I’m pleased with how it came out – should be out in bound book form in December or January.

Justice Antonin Scalia – who claims to be beholden to the text and history of the Constitution – belittled the arguments claiming that the text and history of the Constitution require consideration of the Privileges or Immunities clause. When Alan Gura, the attorney arguing the case, began his discussion of Privileges or Immunities, Scalia pointedly asked him whether arguing Privileges or immunities was “easier” than the due process argument. “[I]f the answer is no,” he continued, “why are you asking us to overrule 150, 140 years of prior law?” Scalia also said that “What you argue is the darling of the professoriate”; and speculated that Gura is “bucking for a place on some law school faculty.”

Scalia brays loudly about the importance of original intent; yet when serious original intent arguments come before him that would be contrary to his narrow, cramped, Catholic view of individual liberty, he is unwilling to listen. What a hypocrite.

When tea partiers inquire closely into the Constitution’s original intent, they will find what they expect to find: it was created, first, to protect individual liberty from overzealous government.

Yet they may be surprised when they learn that Franklin, Washington, Hamilton, Adams, Jefferson and Madison – as bitterly contentious in politics as present-day politicians (if not more so) – all agreed on the one bedrock principle upon which any good government depended: VIRTUE – or, literally, “Public Spirit.”

As Thomas Paine (Common Sense, The Rights of Man, etc.) insisted: “Public good is not a term opposed to the good of individuals. On the contrary, it is the good of every individual collected. It is the good of all, because it is the good of every one.” Hence Paine advocated progressive taxation, aid to the unemployed, and free public education.

Healthcare-for-all, anyone?

-The Congressional Democrats’ incompetence. After last year’s election the Democrats controlled both houses of Congress, WITH a filibuster-proof 60% majority in the Senate; and yet, they were unable to get their s**t together enough to pass a healthcare bill. And now that they’ve lost their 60%, they’re folding up like a cheap tent – failing to recognize they were elected to make meaningful change. In the face of the criticism from obstructionist Republicans, they cave. If Democrats couldn’t get it done under these conditions, they’ll never get it done – and they’ll deserve to be swept out of office in the next elections.

On this topic see also Paul Krugman in the Times in “Do the Right Thing”:

“A message to House Democrats: This is your moment of truth. You can do the right thing and pass the Senate health care bill. Or you can look for an easy way out, make excuses and fail the test of history…. Ladies and gentlemen, the nation is waiting. Stop whining, and do what needs to be done.”

-Corporate Speech Case: Thursday’s Citizens United opinion by the Supreme Court entirely distorts the First Amendment by extending broad free speech principles to corporations. NOTHING in the Constitution extends constitutional rights to corporations. Over 100 years ago the Court (erroneously) extended the definition of the word “person” in the 5th and 14th amendment Due Process clauses to apply to corporations; and, ever since, we’ve had many anomalous court decisions as a result. The Citizens United case is the logical endpoint of that doctrine – and now corporations, with their disproportionate money-making capabilities, will be able to spend without limit in political campaigns.

Think about it – we all know how powerful any message sent through the broadcast media can be. Ordinary individuals simply do not have the resources to compete in this forum, so the result of corporations (which naturally favor – surprise! – conservative Republican viewpoints) having no limits on campaign spending will be to create an unlevel, skewed playing field.

It’s disingenuous for the Court to say that meaningful limits on speech violate the First Amendment. Even assuming the ludicrous that a corporation is a “person” in the fullest constitutional sense, all of any person’s constitutional rights are subject to reasonable limits so long as the limits are narrowly tailored and serve a compelling governmental purpose – a cardinal principle the Court chooses to ignore in Citizens United.

“’Ted Olson and David Boies, so what are they up to?’” Dowd reports Olson mock querying, “summarizing the confusion and conspiracy theories that their union inspired.

“As the sun set on the Bay Bridge behind him and the curtain dropped on the first week of the dramatic trial to challenge the constitutionality of the state’s ban on same-sex marriage, Olson reviewed the case: ‘We’re going to explain why allowing same-sex couples to have that same right that the rest of us have is not going to hurt heterosexual marriages. It has no point at all except some people don’t want to recognize gays and lesbians as normal, as human beings.’

“Boies, wearing a flag pin on his lapel, said that the state of California is engaged in ‘gay bashing.’ He spoke intensely about the gay and lesbian plaintiffs, who offered poignant testimony about their loving relationships and about wanting to be liked and accepted: ‘These people are people you would want your child to grow up and marry. You can be a child molester and get married. You can be a wife beater and get married. You can be a child-support scofflaw and get married. The importance of that emotional relationship is so vital to the pursuit of happiness that even prison felons, who aren’t really procreating, have a right to get married.’

“Noting the rabid effort being made to restrict marriage to only those who can protect its sanctity, a chuckling Olson reeled off some names: ‘Tiger Woods, Eliot Spitzer, Mark Sanford, Kobe Bryant, Bill Clinton.’ …

“‘I think there’s something the matter with you if you don’t care enough to feel the suffering that they’ve been through and if you’re not emotionally upset about the fact that we’re doing an immense amount of harm to people,’ he said. ‘We’re not treating them like Americans. We’re not treating them like citizens.’

“Boies said the problem was generational, and they have to try the case before judges their own age who might find it hard to move beyond old prejudices. ….

“‘I’ve got a grandson who’s a senior in college, and he can’t imagine fighting over this issue,’ Boies said. ‘It’s like explaining to my daughter that there was a time when women didn’t have the right to vote and couldn’t own property.’”

Indeed. Today we look back on state laws that forbade inter-racial marriage with a degree of disbelief. But it was just forty years ago that the Supreme Court in Loving v. Virginia struck down the laws of 16 states that did just that. Forty or fifty years from now, we will look back on today’s discrimination against same-sex marriage with similar disbelief.

Dowd continues: “The anti-gay-marriage proponents whipped up a moral frenzy in 2008, suggesting conjugal parity would harm children, summon the devil, tear down churches and melt civilization. But Olson argued in his opening statement that the discrimination gays experience ‘weakens our moral fiber in this country.’

“While Charles Cooper, the lawyer on the anti-gay-marriage side, cited President Obama’s declaration that marriage should only be between a man and a woman, Olson noted that Obama’s parents could not have married in Virginia before he was born.

“I asked the lawyers if they were disappointed that the president who had once raised such hope in the gay community now seemed behind the curve.

“’Damned right,’ Boies snapped. ‘I hope my Democratic president will catch up to my conservative Republican co-counsel.’

“Olson added: ‘I’m not talking about Obama, but that’s what’s so bad about politicians. They say, ‘I must hasten to follow them, for I am their leader.’

“Obama sees himself as such a huge change that he can be cautious about other societal changes. But what he doesn’t realize is that legalizing gay marriage is like electing a black president. Before you do it, it seems inconceivable. Once it’s done, you can’t remember what all the fuss was about.”

Pondering what will be her response to the inevitable “what will you do now?” queries, she considers “coopt[ing] Susan Stamberg’s one-word answer when she left her anchor post at NPR: ‘Less.’” She is “more tempted to say, simply, ‘We’ll see.’ After 46 years of deadlines,” she concludes, “it is time to take in some oxygen, to breathe and consider.”

Ms. Goodman recalls a column from three decades earlier, when she had written of another’s retirement:

“‘There’s a trick to the Graceful Exit. It begins with the vision to recognize when a job, a life stage, a relationship is over — and to let go. It means leaving what’s over without denying its validity or its past importance in our lives.’

“‘It involves a sense of future, a belief that every exit line is an entry, that we are moving on rather than out.’

“It was an odd experience to hear, let alone heed, my younger self.

“‘The trick of retiring well may be the trick of living well,’ I wrote back then. ‘It’s hard to recognize that life isn’t a holding action, but a process. It’s hard to learn that we don’t leave the best parts of ourselves behind, back in the dugout or the office. We own what we learned back there. The experiences and the growth are grafted onto our lives. And when we exit, we can take ourselves along — quite gracefully.’”

So what are Ms. Goodman’s final concluding words in this final concluding column?

“[My younger self] knew then what I know much more intimately now,” she observes. “So, with her blessing, I will let myself go. And go for it.”

Well-done, Ellen Goodman, and godspeed.

Here are the first few paragraphs from the Introduction:

In teaching history, there should be extensive discussions of personalities who
benefited mankind through independence of character and judgment.
-Albert Einstein, 1953

America in the twenty-first century exists in a perpetual Dickensian sort-of “best
of times, worst of times” state when it comes to putting into practice the sacred principles
of liberty and equal justice. On one hand, the once-unthinkable occurred in November
2008 when the nation – a land that had permitted and promoted human slavery for more
than half of its four hundred year history – elected an African-American man president.
The symbolic importance alone of placing Barack Obama at the pinnacle of power in the
United States, given its sordid past practices, cannot be understated. Yet, on the very
same day, a majority of voters in the most populous state in the union, California, voted
to deny thousands of their fellow citizens, gay Americans, the equal right to marry. The
California experience is only one of numerous legislative-judicial struggles beginning to
play out on the issue of gay marriage in other states around the nation.

Taking the long view, if history is any guide (and it is), there is little doubt the
discriminatory laws against gay marriage will eventually end up on history’s scrapheap.
The current battles will soon go the way of those of some fifty years ago involving
interracial marriage, during which one Virginia trial court, in upholding the state’s antimiscegenation statute, reasoned: “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference
with his arrangement there would be no cause for such marriages. The fact that he
separated the races shows that he did not intend for the races to mix.” Most Americans
today would view such language with a mixture of shock and disbelief – but it was not
long ago that legislative majorities in sixteen states gave official voice to such ignorant
biases.

Fifty years from now, the current arguments against gay marriage will seem
similarly archaic. As the Reverend Martin Luther King, Jr. limned, “the arc of the moral
universe is long; but it bends toward justice.” For all its faults, the United States
Constitution has, over time, provided a one-way ratchet toward greater, not lesser, liberty
and equal justice – every constitutional amendment but one (the eighteenth, itself
repealed by the twenty-first just fifteen years later), for example, has, if anything,
expanded Americans’ freedoms.

America’s story is remarkable: a Nation, sprouting from the seeds of
Enlightenment principles where “tolerance was a moral virtue, even a duty; no longer
merely the prerogative of calculating monarchs, but a fundamental element of the ‘rights
of man.’” For the first time in history a people – coming together toward the common
goal of liberty and equal justice, and clearly cognizant of human nature’s split personality
between good (freedom) and evil (tyranny and oppression) – created a government
explicitly designed to resolve the tension in favor of freedom.

That is the myth, anyway. But all is not well in the land of milk and honey; for
America’s constitutional structure has failed to thwart government’s moves to the darker
side: its shameful history of slavery and apartheid; its past oppression of women; its
systematic subjugation of Native Americans in violation of sacred treaty promises; its
pervasive discrimination against immigrants and homosexuals; and, among other currentday
repressions, its curtailments of civil liberties and inexcusable use of torture in the ill-considered “war on terror.” Consider also American geopolitics of the last hundred years: World War I Censorship (Congress’s and President Wilson’s 1917-1918 Espionage and Alien Acts imposing egregious punishments on political speech); World War II Nativism (the President’s authorizing the military to force 120,000 people of Japanese ancestry, two-thirds of them American citizens, from their homes and to quarantine them in internment camps for nearly three years; Cold War McCarthyism (powerful committees of both the United States Senate and House of Representatives conducting modern-day witch-hunts of thousands of American citizens accused of having communist sympathies); and Millennial Cheneyism (the executive branch aggressively
exceeding long-accepted constitutional limits on its power – even while operating in a
system that separates powers in order to provide checks and balances on each co-equal
branch).

In each case, prejudice, greed, and political expediency took hold before being
beaten back – for the time being. It is a constant struggle. As much as America has
accomplished in advancing humankind’s perpetual quest for greater Freedom, it has
never completely lived up to its own promise, for whatever reason – whether because of
bitter class wars (Howard Zinn), its economically-motivated Constitution (Charles
Beard), or some combination of these or other factors.

Which viewpoint more accurately describes the true America – the mythic
common-interest pursuit-of-equal-liberty view; the grittier class-warfare explanation; or
the more cynical economic-interest rationale? The reality is that there are elements of
accuracy in each. And it is useful to keep them all in mind: Lest we become swept-up in
misty patriotic myth, we should recall America’s ignoble history of injustices and
intolerance; or, conversely, lest we lose hope, we should remember that the myth and
partial reality of America as beacon of freedom has for centuries truly inspired millions
around the world. In the end, the goals represented in the positive myth are worth
fighting for, both idealistically and practically, for they advance our individual and
collective humanity – and offer a model of ambition, idealism and hope for future
generations.
…

“First, there’s the crazy right, the tea party and death panel people — a lunatic fringe that is no longer a fringe but has moved into the heart of the Republican Party. In the past, there was a general understanding, a sort of implicit clause in the rules of American politics, that major parties would at least pretend to distance themselves from irrational extremists. But those rules are no longer operative. No, Virginia, at this point there is no sanity clause.

“A second strand of opposition comes from what I think of as the Bah Humbug caucus: fiscal scolds who routinely issue sententious warnings about rising debt. By rights, this caucus should find much to like in the Senate health bill, which the Congressional Budget Office says would reduce the deficit, and which — in the judgment of leading health economists — does far more to control costs than anyone has attempted in the past.

“But, with few exceptions, the fiscal scolds have had nothing good to say about the bill. And in the process they have revealed that their alleged concern about deficits is, well, humbug. As Slate’s Daniel Gross says, what really motivates them is ‘the haunting fear that someone, somewhere, is receiving social insurance.’

“Finally, there has been opposition from some progressives who are unhappy with the bill’s limitations. Some would settle for nothing less than a full, Medicare-type, single-payer system. Others had their hearts set on the creation of a public option to compete with private insurers. And there are complaints that the subsidies are inadequate, that many families will still have trouble paying for medical care.

“Unlike the tea partiers and the humbuggers, disappointed progressives have valid complaints. But those complaints don’t add up to a reason to reject the bill. Yes, it’s a hackneyed phrase, but politics is the art of the possible.

“The truth is that there isn’t a Congressional majority in favor of anything like single-payer. There is a narrow majority in favor of a plan with a moderately strong public option. The House has passed such a plan. But given the way the Senate rules work, it takes 60 votes to do almost anything. And that fact, combined with total Republican opposition, has placed sharp limits on what can be enacted.

“If progressives want more, they’ll have to make changing those Senate rules a priority. They’ll also have to work long term on electing a more progressive Congress. But, meanwhile, the bill the Senate has just passed, with a few tweaks — I’d especially like to move the start date up from 2014, if that’s at all possible — is more or less what the Democratic leadership can get.

“And for all its flaws and limitations, it’s a great achievement. It will provide real, concrete help to tens of millions of Americans and greater security to everyone. And it establishes the principle — even if it falls somewhat short in practice — that all Americans are entitled to essential health care.

“Many people deserve credit for this moment. What really made it possible was the remarkable emergence of universal health care as a core principle during the Democratic primaries of 2007-2008 — an emergence that, in turn, owed a lot to progressive activism. (For what it’s worth, the reform that’s being passed is closer to Hillary Clinton’s plan than to President Obama’s). This made health reform a must-win for the next president. And it’s actually happening.

“So progressives shouldn’t stop complaining, but they should congratulate themselves on what is, in the end, a big win for them — and for America.”

The brief is available here.

The brief spends 66 of its 73 pages arguing that the proper constitutional mechanism for incorporating the 2d amendment is the fourteenth amendment privileges or immunities clause (a provision that was improperly buried by the Supreme Court 136 years ago, in The Slaughter-House Cases – as I’ve discussed in these pages previously); then makes the conventional due process argument in the remaining pages.

Alan Gura, the attorney for the petitioners, recognizes the rare opportunity this case provides to right a monumental wrong that was perpetrated by a Southern-sympathetic Court after the Civil War, and he’s done a terrific job making the arguments in this brief.

(My two articles on this topic – “Second Amendment Incorporation Through the Fourteenth Amendment Privileges or Immunities and Due Process Clauses” (in the 2007 Missouri Law Review); and “Rescuing the Privileges or Immunities Clause: How ‘Attrition of Parliamentary Processes’ Begat Accidental Ambiguity; How Ambiguity Begat Slaughter-House” (in the forthcoming 2009 William & Mary Bill of Rights Journal) – are cited in this petitioner’s brief at pages 29 and 52, respectively.)

In “Right and Left Join Forces on Criminal Justice,” Adam Liptak describes how both conservatives and liberals are coming around to a position of agreement that government exercises too much power on matters of criminal justice. (The notion of excessive government power is something I’ve discussed here previously.)

It is great news for all libertarians – civil, progressive, minimalist alike – that conservatives are coming around from their “tough-on-crime” posture they’ve held since the days of Nixon, to recognizing that government simply too involved in criminalizing individual activity.

Liptak reports:

“‘It’s a remarkable phenomenon,’ said Norman L. Reimer, executive director of the National Association of Criminal Defense Lawyers. ‘The left and the right have bent to the point where they are now in agreement on many issues. In the area of criminal justice, the whole idea of less government, less intrusion, less regulation has taken hold.’”

“Edwin Meese III, who was known as a fervent supporter of law and order as attorney general in the Reagan administration, now spends much of his time criticizing what he calls the astounding number and vagueness of federal criminal laws.

“Mr. Meese once referred to the ACLU as part of the ‘criminals’ lobby.’ These days, he said, ‘in terms of working with the ACLU, if they want to join us, we’re happy to have them.’

“Dick Thornburgh, who succeeded Mr. Meese as attorney general under President Ronald Reagan and stayed on under President George Bush, echoed that sentiment in Congressional testimony in July.

“’The problem of overcriminalization is truly one of those issues upon which a wide variety of constituencies can agree,’ Mr. Thornburgh said. ‘Witness the broad and strong support from such varied groups as the Heritage Foundation, the Washington Legal Foundation, the National Association of Criminal Defense Lawyers, the A.B.A., the Cato Institute, the Federalist Society and the ACLU.’”

A Heritage Foundation report shows that there are “more than 4,400 criminal offenses in the federal code, many of them lacking a requirement that prosecutors prove traditional kinds of criminal intent.”

Liptak continues: “Harvey A. Silverglate, a left-wing civil liberties lawyer in Boston, says he has been surprised and delighted by the reception that his new book, ‘Three Felonies a Day: How the Feds Target the Innocent,” has gotten in conservative circles. (A Heritage Foundation official offered this reporter a copy.)

“The book argues that federal criminal law is so comprehensive and vague that all Americans violate it every day, meaning prosecutors can indict anyone at all.

“’Libertarians and the civil liberties left have always had some common ground on these issues,’ said Radley Balko, a senior editor at Reason, a libertarian magazine. ‘The more vocal presence of conservatives on overcriminalization issues is really what’s new.’ … ‘Conservatives now recognize the economic consequences of a criminal justice leviathan,’ said Erik Luna, a law professor at Washington and Lee University.”

It is a rarity for folks from across the political spectrum to find common ground; but it is encouraging that there seems to be some broadening agreement on lessening the proliferation of criminal statutes.

Ignatius reports that at a Dec. 1 luncheon for columnists in the White House library, Obama said:

“‘If I were basing my decisions on polls, then the banking system might have collapsed, and we probably wouldn’t have GM or Chrysler, and it’s not clear that the economy would be growing right now.’” “Some presidents have an almost compulsive need to be popular (think Bill Clinton),” Ignatius continues. “This one is less needy, which is an advantage for him and the country.”

Regarding the president’s planned surge in Afghanistan, Ignatius comments, “there were the two juicy nuggets that stuck in my mind, which hint of a broader and more creative approach to governing and diplomacy. They suggest the strategic thinking in the back of our professorial president’s mind….

[First, Obama said:] ‘Part of the goal of my presidency is to take the threat of terrorism seriously but expand our notions of security so that it includes improving our science and technology, making sure our schools work, getting serious about clean energy, fixing our health-care system, stabilizing our deficit and our debt.’ This may sound like boilerplate, Ignatius suggests, “but it’s actually a pretty good manifesto for governing.”

“Making responsible policy decisions isn’t easy, and in the case of bailing out bankers or sending more troops to Afghanistan, it will leave nearly everyone unhappy. But Obama seems newly comfortable making enemies if he thinks he’s doing the right thing.”

The second insight involves the role of the Taliban. Responding to Ignatius’s question about whether he would back reconciliation with the Taliban, Obama said: “‘We are supportive of the Afghan government’s efforts to reintegrate those elements of the Taliban that . . . have abandoned violence and are willing to engage in the political process.’

“Obama sent more signals that night at West Point: He dropped the language from his March 27 speech on Afghanistan insisting the Taliban’s core ‘must be defeated’ and promised only to ‘reverse the Taliban’s momentum and deny it the ability to overthrow the government.’ He also pledged to ’support efforts by the Afghan government to open the door to those Taliban’ who are ready to make peace.

“The Taliban gave an interesting response a few days later on its Web site, Alemarah.info. It said the group ‘has no agenda of meddling in the internal affairs of other countries and is ready to give legal guarantee if the foreign forces withdraw from Afghanistan.’ Now, what did that mean? Was it a hint the Taliban might break with al-Qaeda? I don’t know, but I hope the White House is asking Saudi Arabia and Pakistan to find out.”

Ignatius concludes: “Obama has a cool and detached style that makes people forget, sometimes, that he is an innovator and a change agent. He would be wise to show the country less of the mental teleprompter and more of the fire inside.”

Don’t get me started…. Let’s just limit the topic for the moment to the entire idea that 41 senators can essentially destroy legislation a majority of Americans AND a majority of Congress want. This is egregiously anti-democratic. Harold Meyerson in his “The Do Nothing Senate” column in the Nov. 11 Washington Post describes the problem well:

“A catastrophic change has overtaken the Senate in recent years. Initially conceived as the body that would cool the passions of the House and consider legislation with a more Olympian perspective, the Senate has become a body that shuns debate, avoids legislative give-and-take, proceeds glacially and produces next to nothing. … With each passing day, the Senate becomes more of a mockery of the principle of majority rule — democracy’s most fundamental precept.”

So it’s time to destroy the filibuster. (See, e.g., Chris Bowers’ “Open Left” blog of November 10.) It used to be that the filibuster was used only rarely; now it is used on virtually any legislation – and this outrageously undemocratic practice is standing in the way of Progress.

Contrary to naysayers’ arguments, including a public option does nothing to limit the ability of private insurers to compete – unless by “competition” one means the ability to impose unfair conditions on customers because they have nowhere else to turn under the current oligarchy.

The bottom-line is that a government-run public option would keep the private insurers honest, resulting in better, less expensive coverage for all.

Now the Democrats need to put aside their differences to get behind and pass a plan with the public option. One interesting aspect of Reid’s proposal would allow individual states to “opt-out,” & refuse to participate in the public option – a perfectly reasonable provision that respects America’s federalist structure. This could lead to a very interesting side-show in the states – how many citizens would vote with their feet and leave states that opted out??

Sure, it would be nice if a Republican or two (or even more) would take off their partisan blinders for a moment and consider what Americans truly want and need instead of playing the same old politics, but given the experience of the recent past we won’t hold our breath – so now it’s up to the Senate Democrats to do the right thing and pass this bill.

“Never before in all our history have these forces been so united against one candidate as they stand today,” Franklin Delano Roosevelt said on national radio before the 1936 election, Smith recalls. “They are unanimous in their hatred for me — and I welcome their hatred.”

When he was seeking to make major progressive reform, FDR did not waste his time trying to work with the deeply entrenched obstructionist minorities interested only in maintaining an unjust status quo. He did not consult giant utilities, for example, when he sought to create the Tennessee Valley Authority which would provide affordable electricity throughout the poor South. He did not ask for the permission of Wall Street when he proposed the Securities and Exchange Commission to curb greed. Had he caved to the loud minority who believe that government has no role in providing a social safety net, we would have no Social Security. His arguments for maximum hours and minimum wage laws and the right to bargain collectively were over the heated objections of American business. And, to show that it was not always traditionally conservative vested interests that he faced down, organized labor was vociferous in its objection to the Civilian Conservation Corps because of the low wages paid by the corps.

In short, Smith explains, “majority rule, as Roosevelt saw it, did not require his opponents’ permission.” He assuaged his Democratic colleagues to maintain his majorities, but “his Republican opponents were relegated to the political equivalent of Siberia…. [He] lambasted the ‘economic royalists’ who had gained control of the nation’s wealth. To Congress he boasted of having ‘earned the hatred of entrenched greed.’ In another speech he mocked ‘the gentlemen in well-warmed and well-stocked clubs’ who criticized the government’s relief efforts…. Roosevelt understood that governing involved choice and that choice engendered dissent. He accepted opposition as part of the process.”

By contrast, President Obama’s “fixation on securing bipartisan support for health care reform suggests that the Democratic Party has forgotten how to govern and the White House has forgotten how to lead.” Smith suggests “[i]t is time for the Obama administration to step up to the plate and make some hard choices. Health care reform enacted by a Democratic majority is still meaningful reform. Even if it is passed without Republican support, it would still be the law of the land.”

Really, what does Obama have to lose? Face it: the Right, marching to the tune of the likes of Rush Limbaugh, Glenn Beck, Bill O’Reilly, and Michael Steele, is never going to play ball. Their main agenda is political – whatever it takes to bring Obama down, they’re for. So Obama might as well stand up, like FDR, and say, “to heck with ‘em – we’re going to pass reform with teeth that will create the sort of humane society of which we are all worthy.”

What does that mean? As David Brooks suggests in his column today, “Let’s Get Fundamental”: “There are many people telling [President Obama] to go incremental. They’re telling him to just enlarge the current system a bit and pay for it by pounding down a few Medicare fees. But did Barack Obama really get elected so he could pass the Status Quo Sanctification and Extension Act?

“This is not the time to get incremental. It’s the time to get fundamental. Reform the incentives. Make consumers accountable for spending. Make price information transparent. Reward health care, not health services. Do what you set out to do. Bring change.”

Much of what has made America great was brought about by progressive legislation. If President Obama wants to be a great president who makes lasting, meaningful progressive change, he should stand up, be brave (in his own way, if not in the outright combative manner of FDR), and commit to a strong progressive plan. Accept that the ever-present regressive 40% of American society will bitch and moan about it (but of course they will take full advantage of its benefits once available) – they’ll never change, so might as well just move forward despite them.