Strengthening Constitutional Self-Government

No Left Turns

Winning judicial script

Cass Sunstein reflects on the Roberts and Alito hearings and doesn’t like what he sees. The new "script" emphasizes "fidelity to law," which might get future Democratic nominees in trouble. Of course, he says, everything is much, much more complicated than that, but here’s the bottom line, as he sees it:

That process has been successfully un-Borked. If President Bush is able to fill other vacancies on the Supreme Court, the right script is firmly in place. And if Democratic presidents are able to fill future vacancies, their nominees may well run into trouble, because it will be easy to characterize them as wanting to "add to the Constitution or subtract from the Constitution."

I shed no tears for Sunstein.

Daniel C. Dennett’s profession of faith(lessness)

One of America’s leading apostles of Darwinism shows that he’s a village atheist at heart. This is not profound or thought-provoking stuff.

Cold War

Rich Lowry on Gaddis’s The Cold War. He calls it a "crackling-good" book. Mark Almond, on the other hand, doesn’t really think that the Cold War is over and it is the West (i.e., America) that continues to beat up on the Russians. See what happened when the Russkies tried to cut off the flow of gas to Ukraine. Funny stuff, old habits.

America as a mystery and scandal

Joe brought to our attention Bernard-Henry Levy’s new book, and quoted from some of his interviews. I have read Levy; parts, maybe all, of the book appeared in The Atlantic over the past year or so. What I read only turned out to be mildly interesting, to my regret. The book still might be worth reading, but let me warn you that it is a not an untypical attempt by a European to instruct us, rather than learn about us or from us. I have written on these matters (not all of it is yet published) and will continue to write and publish more, but here is a short essay that I happen to like from a few years ago, The Ugly European. Certainly, I don’t mean to suggest that it is the comprehensive and true writing on the matter, nor that it is as finespun as Levy’s stuff. But it does note one big point that Levy doesn’t seem to get. Levy says that the mystery and scandal of America is that it is not based on blood and soil. Interesting way of putting it, don’t you think? I’d like to see him push and shove this around a bit more. In fact, the universal creed of the country is a self-evident truth (or at least a proposition). This is a mystery? Let us be clear that everyone from the beginning (including George III, in his insane kind of way) understood this. They may have mocked it and thought it wrong, but they understood that this was indeed a new world, a new way of life, that these Americans were creating. And the offense taken (by even Frenchmen! think of how the Germans or the Russians or the Albanians....feel and think) is that this principle may well be applicable (as it really is) to them! Is the scandal the rolling together of the mystery, and will, as he calls it, for a person like Bernard-Henry Levy? America is in fact the only alternative to organic nations. Push on this for a bit, Mr. Levy, will you? Can you? The fact that Levy thinks in America Muslims (or any other nation, meant in the French sense of birth, that is, organic) are not asked to give up all aspects of their past identity (as they must in France) is the secondary point. That is, the nations are only asked to give up the most important--the critical--aspect of their former identity to become Americans and American citizens: Give up whatever allegiance you have had to foreign princes and potentates; the rest you can keep. Note that you choose to do this. You don’t grow into it, the way my mother loves palacsinta, or sheds tears on hearing Hungarian verse, or could take pride in Joe Namath throwing a football. That’s all fine. But it has nothing to do with the moral, the natural, the American thing. I am not sure whether Levy has learned anything from his travels. I’ll read the book, just in case. I don’t want to miss anything.

DiIulio on Republicans

John J. DiIulio, Jr. analyzes Republican challenges and offers the following predictions:

When in political trouble, Bush has a proven presidential knack for binding an intraparty conservative coalition, finding the public center, and occupying it with novel policy ideas and actions that leave Democrats either divided or nonplussed. His 2006 State of the Union Address will begin to reverse his 2005 political slide.

Unified Republican government will continue to split conservatives, but most political media mavens will continue to peddle the usual pat stories about left-right, red-blue partisan warfare and miss the more interesting intraparty stories.

A New Democrat will win the presidency in 2008, but not by much, not with coattails that carry Democrats into majority status in Congress, and not for reasons reflecting any new realities or fundamental shifts in the body politic.

And finally, the pundits will nonetheless dress the next Democratic presidential victory in some silly new conventional wisdom ("New Blue Nation"? "The Bush Backlash"?) that will be widely forgotten, save by academic nerds or curmudgeons like me, before the decade is out.

Which New Democrat? Mark Warner? Any other suggestions?

Gay marriage in Maryland

A judge has struck down Maryland’s ban on gay marriage. She had the good sense, however, to stay the effect of her ruling, pending an appeal.

The largest immediate impact of the decision will likely be political, as it will galvanize the Republican base and help Governor Robert Ehrlich (R) win reelection and perhaps even Michael Steele. While Republicans would like to put a constitutional amendment before the voters this fall, the Democrats who control the state legislature are unlikely to permit it.

Here’s the opinion, along with other relevant information.

Hearts and minds

This is not a hide-bound bureaucracy incapable of change.

Bernard-Henry Levy on America

I first encountered Bernard-Henry Levy as the author of Barbarism with a Human Face, a nouvelle philosophe who discovered, flamboyantly albeit belatedly, that Marxism produced immense human suffering. He was once on a panel in Toronto with Allan Bloom, who caught his attention by declaring that there was but a short distance between asserting a "Jewish Question" and devising a "final solution."

Well, never far from the limelight, Mr. Levy (BHL, as everyone calls him apparently), is at it again, this time self-consciously following in Tocqueville’s footsteps to write American Vertigo. The book sounds interesting, at least if these interviews are to be believed. Here are a couple of telling snippets from the WSJ interview (the more substantive of the two):

"In France, with the nation based on roots, on the idea of soil, on a common memory . . . the very existence of America is a mystery and a scandal." This is a particular source of pain, Mr. Lévy says, for "the right." Contrary to what is thought generally, he insists, anti-Americanism "migrated to the left, to the Communist Party, but its origins are on the extreme right." America gives the French right "nightmares," as the country is based on "a social contract. America proves that people can gather at a given moment and decide to form a nation, even if they come from different places." The "ghost that has haunted Europe for two centuries"--and which gives fuel, to this day, to anti-Americanism there--"is America’s coming together as an act of will, of creed. It shows that there is an alternative to organic nations."

These are important insights, and surely gratifying to an American. But is this the whole picture, I ask. Isn’t today’s French gauche--and the European left as embodied by Gerhard Schröder and Spain’s Zapatero, to name but two leading offenders--more than just a passive inheritor of a right-wing anti-Americanism? Why this insistence--and Mr. Lévy does, sometimes, protest too much--on anti-Americanism as a sort of rightist Original Sin? Here, Mr. Lévy is evasive: "It is true of the left," he concedes, nodding his head in accord, but then checks himself: "It is partly true. . . . But you must see that in France you have the Gaullist tradition, which is strongly anti-American."

Would he say that Jacques Chirac, a Gaullist, is anti-American? "Chirac is pragmatic. When he plays chess, he plays with both black and white. He thinks two things at the same time, constantly. Mitterrand was like that, too." Ideology, suggests Mr. Lévy with more than a hint of lament, has given way to "pragmatism" in French politics, to cynicism. "The reign of ideologies in France was linked to the concept of revolution. As long as some believed in revolution, you had a distribution of ideologies." The moment when "the dream of revolution collapsed" --a dream of which Mr. Lévy once partook--ideology decamped from the battleground of French politics.


Mr. Lévy regards his own criticism of America not as anti-Americanism, but as tough love. He is an assiduous believer in America’s "manifest destiny," and expects this country, clearly, to uphold the highest standards--as he sees them. Some of these standards he would prescribe to France, in particular the American approach to citizenship. He contrasts the "model of Dearborn"--the Detroit suburb, home to significant numbers of contented Arab-Americans--with the "model of St. Denis," the Parisian banlieu where discontented Arab immigrants (never referred to as Arab-Frenchman) ran riot late last year. "What is good about America is that in order to be a citizen, you are not asked to resign from your former identity. You cannot tell Varadarajan or Lévy, ’You have to erase from your mind the ancestors you had.’ In France, we erase."

Here’s hoping that Jim Ceaser, author of Reconstructing America, will review it somewhere.

Reagan, Again

My take on Reagan’s First Inaugural Address, excerpted from my work-in-progress (The Age of Reagan (Vol. 2): Lion at the Gate, 1980-1989) is up over at The Corner.

Hopefully I’m still in time to ruin Fung’s dinner tonight.

Phonics Help!?

David’s post about teaching and jargon reminds me of my own immediate problem with my 1st grade daughter. We have reading contracts (which means that I have to sign off on the fact that she has done at least 15 minutes of reading each night). This is fine and we have been plodding along in the assigned readers without any real problem for months now. But because of her dilligence we are now at a level of reader that is beyond her phonics abilities and it is taking too long and getting frustrating for her. So I began combing my files for phonics programs or worksheets to help her over the bump. Nothing that is readily available is very good or what I’m looking for (blending sounds, word families, etc.). I don’t want a game or a gimmick--just plain old worksheets with lessons about the way letters work.

So I sought counsel from teachers. I’m telling you that I have a Master’s degree in political philosophy and I’d say that I’m reasonably competent in the English language. What kind of language are teachers using in their literature for each other? I have a catalog from a company that is supposed to be "fantastic" but I can’t read it. I tell them that I want to buy something to help my kid with reading and I’m willing to pay good money for it--but apparently you have to have a decoder ring or know the secret handshake! If anyone is a good teacher out there who knows something about this and can speak/write normal English, please guide me! Thanks!

Why Teachers Can’t Teach

Picking up the theme of our educational failures, George Will recently wrote this column on this oldish but still very fresh piece by Heather MacDonald, "Why Johnny’s Teacher Can’t Teach". MacDonald attended some classes in the nation’s top teacher education schools, where most of our teachers ultimately get their ideas about learning and teaching. MacDonald’s thesis is nicely summed by the slogan, “Anything but Knowledge”- as in multicultural sensitivity, metacognition, “critical thinking”, community building – anything but knowledge. Particularly good is MacDonald’s description of the vacuity of the classroom in which teachers don’t convey knowledge, but rather facilitate collaborative groups in constructing their own knowledge, and then share their feelings about what they have constructed in order to create trust and community. The essay is also a good guide to the awful jargon that now passes for thought about education. If this essay is accurate, the wonder is not that some students can’t perform complex literacy tasks, but that any of them can.

Kleinerman on necessity and the Constitution

Ben Kleinerman, whose work I discussed here, was kind enough to provide us with an extended reflection on how to apply the Civil War analogy to our current affairs. His piece is replete with interesting observations about necessity and the limits of law, and thus can productively be read in conjunction with Harvey C. Mansfield, Jr.’s essay, discussed here.

A taste:

[W]e must seek a constitutional framework within the new ordinary politics, characterized by a permanent threat from asymmetric warfare, that preserves the executive discretionary powers necessary to secure us from such threats without either giving up too many rights for the sake of such security or allowing the discretionary activity to descend into a legal right to take any actions the president chooses. And I submit that we can find such a constitutional framework precisely by thinking of our Constitution as permitting a discretionary executive branch, watched over by a Congress that asks the question not whether the President has violated the law but whether the President has acted as necessity demands and no further. Such a framework empowers the President to take actions necessary for our preservation while preventing the abuse of such powers. It also prevents the legalization of such powers, a legalization with which we would not be comfortable were it not for the threat to our security.

Read the whole thing. 

And You Thought It Was Bad in College

Maybe this has something to do with it. California has a new exit exam requirement for all graduating seniors. The exam does not ask students to perform at grade level. The exam does not require what is commonly thought of as a "passing" grade for credit. Just 50% on a test that is about 2 or 3 grade levels below the mark! Students may take the test several times. Superintendent of Public Education in Los Angeles, Roy Romer, is bragging that now 80% of LA high school seniors have now passed both parts of the test! But that means 20% or 1 in 5 have NOT--CANNOT! This is from the LA Times story--sorry, the link requires registration: Overall, 80% of the district’s high school seniors have passed both parts of the test, up from 75% last fall. Nearly 6,000 Los Angeles seniors have yet to clear the exam hurdle." Incredibly, there are shrieks and howls from all the usual suspects about making the exam easier! Further, this is what gets top billing at the Times. Is it any wonder that the kids can’t pass a test with people like this running things?

Literacy on campuses

The bad news continues. Most college students "most college students cannot handle many complex but common tasks, from understanding credit card offers to comparing the cost per ounce of food.

Those are the sobering findings of a study of literacy on college campuses, the first to target the skills of students as they approach the start of their careers.

More than 50 percent of students at four-year schools and more than 75 percent at two-year colleges lacked the skills to perform complex literacy tasks."

Oh Happy Day Remembered

Today is the 25th anniversary of Ronald Reagan’s inauguration, in which he declared that "in this present crisis, government is not the solution to the problem; government is the problem."

The Wall Street Journal reminisces.

This Is Good News

I didn’t know Dave Barry has a blog! He does. And he is blogging about "24." Life is good.


DoJ on Presidential authority

The White Paper, which I haven’t yet had a chance to read, is here. Many other relevant documents are here. You can also read the NYT and WaPo stories on the White Paper.

Impeachable offense?

Ken Masugi calls our attention to this article, where the editing makes it seem like John Eastman is channeling Alexander Hamilton.

SCOTUS abortion decision

Sandra Day O’Connor’s opinion for a unanimous Court is here (10 page pdf). WaPo story here. Commentary here.

Lincoln and Bush

My latest oped, on TAE Online, deals with "Lessons from Lincoln" and follows from Benjamin Kleinerman’s piece in the APSA’s Perspectives on Politics.

Update: Ben Kleinerman (with whom I had a drink at the last APSA, as we discovered as we exchanged emails) responds:

As a response to the article, I have two substantive points. First,
concerns the manner in which it is introduced: "Because such actions
weren’t uniformly popular, Lincoln was compelled to respond to his
critics." I would say that because such actions were outside the
typical bounds of the Constitution, Lincoln felt the Constitution
compelled their justification. Even if his actions had been uniformly
popular, Lincoln would still have felt that the Constitution compels
their public justification. This is what I was getting at in the
conclusion of my article: ’Lincoln did more than merely take those
actions necessary for the preservation of the Constitution; he also
publicly announced his reasons behind the constitutionally questionable
actions he took. In fact, it is only because of this that we can
discern the three lessons that I have drawn. Lincoln attempted to avert
the danger, suggested by the medicine metaphor, that the public will
become ’addicts’ of executive power, by trying to teach the public that
his questionable actions were acceptable only within the limits imposed
by the Constitution’s preservation’ (p.808-809). In other words,
precisely because of the people’s insufficient attachment to the
Constitution, it becomes the constitutional responsibility of a
prudential executive acting outside its bounds to preserve, through his
rhetoric, the superiority of the Constitution during the crisis.

As for the point that "The novelty of our current situation is that our
crisis seems to be open-ended", this seems exactly right and, I would
argue, requires us to beware of using the old notion of extraordinary
executive power as a response to an extraordinary situation as our
standard. In other words, the distinction between the ordinary and the
extraordinary so essential to Lincoln’s justification of his actions no
longer applies given the open-ended threat from asymmetric warfare. It
seems that continuing to use such a distinction leads to a permanently
extraordinary executive. Perhaps a permanently discretionary (as
opposed to extraordinary) executive is necessary, but, if so, we, as a
constitutional people, should at the same time insist that such
discretionary powers come into existence only when necessary and that
the executive does not have an inherent legal right to such powers. In
other words, in exercising his powers, the executive must always expect
to show and we should expect him to show the public why they were
necessary; it is insufficient simply to assert as a species of legal
defense that he has an inherent right to use them whenever he
chooses--this is why neither the founders nor Lincoln assert that the
executive possesses a "prerogative" power which would imply a legal
right to act outside the Constitution. In other words, while the
executive has the discretion to act outside the Constitution, the public
should remain the rightful judge of the necessity of such action.

Knippenberg responds: Ben’s second point is the crucial one, to my mind. We can’t simply leave it at assertions of prerogative or "national security." There has to be an argument about the nature of the threat we face and the necessity of the discretionary powers. This argument is, of course a political one, not "merely" a legal or constitutional one.

Update #2: You can read Ben Kleinerman’s initial op-ed criticism of GWB’s early response to his critics here.

Gore’s rage

Joe brought to your attention the Al Gore talk of two days ago. I saw it. I got home late, couldn’t sleep. I think it was just past midnight when I turned on C-Span. Al Gore was talking. I was transfixed for the next thirty minutes or so (I don’t know how long he’d been on when I caught it). At first I focused on this automaton of man, without heart and blood. Then I noticed the anger. Again the anger. Nothing but rage and loud rage. I haven’t seen Gore for about a year, I guess. The last time I saw him, he was also beside himself about something or other. What does he do with himself the rest of the time? He comes up for air once a year, growling, showing us his teeth. Each time I see him talk, it is only to reveal his indignation at something. Now it is at the NSA wiretapping issue; the cause doesn’t matter, it is only anger that moves him, he is only enlivened by his own steam. This is awful and depressing and I regret it. It took me hours to fall asleep. A former vice-president going insane in public for all of us to see and lose sleep over. I am sorry for him.

California evolution controversy "defused"?

The California school district, which had offered a somewhat problematical course, called (a little misleadingly) "Philosophy of Design," has settled the lawsuit, promising never again to offer such a course.

You can read the settlement statement here and more from Americans United here.

The folks at the Discovery Institute note a certain AU doublespeak here and put the best face on the settlement here.

Talk radio in Iraq

Read about it here.

Al Gore speaks out

Al Gore says that the President broke the law in ordering warrantless wiretapping.

For some perspective on what Gore’s boss thought during his time in the White House, go here and here, as well as (for an even longer perspective) here.

Update: Paul Mirengoff at Power Line has more.

Update #2: Byron York was there.

Martin Luther King, Jr.

Lucas Morel’s short take on MLK from a few years ago still reads well. Carolyn Garris notes King’s conservative legacy. A poll shows that the MLK holiday is less succesful than are his dreams (via Booker Rising). Here is his I Have a Dream speech, and the Letter from the Birmingham Jail. Lucas Morel wrote another short essay on race back in ’98 that I have always liked. It is, of course, relevant on this day.

Women rule

Mrs. Bush and Condi Rice both attended the swearing in ceremonies of Liberia’s (and Africa’s) first female head of state, Ellen Johnson-Sirleaf. Here is a short outline of Liberia’s recent messy history. Can you imagine, by the way, the security net that had to be placed over the area where Bush and Rice were? Clearly, the security couldn’t be left to the UN troops. And my only other point is that this event, inevitably, brings up Rice’s name regarding her own possible run to be a head of state. Stanley Crouch has a few thoughts on the possibility of a Rice-Clinton contest. Also note that Chile has elected a woman. The BBC story calls her a "center-left" candidate; she is a socialist and a child of the (USA) Sixties. Cool.

Hamilton’s strategic sobriety

Another paean to Alexander Hamilton from Mac Owens. Mac is trying to take advantage of the January 11th birthday. That’s fine. Keep them coming Mac. I’ve been working on Andrew Jackson, and am, therefore, often inclined to dislike Jefferson. And when I do, I turn toward Hamilton.

Canada’s Court Party vs. democratic realism

I took a moment the other night and listened to a few words of Canadian PM Paul Martin the on C-Span. It was an unpleasant moment. I don’t much like him, although I claim to understand nothing about Canadian politics, except that I regret that there is such an anti-American undertone to it. There is more to Canadian politics than that, of course. I’m glad that John von Heyking is paying attention to the upcoming election in Canada. This is his third article on it, and arguably the most serious. It concerns article 33 of the Canadian Charter, and why Martin is willing to have it changed, and why his conservative challenger Stephen Harper wants to keep it. It goes to some fundamental issues of Canadians’ ability to govern themselves.

China discovers everything circa 1420

The Economist reports on an 18th century copy of a map originally made in the early 15th century that shows "that the world and all its continents were discovered by a Chinese admiral named Zheng He." All this is, somehow, related to the book 1421: The Year China Discovered America. I guess we’ll hear more. This is the Economist’s last paragraph:

"The consequences of the discovery of this map could be considerable. If it does indeed prove to be the first map of the world, ’the history of New World discovery will have to be rewritten,’ claims Mr Menzies. How much does this matter? Showing that the world was first explored by Chinese rather than European seamen would be a major piece of historical revisionism. But there is more to history than that. It is no less interesting that the Chinese, having discovered the extent of the world, did not exploit it, politically or commercially. After all, Columbus’s discovery of America led to exploitation and then development by Europeans which, 500 years later, made the United States more powerful than China had ever been."

Genetic footprints

You can amuse yourself by glancing at this report: Roughly one out ten Irish men are related to the Irish warlord Niall who lived circa 500 A.D. If that’s not interesting enough, then how about this tidbit:
About 16 million men between Afghanistan and northernern China (almost one of every 200 men alive) are directly related to Ghengis Khan. (Thanks to Jonah at The Corner).

Democracy and peace?

Mark Helprin (in an op-ed version of this)
is critical of Bush’s attempt to democratize every country in the world that would have the effect of bringing everlasting peace everywhere for always for ever. For the pleasure of displaying our virtue, as he puts it, we will suffer because foreign policy has to be run according to common sense and history. O.K., we get it. Let’s be clear: Those of us who seem a bit idealistic (as it used to be called among the Left) are not necessarily impractical. We know the difference between what is good and what is possible, and what is true and what sounds good, just as we know the difference between good writing and good thinking. Helprin writes.

The Three Greats and the escape from determinism

This banal Michael Beschloss review of John Lewis Gaddis’s The Cold War reminds me to suggest that you read Gaddis; I have been at it, off and on, for a few weeks. First, it is a good read. Well written, clear, flowing. Not the standard dry-as-dust volume on the period (arguably, as some of even Gaddis’s previous books have been). It is a well told tale of a dangerous time. Second, he sees (almost perfectly clearly?) in this retrospective verdict on the Cold War, that the "visionaries" (or, "saboteurs of the status quo") were John Paul II, Ronald Reagan, and Margaret Thatcher. How shall I put this? Not everyone at the time thought these three were statesmen. Third, I believe our great-grand children will study this severe period and will conclude that the three greats merited the honor that they will have already received. They will see that the utter darkness that could have been, was prevented by the purpose and the prudence of the two men and the lady. This is an fine tale, told by a convert, and while you or I might have told it differently, it is an excellent start. Gaddis also sees the horror (evil empire) of the regimes that died, and knows that they justly died. He notes at the end of his book that "there was no trial for crimes against humanity." Pol Pot died in 1998, "and was unceremoniously cremated on a heap of junk and old tires." No mausoleum for this devil. This was a man who had a fifth of his own people executed in the 1970’s, and "hardly anyone outside of Cambodia noticed at the time." But human beings act, facts are stubborn, historians work, Gaddis re-thinks, and now we know.

Scary scenario

Niall Ferguson on the origins of the "Great War of 2007."

Hat tip: The Corner.

Prediction Vindicated

A number of good readers chided me for this post ten days ago in which I predicted that "The Democratic attack on Alito will get no traction, and he will end up getting confirmed readily, after lots of delays and huff-puffing. The Bork-Thomas phenomena is receding, and we are slowly returning to a more normal and sane confirmation process."

Well, today’s New York Times carries a front-page story about "glum Democrats" admitting that their strategy for blocking Bush’s judicial nominees has failed. With the likes of Biden and Kennedy saying that maybe confirmation hearings should be abandoned in favor of straight-up floor debate, I think I was right to say we are slowly returning to a more normal confirmation process, and that "Borking" is as dead as disco.