Strengthening Constitutional Self-Government

No Left Turns

Paradigm Shift

Victor Davis Hanson tries to account for "this sudden independent action abroad while becoming ever more skeptical of traditional alliances." He thinks the general public has a clearer understanding of what he calls the "post-Cold War teenager syndrome" (that perpetual dependency creates envy and jealousy) than do the elites (and Europeans). So the real story, he writes, is not global "anti-Americanism", "but perhaps a growing American weariness with strident allies and the braggadocio of pathetic Middle Eastern despotisms." And Hanson has some suggestions on what we ought to do. Very interesting stuff. 

Danis Thatcher

John O’Sullivan writes a touching piece on the late Denis Thatcher.

Missing GI’s found dead

The Two soldiers who have been missing for days have been found dead, north of Baghdad.

Nation of Grinders

David Brooks writes a very thoughtful and readable essay using Lincoln to great effect. He is trying to understand success. Lincoln’s simplicity, humility, and work ethic (plow horse like) should appeal to the young--too many of whom want to get rich as fast as possible--argues Brooks. He thinks that most successful people, like Lincoln, also have a core faith inn the moral power of hard work. Here is a paragraph, but read the whole thing; light and breezy.

"In the land of the plow horses, wealth is acceptable because it is legitimized by the creed of social mobility, which in many ways originated with Lincoln and the Whig Party, of which he was a member for most of his career. According to this creed, affluence is admired because it is the product of hard work, and it does not corrupt because you continue to work even when you don’t have to anymore. According to this creed, social mobility is the saving fire that redeems society. Social mobility opens up horizons because people can see wider opportunities and live transformed lives. Social mobility reduces class conflict because each person can build his own fortune, rather than taking from the fortunes of others. Social mobility unleashes creative energies and keeps everything new and dynamic. It compensates for inequality, because the family that is poor today may become richer tomorrow. It is the very essence of justice, because each person’s destiny is somehow related to the amount of talent and effort he or she pours into life. The purpose of government is to ensure that there is, to use Lincoln’s words, ’an open field and a fair chance’ so that everyone can compete in the race of life.

This is the sensible, steady and admirable ethic of American life. And people who hew to this ethic are still rewarded. If you get an education, get married and stay married, the odds are overwhelming that you will rise. If you migrate here from a developing country, and if you work hard, the odds are pretty good that you and your children will enjoy brighter and more open futures."

Comments on the Supremes

Shelby Steele does not like the Sureme Court decision, not at all. He is especially good on beating up on Justice O’Connor. A must read. Charles Krauthammer has, perhaps oddly at first sight, a more optimistic take on the decision: Since the Court seems to have said "we don’t want anything to do with this," the question of racial preferences and the correct understanding of equality is now reopened for political debate. It’s back in the hands of the people and legislation. The question remains, are the people up to it? We’ll find out. Good article.   

Steyn on Strom

Behold, Mark Steyn’s farewell to the late senator from South Carolina. Nothing I say here can do it justice; read it for yourselves.

The EU’s Constitution

James Lileks has a typically witty column on the new constitution of the European Union. He’s particularly amused by the constitution’s "Charter of Fundamental Rights, a laundry list of goodness that should stand as a warning against convening a constitutional convention in the era of the busybody bureaucrat."

The best part is his description of Article 24:

"’Children have the right to demand chocolate milk be poured on their cereal, and to request that the cereal be made entirely of glazed donuts and marshmallows, and to hold their breath and turn blue. ("Blue" shall be defined as any hue between light sky-blue and a deep Cerulean tint.)’

"Well, again, not exactly. Article 24 concerns ’The Rights of the Child,’ and states that kids ’may express their views freely.’ So it’s a deprivation of their constitutional rights to tell them to knock off the whining. The right to whine for candy bought with someone else’s money -- can you get any more European than that?"

Landslide 2004

Fred Barnes offers six reasons why George W. Bush will likely be re-elected in a landslide in 2004.

Environmental Colonialism

This is very good (and long) scholarly article (as PDF file) by Robert H. Nelson on how the environmentalists have, as it were, re-colonized Africa. Local populations have been displaced and impoverished in order to create national parks and to serve other conservation objectives, in large part because Western conservationists misunderstand African wildlife management practices and problems.  

Killings in Baghdad, slightly concerned

American soldier shot in the head while buying a video disc at a shop. This, and other daily incidents, are beginning to add up, and I don’t mean just the numbers. They are starting to have an effect on how the whole Iraqi operation is being viewed and perceived, by both us and them. The regularity and predictability of the attacks (and deaths) on Americans and Brits is a bad sign. If this continues for another--say--four weeks, a new kind of understanding will follow, from both us and them. Also, the Bush administration will have to start becoming a little clearer on the issue; they will have to give better and more persuasive speeches, speeches of both understanding and explanation. Although I think they are up to it, I am becoming slightly concerned.

al Qaeda, the new generation

Radio Free Europe reports: "A new report from a UN expert group says a "third generation" of Al-Qaeda members has emerged and that the network continues to operate around the world with a high degree of mobility and financial support. The report notes some success in capturing top Al-Qaeda officials and breaking up their cells, but it says the group must still be considered a threat to international security. The report also finds no evidence linking Al-Qaeda to the former regime of Saddam Hussein in Iraq." Note the claimed connections between Chechneya and Bosnia, among other interesting tidbits. And ABC News reports this: "Chechen rebels ambushed and killed five Russian troops and pro-Moscow policemen responding to an emergency call about the shooting of a village elder, officials said Friday.

In a separate incident, two Russian servicemen were killed and two others wounded by a land mine in the Chechen capital, Grozny."

Harry Potter

I wrote a little piece on Harry Potter and my son John’s enthusiasm for the first volume of Harry Potter some four years back. He is now fifteen, and waited impatiently for the recent volume. Got it on midnight that Friday, started reading it immediately and except for the necessities of life, read until he finished. I think he finished it on Tuesday morning. Becky, our eighteen-year old, did the exact same thing (we bought two copies). They are now re-reading all the other volumes from start to finish. (I think it will be fifth time for the previous volumes). All this, of course, is extraordinary even for bookish kids. I applaud it. They can talk about the stories in extraordinary detail, the way some of my friends have conversations about the Xenophon’s Education of Cyrus. I asked them why are they going to re-read the whole set, once again, from start to finish? Will that not be boring? Becky said that it will not be because, one, she will have forgotten some things in them, and, two, she will now understand some things in the previous volumes that were too nuanced heretofore, that the following (and especially the last) volumes help make clear. I believe all this is a very good thing for children, and I applaud it. Praise to the author.

The Ninth Amendment

A reader comments on Peter’s post "Lap Dancing on the Constitution" (below) to suggest that the Lawrence Supreme Court majority should have found the liberty interest to engage in homosexual sodomy not in the "liberty" covered by the Due Process Clause of the Fourteenth Amendment, but in the Ninth Amendment. The Ninth reads, "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." This suggestion deserves comment.

The Ninth Amendment is a real tough constitutional nut. If it creates constitutional protection for, say, sexual privacy, which is not otherwise enumerated in the Constitution, there is absolutely no principled legal basis whatsoever to deny constitutional status to every other right anyone could imagine. Most lawyers think that result can’t be right. On the other hand, if you say the Ninth Amendment doesn’t create any constitutional rights, it then becomes a dead letter. That result doesn’t seem right, either.

The best solution to this puzzle I’ve seen & heard comes from Lawrence Claus, a law professor at the University of San Diego. He suggests that the Ninth Amendment means to stop legislators & judges from construing -- note that the Amendment does speak of "construe" -- the rights that the Constitution does enumerate to annihilate the rights it does not. So, even though the First Amendment enumerates a right to free speech, that right should not be construed to deny or disparage other citizens’ right to be free from defamations. Or, assuming that the Fourteenth Amendment covers the "liberty" of sexual privacy, that liberty should not be construed to deny or disparage, say, young men & women’s right to enter into stable and long-lasting marriages, or childrens’ right to be reared in a stable family.

So the Ninth Amendment isn’t a fix-all. If it applies, it points right back to the $64,000 questions in Lawrence: How does sexual conduct outside marriage affect public morals, and do those morals support the stability and the social functions of the family?

Lap Dancing on the Constitution

George Will nails this sodomy ruling: "The question is not whether states are wise to criminalize this or that sex act outside of marriage. Rather, the question is: Once the court has said that some such acts are constitutional rights, by what principle are any of the myriad possible permutations of consensual adult sexual activities denied the same standing?" Please read the whole thing.   

A Woman, a French Woman

In the end, it is not hard being an optimist, even about France. Here is another reason why. This is the young French woman--some say the new Joan of Arc--who has been leading an uprising, as it were, against the French unions that have crippled the country and the French Left in general. Here is a report on her visit to England, where she is called "France’s Lady Thatcher." I hope it might be said of her, as Prospero says of Miranda to Ferdinand: "Thou shalt find she will outstrip all praise."

Cakes and ale

Had a couple of pleasant hours late last night, and maybe some Falstaffian moments, with some of the high school teachers from the seminar in a local watering hole. "If sack and sugar be a fault, God help the wicked! If to be old and merry be a sin, then many an old host that I know is damned."

Africa, front and center

President Bush has called on Liberia’s president, Charles Taylor, to resign in the interest of halting a three-year rebel conflict that has fractured the West African country, spurred a regional refugee crisis and left hundreds dead. Bush starts his African trip on July 7th; he will visit Senegal, South Africa, Botswana, Uganda, and Nigeria.

Why Maureen is so mad

Regarding New York Times columnist Maureen Dowd’s latest fulmination against Supreme Court Justice Clarence Thomas:

It seems to drive Dowd up the wall that Clarence Thomas opposes affirmative action, even though he (allegedly) benefited from it.

She doesn’t seem to grasp that someone could benefit from racial preferences, yet still decide they are morally and constitutionally wrong.

As a practical matter, I wonder what she thinks Thomas should have done when he was offered opportunities for advancement. Did she want him to refuse those opportunities, saying something like ``I think you’re giving me this opportunity only because I’m black, and that’s wrong. Therefore, I’ll decline and take a job at Burger King instead.’’

As another practical matter, in a world where racial preferences are policy, how can any black (outside of pro sports) ever know for sure whether an offer of advancement is genuinely based on his abilities, or comes because of his skin color? The white people who offer the opportunity are naturally going to tell him it’s because he’s the best candidate, even if the real reason is his color.

It’s also interesting that she mocks the idea that Thomas was the best candidate for the Supreme Court when he was nominated. When nonliberals even hint that a black advanced because of his race rather than his ability, liberals scream RACISM in capital letters and exclamation points.

Dowd should face the fact that what really fuels her rage is that Thomas is a black who isn’t being properly deferential, respectful and GRATEFUL to the kindly liberal white folks who think they "gave" him his success. He ran away from the liberal plantation and for that Dowd wants him brought back and horsewhipped.

Churchill at Work

Larry Arnn has a letter to the editor in today’s Wall Street Journal called, "Late Nights, Late A.M.s, But Still a Master of All." Because there is no link (it only appears in the dead tree version) I reproduce it all below:

In regard to the charming article by Quentin Letts, "Breakfast With Winston," editorial page, June 12: It is true that Winston Churchill was often in his pajamas at 9:30 a.m., but he usually went to bed at 2 a.m. And, pajamas or no, he had been reading newspapers, having breakfast, and answering mail since 7 a.m.

In addition, Churchill found time to paint, build brick walls and dig ponds. He wrote several dozen large tomes of high quality, his own speeches running to thousands of published pages, and countless memos and state papers that can all be read in the document volumes of his biography by Sir Martin Gilbert. He wrote for the press in a quantity rivaling a full-time journalist. Churchill accomplished all this because he was a genius and worked long hours at great speed. He had mastered the type of leisure that is almost infinitely productive, as well as cultivating of the soul.

A better example for Mr. Letts would be Arthur Balfour, a very different sort of man than Churchill, but a man whom Churchill admired deeply. Churchill described Balfour, who had been born to great wealth and high station, as a man who "did not mingle in the hurly-burly. He glided upon its surface. . . . He very rarely rose before luncheon."

Churchill knew better than MacMillan the frustrations of dealing with America, the new greatest power in the world. He had begged our president to make the second invasion of Europe further east, so as better to counter the Soviets. In this and some other matters of great importance he failed, to his vast frustration. But he also knew America and toward the end of his life said, "We must persevere steadfastly and faithfully in the task to which, under United States leadership, we have solemnly bound ourselves. Any weakening of our purpose, any disruption of our organization would bring about the very evils which we all dread, and from which we should all suffer, and from which many of us would perish."

Iraqi Passions

This Washington Post article gives a good recounting of how the six military police officers were killed. It is not a pretty story. Most were killed at close range, after they ran out of ammunition. This attack on the Brits, I think, is noteworthy because it seems to be a different attack in kind compared to the ones on Americans around Baghdad. It seems to have been a situation where where hot tempers led to uncontrolled passions on the part of the Iraqis; no self-control, just the heat of anger controlling events. Reminds me of an urban riot in the States. This may reveal the difficulty of self-government in Iraq more than the other kinds of attacks do, which, after all, are really military in nature. This one reveals the habits and dispositions--the character--of the Iraqi people. Although I am not surprised by it, yet, it is shocking. Not a good sign.

Democratic Ennui

The New York Post reports that "Democratic lawmakers and aides said yesterday there is growing interest in tapping Sen. Hillary Rodham Clinton as the Senate Democratic leader if Sen. Tom Daschle retires next year." The fact that such a thing is even being discussed--considering that Senator Clinton has been in the Senate only two and a half years--shows that the Democratic Party is in deep trouble. What substance there is left of the party is being abdicated to the Clintons (this is meant to be plural). The AP runs a fundraising preview for the quarter, and it is not impressive for any Democrat. They are hurting, and no one is catching fire. And Lieberman is prepared to miss almost a month of voting on such things as Medicare, to raise money; he is heading West where the big money is; he needs a breakthrough, and fast, or his campaign may collapse.

The only candidate that anyone is talking about with any effervescence is Howard Dean, but he is, to say the least, struggling with his voice. He gives pretty good speeches, but is terrible in debates and interviews.
This analysis of Howard Dean’s arrogance and foolsihness regarding Iraq by William Saletan is excellent. It is a study of his achilles heel.
And the liberal John B. Judis argues in brief that it is very imprudent of the Democrats to ignore Iraq and foreign policy in general. The daily front page news is not what they are talking about. How could that be? And Walter Shapiro says that it is an exciting race among the Democrats because almost any one of them could win the nomination and that victory could have to do with the "accidents of timing." I think it is boring because any one of them could win and that victory could well be the result of an accidents of timing.

Hillary book sales

Drudge says this (if someone has the source, send it to me please): "Hillary Clinton’s ’Living History" sells 168,676 in second week according to Nielsen Bookscan data, down more than 50% from opening week [438,701]. Geographic Place For Clinton sales: City 38,474 // Suburb 93,516 // Rural 36,686... Remains #1 non-fiction sales phenomenon... Harry Potter ’Phoenix’ sells 3,878,566 [U.S]..."

Justice O’Connor and her replacement

Both Richard Cohen and Michael Kinsley think that Justice O’Connor is quite confused, and this decision is anything but helpful. John Fund proposes that her replacement be Justice Janice Rogers Brown of the California Supreme Court. She is a very thoughtful and interesting person. She once said of some of her colleagues on the court that they "have an overactive lawmaking gland." She clearly does not. She also has an interesting background; worth paying attention Justice Brown.

Tour de Freedom

I say if Armstrong wins a 5th, he should get to rename the event. That would be my vote, anyway.

Tour de France

The Tour de France begins on July 5 and this site has a good explanation of the route and other information. I mention this, not because I am interested in politics, or anything like that, but because I am a sport enthusiast, and, in my youth, tried to ride. Oh, yes. One more thing. Lance Armstrong, an American will be going for his fifth straight victory. And, I am told, he is in good shape. Now, let’s see, who should we root for?

Executive Orders and Gephardt

Eugene Volokh writes in detail and with precision on the Gephardt comment (and following attempted clarification, which was a mistake, he just kept digging himself in a deeper hole) on issuing an executive order if he, as president, were to disagree with a Supreme Court ruling. Very much worth reading. Also note this excellent paper on the history of executive orders by Todd Gaziano. Note his claim that it is not only the number of executive orders of a president that are important to note, but their substance. It seems clear, for example, that Clinton used them to circumvent legislative authority when he knew he couldn’t get the legislature to do what he wanted; and he seemed to be proud of having done so. Dangerous. Well worth reading and putting aside for later use.   

Connerly on Bush’s Statement re: Grutter and Gratz

In an interview, Ward Connerly neatly points out the problem with Bush’s statement on the Grutter and Gratz cases. Here’s what the president said:

I applaud the Supreme Court for recognizing the value of diversity on our Nation’s campuses. Diversity is one of America’s greatest strengths. Today’s decisions seek a careful balance between the goal of campus diversity and the fundamental principle of equal treatment under the law.

Now for Connerly’s observation:

But the more you read that [i.e., Bush’s statement], the more you begin to realize how far we have gone astray here, when it comes to the point that we’re balancing a constitutional command, namely equal treatment under the law, with the goal of diversity, which is nowhere to be found in the law! (Emphasis added)

Thus did O’Connor sacrifice a constitutional mandate before the idol of diversity.

Bush touts diversity as a laudable goal to be balanced against the equal protection of the laws. Instead, he should speak of diversity as the natural byproduct of laws that protect each citizen’s liberty equally. In so doing, he could recover the proper definition of civil rights as rights of citizenship that in no wise depend upon the color of one’s skin. Simply put, race should not be the measure of anyone’s rights under our Constitution.

Sullivan on Dowd

Andrew Sullivan ably shreds Dowd’s offering. Worth a read. 

Dowd’s Merit

I’ve suggested on this page before that Dowd has a little problem with racial stereotypes. She confirmed this anew in today’s column, in which she pulls out all the stops.

First, Dowd asserts that Thomas got into Yale Law School and picked for the Supreme Court thanks to his race. Yet what proof does she offer for this? Are all Black admittees to Yale Law School there because of their race? No. In fact, this is one of Thomas’s key points: that affirmative action leads to these kind of incorrect assumptions. Yet Dowd doesn’t entertain for a moment that Thomas could have been admitted for any reason other than skin color. Ah, more proof of the benefits of affirmative action.

Yet if anyone proved herself to be an "affirmative action baby" today, it was Dowd, who demonstrated that she couldn’t understand even the simplest argument in Thomas’s opinion. She states that "Justice Thomas scorns affirmative action as ’a faddish slogan of the cognoscenti.’" But anyone who read the opinion knows that Thomas wasn’t talking about affirmative action with that phrase. First, it is worth reading the phrase in context (I suppose I should be grateful that this time she chose to distort the quote in her own voice, rather than using ellipses). What Thomas actually said was: "The majority upholds the Law School’s race discrimination not by interpreting the people’s Constitution, but by responding to a faddish slogan of the cognoscenti." The slogan to which Thomas refers is not affirmative action, which is a popular political phrase for "benign discrimination," but rather "critical mass," the meaningless phrase invented by the cognoscenti and relied upon by the majority to justify its ruling. Such a poor reading by a New York Times columnist. Oh well, applying Dowd’s reasoning, we all know that she got her job at the Times strictly on the basis of merit.

Dowd then argues that "despite his racial blessings" Thomas comes across as "an angry, bitter, self-pitying victim." But is difficult to read Thomas’s opinion as Dowd does, unless you make the assumption that Thomas must support affirmative action because he is Black. Don’t you see, all Black people think alike, or at least they should for Ms. Dowd. If they don’t, why then they are angry, bitter, self-pitying victims. They should just feel grateful that White society has been gracious enough to help them, and they should continue the affirmative action tradition, because that is what they are supposed to do. To do otherwise is to commit the sin of ungratefulness. Doesn’t he know his place?

Finally, Dowd throws in a gratuitous slap at Bush’s status as a legacy admit. Again, she would have done well to have read Thomas’s opinion. You see, dear, the Fourteenth Amendment doesn’t prohibit universities from choosing on the basis of legacy status. Now read slowly, Ms. Dowd, so that you can follow this. We had this thing called a "Civil War"--perhaps you read about it. Anyway, after that War, we passed an amendment which prohibited government from discriminating based on race, but this wasn’t a "you can’t discriminate based on anything" amendment. So schools can still choose based on grades, or athletic ability, or even the less pleasant legacy status without running afoul of the Constitution. Oh well, Ms. Dowd, it was a simple mistake. I’m sure that any New York Times columnist who got their jobs based on their merit clearly could have made such a mistake.

Civil Wrongs

And here is Bill Bennett’s take on the decisions: "This position demarks civil wrongs, not civil rights — and this week’s Supreme Court rulings give us little hope that the next generation of Americans struggling through our commitments to equality and liberty will be able to see people as people and not people as categories defined by their race."    

The saddest development

John McWhorter thinks that the Suremes decisions on "diversity" is "the saddest development in civil rights since the Bakke decision of 1978." Very good piece.   

Whisky, sexy, and Italians

The Europeans are considering this absurdity: "Brussels is said to be preparing new legislation to monitor sex discrimination outside the workplace. The proposal could lead to a ban on programmes and advertisements that stereotype women or men.

Crucially the courts will be able to decide what constitutes sexual stereotyping and what constitutes ‘images of men and women affecting human dignity and decency’." Now, just think about this in light of constitution making, and in the light of, just as an example, what an Italian, man or woman, will think of it. If you’ve been there, you will know what I mean. God bless the Italians! (Thanks to Andrew Sullivan)

Europeans, ugly and otherwise

John Zvesper continues the conversation about the Europeans (and Americans) in a very thoughtful piece. He is trying to make peace between us and them by asking each side to understand the virtues of the other, and he calls for American magnanimity. He reflects, in part, on this Robert Kagan article. Allow me to remind you of this very thoughtful James W. Ceasar article I mentioned yesterday, and the less thoughtful one by me, called The Ugly European.

European Constitution Making

The Economist runs a critical piece on what is happening at the "European constitutional convention:" Not much, and they get everything important wrong. And here The Economist offers more of a description than a criticism. Both pieces are worth a read.

But, as I am sitting here listening to Gordon Lloyd go through the American Constitutional Convention (he is in the second day of a week-long seminar for high school teachers which he is conducting with Christopher Flannery), it occurs to me that there cannot be a comparison, it is not possible. The American exercise in deliberation and choice is extraordinary, is serious, meaningful, and prudent. There are no Madisons or Hamiltons or Morrises or Dickinsons, never mind a Washington, in the European effort. Here is insight, erudition, and logic, from a senior European delegate: “It was the Bill of Rights that created American identity. They were Americans and so they had rights. It will be the same with Europeans.” Yup, you’re a smart guy, thanks. I remember back in 1982 having a conversation with the editor (not a subaltern) of one of the major London papers. He argued that the American Revolution was an imitation of the French, after all the French Revolution was not only the real revolution, but also the one that come first. I tried to talk him out of this silly opinion. I failed then, and I would fail now if I tried it. Too bad.

Strauss Fourth of July picnic

This has been a wonderful gathering over the years. I haven’t been in several years, and maybe the attendance has dwindled to 60, but I think it has been closer to 100, at least on occasion.

I could give you a flavor of what goes on by describing some of my athletic prowess-- throwing Walter Berns out at first base after grabbing a hard-hit ball, chasing a Gary Schmitt line drive that went into another picnic area, narrowly avoiding a hard-sliding Jim Williams, etc. I think I once caught a pop fly hit by Irving Kristol, but those who know me will scoff that I’ve never caught a fly ball in my life, and that I am beginning to spin myths. But I did see Diana Schaub play a flawless game at first base, that I’m sure of.

I need to stop before I turn this into a "Battle of the Books."

I can’t recall any speeches, however.

The Declaration and Justice Thomas’s Jurisprudence

I can’t add any detail to what has already been said. I would observe that Justice Thomas’s jurisprudence owes to the Declaration a commitment to real original intent-- by which I mean a zeal to return our mode of governance to limited government, as the Founders wanted it. That is the core meaning of having a jurisprudence of natural rights.

The "Constitution" we have today does not correspond with the document that the Founders gave us. To have natural rights in mind when one interprets the Constitution is to take the objects of such government with utmost seriousness-- limited government, the rule of law, the separation of powers, among other principles. Hence Thomas’s controversial (even among conservative fans of his) federalism opinons.

Carol Swain contra the Court

Carol Swain, professor of law and political science at Vanderbilt University, weighs in with a sensible critique of the Court’s support for affirmative action in Grutter. Her essay,
"The Survival of Racial Preferences: Missing the Mark,"
echoes Justice Thomas’s criticism that the Court’s endorsement of affirmative action actually enables institutions to pursue their own objectives through alleged racial balancing--i.e., merely looking like they do not discriminate by offering for public display the "right" numbers of particular minorities--rather than helping those admitted under the race-preferential policies.

Swain’s main argument, previously made in her book, The New White Nationalism in America: Its Threat to Integration, is that "racial double standards" facilitated by affirmative action will embolden white backlash and further divide the country along racial lines. While it is debatable the extent to which race extremists will increase their numbers because of the Court’s support for affirmative action, Swain does well to remind us of the urgent necessity to "save America" by the inculcation of "common principles and common values that include the betterment of all of society."

The president’s recent statement, which "applaud[ed] the Supreme Court for recognizing the value of diversity," only concedes the rhetorical high ground to affirmative activists, who have hijacked the concept of diversity to permit--nay, require--government action to guarantee proportional, racial representation in American society. Swain is right to conclude that neither major party in the U.S. has offered leadership on the divisive issue of racial preferences. All the more reason to keep individual rights and equal treatment under the law before the American people until they regain their legitimate place in the public mind.

Cartoon depiction of the Court’s decision

Michael Ramirez, the editorial cartoonist for the Los Angeles Times pretty much nails it. (Thanks to Tom Krannawitter at The Remedy).

Philosophers and Kings and Picnics

The Economist runs an unsigned editorial on the Straussians in DC. This is better than most attempts to make something of Strauss because, one, it doesn’t take the Lyndon LaRouche conspiracy crap seriously and, two, because it is more modest in what it tries to do. But note the too-upbeat conclusion about how the Americans are going to a European (Strauss), while the Europeans are looking to an American (Madison) for their attempt to unify; therefore why can’t both sides of the pond just get along, etc. Well, just a small point on this matter: For practical (political) purposes one of the great effects of Strauss’ teaching was to reopen and/or reinvigorate the study of things American, which means a study of both freedom and virtue, which means a renewal of the study of constitutions, that is, of regimes. Wish the picnic in Washington had more than sixty people attending, right Ken?

The Declaration and Constitutional Interpretation

To me, John & Rob’s argument sounds like a "less filling, taste great" argument. Scalia might very well want to avoid both the black-history and the Declarational parts of Thomas’s opinion. That said, some of the commentary I’ve read on NLT and The Remedy raises a really important question that deserves discussion -- In what respects should the Declaration have authority in constitutional interpretation?

I haven’t thought this through enough, but let me suggest that the issues are more complicated than the NLT and Remedy commentary have suggested over the last day or two. At one extreme, Justice Scalia is right -- and the commentary wrong -- on this point: The Declaration does not have positive-law authority of its own, except for the proposition that the United States are independent of Great Britain. The bulk of the Declaration sets a standard Americans should apply to judge the governments they institute to secure the Declaration’s natural rights, but the Declaration doesn’t serve as a source of controlling legal authority.

Now, at the other extreme, Scalia is clearly wrong, and the criticisms I’ve read here and on the Remedy are clearly right, in a different respect. Scalia is frustratingly stubborn in refusing to consider whether the Declaration might go a long way in informing how lawyers ought to read the positive-law guarantees in the Constitution. For instance, Scalia reads the Free Speech Clause way too broadly, close close to guaranteeing that "no law" may restrict "speech." If one understands the Founders’ conception of natural rights and natural law, the clause reads very differently. Congress may pass no law "abridging" the "freedom" of speech. "Freedom" bounds "speech" by the moral rights and duties of the natural law. "Abridging," in the Founders’ understanding, quietly distinguishes between laws that "regulate" speech and laws that "abridge." Defamation, blasphemy, and time-and-manner laws all "regulate" because they keep speech within the natural-law "freedom of speech"; laws "abridge" the "freedom of speech" if they restrain speech for no similar purpose. Here and elsewhere, Scalia is too positivist to be a good originalist when original meaning relies heavily on the natural law.

But Adarand, Troxel, and yesterday’s affirmative-action cases raise a different problem: Should one interpret the Constitution to require what the Declaration prescribes even if the constitutional terms in question have a narrower ordinary legal meaning?

On affirmative action, it’s been shown pretty convincingly that the original meaning of the Equal Protection Clause was not a open-ended license for Congress and courts to fix any state action that ran afoul of the principle that "all men are created equal." The original meaning guaranteed equal PROTECTION. If Congress found that state law-enforcement officers enforced the criminal-battery laws for white victims but not black victims, Congress could intervene to fix the law enforcement patterns. If original meaning controls, Adarand and yesterday’s cases should have been thrown out because the EP Clause was not relevant.

Same goes for Troxel, a Due Process case. The original meaning of both Due Process Clauses was to ensure that no one lost life, liberty, or property except by "the law of the land," except pursuant to a valid statute or common-law precedent already on the books, and pursuant to preexisting procedures for punishment. On that gloss, Troxel is easy: The state can deprive a relative of visitation rights to a child as long as the legislature strips those rights clearly by general law. No need whatsoever to ask why the legislature did so as long as it does so by general legislation.

Now, it could well be that the original meaning of the Privileges and Immunities Clause reduces some of the tension I’m highlighting between original and a "Declarational" readings of the Due Process and Equal Protection Clauses. But no one really knows yet what the Privileges and Immunities Clause originally meant. Until its meaning is recovered, any resort to the P&I Clause is a cop-out.

In the meantime, NLT and Claremont readers need to think long and hard about what kind of constitutional-interpretation principles best accord with Declaration natural-law principles. May sound strange, but I’m not convinced that Thomas’s reliance on the Declaration in Adarand, Troxel, or yesterday’s cases comport with the kind of legal interpretation Declaration-style government requires of its lawyers. I’m not sure though; I’m curious what others have to say.

More on Scalia and the Declaration

Eastman makes a strong argument regarding Scalia and the Declaration, but there is still room for discussion. First, John mentions the fact that Scalia did not join Thomas’s opinion in Adarand. But Thomas’s fine concurrence in Adarand looks suspiciously like the portion of Thomas’s Grutter opinion in question. That is, while Thomas once again speaks in Adarand of the Declaration, he also speaks about black achievement. Specifically, Thomas in Adarand disputes what he refers to as the racial paternalism exception to Equal Protection. Without saying that you have to be a particular race to offer the arguments made by Thomas in quoting Frederick Douglas in Grutter, or speaking of racial paternalism in Adarand, it is nonetheless understandable why Scalia would choose not to join those sections on the basis of melanin deficiency, and to allow Thomas to speak powerfully on his own.

The Troxel example offered by John does not fit into this pattern however, and raises a more formidable question. As John noted, in Troxel, Scalia argues that "[t]he Declaration of Independence, however, is not a legal prescription conferring powers upon the courts." By doing so, however, Scalia makes the rather unremarkable statement that, absent Constitutional authority, a judge does not have the authority to strike down a law for violating the principles of the Declaration. Scalia’s statement here does not suggest that a judge may not appeal to the principles of the Declaration in interpreting or applying the Constitution--which is what Thomas does in Grutter. As I read Troxel, Scalia appears to be taking aim at those who would seek to appeal to the Declaration not to inform their understanding of the Constitution, but to supercede or add to the Constitution. Accordingly, Scalia could have written and meant what he said in Troxel, and yet have had no problem in joining Thomas’s Declaration statement in Grutter.

My defense is half-hearted, for I don’t believe that Scalia has demonstrated an understanding of the relationship between the Declaration, the Natural Law and the Constitution which compares to Thomas, but at the same point, I don’t think that his failure to sign on to Grutter or Adarand, or his statement in Troxel are sufficient to suggest that he is openly hostile to the Declaration.

The abonimable snow job

That is the title of Peter Kirsanow’s piece at NRO on Grutter and Gratz. He thinks that although the immediate practical effects will be negligible, "the long term social cost will be pronounced." And, "The Michigan opinions nevertheless impress for the sheer banality of the tortuous reasoning used to convert the plain, unambiguous language of the Fourteenth Amendment into a license to discriminate...provided it is done artfully."

Read the whole thing.

Majority back use of force in Iran

A Washington Post-ABC News Poll says something to both our friends and enemies: Despite the anti-war elites’ propaganda in the US (never mind the Europeans), Americans retain their common sense and their character is, once again, revealed. The WaPo reports: "By 56 percent to 38 percent, the public endorsed the use of the military to block Iran from developing nuclear arms." While I do not argue in favor of going into Iran, this poll is another very good indication of the clear thinking of American citizens, post 9/11. There should be no immediate concern about squishiness, quagmires, and so on. The people seem to have a very clear understanding that there is serious mischief abroad, and we may, from time to time, have to act in ways that matter. Let me paraphrase Hamlet: Though we are not splenative and rash, yet we have in us something dangerous. And it is good that this is known.

America as katestrophenhaft

James Ceasar writes a long and very good article entitled, "A genealogy of anti-Americanism," in the current issue of The Public Interest. This is a serious piece, worth consideration and much reflection. Ceasar says: "Anti-Americanism rests on the singular idea that something associated with the United States, something at the core of American life, is deeply wrong and threatening to the rest of the world." He then traces five major layers or strata regarding the concept of America, including, degeneracy and monstrocity, rationalistic illusions, racial impurity, technology, soullessnss and rampant consumerism.

Just a point: Heidegger says Americanism is "the still unfolding and not yet full or completed essence of the emerging monmstrousness of modern times." America is katestrophenhaft, the site of catastrophe. Read it all and weep for what used to be called the West, and now must be called America. Yet, Ceasar is not without hope.    

Opinions on the affirmative action rulings

Here are a few early opinions on these incongrous, if not silly, Supreme Court rulings: Clint Bolick, Terry Eastland, and George Will.

Justice Scalia and the Declaration

I’m not sure I agree with Robert Alt’s more charitable take, below, on Justice Scalia’s joining only parts I-VII of Justice Thomas’s opinion in Grutter. Justice Scalia penned a pretty strong opposition to reliance on the Declaration of Indepedence in Troxel v. Granville two years ago: The Declaration "is not a legal prescription conferring powers upon the courts." And he did not join Justice Thomas’s opinion in Adarand, in which Justice Thomas argued that racial set asides violate the equality principle that infuses the Constition, a proposition for which he cited the Declaration of Independence. I think it pretty likely, therefore, that the asteriks were added to make a concluding section separate from Part VII, so neither it nor the introduction were joined by Justice Scalia.

Scalia and the Declaration

In answer to Dr. Pestritto’s question, I don’t think that Scalia is avoiding endorsing the Declaration. It appears more likely that Scalia is bowing out of joining Justice Thomas’s comments which precede Section I. It is here that Thomas quotes extensively from Frederick Douglas, and speaks with passion about how he "believe[s] blacks can achieve in every avenue of American life without the meddling of university administrators." My sense is that Scalia thought that these words were uniquely Justice Thomas’s, and that they stand on their own.

It is also worth noting that Thomas’s last paragraph, in which he mentions without quoting the Declaration and quotes from Justice Harlan’s ringing dissent in Plessy v. Ferguson, bears striking resemblance to Scalia’s concurrence in Adarand v. Pena, in which he states, "[i]n the eyes of government, we are just one race here. It is American." Given this similarity, I don’t think it is out of disagreement that Scalia joins only I-VII, but out of respect for Thomas’s desire to speak about the capacity for black achievement.

Gephardt on overturning the Supremes

FOX News reports this from the mouth of Gephardt (agreeing with Kucinich) on Sunday: "When I’m president, we’ll do executive orders to overcome any wrong thing the Supreme Court does tomorrow or any other day." Eugene Volokh says this: "The quote is so shocking that I think he may have been misquoted, or quoted out of context -- it’s surely happened before. But if he was quoted in context, then this thinking is a very good reason not to elect him. If anyone has more details on the quote, I’d love to hear them.

UPDATE: A reader has just e-mailed me a link to the C-SPAN video. At around 43:45, Dennis Kucinich, another Democratic presidential candidate makes a very similar statement. Then at 44:40, Gephardt’s rather short speech starts, and at 45:40, he makes the statement that the AP quotes, agreeing with Kucinich. It’s entirely in context.

Do we really want a President who thinks that the President has the power to overcome "any wrong thing the Supreme Court does" using an Executive order? I know lots of people think various actions of the Bush Administration are unconstitutional; I too disagree with some of the Administration’s positions, for instance on the alleged power to detain all unlawful combatants (including U.S. citizens captured on U.S. soil) with no judicial review. I hope the Supreme Court agrees, and decides against the Administration. But I’m pretty confident that if the Supreme Court does so decide, this Administration will comply with the Supreme Court’s order.

Gephardt and Kucinich are promising that they’ll flout those orders. Seems to me that they should be taken to task for this, and severely."

Bush on the Court’s Michigan ruling

Here is President Bush’s statement on the Supreme Court decisions on the Grutter and Gratz affirmative action cases. I regret to say that it is not an impressive statement. Who’s advising him on this stuff, Gonzales?

O’Connor’s Failure of Nerve

Well, a quick perusal of O’Connor’s opinion for the court indicates she--a cowgirl, for crying out loud--failed to pull the trigger on affirmative action precisely on the point that she raised at oral argument and elsewhere: namely, that govt use of race be limited in duration (to satisfy the "narrowly tailored" prong of the strict scrutiny test). What evidence does she cite to prove that the law school intends to use race for a limited time? In breathless prose she states,

We take the Law School at its word that it would "like nothing better than to find a race-neutral admissions formula" and will terminate its race-conscious admissions program as soon as practicable.

Is that all it takes to pass constitutional muster? Taking a govt institution "at its word" that it will stop using race when IT deems it no longer necessary?! O’Connor goes on to close that paragraph as follows:

We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.

What about the rights of individuals today? Is it not the Court’s responsibility to ensure that govt institutions not violate the Constitution today, per standards the Court derives from the Constitution, and not accept the mere verbal testimony of the institution using race-conscious measures? It appears that O’Connor has felt the pressure of elite public opinion not to hasten the day when all Americans are treated equal under the law but rather find the extent of their constitutional protections determined by their specific race.

Quick additional point: O’Connor also upholds Powell’s lone opinion in Bakke that racial diversity is a compelling state interest in higher education--this despite her pointing out that no other justice joined that part of his opinion! In short, by drawing the support of the four liberal justices for her majority opinion in Grutter, O’Connor has now turned Powell’s one-man, slender-as-a-reed endorsement of race as part of educational diversity (to satisfy compelling state interest) into a slim but solid 5-4 Court precedent for diversity as a rationale for race-conscious govt decision-making. Does O’Connor realize how much she has crippled the Court’s ability to speed the day that affirmative action fall by the wayside of public practice?

I’ll chime in with more once I give all the opinions a closer look, esp. the separate opinion of Thomas in Grutter and the Rehnquist majority opinion in Gratz, which overturned affirmative action at the undergraduate level (and which O’Connor joined).

Happy Birthday, Justice Thomas!

Justice Clarence Thomas celebrates his 55th birthday today. On this day, we should thank him for reacquainting us with Frederick Douglass, the Declaration of Independence, and the U.S. Constitution in his separate opinion in Grutter. Would that the rest of the Court would pay more attention and deference to these great American documents and one of their greatest defenders.

Happy birthday, Justice Thomas, and may the blessing of the Lord be upon you.

Retire NOW!

I know that I previously predicted that Justice O’Connor would not retire this term, but now I join the chorus with a simple plea: RETIRE NOW. She has done enough damage to the law. It is time for her to go. Yes, I know that this means that we could get someone squishy like Gonzalez, but I now think that it would be extremely difficult to get anyone who is less capable of reading the Constitution.

On the 25 Years Standard: Bakke Revisited

The majority in Grutter makes the strange statement that they believe that affirmative action will not be necessary, and will not comport with the requirements of the Equal Protection Clause, in say, 25 years (slip-op at 31). This is quite interesting, because it harkens back to a story I heard from a clerk for Justice White, relating how the Bakke bargain was struck. Justice Powell, the swing vote "1" in the 4-1-4 opinion which was Bakke, is reported to have changed his vote several times. He was discussing this with two of the more vocal proponents on the court: Justice Marshall, who sought to uphold affirmative action, and another Justice who believed it unconstitutional. At one point, Powell asked how long affirmative action should last. Marshall reportedly said something to the effect of "Well, this country kept us in slavery and oppression for 400 years; 400 years ought to do." Powell then abandoned for good Marshall’s position, thus creating the strange hybrid beast that was Bakke. It is interesting then that the idea of a "sunset" provision--the very issue that troubled Justice Powell in Bakke--made its way into the court’s opinion.

Justice Thomas makes short work of this, however, stating "I believe that the Law School’s current use of race violates the Equal Protection Clause and that the Constitution means the same thing today as it will in 300 months." That’s worth at least two cups.  

The Man Who Could Be Chief

Justice Thomas once again demonstrates why he is quite possibly the finest jurist on the court in his Grutter opinion. He begins with a long quotation from Frederick Douglas’s speech, "What the Black Man Wants," which denounces pity in favor of justice. He then quickly decimates the Court’s opinion, noting that "[t]he majority upholds the Law School’s racial discrimination not by interpreting the people’s Constitution, but by responding to a faddish slogan of the cognoscenti." These words from the man who should be, and could be, Chief.

Grutter Opinion

For those of you who have been trying to download the Grutter opinion from the slow Supreme Court site, you can get it from NLT here

Maynard Jackson

Maynard Jackson, Atlanta’s first black mayor, has died. This allows me to recycle one of columnist Lewis Grizzard’s great lines about Jackson, who was a very portly fellow. Grizzard wrote: "I won’t exactly call Jackson fat, but let’s just say that when he steps on a cigarette, that sucker’s out."

Cups for Everyone

Well, I guess we need to wait to read the nuances of the Michigan opinions, but it looks like Lucas, Robert and I should all win NLT coffee cups. Personally, I’d juts as soon see O’Connor retire yesterday. Good riddance.

The president of the U. of Michigan was on CNN just now crowing about how the cases are a huge victory for higher education, and a vindication of affirmative action. (Sigh.)

Affirmative Action Upheld

Early reports suggests that Justice O’Connor wrote the opinion, which as I mentioned in my prediction, means that all hope is lost. It appears that they struck down the undergraduate policy, and upheld the law school program. I’ll have more when the opinions post.

Democrats’ inner selves showing

David Brooks says this of the Democrats:
"Democratic strategists are trying to put a rational gloss on what is a visceral, unplanned, and emotional state of mind. Democrats may or may not be behaving intelligently, but they are behaving sincerely. Their statements are not the product of some Dick Morris-style strategic plan. This stuff wasn’t focus-grouped. The Democrats are letting their inner selves out for a romp.

And if you probe into the Democratic mind at the current moment, you sense that the rage, the passion, the fighting spirit are all fueled not only by opposition to Bush policies, but also by powerlessness." Read the whole thing.

Europe’s woes

Jim Hoagland writes a breezy op-ed on the Europeans and their problems. "After an admirable run of success, France, Germany and other nations in Western Europe face serious prospects of economic decline and social dislocation. They must simultaneously manage their weakness and the unpredictable, rising power of Bush’s America. That is nightmare enough to disturb any catnap."

American Empire

Paul Crespo writes an op-ed on the current understanding of what the left calls an agenda for American empire. And Paul Johnson has a long and very interesting article on empire ("From the evil empire to the empire of liberty") in the current issue of The New Criterion. By no means am I saying that I agree with Johnson, yet it is worth reading. Over time, I will have more to say on this empire issue, but not just yet. For now I’ll just keeep pointing you to some material on the theme worth reading.

Teachers in the summer

Terrence Moore writes a good column in favor of a nine month school year, and explains what the three "off" months are for. 

Bush’s re-election strategy

Dan Balz writes about the Bush re-election strategy in the WaPo. While there is some interesting information in the article, the item that struck me most is this: "Republican strategists see the 2004 election as their best opportunity in a generation to construct a durable governing majority, and they have set in motion a systematic and coordinated strategy designed to leverage President Bush’s popularity and break the impasse that has dominated the country’s politics since the mid-1990s.

The president himself established the ambitions behind the 2004 strategy earlier this year, when he authorized advisers to begin planning for a reelection campaign that began in earnest last week with a series of fundraising events. According to several GOP strategists, Bush told his team: Don’t give me "a lonely victory." Said one top Bush adviser, "He said, ’I don’t want what Nixon had. I don’t want what Reagan had.’"

In other words, Bush wants a Republican Party victory, not just a Bush presidential victory. You might remember that in 1984, when it was pretty much known that Reagan was going to trounce Mondale in his re-election effort, the day before election day, on his way to California, Reagan stopped off in Minnesota
and held a rally at the airport because some of his advisors said he just maybe able to carry Mondale’s home state. It is true that he almost did (in the end, aside from taking DC, Mondale carried only one state, Minnesota, by just 6,000 votes out of two million cast), but some of us thought that Reagan should have stopped off to help some GOP candidate for the House. Clearly, Bush is not going to make such a mistake; also keep Bush’s extraordinary effort for the GOP in the 2002 elections in mind, when reflecting on how he is going to fight the 2004 contest.

Honda ad, "The Cog"

"The Cog" is the name of this Honda ad. Watch the whole thing, it takes maybe a minute. It is done manually, no special effects. The only words are at the end, "Isn’t it nice when things just work." After watching it, scroll down for more information. Worth your time. Very smart. (Thanks to Andrew Sullivan).   

Looking for Saddam and his boys

The Observer reports this on Sunday: "American specialists were carrying out DNA tests last night on human remains believed by US military sources to be those of Saddam Hussein and one of his sons, The Observer can reveal.
The remains were retrieved from a convoy of vehicles struck last week by US forces following ’firm’ information that the former Iraqi leader and members of his family were travelling in the Western Desert near Syria.

Military sources told The Observer that the strikes, involving an undisclosed number of Hellfire missiles, were launched against the convoy last Wednesday after the interception of a satellite telephone conversation involving either Saddam or his sons.

The operation, which has not yet been disclosed by the Pentagon, involved the United States air force and ground troops of the Third Armoured Cavalry Regiment based around Ramadi, a major town 70 miles west of Baghdad."

Iraq and WMD

George Will writes a perfectly clean and clear column on why WMD had better be found, or accounted for, in Iraq: The Bush doctrine of pre-emption is at stake. 

Supreme Court Predictions

I think Alt is pretty much right - but since predicting the same thing as someone else is no fun, I’ll predict that the court hands down a per curiam holding that one of the admissions programs is unconstitutional that makes no sense but is the upshot of at least five Justices separate thinking on the issues. Then we’ll have three or four separate opinions arguing stuff all over the map. No retirements this term.

Today’s Papers

Today’s Washington Post carries a very encouraging story to the effect that Bush and the high command of the Republican Party intend to go for a party sweep in next year’s election. The best part of the story is a quote from Bush saying he doesn’t want a replay of Nixon in 1972 or Reagan in 1984, where both men won landslide re-elections with little or no benefit to the party. In both of those cases, Nixon and Reagan ran mostly for personal victories, and disdained to connect their cause with the cause of their party.

Today’s stupidly comes from (where else?) the New York Times, where Supreme Court reporter Linda Greenhouse (of the famous "Greenhouse Effect") laments that the current Supreme Court is so right wing that "No Justice now holds the death penalty is unconstitutional."

Imagine that! Not one justice thinks something explicitly approved in the Constitution is unconstitutional! What’s next? Actually reading the text itself?