I haven't seen Munich yet, but Leon Wieseltier's piece is so thoroughly devastating of both the film and of Spielberg (about whom much more should be written, since Schindler's List is so unquestionably vile) that it merits prejudicial posting:

All this is consistent with Tony Kushner's view that Zionism, as he told Ori Nir of Haaretz last year, was "not the right answer," and that the creation of Israel was "a mistake," and that "establishing a state means fucking people over." (If he really seeks to understand Middle Eastern terrorism, he might ponder the extent to which statelessness, too, can mean fucking people over.) When Avner's reckoning with his deeds takes him to the verge of a breakdown, he joins his wife and child in Brooklyn and refuses to return to Israel, as if decency is impossible there. No, Kushner is not an anti-Semite, nor a self-hating Jew, nor any of those other insults that burnish his notion of himself as an American Jewish dissident (he is one of those people who never speaks, but only speaks out). He is just a perfectly doctrinaire progressive. And the progressive Jewish playwright Tony Kushner's image of Israel oddly brings to mind the reactionary Jewish playwright David Mamet's image of Israel: For both of them, its essence is power.

Read the entire piece, here. It is certainly well worth it, as is pretty much everything Leon writes.

I know, I know, but Will, can't I have just one Poem of the Day, especially when it's as dreary as it is outside now? Forgive this poor, broken-hearted, intransigent, (slightly evil) Cantabridgian--

i.e., You should fiddle with the timestamp as you see fit.

This one, posted under the "New York(er), New York(er)" category. It appeared in the 05 December 2005, by Elizabeth Bishop--

Washington as a Surveyor

Lord, I discovered when I discovered love
That day a continent within the mind,
Unstable on the sea, boundaries unlined
Which now I slowly take the measure of.
The coast's determined; the mountains do not move;
Natural harbors and clear springs I find,
Shade trees and fruit trees, everything of its kind--
Even for an empire more resources than enough.
My favorite flowers, besides, some of each,
Yes, and wild animals who stand there and stare;
Rivers that run beyond my present reach
The other way, and clouds that glitter in the air.
Love's flag quickly I planted on the beach
While I explored, but the one I love is not there.

Nobel Laureate James Buchanan suggests three ways we ought to amend the constitution to help bring about the economic libertarian free-market utopia about which all good libertarians have dreamed since the heady days of high school. The whole thing is reminscent of the enterprise in the back pages of Milton Friedman's Free to Choose.

His suggestions are 1, that we outlaw deficit spending without a 3/4 majority of each house, 2, limiting legislative discrimination and forcing the government to legislate in general terms, and 3, limiting the government's ability to interfere in consensual transactions in private markets. I am unsure whether the measures are supposed to apply only to the federal government, or to state governments as well.

Criticisms from both Akhil Amar and Alex Kozinski cover a lot of trouble with the proposals. As Kozinski points out, a country that adopts these provisions would be a country that doesn't much need them, and as Amar points out, the actual text of these provisions seems woefully undertheorized. It turns out that it is very, very, hard to figure out how to enttrench abstract goals into concrete and brief text, especially when that text will be interpreted by faithless actors centuries into the future. The evidence is that judges (who are presumably going to be charged with trying to apply Buchanans's provisions) and legislators (who will now take an oath to them) are much more likely to faithfully apply provisions when they share the faith.

Amar's, and Kozinski's general and specific objections are well-founded. I confess that I am especially confused by the 3/4 majorities required for deficit spending-- why assume that forcing more bi-partisan horse-trading and eliminating the fiscal role of the president on deficit spending will accomplish Buchanan's goal of banning deficit spending except in cases of pressing public necessity? Ironically, the best way of doing that would probably be to ban deficit spending categorically, since judges have shown that they are already fully willing to depart from constitutional text when they think the situation demands it.

For a more complete way of looking at my objections, look at John Harrison's Virginia Law Review Artice: Time, Change, and the Constitution. Harrison's basic point is that judges do not do a very good job of hewing to the goals of certain substantive provisions of the constiution. Whether or not we think this is good or bad, it means that when We The Living wish to entrench our morally enlightened ways through the constitution, it simply doesn't much help to write our principles in as judicially-applied but vague standards and hope for the best.

Regardless of whether you think it is Brown or Plessy that the 39th Congress meant to entrench into time, The Supreme Court has been getting it wrong about half the time. This is not a great track record.

So Harrison offers four constitutional lessons from history. 1, Put not your faith in judges-- their conformance with a provision will depend on its clarity, its conformance with their views, and what they perceive to be its importance. 2, Therefore, structure beats substance. Every state still has two senators. 3, rules beat standards. 4, law made by temporary majorities gets less respect than law that represents the tide of history.

What are the implictions of this for Buchanan's goal to constitutionalize libertarianism? He cannot do much about number 4, since as Kozinski points we are not numerous and will not become so in the near future. And I am skeptical of Kozinski's proposal to merely repeal the 16th Amendment, since there is an open possibility that an income tax would nonetheless be constitutional for the reasons that Akhil Amar has elsewhere argued. (Note that Abe Lincoln had a federal, progressive income tax decades before the 16th Amendment waspassed). In other words, Kozinski's proposal needs to be clearer-- he should ban the income tax outright if that is what he wants.

But more generally, the lesson about entrenching abstract goals into concrete text is that clear structural provisions do work that vague standards cannot. Now public choice theorists have devoted a lot of work to figuring out what kinds of structural provisions would do what kind of work-- is the president the safeguard of libertarian spending because he is less vulnerable to interest group pressures? Is the line-item veto helpful? Would it be helpful to have a larger house? A smaller one? A third one? To have popular referenda on tax-increases and spending matters? To create a constitutionalized comptroller as another check on spending? To constitutionalize the role of the fed? To eliminate paper money? And so on. Now I haven't done the empirical and theoretical work to answer these questions, but Buchanan could, if he would only realize that in order to entrench our vision of just government we need Amendments that look more like the 17th than the 14th.