The central tenets of the Beltway religion -- particularly when a Democrat is in the White House -- have long been "centrism" and "bipartisanship." The only good Democrats are the ones who scorn their "left-wing" base while embracing Republicans. In Beltway lingo, that's what "pragmatism" and good "post-partisanship" mean: a Democrat whose primary goal is to prove he's not one of those leftists.

1. This isn't true. Republicans are roundly condemned for being excessively partisan all the time; see Newt, Bush himself, Reagan at points, etc. Bipartisanship is a two-edged sword.

2. Whether or not you like it, DLCism is the only way Democrats can win national majorities. Just look at the tax rates from 1933 on. Only 30 years ago, this used to be a nation that didn't mind 60%, even 90% income taxes on our wealthiest citizens. We also used to be a nation in which welfare wasn't a dirty word. In the 80s, Reagan really won the ideological war, and the Democratic Party, under Clinton's leadership, finally came to grips with that and quit putting up kamikaze candidates like Mondale and Dukakis, and though as a liberal you're perfectly entitled to vent your frustration with Third Way talk, the Third Way's really the only way for people on your side of the aisle, and will continue to be until (a) this country changes a lot demographically (although who's to say that 50 years from now Hispanics and blacks won't vote Republican in large numbers), or (b) we undergo a recession of such a length that attitudes towards a large welfare state undergo a dramatic shift. But even then, that wouldn't engender changes in attitudes towards torture and civil liberties, which is what you're primarily worried about; if anything, the worse the economy gets, the more fearful people are of crime, terrorism, etc. and the more open they are to repressive means of control. So at some point I think you have to accept political realities. Americans don't like Bush, but I don't think they're eager for the President to spend his time overseeing a truth commission for people that they don't think necessarily did anything wrong; you look at the polling on torture and it's not all that opposed.

You're calling him an apologist for lawless policies because he disagreed with the panel decision in Al Marri, one that was reversed en banc, and because he supported various laws that you well know no court will ever hold violate the Constitution. You may think that these are bad laws (I do too), that the Fourth Circuit was wrong, but they're not lawless policies. Why can't you just say that Professor Kerr, the Fourth Circuit, Congress, the President, and the President-elect on the one hand, and you on the other hand, have a policy disagreement, and you think all these people are wrong as a matter of policy and as a matter of interpreting the Constitution? That would be a lot more honest.

"The Alien and Sedition Acts weren't lawless, per se, though they were plainly unconstitutional."

Perhaps the second most asinine thing I have ever read here (next to anything by LWM). I say perhaps because it seems so stupid, I must be missing something.

IANAL obviously but... if a "law" is inherently unconstitutional then isn't by definition "lawless" to enact it or enforce it?

Not really. The Constitution's what the Court says it is. Until the Court says something (and back in John Adams's day it hadn't said anything about what the First Amendment meant at all), laws are presumptively constitutional. Even if it's very obvious to some people that they're not. Now, it was Jefferson's opinion that those laws were unconstitutional, and he wouldn't enforce them - good for him - but the people who did enforce them, believing in good faith that they weren't violating the Constitution, were not acting in a lawless manner. Anyway, FISA's a far tougher question. There are very good arguments that it isn't unconstitutional, and Glenn himself would tell you that the odds of a court ever finding that it is are very slim. Of course, maybe that means the courts are apologists for lawless policies too, in his mind; I can't speak for the guy.