Morning Must Reads

A useful piece that will be increasingly valuable in the weeks to come.

“As “Keeping Faith” tells it, the Supreme Court’s most significant decisions were made by focusing less on the way constitutional provisions originally were enforced but on their impact on contemporary generations. Referring to the court’s 1942 decision striking down an Oklahoma law authorizing forced sterilization of “habitual” criminals, “not a single justice…asked whether forced sterilization would have been permitted in 1868 when the 14th Amendment was adopted,” the authors write.

One place where both volumes struggle, however, is in coining a term for their approach to the law that can compete with the originalism associated with Justice Scalia.

“There is a desire for there to be a new ‘ism’ here,” says Prof. Siegel. She and her colleagues try out labels such as “redemptive constitutionalism” and “democratic constitutionalism.”

Prof. Karlan and her co-authors settled on “constitutional fidelity,” a term that has crept into the comments of some Obama administration officials. They first considered “constitutional faith,” but it sounded “too much like we were praying to the Constitution,” she said.
 
New York Times – In Defiance, N. Korea Is Said to Test More Missiles

North Korean leader Kim Jong-il continues to take the measure of the new world order in the age of Obama with the test of two surface-to-ship missiles the day after the successful test of a Hiroshima-scale nuclear bomb.

South Korea’s new president is taking a harder line than his predecessor while America is showing its softer side. Kim, facing succession problems and worried about usurpers, sees now as a good time to find out what the new rules for his game are.
Writer Choe Sang-hun explains that the Obama administration – despite the promises — is left in the same position that the Bush administration was. The president can call for, and perhaps obtain, sanctions for Kim’s outbursts. But those will likely do little to reduce North Korea as the great de-stabilizer of the Pacific.

“At the Security Council, U.S. Ambassador Susan Rice said Washington would seek a ‘strong resolution with strong measures.’ Britain, France and Japan were expected to push for new sanctions.

Russia and China are likely to remain reluctant to punish Pyongyang too harshly, although China on Monday said it was ‘resolutely opposed’ to the nuclear test. The Russian ambassador to the United Nations, Vitaly I. Churkin, told reporters that the North’s action was ‘very serious and needs to have a strong response.’”
 
Washington Post — Showdown Looming On ‘State Secrets’
 
The Bush administration was unambiguous about its defense of a lawsuit brought by an Islamic charity alleging a 4th Amendment violation by the National Security Agency engaging in warrant-less wiretapping. The Bush Justice Department said that providing the evidence which the plaintiffs sought would expose state secrets and endanger national security.

Writer Carrie Johnson explains that the Obama Justice Department, by contrast, has been plenty ambiguous. The issue of warrant-less wiretapping has been one of the Lefts bugaboos about Obama since he flip-flopped on the subject during an election-season vote. The lawyers on the case have been stalling and the judge has gotten fed up and is now threatening sanctions against them if they don’t explain their more nuanced position by next week.

It’s the same political problem for Obama – he can follow the Bush path and preserve his terror-fighting powers but that will cost him credibility with his base and continue to undercut the central argument of his candidacy – that Bush had spilled too much constitutional milk to save the American apple pie.

“In a speech at the National Archives on Thursday, Obama said that the administration is ‘nearing completion of a thorough review’ of the way in which his predecessors invoked the state-secrets privilege. The president said that his lawyers would apply a stricter legal test for the kinds of material that can be protected and that the attorney general must personally sign off on any future cases involving the privilege.

‘We must not protect information merely because it reveals the violation of a law or embarrasses the government,’ Obama said.
His words came on the heels of an appeals court ruling in late April striking down the government’s use of the state-secrets privilege in a separate case, involving the “extraordinary rendition” of terrorism suspects to countries where they allegedly faced torture. A panel of the U.S. Court of Appeals for the 9th Circuit narrowed the scope of the privilege and argued for judges to play a greater role in assessing the validity of such claims by the executive branch.”

 
Wall Street Journal — Obama Aims to Sway Midterm Elections

Writer Jonathan Weisman observes that while every president since Ronald Reagan has had a political office in the White House and every president since John Adams have paid close attention to congressional elections, the degree to which the Obama White House looks to control the Democratic effort in 2010 is noteworthy.

Recruiting some candidates, discouraging others and holding fundraiser after fundraiser, Obama and political operators Rahm Emanuel and David Axelrod are working hard to prevent Democrats from losing ground next year.
Tonight, Obama will be in Las Vegas to make amends for his earlier degradation of the city as a corporate retreat but mostly to raise $1 million for the vulnerable Harry Reid.

“Republicans, for their part, aren’t questioning Mr. Obama’s right as head of his party to get involved in midterm elections. ‘This is the same president who has single-handedly taken over the auto industry. It really shouldn’t come as a surprise that he’s looking to call the shots on individual congressional races,’ said Ken Spain, spokesman for the National Republican Congressional Committee.”
 
New York Times — G.O.P. Eyes Tough Task: Winning Reid’s Seat

Writer Adam Nagourney understands how difficult the Republican effort to knock off Harry Reid will be. But he also understands that with miserable approval numbers and even worse re-elect numbers, Reid is in a political pickle.

President Obama’s Las Vegas fundraiser today is a recognition that if Reid continues to be squeezed at home, he will be of little use to the president who is looking for Reid to quarterback the Obama agenda through Congress.

Reid is trying to avoid getting Daschled in the original sense of the word – being a Senate Majority leader who gets whacked by the voters at home – by raising $25 million for his effort and by cultivating his image as a moderate. That further complicates the president’s already complicated agenda.

“With an eye back home, Mr. Reid has taken increasing care not to be identified with some of the more liberal leaders in his party. Republicans say that whomever they run against him, a central part of the campaign will be to link him with Democratic figures like Representative Nancy Pelosi of California, the speaker of the House.

So it did not hurt him that in keeping with his longtime stance on gun issues, he was able last week to support successfully a provision eliminating the ban on loaded firearms in national parks, and previously voted to repeal most of the District of Columbia’s gun control regulations. In a display of self-preservation, he also broke with the administration in leading his caucus against providing the money that the president had sought to close the detention center at Guantánamo Bay, Cuba.

Mr. Reid’s campaign preparations reflect the complex position he is in. He may be at the peak of his power in Washington — the head of the Senate, with a personal relationship with the president and his top aides — but public and private polls in his home state show that he is unpopular there, with many Nevadans saying they would prefer to vote for someone else. His identification as the leader of the opposition to President George W. Bush hurts him with independent and Republican voters.”