Death in Texas

Sister Helen Prejean is a member of the Sisters of St. Joseph of Medaille in Louisiana. She is America’s leading abolitionist with regard to the death penalty and the author of Dead Man Walking, which was made into one of the best movies about the death penalty.
In the most recent issue of the New York Review of Books, this article is adapted from Sister Prejean’s new book, The Death of Innocents: An Eyewitness Account of Wrongful Executions that Random House is releasing next month. Sister Prejean sharply criticizes then-Governor George Bush’s denials of clemency to a large number of Texas death row defendants in Texas, noting that he distanced “himself from his legal and moral responsibility for executions.” The entire article is compelling reading, as the following excerpt reflects:

George W. Bush during his six years as governor of Texas presided over 152 executions, more than any other governor in the recent history of the United States. Bush has said: “I take every death penalty case seriously and review each case carefully…. Each case is major because each case is life or death.” In his autobiography, A Charge to Keep (1999), he wrote, “For every death penalty case, [legal counsel] brief[s] me thoroughly, reviews the arguments made by the prosecution and the defense, raises any doubts or problems or questions.” Bush called this a “fail-safe” method for ensuring “due process” and certainty of guilt.
He might have succeeded in bequeathing to history this image of himself as a scrupulously fair-minded governor if the journalist Alan Berlow had not used the Public Information Act to gain access to fifty-seven confidential death penalty memos that Bush’s legal counsel, Alberto R. Gonzales, whom President Bush has recently nominated to be attorney general of the United States, presented to him, usually on the very day of execution.[1] The reports Gonzales presented could not be more cursory. Take, for example, the case of Terry Washington, a mentally retarded man of thirty-three with the communication skills of a seven-year-old. Washington’s plea for clemency came before Governor Bush on the morning of May 6, 1997. After a thirty-minute briefing by Gonzales, Bush checked “Deny” ? just as he had denied twenty-nine other pleas for clemency in his first twenty-eight months as governor.
But Washington’s plea for clemency raised substantial issues, which called for thoughtful, fair-minded consideration, not the least of which was the fact that Washington’s mental handicap had never been presented to the jury that condemned him to death. Gonzales’s legal summary, however, omitted any mention of Washington’s mental limitations as well as the fact that his trial lawyer had failed to enlist the help of a mental health expert to testify on his client’s behalf. When Washington’s postconviction lawyers took on his defense, they researched deeply into his childhood and came up with horrifying evidence of abuse. Terry Washington, along with his ten siblings, had been beaten regularly with whips, water hoses, extension cords, wire hangers, and fan belts. This was mitigation of the strongest kind, but Washington’s jury never heard it. Nor is there any evidence that Gonzales told Bush about it.

The article concludes with the following observation:

As governor, Bush certainly did not stand apart in his routine refusal to deny clemency to death row petitioners, but what does set him apart is the sheer number of executions over which he has presided. Callous indifference to human suffering may also set Bush apart. He may be the only government official to mock a condemned person’s plea for mercy, then lie about it afterward, claiming humane feelings he never felt. On the contrary, it seems that Bush is comfortable with using violent solutions to solve troublesome social and political realities.

Read the entire article.

Sports notes on UH bball, Jackie Sherrill, golf, Mack Brown, Gene Conley and Friday Night Lights, Houston style

The Houston Cougars men’s basketball team had a nice win over LSU last night, as new coach Tom Penders continues to make my post on his hiring look bad.
Meanwhile, former Texas A&M, Pittsburgh, and Mississippi State head football coach Jackie Sherrill has teed off on the NCAA in a lawsuit over in Mississippi. The over/under bet on this lawsuit is $1 million.
On a more pleasant note, 55 year old Austin resident Tom Kite — fresh off an impressive performance in the 2004 U.S. Open — plans to rejoin the regular PGA Tour next month and become the oldest exempt player in Tour history.
Also on the golf scene, in concrete evidence that securities regulators do not have enough to do, this recent Wall Street Journal ($) article reports that regulators have embarked on sweeping inquiries into Wall Street gift-and-entertainment practices, particularly golf junkets that Wall Street firms provide to mutual-fund executives and other money managers they are trying to woo for trading business:

NASD regulators, for example, have started to examine golf outings that Bank of America Corp. provided to Fidelity Investments’ head of stock trading, people familiar with the matter said. As the bank worked in recent years to win trading business from Fidelity, it hosted the executive, Scott DeSano, at the annual AT&T Pebble Beach National Pro-Am golf tournament several times, allowing him to play alongside the pros competing in the event, which raises money for charity.

What next? Eliot Spitzer to sue?
Also in the combat department, as the University of Texas football team and its supporters prepare for their trip to L.A. for the Rose Bowl on New Year’s Day, the Dallas Morning News’ Greg Fraley throws down the gauntlet and declares the run for the Roses a make or break game for Longhorn coach Mack Brown:

Texas and Brown must win a game on the main stage for once, or never again demand to play with the big boys.
It will be a real live put-up-or-shut-up game for a team notorious for underachieving in these moments. . .
It will be the Longhorns’ highest-profile bowl appearance since they went into the 1978 Cotton Bowl ranked No. 1 but lost to Notre Dame.
This is not the Pacific Life Holiday Bowl, a regular stop off the main bowl draft for the Longhorns. . .
The only way the Longhorns’ task could have been easier would have been if Pittsburgh had landed in Pasadena.
Michigan is 13th in the BCS standings. Only Pitt, the Big East co-champion, is worse among the eight schools in BCS bowls at No. 21.
Michigan, which shared the championship of the stodgy Big Ten with Iowa, has the name but not the chops this season.
The Wolverines lost to Notre Dame, which has fired its coach, and to Ohio State (7-4). San Diego State came within three points of the Wolverines, at Michigan.
This is not an opponent of the USC-Oklahoma-Auburn level. Michigan is not even Utah, which may be out of coaches before its bowl game.
The Longhorns must cleanly handle Michigan and prove they belong at this level, . . .
Brown asked for this chance. Now, he must do something with it.
And that would be a first, too.
Brown has been a convenient target of barbs because his teams promise so much and deliver so little under the spotlight.
In 17 seasons at North Carolina and Texas, Brown has never won a conference title. That is somewhat understandable at North Carolina, where basketball is king and Florida State was in the conference for part of his tenure.
An 0-for at Texas, flush with resources and talent, is unfathomable.
The bigger the moment, the worse Brown’s Texas teams have played. Look at his big-game resume:

? Five consecutive losses to Oklahoma and uber-coach Bob Stoops.
This is as big a mismatch as there is in the college game. The thought of Stoops throws Brown into a panic. The gap is growing. Texas’ dull offense does not even challenge Stoops and his staff.
? An 0-2 record in Big 12 championship games. Texas lost to Nebraska in 1999 and, with a BCS berth at hand, was upset by Colorado in 2001.
? A 3-3 bowl record. Last year’s 28-20 loss to Washington State represented a dreadful showing by Brown and his staff. Texas acted as if it had no idea Washington State, which led Division I-A in sacks, would blitz. With the offense collapsing in the face of the heavy blitz pressure, Brown removed the mobile quarterback (Vince Young) for the stationary quarterback (Chance Mock).

Reputations are formed by a body of work. There are lots of wins but no landmark triumphs during Brown’s seven seasons with Texas.
A win against Michigan would have substance because of the setting.
A loss to Michigan would make it easy not to take Brown seriously for a long time. . .

Moving to thoughts of Christmas, if you are looking for a gift for a sports-interested family member or friend, this Boston Globe article reviews the new book by Gene Conley, one of the last athletes to play two professional sports (Major League Baseball and the NBA) at the same time for much of his professional career. Conley’s is a remarkable story, as reflected by this snippet from the article:

There was the time he struck out Ted Williams in the All-Star Game. Then there was the time he had to separate Tom Heinsohn from Wilt Chamberlain during a heated exchange in an NBA game. . . No one else ever won a championship ring in two major sports. No one else played against Jackie Robinson, Frank Robinson, and Oscar Robertson. No one else played with Carl Yastrzemski during the summer, then joined Bob Cousy for the winter. No one else lockered next to Hank Aaron and Bill Russell in the same calendar year.

Conley also confirms the truth about the legendary story in which he and a teammate got off the Red Sox team bus and Conley was not seen again for 68 hours. Ah, those were the days.
Finally, this Houston Press article provides an interesting analysis of the evolution of the high-powered suburban high school football programs in the Houston metropolitan area. Call it the natural evolution of Friday Night Lights.

A Fight at the Opera

Herbert Breslin became master tenor Luciano Pavarotti‘s publicist in 1967 and ultimately dumped Placido Domingo from his client list so that he could become Pavarotti’s manager. He lasted as Pavarotti’s manager for 35 years.
However, now Mr. Breslin is Mr. Pavarotti’s ex-manager, and he has written a book about Pavarotti that is the subject of this hilarious NY Times Book Review by Jane and Michael Stein. Here are a couple of delicious snippets:

As Pavarotti got bigger in every way, Breslin’s adoration shrank. By the time of the Three Tenors, a pop phenomenon engineered not by Breslin but by the impresario Tibor Rudas, Breslin was miserable. “A big, big, big mistake” is how he describes Pavarotti’s original deal to sing with Placido Domingo and Jose Carreras for charity, lamenting that “Once, I had been Luciano’s creator. . . . Now I had been reduced to his foil. My role was to act as a buffer and, most important, to get him more money.” Finally he bemoans that “managing an artist can be like serving a life sentence in Alcatraz.”

And what of Pavarotti’s legendary appetite?:

Gluttony is a big theme in Breslin’s demystification. “It’s not just that he likes to eat,” he snipes. “He loves to smell food, to touch food, to prepare food, to think about food, to talk about food. When he comes into a room, he begins sniffing like a dog, and his first question is, ‘What smells so good?'” We are treated to scenes of him using a tablespoon to gobble up caviar to the point of nausea and of his “swaying belly flowing over the edge of the chaise longue.”

Not only is Pavarotti a pig, but he has bad taste, and his house in Modena “looks like something on Queens Boulevard, crammed with trinkets, tchotchkes, anything and everything.” When Pavarotti falls in love with the decor of his suite at Caesars Palace in Las Vegas, he makes Breslin buy all the furniture, drapes and bedspread, and ship it to Modena. “It looks like a big blood clot,” Breslin observes.

Read the entire review. What a hoot!

The real Oskar Schindler

This NY Times book review examines Holocaust historian David M. Crowe’s authoritative new biography of Oskar Schindler, the German businessman who saved more than 1,000 Jews from the Nazis during World War II.
Interestingly, Mr. Crowe’s book — Oskar Schindler: The Untold Account of His Life, Wartime Activities and the True Story Behind the List (Westview Press 2004) — differs sharply with the idealized portrayal of Schindler in the Oscar-winning 1993 Steven Spielberg movie Schindler’s List and Thomas Keneally’s 1982 historical novel that inspired the movie.
One of the particularly interesting differences between the book and the movie is how Schindler’s Jewish workers are depicted as Schindler prepares to flee in the face of the Russian invaders. In the movie, the Jews are depicted as worn down and overwhelmed. Mr. Crowe contends that the Schindler had in fact prepared the Jews to be “an armed guerilla group. “They were armed to the teeth, ready to fight till the death.”
Check out the review.

The Godfather Returns

This NY Times book review tells us about The Godfather Returns, the latest book in the Godfather series that the late Mario Puzo began in the 1960’s.
Before Mr. Puzo died in 1999, he signed off on the hiring of someone to continue the Godfather saga. So, in 2002, Random House ran a contest to pick the successor to Mr. Puzo, and the winner was Mark Winegardner, who is chairman of the creative writing program at Florida State University.
The review basically says that the book is decent, but lacks the originality of the original book and the first two Godfather films. Stated another way, the book is not as good a story as the first Godfather novel, or the Godfather and Godfather II films, but is better than Francis Ford Coppolla’s abomination, Godfather III. Thank goodness for that.

Perilous Times

In this New York Times review, Michiko Kakutani reviews Perilous Times, the new book about American restrictions on civil liberties and free speech by Geoffrey R. Stone, the Harry Kalven Jr. distinguished service professor of law at the University of Chicago. As the review notes, the restrictions of civil liberties under the recent Patriot Act are not unusual in time of war in the United States, regardless of whether the President is a Republican or a Democrat:

Impassioned yet methodical, [Professor Stone] lays out the vital role that free speech plays in a healthy system of self-governance, using lots of case studies to illustrate his arguments while creating a devastating portrait of those public figures whose commitment to free speech has been weak or hypocritical. Woodrow Wilson, who tried to squelch any disharmony that might impede his mission of making “the world safe for democracy,” comes off especially poorly, and Franklin D. Roosevelt emerges as a president who would support civil liberties in the abstract, “but not when they got in his way.”

However, Professor Stone is reassuring that America’s commitment to civil liberties is strong, and that each period of restriction has been followed by a period of stronger restoration:

After each period in which the nation went too far in restricting civil liberties, Mr. Stone argues, “the nation’s commitment to free speech rebounded, usually rather quickly, sometimes more robustly than before.” A Congressional report declared that the Sedition Act of 1798 had been passed under a “mistaken exercise” of power and was “null and void.” The Sedition Act of 1918, which was repealed two years later, helped give birth to the modern civil liberties movement. And in 1976, President Ford formally prohibited the C.I.A. from using electronic or physical surveillance to collect information on domestic activities of Americans, and the new F.B.I. director, Clarence Kelly, publicly apologized for F.B.I. abuses under J. Edgar Hoover.
Such developments buttress Mr. Stone’s argument that “the major restrictions of civil liberties of the past would be less thinkable today than they were in 1798, 1861, 1917, 1942, 1950 or 1969,” and that “in terms of both the evolution of constitutional doctrine and the development of a national culture more attuned to civil liberties, the United States has made substantial progress.” Mr. Stone writes that in its 1971 Pentagon Papers decision (which held that the government had not met its “heavy burden of showing justification” for a prior restraint on the press), “the Supreme Court, for the first time in American history, stood tall – in wartime – for the First Amendment.” That case was only one in a series of Vietnam-era decisions in which the court suggested its understanding, in Mr. Stone’s words, “that dissent is easily chilled, that government often acts out of intolerance when it suppresses dissent, and that it is essential to protect speech at the margin.”

Read the entire review.

Joseph Ellis on George Washington

Brandeis history professor David Hackett Fischer — author of Washington’s Crossing and (Oxford 2003) and Paul Revere’s Ride (Oxford 1994) — provides this favorable book review of Mount Holyoke College history professor Joseph J. Ellis‘ (author of Founding Brothers (Vintage 2002) and biographies on Thomas Jefferson and John Adams) new book, His Excellency: George Washington (Knopf 2004).
Professor Fischer notes that Professor Ellis’ book is skeptical of the “conventional idea of Washington as a leader who won the trust of others by honesty, virtue, dignity, and character; a man not consumed by ambition or avarice, but driven by his ideals, and devoted to the principles of the Revolution:”

He dismisses it as a fiction and even a deliberate falsehood, “fabricated” in large part by Washington himself. In its place, he argues that the true Washington was a man of “tumultuous passions,” “aggressive instincts,” “bottomless ambition,” “personal avarice,” and “a truly monumental ego with a massive personal agenda.”
Many men who knew Washington agreed on the passions but believed that he gained full control of them. Ellis argues to the contrary that Washington never mastered himself, and “his aggressive instincts would remain a dangerous liability” through his career. The thesis of this book is that Washington’s life was a continuing struggle against dark inner forces, which led to an “obsession with control,” which in turn caused him to favor control mechanisms for America, including a highly disciplined regular army, strong central government, and hierarchical society. . .

Some elements of Ellis’s conflict model are solidly confirmed by other sources. Jefferson wrote of Washington, “his temper was naturally high toned, but reflection and resolution had obtained a firm and habitual ascendancy. If however, it broke its bounds, he was most tremendous in his wrath.” Adams added, “He had great self-command. It cost him great exertion sometimes, and a constant constraint.”

Read the entire review. Professor Ellis’ latest book is yet another in a long line of fine books over the past decade that have focused on America’s Revolutionary War-era leaders.
But wait a minute. Just how good are these books? In this review, Matthew Price reviews University of Georgia historian Peter Charles Hoffer” new book, Past Imperfect: Facts, Fictions, Fraud — American History from Bancroft and Parkman to Ambrose, Bellesiles, Ellis, and Goodwin (PublicAffairs 2004) contends that the history profession has condoned sloppy scholarship and an “anything-goes” ethical climate:

Hoffer revisits the now-familiar cases of a quartet of historians brought low by scandal in 2002: former Emory University professor Michael Bellesiles, who was accused of falsifying data in “Arming America,” his controversial 2000 study of 18th- and 19th-century gun culture; Stephen Ambrose and Doris Kearns Goodwin, who were both found to have used material from other scholars without full attribution; and Mount Holyoke’s Joseph Ellis, who was rebuked for spinning tales of his nonexistent Vietnam combat record in classes and newspaper articles. According to Hoffer, these were not just isolated incidents but symptoms of a wider problem — one that goes far beyond the headlines to the very way history is written and consumed in America.

. . . Hoffer is particularly harsh on Bellesiles, who resigned from his job at Emory and was stripped of the Bancroft Prize in the wake of the controversy over “Arming America.”
To his defenders, the former Emory historian was the victim of a conservative plot, spearheaded by the National Rifle Association, to discredit Bellesiles’ conclusion that, contrary to the image of the musket-wielding patriot, few early Americans owned functional guns. But in Hoffer’s telling, Bellesiles engaged in deliberate “falsification” of his data. Furthermore, Hoffer asserts, Bellesiles published his book with the trade publisher Knopf (which eventually withdrew the book from circulation) rather than a scholarly press “in order to claim . . . immunity from close professional scrutiny.” (While an investigative panel formed by the AHA found no outright falsification, they condemned Bellesilles’ evasiveness about his source records, many of which could not be traced.)
As for Goodwin and Ambrose, who are also published by trade presses, Hoffer brushes aside their claims that the instances of missing footnotes or insufficient citations were just unintentional and isolated lapses in otherwise sound work. Whatever the intention, Hoffer writes, the end result is the same: “plagiarism,” which under AHA standards, he notes, does not require actual intent to deceive. (He brings greater sympathy to the case of Joseph Ellis, whose scholarship itself was not questioned, suggesting that the same imaginative powers that led him to lie about his life story may have helped him write more subtle and nuanced books.)

Read the entire review.

Understanding terrorism

Although I am generally supportive of the way in which the Bush Administration has conducted the war against the Islamic fascists over the past three years, I have never been comfortable with the Administration’s characterization of the war as the “War on Terror.” Not only does that moniker obscure the real enemy — radical Islamic fascism — but its vagueness risks inclusion of legitimate rebel movements against tyrannical regimes. I mean, really — would the United States be siding with the Iranian or North Korean governments if rebel movements in those countries began to use tactics to undermine those tyrannical regimes similar to those that are used by Islamic fascists against America and Israel?
Dr. Philip Jenkins is a prolific author and an outstanding professor of history and religious studies at Penn State University. He is best known for his recent books The Next Christendom: The Coming of Global Christianity (New York: Oxford University Press, 2002) and The New Anti-Catholicism: The Last Acceptable Prejudice (New York: Oxford University Press, 2003), which are outstanding works on the changing nature of Christianity in the world. The Next Christiandom explores the emergence of Third World countries as the future demographic and cultural center of global Christianity, and The New Anti-Catholicism examines how modern political correctness toward minority groups has not deterred major media outlets from casting the Catholic Church and its teachings in the worst possible light.
However, Professor Jenkins is also an expert on the concept of terror, and his new book Images of Terror: What We Can and Can?t Know about Terrorism (Aldine de Gruyter, New York 2003) explores the social construction of terrorism as a concept and problem. In this review of Images of Terror, reviewer Daniel McCarthy notes that Professor Jenkins asks the salient question: What makes a particular incident an example of terrorism, rather than a conventional crime? Although a generic definition of terrorism is possible to develop, the application of that definition to a particular event is much more difficult as a variety of social forces and media interpretations shape our understanding of the event:

[A]s a new understanding of the problem [of terrorism] takes hold, older interpretations may be forgotten entirely and even retroactively discredited. The interpretation that was plausible in the 1980s became, under the influence of a changing ideological climate, a thing that only crackpots believed in the 1990s. This, says Jenkins, is what happened to the theories of those who warned of the dangers of Islamic terrorism during the Clinton years. In the 1980s, when terrorism was understood as a phenomenon connected to outside dangers?to the Cold War and the Iran-Iraq War, for example?such warnings might have been taken seriously. In the 1990s, however, terrorism increasingly came to be understood as something associated with domestic far-right militants, and those who talked too much about Islamic terrorism risked being dismissed as racists or Islamophobes. After 9/11, the prevailing understanding changed again, and people who may have sounded like cranks five years earlier were now experts on a real and obvious danger.

Indeed, as Professor Jenkins points out, the concept of terror is neither new nor particularly unusual in American history. However, the social and political forces that shape our understanding of terror events make it seem that way:

[W]hile the images of terror shift, the reality of terror may remain constant. Terrorism in United States is certainly not a recent development. Jenkins provides a chart enumerating more than forty-nine major acts of terrorism in the United States between 1939 and 2001; he notes, however, that despite this long history of terrorism, news media would often react to a major terrorist strike within the country as if it were the first time terror had come to the United States. The media, however, are not alone in their forgetfulness and revisionism. Jenkins argues that intelligence agencies and government departments also change the way terrorism is understood, prompted by changing diplomatic and political realities.

As one example, Professor Jenkins points out how the government’s handling of the information that 9/11 hijacker Mohamed Atta probably met with Iraqi intelligence agent in the Czech Republic in early 2001 reflects the conflicting interests within the U.S. government at the time:

Czech intelligence originally claimed that [Atta met with Iraqi intelligence agent in the Czech Republic in early 2001], but the Czech government later disavowed that report. Might the government have had other reasons for discrediting the story? An Iraqi connection to 9/11, no matter how tentative, would have been cause for war, something that Jenkins says the U.S. State Department was eager to avoid at the time.

Professor Jenkins maintains that we can reach a better understanding of terrorism and its implications by asking specific questions that undermine the political or social twists that a societal force may attempt to place on a particular terroristic event:

There may be things we can never know about terrorism, certainly about specific acts. In general, however, consumers of news and information can adopt strategies to arrive at the clearest understanding possible. First, says Jenkins, readers must ask, ?How do we know this?? (p. 193). They must evaluate the sources?and the sources’ sources?carefully. Second, they must ?realize that claims have consequences? (p. 193), asking cui bono while considering also how a certain piece of information may harm the interests of various actors. Finally, ?the greatest weapon for the critical consumer of terrorism claims is memory? (p. 194). Images of Terror as a whole is concerned with that third point: the purpose of a social constructivist analysis, after all, is to show that things have not always been understood the way they now are and that other interpretations are possible. Memory provides some context and some grounds for hope in the effort to understand terrorism.

Thus, the “War on Terror” paints with a broad brush where a more measured stroke is needed. The sooner that we understand that the war is against radical Islamic fascists who seek state power to effectuate totalitarian control similar to what occurred in Iran in 1979 and in Afghanistan in the 1990’s, then the quicker we will be able to develop the military and political policies necessary to defeat these tyrannical forces against progress.

Whose Constitution Is It, Anyway?

In this Wall Street Journal ($) book review, Northwestern University Law Professor John O. McGinniss reviews Stanford Law Dean and Professor Larry Kramer‘s new book — “The People Themselves” — in which he argues that the notion that the judiciary is the sole true arbiter of the Constitution under the American government is a fairly new and inaccurate view. As Professor McGinnis notes from Professor Kramer’s work:

. . . the men who wrote the Constitution would have been aghast at a judicial monopoly on its interpretation. At the time, judges did not claim some exclusive power of constitutional settlement. They believed that judicial review stemmed from their duty to interpret all relevant laws in the course of litigation. But they did not dispute that the White House and Congress had their own duty to interpret the Constitution in the course of their own official actions.
Only later, when the Federalists feared that they would be voted out of office, did the doctrine of judicial supremacy come into play, to insulate Federalist court decisions from correction. But Mr. Kramer shows that presidents from Jefferson to Lincoln refused to yield all authority to judges. They embraced “departmentalism” — each branch of government claiming an equal right to discover the Constitution’s true meaning.

Professor Kramer notes that the doctrine of judicial supremacy has serious implications to American government and society:

Because the court is selected from a narrow social class, he notes, it tends to reflect the views of a modern “aristocracy.” Only the willingness of other branches to disagree with the court prevents our constitutional republic from degenerating into a constitutional oligarchy — with a priestly caste ruling, in effect, by fiat.
Mr. Kramer goes even further. He believes that “the people themselves” should be principal enforcers of the Constitution, as they long enforced the British Constitution through such devices as jury nullification and mobbing — i.e., disturbing the peace. But the American Constitution differs from that of George III. In the U.S., the people themselves can reconstitute all branches of the government — by voting for certain candidates instead of others, of course, and by thus affecting political appointments. Electoral accountability is the essence of popular constitutional control. Thus Americans have not typically resorted to mob violence. The contrast with the British Constitution is striking.

But Professor McGinnis is not completely sold on Professor Kramer’s theory that varied interpretations of the Constitution protect our society against the tyranny of the majority:

The American Constitution also differs from the (unwritten) British one in its source of authority. In 1789 the Framers drafted a specific text that the people themselves ratified in every state. It is this consensus that gives the Constitution its power and justifies the disregard of even democratically made laws that conflict with it. But the meaning of that consensus can be discovered only by referring to the words themselves and to their historical context — not by relying on the “political-legal” interpretation that Mr. Kramer suggests. Constitutional interpretation based on politics places the people’s own considered judgments at the mercy of rash and temporary majorities. Only a document fixed by law — and subject to strict rules of amendment — can protect, in the words of Justice David Brewer, “Peter Sober from Peter Drunk.”

Read the whole piece. Good stuff.