Strengthening Constitutional Self-Government

No Left Turns

How Kristol mand Novak knew about O’Connor

Marcia Davis writes about how Bill Kristol and Bob Novak were the only observers not surprised by Justice O’Connor’s resignation. Some of the details--Kristol is interviewed from Portugal--are interesting. Novak is also interviewed.

Black Republicans

This New York Times story focuses, briefly, on the increasing number of black Republicans either running--or thinking about running--for the Senate or for governor of their states. Lynn Swann, Ken Blackwell, Keith Butler, and Michael Steele, are among those mentioned. Donna Brazile says that "this is a very challenging moment for Democrats." Ken Blackwell, the Secreteray of State of Ohio, explains how well the vote in Ohio went in 2004. Project 21, a black conservative organization, is already weighing in the Supreme Court opening. Peter Kirsanow, a member of Project 21 said this: "I’m confident that the President will nominate someone with integrity and wisdom who understands that the proper role of a Supreme Court justice is to interpret the text of the Constitution, rather than, as Justice Thomas put it, promote ’the faddish slogans of the cognoscenti.’"

Education vouchers again

Don’t worry, I’ll start obsessing about the Supreme Court nomination soon enough, but for the moment I have vouchers on my mind.

Here’s a press release from the Milton & Rose Friedman Foundation celebrating the expansion of Ohio’s voucher program, upheld by the Supreme Court in Zelman v. Simmons-Harris. (In case you’re wondering--O.K., I couldn’t resist--Sandra Day O’Connor voted with the majority and wrote a separate concurrence insisting upon the genuineness of the choice Cleveland parents had.)

Katie Newmark calls our attention to this line of argument, which suggests that well-intentioned state constitutional provisions regarding support for public schools--which I’ve already discussed here and here--may well serve the purposes of school choice opponents. As Andrew Coulson puts it,

Floridians, and citizens of every other state with such explicit constitutional mandates, have backed themselves into a corner. Even if compelling new evidence convinces the majority of voters that there is a better way to educate children, the state could be stuck with the status quo. It would likely take a supermajority and a constitutional amendment to put alternatives to traditional government schooling on a sound judicial footing.

While voucher systems may constitutionally supplement public school systems, it would likely take constitutional amendments to legitimate voucher programs that "replaced traditional public schools or competed with them on a level playing field." And even the "supplemental" programs, like Florida’s (and
Ohio’s?) may be vulnerable to state constitutional challenge.

The Ten Commandments and our political adolescence

Joe Knippenberg’s thoughtful review of the Court’s incoherence in the two Ten Commandments cases leads him to conclude that the Supremes are not allowing us to govern ourselves, they think they are protecting us from our selves, hence guranteeing our "perpetual political adolescense." Madison and the boys must be rolling in their graves.

O’Connor’s Retirement

Here’s Presdident’s Bush’s remarks on Sandra Day O’Connor’s resignation. I suppose when someone retires one should be generous but Bush seems too generous in my estimation in his praise of O’Connor. Certainly, she hasn’t been as bad Souter and she was on the right side in the Kelo case. In this inflationary age, I would give her a C- as a judge.

Bush calls for all sides to be civil in the run up to a vote to replace O’Connor. Good luck.

I notice in her announcement, O’Connor states that her resignation becomes effective upon the nomination and confirmation of her successor. Gee, I hope the Dems don’t have 41 votes to block her successor and force her to serve anothe term.

O’Connor retires

Am told it is being announced as I write. Will confirm.

UPDATE: This is the AP story, and the Washington Post.

This is the New York Times story.

The Real Risk of Shark Attack

You can tell it’s the summer, because in the absence of real news we’re getting bombarded in the media with stories about shark attacks. Ralph Frasca from Division of Labour directs our attention to a site that demonstrates what the actual chances are that the average person will be attacked by a shark.

Frasca notes that in Florida over the past 50 years exactly eight people have been killed by sharks; on the other hand, thirteen have been killed by alligators. Quiz question: Guess which animal is federally protected--the shark or the alligator?

Saving America’s soul

Joseph Loconte notes that yet another group from the religious Left has embarked on a crusade. His concluding paragraph:

Call it fundamentalism from the left. If religious progressives help the Democratic Party to "find religion," we’re going to see a lot more of it. Heaven help us.

Read the whole thing.

Where are the Grown Ups?

When my kids fight or call each other names, I confess that I rarely ask them to sit down and discuss their feelings. I may try to get down to the bottom of the problem by going on a "fact-finding mission" to discover who the guilty party is but usually, they are both just told to go to their rooms and not come out until they are capable of acting like human beings. Sometimes they need more encouragement--in the form of a firm hand on the posterior region of their anatomy.

Apparently, I’ve been encouraging bullying. Peter Yarrow (of Peter, Paul, and Mary fame) has put together a program that is now implemented in over 12,000 schools called Operation Respect: Don’t Laugh at Me. Michelle Malkin has described it brilliantly here.

Just a question: What happened to all the adults in our schools? When I was a youngster in school there was nothing so vulnerable as a teacher or administrator who took our childish behavior seriously. We could not express it, but we sensed the problem with that. We knew we could not trust an adult who trusted children. Children should only be taken as seriously as they deserve to be taken. They have to earn respect. Children have to be taught how to act like adults. They have to be made to do it. They will resist. If they are naughty, they must be punished. If they are mean, they must be punished more vigorously. They must be taught to act nobly and defend the weak. They have to be taught about justice. How odd to have to say these things that should be clear to all parents. But we’ve tried to re-invent the wheel. Kids will not respond to hand-holding and coddling. Sure, you need to kiss their boo-boos when they fall down, but you can over-do that. You have to make them get up again. These lessons are hard. Folk-songs cannot supplant the school of hard knocks.

If teachers and administrators (not to mention parents) were empowered with the powers that teachers of old enjoyed, (e.g., paddling, prayer, discussion of morality in absolute terms) we probably would not have as many of these problems as we seem to have today. Doesn’t anyone see that these kind of programs spawn precisely the behavior they seek to prevent?

Supreme Contradiction

This is my attempt to say something sensible about the Ten Commandments cases. Combine these two incoherent decisions, with the Kelo decision (also see this and this and this), and no one should be surprised at the political anger directed at the Court that has risen among ordinary citizens. This will have large consequences, from people questioning their elected local officials ("will you take away my house and give it over for development just to get more revenue for the city?"), to calls for a constitutional amendment overthrowing the decision. Remember what happened to the Dred Scott case?

Iran’s president one of the hostage takers of 1979?

Five ex-Iranian hostages believe that the president-elect of Iran, Mahmoud Ahmadinejad, had been one of their Iranian captors. The hostage crisis of 1979 lasted 444 days. The hostages were released when Ronald Reagan took the oath of office in 1981.

Economy remains strong

The economic growth during the first quarter was 3.8%, matching that of the last quarter in 2004. "The final figure outpaced Wall Street economists’ forecasts for a 3.7 percent rate of first-quarter growth and implied the economy had more strength going into the spring than previously thought. Most forecasters say GDP will continue expanding at rates around 3.5 percent in coming quarters, despite some strain from costlier energy prices."

Bush is steadfast

Here is the full text of President Bush’s speech at Fort Bragg yesterday. I only heard parts of the speech, and read the Washington Post’s story on it. It seemed to me a good, sober speech in which he reminded us that the thing is worth doing and worth doing well. One of the things least appreciated in politics is constancy. Bush is constant. His dominating purpose--despite the criticism from some quarters--is victory. His unflinching mode is admirable and the people appreciate it. The MSM will, of course, continue to make stories our of poll numbers that have been slipping, but I don’t, especially not in the middle of the first summer of a second term. The speech was well received and served its purpose. The CNN poll immediately following the speech showed that 46% said they had a "very positive" reaction to what they heard, and 28% had a "somewhat positive" reaction. By the way, despite MSM drumbeat to the contrary, the Washington Post/ABC News poll, released just before the speech, showed that "a clear majority is willing to keep U.S. forces there for an extended time to stabilize the country."

Shelby Foote dies

Shelby Foote, the author of The Civil War: A Narrative, has died. He was 88. I loved his raspy, whiskey drended voice, and his moist eyes, and the Southern lilt of his voice. When he talked (or wrote) about the war, you thought that he had lived through it. I believe he had. RIP

This is an NPR interview with Foote about his friendship with Walker Percy. You can listen to it by clicking here.

Another Silver Lining: ’Kelo’ing David Souter’s House

Logan Darrow Clements, a real estate developer, has filed a request with the code enforcement officer in Weare, New Hampshire to build a new hotel on the site of Justice David Souter’s home.

From the article: "On Monday June 27, Logan Darrow Clements, faxed a request to Chip Meany the code enforcement officer of the Towne of Weare, New Hampshire seeking to start the application process to build a hotel on 34 Cilley Hill Road. This is the present location of Mr. Souter’s home.

Clements, CEO of Freestar Media, LLC, points out that the City of Weare will certainly gain greater tax revenue and economic benefits with a hotel on 34 Cilley Hill Road than allowing Mr. Souter to own the land.

The proposed development, called "The Lost Liberty Hotel" will feature the "Just Desserts Café" and include a museum, open to the public, featuring a permanent exhibit on the loss of freedom in America. Instead of a Gideon’s Bible each guest will receive a free copy of Ayn Rand’s novel "Atlas Shrugged."

Clements indicated that the hotel must be built on this particular piece of land because it is a unique site being the home of someone largely responsible for destroying property rights for all Americans.

"This is not a prank" said Clements, "The Towne of Weare has five people on the Board of Selectmen. If three of them vote to use the power of eminent domain to take this land from Mr. Souter we can begin our hotel development.""

Almost funny.

More on Kelo silver linings

I just read these posts by Eric Claeys, and find myself completely in agreement.

Having spent last week teaching about the Constitution (thanks again to these kind folks in Boise), I’m reminded of my teacher Walter Berns’s injunction to teach and study the document rather than what judges say about it. James Madison reminds us over and over again (here and here, for example) that our rights are protected more by the structure of government and of society than by any mere "parchment barriers," even if they’re, ahem, "enforced" by the judiciary.

I was talking to some friends at the pool last night (celebrating the end of swim team season--our team was sixth overall in the North Atlanta Swim Association championships, but I’ll refrain from further bragging), and the Kelo decision came up (without any prompting on my part). These middle class suburbanites--not especially political--are steamed. This morning, I was listening to our local entertainingly obnoxious radio talker on the way back from dropping my son off at camp. His guest was our county CEO, who, having apparently heard from constituents, was promising up and down not to engage in obnoxious takings (though he did make an exception for "blight," all the while denying that there is any such thing in our fair county).

The talker, who claims to be a libertarian but is apparently addicted to government by remote control, was fulminating about Senator Johnny Isakson’s press release, which didn’t go far enough for his taste, since it didn’t call for a constitutional amendment to rein the Court in. He should have preferred the "constant vigilance" recommended by a Harry Potter character whose name escapes me at the moment (my wife, the family HP expert [less than three weeks now], would know).

To wrap this up in a moderately neat package, there are, I think two good results that flow from the Kelo decision. Most immediately, it is going to be a little easier for President Bush to build support for his Supreme Court nominee. My neighbors may or may not have passionately held positions on abortion (we don’t talk about it), but they care deeply about their property rights, with regard to which the Court majority seems to them to have joined Dark Side. In the longer run, this is a proverbial teachable moment, reminding us that the real bulwark of our rights is not to be found in a courthouse anywhere, but in the willingness of citizens to stand up, not only for themselves, but for those currently most vulnerable to governmental predations. This requires the kind of sympathetic imagination urged upon us here, albeit not in the name of the same causes.

The Supreme’s folly

George Will gets to the point on the Supreme’s latest "two more hairsplitting, migraine-inducing decisions yesterday about when religious displays on public property do and do not violate the First Amendment protection against ’establishment’ of religion." He says this is what the Court should have said: "Because the display on public grounds does not do what the establishment clause was written to prevent -- does not impose a state-sponsored creed or significantly advantage or disadvantage one sect or sects -- the display is constitutional."

PBS and Professor Hefner

As the fight over PBS-funding continues, the Republican Study Committee has released this reminder on the "educational" agenda... er... programming over at PBS. From the press release:

The Public Broadcasting Service, PBS, is currently advertising for their movie, the Education of Shelby Knox, to premier on Tuesday, June 21, 2005. According to the PBS website, the movie is about 15-yearold Shelby Knox, who had personally pledged abstinence until marriage, but becomes an advocate for teaching teens about contraception and condom use through sex education. As part of her advocacy, Shelby allies herself with a group of gay students who have been denied the right to form a gay-straight alliance in school.

Oh yeah, and Playboy’s the corporate sponsor.

silver linings after Kelo

Also, as awful as I think the Kelo decision is, I think there are some good things for interested readers to focus on.

First, I think the case will galvanize public-use litigation even though New London won. Kelo was expected to lose 7-2 or 8-1, but the decision was 5-4, and with really strong dissents by Justices Thomas and O’Connor, and a concurring opinion by Kennedy that gives litigants some useful pointers how to win the next case. I think most land-use lawyers and most state courts will see the closeness of the case as a sign to reconsider public-use law seriously.

Second, in his dissent, Justice Thomas made it respectable to go back to the original meaning of "public use" -- government property like courthouses and roads, or property owned by utilities with a duty of access to the public. Thomas also said that the Founders regarded property as a "fundamental, natural right."

Third, and most important, Kelo made it crystal-clear that it’s a risky business to expect federal-court judges to defend property rights. It’s not enough to armchair-criticize a court opinion; citizens who want to protect their rights need to organize locally. Ironically, by losing, Kelo may end up doing property rights more of a favor -- by galvanizing ordinary citizens to support efforts to redraft state state "blight," "economic development," and "TIF" laws. These are the laws that give local governments to condemn land and assign it to businesses or local developers. These laws usually are quite open-ended, and they usually signal to state courts that the courts ought to defer to local findings that condemnations are necessary. Practically, I don’t think public-use law will ever be able to fix the abuse; what is needed is state legislation that (a) sets clear and agreed-on criteria saying when it is appropriate to use eminent domain, (b) requires courts to review local determinations independently, and (c) requires local governments to consider what impact proposed condemnations will have on property rights.

Anyone who’s interested should consult the Claremont Institute’s Center for Local Government, which is active in these things.

why Kelo wasn’t such a surprise

I know more than a little about public use law, because John Eastman & I co-authored an amicus curiae brief in Kelo for the Claremont Institute’s Center for Constitutional Jurisprudence. I have a few reactions to the outrage against the Supreme Court’s decision in Kelo, which people can consider for what they’re worth.

First, anyone who’s outraged by the result needs to understand that the law went south more than 50 years ago. In a 1954 case called Berman v. Parker, the Supreme Court gave local governments broad power to use "blight" as a rationale to redistribute private property, and suggested in the process that the Public Use Clause was a dead letter. My sense is that, by the 1970s and 1980s, local governments had gotten so accustomed to deference that they stopped using blight and started citing economic development by itself. Kelo just ratified that development.

To be sure, it’s a little more egregious when the city kicks an owner out purely to generate more revenue than when it does so on the pretext that the owner’s land is blighted because it doesn’t have a 2-car garage. But anyone who’s mad about Kelo should have been mad about Berman. I guess Kelo’s different because it’s a new decision, because condemnation is more prevalent now than it was in 1954, because pro-property groups are better organized now than then, and -- most of all -- because in Kelo the Supreme Court issued a holding that everyone can understand without complicating issues like "blight."

A Religion-Clause Background

For those following and hoping to understand today’s Ten Commandment’s decisions, NLT’s own Robert Alt co-authored this paper for the Federalist Society. An excellent primer for today’s opinions and, as always, a must read.   

Religious Division

Here is Eugene Volokh’s take on the Supreme Court’s Ten Commandments cases. The Court, of course, has split the baby so to speak, ruling, as Peter noted below, that the Kentucky display is unconstitutional while the Texas display is not. Thanks to SCOTUSBLOG.

The opinions joined by Justices Stevens, O’Connor, Souter, Ginsburg, and Breyer routinely stress that Ten Commandments displays and the like often threaten to produce "religious divisiveness," and that the Establishment Clause should be read as making such divisiveness into a reason for invalidating (at least some) government actions.

But I wonder: What has caused more religious divisiveness in the last 35 years -- (1) government displays or presentations of the Ten Commandments, creches, graduation prayers, and the like, or (2) the Supreme Court’s decisions striking down such actions? My sense is that it’s the latter, and by a lot: All these decisions have caused a tremendous amount of resentment among many (though of course not all) members of the more intensely religious denominations. And the resentment has been aimed not just at the Justices but at what many people see as secular elites defined by their attitudes on religious matter. The resentment is thus a form of religious division, and I’ve seen more evidence of that than I have of religious division caused simply (i.e., setting aside the litigation-caused division) by the presence of Ten Commandments displays, creches, or even graduation prayers.

Isn’t there something strange about a jurisprudence that in seeking to avoid a problem (religious divisveness) causes more of the same problem, repeatedly, foreseeably, and, as best I can tell, with no end in sight?

Barack Obama on Abraham Lincoln

Barack Obama, the freshmen Democrat from Illinois, occupies the seat in the U.S. Senate which Lincoln sought in 1858. Obama offers his reflections on Lincoln. While he doesn’t quite get the Emancipation Proclamation or Lincoln’s alleged racism right, it is an interesting reflection on Lincoln. Obama understands that Lincoln believe in liberty for all.

Ten Commandments case

ABC News reports: "In a narrowly drawn ruling, the Supreme Court struck down Ten Commandments displays in courthouses Monday, holding that two exhibits in Kentucky crossed the line between separation of church and state because they promoted a religious message." Scalia wasn’t amused, nor am I. Stay tuned for details at How Appealing.

GOP politics (in the MSM)

Baltimore Sun praises Ken Mehlman’s leadership at the RNC. "After five months in the chairman’s post, it’s become increasingly clear that Mehlman is the anti-Dean - to the delight of Republicans and the discomfort of more than a few Democrats." Both the New York Times and the Los Angeles Times are inspired by the theme that the MSM has dwelt on recently asserting that the Bush team is not able to govern during the second term. Jeffrey Bell considers something similar, but focuses on the economy. How is it that the economy be doing well and yet the President not get the credit?

Durbin continues his "apology"

I guess Sen. Dick Durbin is on an apology tour. "I picked exactly the wrong words. My words hurt some people. I sincerely apologize for that," he said in Peoria.

Lincoln’s intimate life?

Allen Guelzo, Lucas Morel, Michael Burlingame, and others, comment on C.A. Tripp’s The Intimate World of Abraham Lincoln. This is the book
claimed to offer a "full examination of Lincoln’s inner life and relationships," concluding that Lincoln was "predominantly homosexual" and that his homosexuality informed his beliefs on slavery, morality, and religion.
In the meantime, Sen. Barack Obama tries to see Lincoln in higher terms, in terms that make him agreeable to this Democratic Senator from Lincoln’s state, but yet can’t simply endorse his virtues, his justice. But he sees something in his eyes. And, of course, he can endorse Lincoln’s attempt to remake himself, and remake his surroundings. Lincoln’s imperfections make him compelling, as Obama puts it. There will be more of this. Piscem natare doces.

Reactions to the Kelo decision

I do not think I have ever seen as much immediate outrage by ordinary citizens as I have since the Kelo decision. People are going to be quite active--I am betting--on the local and state level to try to find ways of overcoming this outrageous decision. Calling for a constitutional amendment is also being talked about. The Castle Coalition thinks that the fight is by no means over and that individual citizens can make a difference. Also see this, and this.

Barone on Rove

Michael Barone thinks that the reason Democrats reacted so loudly to Karl Rove remarks is because he revealed a rift in their party between Democratic politicians and Democratic voters.

One reason that the Democrats are squawking so much about Rove’s attack on "liberals" is that he has put the focus on a fundamental split in the Democratic Party -- a split among its politicians and its voters.

On the one hand, there are those who believe that this is a fundamentally good country and want to see success in Iraq. On the other hand, there are those who believe this is a fundamentally bad country and want more than anything else to see George W. Bush fail.

Kelo and Thomas

R.J. Pestritto (and here) and Ken Masugi have some more to say on the Kelo decision, and Justice Thomas’s dissent.

High minded politics of the EU

This was brought to my attention by The Corner. As is said there, no comment necessary. It is from


We’re told to always read the label, but if the EU gets its way, the label might not be all that useful in the future. Most clothes sold in Sweden contain labels with washing instructions, and eight out of ten Swedes say they find them useful. But the labels are now being viewed at the EU level as a hindrance to free trade.The source of the EU’s displeasure is the agreement between the Swedish clothing industry body Teko and the Swedish Consumer Agency, under which most clothes made in Sweden or for the Swedish market contain washing instructions. When the organisations tried to renew the agreement, they were informed that it broke EU rules, as it was prejudicial to foreign clothes sold in Sweden that don’t have the labels.

China’s energy woes

Philip Andrews-Speed, writing for the Far Eastern Economic Review, considers China’s energy woes. China’s bid on Unocal Corp. is a related issue. And, China repeats that it is not interested in revaluing its currency.

Maryland Democratic politics

Demos in Maryland are thinking of moving up their primaries. They see the primaries as bruising, dividing the party along racial, ideological and even geographic lines, and hope that by having them earlier, they will have more time to re-unite for the the general elections.

Blair’s son to intern with GOP Member

Tony Blair’s son, Euan Blair, will have an unpaid internship with the U.S. House Ruler Committee this summer. The London Telegraph said Euan would be mentored by David Dreier, a Californian representative to the Republican leadership in the House, during his internship. Democrats, thinking themselves natural allies of the Labour Party, are not amused.

Flag burning

Mark Steyn opposes a law against burning the flag, as do I, but his op-ed on the point is much more effective than anything I could have written. Read it.

My grandfather got 10 years at hard labor for having a small American flag in his house. The first thing he wanted to see when they let hime out was that flag. He thought the imprisonment was worth it. When I was monitoring the first free elections in Bulgaria soon after the fall of Communism in a dusty village near the Black Sea I noticed that there were many small American flags here and there, especially on cars. I walked up to an old woman and asked her why there were all these American flags about. She looked at me as if I were an idiot and said, "Freedom. It represents freedom." Enough said. Those who burn Old Glory make a political statement. I like to know where people stand.

Horatio Nelson

This review in the The Economist of new books on Admiral Horatio Nelson is very good. It tells us much about Nelson, who, according to the reviewer, did more than anyone (save Churchill) to shape the British character. Note this paragraph:

The Nelsonian essence of battle, Mr Nicolson explains, was the "liberation of individual energies to ensure victory". There is, he suggests, a parallel between the way Adam Smith thought of economics and Nelson thought of war: the individual’s uncompromising pursuit of individual ends also best serves the general good. While the Spanish fleet was marked by a peasant/aristocratic mentality, and the French fleet by an uncomfortable mix of ancient and revolutionary, "Nelson’s fleet carried a capitalist charge."

U.S. "renditions" and Italian law

The Italian judge’s order to arrest 13 men linked to the CIA is not an especially good sign. It reveals that we are indeed pressing against bad guys in unconventional ways (renditions--abducting terror suspects and transporting them to third countries--for example), and also that the Italians (and Europeans generally) prefer a different method of counterterrorism, one that works through the criminal justice system.

Likely Effects of Kelo

Over at Division of Labour, economist Larry White makes some predictions about the likely economic effects of the disastrous Kelo v. New London decision:

The result to be expected, contrary to well-meaning officials’ intentions, is misuse and waste of land (not to mention the hardships of involuntarily uprooted families). When private developers buy up land through voluntary transactions, they face a market test. If a shopping center or office complex flops, the developer loses his own money and will have trouble getting bank loans the next time. Wishful thinking is thereby constrained. The market ruthlessly weeds out incompetence. When town officials grab land through eminent domain, to assemble a parcel to sell to a developer (more cheaply than he could have managed without eminent domain, otherwise he wouldn’t have waited) whose shopping center flops, where is the personal penalty for the town officials? At most, if voters are informed enough to hold them accountable, they face a slightly higher chance of being voted out (if still in office), or a slightly reduced budget to play with (unless tax revenues can be enhanced somewhere else). Wishful thinking has almost free rein.

So my prediction: expect to see a few more half-empty shopping centers ten years from now.