Strengthening Constitutional Self-Government

No Left Turns

US uses Iraqi swimming pool

If this report is true, we should immediately vacate the pool or at least make sure the Iraqi athletes have the use of it whenever they need it.

Response to Professor Volokh, II

We turn now to Professor Volokh’s first posting concerning our article, in which he suggests that we were a bit cavalier in suggesting that the good Lord wouldn’t approve of harvesting eggs from aborted fetuses to create new fetuses, nor mixing male and female genes into a kind of hybrid genetic cocktail.

Our point was largely intended as a slap—and a rhetorical one at that—at Senator Barbara Boxer and others who suggest that embryo manipulation is “doing God’s work.” Perhaps the sarcasm was not sufficiently apparent, but ours was not high hermeneutics, nor a genuine theological speculation—but we’re happy to speculate here.

As Professor Volokh thoroughly explains, the Lord’s name ought not to be taken in vain on matters like this. Precisely—which is why we weren’t comfortable with Senator Boxer’s deification of the acts performed by scientists on embryos. The Conspiracy takes us to task on this point, largely for failing to make clear the evils of human cloning and how we could be so epistemologically sure that God disapproves of similar Huxleyan efforts. Our article, of course, was not intended as a theological treatise, and it did take a few things for granted, like the general anti-human cloning bias of the NRO audience. Considering that several articles calling for human cloning bans have appeared on NRO, we were confident that most readers would at least recognize that human cloning will not afford us an unmitigated positive good (even liberal bioethicists like Arthur Caplan speak disparagingly of reproductive cloning’s ultimate utility); and we felt equally certain that no matter how one views the abortion issue, most would consider using aborted fetuses to fund the European egg bank a bad idea—to the point that we didn’t think it required much elaboration.

But if elaborate we must, then it’s worth noting that this fetal-egg-harvesting idea was floated at an earlier European conference in the late 1990s, and was torpedoed on “psychological harm” grounds. Imagine . . . some ethicists actually feared that a child whose mother had been aborted might suffer some fairly traumatic psychological effects.

We also boldly predicted that God would be less than enthused at science attempting hermaphroditic embryos. That this claim would be controversial is a bit perplexing. The Conspiracy makes a good point in noting that

“the risk of error inherent in guesswork about what the Creator must intend shows the importance of carefully articulating the argument, and giving a detailed, specific explanation of why the Creator doesn’t intend this, but does intend caesarian sections, or contraception, or in vitro fertilization, or hormone shots, or the use of incubators to care for dramatically premature babies. The risk of error shows the need for thoughtful, overt, and self-critical analysis of just why we fallible humans are making this particular guess about what the inscrutable Creator, who moves in mysterious ways, never actually chose to tell us about his ‘intentions.’”

Point taken. We’re all for self-critical analysis, and there is always risk in inferring modern rules from ancient sacred texts; but is it really all that dangerous to deduce from the Judeo-Christian scriptures and tradition at least that mixing male and female genes into a genetic he-she goes against the Divine plan for the human species? Even a glance at the early chapters of Genesis reveals that “God created man in His own image, in the image of God He created him; male and female He created them.” Feminist theory aside, nothing in the biblical tradition suggests that God set out first to create hermaphrodites, nor that we as procreators should take it upon ourselves to do so.

What is clear, however, is mankind’s unique place in God’s created order, and we don’t consider it presumptuous to suggest that the Judeo-Christian God finds scientific endeavors that usurp the male-female relationship with hybrids and chimeras to be morally repugnant at best.

Perhaps our presumption was not taking the bandwidth to walk through these arguments, but then, that wasn’t the real point of our article, which was simply to bring attention to recent developments, and offer reasonable, constitutional alternatives to more knee-jerk Commerce Clause regulation.

[Update: The original posting included both Mr. Stewart’s and Mr. Alt’s name in the "posted by" line. Because this caused a glitch in our software which automatically tracks postings by author, the posting now reflects Mr. Stewart’s name. Mr. Alt happily concurs fully in Mr. Stewart’s sentiments.]

Response to Professor Volokh I

Eugene Volokh of the Volokh Conspiracy offers several thoughtful critiques ( here, and here, and yet again here) of the article Nathaniel Stewart and I wrote for NRO. I shall attempt to address his concerns in turn.

Starting with his latest post, Professor Volokh argues that patent restrictions would not achieve the regulatory goals of the authors (restricting cloning and macabre embryonic research) because, essentially, there are a lot of rich people in America. Even if contributions are not tax-exempt, Volokh argues:

“If you have some form of disease in your family, and you have a multi-million dollar fortune, and cloning or embryonic research seems to offer some serious potential benefit, you may be perfectly happy to spare some tens of millions to fund this research.”

While the private market will undoubtedly rise to almost any occasion, I’m not convinced that Volokh’s private funding argument by itself carries the day. First, to the extent that I can convince Professor Volokh to assume for the sake of argument that such technology is contrary to good public policy, his argument would suggest that we must sacrifice the good on the altar of the perfect. Professor Volokh undoubtedly agrees that the federal government has limited regulatory authority. If the best Congress can constitutionally do is to provide disincentives that will address many but not all cases, should it do so? My sense is that if the regulatory end is legitimate, then yes. Far better this than to pass regulations which are beyond the bounds of regulatory authority. Furthermore, these laws could be supplemented by regulations promulgated by entities not so limited in power—namely the states.

Second, even conceding that there are a lot of rich people, the financial curve on such an endeavor would be steep. In addition to having no protected patent right in the new technology, and in addition to not receiving a tax benefit (i.e., a disincentive) for contributions to the researchers, the would-be philanthropist would literally need to start from scratch. That is, if Congress were to use its power recognized by the Supreme Court under the spending clause to restrict any medical facility that receives federal funds from taking any part in this kind of research, then they could not simply endow a wing at MassGeneral to perform this research. Thus, they would not only need to pay for the doctors, but they would need to build the facilities, and to purchase the equipment. This is not to say that it would be impossible, but even “tens of millions” of dollars is likely too conservative to be a realistic estimate.

While clearly not endorsing such regulation, Professor Volokh later repeats this futility theme in saying that for those who view cloning as “evil,” the patent regulations seem like a “pretty feeble step in the battle against evil.” Yet Volokh appears to believe that any regulation in this area is futile, for he concedes that a ban would do little more than affect incentives:

If Japan or Europe allow patents for human cloning, then the proposal in the NRO would at most diminish the incentive for cloning (though of course broader bans would be limited this way, too).

Again, when combined with spending and tax exemption restrictions, I’m not sure how feeble such regulations would be (Title VI and IX have been reported to have some teeth), and I’m again not convinced that the perfect must be the enemy of the good.

Finally, Volokh takes to task our supposition that America should lead on this issue, suggesting that other countries will go ahead and perform the research anyway. As an initial matter, I shall assume that Volokh is not arguing from Justice Breyer’s position as articulated on This Week, i.e., that American law and constitutionalism should be somehow conform to the ebbs and flows of international law. Thus, it seems that Volokh’s argument is that we should not regulate because our regulation won’t change conditions outside the U.S. But the general rule is that US regulation is not extraterritorial (except in the extraordinary categories of federally controlled land, such as military bases). If other countries wish to perform experiments of which the United States does not approve, we can’t directly regulate them. Does this suggest that we must follow them? If a country—let’s call it Germany—chooses to, say, experiment on twins, that doesn’t mean that we should do so also. (Anticipating Volokh’s rebuttal that such a comparison is inapplicable because one involves entities with rights that no one disputes (now), while the other involves entities whose rights and status are disputed, one need not even adopt an expansive view of the rights or humanity of embryos or fetuses for such comparisons to have strength. Within the realm of cloning, for instance, the mammals that have been cloned have died sooner and been subject to rare diseases. Thus, even a theory of utilitarianism which does not permit the infliction of undue injury or death to a party for the greater potential benefit of third parties would suffice to complete the analogy.)

Furthermore, the argument that the parties will simply import the technology to the U.S. fails to take into account that the U.S.-based scientists would still have the tax-exemption and spending clause limitations binding their research. A clone may enter the U.S., but the technology--unless totally privately funded by an entity which has followed Hillsdale and refused all public funding—cannot be researched or developed here.

My co-author will soon address man and god in cloning. This short blog does not address the full complexity of the debate, but I hope that it suffices to provide some response to Eugene’s thoughtful postings.

Central axiom of Left-Liberal foreign policy

Charles Krauthammer examines why the Left, against going into Iraq, is now so keen on going into Liberia. Here is the crux, and it’s not pretty: "The only conclusion one can draw is that for liberal Democrats, America’s strategic interests are not just an irrelevance, but a deterrent to intervention. This is a perversity born of moral vanity. For liberals, foreign policy is social work. National interest - i.e., national selfishness - is a taint. The only justified interventions, therefore, are those which are morally pristine, namely, those which are uncorrupted by any suggestion of national interest. Hence the central axiom of left-liberal foreign policy: The use of American force is always wrong, unless deployed in a region of no strategic significance to the United States."   

Supremes as Platonic Guardians?

Here is Stuart Taylor’s take on why the Supreme Court’s move towards becoming a bevy of Platonic Guardians. 

Some Good News: A Liberal Democracy Grows in Kuwait

Peter Berkowitz reports on the growing pains of an emerging democracy in the Middle East. Things move slowly but there is good news in the Middle East.

Perhaps this will give the professional naysayers pause. Oh, probably not.

What are the Democrats up to?

This WaPo article shows the reincarnation of the Democratic Party into the party of the Left. This, despite the Democratic Leadership Council’s warning "No Left Turn", this, despite Bill Clinton’s attempt to be a moderate, etc. What are these guys up to? Well, James Taranto has a few choice thoughts on the subject that are very much worth reading. These thoughts are not unrelated to the "Progressives’" (as the Liberals now prefer to call themselves) attempt to make an Iran-Contra Affair out of the WMD/Iraq issue. The Demo Party is making a big mistake. Make an argument that we shouldn’t have gone into Iraq, that we shouldn’t stay in Iraq, that we cannot change Iraq, etc.; these are conversations worth having. But making an argument of the sort they are making is at least imprudent and possibly suicidal. Read Taranto.

Doing God’s Work?

Nathaniel Stewart & Robert Alt write a thoughtful piece on a "startling" development coming out of the European Society for Human Reproduction and Embryology conference: "Consider for a moment what is at issue. Among the Madrid panels, scientists from Israel and the Netherlands announced that they had harvested ovarian tissue from seven aborted fetuses between 22 and 33 weeks old — well beyond the all-important age of ’viability’ recognized here in the States. The goal of the research seems to be, of all things, infertility treatment. The heightened demand for healthy human eggs — not easily "harvested" from women — has apparently reached such dire levels that gathering eggs from the dead unborn may soon be, as one doctor said, an "ethically acceptable" fertility option. Should these scientists successfully develop the extracted eggs, we face the very real possibility that a child could be born from the egg of an aborted fetus. While we don’t claim to share Senator Barbara Boxer’s anointed insight that tinkering with human embryos is ’doing God’s work,’ we’re nonetheless pretty sure that making a mommy out of an aborted fetus is not what the good Lord intended."

Rather than ban cloning outright, they suggest something else. Read the whole thing, even though Eugene Volokh has some questions.

WMD in Iraq, Terrorism, and Bush’s Credibility

Andrew Busch explains in detail what we know about Iraq, both in regard to WMD’s and terrorism. And although he admits that much of it is inferential, he thinks it is sufficient. Yet, he sends a warning to the Bush administration: they had better do a better job of reminding the public and the world of what we do know, else it will lose the credibility that will be essential in the future.  

Becoming American

Ken Masugi reviews Victor Davis Hanson’s Mexifornia: A State of Becoming. It is a review very much worth reading (as is the book). It so happens that in his last paragraph Ken mentions my father’s pithy comment about what an American is. I’m honored.

"If, in theory, Hanson seems to be of divided mind, he simply reflects the paradox in the Declaration of Independence: We are a distinct nation with a distinct political identity—not only separate from Britain but from all other hitherto existing regimes. But we are also a nation distinct by virtue of our founding principle—all men are created equal. That principle means that any human being at any time in history has the essential quality to be an American. My friend Peter Schramm recounts the wonderful story of his Hungarian father explaining why they were leaving home and going, in late 1956, to America: ’We were born Americans, but in the wrong place.’ In Mexifornia Victor Davis Hanson, a real American, portrays how sophisticated intellectuals, cynical growers, craven political leaders, and ambitious Mexicans have brought about a crisis in which neither immigrant nor native-born show interest in thinking and acting like Americans."

The Supremes’ Sophistry II

A reader has reminded me that Charles Krauthammer’s piece on the Court’s recent decisions, and what it means for self-government and the Constitution are worth noting, as well as these comments on Powerline. Thanks.

The Supremes’ Sophistry

This is what John Leo entitles his US News commentary on the recent affirmative action and sodomy decisions. He is right. One of the worst things about all this, in my mind, is that on the major political issues of our time the US Supreme Court has pulled the plug on public conversations about some serious and fundamental political questions that--in a political order founded on consent--ought to be a matter of public conversation and deliberation. To take such issues out of the political discourse is wrong and, in the end, is very detrimental to constitutional government correctly understood. That the political elites (largely liberal, but not simply liberal) prefer that this happen is another very unhealthy thing. There continues to be a disjunction between public opinion and the rule of law (or the government, if you like) that, by definition, is corrupting in a regime of self-government. This argument holds, in my view, even if you agree with a particular decision of the Supreme Court. Among other things, this has the effect of the citizens making decisions on who they support for president, for example, be determined by who the president would appoint to the Supremes because, after all, it is the Court who will make all the important decisions. And currently, it is one member of the Court on whose decision such important matters depend: Today it is Sandra Day O’Connor, tomorrow it will be one other (unelected) person. This is not good.


James Robbins at NRO makes a strategic case for intervention.

No sex in the woods

This speaks for itself: "A Romanian mayor is planning to hire armed guards to stop residents from having sex when they go for picnics in the woods."

HIllary tops one million in sales

Hillary Clinton’s book has sold one million copies in one month, apparently a record. I predicted a decline in sales by the third week. I was wrong. What could this mean? Here is the latest Pew poll on the "decline" of Bush’s popularity, but note that the current crop of Democrats do not seem to benefit from that decline.

History of American Political Thought

An excellent book has just been published. It is edited by Bryan-Paul Frost and Jeffrey Sikkenga and is called History of American Political Thought. It describes itself as "a comprehensive set of secondary essays that provides a solid introduction to the thought of the most important American statesmen, activists, and writers--whatever their historical age or political persuasion." The forty-six essays consider John Winthrop to Antonin Scalia (with Madison, Lincoln, FDR, et al, along the way). Click here to see the Table of Contents. I think it is a very impressive volume, am proud to be in it (chapter on Booker T. Washington), and I recommend that you take a look at it. The contributors (note that many of them write for NLT) are:

John Agresto, John E. Alvis, Donald R. Brand, Paul O. Carrese, Laurence D. Cooper, Murray Dry, Jean Bethke Elshtain, Thomas S. Engeman, Christopher Flannery, Steven Forde, David Fott, David F. Forte, Matthew J. Franck, Bryan-Paul Frost, David Foster, Peter Josephson, Steven Kautz, John Koritansky, Peter Augustine Lawler, Howard L. Lubert, Harvey C. Mansfield, Jonathan Marks, Sean Mattie, James McClellan, Lucas E. Morel, Peter C. Meyers, Ronald J. Pestritto, Lance Robinson, Michael J. Rosano, Ralph A. Rossum, Richard S. Ruderman, Richard Samuelson, David Lewis Schaefer, Peter Schotten, Peter W. Schramm, Kimberly C. Shankman, Jeffrey Sikkenga, James R. Stoner, Jr., Natalie Taylor, Aristide Tessitore, William Thomas, Daryl McGowan Tress, David Tucker, Eduardo A. Velásquez, Karl-Friedrich Walling, Bradley C. S. Watson, Melissa S. Williams, Delba Winthrop, Jean M. Yarbrough, Michael P. Zuckert.

The Parthenon Frieze

The Greek Ministray of Culture has put together this on-line digital form of the Parthenon Frieze. It is pretty impressive: "The application brings together for the first time all the restored stones from the British, the Louvre and the Acropolis museums, annotated in Greek and English. The photographs of the original stones (not of imitations) are accompanied by the preserved drawings of J. Carrey (1674) and J. Stuart (1751) giving the most thorough description of the whole frieze."

Pat Tillman

Pat and Kevin Tillman have returned to the US, after having served in Iraq. They are off to a Ranger school for three months. They are still not talking to the press, but their father is proud.

Lance Armstrong

Lance has moved into second place. He is poised to win!

Progress in Afghanistan

USA Today reports on the progress that has been made in Afghanistan. Good.

Nineteen years in a coma

In a coma for nineteen years, man awakes. Mother calls it a miracle.

NLT Mug Drawing Winners for June

Congratulations to this month’s winners of a No Left Turns mug! The winners are as follows:

Ben Horvath

Alexander Camacho

John Abramson

Joanna Birkitt

Michael Dedoshka

Thanks to all who entered. An email has been sent to the winners. If you are listed as a winner and did not receive an email, contact Ben Kunkel. If you didn’t win this month, enter July’s drawing.

Romneys to the Rescue

The Governor’s sons, jet skis, and a good deed.

Democrat Fix

Michael Barone has a few interesting thoughts on the problems the Democrats are facing for 2004. Note his last paragraph: "Core Democrats have an emotional investment in the idea that George W. Bush is an idiot; if conservatives believe they are conservative because they have more common sense than other people, liberals believe they are liberal because they are smarter than other people. At the heart of their hatred of Bush is snobbery. Gephardt, Lieberman, Graham, and Edwards don’t exude this snobbery. Dean and Kerry do. This could give whichever of them survives New Hampshire an edge with core Democrats. The Democrats’ problem is that at least 70 percent of voters do not share their contempt for Bush and find it off-putting. Outside a Bush fundraiser last week one protester’s sign read, ’France was right.’ That is not a winning slogan in an American election."

Optimism on Africa

R.W. Johnson (in The London Times, gives a good overview of the continent, and why all if it is not dark. He emphasizes what he calls the second generation democrats and what they are doing in places like Mauritius, Botswana, Mali, Senegal. Quite interesting and hopeful.  

Getting it Right about Coulter

Finally it appears that conservatives are realizing how much of a liability Ann Coulter is becoming. Her latest book is, frankly, appalling. And Andrew Sullivan gets it right, as he usually does. Coulter has become, Sullivan claims, the Michael Moore of the Right:

...[W]here’s he’s ugly and ill-kempt, she’s glamorous and impeccably turned out. (Her web-page,, has a gallery of sexy images.) But what they have in common is more significant: an hysterical hatred of their political opponents and an ability to say anything to advance their causes (and extremely lucrative careers).

Volunteer action threatens union jobs

The National Post in reports this story out of Saskatchewan, Canada: "Budget cuts meant there was no money to plant flowers this summer in Saskatchewan’s Duck Mountain Provincial Park, so a group of cottagers raised $50 and spent an afternoon planting marigolds.

Less than a day later, a dozen park workers arrived to uproot the plants, saying the volunteer action had threatened their jobs."

Fear that Saddam Might Return

This Washington Post story on how the Iraqis are becoming increasingly concerned (read afraid) that Saddam is not only alive but might get back into power is full of the now standard stuff (i.e., that we had better catch Saddam soon). But, also note this nugget that may be to our advantage (and to the advantage of anti-Saddam Iraqis): "Inside every one of us there is the fear of what will happen if the American people start pushing their government because they are losing so many soldiers every day," said Fadhil Majid, an employee at a bridal shop in the Adhamiyah neighborhood. "If they decide to withdraw, what will happen to us? Saddam is still free. With all the [militiamen] around, what kind of life will we have?"

And the Christian Science Monitor reports that the morale of US troops in Iraq is very, very low.

Kevin Johnson’s Charter School

Daniel Weintraub’s op-ed in the Sacramento Bee considers the interesting story of a former NBA star, Kevin Johnson, trying to open a charter school in his hometown. Sacramento High School was to be closed down for lack of performance. The school board voted to hand over the place to a non-profit organization run by Johnson, to be opened as a charter school. The teacher union is opposed. Very interesting case.  

The Ferociously Tedious Hillary

P.J. O’Rourke writes a must-read review of Hillary’s book in The Weekly Standard. The book is uber-mediocrity, period. O’Rourke claims that the book is 100,000 pages long: "There are only 562 page numbers, but you know how those Clintons lie. A mere ream of paper could not contain the padding that has gone into this tome. Hillary--with the help of at least six ghostwriters--nails the goose of a manuscript to the barn floor and force-feeds it with lint."    

Men and Women Writing

Computer scientists claim we give away our gender in our writing. Boy, this is serious (and quite amusing) stuff. The researchers had some trouble publishing their findings (which has to do with a computer algorithm), well, for ideological reasons. Surprise. Semi-interesting, but inevitably amusing stuff. Personal pronoun, thy name is woman. 

Profs as Rockstars

Here is something from the Boston Globe I have overlooked; it appeared about a week ago. It is about how universities poach "stars" from other universities; set them up, they hardly teach, yet it is in the university’s interest to do this. What are the consequences? Interesting, but long article, with many little ti-bits. Here is one on NYU’s taking of Niall Ferguson from Oxford: "One couldn’t imagine all of this happening in Oxford, where there’s a kind of gentleman’s agreement that we’re all equally brilliant," Ferguson says in an interview. "It’s extremely bad form to suggest that one person is as vulgar as to be a star. But it’s rather sweet and flattering to be told you’re good. And it’s positively disorienting to be told you’re a star."

Iraqi Battles

Here is Thomas Ricks’ take on the widening anti-American attacks in Iraq. There is some interesting information, once you get through which Senator said what about something not understood by even their staffers. In the meantime, The New York Times reports that three GI’s were killed last night.

Canadian Book Wins

Two Canadians are the winners of the first James Madison Award for their book for children, First to Fly: How Wilbur and Orville Wright Invented The Airplane. It’s the first year for the award, which was launched by Lynne Cheney, and paid for through proceeds from her own children’s book, America: A Patriotic Primer. The award is for books aimed at ages 5 to 14 and is named for the fourth president of the U.S. "who loved books from the time he was a child and who changed history with the knowledge he gained from reading."

Bring ’em on

David Warren reflects on what President Bush meant when he said "bring ’em on" to the Iraqis/terrorists who are trying to kill our troops in Iraq. There is purpose behind this cowboy talk: Let the bad guys come to one place, try to do their dirty work, and it will be easier to get them than to hunt them down in the four corners. That the media don’t understand his comments (never mind Democrats) doesn’t surprise Warren. Good.  

Vermont Ride

Johnny and I logged about 1,500 miles on our trip to Vermont. Great ride. We stopped at Cooperstown; too busy and chaotic although we got to rub the bronze plates of the Babe and other worthies. We also stopped at Fort Ticonderoga, between Lake George and Lake Champlain. It was built by the French in 1755 (they called it Carillon), and when the Brits took it in 1758 they renamed it Ticonderoga (between the lakes). In May of 1775 Ethan Allen and Benedict Arnold and the Green Mountain Boys took it. Allen famously asked the British commander to "Surrender in the name of the Great Johovah and the Continental Congress." On the way back on the 3rd we also stopped at Plymouth Notch, Calvin Coolidge’s birthplace. A simple farm. Looks almost exactly as it did in 1923 when he became president, after Harding died (probably the result of too many trists!). They were preparing the place for Coolidge’s birthday celebrations, which happens to be on the Fourth. I discovered that Grace Coolidge (Calvin’s wife) had written an autobiography. Crisp, clear, simple, good. Although she was the first professional first lady (she was a University of Vermont grad and a teacher of the deaf) she was entirely devoted to her family and husband. An impressive lady, lived until 1957, as I recall. Calvin said this of her in his autobiography: "For almost a quarter of a century she was borne with my infirmities, and I have rejoiced in her graces." Here is the Coolidge Foundation web site.