Brown's National Security Victory
January 25, 2010
Frontpage Interview’s guest today is Andrew C. McCarthy, a senior fellow at the National Review Institute and a columnist for National Review. His book Willful Blindness: A Memoir of the Jihad [1] (Encounter Books, 2008), has just been released in paperback with a new preface. Check out a description [2] from Encounter Books.
FP: Andy McCarthy, welcome to Frontpage Interview.
I would like to talk to you today about Scott Brown’s victory in Massachusetts and how it was the issue of national-security that put Brown over Coakley.
Can you talk a bit about that? The people seemed to have cared about terrorism and the treatment of enemy combatants, yes?
McCarthy: Jamie, great to be here as always. And you’re right. The Brown campaign’s internal polling told them something very interesting. While it’s true that healthcare is what nationalized the election and riveted everyone’s attention to it, it was the national security issues that put real distance between the two candidates in the mind of the electorate—in blue Massachusetts of all places. Sen.-elect Brown was able to speak forcefully and convincingly on issues like treating our jihadist enemies as combatants rather than mere defendants, about killing terrorists and preventing terrorism rather than contenting ourselves with prosecutions after Americans have been killed, about tough interrogation when necessary to save innocent lives. Martha Coakley, by contrast, had to try to defend the indefensible, which is Obama-style counterterrorism. It evidently made a huge difference to voters.
FP: What do you think of how Bush was treated on this whole issue?
McCarthy: As many of us predicted during the Bush years when the president was being hammered by the Left and the press, history is treating him much more kindly on the national security front. His movement of the country to a war-footing rather than treating international terrorism as a criminal justice matter was common sense, but common sense cuts against the Washington grain so it took a strong president to do it. Now, on issue after issue, he is being vindicated—he and Vice President Cheney, who has become the country’s leading voice on national security, after spending years being vilified.
FP: What role did McCain play?
McCarthy: Sen. McCain is, as ever, a mixed bag. He’s recently been very good on the need to treat the enemy as an enemy, not as a defendant. So that was helpful to Brown. But it can’t be forgotten that McCain was the force behind the libel of Bush as a torture monger and the consequent ruination of our interrogation policy. And it was the “McCain Amendment” that gave us, as a matter of law, the extension of Fifth Amendment rights to our enemies overseas, which has had awful ramifications even outside the issue of interrogation practices. McCain is responsible for a lot of the fodder that made Obama possible.
FP: What lessons should Republicans take from Brown’s success?
McCarthy: These national security positions resonate with voters. Healthcare, TARP, and the economic issues in general are very important, but they’re complex and make people’s eyes glaze over sometimes. The national defense issues, besides being the most important ones confronted by a political community, are comparatively easy to wrap your brain around. And strong, unapologetic national defense in a time of terrorist threat is appealing to voters. So we should be arguing these issues forcefully, and not worry about the fact that the left-wing legacy media will say nasty things about us. Their instinctive America-bashing is why they are speaking to—or, better, speaking at—a steadily decreasing audience.
FP: The Left pretends that its positions in how to confront terror (or not to) are somehow founded on the Constitution. What’s the mindset here?
McCarthy: Yes, because they reject the foundational fact that the Constitution is a compact between the American people and the government they created. They think every person on planet earth is an American waiting to happen, born with the full panoply of American constitutional rights that can be asserted against the American people. And they think the courts, rather than being a peer branch of our government, stand over and above our government: a forum where the rest of the world, including enemies of the United States, is invited to make its case against the United States. That’s a warped understanding of the Constitution.
FP: What hope does Brown’s victory give? What do you think Obama, Holder and Napolitano are thinking – or not thinking?
McCarthy: Well, I think it’s Brown combined with what’s happened in New Jersey and Virginia, with Obama’s plunging numbers, the unpopularity of the Democrats’ healthcare, employment and national-security policies, and the disgusting wheeling-and-dealing the supposedly “transparent” Left is doing behind close doors (i.e., not on C-SPAN). All these things give hope that freedom is on the march, that people are broadly rejecting statism. But I don’t think Obama is a normal politician and that his administration is a conventional “let’s modulate to remain viable” administration.
Enacting their agenda is more important to them than being reelected, and they are not to be underestimated.
FP: Why do you think that when I see or think about Janet Napolitano I am engulfed with a profound sense of doom and despair?
McCarthy: Well, if I have this right, she is an official who is in charge of securing the homeland but — after ballyhooed, years-long investigations, including by the 9/11 Commissions — she didn’t know how the 9/11 hijackers got here, thought they snuck in from Canada, and believes that what they did when they got here was a “man-caused disaster” that had nothing to do with jihadist ideology (indeed, she thinks that saying “jihadist” is problematic). She does see ideology as a problem, of course, but only if it is … conservative ideology. That is, she thinks the real terror threat comes from people with radical ideas like limited government, the sanctity of life, and the Second Amendment — especially if they’re military vets who’ve served in George Bush’s wars of aggression. And she is in charge of enforcing the immigration laws but wasn’t aware that entering the country illegally is a criminal offense.
I can’t imagine why you’d have a problem with any of that, Jamie.
FP: Who needs horror movies or a tragic film to make you cry when you have things like this to think about?
Well, let’s move on:
What was this whole thing about Brown’s pick-up truck and Obama making fun of it? I thought Obama represented the common man?
McCarthy: This president has lived a very different kind of life from most Americans. He lived his early, formative years in Indonesia, a majority-Muslim police state. After he returned to America at age ten or so, he dove into the fever-swamps of the Left and was steeped in the cynicism and nihilism of Saul Alinsky. For years, he’s surrounded himself with fawning sycophants who’ve told him he’s “The One.” And he’s extremely insulated from the real world of everyday Americans. I don’t think the sudden burst of Obama-style populism is going to fly — and going after Brown’s pick-up is a good indication of why. He thinks people who like their pick-up trucks are bitter-clingers. Actually, they’re Americans.
FP: Brown vs. Obama, 2012?
McCarthy: I don’t think we should get ahead of ourselves. Brown’s an impressive, talented guy, but he’s also someone no one outside of Massachusetts had heard of until a few short weeks ago. But this does underscore something I’ve been saying for a long time. As late as 1991, few people really knew who Bill and Hillary Clinton were, and yet they’ve towered over our politics from 1992 forward. The world changed on a dime on 9/11.
A year ago today, with Pres. Obama just inaugurated and with the Democrats having wide margins in Congress, the Republican party seemed dead and even conservative intellectuals were telling us we had to abandon Reagan conservatism—the conservatism that’s leading us out of the woods. This is all a long-winded way of saying: We may not yet know, even today, who the leaders will be when 2012 rolls around. We’ve got a ton on our plate right now, and the unknown tomorrow. You know the old saw, “You want to make God laugh—tell Him about your plans.” Right now, I’m worried about today, and content to figure 2012 will take care of itself.
FP: Well before we say goodbye for now, what is on your mind the most right now? What can you tell our readers that will give us all some hope that America, despite its current leadership, can prevail against the threats it faces?
McCarthy: After slumbering for too long, the public — the great swath of Americans that is basically conservative, patriotic, and thinks the country is the best the world has ever known, not in dire need of transformative “change” — has asserted itself. But even if he’s held to one term, Obama will leave us in a deep hole. The reckless borrowing and spending would take decades to dig out of even if we stopped it tomorrow. There is a lot of mischief a sprawling executive bureaucracy can do in four years, and Obama is likely to stock the federal courts with very left-wing judges who will try to impose transnational progressivism by fiat if the Republicans don’t have the gumption to stop the president from appointing them. And that last point is what I think about most.
The challenge for Republicans is not to win the next elections. The smart Democrats have already factored elections in. Obama Leftists are not conventional politicians. They are true-believers. Of course they hope their friends at ACORN and similar outfits will soften the blow come November. But if not, they are willing to endure electoral losses for what they see as the greater good of using this one-time opportunity they have to transform this country radically.
Republicans don’t so much need a plan to win elections — the Democrats’ statist policies and their irresponsible positions on national security will take care of that. Stopping bad government is not enough. Republicans need a plan, after they win elections, to roll back what the Left has done and is doing. That will require courage and skill. I hope we have it, but I confess to worrying about whether we do.
FP: Andy McCarthy, thank you, and a pleasure and honor as always to speak with you.
Previous Must Reads
National Review's Must Reads
From The First 54 Years
Two National Review magazine veterans recently recommended “Must Reads” from its archives. Senior Editor Rick Brookhiser wrote:
“One question the [National Review Institute] Washington Fellows asked last night: What five articles in National Review's first 54 years must they read? I suggested:
1) The editorial reax to 9/11.
2) The editorial reax to the fall of Soviet Communism in 1991.
3) I couldn't think of any specific piece of coverage of Goldwater's gallant run, but suggested they flip through 1964.
4) Whittaker Chambers's review of Atlas Shrugged [Read More] Still ticking people off after half a century. I pointed out that, while I know what Chambers was saying, the lady never wished to send actual people to actual gas chambers. . . .
5) Editorial reax to Hungary, 1956.
I also added 6) anything by Keith Mano, the best writer we have ever published.
I see my list is heavily geopolitical. Over dinner afterwards, Ramesh suggested the lead para in the issue after LBJ's first taking the oath of office. I wonder what five other NR-niks might come up with?”
John J. Miller took up his colleague’s suggestion and had recommendations of his own. His “Must Reads” begin in the beginning with the mission statement in National Review’s first issue. [Read More]. He also recommends the editorial on Roe v. Wade, published on the 25th anniversary of the Supreme Court decision [Read More] and the Allan Bloom essay that became a conservative classic - The Closing of the American Mind. John Miller cites Rick Brookhiser’s “The Numinous Negro” [Read More] as one of National Review’s classics.
Andrew C. McCarthy
May 1, 2009
By email (to the Counterterrorism Division) and by regular mail:
The Honorable Eric H. Holder, Jr.
Attorney General of the United States
United States Department of Justice
950 Pennsylvania Avenue, NW
Washington, D.C. 20530-0001
Dear Attorney General Holder:
This letter is respectfully submitted to inform you that I must decline the invitation to participate in the May 4 roundtable meeting the President’s Task Force on Detention Policy is convening with current and former prosecutors involved in international terrorism cases. An invitation was extended to me by trial lawyers from the Counterterrorism Section, who are members of the Task Force, which you are leading.
The invitation email (of April 14) indicates that the meeting is part of an ongoing effort to identify lawful policies on the detention and disposition of alien enemy combatants—or what the Department now calls “individuals captured or apprehended in connection with armed conflicts and counterterrorism operations.” I admire the lawyers of the Counterterrorism Division, and I do not question their good faith. Nevertheless, it is quite clear—most recently, from your provocative remarks on Wednesday in Germany—that the Obama administration has already settled on a policy of releasing trained jihadists (including releasing some of them into the United States). Whatever the good intentions of the organizers, the meeting will obviously be used by the administration to claim that its policy was arrived at in consultation with current and former government officials experienced in terrorism cases and national security issues. I deeply disagree with this policy, which I believe is a violation of federal law and a betrayal of the president’s first obligation to protect the American people. Under the circumstances, I think the better course is to register my dissent, rather than be used as a prop.
Moreover, in light of public statements by both you and the President, it is dismayingly clear that, under your leadership, the Justice Department takes the position that a lawyer who in good faith offers legal advice to government policy makers—like the government lawyers who offered good faith advice on interrogation policy—may be subject to investigation and prosecution for the content of that advice, in addition to empty but professionally damaging accusations of ethical misconduct. Given that stance, any prudent lawyer would have to hesitate before offering advice to the government.
Beyond that, as elucidated in my writing (including my proposal for a new national security court, which I understand the Task Force has perused), I believe alien enemy combatants should be detained at Guantanamo Bay (or a facility like it) until the conclusion of hostilities. This national defense measure is deeply rooted in the venerable laws of war and was reaffirmed by the Supreme Court in the 2004 Hamdi case. Yet, as recently as Wednesday, you asserted that, in your considered judgment, such notions violate America’s “commitment to the rule of law.” Indeed, you elaborated, “Nothing symbolizes our [adminstration’s] new course more than our decision to close the prison at Guantanamo Bay…. President Obama believes, and I strongly agree, that Guantanamo has come to represent a time and an approach that we want to put behind us: a disregard for our centuries-long respect for the rule of law[.]” (Emphasis added.)
Given your policy of conducting ruinous criminal and ethics investigations of lawyers over the advice they offer the government, and your specific position that the wartime detention I would endorse is tantamount to a violation of law, it makes little sense for me to attend the Task Force meeting. After all, my choice would be to remain silent or risk jeopardizing myself.
For what it may be worth, I will say this much. For eight years, we have had a robust debate in the United States about how to handle alien terrorists captured during a defensive war authorized by Congress after nearly 3000 of our fellow Americans were annihilated. Essentially, there have been two camps. One calls for prosecution in the civilian criminal justice system, the strategy used throughout the 1990s. The other calls for a military justice approach of combatant detention and war-crimes prosecutions by military commission. Because each theory has its downsides, many commentators, myself included, have proposed a third way: a hybrid system, designed for the realities of modern international terrorism—a new system that would address the needs to protect our classified defense secrets and to assure Americans, as well as our allies, that we are detaining the right people.
There are differences in these various proposals. But their proponents, and adherents to both the military and civilian justice approaches, have all agreed on at least one thing: Foreign terrorists trained to execute mass-murder attacks cannot simply be released while the war ensues and Americans are still being targeted. We have already released too many jihadists who, as night follows day, have resumed plotting to kill Americans. Indeed, according to recent reports, a released Guantanamo detainee is now leading Taliban combat operations in Afghanistan, where President Obama has just sent additional American forces.
The Obama campaign smeared Guantanamo Bay as a human rights blight. Consistent with that hyperbolic rhetoric, the President began his administration by promising to close the detention camp within a year. The President did this even though he and you (a) agree Gitmo is a top-flight prison facility, (b) acknowledge that our nation is still at war, and (c) concede that many Gitmo detainees are extremely dangerous terrorists who cannot be tried under civilian court rules. Patently, the commitment to close Guantanamo Bay within a year was made without a plan for what to do with these detainees who cannot be tried. Consequently, the Detention Policy Task Force is not an effort to arrive at the best policy. It is an effort to justify a bad policy that has already been adopted: to wit, the Obama administration policy to release trained terrorists outright if that’s what it takes to close Gitmo by January.
Obviously, I am powerless to stop the administration from releasing top al Qaeda operatives who planned mass-murder attacks against American cities—like Binyam Mohammed (the accomplice of “Dirty Bomber” Jose Padilla) whom the administration recently transferred to Britain, where he is now at liberty and living on public assistance. I am similarly powerless to stop the administration from admitting into the United States such alien jihadists as the 17 remaining Uighur detainees. According to National Intelligence Director Dennis Blair, the Uighurs will apparently live freely, on American taxpayer assistance, despite the facts that they are affiliated with a terrorist organization and have received terrorist paramilitary training. Under federal immigration law (the 2005 REAL ID Act), those facts render them excludable from the United States. The Uighurs’ impending release is thus a remarkable development given the Obama administration’s propensity to deride its predecessor’s purported insensitivity to the rule of law.
I am, in addition, powerless to stop the President, as he takes these reckless steps, from touting his Detention Policy Task Force as a demonstration of his national security seriousness. But I can decline to participate in the charade.
Finally, let me repeat that I respect and admire the dedication of Justice Department lawyers, whom I have tirelessly defended since I retired in 2003 as a chief assistant U.S. attorney in the Southern District of New York. It was a unique honor to serve for nearly twenty years as a federal prosecutor, under administrations of both parties. It was as proud a day as I have ever had when the trial team I led was awarded the Attorney General’s Exceptional Service Award in 1996, after we secured the convictions of Sheikh Omar Abdel Rahman and his underlings for waging a terrorist war against the United States. I particularly appreciated receiving the award from Attorney General Reno—as I recounted in Willful Blindness, my book about the case, without her steadfastness against opposition from short-sighted government officials who wanted to release him, the “blind sheikh” would never have been indicted, much less convicted and so deservedly sentenced to life-imprisonment. In any event, I’ve always believed defending our nation is a duty of citizenship, not ideology. Thus, my conservative political views aside, I’ve made myself available to liberal and conservative groups, to Democrats and Republicans, who’ve thought tapping my experience would be beneficial. It pains me to decline your invitation, but the attendant circumstances leave no other option.
Very truly yours,
/S/
Andrew C. McCarthy
cc: Sylvia T. Kaser and John DePue
National Security Division, Counterterrorism Section
Musings on the Place of Religion
in American Public Life
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As “a Catholic who takes his religion seriously” and has served in the Senate, at the State Department, and on the Federal bench, Buckley is one of few men with first hand experience reconciling his private faith with his public duties in all three branches of the federal government. Buckley notes that the faith and duties of all federal officers intersect at the swearing of a constitutional oath of office. This talk, delivered in New York City in 2006, entails an indictment of what Yale Professor Stephen L. Carter calls “the culture of disbelief” and a defense of religious faith in the public square, which the Founders considered “essential to the success of their great experiment.”
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I would like to address some odd notions that have been floating around in recent times regarding religion and public service. I cite, as one example, the statement made a few years ago by then-Governor Douglas Wilder of Virginia on hearing that my then-colleague, Clarence Thomas, had been nominated for the Supreme Court. Governor Wilder announced that he opposed the nomination because Judge Thomas was a Catholic, and Catholics opposed abortion. It is hard to pack, into a single sentence, so large a misunderstanding of the roles of both religion and the judiciary under the Constitution.
By way of full disclosure, I should state that I am a Catholic who takes his religion seriously. I am also an American who, over the past thirty-odd years, has been privileged to serve in all three branches of our federal government. As might be expected, I have developed my own views concerning my responsibilities and obligations with respect to each. So today I propose to touch on those responsibilities, with particular emphasis on those of a judge because the guerilla warfare in recent years over judicial appointments reflects so distorted a view of the role of the judiciary.
As we are all aware, the Constitution assigns the respective duties of the three branches of our federal government, and its system of checks and balances was designed to keep the members of each of these branches within their proper bounds. But few seem to appreciate that the Constitution contains an additional safeguard. It is to be found in the first part of the third clause of Article VI, which reads as follows:
The Senators and Representatives ... and the Members of the several State Legislatures, and all executive and judicial officers, both of the United States and the several States, shall be bound by Oath or Affirmation, to support this Constitution.
The balance of that clause provides that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."
It should be noted that this clause is the only provision of the original Constitution that applies to all three branches of government; the only one that applies to state as well as federal officials. So it should be obvious that the Founders intended the oath to serve more than a ceremonial purpose. They were launching an extraordinary experiment in governance, and they knew that it could succeed only if every public officer in their fledgling nation were to bind himself to make it work. To this end, they consciously enlisted the power of religion to ensure fidelity to the Constitution. James Madison, in fact, would comment on the seeming paradox that such a requirement should appear in the same clause as the provision abolishing religious qualifications for office. As he wrote in October of 1787, "Is not a religious test ... involved in the oath itself?"
It doesn't speak well of our age that we must remind ourselves that in taking an oath, we call on God to bear witness to the promises we make with the implicit expectation that He will hold us accountable for the manner in which we live up to them. This understanding of the meaning of an oath is as ancient as our civilization. Edward Gibbon made the point in a wry passage on the role of religion in the Roman Empire:
The various modes of worship, which prevailed in the Roman world, were all considered by the people, as equally true; by the philosopher, as equally false; and by the magistrate, as equally useful. ... The magistrates could not be actuated by a blind, though honest bigotry, since the magistrates were themselves philosophers. ... [But t]hey knew and valued the advantages of religion, as it is connected with civil government. ... [A]nd they respected as the firmest bond of society, the useful persuasion that, either in this or in a future life, the crime of perjury is most assuredly punished by the avenging gods.
Like the Roman magistrates, the Founders of the American Republic took full advantage of this "useful persuasion" to further the interests of their new nation; but unlike those magistrates, they were believers in both the religious nature of an oath and its implications. In his Farewell Address, George Washington would ask, "Where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths ....?" And in an opinion quoting the judicial oath of office, Justice Samuel Chase would write, “No position can be more clear than that all the federal judges are bound by the solemn obligation of religion, to regulate their decisions agreeably with the Constitution of the United States.”
The second provision of clause 3, the one forbidding religious qualifications for public office, did not banish religion from public life; rather, it protected freedom of conscience and ensured that government would be open to persons, and therefore to influences, of every faith and of none. The Founders were not afraid of religion. To the contrary, they thought it essential to the success of their great experiment. A common theme that ran through their writings was that the Republic's survival, and the liberties it was intended to protect, ultimately depended on the morality of its citizens as formed and reinforced by their religious beliefs. John Adams asserted that "our Constitution was made only for a moral and religious people”; and Washington warned that "reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle."
I think it useful, at this point, to note that the idea that religion is a purely private matter is of recent vintage. For most of our history, the First Amendment's provision prohibiting the “establishment of religion” was understood to do no more than forbid the federal government’s preferential treatment of a particular faith. But while the First Amendment’s purpose was to protect religion and the freedom of conscience from governmental interference, as Thomas Cooley noted in his 1871 treatise on Constitutional Limitations, the Framers considered it entirely appropriate for government "to foster religious worship and religious instruction, as conservators of the public morals and values, if not indispensable, assistants to the preservation of the public order." As that perceptive observer of the American scene, Alexis de Tocqueville, put it, “while the law allows the American people to do everything, there are things which religion prevents them from imagining and forbids them to dare.”
And so it is not surprising that the Congress that adopted the First Amendment also reenacted the provision of the Northwest Ordinance which declares that “Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged;” and early Congresses proceeded to make grants of land to serve religious purposes and to fund sectarian education among the Indians.
In sum, as understood by those who wrote it, the First Amendment did not forbid the government from being biased in favor of religion as such so long as it championed none. Nor did it require that the state be insulated from religious principles and influences. The men at Philadelphia who outlawed religious tests for public service surely had the practical common sense to know, if some contemporary ideologues do not, that in those roles in which public servants are expected to bring their personal judgments to bear, the views of religious individuals will inevitably reflect their religious beliefs. It is, quite simply, fatuous to suppose that a public official can check the religious components of his convictions at the door before entering the council chambers of government
It follows, then, that under our constitutional arrangements, a President and members of Congress of whatever faith need never apologize for the fact that their recommendations or votes may reflect their religious beliefs. As members of the elected branches of government, they are expected to bring their best judgments to bear in the formulation of public policy. Inevitably, that policy will reflect the values and moral judgments of its makers – values and judgments that are presumably known to those who elect them.
Those who cry that one should not "legislate" morals or "impose" one's own morality on others through the law, are ignorant of both history and the law. Whatever else might be said about such arguments, this much, I think, is clear: It would have struck previous generations of Americans as only slightly less than absurd to say that morality cannot or should not be legislated. Americans have always debated, and will, I hope, continue to debate the propriety or the prudence of incorporating a particular moral proposition into the law; but to say that morality and law do not or should not mix flies in the face of everything we know about American history – or, for that matter, about the history of every system of law since at least the Code of Hammurabi. In the 1860s we fought the bloodiest war of our history and then amended our Constitution in order to impose Northern notions of morality on the slave owners of the South.
Nor have we, in this "enlightened" age, ceased to legislate morality. How, for example, are we to describe the civil rights laws of the past generation except as the codification of a moral imperative? And what about our various social welfare laws? Are they not expressions of a corporate moral responsibility for the old, the sick, and the poor among us?
The role of federal judges, however, is of a significantly different kind. As nonelected officials, they can claim no mandate to reconstruct public policy. Rather, their constitutional duties are exclusively judicial. It is their job to give force and effect to the law, whether they agree with it or not; and that, I assure you, is responsibility enough.
When I took my oath of office as a federal judge, I solemnly swore that I would "administer justice ... according to the best of my abilities and understanding, agreeably to the Constitution and laws of the United States." The authority that was vested in me on taking that oath was derived exclusively from the Constitution. Thus the justice I was sworn to administer was not justice as I might see it in a particular case, but justice as it is defined by the Constitution and laws and legal traditions of our country. And if I consciously deviated from that body of law to do justice as I saw it, I would have violated my oath of office and undermined the safeguards embodied in the Separation of Powers. Should I have been asked to hear a case in which the application of the law might result in my material complicity in what I believed to be an immoral act, I would have had to examine my conscience and, if it so dictated, recuse myself. What I might not do was bend the law to suit my conscience.
A judge, of course, is no more relieved of moral responsibility for his work than anyone else in either private or public life. The duty of a judge, however, is to be measured by the requirements of his office. A person cannot act as the impartial arbiter of the law unless he is willing to apply it. That, in part, is what is meant by judicial temperament -- the ability to subordinate personal feelings and beliefs to the constitutional duties assumed -- what Robert Bork has described as the principled jurist's "continuing self-conscious renunciation of power."
Unfortunately, over the years judges have developed diverging views as to the standards to be applied in interpreting the Constitution. One school, which is exemplified by Justice Antonin Scalia's focus on original meaning, maintains, essentially, that in identifying and applying the Constitution’s enduring principles, a judge is bound by the meaning of its text as illuminated by contemporaneous usage and tradition; that is to say, its meaning as understood by those who ratified it.
The second school, as epitomized by the late Justice William Brennan, views the Constitution as a "living" document that each generation of jurists is at liberty to adapt to the exigencies of the times. Thus, as Justice Brennan expressed it in an address at Georgetown University in 1985, “The genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.” Needless to say, such a view of the Constitution will allow a jurist to make rather breathtaking departures from the original understanding of what the Constitution requires. Justice Brennan also said that "[t]he act of interpretation must be undertaken with full consciousness that it is, in a very real sense, the community's interpretation that is sought." With respect, that statement seems to me to beg the question of an unelected judge's competence to speak for the community at large.
I recognize that a body of respected thought supports the premise behind Justice Brennan's remark, namely, that its nuts and bolts provisions aside, the Constitution is essentially a depository of principles that jurists are entitled to update from time to time as conditions change. I believe, however, that a reliance on original meaning in constitutional interpretation is not only sounder in principle, but better designed to narrow the occasions for the ultimate judicial sin: the abuse of power. Over recent decades, the Brennan school has held the edge in a series of sensitive cases that have had a profound effect on the social and political life of this country.
Because millions of Americans see some of the Court’s newly defined rights as threats to their most deeply held values, because its decisions have overturned laws and practices that date back to the earliest days of the Republic, it is hardly surprising that great numbers of our citizens have come to view the Court as an active player, perhaps the major player, in the ongoing culture wars as it pursues goals that they believe to be beyond its authority.
Three particularly sensitive lines of cases come to mind; namely, those in which, by narrow margins, the Supreme Court has virtually banished religion from public life, extended First Amendment protection to the most explicit pornography, and proclaimed what amounts to an unrestricted right to abortion. When, in 1957, the Court outlawed the recitation of voluntary non-denominational prayers in public schools, it ended a practice that had been part of the American experience since the outset of public education and which an overwhelming majority of American parents wished to have continued; and the net effect of its subsequent Establishment Clause decisions has been to exclude religion from almost every aspect of public life and to encourage the belief that religion is irrelevant to the public welfare. More than that, in Yale professor Stephen Carter's words, it has led to "a discomfort and a disdain for religion in our public life that sometimes curdles into intolerance."
Recent interpretations of the Speech Clause have had an equally dramatic impact on our society and culture. For better or worse, the Court’s expansion of protected speech to include pornography has abolished any meaningful limitations on its commercial distribution. The Court did hold that obscenity is not protected by the First Amendment, and it defined as obscene any work that, in the view of "the average person, applying contemporary community standards, [has a] dominant theme [that] . . . taken as a whole appeals to prurient interest.” But such has been the erosion of community standards since the Court opened the floodgates for pornography that the U.S. Court of Appeals for the Second Circuit recently had to rule that the notorious film “Deep Throat,” which contains wall-to-wall depictions of sexual intercourse and perversions, was not obscene because it was not patently offensive to jaded New York City audiences. Gresham's law, it seems, is as applicable to culture as it is to currency.
And then there is Roe v. Wade. In discovering a right to abortion for any reason and, as a practical matter, at any time, the Court overturned the laws of all fifty states and unleashed the most divisive political issue since Dred Scott, one that remains a major factor in American politics more than thirty years after the decision was announced.
To appreciate the full effect of these lines of cases, it is important to understand the social consequences that can flow from a particular Supreme Court ruling. There is a fundamental difference between a practice that society condemns and may or may not choose to forbid and one that the Court has declared to be constitutionally protected. The latter tips the psychological as well as the legal balance in favor of a newly defined right because that which society may not forbid acquires the presumption of moral legitimacy, for how can one condemn the exercise of a constitutional right?
It is because of the pivotal role the Supreme Court has come to play in the ongoing culture wars that Senate judicial confirmation hearings have become the scenes of such destructive acrimony. And the ferocity of the attacks by such organizations as People for the American Way on a man of John Roberts’ impeccable qualifications confirms that the acolytes of today’s secular religions can be as driven as any fighting in the name of the Lord.
Qualitatively, in fact, I can see little to distinguish radical evangelicals from, say, the radical feminists who have spearheaded so many of the attacks on recent judicial nominees. Each group has political axes to grind, each is profoundly convinced that reason and virtue are on its side, each has become sophisticated in the arts of political warfare, each has important constituencies in both the electorate at large and in Congress, and each has an equal right to pursue its goals in the political marketplace. What does distinguish the evangelicals is that the values they champion have fallen into disrepute with both the establishment media and Atlantic and Pacific Coast elites even though they seek no more than to protect institutions and standards that were almost universally accepted as recently as a generation ago. Call it a question of style, if you will.
Whatever its cause, the undeniable fact is that we have witnessed an astonishing sea change in American practices and attitudes over the past forty years or so. Such words as “sin” and “honor” and “virtue” sound quaint as we discard moral precepts and codes of behavior that had been rooted in our society since the founding of the Republic. Moreover, we have shown a dismaying tendency to recast God in Man's image. If enough people engage in conduct that society once condemned, we rewrite the rule book and assume that God, as a good democrat, will go along.
As a result, since the 1960s, we have witnessed an erosion of moral standards and self-discipline that have given us among the civilized world’s highest incidences of crime, abortion, pornography, drug abuse, and illegitimacy, as well as some corporate scandals of Olympian proportions. To cite just one striking statistic, in 1960, one out of twenty births in the United States was illegitimate; today, the figure is one out of three; and over the same period, we have also managed to create what Professor Carter has called a "culture of disbelief."
It is hardly surprising, then, that there should have been a reaction to this culture of disbelief and to the loss of moral moorings that many attribute to it. That reaction is embodied in the so-called "religious right", which consists of a loose coalition of men and women of all faiths who, taking religion and their civic responsibilities to heart, have decided to become politically engaged. And they are not alone in their concerns. According to the exit polls conducted on behalf of the Los Angeles Times, in each of the last three elections, the issue of moral and ethical values was uppermost in the voters’ minds. In 2004, that issue outweighed concerns over the economy, homeland security, and Iraq by substantial margins.
As one would expect in a functioning democracy, this phenomenon has helped frame the issues for public debate, and it has had its impact on both the choice of political candidates and their election to office. The caterwauling of the establishment media notwithstanding, however, I can see nothing more sinister in the activities of the religious right than an attempt to elect officials who share their convictions on certain matters of public policy. That is their right, and it does not offend the Constitution that their views should fail to accord with those of the New York Times or the Washington Post.
The Constitution is quite capable of protecting our liberties so long as those in office feel bound by its terms. For this reason, it seems to me that the American people have little to fear from public servants who take their religion seriously. A healthy concern for the Last Judgment, after all, was precisely what the Founders were banking on when they wrote the third clause of Article VI into our Constitution.
March 31, 2009, 8:23 pm
After Detention, Where Can the Uighurs Go?
A Case Built on Irrationality
Andrew C. McCarthy, Senior Fellow, National Review Institute, is author of “Willful Blindness: Memoir of the Jihad.”
The Uighur saga nicely captures all the irrationality and hypocrisy of our counterterrorism approach. That policy foolishly holds that we can focus on terrorist activity without focusing on the jihadist ideology that motivates it.
So what happens? The military, which has released many terrorist operatives in the course of the past several years, saw the Uighurs as a group that could be unloaded. It took the position that they were “enemy combatants” but not America’s enemy, reasoning that these detainees’ dispute was with China. This contention was legally incoherent: one must be America’s enemy to be detained by the U.S. as an enemy combatant. It also showed a deep ignorance of jihadist ideology.
In fact, the Uighurs were captured by coalition forces after the U.S. invasion of Afghanistan. Their presence there was not an accident: They had sought and received instruction in the paramilitary camps of the East Turkestan Islamic Movement, an al-Qaeda affiliate formally designated as a terrorist organization under U.S. law. Besides their terrorist training, at least some of the Uighurs are known to have fought against Coalition forces, and to have joined other terrorist detainees in rioting at Guantánamo Bay.
Obviously, because the military’s position was untenable, it was appropriate for the reviewing federal appeals court to invalidate the enemy combatant designation — something Congress gave the court the power to do. But the judiciary did not have the power to order the Uighurs released, much less released into the U.S.
In fact, the federal REAL ID Act of 2005 provides for the exclusion of any alien who has received terrorist training or has belonged to an organization that promotes terrorism — against anyone. The Uighurs are excludable on both grounds, even if one accepts, for argument’s sake, that they were trained for the purpose of conducting operations against China.
Now, for the purpose of resettling this group, Mr. Obama may ignore statutory provisions — measures enacted precisely because paramilitary training has been a feature of virtually all attacks carried out by radical Islam against the U.S.
Clearly, we cannot send the Uighurs to China; our treaty obligations forbid transfer to countries where detainees are likely to be persecuted. Consequently, they should be detained until another country willing to receive them can be found. Relocating them in the U.S. would be irresponsible and fly in the face of the law.
Overloading the Federal Horse
By the Honorable James L. Buckley
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Senator Buckley first delivered this defense of federalism towards the end of his term and updated it periodically as he witnessed – from both the executive and judicial branches – the federal government’s relentless arrogation of powers constitutionally reserved to the states. The following variation was delivered at the Northwestern University Law School in November 1990. Since then, hopes that Washington might restore to the states their rightful authority have only further retreated – a retreat that has become a rout over the last two months. But those hopes, Buckley nevertheless insists, remain necessary and even plausible in a Constitutional system that remains “uniquely based on a philosophical conception of the nature of man and of the limits of human institutions.”
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It has been my lot, over the past twenty years, to serve time in each of the three branches of the federal government. So rather than give you a learned summary of recent trends in administrative law, I thought I would unburden myself of some observations on the institutional gridlock that is beginning to paralyze important areas of our federal government.
Over the years, that government has served us well; so well, in fact, that in the 200 years of its existence, we have found it unnecessary to make any significant change in its constitutional design. This is an extraordinary record of stability, and Americans have every reason to be proud of their charter; but at times they need to be reminded that it consists of more than its first ten amendments.
As is evident from recent Supreme Court confirmation hearings, there is a tendency these days to equate the Constitution with the Bill of Rights, which however majestic an affirmation of fundamental values is nonetheless a constitutional afterthought. The fact is that the principal concern of the Constitution’s authors was with structure: How to frame a government that would be effective, but never threatening. The grand design that emerged from the constitutional debates proved a brilliant answer to the challenge that James Madison posed in the following terms: “In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the governed; and in the next place oblige it to control itself.”
The Framers met that challenge in two ways: First, by dividing the powers delegated to the new government among three separate but equal branches; and second, by reserving to the sovereign states all authority not delegated to the national government. The first, of course, embodied the doctrine of the separation of powers; the second, the principle of federalism.
It was this last element of our constitutional design that commanded the admiration of the British historian, Lord Acton. In a turn-of-the-century lecture on the American Revolution, in which he catalogued what he believed to be the Constitution’s significant failings, Lord Acton nevertheless concluded that “by the development of the principle of federalism, it has produced a community more powerful, more prosperous, more intelligent, and more free than any other which the world has seen.”
Two centuries have now elapsed, and notwithstanding the jockeying that will occur between the legislative and executive branches to establish which is the more equal, the separation of powers remains an integral part of our governmental system. On the other hand, the three branches of the federal government have, over the years, engaged in massive raids on the constitutional prerogatives of the states to the point where, today, there is virtually no governmental responsibility that the Supreme Court will find beyond the reach of federal authority.
In the process, we have seen so great a transfer of power, authority, and initiative from state capitals to Washington that the former have too often been reduced to the role of mere executors of federal policies. At the same time, we have so overloaded the federal horse that its ability to cope with its expanded responsibilities is increasingly in doubt.
In early 1971, when I first arrived in Washington, I came armed with a recent study of the inner workings of Congress. Its authors had concluded that the workload of the average congressional office had doubled every five years since 1935. Given the fact that, in simpler times, Congress worked at a leisurely pace and was in session for only six or seven months a year, its members could no doubt take the initial increases in stride simply by devoting more hours per day and more months per year to their work. Over time, however, the available hours and months were exhausted, and the increasing demands could only be accommodated by fundamental changes in the manner in which Congress had gone about its business. Inevitably, every new federal initiative will trigger a chain reaction of constituent questions and complaints, consultations with bureaucrats and special pleaders, and oversight hearings by an expanding number of committees and subcommittees -- all at the expense of legislative quality.
I can certify that during my own six years in office, I witnessed both a sharp increase in the already frenetic pace of the Senate as well as an equally sharp decline in its ability to get very much done that could honestly be labeled “thoughtful.” By all accounts, these two trends have continued unabated. It may well be that the Senate remains the world’s greatest deliberative body ‑- I can’t make that judgment because I don’t know enough about the others. But I believe it can be said that the Senate can no longer claim to be a great deliberative body, and this is no reflection on the quality of its current members. The simple fact is that their days are so fractured by competing claims on finite time that they, as well as their colleagues in the House, have too often found themselves incapable of handling many of their most fundamental obligations, such as the timely enactment of the annual appropriations required to provide for the orderly funding of the federal government’s activities.
In recent years, we have seen the spectacle of congressional races against the clock as a handful of Senators and Representatives patch together multi-thousand page, mega-billion dollar continuing resolutions that are then rushed into law, unread, so that the federal machinery will not grind to a complete halt. In every instance, boondoggles have later been discovered in their fine print ‑- legislative contraband smuggled in by one or another Senator or Representative who could not possibly have secured their approval through open hearings and debate.
This year’s protracted exercise has confirmed the worst we have come to expect. After heroic huffing and puffing, the congressional leadership managed to produce a deficit reduction bill that increases overall spending by eight to ten percent despite the cuts for defense. And, yes, the boondoggles are still there. While it is too early to tell how many billions in pork are stashed away, preliminary digging by columnist James Jackson Kilpatrick has uncovered a $19 million appropriation to study the contribution of bovine flatulence to the greenhouse effect ‑- yes, cows produce methane. What makes this particular example intriguing is that the study had twice been eliminated from Senate legislation, and had not been included in a House bill. Yet the $19 million study reappeared, presumably by spontaneous generation, in the final bill that both houses rubber-stamped into law in the final hours of the 101st Congress.
While the pace and pressures of life on Capitol Hill appear to have destroyed its capacity for deliberative lawmaking, committee and subcommittee chairmen are nonetheless able to find the time to micro manage the Executive Branch’s conduct of a host of federal programs and, in the case of the Senate, to convert confirmation hearings into political inquisitions.
But I am being unfair. Congress’s erratic performance is in large degree the result of a workload that has grown too great to permit either reflection or attention to detail, so it is not surprising that its members will turn instead to government by political reflex and political theater. What is clear from the experience of the past few years is that fundamental changes will have to be made before Congress can once again provide the thoughtful service the Nation needs.
The problems besetting the Executive Branch are of a different order. The overloading of a legislative body will ultimately lead to paralysis because each of its members is required, in theory if not always in practice, to reach an informed judgment on each item of business to come before it for a vote. Yet there is a limit to the number of issues an individual can master at any one time. By way of contrast, in the Executive Branch new office space can be built and new staffs hired to handle new or expanded responsibilities. At a certain point, however, the proliferation of programs will outstrip the ability of any President to provide the bureaus and agencies under his titular control with meaningful direction.
Today, the sheer size of the federal establishment defies coherent oversight; and to compound a President’s problems, Congress has entrusted the management of a host of executive responsibilities to bureaus and agencies that together form a de facto fourth branch of government. These are staffed by essentially irremovable civil servants who exercise enormous influence over just about every facet of American life. Yet as a practical matter, they operate largely beyond the reach of even the most determined President.
Even in the case of cabinet departments headed by his own appointees, a President is apt to face almost insurmountable problems in getting his programs implemented. White House policy directives have a way of disappearing into bureaucratic black holes, and the Secretaries themselves are often so caught up in detail that they lose sight of some of their administration’s most pressing goals.
A President, of course, is still free to exercise energetic leadership during periods of international crisis. The fact remains, however, that as in the case of Congress, the Executive Branch is experiencing its own institutional gridlock. No matter how large his margin of victory, a new President soon learns that the most he can expect in four or even eight years in office is to nibble away at the edges of his agenda.
The third branch has not fared so badly, even though litigation in federal courts has become one of the great growth industries of the past twenty-five years. Thanks to the proliferation of federal laws and regulations, the continuing discovery of hitherto unsuspected constitutional rights, and the disposition of Americans to have a court decide almost any dispute, the number of appeals filed in federal courts has skyrocketed from 3,900 in 1962 to 37,000 in 19871. The nine-fold increase has had its inevitable impact on both the workload and the quality of the work of federal appellate judges, whose numbers have only doubled over the same period.
Nevertheless -- and there are those who would consider it a very mixed blessing ‑- the judiciary appears to have suffered neither gridlock nor paralysis. In a sense, the federal judiciary has proven a prime beneficiary of the expansion of federal authority. Thanks to the exploding body of law federal judges are called upon to decipher and apply, they are exercising more power today than could ever have been imagined 200 years ago; and some are exercising it in remarkably creative ways. Take for example the U.S. District Judge who, among other things, ordered a Kansas City, Missouri, school district to build indoor, Olympic-sized swimming pools, to operate a 25-acre farm, install greenhouses and amphitheaters, and then directed the district to increase its tax rates to help pay for it all.2
Whatever complaints one may lay at the feet of federal courts these days, judicial paralysis is certainly not one of them. On the contrary, the focus of the current debate is over judicial activism. One observation I would make on this prickly subject is that to the degree that federal judges treat the Constitution as no more than a depository of values to be applied without reference to original meaning, to that degree do they undercut the legitimacy of judicial review in the constitutional arena. Philosopher kings, after all, do not interpret laws, they dispense them.
In Marbury v. Madison, John Marshall asserted the Supreme Court’s right to invalidate an act of Congress by affirming that the Constitution was “supreme, paramount law,” and that “it is emphatically the province and duty of the judicial department to say what the law is.” Thus when the Court concludes that the Constitution and an act of Congress are in conflict, the latter must yield. This seems to me a rather straightforward proposition: The Constitution is law, and as with any other law, it has a meaning that judges are trained to ascertain and apply.
I find it hard, therefore, to reconcile John Marshall’s approach with that suggested by Justice Brennan in a 1985 address at Georgetown University. On that occasion he observed that “the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.” He stated that “the act of interpretation must be undertaken with full consciousness that it is, in a very real sense, the community’s interpretation that is sought.” This statement, it seems to me, begs the question of a Supreme Court justice’s competence to speak for the community at large.
Justice Brennan also spoke of the Bill of Rights as “a sparkling vision of the supremacy of the human dignity of every individual,” and stated that it is the function of federal courts to bring that vision to full fruition in the light of “the evolution of our concepts of human dignity.” Once again, I am troubled by his implicit assumptions. On the matter of capital punishment, for example, Justice Brennan acknowledged that his own views were shared by neither a majority of the Court nor a majority of his fellow countrymen. Nonetheless, he asserted that “on this issue, the death penalty, I hope to embody a community striving for human dignity for all, although perhaps not yet arrived.” Thus Justice Brennan seems to say that he found the authority for his votes on this issue ‑- and, one wonders, on how many others as well ‑- not in the explicit language of the Constitution, not in community sentiment, but in his own perception of what is required by an enlightened understanding of human dignity. It seems to me that this is the thinking not so much of a jurist as it is of a philosopher king.
Unfortunately, it is the unstated premise of much of the debate over recent Supreme Court nominees that Supreme Court justices ought to serve as philosopher kings. I submit that if the view of a judge as lawmaker is allowed to take root, we will have politicized the selection process and jeopardized the court’s independence. I fear, from the questions asked at their confirmation hearings, that that process is well advanced as a number of Senators seem far more interested in how the nominee might vote on politically sensitive issues than in how he would approach the task of determining what vote the law required.
This is about as far as I can appropriately go in dealing with the judiciary, so let me return to the problems I see facing the legislative and executive branches. Here, I must confess, I am profoundly worried. I believe that at the national level, we are rapidly losing our capacity for effective government: government in which politically difficult decisions can still be made, problems thought through to ultimate solutions, and long-term commitments undertaken in the confidence that they will be honored; government in which each branch will respect the prerogatives of the others and understand the limits of its own.
As the problems afflicting both Congress and the Executive are essentially structural, they are not prone to easy solution. There are no doubt many causes of the paralysis I see creeping over Washington, but I feel by far the most significant of these has been the virtual abandonment of the principle of federalism. Accordingly, I believe the surest road to true reform is to rediscover and reapply that principle; and in that way, to reduce the scope of federal responsibilities to manageable size.
I do not suggest that it is either possible or even desirable to replicate the division between state and federal authority that once obtained in this country, and that until relatively recently was thought to be constitutionally mandated. Too much water is over the dam, too many fundamental changes have occurred in American life. What I do urge is that we reaffirm the wisdom of the original constitutional design in which only those functions that are deemed essential to the effective conduct of truly national business are assigned to the federal government, while all others are reserved as the exclusive province of the states; and that we then determine, in the light of today’s conditions, which level of government should be doing what.
There will always be an argument as to where the line is to be drawn. But I think it less important where it is drawn than that one be drawn that leaves no question as to the outer limits of federal authority. Of course, having done this, all parties would have to take a blood oath to abide by the new dispensation.
This means that if the more enlightened folk who gravitate to Washington do not like the way the citizens of Illinois, or Hawaii, or Arkansas choose to manage their own affairs, they will have to suppress the impulse to impose enlightenment on them. But perhaps, in the fullness of time, Washington could learn to set aside the arrogance that assumes that the citizens of the several states cannot be trusted to govern themselves.
I recognize that my modest proposal would require an uncommon substitution of philosophy for politics; but ours, after all, is a system uniquely based on a philosophical conception of the nature of man and of the limits of human institutions.
Those limits are now being tested; and perhaps it is not altogether romantic to hope that necessity, if not philosophy, will lead us to rediscover the robust federalism that in times past has provided this Nation with such extraordinary strength, and flexibility, and freedom.
As political philosophers, the delegates to the constitutional convention understood that they had accomplished something profoundly important. As realists, they also understood that the protection of the new Constitution would be a never-ending task.
As Benjamin Franklin left Independence Hall on the last day of the convention, a woman asked him: “Dr. Franklin, what kind of government have you given us?” He answered, “A republic, madam, if you can keep it.” That is the challenge that each generation of Americans has had to face. That challenge will soon be yours.
Good luck.
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1In fiscal year 2008, total appeals filed in federal court rose to 61,104.
2see Missouri v. Jenkins, 495 U.S. 33
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