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WHAT HAPPENED TO THE CONSTITUTION?
Matthew J. Franck, Michael S. Greve, $3.95 Charles R. Kesler, Jack Wade Nowlin, 20 Bradley C. S. Watson, Christopher Wolfe
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MAY 17, 2010 | VOLUME LXII, NO. 9 | www.nationalreview.com
ON THE COVER Page 24 The Constitution, at Last Here is the beginning of an agenda Jonah Goldberg on the Tea-Party Critics for conservative legislators and p. 16 presidents, and for citizens, to guide us back—or rather forward—to a BOOKS, ARTS healthier, more responsible, and more & MANNERS constitutional political life. Charles R. Kesler 48 A GOVERNMENT WITHOUT BOUNDS COVER: ROMAN GENN Ramesh Ponnuru reviews Never Enough: America’s Limitless ARTICLES Welfare State, by William Voegeli.
16 THOSE BLUE-BLOODED REDNECKS by Jonah Goldberg 49 THE ORIGINAL SIN In which plutocrats pretend the tea partiers are plutocratic. Daniel Pipes reviews Palestine Betrayed, by Efraim Karsh. 18 SHADOW BAILOUTS by Kevin D. Williamson The Democrats punish Wall Street with promises of endless money. 55 THE WEST’S BURDEN Roger Kimball reviews The Tyranny 21 GOVERNOR FREEZE by Josh Barro of Guilt: An Essay on Western In New Jersey, Chris Christie shows it is possible to stop Masochism, by Pascal Bruckner. rampant public-employee wage growth. 56 A PORTRAIT OF CHAIRMAN BILL FEATURES James E. Person Jr. reviews William F. Buckley Jr.: 24 THE CONSTITUTION, AT LAST by Charles R. Kesler The Maker of a Movement, Let us return from a regime of arbitrary power to one of self-government. by Lee Edwards.
28 DARWIN’S CONSTITUTION by Bradley C. S. Watson 58 FILM: CHILD MISUSE Why progressives took it upon themselves Ross Douthat reviews Kick-Ass. to purify our founding charter of its meaning. 59 THE STRAGGLER: 36 THE LAWLESS WELFARE STATE by Matthew J. Franck THE VOICE OF THE DERG It is unconstitutional, but the remedy will come from the people. John Derbyshire confronts the risks and rewards of medical care. 40 SUPREME ARROGATION by Jack Wade Nowlin The Constitution is too important to leave to judges. SECTIONS 41 OUR DEFUNCT COMMERCIAL CONSTITUTION by Michael S. Greve Federalism and originalism are not enough to restore it. 2 Letters to the Editor 4 The Week 44 THE CULTURAL PRECONDITIONS OF AMERICAN LIBERTY 47 The Long View ...... Rob Long by Christopher Wolfe 51 Poetry ...... Jennifer Reeser Rich soil is required for the health of this plant. 60 Happy Warrior ...... Mark Steyn
NaTIoNaL RevIeW (ISSN: 0028-0038) is published bi-weekly, except for the first issue in January, by NaTIoNaL RevIeW, Inc., at 215 Lexington avenue, New York, N.Y. 10016. Periodicals postage paid at New York, N.Y., and additional mailing offices. © National Review, Inc., 2010. address all editorial mail, manuscripts, letters to the editor, etc., to editorial Dept., NaTIoNaL RevIeW, 215 Lexington avenue, New York, N.Y. 10016. address all subscription mail orders, changes of address, undeliverable copies, etc., to NaTIoNaL RevIeW, Circulation Dept., P. o. Box 433015, Palm Coast, Fla. 32143-3015; phone, 386-246-0118, Monday–Friday, 8:00 a.M. to 10:30 P.M. eastern time. adjustment requests should be accompanied by a current mailing label or facsimile. Direct classified advertising inquiries to: Classifieds Dept., NaTIoNaL RevIeW, 215 Lexington avenue, New York, N.Y. 10016 or call 212-679- 7330. PoSTMaSTeR: Send address changes to NaTIoNaL RevIeW, Circulation Dept., P. o. Box 433015, Palm Coast, Fla. 32143-3015. Printed in the U.S.a. RaTeS: $59.00 a year (24 issues). add $21.50 for Canada and other foreign subscriptions, per year. (all payments in U.S. currency.) The editors cannot be responsible for unsolicited manuscripts or artwork unless return postage or, better, a stamped self-addressed envelope is enclosed. opinions expressed in signed articles do not necessarily represent the views of the editors. letters_QXP-1127940387.qxp 4/28/2010 1:39 PM Page 2 Letters
MAY 17 ISSUE; PRINTED APRIL 29 Standing Up for Crockett’s Stand
EDITOR Richard Lowry It was appalling to read the description of Davy Crockett, a defender of the Alamo, as a “gaudy self-promoter” in your commemoration of Fess Parker Senior Editors Richard Brookhiser / Jay Nordlinger (“The Week,” April 19). Ramesh Ponnuru / David Pryce-Jones The founder and longtime editor of NATIoNAl RevIeW, William F. Buckley Jr., Managing Editor Jason Lee Steorts Literary Editor Michael Potemra defended the memory and history of Davy Crockett and the Alamo. Jay Winik Executive Editor Christopher McEvoy National Correspondent John J. Miller quoted Buckley’s comments in his review of A Line in the Sand: The Alamo Art Director Luba Kolomytseva in Blood and Memory, by Randy Roberts and James S. olson, in NR in 2001. Deputy Managing Editors Fred Schwarz / Kevin D. Williamson Winik wrote: “By the late 1960s, the authors tell us, the Alamo, like so many Associate Editors other hallowed institutions, had fallen on hard times, an early casualty of the Helen Rittelmeyer / Robert VerBruggen Research Director Katherine Connell culture wars. The men of the Alamo, once revered, suddenly became, in the Research Manager Dorothy McCartney words of revisionist historian Jeff long, ‘ignorant trigger-pulling white trash,’ Executive Secretary Frances Bronson Assistant to the Editor Natasha Simons while budding history scholars likened them to Nazis. even the venerable Contributing Editors Crockett, long regarded as a freedom fighter, public servant (a former con- Robert H. Bork / John Derbyshire Ross Douthat / Rod Dreher / David Frum gressman, he was once talked about as a Whig presidential candidate), back- Roman Genn / Jim Geraghty / Jonah Goldberg woods philosopher, and prototypical American frontiersman, abruptly became Florence King / Lawrence Kudlow / Mark R. Levin Yuval Levin / Rob Long / Jim Manzi a ‘phony’ (Arthur Schlesinger’s word); ‘barely literate’ (e. J. Kahn Jr., writing Andrew C. McCarthy / Kate O’Beirne in The New Yorker); and ‘purchasable for no more than a drink’ (Murray David B. Rivkin Jr. Kempton). (William F. Buckley Jr. was one of the few to rise to Crockett’s NATIONALREVIEWONLINE Editor-at-Large Kathryn Jean Lopez defense, exclaiming that this was in part a ‘traditional debunking campaign’ Managing Editor Edward John Craig by ‘liberal publicists. . . . He’ll survive the carpers.’)” Deputy Managing Editor Duncan Currie Associate Editor Emily Karrs Staff Reporter Stephen Spruiell News Editor Daniel Foster Web Developer Nathan Goulding Technical Services Russell Jenkins
CHAIRMAN & CEO Thomas L. Rhodes EDITORS- AT- LARGE Linda Bridges / John O’Sullivan Contributors Hadley Arkes / Baloo / Tom Bethell James Bowman / Priscilla L. Buckley Eliot A. Cohen / Brian Crozier Dinesh D’Souza / M. Stanton Evans Chester E. Finn Jr. / Neal B. Freeman James Gardner / David Gelernter George Gilder / Jeffrey Hart Kevin A. Hassett / Charles R. Kesler James Jackson Kilpatrick / David Klinghoffer Anthony Lejeune / D. Keith Mano Michael Novak / Alan Reynolds William A. Rusher / Tracy Lee Simmons Terry Teachout / Taki Theodoracopulos Winik also wrote: “Is there a final verdict on the Alamo? Perhaps one need Vin Weber look no further than John F. Kennedy’s presidential campaign in 1960. After Chief Financial Officer James X. Kilbridge Accounting Manager Galina Veygman speaking at the Alamo, JFK had hoped to avoid the gridlocked courtyard. Accountant Zofia Baraniak Turning to his host, a Daughter of the Republic of Texas, he asked for the Alamo’s Treasurer Rose Flynn DeMaio Business Services back door. ‘Senator,’ she returned, ‘there are no back doors at the Alamo. only Alex Batey / Amy Tyler heroes.’” Circulation Director Erik Zenhausern Circulation Manager Jason Ng WORLD WIDE WEB www.nationalreview.com Carol L. Crockett MAIN NUMBER 212-679-7330 SUBSCRIPTION INQUIRIES 386-246-0118 Harbor, Ore. WASHINGTON OFFICE 202-543-9226 CORBIS ADVERTISING SALES 212-679-7330 / Executive Publisher Scott F. Budd THe eDIToRS RePly: Davy Crockett died a hero’s death, alongside all the other Advertising Director Jim Fowler Advertising Manager Kevin Longstreet defenders of the Alamo. But he was also an ambitious politician and a gaudy ASSOCIATE PUBLISHER Paul Olivett self-promoter. History is as simple as humanity.
PUBLISHER Jack Fowler BURSTEIN COLLECTION
FOUNDER William F. Buckley Jr. Letters may be sub mitted by e-mail to [email protected].
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n Even if the new law does not work against illegals, maybe it will keep liberals out of Arizona.
n Is the new Arizona immigration law more like the March on See page 12. Rome or Kristallnacht? More like apartheid or Selma 1965? Critics are answering All of the Above, in the greatest freakout of the chat- tering class since last month, when it was warning the tea partiers to eschew all overheated rhetoric. Arizona made it a state crime for an alien not to have documents on his person proving his legal sta- tus, which has long been a federal offense. The new law says that if a police officer develops a “reasonable suspicion” that a person is an illegal alien in the course of a “lawful contact,” then “a rea- sonable attempt shall be made, when practicable, to determine the immigration status of the person.” This hardly constitutes budding fascism. As a practical matter, the law will be in play mostly dur- ing traffic stops; and if the motorist has a valid state license, it will be the end of the matter. Arizona has become the main thorough- fare for illegal immigrants into the country as other points along the border have become better secured. The law is an attempt to make the state as inhospitable as reasonably possible to illegals, in the absence of a serious federal effort to police the border and places of employment. Critics insist that the law is an unconstitutional usurpation of federal immigration policy. But the liberal Ninth Circuit upheld Arizona’s 2008 crackdown on employers hiring ille- he would restore funding in districts where teachers agreed to gals when it was challenged on similar grounds. President Obama forgo raises for a year and pay a nominal portion of the cost of blasted the new law and called for comprehensive immigration their hitherto gratis benefits, the result was mostly silence—but reform, by which he means an amnesty with as much of a fig leaf for one union official who circulated an e-mail praying for of enforcement as is necessary to pass it. Which means it would Christie’s death—and a spate of local school budgets that attempt- leave Arizona in the same place it is today: on its own. ed to recoup the losses by increasing the property-tax burdens of the most overtaxed populace in the Republic. On April 20, New n Bill Clinton spoke at a commemoration of the 15th anniversary Jerseyans were afforded an opportunity to weigh in on Christie’s of Timothy McVeigh’s Oklahoma City bombing, which killed cuts, and the unions’ response, via the annual school-budget votes. 168 people. Did he say that the tea-party movement might The results could not have been more definitive: Nearly two in encourage such acts? No: “This tea-party movement can be a three tax-raising budgets were defeated, the largest such propor- healthy thing if they are making us justify every dollar of taxes tion to fall at the polls in over 30 years. we raise,” Clinton said. But maybe also, Yes. “But when you get mad, sometimes you end up producing the exact opposite result n As we go to press, Florida governor Charlie Crist is consider- of what you say you are for.” Counsels of thoughtfulness are ing whether to run for Senate as an independent after swearing he always in season. “Get[ting] mad,” however, is too elastic a term wouldn’t, a couple of weeks after vetoing the education-reform of rebuke. Maybe present administration policies are in fact bill he said he’d sign. Crist is that most dismaying political spec- maddening. Unlike Timothy McVeigh, tea partiers are not loners tacle—an opportunist running out of opportunities. The out-of- dieting on hate literature, but Americans assembling (see the First the-blue veto of the bill instituting merit pay and ending teacher Amendment) to influence the political process. Mr. Clinton tenure was Crist’s provisional declaration of independence from doesn’t like their politics. So let him address a rally. his party after he dropped 20 or 30 points behind rising conserv- ative star Marco Rubio in the primary. Crist has never recovered n Faced with an $11 billion deficit in a $30 billion budget, New from his support for the Obama stimulus, although in character- Jersey’s new Republican governor, Chris Christie, has so far been istic fashion he has denied that he ever supported it. He tried to unsentimental, but fair, in making the painful cuts necessary to get claw back in the primary with personal attacks on Rubio, to no the Garden State’s fiscal house in order. As Josh Barro explains on avail. If he runs as an independent, he’ll very likely finish last page 21, this included trimming about 5 percent from the budgets (he’s unlikely to command much sustained Republican or Dem - of New Jersey’s public schools. Cue the teacher unions’ rage and ocratic support) and bring his career to an appropriately woeful
ROMAN GENN entreaties to “think of the children!” Yet when Christie suggested end.
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THE WEEK n Many Wall Street watchers believe the government’s fraud case n Though we’ve had our differences with both, we have no reason against Goldman Sachs to be remarkably weak, but most agree to doubt the good faith of either Senate Homeland Security that it is lucky timing for Democrats, who are using the investiga- Committee chairman Joe Lieberman (I., Conn.) or Defense Secre - tion to append a sense of moral urgency to the passage of Sen. tary Robert Gates. But the two have very different opinions about Christopher Dodd’s financial-reform bill. The Goldman Sachs how the government should go about prosecuting Maj. Malik case will no doubt prove an embarrassment to the financial sector, Nadal Hasan for the Fort Hood massacre and putting policies in if not for any actual lawbreaking then for the cavalier pronounce- place to stop another incident like it from happening. Lieberman, ments of Goldman trader Fabrice Tourre, who boasted of turning along with his committee’s ranking Republican, Susan Collins of a profit as the world burned: “The whole building is about to col- Maine, wants access to the Defense and Justice Departments’ lapse anytime now. . . . Only potential survivor, the fabulous Fab, papers and witnesses related to the shooting right away, and has . . . standing in the middle of all these complex, highly leveraged, filed subpoenas to get them. Gates, meanwhile, says that providing exotic trades he created without necessarily understanding all of access now would compromise both the Defense Department’s the implications of those monstruosities!!!” [Sic!!!] The courts internal review and the prosecution of Hasan; even after a sub - will have their say on whether Goldman broke the law, but if this poena, his department refused to release Hasan’s personnel file. clinquant corporate villain is wondering why it is the most hated Without knowing what exactly the documents contain or who firm in America, it will not have far to look. the witnesses are, it is difficult to say who is in the right. Since Lieberman’s investigation is important to our national security, n In a series of astonishing ads, and an op-ed by its CEO Ed however, decisions to impede it should not be taken lightly. It will Whitacre, General Motors boasts that the government-dependent reflect poorly on the department if it turns out to have held back automaker has “Paid Back in Full” its bailout money ahead of documents to protect not the investigation, but itself. schedule. In order to make that case, GM engages in accounting shenanigans worthy, if not of Enron, then at least of GM’s patrons n In his Uriah Heepish testimony before the Senate Judiciary in the Obama administration. The government’s relief for GM Committee, Goodwin Liu—who, if confirmed, will accomplish took the form of a small infusion—$6.7 billion in cash—and a the near-impossible feat of shifting the Ninth Circuit Court of large infusion—the government’s $40 billion equity investment. Appeals even farther left—asked the senators to essentially ignore GM is paying back the little piece, and even that it’s not doing with everything he’s ever said: “As scholars, we are paid, in a sense, to its own money: It is tapping billions in escrowed TARP funds that question the boundaries of the law, to raise new theories, to be it has not yet used. Why? GM got a great deal on its $6.7 billion provocative . . . [but] the role of a judge is to faithfully follow the government loan—7 percent—but there’s a better deal to be had: law. . . . Whatever I may have written . . . would have no bearing $10 billion in “green technology” financing at 5 percent. As on my role as a judge.” Fine words—yet Liu has explicitly called Forbes put it: “GM is using government money to pay back gov- for judges to create constitutional rights to education, shelter, sub- ernment money to get more government money.” And the other sistence, and health care, and to rule based on “how a judicial deci- $40 billion? How about some free floormats? sion may help forge or frustrate a social consensus.” He has advocated gay marriage, reparations for slavery, racial quotas, and n Andy Stern is leaving his $306,388-a-year position fighting the use of foreign statutes to discover the meaning of U.S. laws, against the nation’s fat cats on behalf of the working stiffs at and he thinks standard constitutional law is “aggressively built in the Service Employees International Union, an organization that the image of conservative ideology.” Professor Liu is polite and shook enough change out of its sofa cushions to throw down well-groomed, and he knows a lot of impressive words; but if we $60 million to put Barack Obama in the White House. Among the are permitted to judge him on anything beyond that, he is a hard- candidates vying to replace Stern are Change to Win president core leftist who thinks the Constitution means whatever he wants Anna Burger ($252,724/year) and SEIU executive Mary Kay it to. This is a nomination the Republicans could possibly defeat, Henry ($231,348 per annum). SEIU executive and Democratic and should definitely fight. Socialists of America leader Eliseo Medina ($242,286) is strange- ly absent from the running. Maybe he is weary of the endless self- n The Supreme Court struck down a law that banned “crush sacrifice that being a modern labor leader entails. videos”: commercially produced videos depicting the sexualized torture and killing of animals. Justice Alito was the only dissenter. n Unlike some liberals, we do not be - The decision is in keeping with the Court’s expansive “free ex - grudge Obama his time on the golf pression” jurisprudence, which assumes that the Court has the course. (The less time he spends gov - authority and indeed duty to block the censorship even of things erning, the better.) But an unfortunate that both common sense and common morality suggest have no choice was made in mid-April. Obama value or negative value. The justices claimed that the statute could was to go to Poland’s state funeral, but make the sale of certain depictions of hunting illegal, too. That the Icelandic volcano, which disrupted interpretation is implausible, as Alito argues, but it leaves open the air travel for days, prevented him. On possibility that a more narrowly drawn statute would meet the the day of the funeral, having sudden Court’s approval. Congress should move, for the well-being of free time, he went to play golf. People animals and human beings alike. noticed—including Poles. This was bad CNP
form. President Bush, whom liberals n President Obama’s executive order requiring hospitals to / accused of being a clod in international extend visitation rights more broadly has been hailed by gay orga-
relations, would never have done it. nizations while drawing little criticism from social conservatives. CORY LUM
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THE WEEK Might there be a lesson here? An oddity of the debate over same- Nobody supposes that it is morally important that hospital visita- sex marriage is that the practical difficulties its proponents say tion rights be tied tightly to marital status, or that many people it would solve for gay partners can, for the most part, easily be marry in order to enjoy these rights. Gay activists should contin- solved without it. In this case, the government has not granted ue to take this constructive approach—but we warn them that as formal recognition to same-sex romantic relationships. A patient they do so they will find the emotional appeal of their argument may have designated his lover (of either sex) or his friend to for redefining marriage dwindling. have visitation rights; there is no need for the government to inquire or make assumptions about the relationship. Nor has the n In a speech at Florida’s Kennedy Space Center in mid-April, government damaged the institution of marriage in any way: President Obama retreated a few steps from his proposals of a few
Pulled Together in the Web
N 2001, University of Chicago law professor Cass visitors, then the index is 100. If there is no political pattern Sunstein predicted that the Internet would increase the to site visits, then the index is 0. I political polarization of America. If conservatives con- The chart shows the isolation index for different types of gregated at conservative websites, and liberals at liberal media. In the case of the Internet, the average conservative sites, then it would reduce the “unplanned, unanticipated viewer visits websites with a viewership that is 60.6 percent encounters” that are “central to democracy itself.” With conservative. The average liberal visits websites with a view- sites like Daily Kos, Drudge Report, and the Huffington ership that is 53.1 percent conservative. The difference be - Post becoming almost mainstream, many observers have tween those two, 7.5 percent, is the isolation index for the echoed his observation. A new paper by economists Internet. That figure is distinctly higher than the index for ma - Matthew Gentzkow and Jesse Shapiro suggests that ga zines, broadcast news (the evening newscasts of ABC, Sunstein’s prediction has not come true. CBS, NBC, PBS, or the BBC), cable television (CNN, Fox The authors begin by pointing out that since the Internet News, MSNBC, CNBC, or Bloomberg), and local newspa- reduces the cost of reaching a news source, it can increase pers. But it is lower than for national newspapers (the New the diversity of one’s reading by increasing its quantity. York Times, USA Today, and the Wall Street Journal), and They go on to analyze data from comScore, a company for random face-to-face interactions within one’s zip code. that tracks Internet traffic, to calculate the number of users The authors also explore viewing habits, and they find on 119 news and politics websites. They combined the that individuals who frequent more extreme sites tend to usage figures with data reflecting the political outlook of offset that usage with visits to less extreme ones; visitors 12,000 panelists who participated in an electronic survey to extreme conservative websites are more likely to visit and classified themselves as conservatives, moderates, nytimes.com than the average user. or liberals. The Web may be increasing the attention paid to The authors then investigated how the Internet usage of screamers, but it has also made it costless for people to try conservatives and liberals differed. For each of the sites in out other points of view as well. Politics may be increas- their analysis, they calculated the average percentage of ingly polarized, but don’t blame the Internet. conservative users, and then looked to see if conservative and liberal users tended to concentrate their viewing on —KEVIN A. HASSETT sites that shared their views. For the most part, their data confirmed what we already know about websites. For example, 88 percent of the vis- Isolation Index of Major Media itors to foxnews.com are conservative, whereas 40 per- (In Percentage Points) cent of the visitors to nytimes.com are. Fully 98 percent 12 of visitors to glennbeck.com are conservative, while only 10 6 percent of those visiting thinkprogress.org are. But the results also suggest that Internet users are vora- 8 cious readers who flit from site to site with abandon. In the 6 end, that means that the typical conservative visits many 4 sites that are more liberal than he is, and the typical liberal 2 visits many sites that are more conservative than he is. The authors capture these movements with something 0 Internet Broadcast Magazines Cable Local National Face-to-Face they call the “isolation index,” which is plotted in the near- News Newspapers Newspapers Interactions by chart. If conservatives visit only sites with all conser - SOURCE: GENTZKOW AND SHAPIRO (2010). NOTES: INTERNET DATA ARE FROM vative visitors, and liberals visit only sites with all liberal COMSCORE. OFFLINE AND FACE-TO-FACE DATA ARE FROM MRI.
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THE WEEK weeks earlier to hand off all manned-space-flight development n A notable bank has failed in to private firms. Those earlier proposals had met stiffer-than- Chicago, notable because it is expected congressional opposition from states and districts heav- owned by the family of Alexi ily invested in NASA. Now the president wants to proceed with Giannoulias, the Illinois state development of an escape capsule for emergencies on the treasurer who proposes to take International Space Station—picayune stuff by comparison with Barack Obama’s old Senate former grand plans for new rockets and shuttles, but probably seat. Chicago Dem ocrats be - enough to damp down congressional grumbling. Obama sweet- ing impervious to shame, the ened up the deal further with some talk about manned interplane- treasurer’s Senate campaign tary exploration “early in the next decade”—which is to say, years continues without pause, and after he has left office. Uh-huh. he now blames the bank fail- ure on—you knew this was n A group of retired military officers, calling themselves Mission: coming—George W. Bush. Readiness, is agitating against a new “threat to our national secu- His latest ad, more vaguely, says the bank is just another family- rity”: fat teens. The military is having to turn down more and more owned business fallen victim to the recession caused by . . . applicants because of their weight. But the numbers are less Republicans, or whomever. If Illinois voters are not left perma- alarming than most news reports have conveyed. Daniel Engber, nently agape at this display of chutzpah, they might recollect writing in Slate, points out that excess weight causes an average themselves long enough to appreciate that the real victim here is of 10,000 potential recruits to fail their physicals each year; if they the public fisc, which will take a $400 million hit as the FDIC bails did not, enlistment classes would be only 3 percent larger. And the out Giannoulias’s depositors. military just had a record recruiting year. Nor is it at all clear that the group’s favored policy, healthier school lunches, would do n Remember Rep. Eric Massa? You may not want to, but when much to improve the numbers. None of this is to deny that kids the ticklish Democrat resigned from Congress March 8, he left the should eat better or that a reform of school-lunch policy might residents of New York’s 29th congressional district with no repre- be worthwhile. But we’re pretty sure that misjudging threats and sentation in the U.S. House. Temporary vacancies are normal, but pursuing ineffective strategies isn’t what they teach at the military for some strange reason, seven weeks have passed and Gov. David academies. Paterson has not scheduled a special election. The district might not have any representation until the new Congress takes office in n The Institute of Medicine has recommended that the salt con- January 2011. Officially, the delay stems from worry that New tent of prepared foods—store-bought or ordered in restau- York State and the district’s counties can’t find the $700,000 or rants—be reduced, and the Washington Post reported that the so to pay for the special election. But others in the district suspect FDA will begin to use its authority to force gradual reductions. that the real factor is Republican Tom Reed’s healthy chances of New York City is debating a ban on the use of salt by restaurant victory: Reed, the mayor of Corning, was running strong even chefs. High salt intake is associated with hypertension, so such before Massa started telling tales of shower-time showdowns with regulations might improve people’s health (although probably Rahm Emanuel, and would be favored in any special election. not as much as persuading them to, say, get checked out and Paterson’s dawdling could leave these voters without a congress- treated for high blood pressure would). Experts who favor the man for more than 300 days, generating cries that partisan con- rules acknowledge that developing low-salt foods that taste cerns are blocking free elections. Perhaps when you have been good will be a challenge. They are confident that you will be accused of witness intimidation and obstruction of justice, as satisfied with the trade-off. Their presumption ought to raise Paterson has, complaints that you are obstructing the democratic Americans’ blood pressure all by itself. process are a minor concern.
n You might think that nobody would try to link the recent erup- n The New York City public-school system’s “rubber rooms”— tion of a volcano in Iceland to global warming. Slight and dis- in which teachers accused of incompetence or misconduct wait, putable increases in average air temperature worldwide ... sometimes for years, for their cases to be decided, with nothing to mighty heavings of molten rock miles below the earth’s crust ... do but play board games and watch their salaries and pensions How can the two be connected? They can’t; but never under - accrue—have long been a symbol of bureaucratic dysfunction. estimate the dogged ingenuity of the monomaniac. The key here On April 14, Mayor Michael Bloomberg announced that he had is something called a “blocking event,” which is when the jet reached an agreement with the United Federation of Teachers to stream, which carries stratospheric winds eastward across the shut them down and expedite the process by which the teachers’ northern hemisphere, is forced to slow down suddenly. Then cases are decided. “What a relief,” we can hear you say. “Under anything in the upper atmosphere—such as, oh, ash from a vol- the new system, firing decisions will be made in a matter of cano—will linger instead of dispersing. So if the eruption itself months, not years!” Not necessarily. The old systems had reason- can’t be pegged to global warming, at least the consequent able deadlines, too, but they were frequently extended, or simply inconveniences can. And of course: “We predict that the fre- disregarded. “Well, at least the 550 teachers currently awaiting AP / quency and length of blocking events will increase in a warmer arbitration will be out of the system by the end of the year.” So climate,” says French climatologist Christophe Cassou. To Bloomberg says, but his timeline depends on arbitrators’ packing exaggerate is to weaken, wrote one of M. Cassou’s countrymen. multiple hearings into each working day between now and then; it We commend this observation to the Church of Global is a rare day when the arbitrators achieve such a pace. “But sure-
CHARLES REX ARBOGAST Warming. ly this will save us money.” Not in the short term, no, given how
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heavily the Education Department will have to lawyer up for when such groups are under major attack. Every other day a its arbitration blitz. Catharine Davis, formerly of Intermediate blogger or human-rights advocate is arrested and jailed. School 302 in Brooklyn, had this to say about the impending Egyptian democrats are in obvious agony over the rude shift in closure of the rubber room in which she spends her days: “To tell the American posture. The head of an election-monitoring group you the truth, it doesn’t matter where we wait, it’s the process of said, “Obama wants change that won’t make the Egyptian gov- waiting.” A straight-talking pragmatist! No wonder the New York ernment angry. And in the Egyptian context, that means there public-school system wants to get rid of her. will be no change.”
nAs we go to press, with ten days to go before Britain’s election, n The Israelis say that Syria has secretly delivered Scud missiles the average results from the most recent 25 polls were as follows: to Hezbollah, the Iranian-backed militia that has a lock on Leba - Tories 33 percent, Liberal Democrats 30 percent, and Labour 27 non and likes to boast that it is massively rearming for another war percent. Compare these figures with the results of the last election: against Israel. Hezbollah already has an arsenal of a reputed Tories 32.4 percent, Lib-Dems 22 percent, and Labour 35.2 per- 50,000 lesser missiles, but the Scuds can be fitted with chemical cent. For most of the intervening five years the Tory leader, David and biological warheads and have the range to hit anywhere in Cameron, has pursued a highly conscious policy of wooing cen- Israel. Their installation would destabilize the whole region, with trist/Lib-Dem voters with “progressive” policies and liberal Israel and Lebanon, not just Hezbollah, facing off. The border rhetoric. He has been prepared not only to alienate natural conser- between Syria and Lebanon is a smuggler’s paradise of unmarked vative voters in this endeavor but even to make a fetish of doing roads, and the transfer of Scuds that way is all too possible. The so in order to signal to centrists that the Tories have been “detox- Syrians as usual are playing the injured party, saying that they’d ified.” Well, the intermediate verdict on this strategy is that the never do a thing like that, and they accuse the Israelis of beating With Spain, Ireland, and Italy on the same slippery slope as Greece, it’s not clear that there are enough adults on the scene to reform all the juvenile delinquents.
Tories have increased their support by 0.6 percent at a time when war drums in the hope of spoiling the beautiful new friendship Labour’s support has fallen by 8.2 percent. Admittedly, the surge developing between Washington and Damascus. After a diplo- in Lib-Dem support since their leader, Nick Clegg, performed matic break these past five years, Robert Ford has been designat- well in two three-way election debates partly explains this weak ed to reopen the U.S. embassy there. The truth or otherwise about Tory performance. Yet this Lib-Dem surge was always a risk of the Scuds has got everyone in the administration scratching their the Cameron strategy. By loudly embracing “progressive” poli- heads. “Do we actually have a policy toward Syria, and is it in our tics, Cameron’s Tories validated left-wing arguments and so man- best interest?” asks Democratic representative Eliot Engel. Smart aged to appear both reactionary and inauthentic. Even so, given question. the mathematical complexities of a three-way election, Cameron might still scrape a narrow victory. The nightmare scenario is for n The Goldman Environmental Prizes are sometimes called the Tory vote to rise but for the insurgent UKIP to win enough “the green Nobels.” Like the real Nobels, they are often inter- votes from discontented toxic Tories to put Labour or the Lib- esting and sometimes gag-making. At least one Goldman has Dems in power. When a governing party collapses, the main been a pure inspiration. Among the 2010 winners was Hum - opposition party should win handily if it is doing things right. berto Rios Labrada, for what the Associated Press describes as Cameron may yet win, but Cameronism has already lost. his “campaign to let Cuban farmers choose the crops and seed varieties best for their lands.” The report further said, “Rios n Greek bond yields hit 13.4 percent as S&P lowered the nation’s wants to make Cuban farms more sustainable by giving farm- sovereign credit rating from near-junk to BB+, or, in layman’s ers more autonomy—a radical notion in what has long been a terms, to “You Have Got to Be Kidding Us.” Portugal got a strictly top-down planned economy where officials tell produc- downgrade, too, though it is in better shape than Greece, for now. ers just what to grow, even if it isn’t quite right for the soil.” A sovereign default in the eurozone would cause a monetary Those officials know perfectly well the danger of letting a little earthquake, so Europe’s grown-ups—Germany, France, the freedom take root. United Kingdom—are scrambling to avert it. But with Spain, Ireland, and Italy on the same slippery slope, to say nothing of the n French president Nicolas Sarkozy has called for legislation to fragile economies of Eastern Europe, it’s not clear that there are ban the burka. “The ban on the full veil must be total in all public enough adults on the scene to reform all the juvenile delinquents, places because women’s dignity cannot be watered down,” a gov- and Britain’s decision to forgo the euro looks more and more like ernment spokesman said. France banned “ostentatious” religious sterling judgment. symbols, including headscarves, from public-school classrooms in 2004. That law reflected the secularist streak of French repub- n The Egyptian government loathed President Bush and his licanism, as well as the fact that the state controls state schools. democracy agenda. They are much happier with Obama. He has Banning the burka, even on the Champs-Élysées, reflects the slashed funds to aid democracy groups in Egypt—at a time totalitarian streak of French republicanism—Robespierre, not
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THE WEEK Voltaire. Burkas do negate women’s dignity, locking them in n Matthew Kachinas was one of the few OB-GYNs in Florida portable prisons. But since it is impossible to prove that the mar- willing to perform late-second-trimester abortions. No longer; Dr. ginal woman was forced to wear one, she must be assumed to Kachinas has lost his medical license. He performed a selective- have made the choice; it is not the state’s to make for her. The reduction procedure for a woman carrying twins—a boy, who battle against fundamentalist sharia should be fought elsewhere. appeared from genetic testing to have Down syndrome and pos- sibly a heart defect, and a girl—and mistakenly ended the lat- n Just as we don’t favor stripping off burkas, neither do we want ter’s life. The woman sued Dr. Kachinas for aborting the them forced over us. South Park, Comedy Central’s raunchy car- “wrong” fetus; a second procedure aborted the “right” one. On toon series, ran an episode that showed Muhammad in a bear suit. April 9, the Florida Board of Medicine held a hearing on the (This recalled a 2006 episode from which Comedy Central purged matter and decided to revoke Dr. Kachinas’s license. Reflecting a scene showing Muhammad undisguised.) A New York–based on the situation, Kachinas told a reporter that he was going to Muslim website threatened Trey Parker and Matt Stone, South kill himself and was involuntarily hospitalized. His sorrow is Park’s creators, with murder. “We have to warn Matt and Trey that understandable. what they are doing is stupid and they will probably wind up like Theo Van Gogh [the Dutch filmmaker slain by an Islamist]. . . . This is not a threat, but a warning of . . . what will likely happen to them.” The threat (which of course is what it was) was accom- panied by a picture of Van Gogh’s corpse. Comedy Central’s response to this incitement was to bleep and blank out Parker and Stone again. Can they find less craven employers? And can the website’s authors and organizers be put behind bars, or at least under surveillance?
n The blogger Julian Sanchez has a thesis about the Right. “One of the more striking features of the contemporary conservative n Treasury Secretary Timothy Geithner and Fed chairman Ben movement,” he recently wrote, “is the extent to which it has been Bernanke revealed a new $100 bill, due out next February. moving toward epistemic closure.” What is “epistemic closure”? Poor Ben Franklin. First his head was swollen to monstrous you ask. Here is Sanchez’s next sentence: “Reality is defined by a size. Now the old gray green of his surround has been tarted multimedia array of interconnected and cross promoting conserv- up with a colored security strip and a metallic inkwell with a ative blogs, radio programs, magazines, and of course, Fox News. Liberty Bell on it. It is supposed to be hard on counterfeiters; Whatever conflicts with that reality can be dismissed out of hand it is certainly hard on the eye. This isn’t money; it is an Aus - because it comes from the liberal media, and is therefore ipso trian train ticket; a pass to a mid-level lounge at a Macau casi- facto not to be trusted.” So what he wants to say is that we have no; a stock certificate for a government-run South American become closed-minded. His comment launched the Great mining company. Gangstas were already abandoning C-notes Epistemic Closure Debate of 2010, with pundits left and right for euros; this will make them flee in droves. Ugly, ugly, ugly. adopting the term. But if any professors of analytic philoso- Offer it to the Taliban as toilet paper. Did we say we didn’t like phy—whence Sanchez appropriated it—were paying attention, it? they must have smiled: for “epistemic closure” does not mean anything like closed-mindedness. Formulations of the epistemic- n A lawsuit has recently been filed over the 2008 Gay Softball closure principle vary, but here is a simple and idiomatic one: “If World Series, in which a San Francisco team called D2 was I know that p, and know that p entails q, then I also know that q.” stripped of its second-place finish for having three bisexuals Ah yes, Fox News and its damnable belief that knowledge is on its roster. The rules allow no more than two straight players closed under entailment! per team, and in the middle of the championship game, D2 was angrily charged (by a team it had previously defeated) with n Assembling a montage of angry talk-show hosts without insufficient gayness. After the game, the accused were taken to including MSNBC’s Keith Olbermann would be like assembling a conference room and asked a series of rather personal ques- a dream team of basketball players without including LeBron tions in an attempt to nail down their exact preferences. The James. So MSNBC personality Donny Deutsch, in a segment on ruling: Instead of adding up to one and a half heterosexuals, the bilious bloviators, risked the boss’s ire and threw Olby into the fence-sitting trio were considered to be three “non-gays,” thus montage. Retribution was swift: Deutsch’s week-long anchoring exceeding the quota. All three were suspended from gay soft- stint was canceled after two days. When a New York Times ball for at least a year; it was not made clear how they might reporter asked Olbermann if he had played a role in canning reestablish their eligibility. Deutsch, Olbermann stated that “[Network president] Phil Griffin phoned me yesterday enraged at what was on that show and I n Or in limerick form: didn’t disagree with him.” Unsurprising, given what we know about Griffin’s obeisance to his star ranter (see “Olbermann In the world of gay softball, it seems, Broadcast Corporation,” Sept. 15, 2008). “Ventriloquist agrees They take regulation to extremes. AP / with dummy” isn’t exactly news, but it’s worth noting the enforced Although here’s the big picture— conformity of views at a left-wing network in light of all the recent It boils down to one stricture:
DOUG MILLS chatter about the Right’s closed-mindedness. You simply can’t play for both teams.
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THE WEEK n Cue the Friday Night Lights theme: Allen, Texas, a prosperous suburb near Dallas, is spending nearly $60 million on a new high- school football stadium—one that will seat 18,000 spectators. While much has been made of Texans’ obsession with high- school football, less remarked upon is the fact that Allen is spend- ing another $60 million, from the same bond issue, to build a lavish performing-arts center: Government-school excess is not restricted to athletics, nor is it a uniquely Lone Star phenome- non—Newton, Mass., is about to open a $200 million high school, while Milwaukee’s public schools spend $100 apiece on pencil sharpeners. In Allen, the financial incontinence takes the form of $120 million in high-school infrastructure for a city of 77,000. And to think, Plato made do with an olive grove.
n Antony Flew was a distinguished practitioner of the British school of philosophy, which begins in empiricism and sometimes ends in wordplay. Flew was a bit of a winger politically, attacking authority it does not currently have, but that federal policymakers egalitarianism and neo-statists like John Rawls. But he was most have been exercising anyway. In addition, the Fed would retain famous for his polemical atheism—until six years ago, when he the power to make loans accepting the shadiest of assets (such as announced that he had come to believe in God. “The almost unbe- subprime-mortgage-backed securities) as collateral. This is the lievable complexity of the arrangements which are needed to pro- architecture of a permanent bailout authority, and it needs to be duce life,” Flew argued, shows “that intelligence must have been dismantled. If the power to offer such extraordinary assistance is involved.” He died in the bosom of the Prime Mover, not the truly necessary in the event of a liquidity crisis, regulators should bosom of Abraham. “I want to be dead when I’m dead and that’s have little trouble convincing Congress to give it to them. But an end to it.” Christians hope he will change his views on this too. Congress should not preemptively hand the keys to the fisc to a Dead at 87. R.I.P. group of unelected officials who, though well-meaning, have pre- cious little incentive to look out for the taxpayers’ best interest when they believe the sky to be falling. PUBLIC POLICY The Dodd bill would also create a new Consumer Financial A Subprime Bill Protection Bureau inside the Fed. For Republicans, the politics of the CFPB may seem tricky: Democrats have been gleefully paint- eNATe BANkING COMMITTee chairman Chris Dodd’s ing them as opponents of “consumer protection,” and the public is financial-reform bill is a hodgepodge of new restrictions understandably hostile toward credit-card companies. But the S on Wall Street offset by a hearty dose of sweeteners to keep GOP should remind Americans of two underlying truths: 1) The financial-industry cash flowing to Democrats. For every measure main causes of the pre-2007 housing bubble did not include a lack that would cut into Wall Street’s profits, another would subsidize of muscular consumer-protection rules. 2) To the extent that exist- its operations. Other provisions would give a new federal bureau- ing consumer safeguards need strengthening, the task can be cracy the power to micromanage individual financial decisions. accomplished without launching a massive new bureaucracy that Still others would federalize a part of corporate law traditionally would negatively affect credit access and economic growth. left to the states, so that unions may have a bigger say in the board- Under the guise of bolstering shareholder rights, the legislation room. The bill could be fixed, but leading Democrats do not seem would greatly expand Big Labor’s influence over American cor- interested in changes. Some Senate Republicans are nervous about porations. The vehicle would be “proxy access”—allowing stock- insisting on changes, fearing they will be labeled tools of Wall holders to have their preferred candidates in corporate-director Street. They should stiffen their spines and hold out for a better bill. elections included on a company’s official proxy card. While Republicans have focused a lot of firepower on the $50 billion this idea has been sold as a means of promoting “shareholder fund mentioned above, and with good reason: As structured, this demo cracy,” its chief beneficiaries would be large and politically fund would allow the government to bail out non-bank creditors, powerful shareholders, such as union pension funds. Proxy access and worse, to play favorites among them, just as we saw when the has been a liberal rallying cry for many years. Its inclusion in the Obama administration gift-wrapped large stakes in the automakers Dodd bill underscores the degree to which that bill represents a for its union allies at the expense of secured creditors. The bill’s Democratic wish list. authors appear to have cut-and-pasted the resolution language that Until these and other deficiencies are addressed, Republicans authorizes the FDIC to wind down banks, in which one class of should oppose the legislation. Journalists will warn of the political creditors—the depositors—are entitled to a bailout. The sophisti- risks (as if they’re suddenly concerned about GOP electoral for- cated creditors of non-banks, however, neither need nor deserve tunes) but Republicans should ignore the chatter. Rather than let a bailout. The Dodd bill would not require the FDIC to impose Democrats claim the mantle of populism, the GOP should em - losses on these creditors; it only expresses a “strong presumption” phasize that Dodd’s bill would keep Bailout Nation alive while AP that such losses would be imposed. hurting the very people—middle-class consumers—it claims to be / The debate over resolution authority is merely academic, how- pro tecting. The public wants smarter, more efficient regulation of ever, if the Dodd bill retains language that would give the FDIC Wall Street, and there is still a possibility it could get it. But only if
clear authority to engage in loan guarantees during a crisis— Republicans stay united. CHARLES DHARAPAK
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the wo men of Paris by the aging street- walkers who prowl the docks of Mar - seilles. But Ol ber mann himself insisted that tea partiers were simply “a bunch of guys who are just looking for a reason to yell at the black president.” If that’s still too low-rent, Jimmy Carter—the one-time leader of the free world—insisted that the “overwhelming portion of the intensely demonstrated animosity toward Pres i dent Barack Obama is based on the fact that he is a black man, that he’s African-American. . . . It’s an abominable circumstance and grieves me and concerns me very deeply.” By the time of the Obamacare vote in March of this year, the kindling had been prepared for a massive bonfire of asininity. All that was needed was the spark, and the arsonists at the Con gres sion al Black Those Blue-Blooded Caucus were of course happy to provide it. In a deliberately provocative stunt, a self- Rednecks segregated group of African-American lawmakers walked through a throng of tea- In which plutocrats pretend the tea partiers are plutocratic party protesters on Capitol Hill, rather than take the normal route through underground tunnels. It was a self-conscious effort to BY JONAH GOLDBERG conjure memories of brave civil-rights workers from the 1960s battling their way DIOTS! Racists! McCarthyites! Fas - camera and propounded the simpler theory through the assembled forces of bigotry. cists! Uh . . . never mind. that the protesters were “anti-CNN.” Because, as we all know, Bull Connor was That, roughly speaking, is the When, during the 2008 presidential really working for the HMOs. The prob- I evo lution of the tea parties in the lib - campaign, a Slate columnist insisted that lem, as An drew Breitbart has demon strated eral imagination. Individual assessments calling Barack Obama “skinny” amounted at BigGovernment.com, is that the pro test - may vary (e.g. first racists, then idiots), but to racism, many thought liberal race- ers didn’t take the bait. So the CBCers evi- as a generalization, it works. obsession had reached its nadir. But it dently just lied about being called the Let’s have a quick flashback. In Febru - turned out that it could go much lower. N-word some “fifteen times” and being ary of 2009, CNBC’s Rick San tel li went Suddenly, when millions of Americans ob- spat upon. Numerous video recordings into an on-air rant about how the stimulus jected to vast new expansions of the feder- demonstrate that this was all bogus. Alas, package should prompt protests like the al government, which by definition must as the old English pro verb has it, “a lie will original Boston Tea Party. Boom: Almost take resources from the private sector go round the world while truth is pulling its overnight, informal tea-party-themed pro - (through either borrowing or taxation or boots on.” tests popped up across the country. both), and embraced the sort of def icit Based almost entirely on this one non- After an initial surge in ironic “tea - concerns that the New York Times and incident, the press made it sound as if the bagging” jokes, reporters and liberal com- Wash ing ton Post editorial pages have been tea partiers had been this close to pulling mentators were completely flummoxed as mouth ing for decades, the most satisfying a “Number 6” on Wash ing ton. Fans of to why so many Amer i cans didn’t want to explanation liberals could come up with Blazing Saddles may remember what that spend nearly a trillion dollars on weather- was racism. is. It’s where the racist band of hooligans izing attics, subsidizing digital-TV “Let’s be very honest about what this is “go a-ridin’ into town, a-whompin’ and a- cou pons, sprucing up the Department of about. This is not about bashing Dem - whumpin’ every livin’ thing that moves Commerce’s offices, and erecting highway ocrats. It’s not about taxes. They have no within an inch of its life.” ABC’s Diane signs that said, in effect, These Construc - idea what the Boston Tea Party was about. Sawyer claimed that tea partiers were tion De lays Brought to You By the Dem - They don’t know their history at all. This is “roaming Washington, some of them in - ocrats. about hating a black man in the White creasingly emotional, yelling slurs and epi- So they used Occam’s razor as a tool of House,” Janeane Gar of a lo told a nodding thets.” CBS’s Bob Schieffer insisted that self-mutilation. A CNN reporter covering Keith Olbermann. “This is racism straight “demonstrators” were ban dy ing “racial one of the first tea-party rallies began by up and is nothing but a bunch of teabag- epithets” and “sexual slurs,” reminding trying to show how little the protesters ging rednecks. There is no way around him of civil-rights-era abuses. “One law- knew about Obama’s agenda and tax that.” Ob vi ous ly, us ing Janeane Garofalo maker said it was like a page out of a time schemes. When the crowd took exception as a stand-in for an intelligent spokesman machine,” Schieffer approvingly noted
DARREN GYGI and let her know it, she turned to the of the Left is terribly unfair, like judging (time machines have pages?).
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Send the student in your life to a crash course on conservative ideas
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Then, of course, there was the charge of thing of a mystery, since that figure is close fascism. Threats, vandalism, and nasty e- to the U.S. median household income. By mails aimed at Republican pol i ti cians are the standard of these pundits, the bulk of Shadow routine events. When they are aimed at public- and private-sector unions should get Democrats, Frank Rich sees the rise of out of the politics game too—not to mention Bailouts Hitler. “Take back our country”—perhaps all the limousine-liberal Huffing ton istas the chief rallying cry and sentiment of who make up the core of groups like Move - The Democrats punish Wall Street with Dem o crats from 2003 to 2008—suddenly On.org. indeed, according to this standard, promises of endless money betrayed a fascistic impulse when uttered the bailouts of the union-dominated auto by Oba ma’s opponents. companies were a bail out of the “petty BY KEVIN D. WILLIAMSON On April 15, the New York Times re - bourgeoisie,” as Lind calls them. leased a poll of tea-party supporters (which in 1970, political scientist Richard HiS is structured finance!” is not quite the same thing as tea partiers, Scam mon and author Ben Wattenberg (my shouts Enron executive Andy since many supporters don’t go to the ral- old boss) wrote a book called The Real Fastow, waving his arms lies). The data provided a fascinating Ror- Majority. The political center, according to ‘T wildly at a circling herd of schach test. For a slew of liberals—E. J. Scammon and Wattenberg, was a “47 year hungry velociraptors with glowing red Dionne, Mi chael Lind, Rick Perlstein, old Catholic housewife in Dayton, Ohio eyes. “This is what it looks like!” That’s Peter Bein art—the poll confirmed that tea whose husband is a machinist” and whose from Enron on Broadway, and it’s not half partiers are the familiar racist, McCarthyite brother-in-law is a cop. Scammon and bad, but anybody who knows anything hobgoblins. But it also proved that they Wattenberg wrote The Real Majority in an about theater knows that the real action are Junior League plutocrats and, in the effort to save the Democratic party, which is downtown: Everybody will be watch- words of E. J. Dionne, a “media-created was increasingly seen as the party of radi- ing the case of Securities and Exchange protest movement” that isn’t worth any- cals and welfare recipients. Unfortunately Commission v. Goldman Sachs, now one’s attention. for them, Richard Nixon took the book to playing at the U.S. District Court for the Dionne calls the tea-party movement heart, while the Democrats needed another Southern District of New York, which “populism of the privileged.” Michael two decades to understand that belittling promises to be a sideshow spectacle that Lind sniffs that since “68 percent” of the middle class was a recipe for elec- will make Enron’s finance follies on respondents (the correct figure is 56 per- toral—and economic—disaster. Broad way look like a high-school pro- cent) told the Times that they live in house- The median annual salary for a machin- duction of Our Town. However entertain- holds with incomes greater than $50,000 a ist in the United States is $36,210 (the ing a Goldman Sachs prosecution might year, they reside in the “top half” of earners median salary for a cop in Dayton, by the be, the show America should be watching and are therefore ignorable. They aren’t way, is $52,270). Throw in a wife making is the one in Washington: the kabuki poli- populists so much as the heirs to the “af - 14 grand a year part-time and, presto, tics of Sen. Christopher Dodd’s financial fluent members of the Liberty League” you’ve got Mr. Mo nop o ly, according to “reform” bill, a piece of legislation that who gave FDR a hard time, says Lind, who the leading voices of contemporary liber- will enshrine backdoor bailouts into U.S. is indignant that respondents are optimistic alism. law for the foreseeable future. about their economic circumstances (70 Now many in the press seem to be real- Washington does not want to talk about percent say their situation is “fairly good”), izing that they were had: Since the tea- that bill in any great detail right now, yet still describes them as “a sullen, defen- party movement is really just an extension which is one possible explanation for sive mobilization of the Have-Somes who of the GOP, the party of the rich, all this the fact that the SEC decided to go dread the Have-Nots.” The tea partiers’ attention was a blunder. Nothing to see after Goldman Sachs on a 3–2 party-line wealth and ed ucation, according to Bei- here, folks; it’s just a bunch of Repub - vote—unanimity is the norm for such an nart, make them a “version of the Cali - licans. What remains to be seen is whether action—and with a case that even most of fornia suburbanites who rose up against voters will give the Democrats and the the hardcore Goldman-haters on Wall their property-tax bills in the late 1970s ra - press a do-over. The tea-party message is Street think is pretty weak. As with the ther than pay for decent schools for the not purely economic; the size of govern- sausage-filler details of the stimulus and Golden State’s black and Hispanic kids. ment has become the central social issue health-care bills, Democrats do not want They’re the second coming of what Robert of our time. The Dem o crat ic party and its Americans getting a real good look at Kuttner called ‘the revolt of the haves.’” spokesmen in the press have spent the last what’s in the financial-reform bill before The tea partiers “aren’t standing up for the year claiming that anyone who is con- it becomes law. Neither does Wall Street. little guy; they’re standing up to the little cerned about the size of government is instead, we’ll be talking about Fabrice guy,” huffs Beinart. either a fascist bigot or in league with fas- Tourre, the Goldman spreadsheet jockey This proletarian outrage from well- cist bigots. But now Barack Obama and at the center of the SEC’s complaint. compensated pundits is intriguing. For the Democrats are trying to sound very So, Fabulous Fab, get ready for your starters, the notion that household income concerned about the deficit and the eco- closeup—and maybe a long minimum- should determine the legitimacy of demo - nomic pros pects of the middle class. security vacation in the Enron suite. cratic protest is an odd standard. Moreover, Since liberals also spent the last year The Goldman case doesn’t sound like the notion that households—not in di vid u - demonizing anyone who raised those con- the stuff of high drama, even in the SEC’s als—making about $50,000 a year are cerns, it might be hard for people to take own words: “The marketing materials for members of the privileged class is some- them seriously. the CDO known as ABACUS 2007-AC1
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(ABACUS) all represented that the financial work as “pure intellectual mas- Much too much has been made of the RMBS portfolio underlying the CDO turbation” and boasts of “standing in the $50 billion resolution fund and the levy was selected by ACA Management LLC middle of all these complex, highly lever- that financial firms would pay to fund it. (ACA), a third party with expertise in ana- aged, exotic trades he created without Senator McConnell abominated it as a lyzing credit risk in RMBS.” As dramatic necessarily understanding all of the im - “bailout fund,” but he was paying atten- perorations go, that’s not exactly quietus- plications of those monstruosities!!!” tion to the wrong pot of money: That $50 making and bare bodkins. And, though (Mis spelling and ludicrous third-person billion is a little ladle-load of cashola clean-minded men always are tempted to usage in original.) compared with the buckets of schmundo think the very worst of Goldman Sachs, On Wall Street, you don’t go to jail for that the Dodd bill will make available for it’s not blazingly obvious that the Broad breaking the law—the law is what you can indirect bailouts and endless support of Street Bully got itself sideways with get away with—you go to jail for being an troubled businesses—financial and non- Section 17(a) of the Securities Act of embarrassment to Wall Street. Fabulous financial firms alike. Case-by-case in - 1933, Section 10(b) of the Securities Ex - Fab is 31 years old and looks like a young terventions may be out, but the bill would change Act of 1934, or Exchange Act man who has consumed nothing but or - allow—in fact, appears designed to en - Rule 10b-5. But they say a decent pro - ganic Vermont dairy products his entire sure—bailouts for the creditors of trou- secutor can get an indictment on a ham life: soft and pale. It’s a happy thing for bled firms. Under the Dodd bill, Wall sandwich, and Goldman’s Tourre looks him that the worst thing he’s facing is kid- Street firms (or unions, or sovereign- set to join Michael Milken and Martha die jail, a book deal, and a demotion from wealth funds, or anybody else with the Stewart on the rogues’ gallery of people banker to consultant, if he even gets that: right political connections) who are ex - the feds made into lunchmeat for the His bosses are not throwing him to the posed to losses on failing financial com- crime of getting rich while being a jack- wolves—not yet. Goldman gives every panies will be able to collect significantly ass. indication that it is girding its loins, pre - more money than they would be able to Tourre refers to himself as “the fab - paring to cry havoc and let slip the dogs of under normal bankruptcy procedures. ulous Fab” in cringe-inducing e-mails, war. Given that Goldman girds its loins That is the bailout. and jokes that he “managed to sell a few with $1 million Treasury bills, this should We’ve seen this before, of course. The Abacus bonds to widows and orphans that be a long and entertaining show indeed. AIG bailout, for instance, amounted to I ran into at the airport.” He describes his And that may be the point: It is a red bailout of Goldman Sachs and other herring, a distraction from the fact that banks that had a lot of AIG exposure and congressional Democrats, the Obama ad - would have had a harder time being made ministration, and the big Wall Street play- whole in bankruptcy court than they did ers are colluding to make the present under Washington’s management. The system of ad hoc and ad infinitum Dodd bill instructs that the government bailouts permanent, codified in law, shall “ensure that unsecured creditors with practically no accountability in bear losses in accordance with the prior - Washington and no oversight from ity of claim provisions” in the existing our elected representatives. law—but how well has that worked out in That’s because the Dodd bill cre- the past? What legal authority did the ates a system of shadow bailouts. Obama administration have to upend the Example: The bailout of insurance normal priority of claims in the bailout of giant AIG wasn’t really a bailout General Motors, a corrupt deal that saw of AIG—AIG is a dead corpor - secured creditors forced to take sub - ation walking, and everybody stantial losses while unsecured creditors knows it. Rather, it was a bailout received a better deal than they were of all the firms that would have legally entitled to—all because those taken losses if AIG had gone into unsecured creditors were the union boss- bankruptcy. The Dodd bill’s defenders es who put Barack Obama into the White protest that the bill will end bailouts, but it House? That wasn’t just a bailout of GM; will only hide them. That’s because firms it was also a bailout of the UAW. That’s that might have been sent tumbling into the kind of bailout regime that the Dodd insolvency by a failure elsewhere in bill will make permanent: the indirect the financial system—by a repeat of bailout. Chris Dodd the Lehman Brothers fiasco, for Part of the problem is that, instead of instance—will be protected by the creating an independent FDIC-style entity Dodd regime from default and to handle resolutions, the Dodd bill would bankruptcy. And Congress will give that power to the FDIC itself. This is be protected from having to go a bad idea for lots of reasons: The FDIC on the record supporting such is effective because it basically does one actions in each case. The Dodd thing and does it well, under narrowly bill is a blanket backdoor-bailout defined rules with relatively little latitude
authority. for political gamesmanship. The Dodd bill ROMAN GENN
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will interfere with the FDIC’s ability to Without a freeze, most New Jersey focus on the one thing it does well and task teachers can expect a raise on the order of it with doing other things it is apt to do Governor 4 percent this year. If they did not receive poorly. We don’t mind bailing out ma-and- raises, and if a just-passed reform requir- pa depositors when a bank goes feet-up, Freeze ing teachers to contribute toward health because keeping those deposits guaran- insurance were implemented immedi - teed adds greatly to the stability of the In New Jersey, Chris Christie shows it ately, the state would save $765 million, banking system and the economy, encour- is possible to stop rampant public- almost enough to offset the funding cut ages savings and capital formation, and employee wage growth without raising property taxes, laying off does so at a remarkably low cost to the teachers, or buying fewer textbooks and nation. But the investors in Goldman BY JOSH BARRO less classroom equipment. Sachs structured-finance deals aren’t The experience of New Jersey teachers very much like plain-vanilla bank depos- AST month, Bergen County Edu - is not unique. In fact, most public em - itors. Bailing them out is not going to be cation Association officials sent ployees could be excused for not noticing cheap, and it should not be a priority. out a memo that closed with a the recession, given the strong employ- One Capitol Hill critic of the Dodd bill L jokey prayer for New Jersey gov - ment and wage growth their sector has calls it an “FDIC wish list for aggran- ernor Chris Christie to die. experienced over the past several years dizing its power,” but even FDIC chief What raised the ire of the BCEA’s and continues to enjoy. Since the start of Sheila Bair cannot deny the underlying leaders? Christie’s proposal to balance 2007, as the number of jobs in the pri - purpose of the bill: effecting bailouts. the state budget without tax increases vate sector declined by 7 percent, public “The construct is you can’t bail out an by cutting $11 billion in spending, in - payrolls have seen a 2 percent increase, individual institution—you just can’t do cluding $820 million in funding for local adding over 350,000 jobs nationally. it,” Bair says. But . . . ? “In a true liquidi- schools—and his call for teachers to New Jersey lost 220,000 jobs in the pri- ty crisis, the FDIC and the Fed can pro- accept a one-year pay freeze so that the vate sector while gaining 11,000 local- vide system-wide support in terms of funding cuts don’t result in program government education jobs. liquidity support—lending and debt guar- reductions. In the last three years, state and local antees—but even then, a default would A freeze might sound draconian, but government-employee compensation trigger resolution or bankruptcy.” Right, a the data support Christie’s position, espe- grew 9.8 percent, compared with 6.9 per- major bank default would trigger resolu- cially in New Jersey, where teachers are cent in the private sector. That’s $1.43 in tions or bankruptcies across the financial especially well paid. Garden State teach- compensation growth for public employ- sector—and the FDIC and the Fed will be ers made an average of $60,000 per year ees for every $1.00 in compensation given a very large toolbox full of levers in 2007, plus generous health and pen- growth for private employees. and pulleys to prevent such a default from sion benefits, for working approximately Those raises cost money, at a time occurring in the first place. 80 percent of the number of days that when state tax revenues have taken a hit Lawrence Lindsey, former director of most full-time workers do. Only in Cali - because of falling incomes and less con- the National Economic Council, says that fornia and Connecticut do teachers make sumption. For a time, states were able to the Dodd bill would represent the end of more. close much of the gap with stimulus dol- “Too Big to Fail”—but not in the way we In the past decade, New Jersey school lars. In New Jersey, now that the stimu- might have hoped: “How could any firm districts have seen sharp increases in pay- lus is running out, teachers’ unions are actually fail when all of its debt could be roll costs. From 2001 to 2009, the costs urging the extension of a “temporary” guaranteed by the Treasury, the Fed could associated with wages and salaries grew tax increase inflicted last year upon print money to assist it, and just in case, 43 percent. While school enrollment grew residents making over $150,000 annu - there was $50 billion sitting around to only 3 percent over this period, school ally, and the elimination of the school- reassure nervous creditors that they would employment grew 14 percent. New Jersey funding cut. be repaid regardless what contract or schools added one new teacher for every As Christie noted, this tax increase (as bankruptcy law said? . . . Needless to say, two new students. Teachers’ wages grew well as teacher layoffs and cuts to spend- the large Wall Street firms aren’t com- slightly faster than those in the private sec- ing on classroom supplies) can be avoid- plaining; they will permanently benefit tor, and benefit costs soared. From 2001 to ed by means of enacting a pay freeze. An from having lower borrowing costs 2006 (the latest year for which data are April Rasmussen poll found 65 percent thanks to these provisions, the same way available), school-employee benefit costs of New Jersey voters support a teacher- Fannie Mae and Freddie Mac enjoyed increased 115 percent, in part due to sharp - pay freeze. But while a handful of local implicit guarantees.” ly rising health-insurance costs. Unlike unions agreed to accept one, the vast And that leaves us with the Divine most workers in the private sector, New majority balked at the governor’s de - Dodd, standing in the middle of all these Jersey teachers generally did not bear any mand. In return, Christie urged voters to complex, highly leveraged, exotic politi- of the rise in health-insurance costs, be - reject proposed school budgets in elec- cal trades he created without necessarily cause 100 percent of their premiums are tions on April 20. (In New Jersey, school understanding all of the implications of paid by school districts. budgets must be approved by voters those monstruosities. I hear that Trea - annually.) sury bonds are big with the widows and Mr. Barro is a senior fellow at the Manhattan Most voters obliged him. Budgets orphans. Institute. were approved in just 42 percent of New
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Jersey districts, the lowest figure since sufficient to cover rapidly growing labor only if it’s subject to a voter referen- the New Jersey School Boards Asso - costs, and the MTA is cutting service, dum. And when California voters were ciation started keeping records 35 years even eliminating two lines entirely. A offered a chance to approve a broad- ago. Typically, approval runs in the freeze would allow the MTA to get labor based tax hike in a referendum last year, 70 percent range; last year’s figure was costs under control without taking these they resoundingly rejected it. (The Repub - 73 percent. measures. lican candidates rule out tax increases This signal of voter discontent could As I have noted, there is another way to altogether.) inspire efforts toward wage freezes in pay for continuing employee raises: tax It’s not as though California’s public other states. John Flanagan, a Republican increases. Many states raised taxes last employees were underpaid to begin with. in New York’s state senate, says he will year as budget gaps grew in the reces- The state’s teachers are the highest-paid introduce legislation that would freeze sion, and in many states, employee in the country, taking home an average of employee wages at all levels of New unions are pushing for another round of $63,640 in wages (25 percent above the York government—notwithstanding ex - tax hikes this year. national average) plus benefits. Its prison ist ing employee contracts. Such a law is In New York, public-employee unions guards are also the country’s highest- likely to hold up in court; previous wage are pushing a tax-increase package that paid, averaging $72,000 per year in freezes in Buffalo and New York City would take the state’s top income-tax rate wages and overtime as of 2008, plus pen- withstood legal challenges. to 9.97 percent (13.62 percent in New sion and health benefits worth tens of Like New Jersey’s, New York’s teach- York City). This would raise, optimisti- thousands more. ers have seen wage and benefit growth cally, $1 billion a year. The unions would The bottom line is that wage freezes that outstrips that of their private-sector also levy a punitive tax on bankers’ produce meaningful savings, allowing peers. School employees have on average bonuses, and tax stock transactions. lawmakers to avoid both unpopular tax Early indications are that, thanks to rising voter discontent, lawmakers’ appetite for higher taxes is waning.
gotten a 5 percent increase in wages and In Illinois, meanwhile, unions are lin- increases and unpopular cuts in pro- benefits over the last three years. A pay ing up with the governor to urge a 33 per- grams. It is the closest thing in govern- freeze would do much to bring the trend cent increase in the state’s flat income ment to a free lunch. in public-employee compensation back tax. And in California, public-employee Indeed, if state and local governments in line with that of the private sector— unions are pushing a tax-increase pack- had simply matched private-sector wage and would help avoid the prospect of age that would generate over $40 billion and benefit growth for the last three years laying off teachers. annually. (For comparison, California (which would have entailed giving And the budget savings are substantial: collected $115 billion in taxes in 2007.) roughly a percentage point less in annual A blanket wage freeze would save New Its centerpiece is a 55 percent increase raises), this year’s state budget gaps York localities $1.6 billion, and New in the sales tax; it also increases taxes on would be smaller by $36 billion, or York State $285 million, in the first year. high-income earners, multinational cor- roughly 3 percent of total tax collections Extending the freeze for additional years porations, alcohol, cigarettes, motor ve - by states and localities. A wage freeze would significantly slow the rise of state hi cles, and oil extraction. now would likely realize similar savings spending. But early indications are that, thanks in a year to 18 months. A pay freeze would especially help to rising voter discontent, lawmakers’ In New Jersey, Democrats are already government agencies that are subject to appetite for higher taxes is waning. The cooperating with Christie on reforms that binding arbitration, which have in some Illinois legislature, despite being con- are anathema to public-employee unions, recent cases seen employees awarded trolled by Democrats, appears likely to including pension cuts for new employ- unaffordable pay increases. Despite an block the tax increase, just as it did last ees and a requirement that all state and ongoing budget crisis at New York’s year. In California, the Democrats’ pre- local employees contribute 1.5 percent of Metropolitan Transportation Authority, sumptive nominee for governor, Jerry their salaries toward health-insurance an arbitrator last year ordered annual pay Brown, says he’ll sign a tax increase premiums. Now he’s trying to get them to increases of 4 percent. sign up for a local-property-tax cap that The average MTA worker makes would pressure school districts (which $68,000 in annual wages, plus $26,000 in are funded mainly by property taxes) to benefits. Commuter-rail employees make rein in salary costs. even more—fully $120,000 in total com- With voter antipathy to tax increases pensation. These workers are allowed to high and growing, politicians in both par- retire on full pension at age 55. To shore ties are likely to find that taking on the up the MTA’s budget, New York law- unions is the path of least political resis- makers recently enacted a 0.33 percent tance. In the next two years, watch for payroll tax that applies in the New York fiscal restraint to become New Jersey’s metropolitan area. But even that is not “Fred has separation anxiety with money.” surprising new export.
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The Constitution, at Last Let us return from a regime of arbitrary power to one of self-government
BY CHARLES R. KESLER
nCe upon a time, and not so long ago, American poli- protect, and defend the Constitution of the United States,” and tics revolved around the Constitution. Until the new other state and federal officeholders take similar oaths. And, Deal, and in certain respects until the mid-1960s, perforce, constitutional questions continue to arise now and then O almost every major U.S. political controversy in - in our politics. But these rarely command center stage. The volved, at its heart, a dispute over the interpretation of the Democrats, for example, condemned George W. Bush’s supposed Constitution and its principles. Both of the leading political par- abuse of presidential war powers, but they never bothered to turn ties eagerly took part in these debates, because the party system their carping into a doctrine; the only remedy they were really itself had been developed in the early 19th century to pit two con- interested in was a change of personnel, and Barack Obama now tenders (occasionally more) against each other for the honor of carries out many of the previous administration’s policies without being the more faithful guardian of the Constitution and Union. a whimper from the Democratic majorities in the House and even from today’s distance, it isn’t hard to recall the epic clashes Senate. that resulted: the disputes over the constitutionality of a national It’s a little different when federal judges—especially Supreme bank, internal improvements, the extension of slavery, the legali- Court justices—are to be appointed. Then the political class focus- ty and propriety of secession, civil rights, the definition and limits es at least momentarily on constitutional matters, usually in such of interstate commerce, liberty of contract, the constitutionality of a tendentious way that at the end of the process everyone is glad the welfare state, the federal authority to desegregate schools, and not to have to think about those issues again for a while. Besides, many others. the kabuki dance of judicial nominations is now well choreo- What’s different today is that, although it still matters, the graphed on both sides. Sonia Sotomayor was a wise enough Constitution is no longer at the heart of our political debates. Latina to sound, in her testimony, like the second coming of Today’s partisans compete to lead the country into a better, more William Rehnquist. hopeful future, to get the economy moving again, to solve our Against this sideshow version of constitutionalism, the tea social problems, even to fundamentally transform the nation. But partiers are lodging a memorable protest. President Obama’s vic- to live and govern in accordance with the Constitution is not the tory in the health-care battle, combined with his administration’s first item on anybody’s platform, though few would deny, after a relentless march toward higher taxes, deeper debt, and bigger gov- moment’s surprise at the question, that of course keeping faith ernment, have led to an outcry for renewing constitutional limits with the Constitution is on the program somewhere—maybe on on the ambition and growth of the federal establishment. The new BETTMANN page two or three. movement’s very name recalls the revolt against an unwritten con- / Presidents still swear (or affirm, for you sticklers) to “preserve, stitution (the British) that had become an excuse for unlimited government, and the replacement of that arrangement by a written Mr. Kesler is a senior fellow of the Claremont Institute, editor of the Claremont constitution limiting government power. For Republicans, the tea
Review of Books, and professor of government at Claremont McKenna College. party has proved tonic. Reminded of arguments they haven’t JUNIUS BRUTUS STEARNS
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made in decades, the GOP’s leaders are denouncing Obamacare congressional majorities had forced Bill Clinton to return a not only as bad medicine but as political malpractice: the deliber- federal entitlement program to the states. Seven years later, ate and wicked violation of constitutional norms. George W. Bush and his Republican congressional majorities At this hopeful juncture, two questions need to be asked. First: passed a new federal entitlement, Medicare Part D, the first since Whatever happened to the Constitution? That is, why did it go into the Great Society and the first ever with no specific source of eclipse in the first place? Second: What is so good about the funding attached to it. Complaints about the ineptitude and intru- Constitution’s strictures, and what guidance and assistance do siveness of the federal government remain a conservative staple, they offer toward their own revival? and the GOP has run through a pharmacopoeia of remedies for the problem without success: tax cuts, tax pledges, tax limits, spend- ing limits, term limits, part-time legislatures, full-time conserva- OR the most part, the Constitution’s diminishment was the tive judges, divided government, and a host of never-enacted, work of modern liberalism, beginning in the progressive barely serious constitutional amendments. F era and accelerating with the New Deal. (For a description Having tried almost everything else, perhaps conservatives of that effacement, see Bradley C. S. Watson’s essay on page 28.) should consider the Constitution again. It is, as they say, no Though the original Constitution has not disappeared entirely, it panacea. (Neither is it a panacea to note that something is no grows less and less relevant, or even legible, to our political class. panacea!) But it could provide the spirit, the principles, the exam- The precise character of the new constitutional arrangements ple, and even some of the institutions that might help to restore may seem mysterious. In the New Deal, liberals called for judicial limited government to America. restraint to keep the courts from blocking legislative experiments The Constitution is, first and foremost, a republican document, at the state and federal levels. From the Warren Court on, they grounded in the people’s authority, even as the people’s authority is cheered judicial activism, at least until the bench threatened to fill grounded in the moral law. The frame of government’s first words, up with conservative judges. The thread connecting their shifting “We the People,” proclaim this, as do many of its particular provi- positions is not simply their fondness for social experiments by sions. “Bills of attainder, ex post facto laws, and laws impairing the whichever branch is mounting them, but a deep-seated attachment obligations of contracts,” the Federalist explains, are prohibited by to a new kind of experimental or historical right. For the Framers, the Constitution because they are “contrary to the first principles of rights were attributes of individual human beings who had been the social compact and to every principle of sound legislation.” endowed with them by nature and nature’s God. The same gov- They are prohibited because they are wrong, in other words, not ernment needed to secure these rights could possibly threaten wrong because they are prohibited. And their wrongness has noth- them, so a constant vigilance was called for to keep government ing to do with the race or sex or class of the person who might be limited to its just powers. For contemporary liberals, rights reflect the object of a bill of attainder or the group that might be ensnared society’s stage of evolution and become real only when they are by an ex post facto law. The Constitution is not racist, sexist, or actualized, i.e., granted and enforced by government. Rights are anti-democratic; though the original Constitution incorporated therefore government-friendly. Indeed, after a certain point of notorious compromises with slavery, it did so to obtain a Republic social evolution, the more power given to government, the more whose principles were anti-slavery, as well as a Union in which, as rights it can and will give to the people. Far from checking, limit- Lincoln put it, the public mind could rest content knowing that ing, and channeling government powers, a proper constitution slavery had been put on a course toward extinction. Elementary should therefore liberate them. Only from Big Government come as these points are, they are essential to rebut the Left’s moral entitlement rights, ethnic and racial preferences, and the newfan- indictment of the old Constitution. Fortunately, Harry V. Jaffa, gled “identity” rights without which liberty would be meaning- Hadley Arkes, and the late Robert Goldwin and Martin Diamond less. The tea party is inherently reactionary, liberals believe, have written copiously and brilliantly on the subject. because it doesn’t grasp that Big Government, far from being a The Constitution establishes a government with two main threat to liberty, is freedom’s greatest achievement. structural principles—federalism and separation of powers—and Conservatives have done their part to sideline the Constitution, each offers handles that citizens may grasp today to help relimit too. In the 1960s they invoked it in opposing Medicare and the national government. Medicaid, while southern Democrats cited it in fighting the Civil Ours is, or was, a regime of enumerated legislative powers, in Rights Act and the implementation of Brown v. Board. This mixed addition to certain implied powers that were “necessary and prop- bag of causes—and the defeat of all of them—helps to explain er” to carry out the enumerated ones. The Founders disagreed conservatives’ subsequent shyness about making constitutional among themselves about the extent of the implied powers (e.g., to claims. Ronald Reagan appealed to the Constitution’s spirit of charter a national bank) as well as about the exact bounds of pres- federalism: In his losing 1976 campaign, he advocated returning idential and judicial authority. But they expected to disagree in $90 billion (a lot of money in those days) in welfare expenditures hard cases and left enough political play in the system for the peo- and programs to the states, and in 1980 he warned that the feder- ple to take sides as they saw fit. Federalism was thus partly a legal al government showed signs of having grown beyond the consent or constitutional doctrine and partly a political one. Nonetheless, of the governed. But by 1984 he was proclaiming, “It’s morning the state governments could serve as rallying points for opposition again in America,” as if the danger had been a bad dream. to federal encroachments, and still can. Though weakened by the Morning quickly turned to night as George H. W. Bush espied Seventeenth Amendment (which destroyed the state govern- a thousand points of light in the sky. His son later ran for president ments’ control of the Senate) and other factors, the states may preaching the four Cs: courage, compassion, civility, and charac- invoke their Tenth Amendment rights and link arms with one ter; Constitution, notice, was not one of them. In 1996, Republican another in demanding that the offending national officeholders be
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voted out and a party of constitutionally faithful ones be voted in. This is the real electoral point of the states’ resistance, on display now in the impressive numbers of states protesting Obamacare. Darwin’s Schemes of neo-nullification (as Matthew Spalding has called them) purporting to declare a federal law null and void in a par- ticular state are based on bad history and worse jurisprudence. Constitution When pointing to the state governments, we mean more than the state attorneys general. When the legislatures and governors object to an unconstitutional federal law, their protest carries more Why progressives took it upon themselves to weight. And the state governments hold in reserve two other con- purify our founding charter of its meaning stitutional powers: to ask Congress for a constitutional amend- ment, and—the nuclear option—to call for a convention of the BY BRADLEY C. S. WATSON states to propose such an amendment if the Congress will not.
n 1863, Abraham Lincoln told his listeners at Gettys burg he Constitution wisely separated the powers of government, that America was “conceived in liberty, and dedicated to the not only to prevent tyranny but also to enable each branch to proposition that all men are created equal.” Decades earlier, T perform its functions well. When the separation of powers I he had said that Americans were the “legal inheritors” of the worked unimpaired, it helped to prevent the disease we call Big “fundamental blessings” bequeathed by the Founders—whose Government. That ugly term implies, among other things, a cen- principles, institutions, and very names they had a duty to pre- tralization of administrative authority in Washington, or, to put it serve. The Founders, he said, bequeathed us a constitutional differently, a bureaucracy that thinks it possesses the wisdom and order in conformity with the eternal cause of civil liberty and the right to administer state and local affairs all around the country. natural rights, and they must therefore shine on in “naked, death- Big Government thus strikes simultaneously at federalism and the less splendor.” Lincoln was profoundly wary of the notion of separation of powers, at the external and internal checks on the fed- progress in government; for him, the Founders stood for fixed eral establishment, inasmuch as a bureaucracy of this sort must principles beyond which progress was impossible. An American combine legislative, executive, and judicial powers to be effective. statesman must therefore look backward, rather than forward, For a hundred years, liberalism has worked to overcome the for direction. constitutional separation of powers, winning many battles—but not long after Lincoln’s death, however, that conception of the not quite the war. In the current crisis, conservative efforts to Founders and their Constitution was already dying, for in the late restore the separation of powers may even be more important than 19th century a new “progressive” constitutionalism began sweep- a campaign to shore up federalism. TARP, for example, was an ing the intellectual classes. According to this doctrine, we were no unprecedented delegation of legislative power to the Treasury sec- longer to celebrate our Founding in the light of things that don’t retary, of all people. It was a desperate, essentially lawless grant change come what may. Instead, we were to cultivate a new resembling the ancient Roman dictatorship, except that the understanding of the Constitution as a living, breathing, evolving Romans wisely confined their dictators to six-month terms. document—with its actual words becoming, in effect, merely an Obamacare is a 2,000-page monstrosity that will need thousands, empty vessel into which the preferences of the age might be perhaps tens of thousands, of pages of additional regulations poured. In this new dispensation, the very notion of fixity, or con- before it can operate. These will be issued by more than a hundred stitutional principle, is some thing that must be overcome, and new bureaucracies, each a source of unaccountable power wield- Lincoln’s understanding of the Founders’ Constitution, to the ed over individual Americans. These multiplying centers of petty extent it is worthy of any consideration at all, becomes a quaint tyranny will accelerate our transformation from a republic of laws anachronism. Pro gres s ives in the political arena have ofttimes to a corrupt regime of muddled and ever more arbitrary power. paid lip service to constitutional principles and traditions, but their To unravel these new structures of unconstitutional power— words ring hollow when understood in the context of the theory and their predecessors, added primarily since the mid-1960s—is that informs progressive constitutionalism. an enormous challenge. But our efforts can start with the restate- This new view of the Constitution arose from two important ment of the constitutional goal, and the resolution that at least strains of American political thought: Social Darwinism and we shall go no farther toward centralizing and combining what pragmatism. As the names suggest, Social Darwinism was the should be separated. Obamacare must be repealed, even if the notion that social institutions must evolve to survive, just as older bureaucracies cannot be. no new TARPs—and let us usher species do in nature, while pragmatism was a system of philo - this one into the grave as quickly as possible. no new delegations sophy that placed a strong emphasis on results over reasoning. of legislative power to unaccountable bureaucracies. We need to Together, these doctrines rejected the notion of timeless truths constitutionalize the government we have, as far as we can: to pare and placed adaptation, experimentation, and change at the cen- it back as much as possible to the functions it was designed to per- ter of American political thinking and rhetoric. By the early 20th form, and where that is not possible, to prefer more constitutional to less constitutional means in every policy area. here is the begin- Mr. Watson holds the Philip M. McKenna Chair in American and Western ning of an agenda for conservative legislators and presidents, and Political Thought at Saint Vincent College and is the author of Living for citizens, to guide us back—or rather forward—to a healthier, Constitution, Dying Faith: Progressivism and the New Science of more responsible, and more constitutional political life. Jurisprudence.
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century, they had coalesced to form the intellectual backbone of “we get over them.” When social arrangements are maximally the progressive movement. experimental and fluid, change is most likely to oc cur—and can According to progressives, intelligent guidance and sociopo- most easily be guided in useful directions. litical reform are always possible, because no problem is inher- Dewey’s elucidation of the new modes of social inquiry drew ent in human nature, which is malleable and perfectible. This upon the thought of a number of Social Darwinist and pragmatist alone is sufficient to distinguish the progressives’ understanding thinkers, including William Graham Sumner, Lester Frank Ward, from the political science of the Federalist—and the Founders’ William James, and W. E. B. Du Bois. These thinkers provided Constitution. the intellectual categories of their age, and today those categories But the progressive critique was even more radical, being part continue to exert a powerful influence over political—and of a larger attack on eternal verities in all spheres. Accor d ing to jurisprudential—discourse. Collectively, they point to a view of the progressive philosopher John Dewey, Dar win’s Originof society as an organism that is constantly in the throes of change Species marked a revolution not only in the natural sciences, but and must adapt or die. Like the Social Darwinists, the pragmatists in the social sciences as well: used naturalistic concepts and emphasized change, while reject- ing what James called the “rationalist temper” that ossifies rather Prior to Darwin the impact of the new scientific method upon than adapts. For the Social Darwinists and pragmatists, looking life, mind, and politics, had been arrested, because between backward—as Lincoln had done—to founding principles, or to these ideal or moral interests and the inorganic world inter- any other fixed standard of political practice, inevitably hinders vened the kingdom of plants and animals. The gates of the gar- the process of adaptation. den of life were barred to the new ideas; and only through this In early progressivism we see what would become a dominant garden was there access to mind and politics. The influence of theme of 20th- and 21st-century American liberalism: the belief Darwin upon philosophy resides in his having conquered the phenomena of life for the principle of transition, and thereby that there is an intelligence, or “method of intelligence,” that freed the new logic for application to mind and morals and life. can be applied to solve all social problems. For a progressive like Dewey, it is this intelligence, which makes no pretense to In the absence of fixity, morals and politics and religion are knowledge except as the residue of observation and pragmatic subject to radical renegotiation and transformation. Ac cor d ing cal culations, that captures the spirit of de m ocracy more than to Dewey, we no longer direct our minds to old questions, any philosophical or institutional analysis. So while all social
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relations are historically situated and in flux, there is one con- this progressive vision, social planners and big-government stant: the application of intelligence as a progressive ideal and schemers become the philosopher kings of the new age. method. As Dewey says, “the only adjustment that does not have Wilson advocated, at different stages in his life, nothing short of to be made over again . . . is that effected through intelligence as constitutional revolution, whether in the form of a modified par- a method.” It is the only simulacrum of God in an otherwise liamentary system or, in a more diluted version, of strong execu- desiccated world of process, evolution, and adaptation. tive leadership of Congress and the nation. All this was in aid of This faith in intelligence and expertise translated into support providing centralized command and control mechanisms that, for a vast state mechanism that would be confidently dedicated under the archaic 18th-century system of limited and distributed to ensuring growth—by means of progressive education, the powers—the system of the Founders—could not coalesce and administrative state, and redistribution of capital. The older become the necessary vanguard to direct the Constitution’s evolu- political science of the founding era was easily swept aside by tion in accordance with the historical process. the progressives; for them, the separation of powers was a doc- trine rooted in stasis, and therefore political death. To concern oneself with constitutional forms and formalities was to give institutions an abiding character they do not deserve. Our 18th- century Constitution was seen as nothing more than an old idea, designed to deal with old questions—so we must get over it.
O be sure, the actual words of the Constitution remain stubbornly fixed (with rare exceptions through the cum- T bersome amendment process), and new provisions can- not be wished or assumed into existence. But those words require interpretation, and just as new institutions, technologies, and ideas arise to accommodate changing times, so too do new methods of interpretation. Through this insight, formal constitu- tionalism was subordinated to the newly politicized categories of change and growth. Long before “the courage to change” and “hope and change” became effective presidential campaign slo- gans, progressive intellectuals helped ensure that “change” would have a central position in American political rhetoric. Like the progressive theorists, the great progressive presi- dents—Theodore Roosevelt, Woodrow Wilson, and Franklin Delano Roosevelt—were impatient with constitutional re- straints and institutional forms. While the exact contours of pub- lic power and policy were not necessarily the same for all of them, they agreed that there are no inherent limits on state Woodrow Wilson—contemptuous of the American constitutional order power. Wilson, the only political scientist to become president, was both theorist and political actor. He was explicitly con- But Wilson and the progressives faltered after World War I, temptuous of the American constitutional order, which he and it was not until the ascendancy of FDR that the language and understood as embodying Newtonian, mechanical ideas and practice of American politics changed for good, such that it institutions that stood in the way of necessary and vital organic would become virtually unrecognizable to the Founders or to growth. For Wilson, the state and its component parts exist only Lincoln. In September 1932, on the campaign trail, FDR called in the context of History, which is understood as a process on Americans to engage in “a reappraisal of values.” He told directed toward an end, rather than a mere record of events. them that the earlier concepts of the Ameri can constitutional Leaders must always embrace change in order to stay on the order would have to be adapted—ever adapted—to suit the con- right side of History. And indeed, some great men stand outside ditions of the day. In the course of saying that, he relied on a the process and must, like nautical captains, periodically adjust striking reconfiguration of the Founders’ constitutionalism. He the position of the ship of state in the current of History—to told his audience that “the Declaration of Independence discuss- ensure that it will continue to move forward, rather than run es the problem of government in terms of a contract. . . . Under aground and decay. such a contract rulers were accorded power, and the people Governance therefore demands an elite class, possessed of a consented to that power on consideration that they be accorded certain kind of historical intelligence and insight. This elite class certain rights. The task of statesmanship has always been the springs into action to clear blockages in the path of historical redefinition of these rights in terms of a changing and growing progress, whether in the form of anachronistic institutions, laws, social order.” In this formulation, rights themselves are decidedly or ideas. These blockages occur when openness and experimen- political rather than pre-political—the gifts of government, not talism prove inadequate; they stand in the way of the increas- God, and therefore eminently negotiable, according to the ingly egalitarian aims of modern politics. Only “intelligent exigencies of the age.
administration,” in Dewey’s formulation, can remove them. In FDR also told Americans that their “task now is not discovery CORBIS
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or exploitation of natural resources, or necessarily producing century the Court steadily expanded its power, as it diminished more goods. It is the soberer, less dramatic business of adminis- the power of legislatures and citizens. It now does this routine- tering resources and plants already in hand . . . of adjusting pro- ly, without course correction or regret. The Court behaves as if duction to consumption, of distributing wealth and products it believes Wilson’s formulation that citizens are mere rustics more equitably.” He announced that “the day of enlightened “handling delicate machinery.” administration has come,” administration in aid of “a more When Alexander Hamilton argued that the judiciary would be permanently safe order of things.” the “least dangerous” branch, no one in the founding generation, And in words that sound remarkably contemporary, he went Federalist or anti-Federalist, imagined that the Supreme Court on to proclaim that “every man has a right to life; and this means would find itself in the grip of a powerful progressive philoso- that he has also a right to make a comfortable living. . . . Every phy. Such a philosophy has for some time suggested to a work- man has a right to his own property; which means a right to ing majority of the Court that it is often the judiciary’s job to be assured, to the fullest extent attainable, in the safety of his interpret the Constitution not in accordance with the document’s savings. . . . The responsible heads of finance and industry, words, or the traditions of Amer i can republicanism, but with the instead of acting each for himself, must work together to achieve demands and direction of History. the common end. They must, where necessary, sacrifice . . . and Progressivism in jurisprudential guise is marked by a disposi- in reciprocal self-denial must seek a general advantage. It is tion to step outside the bounds of Madisonian constitutionalism here that formal government—political government, if you for the sake of faith in the future, rather than the past. This dis- choose—comes in.” position underlies Justice Kennedy’s assertion, in Lawrence v. Commencing with the New Deal, this “political government” Texas (2003), of the importance of an “emerging recognition” of has consistently substituted purported expertise for the invisible a new right to homosexual sodomy. “In all events,” he claims, hand of the marketplace, and in so doing has overcome federal- “we think that our laws and traditions in the past half century are ism and fostered the stunning growth of the administrative and of most relevance here.” It also accounts for Justice Souter’s welfare state. All this has been done in the name of the superin- suggestion in Washington v. Glucksberg (1997) that there is tendence of large-scale social and economic forces. Government no judicially recognized right to die “at this time.” But Souter must ensure that the “change” that enlightened thinkers “hope” recognizes that the Con sti tu tion might require such a thing in for—and believe at a deep level that History requires—is in fact the future: For progressives, the times are always a-changin’. the change we get. And let us not forget the late Supreme Court justice Wil l iam J. In other very contemporary-sounding exhortations, FDR Brennan’s assertion that judges must recognize that “the genius urged citizens to “save our economic structure from confusion, of the Constitution rests not in any static meaning it might have destruction, and paralysis.” According to FDR, we needed “gov- had in a world that is dead and gone, but in the adaptability of its ernment cooperation to help make the system of free enterprise great principles to cope with current problems and current work.” Such “government cooperation,” he claimed, “is entire- needs.” According to Brennan, judges must eschew “a technical ly consistent with the best tradition of America.” understanding of the organs of government” in favor of “a per- sonal confrontation with the wellsprings of our society.” And Brennan’s colleague on the Court, the late Justice Thurgood OWADAyS, of course, when our current president utters Marshall, famously suggested that the Founders’ Constitution similar lines about economic policy and Ameri can “val- was merely a “product of its times,” whose text lies dead in a N ues” or traditions, they ring truer than they did in FDR’s vault in the National Archives. time, since so much of our tradition has been redefined by the Over the last century and more, the progressive syn - thought and language of the progressivism that the New Deal thesis—the melding of Social Darwinism and pragma - institutionalized. Hence FDR’s boldness and inventiveness, in tism—has leveled blow after blow against the Founders’ speaking with a straight face about such a tradition, compared Constitution. The age-old question of “what works” political- with Barack Obama’s far more platitudinous invocations of it, as ly—or what should be given a chance to prove itself—has in his inaugural speech, in which he claimed: “We the People increasingly been divorced from any sense of constitutional have remained faithful to the ideals of our forebears, and true to restraint. What Lincoln considered our “great charter of liberty” our founding documents.” However, these ideals and documents has been relegated to an afterthought, to the extent it is thought must be interpreted in light of the fact that “this is our moment. of at all. This is our time.” Neither party is exclusively to blame for this. While Dem o - But early progressive hopes for a concentration of power in crats trip over themselves to consolidate the administrative state the hands of the executive and its administrative handmaids as a matter of principle, Republicans move more slowly to do were too often dashed by the realities of the Founders’ Con sti tu- the same as a matter of opportunism. But has the battle been tion. Presidents proved not quite powerful enough—and, in the joined? It is, after all, the glory of the American people—or their view of progressives, too beholden to populist sentiments—to defect, from the progressive point of view—that so many of become unchallenged captains of the ship of state. So as the 20th them look backward to the nation’s Founding for guidance. century wore on, the judiciary was tasked with fostering cutting- Conservatives, classical liberals, and tea partiers alike share this edge progressive reform. disposition. Lincoln’s words still resonate. Their founding doc- The Supreme Court has proven to be the only institution that uments, their institutions, and their Founders live on in naked, can, in effect, all but ignore the Founders’ Constitution, since it deathless splendor. It remains to be seen whether the people will has the ability to define the terms thereof. Throughout the 20th stand up, or stand down.
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the general welfare. Treasury Secretary Alexander Hamilton, for instance, argued in 1791 that bounties paid to innovative new The Lawless manufacturing concerns would qualify as spending for the gener- al welfare. But Hamilton understood that the appropriations had to meet a standard of “extending . . . throughout the Union, and not Welfare State being confined to a particular spot.” And for decades, Congress and various presidential administrations went back and forth on It is unconstitutional, but the remedy will whether various “internal improvements” really constituted spending on the general welfare. Was this or that turnpike, canal, come from the people or harbor-dredging really of material benefit to the nation as a whole? Or was it just local pork barrel? BY MATTHEW J. FRANCK One thing seemed certain: The arguments about what did and did not constitute spending on the general welfare—a full-on con- S the welfare state unconstitutional? On a proper understand- stitutional debate—took place in the Congress and the executive ing of the limited government created by our Constitution, the branch. As Hamilton noted, the question of the general welfare answer is yes. Does it follow that in opposing the present embraced “a vast variety of particulars, which are susceptible nei- I scope and future expansion of the welfare state, conservatives ther of specification nor of definition” beforehand, and therefore, should turn to the courts for enforcement of the Constitution’s he concluded, the matter was “of necessity left to the discretion” principles? Not necessarily. There are some constitutional norms of Congress. Not until a century or more after the adoption of the that do not properly fall within the purview of the judiciary, but Constitution did the question whether spending was for the gen- instead fall to us citizens to defend through the power of election. eral welfare come before the Supreme Court, and when it did (e.g., And this may be such a case. on railroad subsidies), the Court simply deferred to Congress. The Declaration of Independence—the “father of all moral principle” in our politics, as Lincoln called it—defines the pur- pose of government in distinctly limited terms: “To secure these He New Deal brought the issue back to life, but only to rights, governments are instituted among men, deriving their just sputter for a moment. The blitz of tax-and-spend legisla- powers from the consent of the governed.” The rights in question T tion in the 1930s prompted legal challenges claiming that are the natural ones to life, liberty, and the pursuit of happiness. Congress was reaching well beyond the general welfare. But in That the Declaration speaks of the pursuit of happiness rather than 1936, the Supreme Court endorsed the practice of deference to happiness itself as a right is an important indication of the Congress, holding that judicial intervention would be appropriate Founders’ commitment to limited government. A government that only where there was “a showing that by no reasonable possibil - is responsible for sustaining the conditions in which we can pur- ity can the challenged legislation fall within the wide range of sue happiness is a limited one. But it is difficult to say what the discretion permitted to the Congress.” limits are on a government that is responsible for our happiness That would be a very hard test for Congress to fail. The follow- itself. To quote Lincoln again, the proper object of government ing year, the Court decided two challenges to the Social Security is “to lift artificial weights from all shoulders; to clear the paths Act, and gave them the back of its hand. First it upheld the new sys- of laudable pursuit for all; to afford all an unfettered start and a tem of federal unemployment compensation. “It is too late today for fair chance in the race of life.” The “welfare state” means more. It the argument to be heard with tolerance that in a crisis so extreme means that government takes the “well-being” of each of us as its the use of the moneys of the nation to relieve the unemployed and responsibility, not merely in regulating our relations with each their dependents is a use for any purpose narrower than the promo- other or in encouraging enterprise, but in redistributing the wealth tion of the general welfare,” said Justice Benjamin Cardozo. Then of the country from some to others. it dealt with the “old-age pensions” in the act. Cardozo again: “The The redistributionist impulse of the Left has always gone discretion belongs to Congress, unless the choice is clearly wrong, against the grain of American individualism and the tradition a display of arbitrary power, not an exercise of judgment.” And this of limited government. This is why Franklin Roosevelt had to was not the case here, he said: “Con gress did not improvise a judg- sell Social Security in 1935 as a scheme of “social insurance” that ment when it found that the award of old age benefits would be would become “self-supporting”—albeit compulsory. The myth conducive to the general welfare.” Why, there were reports galore was that after an initial period of paying the first pensioners, we from executive-branch inquiries and congressional hearings, all would take out only what we “contribute.” But the permanent fact showing the plight of the poor elderly! And that was that. of the system was the transfer of Peter’s money to Paul. What a great distance had been traveled from the early days of Whence comes the supposed constitutional authority to redis- the Republic, when debates over the general welfare involved tribute wealth in the name of “welfare” or “security”? The usual appropriations for spending on things, and whether those things answer is the “general welfare” clause of the Constitution, in were of significant value to the nation as a whole or only to a part. which Congress is granted power to use our tax dollars for the For the welfare state instead involves direct spending on people— “general welfare of the United States.” From early in our history and not in return for some service to the nation, as in the case of, there were arguments about what sort of spending was truly for say, veterans’ pensions. It is not desert, or compensation, that prompts the spending, but a means-tested need, or a mere entitle- Mr. Franck is professor and chairman of political science at Radford University, ment—reaching the age that entitles one to Medicare, for and a blogger at NATIONAL REVIEW ONLINE’s Bench Memos. instance—that suffices. This was the thinking at the heart of
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Franklin Roosevelt’s “Second Bill of Rights,” which pushed aside hollowed out by the welfare state. In effect, the state becomes a the negative rights of the Declaration and the Constitution to make money launderer. What due process would not permit it to do on room for a new set of positive rights—not, that is, rights against a case-by-case basis—decreeing that A’s money shall be directly government, or even rights to have government clear obstacles shifted to B’s pocket—it does instead by gathering tax dollars into from the path of individual enterprise, but rights to have a share of the treasury from A and then disbursing them to B, often in the the material plenty that one’s fellow citizens have poured into the undisguised indecency of a single statute accomplishing both federal treasury. the question whether this new form of rights steps, as in Social Security. could coexist with the old, or would simply vanquish it instead, In the 1937 case on Social Security’s old-age pensions (Hel- has plagued American politics ever since the New Deal. vering v. Davis), Justice Cardozo waved off the obvious wealth- In its direct employment of transfer payments, the welfare state transfer scheme, in which one title of the act imposed a tax and implicates another constitutional principle as well. At the heart another spent the revenues on pensions. He pointed out “that the of the Due Process clause of the Fifth Amendment (and the tax moneys are not earmarked, and that Congress is at liberty to Fourteenth) is a basic rule-of-law principle: that we are to be gov- spend them as it will.” It was mere coincidence that the pension erned only by laws, prospective in character, general in application, provisions of the act describe the other side of a complete trans- and concerning themselves with our conduct. Commands in the action, and that “the two titles dovetail in such a way” as to pre- outward form of law that are retrospective in character, or apply sent the appearance of a single scheme to redistribute wealth. only to particular persons, or concern themselves with who we are rather than what we have done or not done, are properly under- stood not as true laws but as decrees. the bill of attainder is the et the proper remedy may not be judicial. the taxing classic example: a “law” that simply identifies a victim of the state. power of Congress is large and fairly comprehensive, and As Daniel Webster put it in an 1818 argument before the Y the taxes in themselves cannot properly be voided on con- Supreme Court that was frequently quoted in the 19th century, stitutional grounds simply because of the way the funds in the “acts of confiscation, . . . acts directly transferring one man’s estate treasury are subsequently appropriated—any more than my legal to another, legislative judgments, decrees and forfeitures” are not earnings can be declared illegal because of choices I make in how really the law of the land even though they issue from the legis- to spend my money, even if my sole motivation in working to earn lature. And Webster was only summarizing what was then a my income is to spend it illicitly. When the welfare state takes from received understanding. In 1798, Justice Samuel Chase had said Peter to pay Paul, “everyone knows” that the two actions are that “a law that takes property from A. and gives it to B.” is “con- linked—but what “everyone knows” is not sufficient to establish a trary to the great first principles of the social compact,” and thus case on which a court can act under the Constitution. Unfortunately, we cannot really respect it as a law at all. the money laundering of the welfare state effectively avoids the Of course, Chase and Webster understood perfectly well that due-process problem of transferring property from A to B. the law can legitimately result in the transfer of A’s property to B. So we fall back on the question of the proper limits of the “gen- But this happens as the conclusion of an adjudication of some eral welfare” clause. But if there is one thing that would be worse issue between them—such as tort or breach of contract. the trans- than trusting Congress to judge for itself which expenditures are fer may be in cash or in particular belongings, by order of a court for the general welfare, it is trusting the Supreme Court instead. in accord with general rules of law. But a legislative decree that the judgments required appear to be emphatically political A’s property now belongs to B constitutes a failure of the general, ones—matters of discretion and prudence regarding the purposes impersonal rule of law; it takes a shortcut through the law, gov- that a limited government may rightfully pursue, rather than ques- erning the particular case without a fair adjudication of any wrong tions of particular individual rights, injuries, and remedies that on A’s part or injury on B’s part. this is virtually the definition courts can readily adjudicate under neutral principles. this is not of “arbitrary”—unexpected, unprincipled, and untested by any to say that real constitutional principles are not at stake. they are. accepted rule of general application. It is also a legislative inva- But the Constitution contains some principles properly confided sion of the judicial function of settling disputes between indivi- to judges, and others properly confided to elected officials and the duals under the rule of general laws. voters to whom they answer. Here we seem to have the latter. But what is the transfer-payment bureaucracy of the welfare As James Madison said in TheFederalist, the Constitution’s state if not a great Rube Goldberg machine for the accomplish- meaning would have to be “liquidated and ascertained by a series of ment of such expropriations from A for B’s benefit, multiplied by particular discussions and adjudications.” this would be the work many millions on a daily basis? What makes the welfare state such of all the branches of government, and of the people themselves. a large-scale engine of expropriation and transfer is that it does not What cannot be adjudicated must be discussed—in the two houses rely on the traditional mode of the decree, moving property from of Congress, in the executive branch, on the hustings, and at the some named individuals to others, or even from one named class kitchen table—for the Constitution belongs to us, not the judges. to another. Instead it obeys the forms of law, relying on the power With Obamacare now the law of the land, a massive expansion to tax from one and appropriate to the other. this enables a vast of the welfare state is upon us. We who know it for what it is—an increase in the numbers of people deprived of their wealth, and of unconstitutional excrescence on our tradition of limited gov - those provided with the wealth so obtained, now called welfare ernment—are understandably impelled to try every avenue of benefits. Yet while the arrangement has the outward form of law, redress, judicial as well as political. But we should beware of hav- the fact that tax dollars are spent directly on persons (again, with ing too much faith in judges. And we should never confuse what no consideration of value in return, or of past service now reward- judges will tolerate—for good reasons as well as bad ones—with ed) rather than things, means that the substance of lawfulness is what the Constitution requires us to accept as legitimate.
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parties. This last constraint implicates the constitutional dimensions of such justiciability doctrines as standing, ripeness, and mootness. Supreme The Supreme Court recognizes these constitutional limits on its power and generally adheres to its understanding of them. Notably, even Marbury v. Madison was a case, most fundamentally, about the Arrogation constitutional limits that Article III places on the Court’s authority. The congressional enactment purporting to confer on the Court a power to issue writs of mandamus in cases of original (as opposed to The Constitution is too important to appellate) jurisdiction was declared unconstitutional in Marburypre- leave to judges cisely because, in the Court’s view, it would have violated Article III for the Court to exercise original jurisdiction in such cases. Moreover, there is good reason to believe that the Constitution BY JACK WADE NOWLIN places implied limits—deriving from its basic structures—on the Court’s interpretive authority: As a matter of constitutional design, he Supreme Court has for decades claimed to be the final the exercise of judicial power must not conflict with the rightful arbiter of the meaning of the Constitution—asserting a exercise of authority by other institutions of government. In partic- “judicial supremacist” understanding of the Constitution’s ular, traditional understandings of the Constitution’s design for gov- T distribution of interpretive authority among the institutions ernment emphasize a sharp separation of powers among the three of government. This claim does not represent the predominant view branches, a broad expanse of reserved power for the 50 states, and of the Framers, and it has been contested by leading statesmen since wide political discretion in policymaking for democratically repre- the founding era. James Madison, Thomas Jefferson, Andrew sentative institutions. Jackson, and Abraham Lincoln are among the presidents who assert- In order to avoid usurping the authority of other institutions of gov- ed the coequal authority of the political branches to interpret the ernment, judicial power must be exercised in a traditionally restrained Constitution, a position known as “departmentalism.” fashion, with the Court grounding its decisions firmly in constitution- The growing acceptance of judicial supremacy in the modern al text, history, and tradition. Thus the Supreme Court’s exercise of an era has made it much harder for the political branches to check the expansive or activist power to invalidate laws on controversial policy Court effectively when it exceeds its authority. A few years after the grounds is properly seen as an arrogation of governmental power in Supreme Court wrongly held, in 1857, that a congressional prohi- violation of the basic structures of the Constitution. As Justice Black bition of slavery in the federal territories was unconstitutional, in observed in his celebrated dissent in Griswold v. Connecticut: its infamous Dred Scott decision, the departmentalist Lincoln administration and Republican Congress responded by enacting an There is no provision of the Constitution which either expressly or even broader prohibition of slavery as an exercise of their inde- impliedly vests power in this Court to sit as a supervisory agency over pendent authority to interpret the Constitution. The political acts of duly constituted legislative bodies and set aside their laws branches, in effect, dared the Court to declare this new legislation because of the Court’s belief that the legislative policies adopted are invalid, as it had the old—and the Court declined to do so. Today, unreasonable, unwise, arbitrary, capricious or irrational. The adoption the political branches are unlikely to assert such robust interpretive of such a loose, flexible, uncontrolled standard for holding laws uncon- authority. They limit themselves to reproving the Court for its way- stitutional . . . amount[s] to a great unconstitutional shift of power to the ward decisions and hoping that the appointment of new justices courts which I believe and am constrained to say will be bad for the may lead the Court to correct itself. courts and worse for the country. Subjecting federal and state laws to even so, the most insidious effect of judicial supremacy’s ascen- such an unrestrained and unrestrainable judicial control as to the wis- dance is not the way it forecloses methods of checking judicial dom of legislative enactments would, I fear, jeopardize the separation power, but rather the way it obscures the most important reason the of governmental powers that the Framers set up and at the same time political branches have for exercising such checks: defending the threaten to take away much of the power of States to govern them- Constitution from the Supreme Court. When the Court in its activist selves which the Constitution plainly intended them to have. decisions usurps the legislative authority to make public policy, it not only misinterprets the Constitution, it violates the Constitution’s The practice of judicial supremacy tends to obscure the fact that basic structural principles and contravenes the limits the Consti - the Court violates the Constitution when it exercises expansive judi- tution places on the judicial branch. cial power. This is so because the Court’s widely accepted role as There should be no doubt that the Court is constrained by a wide ultimate interpreter of the Constitution clouds the constitutional sta- variety of constitutional limits, just as the political branches are. tus of constraints on the Court’s power. Seen through the distorting These constraints apply to the Court’s exercise of original juris - prism of judicial supremacy, debates about the proper scope of judi- diction, the scope of its subject-matter jurisdiction, its authority to cial authority under the Constitution proceed as if the question were create federal civil and criminal common law, and its power to hear one of judicial authority over the Constitution—the exercise, in citizen suits against sovereign states. The Constitution also prohibits effect, of a “supraconstitutional” judicial power to constitute and the Court from issuing advisory opinions—it limits the Court to reconstitute the substance of the Constitution subject only to per- resolving only true “cases” or “controversies” involving adverse ceived political constraints such as respect for the democratic process or the conventions of legal argument. Mr. Nowlin is an associate professor of law at the University of Mississippi School There are two related reasons for this distortion. First, the Court’s of Law. claim of interpretive supremacy can easily lead one to assume that
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the Court is the supreme arbiter of its own authority. The judicial supremacist imagines that the Court, simply by issuing a decision, implicitly affirms the constitutionality of its actions, thereby resolv- Our Defunct ing in its favor the question of whether its decision violates the Constitution. Judicial actors, then, are free to decide whether to inter- pret the Constitution in a traditional legal fashion or to “interpret” it Commercial in an activist manner so as to invade the authority of legislatures. On this view, the Court’s exercise of judicial power is inherently self- authorizing: The only constitutional constraints on courts are those Constitution that the judicial branch itself articulates and accepts. Significantly, this perspective directs our attention away from a serious discussion of the Constitution’s limits on the judiciary by suggesting that any Federalism and originalism are not enough issue of constitutional limits is to be resolved exclusively by judges. to restore it Second, the judicial-supremacist view casts the Court as the insti- tutional protector of the Constitution and other governmental actors BY MICHAEL S. GREVE as potential violators of it. This conception of the judiciary’s role is self-reinforcing (and misleadingly so), because the combination of the Court’s privileged position over political actors and its institu- here is, or there once was, such a thing as the “commer- tional self-interest in expanding its power leads it systematically to cial Constitution.” Most of the powers and prohibitions ignore its own constitutional violations and exaggerate the viola- specified in the Constitution concern commercial mat- tions of other political actors. Indeed, when the Court seizes policy- T ters: commerce itself, obviously, but also patents and making authority from legislatures, in violation of the Constitution, copyrights, bankruptcy, taxation, tariffs and duties, the coinage of it articulates its violation as a supremacist vindication of the Con - money, contracts, and property rights. enough of those provisions stitution—as the judicial invalidation of allegedly unconstitutional have fallen into desuetude to suggest that we no longer have a legislative action. Thus the judicial-supremacist perspective directs commercial Constitution. our attention away from the constitutional limits on judicial power Conservative jurists should be favorably disposed to restoring and toward the constitutional limits on everyone else. it, not simply because doing so would help to protect commerce In short, the lens of judicial supremacy keeps judicial constitu- against a government that seems to know no restraint, but also for tional violations out of focus. a deeper reason: “Structure is everything,” Justice Scalia has in- These points explain how the practice of judicial supremacy has sisted, and the basic stuff of the commercial Constitution is struc- distorted our legal intuitions, but they present no substantive legal ture—the allocation of powers to and placing of limitations on obstacle to recognition of judicial constitutional violations. As dis- particular branches and levels of government. The commercial cussed, the Constitution plainly limits the Supreme Court’s power, Constitution thus offers an antidote and alternative to the airy ab- and the Court’s exercise of expansive judicial power violates the tra- stractions and aspirational “rights” of contemporary constitu tional ditional understanding of the Constitution’s structures. Moreover, law. Implementing a constitutional program along these lines, as a matter of both constitutional supremacy and checks and bal- however, would require a serious rethinking of two central con- ances, no institution of government should be thought to have the servative legal tenets: originalism and federalism. power unilaterally to “authorize” its actions if they violate the The Constitution’s individual clauses presuppose some general Constitution. In our system of government, it is the Constitution comprehension of what the structure as a whole is supposed to itself, not the Court, that establishes the supreme law of the land. do. happily, the basic thrust of our constitutional commercial even so, the subtle influences of judicial-supremacist thought arrangement is perfectly clear: free trade and commerce across continue to pervade constitutional debate today. Too often, even state borders. To that end, the Constitution prohibits state tariffs advocates of judicial restraint understate their objections to judicial and “duties of tonnage,” state discrimination against citizens of activism, using the soft and imprecise rhetoric of “imprudence” and other states, state laws impairing the obligation of contracts, and “illegitimacy.” But the Court’s activist rulings in such decisions as states’ exploiting the citizens of other states by means of taxation Lochner v. New York and Roe v. Wade are not merely extravagant or regulation (an implied rule commonly known as the prohibition exercises of judicial power or dubious ascriptions of constitutional against “extraterritorial” state laws). meaning out of step with traditional standards of constitutional inter- Congress can, in theory, block states’ interfering in business pretation. Such decisions usurp legislative power in violation of the under its power to regulate interstate commerce. however, leg- fundamental structures of the Constitution. The central objection to islative interventions can oppress as easily as liberate commerce. such actions by the Court is that they violate the Constitution. In fact, the odds of protecting commerce by means of federal leg- Proper articulation of judicial activism’s constitutional infirmities islation are much worse than 50/50. The Constitution’s checks and is a necessary precondition of building political support for defend- balances are designed to make federal legislation deliberate and ing the Constitution from the Court. The political branches have the cumbersome, the better to prevent factional schemes and fevered ultimate power and responsibility to resist unconstitutional judicial responses to perceived crises. Those checks, though salutary in the encroachments on federal and state legislative authority. Just as ordinary course of business, prove debilitating when the task is to war is too important to be left solely to generals, the Constitution is beat back state measures that hobble commerce. Ingeniously, too important to be left solely to judges. That was the belief of the founding generation, and time has proven them right. Mr. Greve is John G. Searle scholar at the American Enterprise Institute.
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therefore, the Constitution entrusts the protection of commerce in interstate commerce against judicial bias in a plaintiff’s home-state the first instance not to Congress but to the federal courts. courts. In commercial cases in which no state statute and no feder- The viability of this arrangement depends on the federal courts’ al law or constitutional provision applied, the Court decided these elaboration of the commercial Constitution by way of doctrine and “diversity” cases under a federal general common law—not under constitutional common law. That is essential because states and state law. The constitutional guarantee of an unbiased court, the the- legislators have every incentive to exploit the commerce of the ory went, implied a guarantee of access to an unbiased body of law. United States and to evade the rules that protect it. The protection of the Constitution’s guarantees against state commercial circum- vention figured prominently in the Supreme Court’s 19th-century f this constitutional universe is unfamiliar, that is because book of business. Constitutionally barred from taxing imports, the it was wiped out by the New Deal’s very different Con - states endeavored to tax importers instead; the Supreme Court I stitution. Contrary to the misunderstanding that is especially enjoined them from doing so in 1827’s Brown v. Maryland, lest the widespread among conservatives, the New Deal did not simply constitutional prohibition become an empty letter. unleash the federal government’s power on the states and the No specific constitutional clause barred states from taxing the private economy. Rather, it expanded government power at all instruments of the United States, including its central bank; but levels, state as well as federal. And to that end, it effectively because “the power to tax involves the power to destroy,” the repealed the commercial Constitution that had governed the Supreme Court supplied a constitutional common-law rule, United States for roughly 150 years. inferred from the general structure of the Constitution, to block Supreme Court diversity jurisdiction became optional in 1928, and, over the ensuing decades, the federal courts created a slew of “abstention” doctrines that oblige federal courts to defer to state law, and to state courts—even when federal jurisdiction plainly exists. The federal general common law was summarily abol- ished—as unconstitutional, no less—in Erie Railroad v. Tompkins, the 1938 decision that effectively commands federal courts hear- ing diversity cases to follow the state law chosen by the plaintiff. Of the entire constitutional edifice, only the dormant Commerce Clause and federal preemption law survive, and those only in a greatly weakened form. The dormant Commerce Clause was stripped of its “extraterritoriality” prohibition: While outright pro- tectionism is still prohibited, states may tax, regulate, and exploit other states’ citizens and businesses virtually without hindrance. (Kansas may regulate the Internet so long as it does not overtly favor its own citizens.) federal preemption lost its presumption of exclusivity: Its post–New Deal touchstone is the “intent” of Congress, and, unless Congress has made its preemptive intent unmistakably clear, the Court will construe federal statutes against Justices Scalia and Thomas preemption and in favor of the states’ “traditional” police powers. the tax in the 1819 decision M’Culloch v. Maryland. Likewise, no It is to this jurisprudence, driven by the New Deal’s eagerness to constitutional clause specifically prohibited New York from unleash interest-group politics and to enhance the redistributive establishing a steamship monopoly to the exclusion of a rival power of government at all levels, that we owe our current chaotic steamship operating under a federal license; but in 1824’s commercial order. Economic actors must now deal with a cascade Gibbons v. Ogden, the Court read the license, which essentially of conflicting and compounding demands and regulations, inflicted served to free U.S. vessels from the obligations imposed on for- by a multitude of semi-autonomous institutional actors and a whol- eign ships, as also forbidding state monopoly and discrimination ly autonomous litigation industry. first prize often goes to the most among domestic carriers. This position later developed into what exploitative regulator. The Erie Railroad regime, for example, pulls is known as “implied federal preemption,” a doctrine holding that, lawsuits into the most pro-plaintiff jurisdiction available: hence the unless Congress declares otherwise, any federal law operates to litigation explosion. At the same time, current practices regarding the exclusion of any state law in the same field, regardless of preemption law and the dormant Commerce Clause reward the state whether the two conflict. further, Chief Justice John Marshall’s that proves most creative in taxing and regulating outsiders. Gibbons opinion attributed “great force” to the notion that the What is the correct conservative response to this transforma- Commerce Clause, even in the absence of congressional legisla- tion? By some conservatives’ lights, the New Deal metamor - tion, erects a judicially enforceable barrier against protectionist phosis hasn’t gone far enough. Justices Scalia and Thomas have state legislation. This “dormant Commerce Clause” would in later denounced the dormant Commerce Clause as a pure judicial decades play a central role in preventing states from doing indi- invention. Justice Scalia would still enforce the doctrine, on stare rectly what the Constitution bars them from doing directly. decisis grounds, against overtly discriminatory state laws and The Supreme Court’s principal means of making the rules of the against laws identical to those invalidated in the past. That is not AFP commercial Constitution stick was its “diversity” jurisdiction— much of a restraint: Even the stupidest state legislator can write a / that is, jurisdiction over disputes between parties from different discriminatory statute in neutral language. Justice Thomas would
states. The exercise of this jurisdiction protects parties engaged in abolish the dormant Commerce Clause altogether and instead MANDEL NGAN
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protect interstate commerce under the explicit provisions of the trial lawyers’ Bill of Rights, suspicion hardens into certainty. The Import-export Clause, and perhaps under the Privileges and question is, What went wrong? Immunities Clause. Good luck with that: The Import-export Clause provides protection against some, but not all, protectionist taxes, while it offers no protection from equivalent regulations; ne obvious source of error is an excessively clause- the P&I Clause, for its part, protects individuals but not corpor - bound, literalist originalism. On this view, the specific ations. The entire point of the dormant Commerce Clause is to O clauses of the Constitution and their historically settled block obvious state maneuvers to circumvent the constitutional meaning are the Constitution, and the will of the Congress must protections enjoyed by businesses. To eviscerate the doctrine is to be the declared will of the Congress. This is what drives original- expose all interstate commerce to unchecked state exploitation. ists’ hostility to the dormant Commerce Clause and to federal pre- The Court’s avowed originalists have taken an equally radical emption. It also drives their enthusiasm for Erie Railroad, which view of federal preemption. Last year’s decision in Wyeth v. Levine originalist justices and scholars have sought to establish as a was occasioned by a tragic injury to a patient whose doctor and bulwark against judicial overreach even when the decision mani - nurse, in an act of flagrant malpractice, had administered a drug in festly does not apply. Structure may be “everything,” but hide - direct contravention of a warning label that conformed with—and bound originalism holds that judges may do nothing to make was practically dictated by—Food and Drug Administration (FDA) structure work: This would smack of raw politics and judicial requirements. even so, the Court decided that federal law does imperialism. So long as this Manichean view prevails, the com- not preempt tort lawsuits under state law. FDA-approved warn- mercial Constitution will remain a dead letter. ings, the 6–3 majority said, are a mere federal minimum; state A second error, pervasive not only among jurists but among courts and lay juries can do better in determining the adequacy of conservatives more broadly, is the misguided expectation that fed- drug labels. In a breathtakingly expansive concurring opinion, eralism will automatically translate into smaller, more responsible Justice Thomas inveighed against any implied preemption and government. The demise of the commercial Constitution exposes insisted that federally regulated drug manufacturers have no “unfet- the commerce of the United States to relentless exploitation by The entire point of the dormant Commerce Clause is to block obvious state maneuvers to circumvent the constitutional protections enjoyed by businesses.
tered right, for all time, to market [a] drug with the specific label that trial lawyers who shop for hellhole jurisdictions, by attorneys gen- was federally approved.” That form of originalism recasts pre - eral and treasurers who have become rainmakers for their states, and emption law as something it has never been. Gibbons v. Ogden by crusading state lawmakers who inflict costly global-warming directly confronted the argument that a federal coastal trading experiments on the entire nation. In that world, “federalism” is license—a routine license of far less obvious preemptive force more a menace than a blessing. What is often called for is central- than a painstakingly considered and negotiated drug label— ization—not the bureaucratic centralization of no Child Left “gives no right to trade.” Marshall rejected that argument. By the Behind or Obamacare, but legal centralization. For example, air- lights of Justice Thomas’s Wyeth opinion, Gibbons was either line and trucking deregulation worked because states’ rights were decided wrongly or should have been decided under the dormant overruled under a single federal rule: The states are categorically Commerce Clause—if, pace Justice Thomas, such a thing exists. barred from re-regulating the rates, routes, or services of common Also last year, the Court held that the lending practices of federal- carriers. By the same token, if one wants to enable individuals to ly chartered financial institutions are subject to open-ended fraud purchase health insurance across state lines, the countless interests investigations and lawsuits by state attorneys general. ever since and regulators who now oppose that reform will have to be 1864, the national Bank Act has shielded the banking operations stopped from regulating and litigating it into the ground after the of federally chartered institutions against state investigation and fact. Misapplied federalist thinking would make that impossible. prosecution, leaving state banks subject almost exclusively to state Congress is built to promote interest-group politics and paro - supervision. This dual banking system reflects the 19th-century con- chial exploitation. The Roberts court, to its credit, has cut back sti tutional understanding, exemplified by M’Culloch v. Maryland, some of liberalism’s more exotic legal flora. If its interventions that any given set of private transactions should be regulated by the have remained diffident and ad hoc, that is because the justices federal government or by states—but not by both. Justice Scalia’s have so far failed to recognize that the task of disciplining state- 5–4 majority opinion in Cuomo v. Clearing House Association, by-state factionalism and exploitation is, by constitutional design, joined by the Court’s liberal bloc, effectively ends that sensible sys- principally that of the judiciary. A jurisprudence that would “let tem. M’Culloch hovers over Justice Scalia’s opinion, but is not cited Commerce struggle for congressional action to make it free” has therein. By the lights of Cuomo, it may no longer be good law. already pronounced it dead, as Justice Robert Jackson wrote in A jurisprudence that renders John Marshall’s commercial a dormant–Commerce Clause case in 1941. not an original or Constitution obsolete is probably mistaken. And when that same particularly conservative insight—but one that originalists would jurisprudence turns the Constitution and its federalism into a do well to remember.
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that the ultimate good desired is better reached by free trade in ideas.”) The Cultural The problem with this approach is that it is difficult to prevent such broad skepticism from being applied to the principles of freedom themselves. The American Founders had a deep faith in Preconditions of human reason. They understood the need to have a solid founda- tion for republican government in principles confidently held to be true—such as the self-evident truths of the Declaration of American Liberty Independence—in order to avoid placing society on the shifting and unstable grounds of relativism or skepticism. Tocqueville argued that without common beliefs—“dogma” or Rich soil is required for the health of this plant opinions entertained on trust and without discussion—no society can prosper. And he added that virtually all human actions “orig- BY CHRISTOPHER WOLFE inate in some very general idea men have conceived of the Deity, of his relation to mankind, of the nature of their own souls, and of their duties to their fellow creatures.” Doubt about these “first hE oft-noted fault line of the conservative movement principles” leaves men confused and tempted to think no more lies between economic conservatives and libertarians, about them, and “such a condition cannot but enervate the soul, on one hand, and social or cultural conservatives, on the relax the springs of the will, and prepare a people for servitude” T other. The usual requirement for broad conservative (as existentialist literature of the 20th century exemplified— electoral success is a “fusion” of these two wings. The most prin- imagine the kind of democratic citizen the protagonist of Ca - cipled ground for that fusion—something other than the simple mus’s Stranger would be). desire to win elections—lies in the recognition that, if liberty is An important corollary of the belief that men can know truth is the prime leitmotif of American conservatism, there are cultural confidence that it is really possible to interpret documents, such preconditions necessary to make that liberty (political, economic, as the Constitution. Contrary to contemporary hermeneutical and cultural) possible and fruitful. theories, the Founders thought that it was possible to interpret a This topic is not a new one. Any discussion of it is likely to end written document without the interpreter’s reading his views into up being a long line of footnotes to certain classics of political it (though that was a constant danger to be resisted). Without this science, for example, Aristotle’s Politics, The Federalist, and confidence, the very act of writing a constitution would be an act Tocqueville’s Democracy in America. of blind faith. In Federalist No. 2, John Jay points out some of the more obvi- The capacity for civil and political association. Americans ous elements of the common culture shared by Americans. This take many of their capacities for granted. It is simply part of our common culture based on ancestry, language, religion, political ordinary experience, for example, that people organize voluntary principles, mores (manners and customs), and shared history associations to accomplish a multitude of purposes, and that they facilitated the trust—the “civic friendship”—that makes political deliberate about matters of common concern—both within those community possible. (The absence of such a common culture is civil associations and within their political institutions, from an obvious reason for the impossibility of any legal or political school boards and town councils up through Congress. That is “world order” today.) Of course, there were certain tensions, not true of all societies, especially those with rigid hierarchies too—slavery, agrarian vs. commercial interests, coastal vs. interi- and those ruled strictly by custom. Even something as simple or regions—which the Founders had to manage by various com- as organizing and running a committee meeting is beyond the promises (some more successful than others). ex perience of people in many cultures. What are some of the cultural factors that have provided a Tocqueville pointed out that Americans have a real genius for foundation for American constitutionalism? Let me focus on a voluntary association, as well as political association. The sources few of them: confidence in reason, the capacity for joint deliber- of this capacity are varied, including the need of pioneer commu- ation and action, a spirit of independence and self-reliance, nities to work together to survive under harsh physical circum- sexual morality supporting the family, moderation of the taste stances, the congregational character of early Ameri can religious for physical well-being, and a certain kind of religion. communities, and the default position of local governance given Faith in man’s capacity to know truth. Some people think that that the home country was so far away. And its consequences, in the best ground for protecting liberty is a fundamental skepticism a society based on equality of conditions, are enormous. It makes about whether it is possible to know ultimate truths. Such skepti- possible effective action by non-governmental associations and cism, they think, undermines ideology and diminishes the likeli- promotes decentralization within the government, serving thereby hood that people will feel so sure of their beliefs that they will try as an invaluable bulwark against despotism. to impose them on others. (Think of Justice holmes’s comment A spirit of independence and self-reliance. The protection of in Abrams v. U.S. (1919): “But when men have realized that time liberty requires that a citizenry have a deep attachment to it, es - has upset many fighting faiths, they may come to believe even pecially in the face of temptations to trade it for other apparent more than they believe the very foundations of their own conduct goods. Tocqueville presciently noted the potential conflict be - tween liberty and equality when the latter is understood as equal- Mr. Wolfe is emeritus professor at Marquette University and co-director of the ity of condition. A mild democratic despotism might be willing Thomas International Center (www.ticenter.net). and able to take on the responsibility of providing people with
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social equality and material well-being, as long as they are physical well-being would likely render men insensitive both to willing to give up their political freedom and cede control over the importance of political life (to defend their freedom) and to their lives to a vast, provident bureaucracy—and a democratic “those more precious possessions which constitute the glory and citizenry excessively attached to equality over liberty might greatness of mankind” (the truth, beauty, and goodness found in accept the offer. the arts, intellectual life, and religion). The strong inclination of The cultural emphasis on freedom and independence helps to democratic citizens to pursue well-being had to be kept moderate explain some of the differences between European democracies in its goals (greater prosperity in small steps, not great leaps) and and the U.S. For one, European nations, even after the overthrow prevented from dominating life. of the ancien régime in the French Revolution, never completely Note that sexual morality and moderation in the taste for phys- eliminated the old “culture of deference” to “the higher orders”— ical well-being both relate to temperance (resisting the morally which still lingers on palpably with respect to the European distorting effects of desiring pleasure), which is a precondition of Union elites. Americans, by contrast, never lived in a feudal soci- fortitude (resisting the morally distorting effects of fearing pain). ety, and they experienced substantial social equality from their And Aristotle’s paradigmatic case of fortitude is the willingness beginnings. Even the very attenuated deference to American of citizens to defend their country, which entails the possibility of leaders in the first few decades was gone with the Jacksonian making the ultimate sacrifice of dying in battle. No nation whose democratic revolution. Moreover, U.S. political life is distinctive people are unwilling to risk this sacrifice, when necessary, can because of the many access points at different levels of govern- survive indefinitely in the world as we know it. (Note the remark- ment, which citizens can and do take advantage of. Americans ably short-lived “end of history” announced at the conclusion of and Europeans both get an every-few-years choice between polit- ical parties in major national elections, but Americans have many more additional opportunities for participating directly in poli- tics, for example, on school boards, in town-council meetings, at state legislative hearings, and so on. Another difference between America and Europe is that Amer- icans are less likely to confuse the responsibility of government to promote the common good by fostering conditions in which citi- zens can support themselves and their families with a supposed responsibility of government to provide that support itself. Sexual morality in support of the family. Stable families are the foundation of society. It is essential that the sexual passions be tamed and channeled toward the formation of the families that will raise the next generation of citizens and shape their charac- ter in support of free constitutional government—liberty under law. Tocqueville notes that travelers to America all agree that “morals are far more strict there than elsewhere” and that the con- jugal tie is “very strict.” Laws regarding sexual morality (though Alexis de Tocqueville their earlier harshness required attenuation) were examples of Tocqueville’s observation that Americans combine the spirit of the Cold War, which seems so incredibly dated after 9/11.) The religion and the spirit of liberty admirably. A fixed moral world prominent British jurist Lord Patrick Devlin once put the issue is necessary to provide a framework for the flux of political free- this way: “A nation of debauchees would not in 1940 have dom, and the family is the first community in which children responded satisfactorily to Winston Churchill’s call to blood and learn about responsibilities and rights, getting along with others, toil and sweat and tears.” and the importance of contributing to the common good. Religion. Tocqueville’s observation of the importance of reli- Moreover, as Jennifer Roback Morse has argued, failed fami- gion (both for society and for individuals) is frequently noted. lies contribute in a multitude of ways to the pressure for expand- Religion supports the necessary moral framework for the politi- ing government power, as our experience with the decline of cal world, and it mitigates some of the dangerous tendencies of family stability and the rise of the modern welfare state suggests. democracy, such as individualism and materialism. Moderation in the taste for physical well-being. Tocqueville, a Less often noted is that Tocqueville’s arguments apply not to student of the great French political philosopher Montesquieu, “religion” generically, but to a certain kind of religion—such as knew of the danger that a “spirit of commerce”—in which men the Christianity of Americans. The benefits of religion that worked diligently to produce more wealth—could easily give Tocqueville sees in the Protestant Christianity of early America way to a “spirit of luxury,” in which men were more focused on would not be found in a theocracy, on one hand, or in a purely the consumption of wealth than its production. An excessive care civil religion, on the other. Theocratic rule (religion using poli - for worldly welfare—what today we call “consumerism”— tics for its purposes) would forfeit the important benefits that would likely end up impairing that welfare. Yuval Levin observes Tocqueville finds in the separation of church and state—benefits that the “case for capitalism” requires an understanding of the for both religion (insulating it and protecting it from political pas- need for “prudence, restraint, industry, frugality, sobriety, hon- sions) and politics (keeping it free of religious passions). A pure- esty, civility, and reliability . . . in a word, discipline.” ly civil religion (politics using religion for its purposes) would Moreover, Tocqueville argues that absorption in the pursuit of forfeit the benefits of American Christianity’s refusal simply to
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accommodate democracy’s tendencies: If religion did not try to with many of the moral qualities—hard work, self-reliance, tem- attack individualism and the desire for material well-being head- perance—associated with a dominantly agrarian nation. on, it certainly did work to mitigate or moderate them. Of course, the Framers’ assumptions have since been blown The Protestant Christians of Tocqueville’s America may have away. Since the 1960s, in particular, social mores have changed disagreed on some dogmatic matters, but they were in broad substantially, traditional values having been peeled away by dis- agreement on moral matters. That is why Tocqueville could say affected intellectual elites, with the aggressive support of media that religion was the safeguard of morality, and morality the and judges committed to an agenda of general sexual autonomy “surest pledge of the duration of freedom.” In this respect, and dismissive of popular doubts or opposition. As Justice Scalia Tocqueville was simply repeating the famous advice of Wash - famously pointed out in Romer v. Evans (1996): “When the Court ington in his Farewell Address. (Note, however, that such moral takes sides in the culture wars, it tends to be with the knights agreement has evaporated, as modern Christians have accommo- rather than the villeins—and more specifically with the Tem - dated evolving modern morality at different rates.) plars, reflecting the views and values of the lawyer class from which the Court’s Members are drawn” and in opposition to “the more plebeian attitudes that apparently still prevail in the United Ne of the great questions confronting the conservative States Congress” and in various state legislatures. Moreover, movement is: “how are these preconditions to be even a return of such issues to the states would not (contrary to O assured?” This question takes on greater urgency as we some conservatives’ hopes) help much in today’s world, where see cultural changes that may endanger them. economic conser- culture is shaped much more by broad national (and even cross- vatives and libertarians incline toward the view that these pre- national) forces than by local or regional ones. The Founders could more or less take for granted social mores that would support the traditional family and channel sexual activity in directions that reinforced it.
conditions are best (perhaps only) fostered by non-governmental And, at the same time, the nation’s unprecedented affluence institutions, by “civil society.” Social and cultural conservatives has unleashed a powerful consumerism that works to undermine incline toward the view that government must take an active habits of temperance (think of rampant credit-card debt) and self- (perhaps prominent) role in promoting or fostering these precon- reliance (think of government enabling of the housing bubble). ditions. Both sides are right (except for the parenthetical “per- haps”)—which is what makes “fusion” possible. Government can hardly create these preconditions itself, out of whole cloth, he possibility of promoting the preconditions of healthy but neither is it irrelevant to their sustenance. It has a role, but a liberal democracy is greatly constrained today by pro- limited one. As Tocqueville noted, there is a reciprocal relation T found cultural divisions among the citizenry. There is a between laws and mores, both of which are essential—but, of the deep chasm between “red-state” and “blue-state” Americans, and two, mores are more fundamental. many so-called moderates lack coherent views on important One of the changes in American life that endanger the cultural moral-political issues like abortion and marriage. preconditions of the Constitution is the decline of the original Some cultural conservatives seem at times to believe that laws constitutional form of federalism. The Framers established a lim- or social compulsion can resolve social problems by compelling ited federal government whose primary responsibilities were the obedience to moral norms, while some economic conservatives conduct of war and foreign affairs and the provision of a frame- seem to believe that government has little or no role to play in work for a national economy (especially by removing domestic resolving social problems. Some cultural liberals seem at times protectionist obstacles to it). No one dreamed of entrusting fun- to believe either that human beings do not need a moral frame- damental social issues (such as marriage and family law, or laws work to prosper, or that some invisible hand provides whatever regulating sexual morality) to the federal government, since minimal framework is necessary. those were firmly left in the hands of the states. There was little What we should hope for—but must recognize as a difficult to worry about, in any case, since there was little controversy goal—is the adoption of a policy of “moderate moralism,” which about such issues at the time, due largely to the consensus on recognizes the importance of cultural norms in the preservation family and sexual morality that flowed from common religious of healthy liberal constitutionalism, and a role for law in sup- beliefs. Thus the Founders could more or less take for granted porting them, but that also recognizes limits to what laws or social mores (reflected in and supported by state laws) that would government can do. One of the awkward truths about liberal support the traditional family and channel sexual activity in democracy is that, for all the importance of laws as a form of directions that reinforced it. There was no need even to think moral education, its ultimate well-being is likely to depend on about such matters at a national constitutional convention. forces to a great extent beyond politics, and perhaps especially on In addition, the Founders could also count on having a citizenry the power of religious ideals that provide its foundations.
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The Long View BY ROB LONG
box, you agree to all of the above, and stupid. But there are some deals—for more, too, which we’re not required which we’re very very grateful—in to tell you about. (Thanks, Senator which both the buyer and the seller Dodd!) are the chumps. In some deals, the Addenda to only shark around is us. By checking Previous By checking this box, you this box, you’re saying, “Okay, okay, Agreements, acknowledge receipt of and do what you want to me. Just clean up agreement with the following new afterwards. And buy me dinner. Or Pursuant to regulations and policies of your pretend to.” Financial Reform pension-fund-management company. The new regulations are as follows: By checking this box, you Act of 2010* You no longer have a pension. acknowledge receipt of and agreement with the following new *Real-life version. Actual By checking this box, you regulations and policies of your mort- version as enacted by acknowledge receipt of and gage lender, and of the Chinese-based Congress may vary. agreement with the following new financial institution it is a wholly TOP OF FORM regulations and policies of your in - owned subsidiary of, probably, by vestment bank, Goldman Sachs, and now. As you know, when we issued By checking this box, you further, you acknowledge receipt of you your home loan using our three- acknowledge receipt of and and agreement with any other new minute EZ Twitter-based Application agreement with the following new regulations or policies your invest- Process, we required nothing more regulations and policies of your ment bank, Goldman Sachs, may than your signature. We didn’t require credit-card issuer. As always, your come up with. Essentially, here’s proof of income or proof of employ- credit-card issuer is here to serve you what you need to know: We’re prob- ment, which seems silly now that the and your credit needs. Please note ably lying to you right now. And we cat’s out of the bag and we all know that new federal disclosure rules probably were lying to you yesterday, that you don’t have any income, or any require us to remind you, the creditee, when we agreed to the deal over din- job. So, obviously, it’s an awfully tall that we, the creditor, are in this for the ner. (We paid for that dinner, remem- order to expect you to make your money. Which is why, for instance, ber? Right? The check came and $7,800 monthly mortgage payment our interest rates are so high. Why, we picked it up and made a big show out of a monthly income of zero. By for instance, it takes three hours to of it, remember? Well, guess what? checking this box, we’re all starting speak to an actual person. Why, for You’re paying for that dinner. Check again. You, with a new home some- instance, we’re all Delaware-based the itemized expenses in our billing where, bought with money borrowed corporations—it’s a lot cheaper to statement—oh, whoops! Right! We from anyone but us; us, with a new, buy a senator from a small state—and forgot! We don’t itemize our expens- clean balance sheet. By checking this why, for instance, the minute you es! We just . . . send you a bill. Well box, your home lender of record check this box, we’re raising our in - then, I guess you have to trust us . . .) becomes the Federal Reserve Bank of terest rates and shortening the intro- Well, no matter who paid, the point the United States, and it’s up to them ductory rates we offered to you that is, we made a deal, and what you to try to get your sorry ass on the day when you were tired and bored need to know is that we probably phone, up to them to sort out what and walking by our kiosk at the air- made a deal this morning with anoth- your empty house in West Rolling port. And also why we’ll begin call- er party taking the opposite side of Hills Acres Estates is worth, next to all ing you and e-mailing you (thanks for your deal. Weird, huh? But it makes of those other houses in West Rolling that info, by the way!) to sell you use- a certain kind of sense, especially Hills Acres Estates. Still, it was a fun less insurance you don’t need. Please if you’re a Goldman employee. But ride, wasn’t it? By checking this box, re-un-uncheck this box only if you here’s the thing: In every trade, you acknowledge that it was a blast, DO NOT want to receive NO infor- there’s a seller and a buyer, right? these past few years, pretending we mation about these offers and if you We’re big boys, all of us. We know were all millionaires, pretending that DO NOT want a salesman to NOT that in every deal, someone’s the money really does grow on trees. call you with exciting opportunities shark and someone’s the chump. in home finance. By checking this Someone’s smart and someone’s BOTTOM OF FORM
4 7 books5-17_QXP-1127940387.qxp 4/27/2010 10:19 PM Page 48 Books, Arts & Manners
we’re against mighty few,” said lyndon lives.” as Voegeli points out, there will Johnson in 1964. almost always be “some reason” to be - A Voegeli takes liberalism, particularly lieve that: “a test that no program ever in the persons of Woodrow Wilson and fails isn’t much of a test.” Government FDR, to have given the United States a Voegeli continues, “in the 78 years Second Founding precisely to overcome since FDR promised to try one method, the confining limits that the design of and ‘if it fails, admit it frankly and try Without 1787 had placed on the central govern- another,’ there is not one clear instance of ment. This re-founding put history in a welfare state program that liberals by Bounds the place of nature. Rejecting the idea consensus came to regard as a failure, to of a fixed human nature and thus of be frankly admitted and abandoned.” RAMESH PONNURU un alterable truths about government Programs have ended only “as a result of based on that nature, progressives in - political victories by their opponents.” stead sought a government that would be When voters impose limits on govern- supple enough to answer history’s ever- ment, such as caps on taxes, liberals tend changing call. to say that they are overreacting. Voegeli Subsequent liberal theorists have not makes a nice point in response: “liberals replaced the old limits with anything very are in a weak position to complain that specific. liberal academics have devised the voters resort to sweeping, indiscrimi- elaborate theories justifying welfare nate measures to curtail government states—typically, Voegeli writes, welfare spending. Since liberalism itself offers no states “bigger than those that any country criteria to distinguish between more and has ever seen.” liberals involved in prac- less deserving programs, it’s churlish to tical politics have shunned these ideas. abuse the voters for coming up with the Never Enough: America’s “People who call themselves Rawlsians wrong answer, when they received so Limitless Welfare State, by William Voegeli . . . are always candidates for the faculty little guidance from liberals about how (Encounter, 280 pp., $23.95) senate, not the U.S. Senate.” to find the right one.” Formulating liberalism’s mission as Conservatives, by contrast, have artic- illiam Voegeli believes the provision to all of the preconditions ulated clear limits to what the govern- in the power of the simple for a good life, as some liberals have ment can do. But they have failed to get question. Voegeli is one of done, is no answer: it just raises another these limits enacted. The voters are not W conservatism’s best con- equally baffling question. it provides no libertarian enough to adopt them. Con - temporary writers on the topics of liberals help at all in identifying a basis for liber- servatives’ fallback strategies have been and the welfare state, and he notes that als ever to reject a claim that people have equally unavailing. Voegeli goes to some the former have a long history of insisting a right to be assisted in acquiring some- lengths to demonstrate what the last 30 that the latter is too small, too miserly, too thing that those people have identified as years should make clear: that whatever inadequate. His new book begins by ask- necessary to the good life. liberal treat- the other merits of tax cuts, they do not ing: What would count as enough? “all ments of “community” and “the common seem to restrain spending. Nothing seems the bitter accusations about the insuffi- good” have if anything made the problem to work. “liberal victories advance liber- ciency of our social programs must point worse. Voegeli refers to arthur Schlesin- alism; conservative ‘victories’ postpone to a criterion of sufficiency, defining a ger Jr.’s 1957 pronouncement that liber- liberalism.” completely adequate welfare state.” als would have to attend to “spiritual So we’re left with a stalemate. liber - except that, he discovers, they don’t. unemployment” as urgently as they once als, lacking limits, also lack a way to pay liberalism has no such “limiting prin - did the economic kind. for all the things they want. Con serva - ciple.” its agenda, like that of Samuel Some liberals have decided to make a tives cannot deny them those things. gom pers, is always: “more.” The tax virtue of their lack of any grand theory Voegeli concludes by urging a grand bar- code is never sufficiently progressive. that would require certain government gain in which liberals accept limits and The government is never meeting enough interventions while excluding others. conservatives accept the welfare state. human needs. one might think that as a liberalism can, they say, make case- He favors means-testing: There is no country grows richer it would need a by-case determinations about which in - good reason, he thinks, that the federal welfare state less and less. But that terventions to seek. Voegeli quotes one government should send Social Security thought is rarely voiced in a politics influ- pro ponent of ad hocracy denying that lib- checks to Warren Buffett. enced by liberalism, which constantly erals support larger government as “an most liberals have opposed means- finds new needs for government to meet end in itself.” They favor it only “if they testing because they fear its political con- and can find no reason not to meet them. have some reason to believe that it will sequences. if the upper middle class sees “We’re in favor of a lot of things and lead to material improvement in people’s itself as paying into Social Security for
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no reward, then it will stop supporting Security were means-tested. There are Social Security. It will become first a persuasive answers to this complaint, program for the poor and then a poor pro- but they assume—as Voegeli implicitly The gram. “Liberals distrust their own foren- does—something contrary to the current sic abilities as much as they distrust the mood of conservatism: that the redis- Original Sin decency of their fellow citizens.” They’re tributive character of the welfare state is wrong on both counts: Voegeli believes far from its worst feature. DANIEL PIPES that voters would support means-tested Voegeli is oddly emphatic in writing assistance to the poor and unlucky, espe- that ending the welfare state should not Palestine Betrayed, by Efraim Karsh cially after a century of liberalism. He be even a distant goal of conservatives. (Yale, 336 pp., $32.50) does not place much weight on a moral They will never undo the election of consideration: That our welfare state is 1936. He is perfectly aware that almost akba, the Arabic word for designed to foster an illusion among no Republican politicians and very few “catastrophe,” has entered the voters ought to be considered more prob- conservative voters seek any such goal; English language in reference lematic than it usually is. that is part of why the goal is too utopian N to the Arab–Israeli conflict. Voegeli also raises, in order to dismiss, to be maintained. Perhaps a lingering sus- As defined by the anti-Israel website The a possible conservative objection to picion that conservatives still harbor the Electronic Intifada, Nakba means “the means-testing: that it would represent an goal impedes their political success. But expulsion and dispossession of hundreds undesirable concession that the programs what more would Voegeli have conserva- of thousands [of] Palestinians from their to be means-tested should exist in the tives do to dispel that suspicion? homes and land in 1948.” first place. He ignores what might be a And, while insisting that liberalism Those who wish Israel to disappear more potent objection on the right: that needs limits, Voegeli does not go very far actively promote the Nakba narrative. For means-testing would make the welfare in spelling out what they would be, be - state more redistributive than it now is. In yond means-testing. Perhaps he con- Mr. Pipes (www.DanielPipes.org) is a columnist for terms of what they pay in and what they siders that a job for liberals. Anyone who NATIONAL REVIEW ONLINE, director of the get out of the federal government, the reads his fine book will be able to predict Middle East Forum, and Taube distinguished visiting affluent would get a worse deal if Social that they will not do it. fellow at the Hoover Institution.
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BOOKS, ARTS & MANNERS example, Nakba Day serves as a mourn- Yet more counterintuitively, Karsh genocide machine, Husseini refused to ful Palestinian counterpart to Israel’s shows that his understanding was the con- accept their presence in any numbers in Independence Day festivities, annually ventional, indeed the undisputed inter - Palestine, much less any form of Zionist publicizing Israel’s alleged sins. So estab- pretation in the late 1940s. Only with the sovereignty. lished has this day become that Ban Ki- passage of time did “Palestinians and From the early 1920s, then, one wit- moon, secretary general of the United their Western supporters gradually re - nessed a pattern still in place and familiar Nations—the very institution that created wr[i]te their national narrative,” thereby today: Zionist accommodation, “painful the State of Israel—has sent his support to making Israel into the unique culprit, the concessions,” and constructive efforts to “the Palestinian people on Nakba Day.” one excoriated in the United Nations, uni- bridge differences, met by Palestinian Even Neve Shalom, a Jewish-Palestinian versity classrooms, and editorials. anti-Semitism, rejectionism, and vio- community in Israel claiming to be “en - Karsh successfully makes his case by lence. gaged in educational work for peace, establishing two main points: that (1) the Complementing this binary dramatis equality, and understanding between the Jewish-Zionist-Israeli side perpetually personae, and complicating its stark two peoples,” dutifully commemorates sought to find a compromise while the contrast, stood the generally more ac - Nakba Day. Palestinian-Arab-Muslim side rejected commodating Palestinian masses, the The Nakba ideology presents Pales - nearly all deals; and (2) Arab intran - dis gracefully anti-Semitic British man- tinians as victims without choices and sigence and violence caused the self- datory authority, a Jordanian king eager therefore without responsibility for the inflicted “catastrophe.” to rule the Jews as subjects, feckless Arab ills that befell them. It blames Israel alone The first point is more familiar, espe- state leaders, and an erratic American for the Palestinian-refugee problem. This cially since the Oslo Accords of 1993, for government. view has an intuitive appeal, for Mus- it remains today’s pattern. Karsh demon- Despite the radicalization of Pales - lim and Christian Palestinians had long strates a consistency of Jewish goodwill tinian opinion by the mufti and despite the Intuitive sense does not equal historical accuracy. In his new tour de force, Palestine Betrayed, Efraim Karsh offers the latter.
formed a majority on the land that became and Arab rejectionism going back to Nazi rise to power, Zionists kept seeking Israel, whereas most Jews were relative the Balfour Declaration and persisting an accommodation. It took some years, newcomers. through out the period of British rule. (To but the mufti’s zero-sum policy and elim- Intuitive sense, however, does not equal remind, the Balfour Declaration of 1917 inationism eventually convinced reluctant historical accuracy. In his new tour de expressed London’s intention to establish Labor leaders, including David Ben- force, Palestine Betrayed, Efraim Karsh in Palestine a “national home for the Gurion, that good works would not facil - of the University of London offers the lat- Jewish people,” and the British conquest itate their dream of acceptance. Still, ter. With his customary in-depth archival of Palestine just 37 days later gave it con- despite repeated failures, they continued research—in this case, relying on masses trol of Palestine until 1948.) the search for a moderate Arab partner of recently declassified documents from In the first years after 1917, Arab re - with whom to strike a deal. the period of British rule and of the first action was muted, as leaders and masses In contrast, Ze’ev Jabotinsky, the fore- Arab–Israeli war, 1917–49—clear pre- alike recognized the benefits of the dy- runner of today’s Likud party, already in sentation, and meticulous historical sensi- namic Zionist enterprise that helped 1923 understood that “there is not even bility, Karsh argues the opposite case: that revive a backward, poor, and sparsely the slightest hope of ever obtaining the Palestinians decided their own destiny populated Palestine. Then emerged, with agreement of the Arabs of the Land of and bear near-total responsibility for be - British facilitation, the noxious figure Israel to ‘Palestine’ becoming a country coming refugees. who would dominate Palestinian politics with a Jewish majority.” Yet even he In Karsh’s words: “Far from being the over the next three decades, Amin al- rejected the idea of expelling Arabs and hapless victims of a predatory Zionist Husseini. From about 1921 on, Karsh insisted on their full enfranchisement in a assault, it was Palestinian Arab leaders documents, Zionists and Palestinians had future Jewish state. who, from the early 1920s onward, and many choices to make; while the former This dialectic culminated in November very much against the wishes of their invariably opted for compromise, the lat- 1947, when the United Nations passed a own constituents, launched a relentless ter relentlessly decided on extermination. partition plan that nowadays would be campaign to obliterate the Jewish nation- In various capacities—mufti, head of termed a two-state solution. In other al revival which culminated in the vio - Islamic and political organizations, Hitler words, it handed the Palestinians a state lent attempt to abort the U.N. partition ally, hero of the Arab masses—Husseini on a silver platter. Zionists rejoiced but reso lution.” More broadly, he observes, drove his constituents to what Karsh calls Palestinian leaders, foremost the malign “there was nothing inevitable about the “a relentless collision course with the Husseini, sourly rejected any solution that Palestinian–Jewish confrontation, let Zionist movement.” Hating Jews so ma - endorsed Jewish autonomy. They insisted alone the Arab–Israeli conflict.” niacally that he went on to join the Nazi on everything and so got nothing. Had
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they accepted the U.N. plan, Palestine standing on the battlefield; or they pro - the abandoned places. . . . We did not start would be celebrating its 62nd anniversary mised a safe return in a matter of days. the war. They made the war. Jaffa waged this May. And there would have been no Some communities preferred to flee rather war on us, Haifa waged war on us, Beisan Nakba. than to sign a truce with the Zionists; in waged war on us. And I do not want them The most original part of Palestine the words of Jaffa’s mayor, “I do not mind again to make war.” Betrayed is the half that contains a de - destruction of Jaffa if we secure de - In sum, Karsh explains, “it was the tailed review of the flight of Muslims and struction of Tel Aviv.” The mufti’s agents actions of the Arab leaders that con- Christians from Palestine in the years attacked Jews to provoke hostilities. demned hundreds of thousands of Pales - 1947–49. Here Karsh’s archival research Families with the means to do so fled dan- tinians to exile.” comes into its own, allowing him to pre- ger. When agricultural tenants heard that In this book, Karsh establishes two sent a uniquely rich picture of the specific their landlords would be pun- momentous facts: that Arabs circumstances of Arab flight. He goes one ished, they worried about be - aborted the Palestinian state by one through the various Arab popula- ing expelled and preempted by and that they caused the Nakba. tion centers—Qastel, Deir Yassin, Tiberi - abandoning the land. Bitter in - In the process, he confirms his as, Haifa, Jaffa, Jerusalem, Safad—and ternecine enmities hobbled status as the preeminent histori- then takes a close look at the villages. planning. Shortages of food and an of the modern Middle East Israel’s war of independence divides other necessities spread. Ser - writing today, and extends the into two parts. Ferocious fighting began vices like water-pumping sta- arguments of three of his ear lier within hours of the United Nations vote to tions were abandoned. Fears books. His magnum opus, partition Palestine on Nov. 29, 1947, and spread of Arab gunmen, as did Empires of the Sand: The lasted till the eve of the British evacuation rumors of Zionist atrocities. StruggleforMasteryinthe on May 14, 1948. The international con- In only one case (Lydda) did Israeli MiddleEast,1789–1923 (with Inari flict began on May 15 (the day after Israel troops push Arabs out. The singularity of Karsh, 1999), argued that Middle East - came into being), when five Arab state this event bears emphasis. Karsh explains erners were not, as usually thought, “hap- armies invaded, with hostilities lasting about the entire first phase of fighting: less victims of predatory imperial powers until January 1949. The first phase con- “None of the 170,000–180,000 Arabs flee- but active participants in the restructuring sisted largely of guerrilla warfare, the ing urban centers, and only a handful of of their region,” a shift with vast political second primarily of conventional warfare. the 130,000–160,000 villagers who left implications. PalestineBetrayed applies Over half (between 300,000 and 340,000) their homes, had been forced out by Jews.” that book’s thesis to the Arab–Israeli of the 600,000 Arab refugees fled before The Palestinian leadership disapproved conflict, depriving Palestinians of excus- the British evacuation, and most of them of a population return, seeing this as im - es and victimhood, showing that they in the final month. plicitly recognizing the nascent State of actively, if mistakenly, chose their des- Palestinians fled in a wide range of cir- Israel. The Israelis were at first ready to tiny. cumstances and for varied reasons. Arab take back the evacuees but then hardened In Fabricating Israeli History: The commanders ordered noncombatants out their position as the war progressed. “NewHistorians” (1997), Karsh exposed of the way of military maneuvers; or they Prime Minister Ben-Gurion explained the shoddy work, even the fraudulence, of threatened laggards with treatment as trai- their thinking, on June 16, 1948: “This the school of Israeli historians who blame tors if they stayed; or they demanded that will be a war of life and death and [the the 1948–49 Palestinian refugee problem villages be evacuated to improve their evacuees] must not be able to return to on the Jewish state. PalestineBetrayed offers the flip side; if the earlier book refuted mistakes, this one establishes truths. Finally, in IslamicImperialism: CONSIDERING DOLPHINS AHistory (2006), he showed the expan- sionist core of the Islamic faith in action A dolphin of a kind, I contemplate over the centuries; here he explores that Their constant noising by some click or whistle drive in small-bore detail among the Pal - Too high for human ears: that sonar missile es tinians, connecting the supremacist With which, obscure and sleek, they navigate; Islamic mentality with an unwillingness And how, through humor, they affiliate, to make practical concessions to Jewish Disarming sharks and mines, and of the gristle sovereignty. Making distinctly signature each dorsal; Palestine Betrayed reframes today’s And the human speech they may approximate; Arab–Israeli debate by putting it into its The totem for our counselors and sages, proper historical context. Proving that Insignias for princes, who adapt for 90 years the Palestinian political elite Too swiftly to aquariums in cages— has opted to reject “the Jewish national So quick to the performance, so enrapt revival and [insisted on] the need for its To play themselves for little-to-no wages, violent destruction,” Karsh correctly con- As though uniqueness were a periapt. cludes that the conflict will end only when the Palestinians give up on their “geno - —JENNIFER REESER cidal hopes.”
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NATIONAL REVIEW’S 2010 Sailing November 14–21 on Holland America’s M S Nieuw Amsterdam PPoosstt--EElleeccttiioonn CCrruuiissee Join KARL ROVE, BERNARD LEWIS, VICTOR DAVIS HANSON, ANDREW BREITBART, PHYLLIS SCHLAFLY, BERNIE GOLDBERG, TONY BLANKLEY, SCOTT RASMUSSEN, JONAH GOLDBERG, ANDREW McCARTHY, ALAN REYNOLDS, JIM GERAGHTY, DAN HANNAN, CAL THOMAS, KATHRYN LOPEZ, ROGER KIMBALL, VIN WEBER, JAY NORDLINGER, KATE O’BEIRNE, GREG GUTFELD, RAMESH PONNURU, JOHN O’SULLIVAN, ROMAN GENN, and PETER SCHRAMM
as we visit Grand Turk, Grand Cayman, Cozumel, Half Moon Cay, and Ft. Lauderdale
his is your special opportunity to participate in one of the Greg Gutfeld, terrorism expert Andrew McCarthy, GOP strategist most exciting seafaring adventures you will ever experi- Vin Weber, conservative economist Alan Reynolds, New Criterion T ence: the National Review 2010 “Post-Election” Caribbean editor Roger Kimball, acclaimed pollster Scott Rasmussen, Cruise. Featuring a cast of all-star conservative speakers (that will European Parliament Tory star Daniel Hannan, conservative schol- expand in coming weeks), this affordable trip—prices start at only ar Peter Schramm; and from NR: Liberal Fascism author Jonah $1,899 a person!—will take place November 14–21, 2010, aboard Goldberg, NRO editor-at-large Kathryn Lopez, NR Institute presi- Holland America Line’s MS Nieuw Amsterdam, the beautiful new dent Kate O’Beirne, senior editors Jay Nordlinger and Ramesh ship of one of the world’s most highly regarded cruise lines. Ponnuru, Campaign Spot blogger Jim Geraghty, former editor John Fast forward to November 3—the morning after the elections. O’Sullivan, and acclaimed NR artist Roman Genn. Whether you find yourself bemoaning another two years of The “typical” NR cruise alumnus has gone on four of our very Democrat control of Capitol Hill, or whether you’re flabbergasted bon voyages, and knows NR trips are marked by riveting political by massive GOP pick-ups in the House and Senate (and in state- shoptalk, wonderful socializing, intimate dining with our editors houses), or whether the results are as mixed as a tossed salad, and speakers, making new friends, rekindling old friendships, and, make sure you’re packing your luggage and preparing for the of course, grand cruising. That’s what’s in store for you on the Nieuw Amsterdam, your floating luxury getaway for scintillating National Review 2010 “Post-Election” Caribbean Cruise. discussion of the elections and their consequences—and on all There are countless reasons to come, but none are better than other major current events and trends. the luminaries who will be aboard this luxury trip. This truly extra- You could spend the week of November 14 raking leaves and ordinary gathering is one of the best ensembles we’ve ever had on cleaning gutters. Instead, opt for seven sunny days and cool nights an NR cruise, which guarantees that our seminar sessions (featur- sailing the balmy tropics, mixing and mingling with the crew of ing ample audience “Q & A”) will be fascinating. exemplary speakers we’ve assembled to make sense of electoral aWatch Karl Rove, ex-congressman Vin Weber, and ace matters and the day’s top issues. Confirmed speakers for NR’s columnist Tony Blankley provide expert analyses of the elections, ‘Post-Election’ Cruise include former top Bush-43 White House their consequences, and the state of the Republican Party. aide Karl Rove, historian Victor Davis Hanson, Islam scholar aSome of our primo past cruise experiences have been the informed Bernard Lewis, conservative icon Phyllis Schlafly, conservative web interchanges between Bernard Lewis and Victor Davis Hanson on the bru- guru Andrew Breitbart, liberal-media critic Bernie Goldberg, lead- tal revival of the age-old struggle between Islam and the West. These acad- ing columnists Tony Blankley and Cal Thomas, “Red Eye” host emic giants, and terrorism expert Andy McCarthy, will provide their razor- sharp insights on America’s dealings in the J O I N U S F O R S E V E N B A L M Y D A Y S A N D C O O L C O N S E R V A T I V E N I G H T S Middle East and the Muslim world. aCan you find more insightful DAY/DATE PORT ARRIVE DEPART SPECIAL EVENT social commentary than from the SUN/Nov. 14 Ft. Lauderdale, FL 5:00PM evening cocktail reception likes of Phyllis Schlafly, New Roger Kimball MON/Nov. 15 Half Moon Cay 8:00AM 4:00PM afternoon seminar Criterion editor , “Night Owl” session columnist Cal Thomas, or top acade- TUE/Nov. 16 Grand Turk 12:00PM 6:00PM morning seminar mic (head of the prestigious late-night smoker Ashbrook Center) Peter Schramm (or from NR hallmark artist, the WED/Nov. 17 AT SEA morning/afternoon seminars evening cocktail reception Roman Genn)? A more preceptive dissection of the liberal media than THU/Nov. 18 Grand Cayman 8:00AM 4:00PM afternoon seminar from Bernie Goldberg, Greg Gutfeld, and Andrew Breitbart, or a clearer FRI/Nov. 19 Cozumel 10:00AM 11:00PM late-night smoker take on the national economy than SAT/Nov. 20 AT SEA morning/afternoon seminars from Alan Reynolds? Picture Daniel evening cocktail reception Hannan and John O’Sullivan dis- cussing the fate of the U.K.–U.S. and SUN/Nov. 21 Ft. Lauderdale, FL 7:00AM Euro-American relations). carribian 5 cabins_carribian 2p+application.qxd 4/28/2010 2:09 PM Page 3
Sailing November 14–21 on Holland America’s M S Nieuw Amsterdam
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Superior service, gourmet cuisine, elegant accommodations, and great entertainment await you on the beautiful new mS Nieuw Amsterdam. Prices are per-person, based on double occupancy, and include port fees, taxes, gratuities, transfers (for those booking airfare through Holland America), all meals, entertainment, and admittance to and participation in all NR functions. Per-person rates for third/fourth person in cabin: Ages 6 months to 2: $482 Ages 2 to 17: $582 Ages 18 and over: $1,139 NEW SPEAKERS: Red Eye host GREG GUTFELD,
DELUXE SUITE Magnificent luxury quarters (528 ace pollster SCOTT RASMUSSEN, columnist sq. ft.) features use of exclusive Neptune Lounge CAL THOMAS, scholar PETER SCHRAMM and personal concierge, complimentary laun- dry, pressing and dry-cleaning service. Large private verandah, king-size bed aAnd they’ll be joined in all the elucidating and analyzing of (convertible to 2 twins), whirlpool the 2010 elections by NR’s editorial heavyweights, including Jonah bath/shower, dressing room, large sit- Goldberg, Jay Nordlinger, Ramesh Ponnuru, Kathryn Jean Lopez, ting area, DVD, mini-bar, and refrigerator. Jim Geraghty, and Kate O’Beirne. Category SA Then there’s the ship: The just-launched Nieuw Amsterdam DOUBLE OCCUPANCY RATE: $ 4,499 P/P offers spacious staterooms and countless amenities, all at a very SINGLE OCCUPANCY RATE: $ 6,999 affordable rate—prices start as low as $1,899 a person. Indeed, no matter what cabin meets your individual tastes and circumstances, SUPERIOR SUITE Grand stateroom (392 sq. ft.) features private verandah, queen-size bed you can be assured that the Nieuw Amsterdam and its stellar staff (convertible to 2 twin beds), whirlpool will offer you unsurpassed service, sumptuous cuisine, roomy bath/shower, large sitting area, DVD, mini- accommodations, and luxury. bar, refrigerator, floor-to-ceiling windows, And don’t forget the fantastic itinerary: Grand Cayman, Grand and much more. Turk, Cozumel, and Holland America’s private island, Half Moon Category SS Cay (with a must-see-it-to-believe-it blue lagoon!). DOUBLE OCCUPANCY RATE: $ 3,499 P/P The National Review 2010 “Post-Election” Caribbean Cruise SINGLE OCCUPANCY RATE: $ 5,799 will be remarkable—but then every NR sojourn is. Our winning program of seminars (we’ll have eight), cocktail parties (three are DELUXE OUTSIDE Spacious cabin (241 sq. ft.) scheduled—they’re great opportunities to chat and have photos features private verandah, queen-size bed (con- taken with your favorite conservatives), late-night poolside smok- vertible to 2 twin beds), bath with shower, sitting ers (featuring world-class H. Upmann cigars and cognac), and din- area, mini-bar, tv, refrigerator, and floor-to-ceil- ing windows. ing with our editors and speakers (on two nights)—it’s all some- thing you really must experience. Categories VA / VB / VC Sign up now at our dedicated website, www.nrcruise.com, or DOUBLE OCCUPANCY RATE: $ 2,899 P/P call The Cruise Authorithy at 1-800-707-1634. Or fill out and SINGLE OCCUPANCY RATE: $ 4,399 mail/fax back the application form on the following page. Take the trip of a lifetime with some of America’s preeminent LARGE OCEAN VIEW Comfortable quarters (190 sq. intellectuals, policy analysts, and political experts—Karl Rove, ft.) features queen-size bed (convertible to 2 twin beds), bathtub with shower, sitting area, tv, large Victor Davis Hanson, Bernard Lewis, Phyllis Schlafly, Andrew ocean-view windows. Breitbart, Scott Rasmussen, Andrew McCarthy, Bernie Goldberg, Greg Gutfeld, Daniel Hannan, Cal Thomas, Tony Blankley, Vin Category D Weber, Alan Reynolds, Roger Kimball, Jonah Goldberg, Kathryn DOUBLE OCCUPANCY RATE: $ 2,399 P/P SINGLE OCCUPANCY RATE: $ 2,999 Jean Lopez, Jim Geraghty, Kate O’Beirne, Jay Nordlinger, Ramesh Ponnuru, John O’Sullivan, Roman Genn, and Peter Schramm —on the National Review 2010 “Post-Election” LARGE INSIDE Cozy but ample cabin quarters (185 sq. ft.) Caribbean Cruise. features queen-size bed (convertible to 2 twin beds), bathtub with shower, sitting area, tv.
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frequently “a guilty conscience is an ill- istration assures us no such thing exists) ness,” and concluded that “solidarity has been occasion for rejoicing on the The West’s with oppressed peoples is above all a left. among other things, it has afforded gigantic weapon aimed at the West.” a great scope for the exercise of some of Burden weapon, yes, but also an excuse: hence their favorite muscle groups. Moral the subtitle of that book: “Compassion equivalence, for example: In 2004, after ROGER KIMBALL as Contempt.” The cultivation of guilt Islamist terrorists bombed trains in not only affords the pleasures of self- Madrid, killing 191 people, Spanish denigration, it also provides an unassail- prime minister José Luis Zapatero able alibi for inaction. smugly announced that “I never speak The Tears of the White Man was a of Islamist terrorism, but only of inter- bravado performance. Writing in the national terrorism” because all religions waning years of the Soviet colossus, include “an element of religious fanati- when virtually every French intellectual cism.” The “root cause” muscle has also cherished his anti-Western hatred al - been getting a good workout. Did a most as much as he cherished his anti- handful of well-heeled, educated Saudis americanism, Bruckner committed the just steer a couple of airliners into the unpardonable sin of articulating some World Trade Center? Don’t forget, as The Tyranny of Guilt: An Essay on fundamental distinctions. “There is,” he French prime minister Dominique de Western Masochism, by Pascal Bruckner pointed out, “no society not founded villepin put it, that the real causes of (Princeton, 256 pp., $26.95) upon crimes, massacres, or conquest terrorism are “injustice, resentment, and of the weak—neither Islam, the great frustration.” (and here I thought that have always regarded guilt as empire-builder by conquest and the the cause of terrorism was terrorists!) an overrated emotion. I am not, sword, nor China, Japan, India, Inca Finally, the rise of Islamic terrorism has nota bene, speaking about gen- empire, precolonial african Kingdoms, given a new lease on life to a certain I uine repentance, through which or the Ottoman empire.” What distin- species of intellectual legerdemain. one acknowledges a fault, makes what guishes much of Western europe and the Com menting on 9/11, Jacques Derrida amends one can, and then gets on with United States is not that they were born introduced the concept of involuntary things. Rather, I am talking about re - in a crucible of blood and violence; that terrorism, which, he says, is the sort morse, the hothouse-bred allotrope of is a common origin. What distinguishes practiced by the United States and repentance. What’s the difference? For them is that they have managed, to an Western europe. one thing, repentance aims at expiation. extraordinary extent, to transcend those The “hard place” that all of this intel- Remorse aims at emotional enslave- sanguinary beginnings in order to prop- lectual energy is expended to negotiate ment. Forgetting, or at least recognizing agate the values of individual liberty and is the fact that what the terrorists really a statute of limitations about airing the democratic capitalism. object to is—us. They hate us. They hate tort, is a beneficent codicil to effective The Tyranny of Guilt takes up where open, democratic society. “It is our exis- repentance. Remorse recognizes no ter- The Tears of the White Man left off. tence as such,” Bruckner points out, minus. “Remorse does not repent of its even in the 1980s, anti-Western animus “that is intolerable for them.” But this is sin,” observes Pascal Bruckner in his was fed largely if not wholly by the mes- intolerable for us. So we start manufac- remarkable new book The Tyranny of merizing narcotic of Communism and turing reasons to justify them. Guilt; “it feeds on it, wants to remain its progeny. hence the idealization of Bruckner is especially canny on the attached to it forever.” such butchers as Che Guevara, Pol Pot, odd compact between Islam and the When it comes to the sweaty meta - Fidel Castro, Stalin, Lenin, and Mao. Left, the remarkable fusion of militant bolism of guilt, Bruckner is perhaps Today, the source of Western self-hatred atheism, on one hand, and a theocratic the most accomplished anatomist since is more diffuse. But its result is not, alas, fun damentalism, on the other. Is it mere- Nietzsche. (he is also, like Nietzsche, any less pointed. “From existentialism ly a temporary alliance against a com- an extraordinary stylist, commanding to deconstructionism,” Bruckner notes, mon enemy, the West with its bourgeois a sinewy, memorably epigrammatic “all of modern thought can be reduced to attachment to freedom and economic prose.) In the 1980s, Bruckner present- a mechanical denunciation of the West.” vitality? Or is it something deeper? “If ed volume One of his researches into The West generally, and america in the far Left courts this totalitarian theoc- this moral swampland, Le sanglot de particular. “The phobia of america, our racy so assiduously,” Bruckner reasons, l’homme blanc (The Tears of the White last civic religion in Western europe, “it is perhaps less a matter of oppor- Man). Dilating on the seductive tempta- allows us to escape our guilty con- tunism than of real affinity. The far Left tions of “Third-Worldism” among leftist science by affiliating ourselves with has never gotten over Communism and intellectuals, he warned about “the formerly colonized continents.” We all once again demonstrates that its true dangers of self-hatred,” showed how remember those Western intellectuals passion is not freedom, but slavery in who, in the immediate aftermath of 9/11, the name of justice.” Mr. Kimball is publisher of Encounter Books, muttered that america “had it coming.” This short book is long on political and co-publisher and co-editor of The New The rise of Islamic terrorism (notwith- wisdom. Bruckner is perfectly willing— Criterion. standing the fact that the Obama admin- indeed, he is positively eager—to
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BOOKS, ARTS & MANNERS acknowledge the manifold nastiness friends, his associates, and even his ene- that populates the history of Europe and mies the courtesy of actually listening to the United States. Both, he says, have A Portrait of them; remembering what they had said; “given birth to monsters.” But Europe and responding in a manner that delight- (and by extension the United States) has Chairman ed his admirers and deflated (and perhaps also given birth to redemptive self- schooled) his adversaries. Buckley also knowledge. Where is that in Islam? Bill tended not to suffer fools and fanatics gladly; thus his and NR’s rough treat - The day when its highest authorities JAMES E. PERSON JR. ment of Ayn Rand as well as the booting recognize the conquering aggressive of the John Birch Society out of conser- nature of their faith, when they ask to be vatism. (It was Birch Society founder pardoned for the holy wars waged in the Robert Welch who originally claimed name of the Qur’an and for the infamies that Eisenhower was a Red, prompting committed against infidels, apostates, columnist George Sokolsky to write, unbelievers, and women, when they “Obviously, the former President is not apologize for the terrorist attacks that profane the name of God—that will be a Communist; he is a golfer: Nor can a day of progress and will help dissipate anyone say that Jack Kennedy is a Com - the suspicion that many people legiti- munist; he is a Roman Catholic and a mately harbor regarding this sacrificial member of the Communist Party must monotheism. be an atheist, a believer in dialectical materialism.” Upon reading these words Western society, Bruckner says, is like in 1961, an amused Russell Kirk repeat- a jailer who throws you a key even as he William F. Buckley Jr.: ed a reefed-down version of the phrase to slams the cell door. Despotism was part The Maker of a Movement, Buckley, who assumed the quote was of Europe’s heritage; liberty is the pro - by Lee Edwards Kirk’s invention.) mise of its legacy. The problem is that (ISI, 208 pp., $24.95) As Edwards and others have noted, historical self-knowledge is Janus- these acts of purgation cost NR sub- faced. It offers a way of atoning for NE of the great things I scribers at a time when subscribers were past misdeeds. Perverted, it degenerates learned about Bill Buck - hard to come by, and gained WFB a into a means of perpetuating them. ley, while working on his handful of enemies on the right who “Nothing,” Bruckner notes, “is more ‘O bibliography, is that his endure to this day. But they rendered NR Western than hatred of the West.” But memory is remarkably strong and de - a movement platform refreshingly free that animosity is less a window on the tailed,” William Meehan told me several of obsessive ideologues and worrisome world than a mirror, a version of narcis- years ago. “No matter how far back you numbskulls. sism. “Self-denigration is all too clearly want to go in his adult life, he remembers In NR’s formative years, Buckley a form of indirect self-glorification.” everything!” A few weeks after speaking pulled off a most difficult feat: some - Most conservatives will like The with Meehan, I tested this claim by writ- how managing—through a combina- Tyranny of Guilt. Most liberals will ing to ask WFB about the source of tion of graciousness, cajolery, blarney, loathe it. The irony is that Bruckner him- a humorous quip widely attributed to and the occasional knocking together of self is clearly a liberal. In his postscript Russell Kirk: “Eisen hower’s no Com - heads—to get a roomful of strong-willed to the English translation, he writes munist; he is a golfer,” which Buckley writers and editors from across the spec- excitedly about “the Obama moment” mentioned in The Jeweler’s Eye (1968). trum of conservative thought to pull (“a tremendous outburst on the part of He replied to my letter within a few days, together as something resembling a team. the American people”) and earlier sug- saying that Kirk had tossed off the now- Over time, this team became the nucleus gests that European nations should famous words in a conversation during of a movement. attenuate their commitment to national one of his periodic visits to New York “Buckley clearly had certain goals in sovereignty for the sake of a suprana- in the early Sixties. Buckley went on to mind for his magazine,” writes Edwards, tional Europe. But this is one of those say that the phrase stuck in his memory namely to “keep the Republican Par - books—ferociously intelligent, passion- and eventually found its way into his ty—the primary political vehicle of con- ately argued, stylistically brilliant—that book—and into conservatism’s collec- servatives—tilted to the right; eliminate make local disagreements seem almost tive consciousness. any and all extremists from the conserva- beside the point. Partly a plea for intel- This little anecdote is of a piece with tive movement; flay and fleece the liber- lectual honesty, it is also a plea for that what Lee Edwards effectively illustrates als at every opportunity; and push hard modest but essential component of civi- in his new book: The late founder of for a policy of victory over Communism lization: patience. “The only war that NATIONAL REvIEW had a knack for be - in the Cold War.” As Buckley wrote on ultimately matters,” Bruckner writes, “is ing generous with his time; paying his one occasion, the goal of conservatism the war of ideas. . . . This war has one and NR should be to strive for a fusion (a defect: It is long. . . . We have to com- Mr. Person is the author of critical biographies of term closely associated with longtime bine our impatience for freedom with Russell Kirk and Earl Hamner. His first short piece NR literary editor Frank Meyer) of nor- the wisdom to wait.” of freelance writing was published in NR in 1987. mative elements that make for ordered
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freedom: “a general consensus on the to write for NR. It was Eliot who famous- class with Goebbels’s vituperation of the proper balance between freedom, order, ly wrote that in the world of cultural and Jews.” justice, and tradition.” On all these goals political struggle, “we know that our And lest the reader come away with the Buckley’s editorial colleagues, chief defeat and dismay may be the preface understanding that Buckley held to a among them Meyer, Kirk, James Burn- to our successors’ victory, though that Pickett’s Charge brand of conservatism, ham, and Willmoore Kendall, were in victory itself will be temporary; we fight it is useful to remember that he believed, agreement, though in some areas of con- rather to keep something alive than in the as Edwards notes, “that if conservatives servative thought they tended to disagree expectation that anything will triumph.” in politics wanted to be successful they with one another. We are pilgrims on the earth, here for a had to steer a middle course between the Indeed, the “circular firing squad” so time and then gone: Despite his wealth, ideal and the prudential.” The biographer bemoaned today among conservatives cheerfulness, and comfortable lifestyle, clarifies that this “golden mean” is not existed, to some extent at least, even dur- Buckley knew this. His deeply ingrained “a precise midway point between two ing the mid-to-late 1950s. And it existed and unwavering Roman Catholic faith extremes; rather it is a shifting point that not primarily because of petty jealousy or confirmed to him that men are flawed sometimes winds up closer to the ideal, spite (although those qualities may have creatures, given to all manner of be - sometimes closer to the prudential.” played some role, conservatives being havior; this made for his seldom dis- Thus Buckley could on one occasion tempted by the same base impulses as closed sense of pessimism, a sense of write, to the dismay of a few on the right, other men) but because Buckley and his life’s desolate pain as loss builds upon “What conservatives are going to have to colleagues sought to clarify and purify loss over time. It is perhaps this Father get used to is that certain fights we have the movement at the outset of its mis- Brown–like knowledge of the human waged are, quite simply, lost. It is fine, sion—and challenged one another as one heart, which Edwards perceptively indi- in our little seminars, to make the case way of determining its direction. cates, that enabled Buckley to be a good against a federal Social Security pro- Thus, the contrarian political scientist friend even to those who strongly dis- gram, but it pays to remind ourselves that Kendall, famously described by Dwight agreed with him. nobody outside the walls of that class- Macdonald as “a wild Yale don who can Which is not to say that he was always room is going to pay much attention to bring any argument into the shouting William F. Congeniality Jr. He held his our Platonic exercises.” stage faster than any man in town,” was friends and allies to account when he Edwards provides a very effective given to occasionally calling out tradi- disagreed with them—notably the great overview of Buckley’s life and thought, tionalist Russell Kirk in print (but always Ronald Reagan, whom he admired based on extensive research in the ar - outside the pages of NR). For his part, the deeply—and he could be ferocious when chives of Buckley correspondence. It Burkean Kirk refused to lend his name aroused, as when Sen. Ted Kennedy helps that his subject is such a fasci nating to NR’s masthead, where it would have indulged in his infamous tirade about one, a sparkling presence in Amer ican appeared alongside the names of former “Robert Bork’s America” in 1987. To life for so many decades. When WFB Marxists who saw nothing of Edmund Kennedy’s fulminations about how, with first appeared on the national scene, he Burke in America’s core principles. He Bork on the Supreme Court, “women was demonized and belittled by a statist was at daggers drawn with the libertarian would be forced into back-alley abor- American intelligentsia. As Edwards Meyer for many years, with Meyer be- tions, blacks would sit at segregated shows, Buckley by the end of his life lieving Kirk’s emphasis upon the “little lunch counters, rogue police could break had endured and prevailed, taking the platoons” of faith, family, and culture to down citizens’ doors in midnight raids,” fight to doctrinaire liberalism with Ches - be simply collectivism smuggled into the and other calamities, Buckley replied ter tonian zeal and humor, retiring from conservative movement under the warm with words that retain their thunder still. the field covered with honors and ac - word community. Burnham, too, a former “Now either Senator Kennedy was drunk claim—and the respect of his bruised Trotskyite turned Cold Warrior and advo- when he uttered these lines,” he wrote, opponents. He had his minor faults, cate of Realpolitik, clashed from time to “in which case he should not drink before including one or two instances of disin- time with his peers and with Buckley. he drives or orates; or else he has proved genuousness in the crafting of NR’s Burnham believed, for example, that as irresponsible as any demagogue in the editorials, rare cases of bet-hedging in Barry Goldwater was unelectable to the recent history of the United States. . . . determining editorial stances, and an presidency in 1964 and pushed for NR Kennedy’s vituperation of Bork is of a otherwise understandable devotion to to endorse the liberal Republican Nel son Reagan that could sometimes be ex - Rockefeller, whom many conservatives, pressed in near-worshipful terms—un - including Buckley, could not abide. Be- usual for a man renowned for his verbal lieving that it was the role of NR not only precision. These blemishes are acknowl- to stop history but also to shape it, Buck - edged by his biographer, who also makes ley came down on the side of Goldwater, clear that they were trivial compared who lost but paved the way for Ronald with his tremendous gifts. Edwards has Reagan. provided an insightful, short intellectual That sense of taking long views, of biography of a remarkable man whose prudently building for tomorrow, is a belief writings and influence will endure long Buckley shared with T. S. Eliot—who, by after the grumblings of his detractors the way, turned down Bill’s invitation “Because left is the new right.” have faded to silence.
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BOOKS, ARTS & MANNERS himself with night sticks, and sets out distinctive thing that Kick-Ass has to offer Film in search of petty criminals to menace. is the chance to watch a cherubic, gap- Refreshingly, his first foray into crime- toothed schoolgirl spit profanities and dish fighting ends exactly the way it would in out bloody ultraviolence. Child real life. he’s slugged, knifed, and hit by a The thing to do, I suppose, is to refuse car, and he ends up in an ambulance, beg- to be shocked. That’s the line that some Misuse ging the medics not to tell anyone that he reviewers have taken: Oh, nice try, was wearing a superhero costume. hollywood, but you’ll have to get up a ROSS DOUTHAT But this “superhero with no powers” bit earlier in the morning to inflame this premise gives ground quickly to the critic. he parents of Chloe Moretz, the movie’s true ambition, which is to one-up Better to act jaded than to wallow in cute-as-a-button child star of Quentin Tarantino at his most mindless - the exploitation, as Kick-Ass’s many rave the new action movie Kick-Ass, ly exploitative. Kick-Ass isn’t the only reviews have done. And better a yawning T are an Atlanta plastic surgeon would-be superhero on the streets, it turns dismissal, certainly, than the awful preten- named McCoy Moretz and his wife, Teri. out: There’s also Big Daddy (Nicolas tiousness that inspired Time’s Richard Remember those names: If a would-be Cage) and his precocious daughter hit- Corliss to praise the movie for its sup- Dante Alighieri ever produces an Inferno Girl (Moretz), and there’s nothing the least posed moral seriousness, and for the way for the new millenium, McCoy and Teri bit realistic about them. They’re equipped it “spills out of itself to raise issues about are prime candidates to occupy a hellish with the usual comic-book backstory (a all superhero characters, all action pic- circle all their own. Readers will probably quest for revenge against the crime boss tures.” encounter them somewhere between the who drove their wife and mother into an Kick-Ass does raise questions, I admit, misers and the pimps, in the bubbling early grave), armed with a vast arsenal of but most of them boil down to just one: Is ditch of melted-down Oscar trophies re - unrealistic weaponry, and graced, in the this the bottom? For a while, I thought that served for showbiz parents who profit case of the prepubescent hit-Girl (Moretz torture porn represented the nadir of mod- from their own children’s corruption. is 13, but her character is supposed to be ern exploitation cinema, but after watch- Kick-Ass is a superhero film—or, more 11), with acrobatic powers straight out of ing young Moretz put her butterfly knives aptly, it’s yetanothersuperherofilm in an The Matrix. through a panicking, pneumatic gang - era glutted with comic-book adaptations. Once these two take Lizewski/Kick- ster’s moll, I’m not so sure. One hates to At first, it seems to have found a halfway- Ass under their wing, the plot takes a outsource in these cases, but it’s hard to interesting twist on the usual formula: more by-the-numbers turn: The crime do better than The New Yorker’s Anthony What if a teenager in the real world set boss (Mark Strong) has to be vanquished, Lane, who called the movie “violence’s out to imitate his comic-book heroes, and the girl has to be won, and an array of answer to kiddie porn,” and noted that “the ended up in way over his head? The an- goons and gunmen need to be dispatched winsome way [hit-Girl] pleads to be in - swer is supplied by Dave Lizewski (Aaron in wild action sequences set to a rock-and- culcated into grownup excess . . . is the Johnson), a milquetoast high schooler roll beat. There are a few wrinkles that dream of every pedophile.” with comic-book-geek pals and a pre- provide some modest entertainment value: The filmmakers, of course, would be dictable crush on the cool, gorgeous, and Lizewski’s crush, Katie, spends part of shocked—shocked—by that analogy. The unattainable Katie (Lyndsy Fonseca). In the movie assuming that he’s gay, and screenwriter, Jane Goldman, explained in the hopes of becoming somebody worth the crime boss’s son (Christopher Mintz- an interview that it’s really hit-Girl’s noticing, he buys a green scuba suit and Plasse) turns out to have superhero am - “intensity and focus” that draw people to mask, dubs himself “Kick-Ass” and arms bitions of his own. But the only truly the character, and that her prepubescence actually makes the movie less exploita- tive, because unlike most female action heroes, she isn’t just “there to look attrac- tive” while she guts and guns down bad guys. She’s a feminist action hero, you see! Just like Sigourney Weaver’s Ripley in the Alien movies! (If, you know, Ripley shot her way out of the alien hive while wearing pigtails and a Catholic schoolgirl uniform . . .) I’m sure Goldman believes this. I’m sure many moviegoers do as well. And I’m very sure that Mr. and Mrs. Moretz believe it, because how else would they sleep at night? That’s the thing about cor- ruption: There’s always a way to rational- ize it, even—or especially—when it’s your own daughter’s soul that’s being
Hit-Girl (Chloe Moretz) sold. LIONSGATE
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through the gut wall into the suspect somewhat more receptive to the medical The Straggler gland. the gut being chock-full of bacte- arts. even so the household pharmaco - ria, there is a chance of introducing infec- poeia was not large: aspirin for pain, tion into the gland; so at biopsy time it’s Band-Aids and germ cream for cuts, and The Voice of wise to be loaded up with antibiotics. something called “calamine lotion” for But, frowns the physician (as the pa- insults inflicted by stinging plants or The Derg tient is still struggling with the concept insects. We were medical minimalists. of having needles blasted through his there are national differences, too. viscera), sometimes the gut bacteria are Here is my half-brother, 22 years in Her resistant to the entire prescribed range of Majesty’s armed forces followed by 20 antibiotics. So then the patient ends up more as a traffic cop, now well past retire- with a nasty infection anyway, and must ment age and enjoying life on three sturdy be hospitalized. the physician closes with pensions. (Sound of the Straggler’s teeth “i have to tell you this,” the patient now grinding.) He spends considerable time wondering if he is trapped inside one of in resorts, and is much amused by his those tV ads for miracle medicines that American coevals. “they rattle when they JOHN DERBYSHIRE consist of 30 seconds of cheery promotion move, they’re all carrying so many pills followed by a 90-second list of terrifying around with them. they ask me: What are cience-fiction writer Robert side effects. you taking? i tell them: nothing. they Sheckley wrote a story titled And i recall—i mean, the patient re - can’t believe it.” “Protection,” whose first-person calls—having been told by a different the U.S. has had a long infatuation with S protagonist acquires a guardian physician that hospitals are dangerous pills, potions, lotions, and patent medi- angel. the angel is actually a validusian places, their very air a soup of hostile cines. A vigorous nation with a strong derg—an invisible, immaterial being from microorganisms. So being hospitalized work ethic, driven forward by healthy another plane of existence, present only for the infection one got anyway because young adults, it wants to banish age and as a voice in one’s head. the derg’s sole the bacterium evaded the antibiotic when all symptoms of age. the more resigned satisfaction is to keep a human being safe the precautionary biopsy was done in re - British attitude was expressed by Winston from harm. sponse to a possible morphological abnor- churchill: “Most of the world’s work is Like all pacts with the supernatural, this mality, is itself a slight additional hazard. done by people who do not feel very one turns out to have a downside. By tak- the voice of the derg is coming through well.” ing on the derg, our narrator has made loud and clear by this point. Possibly these oddities of national tem- himself conspicuous to that other realm. Prostate cancer is of course a very nasty perament account for the differences in Dangers multiply. the derg explains: thing, to be avoided by all means. the health policy. Radical tory enoch Powell, patient, a person ever keen to reduce a worshipper of Hayek, and one of the “if you accept protection, you must ac - things to arithmetic if possible, persuades very few Anglosphere politicians to have cept the drawbacks of protection . . .” the physician to look up the percentage resigned from government in protest at his “Are you trying to tell me,” i said, very probabilities at each step of this progres- colleagues’ refusal to cut spending, happi- slowly, “that my risks have increased sion from bilobal asymmetry to hospital ly served three years as minister of health because of your help?” “it was unavoidable,” he sighed. infection. Some quick mental work with in charge of Britain’s socialized medical Bayes’s theorem then convinces him that system. Perhaps a national health service i think of this story every time i visit the the biopsy is worthwhile, and the appoint- can work only where the generality of doctor, or read something about health- ment is confirmed. citizens have the same fatalistic attitude care policy. it seems that the more shields i am an iatrophobe; i avoid doctors as to disease that World War i tommies had we erect against medical misfortunes, much as i can. it takes several months’ to artillery shells: “if it’s got your number the more we need. relentless nagging by Mrs. Straggler to get on it . . .” not much work for validusian consider, for example, the human pros - me to the “annual” check-up. this is a dergs over there. tate gland, which, says Gray’s Anatomy, family trait, though whether nature or nur- (Sheckley’s story ends badly, of course. “consists of two lateral lobes and a middle ture i would not venture to speculate. My A very malign being called a thrang slays lobe.” imagine a person, a sixtysomething father’s attitude was fixed firmly in the the protecting derg, though not before the male in good condition, who learns on 19th-century conception of hospitals as derg has been able to explain that the nar- routine examination that the lobes of his places where poor people go to die, and rator himself will be safe from the thrang prostate are somewhat asymmetrical. is of physicians as being at least as likely to so long as he refrains from a certain sim- this bad? he asks the physician. not at all harm as to heal you. in 40 years’ close ple, everyday human action: “You must . . . necessarily, he is told; but one cannot acquaintance with Dad, i don’t recall ever not lesnerize.” And “lesnerize” is derg- be too careful. of course not. seeing him take prescription medicine, speak for . . . what? the protector is slain A biopsy is arranged. our patient is though he suffered from the average num- before he can answer, leaving the poor given prescriptions for large doses of ber of minor ailments—colds, cramps, narrator not knowing what commonplace antibiotics. Why? he asks. the physician colics. He died aged 85 from pneumonia, action he must at all costs avoid. to com- explains: the biopsy is done from inside “the old man’s friend.” pound his distress, he has a cold coming the gut, by shooting a hollow needle My mother, a professional nurse, was on. “now i have to sneez . . .”)
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Happy Warrior BY MARK STEYN That Personal Touch
He British election campaign didn’t do much to oddly evasive, although they concede the private mail-shot catch the attention of Americans, but one little companies they contract with use sociodemographic data in item feels pertinent—although it attracted remark- the public domain. However, no publicly accessible database T ably little attention even across the pond. In knows about Janet Arslan’s terminal cancer. Diane Dwelly, the Sherwood, Nottinghamshire, a lady called Phyllis Delik patient featured on the postcard, says she thought she was being received a postcard from Gordon Brown’s Labour party. On photographed for a magazine published by the National Health one side, there was a photograph of a woman suffering from Service, not a campaign commercial for the Labour party. She breast cancer saying “It’s the sort of thing you think will never complains that she has “probably been used by Labour.” happen to you.” On the reverse, there was a question: “Are the But in Gordon Brown’s Britain who hasn’t been? Labour Tories a change you can afford?”—followed by a warning denies that it somehow accessed confidential medical that the Conservatives would scrap a Labour guarantee that records, while declining to offer an alternative explanation as any woman diagnosed with breast cancer is entitled to see a to how it was able to alert sick women that the opposition is specialist within two weeks. planning on killing them. (Yes, yes, I know that lingo still sounds a little strange to Britain today is a land in which the citizen takes for grant- Americans: Government bureaucrats announce “targets” for ed that he will be photographed by closed-circuit TV multiple the length of time between seeing your family doctor and see- times in the course of his day, and in which roadside cameras ing your specialist, or between getting your MRI and getting can zoom into your car and detect whether you’re illegally your operation. But don’t worry, you’ll soon get used to it.) eating a sandwich while operating a motor vehicle. In some As it turned out, Mrs. Delik is a breast- municipalities, cameras in trash cans record cancer survivor herself, so the postcard was your garbage. These are only the most ob - very relevant to her. She brought it up among vious signs of an omnipresent state that a group of her girlfriends—seven of them. maintains hundreds of different databases Six had not received the Labour election tracking the activities of the citizenry in card. The seventh had—and, by a remark- every sphere of life. In theory, these data- able coincidence, Shirley Foreman had had bases are entirely separate: The National surgery for breast cancer. So in a group of Health Service bureaucrats cannot access eight women the only ones to receive the your tax records; the tax collector cannot gov ernment’s breast-cancer warning were access your medical records. But in practice the two breast-cancer patients. “When I re - who knows? You’ll recall that, when Joe the ceived the breast-cancer card at first I Plumber’s appearance on the scene proved thought it was from the hospital,” said another Sherwood unhelpful to Barack Obama, it was the work of moments for resident, Janet Arslan. “I did not think Labour would be that “public servants” to leak his confidential information. crass to deliberately target a terminal cancer patient like me.” It may well be that voting Tory reduces your life expectan- The party’s official position is that, well, they sent out cy. On the other hand, it could be the case that, when you’re 250,000 of their Vote-Labour-or-Die postcards, so it’s not already sick and vulnerable, the stress of receiving a scary surprising that a few of them should have wound up going to notification suggesting that your health treatment is in jeop- women who happen to have breast cancer. In this case, how- ardy might also reduce your life expectancy. If you live in a ever, everybody who’s come forward to say she received the small apartment house in a marginal constituency and collect card has either been diagnosed with, been treated for, sur- your mail from the hall table and you see the lady on the top vived, or, in at least one case, died of breast cancer (it was her floor’s breast-cancer card lying there one morning, the stress widower who came forward). A 44-year-old TV producer of wondering if next week the postman will leave a personal- in Poplar and Limehouse, a marginal constituency in east ly addressed erectile-dysfunction mail-out warning that the London, canvassed 50 of her neighbors and discovered that Tories are going to cut back on your Viagra might easily she was the only one to get the card. Like all the others, it was impact your performance. personally addressed to her. She’d recently been told she had Sherwood is, of course, the famous forest where Robin Hood a lump in her breast. once foiled the Sheriff of Nottingham. It was easier to cock a So a quantum leap in targeted marketing has just been snook at the overbearing state back then. In a high-tech world, made: The governing party of a free society was able to iden- Big Government takes big liberties, in every sense. In this re - tify women with breast cancer in swing constituencies and spect, it seems relevant that the biggest employment boost send them a postcard warning that if you vote for the opposi- from Obamacare will be 16,500 new . . . doctors? nurses? hos- tion they’ll cut off your chemo and kill you. pital janitors? No. IRS agents, hired to determine whether The official position of Gordon Brown’s chaps is that “we your health-care arrangements are government-compliant. I AFP / make no apology for highlighting the difference between wonder what they’ll need to know about you to establish Labour and the Conservatives on cancer care”—which sounds that—and how they’ll go about finding out. BEN STANSALL
6 0 | www.nationalreview.com MAY 1 7 , 2 0 1 0 base_milliken-mar 22.qxd 4/23/2010 1:03 PM Page 1
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© 2010 New York Mint base_milliken-mar 22.qxd 4/27/2010 2:28 PM Page 1 $ECLARE 9OUR /WN )NDEPENDENCE FreedomFest 2010 July 7-11, 2010 N Bally’s Las Vegas Event Center N www.freedomfest.com
Dear freedom lovers, “So good I changed my schedule to attend all three days!” Get ready for the 7th Annual FreedomFest: Just think 7-11 in Vegas! Last year we had over 100 speakers, 90 —Steve Forbes exhibitors, and nearly 1700 attendees, with over 200 “FreedomFest is developing into the most effective showing up at the door. One couple got married and international free-market gathering and you celebrated their honeymoon at FreedomFest. have me wondering why I spend so much time at ‘lesser events’.” —Ron Mann, Australia Updated List of Speakers: Greg Mortenson, author of #1 bestseller “Three Cups of Tea,” on his new book “Stones into Schools: Promoting Peace with Education, Ten Debates in 2010, including . . . Not Bombs, in Afghanistan and Pakistan.” A rare appearance! “Religion on Trial” with prosecuting attorney/economist Steven New! Orson Scott Card, author of “Ender’s Game” and America’s #1 Landsburg (author “The Big Questions”) vs. defending attorney science fi ction writer, on “Science Fiction or Fictional Science?” Dinesh D’Souza (author “Life After Death: The Evidence”), with Ann Heller on “Ayn Rand and the World She Made.” Plus Nathaniel star witnesses galore. The sparks will fl y. and Barbara Branden on “The Life and Ideas of Ayn Rand.” John Mackey, CEO, Whole Foods Market, on “My Fight for Freedom “Can You Beat the Market?” See Burt Malkiel, famed Princeton in Health Care” and “Conscious Capitalism: Reaction from Top fi nance professor and author of classic, “Random Walk Down MBA Schools.” Wall Street,” take on top fi nancial gurus.... Plus healthy living with Julian Whitaker (Whitaker Wellness Center) Michael Shermer (Scientifi c American) on an updated version of his and John Mackey: “The Whole Foods Diet Updated: You Can Still “Why People Believe Weird Things.” Live to be 100 and Enjoy Life.” Alan Charles Kors, controversial history professor at U Penn and “Energy Independence, Good or Bad Policy?” Two energy experts, founder of FIRE (Foundation for Individual Rights in Education) David Fessler vs. Rick Rule, debate this vital topic. on “Can There Be An ‘After Socialism’?” “The Future of Israel: Pro and Con.” George Gilder, author of “The Steve Forbes on “How Capitalism Will Save Us: Why Free People and Israel Test” versus..... Free Markets are the Best Answer in Today’s Economy.” Special “Power and Money” Session: Top FOX reporter Charles Gasparino (author “Sellout”) on “What’s Really Going On in Wall “It really was a WOW! experience at FreedomFest. I heard that Street.” Plus Steve Moore (Wall Street Journal) on “What’s Really from many attendees.” —Terry Brock, Charlotte Business Journal Going on in Washington.” Robert Prechter on “The New Science of Social Prediction.” And back by popular demand, our All-Star Prediction Panel, with Peter Announcing Two Special Anniversaries Schiff, Bert Dohmen, Alex Green, and Doug Casey (moderated by Mark Skousen). at FreedomFest 2010 Pulitzer Prize winner Daniel Walker Howe (UCLA) on “What Hath We celebrate two anniversaries at FreedomFest 2010: the 25th God Wrought: The Transformation of America, 1815-1848.” anniversary dinner of the Advocates for Self Government, led by Jerry Jordan, former Federal Reserve Bank President, on “Why the Sharon Harris....and the 30th anniversary reception of Forecasts & government can’t reverse the great contraction of 2008/09.” Strategies. Charles Murray on his next controversial book “Coming Apart at the Like every year, we plan on having an expanded exhibit hall with all Seams,” about racism in America. the top freedom and fi nancial organizations, two celebrity luncheons Alexandra Colen, Belgium member of Parliament, and Dr. Paul each day, and a grand unforgettable Saturday night banquet. All the Belien on “What Every American Must Know about the Dangerous major think tanks and freedom organizations will be there — Cato, New Europe.” Heritage, Reason, Fraser, FEE, Leadership, Mises, plus coverage by Plus Tom Palmer (Atlas Foundation), Ken Schoolland (Pacifi c Fox Business and C-SPAN. Hawaii University), Robert Enlow (Friedman Foundation), James Gwartney (FSU), Doug Bandow (Cato), Lawrence Reed (FEE), Leon Louw (Free Market Foundation, South Africa) and Wayne Yours for liberty, AEIOU, Allyn Root, Tom DiLorenzo and Tom Woods (Mises Institute). Mark Skousen, Producer
Price for three full days of FreedomFest — all general sessions, workshops, debates, exhibit hall, continental breakfast, and cocktail parties — is only $495 per person/$795 per couple. (Special luncheons and Saturday night banquet are extra.) Plus, if you mention this ad, you will receive a free 2010 American eagle silver dollar, the symbol of FreedomFest, with your registration. To register, call Tami Holland at 1-866-266-5101 or visit www.freedomfest.com