July 2, our real Independence Day

The 4th of July really ought to be celebrated on the 2nd, for it was on July 2, 1776, that the Continental Congress voted, 12 states for, none against, that the colonies "are, and of right ought to be, free and independent states."  The next day, John Adams wrote to his wife, "The second day of July, 1776, will be the most memorable epocha in the history of America. I am apt to believe that it will be celebrated by succeeding generations as the great anniversary Festival.... It ought to be solemnized with bonfires and illuminations, from one end of this continent to the other...."

In fact, the 3rd and 4th of July were taken up with debate and amendments to the 1,338-word explanation written by Thomas Jefferson and a small committee. A vote approving the text was taken on the 4th, but the actual parchment was not signed until August 2. That document used the July 4 date, and we've been stuck with it ever since.

There's another reason for celebrating July 2 -- for it was on that date, eleven years later in the same building in Philadelphia, that the Constitutional Convention broke its deadlock over how to organize the new government. Virginia had proposed proportional representation  by population, including slaves. The small states, led by New Jersey proposed equal representation of the states in Congress. The debate and defeat of various plans left many small state delegates angry and frustrated, and drove the convention to the verge of collapse. Many considered leaving the convention if their rights were not protected. Delegates on both sides became more heated and intransigent.

The small states had a point. The three largest states of Virginia, Pennsylvania and Massachusetts had 45% of the U.S. population and would need only one other state to have a working majority over all other states. On many issues the three most southern states – Georgia and the Carolinas – sided with the big three. Though small at the time, they all expected to grow much larger and saw such an informal alliance as helpful to their other interests. 

On July 2, 1787, Oliver Ellsworth of Connecticut pressed his resolution for equal representation in the Senate, but with some absentees and some still unexplained vote switches, the delegates tied on the question. That was a parliamentary defeat for the small states, but a game-changing, emotional victory because it kept alive their alternative. On reflection, other delegates realized that this issue of Senate composition could destroy any chance at government reform. They agreed to turn the question over to a committee, and three days later, the committee recommended equal votes in the Senate. At the end of the tumultuous week, the delegates approved the plan.

This broke the logjam on other issues as well. With small state rights protected, their delegates were more willing to strengthen the executive and the central government. By mid-July, delegates agreed on a single executive and gave him veto power.

Those are two strong reasons for venerating and celebrating July 2 -- with "bonfires and illuminations" and good beer. 

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Master Roberts

I'm not a lawyer, but I have done a lot of research on the writing of the Constitution and its implementation in the early years of the Republic. II also think I know a little about politics.

While I have no way of knowing whether the Chief Justice in fact holds any of the views I will ascribe to him, I suggest these hypotheses as highly plausible.

-- Roberts recognized growing criticism of the Court for partisanship and welcomed a way of reducing those attacks.
-- He was personally opposed to the Affordable Care Act but recognized the weight of judicial precedents in favor of its constitutionality.
-- He found, and occupied, a clever middle ground that gave both liberals and conservatives much that was pleasing to them.
-- For the conservatives, he opposed the validity of the individual mandate under the Commerce Clause and opened the door for later challenges to social legislation under it; he also took a more restrictive position on Medicaid and its burdens on the states.
-- For the liberals, he upheld the basic law under the congressional taxing power.
-- Cleverly, Roberts got the court to say that, though the law was a tax, it was not subject to the 1867 Anti-Injunction Act preventing judicial review of taxes until they are actually collected.

Deft work, Mr. Chief Justice.

UPDATE: I see that a legal analyst also finds evidence in the wording of the opinion that there was some back room maneuvering. And Ezra Klein makes some points similar to my own.

count the military operations now underway

As required by law and complied with by President Obama, we now have our latest six-monthly report on ongoing U.S. military operations.  The New York Times was alone in my survey of the media in reporting on this, but the White House made a formal release of the presidential letter to Congress.

If you read the letter, you'll see that we are now involved in several military operations: "against al-qa'ida, the Taliban, and associated forces" in Afghanistan, Somalia, and Yemen; in Iraq; in three countries in Central Africa; in Egypt; in Kosovo; and on the high seas in "maritime interception operations" discussed only in a "classified annex." 

Is this imperial overstretch?  At least we can't say we haven't been told.

inside scoops

I'm a sucker for insider accounts of U.S. foreign policymaking. I've acquired a sizable library of memoirs by officials (while recognizing that most are self-serving, insufficiently detailed, and often written by ghost writers) and journalistic accounts like those of Bob Woodward and others.

There's a new crop of books on the Obama administration -- by Jim Mann, David Sanger, Rajiv Chandresakaran, and Daniel Klaidman--  that I have just begun to read, some of which have been excerpted in the press. It's clear from the reviews, however, that most of the authors' key sources worked either in the White House or the State Department. These journalists had few sources, and thus little understanding and perspective of the military viewpoint on the controversies they describe. Maybe we'll have to wait for Secretary Gates or Admiral Mullen or some Pentagon-based journalist to provide that. Meanwhile, join me in reading these accounts with the necessary filters and questions.

laudable oversight

Use of drones against terrorists has generated a lot of controversy, but we can all take comfort from the fact that the congressional intelligence committees are regularly informed of each CIA strike and have an opportunity to raise questions and criticisms. The Los Angeles Times reports hat there are regular reviews, including videos of strikes and the intelligence used to justify them. One senior staffer is quoted as saying he wasn't aware of anything "inappropriate."  Remember, too, that while many parts of Congress are mired in trench warfare partisanship, the intelligence oversight committees have been largely free of that.

Learn to be a lobbyist for $600

I was shocked to learn of a 116-page report based on surveys of congressional staffers and registered lobbyists that the authors are selling for $600. Among the earth-shaking findings: staffers prefer email contacts; lobbyists like to meet in person [so they can tell or introduce their clients]; staffers grant access in the hope of obtaining credible and reliable information; for staffers, the most valuable information source is the Congressional Research Service.

I'm not going to pay $600 for this. Fortunately, Politico has a summary story -- for free.

But this points to a larger point about information about Congress: it's expensive, and many people are willing to pay the high prices. In many cases, the most significant information is not what routinely makes the public record in congressional hearings and debates; it's who said what to whom in the cloakroom, or what group is planning what initiative.

That kind of information is especially valuable to lobbyists, so they'll pay. Politico now has a subscription enws service in addition to its free daily paper; starting cost for the minimal subscription is $2500 per year. BloombergGov is hiring journalists [hooray!] for its subscription service costing $5700 per year.  The old standbys that we academics rely on --the newspaper RollCall and the CQ Weekly -- now cost around $600 per year each.

Knowledge is power, but only the rich can afford to gain the knowledge.

Hamiltonians vs Jeffersonians

One of the delights of having time to read for pleasure is that I encounter a lot of good --or good enough -- books. My latest happy discovery is Michael Lind's Land of Promise , a breezy economic history of the United States with a central thesis I find quite persuasive -- that America made its greatest growth and achieved economic dominance when it followed Hamiltonian principles and would never have achieved as much if it had followed Jefferson.

It was the Hamilton-Whig tradition that called for national economic policy, support to infant industries, federal support for infrastructure and education. Jefferson really did believe in a nation of farmers, as in this shocking quote from his 1782 Notes on the State of Virginia: “The political economists of Europe have established it as a principle that every state should endeavor to manufacture for itself; and this principle, like many others, we should transfer to America, without calculating the difference of circumstance which should often produce a difference of result. In Europe the lands are either cultivated, or locked up against the cultivator. Manufacture must therefore be resorted to of necessity, not of choice, to support the surplus of their people. But we have an immensity of land courting the industry of the husbandman … while we have land to labor, then, let us never see our citizens occupied at a workbench.” [Emphasis supplied]

Lind also notes that "free trade" was an anathema to leading political figures like Theodore Roosevelt, who said in 1895, “Thank God I am not a free-trader. In this country pernicious indulgence in the doctrine of free trade seems inevitably to produce fatty degeneration of the moral fibre.”