Jack Balkin returns to the issue of originalism and why progressives should embrace it:

Doug Kendall and Jim Ryan's essay in the New Republic makes the eminently sensible point that progressives should stop viewing originalism as the enemy just because they have come to associate it with people they disagree with politically. Instead, they should recognize that originalism is the right approach for progressives as well as conservatives . . .

It's important to remember that before Antonin Scalia and Clarence Thomas, there was Hugo Black, one of the great liberal defenders of the Bill of Rights, who made originalist arguments for the positions he took. Originalism is not the interpretive philosophy of stand patters. It is the philosophy of people who want to restore and redeem the Constitution's promises in a world where they have been forgotten or disrespected. . . . If liberals think that the current generation of conservative judges have hijacked the Constitution and twisted its meaning, they shouldn't respond by callling for a counter-hijacking. Rather they should follow the example of Hugo Black. They should call for a return to first principles, to the best interpretation of the Constitution's original meaning and underlying values. They should be originalists once again.

Many progressive scholars avoid these conclusions because they know that life is change. They are worried that originalism means giving up the idea of a living constitution-- a constitution that adapts to changing times. Nothing could be further from the truth, as I have explained here and here. Properly understood, fidelity to original meaning and living constitutionalism are not opposed positions. They are two sides of the same coin.

Indeed. I have agreed with Professor Balkin on this point for a while, most notably here.

Josh Marshall has a, to me, very inadequate post this evening on what to do about the Bush Administration:

Without going into all the specifics, I think we are now moving into a situation where the White House, on various fronts, is openly ignoring the constitution, acting as though not just the law but the constitution itself, which is the fundamental law from which all the statutes gain their force and legitimacy, doesn't apply to them.

If that is allowed to continue, the defiance will congeal into precedent. And the whole structure of our system of government will be permanently changed.

Whether because of prudence and pragmatism or mere intellectual inertia, I still have the same opinion on the big question: impeachment. But I think we're moving on to dangerous ground right now, more so than some of us realize. And I'm less sure now under these circumstances that operating by rules of 'normal politics' is justifiable or acquits us of our duty to our country.

It is so frustrating to me when smart people like Josh (he's a Brown grad too, snark) just up and ignore the remedies that the Congress has available to it. Now it just so happens that I favor impeachment of Gonzales but do not favor impeaching the President.

But I do favor the Congress using its many powers - the Spending Power, the inherent contempt power - in nontraditional ways to check the Bush Administration's behavior. Why does Josh throw up his hands instead of urging the Congress to use the power it clearly can apply - on Iraq, on Gonzales, on just about everything.

More.

Let's hope Dick Cheney and Alberto Gonzales won't find inspiration in Malaysia's threat to use anti-terrorism laws to censor bloggers who insult the Malaysian government.

The move comes as one of Malaysia's leading online commentators has been questioned by police following a complaint by the main governing party. The new rules would allow a suspect to be detained indefinitely, without being charged or put on trial.

Sound familiar? Malaysian double-speak is reminiscent of the nonsense we hear from the American right.

[O]fficials insist the law is not intended to strangle internet freedom.

No, the law is intended to strangle dissent.

From the AP:

Documents show that eight congressional leaders were briefed about the Bush administration's terrorist surveillance program on the eve of its expiration in 2004, contradicting sworn Senate testimony this week by Attorney General Alberto Gonzales.

The documents, obtained by The Associated Press, come as senators consider whether a perjury investigation should be opened into conflicting accounts about the program and a dramatic March 2004 confrontation leading up to its potentially illegal reauthorization. A Gonzales spokesman maintained Wednesday that the attorney general stands by his testimony.

At a heated Senate Judiciary Committee hearing Tuesday, Gonzales repeatedly testified that the issue at hand was not about the terrorist surveillance program, which allowed the National Security Agency to eavesdrop on suspects in the United States without receiving court approval.

. . . A four-page memo from the national intelligence director's office shows that the White House briefing with the eight lawmakers on March 10, 2004, was about the terror surveillance program, or TSP. The memo, dated May 17, 2006, and addressed to then-House Speaker Dennis Hastert, details "the classification of the dates, locations, and names of members of Congress who attended briefings on the Terrorist Surveillance Program," wrote then-Director of National Intelligence John Negroponte.

It looks more and more like a Special Prosecutor is in order.

Ed Morrisey writes a very perplexing post that seems utterly incorrect to me. He says:

Tony Snow rather forcefully responded to this development, calling it a singular event in American history, where the legislative branch will direct the executive branch -- in the form of the federal prosecutor -- to file contempt charges against itself.

Of course this is NOT a singular event as anyone who has read the CRS report would know. Indeed, the curent White House counsel Fred Fielding was involved in the most recent of these in the 1982 Burford matter, when the Reagan White House caved in to the Congress when faced with a contempt citation. I suspect there is a strong possibility the White House will cave in again. Wonder what Ed will think then. More.

"Where have you gone Joe DiMaggio?" - Paul Simon

With a cloud of steroids hanging over Barry Bonds as he is poised to break Hank Aaron's home run record, with Michael Vick indicted for dog fighting, with NBA ref Tim Donaghy implicated in a gambling scandal, sports seems to be at a new low. It goes lower today in France:

Tour de France leader Michael Rasmussen was removed from the race by his team after winning Wednesday's stage, the biggest blow yet in cycling's doping-tainted premier event. "Michael Rasmussen has been sent home for violating (the team's) internal rules," Rabobank team spokesman Jacob Bergsma told The Associated Press by phone.

Can the Tour survive this? I suppose it will but where have all the sports heroes gone? It is like the entirety of sport is suffering a BlackSox scandal. Say it ain't so Joe.

Unlike Jeralyn, who thought it was the best debate, I strongly disliked the CNN/ You Tube Debate mostly because it was a particularly silly exercise where attention seeking gimmicks like snowman, costumes and singing were the order of the day. Moreover, the actual questions were, a t best, badly phrased routine questions we have heard a million times. Can you believe there were no questions on the Supreme Court? But what really annoyed me was the conceit that CNN's slections represented some type of consensus view of "what the people wanted to talk about."

I am opposed to impeachment of the President for the many reasons I have explained here, but it would be silly of me to argue that there is not a strong contingent of Americans, particularly Democrats, who do want the President impeached. Susie Madrak points to a question that was soberly presented and did speak to an issue ignored by the Media that is very much on the minds of Democratic voters.

For the You Tube debate to have lived up to its billing, questions like that one should have been presented. CNN's conceit about this awful debate is badly misplaced.

I wholeheartedly agree with A.J. Rossmiller:

Fundamentally, this is an example of establishment thinking versus normal thinking. Establishment thinking says, you don't meet with or talk to Crazy Bad Guys like Castro/Kim Jong Il/Chavez without doing tons of prep work, making sure it's on a track, there are specific goals and benchmarks met, etc. etc. Which is actually essentially true. But in answering the question "would you negotiate with these guys" the normal thinking goes, not negotiating with them is idiotic, so of course I would!

I don't think Obama was saying, "I'll sit down with Castro on day three of my presidency," I think he was saying that negotiations with bad leaders are theoretically possible in an Obama administration, whereas they're not even a consideration for the current one. Clinton, in a pretty savvy move, intentionally misinterpreted (I'm guessing) his answer to take a jab and imply inexperience and naivete. Which has worked to some extent, at least among the political insider class and the press. And she thought fast enough to specifically disdain Castro and Chavez, which probably helps her in Florida.

In the end, I don't think voters really care, and his answer probably helps in the primary whereas hers may benefit her in the general. His sentiment is absolutely right, but he can't afford to be careless; Clinton is too good to pass up an opening like that. Despite the generally congenial tone the Democratic debates have taken thus far, they are, after all, debates, not joint press conferences.

Still, on actual substance, it's not anything worth criticizing Obama for, and it's pretty disingenuous to hammer him on it.

But this is politics, not beanbag. Maybe Obama will wake up now and realize that what Clinton did to him is nothing to what Republicans will do to him. HE needs to stop his "above it all" nonsense or he will be eaten alive. Right now he simply is not ready for prime time and has not shown the political acumen or chops to be seriously considered as our Democratic nominee. Maybe that will change now.

I about the 50 State Strategy before. Now, The Nation delivers a field report from North Carolina on how it is doing:

Suddenly, though, things actually are running, as Johnston notes after the meeting commences. "The county has twenty-two precincts," he informs the folks. "And I'm proud to announce that every one of them is organized as of just the other day." It might sound dull as dirt, but this is the kind of meticulous organizing--and pride taken in it--that has long been key to GOP dominance in places like Wilkes. The fifty-state strategy kicked off in 2005 by that other Yankee, DNC chair Howard Dean, has begun to level the playing field by putting field organizers, media directors and fundraisers into both "red" and "blue" states to stimulate grassroots organizing and year-round party-building.

Of course, it's not the national strategy alone that's bringing record numbers out to county conventions, precinct parties and Jefferson-Jackson Day dinners. The main event this morning is going to be a heaping helping of the other ingredients in the Democratic resurrection across so-called red America--fury and frustration.

"Good morning everyone!" comes the booming drawl of Seth Chapman, the longtime clerk of court in neighboring Alexander County who's pondering a 2008 challenge to the archconservative Republican Congresswoman from these parts, Virginia Foxx. "Isn't this something--in Wilkes County of all places! I'll tell you what, I've been over here before when there was maybe six of us. This is great. How on fire the Democratic Party must be in Wilkes County--and rightfully so. You have suffered for centuries!"

Good stuff. Read the whole article.

Via Oliver Willis. Take a memo billo, this is hateful and despicable:

A Boise State University running back who scored the winning points in the Fiesta Bowl, then proposed to his cheerleader girlfriend on national television, has hired security for his weekend wedding because of racial threats, a newspaper reported Tuesday. Ian Johnson, who is black, and his fiance, Chrissy Popadics, who is white, are due to be married Saturday in Boise.

Anyone who watched maybe the greatest college football game ever and then was charmed by the Boise State star proposing to his girlfriend right after the game must be disgusted by this. And here is the reality, anyone who has seen the reports on the disgusting comments posted at billo's site must know it is much more likely to be fans of billo than daily kossacks who would do such a thing.

In a desperate attempt to be demonized by billo, I post this statement from the Catholic Primate:

LORENZAGO DI CADORE, Italy - Pope Benedict XVI said the debate raging in some countries — particularly the United States and his native Germany — between creationism and evolution was an “absurdity,” saying that evolution can coexist with faith. . . .“They are presented as alternatives that exclude each other,” the pope said. “This clash is an absurdity because on one hand there is much scientific proof in favor of evolution, which appears as a reality that we must see and which enriches our understanding of life and being as such.”

Come on billo, level some invective on me.