Strengthening Constitutional Self-Government

No Left Turns

Line-drawing on stem cells

Charles Krauthammer has some suggestions. I’m not sure they’re sufficient to ungrease the slippery slope.

"Francophobia" in Eastern Europe

Read about it here.

British imams and the First Amendment

An article in The New York Times talks about Tony Blair’s new plans for attacking Islamist terrorism. According to the Times, "In a 12-point list of measures, Mr. Blair said Britain planned as of today to broaden the grounds for deportation to include ’fostering hatred, advocating violence to further a person’s beliefs or justifying or validating such violence.’" The article misleadingly contends that the "British moves, part of an ongoing debate about the balance between civil liberties and national security, seemed to nudge Britain closer to the hardline attitudes against perceived extremists that emerged in the United States after the Sept. 11, 2001, attacks."

Actually, the American standard for violent speech is much more liberal. In a case that remains the foundation for how courts think about such speech, Brandenburg v. Ohio (1969), the Warren Court overruled many years of precedent and legal tradition and held that advocating violence against a legitimate government or its officials is protected under freedom of speech. According to that decision, speech can only be punished when a person incites someone else to "imminent lawless action" that is likely to happen under the circumstances (for example, telling an angry mob gathered in front of a city hall occupied by officials that "You should string up these infidel dogs right now!"). Until that point, government is powerless to intervene.

So far in the war on terror, the problem of violent advocacy has not mattered much in the US because we have been able to prosecute terrorist cells based on their actions under anti-conspiracy laws. But if the problem of radical imams preaching violence ever surfaces here, American authorities will be powerless to act directly, at least according to the Supreme Court’s current view.

Maybe this is the price we pay for free speech. But contrary to what many Americans might think, this is a new view and it is far from clear that it was the original meaning of the First Amendment.

Yet Another Reason Why I Miss Ohio

In Southern California you can find all sorts. The problem, however, is that our diversity has the paradoxical tendency of becoming or encouraging parochialism. I can’t begin to tell you how many "natives" I’ve met here think the sun rises and sets for and because of their little city and its concerns. Unless they have business in some other part of the country, few ever go east of the Rockies. Many apparently "educated" people that I have met here have never even left the state. This, of course, does not prevent them from passing judgment (usually negative or at least smirking) on their fellow Americans in fly-over country. Today, however, thanks to Laura Ingraham’s radio show I am reminded of yet another reason why I miss Ohio.

The United States Lawn Mower Racing Association--soon to have their major annual competition in Mansfield, Ohio--explains, I think, why the "diversity" of Ohio (and the mid-West in general) is so appealing. Here are some real guys, living regular work-a-day lives, who don’t take themselves too seriously, having a good time and making a major industry out of it. Good for them. If I were still in Ashland, I think I’d make time to go and see them.

Climate and Hurricanes

The media is breathlessly touting recent stories that this year’s extra frequent and strong hurricanes are a sign of global warming, even though the IPCC has discounted this idea in its recent reports. The media is ignoring this statement from NOAA (the National Oceanographic and Atmospheric Administration). Money graph:

"(The) confluence of optimal ocean and atmosphere conditions has been known to produce increased tropical storm activity in multi-decadal (approximately 20-30 year) cycles. Because of this, NOAA expects a continuation of above-normal seasons for another decade or perhaps longer. NOAA’s research shows that this reoccurring cycle is the dominant climate factor that controls Atlantic hurricane activity. Any
potentially weak signal associated with longer-term climate change appears to be a minor factor."

Roberts’s pro bono work

I would have blogged about the brouhaha around this article last night (having listened to a radio rant on my way home from work), but I was enjoying the company of friends at this production of Chekhov’s The Cherry Orchard (excellent, by the way).

First of all, here are today’s stories on the subject. I have two thoughts. In the first place, Roberts’s participation (limited as it was) indicates something of his generosity, capacious enough to encompass those with whom he might have an ideological disagreement, as well as his collegiality. Both of these strike me as indicators of the requisite "judicial temperament." Second, it seems to me that one could argue that the adversarial process works best when both sides are making their strongest arguments, and compelled to respond to the other side’s strongest arguments. Roberts could be said to have contributed (generously) to the most effective possible functioning of the adversarial process, which could matter more than (or at least as much as) a particular outcome. If you want the result of a case to have a chance of standing the test of time, you hope for and work toward effective advocacy on both sides. As an attorney, that’s all you can do.

As a President, however, you also do what you can to assure that the judges deciding the cases can distinguish good from bad arguments and do not permit extraneous ideological considerations to sway their judgment. I still think President Bush has done a good job here.

Tooting someone else’s horn

Andrew Busch, co-author of this classic account of the 2000 election and this soon-to-be classic about the 2004 election, offers his thoughts on progressivism then and now over on the main site. The progressivism of 1906, embodied in Theodore Roosevelt’s State of the Union Message, has a lot more in common with the conservatism of 2005 than it does with contemporary so-called progressivism. Unlike their contemporary namesakes (I hesitate to call them cousins or descendants), the progressives of 1906 believed in national greatness, supported the traditional family, and did not hesitate to criticize the judiciary. If you wonder why Kansans liked progressives then and seem to dislike them now, here’s Busch’s answer:

The left is now perceived, correctly, as the political home of anti-Americanism, unwilling to carry (let alone wield) the big stick or to forthrightly decry the wicked will of despots and barbarians, and willing (if not anxious) to hand over American sovereignty to international bureaucrats. It has furthermore become the political home of social and moral libertinism, whose adherents complain that the Constitution should not be cluttered up with trivialities like marriage because the home life of the commonwealth has few public consequences worth worrying about. And it has become the force in American politics most wedded to government by judiciary, and most reflexively opposed to any effort to put the judiciary under greater scrutiny or accountability. In the process, it has managed to ignite the most highly charged cultural issues of the day.

Busch hastens to add that we shouldn’t all necessarily embrace the Bull Moose. And I would hasten to add that we need to think about the coherence of the Rooseveltian positions we seem to have inherited with other tenets of conservatism (not to mention among themselves).

Read the whole thing and think deep thoughts.

The latest EU outrage

Win Myers has the story. Next they’ll be going after Lederhosen.

Roberts on Judicial Restraint; Questionnaire Made Public

On Wednesday the Washington Post published an article, Judges Should Have ’Limited’ Role, Roberts Says, that quotes from the questionnaire Judge Roberts answered for the Senate Judiciary Committee. Regarding judicial activism, Roberts wrote:

"When the other branches of government exceed their constitutionally-mandated limits, the courts can act to confine them to the proper bounds. It is judicial self-restraint, however, that confines judges to their proper constitutional responsibilities."

The article also includes a sidebar that gives an on-line, PDF copy (in 3 parts) of the completed 76-page questionnaire and financial disclosure Roberts submitted to the Committee. It includes a paragraph about his involvement with the Federalist Society, where he acknowledges participating in their events (between 1993 and 2003) but has no recollection of serving on any of their committees or ever being a member.

Part 3 of the questionnaire also includes his description of the selection process he went through (e.g., first interviewed on April 1, so and so was present, no I was never asked how I would rule on a given case or issue) and his view of judicial activism.

Tooting my own horn

We scholars never do this, but, since Peter is out of town (here, perhaps?), I’ll have to engage in some shameless self-promotion. Desperate times call for desperate measures.

I’ve written a very long piece examining the publicly available evidence regarding John Roberts’s position on the First Amendment religion clauses. Did I mention that it is VERY LONG?

Here’s the relatively short conclusion:

A careful review of the publicly available evidence suggests that John Roberts has put his name to positions solidly within the mainstream of judicial interpretation of the First Amendment religion clauses. As seems to be the case in many other areas of law, he would be careful to stay within the proper bounds of judicial competence and be respectful of the role and judgments of the political branches. Above all, he would apparently continue and perhaps extend somewhat the Court’s tendency to look favorably on attempts to accommodate religious expression, not necessarily as a matter of judicially-enforced constitutional right, but rather as a matter of what might be called legislative grace. This deference and "judicial restraint" would require a rethinking of the Court’s Establishment Clause jurisprudence, continuing the move away from a mechanical application of the Lemon test and perhaps an abandonment of Sandra Day O’Connor’s "endorsement" test, in favor of a return to a focus on the traditional elements of establishment ("force and funds").

This would, of course, mark a change in the Court, just as Ruth Bader Ginsburg’s replacement of Byron White marked a change in the Court. Our first opportunity to see what sort of change will come in the next term, when the Court hears Ashcroft et al. v. O Centro Espirita Beneficiente Uniao do Vegetal, a case addressing a Religious Freedom Restoration Act-based challenge to the Controlled Substances Act. Will Roberts take the opportunity—as Sandra Day O’Connor did in her dissent in City of Boerne v. Flores—to call for a reexamination of the Court’s holding in Employment Division v. Smith, stare decisis to the contrary notwithstanding? Or will he likely follow Antonin Scalia in deferring to the legislative judgment of "compelling state interest" embodied in the Controlled Substances Act itself? We will see soon enough how he balances his apparent clear concern with religious liberty with his deference to the political branches.

I saw nothing in the seven briefs I read to dampen my enthusiasm for Roberts; if he believes what he wrote, he’ll generally vote with Scalia, Thomas, and Rehnquist. When Kennedy can be brought along for the ride (which is a somewhat more frequent occurrence than was O’Connor’s fellow traveling), there is a working majority on Establishment Clause cases.

Roberts and precedent

Among the questions John Roberts will be asked in his confirmation hearings are a number regarding his respect for precedent (above all, of course, Roe v. Wade). See, for example, here and here.

I just came across a nice, and nicely problematical, statement of the regard one should have for precedent in Sandra Day O’Connor’s dissent in City of Boerne v. Flores:

Stare decisis concerns should not prevent us from revisiting our holding in Smith. " `[S]tare decisis is a principle of policy and not a mechanical formula of adherence to the latest decision, however recent and questionable, when such adherence involves collision with a prior doctrine more embracing in its scope, intrinsically sounder, and verified by experience.’" [citations omitted] This principle is particularly true in constitutional cases, where--as this case so plainly illustrates--correction through legislative action is practically impossible." [citation omitted] I believe that, in light of both our precedent and our Nation’s tradition of religious liberty, Smith is demonstrably wrong. Moreover, it is a recent decision. As such, it has not engendered the kind of reliance on its continued application that would militate against overruling it. Cf. Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 855 -856 (1992).

Aside from the ad hoc defense of Roe, O’Connor puts precedent in its place. When important doctrinal or constitutional matters supervene, precedent should give way. The fact that the precedent is long-standing (think Plessy v. Ferguson, much older in 1954 than Roe is now) pales in the face of these other considerations.

I wonder if someone who uttered all but the last two sentences of that opinion could win any support in the left wing of the Democratic Party.

Thinking about 2006

In case you need further evidence for Democrats’ dependence upon the left-wing blogosphere, consider this quote:

DCCC Executive Director John Lapp issued a statement defending the committee. Saying the DCCC would like to fund every House race, he said: "Resources are not infinite. That is why MyDD, the Daily Kos, and the larger blogosphere are so important. You are critical in the effort to expand the playing field well above and beyond the 30 or 40 districts typically in play."

When the Democratic Congressional Campaign Committee embraces and applauds what can only be described as the far Left, where conspiracy theories abound and invective and profanity often replace argument, the party is simply further marginalizing itself.

This of course does not mean that the Republicans have no problems of their own, as the article (quoting Newt Gingrich) indicates. But Democratic extremism makes it easier for Republicans to avoid facing their own weaknesses.

In honor of Christopher Lyons

It has been a bad week for US casualties in Iraq, especially for Marines from Ohio. Our local paper, the Ashland Times-Gazette, ran a front page story on one of those Marines, a reservist from Lima Company, 3rd Battalion, 25th Regiment named Christopher Lyons, who was from the Mansfield area and was killed in action last week in western Iraq.

I didn’t know Lance Corporal Lyons, but my wife and I were in the same hospital birthing class as his wife Bethany, who had their daughter Ella three months ago while he was in Iraq. He never saw his daughter in person, but Bethany once talked in class -- with tears in her eyes and ours -- about how she looked forward every day to him coming home. It was moving then; it is even more moving now.

Christopher Lyons gone, but his service never forgotten.

Ohio GOP and the Schmidt/Hackett race

The victory yesterday of Jean Schmidt in Ohio’s 2nd Congressional district special election, points not only to the obvious weakness of the Dems (they had to run a guy who appeared to be a Republican) but also to the problems brewing within the Ohio GOP. The narrownesss of the victory in a district that should have been a slam-dunk cannot be attributed solely to Hackett’s attempt to disguise his true identity as a liberal. Rush has been all over this today and you can read more here at NRO. The pathetic recent performances of Ohio’s two senators surely did much to deflate the base in this election and, by all accounts, Schmidt gives the impression of being cut from the same cloth. It’s time for some new talent to emerge in Ohio. The left is right about Ohio being a microcosm of the nation. It is ripe for a conservative revolution. Can anyone say Ken Blackwell?

California Supreme Court and Gay Golfers

The California Supreme Court, according to The Washington Post ruled today that: "country clubs must offer gay members who register as domestic partners the same discounts given to married ones _ a decision that could apply to other businesses such as insurance companies and mortgage lenders." California instituted the "domestic partners" registry after the state voted overwhelmingly a few years ago NOT to permit gay marriage. I’m no country club Republican but I don’t think the courts have any place in deciding what kind of rules should govern a PRIVATE club.

Reagan Was Right--Again

Guess what? Cows are now a larger source of pollution than cars in California’s central valley, which still have a significant smog problem. So says a terrific story in today’s Los Angeles Times, by Miguel Bustillo, one of the better environmental beat reporters in the country.

Once again, we see another vindication of Ronald Reagan’s much ridiculed view that there were lots of natural (or non-human) sources of smog. About 15 years ago the LA smog regulators did a study of emissions from trees, and concluded that they might not be able to meet the Clean Air Act targets for the LA basin unless they began to regulate . . . landscaping. The LA Times reported this quite well; It turned out that Japanese trees were lower-emitting trees than native American trees. The head of Tree People, a local tree-planting group, told the Times that they were very concerned, but would be sure to make sure that their members "planted low-emitting trees." Evelyn Waugh could hardly have written better satire.

What Have the Infidels Ever Done for Us?

Monty Python’s famous satire of political extremism, updated for our times.

Hat tip:

U.S. soldier becomes sheik

Staff Sgt. Dale Horn is now Sheik Horn. Good story, good work. "Some sheiks later gave him five sheep and a postage stamp of land, fulfilling some of the requirements for sheikdom. Others encouraged him to start looking for a second wife, which Horn’s spouse back in Florida immediately vetoed."

No Left Turns Mug Drawing Winners for July

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

Norman Vance

Gerald Inman

Roger Stern

Gary Hunt

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 August’s drawing.

Judges and politicians

E. J. Dionne, Jr. thinks that it’s a good thing for politicians to discuss their faith in the public square, especially when it has some bearing on the positions they take. I agree.

But a judge is not a politician, a distinction that seems to be lost on all those who think judges "make law" (an expression I first heard out of the mouth of NPR’s Nina Totenberg almost twenty years ago when she lectured on my campus). Being guided by one’s conscience in lawmaking is one thing. But judges are called to interpret and apply the law, not enact the contents of their conscience. Dionne’s position, Durbin’s alleged query, and all the brouhaha about William Pryor’s "deeply held beliefs" all take for granted an understanding of adjudication as activist lawmaking or constitution-writing. And while I’ll take Dionne’s word for it when he agrees with conservatives that "religiously inspired voices have a legitimate place in the public square," Senator Durbin and his colleagues are playing the religion card to insinuate that some voices (or consciences) don’t belong on the bench. By failing to distinguish between judging and legislating, Dionne is offering cover to those who would mutter about divided loyalties and imply that the law cannot be consistent with religiously orthodox moral and social teaching.

Roberts and privilege again

This WaPo article is far superior to the poor and misleading piece of work in the LAT I discussed here. Of course, it still begins by trivializing all disputes over privilege by reducing them to politics. And it doesn’t carefully distinguish between the Clinton Administration’s unsuccessful attempts to assert privilege in the face of criminal investigations and the current case. Nonetheless, there are some nice blurbs worth reading, like this one:

"For better or worse, the Bush administration has done a much more effective job than we did of protecting privileges," said Ronald A. Klain, a lawyer who served as chief of staff to Vice President Al Gore.

Clinton waged many battles over privileges but lost some of them in court and surrendered others in the interest of damage control. In a showdown with the Senate opposition over something like the Roberts papers, Klain recalled, a politically and legally weakened Clinton White House often would find a compromise to end the dispute.

"I have no doubt that if that had been us, we would have turned over the papers," Klain said. "I’m not saying that’s a good thing; I’m not saying that’s a bad thing. But whenever we walked up to the brink, we blinked. And these guys don’t, and they’re prepared to pay the price for it."

Being prepared to pay a price for something suggests that it’s a matter of principle, rather than politics, something Peter Baker, the author’s article, would have done well to reflect on.

Local Liberty and American Constitutionalism

I spent an interesting morning yesterday with Ken Masugi going over some final edits for the upcoming issue of Local Liberty, a quarterly newsletter of the Claremont Institute. The upcoming issue has several very good articles on the problem of illegal immigration for local communities and from the point of view of the American Constitution. Of particular note is a wonderfully descriptive article by E. Anderson whose family owns property in Cochise County, Arizona where more than 3,000 illegals pass over the border each night. There is also an important update on the Kelo case and its implications. Subscriptions to the newsletter are free and you can subscribe here and view back issues if you are so inclined.

Hillary Now

A group based in Florida called "Hillary Now" is running this cartoon style ad in New Hampshire. They also have some other ads on their site--including one that has Hillary pointing at Bush in the famous flight suit with the word "BOOB" blazened across his chest. An odd choice of words--particularly when you take note of where her hand is pointing.

Flea Markets, eBay, and a Good Read

Peter’s post below about the effect of eBay on flea markets brings to mind a few thoughts:
eBay is o.k., but the whole "PayPal" thing is kind of a hassle. Also, I’m still the sort of person who likes to touch something before I buy it. For that reason, especially, I much prefer Craig’s List. The problem with all of these things, however, is that it is increasingly difficult to find anything at a steal. The virtue of the information age is that everyone can be informed. That can also be its vice. Everyone is too savvy these days about pricing.

A great read on the old style "flea markets" and the culture of always pursuing the elusive bargain is Larry McMurtry’s Cadillac Jack. I liked it also for its prominent mention of my hometown of Zanesville, Ohio--famous for its world class pottery and antiques.

Operation Kratos

Clinton W. Taylor examines, and, despite the tragic death of the Brazilian man, approves of, the Britain’s shoot to kill (in the head) policy for suspected terrorists. Also see this.

Flea markets dying

e-Bay is putting an end to old-fashioned flea markets. Too bad.

Buckley and the conservatives

Michael Uhlmann on Bill Buckley and the conservative movement.   

Plame and Novak

Robert Novak has not said anything about this (in public) for two years. Now, against the advice of his lawyers, he writes on it again. Kind of interesting, read the whole thing, but especially note this: "According to CIA sources, she was brought home from foreign assignments in 1997, when agency officials feared she had been ’outed’ by the traitor Aldrich Ames."

Bolton appointed

Bush has made a recess appointment, John Bolton is now our ambassador to the U.N. Here is a list (via Drudge) of some other recess appointments: Clinton had 140. Democrats are angry.

Air America and Diversion of Funds

NLT readers should look into this story at Michelle Malkin’s site about Al Franken’s "Air America" and their apparent misuse of funds meant for something called the Gloria Wise Boys and Girls Club--which is now defunct (probably due at least in part to this fund diversion). More can be found here and at

Boy Scouts

This is President Bush’s speech to some 30,000 Boy Scouts. Good read. He was, of course, well received.

Gore’s Hollow TV

It is a lovely morning, sun and blue skies. Yet, the morning starts rough. I am trying to play catch-up as we head into our last week of classes in the Master’s
program (it has been terrific, by the way!), and the first thing I see this morning is that Gore TV is up and running. AP says: "Much of the talk around
Al Gore’s new Current TV network has been broadly philosophical, like the former vice president’s statement that ’we want to be the television home page for the Internet generation.’" O.K., so it’s turning into a philosophical morning, you know, the relationship between between justice and equality, or between happiness and Hegel’s Befriedigung; this is the Bildung, for sure. Very deep, very impressive, very broadly philosophical, you know, kind of like inventing happiness and blinking. Surely this is an example of in die Tiefe steigen. Surely this is Gore’s spirit of revenge. Tough morning, this.

The Plame leak

These are a few more interesting paragraphs from Time about the Valerie Plame issue, and who knew what when. What is somewhat more clear, as John Podhoretz points out, is that this new info seems to indicate that the folks at State (inlcuding Powell and Armitage) knew about Plame about two weeks before the infamous Wilson NY Times op ed (as did Walter Pincus of the Washington Post and other reporters), and, therefore, contrary to what Time thinks, this actually increases the chances that Rove is telling the truth (that he learned her identity from a reporter) and makes it more likely that the original source was (if not Wilson) than someone at State, which was leaking like a sieve.

More arrests in the UK

Six more arrests in the UK. "The arrests bring to 18 the number of people held in connection to the July 21 attacks, including the four suspected would-be bombers." Here is the AP story on the same. And, according the London Times:

A third Islamist terror cell is planning multiple suicide bomb attacks against Tube trains and other “soft” targets in central London, security sources have revealed.

Intelligence about a cell with access to explosives and plans to unleash a “third wave” of attacks was the trigger for last Thursday’s unprecedented security exercise. The operation saw 6,000 police, many armed, patrolling across London.

Senior police officers say that there was “specific” intelligence from several sources that an attack was planned for that day. The disclosure contradicts official statements by Scotland Yard that Thursday’s security exercise — the biggest since the second world war — was simply a precaution aimed at reassuring the public.

Vietnam Book Update

In the text and discussion thread a few weeks about following the death of William Westmoreland, I recommended Lewis Sorley’s book A Better War, but demurred that Mac Owens should have the last word about Sorley and Vietnam books in general.

Comes now Mac to the rescue, with a review of Sorley’s follow up work on the same subject, which comes to the same conclusion I proposed: Creighton Abrams very nearly had the Vietnam War won by the early 1970s.

Feinstein a centrist?

Give me a break! This article portrays Dianne Feinstein as a "centrist" or "moderate," called to speak for American women in the Roberts confirmation hearings. The Americans for Democratic Action (p. 14 of the pdf) don’t think so, embracing her as a full-throated liberal: her ADA score was 100 in 2004. (To be sure, her score in previous years was lower.) Here’s a more comprehensive compendium of Feinstein ratings, searchable by group and topic. The preponderance of the evidence suggests that she has moved to the left over the past few years.