BTW, I think we look more like los tres amigos than a Roman triumvirate.

I don't want to be construed as a critic of the police.  I personally think that they do an excellent job in difficult circumstances, where they are trying to balance free speech, the right of free movement, the safety of the students, and the safety of the public, in the educational setting.  The point I was trying to make in the podcast is that it is very hard to pass judgment on these matters because protesters deliberately seek conflict with the police and use edited videotapes to try to place the police in the worst possible light.  That said, I think that using pepper spray should be generally unnecessary unless the officer is trying to defend himself from the use of force by the protesters (as occurred in the Oakland protests, for example).  If the protesters are sitting on the ground, even with arms linked, and refuse to move, and they are not there legally, then I think the police should pick them up and carry them off without the use of pepper spray. It might even be sensible to leave the protesters there until they leave on their own rather than to allow them to create a confrontation.

I think this will work out in Congress's favor, because the White House doesn't have a strong claim of executive privilege here.  First off, executive privilege would only apply to discussions within the White House, or those between the President and his top advisors.  Emails sent between the White House and people in the agencies or totally outside the executive privilege would have only the weakest of claims.  Second, executive privilege is at its strongest when involving military, diplomatic, national security, and law enforcement matters, and at its weakest when administering a simple domestic spending program.  The White House could risk having its officials being held in contempt of Congress, and then ultimately prosecuted by the U.S. Attorney, but ultimately because its claim of privilege is so weak, it will turn over the documents.

As ever, Richard is more profound and provocative than I, despite my best efforts.  I have one comment to add -- I agree with him that Marbury, correctly read, allows for judicial view, but not judicial supremacy.  Congress cannot force the courts to enforce an unconstitutional law, but neither can the courts force the other branches to follow its own unconstitutional decisions.  But I am not sure why Richard thinks that a Justice who thinks Marbury was wrong must still follow it.  Does it have to do with institutional and political stability?

But the job of the Supreme Court is different.  It is not to make policy, as with the common law courts, but to interpret the Constitution.  There are only nine Justices, not the thousands that make up the common law system of the states.  And the nine Justices are to be compared to the hundreds in Congress or the thousands in the executive branch -- it is quite likely that the stare decisis of the Supreme Court does not enjoy any superior expression of the reasonable judgments of the community over time in comparison to the other branches of government.

And then there is the third reason, one alluded to by Bork.  When common law courts make mistakes, they can be overruled by the legislature.  Stare decisis represents acquiescence by the legislature.  But when the Supreme Court makes a mistake, the other branches must amend the Constitution - 2/3 of the Congress, 3/4 of the states - to overrule it.  So the Court must have greater freedom to correct its own mistakes.

Liberals often claim that conservatives must follow stare decisis and when they do not, they are activist (this, of course, is never seen as a failing of liberal judges).  But I have always doubted that stare decisis is a doctrine that conservatives should favor on the Supreme Court.  For the common law, that is, decisions by state judges on matters such as contracts and torts, I can see a case for stare decisis.  Earlier decisions represent the application of principles to new facts by thousands of judges over time -- stare decisis represents the considered wisdom of the community of the present and the past, along the lines of Burke's defense of custom and tradition.

I dissent!  I worked for Senator Hatch in the mid 1990s, so I may be biased.  But I think Sen. Hatch has done more for conservative principles than most other Republican Senators because of one thing: his fight for conservative judges.  Hatch led the fight to defend Robert Bork, and most importantly, he was the crucial figure in the Senate who won the confirmations of Justice Clarence Thomas (another former employer) and Justice Antonin Scalia, the elevation of William Rehnquist to the Chief Justiceship, and the appointment of scores of Reagan conservatives to the lower courts.  For all of the fighting over the budget today, which of course is important, Hatch's promotion of conservatives to the bench -- in my view -- was a far greater achievement for the fight against unrestrained leftism.  Imagine what our country would be like if liberals had continued their successes in using the federal courts to impose their values on the country by evading the democratic process and the constitutional system.

That is essentially the approach that explains why school vouchers used at Catholic schools have survived judicial scrutiny.  Under this test, it seems to me that a diplomatic spending initiative where some of the money found its way into the hands of religious groups would be OK under the Establishment Clause.
A second hard question is whether the Establishment Clause should even apply to the U.S. government's actions abroad.  As far as I know, the Supreme Court has never really decided this question.  To me, it would seem that it should not.  Suppose the U.S. were to wage a war against a country that was dominated by a religious group and acted solely according to that religion's dictates (anyone have any suggestions of real world applications?).  Would the war violate the Establishment Clause?  Or suppose the U.S. in its foreign policy supported attacks on the messages of religions that are harmful to US interests?  I cannot imagine that would violate the original understanding of the Establishment Clause either.  The point, in my view, was the stop the government from setting up state churches at home, not attacking them abroad.

Tommy raises an excellent question, with two difficult problems within (I'm with him on the policy, by the way -- why the U.S. is funding any of this is beyond me).  The first is whether the government can provide any money to religious groups, whether for historical restoration or not, without violating the Constitution's Establishment Clause.  Without getting to deeply into legalese, the Supreme Court used to follow something called the appropriately-named Lemon test, which boiled down into whether government financial support of a religious group excessively entangled government in religion -- with excessive entanglement being in the eyes of the beholder.  More recently, a wavering majority on the Court has used something called the endorsement test: would a reasonable observer think that the government was endorsing the religion.  I think these tests are both silly.  What we should be asking is whether the government aims to support a specific religion because it is a religion, or is the religious group partaking of generally available programs simply as a group with a specific ideology or belief among many others.  (continuing below)

Great photo -- except I would never, ever, ever, never, ever be caught dead in a Cardinals uniform.  I'm a Phillies fan.  Though any team that would have Epstein in the Yogi Berra role would get a second look.

On Peter's second point, those who claim that "the ends don't justify the means," are trying to appeal to a Kantian notion of justice.  But it should be clear that Kantians cannot run a government, and anyone who strictly holds to Kantianism can never serve in government.  Every government decision is a trade-off of costs and benefits, and our elected officials are elected precisely because they must ask some to sacrifice in order that others may benefit.  This ranges from seemingly small decisions, such as making more fuel-efficient cars that lead to higher traffic fatalities, to large ones like asking future generations to pay so that we can spend more now.  In fact, the ends justifying the means is an essential part of war. We ask young men and women to risk their lives, sometimes to sacrifice their lives, so that some greater objective can be realized -- whether it be taking a tactical objective or achieving the nation's war aims or protecting American civilians. If the ends really don't justify the means, then our government would be unable to fight any war, because in war we kill human beings who hold allegiance to our enemy, and in fighting we accept that human beings on our own side will die.  If you really believe the ends don't justify the means, would you not just be willing to have Osama bin Laden running around, but would you be willing to give up on the use of nuclear weapons as a form of deterrence, of the use of the atomic bomb to end World War II with Japan, or the use of strategic bombing against Germany, not to mention orders that soldiers fight and perhaps die on our battlefields not just in self-defense, but to advance American national interests?

People can have different opinions whether the interrogation methods used by the CIA, which only culminated in waterboarding (which occurred to only three al Qaeda leaders), passes this line.  I agree with Peter that it does not.  But you don't need to take my word or Peter's word for it.  You can take Congress's word.  Because when Congress enacted follow up laws in 2005 and after on interrogation methods, it refused to include waterboarding or any of the other CIA interrogation methods in its definition of torture.

I have to speak up in Peter's defense here, on these two points.  First, what someone thinks may be torture will vary among many different people.  But that is not the key issue.  The key issue is what Congress believed torture to be when it passed the federal anti-torture statute.  Here is what it said in 2001: "an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control."  Congress unquestionably intended this prohibition to be narrow, much narrower than many popular understandings of torture.  The alleged torturer must have acted with "specific intent," the highest level of criminal intent known in the law -- the difference between pre-meditated, first-degree murder, and manslaughter.  Torture is not just any pain or suffering, but severe pain or suffering.  Mental suffering, the statute says, has to be prolonged and arise from specified acts, such as the use of mind-altering drugs and threats of imminent death.

The New York Times complaining about the return of state rights at the Supreme Court is like a President who has driven the annual deficit beyond $1 trillion whining that a $50 billion cut in spending amounts to the end of the welfare state.  The truth of the matter is that the Roberts court is nowhere near bringing back a return of states' rights. The Rehnquist Court tried for almost 20 years and only slowed down the growth of the federal government at the margins.  No clearer proof can be found than the Court's approval of the federal court take over of California's prisons. What greater intrusion into state sovereignty could there be than federal judicial management of a state institution like a prison?

San Francisco continues to deserve its reputation as one of the nuttiest cities in America. I could see the city banning hospitals from circumcision as a general practice.  But it seems to me that a absolute ban would interfere with the free exercise of religion of those who want circumcision for their newborn babies because they are Christian or Jewish.  Also at issue, I think, is the rights of parents to make decisions about the religious practices and upbringing of their children.  To me, I think this is not an issue remotely like cases where parents are abusing their children or threatening their health and welfare to justify state intervention.

For insight into the Framers and the Presidency (an a great many other constitutional issues), there is still no better place to begin that Gordon Wood's The Creation of the American Republic.  There is a deluge of articles and books on a variety of specialized issues involving the Presidency, many of which are cited in the endnotes to Crisis and Command, but I think it is always worth starting with the classics.The short answer to the question is that I think the Constitution restrains the President far more than the Supreme Court, because the Constitution creates a political system in which the Congress and President continue to struggle to lead using their constitutional powers and political capital.  But a presidential system, particularly of the American variety, is the outlier -- most developed nations use the parliamentary system, which does not divide the executive and legislative branches as cleanly as does ours.