can—starting the opening day—to keep our word. We’re going to do everything we can to pass the Contract [with America] we committed to. And we’re going to recognize that you have to have the American people if you’re going to change anything. It can’t be done in Washington. It has to be done across the country. During the first 100 days, our commitment is to get a vote on everything that was in the Contract with America. We can’t guarantee we’ll pass it. We can guarantee a vote.

HPR: Critics have assailed the Contract with America as little more than a hodge-podge of politically popular and expedient proposals designed to make waves during the campaign season. What do you see as the underlying philosophy binding the Contract, and does this philosophical foundation represent the core agenda of the Republican party in the future?

Gingrich: A public confidence in Congress and other institutions reached an all-time low, we felt we had to restore the fabric of trust between the American people and their officeholders. We have made a promise, and we are going to keep it. That in itself will go a long way towards a continued Republican majority. At the same time, we have to engage in a deep, thorough dialogue with the American people on how to shrink the federal government to achieve a balance. We cannot replace the social engineering of the left with a social engineering of the right.

HPR: One of the provisions of the Contract is term limits. Given the massive turnover just witnessed, are term limits still necessary?

Gingrich: The country has sent the message that they want change, and we’re going to give every member of the House a number of occasions to vote on whether or not they want to vote with the country or whether they want to stand defiantly and say, “No, we don’t believe you’re serious.” So you’ll see every single thing in the Contrat voted on. We are looking at reform of Congress over the long term, not just the immediate problems, but preventing problems in the future.

HPR: Ronald Reagan and George [H.W.] Bush often pointed to the inability to overcome gridlock as an impediment to governing. How will the American people see Washington now, and who do you think will bear the brunt of the blame for the obstructionism—President Clinton or the Republican-controlled Congress?

Gingrich: The Republicans, who have not been in charge of the House for 40 years, have a pretty big interest in getting something done. The president has an interest in getting something done. Senator Dole, who may well be our presidential nominee, has an interest in the Senate in getting something done. So, in a funny kind of way, you may have a moment in ’95—for 10 or 11 months—all of us have a good reason to want to be positive and productive.

I have no interest in engaging in a debate with those who would raise taxes. That issue is over; it’s gone. We’re not going to do it. I have used the phrase: “Cooperation, yes. Compromise, no.” This country has been voting since 1968 against the Great Society. And the track record is unending. The only two Democrats to win since 1968 both ran as New Democrats. I mean, Jimmy Carter was an outside reformer, not a liberal, and proud of it; Bill Clinton ran as a New Democrat who favored middle-class tax cuts, reinventing government, and welfare reform. This is the most astonishing affirmation of the desire for a fresh, bold, decisive change in this city that I have seen.

HPR: What concrete changes will you make in how the House operates? How will these changes fit into your vision of what the mentality and culture of Congress should be?

Gingrich: On the opening day of the 104th Congress, the American people will see a real and dramatic change in the way things are done on Capitol Hill. On the opening day, Republicans will cut House committee staff by one-third. We will vote on the Shays Act, which will apply to the Congress all laws that apply to the rest of the country, and we will introduce the ten bills that make up the Contract with American to be voted on within 100 days.

Additionally, we will cut the budget for the House by downsizing and consolidating work to make the House operate more efficiently. The quality movement must make its way to Capitol Hill, so we can make the best use possible of every tax dollar.

Finally, throughout the year, the American people will see a more open and honest legislative process. As opposed to the Democratic Congress, a Republican House will greatly expand the ability of members to offer amendments to bills. We are trying to build a proactive House of Representatives, and discouraging changes has only stifled the House’s ability to solve the nation’s problems.

HPR: Your effective tactics for ensuring party unity have often been labeled coercive. As Speaker, how much dissension within the GOP ranks will be compatible with effective governing? How united are Republicans philosophically, and will the nation witness a quarrel between right and moderates now that the goal of Congress has been achieved?

Gingrich: The fact that 355 Republican congressional candidates signed the Contract with America shows that the basic philosophy of the Republican party crosses a wide range of members and ideologies. My obligation as Speaker of the House is to be speaker of the whole House, reaching out to all House members. I am not speaker for the party. Instead, I have an obligation to reach across party lines and reach out to the president. I will not compromise on a tax increase, but that doesn’t mean we can’t find other things to cooperate on. We will work together to find a common ground.

HPR: Though the 1994 elections just ended, many are already looking forward to 1996. How have the unexpected results of this past election changed the entire outlook for the GOP in 1996? Who do you think will run for the Republican nomination, and what are each candidate’s relative strengths and weaknesses? How difficult will it be for the Republicans to maintain their hold on Congress and regain the White House?

Gingrich: I think we have at least a year to prove that Republican ideas can be effective. We have got to prove to the American people that we can actually do something positive—not just be the opposition party. If we can do that, then the chances of a Republican win in 1996 are improved. I won’t speculate on possible party nominees, or even on who might be running. I’ll leave that to the political columnists.

Arvind Krishnamurthy ’97, a Social Studies concentrator, is Circulation Manager of the Harvard Political Review. The written interview was conducted in early December 1994

This interview was originally featured in the Winter 1995 edition of the Harvard Political Review. January 1, 1995.

In my opinion, both of these views are causes for concern: Yes, the bill expands the government’s ability to detain suspected terrorists (citizens or not), and yes, we’ve already been doing that for 10 years. But after 10 years of fighting terror, killing Osama bin Laden, and significantly weakening al Qaeda, isn’t it time to be winding down intrusions upon the personal freedoms of the American people? NDAA 2012 codifies the extraordinary powers of the post-9/11 weeks and months, powers that have been used to justify a whole host of actions in the past, and will certainly justify many more in the future.

Source: legallyeasy.rocketlawyer.com

There’s something about a never-ending War on Terror that goes against the principles upon which America was built. Already, our counterterrorism efforts have been used in one way or another to justify unreasonable searches and seizures, suspensions of habeas corpus, and secret prisons. All of these would be violations of our constitutional rights during peacetime, but fears of violent extremism have made them the new bedrocks of America’s security apparatus. If the goal of terrorism is the destruction of America’s core principles, we cannot fight back with laws that do just that.

The Law Itself

First, it’s useful to define all of the terms we’re working with: the National Defense Authorization Act (NDAA) is passed every year. It is the budget for the Department of Defense, which includes military expenditures, foreign wars, military bases, and soldiers’ pay. This year, the NDAA faced sharp opposition from civil liberties groups nationwide mainly because of two specific provisions in the bill, sections 1031 and 1032. What’s all the fuss about*?

Section 1031: 

“Congress affirms that the authority of the President to use … the Armed Forces of the United States to detain covered persons. … A covered person under this section is any person … who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces. … The disposition of a person under the law of war …  may include … [d]etention under the law of war without trial until the end of the hostilities.”

The real concern within civil liberties communities arises with this section of the bill, for a few reasons. For one, the definition of a possible detainee includes “any person who has committed a belligerent act.” This leaves the door open. Who is considered actively engaging in belligerency against the United States? This is one of the reasons I find the bill so concerning: is Occupy Wall Street a belligerent threat? What about the Tea Party or Code Pink? Would Malcolm X have been a belligerent or an activist? What about Bradley Manning or Julian Assange?

The vagueness in the bill is meant to leave the matter up to the courts, many of which have taken unclear stances themselves on civil liberties. George Bush’s legal team used this lack of clarity to its advantage by spinning complex legal webs to justify things like wiretapping, enhanced interrogation, and the Patriot Act. It looks as if this bill is following the same practices that other counterterrorism laws have followed for the past decade: take the widely held interpretation of a previously vague law, then use other vague laws to create a new, written version of what is “necessary” to combat terrorist threats. In essence, build upon common practices to create more and more aggressive laws.

This might seem like a slippery slope argument, but let’s remember what originally gave the president so much power to combat terrorism: a bill passed a week after 9/11 called the “Authorization for Use of Military Force Against Terrorists (AUMF).” It states, “The President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

Source: myggm.org

President Bush used this bill to justify almost every single counterterrorism action taken during his administration (legal or not). President Obama’s legal team used this to justify almost every counterterrorism action during the current administration, and they used it again tojustify NDAA. So while many say that section 1031 simply put into writing the common practices of the post-9/11 era, it seems much too likely that this law will become the legal basis for others in the future that are more radical. These laws will simply build upon AUMF, the Patriot Act, and NDAA 2012 to create more extreme interpretations of what the government is allowed to do.

Section 1032:

“The Armed Forces of … the United States shall hold a person … in military custody pending disposition under the law of war. … The requirement to detain a person in military custody under this section does not extend to citizens of the United States.”

This states that the military has the power to hold any non-citizen indefinitely, as it has done at Guantanamo Bay. However, it also leaves room for the possibility of the indefinite arrest of American citizens, just not by the military. While I could make a larger point about the inevitability of such laws being used more liberally as time moves on, there is a larger theme to be made known here: the legal model of the United States was never meant for indefinite detention. The laws that allow this kind of behavior were meant for wartime (You know, for the wars that actually end). The fact is, the War on Terror is just like the War on Drugs – never ending, with a hunger for more and more aggressive techniques in an attempt to win an unwinnable battle.

There will always be terrorists, and the United States will always be under some kind of terrorist threat, as vague and minimal as it could someday become. And (according to the language in this bill) as long as there are terrorists, the President of the United States will have the ability to arrest any “belligerent” person. So whereas in a normal war we could use indefinite detention to detain enemy soldiers during the heat of battle, we’ve used language meant for finite conflicts, and we’ve expanded it to adapt to a never ending one. The implications of this are vast.

It’s easy to lose the significance of civil liberties in a post-9/11 era. With security at such a high premium, we can forget that by protecting our freedoms, we may be sacrificing the very things that make us free. The National Defense Authorization act puts in writing the extraordinary measures that we allowed our government to yield in the weeks and months post-9/11. They were not meant to last 10 years, and they were not meant to be institutionalized. If the War on Terror is a never-ending one, our personal freedoms cannot be indefinitely detained.

*I’ve created a full version of the text of sections 1031 and 1032 of the National Defense Authorization Act of 2012, with the parts that I used in this article highlighted. It can be found here.

The State of the Union has hindered the 112th Congress

After Republicans gained control of the House of Representatives last November, they vowed to repeal major legislation passed by the previous Congress and satisfy the Tea Party, whose conservative votes and voices lifted them to victory. However, despite months of rancorous debate on topics ranging from health care to the notorious debt ceiling, Congress has not accomplished much.

Bills pass one branch of Congress only to be immediately shut down by the other. This phenomenon has characterizes many previously divided Congresses, but today’s historic polarization signals a shift in how the government functions. Analyzing the circumstances surrounding this impasse provides a glimpse into political debate in the near future.

Business as Usual

A cursory glance at history indicates that Congress has seen similarly dire circumstances before. Midterm elections have often ushered in legislatures dominated by reactionaries hostile to the incumbent president. Yet it is unfair to lambast this Congress with the ‘Do-Nothing’ label, as Harry Truman did to his Republican opponents in the 80th Congress. Joseph Postell, professor of political science at the University of Colorado, told the HPR, “It’s hard to define what it means to be a do- nothing Congress. It seems like obviously compared to the Congress before it…this Congress has done much less. It’s certainly a do-less Congress.”

Yale Professor David Mayhew asserts, “Generally speaking, major enactments come later in a Congress under divided party control. It takes longer to cool down the antagonisms and make the deals.” This indicates that any greater progress under divided Congresses this early would be surprising. “The current Congress seems more or less typical in actual enactments,” continues Mayhew. Indeed, this session’s major achievements remain limited to free trade deals with Colombia, Panama, and South Korea, and the debt compromise, which, while controversial and tricky in its negotiation, eventually passed.

A Different Political Climate

Several factors underlie the dearth of progress. Postell believes these include, “greater polarization, the Tea Party, and the circumstances in which the country finds itself.” The current economic crisis has dominated Congressional attention, preventing most other issues from emerging. Reaching meaningful compromise on the incredibly broad issue of economic recovery has been difficult. While the American people hope for quick remedies, both parties are careful to not upset their bases with fiscal or economic heresies. Members of the Tea Party, for example, have been particularly vocal in their emphasis on shrinking the size of government. Liberals, likewise, have consistently refused to reform entitlements: the problem which economists agree will become the largest driver of future deficits. A growing focus on ideological purity, including GOP pledges to not raise taxes, has stalled negotiation by forcing legislators to toe the party line or face primary challenges.

The changing Republican base has also made compromise with the Democrats increasingly difficult. Theda Skocpol, Harvard government professor, maintains that Republicans, “have a huge Tea Party- oriented caucus that has really made it impossible for Speaker Boehner, even if he wanted to, to make any kind of compromise.” While party feuding has occurred since time immemorial, Skocpol believes that “Republicans in both the House and the Senate are determined to do nothing at all. Their top priority is to defeat President Obama in 2012… I don’t think the Republican Party can go a whole lot further to the right.” The data support Skocpol’s claim. According to National Journal, the 112th Congress is the most polarized in modern history. The moderates of years past have largely disappeared, wiped out in wave elections and replaced with dogmatic ideologues.

Compounding this scenario is a rather perplexing occurrence: the American people may not even know what they want. Postell thinks that “At this point no one knows exactly what the public mood is… Maybe the public is still waiting to see what the economic stimulus and health care acts produce.” History has shown that the country’s mood can rapidly swing when dissatisfaction is widespread. When no dominant voice of the people emerges, however, Congress treads cautiously. Indeed, despite the fact that Congressmen and Senators typically have their own clear-cut agendas, Skocpol states, “Voters in general often don’t know what to do when they’re disillusioned with things.” Representatives in Washington can only sit and wait while their constituents make up their collective mind.

The Eternal Campaign

The lens through which the public sees its representatives has also shaped the discussion, or lack thereof. The sheer volume of media analysis and criticism continuously assails Americans, overwhelming all other discourse. Postell believes there is great significance in “the amount of political commentary the people are subjected to these days.” As pundits offer constant reminders of Congressional gridlock, general dissatisfaction with the political system becomes an unavoidable outcome. While intense scrutiny of politicians before an election is nothing new, this focus is now relentless. Immediately after new legislators win elections, the next campaign cycle begins.

Augmenting this obsession with campaigns, a core to conservative politicians’ plans for 2012 is convincing the public that the Obama administration bears the blame for continued economic distress. While opposition to a president by the opposing party in Congress is standard practice, Skocpol believes that “what we’re seeing under Obama is new. The Republican popular base…outright hates and fears Obama.” Delivering any major legislative victories would increase Obama’s standing, creating a conundrum for GOP leaders seeking to leave their mark. Others feel that contention has simply become the new norm, with Postell citing the deep-seated opposition liberals had against President Bush. However, he does believe, “There is a problem here with the constant campaign.”

Eyeing 2012

With an increasingly conservative Republican base and outrage surrounding the sour economy afflicting both parties, the current legislature is certainly a “Do-Less Congress”. The media’s fixation has fired up partisans of every stripe. In this toxic environment, national policy-making has stagnated. Regardless, America is facing major changes.

Skocpol says that “the 2012 election is probably one of the most pivotal in American history; [if the Republicans win, they] will restructure the role of government in society.” A sweep of the House, Senate, and White House by Republicans would constitute a national mandate for overturning of Obama administration policies. However, if Obama wins reelection, Skocpol believes, “The Republicans may take a step back and realize that they have gone too far.” Such a victory would constitute an endorsement of the President and a rebuke against the ‘Do-Less’ Congress’s policies and practices.

John Prince ’13 is a Staff Writer. Thomas Esty ’14 is a Contributing Writer.

Photo Credit: House GOP Leader, Flickr

Penned by our Founding Fathers 224 years ago, the Constitution has long been construed differently by political forces to justify their own political agendas. Conservatives in particular have been active in using this document to advocate for fundamental changes in government policy. Their efforts have culminated with congressional proceedings questioning legislation’s constitutionality, an effort led by Republicans like Senator Mike Lee (R-UT), who told the HPR that “The resurgence of constitutional conservatism has to do with the growth of the federal government.”

The roots of “constitutional conservatism,” the term applied to the GOP’s recent rhetoric, trace back to Barry Goldwater’s emphasis on individuals rather than government as the driver for prosperity. Though Reagan’s smashing electoral success brought this fashion into the norm, today’s conservatives have strayed from Goldwater’s and others’ original intent.

Conservative Discontent

As Peter Berkowitz of Stanford’s Hoover Institution wrote in January 2009, renewed focus on the constitutional question originated with the Republican Party’s immense losses in 2008. The devastating setbacks inflicted on Republicans rallied an ideologically narrow base and fostered new rhetoric. Further, the libertarian sect of the Republican Party had grown discontented with President Bush, whose administration had substantially increased the government’s purview over fiscal matters and civil liberties. Once President Obama began to implement his agenda, conservatives began to rally against a president they viewed as guilty of fundamentally unconstitutional actions. Trevor Burrus, a legal associate at the Cato Institute’s Center for Constitutional Studies, told the HPR that the bailouts were “the main culprit.” Conservatives, unable to defeat the President’s agenda in Congress, attacked legislation on constitutional grounds.

This appeal has manifested in many forms. Presidential candidate and Congresswoman Michele Bachmann (R-MN) has hallmarked her campaign as one motivated by constitutional conservatism, which includes  repealing  “Obamacare.” The current House, led by Speaker John Boehner (R-OH), mandated that every piece of legislation passed by the lower chamber identify the relevant portion of the Constitution that provides legal legitimacy. Even more, Joe Miller, the 2010 Tea Party-backed Senate candidate in Alaska told the HPR, “In 2010, a number of Tea Party candidates, including myself, self-identified as constitutional conservatives in order to differentiate ourselves from ‘compassionate conservatives’ who nearly bankrupted the country while leading us into wars and nation building.”

Though Miller narrowly lost his election, over the past two years, constitutional rhetoric has become winning vocabulary and spurred a movement that, according to TeaParty.org founder Dale Robertson, has “decided to follow in the footsteps of Gandhi and Martin Luther King” in peacefully accomplishing   goals   and   gaining “the attention of our leaders.”  Some, however, are more dismissive. Ian Millhiser, political analyst for the Center for American Progress, tells the HPR, “This notion that the primary purpose of our Constitution is to handicap our national leaders’ ability to solve national problems has been around, and it rears its ugly head every now and then.”

Constitutional Rigidity? 

Prominent conservative minds like the late political philosopher Frank Meyer and National Review founder William Buckley promoted a certain constitutional conservatism that, as Berkowitz suggested, is accurately  grounded “in America’s founding ideas, and the intellectual coherence of the alliance…between partisans of freedom and partisans of tradition.” Berkowitz adds, “It’s a characteristic…of  conservatives to respect the wisdom of the past contained in tradition.”

Nonetheless, as Georgetown professor Jeffrey Rosen suggests, “Citizens disagree plausibly and legitimately as to the meaning of the Constitutional text.”  For instance, though many conservatives view universal health care legislation as unconstitutional, there are few who would argue for complete repeal of New Deal programs such as Social Security. Offering a different perspective, Howard Phillips, chairman of the Conservative Caucus and Constitution Party founder, suggests that conservatives “are cautious about the political impact of being comprehensively critical of Social Security.”

Harvard Law professor Richard Fallon notes that, in interpreting our Constitution, those on the “left, right, and center all think that if people knew more about the Constitution then we would have a better polity than we have now.” But, Fallon adds, the “vast majority of what Congress does is constitutional…and  these numbers do not vary much from administration to administration.” The political tension over interpreting the Constitution has seen the right challenging what  it perceives to be overly expansive legislation and liberals deferring to the vagueness of constitutional wordage. This debate, which Burrus views as revolving around “the very important principle…that the Congress cannot have unlimited power,” is  challenged by those who naturally resist against substantial changes. Fallon notes, “The fact that, when Congress does something dramatic of a kind it has not done before, people ask the question of whether or not it is constitutional is not a surprise.”

Gone Astray?

The Tea Party movement, citing the Constitution as the basis for smaller government, has also received considerable criticism. Rosen, when asked about the Republican presidential candidates, argues that hypocrisy exists in that “those same candidates that hope that the courts will strike down health care reform and much of the welfare state…then bash those same courts for judicial activism.” Rosen also critiques the conservative employment of constitutional arguments, saying, “There is too quick a tendency on the right to run to court to reverse their political defeats by invoking the constitution.”

Neither has the constitutional issue reconciled the conservative and libertarian GOP wings. Berkowitz says, “I don’t think there has been a philosophical meeting of minds of the two conservative camps.” Indeed, one might well wonder whether the constitutional conservatism espoused by today’s Republicans has strayed from the roots originally examined by Meyer and Buckley, and put into practice by Goldwater and Reagan.

As the pseudonymous W.W. wrote in The Economist in June 2011, liberals, when speaking about the constitutional movement, often hint “at a far more radical agenda than meets the untrained eye.” Yet, some like Joe Miller advocate for this radical approach, saying, “Time is not any patriot’s ally in this fight. Moderation in advocacy and delay in reform will almost certainly fail in its attempt to save the Republic.”

What the Future Holds

By Robertson’s estimation, “The job of the Tea Party is far from over because we have a lot of work to do before we are able to bring back a constitutional  form of government.”  Senator Lee adds, “What happens in 2012  in the direction of constitutional conservatism is going to make what happened in 2010 look like a Sunday picnic.” However unsettled the debate over the significance and intent of constitutional conservatism may be, conservatives have found a winning electoral message, even while legal scholars anguish at its usage.

Tom Gaudett ’14 is the Circulation Manager. Simon Thompson ’14 is the Interviews Editor.

Photo Credit: Flickr (Gage Skidmore)

In 2009, 33 legal scholars pushed for a Judiciary Act implementing regular appointments to the Supreme Court, term limits for Justices, ousting aging Justices, and reforming the Court’s process of granting review. An observer  might have expected the reformers to gain traction; after all, most of America’s government remains spectacularly unpopular. Yet such expectations proved mistaken. The bill never materialized into law, and despite some scholarly dissent, the Supreme Court enjoys high public approval ratings. At a time when Americans increasingly distrust the president and Congress they elect, the appointed judicial branch has rarely proved more popular.

The paradox calls to mind the countermajoritarian problem first discussed by the late Alexander Bickel. In a purported democracy, why do people think so favorably of an institution consisting of nine appointed individuals in a temple of justice? Further, why have attempts to democratize the judiciary failed? The answer appears to lie in the institution itself. Despite the Supreme Court’s isolation from the public, judicial reform is unlikely as long as the Supreme Court is considered legitimate and enjoys an extensive reserve of good will with the public.

The Legitimacy of Legitimacy

Many scholars assert that the Supreme Court enjoys high public approval ratings because it appears legitimate in our democracy. In an interview with the HPR, Harvard Law School professor Richard Fallon described three different types of legitimacy: sociological, moral, and legal. Fallon states that while most scholars think only of  sociological legitimacy, moral and legal legitimacy are equally important for the Supreme Court. Sociological legitimacy, Fallon asserts, entails “legitimacy as a source of authority that causes people to obey institutions even when they don’t agree with the outcome.” In a legal context, this translates to other branches complying with a decision of the courts without protest. Moral legitimacy involves the Supreme Court maintaining its power by not offending the moral sentiment of the people. Last, Fallon describes legal legitimacy as the Court staying within the plausible bounds of its authorities. In its combination of all three, the judicial branch strengthens its popularity and power.

Over time, the Court has further enhanced its legitimacy by mediating its own influence. In an interview with the HPR, Professor Ryan Owens of the University of Wisconsin said, “The court has made a concerted effort over time to get involved in cases only as a last resort.”  The Supreme Court bears the power to grant a writ of certiorari in cases it deems significant enough to hear, but selects only those that it thinks require more exacting judicial scrutiny. Professor Owens noted that the Court is more likely to accept cases where the lower courts are in conflict and rarely accepts a decision simply because it disagrees with the verdict. By its judiciousness in its selection of cases, the Court declines to influence matters that lie beyond its power.

The Democratic Deficiency

Professor Owens further describes a “fundamental psychosis in the American  public.”  Owens notes that members of Congress suffer from extremely low levels of support, while the Supreme Court and military enjoy high rankings. These high approvals may seem paradoxical considering the lack of an electoral connection. Somehow, Owens notes, the public construes “the Court as not being subject to the same pressures and is willing to give the Court the benefit of the doubt,” says Owens.

Bob Barnes of the Washington Post told the HPR that there is very little that the Court can do to lower its goodwill in public opinion. Indeed, there is very little it can do to change citizen’s perceptions at all. Barnes cites polls showing a plurality of Americans believe the Court to be “too liberal,” despite its frequent conservative rulings. Barnes continued, “If people knew more about the Court, they may like it less.” Yet such may prove a difficult task. In a recent poll done by Newsweek magazine, less than 1 percent of the nation can name all nine Justices of the Supreme Court.

Neglecting the Numbers?

The acceptance of the Supreme Court’s legitimacy further reflects in public polling data. An October 2011 Gallup poll indicates that 46 percent of Americans approve of the job that the Court is doing. In the same poll, Congress’s rating stands at a meager 13 percent. The Court consistently outperforms its sister institutions, suggesting that the benefits of elections upon popularity can be overstated.

Public polls on the Court serve less as a reflection of job performance based on individual cases and more of a summation of public acceptance. In an interview with the HPR, Duke Law Professor Paul Carrington clarified the argument, reasoning that the Court’s “popularity rating doesn’t tell you anything about what it is doing.” Individuals’ perceptions of their judges rely less on specific ruling and more on holistic evaluations. A recent slide in approval numbers, 15 percent in the past two years, stems from general dissatisfaction and distrust of government, not anger from specific cases like Citizens’ United, Carrington asserts.

“It is a countermajoritarian institution that nevertheless enjoys reserve or diffuse support from the public,  although that support, it appears, will ebb and flow to a degree as does support for other, more visible institutions,” said Russell Wheeler of the Brookings Institution. It resulted from “a drop in the approval of government institutions generally,” he added. The justices themselves pay little attention to the numbers, as their responsibilities are linked neither to popular opinion nor approval from any other citizens. Professor Carrington summarized the justices’ sentiments by saying, “It is a very arrogant institution. They don’t care what other people think … they are self-indulgent.”

Supreme Crisis?

Looking ahead, the prospect for reform is slim. At a time when widespread Occupy tumult has called for fundamental changes within the political sphere to no avail, similar calls for reform within the Courts have fallen on deaf ears. When asked what the chance is that lifetime tenure would be abolished or any other reform implemented, Professor Carrington replied by saying that one “need[s] a moment of crisis of some sort to get something done.” As the only court explicitly created by the Constitution, the Supreme Court has held an unchallenged position in the realm of American government and decision-making. Such Constitutional mandate gives credence to the Justices’ indifference towards the polls, and unless their legitimacy suddenly diminishes, they will carry out their responsibilities indefinitely.

Medha Gargeya ’14 is a Staff Writer. Andrew Seo ’14 is the Design Editor.

Photo Credit: Phil Roeder, Flickr

The rapid mushrooming of America’s national debt, combined with the resurgence of limited government sentiment, has revived interest in a once dormant legislative prospect: a federal balanced budget amendment. To be sure, the idea of constitutional controls on government finances is nothing new. In 1936, a per-capita limitation on public debt, spearheaded by Minnesota Representative Harold Knutsman, reached the House floor. Since then, several other similar constitutional amendments have been proposed and voted upon, each time without success. Yet today’s sentiments stand near historic highs. This past year alone, congressmen from both parties have proposed eighteen balanced budget amendments, ranging from the mushy and unenforceable to the politically and economically unfeasible.

The Balanced Appeal

In its purest form, the idea of a balanced budget amendment draws skepticism from many economists. From a Keynesian perspective, the amendment’s merits—restricting spending—are actually flaws. In July, five Nobel laureates wrote to Congress that restricting federal expenditures to certain deficit levels would “mandate  perverse  actions  in the  face  of recessions.” Paul  Krugman, opposing the amendment, affirmed, “The worst thing we can do for future generations is not to run sufficiently large deficits right now.”

This doubt, however, is not strictly a left-wing phenomenon. Even David Boaz, executive vice president of the Cato Institute and an eminent counterweight to the theorists of the left, concedes when discussing balanced budget amendments that “Statesmen should have the ability to ‘address…economic emergencies.’” Thus, even free-market libertarians like Boaz, to some extent, accept that handcuffing the government and mandating austerity during recession may not be a wholly pragmatic solution to America’s fiscal problems.

What is needed, instead, if a balanced budget amendment is to be seriously considered, is flexibility, and an institutional means for coping with extraneous circumstances such as severe economic downturn.  New proposals must include an effective mechanism of curbing debts, while at the same time allowing the government to respond appropriately to the prevailing economic conditions. This budgetary amendment would require skillful crafting, a technocratic composition, and extensive political wrangling.  While certainly a tall order, such a piece of legislation is not without precedent, at least in an international context.

The German Option

In Germany, the current exemplar of effective budget regulation, a recently crafted fiscal constitution has been implemented in order to deal with what had been a creeping deficit problem.  It is flexible, enforceable, and smartly countercyclical in nature.  Economist Thurstayan Baskaran, an expert in the new German legislation, lauded the measures in an interview with the Harvard Political Review, pointing out that the fiscal constitution “does take the economic situation into the account, but requires that [the budget] be balanced according to the business cycle.”  Likewise, Lars Feld, a member of the German Council of Economic Experts, the official advisory body to the Bundestag, pointed out to the HPR that while the new fiscal constitution is “relatively flexible” in nature, it effectively “puts Germany into a position where it cannot easily incur debt.”  Among its provisions is an allowance for German politicians to temporarily suspend the regulations during economic crises, while still holding the government accountable for debt accrued during a downturn.

What makes the German solution most interesting, however, is that it was born not out of anti-government conservatism or the principles of the libertarian right, but rather out of the pragmatic fusion of academic knowledge and policymaking.  It requires economic calculations by apolitical bodies and a barrage of specific figures, such as a maximum deficit of 0.35% of GDP in neutral market conditions, all of which are key components of the scheme as a whole.  This legislation came about as a direct result of decades of continuous growth in German public debt and is not an attack on the welfare state, but rather an attempt to curb what had been, in the words of Baskaran, “politicians’ propensity to spend too much, while taxing too little.”

Domestic Concerns

Unfortunately, balanced budget proposals in Congress lack any of the adeptness of the German model. While many popular proposals have elements of  flexibility, such as supermajority votes to temporarily override new fiscal constraints, they largely lack certain necessary built-in mechanisms, such as automatic business cycle adjustments. Further, these proposals are often riddled with hyper-partisan elements, such as Congressman Bob Goodlatte’s (R-VA) proposed governmental spending cap at 18 percent of GDP.  The only mainstream proposal that includes a robust form of countercyclical  policy  is  that  of Tea Party-aligned Congressman Justin Amash (R-MI). However, Congressional support for Amash’s bill is dwarfed in comparison to that of other, more ideological bills, including Goodlatte’s. It is precisely because of the hyper-political nature of American balanced budget proposals that they fail to muster serious academic support.  Conversely, in Germany, it is the economic and technically crafted aspects of the new fiscal constitution through which the new legislation effectively balances the dangers of austerity with the pitfalls of imbalanced public finances.

To be sure, praising the German model is not tantamount to a prescription for the United States to copy that nation’s set of fiscal controls. After all, the political and economic conditions of the two nations are indisputably quite different. However, when congressional leaders begin to search for pragmatic solutions to the problem of public profligacy, a success story abroad would be an appropriate place to start. Baskaran insisted that, because of the German controls’ flexibility relative to the business cycle, these rules were at least partially exportable. Feld likewise points out that the “constitution is not a blueprint, but is in line with what Switzerland already has,” and, thus, the origins of the German rules illustrate that such constitutional regulations are applicable in varying national contexts.  Still, an examination of the specific, technocratic elements of potential balanced budget amendments may ignore the actual ideological fault lines upon which the two parties are fighting in Congress.

Conservatives have offered a variety of proposals like Goodlatte’s 18 percent budget cap to attack the growth of government, while attempting to masquerade these proposals as a pragmatic strategy to fight imbalanced finances. Liberals, on the other hand, by-and-large reject constitutional law as a means to quell public debt, a notion epitomized through the words of President Obama when he claimed that while “we need to get to the point where we can balance the budget…[w]e don’t need a constitutional amendment” to do so.  Perhaps Obama and the Democrats place too much trust in their own capacity to put the nation’s fiscal house in order without any coercive, structural rules; perhaps the Tea Partiers and Republican establishmentarians trust too little.  However, when and if Congress starts to discuss the possibility of a serious and smart balanced budget amendment, all they must do is look abroad to see that success, when pragmatism rules, is not unprecedented.

Gram Slattery ’15 is a Staff Writer.

Photo Credit: images_of_money, Flickr

While the Constitution meticulously lays out the workings and duties of the legislative branch, the founding fathers’ commentary on the executive branch proved significantly more limited. The powers explicitly granted to the President are wholly contained within Article II, Section II. Among the few responsibilities listed are judicial appointments and control over the military.

Today, the Executive Branch plays an increasingly important  role in both foreign and domestic affairs. Not only does the President set his party’s domestic legislative agenda, he can even commit troops to conflict abroad without Congressional consent. The growth of Presidential authority in the ill-defined War on Terror, demonstrated by President Obama’s controversial targeted killing of American Anwar al-Awlaki, indicates a need for Congress and the Supreme Court to check the executive branch’s growing authority.

The Incredible Growing Presidency

Historically, sitting presidents have expanded executive authority in crisis. Lincoln famously suspended habeus corpus during the Civil War, and Franklin Roosevelt magnified Presidential clout exponentially during the Great Depression. More recently, President Bush inherited a Congress that had proven  deferent to presidents from Nixon onward, a legacy he fully exploited.

Princeton Professor Julian Zelizer told the HPR that, “Since [the] 1980s, we’ve seen a real acceleration in the expansion of executive authority as a means to circumvent the legislative branch, particularly with regards to national security.” Zelizer believes that conservatives, though initially skeptical of government and its reach, have found in executive power a convenient tool to achieve their goals.

A Wartime President

The War on Terror provides a unique lens through which to evaluate recent expansions of executive power. The September 11 attacks enabled the Bush administration to apply wider and more powerful techniques to enhance domestic safety. The immediate terrorist threat allowed laws to pass swiftly with little debate, the U.S.A. Patriot Act being a prime example. Arguing that national security would depend primarily upon intelligence gathering, supporters increased the government’s surveillance capabilities.

Other examples underscore this notion of war growing the President’s office. The National Security Agency claims the Authorization for Use of Military Force Against Terrorists allows the government to conduct wiretaps and electronic surveillance without warrants. Author and lawyer Bruce Fein told the HPR that this means American citizens “no longer need to have a criminal record to justify the use of spying on them by the American government.” Former Department of Justice official John Yoo provides a different perspective, asserting that  “preventing terrorist attacks depends on spotting, in advance, patterns and connections in communications, travel and transfers of funds, rather than waiting for the attacks to occur.” For his part, Yoo led many efforts to enhance government authority during the Bush administration, emphasizing the need for efficient and obstacle-free security measures. To be sure, much of this debate ultimately hinges upon the philosophical  divide weighing  the relative importance of privacy and security. Yet it has been the president— not Congress—who sets that final balance.

The Obama Rerun?

While President Obama often chastised his predecessor for unlawful abuse of powers, his administration has ironically kept course. Indeed, renewing the Patriot Act, continuing wars in the Middle East, and expanding security and intelligence agencies’ powers all tie Obama to Bush’s legacy. President Obama has also significantly scaled up drone usage in targeted assassinations abroad, a move hotly debated by legal scholars. Though American citizen Anwar al-Awlaki famously declared jihad against the United States, many objected to his targeted killing, which the administration executed without trial or even an indictment.

This apparent breach of al-Awlaki’s inalienable rights leads Fein to claim, “All of our rights, now, depend upon the good will and benevolence of the President.” Again, Yoo views the situation differently. As he puts it, “American citizens who join the enemy do not enjoy a roving legal force-field that immunizes them from military reprisal.” He continues, “If the U.S. were to reserve criminal justice rules for American terrorists, it  would  only  encourage  al-Qaeda to recruit citizens and ease their path into this country.” In his apparent agreement with Yoo, President Obama’s policies seem less driven by ideology than by pragmatism.

One Branch Versus Two

Observers do question whether the growth of executive authority will continue indefinitely. The imperial presidency’s greatest threat remains that another governmental branch will curtail these powers. Previously, Congress has acted swiftly when it has felt that the Executive Branch has over-stepped its reach. During the Nixon Presidency, Congress passed the War Powers Act and the Budget Reform Act to strengthen its own role in the policymaking process. However, in today’s polarized climate, any serious legislative attempt to check presidential powers seems far-fetched. Harvard government Professor Carols Rosillo told the HPR, “It takes a very determined Congress to over-ride a Presidential veto, and partisan politics often come in the way… [O]ften, if Congress agrees with the substance of a policy, they will be less concerned with the constitutional questions involved.”

Yoo counters that Congress does have options, including: “reducing funding for the military, eliminating units, or freezing supplies.” Yet these options are often politically disastrous and likely unfeasible. Robert Higgs, a libertarian economic historian, agreed that Congress is simply “too interested in the upcoming election and too in favor of their own power to attempt actions that might make people feel more unsafe, even though they protect their liberties.”  Indeed, the President can even simply disregard legislation when suitable, as evidenced by Obama continuing military action against Libya for longer than 90 days without Congressional consent, essentially bypassing the War Powers Act.

The Supreme Court may be the branch best able to check executive authority effectively. The Court has already played an important role in the War on Terror, with its decision in Hamdi v. Rumsfeld reaffirming the right  of  habeus  corpus  over  presidential  objections. Nevertheless, many of these decisions  amount to little more than a slap on the wrist, and the general trend of executive growth continues. The Court must create a new legal framework, specific  to the war on terror, which clearly defines terms such as “enemy combatant.”

In time, the ultimate check on executive authority is the American electorate. Zelizer worries that “because of the current focus on the economy, people aren’t  concerned  with growing presidential powers right now.” Proceeding forward, the global terrorist threat continues, even with Osama bin Laden’s death. With both major parties unwilling to dismantle the national security apparatus, the trend of increased executive authority will not be reversed in the near future. The judiciary, with its insulation from political machinations, may be best suited to counter this dangerous trend. Ultimately, however, Americans must decide what liberties they are willing to sacrifice for additional security.

Arjun Mody ’14 and Corinne Curcie ’15 are Staff Writers.

Photo Credit: U.S. Army

Barack Obama came into office with everything going for him – a clear voter mandate, concrete plans, and a united Congress ready to promote Democratic ideals. So what happened?

First, it’s important to establish that Obama has done quite a lot right: he’s pulled back the economy from the brink of collapse, saved the American auto industry, created a healthcare plan that will help millions, and orchestrated a defense strategy that’s carefully taking us out of the Middle East without leaving a mess behind.

But at the same time, he hasn’t had the same relationship with Congress that defined the presidencies of Bill Clinton, or Ronald Reagan. These were true consensus builders who, despite the difficulties their policies faced, were effective in rallying support and building coalitions.

This may be Barack Obama’s weakness – why he may ultimately be compared to Jimmy Carter and not Franklin Roosevelt.

If the president wants to win a second term and make it one notable for progress and achievement, he needs to talk with his coworkers. He needs to communicate with them as often as he communicates with the American people, and he needs to create working relationships with the swing votes upon which so many of his policy successes will rely.

The president known by millions for his rhetorical abilities should remember that success can’t depend on speeches. Matthews says it best:

“Their idea of running a campaign is a virtual universe of sending e‑mails around to people. No, it’s not. It’s meetings with people. It’s forging alliances. It’s White House meetings and dinner parties that go on until midnight. And he should be sitting late at night now with senators and members of Congress and governors working together on how they are going to win this political fight that’s coming.”

Get your datebook out, Mr. President.

Harvard Political Review: What was your inspiration for entering politics?

Tim Roemer: Two things captivated me and sent me like a rocket ship toward politics. The first was the unconditional love and support of my parents. The second was a young senator by the name of Robert F. Kennedy. I’ll never forget in fifth grade class when the Sister asked for a volunteer to run a mock presidential campaign for Bobby Kennedy. My hand shot up so quickly that I think I dislocated my shoulder.

HPR: What inspired you to serve as Ambassador to India, and what experiences did you gain during your time in Congress to help you in the role?

TR: A very articulate, eloquent and convincing person asked me to do the job: President Obama. As ambassador, you work on many different issues, but one of the most compelling and consuming ones is national security. My time on the Intelligence Committee and other security commissions helped prepare me for building the relationship that we have constructed in the last couple years.

HPR: How do you balance all the different interests at play in working out export initiatives?

TR: I believe that since the late 1980s, Republican and Democratic administrations have not developed a compelling narrative for the American people so that they understand the importance of world trade and how exporting creates jobs and growth opportunities in America.  This is a win-win situation because, as you build this relationship economically, the middle class gets more opportunities to prosper and poor people are able to escape poverty.

HPR: How troubling an issue is corruption to India’s ability of succeeding as a democracy?

TR: Corruption doesn’t just affect the wealthy and high-level government people, it affects the common men and women. The middle class is getting fed up with it and they want changes. To be fair to India, she is only 60 years old and, when our democracy was just 60, we had a myriad of problems ourselves. We’ve come a long way in the last 100 years to cure those ills, to move in a better direction. India’s in the midst of that, and you’ve seen democracy at work in recent weeks with the anti-corruption campaign.

HPR: What do you see as the greatest risks in the security relationship between Pakistan and India?

TR: This is an issue of great concern to America and its national security policy. To address the problem we must first develop constructive, positive, bilateral relationships with both countries. Secondly, we must grow our strategic relationship with India and work to deflect the possibility of that next Mumbai attack by establishing ways to share more intelligence with India. We are working with India where they desire on border issues, technology, and helping to establish a new national counterterrorism center.

HPR: Are you considering ever running for elected office again?

TR: I’ve got four young kids and I’m spending more time trying to get my kids elected to the student council than I am trying to get myself elected to anything. But, when you’re at the Kennedy School…it puts the fire back in your belly to stay involved and maybe run again someday.

Harleen Gambhir ’14 is a Contributing Writer. This interview has been condensed and edited.