Here's my point Matt, in case you were wondering, ACKNOWLEDGING that an idea might have been expressed by someone else is common courtesy.

I try to be scrupulous in acknowledging that what I think has been expressed by others.

My post:

Censure: Tone, Truth, Constitutional Moments and Barack Obama

by Armando

Sat Apr 01, 2006 at 12:50:44 PM PDT

Senator Barack Obama will be the Democratic nominee for President some day. On that day, I will rejoice. It will mean so much to our Party and our country when that day comes. If he wins the Presidency, my joy will be beyond description. He is a good man and a good Democrat with the potential to be a great man and a great President.

But he is wrong in his analysis of Senator Russ Feingold's censure resolution. Not necessarily wrong on opposing censure (though I think so). But in how he arrives at his opposition. Senator Obama sent a letter to a constituent, diaried here, on censure. Here is part of Obama's letter:

Thank you for writing about Senator Russ Feingold's proposal to censure President Bush. I understand your strong feelings on this issue. While I share your frustration and anger, I do not think censure is justified at this time.

I agree with Senator Feingold that the Administration's attitude toward congressional oversight and the FISA law has been cavalier and arrogant. We are a nation of laws, and those laws should be applied to all of us, from humblest citizen to the president of the United States. No president should be allowed to knowingly and willing flout our laws, and I believe the President exceeded his authority with his domestic wiretapping program. The justifications offered - that the president possesses inherent presidential authority under Article II, or was granted that authority in the 2001 Authorization to Use Military Force -- seem to contradict prior precedent and our constitutional design.

But my and Senator Feingold's view is not unanimous. Some constitutional scholars and lower court opinions support the president's argument that he has inherent authority to go outside the bounds of the law in monitoring the activities of suspected terrorists. The question is whether the president understood the law and knowingly flaunted it, or whether he and his aides, in good faith, interpreted their authority more broadly than I and others believe the law allows. Ultimately, this debate must be resolved by the courts.

(Emphasis supplied.) Senator Obama, there is no doubt that the President is knowingly flouting the law. That simply is not in dispute. The question is whether anyone can have a good faith view that the Constitution permits the President, acting as Commander-in-Chief, to violate the law. In this post, I argued that the Supreme Court has unambiguously stated the President can not knowingly act in violation of the law. As recently as the Hamdi decision, the  Court said:

[The Government's position] cannot be mandated by any reasonable view of the separation of powers, as this view only serves to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens. Youngstown Steel and Tube, 343 U.S. at 587. Whatever power the United States Constitution envisions for the Executive in times of conflict with other Nations or enemy organizations, it most assuredly envisions a role for all three branches when individual liberties are at stake.

Hamdi v. Rumsfeld.

Senator Obama, there is no good faith dispute on this issue. The position of the President is an assault on the Constitution and our system of checks and balances. There is no dodging this conclusion. Your statement is a dissservice to you, the Constitution, your constituents and the American People. Sir, you are better than this. The reality Senator, is that we face a Constitutional crisis. Indeed, it can be reasonably argued that we are in what Yale law professor Bruce Ackerman has described as a Constitutional moment:

Ackerman observed that the constitutional system in the United States (understood as the set of fundamental institutions and value commitments that order the nation's government) has undergone a number of important transformations since 1789. . . . Ackerman's problem was to account for substantial change in the U.S. constitutional order outside the framework provided by the Constitution itself.  His solution lay in identifying a particular form of popular mobilization, which he called the constitutional moment.

. . . Ackerman [posits] that public deliberation during constitutional moments had special characteristics, different from those of deliberation during ordinary politics, that gave constitutional innovations made during such moments normative priority over later decisions during periods of ordinary politics.  During constitutional moments, he argued, the general public was deeply engaged in deliberation about the public interest, and the people in the aggregate took a relatively impartial view about developing public policy. . . . So, Ackerman argued, decisions made during constitutional moments were better, in the relevant sense, than decisions made in the course of ordinary politics.  That explained their normative priority.

Senator Obama, President Bush is propounding a radical change in our Constitutional system. It is not acceptable for you to say 'on the one hand, on the other hand.' It is time to say No! Or Yes!, if that is your view. But the time is now.   It need not be censure if you believe that it is not the politically prudent course. Many have argued that supporting impeachment is the proper course. I have strenuously disagreed with that argument, opposing impeachment.

But our answer to a transformative change to our Constitutional system can not be 'people of good faith can disagree, let's just get along.' That is an abdication of our duties as citizens.

I understand that we have a mutual hero - Abraham Lincoln. Let me remind you of Lincoln's words in his Cooper Union Address in 1860:

Neither let us be slandered from our duty by false accusations against us, nor frightened from it by menaces of destruction to the Government nor of dungeons to ourselves. LET US HAVE FAITH THAT RIGHT MAKES MIGHT, AND IN THAT FAITH, LET US, TO THE END, DARE TO DO OUR DUTY AS WE UNDERSTAND IT.

In his famous diary, Senator Obama wrote:

How can we ask Republican senators to resist pressure from their right wing and vote against flawed appointees like John Bolton, if we engage in similar rhetoric against Democrats who dissent from our own party line?  How can we expect Republican moderates who are concerned about the nation's fiscal meltdown to ignore Grover Norquist's threats if we make similar threats to those who buck our party orthodoxy?

Senator, I have no such expectation. Do you?    

[T]o the degree that we brook no dissent within the Democratic Party, and demand fealty to the one, "true" progressive vision for the country, we risk the very thoughtfulness and openness to new ideas that are required to move this country forward.  When we lash out at those who share our fundamental values because they have not met the criteria of every single item on our progressive "checklist," then we are essentially preventing them from thinking in new ways about problems.  We are tying them up in a straightjacket and forcing them into a conversation only with the converted.

Beyond that, by applying such tests, we are hamstringing our ability to build a majority.  We won't be able to transform the country with such a polarized electorate.  Because the truth of the matter is this: Most of the issues this country faces are hard.  They require tough choices, and they require sacrifice.  The Bush Administration and the Republican Congress may have made the problems worse, but they won't go away after President Bush is gone.

Senator, the substantive question here is not hard and it will not go away after Bush is gone. This is the Constitution we are speaking of. Sometimes the answers are clear. This is one of those times. Politics must intrude on principle, there is no doubt about that. But let's not fudge the principle and the truth in the name of tone. That is bad politics, bad policy and just plain bad.

Your diary was written in response to reactions, mine among those, to votes in favor of John Roberts as Chief Justice. That dispute was political and substantive. But certainly there was much more gray on that issue. People of good faith could dispute the merits there. In my view, that is simply not the case here.

While the political calculus of how to resist President Bush's evisceration of our Constitutional system is open to many reasonable conclusions and courses of action - support impeachment, support censure, support something else - it is not open to the view that the President's actions can be reasonably viewed as acceptable.

Senator Obama argues that reasonable minds CAN disagree about President Bush's actions regarding his disregard for the law. Senator, they can not. There is no reasonable defense for President Bush's actions and arguments. It does you no credit to pretend that there is.