April 22, 2005

Senator Feingold lectures at the Law School.

The topic: "Upholding an Oath to the Constitution: A Legislator's Responsibilities." Russ Feingold spoke about his devotion to the oath he took as a senator to uphold the Constitution and the second oath he took for the Clinton impeachment trial. Feingold was the only Democratic senator to vote against the motion to dismiss the impeachment. He applied a legal standard to the motion and had to vote the way he did because he could not say that there was no chance of proving the charges against the President. Democratic senators admitted to him in private that he was right. "It was a vote where I tried to move beyond partisanship."

Feingold talked about his campaign finance reform law, which he cared about because he was "tired" of hearing that politics was "about money, not ideas." He reminisced about the court case, challenging the constitutionality of the law, and described sitting through a nine-hour deposition conducted by the great First Amendment lawyer Floyd Abrams. Abrams began his questioning praising Feingold to his face for his reputation for upholding the Constitution. As Feingold put it later in the question session, Abrams spent the nine hours "trying to confuse me." I'd say the praise that he started off with was a deliberate effort to unnerve the senator. Feingold could hold his ground, he thought, because he believed his position was consistent with his oath to protect the Constitution, because "we spent a great deal of time crafting that bill" to avoid constitutional violations. He respected the Supreme Court's precedent on campaign finance regulation, even to the point of regretting a vote he had cast early on in his career about amending the Constitution to overrule Buckley v. Valeo. The First Amendment should not be diminished, he thought, even by the amendment process.

He spoke about the Patriot Act and his anguish at the speed with which it was pushed through the Senate, beginning with a closed door hearing on October 3, 2001. After Feingold voiced his civil liberties concerns, Attorney General John Ashcroft telephoned him, and, in that conversation, Ashcroft, according to Feingold, agreed that Feingold had raised many reasonable concerns, but that he still wanted his support. Later, according to Feingold, "the White House overruled Ashcroft."

[NOTE: The remainder of this post is an attempt at reconstruction of text that disappeared mysteriously on April 23, 2005. To do the reconstruction, I went back to my handwritten notes and also used two paragraphs that were quoted on Instapundit.]

Feingold objected to this sort of "legislation on the fly." Many members of Congress admitted to him that they had not read the text of the Patriot Act. A procedure was adopted that barred amendments, and the text had not gone through the Judiciary Committee, so there had been no chance to call attention to constitutional problems. Feingold decided to oppose unanimous consent because he "felt he had no choice" and he needed to uphold his oath to the Constitution. He described a difficult conversation he had on the floor of the Senate with Tom Daschle as "suffocating. " Feingold offered his amendments, and Daschle oppposed him, in what Feingold called a "frightening scene." With deep disapproval, Feingold quoted Daschle as saying "My argument is not substantive, it's procedural."

In his work on the Subcommittee on the Constitution of the Senate Judiciary Committee, Feingold said he votes against amending the Constitution. He thinks it is better to craft legislation so that it is constitutional (as in the case of campaign finance reform) or simply to reject the amendment as not important enough (as with flag burning).

He ended his speech with the observation that it has been complex to keep his oath to uphold the Constitution and that he has "struggled constantly to get it right."

He took a few questions from the audience. The first was from Professor Alan Weisbard, who asked if a legislator has a duty to interpret the Constitution independently from the courts. Feingold said that there was an obligation not to pass the law if it was clearly unconstitutional, but that he didn't need to be certain or to predict what the Court would say. He could vote for the law as long as he had a good faith belief it would be upheld. "The presumption is it's constitutional unless somebody tells me it really can't fly." This seemed odd to me and made me rethink his opposition to the Patriot Act. Where was the presumption? Must it not be that he opposed the Patriot Act as a matter of policy?

My colleague Jim Jones asked him what he does if he's convinced the Supreme Court has gotten a decision wrong. Feingold said he tries to craft the legislation to avoid the constitutional problems and that he also looks to elections to change who is on the Court. Feingold seemed to be thinking again of the campaign finance reform law, which I don't think was what Jones had it mind. Jones was, I think, concerned about the perniciously wrong cases, like Plessy v. Ferguson. With some more prodding, Feingold said he said he believes the cases that permit the death penalty are wrong, but that the new death penalty case (making it unconstitutional to execute a person who committed his crime as a juvenile) is an "exciting example of how the Constitution can evolve." Jones, still not satisfied, asked whether he was just counting the Justices' votes, and Feingold said he mostly had to accept that they are right, for example, with the Line Item Veto case. "I respected it ... that's the normal situation," he said, but he acknowledged that there are "extreme situations" he'd treat differently. He then joked that this really was like being back in law school, which drew a big laugh from the crowd.

Russ Feingold

I would never have said this out loud, but I couldn't help thinking how interesting it was that Feingold shaped his whole lecture around the sanctity of the oath, when just a few days ago he announced that he was getting a divorce, his second. Was I the only one who thought how strange it was to hear a man piously invoke a passionate fidelity to an oath when he had -- so conspicuously -- gone back on the marriage oath twice?

But I like Senator Feingold. I do think he's a good man. I don't presume to know what happens to people in their marriages, and I am divorced myself. Nevertheless, he could have discussed his devotion to the Constitution from some perspective other than the fact that he'd sworn an oath. Taking an oath to the Constitution, after all, is not the strongest reason to support it.

UPDATE: Many of the commenters think it isn't fair for me to compare marriage vows and the oath to support the Constitution. And one commenter asks the interesting question: "What on earth can account for the view that amending the constitution is wrong but that allowing the constitution to 'evolve' under the watch of political judges (with no Constitutional basis for this evolution) is preferable." Here's the answer I give in the comments:
Thanks for making me think about that! There really is an answer. The idea is that it's terrible to amend the Constitution because you're taking away something that's there. We've been revering the First Amendment (to take the prominent example) all this time, and it would be unseemly to use political power to remove it as an obstacle. But if a court would just say, that obstacle you imagine really doesn't exist, then you haven't wielded political power against the revered document. Of course, [Feingold] still supports using political power to stock the courts with people who will perceive the evolution he wants them to perceive. It all just works so much better if you can get a judge to do it for you. Plus it is very hard to amend the Constitution, so if you try, you'll probably fail, and your enemies will rake you over the coals the whole time -- for wanting to change the Constitution. Acting through the courts is so much more politically palatable. And the beauty of it is that you can continue to lavish praise on yourself for your devotion to the Constitution.

34 comments:

Chris H. Anderson said...

I don't think its very fair AT ALL to bring up comparisons of the marriage oath and his oath to serve in the senete. Completely different things, completely different promises--though both proven tough to keep. (I'd wager that more senete oaths have been broken than marriage oaths)

Regardless, Russ' responses to his questions were interesting and surprising. He almost hinted at a 'court packing' plan if the court were clearly wrong. I also was surprised by his cursory treatment of potential laws' constitutionality.

Good speech, bad venue, interesting musings!

Birkel said...

I agree with Chris H. Anderson above.

The marriage oath is something that two people must uphold. The oath of office is a one-party oath. It makes it much easier to keep a promise when it is to one's self and not to both one's self and to another autonomous individual.

But your treatment of his talk was interesting, all in all.

Dean said...

Having been married nearly thirty years and never having divorced, I can't speak to what happens in a divorce either. And no details have been forthcoming (and may not) about Russ's, so I'm not sure I could compare the two (although both are important).

But the more I hear from Russ, the more I respect him, although I voted against him last year and would probably do so again. He does seem to stick to his convictions, no matter what his party happens to be doing. I can't think of a Democratic Senator I would rather have represent me. Not that we agree. But because I know he's going to do what he feels is right.

Ann Althouse said...

I'm not trying to trash Russ for getting divorced twice, but it's something hard not to think about when I see him. I wanted to see him run for President, and I really think the second divorce is almost entirely destructive of that possibility.

JamesTr said...

Unfortunately I don't understand all of what was said or the impact of it, I presume most of it was "lawyer talk". I respect Russ, I like that he thinks before he votes, he doesn't always follow party lines, he does what he believes. I like that's he a more progressive politician. I hope that if he decides to run for President that it won't change it, but I fear that it will. I wish all of our politicians believed in the oath of office as much as Russ does. I don't think we'd see any many politicians in the news if they did. I think marriage and political oaths are different. Although, it would be nice to see a politician divorce himself from office because he felt he wasn't doing the right thing or serving his constituents well. Very interesting. I've recently come across your blog Ann and I really like reading it.

Ann Althouse said...

Thanks, James. It's interesting reading these comments because everyone seems to think marriage vows don't really count. I find that rather disturbing. So you believe the legislator's vow to uphold the Constitution, that really means something, but two people standing up in front of the whole community and pledging a commitment until death, that's pretty much just a pose?

Kenny H. said...

I think an important difference between an oath of office and a marriage oath is one mentioned by birkel: a marriage oath is between two people. I have no idea what the facts are around Senator Feingold's marriage, but if one of the two people begins to disregard the oath then is it still something the other must be held to? For example, if my wonderful wife decides to move to Alabama to live with her secret lover, must I still be held to the oath I made to her? I certainly don't consider my marriage oath to be "just a pose," but there is a reliance on another person which simply isn't there with an oath of office.

Tonya said...

Although we all promise to remain with our spouses until death, the reality is that half of all marriages end in divorce. And 60% of all second marriages end in divorce. Yet, according to survey data, at the time of marrying no one expects that they will divorce (even though they are well aware of divorce statistics). The problem is that the marriage vows that are spoken in wedding ceremonies do not reflect the actual understanding between most couples. Most couples are really promising to remain together until death UNLESS there is infidelity, family violence, substance abuse, severe mental health problems, emotional abandonment, persistent disagreement and conflict, etc. Perhaps we need to rewrite the oath couples take when they marry.

Ann Althouse said...

Tonya: that would make for a charming ceremony.

JamesTr said...

I wouldn't say it's just a pose. It's an important commitment too. I'm on my second marriage myself. There's different circumstances, a marriage is between two people, a constitutional "marriage" is between the politician and his/her constituents. I was just saying it would be nice to see more politicians "divorce" themselves and leave office, rather than waiting for us to vote them out.

I'm not sure how much of a chance Russ has for President at this point. Two divorces, single man. Maybe he could but I think your point of the oaths he's taken in marriage and "broken" would sit pretty hard with some conservatives out there.

Mark Daniels said...

Clearly, society's attitudes about divorce have changed over time and that has been reflected in our politics.

Whatever chance Nelson Rockefeller might have had for the 1964 Republican presidential nomination, for example, were dashed by his divorce and subsequent remarriage.

Adlai Stevenson, the 1952 and 1956 Democratic nominee for President, was a divorced person and it may have had an impact on his chances for election in those years. It's doubtful though, that anyone could have beaten his opponent, Dwight Eisenhower, irrespective of their marital status.

In recent years, we've clearly become more accepting of divorced candidates for high office. Ronald Reagan was a divorced man, for example.

But I think your speculation is right: Feingold's slim chances of being a serious contender for the presidency are diminished now almost to zero. That may or may not be fair. But it does seem to be a political reality.

If true, this demonstrates the different "rules" for chief executive politics that we have here in the US as opposed to those in other countries. German chancellor Gerhard Schroeder, for example, is working on marriage number four. US politics is built much more around the cult of the personality.

You raise an interesting question, albeit one that could be misused by what I would call "religious impositionists." The question: Does a person's approach to their marriage vows tell us anything about how seriously they might take their oath of office?

I would say that it only does when one is able to discern a pattern of broken oaths and promises. Whether that's true of Feingold, how could any of us say?

We shouldn't expect perfection from our public servants.

But in an age of PR-created images of politicians, there are so few handles we can get on who these people really are, what makes them tick, and what they're truly likely to do in office, that people draw conclusions, often erroneously, from simple data like, "he's been divorced twice."

Actually, I appreciate your honesty in bringing this up. You verbalized a non-malicious thought that would have crossed any discriminating listener's mind.

Reggie said...

"he opposes amending the Constitution"

I don't understand this at all. What on earth can account for the view that amending the constitution is wrong but that allowing the constitution to "evolve" under the watch of political judges (with no Constitutional basis for this evolution) is preferable.

"The First Amendment should not be diminished, he thought, even by the amendment process."

Diminished? Oh, lets ignore the legal process for changing the 1st amendment and trample over it like it doesn't exist. I don't think I am alone when I say that McCain Feingold is one of the most unconstitutional laws ever to be enacted. Politics trumps all in the end.

Kirk Parker said...

What Reggie said. Why the room didn't burst out with cacaphonous laughter at Sen. Feingold's (apparently serious) assertion that McCain-Feingold avoided consitutional problems...

John Althouse Cohen said...

I would love to see Feingold become the next president. But that's not worth thinking about if he has no chance. You can debate whether some especially moralistic voters will look down on him for getting divorced, but I'm more worried about the idea of a presidential candidate who has to go around campaigning with no first lady. Sadly enough, there seems to be a perception in our society that a man isn't complete without a woman to depend on.

The distinctions some commenters are making between two different kinds of oaths are interesting, but they also seem kind of academic. Of course there are significant differences. But if Feingold is going around making the argument that "It's an oath so I have to uphold it," then he's just ASKING for people to make the unfavorable comparison to his marriage oath.

If we're going to think of Feingold as a possible '08 contender, we might as well put him under a microscope sooner rather than later.

nappy40 said...

I don't think the perception is that the man depends on the woman. She is needed to soften his image. Usually these guys run for office and have to utilize a macho pose for all the defense stuff, tough on crime, I Mean What I Say and Say What I Mean, fist shaking kind of stuff. The woman's presence is to show people that this man is not only tough, he is also capable of caring. This woman loves him, he can't be that bad. If he has children this is even better. This gives him a well rounded image. As far as Russ is concerned, there's something wrong with a single, grown man. Two divorces? What's wrong with him? Is he dishonest? Unfaithful? We don't know.

Ann Althouse said...

Reggie: Great questions. What on earth can account for the view that amending the constitution is wrong but that allowing the constitution to "evolve" under the watch of political judges (with no Constitutional basis for this evolution) is preferable.

Thanks for making me think about that! There really is an answer. The idea is that it's terrible to amend the Constitution because you're taking away something that's there. We've been revering the First Amendment (to take the prominent example) all this time, and it would be unseemly to use political power to remove it as an obstacle. But if a court would just say, that obstacle you imagine really doesn't exist, then you haven't wielded political power against the revered document. Of course, he still supports using political power to stock the courts with people who will perceive the evolution he wants them to perceive. It all just works so much better if you can get a judge to do it for you. Plus it is very hard to amend the Constitution, so if you try, you'll probably fail, and your enemies will rake you over the coals the whole time -- for wanting to change the Constitution. Acting through the courts is so much more politically palatable. And the beauty of it is that you can continue to lavish praise on yourself for your devotion to the Constitution.

Oh, lets ignore the legal process for changing the 1st amendment and trample over it like it doesn't exist. I don't think I am alone when I say that McCain Feingold is one of the most unconstitutional laws ever to be enacted.

Clearly, many people agree with you. Feingold was exceeding proud of the care he took to craft a law that the Court would uphold. And it worked. And Kparker, the crowd laughed on cue and with great appreciation every time he tweaked his opponents for saying the law offended the First Amendment.

John: Thanks for validating my comparison of the two oaths. And you're right that he ought to be put under the microscope now. The experience with Kerry demonstates that. People who wanted to believe Kerry would be a good candidate engaged in a fantasy that defects wouldn't matter -- like, chiefly, his anti-Vietnam-war activities. It was only after he was the candidate that the other side came forward with their attack, and the Democrats were surprised the attack was so hard. Next time, predict the strength of your opponents' attacks!

Nappy: Wouldn't it be weird if every time a man went on a job interview, he brought his wife along? I always think it funny that a world leader has to be displayed next to his wife, as if he can't stand on his own. In any other job, bringing your wife along to stand by you would be completely inappropriate.

Kenny H. said...
This comment has been removed by a blog administrator.
Roger Sweeny said...

No doubt this is cynical but isn't Senator Feingold saying that it is better to pretend you are not amending the Constitution than to be honest and go through the lengthy process of actually changing the words?

And isn't he saying it is better for judges to change the meaning of the document than it is for legislators?

Since the average federal judge (and certainly the average law review author) is more likely to agree with Senator Feingold's policy views than the average legislator, isn't he saying, "My kind of people should rule"?

I realize that sounds incredibly nasty but I'm pretty sure Richard Posner said something similar (though in a much nicer way) in a review of Bruce Ackerman's We the People in The New Republic several years ago. [A little googling indicates that the review was reprinted in his Frontiers of Legal Theory (Harvard UP 2001). It also indicates that some at Yale refer to Ackerman's We the People as Me the People.]

Ann Althouse said...

Roger: Yep.

richard mcenroe said...

If violating the oath of marriage offers no conflicts for, say, an Episopalian Bishop, why should it be a problem for a Senator?

Grim said...

I disagree with the comments to the effect that the comparison of the marriage and oaths of office is unfair.

The writers who say she is unfair to mention it offer as a justification that a marriage oath, because it is between two parties, has to be honored; whereas the oath of office is "a one party oath."

Actually, the oath to uphold the Constitution is a multiparty oath as well. The Constitution (and its limits on government power) represent the permanent will of the American people. When a Senator takes that oath, he is thereafter keeping or breaking faith not with himself, but with all of us -- living and dead -- who have participated in the formation and defense of that Constitution.

It seems to me that it should be telling whether you are someone who thinks of an oath as a sacred bond, or instead as kind of like a promise that you won't break unless it's really important.

People are free to vote for you either way. Indeed, they are free to vote for you if you are a person who openly claims to consider oaths a meaningless ceremony that is utterly nonbinding, a "relic of Feudalism" as Mao would have put it. It's their choice if they want a representative who feels that way -- it's a big country, and lots of Americans probably agree.

People are also free not to vote for you. It's just another factor to consider, but I think that the comparison is proper.

Hal said...
This comment has been removed by a blog administrator.
David Blue said...

An oath of office, in its less ambiguous and more enforceable parts, seems akin to a professional code of conduct. Those may really be mandatory. If you get caught in plagiarism, your career can be diminished or over.

Marriage oaths are given immediately to the spouse, and implicitly to future children, who have no power to punish violation of the oath.

Because there is no obligation, these oaths are private matters. It is rude for other people to take an interest in whether you kept them. In effect, there is a social duty of politeness to assist oath-breakers to forget their oaths.

It's natural to speak of the sanctity of oaths when we are talking about obligations backed by power, and not to remember oaths when they are to those powerless to enforce them. Even more so when other people help you to forget.

It may well be that a man prudent enough not to break oaths to those with the power of enforcement honestly mistakes himself for someone who keeps oaths because they are oaths.

The difference between a law that complies with the Constitution and one cunningly crafted to give the appearance that is does may be politically inconsequential for the drafter(s) of the law.

Inconsequential things (and people) are easily ignored and forgotten.

Rather than making this about an individual, I think it's better to focus on how we can make oaths we want upheld as concrete, as unambiguous, as enforceable and socially as unforgettable as possible.

That's a hard problem.

I think it would also be good if we could restore a taboo about oath-breaking. But we can't. We're not really serious about marriage oaths, and that's a big enough exception to smash any taboo.

Eric said...

Interesting comparison between the marriage and senatorial oaths. However, unless you know what oaths he took for his two marriages, a comparison may be premature. He did read the text of both oaths he took as a senator so you know what those are.

For example, when I got married the "oath" was nothing like a traditional religious marriage oath.

In any event, I think he was saying that he tried as best he could to be faithful to his senatorial oaths. Do we know if he tried to be faithful to his marriage "oaths" (if he took them)? Do we know the exact circumstances that led to the divorces?

My point is that there are too many unknowns for you to draw the comparison between the oaths. Of course, we all recognize you'll only get quoted on Instapundit if you take sensational stances. That may be why you inserted all sort of assumptions into analyzing his marriage "oaths."

leeontheroad said...

Richard's presumably snarky comment comparing (an) ECUSA bishop to a Senator may indicate why folks will look at the personal lives of public figures in elections. Anything that can be construed as a failing-- whether it is or not-- creates a target of opportunity for one's enemies.

The first elected President who was divorced was Reagan, a conservative. I don't recall anyone putting this forward as a problem at the time, or since. The mainstream political debate at the time was about issues arguably more relevant to the candidates' governing abilities.

So it was when New Hampshire elected Gene Robinson as their bishop-- a local democratic process in ECUSA.

It was the national debate at the ECUSA General Convention where those opposed to gay folks in clerical collars became a topic. Interestingly, despite the hullaboo about the matter as a moral issue in the Anglican Communication, Richard, a main reason the Convention didn't overrule what the people of the diocese of New Hampshire had done was the rule of Canon Law: according to ECUSA canons, New Hampshire has the right to choose its own bishop and that they did, with complete awareness of his personal life, as well as his pastoral and adminsitrative abilities.

Ann Althouse said...

Eric: "Of course, we all recognize you'll only get quoted on Instapundit if you take sensational stances." Interesting that everyone recognizes something that so weirdly not true. I get quoted on Instapundit all the time for saying things that are utterly moderate. And I get linked for photographing students marching or lolling on Bascom Hill. If you think I concoct sensational thing to say and that that is a way to get quoted on Instapundit, you haven't been doing a very good job of reading either this blog or Instapundit.

Gerry said...

"It's interesting reading these comments because everyone seems to think marriage vows don't really count. I find that rather disturbing."

That is just another inevitable result from the adoption of no-fault divorce laws.

Gerry said...

"Acting through the courts is so much more politically palatable. And the beauty of it is that you can continue to lavish praise on yourself for your devotion to the Constitution."

That sounds to me like political expediency coupled with a healthy cover for self-delusion.

I think we do need a Constitutional amendment to remove the entire amendment process. If the way to change the Constitution is by 'evolution', "Animal Farm" style (but with the courts mandating the changes rather than the executive), then let's get the Constitution to say that and remove the antiquated, out-dated method.

Ann Althouse said...

Gerry: interesting point about eliminating the amendment process. That's how it's done in a religion with a sacred text, after all. Having an amendment process, but having it nearly impossible to get through, is a strange state of affairs, the most impervious to change. You can keep saying: but there's an amendment process, so that bars evolutionary change. If the amendment process were easier to do, then the pressure would not build up for change by judiciary.

Gerry said...

Your last comment has my mind off thinking about parallels to the whole filibuster debate...

But while I enjoy that tangent in my head, I'll state that if the amendment process needs to be amended, then we really should do so; that was not just rhetorical posturing on my part.

I am a believer that when the state of affairs in governance does not match the documents which ground and establish our governance, then it becomes inevitable that faith in the government will slide and it is inevitable that respect for those documents will similarly fall.

Gerry said...

"I am a believer that "

Ugh, I apologize for that needlessly wordy reply. I don't resist the urge to sound like that instead of writing clearly "I believe that" nearly often enough.

Roger Sweeny said...

Roger: Yep.

I am excited and flattered by the agreement (and the quickness--3 minutes!).

But I can't help wondering: which side of the stage did that voice come from?

Lynxx Pherrett said...

Text of Feingold's lecture remarks.

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