In what follows, I will briefly sketch why.

1.  The Court provides the following rule to govern the case: “Where, as here, the police did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment, warrantless entry to prevent the destruction of evidence is reasonable and thus allowed.” The alternative rule—the one that I think would be a more reasonable account of Fourth Amendment limitations on state power—is stated and rejected as “unreasonable”: “[A] rule that precludes the police from making a warrantless entry to prevent the destruction of evidence whenever their conduct causes the exigency would unreasonably shrink the reach of this well-established exception to the warrant requirement.” If the latter would “unreasonably shrink” an “exception,” already something of an odd construction, then what would count as a violation of the Court’s rule? (And to register the oddity of worrying about shrinking an exception, is not the burden usually on the “exception” to justify its reach, after all the rule is supposed to be the norm, and the exception the abnormal—or is the fact that the Court is worried about protecting the exception against “unreasonable” applications of the rule mean that the rule and exception are now really in an inverse relation?). How would the police ever engage in or threaten to engage in a violation of the Fourth Amendment under circumstances that would lead to a warrantless, forcible entry, especially during a narcotics investigation?

Let’s posit that warrantless, non-exigent, forcible entry after knocking and loudly proclaiming “police, police, police” would count as a violation of the Fourth Amendment. Let’s dispense with another possible scenario: if police failed to knock and announce, with or without a warrant, and forcibly entered, then there would also be a Fourth Amendment violation. But, this situation could not be a police-created exigency since there was no announcement of their presence through which they could be “engaging or threatening to engage” in lawless conduct. This conduct is simply kicking in a door, and therefore another clear Fourth Amendment violation. So knocking and announcing is a necessary condition for police created exigency. But once police presence is announced, especially in a drug case, are there any practical circumstances under the Court’s rule that will count as a Fourth Amendment violation? Is there any circumstance in which the police-created exigency (where exigency need be no more than police fear that “evidence” might be destroyed) will not count as an exigency justifying warrantless entry? The short answer is: No.

In the circumstances of this case, and under the criteria of no “actual or threatened violation of the Fourth Amendment,” six basic outcomes are possible after police knock and announce their presence (there may be variations on each of these 6, but not to such an extent as to undermine the basic point here): (1) the occupants are quiet as mice and the police simply go away (how long can the police stay outside the door, and how long must the occupants assume their mouse-like demeanor is unclear); (2) the occupants are quiet as mice, the police enter, and then say they heard something that led them to fear destruction of evidence (being quiet as mice is very difficult, after all); (3) the occupants make regular household noises, and the police enter claiming they heard something that could be construed as destruction of evidence (and regular noises might be quickly flushing the toilet because one has to exit the bathroom, where one as engaged in private, household activity to answer the door and would most certainly include the water-related noises the lady of the house might make when taking her “daily sauna and bath” as Justice Scalia described the paradigm of household privacy) (see this fantastic exchange with Bernard Harcourt on flushing); (4) the occupants make noises because they are busy draining and flushing their stash and the police enter to discover their worst fears realized. Under none of these circumstances is a warrantless, forcible entry not exigent. And, only under number (2) is there a “threat” to engage in warrantless conduct, but the “threat” or the “engaging in” is entirely subjective and unknowable by the occupants of the house. So far, then, no situation in which the police kick in the door counts as possible police behavior violating the Fourth Amendment under the majority’s rule. That is the case only if we ignore two more, rather implausible, options: (5) the occupants are quiet as mice, the police enter, and the police admit that they did so just for kicks, so to speak (that is, they admit to entering without any exigency and without a warrant); (6) after knocking and announcing, and “without a warrant or any legally sound basis for a warrantless entry, [the police] threaten that they will enter without permission unless admitted.” According to the opinion’s footnote 4, “[t]here is a strong argument to be made,” that the exigent circumstances rule should not apply here (though not a decisive argument). But (6) is an unavailing situation in light of the continuity, and near identity from the perspective of the police, of (2)-(4), especially given the squirrely language of “any legally sound basis for a warrantless entry,” which depends on the Court’s own construction of what might be a permissible basis—e.g., (2) and (3) being indistinguishable from (4). The police will be trained to make no such threats (and certainly not to admit to them if they did), and (5) is implausible on its face.

So, where does this breakdown leave us? Unless I’m missing something, here’s what follows in cases like this one: nothing will plausibly count as fulfilling the conditions for an unconstitutional forcible, warrantless entry under the Court’s rule governing police-created exigent circumstances.

This conclusion creates an odd logical space for a rule protecting Fourth Amendment privacy in the home. Unless, that is, the concern over “unreasonably shrink[ing] the reach of this well-established exception to the warrant requirement” is really about “reasonably” protecting the reach of an emerging rule that police must simply act reasonably, warrant or no. In which case, smelling the burning marijuana furnishes a basis at least for reasonable suspicion, giving police under footnote 4 a “legally sound basis for a warrantless entry,” so long as the Court construes the operative rule as requiring the police to act reasonably in the circumstances. But if nothing can count as violating the rule regarding police-created exigency, then the police may simply knock, announce, and enter. The exigency exception becomes its own rule of permissive police practice.  Stated in one more way, there will always be exigency justifying warrantless entry when police knock, announce, and fear destruction of evidence, and there are no circumstances in which persons can plausibly exercise their Fourth Amendment right to privacy. The “ample protection for the privacy rights that the Amendment protects” Justice Alito assures us exists turns out to have no content–a disappointing logical sleight of hand.

2.

What does this opinion do? Linda Greenhouse in the NY Times, wrote that “what the court held, in an opinion by Justice Samuel A. Alito Jr., is that warrantless entry to prevent the destruction of evidence is justified.” Orin Kerr disagrees, urging that “[t]he Court did not consider whether the warrantless entry was constitutional,” but merely “considered the right test for police-created exigent circumstances.” I would like to use a line from the Coen Brothers film, O’Brother, Where Art Thou?—“Well, I’m with you fellas.” I think both can be right. Kerr provides a correct description of the question the Court “considered,” while at the same time, there is good evidence to say the Court “decided” that the warrantless entry is justified. There are three bases in the text for this claim: (1) in stating the rule of the case at the beginning of section III.A, Justice Alito writes “[w]here, as here, the police did not create the exigency,”; and (2) after disclaiming at the beginning of section IV.A. the need to decide whether exigent circumstances existed in this case, the opinion concludes the section by describing the testimony of Officer Cobb and stating: “Given that this announcement was made after the exigency arose, it could not have created the exigency”–a statement that seems to affirm the existence of the exigency; (3) the Court states “we hold that the exigency justified the warrantless search of the apartment.” All that is left for the lower court to do is to turn the assumption that Officer Cobb’s testimony is sufficient for exigency into a decision that it is so—and the Supreme Court has in effect already decided that the exigency exists anyway. The Court mixes assumption with declaration in a way that makes it plausible to think that the Court considered the question of the right rule and also (essentially?) decided that the exigency exists in these cases. Given my analysis in Section 2, how could the “exigency” not exist in such cases? So the opinion both considers and decides the question of rule, and does not consider but likely decides the question of application.

3.

I could write a whole blog post about the problems of section III.D. As Linda Greenhouse notes, for example, when the police show up at your door, is it even remotely plausible to think “they do no more than any private citizen might do”? I suppose that if the point is that anyone at all “might” knock on your door, then the point is trivially true, but entirely irrelevant. But to get to my point directly, I want to point out the logical contradiction in the conclusion this Section makes. Justice Alito admits that “the occupant has no obligation to open the door or to speak.” It seems plausible to think that the absence of this obligation is based on the individual’s right to liberty and privacy—one cannot be forced to consent. But if that is so, then a person’s refusal to answer the door is equivalent to “stand[ing] on [her] constitutional rights.” Yet, the Court—rather unpleasantly I would add—claims of those who stand on their constitutional rights in this manner have “[chosen] not to stand on their constitutional rights.” This is a logical contradiction. Something cannot both be a choice to stand on a right and not be a choice to stand on a right. I don’t see any way around this. Moreover, and regarding the substance of the right, Justice Alito quotes a prior decision instructing that in consensual encounters a person “may go on his way” and need not even “listen to [police] questions at all” (much less be compelled to answer). If we generalize this as a right to “go about one’s business,” which may include any number of private activities in the home, then we have the problem generated under Section 2. A person’s decision to ignore the police and go about her business in the household creates the conditions for an exigency that belies her freedom to go about her business. So within the substance of the purported right, in light of the Court’s rule regarding exigency, the Court commits another logical contradiction. These are the formal logical problems with the opinion—and they are serious.

I lack the skill that my friend Scott Aiken has with informal fallacies (and if you haven’t seen his blog, The NonSequitur, I highly recommend it to you), but there are at least a few in this opinion. I will only gesture, as this post is long, and I am increasingly inclined to alter my summer writing plans to allow time to write another article on the Fourth Amendment. But, I count at least one straw man and two non-sequiturs in addition to another formal problem with the relation of contraries. One of the more disturbing non-sequiturs comes with the final sentence of this key section (III.D): “Occupants who choose not to stand on their constitutional rights but instead elect to attempt to destroy evidence have only themselves to blame for the warrantless exigent-circumstances search that may ensue.” This claim sounds inappropriately religious in its finger-wagging admonishment to the private citizen who “elects” to go about his business, but in so doing has only himself to “blame” for the police entry. Moreover, the rhetorical form “the person who elects X, has only himself to blame for consequences Y” is usually (often) used only when the conditions of “electing” X are illusory. At the very least, it is an odd and questionable rhetorical use of non-sequitur to employ in a Supreme Court decision.

As I suggested in my prior post on this case, and argue elsewhere, Fourth Amendment protections often depend on whether the Court focuses on privacy or on guiding police practice. But in either case, the life of the law requires both experience and logic.

What is even more interesting is the grammar of the sentence in which “privacy” appears. Notice that the reference is to “the privacy rights that the Amendment protects.” Justice Alito, as we have seen, does not tell us what those rights are “that the Amendment protects” (whatever they happen to be).  Indeed, his statement is consistent with “the privacy rights that the Amendment protects” being a null set. In that case, it is naturally quite easy for the opinion to be consistent with the “privacy rights that the Amendment protects.” It doesn’t protect any. Consistent with Justice Alito’s failure to mention the value of “privacy” in his more forceful dissent in Arizona v. Gant (where Justice Stevens, writing for a majority, balanced law enforcement needs against a robust understanding of the privacy rights at stake in favor of a rule that protected more privacy), one has the sense that at least some members of the Court think that if we don’t talk about privacy, it might cease to matter. After all, the concept is not explicitly mentioned in the text. Shhhh . . . .

“The situation reflects a larger cultural change in the relationship between students and colleges. The authority of educators has diminished, and students are increasingly thought of, by themselves and their colleges, as “clients” or “consumers.” When 18-year-olds are emboldened to see themselves in this manner, many look for ways to attain an educational credential effortlessly and comfortably. And they are catered to accordingly. The customer is always right.”

Yet, as the Chronicle reports, there are political forces agitating to entrench this losing practice further, seeking to empower the student, not the professor, in order to “make students the actual customers for higher education.”  They propose seven solutions without identifying a real problem in need of solution. Texas looks to be the next battleground to test this issue, but less ideologically driven voices have also called for changes in line with the so-called “customer’s” wishes. More focus on teaching, less emphasis on research, and superficial calls for reducing costs by ending tenure (as if tenured professors were the source of ballooning higher education costs rather than the recreation centers, the administrators, the counselors, etc.) are components of a new view of higher education—one that is deeply problematic. And, one that is at odds with giving serious consideration of the future of the social sciences and humanities.

Not only is the customer always right, under the changing context of higher education, but perhaps also the investor. Private foundations and public bodies are the usual sources of investment in institutions of higher education. Their goals in investing in such institutions are varied, but generally seek to educate students for civic, social, and economic participation, to advance human knowledge and understanding, and to further economic development through the production of knowledge.  Such goals are usually stated at higher levels of abstraction, leaving to the institutions and their faculties to sort out the details. As the Saint Petersburg Times reported, the Charles G. Koch Charitable Foundation has become involved not simply with financing research or teaching, but with choosing faculty members at Florida State University.

First, regarding consumerism, I have always been puzzled at the use of this concept in higher education, even as I have been much aware of its growing use. A consumer consumes to fulfill some desire (whether arising “autonomously” or through marketing manipulation), produces waste product, and returns again to the market to sate the next need. The consumer economy requires repeated repetition of this behavioral pattern. But what is it that the university student “consumes”? Knowledge is a potentially obvious answer. But knowledge does not produce any clear waste, nor does it require repetition. A student who has mastered Organic Chemistry need not repeat the course over and over again, unlike the consumer in search of another Big Mac or a new pair of Nikes. Consumption has the quality of disposability and the life of contingent attachment. We need not be attached to our choices for we can always return to the market for more or for something different. But education is not quite like this. We are not contingently attached to the knowledge, understanding, insights, capacities for judgment, and skills we attain through education. They become part of who we are; they are not items to be discarded when we receive marketing for the next new, new thing. To be sure, education can fill a lifetime, and is the sort of thing to which we can return again and again, but the aim is accretive to what has come before. A liberal arts education prepares us for citizenship, makes us ready to think about the world in which we live and to make critically informed choices about the shape of our lives in that shared world. Higher education requires scholars and experts to whom we defer even as we engage in the cooperative enterprise of research. Knowledge that something is the case is stagnant without the interaction that leads to knowing how to place facts and beliefs into analytic relations with other facts and beliefs. In higher education, we are participants, not passive recipients. I am not surprised that the features of consumption as passive economic practice would serve students poorly as educational practice.

But the customer is right model has taken hold and seems not at all separate from a world in which the private investor begins to dictate more aspects of higher education. Why would the Koch foundation wish to be involved with the process of faculty hiring? Presumably, the foundation wishes to exercise some power over the decision and its consequences. Not content to contribute to the autonomous growth of an economics education at FSU, they wish to direct the character and content of that education. When wealthy and powerful donors get this kind of say in the hiring of faculty, they are able to manipulate who gets to participate in the marketplace of ideas. This is market manipulation of the top-down heavy-handed kind—the kind that if a government agency were the principal would lead to cries of anti-market behavior. Oh the irony. But it is also inconsistent with a free-market view that truth will emerge from the clash of ideas through scholarly exchange. As constitutional law students know well, this idea is also embedded in our First Amendment jurisprudence by way of Justice Holmes’ memorable dissent. Of course, in science research, money influences outcomes—the choice of research agendas, topics, etc. There is nothing pure about science research. But, this new development does more than influence selection of research programs, it comes closer to buying a research program, personnel, and presumably scholarly product—the kind of thing you might get from privately funded “think tanks,” but not what is expected of universities devoted to academic freedom in the pursuit of knowledge and understanding. The autonomy of academic pursuits is threatened even more by the combined demands of the “customer” and the private “investor” who must expect measurable returns on the investment (particular viewpoints and specific teaching outputs).

Between the customer and the investor, the intrinsic values fostered by institutions of higher education—both research and teaching—seem increasingly underserved by concepts that function as more than mere metaphors of market economy. One way of stating the problem is to modify slightly a warning then-Judge Cardozo offered:  “Metaphors in [education] are to be narrowly watched, for starting as devices to liberate thought, they end often by enslaving it.”

Professors Bruce Ackerman and Yochai Benkler published an open letter in the New York Review of Books with signatures from many law professors (including the present writer), calling for the administration to justify publicly the precise grounds for Private Manning’s extraordinary conditions of detention (which include forced nudity, regular sleep disruption, and solitary confinement) and to end any procedures not justified. In so doing, they remind President Obama that he “was once a professor of constitutional law, and entered the national stage as an eloquent moral leader. The question now, however, is whether his conduct as commander in chief meets fundamental standards of decency.” The question sets up the opposition between what every law professor knows and what President Obama, the former professor, does. The assumption is that President Obama views the initial claim—innocent until proven guilty—as unproblematic. There is another sentence in his claim that no one else has discussed that provides an interesting clue about the viability of this assumption. President Obama also said “We don’t let individuals make their own decisions about how the laws operate.” Who is the “we” who has power to “let” or not, and who are the individuals whom “we” do not “let” make their own decisions about laws?

As a straightforward matter, Obama’s claim is a complete mystery. As all law professors know, individuals in various official capacities make their own decisions about “how the laws operate” all the time. Think here of John Yoo and his infamous “torture memo.” He made a decision, with the help of Jay Bybee and others, about “how the laws operate” to allow the President authority to torture detainees, despite the presence of a statute forbidding the practice, as well as a treaty or two. President Obama must make a number of decisions about “how the laws operate” in his treatment of Private Manning. But President Obama is part of the “we.” Putting aside the unpleasant possibility that Obama meant the “royal we,” perhaps he meant only to make a distinction between citizens and officials. Citizens obey what officials instruct as “how the laws operate.” “We” officials do not let “you” individual citizens make decisions about how the laws operate. But, this can’t be right, can it? Citizens do not merely obey the laws, but also participate in their formation and interpretation. Citizens consent to law formation and legal practices that give meaning to their “own decisions about how the laws operate.” They make claims on their representatives to fashion policies based on their views of how the laws do, and should, operate. But, Private Manning is simply one citizen, not a citizen group, not a voting aggregate, and certainly not “We the People.” So perhaps “we” do not let any specific non-official individual make his or her “own decisions about how the laws operate.” Except for when we do. Daniel Ellsberg, whose actions in releasing the Pentagon Papers parallel Private Manning’s alleged actions, has spoken out on behalf of the recent disclosures. He made his own, individual, decision for the good of the polity. Countless individuals in the civil rights movement did the same. But times are different. We all know this. “We” executive officials have greater power and citizens more diffuse participatory prospects. “We” officials claim the power to “let” (or not “let”) citizens have a say in “how the law operates.” Thus, “we” officials get to decide on matters of guilt or innocence or any other principle of law as “they” see fit. “We don’t let” the community—much less the community of law professors—make shared decisions about how the law operates. If this is what President Obama meant, then it is a troubling assertion indeed.

Yet, there is one remaining meaning to President Obama’s assertion. Perhaps “we” refers to the American people. “We [the People] don’t let individual[] [officials] make their own decisions about how the laws operate.” In a twist of irony, the law professor in President Obama may have the right assertion—vibrant democracy requires sunlight so that individual officials do not get to make their own, private decisions about how our public laws operate—tethered to the wrong object. The problem is not the disclosure Private Manning allegedly made, but rather the failure to acknowledge the full meaning of the other sentence in Obama’s claim—“We’re a nation of laws.” Indeed. And “we” the American people need to know what the individual officials are doing to uphold all our laws. The law professor Obama knows this.  Since Private Manning is now being moved to a different facility with prospects for better conditions, we can only hope that the law professors led by Ackerman and Benkler have successfully reminded President Obama of some principles the law professor Obama already knows.

That a supposedly local economic activity would be beyond the reach of congress is an issue that was settled in Wickard v. Filburn, and reaffirmed more recently in the California medical marijuana case, Raich. South Carolina is clearly wasting its time, but why? One reason may be that the State fosters political attitudes resistant to federal power that remain substantially unchanged since pre-Reconstruction times. The opportunities to resist may be truncated, but the attitudes are unreconstructed. South Carolina legislators are also entertaining the idea of printing their own precious metals-backed currency. Such notions sustain a fantasy of state independence from long established national monetary policy.

A second reason may have to do with localized anxiety about national events. Americans are experiencing a fragile recovery from a deep recession that might have been much worse but for federal efforts (so the dire scenario that might have been remains imperceptible—how can we perceive what did not occur?). Yet the situation remains fragile, with many Americans only partially recognizing how vulnerable their local affairs (housing prices, availability of credit, jobs, wages, public finances, etc.) are to national trends and forces. Thus, if a state’s general welfare were diminished because of national policies and trends, then perhaps it would be better off on its own? The problem with this line of reasoning is that states like South Carolina rely heavily on the national coffer to satisfy its general welfare. Take, for example, funding for the state flagship university—University of South Carolina (full disclosure—I teach here). The university receives less in state appropriations than it does in federal grants and contracts (see my prior post about this here). It would not be implausible to call the institution the Federal University of South Carolina (that has a nice ring, actually). It remains a mystery how South Carolina would be better off on its own.

A third reason may be more about local politics. Individual legislators think that they will gain votes and attention by peddling such proposals. Given the localized anxiety about difficult to understand national policies and practices, it may be easier for many voters to think smaller and closer to home. I think there is much to this, but it only underscores a larger democratic issue: how do diffuse citizens, seeking to direct democratic policies at both the state and the federal level in light of national economic forces that remain opaque, allocate their attention and their expectations? Thinking locally is one way, but a way that ignores the real issues. We find ourselves back in the land of fantasy that the first reason supports.

Despite my failure to discern good justifications for the political attitudes behind South Carolina’s rather dim view of federal power, the attitudes persist nonetheless. I have my own inchoate anxiety too. This anxiety is that constitutional form and practice may be beginning to shift in ways that I fail to perceive how and why. I think much hinges on the outcome of the health care mandate issue, about which the Supreme Court is still considering hearing before appeal. A recession, a national emergency, a growing debt are all terrible things to waste for those who need occasions to push for constitutional change. And, by the way, I comment on this while being rather partial to the aesthetics of the incandescent bulb, especially by comparison to fluorescent bulbs, but not partial enough to urge reconsidering settled constitutional law.

Holder also stated that Congress had “taken one of the nation’s most tested counterterrorism tools off the table and tied our hands in a way that could have serious ramifications.” One aspect of this on-going mess is how checks and balances have worked in surprising ways.

An executive branch chastened by the Supreme Court into seeking congressional approval for Military Commissions not only obtained stronger constitutional support for newly constituted Commissions, but has now been forced by Congress into utilizing them, if—and this is a big if—the executive branch wishes to enforce laws violated by the detained individuals (as opposed to detaining them indefinitely). The President’s power has been limited, but not in a way that channels it into ordinary governing form. Rather than rely on Article III courts as the default, the President must now utilize Military Commissions in ways that interfere with prosecutorial discretion. The irony here is that the end result—military trials—is an outcome favored by Dick Cheney and other presidential unilateralists achieved by a means—tying the AG’s hands—restrictive of presidential power that they ordinarily contest. Such a result may make little practical difference regarding the substance of policy to future Cheney-inspired executive officials. But for the present Attorney General this is an extraordinary situation. He must proceed with a legal course of action that he thinks is decidedly inferior (untested venue, unresolved evidentiary issues, undesirable signals internationally, etc.) where a better course should be available (tested, resolved, and legitimate Article III courts).

Beyond overarching rule of law criticisms of Military Commissions, what is unfortunate about this result is that the executive branch has lurched from one kind of disavowal of responsibility for the legal culture it creates to another. In the first disavowal, the executive seemed to say that because of the nature of terrorist threats and crimes there was no other suitable venue for detention and trial (despite the use of alternatives for both). Circumstances compelled an executive policy despite the wider legal ramifications that might encourage more reason and reflection in choosing and designing a military commission. The mess exists in part because of ad hoc policy rather than comprehensive planning. In the new disavowal, the executive claims institutional limitations have now compelled its prosecutorial “choice.” In neither case do we have the combination of robust reasons for “choosing” and designing an institutional framework and articulation of how this fits within broader constitutional vision. In both cases, presidential responsibility for the current mess is deflected by necessity or institutional barriers. In the meantime, the multi-track detention and trial system continues to be more ad hoc than rationally designed. It is “a mess.”

Another institutional surprise arises from the Supreme Court’s continuing silence in the wake of its decision inBoumediene. Having asserted jurisdiction over Guantanamo, required minimal due process for detainees, encouraged congressional involvement, and assured access to federal courts, the Supreme Court has offered no further guidance, recently rejecting three more petitions. Perhaps the Court views the institutional balance between Congressional authorization, executive practice, and D.C. Circuit review as sufficient. But silence does leave unanswered important questions about evidentiary standards, the role of international law, and release orders, unanswered at least by the Supreme Court. Linda Greenhouse suggests that the new silence may be caused by “Gitmo Fatigue.” There is undeniably some of that to go around, even for the White House and the Attorney General. But in the meantime, we are stuck with the “mess,” fatigued or not, and the one institution that served as a check against the executive, and a catalyst for the present encroachment by Congress, has stayed its hand from further involvement. This does come as something of another institutional surprise.

A final institutional upshot was suggested, if I understood it correctly, by a NY Times Op-Ed that compared Nuremberg to the potential KSM trial. This upshot could be characterized by the public meaning for “We the People” a trial might foster. A trial could produce a public narrative that can be “essential in creating memory and senses of responsibility,” as the Op-Ed suggests.  Such a consequence could be important to creating meaning through legal process for the national community, the kind of celebration of our governing institutions to which Holder avers.  Contrary to such optimism, it seems more likely that the moment of narrative creation has passed us by. Beyond the fact that Nuremberg was also a military trial, the comparison breaks down immediately. The “narrative” a KSM trial will provide will teach us little about the nature and methods of criminality conducted by the defendant. It will not help sustain the memory of the victims or the memory of the institutional failures that led to crimes of staggering dimensions, as Nuremberg did. Nor will it create broader “senses of responsibility” in a community that aided in the perpetration of mass atrocity, as Nuremberg might have done. Instead, if it teaches anything, it may teach us more about the fragility of how governing form relates to function. We have struggled with institutional design, appropriate policy, and actual practice, along the way moving from unilateral executive claims to congressional encroachment and Supreme Court silence. Without comprehensive planning, I don’t see how the public narrative can remain anything more than “a mess” of ad hoc policy design and institutional interventions.  Thus, President Obama’s description seems fated to remain true.

Contrast the following two statements from Justice Alito’s opinion in:

(1) “ During the 1788 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia,” motivated Federalists and Anti-Federalists alike to believe that “the right to bear arms was fundamental to the newly formed system of government.” (slip op. 21).

(2) “By the 1850’s, the perceived threat that had prompted the inclusion of the Second Amendment in the Bill of Rights—the fear that the National Government would disarm the universal militia—had largely faded as a popular concern, but the right to keep and bear arms was highly valued for purposes of self-defense.” (slip op. 22).

How do we move from the first rationale to the second? The answer requires us to examine Justice Alito’s living constitutionalism.

Colonial Americans, lacking a unified continental government, identified first as citizens of a state. They hesitated at the possibility that a federal government may have too much power, and sought to preserve through the Second Amendment the “security of a free State” even while giving up independent claims to state sovereignty. One way of accomplishing this end—the security of a free state—was to preserve the right to keep and bear arms. Translated into the modern idiom of an individual right, this first rationale partakes of the dubious claim that the right to keep and bear arms is a fundamental individual right incident to a personal right to check federal power with violence. Once the role of the State militia drops out of the articulation of the right, the first rationale gets rearticulated as this individual right to potential political violence.

The first rationale is clearly unacceptable to contemporary constitutional practice. How does Alito derive the second rationale? The purpose of “self-defense”—if the “self” is understood as an individual person rather than the state speaking as a “self”—evolves out of the dissipation of the first rationale. Given full voice in Justice Scalia’s opinion in Heller, we find that the core right, far from preserving the security of a free state (something the modern police presumably provide), has evolved into a right to use arms for “self-defense and hunting,” or as Justice Alito paraphrases: “the Second Amendment protects a personal right to keep and bear arms for lawful purposes, most notably for self-defense within the home.” (slip op. 33).  We are not offered a story of how the move from (1) to (2) gets made, other than the suggestion in Heller that (2) is every bit as important as (1), despite the lack of textual evidence (“security of a free state,” plus “militias” plus a “right of the people” does not readily add up to a right to own guns for personal use in a private home for protection against armed criminals). The purposes within (2) were all already available to the individual who practiced (1). Once (1) “faded as a popular concern,” (2) became a constitutional remainder. The process of the fading away of one purpose and the subsequent foregrounding of another looks like a process of emerging constitutional meaning over time.

To show the form of Justice Alito’s argument, let’s examine a parallel evolution in constitutional meaning. Let us posit that the original purpose of the Eighth Amendment was to protect individuals against particularly cruel forms of punishment involving physical torture and disfigurement. Over time, we recognized that there was no need to fear such abuses, just as we came to recognize that there was no need to fear tyranny where “the federal government would disarm the people in order to impose rule through a standing army.” (slip op. 21). But as the need to protect against such forms of punishment faded as a popular concern—because there was no longer any fear of such punishments—the right against cruel punishment was highly valued for purposes of prohibiting the death penalty (just as the right to bear arms became highly valued for self-defense). This Eighth Amendment story presents a similar evolving rationale to the one identified regarding guns, similarly recognizing that core concerns of the late Eighteenth Century may decline and others take their place, even within the framework of a single constitutional provision. Just as the “security of a free state” dropped entirely out of the modern Second Amendment analysis in favor of the newly prominent right to self-defense (and hunting), the worry over official imposition of punishment by physical torture declined in favor of a new understanding of the cruelty of state imposed death. Put aside the empirical question of whether in fact we have sufficient consensus on the cruelty of the death penalty, because that issue is irrelevant to the form of constitutional analysis (moreover, given the 5-4 Supreme Court alignment concerning guns, there is good reason to think that there is a weak consensus here too). What matters is that the Court explicitly reasons on the basis of an evolved rationale—one maximally responsive to a modern social movement heralding a reconstructed notion of self-defense in the home. One wants to ask: self-protection against what—wild animals, armed attack against hostile native populations, or the modern armed robber against whom the state employees the modern police force (the latter of which did not develop until after the first quarter of the Nineteenth Century)? If the answer is crime (which it has to be), then notice too that the history of gun crime fear is a Twentieth Century development, not an Eighteenth Century concern.

In order to give effect to this living Second Amendment, the Court developed a hybrid incorporation methodology. The question became in part a substantive due process question of whether the right to home ownership of guns is “deeply rooted in this Nation’s history and traditions,” (Glucksberg) and in part an incorporation of question of “whether the right to keep and bear arms is fundamental to our scheme of ordered liberty” (slip op. 19, emphasis in original). Notice that the answer to either of these questions is inter-temporal. We cannot establish a tradition or a history in a moment of ratification. A moment of ratification of the Bill or Rights or the Fourteenth Amendment establishes the possibility of a constitutional tradition and history. This may develop and evolve or it may not. Where, for example, is our robust Third Amendment tradition? Traditions take time to develop, and their substantive content only emerges over time through social practice and participant engagement, always remaining vulnerable to further evolution. Thus, the ownership of guns, in its modern form—divorced from the necessity of killing game for food, or defending against wild animals, or protecting homesteads against hostile populations—may form part of a tradition, but it is one that has developed over time to take root in the Nation’s history. Moreover, the incorporation question of whether bearing arms if fundamental to our scheme of ordered liberty such that states must respect the right is once again a question about how our social practices have developed. These are likewise contingent and subject to change. We cannot say whether something is fundamental without examining our actual social practices, such as the need to protect newly freedmen from being disarmed by former rebels, or the desire to possess handguns in the home to protect against armed robbers. To ask the question in the way that Justice Alito does, means that it was possible that we might discover that gun ownership had not remained all that important to many Americans, and that therefore it was not so fundamental after all. Thus, the two methodological questions merged into a hybrid incorporation methodology both rely on conceptions of tradition and social practice that are intrinsically part of living constitutionalism.

My purpose in this post is not to contest the ultimate basic conclusion in McDonald—that there is an individual right to gun ownership in the home that can be applied to the states. Rather, I contest any pretense that this conclusion is obtained by anything other than a method of living constitutionalism. For the latter, I applaud the Court’s effort.

I wonder how much Senator Byrd’s achievements on behalf of West Virginia serve as a partial response to Sanford Levinson’s provocative and powerful argument that the Senate is a anti-democratic body whose time is passed. For all the bridges to nowhere powerful Senators have funded for their states, and from which their Governors have benefited, the Senate, which begins as an institution tethered to preserving the interests of their state legislatures, becomes in part an institution committed not only to locality but to the very idea of one nation indivisible. No doubt, as Levinson drives home, there is something deeply undemocratic about the Senate’s maldistribution of voter representation where California’s 36 million (who receive $0.79 on the dollar) get the same representation in the Senate as North Dakota’s 650,000 (who receive $1.73) or Alabam’s 4.7 million (who receive $1.71). The proof will be in the details, but it may be that the skewed distribution of democratic representation, may make possible a beneficial redistribution of wealth and resources that makes possible a more cohesive national unity. The Senate helps make relevant to Californians what happens in West Virginia or South Carolina. If any of this is plausible, then one irony is that the Senate does more to undermine the idea of “states rights” or “states autonomy” than it does to promote it, by demonstrating the political and practical interdependence of each state on the others. We tolerate the redistribution of wealth, aided greatly by the Senate’s equal representation of states who have less to offer the national body, because it is untenable that some have so much while others have so little. Senator Byrd undoubtedly improved the lives of West Virginians through his commitment to the practice of redistribution. And for this, we all benefit.

Writing in the L.A. Times, Bruce Ackerman proposes creating a presidential commission on civil-military relations tasked with formulating a new canon of military ethics to clarify principles of constitutional governance in the modern world, and writes about these issues in his forthcoming book. Given the enormous amount of national resources the military consumes, and given the ability of policy to follow resources, the militarization of our politics risks distorting the order of priority in constitutional governance. Do military officers exist to serve civilian leaders and national policy, or do civilian leaders and national policy exist to serve military interests? The answer should be clear, but the more military officers become active in everyday politics—and I take McChrystal and his staff to be openly doing just that in its most bare-knuckled form—the more we risk inverting the proper answer. I would not be the first to observe that the rationality of war has a way of organizing the rationality of everyday political practice. Military interests all too easily can become the interests of all political policy. Civilian control of the military, however, at least guarantees that such rationality will be employed by politically accountable actors, making possible alternative ways of organizing our collective political life. General McChrystal’s actions, and those of his aides, challenged these settled constitutional governing principles. It is therefore good for the nation that McChrystal resigned today—but this is not enough.  I think it is important to implement something like Ackerman’s proposal to avoid relying on faith that McChrystal’s case is sui generis and does not reflect growing  attitudes and  tendencies within the military that might further distort the rationality of our politics and the integrity of our constitutional system.

Update after the break.

Alice Ristroph comments that the whole affair reminds her (again!) of Dr. Strangelove.  (If you have not seen her fantastic essay, Professors Strangelove, I highly recommend having a read).  From the film:

Ripper: Mandrake, do you recall what Clemenceau once said about war?

Mandrake: No, I don’t think I do, sir, no.

Ripper: He said war was too important to be left to the generals. When he said that, 50 years ago, he might have been right. But today, war is too important to be left to politicians. They have neither the time, the training, nor the inclination for strategic thought. I can no longer sit back and allow Communist infiltration, Communist indoctrination, Communist subversion and the international Communist conspiracy to sap and impurify all of our precious bodily fluids.

Alice also reminds us that a similar dialogue occurs in A Few Good Men, where Jack Nicholson’s Colonel Jessep repeats many of the same themes as Ripper. “I have neither the time nor the inclination to explain myself to a man who rises and sleeps under the blanket of the very freedom I provide, then questions the manner in which I provide it.”

Although General McCrystal’s comments do not rise to either of these rhetorical levels, I do think that the attitude behind his actions is not very far at all from the fictional representations.

Dawn Johnsen, President Obama’s pick to lead the OLC, was compelled to withdraw because the Senate refused to act on her nomination. She writes a compelling case today in the Washington Post for filling that post soon. She, with others (including the current acting Assistant Attorney General, David Barron), advocate returning the office to its independent role in providing accurate legal analysis for the executive branch. With others, she has articulated a statement of the key principles necessary for restoring the independence and integrity of the OLC. If we cannot have more robust institutional reform of the kind Bruce Ackerman suggests—a Senate confirmable executive tribunal whose members serve as independent judges for the executive branch—we can at least have a fully functioning independent institution as Johnsen argues. Without reform that begins with leadership of the kind Johnsen would have provided, we are left vulnerable to the next unenlightened official to staff the institution.

Similar reasoning seems to be at stake in the present financial crisis. In nearly as direct a catch-phrase, we are warned that leaving financial obligations untouched as they are would be an economic “suicide pact,” leading to unpredictable, though likely dire, consequences for the country as a whole. (Bernanke: action is “urgently required to stabilize the situation and avert what otherwise could be very serious consequences for our financial markets and our economy.”) In times of threat to the overall security of the economy, background beliefs in individual economic decisions and legal obligations (more or less, some version of laissez faire capitalism) should not be deployed to constrain the necessary actions of executive officials. Why? Because structural security of the economy is a necessary condition for the good of us all. Thus, when economic times are particularly tough, we should empower executive officials to act as necessary to protect economic security.

Both of these rationales depend on a form of transcendental argument: the necessary condition for the possibility of X (enjoying liberty), is Y (the provision for security). My central question is: Can We Think Transcendentally about Something Other Than Security?

I do not question the rationality of relying on transcendental argument in these situations. Of course, there can be no civil liberties without security (but, naturally, there cannot be a whole lot of other things either). Likewise, naturally, there can be no individual economic prosperity without a sound economic system. So because national and economic security are necessary conditions for the enjoyment of other aspects of everyday life (economic and civil), their protection, in an important respect, gets priority. How that priority gets realized—whether, for example, particular civil liberties must have diminished protection—has to be worked out in all the intricate details of the particular circumstances of particular security threats.

My question is not with the calibration of the details, but with the limited occasions we have for deploying transcendental arguments in the first place. Why do we use them (and give them credit) only in the context of threats to security? There are many other potential uses of the transcendental argument for public policy. Educational opportunities, healthcare, minimum wages, adequate housing—to name a few features of everyday life—are also necessary conditions on which the good of all depends, I would argue. Without adequate provision for and distribution of these goods, we fail to provide the necessary conditions for individuals to pursue happiness or to realize the blessings of liberty. Liberty may not be worthwhile if one has joined a “suicide pact” (as the national security argument suggests), but neither is it worth so very much if one has been forced into a different kind of “suicide pact” for want of proper access to health care.

As a rhetorical matter, one reason transcendental arguments work well with security is that they are bolstered by fear. We fear the unknown consequences of not taking adequate precautionary action to protect the necessary condition and avoid the predicted dire consequences. If we don’t give up some of our liberties, we are told, we may suffer a “mushroom cloud” over an American city. It is a lot more difficult to motivate through fear the necessity of providing adequate educational opportunities (Fear of what? Long term social destabilization and democratic failure? These are considerations that are too abstract and long-term to serve as effective motivations.).

As a substantive matter, necessity seems less acute for other social goods. No dramatic events like terrorist attacks or market crashes mark the failure to provide for education and healthcare as they do for security. The effects of ignoring necessary social conditions are cumulative and too often invisible. Cumulative and dispersed as they may be, goods necessary for the enjoyment of everyday life are nonetheless necessary. Thus, both security and social goods can set conditions under which the enjoyment of everyday life and liberty becomes possible. To say this is not to establish whether government has the obligation to protect or provide for these other conditions in the way government is assumed to have the obligation to provide for security (I happen to think government does). I do wish to suggest, however, that as we contemplate acting on the basis of a transcendental argument to allocate resources on behalf of economic security, we might begin to think anew about whether we should act on other transcendental arguments to allocate resources in support of equally important social conditions necessary for the public good.

Tom Walsh has identified a key issue relating to democratic participation in light of police tactics at public gatherings: must individuals choose between facing arrest, or participating in (or reporting on) democratic interaction only from a distance? At political events—where public discussion and dissent might occur—government authorities have increasingly insisted on distance, in the name of order and property protection. Distance is a concept at home with the rhetoric of “out of touch” employed by both presidential candidates. A conundrum emerges, so it seems. “Out of touch” suggests that a candidate has not interacted with ordinary people closely enough to understand the issues and problems they face. Yet, when the people try to approach, to close the distance in an unscripted, more immediate personal encounter, they risk arrest and riot charges. No doubt, when public encounters are used to disrupt legitimate democratic participation by others, the need for public order prevails. Order, however, is how authorities justify maintaining democratic distance. When the public is prevented from drawing near on the grounds that officials wish to avoid “verbal tumult, discord, and even offensive utterance,” as Justice Harlan puts it in Cohen v. California, being advised that one can participate in democracy only at a distance, is a sign of democratic weakness, not strength (to invert Justice Harlan’s formula—“That the air may at times seem filled with verbal cacophony is, in this sense not a sign of weakness but of strength”). In light of the demand for distance, I think governing officials need reminding that sometimes democracy’s a riot, and that’s a good thing.

These revitalized voters are reported to be religiously-motivated voters, more specific than the general “values-voter.” (Is it even possible to be a “non-values voter”? After all, voting is always about values, the only questions are whose values and which ones). What do they expect from Gov. Palin, and what do they see in her? What conception of church-state relations does she have? How might her specific religious beliefs inform her worldview as a Vice President or President? Tracing her roots in the charismatic beliefs of the Assemblies of God Church, and her comments this summer to the Wasilla Assembly of God Church, I offer some reflections.

In her recorded talk to the Wasilla Assembly of God Church, she leaves no doubt that the Church has continuing importance to her, telling the Master’s Commission graduates to whom she is speaking, that as Governor she is “where God has sent me from underneath the umbrella of this Church.” She also articulates a view of religion’s role in ordinary politics. She wants to build a natural gas pipeline. This is a matter of ordinary political policy about which there may be differing views based on economic, social, environmental, or other public concerns. Gov. Palin adds that “God’s will has to be done in unifying people and companies to get that gasline built . . . so pray for that.” I take this to be an expression that her policy preferences are God’s policy preferences. Other versions of the relation between policy and prayer would approach the issue with more humility: this is my best judgment of what would be the right policy for the people of Alaska, and let’s pray that I have the wisdom to make the right choice, and that God will bless Alaska. This version does not equate ex ante a specific policy preference with God’s will. Gov. Palin’s version does.

In the same speech, Gov. Palin continues by claiming that “I can do my job” to develop Alaska’s natural resources, to get roads paved, to provide guns for state police, and to fund public schools, as she explains. But, “all of that stuff doesn’t do any good if the people of Alaska’s heart isn’t right with God” [sic]. Already, this statement reveals a distinctive view about the relation between government policy and specific religious practice (one in which it is necessary to have one’s heart right with God). She continues: “That’s gonna be your job. As I’m doing my job—let’s strike this deal—your job is gonna be to be out there reaching the people, hurting people throughout Alaska, and we can work together to make sure God’s will be done here.” Putting the two thoughts together, Gov. Palin—as a sitting Governor—is suggesting that successful governance doesn’t matter unless government works together with active religious practitioners to ensure that God’s will is done. She does not ask her audience to go out into their communities and volunteer to provide services for the needy, or to work on developing creative ways government might better serve the people. She asks them to attend to the people’s hearts, and she’ll take care of the rest (fulfill God’s will). Moreover, it would seem that for Gov. Palin prayer and active religious activity of “reaching the people” are necessary conditions for successful governance. She and Assemblies of God believers can work together to impose God’s will on Alaska. By way of contrast, remember John F. Kennedy’s speech on religion where he states, “I believe in an America . . . where no religious body seeks to impose its will directly or indirectly upon the general populace or the public acts of its officials.” I hear Gov. Palin speaking in direct conflict with President Kennedy.

What motivates such a vision of the relations between governing and religious belief? I think some motivation must derive from the Assemblies of God (“AG”) belief in speaking in tongues. Although she has not stated whether she participated in the practice, speaking in tongues is a fundamental AG practice, and by growing up in and attending the church until just a few years ago, she would no doubt have regularly experienced services in which individuals spoke in tongues. What follows is a brief account of the practice. The AG believe that after Jesus rose from the dead and ascended into heaven, he sent the Holy Spirit to comfort his church. They believe that the Holy Spirit is manifest through the speaking in tongues. The first example of this is in the Book of Acts 2:1-4 on the day of Pentecost (thus the Assemblies of God are “Pentecostals”). The passage states that, “[a]ll of them were filled with the Holy Spirit and began to speak in other languages [tongues], as the Spirit gave them ability.” (New Revised Standard Version). On the basis of this miracle and other Pauline exhortations, the practice of speaking in tongues through baptism in the spirit is central to the AG. Baptism in the spirit manifests one’s obedience to God and one’s availability to serve as a vessel for God’s will. The fact that one speaks “in tongues” is a manifestation of the absence of conscious control over the voice of God who speaks through the sounds or “language” of tongues; the speaker, however, will not understand the content of what God says. Every person can be baptized in the spirit, but only some persons have the gift from God that allow them to address a congregation in tongues, requiring someone else gifted as an “interpreter” to deliver the message of the Spirit.

If every member of the church can speak in tongues, and if speaking in tongues is the ultimate manifestation of one’s belief in Christ and one’s salvation (another key AG belief), then it seems to follow that the ultimate manifestation of one’s relation to God is to become a vessel for God’s will. In fulfilling God’s will, one makes oneself available to God, giving up conscious control even of one’s own voice in order to allow the Spirit to direct one’s life. Applied to governing, it seems that under this view, one would want to become the vehicle for fulfilling God’s will on earth. One need have no agency over the process of governing itself. By way of obedience to God, one relies on content-independent reasons for action because one is simply obeying God, not conducting an independent inquiry into what the right action would be. Here’s where governing from the gut must appeal to many, when “the gut” is a euphemism for God’s will. One does not need to rely on content-dependent reasons for policies if one is fulfilling God’s will. Greater certainty can attend one’s decisions if they are manifestations of God’s will or God’s plans. Such a view is manifest in another of Gov. Palin’s remarks, this one later spun to Charles Gibson as inspired by Lincoln. Gov. Palin asked the AG audience to pray, “[a]lso for this country, that our leaders, our national leaders, are sending them out on a task that is from God. That’s what we have to make sure that we’re praying for — that there is a plan, and that plan is God’s plan.” The plan is not the people’s plan for which it might be thought desirable by some to have God’s post hoc blessing (and perhaps God’s process-wisdom and guidance in having devised the plan in the first place); rather it is God’s plan, God’s task, for which our national leaders and soldiers are the vehicles. This religious worldview is a long way from the more traditional invocation of God’s blessings or guidance in human decisions, or President Kennedy’s claim that there be no imposition by a religious body (or God?) on official actions.

From this one video, we have only a small sample from which to draw conclusions about Gov. Palin’s views on the relation between government and religion. Yet, her views appear to be remarkably consistent with what one might expect from an Assemblies of God political theory (has anyone ever developed such a theory?). The primary goals are to render people’s hearts “right with God,” and to use the institutions of State as vessels for manifesting God’s will (like using oneself as a vessel for God’s will). They are also remarkably consistent with a view that distrusts and despises government as (spiritually) corrupt. If the modern Republican Party is partially based on the fundamental idea that government corrupts the freedom of private markets, some religiously-motivated voters see government as often a barrier to fulfilling God’s will (notice how God’s will in Alaska is market-friendly). If one can get rid of many governing decision-making processes (which are supposed to be market inefficient anyway), and provide a more immediate way of manifesting God’s will (through prayer), then all the better. Who needs knowledge-based, content-dependent reasons – especially when the process of governing by and for the people is thought to be one of the very problems in the first place?

It is clear that she follows the current administration in opposition to President Kennedy, who “believe[d] in an America where the separation of church and state is absolute.” Beyond this clear fact, there is a pressing question: in whose tongue(s) would Gov. Palin speak? Would she speak with the voice of the people, or with the purported voice of God? What role would own her voice play in the process of governing?

These pictures from the NY Times tell the story: a “free speech” cage constructed for “free speech,” a convention location completely fenced for security, riot-gear police controlling public space. These kinds of “free speech” tactics have become a staple at President Bush’s venues, rendering dissent invisible, and were used at convention sites in 2004, surviving judicial challenges. Timothy Zick has written about this problem here at CoOp in posts like this one, and I have written about this issue here. There is something discordant in the idea of free speech located in a guarded cage. There is also something discordant about a public sphere ringed by riot police. Yet, there is also something that has become increasingly ineffectual about politics in public – at least spontaneous public politics.

Hannah Arendt, for one, proclaimed the central importance of public speech and the public appearance of persons who could engage each other in discourse over public matters. Without the place of public appearances, she argued, we lose something central to both politics and personal identity. I think she was right about this, which is why I find the riot police, the cages, and the control of public space troubling. It is easy to find these official practices of no moment. As I’ve already suggested, it is not as if we expect any of the public appearances led by protesters to amount to much practically speaking. But our expectations are shaped by the very scripting of political events as they occur in carefully controlled environments like each political party’s conventions. Nothing, or very little, spontaneous happens, and there is no place in which undifferentiated members of the public encounter each other in a political setting. I do not intend to criticize conventions on this score – of course they want to control message, allow only party stalwarts to speak, etc. But the very event of the convention becomes a place of politics, and thus a place where others – call them dissenters, or those who want to emphasize their views – would like to make their views visible, even if only on the fringes. One group, the Iraq War Veterans Against the War led a peaceful “protest” march through Denver. Yet, the LA Times reports that the protest, as it approached the Pepsi Center, was increasingly enclosed by riot police, and unable to approach close to the venue. Here’s where the riot police, isolating the main political attraction and dominating all other public places, seem discordant with democratic practice. It becomes difficult to tell whether the show of state force is meant to provide security against the “threatening hordes” outside, or to say that politics shall only happen here, in the Pepsi Center, and nowhere else.

The importance of speech at specific places, and the form of public address, are ineliminable parts of our democratic practice. Martin Luther King’s speech on the mall was surely significant in part because of where it occurred and because of the number of people who could hear it in person. In this vein, Sen. Obama’s speech at the Democratic Convention at Mile High Stadium to over 75,000 people was significant for the public appearance in the presence of so many people. Public presence matters to our politics. This fact is why we cannot replace a politics of presence with a digital politics. Many people like me watched Sen. Obama’s speech on television, others on the web. One might argue that for us it did not matter whether Obama gave the speech in a studio or in a stadium. Yet it does matter – a lot – because presence and place matter to speech and politics.

Public presence, on the more spontaneous, small scale, has become relatively ineffectual, I would argue, because of the increased use of state power to control politics in public. Who wants to risk getting rounded up when the police decide to conduct a mass arrest? When they do so, because the arrests are not individualized, everyone in the area gets arrested, participant and observer alike. The persistence of these kind of practices make dissent more costly, and therefore less likely. No doubt, public dissent can become public disorder, creating risks for injuries and property as Seattle in 1999 demonstrated. Just the same, however, political dissent and discussion rendered publicly invisible creates its own risks for the vitality of our democracy. These latter risks are of far more consequence.