Back to the future of Federalism?

Martha note: Just got word that Virginia Attorney General Ken Cuccinelli has agreed to participate in a portion of Thursday's Virginia Insight. 

Tune in, call in, Thursday at 3.

I think Tom Graham reads more newspapers than anyone I've ever known except my grandfather-- and Gramps was retired. Anyway, Mr. Graham regularly sends out links he comes across that he thinks might be of interest/use to the rest of us.

The repeal amendment, as your probably know, reads,  

“Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed.”

This tidbit came in Saturday. It's from the Richmond Times-Dispatch, and since it's short and interesting I thought I'd just cut and paste it into this morning's blog post:

Cuccinelli defends repeal amendment

By: Olympia Meola

Published: December 10, 2010 2:17 PM

Visit msnbc.com for breaking news, world news, and news about the economy

Attorney General Ken Cuccinelli went toe-to-toe with Chris Matthews last night over the repeal amendment, U.S. commerce clause, nullification and the state’s health care lawsuit. 

Cuccinelli disputed Matthews’ theory that a repeal amendment would open the door to the country’s less populated states joining together to overturn federal action, saying it would require bipartisan support. The constitutional amendment would allow two-thirds of the states to collectively repeal a federal law or regulation. 

“What it’s intended to do is bring back a sense of balance,” Cuccinelli said.  

Matthews likened it to a “whiskey rebellion” on paper, “a way to take on the federal government.”  He said the effort was playing to the “nullification crowd,” which Cuccinelli emphatically denied, waving his finger and shaking his head.

“That is not what’s going on here,” Cuccinelli said, “this is being done in the process the constitution provides for.”

Georgetown Law Professor Randy E. Barrett* came up with the idea for such an amendment, and he and Virginia Speaker of the House William J Howell presented it in a September OpEd piece in the Wall Street Journal, in which they argued,

At present, the only way for states to contest a federal law or regulation is to bring a constitutional challenge in federal court or seek an amendment to the Constitution. A state repeal power provides a targeted way to reverse particular congressional acts and administrative regulations without relying on federal judges or permanently amending the text of the Constitution to correct a specific abuse.

The Repeal Amendment should not be confused with the power to "nullify" unconstitutional laws possessed by federal courts. Unlike nullification, a repeal power allows two-thirds of the states to reject a federal law for policy reasons that are irrelevant to constitutional concerns. In this sense, a state repeal power is more like the president's veto power.

Mr. Barrett's idea for such an amendment initially stumbled around like the Redskins' offense and then abruptly, according to Slate.com, gained political traction.

Now, just two months after the proposal was a twinkle in a Virginia legislator's eye, the leadership of nine states is showing interest, and the popularity of the amendment's Web site (they have them nowadays) has "mushroomed." And this week, completing the proposal's rapid march from the margins to the mainstream, Rep. Rob Bishop of Utah introduced the amendment in the U.S. House of Representatives, pledging to put "an arrow in the quiver of states." The soon-to-be House Majority Leader, Eric Cantor, said this week that "the Repeal Amendment would provide a check on the ever-expanding federal government, protect against Congressional overreach, and get the government working for the people again, not the other way around." 

There's no question that such an amendment would decentralize the power structure of this country's government,  and so would be a significant re-embracing of Federalism.

Federalism, as organized in the Articles of the Confederation, was this country's initial unionizing principle, but it was ditched back in 1783 because the United States of America was on the brink of dissolution. The United States Constitution was then conceived as a compromise that would strengthen the power of the Federal Government in a way that could still garner approval from states accustomed to acting mostly in their own interests.

So back to that repeal amendment.  Do we want the politicians of our particular state, the Commonwealth of Virginia, to have more power over us and the Federal Government less?

I'd really like to know what you think.

But let's leave the Founding Fathers out of the discussion, okay? Personally, I find it so odd when people presume to speak with authority about how those guys would want this country to work in 2010 based on what worked in 1783. From what I've read about the Founding Fathers, that bunch of politicians completely understood that if a government doesn't adapt to the pressing needs of its day, there will pretty quickly be no country left to govern.

*Mr. Barnett is a professor at the Georgetown University Law Center and author of  Restoring the Lost Constitution: The Presumption of Liberty" (Princeton 2005).

The sky may not be falling, but Norfolk really does appear to be drowning . . .

I write this blog most mornings at home, settling down to my computer with a cup of coffee about 7:30. This means I'm usually not in my car, heading into the studio, and actually listening to WMRA until sometime during On Point. 

Driving in yesterday, I listened to one of the most "on point" (I couldn't resist) discussions of climate change I've ever heard. It revolved around one coastal city's attempts to cope with rising water. The city was Norfolk; the rising water is the Atlantic.

The impetus for the show appeared to come from Leslie Kaufman's excellent article in last Thursday's New York Times, "Front-Line City in Virginia Tackles Rising Sea."

Coastal waters are rising – by between 15 and 17 inches over the past century – making shoreline areas more susceptible to storms, flooding and tidal surges. In this photo: Norfolk's Colonial Place neighborhood as high tide approaches during a nor'easter Friday, Nov. 13, 2009.

Ms. Kaufman begins in Hazel Peck's front yard. Mrs. Peck has lived for forty years in a section of Norfolk known as Larchmont, which is "built in a sharp 'u' around a bay off the Lafayette River."

Here in Larchmont, according to Ms. Kaufman,

residents pay close attention to the lunar calendar, much as other suburbanites might attend to the daily flow of commuter traffic.

If the moon is going to be full the night before Hazel Peck needs her car, for example, she parks it on a parallel block, away from the river. The next morning, she walks through a neighbor’s backyard to avoid the two-to-three-foot-deep puddle that routinely accumulates on her street after high tides.

Tidal flooding used to happen only occasionally, Ms. Kaufman quotes Mrs. Peck as saying, but  last month "there were eight or nine days when the tide was so doggone high it was difficult to drive." 

Like many other cities, [Ms. Kaufman writes], Norfolk was built on filled-in marsh. Now that fill is settling and compacting. In addition, the city is in an area where significant natural sinking of land is occurring. The result is that Norfolk has experienced the highest relative increase in sea level on the East Coast — 14.5 inches since 1930, according to readings by the Sewells Point naval station here.

Climate change is a subject of friction in Virginia. The state’s attorney general, Ken T. Cuccinelli II, is trying to prove that a prominent climate scientist engaged in fraud when he was a researcher at the University of Virginia. But the residents of coastal neighborhoods here are less interested in the debate than in the real-time consequences of a rise in sea level.

Imagine, injecting reality into a conversation about climate change!


On Point's discussion of the situation in Norfolk, hosted by Tom Ashbrook,  included Ms. Kaufman (who covers national environmental  issues for the New York Times), William “Skip” Stiles (executive director of Wetlands Watch), Theresa Whibley (Norfolk city councillor representing Ward 2, which contains some of the areas of Norfolk hardest hit by flooding) and Orrin Pilkey (professor emeritus of Earth and Ocean Sciences at Duke University, and co-author of The Rising Sea). There wasn't a Richmond politician in sound! It was just informed people talking about their first-hand observations of a very real problem and making suggestions for ways to deal with it. Their conversation was sensible and civil.

The city of Norfolk, Va., is spending a lot of money to raise Richmond Crescent by 18 inches to avert routine flooding at high tide. Matthew Eich for The New York Times

There are other east coast cities threatened by rising Atlantic Ocean tides, among them New York. But Norfolk appears to be out front in recognizing and addressing the problem. Today, in fact, Old Dominion University will announce its plans to create a national center for studying all things related to rising sea levels resulting from climate change.

But back to On Point . . .

I loved the absence of politics in yesterday's discussion. Sadly and alarmingly, we've all but lost the ability to face reality without injecting politics into our view of it. And this more than anything, it seems to me, holds us back from addressing our country's very real problems.

I can't help but think it would be difficult for even our Attorney General, Ken Cuccinelli, who's by way of being the poster boy for those who would turn aside from addressing issues related to climate change, to argue against Mrs. Peck's forty years of first-hand observation of Norfolk's rising tides.

Thoughts on Immigration by Larry Stopper

When our ancestors arrived on these shores, they often came with little more than the shirts on their backs. While many were escaping prejudice and persecution, the vast majority were economic migrants. They were searching for something better than the generally miserable conditions they were coming from.

Economic migration has been with us since the dawn of mankind. The earliest tribes of hunter gatherers were economic migrants and many was the time they crossed into another tribes territory in search of food, only to be met with great hostility. The American colonists who settled in Texas at the beginning of the 19th century were economic migrants. They didn’t go to Texas for the weather, but in search of cheap land. It’s amazing so few people remember that the American southwest was stolen from Mexico largely to offer greater land access to U.S. economic migrants. What do we think all those folks were doing during the 19th century when they traveled west in great wagon trains?

scene from the Texas territory

The undocumented immigrants at the center of our current debate are generally just what those Texans were: economic migrants in search of a better life. Though attention has mostly been directed at the Hispanic population, I have personally worked on job sites in New York City where everybody else spoke Polish and maybe one or two were in this country legally. One of my business partners swam the Rio Grande 20c years ago with $100.00 dollars in his pocket and a dream. Now he’s a citizen and a partner in a thriving business.

The United States has been a beacon to the worlds poor at least since the Irish started coming over during the great potato famine of the 1840’s. We have been the world’s economic engine for the past hundred years precisely because we were so liberal in letting folks into our country. Yet prejudice and xenophobia have always accompanied the influx of foreign born people into the U.S. It strikes me as painfully ironic that our Attorney General, Ken Cuccinelli, is leading the attack on undocumented immigrants in Virginia. How long has it been since Mr. Cuccinelli’s family came here in search of a better life.* 

Now, right here in Virginia, based on Attorney General Cuccinelli’s legal opinion, all of us will be required to carry papers proving we are in the U. S. legally. This opinion, in my opinion, is directed squarely at the Hispanic community. “Where are your papers” is a line from a bad World War Two movie, not something a Virginia state trooper should be asking anyone when they make a traffic stop.

Finding a solution to the immigration question is a difficult task that will require compromise on all sides. We can’t round up twelve million people, and who knows what the effect on our economy and country would be if all those hard working folks just up and left. We have to dig deep and find compromises we can live with. Blaming our current troubles on the latest group of people to reach our shores looking for a better life is a losing proposition and destined to hurt us without solving the question.

      -- Larry Stopper lives in Afton. He is a third-generation American and a proud, first-generation Virginian

* calls to Mr. Cuccinelli's political office and the office of the Attorney General asking for this information were not returned.

Blog extra: The promised link to Attorney General Ken Cuccinelli's recent civil subpoena. . .

Here's a link to the latest salvo fired by Ken Cuccinelli in his ongoing legal dispute with the University of Virginia over documents relating to a climate scientist's research. . . Any thoughts on this contentious issue?

Would someone tell me what it means to be a conservative Republican?

If you like to root around in exhaustive coverage of national and Virginia politics, there's no richer grazing ground than washingtonpost.com. And yesterday afternoon, while cruising the site, I came across three separate blog items that started me thinking about what it means to be a conservative Republican in 2010.

Blog item #1)  According to a new Gallup Poll, 73% of Americans who identify themselves as Republicans also identify themselves as  "conservative" or "very conservative."

Does that mean, I wondered, that all those "conservative" and "very conservative" people see themselves as pretty much in agreement about where this country needs to go and how to get there?

Blog item #2)  Virginia's attorney general Ken Cuccinelli has been invited to Alabama and Iowa next week to campaign for those states' Republican candidates for attorney general.

If Virginia has a politician who approaches rock star status (with fans as opposed to soberly simpatico supporters), it has to be our attorney general. Has any other Virginia attorney general ever generated so many in-state headlines or so much out-of-state name recognition?

As Rosalind Helderman puts it in her blog about Virginia politics,

The outspoken Virginia conservative, who is suing the Obama administration over the federal health-care law and EPA greenhouse gas regulations, has been in increasing demand nationally from Republican candidates and organizations.

Love him or hate him, Mr. Cuccinelli's certainly a very visible and vocal conservative Republican. But, surely, just because he attracts a lot of press doesn't mean that the 73% of Republicans who describe themselves as "conservative" and "very conservative" are in line with Ken Cuccinelli's way of thinking. Or does it?

Virginia's attorney general's national political clout pales beside that of the flamboyantly conservative Sarah Palin. I, personally, am not sure exactly what she's for, but I am sure that, whatever it is, she's for it adamantly every chance she gets.

Which leads me to blog item #3)  Ms. Palin's name always comes up when people speculate about who might be the 2012 Republican presidential nominee. However, a new Politico poll hints that the "Sarah for President" chatter is more about her celebrity than her political substance. Take a look at this question from the politico poll. . . .

As you may already know, Sarah Palin has been the Governor of Alaska and was the Republican nominee for Vice President in 2008. She resigned from her position as Governor in 2009 and currently runs a political action committee and works as a news commentator for Fox News.

Based on what you know, would you say that Sarah Palin's efforts since resigning as Governor in 2009 have made you more likely or less likely to support her if she runs for President?

More likely/strongly 17%
More likely/somewhat 14%
UNSURE 5%
NO DIFFERENCE 7%
Less likely/somewhat 13%
Less likely/strongly 45%

Greg Sargent interpreted this data yesterday on his blog Plum Line (also at washingtonpost.com.)

There's no quibbling with Palin's soaring popularity among Republicans or her rising influence in GOP primaries. But it seems a sizable majority, 58 percent, see Palin's decision to quit as governor of Alaska after a half term and her strategy of elevating her media profile on Fox and via an endless stream of attacks on Obama on Twitter and Facebook as a reason not to back her for president.

This seems to support the idea that her current strategy is working brilliantly to enhance her brand, but only in her current role of celebrity/quasi-candidate. It's rendering her completely toxic for the broader electorate as an actual presidential candidate.

"Her brand?" Is that how Ms. Palin, herself, views conservationism?

I do not, however, believe for one second that the 73% of Republicans who view themselves as "conservative" and "very conservative" see conservatism as a "brand."  And I, for one, am very interested in understanding how they do understand conservatism. Not their ideology's talking points or knee-jerk oppositions, but what conservatism is, what practical ideas it supports, how these will make the country work better.

So I'd love to hear from conservative Republicans who march to a quieter, more thoughtful, less self-promotional drummer than Mr. Cuccinelli and Ms Palin. What does it mean to be a  "conservative" or "very conservative" Republican?

Can anyone help me out?

The Cuccinelli subpoena ruling, balance and values . . .

 "This old buzzard, having failed to raise the mob against its 

rulers, now prepares to raise it against its teachers."

H.L. Mencken

Scopes Monkey Trial
July 16, 1925

Sadly, I didn't find the above Mencken quote on my own, but lifted it from Slate, which, on May 24th, pointed out that Virginia Attorney General Ken Cuccinelli had recently filed a civil subpoena against the University of Virginia.

As Courtney Stuart first reported last week in Charlottesville's The Hook, Cuccinelli's office quietly filed a civil investigative demand (or CID, which is basically a subpoena) with the University of Virginia on April 23, giving the school 30 days to produce more than 10 years' worth of documents related to the state-funded research of a former faculty member, Michael Mann. Operating under the Virginia Fraud Against Taxpayers Act, the CID seeks from the university, among other things, "any correspondence, messages or emails" to or from Mann and 40 named climate scientists; any documents sent to or from Mann that reference any of those 40 scientists; and any "documents, things or data" submitted in support of any of five different grant applications that amounted, in total, to almost $500,000. The university is also expected to turn over "any and all emails or pieces of correspondence from or to Dr. Michael Mann since he left the University of Virginia." 

 The action was dismissed yesterday by retired Albemarle County Circuit Court Judge Paul M. Peatross, Jr.

[ From an article in this morning's Cavalier Daily] Peatross held that Cuccinelli does not have “unbridled discretion” to review professors and instead must found civil investigative demands on an “objective basis.”
In turn, the ruling did not directly address issues of academic freedom, Schragger said, “because [Cuccinelli] did not even meet the minimum demand of investigative requirement.”

Virginia's Attorney General's office promptly issued a press release headlined "Attorney General Cuccinelli pleased with aspects of UVA CID ruling," in which Cuccinelli claimed partial victory in the judge's ruling. 

“While this was not an outright ruling in our favor I am pleased that the judge has agreed with my office on several key legal points and has given us a framework for issuing a new civil investigative demand to get the information necessary to continue our investigation into whether or not fraud has been committed against the commonwealth.”

Attorney General Cuccinelli has long been publicly skeptical about global warming, stoutly maintaining that scientists have skewed their data in order to claim the world is heating up. If that's so, Cuccinelli has unearthed a conspiracy of unprecedented size, since the scientific evidence for global warming is broad-based and overwhelming. Does our Attorney General really think it is in the best interests of the Commonwealth of Virginia to spend our scarce dollars attacking a scientific finding that, for some reason, appears to make him personally uneasy?  The Commonwealth has many pressing needs.

Yesterday, I blogged about conservative Victor David Hanson's column in the National Review in which he outlined the 6 basic reasons for the anger that sent 100,000 Americans to Washington on Saturday to "restore honor" with Glenn Beck. One of the reasons Dr. Hanson listed was frustration with the courts striking down (on pesky legal grounds) laws advancing conservative social values. So do these people Mr. Hanson talks about want legal decisions made by majority opinion? Do Mr. Beck and his followers really think we should ignore the parts of the Constitution that establish the courts' responsibilities?

Mr. Beck and Mr. Cuccinelli both appear to demonstrate by their actions that they feel their personal values trump both science and the Constitution.

Getting what we voted for . . .

One of the surest ways to track a society's values is to track how it spends its public money when money's tight.

Our Republican governor, Bob McDonnell, has proposed dealing with the state's troubled economy through massive cuts to public schools, the state government work force and health and welfare safety net programs in a $2.1 billion bid to balance a critically troubled state budget.

He also proposed that public safety see a boost of $60 million in funding over the biennium.

Which seems to be saying that our governor suggests we will increasingly deal with troubled people if they break the law, at which point we lock them up.

Another way to track our values is to examine how we protect diversity.

This article ran in this morning's Washington Post's "Virginia section:" 

Virginia Attorney General to colleges: End gay protections
By Rosalind S. Helderman
Washington Post Staff Writer
Saturday, March 6, 2010; A01

RICHMOND -- Virginia Attorney General Ken Cuccinelli II has urged the state's public colleges and universities to rescind policies that ban discrimination on the basis of sexual orientation, arguing in a letter sent to each school that their boards of visitors had no legal authority to adopt such statements.

In his most aggressive initiative on conservative social issues since taking office in January, Cuccinelli (R) wrote in the letter sent Thursday that only the General Assembly can extend legal protections to gay state employees, students and others -- a move the legislature has repeatedly declined to take as recently as this week.

The letter demonstrates an increasing split in the region's policies on issues related to sexual orientation. It comes in the same week that the District began issuing marriage licenses for gay couples and a week after Maryland's attorney general announced that his state will recognize same-sex marriages performed in other states.

Cuccinelli's move has dismayed students and faculty members. It suggests that Cuccinelli intends to take a harder line with the state's university system, where liberal academics have long coexisted uneasily with state leaders in Richmond.

"It is my advice that the law and public policy of the Commonwealth of Virginia prohibit a college or university from including 'sexual orientation,' 'gender identity,' 'gender expression,' or like classification as a protected class within its non-discrimination policy absent specific authorization from the General Assembly," he wrote in the letter.

State government has real power in our lives. I'm curious: When we elected this administration, were these the ways we envisioned that power being used?